Public-Private Partnership (P3) Law and Practice in Canada

Procurement Process and the Key Players

• Procurement process and the business case
• RFQ, RFP and the negotiation phase
• Commercial/financial close
• Understanding the contractual relationships and stakeholders and what each one does

Show Me the Money: Understanding the Finance Prerogative

Often misunderstood, you will learn key short‑ and long‑ term finance perspectives for all project stakeholders along with how and why the ‘finance imperative’ is critical to the project – and disputes – throughout the project. You will also discuss how to avoid common misunderstandings and to help things run smoothly.

A Classic P3 Agreement and Key Documents

• Unpack the classic P3 – Design-Build-Finance-Maintain (DBFM) project agreement along with other key RFP documents
• Anatomy and mechanics of key documents, how they relate and where things often go wrong
• How the project documents relate to the project trajectory, including which documents are used at different phases
• Examine the classic P3 structure and risk profile, which will serve as a basis for the unique fact scenario and the ‘survival skills’ covered during much of the program

Interactive Activity: Working Through the Project Agreement*

You will review the unique fact scenario (classic P3/DBFM) that will be used during the program. Acting as Projectco or a public entity, you will work through the structuring and development of the project agreement and the decision‑making process, with regard to the different stakeholders. You will breakout into small groups to analyze issues, discuss risk allocation and risk management and share findings with the class. The session will conclude with a group debrief, and a checklist of considerations.

*Note: breakouts will not be recorded.

Understanding Risk During the Construction Phase

• Where do people stumble/go wrong?
• Risk management process – analysis, allocation and troubleshooting and dealing with stakeholders
• Processes and procedures – substantial completion, certification, revenue service, long stop
• Major risks – geotechnical, utility, partner, schedule, budget, counterparty, project sponsor
• Risk factors – partnership vs. strict interpretation, competition, workforce/labour, supply chain, the economy

Committees, Variations and Supervening Events 

• Treatment under the DBFM project agreement
  • Why are these areas so difficult to navigate?
  • How are others dealing with this risk?
• Complexity of the works committee structure and project oversight by multiple stakeholders
• Managing variations and changes to the project
• Practical insights and proven troubleshooting tools

Managing Finance Risks and the Flow of Funds 

• Payment process and flow of funds, mechanisms, structure
• Understanding finance and the related documents
  • Short‑ vs. long‑term perspectives and implications
• Strategies to create a framework to keep funds flowing and overcome common ‘pain points’

Dealing with Performance Security and Insurance

• Key risks, stumbling points and missteps
• Strategies for ensuring suitable DBFM performance security, including surety bonding
  • What to look for
  • Who does what and when
  • Trigger points and major steps
• Managing associated challenges, gaps and risks

Interactive Activity: Managing Construction Risk* 

Acting as a project contractor, you will work through the factors involved with submitting a claim when faced with overrun, delay and going beyond the long stop. You will breakout into small groups to analyze issues, discuss the various documents and considerations and share findings with the class. The session will conclude with a group debrief and a checklist of risk management and drafting tips.

*Note: breakouts will not be recorded.

Understanding Risk During the Operations Phase

• Why do we select the 30‑year term? Was it simpler ‘back then’ to forecast technology change? What’s the impact of rapidly changing technology?
• Key risks including scope split and the unique impacts of technology
• Managing project stakeholders – navigating the roles, interactions and communications, key risks
• Respecting the role of finance during operations

Managing Interface and Integration Risks

• Bridge between construction and operations
• Handback and associated process strategies
• Managing availability and performance risks
• Warranty management, latent defect risk, systems integration, changes in technology
• Managing risks involving external impacting events (the current pandemic will not be the last)
• Forward‑looking strategies for addressing sustainability and climate risk/impacts

Tools for Navigating Money Risk and Issues

• Why is this area so challenging for stakeholders, resulting in conflicts, disputes and claims?
• Common money pitfalls and how to address them
• Tools for navigating payments and flow of funds
  • Deductions
  • Service level failure credit
  • Payment mechanism
• Tips to keep the funds and goodwill flowing

Overcoming Handback and Default Challenges

• Examining key issues and why they still occur
• Overcoming handback challenges, plus a template review for practical/tactical guidance
• Examining default and the ramifications
• How to prevent, manage or mitigate challenges

Interactive Activity: Managing Operations Risk*

Acting as Projectco, you will analyze the factors involved when the Owner has advised you that deductions have led to a default. You will breakout into small groups to work through issues, discuss
the various documents and risks and share findings with the class. The session will conclude with a
group debrief, a checklist of risk management
and drafting tips.

*Note: breakouts will not be recorded.

What Have I Gotten into Over the Next 20 Years?

• Overview of each approach, what each seeks to achieve and important project impacts
• Understanding the intricate web of relationships and key points of intersection in disputes
• The pivotal role of lenders and why it matters
• Employing a dispute avoidance mindset
• How disputes are used to influence developments in law and in process improvement

Resolving P3 Disputes: From Early Stages Through to Formal Proceedings

In a series of practical sessions, you will explore the available processes and prescribed mechanisms for dealing with P3 disputes, including:

• Early Problem-Solving: Letters, Notices, Petitioning, Meetings and Negotiations
• Interim Steps: Independent Certifier, Expert Determination, Dispute Resolution Board, Mediation and Adjudication
• Formal Processes: Arbitration and Litigation 

You will get targeted guidance and tips for navigating each process and making it work for you, including:

• How did things get to this stage? What are the parties in for?
• Critical analysis of the process, why and when to use it
• Key areas/provisions within the project agreements and what to do if the contract seems to be against you
• Anatomy and mechanics – key steps, timelines and what to do when
• Roles and intersections of the parties, and dealing with key stakeholders
• Insights for navigating the process from a dispute avoidance perspective – internally and externally
• Strategies for framing concerns and disputes
• Communication and negotiation techniques, with specific language and drafting tips
• Retaining and working with experts and lawyers, and selecting an arbitrator/decision-maker
• Managing documents, record-keeping and gathering evidence
• Troubleshooting issues before they snowball
• What happens next? What if you don’t like the result? What happens to the project? To the relationships?

Interactive Activity: Working Through a Dispute*

Acting as a Projectco or a Contractor, you will troubleshoot issues suspected of contributing to ongoing project problems, and aim to avoid unnecessary escalation or delay. You will breakout into small groups to analyze risk, suggest strategies to negotiate, mitigate and resolve the issues and share findings with the class. The session will conclude with a group debrief, a checklist of considerations, negotiation and dispute resolution and drafting tips.

*Note: breakouts will not be recorded.

Understanding Changing Market Conditions: The Next Generation of P3 Models

• Overview of changing market conditions influencing infrastructure delivery in Canada
• Pressing challenges – supply chain issues, few bidders/proponents, onerous risk transfer profile
• Why do we need different delivery models?
• What is the next generation of procurement/P3 models? Why do they need capacity for long‑term forecasting and forward‑thinking?
• Key risk considerations including the importance of sustainability in project delivery – new national building code, climate risk, carbon tax, ESG 

Exploring Newer and Emerging P3 Models

You will delve into the details, structures and objectives involving the newer/emerging P3 models. 

• An overview and critical analysis
• What the model seeks to achieve
• The anatomy and mechanics
• Pros and cons of each
• Practical considerations for dealing with risk and issues – includes takeaways and resources

You will examine the following models:

• Progressive Design Build
• Progressive P3s
• Integrated Project Delivery (IPD)
• Alliancing
• Revenue Risk Concession

Interactive Activity: Choose Your P3 Model*

Using a fact scenario that does not lend itself to a classic P3 or a traditional project model, in small groups you will work through the risk analysis and decision‑making processes and select one of the newer/emerging P3 models for your project and share findings with the class. The session will conclude with a group debrief and a checklist of considerations and resources.

*Note: breakouts will not be recorded.

Expert Round‑Table: Do’s and Don’ts to Prepare for the Future

Legal, finance and industry experts will share their experience, perspectives and insights on where things are heading and how to get prepared, including: 

• Are the newer P3 models repeating the same mistakes?
• Pros and cons and key trends and influences
• What’s happening in other markets? How are they dealing with challenges and risk?
• Forward‑looking strategies and do’s and don’ts to prepare for the future

Final Online Exam

Distributed after module five (5), the exam requires online completion and a passing grade of 80%due by November 27, 2023.

Covering core concepts and foundational principles, these on-demand primers are approximately one (1) hour each and are included with the certificate. Designed for those who may be newer to the area, or those professionals seeking a succinct refresher, it is strongly recommended to view all primers prior to the start date of the program.

To obtain your certificate, all three primers must be viewed:

• Understanding the Landscape of Canadian Infrastructure Delivery
• Overview and Key Distinctions Among the Various Project Delivery Models Used in Canada
• Summary of the Value for Money Analysis and Crucial Commercial and Financial Terms and Considerations

Primers will be available for viewing by September 13, 2023.