Part 4. PPPs Contrasted with Outsourcing and Privatization

PPPs are often associated with other government reforms or functions involving the private sector. For example, the outsourcing of government functions (transferring them to the private or nonprofit sector) is an effort to achieve greater fiscal control and more efficient service delivery. Government outsourcings is an application of the classic make or buy decision to government operations, even functions that have been the traditional domain of governments. The presumption is that private vendors can provide some public services more cheaply than government agencies. However, there is nothing intrinsic to outsourcing that requires a partnership.

Privatization of traditional state-owned or state-run enterprises is another popular reform strategy. Privatization involves the transfer of some activity and its assets that in the past was operated by the public sector to the private sector, through a sale, concession, or some other mechanism. In privatization, either a government eliminates direct control and ownership of the function and the delivery of services (full privatization), or it retains some influence by holding stock in the privatized firm. The intention in all such arrangements is that the day-to-day production and delivery of these goods and services will be left to private operators, and thus the market, and that the government’s involvement will be primarily regulatory. Again, there is nothing intrinsic to privatization that requires a partnership.

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Part 3.What Public–Private Partnerships Are

Even with their ubiquity, there remains some ambiguity as to what exactly constitutes a PPP. For this article, however, we focus on a more specific, emerging form of PPP that gives the private sector a greater role in decision making and assumption of risk in the joint venture.

The private sector has long been involved in infrastructure projects, under arrangements by which the private sector, under contract, designs and builds facilities (or roads) and then turns them over to the government to operate and maintain. Our specific focus is on long-term partnerships involving the private delivery of public infrastructure services. Thus, Public–private partnerships are ongoing agreements between government and private sector organizations in which the private organization participates in the decision-making and production  of a public good or service that has traditionally been provided by the public sector and in which  the private sector shares the risk of that production.

Three critical conditions characterize this conception of these emerging PPPs:

  1. The relationship between the public and the private sector organization is long term, rather than a one-time relationship, such as might occur in a conventional contract for a good or service (such as office products or secretarial assistance).
  2. The private sector cooperates in both the decision making as to how best to provide a public good or service and the production and delivery of that good or service, which normally have been the domain of the public sector.
  3. The relationship involves a negotiated allocation of risk with the private sector instead of government bearing most of the risk.

These emerging forms of PPPs take a variety of forms that reflect varying degrees of private involvement, including design, build, and operate; build, own, operate, and transfer; and design, build, finance, and operate.

Next time we will explore important elements of successful conventional contracting including arm’s-length negotiations, transparency, clear specifications of the good or service being bought, and specific evaluation criteria.

Part 2. What Public–Private Partnerships Are and What They Are Not

What Public–Private Partnerships Are and What They Are Not

After years of underfinancing much-needed repairs and maintenance to America’s infrastructure—by as much as $2.2 trillion, according to some estimates—digging out of the current deficit will be costly. And with state and local governments facing tight budgets, it may be decades before the work will be affordable. The lack of resources for infrastructure improvement and maintenance extends beyond highways and affects a range of public capital investments, from levees to wastewater treatment and from transportation to schools. The dismal state of the nation’s current infrastructure could hamper future growth.

The ways that governments allocate new funding for infrastructure projects and the ways they build, operate, and maintain those projects has contributed to the problem. New spending often flows to less valuable new construction at the expense of funding maintenance on existing infrastructure.  Further hindering efficiency, the traditional process for building infrastructure decouples the initial investment—the actual building of a highway, for example—from the ongoing costs of maintaining that highway. As a result, the contractor building the highway often has little incentive to take steps to lower future operations and maintenance costs. Such inefficiencies likely contribute to falling rates of return on public capital investments. PPPs can be used for solid waste, transport (airports, bridges, ports, rail, roads, tunnels, and urban railways), tourism, and water.

The United States is a relative newcomer to PPPs. Public–private partnerships have existed worldwide at least since the time of the Roman Empire (e.g., the use of private tax and toll road collectors) and in the United States since its founding. During the Revolutionary War, the Continental Congress authorized the use of privateers to harass the British navy. Later, much of the West was developed through a variety of PPPs, including the cross-continental railway. The production of transportation infrastructure often has been undertaken with PPPs, from the development of private toll roads and canals during the nation’s early history up to the recent Dulles Greenway—a privately financed, built, and operated toll road in northern Virginia.

Even though there is an old nineteenth-century tradition of privately provided public infrastructure and even of private tolled roads and bridges,  the United States still depends almost exclusively on the government for its public transport infrastructure (with the important exception of railroads).The two-decade trend toward PPPs that has revitalized the ways that many countries provide infrastructure has gained only little traction  in the United States. Whereas the United Kingdom financed $50 billion in transportation infrastructure via PPPs between 1990 and 2006, the United States, an economy more than six times as large as that of the United Kingdom, financed only approximately $10 billion during the same period.

Even with their ubiquity, there remains some ambiguity as to what exactly constitutes a PPP. . . For future articles . . . we shall focus on a . . . form of PPP that involves a greater role by the private sector in decision making and assumption of risk in the joint venture.

Public–Private Partnerships: Public Accountability

Public–private partnerships (PPPs or P3) are growing in popularity as a governing model for delivery of public goods and services. In recent years, the state of California for instance has partnered with the private sector to finance, design, construct, operate, and maintain two state infrastructure projects—the Presidio Parkway transportation project in San Francisco and the new courthouse in Long Beach. Both the California Department of Transportation (Caltrans) and the Administrative Office of the Courts (AOC) entered into P3s for these projects in order to achieve benefits that they might not have obtained under a more traditional procurement approach (such as design-bid-build).  PPPS potential benefits include greater price and schedule certainty and the transfer of various project risks to a private partner.

PPPs have existed since the Roman Empire, but their expansion into traditional public projects today raises serious questions about public accountability. In a series of articles we plan on examining public accountability and its application to government and private firms involved in PPPs.

Part One-The Model:

Public–private partnerships (PPPs) increasingly have become the default solution to government problems and needs, most recently for infrastructure, and they are embraced by a wide range of constituencies, across political parties, and throughout the world. This trend may accelerate as governments experience fiscal deficits and look for alternative ways to finance and deliver government services. The rationale for creating such arrangements includes both ideological and pragmatic perspectives.

Ideologically, proponents argue that the private sector is superior to the public sector in producing and delivering many goods and services.

Pragmatically, government leaders see PPPs as a way of bringing in the special technical expertise, funding, innovation, or management know-how from the private sector to address complex public policy problems. The expanding domain of goods and services provided by PPPs includes private toll roads; schools, hospitals, security services, wastewater treatment, and emergency response.

There are many challenging technical and structural aspects to creating successful PPPs that have been addressed by other authors (see, e.g., Grimsey and Lewis 2004; Hodge and Greve 2005; Yescombe 2007). However, with the increased use of PPPs, the issue of public accountability has become one of the more important of policy questions raised (see, e.g., Guttman 2000; Sclar 2000). The purpose of upcoming articles is to provide a framework to assist public managers in effectively exercising accountability with PPPs. We will begin with a discussion of the nature of PPPs and the traditional concept of public accountability. Second, we focus on the unique characteristics of inter-organizational relationships that are pertinent to the exercise of accountability in PPPs. Finally, we shall offer a framework to analyze PPP accountability issues along several important dimensions that shape the relationships forged in public–private partnerships.

Next Time: What Public–Private Partnerships Are and What They Are Not

 

Revisions to Federal Transportation Project Grant Program Encourages Use of P3s

The federal grant program that provides funding for freight and highway projects throughout the country has been revised to support projects that use funding from the private sector or other nonfederal sources.

The Fostering Advancements in Shipping and Transportation for the Long-Term Achievement of National Efficiencies (FASTLANE) program has been renamed the Infrastructure for Rebuilding American (INFRA) program, the U.S. Department of Transportation’s Build America Bureau announced recently. Congress authorized FASTLANE to receive $4.5 billion over five years under the Fixing America’s Surface Transportation (FAST) Act of 2015 to provide competitive grants or credit assistance to nationally and regionally significant freight and railway projects beginning in 2016.

The INFRA program will provide approximately $710 million in FY 2017 and up to $855 million in FY 2018, according to a July 5 Federal Register notice. The INFRA program will evaluate projects using updated criteria to ensure that they meet national and regional economic vitality goals and encourage the use of nonfederal funding and innovation in the project delivery and permitting processes, including P3s. The program’s revisions could provide some insight into the approach President Trump could take in proposing a $1 trillion infrastructure funding package later this year, reported The Hill.

Each large project that is selected for funding will receive at least $25 million; each small project will receive a minimum of $5 million, and 10 percent of available funds will be reserved for small projects for each fiscal year of funding. The INFRA program preserves the FAST Act’s statutory requirement that at least 25 percent of funding be reserved for rural projects.

Projects eligible for funding include reconstruction, rehabilitation, property acquisition, environmental mitigation, equipment acquisition and operational improvements that affect system performance.

Applicants can resubmit previously submitted FASTLANE applications but must explain how these projects competitively address the INFRA grant criteria. Applications are due Nov. 2.

This week in Congress.

The Senate will consider resolutions of disapproval under the Congressional Review Act (CRA) and confirmation of the president’s appointees to federal agencies. The House will be taking up litigation reform legislation and appropriations legislation to fund the Defense Department through the remainder of fiscal year 2017. The highest profile activity in Congress this week, though, is expected to take place in the House which plans to mark up the legislation to begin to repeal and replace the Affordable Care Act.

The Senate will return on Monday afternoon, when votes are expected on two resolutions of disapproval of federal regulations issued in the final months of the Obama administration under the CRA. The first vote will be on H.J. Res. 37 to disapprove a rule from the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration revising provisions of the Federal Acquisition Regulation to require federal contractors to disclose findings of noncompliance with labor laws. The Senate is then scheduled to vote on the motion to proceed to H.J.Res 44, a resolution of disapproval of the Bureau of Land Management’s Resource Management Planning rule, finalized in December 2016. The regulation establishes the procedures used to prepare, revise or amend land use plans pursuant to the Federal Land Policy and Management Act of 1976, but congressional Republicans, state and local governments, and affected property owners have argued that the new process creates more confusion and greater uncertainty. The White House has announced support for both resolutions of disapproval, indicating the president would sign them into law upon Senate passage (both resolutions have already been approved by the House).

Senate floor activity for the remainder of the week is uncertain. It is possible the majority leader will initiate action on the nomination of Seema Verma to serve as Administrator of the Centers for Medicare and Medicaid Services. The nomination was advanced by the Senate Finance Committee last Thursday on a straight party-line vote.

On the other side of the Capitol, the House will return to legislative business on Tuesday, when members will consider seven bills, including five measures under the jurisdiction of the Transportation and Infrastructure Committee, under suspension of the rules.

On Wednesday, House members will consider three additional bills under suspension of the rules, all reported by the Natural Resources Committee.

The House will then take up H.R. 1301, the Department of Defense Appropriations Act for FY 2017, subject to a rule. The funding bill would replace the Department of Defense provisions of the current continuing resolution for FY 2017, which is set to expire on April 28, and provide funding through the end of this fiscal year, which ends on Sept. 30. The legislation meets the overall defense spending limits set by law for FY 2017, providing $516.1 billion for base budget needs. The bill also provides $61.8 billion in Overseas Contingency Operations funding, which is the level allowed under current law. These amounts are also in line with the National Defense Authorization Act signed into law by President Obama in December. Unlike the Defense Appropriations bill that passed the House on a party-line vote last summer, this version of the defense spending bill maintains statutory budget limits. As a result, it is likely to garner more bipartisan support for House passage in this session of Congress. Press reports indicate the Trump administration is preparing to request an additional $30 billion in supplemental funding for the Department of Defense in FY 2017, largely for readiness spending, but it remains unclear how Congress will respond to any supplemental appropriations request. It also remains unclear how or when Congress will deal with funding for the 10 remaining FY 2017 spending bills before the continuing resolution expires on April 28.

During the remainder of the week, House members will consider three pieces of litigation reform legislation reported out of the House Judiciary Committee. Each will come to the floor under a rule.

On Thursday, the House will take up two of these measures. H.R. 725, the Innocent Party Protection Act, limits the ability of federal courts to remand cases to state court under certain circumstances. Members will also consider H.R. 985, the Fairness in Class Action Litigation Act of 2017. The bill includes language from a previous class action reform proposal, which passed the House in 2016, to prohibit federal courts from certifying any proposed class under Rule 23 of the Federal Rules of Civil Procedure unless the party seeking to maintain a class action demonstrates that each member of the proposed class suffered an injury of the same type and scope. This version of the legislation also includes some additional provisions related to class action litigation, including disclosure requirements on third-party litigation financing.

The third litigation reform bill will be considered on Friday. H.R. 720, the Lawsuit Abuse Reduction Act of 2017, would amend Rule 11 of the Federal Rules of Civil Procedure to make the imposition of sanctions for violations of the rule mandatory, not discretionary as under current law.

Also this week, House Republican leaders are expected to release their proposal to repeal and replace the Affordable Care Act.  Once the bill is released, committee action is on tap, with markups this week, and prompt floor action can be expected as early as next week.

With all committees now organized, both chambers are facing busy hearing schedules.

 

Trump: Advancing Tax Incentives and Public-Private Partnerships

President Elect Trump has vowed to work with Congress on an ambitious $1 trillion, 10-year proposal staked on tax incentives and private investment to stimulate jobs and rebuild highways, bridges and airports within his first 100 days in office.

To pay for large-scale infrastructure projects, the president-elect is seeking to entice the private sector to get on board with putting up $167 billion of the proposed $1 trillion investment in public-works projects by having the government offer them an 82 percent tax credit.

The plan also relies on increased tax revenues from two revenue streams generated from the new infrastructure projects to offset the tax expenditure: additional wage income from construction workers and contractor profits. Advancing Tax Incentives and Public-Private Partnerships

Trump has vowed to work with Congress on an ambitious $1 trillion, 10-year proposal staked on tax incentives and private investment to stimulate jobs and rebuild highways, bridges and airports within his first 100 days in office.

To pay for large-scale infrastructure projects, the president-elect is seeking to entice the private sector to get on board with putting up $167 billion of the proposed $1 trillion investment in public-works projects by having the government offer them an 82 percent tax credit. The plan also relies on increased tax revenues from two revenue streams generated from the new infrastructure projects to offset the tax expenditure: additional wage income from construction workers and contractor profits.

It is estimated that $300 billion or more in private capital is ready to be deployed for this purpose. This estimated sum exists as investors like pension funds, insurance companies and private equity believe deploying their capital towards infrastructure makes for a sound investment backed by the strength and integrity of local and state governments.

Thus, Trump’s proposal could provide significant and long-awaited opportunities for public-private partnerships, or P3s, to invest in major, high-cost, revenue-supported projects.