Public-Private Partnerships (“P3”) depend upon a long-term collaborative relationship between a public agency and a private firm. They often require some rethinking of the governmental agency’s essential functions. Agencies that succeeded with P3s needed a business mindset, a clear vision about what they wanted to achieve and why they wanted to use a P3. Additionally, they have made an honest assessment of what is needed to accomplish those goals in a manner that provided a “best value” for their ratepayers. Agencies pursuing a P3 tend to be learning organizations, committed to change and understanding the value of experience.
Identifying and developing a “good P3” typically involves a series of progressively more detailed and resource-intensive tiers of analysis and planning. With each tier, the definition and goal for what constitutes a “good P3” evolves, so owners should advance to subsequent tiers only if project intentions and goals continue to be met.
Figure 1 – Progressive, detailed tiers of pre-proposal screening, planning and analysis
Most states have procurement laws and regulations that control what project delivery methods are legal in that state. Additionally, they may require public agencies to take certain specific steps prior to a procurement or during the procurement. Public owners need to know what they can and cannot do regarding private sector communications before and during a P3 procurement. Additionally, P3s may need to comply with IRS Safe Haven rules and laws for investment bankers, banks, equity investors, bond issuers, public disclosure, confidentiality, etc., etc. Many states have regulations on communications with possible bidders during different phases of procurement. Owners are encouraged to check with their state or local contracting offices. For additional details See Toolkit Topic 4 – Legal.
Any well-managed project requires defining the scope and associated performance requirements and measures and contract terms and conditions to manage project risks. This is all the more true for a P3 where the contractual relationships will be long term.
Up-front costs should be weighed in light of the life cycle savings analysis and the overall value to be received during the procurement process and asset delivering the value. It might even be able to finance these P3 planning costs through the project delivery process by requiring the private sector contractor reimbursing these costs.
These questions should be answered to define the project:
- What should the P3 partner design, build, do, finance? – This addresses Scope.
- Over what period of time? Schedule.
- Benchmark that schedule. Is it typical for similar P3s?
- What are the key performance metrics?
- Performance, sustainability, reliability
- O&M costs
- What are the project’s inputs (e.g., raw water quality, wastewater influent loadings, flow, power, chemicals, etc.)
- What are the project’s outputs (e.g., finished water quality, permitted effluent Limits, flow, energy, reuse water, district heat, biosolids, etc.)
Determine anticipated risk management, identifying project key risks and considering their:
- Strategy to mitigate. Desired risk transfer.
A main feature of P3 is that the public agency is able to significantly transfer the project risks to the P3 partner. This in essence is the basis of the Value for Money (VfM) proposition; that having a private counterparty assume a project risk has an actual tangible value.
Preliminary Capex or Life-cycle cost estimate.
- Engineer/design criteria profession – Expertise in Performance Contracting.
- Financial – Experience in project finance, modeling, financial risk mitigation and commercial terms
- Legal – Expertise in P3 commercial terms and risk mitigation
- Assess agency’s competencies, attributes and staffing in meeting the needs.
- Determine available internal resources and skills within the agency that can be drawn upon.
- Determine existing agreements and contracts with advisors.
- Based on a resource gap analysis, determine needed external resources.
Agencies planning a P3 should use quality advisors. Engaging specialized procurement, technical, legal, financial, insurance, public relations, and communications advisors particularly early on and throughout the entire P3 process to provide guidance and to supplement the in-house expertise is suggested. Advisors should have relevant experience in the delivery of comparable projects and contractual structure to maximize the delivery method’s utility and cost-effectiveness to effectively guide the agency in the process.
Develop a method of management and stakeholder input and engagement through the Project.
Conduct project assessment, identifying P3 delivery method options
- Identify the agency project manager & “team” that will manage and carry through the PPP process. It is not unusual that the project manager & some team members may be external.
- Team membership to be considered:
- P3 “Champion”
- Management Team/Board
- Independent peer review
- Project Manager
- Procurement Advisor – Expertise in Making P3s effective, developing solicitations and solving client issues. This can be internal or external.
Get Key stakeholders on-board for delivery method evaluation for the project.
- Recognized public figures should serve as the agency’s spokespersons and advocates for the project and the use of a PPP.
- Well-informed champions can play a critical role in minimizing misperceptions about the value to the public of an effectively developed PPP.
- Develop P3 Project Goals.
- Develop the Project’s Definition.
- Determine the Project’s Revenue Stream and Cost.
When the Project Definition is completed, conduct a feasibility or screening assessment in consideration of the project’s size, complexity and potential cost to determine private sector’s capacity, the potential for competition and the market precedence for similar projects.
Use the project description with the project’s components, estimated construction and life cycle costs, timeline for development, proposed financing plan, including projected revenues (public or private, debt and equity investments), context of project related to existing capital strategic plans, permits and process approvals necessary (local, county, state and Federal permits and environmental reviews), and statement of risks, liabilities and responsibilities that could be allocated to assumed by the private sector partner and or those which must be retained by the responsible public agency. If the project is suitable for P3, build the understanding of P3 opportunities and issues with the executive team, governing board or council members.
Develop tools for the assessment and evaluation and comparison of proposed projects costs and benefits (public sector cost comparison, business case analysis, comparison of financial and non-financial benefits, alternatives analysis (value for money), and summary of benefits to taxpayers, rate payers or other users of the proposed infrastructure asset
- Make a determination of the “best value” project delivery method.
- Conduct project assessment & selection of the preferred P3 delivery method.
- Bring and keep stakeholders beyond the champion and direct participants on-board.
- Plan to communicate the initiative with affected employees, the portions of the public receiving the service, the press, appropriate labor unions and relevant interest groups. They will all have opinions and may have misconceptions about a partnership and its value to all the public.
- Project success depends on understanding and engaging those entities, individuals and organizations that have an interest in the community or are touched by the project. Therefore, spending time up front to determine who your stakeholders are is an important step in planning for project success.
- Identify the stakeholders
- Identify what they are likely to be focused on.
- Identify accommodations that can be addressed without jeopardizing project goals.
- Communication is one of the most critical things for a project to be successful. This is especially so for a P3 project given the fact that it might be delivering in a way that is unique or different from that to which the organization or the jurisdiction is accustomed. It is not enough to just follow the kind of processes required in the traditional project delivery process as far as stakeholder outreach and engagement. It is important to sit down and analyze. Initially during the high-level screening start with asking who are the internal agency stakeholders? Determine who within the agency and organization will be key to making a P3 a decision and also ask who else outside of the agency? Determine if it is the mayor’s office, the governor’s office or other elected officials that will be essential to the decision process at various points throughout the procurement process.
- It is important to understand what their motivations will be and how interactions will occur through the process as well as communicate and educate to bring people on board.
- It will be necessary during the preliminary procurement planning to have a plan also identifying external stakeholders. These are not necessarily just the potential proposers or in the private sector people who may pursue the project. It goes beyond how other stakeholders potentially may be impacted. The process must include understanding the motivations of potential supporters, critics, and really going through a thoughtful process before you even begin the procurement. It is also important to develop processes and communication procedures to ensure communicating the results as the project proceeds, sharing the successes. The communications process doesn’t just start and end during procurement or pre procurement. Stakeholder engagement is an important element throughout the whole life cycle of the project.
QUESTIONS TO ASK YOURSELF…
Who will be impacted by this project?
What is important to them?
- As a subset to thorough and broad communication, plan industry outreach (Request for Information, market sounding, one-on-one meetings)
What methods of industry outreach will be needed?
Building vendor interest in a P3 project is necessary for the project to be a commercial success. While trying to build industry interest in a project, the public owner has many options for outreach and communication. The traditional route might take the public agency down a path of a Market Sounding, an issuance of a Request for Information (RFI), Industry days, one-on-one meetings, and stakeholder focus group, or charrettes. More current day options also include social media outreach and direct communication at national P3 focused events.
RFIs are issued early and often prior to beginning a formal procurement, to solicit industry interest in a project, create vendor contacts, promote the market’s understanding of the project’s components and features, and to communicate to some degree, the desired risk profile of the deal. Often, an RFI may solicit feedback on the project’s features, terms and conditions, or market alternatives not being considered. RFIs can be used to Identify potential PPP partners, to solicit suggestions concerning potential project definition and on refinement of commercial concepts / approaches.
Once the Agency makes a preliminary decision to use P3 Project delivery, conduct an Industry Day or Market Sounding.
It is desirable to get reliable industry feedback on high-level features and attributes of a P3 project and the procurement process as early as possible. Where allowed, agencies can conduct a Market Sounding or hold an Industry Day and potentially provide a preliminary project description, term sheet, risk matrix, or summary of key deal points prior to commencement of a procurement. This sort of insight will save time and money once the procurement process begins. It can be important to separate project specific items from P3 or industry specific ones.
The key initial considerations for the industry market sounding will be: “Is this project real?”; “Is it worth it?”; “Can we win?”.
Project size and scope
Does the size of the project warrant and support private investment? Is the scope of the project realistic and the risk allocation reasonable for the industry? Private project financing closing costs are substantial; some financing participants in the market have a minimum dollar threshold for participating in P3. Is there an identified and reliable revenue stream for the entirety of the project term?
Urgency or priority of the project for the community and government
How important is this project to the agency’s success? Is it in the CIP and well considered? What is the impact on the community if it is built and operational, or not? In addition to a demand for the project, is there strong opposition? What are the realistic alternatives?
Complexity of the project
How complex is the project compared to other similar projects? How complex is the project compared to other projects undertaken by the procuring government? Is there an opportunity for private sector innovation?
Anticipated project duration or term
Is there a “standard” term (time period) for similar projects? Is there comfort for the public for a project term? Is there a comfort level for the private sector for a project term in relation to financing or operations and maintenance including the replacement of major equipment especially special equipment before handback.
Detail the potential project.
Additionally and only if allowed by law, provide a preliminary project description, term sheet, risk matrix and/or summary of key deal points.
Market Sounding preparation should focus on addressing the above considerations. Seek the markets thoughts, input, and concerns as part of the interaction. Don’t go into Market Sounding until the project and schedule are as firm as possible – know what is being asked! Private firms to start spending significant money to pursue a P3 project.
Industry reviews and input are critical during the early stages of any project, but even more so for a P3. This input is essential to ensure a project that captures the interest of proposers is viable. Otherwise, once could be 6 months down the road before you figure out nobody can or will propose on the project.
Technical and Financial Analysis & Developing the P3 Solicitation.
Refining the “Project” definition, creating the Competitive Model and Allocating Risks.
- After having made a decision to proceed with a P3 project delivery, it is necessary to refine the project scope, and associated performance requirements and measures, establish the competitive model for the procurement and begin to assess risks and develop a contract that fairly allocates risk. The figure below suggests elements for consideration when refining the project:
- Develop as detailed a description and/or picture of the project utilizing the work done in “Project Description” of the planning process discussed above with project details and cost information to the extent possible. To refine the scope requires a technical analysis that focuses on the next most important level of details that will define the P3 project. The owner will need to answer questions such as:
- What requirements does the public owner want to enforce? (Performance, footprint, capacity, functionality, community integration, equipment, turnover condition, etc.)
- What requirements can the public owner delegate to the private partner? (treatment technologies, size of individual units, layout, finishes, etc.)
- It is generally best to use a two-step (qualifications-based) procurement. It cannot be stressed more; selecting the correct private partner is the most important factor in a P3 project’s success. Consequently, a frequently used procurement for a P3 involves a Requests for Qualification (RFQ) first, followed by a Request for Proposal (RFP).
- A candidate’s past performance, relevant experience in P3s is an important factor in identifying the right partner.
- Additionally, the financial capacity of the private partner is also a factor.
- An RFQ identifies the project by using the Project Definition developed and requests teams to submit their qualifications (team members, relevant experience, financial strength). Typically, thereafter the sponsoring agency will use the RFQ submittal to select 3-4 Pre-Qualified teams to continue in the P3 solicitation who will receive the RFP.
- An RFP typically has a more detailed Project Definition, may include a conceptual design, and has clear performance requirements. The RFP typically has very clear information requests, an Identification of the process and criteria or factors for proposal selection and a pricing submittal format. Often, as risks cannot be completely priced in the absence of commercial terms and conditions a draft contract is provided. Generally, there is a some form of engagement process defined where the sponsor agency and the proposing teams can submit questions and receive answers. Allowing the teams to provide feedback on RFP documents frequently provides input that saves them time and uncertainty, and which saves the sponsoring agency money. Often this process involves One-on-one or In-confidence meetings between the sponsoring agency and its advisors and the proposal team and its advisors. The objective of the engagement process is all parties are as clear as possible on what asset is needed and how the risks are to be managed.
Most P3s are based upon a Best Value team selection. A “Best value” is not necessarily the lowest price, although it may be. More importantly, it values the technical and commercial solutions offered and the long-term relationship that is central to a successful partnership.
Ask questions within the agency leadership or of self:
- Is the timeline commercially sound?
- Are the performance characteristics for the project sound?
- What are the historic performance levels for such projects?
- What are the desired performance characteristics for this project? What does success look like?
- Who benefits?
- How much support?
- What is the value to the public?
- Is it affordable? Do the numbers make sense?
- What stakeholders may find this approach objectionable and have answers been prepared for their likely objections?
- Identify known or anticipated risks associated with prospective performance objectives