In the economies of many countries, a special form of relations between commercial enterprises and government has appeared. To designate this interaction, the concept of public-private partnership is used. Let's consider it further in detail.
The state and private business form an alliance for the implementation of projects of public importance in a variety of areas of activity. The interaction between government and commercial structures has now reached a new level. It is currently fixed on legislative level in 224-FZ. These relationships can be fully regarded as an integral feature of a mixed economy.
The development of public-private partnership contributes to the formation of basic models of financing, management methods, and property-related relations. In this process, a set of issues related to the redistribution of powers acquires fundamental importance. They arise as an inevitable consequence of the expansion of interactions between commercial structures and authorities. A number of experts believe that in many cases public-private partnership is, to a certain extent, privatization or its absolute alternative. Such an opinion, for example, is expressed regarding concessions. Meanwhile, it is worth noting that public-private partnership is indeed an institutional way of transforming areas of activity that are traditionally the responsibility of the authorities. However, the tools used in cooperation do not completely take them out of the scope of state regulation.
A public-private partnership is a cooperation that involves the provision of not all legal opportunities that fall into the sovereign right of the owner in economic circulation, but only a certain part of them. It's about the right to control, change capital cost material values, assignment of certain powers to other persons. Quite extensive experience in the redistribution of legal opportunities between the authorities and commercial structures is available in the areas of public services, namely, infrastructural sectors. They have historically formed the tradition of transferring some basic powers to private business by the state. The authorities are responsible to society for the continuous flow of public goods. This is the reason for the desire to keep some industries in state ownership. At the same time, private enterprises are characterized by high mobility and efficient use of resources. In addition, commercial structures are prone to innovation. Public-private partnerships are a way to leverage the benefits of both types of ownership without profound changes in society.
The state under any conditions remains a participant in public law relations. This circumstance is also key for civil legal relations, in which power as a sovereign is not an ordinary subject of law. In this regard, it is impossible to talk about the initial equality of private and public partners. It will come only if, on the basis of the sovereign rights of power, the agreement on interaction determines the conditions and specifics of the implementation of civil legal relations. In other words, the state will become a special subject. This is expressed primarily in the fact that the authorities themselves establish the legal framework within which all other participants must act. In addition, it retains its managerial, administrative functions, even if it enters into relationships on the principle of equality. This is due to the presence of powers to issue administrative acts. They, in turn, ignore the specified equality. Initially, it is assumed that the state enters into civil circulation not to satisfy its own specific interests, but for the most effective implementation of public power.
Projects approved under a PPP are not just a pool of resources. They are a very special configuration of the respective powers and interests of the interacting subjects. First of all, the state, acting as one of the parties to the partnership, is the bearer of socially significant goals and needs. At the same time, it also performs a control function. Secondly, being a participant in the economic turnover, the state is interested not only in the high results of the partnership, but also in ensuring its own commercial effect. In addition, like any normal entrepreneur, a participant in such relations seeks to maximize profits. In this regard, in the sector of commercial interests between the parties, it is quite appropriate, and in some cases it is necessary to bargain on the division of probable risks, the nature of the transferred powers, the conditions for their granting and use.
As international experience shows, the degree of participation of government and commercial structures, the conditions for their combination may differ, and in some cases quite significantly. So, organizations can act as a party to the agreement. As a rule, this is for the supply of products or the provision of services for state needs, for management, the provision of technical assistance, and so on. In this case, ownership rights are clearly separated. There are other forms in which such a public-private partnership manifests itself. Examples of this are production sharing agreements and leasing agreements. Within the framework of interactions, a partial transfer of a number of ownership rights is possible. As a rule, they include the ability to use, manage and own property. Such partnership takes place at the conclusion of concession agreements. In addition, it provides for equity or equity participation of the entrepreneur in government agencies. Public-private enterprises are an expression of more high level integration of capital within the framework of cooperation between commercial organizations and authorities.
The structure and models of public-private partnerships are very diverse. However, there are a number characteristic features, allowing to single out this institution in an independent category. First of all, it should be noted that PPP is created as a formalized cooperation between commercial and government agencies. Entering into such cooperation is aimed at achieving specific goals and is based on the relevant agreements of the participants. Analyzing foreign experience, the following features of partnership can be noted:
Commercial structures provide professional experience, financial support, effective management, efficiency and flexibility in the decision-making process, and show the ability to innovate. As part of the partnership, innovative methods of work are being introduced, equipment is being modernized, and technologies are being improved. In the process of cooperation, new forms of production organization appear, companies are formed, including those with foreign capital, and effective cooperation with contractors and suppliers is formed. At the same time, the demand for well-paid and highly qualified employees is growing in the labor market.
The state, in turn, provides certain powers of the owner, provides tax breaks, guarantees, financial and material resources. The authorities, in the framework of cooperation with commercial structures, get the opportunity to implement their direct functions - control, regulation, observance of the public interest. As the partnership develops, the state can smoothly shift the focus from specific problems of construction and operation of facilities to administrative and control tasks. Those that arise are redistributed towards commercial structures. The social significance of the partnership is that as a result, society benefits as a user of higher quality services.
Public-private partnership programs are of particular importance in municipalities. Cities and towns bear the brunt of the implementation of socially significant tasks in various areas of management. These areas, in particular, include transport, housing and communal services, nature conservation, housing construction, gas and energy supply. The key problem faced by local authorities is the lack of funding. In this regard, raising capital from commercial structures, in accordance with 224-FZ, is becoming a common practice.
In world practice, various forms of cooperation between government and commercial companies have been adopted. One of them is government contracts. They are administrative contracts that are concluded between a commercial organization and a governing body (federal, regional, local). The most common public-private partnership is in the social sphere, in the field of supply of products for municipal or state needs, management, and technical assistance. In administrative contracts, the right of ownership is not granted to a commercial organization. In this case, the risks and costs are fully borne by the state. The interest of a commercial structure is that, in accordance with the contract, it receives the right to an agreed part of the income or fees collected. As practice shows, such agreements allow not only to increase the prestige of the company, but also guaranteed to receive possible preferences and benefits, sustainable profits and take a position in the market.
Within the framework of cooperation, transactions on the transfer of property, which is in municipal or state ownership, to a commercial structure for use for a certain fee, are common. It can be a building, a building, a room, land plot. Lease in the traditional form implies the return of the subject of the agreement. At the same time, the right to dispose of property remains with the owner, and when concluding an agreement, a commercial structure is not granted. In some cases, an organization may purchase a building, premises or land. Rent in the form of leasing always implies such a condition.
This form of public-private partnership is now becoming more widespread. The peculiarity of the concession lies in the fact that municipal or state bodies within the framework of cooperation remain full owners of the property, authorize the commercial association to perform the functions specified in the contract for a certain period. To do this, the company is transferred the legal capabilities necessary to ensure the functioning of the concession object. For the operation of the property, the commercial structure pays a fee in the manner and on the terms established by the agreement. In this case, the ownership of the product is transferred to the user.
The concession has the following features:
When concluding contracts, leasing agreements, the state or municipality acts as a subject civil law. Accordingly, the provisions of the Civil Code are sufficient for their effective operation. In concession relations, the state is primarily an institution of public law. In this role, it not only transfers part of the powers to commercial companies, but also delegates a certain share of power functions. Such provision is permitted only in accordance with the normative act. Among the public law signs of a concession, it is necessary to single out the consolidation of public interests in them, the representative of which is the state. By agreement, the commercial structure is obliged to obey them, that is, to ensure the continuity of the provision of services, equality of tariffs, general accessibility, and exclude discrimination of consumers.
Such agreements are most popular in the world practice in infrastructure industries. These sectors require intensive investment and an influx of highly qualified personnel. Currently, there are three main types of concessions:
Within the framework of these types, forms of concession agreements are possible, based on a different combination of powers, as well as permissible limits for a particular investment and entrepreneurial activity.
In the Russian Federation, the normative act on concession agreements entered into force in 2005. However, at present, such cooperation has not been developed. The main reason for this situation experts call the lack of protection of user rights. The risk that a commercial organization bears, relating directly to its activities under the agreement, is aggravated by the existing obligation to pay a high concession fee. At the same time, the penalty for violation of the terms of the agreement by the user is not established in the regulatory act. Currently, discussions are ongoing on amendments to the law that could stimulate the emergence of concession relations in Russia.
This form of relations between commercial structures and government agencies has some features of a concession. However, this agreement has a number of features. The differences are primarily in the configuration of property relations. However, the rights to products created by a private partner remain with him. According to the agreement on the division of the results of activities, he is left with only a part of them. The procedure and conditions for the transfer of rights are stipulated by a special agreement.
Public-private partnerships in education have gained the greatest popularity. So, at present, work is underway to introduce a system. This form of PPP is spreading in St. Petersburg and Moscow. It involves the involvement of manufacturing companies in the process of training highly qualified employees. At the same time, training is carried out without interruption from production activities.
Another common form of interaction is public-private partnership in healthcare. We are talking mainly about recreation facilities, the sanatorium sector. Over the past few years, forms of public-private partnership have been rapidly developing. Initially, they were used in the construction of parking lots, motorways, and provision of heat supply. Today, cooperation is becoming more widespread in the defense sector, the transport services sector, and the cultural and educational sphere. When implementing programs, various mechanisms of interaction between government and commercial organizations are used. They are differentiated in accordance with the volume of ownership rights, financial obligations of the participants, the principles of risk distribution, as well as responsibility for the performance of certain types of work.
In a broad sense, to the main forms of PPP in the field economy and government controlled can be attributed:
In Russia, seven main types of concession agreements were considered in 2004 . However, in connection with the inclusion in a number of international treaties of the Russian Federation of certain provisions from the documents of the International Bank for Reconstruction and Development ( World Bank) and preparations for WTO accession, Russian legislation included other terms characterizing other types of concession agreements.
For 2012, Russian law provided for the following 3 forms (types of contracts) of PPP:
Management contract and lease agreements;
Contract for operation and maintenance.
Modern economic literature uses various classifications forms and models of public-private partnership. In accordance with the sign of state participation in the use of property in the process of project implementation, the following forms of public-private partnership are distinguished:
According to the degree of stateization of property and the principles of income management, the following classification of public-private partnerships is used:
By classifying and labeling standard forms and models of public-private partnerships, it should be noted that this brings order to the scope of the tools for interaction and building relationships between business structures and the state. At the same time, the classification makes it possible to determine the role and place of each side of these relations in the process of project implementation, as well as to identify the main inconsistencies in the legislative framework for public-private partnership relations.
The following classification, used in the economic literature, distinguishes models according to the method of implementing large infrastructure projects and the distribution of risks. In accordance with this classification, the following models are distinguished:
Classifying according to the initiator of interactions, scientists have identified the following forms of public-private partnership:
For the implementation of public-private partnership projects in various socially significant sectors of the economy, such forms are distinguished as public-private partnership in the field of education; public-private partnership in the field of healthcare; public-private partnership in the field of culture; public-private partnership in the field of transport infrastructure; public-private partnership in the field of housing and communal services, as well as other intersectoral projects (region).
The most common classification is the division of public-private partnership forms according to the sequence of project implementation stages and the scope of competencies.
In accordance with the role of the state in public-private partnership relations, partnerships with a passive, active role and equal relations are distinguished. According to the terms of project implementation, public-private partnerships are classified as follows: with a limited implementation period; with the deadline for achieving the goals and objectives of the project; indefinite implementation period. On the basis of the innovative component, partnerships are identified that are implemented in order to obtain an innovative effect; implemented on the basis of an innovative product existing on the market, which allows achieving a secondary innovative effect; as well as public-private partnerships that do not have an innovative component and are characterized by traditional business conduct.
Thus, it should be noted the variety of forms and models of public-private partnership classifications that currently exist in the economic literature, which negatively affects the understanding of business structures of their advantages and disadvantages. Considering the foregoing, it is proposed to systematize the identified forms and models of public-private partnership, shown in Table. one.
Given in table. 1 classification of forms and models of public-private partnership allows you to select the necessary model and form in specific economic conditions their implementation. Within the framework of this classification, the following models are distinguished with the peculiarities of their content: the operator model, the cooperation model, the concession model, the contractual model and the leasing model. The content of each model differs in property relations, the order of interaction, forms, mechanisms and areas of application.
Table 1. Classification of forms and models of public-private partnership
|
Operator model |
Cooperation model |
concession model |
Model negotiable |
Leasing model |
|
|
Property Relations |
Property -- private-state; management - private-state; financing - public-private |
Property - state; management - private-state; financing - public-private |
Property -- private-state; management-private; funding is private. |
The property is private; management - private-state; financing - public-private |
|
|
Order of interaction |
Separation of responsibility under the control function of the state |
Joint project campaign of a private investor and the state |
Long-term interaction between the state and business on the basis of a concession, the exclusion of the transfer of ownership to private business structures |
Carrying out activities on the basis of the conclusion of various types of contracts involving state property |
Joint activities based on leasing agreements, under which private business structures transfer property to the state |
|
contract form |
contract form |
concession form |
contract form |
contract form |
|
|
Mechanisms |
BOT, DBFO, BOOT, BOO, ROT, LROT, etc. |
BOT, DBFO, BOOT, BOO, ROT, LROT, etc. |
BOT, DBFO, BOOT, BOO, ROT, LROT, etc. |
||
|
Scope of application |
Housing and communal services, infrastructure |
Socio-cultural sphere, infrastructure |
In all sectors of the national economy, in accordance with the legislation of the Russian Federation, innovations, development of territories |
Energy, infrastructure |
Construction and operation of public buildings, infrastructure |
It should be noted that within the framework of the designated models, the roles of the state and business structures are strictly delineated and give a certain socio-economic effect when fulfilling the terms of the public-private partnership agreement, coordinating the interests of the parties in achieving the goals of the project and forming mechanisms for eliminating the internal contradictions of the partnership.
It should be noted that it is difficult to choose the most effective and expedient model of public-private partnership, which is due to specific features management levels (regional aspect) and types economic activity(industry aspect). The existing legislation limits the use of the whole variety of world experience in building interactions between the state and business structures.
Lecture №3 Fundamentals of PPP
Profound political, economic and social transformations of the last two decades in countries with transition economy, intensive processes of globalization in modern world created the ground for consolidating the efforts of the authorities and the business community in solving the problems of meeting the needs of the population in a wide range of services that have traditionally been the responsibility of state authorities and local self-government. The problems that arose along this path required a set of measures that went beyond the competence and financial capabilities of the public and private sectors and led to the emergence of a new phenomenon - public-private partnership (PPP).
Under the conditions of a full-scale transition to market economy The Russian Federation and the CIS countries consider PPP as an important mechanism for the development and enhancement of competitiveness. In our country for last years the necessary prerequisites have been created: the initial regulatory framework and institutions for the development and support of such a partnership have been determined; accumulated experience in the formation of a flow of project applications; attempts are being made to actually apply the concession legislation in large infrastructure projects; all large-scale partnership projects are being implemented in public utilities and in the field of culture; a search is being made for ways to use PPP mechanisms in high-tech industries for the production of goods and services, in healthcare, science and education.
Preparation and implementation of projects for the development of infrastructure of interstate, national, regional and municipal significance using the mechanisms and various forms of PPP in our country and in other countries with economies in transition are a priority. The planned significant increase in the share of private capital in socio-economic development programs is impossible without using the experience of countries.
The concept and essence of PPP
PPP is a long-term mutually beneficial cooperation between public and private partners aimed at implementing PPP projects in order to achieve the objectives of public legal entities, increase the level of accessibility and quality of public services, achieved by attracting private resources and sharing risks between partners.
Many definitions have been developed for public-private partnerships, and most of them highlight the following: elements, revealing the essence of PPP:
PPP facility
The object of PPP is property that is part of the transport, engineering and social infrastructure (or, in general, some part of the public sector). Also object PPP can be any public sector function (also called public services, public services, public services ), the implementation of which is assigned to a private party.
Under infrastructure refers to the totality of structures, buildings, systems and services necessary for the functioning of the economy and ensuring the living conditions of the population. Most often, PPP is implemented in the following sectors of the infrastructure complex:
· car roads;
· railways;
pipeline
sea and river ports and ships;
airfields, production and engineering
airport infrastructure;
subway and other public transport
use.
Social infrastructure:
health care;
· Spa treatment;
· education;
· culture;
social service;
Energy infrastructure:
production, transmission and distribution
· electrical and thermal energy;
heat, gas and energy supply;
outdoor lighting and other objects.
Communal infrastructure:
· water supply and sanitation;
Disposal (burial) of household waste;
landscaping;
social facilities;
hydraulic structures.
The essence of PPP projects is to transfer the functions of the public sector for the construction, reconstruction, modernization, maintenance and operation of infrastructure facilities to the private sector.
PPP subject
The subject of PPP is the relationship in the process of interaction between the public and private sectors regarding the construction (reconstruction, modernization), operation and management of infrastructure facilities. These relationships have the following key properties:
ü PPP combines two types of activities:
Investments in infrastructure facilities;
Provision of services using these facilities or their operation.
ü In general, there are two stages in a PPP project:
“cost stage”, during which the private and public parties invest money in infrastructure facilities (and other facilities related to the functions of the public sector);
"profitable stage", during which the provision of services using these objects and return on investment.
The presence of a "profitable stage" is the key difference between PPP projects and government contracts. At the same time, the source of income for a PPP project can be both revenue from the provision of services to individuals and payments from the budget.
ü PPP is long-term and contractual.
The long-term nature of the implementation of PPP projects follows from the need to return Money invested by a private party (as opposed to a government order). The average period for the implementation of PPP projects is more than 10 years: at the same time, the “profitable stage” is the longest, while the “costly” stage is generally comparable in terms of time with the state order.
Due to the long-term nature and the need to formalize all the conditions, the complexity of contractual relations for PPP projects is significantly higher than for the state order. This, in turn, leads to a higher cost of pre-project and preparatory work for PPP projects.
ü PPP involves the sharing of project risks between the parties
Here “risks” are understood as probable changes in project indicators, primarily related to income and expenses. Risk sharing is a prerequisite for PPP relationships. At the same time, the greatest difficulty is the search for the optimal distribution of risks depending on the specifics of the PPP project (industry, type of agreement, financing conditions, etc.). General rule it is that each project risk is borne by the party that is best able to manage it.
The difficulty in implementing this rule lies in the fact that, on the one hand, a private investor seeks to increase income and therefore tends to underestimate the risks of a PPP project (direct risk-income relationship); on the other hand, the public authority seeks to reduce liability and therefore tends to overestimate the risks transferred to the private sector (inverse risk-return/responsibility relationship).
The need to find the optimal distribution of risks also increases the importance of the pre-project stage of PPP in comparison with the state order.
Purpose of using PPP
The purpose of using PPP is to ensure the dynamic socio-economic development of the region, subject to an increase in the efficiency of the use of budgetary funds and an increase in the quality and volume of public sector services through investments attracted from non-budgetary sources.
The purpose of a PPP includes three interrelated elements:
· accelerating the pace of socio-economic development of the region through additional investment in infrastructure attracted from non-budgetary sources, as well as by improving the quality of public sector services;
· budgetary savings in the short term due to the distribution of funding for a longer period;
· Improving the efficiency of the use of budgetary funds by attracting the private sector.
From point of view state regulation economy PPP is aimed at attracting private sector organizations to the implementation of resource- and capital-intensive infrastructure projects, as well as ensuring the development of production activities in a wide range of sectors of the economy and, ultimately, improving the living standards of the population.
Forms of PPP
Public-private partnership includes many forms, which have various names and are used in a wide range of infrastructure industries and investment transactions.
In particular, in fig. The main directions of classification of PPP forms are presented.
PPP Models
There are a number of PPP models that make it possible to share responsibility and risk-taking between the public and private sectors in PPP projects. The following models are commonly used to describe typical partnership agreements:
"Acquisition - Build - Operate" (BBO - Buy - Build - Operate):
Transfer of state property to a private and quasi-state structure on the terms of a contract, according to which the property must be modernized and operated for a certain period of time. State control carried out during the term of the contract for the transfer of property.
"Build - Own - Operate" (BOO - Build - Own - Operate):
The private sector finances, builds, owns and operates a facility or provides a service on a lifetime ownership or lease basis. State limits are established in the original agreement and through the functioning of a permanent regulatory body.
"Build - Own - Operate - Transfer" (BOOT - Build - Own - Operate - Transfer): The private sector entity obtains a franchise to finance, design, build and operate the facility (as well as to charge for use) for a specified period, after which ownership is returned to the state.
"Build - Operate - Transfer" (BOT - Build - Operate - Transfer):
The private sector designs, finances and builds the new facility under a long-term concession agreement and operates it for the duration of the agreement. At the expiration of the agreement, ownership returns to the public sector if that ownership has not already been transferred due to the completion of the project. In fact, this form covers the BOOT and BLOT models with the only difference - in the form of ownership of the object.
Specificity of PPP and its functions
PPP is not privatization. In PPP, responsibility for the production and provision of public services is assigned to the public sector, while in privatization responsibility is transferred to the private sector (the state can retain regulatory control of prices).
In a PPP, there is no change in ownership, but the public sector retains responsibility and accountability.
PPP is also different from the public procurement system. Procurement by the public sector involves the purchase, leasing, rental of goods or services by the state, regional or local authorities. Purchasing is used to purchase simple goods or needed services, as well as to use the opportunity to choose from a variety of suppliers the most effective to save costs.
PPP is something more long-term, costly and complex in terms of financial mechanisms. Often a PPP is given the right to operate at the expiration of the contract, the right to charge customers and determine key areas of responsibility, such as design, construction, financing, technical and commercial operation, maintenance, etc.
However, PPP is related to the traditional public and municipal procurement system in the sense that PPP suppliers are selected based on regulated public procurement procedures.
Public-private partnership (PPP) is founded to provide financing, planning, execution and operation of facilities, production and provision of public sector services. Its key features are:
a) Long-term provision and provision of services (sometimes up to 30 years);
b) Risk transfer to the private sector;
c) The variety of forms of long-term contracts concluded legal entities with state and municipal structures.
Benefits from PPP
Best value for money: A government's decision to launch a PPP is often based on an analysis that helps to understand that the PPP approach has greater returns to society, due in part to:
a) cost reduction;
b) improving service levels;
c) risk reduction.
Access to capital: PPPs provide the government with access to alternative private sources of capital, allowing important and urgent projects to be realized that might not otherwise be possible.
Confidence in results : Confidence in results increases in terms of both "timeliness" of projects (the private partner has a strong incentive to complete the project as soon as possible in order to lower its costs and start getting paid) and "on budget" projects (payment schedules are agreed before construction starts). , which serves as protection for society against cost overruns).
Off-balance sheet borrowing: Debt that is not shown on the balance sheet is referred to as "off-balance sheet financing". Off-balance sheet financing allows a country to borrow without changing its debt performance.
Innovation: The fusion of public and private sector motivations and skills, as well as competitive contracting, increase opportunities for innovative approaches to PPP-based public infrastructure projects.
While PPP projects are profitable, they also come with significant challenges. There is a risk that a hasty transfer of assets to a private partner without thorough public sector scrutiny could risk losing vital services to the general population. In fact, governments should be cautious when entering into any project, because without a preliminary study of the situation, what has already been done and what has not yet been done, there is a possibility of repeating the mistakes made earlier in other countries.
Foreign experience of PPP
The development of PPP in countries goes through certain stages
As can be seen from the table below, there is a tendency for countries to go through certain stages before PPP programs become fully operational. Most countries are at the first stage, when the number of real projects is still small. It is only in the third stage, which few countries are in, that the programs become meaningful. At this stage, countries develop the necessary institutions, such as PPP governance structures, capital markets, and technology and decision-making know-how, finally, sufficient attention can be paid to the implementation of more complex projects and financial schemes.
The issues of attracting private capital to invest in social and infrastructure projects traditionally financed from the state budget are in the focus of attention of practitioners and researchers of most developed countries peace. The topic has a long history. In France and Great Britain, the emergence of concession relationships dates back to the 16th century (in France, for example, it is believed that the first concession was granted in 1554 to the engineer Adam de Crapon for the construction and operation of the canal). This form of cooperation became widespread in Europe and the USA in the 19th century, and in the 1980s and 1990s, the issues of attracting business to the implementation of projects traditionally under the jurisdiction of the state again attracted attention around the world. Now in the UK alone, the cost of facilities built with publicly raised private capital over the past ten years has exceeded £24bn. When implementing government projects, in which private business is involved, the parties enter into partnerships, which are commonly called partnerships between the state and private business ( Public-Private Partnership-PPP).
In most cases, the initiative to establish partnerships with private business comes from the state and is caused by the inability of the state to provide the necessary volumes, concentration and efficient use of financial resources in order to maintain and innovate infrastructure of all types, while private business has large free cash resources, is inherently more efficient and, with proper control, is better able to solve these problems.
In world practice, various forms of partnership between the state and private business are used. The most popular of them, according to most experts, is the concession
Concessions in their pure form are most common in countries where partnership between the state and private business is based on a developed legislative framework. Among such countries, first of all, we must rank France, whose concession legislation is one of the most developed in the world and consists of a complex system of legal norms contained in a wide variety of regulations of the state and local levels, and which has a rich arbitrage practice. to countries with underdeveloped legislative framework Public-private partnerships include the United States, where there is virtually no specific concession legislation at the federal level. Some specific requirements for concessionaires are established by state and local government regulations, but in general, the relationship between the state and private business is governed by general civil law rules, which gives rise to a large number of forms of partnership that can be classified as concessions. Below are some forms of public-private partnerships in the United States that are used in infrastructure development.
· Long-term lease of infrastructure facilities that are in state or municipal ownership.
Leasing is intended to attract private investment for modernization, ensure more efficient operation of the infrastructure facility and should be in without fail justified by investing in the development of the facility. Renting is widely used in the utility infrastructure sector: water supply, sewerage and wastewater treatment.
· Reverse leasing.
In accordance with this scheme, the developer builds and puts into operation an object, which then leases it to the state (municipality). Leasing payments within a specified period must cover the cost of the object and bring profit, the rate of which is established in the contract. In essence, this scheme is an 'purchase by installments', except that, as the lease payments are made, the state (municipality) becomes the owner of the object, proportional to the intermediate amount of payments.
ü Transfer of the object into possession with the obligation to provide services.
When implementing this scheme, the infrastructure object is transferred to the ownership of a private person. The transfer of an object into possession is necessarily conditioned by the obligation to provide a certain range of services. In the USA, such a scheme is most often used in relation to enterprises for the processing and transportation of waste, objects of rescue services.
ü Sale with subsequent lease.
This scheme is based on the fact that the state (municipality) sells an infrastructure facility to a private company and immediately after the sale takes it on lease. Thus, the state gets the opportunity to raise funds for investment, in addition, both parties receive various benefits (including tax) in accordance with US law.
It should be noted that some of the above schemes apply only in the US and Canada. In Europe, similar forms of partnership may have their own characteristics and other names.
Examples of successful PPP projects implemented in the world.
| Governments should pay attention to sectors of the economy where PPP projects are particularly successful: Great Britain: schools, hospitals, prisons, defense facilities and roads. Canada: energy, transport, environmental protection, water resources, sewerage, recreational facilities, information technology, healthcare, education. Greece: transport projects - airport and roads. Ireland: roads and urban transport systems. Australia: transport and life support systems of cities. Netherlands: public housing and urban life support systems. Spain: toll roads and life support systems of cities. USA: projects that combine environmental protection, commercial interests and the livelihood of rural communities. | A model to start with One model that can be applied to the development of PPPs is the implementation of projects to rehabilitate and repair transport/urban systems. Under such a scheme, the government can use facilities such as transportation hubs such as railway stations and allow the private sector to profit from underutilized sites through the construction of shops, offices and recreation centers. That is, the private sector takes responsibility for the restoration of the facility and for its further operation. Such methods have been used in the transformation of small towns in Spain and the United States, in the modernization and reconstruction of obsolete railway stations with their further focus on transit traffic. |
1.5.1. Canada. Energy. An example of a waste management project.
The City of Vancouver, British Columbia, Canada has agreed to a joint agreement with the private sector to modernize industrial waste disposal (including the recovery of methane and carbon dioxide, which have a major impact on global climate change) for commercial use.
Under the established PPP structure, the private sector side took over the design, financing and construction of the thermal power plant. It uses landfill gas as an alternative energy source sold by a private partner for local industrial purposes. The heat released during the production of electricity, which is then converted into hot water, is sold by a private partner to a large greenhouse complex for heating purposes. The private company and the city (city administration) share in the income from the sale of electricity and heat.
Main participants. The City of Vancouver is a government partner in the project. The city owns the landfill site and manages the landfill, which is located on land owned by the city. The private partnership of the project is provided by the power generation company, which is established as its own subsidiary, developing, financing, constructing and managing combined heat and power projects. electrical energy, as well as specializing in the sale of electricity and heat.
BC Hydro, British Columbia Crown Corporation, under Energy and Natural Resources Canada, is the buyer and distributor of electricity generated through combined heat and power generation. Another private partner of the project is the agro-industrial sector, which buys hot water from the electricity generation process and uses it in greenhouse production.
Choice of partners. In 2001, the city announced a competition to find a partner to finance, develop, build, manage and efficiently use (in terms of profitability) a combined heat and power project. Although the city has already adopted a plan for the construction of the power grids, it was decided to hold a competition among private companies in order to discover and evaluate a wider range of design concepts, as well as to maximize the economic, environmental and social benefits for the city. Five proposals from private companies were submitted to the competition, each of which relied on completely different approaches to waste disposal and disposal. The applications accepted for consideration included proposals for using the gas to dry seashell waste to produce fertilizer, improve the quality of gas for further pipeline transportation, and also for direct use in the production of cement after the process of gas purification from impurities.
As a result of a thorough and structured bid evaluation and negotiation process, a 20-year PPP contract was signed and approved by the City Council in February 2002 based on the highest rated bid.
According to the approved structure of the PPP project, the city continues to manage waste disposal (garbage dump). Construction 2.9 km. The pipeline was carried out by the private side of the project to collect and transfer gas from the waste disposal site to the nearby agricultural complex by building a power plant between them for combined production of electric and thermal energy.
A competitively selected private company selected by the City has designed, financed and constructed a combined heat and power plant that uses landfill gas as a feedstock to generate electricity (7.4 MW per year) that is supplied from 4 to 5 thousand residential buildings.
The sale of electricity for utility needs is carried out by BC Hydro, the private partner of the project. The construction of the power plant was completed in September 2003, in November of the same year the facility was fully commissioned and began to operate at full capacity. (The initial load was 5.55 MW/yr and increased to 7.4 MW/yr after the fourth generator came online at the end of 2004).
The waste heat released from the power generation process, which is then converted into hot water, is sold by a private partner to a large 32-acre tomato greenhouse complex for heating purposes. Using landfill gases in this way, more than recycling them by incineration, contributes to the reduction of carbon dioxide emissions into the atmosphere, and can be compared in quantitative terms to the removal of 6,000 cars from the roads and highways of Canada.
Distribution of risks. The City of Vancouver, through the city government, does not provide any payments to the private partners involved in the project, but guarantees the supply of landfill gases for 20 years under the contract. The city thus accepts the risk of limiting the supply of the project, but at the same time minimizes this risk by retaining responsibility for managing the gas collection system.
The total investment in the project by private partners amounted to about 10 million dollars. The private partners of the project signed an agreement on the purchase of electricity with BC Hydro and a twenty-year agreement on the sale of thermal energy with the owner of the greenhouse complex. Proceeds from the sale of electricity go to the private partner minus 10% payments to the city. The city's current operating costs for the extraction and production of landfill gases are about $250,000 per year, and payments received from the sale of electricity and hot water by the private partner are about $400,000 per year.
BENEFITS
The private sector has the knowledge and technology, often lacking in the public sector, to turn waste into energy at commercial basis. Socio-economic benefits a) The project will help create additional jobs (about 300). b) Vancouver will receive up to $300,000 per annum from the project to help recover ongoing operating costs. c) The PPP project has transformed a costly environmental program into a more effective program and created an additional source of income for the city.
Benefits for the environment a) The project contributes to the reduction of greenhouse gas emissions by approximately 200,000 tons per year, which corresponds to the carbon dioxide emissions of approximately 40,000 vehicles. b) The project contributes to the production of about 500,000 GJ of energy per year, which corresponds to the electricity needs of 3,000 to 4,000 households. c) The project will help reduce CanAgro's annual natural gas use by almost 20%.
Efficiency. The PPP project is a model effective use for commercial purposes such products of the process of natural decomposition of organic waste, such as methane, while providing economic and environmental benefits to society. Possibility of applying the model in other countries
Israel Highway Project
Highway 6, also known as the Trans-Israel Highway, runs 300 kilometers through eastern Israel from Beersheba to the Galilee in the north. The central section of the highway, named after Yitzhak Rabin, stretches for 86 km (from Hadera to Gedera), connecting the northern and southern regions of the country. This section of the road was built by the Derech Eretz Group and equipped with a modern electronic toll system.
Highway No. 6 is the main highway connecting the central, northern and southern regions of the country and serves as an alternative to the existing Highways No. 4 (Geha Road) and No. 2 (the Coastal Road). Highway 6 is also a central junction, "unloading" heavy traffic in the central region of the country and ensuring minimal pollution in the Tel Aviv area.
The Highway 6 project is the largest road infrastructure development project in the history of the state, its total cost is 1.3 billion dollars.
Main contributors The private sector is represented by the Derech Eretz Group, which has entered into an agreement with the state for the construction and full management of the road section. The project's private sector subcontractors are Africa-Israel, CHIC-Canadian Highways and Housing and Construction Limited. Private sector firms such as Raytheon and Transdyn provide the equipment and management of electronic access systems. The combination of the two companies has enabled the integration of Transdyn's traffic management system and Raytheon's automated fare collection system, creating not only a technological breakthrough in the field, but also an innovative public-private partnership initiative.
Upon completion of construction, the motorway will have 14 interchanges, 94 bridges and 50 bypass channels. Also, the motorway will be equipped with two additional 500-meter tunnels in the Hadid area. 100 km of auxiliary country roads and 44 km of bypass roads will be integrated into the motorway project.
The highway has a control and management center located in the interchange area of the city of Nachshonim. The project will employ 1,700 production and about 10,000 auxiliary workers.
The cost of paid services The pricing scheme for Highway 6 is based on the number of route segments the driver traveled in one trip. Each segment is defined by the distance between two junctions, and as of March 2010, the fare for three segments of the road was 17.40 NIS, for four segments 21.94 and for five or more segments 24.84. The fare on the motorway is differentiated depending on the type of vehicle and is different for motorcycle and truck drivers. The indicated prices apply to drivers who are registered in the system of motorway No. 6 and who have installed a special transponder (vehicle registration sensor) before using the services of the toll motorway. If the vehicle is not equipped with a transponder, its identification is carried out by scanning the license plate. If the license plate is not included in the database of the highway system, the invoice for using the highway services is sent to the name of the owner of the vehicle, which is in the database of the Israeli Ministry of Transportation. The cost of toll motorway services for such users is 40-80 percent higher than for registered users with transponders.
Highway financing Debt capital The Highway 6 Agreement is one of the largest and second largest financial agreement project in Israel. The contract, based on the BOT (build-operate-transfer) model, was concluded in October 1999 and assumed 90% debt and 10% equity. The motorway was completed in less than five years. In May 2004, the facility was commissioned and opened for use. The loan was provided by Hapoalim Bank in the form of a syndicated loan in New Israeli Shekels equivalent to US$850 million and Tyco Group in the form of promissory notes in the amount of US$250 million. The syndicated loan in New Israeli Shekels consists of two tranches, including 6.5% per annum for a period of 28 years, and repayment of 29% of the principal loan after 20-21 years. The syndicated loan was made national banks and pension fund Israel. The euronote issue program is conditioned by BBB Standard & Poor's rating. Before concluding a transaction, an adjustment to the fixed cost should be made in connection with possible adverse conditions in the current market. The term of the loan is 28 years.
Share of own funds 10% of the equity provided by the project sponsors, taking into account the current cost of construction, was contributed at the conclusion of a transaction in the amount of $ 120 million of an interim short-term loan from the company Derek Eretz in the form of sponsored letters of credit. Income from letters of credit was used to pay for a bridging loan upon completion of the construction phase. As a result of compliance with various requirements and a 10-year period of restrictions imposed on dividends, the equity capital of the companies participating in the project was fully returned. In addition, project participants have committed to supporting Derek Eretz under a concession agreement.
BENEFITS Added value and responsibility of the private sector In March 2006, Derek Eretz's revenues were NIS 89 million, the number of registered motorway toll users reached 500,000, the number of individual motorway service users reached 1.36 million, the number of commuter route users increased to 21 million,
This is the most common type of cooperation between the non-state sector and the authorities.
1. The possibility of implementing in the shortest possible time socially significant projects that are unattractive for traditional forms of private financing;
2. Attraction of significant non-state funds for investments in objects of state importance;
3. A significant reduction in public spending on the maintenance and operation of infrastructure facilities;
4. Sharing risks between the state and private investors;
5. Attraction of modern highly efficient technologies in the development of infrastructure;
6. Improving the investment climate of the country and the region.
1. Possibility of access to the traditionally public sectors of the economy;
2. Opportunity to receive direct state support and participation;
3. Possibility of long-term placement of investments under suitable guarantees;
4. Possibility to choose the most profitable project;
5. Use of advanced foreign experience.
target programs. Program – it is a form of economic activity that is used to regulate and manage the strategy of economic, social, scientific and technological development.
The program is a set of interrelated activities, provided with resources and allowing to realize the intended goals in the possible short time and at a relatively lower cost. For example, the Medium-Term Socio-Economic Development Program of the Russian Federation, implemented from 2006 to 2008, provided for the implementation of priority national projects in the field of healthcare, education, housing, and the development of the agro-industrial complex.
State programming arose for the first time in Russia at the beginning of the 20th century. The first promising program was GOELRO - the state plan for electrification. Subsequently, a number of defense, industrial, and territorial programs were developed; they were included in five-year plans.
Stages of target programs development:
1. Selecting a program object. At the same time, the object should represent a strategic priority and provide a turning point in the trajectory of the industry, sphere of activity. It is desirable to form packages of targeted programs that complement each other and enhance the program effect.
2. Building a tree of "goals". Goal tree - uh then the target model, which is obtained by determining the general goal of the program and its sequential decomposition into the goals of the first, second and third levels. At the same time, higher-level goals are always broader in nature and designed for a sufficiently long period. Lower-level goals act as means to achieve higher-level goals.
Goal Requirements:
Goals should be challenging but achievable.
- Goals must be specific. This means that the goal should clearly fix what needs to be obtained as a result of the activity, in what time frame and who should do it;
- goals should be measurable, that is, the goal statement should be such that it can be quantified or otherwise objectively assess whether the goal has been achieved;
- goals must be compatible with each other.
3. Justification of the system of measuresnecessary to achieve the goals of the program,identification of those responsible for their implementation.
4. Structuring the program, i.e. definition of subroutines, blocks of projects and individual projects.
Project – it is a set of planned activities designed to achieve specific goals with allocated resources for a certain period of time.
The project is the main structural unit of the program and must provide a certain program result. Projects, unlike programs, are focused on a certain aspect of the life and development of a region, industry or organization, have a fixed cost, a schedule for implementation, include technical and financial parameters, that is, they are distinguished by a high level of specific study.
In the process of program structuring, a set of priority projects is determined and their implementation is distributed over the years.
5. Resource estimationnecessary for the implementation of projects, subprograms, the program as a whole, possible sources of financing and conditions for receiving funds. Lack of resources may require clarification of program activities and objectives.
6. Carrying out marketing research, determining the volume of output, the payback period for projects and the program as a whole. Obviously unprofitable projects and programs are excluded.
7. Creation of targeted organizational structures for the implementation of the program, staff training (project managers, programs). Such structures can be federal state unitary enterprises, consortiums, holdings, financial and industrial groups. For each subprogram and project, a customer, a supervisor (general designer) and a director are determined.
8. Control and acceptance of work. Each program task and the program as a whole are evaluated by a set of quantitative and qualitative indicators. Control is carried out according to the stages of the program in order to make timely adjustments to it.
Advantages of State programs, which determines their application:
- programs ensure the concentration of resources on the most promising and effective areas of development;
– an additional systemic effect is provided from the concentration of the best resources in a narrow breakthrough field;
- programs combine self-regulation of a market economy with state support in solving strategic problems of innovation development, solving major social and economic problems.
Due to this, the programs help to overcome crises, increase the efficiency, flexibility and competitiveness of the economy, provide access to a new, higher level.
Usage issues government programs:
- low efficiency of programs due to shortcomings in the formation and implementation;
- the lack of clear formulations of the expected results of the use of budgetary funds;
- insufficiently developed mechanisms for monitoring implementation;
– Lack of legal security for the participation of companies in co-financing projects.
The impact of the crisis has led to a reduction in budget investments, most of the programs do not involve the creation of facilities that bring profit in the process of operation, so business has lost interest in them.
Government contracts. State contracts mean placing orders at enterprises for the supply of goods, performance of work, provision of services for state and municipal needs. In this case, the suppliers of goods may be granted tax incentives, targeted grants, subsidies, subventions, loans on preferential terms.
Large investment projects were financed under this scheme: the Blue Stream project under the Black Sea, the Sakhalin 2 project, and the Sever TEK project for oil and gas production in the Komi Republic. Mega-projects in the scientific sphere are being carried out according to the same scheme, for example, a project to equip the Russian industry with new-generation synthetic crystals. The lead executor was the Institute of Crystallography of the Russian Academy of Sciences, and the co-executors were organizations of various profiles and forms of ownership, including industrial enterprises. The project included research and development, design and implementation of the results in production.
lease relations.
Leasing. Leasing provides for the transfer by the state to the private sector of state property: buildings, structures, production equipment, vehicles, engineering complexes. As a payment for the transferred property, the state collects rent from private companies.
concession agreements. The term "concession" means in Latin "assignment", approval, permission. Currently, a concession is a contract concluded by the state with a private entrepreneur, usually a foreign company, for the operation of industrial enterprises or land plots. Concessions were actively used in our country during the NEP period to attract foreign investment.
Currently, the legal basis for concluding concession agreements is the Federal Law adopted in 2005.
According to the law, Concession – this is a system of relations between the state (grantor) and a private legal or natural person (concessionaire), arising as a result of the grantor granting the concessionaire the rights to use state property under an agreement for a fee and on a repayable basis, as well as the rights to carry out activities that constitute the exclusive monopoly of the state .
Article placement date: 04/02/2016
From an economic point of view, public-private partnership (hereinafter referred to as PPP) is the result of the development and diversification of traditional mechanisms for interaction between government and business in order to finance, develop, plan, build and operate facilities, including through private investment.
One of the reasons for attracting business to the public sector is the lack of necessary financial resources and experience, while certain industries cannot be transferred to business ownership due to the fact that they are of strategic importance for ensuring the security of the state. In this case, only a part of the funds for the implementation of the project can be allocated from the budget.
The concept of "public-private partnership" does not have a single generally accepted definition. It can be viewed both in a broad sense, when a system of relations between the state and business is implied, and in a narrow sense - as specific projects implemented jointly by subjects of the public and private sectors.
According to paragraph 1 of part 1 of Art. 3 of the Federal Law of July 13, 2015 N 224-FZ "On Public-Private Partnership, Municipal-Private Partnership in the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation" PPP is understood as "legally formalized for a certain period and based on the pooling of resources, distribution of risks, cooperation between a public partner, on the one hand, and a private partner, on the other hand, which is carried out on the basis of a public-private partnership agreement, an agreement on municipal-private partnership, concluded in accordance with this Federal Law in order to attract private investment into the economy ensuring the availability of goods, works, services and improving their quality by public authorities and local governments" .
In Russia, the definition of the concept of "public-private partnership" was normatively established only in 2015, but even before that it was widely used in various regulations: in the Budget Code of the Russian Federation, the Concept for the Long-Term Socio-Economic Development of the Russian Federation for the period up to 2020 (approved by Decree of the Government of the Russian Federation of November 17, 2008 N 1662-r), in a number of state programs. At the same time, these documents refer only to the implementation of activities based on the principles of PPP, participation in the implementation of PPP projects, etc.
Analysis of the context of the use of the term "public-private partnership" shows that in the very general view PPP refers to any form of interaction between the state and private business. This is a kind of complex phenomenon that has an economic, social and, to a large extent, political character.
One of the key issues in the application of PPP is the question of the relationship between the role of the state and business, which, in turn, depends on the form of PPP.
Specific forms of partnership between the state and private business are very different from each other in terms of the methods used and in terms of legal regime. Nevertheless, they are perceived as links of one system, since they are subordinate to a number of general principles that aim them at meeting the public interest.
PPP forms can be very diverse. In some cases, the authorities will organize a joint venture with a business or sign a contract with a private company to carry out the project. Sometimes they create special fiscal, tax, customs and regulatory regimes for PPP projects, which involves changes to laws and regulations.
All forms of PPP can be used to accelerate the implementation of high priority projects, provide specialized facility management in accordance with long-term development programs, facilitate the transfer of new technologies, pool resources and organize financing schemes, apply and encourage private business practices.
Among experts, there is no consensus on what forms of interaction between government and business should be classified as PPP. The approaches to classification in economic and political science sources also differ.
A broad interpretation of this term means under PPP the interaction of the state and private economic entities not only in the economic, but also in the political, scientific and cultural spheres. At the same time, the choice of the form of partnership depends, first of all, on economic efficiency project implementation.
In a broad sense, from an economic point of view, PPP can include any form of mutually beneficial interaction between the state and business, including government contracts, agreements on the transfer of ownership and use rights, concession agreements, production sharing agreements.
As part of the implementation of cultural policy, the transfer of objects to trust management can be applied as forms of PPP historical heritage for the purpose of their restoration at the expense of private capital and their subsequent exploitation, holding cultural events, protecting copyrights, creating electronic versions of libraries, museums, archives.
In the scientific field, such forms of PPP may be applicable, such as the creation off-budget funds support for scientific activities in the field innovation activities- joint implementation of large projects by the state and business, creation of innovative clusters, technology parks, business centers.
In the field of political activity, such forms of PPP are possible as holding joint meetings government agencies authorities and associations of entrepreneurs of a particular sector of the economy, the implementation of an independent anti-corruption expertise of regulatory legal acts and drafts of such acts, support for manufacturers of export products.
From a legal point of view, PPP forms can be divided into corporate, which are based on the creation of a project company with the participation of the state and business, and contractual, when the project is implemented on the basis of an agreement.
From the point of view of the goals of project implementation, the whole variety of PPP types can be divided into organizational models, financing models and cooperation models.
An example of an organizational model of a PPP is a concession agreement. When implementing organizational partnership models, cooperation is carried out through the redistribution of individual functions and obligations between partners, involving third parties in the project, while under such agreements there is no redistribution of property rights.
Financing models are understood as project financing, agreements providing for the transfer of ownership and use of property (rent, leasing, trust management).
The models of cooperation include any form of combining the efforts of partners in order to implement the project, including the organization of holding structures for the purpose of creating and subsequent operation of infrastructure facilities.
In world practice, a classification of PPP forms has been adopted depending on the types of property relations and the degree of dependence on the state in matters of financing and risk sharing. PPP forms are distinguished on the basis of:
Contracts concluded between the state (local government) and business for the implementation of certain types of activities necessary for society;
lease relations;
Concession agreements under which an object of state (municipal) property is transferred for a certain period of time for use and ownership by a business that undertakes to reconstruct or modernize this object at its own expense and operate it;
Production sharing agreements, under which the private partner carries out the extraction of minerals, while the procedure for sharing production is regulated by the agreement;
Joint ventures in the form of joint-stock companies or joint ventures with equity participation.
Let's take a closer look at each form of PPP.
The term "concession" economic category has many interpretations and can be applied to both specific objects of property and the provision of services. Concession agreements are complex multifunctional agreements, within the framework of which the rules for interaction between private and public partners are established.
In accordance with Part 1 of Art. 3 of the Federal Law of July 21, 2005 N 115-FZ "On Concession Agreements" "under a concession agreement, one party (the concessionaire) undertakes at its own expense to create and (or) reconstruct the property specified by this agreement (not movable property or immovable property and movable property, technologically interconnected and intended for carrying out the activities provided for by the concession agreement), the ownership of which belongs or will belong to the other party (grantor), to carry out activities using (exploitation) of the object of the concession agreement, and the concessor undertakes grant the concessionaire, for the period established by this agreement, the rights of possession and use of the object of the concession agreement for the implementation of the specified activity" .
Under a concession agreement, the public partner (grantor) grants the private partner the right to own and use an existing facility or a newly constructed real estate facility, while the ownership of the said facility already belongs or will belong to the public partner after its construction by the private partner. The private partner, in turn, retains the right to improve the facility during the term of the concession agreement. At the same time, a prerequisite for the concession is investing in a private capital project, so it can be confidently stated that under the concession agreement, operating and investment risks borne by the private partner (concessionaire).
Concessions play a special role in infrastructure sectors traditionally owned by the state and necessary for the functioning of the economy. Such industries include the electric power industry, railway transport, road transport, water and air transport (ports, airports), main gas transportation, public utilities etc.
Of all the forms of PPP, concessions are currently the most actively used. First, they are of a long-term nature, which allows both sides of the interaction to carry out strategic planning of their activities. Secondly, in concessions, the private sector has complete freedom in making managerial decisions. Thirdly, the state, as a party to the agreement, has enough leverage to influence the concessionaire in the event that he violates the terms of the concession or the law, as well as when it becomes necessary to protect public interests within the framework of concessions.
AT foreign countries several types of concessions are used, which differ depending on the amount of rights transferred to the concessionaire, the presence of a construction component, schemes and terms for returning the facility to the state, and other factors.
In Russia, as in most countries of the world using this form PPP, the concession agreement has the status of a regulatory legal act. For example, a concession agreement concluded at the federal level will have the status of a resolution or order of the Government of the Russian Federation.
However, concessions have inherent disadvantages that are not typical for other forms of PPP. Thus, concession agreements are concluded for a long period and do not provide for all options development of events. This kind of inflexibility in relationships between partners leads to significant risks. Another disadvantage of concession agreements is that infrastructure facilities have long payback periods and return on investment. Difficulties in conducting long-term financial and economic calculations for such facilities cause inaccuracies and errors, which leads to additional risks of non-fulfillment of concession conditions.
Another form of PPP, devoid of some of the disadvantages of the concession agreement, are contracts between government and business for the execution of works, management, provision of services, supply of products and provision of technical assistance.
The World Bank understands the management contract as follows: a private company receives state-owned property for a certain period of time. Investments are carried out by the state.
Under a property management contract, the state pays for the services of the private partner and bears operational risks, while, for example, under a lease agreement, the state receives rent from the tenant, and the operational risk falls on the private structure.
Contracts often take the form of work contracts. A characteristic feature of state contracts is their administrative nature. At the same time, just as when concluding a concession agreement, the ownership of the subject of contractual relations is not transferred by the state to a private entrepreneur.
In Russia, contractual relations between government authorities and the private sector are regulated by the Civil Code of the Russian Federation, the Budget Code of the Russian Federation, Federal Law No. 44-FZ of 05.04.2013 "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law on the contract system), which directly indicates the contractual nature of this form of PPP, and other laws and regulations.
The vast majority of contracts for the purchase of goods and services for state and municipal needs do not apply to PPP, since such contracts do not involve co-financing of the project by the private party to the contract; the activity of the private partner under the contract is carried out at the expense of budgetary funds and is fully regulated by the terms of the contract agreement and estimates. Thus, contracts for the purchase of goods and services for state and municipal needs are not characterized by complex schemes for the distribution, redistribution of risks between the parties, and their insurance. In addition, such a contract or an annex to it regulates many characteristics of the activities of a private partner that are absent in PPP contracts: lists of materials and equipment used and purchased, organization of the workflow, the procedure for maintaining a work log, holding operational meetings, etc.
However, the variety of state and municipal contracts for the purchase of goods and services, the possibility of combining various types of such contracts, in particular, with the involvement of private business funds for their implementation on co-financing terms, sometimes blur the line between them and PPP.
PPP relations within the framework of a state or municipal contract can only arise if extra-budgetary sources of financing are attracted. At the same time, the legislation on the procurement of goods and services is structured in such a way that it does not involve private co-financing and, accordingly, does not contain regulation of methods for attracting business funds for the implementation of contracts for the supply of goods, performance of work, provision of services for state or municipal needs, as well as mechanisms to return such investments to the private sector. When preparing a contract, all kinds of conditions are stipulated from the formalization of the time, volume and structural framework of the project to financial obligations, quality indicators of the project, a mechanism for sharing risks and resolving disputes.
Guarantees of project profitability for business participants are one of the most critical points of the contract. Depending on the guarantees prescribed in the contract, the circle of potential institutional investors is determined. Schemes and conditions of management and control prescribed in the contract allow the parties to respond in a timely manner to the excess estimated cost, exit from the schedule of construction, installation and other works, avoid litigation. Description of standards, norms and regulations, penalties for their non-compliance and encouragement (reward) for improving service, environmental activities - important component contract.
Thus, in the development of a contract, the state regulates both general and specific issues related to the structure, conditions and program of such a partnership with business.
After the conclusion of the contract, the state monitors the activities of the private company. Monitoring has a fairly strict, multilateral character, since a third party, the consumer, appears during the execution of the contract. At the same time, the main feature of the contract (and, implicitly, also the difference from the concession) is that the PPP contract system operates within the framework of the civil law field, and the concession system also operates in the context of public law legislation. In addition, although in some countries no particular distinction is made between a contract and a concession, under the legal norms of developed countries, a concession is a "global contract". Yes, in European Union concession acts as a kind of administrative contract in the field of infrastructure development. In accordance with such a contract, the public authority grants the concessionaire company certain rights to build, modernize, reconstruct, and operate the facility for a certain period.
In other PPP schemes, other than a contract, the business has more weight in planning, financing, public property management, and the risks of the project are transferred to the participant who is best able to manage them. At the same time, in the context of the Law on the Contract System, the involvement of business funds in the framework of contractual relations with the state is not provided, although the Civil Code of the Russian Federation allows concluding contracts between business and government, for example, within the framework of investment projects.
Currently, the contract form of partnership between the state and business is widespread in the world and in Russia and is regarded by any private company as an attractive and fairly prestigious business, since such a contract guarantees not only a place in a particular market, but also income. However, due to the above features of Russian legislation, most contractual agreements for the supply of goods, works, services cannot be qualified as PPPs.
Another independent form of PPP, closer to a concession than a contract, is production sharing agreement(hereinafter referred to as PSA). According to Russian legislation, a PSA is an agreement according to which the Russian Federation grants an investor - a business entity - on a reimbursable basis and for a certain period of time, exclusive rights to prospecting, exploration, production of mineral raw materials in the subsoil area specified in the agreement, and to maintain related with these rights of work, and the investor undertakes to carry out the said works at his own expense and at his own risk. Manufactured products are subject to division between the state and the investor in accordance with an agreement that should provide for the conditions and procedure for such a division.
Under the PSA, the state partner owns only a part of the output, while under the concession, the concessionaire owns all of the output.
Conventionally, all PSAs, depending on the distribution of risks, can be divided into two types: with risk and without risk. When concluding a contract with a risk, the private partner, at his own risk, explores the territory determined by the state partner and, in the event of a discovery of a deposit, compensates for his expenses for its exploration. Otherwise, the private partner bears losses as a result of the survey work.
In the case of a risk-free contract, which is essentially a contract, the contract defines the deposit, types of work, deadlines for their completion, and the procedure for reimbursing costs (mainly through the sale of the products received).
Lease relations in the field of PPP when leasing state and municipal property, they are regulated by the Civil Code of the Russian Federation, Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" and other regulatory legal acts. According to Art. 606 of the Civil Code of the Russian Federation, under a lease (property lease) agreement, the lessor (landlord) undertakes to provide the tenant (tenant) with property for a fee for temporary possession and use or for temporary use.
In accordance with civil law, the concept of lease relations is that the modernization and development of leased facilities are carried out by their owner and are not transferred to the tenant. The tenant is responsible for the proper operation of the facility. At the same time, improvements to the property, which are separable from the object of the contract, carried out by the tenant shall be the property of the tenant. If the improvements made by the tenant are inseparable from the property that is the object of the contract, the tenant is entitled to compensation by the public authority for the cost of such improvements.
The given characteristics of the contracts indicate that, in contrast to the lease, when concluding a concession agreement Self employed and the state are in a more complex and multifaceted relationship. Differences between lease and concession agreements, to one degree or another, relate to almost all the characteristics of these agreements.
The main difference between these two forms of transfer of rights is the scope of their application. The concession has a limited use and applies only to a specific range of objects defined by law. Any legal and individuals and these relations are governed by the norms of civil law. For example, when concluding one of the types of lease agreements - a leasing agreement - the lessee has the right to redeem the property transferred to him under the agreement, while under the concession agreement, the transfer of ownership to the concessionaire does not occur, except in cases where the object of the concession agreement at the end of the term of the agreement is included in the list of objects of privatization. At the same time, concession agreements in most cases involve a lease, for example land plots, but are not reduced to it.
Common to lease agreements and concession agreements is the return of the object of the agreement, as well as the fact that the property can be withdrawn from the lessee or concessionaire by its owner at any time during the term of the agreement in the event that the private party fails to fulfill its obligations under the agreement or in accordance with accepted political decisions.
In practice, mixed forms of PPPs are often encountered, combining individual elements of the types of contracts described above. They provide more opportunities to combine development, financing, management, and other operations with the subject of the contract.
Participation in the capital of a state-owned enterprise by a private investor may be a corporatization or the creation mixed enterprise.
In the countries of the Anglo-Saxon legal system (USA, Great Britain, Australia, etc.), the process of corporatization is defined as the transformation of state-owned enterprises into joint-stock companies. Corporatization means a change in the organization of management. It can be characterized as a form of enterprise reorganization that retains direct state influence in terms of ownership and management. As a rule, the goal of corporatization is to increase the efficiency and improve the management of such enterprises in market conditions through organizational and legal transformations.
In the Russian Federation, all forms of PPP are currently used to varying degrees, which is primarily due to the peculiarities of the legislative regulation of individual forms of PPP. Those forms of PPP, the legislation for which has already been developed and continues to be improved in order to establish additional guarantees for the protection of the interests of the parties in the course of the accumulation of resources belonging to them during the implementation of projects, are the most attractive for both private partners and the state. These forms of PPPs include concessions, PSAs and, more recently, PPP agreements.
Other forms of cooperation between the state and business (rent, contractual relations), taking into account the peculiarities of Russian legislation, in most cases within the framework of individual projects cannot be classified as PPP.
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