Preparing, Procuring and Implementing Climate-Smart PPPs

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While the development of infrastructure is a main contributor to climate change, PPP infrastructure assets and their operation may also become increasingly affected by climate change-related extreme weather events but also through gradual, longer-term incremental changes. Developing climate-smart PPPs means to incentivize the private sector to invest in low-carbon PPPs and to ensure that climate change risk and potential mitigation measures are identified and considered during the development, design and implementation of each individual PPP project.

 


Preparing, Procuring and Implementing Climate-Smart PPPs 

Appraising Climate-Smart PPPs

Assessing climate change risks and impacts and establishing appropriate plans to reduce carbon emissions and increase resilience is key for developing climate-smart PPP projects. This requires to deal with uncertainty and to develop and use forecasting models that go beyond estimations that are based on historic data and trends. 

Climate considerations can, for example, be used as a parameter when conducting a VfM analysis or a cost-benefit analyses during the project development phase:

  • According to Resilient Infrastructure Public-Private Partnerships (PPPs): Contracts and Procurement – The Case of Japan, World Bank 2017, Sendai City considers resilience and business continuity in VfM analysis by comparing two scenarios (i) where the project is handled by a public administrator, and (ii) where a private operator builds and operates the facility under the build-operate-transfer (BOT) scheme. In the second case, disaster response would require less time and resources form Sendai City to evaluate damage, apply for a contingency budget, and submit documents to the municipal assembly.

Environmental impact assessments (EIAs)

Environmental impact assessment (EIAs) undertaken, e.g. as part of the feasibility study, are typically used to identify and assess climate change impacts of a project as well as potential mitigation and adaptation measures. The findings can then be used as a basis to adjust existing modalities for project design, approval, and implementation to avoid harm and to improve environmentally sustainable outcomes.

For sample requirements see the respective legal documents below: 

Policies, Legislation and Regulation

Many countries have legislation in place requiring some sort of environmental impact assessment (EIA) for projects potentially harmful to the environment and some countries started taking steps to promote climate-resilient EIAs. Below are some examples:

Regional 

European Union 

Caribbean 

 

National 

Canada 

Scotland 

United States 

  • EIA Guidelines for Assessing the Impact of Climate Change on a Project – The guidelines provide instruction for government agencies and project proponents on how to evaluate climate risk in the context of environmental impact assessment (EIA). These guidelines are intended to facilitate an assessment of: (i) how climate change may impact a project and its surrounding environment, (ii) the implications that this may have for the performance and environmental consequences of the project, and (iii) the selection of appropriate adaptation and resilience measures to address climate-related risks.
  • Public-Private Partnership (PPP) Governing Board Resolution of December 2018 provides guidelines to ensure that identified safeguard concerns are considered during the feasibility stage and integrated into the project design. This includes  safeguards related to climate change mitigation as well as resilience to climate change hazards. Annex C contains prescribed contents of the safeguard chapter of the feasibility study, including climate change and natural hazards resiliency considerations. 

Additional international examples are available on the website of the Columbia Law School, Sabin Center for Climate Change Law

Standards Applied by IFIs/Development and Commercial Banks

Many IFIs as well as and other national financial institutions address climate change risk and adaptation in their safeguards policies which are applicable if any of those entities is funding the project and have developed tools to identify and assess climate change risk. 

For an overview see European and International Financial Institutions, Climate related standards and measures for assessing investments in infrastructure projects, Final Report, 2013.

Some examples are provided below:

Procuring Climate-Smart PPPs

Incentives for private operators to invest in climate change adaptation and mitigation can be included in PPP request for proposals (RfPs) and other bidding documents, guidance documents on project selection and evaluation of proposals, as well as PPP policies and legislation.

Examples for incentives in bidding documents or PPP/procurement legislation for private operators to invest in climate change adaptation and disaster risk management as well as low-carbon infrastructure:

1. Minimum qualifying requirements ensure that potential bidders

  • Demonstrate sufficient financial and technical capacity to develop innovative low carbon solutions and to respond to disaster events;
  • Have sufficient knowledge to identify and assess carbon impact, alternative low-carbon solutions as well as climate change events (e.g. have experience in the construction of green buildings as demonstrated by respective certification);
  • Obtain sufficient insurance with regard to potential climate-related risk.

2. Technical specifications relate to better life-cycle performance, including in terms of greenhouse gas emissions and identified climate change risks and ask bidder e.g. to include respective environmental management plan as well as disaster prevention and risk response plan in bid proposals. 

3. Evaluation criteria are not solely based on price but assess low-carbon performance as well as a bidders’ competence to address natural disasters and give, for instance, additional points for innovative efforts related to greenhouse gas reduction or disaster risk management.

Policies and Legislation relevant for PPPs 

European Union

  • Directive 2014/24/EU on public procurement  and Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors - Both Directives follow the same approach: Contracts are awarded based on the economically most advantageous tender (price, cost, quality-price ratio) Contracting authority can assess costs using a life-cycle costing approach (Article 82 and Article 67 respectively). Life cycle costing may include the cists of emissions of GHG and of other pollutant emissions and other climate change mitigation costs (Article 68 and Article 83 respectively). Technical specifications may include environmental and climate performance levels (Article 42, Annex VII and Article 60, Annex VIII respectively).
  • Green Public Procurement (GPP) , European Commission 2008 – Voluntary instrument that was developed to facilitate the inclusion of environmental requirements in public tender documents across the EU member states. GPP criteria were developed for different project groups (e.g. road design, construction and maintenance) and are applicable for PPPs. The criteria are formulated in such a way that they can be integrated into tender documents. The GPP criteria are supported by a draft Guidance document that provides orientation on how to effectively integrate these GPP criteria into the procurement process. An accompanying Technical Report provides further details on the reasons for selecting these criteria and references for further information.

Netherlands

  • Rijkswaterstaat (RWS), the Department of Public Works of the Ministry of Infrastructure and the Environment uses the most economically advantageous tender (MEAT) methodology, including specific sustainability criteria for infrastructure projects and services. When assessing the sustainability RWS focuses on two criteria: CO2 emissions and environmental impact. Two instruments have therefore been developed: the CO2 performance ladder and “DuboCalc”, respectively. The CO2 performance ladder is a certification system with which a tenderer can show the measures to be taken to limit CO2 emissions within the company and in projects, as well as elsewhere in the supply chain. DuboCalc is a life-cycle analysis (LCA) based tool that calculates the sustainability value of a specific design based on the materials to be used. Bidders use DuboCalc to compare different design options for their submissions. The DuboCalc score of the preferred design is submitted with the tender price.  For details see Country case: Green public procurement in the Netherlands, OECD 2016. 

PPP Bidding Documents

Bulgaria

Tender Document for the Designation of a Concessionaire and Awarding a Works Concession for Airport in Sofia of 5 July 2018 as amended on 29 March 2019 published by the Republic of Bulgaria, Ministry of Transport, Information Technology and Communications - Bidding document contains low carbon incentives: Bidders are e.g. required to submit an environmental and social program which shall inter alia include the bidder’s  approach to the increase of the airport’s use and production of renewable energy and can earn extra points during evaluation in this regard. 

PPP Case Studies 

Japan

According to Resilient Infrastructure Public-Private Partnerships (PPPs): Contracts and Procurement – The Case of Japan, World Bank 2017 - In the case of Sendai School Meal Supply center PPP Project, Sendai City highly evaluated proposals on engineering measures to protect and minimize seismic risks as well as nonstructural measures and institutional arrangements that enable prompt emergency response and recovery. When disaster struck, the project recovered about 2.5 months earlier than did facilities directly operated by the government, owing to the private operator’s flexible selection of suppliers for emergency goods and equipment.

Netherlands

Reconstruction Motorway A 6 Almere, Rikswaterstaat - Tender for Design, Build, Maintain and Finance Contract (DBFM) for the reconstruction of the motorway A6 Almere prepared and executed under the leadership of Rijkswaterstaat. New tendering method that aims to reduce CO2 emissions was applied and tendering parties were incentivized to offer a lean design and to apply innovative materials and working methods. 

Construction of the Sea Entrance Ijmuiden - Tender for Design, Build, Maintain and Finance Contract (DBFM) of a new lock at the sea side of the Noordzeekanaal (North Sea Channel) in the harbour of Ijmuiden to give large ocean-going vessels access to the port of Amsterdam prepared and executed under the leadership of Rijkswaterstaat. New tendering method that aims to reduce CO2 emissions was applied and tendering parties were incentivized to offer a lean design and to apply innovative materials and working methods. 

Guard lock in the river Meuse in the municipality of Limmel - Tender  for design, build, maintain and finance (DBFM) prepared and executed under the leadership of Rijkswaterstaat. Contract includes the reconstruction of the guard lock and management and maintenance of the new lock, dyke structures, culvert and fixed bridge for a period of 30 years. New tendering method that aims to reduce CO2 emissions was applied and tendering parties were stimulated to offer a lean design and to apply innovative materials and working methods. 

Further Guidance related to Climate-Smart Procurement

GPP 2020: Procurement for a low-carbon economy – GPP aims to mainstream low-carbon procurement across Europe in support of the EU’s goals to achieve a 20 % reduction in greenhouse gas emissions, a 20 % increase in the share of RE and a 20 % increase in energy efficiency by 2020. 

Low-Carbon Innovation for Sustainable Infrastructure: The Role of Public Procurement, International Institute for Sustainable Development (IISD) and Industrial Innovation for Competitiveness 2018.

Public procurement for innovation: Good practices and strategies, OECD 2017 -  The report takes stock of the strategic use of procurement for innovation in OECD Member countries and non-Member economies. It provides evidence that public procurement is a major pillar of strategic governance and service delivery. Such innovations are helping reduce energy consumption and support the transition to a low-carbon world. 

Climate-Smart PPP Contracts

There are various ways to deal with risk related to climate change and potential for carbon reduction in PPP contracts. The following are some examples:

  • Design specification that reduce greenhouse gas emissions and minimize vulnerability to climate change;
  • Clauses that deal with unpredictable changes and increased costs caused connected with climate change and allocate these risks (e.g. FM clauses, change in law clauses);
  • KPIs that contain appropriate indicators, reporting obligations and inspection rights regarding climate-change mitigation and adaptation obligations;
  • Contractual payment mechanism takes compliance with climate change mitigation and adaptation obligations into account (e.g. specifications during construction and O&M phase).

For an overview of how to manage climate change risks in output-based contracts see Incorporating Climate Risk in PBC Contracting RecommendationsTask 5 Report, Final Draft, World Bank Group 2018
 

Design Specifications 

The design features in the PPP contract can specify what kind of design will be fit to reduce greenhouse gas emissions or to respond to the anticipated occurrence of more severe and more frequent adverse weather conditions:

  • Australia, Victoria

    • PPP Desalination Project - Project deed and ancillary documents with summaries for the design, construction and operation of a seawater desalination plant, 85 km transfer pipeline, delivery of power supply for the project, operations and maintenance, and the purchase of renewable energy credits. A key feature of the project is that all power usage during the operating phase of the project will be fully offset by power generated by renewable energy sources.

  • Colombia

    • The TransMilenio Bus Rapid Transit (BRT) system opened to the public in December 2000 and replaced a system of many small competing enterprises. It is considered as a model case for a mass urban transit system and was replicated by various cities. The TransMilenio operates like a rail-based system by providing dedicated lanes for the exclusive use of the system’s buses, with boarding stations along the length of the lanes. It is a registered Clean Development Mechanism (CDM) project under the UN Framework Convention on Climate Change (UNFCCC). GHG emission reductions were, for example, achieved by a renewal of the bus fleet, increased capacity of the buses, improved operating conditions (e.g. bus-priority traffic signals), centralized bus-fleet control, and the introduction of pre-payment technology that  which streamlined board process). Sample contracts relating to Phase I of the TransMilenio system:

      • Contrato de Concesión (Concession Contract) document in Spanish with annotations in Spanish and English.

      • Contrato de Operación (Operation Contract) document in Spanish with annotations in Spanish and in English

  • India
    • Draft Concession Agreement for Public Private Partnership in Operation and Maintenance of Electric Buses in cities (OPEX Model) between the Kerala Road Fund and the Thiruvananthapuram Road Development Company Limited - The model document has been developed by the National Institute of Transforming India (“NITI”) Aayog, Government of India based on international best practices, and with view of providing cleaner, more efficient and affordable public transportation. Authority awards operator the right to procure, supply, operate and maintain the buses and to construct, operate and maintain the maintenance for a period of [15] years.
    • Draft Model Concession Agreement for Eco-Tourism Resort and Supporting Infrastructure –  Draft document of 7 January 2019 developed by the National Institute of Transforming India (“NITI”) Aayog, Government of India. Model contract contains various components related to climate change. The project infrastructure includes e.g., the construction and operation of a power facility as a renewable energy power project of at least 25000 kWh capacity. The development of the Resort shall conform with the specifications and standards as specified in the agreement, including green building standards. 

  • Japan
    Resilient Infrastructure Public-Private Partnerships (PPPs): Contracts and Procurement – The Case of Japan, World Bank 2017 - Country report provides the wording of a contract clause related to the design requirements for safety and structural planning, as well as the establishment of an emergency system and required responses to emergency that were drafted for the Sendai Meal Supply Center (Box 4.2).
     
  • Norway, Oslo - The Veitvet School project is being built as a PPP and consists of a new elementary and middle school for grades 1 to 10, including a multi-use hall. The private partner (Skanska) will develop, construct and take care of maintenance the next 25 years, and has signed a contract with the Oslo municipality for leasing the school over the same period, with a possible prolongation. The Veivet School project follows a low carbon strategy and seeks to achieve a minimum of 50 percent reduction in greenhouse gas emissions compared to a conventional building of today´s standard. The location of Veitvet School is favourable with respect to low greenhouse gas emissions from transport (proximity to public transport). Other low carbon features are proximity to public transport, limited parking places and reserved parking for electric cars with charging points, good facilities for the use of bicycles, as well as a careful selection of robust materials based on their greenhouse gas emissions.
     
  • United States, TexasFacility Concession Agreement between Texas Department of Transportation and the SH 130 Concession Company related to a state-owned toll road being developed under a PPP (SH 130). Construction needs to meet the requirements set forth in the Technical Requirements (7.2.1. Facility Concession Agreement). 12.3 (no. 6) of the Technical Requirements specifies, for example the Drainage Design Criteria as follows: “all drainage structures, storm systems and outfalls shall be evaluated for the 100-year storm event”.

Force Majeure 

Natural disasters that cannot be controlled or reasonable be prevented by a private operator are key risk factors in a PPP project. They have traditionally been treated as force majeure (acts of God) events with the consequence that both parties share the risk. This concept may not work in the context of climate change anymore where natural disasters have become more frequent and may become probable events during the term of the contract.

Therefore, defining force majeure and contractually allocating the disaster risks between the public and private entities in a way that it is commercially acceptable for private operators and investors are essential for structuring resilient infrastructure projects.

Here are a few examples for different force majeure provisions:

The following solutions are discussed in literature:

  • According to the Guidance on PPP Contractual Provisions, World Bank Group 2019, 1.4 Sample Drafting and commentary in 1.2.1.5  “(…) the impact of climate change and the treatment of climate risk events is coming under increasing scrutiny in PPP Projects. (…) [With regard to climate change] the parties may (for example) want to specify certain types of extreme weather conditions or changes in habitat which qualify as Force Majeure events in order to address climate change risks as they relate to their specific project (for example, sea levels rising beyond a certain level where this would adversely affect a project located on the coast). This approach recognizes that, while the impacts of climate change may have become increasingly foreseeable, it is unlikely to be in the affected Party’s power to prevent, avoid or overcome certain events on its own. (…) the Parties should carefully assess whether the legal system in the country, in which their PPP Project is located, allows for inclusion of such events under Force Majeure.” See also section M, PPP Contracts in Context.
  • Force Majeure and Climate Change What is the New Normal? Jocelyn L. Knoll and Shannon L. Bjorklund*, Journal of the American College of Construction Lawyers, 2014'' - This Article focuses on construction contracts in the United States and describes how parties and courts approach force majeure questions in various contexts, including how both currently distinguish expected but severe weather (not generally a force majeure event) from unexpectedly or unusually severe weather (potentially a force majeure event). It then examines how these methods will need to evolve in light of changing weather patterns.
  • According to Norton Rose, The impact of climate change on the risk allocation of construction projects, September 2014, builders are more likely to require a more expansive range of adverse weather conditions to be included in the FM provisions such as prolonged periods of extreme heat, landslides or cyclones, tornadoes, earthquakes and other natural disasters.

Change in Law 

Another question regards the risk allocation in the event of a change of the legislative requirements change to address the impact of climate change, e.g. the requirements under a Building Code are changed or a carbon price is introduced.

There are several approaches to allocate the change in law risk (for details see chapter 3 of the Guidance on PPP Contractual Provisions, World Bank Group 2019). In general, the private partner may be able to claim relief if the change in law to respond to climate change was not yet foreseeable when the pricing decision was made, e.g. when the bid was submitted (or when the contract was signed).

KPIs, Monitoring and Payment 

To incentivize projects that respond to the challenges of climate change appropriately key performance indicators (e.g. linked to emissions, energy consumption or adaptation measures) can be built in PPP contracts together with contractual payment mechanism that take compliance with climate change obligations into account (e.g. specifications during construction or O&M).


Climate Change Risk & Insurance

Mandatory insurance requirements in PPP legislation or contracts may cover risk related to climate change to some extent. With more frequent occurrence of climate change events it may, however, become increasingly hard or costly to obtain insurance for certain disaster events caused by climate change in specific regions. On the other hand, some insurers could be willing to offer lower insurance premiums for companies that undertake actions that reduce climate risks.

According to the Guidance on PPP Contractual Provisions, World Bank Group 2019, 1.2.1.5 "(…) Some events (or degrees of event) may be insurable and, (…) it may be appropriate for the Contracting Authority to require the Private Partner to insure against these risks and/or to exclude them from the full scope of the Force Majeure provisions (or to set certain thresholds before they qualify as Force Majeure events). The Contracting Authority should bear in mind that the occurrence of certain climate risk events over the life of the PPP Contract may affect insurance premiums and availability (and in some insurance markets may not have capacity to cover such risks in the first place). This insurance risk should form part of any assessment as to how to treat climate risks in the PPP Contract. (…)".

Resilient Infrastructure Public-private Partnerships (PPPs): Contract and Procurement – The Case of India, World Bank, 2018 gives an overview on the availability of insurance for PPP projects in the context of climate change in India.

Resilient Infrastructure Public-Private Partnerships (PPPs): Contracts and Procurement – The Case of Japan, World Bank 2017 - Chapter 5, “Insurance and Financial Institutions,” reviews the roles and benefits of insurance in infrastructure PPPs.