REALWorld Law

Construction

Public procurement

Are public private partnerships (PPPs) common? Are they promoted or encouraged by the government?

Angola

Angola

In Angola, public-private partnerships (PPPs) are governed by Law No.11/19 of 14 May.

PPPs have been encouraged by the government, which aims that by 2017 10% of public investment is made through PPPs. However, the use of PPPs is still in its early stages.

Australia

Australia

The federal government defines a PPP as a procurement involving the use of private sector capital to wholly or partly fund an asset that would have otherwise been purchased directly by the public sector and which is used to deliver public sector outcomes. Australian Federal, State and Territory Governments will consider a PPP for any project with a capital cost in excess of A$50 million, in accordance with the National PPP Policy Framework.

PPP projects undertaken in the Australian market to date, the majority of which have been in New South Wales and Victoria, range from hospitals to courts to toll roads. In the case of toll roads, the government will usually hand over operation to the private sector participant for the period of the concession. In the case of social infrastructure such as hospitals and schools, the government will usually retain the obligation to provide the core services such as healthcare or education, although some projects have outsourced delivery of the core services to the private sector participant.

The Federal government (via Infrastructure Australia) has issued a set of National PPP Policy and Guidelines which now apply to all PPP projects released in the Australian market. . The various policies:

  • Require the preparation of a number of rigorous and detailed business cases and assessments at each stage of the delivery of a project
  • Require market testing at the procurement stage through a competitive tender process between the various private sector participants (usually structured as consortia in the form of a special purpose vehicle with interest by the financier, builder, designer, operator and maintenance contractor)
  • Impose some form of a value for money test
  • Are intended to be flexible enough to apply to different types of infrastructure while acknowledging that the market may be more receptive to certain kinds of PPP projects than others

The current trend is towards harmonization and an increasingly standardized approach to risk allocation by state governments, which is likely to lead to commoditization of PPP project documentation in the medium term.

Belgium

Belgium

It is becoming more common in Belgium for significant infrastructure and/or building projects to be established through public-private partnerships (PPPs). Examples include the development of brownfield sites and the building of bridges and new roads, and sport infrastructure.

In the Flanders Region, this form of co-operation is explicitly encouraged and a special decree has been passed to govern PPPs. The decree contains the framework within which these partnerships are to be constructed.

In the Walloon and Brussels Capital Regions, there is no special legislation regarding PPPs, but such partnerships or forms of co-operation are however used in these regions.

The selection of the private partner is mostly carried out by Federal Public Procurement Law, being the Law of 24 December 1993 regarding public procurement projects and some projects of works, deliveries and services. The new law of 15 June 2006 regarding public procurement projects and some projects of works, deliveries and services applies to projects offered publicly tendered after 1 July 2013.

Bosnia-Herzegovina

Bosnia-Herzegovina

The Law on Public Procurement in the Federation of Bosnia and Herzegovina provides that government bodies can be contracting parties in procurement procedures, hence, there is no particular set of rules which applies to government bodies that are different from rules applicable to private or public legal entities. The concept of the public private partnership (PPP) is still a relative novelty in this country and few PPP projects exist. However, efforts are being made in order to promote the significance and relevance of PPP projects in the country’s development.

The issue of PPPs in the Republic Srpska and Brčko District is regulated by the Law on Public-Private Partnerships in Republic Srpska from 2009 and the Law on Public-Private Partnerships in Brčko District from the same year, which is an indicator of the encouragement the government gives to these partnerships.

Canada

Canada

Public-Private Partnerships (P3s or PPPs) are a performance and merit based approach to procuring public infrastructure whereby the private sector assumes the majority of the risk associated with a project and is only paid on performance. This ensures that the project is completed effectively and secures long-term maintenance.

P3s gained prominence in the 2000s, supported by the Canadian Council for Public–Private Partnerships. Commitment to P3s was solidified in 2009 when the federal government created PPP Canada Inc., a crown corporation and the P3 Canada Fund. PPP Canada Inc. has invested over CA$1.6 billion to date on P3s with a combined capital cost of over CA$6.6 billion, resulting in savings of approximately CA$1.7billion compared to traditional procurement approaches. Projects range from small-scale developments, such as water treatment plants, to major infrastructure projects such as the Edmonton Light Rail Transit System.

The objective of PPP Canada Inc. is to improve the delivery of public infrastructure and provide better value, timeliness and accountability by increasing the effective use of P3s. Applicants to the P3 Canada Fund are screened against eligibility and merit requirements. Once a project has been screened-in, applicants must complete a P3 Business Case with PPP Canada Inc. The completed business case will be submitted to the PPP Canada Inc. board of directors, who will make a recommendation to the Minister of Finance on whether the P3 Canada Fund should fund the project.

China

China

Public private partnerships (PPPs) are very common for real estate developments and are encouraged by the government.

Croatia

Croatia

Public procurement is regulated by the Public Procurement Act (Official Gazette 120/16), whereas public-private partnerships (PPPs) are governed by the Act on Public-Private Partnerships (Official Gazette No. 78/12, 152/14).

PPP has been applied in Croatia since its independence and has had a significant role in the development of infrastructure projects and providing public services of a higher quality. In the beginning, the concession model of PPP was mostly applied for construction of roads and communal infrastructure. In the last few years, more complex PPP models have been implemented, especially in relation to education and science, technical-development centres, environmental protection, housing construction, sports and urban infrastructure, public administration buildings, development of healthcare and social care.

Czech Republic

Czech Republic

The PPP market in the Czech Republic is promising but not yet very well developed. Only a small number of projects have actually been implemented or are even set for implementation. Currently, the proposed private-public implementation of the D3 motorway is very promising and the development of a sports complex has been successfully completed in Červený Kameň. Another recent project has been the revitalisation of Prague's main railway station and a few other railway stations in the Czech Republic. The positive factor in the otherwise adverse domestic PPP climate is the interest of the banks. Banks are in favour of the PPP concept because project funding is provided by the State, thereby minimising the risk for the credit institutions.

The main reason that the Czech Republic is a little behind in PPP projects when compared to other EU countries is that there is no political will and a lack of political continuity. Progress in the development of PPP projects is being supported by new legislation.

It should also be noted that interest in PPP projects increased sharply in the context of the economic crisis and consequent spending cuts, especially in highway construction.

The use of PPP in the Czech Republic is not widespread but can nonetheless be found in a broad range of sectors including:

  • Transport infrastructure – highways, tunnels, bridges, high-speed tracks etc
  • Administrative or accommodation facilities – offices, courts, administrative offices, prisons etc
  • Healthcare – hospitals etc
  • Education – university complexes, residential halls, schools etc
  • Defence – equipment, special infrastructure etc
  • Utilities – sewage plants, water pipes etc
  • Restoration projects – public buildings, historical monuments etc
Denmark

Denmark

Public-private partnerships (PPPs) are not that common in Denmark currently, but they are encouraged by the government and they appear to be becoming more popular.

The use of PPP in Denmark can primarily be found in the following sectors: public administration (buildings), healthcare, defence, education and transportation.

France

France

In France, public-private partnerships (Partenariat Public Privé or PPP), created in 2004, are defined as public contracts whereby a public entity pays an operator to design, build, finance and operate a public facility over the long term. Schemes whereby the operator collects fees from end-users (eg toll roads) are referred to as concessions or délégations de service public and have existed in France since the 16th century.

PPPs are encouraged by the government and since 2008/2009 they have become more common.

Germany

Germany

Although state and federal governments try to promote public private partnerships, the concept is not as common in Germany as for example in the United Kingdom. A number of public bodies have developed master documents for public private partnership schemes. There are quite a number of examples of public private partnership projects in Germany, for example schools and other public administrative buildings, but the concept is still not as widely spread as some of the larger construction companies would wish. Public perception is still influenced by the fact that a scheme for the imposition of a toll on lorries on motorways (Toll collect) was procured by the federal government in a manner which may or may not have been competent and effective.

Hong Kong

Hong Kong

An increase in pressure on government finances has lead the HKSAR Government to explore other financing options, such as public-private partnership (PPP) schemes, as part of its private sector involvement (PSI) initiative, for the delivery of public services and infrastructure. The construction industry, having suffered a downturn over the last few years, is also keen to explore with the government the development of PPPs.

The Hong Kong International Exhibition Centre project is a landmark PPP, where the private sector contributed 15% of the investment.

Hungary

Hungary

The use of public-private partnerships (PPP) used to be widespread until 2010. The government and particularly municipalities did encourage PPP projects as such projects allowed them to focus on delivering the core services they are required to provide. Since 2010 virtually no new PPP projects have been started.

Ireland

Ireland

In the context of construction projects, public procurement rules are governed by a range of EU procurement Directives, transposed into Irish law by way of Regulations (ie Statutory Instruments).

The form of contract used varies. In recent years, many forms of public works contract have been issued by the Department of Finance to bring control to perceived cost overruns on government projects. On more complex public-private partnerships (ie PPPs) bespoke contract forms are generally used, given the complexities surrounding the design, construction, financing and operation inherent in PPPs.

Since the commencement of PPPs in Ireland in the late 1990s, almost €6 billion worth of public infrastructure projects have been delivered using PPPs, particularly in relation to motorway services and development of primary and secondary schools. The government’s investment in PPPs slowed down significantly from 2008 onwards due to the global economic crisis, however in 2012 the Government launched a new PPP programme involving €1.4 billion worth of projects which primarily related to development of schools, third-level education facilities, courts, primary care centres and roads.  A €300 million second phase of the PPP programme was also announced in 2014 to deliver social housing consisting of 1,500 units across six sites.

In September 2015, the Irish government announced a six-year capital investment framework to investment in transport, education, health and enterprise between 2016 and 2021. Of the €42 billion worth of investiment set out in this programme, €27 billion of the investment will be through direct exchequer spending and the balance from the wider semi-state sector (€14.5 billion) and off-balance sheet mechanisms like PPPs (€500 million). A number of these projects are already underway including the N25 New Ross Bypass project which involves the construction of 13.6km of new dual carriageway and 1.2km of upgraded or new single carriageway to ease traffic congestion at New Ross.

In July 2016, Minister for Housing, Planning, Community and Local Government, Simon Coveney T.D., announced a PPP programme for the construction of 450 new social housing units across eight designated sites around the country. In the announcement, the Minister noted that Ireland has a significant shortage of housing supply and PPP provides an effective mechanism to fund and deliver the additional housing units. The funding is part of a programme of investment totalling €300 million in social housing through the PPP model.

In October 2017, the Minister for Education and Skills and the Minister for State for Higher Education announced 11 projects for inclusion in the PPP Programme. The projects, which are located around the country, will assist with regional development. The PPP Programme is being rolled-out alongside €367 million in funding fro the Department of Education and Skills for investment in higher education over the period 2018–2021. Some of the institutions involved include Galway Mayo Institute of Technology, IT Carlow, IT Tallgaht, Institute of Art, Design and Technology, Dun Laoghaire.

Italy

Italy

Public-private partnerships (PPPs) are a common form of collaboration between the government and the business sector in order to realize a project jointly. They divide the duties and risks and they each retain their own responsibilities. They are commonly used in Italy.

The main forms of PPP include:

  • works concession
  • project finance techniques
  • financial leases
  • service concessions, and
  • joint-stock companies with public-private mixed capital, for managing local public services

In general, PPP (in its different forms) is expressly regulated by the law on public contracts (Legislative Decree no. 50/2016).

Japan

Japan

Yes. Public-private partnerships (PPPs) are a common form of collaboration between the government and the private sector for real estate developments. The Act on Promotion of Private Finance Initiative (PFI) was enacted in July, 1999 in order to realize the PPPs and to promote the development of public infrastructure by utilizing private funds.

Netherlands

Netherlands

In the Netherlands, public-private partnerships (PPPs) are a common form of collaboration between the government and the business sector in order to realize a project jointly. They divide the duties and risks and they each retain their own responsibilities. Public-private partnerships are generally encouraged in the Netherlands.

Nigeria

Nigeria

In Nigeria, there is an increased focus in the area of Public-Private Partnership (PPP) in public infrastructure development. The Infrastructure Concession and Regulatory Commission (ICRC) Act 2005 established the Commission responsible for regulating PPP processes in Nigeria and provides for the government of any of its agencies to enter into a contract or grant concession to private entities for the financing, construction, operation or maintenance of any infrastructure in the Country. Many States have enacted their own PPP laws towards public infrastructure development.

The notable PPP projects in Nigeria have been in areas of development of roads, bridges and power infrastructure under various PPP models.

Norway

Norway

The Government often pays private contractors to build roads, government offices, schools, hospitals and prisons out of tax revenues. A Public-Private Partnership (the Norwegian term for which is OPS) has however only been used in limited circumstances.

A new government took over in Norway in November 2013. The new government's platform assumes an extensive use of OPS agreements for road and railway projects. The use of OPS agreements in the near future will therefore probably expand.

At present, there is no Norwegian standard document that applies to OPS agreements.

Poland

Poland

In Poland, public-private partnership (PPP) is quite a new concept and not commonly used (according to data published by the Polish Ministry of Investments and Development, the number of PPP projects in 2017 was 36, and there were 24 projects pending). The number of PPP projects has gradually decreased since 2015. This is probably attributable to the fact that only approximately 20% of PPP proposals (117 out of 506 in the years 2009–2017) are successfully converted into PPP projects.

Portugal

Portugal

Public-private partnerships (PPPs) are common in Portugal. They have been promoted and encouraged by the state for more than 20 years. According to the 2012 Report of the Treasury and Finance General Directorate, the public expense in PPP between 2008 and 2011 increased four times more. The main areas in which PPPs operate are transport infrastructures and health. Since 2011, there has been a slowdown of new PPPs. PPPs are governed by the Public Contracts Code and by Decree-Law No. 111/2012, of 23 May 2012.

Romania

Romania

Public-private partnership (PPP) refers to forms of cooperation between public authorities and the world of business which aim to ensure the funding, construction, renovation, management or maintenance of infrastructure or the provision of services. Public authorities, at all levels, are increasingly interested in co-operating with private investors, in order to benefit from the know-how of the private sector and to overcome public budget constraints. The legal regime of PPPs was previously set out by Law no. 233/2016, which was repealed on 18 May 2018. On 18 May 2018, a new emergency ordinance regulating public-private partnerships has entered into force, ie GEO no. 39/2018. PPPs are generally encouraged by the Government although no landmark contracts were concluded yet. As the PPP is a rather new option for investment, the authorities have a certain level of reluctance in using this structure.

Russia

Russia

Public-private partnerships (PPPs) are used in the Russian Federation in relation to the development of socially important facilities. Each level of the Russian authorities is permitted to complete and perform PPP agreements. PPP agreements may be governed by Federal Law No. 224-FZ On PPPs dated 13 July 2015 (came into force from 1 January 2016), Federal Law No. 115-FZ On Concessions dated 21 July 2005, and/or by regional laws on PPPs. By 1 January 2025 the relevant regional laws that govern PPPs shall be brought into compliance with the provisions of the Federal Law on PPPs. In contrast to the Federal Law, regional legislation on PPPs generally provides more flexibility and more privileges for the private partner. PPP agreements entered into from 1 January 2016 are subject to regulation by the provisions of the Federal Law on PPPs.

PPPs are currently widely used for the construction of transport infrastructure. PPPs are also encouraged by the government in other sectors such as utilities, education and health care.

Slovak Republic

Slovak Republic

The Slovak Government encourages municipalities as well as the private sector to use public private partnerships (PPPs) as a way of procuring public services. Government support for PPPs is particularly strong in relation to public infrastructure projects.

The Ministry of Finance of the Slovak Republic has initiated, and intends to further initiate, several studies for the application of the PPP procurement procedure under Slovak laws. One of the first and largest pilot projects relates to the D1 highway, which has been supported by the Slovak Government during its realisation phase. Recently, a PPP project for D4 Bratislava ring road valued at €1.7 billion was signed by Ministry of Transport of the Slovak Republic and is due to be built by 2020.

Spain

Spain

Spain has a long and successful tradition of implementing public private partnerships (PPPs), in particular in the form of public works concessions, which are suitable in situations where third party users pay a fee for the use of a public facility (eg toll motorways). To provide a more modern framework, a Public Contracts Act was enacted in 2007 which laid down a definition of PPP and introduced a standard form of PPP contract which provides for service output specifications (inspired by PPP in the UK PPP).

Although a lack of funding is holding back the PPP market, the Spanish government continues to support PPP as a way of spending on infrastructure and stimulating the economy. Regional governments are also active in the PPP market, in particular through Private Finance Initiatives in the healthcare sector.

Sweden

Sweden

Public private partnerships (PPPs) are not very common. They are not promoted nor encouraged by the government at this time.

Thailand

Thailand

Public-private partnerships (PPPs) are a common form of collaboration between the public sector and the private sector in Thailand. The public and private entities will jointly operate a project, for instance, infrastructure, energy or telecommunication projects, in a mutually beneficial collaboration. Public sector entities are sometimes subject to various limitations, such as lack of funds for investment, technical knowledge or the capacity to carry out operations efficiently. A private sector entity may be able to offer greater resources to overcome these limitations, while lacking the capacity to oversee and operate the services that the project offers. The main forms of PPP include, but are not limited to, concessions and joint-ventures. The process of collaboration in PPPs is subject to the Public Private Partnership Act B.E. 2562 (2019).

United Arab Emirates - Abu Dhabi

United Arab Emirates - Abu Dhabi

The Abu Dhabi Government has historically paid private or government contractors to build roads, government offices, schools and hospitals, funded by oil revenues. They would pay to have buildings built, then pay to have them run. As such, PPPs have been uncommon in Abu Dhabi, and generally limited to government procurement programmes for water and power projects.

Following the rise of PPP in Europe and PFI in the UK, the Abu Dhabi Government introduced the PPP model into the domestic market and has since closed numerous PPP deals where the Abu Dhabi Government has provided land and infrastructure and private firms have invested capital. For example, the developments of ICAD, Paris-Sorbonne University, and more recently New York University and Cleveland Clinic on Saadiyat Island.

Law No. 22 of 2015 (the ‘PPP Law’) was introduced in August 2015 and aims to encourage further private sector investment in local development projects, and the Department of Municipal Affairs announced in 2016 that the Abu Dhabi Government is encouraging the use of further PPPs by offering one hundred development projects valuing Dh15 billion to private investors in the next four years. These measures are likely to lead to an increase in the use of PPPs in the future.

United Arab Emirates - Dubai

United Arab Emirates - Dubai

The Dubai Government has historically paid private or government contractors to build roads, government offices, schools and hospitals, funded by oil revenues. They would pay to have buildings built, then in addition pay an operator to run them.

The Dubai Government is now looking to introduce the public-private partnership (PPP) model into the domestic market. The Road and Transport Authority has commenced a PPP project in relation to marine transport in and around Dubai. In addition, the Dubai Electricity and Water Authority has commenced a PPP project in the power sector.

UK - England and Wales UK - England and Wales

UK - England and Wales

PPPs in the UK have to be considered in the context of the historical Private Finance Initiative, or PFI as it was known.

The PFI was born in the early 1990s; government procurement was changed so that it no longer involved simply the construction of a building, but also the design, construction, financing and subsequent operation of the asset – often for terms of between 20 and 30 years. Subsequent governments developed more comprehensive policies which led to the model being used across a range of sectors including healthcare, education, transport, defence and waste.

In 2011, as part of its general spending review, the last UK Government began to streamline the PFI; the new approach being taken is generally referred to as ‘PF2’. The development of PF2 has been extremely slow to get off the ground. Due to the shrinkage in the UK PPP market over recent years, there has not been the steady pipeline of projects that potential bidders may have hoped for. The first projects to be procured under PF2 were new school projects (the ‘Priority School Building Programme’).

PF2 was introduced to address concerns that the PFI did not deliver value for money, was inflexible, lacked transparency, provided excessive gains for private sector equity providers, and took too long to reach financial close. Despite these concerns, it was acknowledged that aspects of the existing PFI approach worked well, such as delivering innovation and offering a reasonable level of risk allocation. Whilst the reforms are significant, many of the existing PFI principles were retained.

In the October 2018 Budget, the government announced that it would no longer be using PF2 for new projects, but would continue to work on improving the value of existing PFI contracts.  It also confirmed that it would continue to support private investment in infrastructure via other established tools, such as Contracts for Difference, the Regulated Asset Base Model and the UK Guarantee Scheme.

UK - Scotland

UK - Scotland

Governments have always paid private contractors to build roads, government offices, schools, hospitals and prisons out of tax revenues. They would pay to have buildings built, then pay to have them run. In 1992, the right of centre Conservative government created the Private Finance Initiative (PFI) which saw government procurement in the UK evolve from delivery of an asset into the long term delivery of a service, ie no longer just the construction of a building, but the design, construction, financing and subsequent operation of the asset – often for terms of 20, 25 or 30 years.

When the left of centre Labour party came to power in 1997, PFI was further developed under the rubric of public-private partnerships (PPPs) and the scheme was continued by the Labour/Liberal Democrat coalition Scottish Executive (now known as the Scottish Government) in the newly‑constituted devolved administration.

The continued use of PFI/PPP as a means of financing capital expenditure infrastructure and construction projects came under review as a result of the Scottish Nationalist Party's election in the 2007 Scottish parliamentary elections. As part of its election manifesto the SNP set out its proposal for the Scottish Futures Trust as an alternative to PPP/PFI. The Scottish Futures Trust has now been established, the primary responsibility of which is to now restricted to increasing the efficiency and effectiveness of infrastructure investment in Scotland.

Non-Profit Distribution (NPD) was developed as an alternative to, and has since superseded, the traditional PFI model in Scotland and is now the preferred method of procuring projects on PPP. In essence, the NPD model limits the internal rate of return (IRR) that the private sector investors in the PPP project can make.

Ukraine

Ukraine

Public-private partnerships (PPPs) are not common in Ukraine. Relations between state/local bodies and developers are usually formalized by other legal instruments (eg investment agreements or joint activity agreements).

In 2010, the Ukrainian Parliament adopted the Law of Ukraine ‘On PublicPrivate Partnerships’ which sets out a list of activities for which PPP structures may be used, the main functions and forms of a PPP etc. However, in practice PPPs are rarely used in Ukraine (this form of collaboration was used in the construction of projects related to the EURO 2012 Football Championship and is currently used in complex infrastructure projects).

However, on 24 May 2016 the Law of Ukraine ‘On Amendments to Certain Laws of Ukraine regarding Lifting of the Regulatory Barriers for Development of Public Private Partnership and Stimulation of Investments in Ukraine’ entered into force. The aforesaid law broadened the list of privileges and guarantees for private partners (eg now the private partners can acquire into their ownership the objects created by them in course of PPP; the objects of PPP can also be in joint ownership of the public and private partners; disputes arising out of agreements on PPP concluded with participation of non-residents can be resolved by an international arbitral tribunal; in case of early termination of an agreement on PPP through fault of the public partner, the public partner is obliged to compensate to the private partner investments, non-reimbursed within the term of such agreement and damages, occurred due to early termination of the agreement on PPP).

United States

United States

Infrastructure projects can be delivered through the traditional design-bid-build delivery system or by other delivery methods more commonly used in the private sector; however, because of funding shortfalls and long-term objectives, methods used for private projects are not always viable or efficient in the public sector. Consequently, the public sector sometimes turns to more innovative approaches for the delivery of infrastructure projects, this often takes the form of public-private partnerships, sometimes referred to as ‘PPP’ or ‘P3s’.

Some of the first canals and commuter rail lines in the United States are examples of the private sector delivering infrastructure projects. Nonetheless, the P3 approach has been slow to catch on in the United States, and the US presents somewhat of an emerging market for public-private partnerships. P3 transactions are difficult to assemble and implement in the United States, even under the most favourable of circumstances. Moreover, P3 transactions are more common for major public improvement projects, which often:

  • are technically complex and involve significant planning
  • are controversial projects that can be de-railed or marginalized without the support of a multitude of stakeholders
  • are subject to a range of legal regimes that may not contemplate procurement on a P3 basis, and
  • place demands on financial markets that are difficult to satisfy and, therefore, tend to require significant financial engineering

In order to encourage the use of P3 transactions in the United States, the federal government has established programs to encourage the use of P3 transactions by making low-cost financing available for such transactions. Some of the more commonly used initiatives are:

  • Private activity bonds (PABs). The US Internal Revenue Code has been amended to permit the issuance of PABs to finance privately developed and operated highway and freight transfer facilities. This allows the private sector to finance the development and operation of such improvements with tax-exempt bonds. In essence, PABs are issued by a public entity, which acts as a conduit issuer for the project company. The project company is deemed the borrower and responsible for repayment.
  • The Transportation Infrastructure Finance and Innovation Act of 1998 (TIFIA) authorizes the US Department of Transportation to provide credit assistance to major transportation investments of national importance. TIFIA credit assistance is flexible, subordinated to senior debt, and may be provided in the form of a direct loan, a loan guaranty, or a line of credit. There are restrictions on the amount of such assistance that can be provided for a project, as well as other qualifying criteria. TIFIA was continued for another five years by passage of the Fixing America’s Surface Transportation Act (FAST) in 2015.
  • The Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) is closely modelled after TIFIA and authorizes federal credit assistance for drinking water, wastewater, and water resources infrastructure projects. The WIFIA program is implemented and maintained by the EPA and the Army Corp of Engineers.

Finally, although a collaborative endeavour with the private sector, a P3 transaction is a public-sector procurement. Therefore, another consideration is that the P3 remains subject to whatever rules govern the public entity in its procurement of improvements. A public entity cannot proceed with a P3 transaction unless the applicable statutory or legal framework allow procurement of a project by such a method. At this time, 33 states in the US, the District of Columbia, and Puerto Rico have enacted some sort of legislation to allow public-private partnerships. While initially limited to toll roads, P3 transactions now include power, water, light rail, airport, and government building projects.

Zimbabwe

Zimbabwe

Public-private partnerships are encouraged by the government and have been identified as the key driver to infrastructural development in the governments various work programmes. The recently enacted Joint Ventures Act [Chapter 22:22] (JV Act) has provided a structure to regulate the growing concept of public-private partnerships in Zimbabwe.

The legislation has now aligned Zimbabwe to the regional trends of the African continent where regulation of Public-private partnerships has already been implemented. In its essence, the JV Act regulates the agreements between public entities and the private sector in so far as it relates to the ‘design, construction, development, operation or delivery of a new infrastructure, asset, facility or service or the rehabilitation, modernization, expansion, operation, delivery or management of an existing infrastructure, asset, facility or service.’

The JV Act clearly defines the types of projects that would be regulated by it, namely: Build and Transfer (BOT), Build, Lease and Transfer (BLT), Build, Operate and Transfer (BOT), Build, Own and Operate (BOO), Build, Own Operate and Transfer (BOOT), Build, Transfer and Operate (BTO), Contract, Add and Operate (CAO), Develop, Operate and Transfer (DOT), Rehabilitate, Own and Transfer (ROT), Rehabilitate, Own and Operate (ROO), Build, Own, Operate and Maintain, Lease Management Contract, Management Contract, Service Contract, Contract for Services, Supply, Operate and Transfer.

In terms of the JV Act, a public entity intending on entering a Joint Venture needs to comply with the following steps:

  1. Contracting authority identifies and develops a project to be implemented.
  2. Public advertisement to invite expression of interest in the project (not necessary if a counterparty is already identified ie unsolicited proposal).
  3. Undertaking of a Feasibility study which is then submitted to the Unit for approval.
  4. If approved, the JV Unit prepares a request for the project proposal and a model agreement.
  5. Proposal referred to the Cabinet with recommendations from the JV Unit.

Cabinet approves or rejects the proposal, fully or provisionally.