The post-COVID-19 recovery is highlighting the importance of infrastructure investment—as both a recognition of insufficient infrastructure in many sectors and a driver for economic transformation, job creation, and inclusive growth.  Many low-income developing countries and emerging economies face major investment needs to reach their UN Sustainable Development Goals.  In light of limited fiscal space and financing constraints, however, many countries will turn to the private sector to complement public investment.  As a result, interest in public-private partnership (PPP) based public procurement is likely to increase. ^[1] Mastering the Risky Business of Public-Private Partnerships in Infrastructure in: Departmental Papers Volume 2021 Issue 010 (2021) (imf.org)

“The underlying thread is to micro-analyse impact from a time and cost perspective.”

What is a PPP?  A PPP can be characterized as a project governed by a long-term contract between a government and a company, in which the company makes an investment in an asset and uses it to provide services to the government or the public, while usually being required to satisfy a set of performance criteria.  The PPP contract is always a single contract for the design, construction/rehabilitation, and maintenance of the asset, sometimes including its operation as well. ^[2] Mastering the Risky Business of Public-Private Partnerships in Infrastructure in: Departmental Papers Volume 2021 Issue 010 (2021) (imf.org)

Last year, India unveiled a mammoth INR 6 trillion (approximately US$80 Billion) PPP-based National Monetization Pipeline (NMP) plan focused on brownfield assets (i.e., existing but under-utilized government assets) aimed at attracting private sector investment over a period of 4 years (FY2022-2025).

The most significant areas for the PPP are projected to be for Roads (INR 1.6 trillion, or 26.8% of the total budget) and Railways (INR 1.5 trillion, or 25.5% of the total budget).  The other sectors: Power Transmission; Power Generation; Telecom; Warehousing; Mining; Gas Pipelines; Aviation; Urban Real Estate; Ports; Sport Stadiums; and Other Pipelines & Assets, each accounted for less than 8% of the remaining budget (total INR 2.8 trillion, or 47.6% of the total INR 6 trillion budget).

An important aspect of the PPP framework for India reflects the monetization of ‘Rights’ not ‘Ownership’ – the NMP without divesting ownership is intended to transfer operational title for the prescribed period to successful private sector bidders. ^[3]National Monetisation Pipeline (NMP)| National Portal of India

In this regard, one of the routes which NMP adopts is through concession arrangements, wherein PPP models such as ‘Operate-Maintain-Transfer’ (popular in the road sector), ‘Operate-Maintain-Develop’ (previously used in the airport sector in India) or the similar Rehabilitate-Operate-Maintain-Transfer structure, and ‘Design Build Finance Operate and Transfer’ (such as for railway station redevelopment projects) are to be engaged, with potential for construction activities to be undertaken i.e. development and redevelopment. ^[4]Page 22 Vol_I_NATIONAL_MONETISATION_PIPELINE_23_Aug_2021.pdf (niti.gov.in)

To sensibly approach concerns which stakeholders involved in construction are likely to face in India’s PPP construction chain, we were able to tap into our dispute’s avoidance expertise for PPP projects. By focusing on a wealth of data relating to dispute causation factors which are project type/sector-specific, we were able to pinpoint top risk areas and suggest (high-level) mitigation measures. Our intention is to facilitate these stakeholders to make tailored choices in terms of positioning to potentially avoid disputes.

“The focus should be to gauge specific risks, reassess approaches as they exist based on similar projects/past interactions and identify areas for improvement from a dispute avoidance perspective.”

NMP asset classes 

13 asset classes identified by NMP are as follows: Roads, Railways, Power Transmission, Power Generation, Telecom, Warehousing, Mining, Gas Pipelines, Aviation, Urban Real Estate, Ports, Sport Stadiums, and Other Pipelines & Assets. ^[5] Page 14 NATIONALMONETISATIONPIPELINEVol2.pdf (niti.gov.in) We were able to group 11 of these into 5 blocks (please refer to link below). Asset classes of Telecom and Other Pipelines & Assets have not been considered given lack of specific PPP data.

CRUX – sectoral dispute causative factors

HKA’s CRUX Report identifies top dispute causative factors for engineering and construction disputes from a global, regional and sectorial basis based on in-depth data accumulated from over 1,100 projects on which we have represented, spread across 88 countries representing a total CAPEX greater than US$1.8 Trillion. ^[6]CRUX Interactive Dashboard – HKA

From which, on the basis of handpicked 50 relevant PPP projects globally from 2009, representing a total CAPEX of over US$118 Billion, we have identified 22 relevant heads of claims or dispute (i.e. dispute causative factors) for each NMP asset class (grouped together as colour-coded), attributed ranks from 1 onwards, and suggested mitigation measures from a pre-contractual/tender, contractual and/or execution perspective.

Read the CRUX Sectoral Dispute Causative Factors.

Conclusions – positioning to prevent disputes

NMP represents India’s first attempt at large scale monetization, and which is likely to involve a steep learning curve. By focusing on the ranking information above, certain sectorial tips on positioning have been highlighted below:

1. Aviation, Roads, Rail & Ports – Positioning should recognize scale and linear nature of these projects, planning for difficulties to be presented by unforeseen physical conditions and evolving design. Tender/estimates, accuracy of design information, claims packaging and unrealistic expectations require proactive verification and error-correction. Access issues and scope changes can be countered by focusing in advance on permissible extent of impact on schedule and scope deviation on a project-specific basis.
2. Power Transmission & Generation – By factoring technical complexity and scale of execution, focus on ensuring favourable contractual rights and remedies will assist to deter unforeseen physical conditions, incorrect/incomplete design and worker shortages. Sequential advance planning and implementing contingencies can counter issues relating to operational performance, late design information, and late supply/approvals.
3. Warehouse, Sport Stadium and Urban Real Estate – Acknowledging risks presented by the vertical nature of these projects, permissible extent of scope deviation viewed through the lens of collateral impact on execution/interface, obtaining and proactively pushing for design clarity and correction, and monitoring/improvising efficient management (subcontractor/supplier/interface) will serve to benefit.
4. Mining – These projects are labour intensive, equipment integral and likely to present safety issues. By pre-planning and having well-suited contingency measures, issues relating to worker shortages, skill/experience, operational performance and third-party interface management could be deterred.
5. Gas Pipelines – Increased focus should be placed on managing schedule and cost overruns attributable to incomplete/incorrect/late design, scope change, poor interface and operational performance issues.

The underlying thread in all of the aforementioned is to micro-analyse impact from a time and cost perspective. For which, the focus should be to gauge specific risks, reassess approaches as they exist based on similar projects/past interactions and identify areas for improvement from a dispute avoidance perspective.

Should you have any questions or require support for positioning, please feel free to contact Anand Udayakumar at anandudayakumar@hka.com.

About the author

Anand Ayyappan Udayakumar is an Associate Consultant based in Dubai. An Indian qualified lawyer with nearly a decade of experience in the construction, infrastructure and energy domain, he has provided contentious and non-contentious legal advisory in over 100 projects spread across Europe, Africa, Middle East and Asia.