The United States is facing consequences from decades of deferred maintenance and underinvestment in infrastructure. At the same time, available public fund levels for such projects are low and resistance to increased taxation is high.
One approach government agencies are exploring to help meet the needs for new infrastructure projects is developing public-private partnerships (P3s). Last year Kentucky joined many other states when it passed legislation to allow public-private partnerships in transportation. That move opened the door for leaders in the Commonwealth to make major improvements to roads and bridges. Just as important, the legislation allowed smaller communities and government agencies to use P3s to make changes in their communities. It also built in protections and oversights to ensure that major projects involving public-private partnership are in the best interest of citizens. These arrangements could provide profitable opportunities for contractors in the near future, so it’s important to know how they work.
The concept, defined
Under the P3 model, a public entity (federal, state or local) engages a private partner, which in turn hires, supervises and pays the contractor. The private partner may participate in the design, financing, operation and maintenance of the project, as well as in the construction. The specific role of the private partner varies considerably from one project to another. Ideally, everyone’s role is clearly spelled out in the contract.
The types of projects that have been handled as P3s include water and sewer systems, parking facilities, toll bridges, roads, highways and prisons. In some cases, the P3 is formed to develop a new infrastructure project; in others, an existing asset is transferred to a private partner that assumes responsibility for needed upgrades, repairs and ongoing maintenance work.
Pros and cons
The chief advantage proponents see in P3s is that both the public and private entities involved do what they do best. The public entity is better able to serve its constituency by targeting and completing the necessary projects. The private partner is motivated to work effectively and efficiently, because its contractually specified compensation depends on good performance.
In addition, by working together, P3 partners often are able to develop better infrastructure solutions than either could have come up with on their own. Projects may be built faster when time-to-completion is included as a measure of performance and, thus, profit. Risks are appraised fully before a project moves forward, with the private partner often serving as a check against unrealistic government promises or expectations. Taking advantage of the private partner’s experience in containing costs can mean more efficient use of government funds and resources, too.
P3s also present some potential disadvantages — especially where the size, nature or complexity of the project limits the number of potential private partners. When only a few private entities have the necessary scope and skills to handle the job, there may not be enough competition to ensure cost-effective partnering.
Furthermore, if the expertise in the partnership is weighted heavily on the private side, it puts the government at an inherent disadvantage. Under those circumstances, it can be difficult for the public partner to accurately assess the proposed costs.
The contractor’s perspective
As mentioned, P3s represent potentially profitable opportunities for contractors with the requisite experience and resources to perform the work. If you want to consider going after one of these projects, it’s important to be aware of the ways they differ from traditional public works construction.
At the state and local level, laws governing P3s vary widely from state to state and municipality to municipality. They don’t always offer contractors the same protections typically provided in publicly funded projects.
For example, some state P3 laws don’t address bonding requirements at all, while others allow alternative forms of security, such as guarantees from a parent company or equity partner. Sometimes the security required makes it difficult or even impossible for a subcontractor or supplier to pursue payment claims, which can increase your risk of nonpayment on a P3 project.
Even more onerous, state and local governments own the land on which most P3s are built. Thus, subcontractors can’t rely on mechanics’ liens for compensation if the general contractor defaults.
Your best interests
MCM, along with two major law firms, a leading highway construction company, the state’s largest water utility as well as a regional business leadership organization have joined the P3 Kentucky Roundtable, a group of thought leaders working to help build much-needed public infrastructure across Kentucky through private investment and financing. The roundtable is part of P3 Kentucky, a communications hub that connects more than 4,000 leaders from local and state governments, business and economic development organizations through a weekly newsletter, social media posts and website.
Analysts expect P3s to become more prevalent for infrastructure projects in the years to come. So you may want to keep an eye out for such work and be prepared to pursue it, assuming the project suits your construction company’s strengths.
If you do get the chance to participate in a P3, consult your CPA, attorney and surety rep before starting work. You’ve got to ensure that the contract into which you’re entering will reasonably serve your best interests.