REGULATORY LEGAL AND CONTRACTUAL ASPECTS OF PPP IN WATER AJAY RAGHAVAN Counsel Training Workshop, Bhopal, February 2009

THE IMPORTANCE OF CONTRACTS

THE NEED FOR A CONTRACT WHY CONTRACT: The legal relationship between the government and the private party sets out the rights and obligations In the absence of a detailed document, breach and achievement of the targets cannot be quantified DETAILED OR SIMPLE? The more detailed the greater thought is given to eventualities Simple drafting is unlikely to be mutually contradictory

THE CONTRACTING PROCESS HELPS CLARIFY: Objectives and Expectations Risks and Liabilities Dependencies and Consequences ESTABLISHES: The basis for the contractual relationship The reward and remuneration regime The principles and remedies for termination

KEY CLAUSES OF A PPP CONTRACT

TERMS OF ENGAGEMENT APPOINTMENT: Necessary in order to formally hand over the public service to the private party Where the private party has bid in consortium this clause will establish the prime Sets out the date of coming into effect of the PPP PRE-CONDITIONS: The statutory basis for the PPP must be sound – necessary amendments must be made if required

OBLIGATIONS OF THE CONTRACTOR: Exhaustively details the service obligations of the contractor through multiple phases of the PPP Sets out the baseline service obligations and the performance targets for improvements OF THE GOVERNMENT: Actions required to provide inputs necessary for the successful performance of the Services In relation to all the dependencies

CONTRACTOR’S RIGHTS SERVICE RIGHTS: Details the rights that the Contractor needs in order to perform the Services Sets out the exclusions to the absolute rights that may be handed over DEPENDENCY RIGHTS: Sets out the rights that the Contractor has to the dependencies

OPERATIONAL DETAILS SERVICE DETAILS: Details the operational obligations of the Contractor in relation to the Services Planning the year – implementation and budgeting REVENUE DETAILS: Details in relation to the collection and handling of revenues

PROCUREMENT PROCESS: Set out the process for procurement of assets Ensure that the procurement process conforms to the statutory restrictions on government procurement TRANSFER OF TITLE: Details in relation to the time and manner of the transfer of title over procured assets Establish right over procured assets during the term of the PPP contract

EMPLOYEES CONTROL: Details the supervision and control over government employees inherited as part of the PPP Establishes who has the power of hire and fire over employees CONTRACTOR EMPLOYEES: Details separate rights and obligations in respect of Contractor employees

SUB-CONTRACTS HIRING AND CONTROL: Details of the extent to which the Contractor can utilise sub-contractors Must conform to Government policies on the hiring of sub-contractors to perform the Services. LIABILITY: Details of the extent of Contractor liability for actions of sub-contractors

INSURANCE ASSETS: Details as to how the assets will be insured and who will bear responsibility for insurance PEOPLE: Extending the insurance to employees and third party injury COMPLIANCE Affixing liability for failure to comply or maintain insurance

TERMINATION DETAILS: List the reasons for termination – different for the Government and the Contractor Dealing with disputes in relation to termination CONSEQUENCES: Setting out the monetary consequences of termination. Deal with the termination of ancillary agreements and sub-contractor arrangements Dealing with Hand-Back

LIABILITY AND INDEMNITY LIABILITY: Setting out the extent of liability including limitation and caps on total liability Dealing with indirect, consequential liability INDEMNITY: For the consequences of damage resulting to the government from Contractor actions. Special indemnities – such as for intellectual property

FORCE MAJEURE DEFINITION: Establish a narrow definition for force majeure – ensure that Contractor’s obligations are not diluted List the force majeure events rather than describing it CONSEQUENCES: Stipulate the obligation to mitigate force majeure. Require immediate notification of the existence of the force majeure Extension of time to perform

DISPUTE RESOLUTION DEALING WITH DISPUTES: Establish what constitutes a dispute Escalate through a defined process to attempt mediated settlement Move to arbitration if all else fails PERFORMANCE DURING DISPUTE: Deal with performance during the existence of a dispute.

DEPENDENCIES DETAIL: List exhaustively the dependencies upon which the contractor’s performance depend Identify whose responsibility it is to procure the dependencies FAILURE TO PROVIDE: Detail the consequences of a failure to provide the dependencies.

SERVICES TO THE POOR PROGRAMS: Specifically define services to the poor and create programs that span the contract Establish processes to measure performance COSTS: Detail the costs of providing the services to the poor and mechanisms to make this cost effective.

REPORTING REQUIREMENTS PROCESS: Establish a process for regular reporting on key parameters Ensure regular financial reporting on all aspects of the project PERFORMANCE TARGETS: Establish mechanisms to regularly check on the achievement of performance targets.

SETTING PERFORMANCE BENCHMARKS IN CONTRACTS

PERFORMANCE TARGETS DETAILS: Establish detailed performance targets for all phases of the Contract Ensure that the targets remain reasonable and achievable ADJUSTMENT: Establish mechanisms to adjust the performance targets if they are based on inaccurate assumptions.

REMUNERATION PRICING MODEL: Establish a pricing model suitable to the structure of the PPP Stipulate details of the penalty – reward regime Address advance payments, capital work programs, etc. PENALTIES AND EARN BACKS: Establish mechanisms to allow for earn backs of appropriate penalties.

REGULATORS AND MONITORING

PROJECT CONTROL COMMITTEE DETAILS: Establish a coordination committee to supervise the project Empower the committee to take decisions with regard to the project Require the committee to liaise with other government agencies required in connection with dependencies Ensure that the Contractor has representation on the Committee

MODEL CONTRACTS AND THEIR IMPORTANCE

MODEL CONTRACTS A BEGINNING: Model contracts have all the required clauses that go into typical PPP Contracts Model contracts must be modified to reflect the requirements of each PPP UNIFORMITY Model contracts help bring uniformity in practice and convention – which help establish a jurisprudence Uniformity across projects helps true benchmarking