PPP Contract Negotiation and Legal Agreements

Introduction

PPP Contract Negotiation, Strategy & Legal Agreements is designed to provide you with a practical understanding of how to design, develop, implement and monitor successful PPP contracts and legal agreements. This interactive five-day programme will clarify the key parameters that make for robust PPP agreements, starting from key principles in their design and implementation all the way to the practical aspects of the contractual and legal implications of PPPs. After reviewing the basic factors for considering Private Participation in developing infrastructure, you will learn how to best plan the process of introducing private expertise and finance into public procurements. Recognising that many PPPs are used to provide public services, the course will delve into the importance of involving different stakeholders in the design of the arrangement, the appropriate allocation of risks and responsibilities between the parties, and how that is represented within a contractual arrangement. We will also look at the fiscal impact of PPPs and the need for governments to sufficiently manage direct and contingent liabilities related to such agreements. By the end of the course, you will have learned specific and practical techniques to successfully draft and implement a PPP agreement based on international best practice. Course Objectives Provide an introduction to and context for developing infrastructure financing solutions by using PPPs Describe the process of developing a project from the concept stage to implementation and contract supervision Present a set of tools and techniques that can be used as a basis for sound and rigorous evaluation, decision making, monitoring and control of PPPs Understand the main principles and techniques for robust PPP contract design Provide a basic primer of commercial terms and their implications in different legal environments where PPPs take place Link risk assessment to contract clauses by understanding the critical business aspects that are to be enshrined in a contract Given the fact that PPPs have the added challenge of being a long term arrangement, developing the practical insights and techniques to effectively introduce clauses that allow modifications and changes to the original terms of the contract without jeopardizing the overall business relationship becomes absolutely essential. Methodology This course combines theoretical presentations with relevant case studies and interactive group discussions. It strikes a careful balance between qualitative and qualitative metrics, using case studies to illustrate core concepts or address counter-positions (i.e. the public and private perspectives when undertaking a PPP project). Role-playing will also be used to showcase policy issues and their applicability with financial and bankability issues common in PPP design, implementation and monitoring. Who should attend? Government officials, ministries and public sector agencies Investment planning commissions Project developers, sponsors and consultants Senior investment and credit analysts Commercial, Business Development, Bid and Acquisitions Managers Lawyers and legal counsels Project financiers Credit, Risk and Investment officers Chief Financial Officers and Controllers Infrastructure and structured finance specialists DAY 1 Overview & Introduction to PPP (definition, reason for using, championing). Definitions of PPPs History of PPP’s Reasons for choosing PPP Criticism of PPP Models Types of PPP Models Alternatives to PPP Role of Advisers in PPP and Different Legal Systems Structure of PPP deals and PPP Models – Key Differences & Impact Key problems faced by the sector and ways private participation can address the problems? Key areas of responsibility Appointing government advisers, writing and communicating Government Investment plans, and state planning decisions Introduction to Risk Procurement – Tendering, Evaluating and Awarding PPP Contracts Overview of the law and regulation applying to procuring PPPs – what is “public procurement law” (PPA 2007) and why do states have it? Overview of treatment of “unsolicited bids” Characteristics of a typical PPP procurement process – do and don’t for public bodies and bidders Drill down on typical ways in which proposals are evaluated and scored. Exercise / Q&A DAY 2 PPP Risk identification, mitigation and allocation• Overview of key risks Value for Money and Risk Risk appraisal, identification ‘Bankability’ and the need for contractual security Risk under PPP Contract, introduction to key contractual clauses (see below for “deep dive”) “Proper” allocation Use of the Risk Matrix Exercise / Q&A Negotiation of PPP Document Introduction to PPP terms and conditions Designing a PPP Contract Acting for public bodies or private sector – different perspectives? Technique of negotiation: clear understanding of documents; know your position Fair resumption of risk allocation? Negotiation positions Exercise / Q&A PPP – Post Negotiation - Financial Close and beyond Process to Financial Close Fiscal Issues of PPP for public sector to consider Contract management, monitoring & evaluation Start of the Beginning – contract management Monitoring team - private sector or public sector Exercise / Q&A DAY 3 PPP Laws, PPP Contracts & Dispute Resolution – “Deep Dive” • The importance of performance requirements Demand risk and the payment mechanism Service commencement and delays Early works agreements and interim services Control, monitoring and replacement of sub-contractors The role of insurance How to deal with variations Refinancing Confidentiality, commercially sensitive information and freedom of information Handover and surveys on expiration Different types of adjustment mechanisms The role of Compensation Events, Relief Events and Force Majeure How to deal with regulatory risk and changes in law The structure of a good dispute resolution process Different types of default What happens before, at and immediately after termination Calculation of compensation on termination payments Exercise / Q&A Financing/Financing Documents in PPP – Introduction Financing vs. Funding Key differences between Project Finance and General Finance Project Documents vs. Finance Documents Bankability Considerations PPP Structures – jargon busting Forms of Financing Documents Senior Financing Documents –scope and content Reps/warranties Covenants Events of Default Conditions Precedent Security Documents Equity Documents Direct Agreements

Course Content