Government obligations in public-private partnership contracts

Abstract

Traditional models of full and open competition are generally applied for ordinary public procurement contracts, whereas special competitive procedures (such as unsolicited proposals) are permissible under various international and domestic frameworks for "Public-Private Partnership" (PPP) contracts. In case of the latter category of contracts, some concerns about relative lack of transparency and competition in the award process have begun to surface, while they are being increasingly relied upon for development of public infrastructure and services. This paper focuses on certain aspects of competition and transparency in the award of PPP contracts, vis-à-vis normal public procurement contracts. To facilitate a sharper identification of legal issues, it compares the relevant regulations and case law in India applicable to unsolicited proposals (UNPs) with that in the United States and those under available international frameworks. It concludes with recommendations on identified legal dimensions of UNPs with reference to government obligations on transparency and competition, so as to adequately preserve these elements in procurement of PPP infrastructure projects.

Malaysian experience with public-private partnership (PPP)

“…An unsolicited proposal is defined as a proposal initiated by the private sector pursuing business prospects and submitted to the relevant authority. The submission is neither requested by the authority nor is it an invitation to bid (Verma, 2010; Yun et al , 2015). Generally, projects proposed through unsolicited proposal are not included in government planning (World Bank Institute, 2012) although they might be feasible through PPP (Yun et al , 2015) in the case where public needs go unnoticed by government (Meyer, 2012; Verma, 2010).…”

“…The submission is neither requested by the authority nor is it an invitation to bid (Verma, 2010; Yun et al , 2015). Generally, projects proposed through unsolicited proposal are not included in government planning (World Bank Institute, 2012) although they might be feasible through PPP (Yun et al , 2015) in the case where public needs go unnoticed by government (Meyer, 2012; Verma, 2010). An unsolicited proposal is normally regarded as associated with corruption.…”

“…Nevertheless, unsolicited proposal in PPP has been acknowledged and recognised in major international procurement frameworks, including the European Bank for Reconstruction and Development, the Asian Development Bank and the World Bank (Hodges and Dellacha, 2007; Verma, 2010).…”

“…Unsolicited proposal is an example of global anti-competitive practice in PPP (Andersen et al , 2010; Verma, 2010) which affects the sustainable goals of procurement. In PPP, unsolicited proposal is an attempt by the private sector to submit a new idea or initiative, in return for an exclusive award behind closed doors from the contracting authority.…”

Making sense of public-private partnerships (p3s)

“…Because of their importance today (e. g., Brookings Institute, 2014;Kelly, 2014;Eno Center for Transportation, 2014;Sabol & Puentes, 2014;U. S. House of Representatives, 2014;Vinogradov, Shadrina & Kokareva, 2014;DiNapoli, 2013;Martin, Lawther, Hodge, & Greve, 2013;Verma, 2010) Hodge and Greve (2010), two leading international researchers in the field, suggest that the term "P3s" has little real meaning. They argue that P3s represent a sort of "language game" used to promote local political objectives.…”