Projects Insights

12 March 2009

Debt Funding Competitions: A valuable tool for PPP projects?

By David Lester and Christopher Keane.

Key Points:
A Debt Funding Competition may prove to be a very valuable tool and part of the solution to the logjam that is starting to clog the PPP pipeline, but it presents its own challenges.

As the credit crunch has intensified and developed into the global financial crisis, the strain on all sectors of the economy that rely on private finance has increased. Procurement of public infrastructure using Public Private Partnerships (PPPs) has certainly not been immune from this. PPPs typically require significant amounts of private finance which is increasingly becoming harder to access.

The squeeze is further exacerbated when, as has traditionally been the case, governments using PPPs have required each bidder to underwrite the debt finance required at the time of lodgement of their bid. This means that two or even three times the total amount of debt required for the project needs to be sourced and committed. In this illiquid market can a Preferred Bidder Debt Funding Competition (DFC) help to get PPP projects across the line?

What is a DFC?

A DFC is an initiative that has been employed in the UK a number of times since 2000 and has been championed by the UK HM Treasury as a mechanism for government to induce competition and thereby obtain more favourable debt funding terms.

When using a DFC, government selects a preferred bidder and that preferred bidder, in consultation with government, then goes to the debt market seeking the best price for the debt funding for the project.

The objective for the UK government was to increase the competitiveness of the lending market with a view to reducing the overall cost of the project.[1] We are now in a very different market where the primary focus of the DFC would be to source sufficient debt funders willing to lend to the project.

How could a DFC work?

In electing to use a DFC, government might either:

  • follow the traditional approach and require in its request for tender that underwritten debt funding be provided by each bidder as an element of its proposal, but also reserve the right to run a DFC;
  • not require fully underwritten debt funding to be provided as part of the proposal provided by each bidder, but oblige bids to be accompanied by support, perhaps in the form of some underwritten debt funding, from one or more lenders; or
  • not require any underwritten debt funding to be provided as part of the proposal provided by each bidder.

The first approach has been adopted in the UK and gives government the flexibility to choose a DFC if it considers the financing terms uncompetitive or that the market has changed. The second and third approaches only require full debt to be raised by the preferred bidder, avoiding duplication of effort at bid stage by lenders and bidders and reducing the overall amount of debt required to be raised. Requiring bids to be supported by one or more lenders is particularly important for projects that are considered to be either novel, large or complex, to give government comfort that the proposed funding terms are achievable.

Depending on which approach is adopted, government may need to be prepared to select a preferred bidder based on proposals absent fully underwritten debt. In such circumstances it might consider providing a set of standard debt funding assumptions for each bidder to use in the development of its proposal or alternatively normalising any aggressive terms put forward by bidders when it undertakes its evaluation of bids.

Following selection of the preferred bidder, an information package on the project prepared by that bidder could be sent out to the agreed list of potential lenders so that they can then make their bids to provide the debt funding for the project. These bids could then be evaluated by the preferred bidder, focusing on both quantitative elements (ie. financing terms, including interest rates, fees, lending margins, etc) and qualitative elements (ie. deliverability of the bid and its impact on commercial terms that have already been agreed between government and the preferred bidder).[2]

While the selection of the successful lender/s will be made by the preferred bidder, government should supervise the evaluation process and the selection will ultimately be subject to ratification by government.

What are the potential benefits of a DFC?

Notwithstanding that the DFC was introduced into the UK to promote transparency and to capture the best value debt finance, in this illiquid market the primary benefit of using the DFC model is to increase the likelihood of raising the debt finance needed to fund the project.

Other potential benefits of running a DFC include:

  • reducing bid costs for unsuccessful bidders if underwritten debt funding is not required;
  • reducing the likelihood of significant amendments to project documents being requested by lenders; and
  • ensuring that lenders are only competing for a "real deal", as the preferred bidder has already been selected.

What are the potential limitations of a DFC?

The primary limitation of running a DFC is the lack of certainty, particularly in an illiquid and volatile market such as this. Government takes the risk that the preferred bidder is unable to procure debt funding either in an amount sufficient to fund the project, or on the terms and cost assumed in the preferred bidder's proposal.

Other potential limitations of running a DFC include:

  • the potential for delay to the overall procurement timetable given that the DFC requires another process to be undertaken and it is novel in the Australian market
  • transactions costs for both government and bidders may increase as a result of a more complex and longer procurement process; and
  • not involving senior lenders from the outset reduces innovation that might otherwise be contributed by the senior lenders in the development of bids and risks the deal with the preferred bidder not being considered to be "bankable".

Is a DFC a valuable tool for PPP projects?

In the current market a DFC may prove to be a very valuable tool and part of the solution to the logjam that is starting to clog the PPP pipeline. Of course, with this new process comes complexities, risks and challenges that will have to be managed by government, bidders and lenders alike.

 

                                   
[1] National Audit Office, 9 November 2001, "Innovation in PFI Financing: the Treasury Building Project", HC 328, Session 2001-2002.

[2] Her Majesty's Treasury, 1 August 2006, "Preferred Bidder Debt Funding Competitions: Draft Outline Guidance for Feedback".

For further information, please contact David Lester.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states or territories.