From Concession to PPP
July 13, 2015 was adopted the Federal law from 13.07.2015 No. 224-FZ "On state-private partnership, municipal-private partnership in the Russian Federation and amendments to certain legislative acts of the Russian Federation". Before the adoption of the law on the Federal level was mainly concession agreements and agreements with the participation of GC "Avtodor" in other forms. With regard to regional practices, it all depended on political will in the region, because regional PPP laws have been passed in the absolute majority of constituent entities of the Russian Federation. Common was the practice of retraining prisoners PPP agreements in state contracts. Therefore, some subjects of the Russian Federation feared to enter into PPP agreements, preferring a contract and concession.
For many years all the infrastructure community of the country was waiting for the adoption of the PPP law, writing off all conceivable reasons for the lack of development of PPP instruments in his absence.
Now the law was passed. And yet the number of dissatisfied has not diminished. Immediately there were those who said that now in Russia is possible to implement a PPP in the form of concession agreements, and all other forms and ideas are doomed to extinction, because bad adopted the law on PPP.
It turns out, it would be better not trying? Unquestionably, no. PPP-law — an important step in the development of public-private partnership in the country. And in General, it is designed taking into account the views of many participants in PPPs.
High expectations
What is expected from the PPP law? The answer to this question is directly connected with the fact of whose interest it is. At least there were several categories of "beneficiaries" of the PPP law, each with their own expectations. Here are some of them.
The Russian Federation is pursued:
market development for PPP projects;
establishing a unified regulatory framework for PPP for the entire country;
to increase the interest of investors and funders in PPP.
The regions and municipalities was calculated as:
The PPP act will define the powers of the RF subjects and municipalities in the field of PPP, in particular, will give them opportunities for individual tender procedures (no public procurement) to win contests and to enter into a PPP agreement;
The PPP act will define the concept of "public-private partnership";
The PPP law will describe the possible forms of PPP;
in the PPP law will provide mechanisms to financing (support) of the regional projects of the Russian Federation and municipal projects by subjects of the Russian Federation;
PPP-law describe the rights and responsibilities of public and private partners (in other words, determine what provisions should include the PPP agreement); and, finally,
The PPP law will allow multiple public entities joint competitions and to enter into a joint agreement.
The initiators of PPP projects expected:
from PPP law, it will be understood, how (by what procedure) the investor can initiate a PPP project;
the investor will be able in some cases to enter into a PPP agreement without a competition;
the rules of concluding PPP agreements will be clear, including to banks that had refused to Finance PPP projects according to the regional legislation;
The PPP law will allow the creation of objects of the agreement in a private property;
guarantees to investors will be strengthened, including in case of change of legislation;
the list of objects in respect of which it is possible to conclude the PPP agreement will be greater than under a concession. Ideally it would be open;
the common understanding of the PPP don't have to tell authorities at various levels, what is PPP.
The banks expected when making law that:
in the PPP law will be secured guarantees in respect of the financing institutions in the amount of not less than the concession law;
The PPP law will create a single terminology database of PPP, determine the forms of PPP, thereby improving a legal framework for the conclusion of PPP agreements;
at the same time, the PPP-law will leave the flexibility in the structuring of PPP projects;
PPP law in the aggregate, on the one hand, a framework, on the other hand, are quite specific, and will allow you to structure the projects are so clear and logical that banks can offer better financing terms (to the question about the notorious bankability).
Obviously, with so many different interested parties (given a few basic categories) and the differences in their interests, the PPP-law in principle can not justify all expectations