Public-Private Partnership – Project Financing on Public Real Estate Assets
Project financing is a complex economic-financial operation aimed at realising public works and/or at managing a service that can be implemented, in some cases, also by private parties. More specifically, Art. 183, par. 15, D.L. no. 50 of 2016 allows for an economic operator to propose the planning, realisation and management of a public asset or of a service in relation thereto, also if not included by the Plan of the offeree.
In this case, the project financing can be used to obtain the concession of one or more assets, which must not be object of pending works decided by the public bodies in their plan, to realise private initiatives that shall meet specific public needs, ensuring at the same time the project’s economic and financial sustainability (e.g. realisation of public sport facilities or of an auditorium and management of its complementary services such as bars, restaurants, gyms, etc.).
Art. 180 “Public-private partnership”; Art. 181 “Award procedures”; Art. 182 “Project financing process”; Art. 183 “Project finance”; Art. 184 “Special purpose entity”; Art. 185 “Issue of bonds and debt securities by special purpose entities”; Art. 186 ”Credit preemption” of D.L. no. 50 of 18/04/2016 – Code of Public Contracts
The following describes the main phases for requesting project financing (in accordance to Art. 183, par. 15, D.L. no. 50 of 2016).
Feasibility Project, Draft Agreement and Business Plan
The proposal of the economic operator to the entity that owns the property must contain: an economic and technical feasibility project, a draft agreement and the business plan certified by the parties referred to in par. 9 of Art. 183, D.L. no. 50 of 2016 (credit institutions, service companies founded by credit institutions and included in the general list of financial intermediaries, pursuant to Art. 106, D.L. no. 385 of 01/09/1993, audit firms pursuant to Art. 1, Law no. 1966 of 23/11/1939). The proposal must also include: self-declarations of requirements and security to partake in the procedure (Art. 93, D.L. no. 50 of 2016) and the commitment to provide a guarantee in case of a call for tenders.
Assessment of Proposal’s Feasibility and Announcement of a Call for Tenders
The contracting authority assesses, within the preclusive period of three months, the feasibility of the project. In case of positive assessment, the economic operator shall become “promoter” and the authority shall announce a public tender, to which the promoter is invited.
If the promoter is not appointed as successful tenderer, he can exercise within 15 days from the communication of the award, his preemptive right and become the successful tenderer provided that he pledges to perform its contractual obligations under the same conditions offered by the previous successful tenderer. If the promoter does not intend to exercise his preemptive right, he shall be entitled to reimbursement of his proposal expenses (max 2.5% of the value of the investment).
Exclusion Criteria and Proof of Compliance
With reference to the general requirements laid down in the current legislation for participating in public tenders, notwithstanding the requirement to verify any eventual provision of each specific call, it is necessary to specify that:
- Usually, by moral requirements, reference is made to those provided for in Art. 80, D.L. no.50 of 18/04/2016 “Code of Public Contracts”; the competitor shall prove to hold the aforementioned requirements when taking part in the call, to be verified by the Contracting Authority once the tender has been submitted. More specifically, public administrations may request the following documents: a certificate issued by the Criminal Records Office or, if unavailable, an equivalent document issued by the judicial or administrative authority of the Member State or of the Country of origin in which the envisaged requirements are met; appropriate certification issued by the competent fiscal authority and, as far as social security contributions are concerned, the certificate of social security compliance automatically acquired by the public administration from social security institutions pursuant to current legislation or, if unavailable, an equivalent certificate issued by competent authorities of other States.
- Economic and financial standing of the economic operator, declared upon taking part in the call, can be proved through one or more of the following: appropriate bank declarations or, if any, evidence of relevant professional risk’s indemnity insurance; the presentation of balance sheets or extracts from balance sheets, where publication of the balance sheet is required under the law of the country in which the economic operator is established; a statement of the undertaking’s overall turnover and, if any, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, insofar as the information of these turnovers is available. If, for any valid reason, the economic operator is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate.
- The technical capability of the economic operator, declared upon taking part in the call, can be proved, inter alia, by: a) a list of the works carried out over the past five years, with the sums, dates and recipients, whether public or private, involved; b) the indication of the technicians or technical bodies involved, whether or not belonging directly to the economic operator’s undertaking, especially those responsible for quality control; c) a description of the technical facilities and measures used by the economic operator for ensuring quality as well as the undertaking’s study and research facilities; the educational and professional qualifications of the service provider or contractor and/or those of the undertaking’s managerial staff, provided they are not evaluated as award criteria; e) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years; f) a statement of the tools, plant or technical equipment available to the service provider or contractor for carrying out the contract.
Completing the call for tenders’ procedure in case of project financing takes 90-120 days. This period does not take into account the proposal’s presentation and its assessment by the concerned entity, which varies according to the complexity of the project proposed (hypothetically 120-150 days).
The private investor bears all the costs related to the proposal and the due diligence activities, mainly concerning any technical, economic and legal consultancy needed for its drafting. In this regard, if the promoter is not eventually awarded or do not exercise his preemptive right, it is entitled to reimbursement of his proposal expenses within the limitations stated by law (max 2.5% of the value of the investment). Conversely, if the promoter exercises his preemptive right, the previous successful tenderer is entitled to be reimbursed by the promoter of the expenses concerning the drafting of his proposal within the limitations stated by law.
The process of planning, realising and managing new sport facilities on publicly-owned areas can be structured by following the aforementioned provisions.
The economic operator submits a proposal pursuant to Art. 183, par. 15, D.L. no. 5 of 2016 to the concened Municipality. The Municipality assesses the proposal and decides whether to adopt it or not according to its own plans, if deemed of public interest.
In case of positive assessment, the operator becomes promoter.
In order to select the private contractor, the Municipality launches a call for tenders, to which it invites the promoter, according to Art. 183, par. 15, and uses the promoter’s proposal as base for the call.
During the selection phase, the promoter can adapt its proposal according to the one deemed more advantageous by the Contracting Authority. In the event that the promoter is not awarded, he will be reimbursed of his expenses (max 2.5% of the value of the investment).
Once the contract is signed, the private economic operator shall (i) organise the plan, to be approved by the Municipality, (ii) realise the works and (iii) manage the asset.
One more example
New facilities can be created on publicly-owned areas also with different regulatory requirements.
Art. 1, par. 304 of L. no. 147 of 27/12/2013 (Stability Law 2014) intends to promote the modernisation or construction of sport facilities by placing special emphasis on the safety of the structures and the audience by simplifying administrative procedures and provisioning new and innovative financing modalities.
This procedure allows for the creation of a stadium, also according to the proposer’s modalities, by realising the project with partially or totally private resources in order to profit from its management. The contract signed with the competent Municipality shall be referable in whole to a building and management concession contract.
The structure of the procedure is as follows:
- Project Presentation: the party intending to realise the works must draft and submit to the Municipality (where the facility or the area are located) a technical and economic feasibility project accompanied by a business plan and an agreement with associations or sports clubs using the facility as a main activity.
In order to achieve the project’s economic and financial balance and the social, occupational and economic development of the territory, buildings can be constructed (provided they are located in neighbouring areas) with different purposes of use than sports, that shall complement or supplement the financing or the usability of the sport facility, with the sole exception of the creation of new residential housing.
Moreover, in order to achieve economic and financial balance, the feasibility project can foresee the transfer of surface or usufruct rights on publicly-owned areas or on the existing public structure, as well as the transfer of surface or usufruct rights of other properties owned by the public administration.
- Preliminary Conference and Statement of Public Interest: the party shall lodge a request to the Municipality, attaching the feasibility project, for a preliminary services conference aimed at assessing the project. The Municipality shall hold the conference within 5 working days from the date of receipt of the request (where provisions pursuant to Art. 14, par. 3, Law no. 241 of 1990 et seq. 14 bis apply, mutatis mutandis).
This phase must be completed within 90 days from the submission of the feasibility project. The preliminary conference shall thus assess whether the proposal of the party is of public interest or not and, if so, admit it to the decision-making services conference.
In the event of more project requests being simultaneously submitted to the Municipality, the latter, within the same preliminary services conference, is obliged to comparatively assess all requests, selecting one to be declared of public interest and to be admitted in the decision-making services conference.
- Final Project: if the procedure continues, the party shall draft a final project before the decision-making services conference.
The final project shall be sent to the Municipality.
- Decision-making Services Conference: the conference, simultaneous and synchronous as provided for in Art. 14 ter, shall assess and eventually approve the final project.
In the event that the project requires deeds of regional competence, the decision-making services conference shall be convened by the Region and not the Municipality.
The services conference’s approval of the final project replaces any authorisation or permit required for the realisation of the project and determines that the works are made in the public interest and cannot be delayed, as well as eventually sufficing as proof of environmental compatibility and of amendment of the urban planning regulation of the Municipality.
The services conference convened by the Municipality must approve the final project within 120 days from submission. If the conference must be convened by the Region, the project must be approved within 180 days from submission.
Once the final project has been approved, if the works affect publicly-owned areas or existing public facilities, the entity that owns these properties must announce a call for tender based on the approved final project. The call for tenders must be completed within 90 days from the approval of the latter.
The party presenting the project shall become the “promoter” and, in case he is not appointed as successful tenderer, he can exercise within 15 days from the communication of the award, his preemptive right and become the successful tenderer provided that he pledges to perform its contractual obligations under the same conditions offered by the previous successful tenderer.
If the successful tenderer is not the promoter, he shall replace the promoter in the existing agreements between the latter and the associations/clubs using the facilities.
The provisions for project financing laid down by the Code of Public Contract apply, mutatis mutandis (Art. 183, D.L. no. 50 of 2016).
It is worth noting that the Istituto di credito sportivo (sports credit institution), public and legal nature, makes available to investors special conditions for the creation of new stadiums or for the modernisation of existing sport facilities, with particularly favourable interest rates if compared to the ones available on the market.