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HIGHWAY PPP’S, WHY AND HOW

Enrique Fuentes, Development Director Ferrovialand Member of the Board of European International Contractors

Seminar on legal, economic & implementation issues on PPP’sMinistry of Economy, Poland, and World Bank

Warsaw, April 2007

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Warsaw, 18 June 2008 22

About EIC – PPP experience

• European international contractors take a leading role in developing the world’s TRANSPORT infrastructure, such as toll roads, tunnels, railroads, ports and airports.

• The 15 of the Top 35 Transportation Developers 2006, which are associated to EIC, have implemented 269 PPP projects since the year 1985, whilst in 2006 they had 228 projects under active proposal.

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With an aggregated international turnover in 2006 of almost 112 billion €, European international contractors are the most important players in the international construction business.

About EIC: Statistics

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WHO WE ARE: FERROVIAL

MKT Cap US$ 8 bn

MKT Cap US$ 7 bn

100% 100%62% 62%

• Heathrow

• Gatwick

• Stansted

• Glasgow

• Edimburgh

• Southampton

• Others

• London underground

• World largest handling

• Poland (59%)

• Texas

• Spain

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WHO WE ARE: CINTRA

Canada407 ETR

USAChicago Skyway Indiana Toll Road

Segments 5&6 SH130

Chile Collipulli – Temuco

Santiago – TalcaTemuco – Rio Bueno

Talca – ChillanAutopista del Bosque

PortugalE. AlgarveNorte Litoral

Scut Açores (*)

IrelandEurolink MotorwayM-3

Spain Ausol IM-203R-4M45Ocaña-La RodaAutemaAusol II

GreeceIonian Roads

Central Greece

7 Bn€ market cap

22(*) concessions

More than 2,500(*) Km of toll roads

65% of the value in North America

Present in 7(*) countries

73(**) years average concession life

( *) Including the Scut Açores stake via Ferrovial Infraestructuras. There are also three projects pending final award: Mantua-Cremona (Italy), Central Greece (Greece) and SH-121 (USA)

(**) Based on internal valuation released to the market in December 2006

(***) Projects pending final award.

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PPP FORMULAS: RISK TRANSFER

• Risks transferred to concessionaire under different PPP formulas– After Eurostat ruling 11/2004, all of them are “off balance sheet” for

Governments– … but key criteria should be who pays for the infrastructure

Formula Demand risk O&M risk Construction Land Acquisition

Financing

Classic Concession

User paid toll

Yes

mitigation possible if

risk too high (ie: new

mkts or no toll culture)

Yes

Yes

Depends on country.

Normally no except Spain and, partially,

Portugal

Yes

mitigation in emerging markets)

Shadow tolls Partial

Availability schemes

No Yes

Affects not only costs

but revenues

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WHY PPP’S: SERVICE (CUSTOMER RATHER THAN USER)

• Incentives in a PPP are fully focused on providing a public service in the most possible efficient way, especially if traffic risk (and upside) is transferred

– Toronto’s 407: • Better and proactive winter maintenance in Toronto’s 407 increases

capture rate in bad weather periods• Capacity is increased well ahead of contract obligations in Toronto’s

407, improving driving conditions and attracting more customers– Chicago Skyway:

• Electronic tolling implemented in six months (after 30 years of city ownerhip)

• Queues reduced from hours to minutes– Madrid – Levante Highway (Spain) incentives:

• 4 year extension in the original concession term depending of its performance in certain criteria: capture rate of heavy traffic, accident rate, congestion levels, and traffic flow, queues at toll plazas, pavement surface conditions

• Awarding criteria linked to discounts offered to customers

… BUT THIS ONLY WORKS IF THE PRIVATE DEVELOPER HAS MONEY INVESTED AND RISK AND UPSIDE TRANSFERRED

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WHY PPP’S: EFFICIENCY & INNOVATION

• Deliver the most efficient infrastructure that serves public needs

– Construction focus on value engineering and early delivery• Stop to cost and delay overruns

– Focus on Life Cycle costs, rather than initial construction costs• Optimisation of opex / capex balance• Management of ongoing capex

– Development of new technologies for better service / enhanced revenue• Free-flow tolling• Congestion / accident detection systems• Toll plaza queues: Toll Flow technology• Automatic anti - icing

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WHY PPP’S: DELIVERABILITY

• Boosting economic development, relieving congestion, and reducing greenhouse emissions

– Spanish highways in the 60’s and 70’s– Chilean highways in the 90’s– Portuguese highways– Irish highway programme

• De- bottlenecking the system and providing mobility in congested areas– 407ETR highway in Toronto was developed 20 years ahead of the expected

horizon for public funding development thanks to the involvement of private developers

• Providing crucial future infrastructure for the long term development– Trans Texas Corridor

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WHY PPP’S: RATIONALITY OF DECISION MAKING AND RESOURCE ALLOCATION

• Private involvement in the development of transport infrastructure brings discipline and rationality to the political decision process

– PPP projects solving actual, critical traffic problems are the most financially feasible

• Private funding used in projects capable of generating predictable revenue government funding focused on pure development projects

– Natural tendency to invest where investment is more needed

• Contract with a 3rd party allows to avoid political review of tariff setting– Where Government retains control of tariffs, they seldom end up reflecting

real cost of service: US turnpikes

• Ensures accountable development of infrastructure, not subject to budgetary constraints

– Ongoing maintenance and future capex

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WHY PPP’S: COMPARISON WITH TELECOMS

CautiousEntrepreneurialResponse to new technology

When appropriations permitRisk of decline in asset valueIncentive for maintenance

Discourage useRaise price, add capacityResponse to congestion

Virtually non-existentDemand-basedPricing

Political processReturn on investmentInvestment criteria

User taxesUser chargesRevenues

Public sectorPrivate sector investorsOwnership

Interconnected network multiple providers

Interconnected network, multiple providers

Structure

Highway SystemTelecom System

CautiousEntrepreneurialResponse to new technology

When appropriations permitRisk of decline in asset valueIncentive for maintenance

Discourage useRaise price, add capacityResponse to congestion

Virtually non-existentDemand-basedPricing

Political processReturn on investmentInvestment criteria

User taxesUser chargesRevenues

Public sectorPrivate sector investorsOwnership

Interconnected network multiple providers

Interconnected network, multiple providers

Structure

Highway SystemTelecom System

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PPP FORMULAS: BIDDING SCHEMES

HighAverageAverageObjectiveness of awarding

criteria

Average

€1m to €3m

Reduced

€ thousands

High

€ millionsBidding costs

Reduced

4 to 6 months

Reduced

6 to 8 months

High

2 to 4 yearsBid process length

Some InexistentExtensiveRoom for negotiation of

contract framework

Recommended Not requiredMandatoryRequirement of secured

financing

Yes

Standard UK approach

NoNoInterim delivery of engineering work

North American auction

Express tender

Spain, Chile

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PPP FORMULAS: WHERE

Classic concession

Shadow tolls

Availabilityschemes

PFI Auction Tender

Ireland

Greece

Finland

Holland

France

Italy

Canada(privatizations)

Canada(Quebec)

Spain(Regions)

Spain(Central Govt)

Spain(ENA)

Spain(O&M)

USA

Portugal

Germany

GBR

GBR(new?)

Risk transfer

Biddingscheme

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PPP FORMULAS: CONCLUSIONS

• Governments with more PPP experience moving towards user paid schemes + demand risk transfer and towards simpler bidding schemes

• Governments with less experience moving the opposite way: availability and PFI bidding schemes

– Drivers: • Risk & cost reduction as long as it is “off balance sheet”• Ensure acceptability of the contractual framework

– Beware: experience and government structure are key for the dialogue process being efficient and objective (not every Government or legal system is like the UK)

• A balance should exist between the formulas

• The key should be– Risk transfer: efficiency brought in by the Private sector rather than

Government budget constraints– Bidding scheme: if there is no track record, efficiency (cost) and

comparability of the offers, rather than extensive negotiation

…. BUT, WHATEVER YOU DO, DO IT NOW!, INFRASTRUCTURE IS NEEDED

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PPP FORMULAS: LIKELY EVOLUTION

• Short / Medium term– Surge of PFI schemes for “off balance sheet” reasons– Minimum risk transfer & minimum cost– Limitation of concessionaire upside– Initially developed by contractors, later sale to financial investors

• PFI main limitation: government future payment commitments– Budgetary constraint: today is accounting, tomorrow will be financial

• Key risk transfer trade off in the long term: efficiency vs cost

• Long Term– Classic user paid concessions for low – medium risk projects

• Funds raised or saved are then devoted to higher risk projects– Possible transformation of PFI’s in user paid schemes– Driver for PFI’s: efficiency of private sector

• Likely bias towards projects with a significant recurrent cost component

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HOW TO ATTRACT INVESTORS: BALANCED DEAL?

• How can an Administration attract investors?– Long term deal … goes through different legislation sessions, politicians,

economical and social environments, economic cycles.– All equity and debt are invested upfront and are unmovable. Assets belong to

the State. Private sector is left there to rely on a piece of paper … relies on its enforceability.

– Private sector control on the investment is very limited. Service can not be interrupted, toll setting mechanism is stipulated, most service levels are fixed.

– Penalty for default is normally the loss of the investment for the shareholders and all or most of the debt for the lenders.

– Odds are that future legislators will support the Admin side rather than the private views.

• Can an Administration behave and promise to behave as an equal partner in a (very) long term Agreement?

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HOW TO ATTRACT INVESTORS: ADEQUATE & STABLE LEGISLATION

• Adequate legislation: not only for the concession in itself, but also for ancillary (but key) agreements– Financing: no limits to foreign lending or to step in rights for lenders– Land acquisition: has to be predictable in cost & time + adequate title to land– Ownership of the asset / contract: no limits to nationality or nature

• Types of legislative changes with effects that should be protected or compensated– discriminatory legislation– Tax legislation that alters the financial balance– legislation that affects an essential right in the Agreement

• Compensation should be calculated based on effective damage (loss of future value)– Compensation based on forecasts– Present value – Possibility: Independent calculation

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HOW TO ATTRACT INVESTORS: COMPETING INFRASTRUCTURE

• Admin should be able to implement virtually anything … but must compensate for certain damages

• Fair and balanced provisions relating to competing facilities: the private sector assumes a reasonable and defined amount of risk, but it is not unfairly burdened by an unanticipated source of competition

• Examples of competing facilities that would not generate compensation:– Those specifically planned in the concession date– Improvements in nearby facilities due to reaching certain congestion levels– New or improved facilities that do not cause material negative impact to

Developer

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HOW TO ATRACT INVESTORS: ROAD STANDARDS

• Safety and design– Specify clear design rules and standards … and let private sector to optimize– Developer must adhere to future safety specs … but in a fair and non

discriminatory manner– Substantial changes that affect the nature of the asset should be

negotiated

• Policing and rules … as in any other similar road.– Signs, lights, speed, Traffic Code– Patrolling, fines, surveillance– Traffic Management

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HOW TO ATTRACT INVESTORS: ELECTRONIC TOLLS

• Need for State authority to define and enforce interoperability rules– For State Agencies and Private Operators– Recognize different agents: issuers and operators– Technical standards for transponder issuers– Technical standards for road operators– Basic interoperability rules (interfaces, transponder lists …)– Enforceability and costs

• It is invented … but seldom applied

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HOW TO ATTRACT INVESTORS: ENFORCEABILITY

• Of the Agreement:– Are both parties subject to the Law and the Courts? (Sovereign Immunity?)– Appropriations to pay compensations– Independent dispute resolution method + third party valuation– Recourse to Justice by any party

– Effectiveness of decision– Independent justice system (local or foreign)

• Of the tolls:– Legal standing of the Concessionaire– Access to data (plate owner, address …)– Enforceability within state or region

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HOW TO ATTRACT INVESTORS: TOLL RATES

• Method to be established at time of agreement– Negotiated approach works were concessionaire is public or semi public

(France, Italy), or were there is a long track record (UK)

• Objective method … must not be subject to legislative or administrative decisions

• May consider CPI or per capita GDP to keep up with long term cost of goods

• Can be related to congestion levels

• Many possible parameters can help achieve transportation objectives:– Peak hour tolls, night time rates, congestion tolls– Truck / car differentials– Premiums / deterrents to specific customers: high occupancy, extra heavy,

local residents (but beware of fraud!)– If tolls want to be kept low, it can be specified in the agreement upfront

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HOW TO ATTRACT INVESTORS: TERMINATION

• Termination for Default:– Administration Default: must compensate the investors, ensure payments, get

control when paid.– Developers’ Default: first right of lenders to cure, then step-in of

Administration.

• Termination for convenience (of the Admin):– Investors should be compensated as per Termination for Administration’s

Default– Formula to calculate compensation must be fixed in Contract. Should

compensate for loss of value. Third party valuation under fixed set of rules– Beware of situations where it limits upside without covering downside

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HOW TO ATTRACT INVESTORS: DO’S AND DON’T’S

• Main decisions taken and in force by the time of the tender and politically supported– Be aware of political timing: concessions and even tenders can outdate election

periods

• Be aware of hurdles in your legislation … is it ready for the deal?– If not, implement the necessary changes beforehand

• Understand cost for the taxpayer of each condition you feel you have to ask for

• Be as flexible as your environment allows to hear proposed “improvements” from prospective bidders

• Avoid subjective decisions … will scare competition and certainly devaluate the deal– In lack of proven track record, extra care on legislative / enforcement framework

• Get ready ahead of time and have a dedicated team– Feasible projects take time to develop before they can be tendered

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EIC White Book on BOT/PPP: Recommendations

• 1 GENERAL PRECONDITIONS

– Ensure true Government Support

– Create a PPP Task Force

– Enhance Country Legal Framework(Accounting, Taxes, Procurement)

• 2 PROJECT PREPARATION

– Put in place sound procurement strategy

– Present comprehensive, reliable project documentation

– Provide for a steady and secure payment mechanism

– Agree on affordable level of tariffs

• 3 TENDER PROCESS

– Use Pre-qualification of bidders

– Ensure Transparency & Confidentiality throughout process

– Present clear award criteria

– Reimburse Bidding Costs

– Unsolicited Bids ??? (outside EU )

• 4 RISK MITIGATION

– Provide for optimal risk identification &

allocation

– Invite financial risk mitigation through

IFIs, ECAs, etc.