As we know, in 2003 the Obasanjo regime signed a Build, Operate and Transfer (BOT) Public-Private Partnership (PPP) contract with Bi-Courtney Aviation Services Limited (BASL) for the construction of the second terminal at Murtala Mohammed Airport (MM2). The new airport terminal was opened in 2007. However following the approval of the PPP agreement, the status of the General Aviation Terminal (GAT) – whether or not it’s part of the agreement - has been subject of controversy. But after years of argy bargy and legal fireworks, the FG finally handed over the General Aviation Terminal of the Murtala Mohammed International Airport to BASL.
Stakeholders in the Aviation industry have expressed their concern on the government decision. According to the National Union of Air Transport and Engineers (NUATE), the handover of the terminal by the FG to BASL was undertaken without regard for “rule of law” and “due process”. In protest, the Union threatened to shut down the terminal, noting that the handover will inevitably result in job losses. In the same vein, Arik Air through its Counsel Chief Assam E. Assam, told newsmen that the airline – who operates 50% of domestic flights in Nigeria - might stop operation because it could not operate in any facility that is “under the control and monopolistic management of Bi-Courtney Aviation Services”. FAAN on its part is had held the position that GAT was not part of the property given to Bi-Courtney in the PPP agreement it has with the organization and had sided Arik Air in the struggle to retain GAT as FAAN entity as it has been the major source of revenue to the agency. According to FAAN, the handover of the GAT would result in about 40% shortfall in revenue for FAAN.
Based on the foregoing, it is evident that all is not well with the MMA2 PPP Agreement. I have always expressed my concerns about how PPP contracts are negotiated in Nigeria. I have specifically queried the purpose of the exclusivity clause in the MMA2 PPP Agreement –which is also been contested by FAAN, - that prohibits development of an airport in Lagos for 36 years. Many have disagreed with my viewpoint on this issue. Some have argued that it is in the “commercial interest” of BASL to have such a clause (i.e protect its investment). Some even insinuated that I have a personal grouse with BASL. Firstly, l will state categorically that I do not have any personal issue with BASL. I respect and appreciate BASL position as a commercial entity that is looking to maximise its opportunities and protect its financial investment. And if I were in their shoes, I would probably be seeking the inclusion of such a clause, if not more. However, my criticism is directed to the government for their ignorance and short-sightedness in agreeing to such a clause. The inclusion of such a clause in contractual agreement does not encourage competition. It only creates a private monopoly, and does not offer consumers “value for money”. The role of the government is to make sure that public interest in protected in signing such contracts. The clause also does not offer any incentive for BASL to be innovative. With guaranteed income for 36 years and no other competing airport, passengers and airline operators can be expected to be at the mercy of BASL.
Also, such a clause makes mockery of the government so-called Vision 2020. How can nation that intends to be one of the world’s top 20 economies prohibit airport development for 36 years? How can an aspiring G20 nation prohibit airport development in a city predicted to emerge as the third largest city in the world with a population over 20 million people by 2015? Whatever anyone thinks, I’m of the view that this sort of arrangement cannot be right.
In terms of the GAT handover and threats from Arik Air and NUATE, there are few questions which need to be answered by the FG. FAAN denied that GAT was part of the PPP contract, and its handover means loss of revenue. My question is, as a major stakeholder, what was the role of FAAN in the contract negotiation? Was the decision to concession GAT as part of the MMA2 contract taken unilaterally by the FG without following due process? Who were the government advisers on the contract? Arik Air also threatened to halt its operations. But since the PPP agreement predates the commencement of Air Arik operations, was Arik Air not advised of the PPP agreement and imminent transfer to BASL? As for NUATE, did the FG consult with the Union during the contract negotiation?
Whatever be the case, there are important lessons to be learnt from the MMA2 Agreement. One of the keys to success of any PPP is “communication”. It is inevitable that more people will be affected by a partnership than just the public officials and the private-sector partner. Affected employees, the portions of the public receiving the service, the press, appropriate labour unions and relevant interest groups will all have opinions, and frequently significant misconceptions about a partnership and its value to all the public. It is therefore important to communicate openly and candidly with these stakeholders to minimize potential resistance to establishing a partnership. If the FG has taken its time to educate all stakeholders, then the reported protest by Union wouldn’t arise. Also, there would not be the need for the threats from Arik Air.
The government should also implement mechanisms that will guarantee transparency at all stages in the tendering process. These mechanisms must include setting procurement specifications, open public hearings for major government contracts, and the final selection of contractors; and Involvement independent agencies to oversee the bidding process. Unfortunately most of the PPP contracts in Nigeria are announced on the front pages of newspapers. The process of awarding these contracts is shrouded in secrecy. A classic example is the Lagos-Ibadan Expressway N89billion concession contract. Up till now, the public is yet to be advised of the process that led to the selection of Bi-Courtney Ltd. Where was the tender for the procurement advertised? How many companies bidded for the contract?
Interestingly, the notion of public-private partnership has been touted in some government circles as a magic formula that will fix the country’s infrastructure blockages. The complexity of PPP contracts and the high costs involved means care should be taken in the way it is approached. PPPs are not a panacea for development. The principles that underlie successful PPPs are affordability, cost effectiveness, value for money, transparency and risk management.
Showing posts with label BOT. Show all posts
Showing posts with label BOT. Show all posts
Tuesday, September 22, 2009
Sunday, May 17, 2009
Bi-Courtney and MMA2 Terminal - What a Mess!
Recent revelations about the details of the MMA 2 Terminal Private-Public Partnership (PPP) agreement between the Federal Government and Bi-Courtney Aviation Services are disheartening – to say the least. Following my observation of the PPP contracts signed to date, I have come to a conclusion that the Nigerian PPP framework has been designed to legitimise state corruption. In this current climate of overwhelming infrastructure need, the government is using PPP to enrich few individuals at the expense of the general public. I’m now beginning to ask myself where public interest lies in all this.
As some of you maybe aware, in 2000 the Obasanjo regime signed a Build, Operate and Transfer (BOT) contract with Bi-Courtney Aviation Services for the construction of the second terminal at Murtala Mohammed Airport (MM2). The new airport terminal was opened in 2007. However, the PPP contract is now subject of controversy.
There is an ongoing row between the FG and Bi-Courtney on the duration of the PPP concession. While Bi-Courtney is insisting that it has 36 years to run the terminal, the FG through the Federal Aviation Authority Nigeria (FAAN) noted that the concession is only for 12 years. Whether it is 12yrs or 36yrs, there are other details in the contract which I find really disturbing.
According to media, the PPP contract contains an ‘exclusivity’ clause which “forbids the FG from improving or expanding the old terminal at the Murtala Muhammed Airport. And that that all scheduled domestic flights in and out of Airport in Lagos State shall during the Concession Period operate from MM2 and that no new domestic terminal shall be built in Lagos State”. The question is what is the intent of this clause?
The single most important public interest concern with PPP transactions is the inherent tension that is created when governments view t leasing of assets as a potential income source. If such PPP are properly structured, they can provide large public benefits. However, PPP contracts in Nigeria are structured to grant concessionaires substantial monopoly power, ultimately at the cost to the users of the system. The MMA2 agreement, Lekki-Epe Expressway and Lagos-Ibadan Expressway PPP contracts are no exceptions in this regard. When I raised the same issue on the Lagos-Ibadan Expressway PPP contract, some thought I had a personal ‘beef’ with Bi-Courtney Ltd. For your information, I do not have anything personal against Bi-Courtney, but I believe the right thing should be done. The exclusivity clause agreement that forbids the FG from improving or expanding the old terminal at the Murtala Muhammed Airport and prohibits construction of a new domestic terminal in Lagos State limits the prospect of competition and runs counter to the public interest.
Thank goodness that President Yar’Adua is currently reviewing the terms of the agreement. How can we be sure that corrupt individuals have not been involved in the deal? Let even assume that the concession is for 36 years. Does that mean that the govt cannot build any domestic airport in Lagos for a period of 36 years because of Bi-Courtney? Come on! So where are the public benefits? How does the govt intend to encourage competition? How can a company hold the monopoly on where local flights depart or arrive for a period of 36 years? Whoever must have advised the government to accept such a clause needs to have his head examined by a Psychiatrist.
In any public-private contractual arrangement, there is always a risk of corruption. For agreement like these and many other where large of amount of money or lengthy concession period are involved, such risk must be well managed. The govt has however failed to run open and transparent processes, when it comes to PPP deals. PPP agreements are signed without any regard for competitive tendering or proper tender evaluation process. To put it bluntly, our PPP framework is a sham. The govt does not seek input from third parties before entering into such contracts. Legislators do not hold the executive accountable on these agreements. Most of the agreement offers little or no public benefits. Most of the PPP agreement undermine competition and lack consumer protection provisions. The agreements are only successful at mortgaging our future away to few privileged individuals.
In my opinion, all PPP agreements have so far failed. The govt needs to go back to the drawing board. In fact, we need a moratorium of PPP agreement until the govt introduces a ‘consumer and competition’ legislation. Some may argue that PPP has helped delivered some key infrastructure like the new Airport Terminal, I will note that the devil is in the detail. By the time people wake up to the reality of this daylight robbery, it might be too late.
Anyway, my advice is that in cases where a contract or concession was inappropriately awarded, members of the public needs to push for provisions that will allow for contract termination.
As some of you maybe aware, in 2000 the Obasanjo regime signed a Build, Operate and Transfer (BOT) contract with Bi-Courtney Aviation Services for the construction of the second terminal at Murtala Mohammed Airport (MM2). The new airport terminal was opened in 2007. However, the PPP contract is now subject of controversy.
There is an ongoing row between the FG and Bi-Courtney on the duration of the PPP concession. While Bi-Courtney is insisting that it has 36 years to run the terminal, the FG through the Federal Aviation Authority Nigeria (FAAN) noted that the concession is only for 12 years. Whether it is 12yrs or 36yrs, there are other details in the contract which I find really disturbing.
According to media, the PPP contract contains an ‘exclusivity’ clause which “forbids the FG from improving or expanding the old terminal at the Murtala Muhammed Airport. And that that all scheduled domestic flights in and out of Airport in Lagos State shall during the Concession Period operate from MM2 and that no new domestic terminal shall be built in Lagos State”. The question is what is the intent of this clause?
The single most important public interest concern with PPP transactions is the inherent tension that is created when governments view t leasing of assets as a potential income source. If such PPP are properly structured, they can provide large public benefits. However, PPP contracts in Nigeria are structured to grant concessionaires substantial monopoly power, ultimately at the cost to the users of the system. The MMA2 agreement, Lekki-Epe Expressway and Lagos-Ibadan Expressway PPP contracts are no exceptions in this regard. When I raised the same issue on the Lagos-Ibadan Expressway PPP contract, some thought I had a personal ‘beef’ with Bi-Courtney Ltd. For your information, I do not have anything personal against Bi-Courtney, but I believe the right thing should be done. The exclusivity clause agreement that forbids the FG from improving or expanding the old terminal at the Murtala Muhammed Airport and prohibits construction of a new domestic terminal in Lagos State limits the prospect of competition and runs counter to the public interest.
Thank goodness that President Yar’Adua is currently reviewing the terms of the agreement. How can we be sure that corrupt individuals have not been involved in the deal? Let even assume that the concession is for 36 years. Does that mean that the govt cannot build any domestic airport in Lagos for a period of 36 years because of Bi-Courtney? Come on! So where are the public benefits? How does the govt intend to encourage competition? How can a company hold the monopoly on where local flights depart or arrive for a period of 36 years? Whoever must have advised the government to accept such a clause needs to have his head examined by a Psychiatrist.
In any public-private contractual arrangement, there is always a risk of corruption. For agreement like these and many other where large of amount of money or lengthy concession period are involved, such risk must be well managed. The govt has however failed to run open and transparent processes, when it comes to PPP deals. PPP agreements are signed without any regard for competitive tendering or proper tender evaluation process. To put it bluntly, our PPP framework is a sham. The govt does not seek input from third parties before entering into such contracts. Legislators do not hold the executive accountable on these agreements. Most of the agreement offers little or no public benefits. Most of the PPP agreement undermine competition and lack consumer protection provisions. The agreements are only successful at mortgaging our future away to few privileged individuals.
In my opinion, all PPP agreements have so far failed. The govt needs to go back to the drawing board. In fact, we need a moratorium of PPP agreement until the govt introduces a ‘consumer and competition’ legislation. Some may argue that PPP has helped delivered some key infrastructure like the new Airport Terminal, I will note that the devil is in the detail. By the time people wake up to the reality of this daylight robbery, it might be too late.
Anyway, my advice is that in cases where a contract or concession was inappropriately awarded, members of the public needs to push for provisions that will allow for contract termination.
Saturday, March 28, 2009
Lekki-Epe Expressway Road Toll Charges
The contract for the rehabilitation and upgrade of approximately 50km Lekki-Epe Expressway was recently awarded to the private firm ‘Lekki Concession Company Limited’ (LCC). The project is being executed under Public-Private Partnership (PPP) with Lagos State Government. Under the terms of the contract, LCC will build the infrastructure (i.e. additional lanes), operate it for 30 years and later transfer it to the state government. This model in PPP/financing vocabulary is known as Build, Operate and Transfer (BOT). Like most PPP, this project is being funded through private finance, which means LCC will charge tolls on the road in order to recover its costs and make a decent profit.
However, it was recently reported that communities bordering the stretch of Lekki-Epe Expressway in the Eti-Osa council- area that is to be subjected to tolls- rose up in arms against the plan, protesting what they deem to be unfair financial burden. The issue according to the representatives of the groups is that two of the three proposed toll gates would be located in Eti-Osa, thereby subjecting residents in the area to payment of tolls each time they needed to leave their homes.
The toll road sector is evolving rapidly and has become increasingly global, as entities with the expertise to build, operate, maintain, and finance these facilities have lent their services across international boundaries. LCC for example is a ‘special purpose vehicle’ set up by a group of Nigerian and South African companies. Proponents of toll roads believe that the private sector can bring a level of competition and efficiency that can benefit road project development and operations.
Toll road financing, construction, revenue generation, and operation can be undertaken through several organisational structures and frameworks. Revenues can be generated through traditional ‘direct user’ charges, in which motorists using the facility pay a toll, or through third-party payments. Third-party payments are typically from a public sector sponsor to a private sector concessionaire, either in the form of shadow toll payments based on facility usage or availability payments based on the concessionaire's ability to meet certain performance benchmarks. With regards to the Lekki-Epe project, traditional ‘direct user’ charging regime will be employed. Under this system, a vehicle makes a payment via cash or an electronic method for the use of the road facility.
On face value, the Lekki-Epe project PPP mechanism seems laudable, as it has facilitated the delivery of a key transport infrastructure. But from a technical perspective, I find it hard to understand the rationale behind the PPP arrangements and therefore share local residents’ concern.
It is inevitable that these tolls will have a huge impact on local road users. When asked about the likely toll charge, LCC representatives noted that “an amount will only be fixed when the road construction is completed”. Experience shows that private toll operators have had greater success at regularly imposing toll rate hikes in order to maximize their profit. The management of toll operating companies are also less concerned about the political or social implications of such price hikes. When concessions are initially granted, toll rates tend to be lower than revenue maximisation levels. Nevertheless, once under concessionaire control, toll rates will likely increase to maximum economic or legal revenue levels.
Tolling of Lekki-Epe expressway is not in anyway appropriate for many reasons. Why will the Lagos state government enter into a PPP contract that will allow tolling on a strategic road, in an area without an alternative road access or decent public transport system? It’s been reported that three tolling booths are proposed on the road corridor at Maroko, Sangotedo and Epe. If that’s case, the question needs to be asked about the concessionaire tolling strategy. Is the toll been targeted towards local traffic or long distance travellers? Why should a local resident making a short trip between Sangotedo and Ajah be subjected to a toll, in the absence of an alternative road access? Compelling local residents to payment of roads in the absence of an alternative raises serious equity issues. This makes the concessionaire (LCC) a monopoly service provider, and therefore it’s likely to create a serious distortion in the market.
As we all know, continuous urban sprawl in Lagos has made the Lekki-Epe corridor, one of the fastest growing corridors. The road is only link between towns along the Lekki axis and Victoria Island. The govt has allowed intensification of development along this corridor to perpetuate over the years without a long term strategy of how it will improve key infrastructure. Instead of the government to grapple with this issue, it has decided to hand it over to the private sector for solution. The toll will have a massive impact on local residents, some of whom are currently struggling with everyday life. The lack of alternative road access can only result in the concessionaire making a ‘killing’ out of this project in terms of financial returns. It would have been more appropriate if the private sector is encouraged to finance the construction of a ‘bypass’, which can be tolled appropriately. Road users who value their time and do not want to be stuck in traffic will use the bypass but at a premium.
However, if the government feels a desperate need for a PPP, a better approach could have been through ‘shadow tolls’. This is a situation where a LCC will receive payments over time for the successful construction and operation of the facility from a state government, and road users will not responsible for a payment. The amount of payment that is received from government will be a function of a theoretical toll rate per vehicle with revenue minimums and maximums. I consider this method appropriate in this situation because of lack of alternative free roads in the area, and likely community backlash, which will arise with direct user charging.
Whilst I agree that Lekki-Epe Expressway is a critical transport infrastructure that is in dire need of rehabilitation and upgrade, the way and manner the contract has been structured however needs to be called into question. It’s either there’s been ‘foul’ play in the award of contract or an error of judgment on the part of Lagos State Government. I want to believe it is the latter rather than the former.
Whatever be the reason, it is high time some of the PPP contracts signed by the government (either Federal or State) come under scrutiny. PPP should be aimed at delivering ‘value for money’. Prior to entering into PPP contracts, the government should endeavour to assess infrastructure projects against a ‘public sector comparator’, as part of its project appraisal. This should determine if the most cost-effective way of delivery is through a PPP. It is likely that sometimes, that certain projects could be delivered cheaper by the public sector.
However, it was recently reported that communities bordering the stretch of Lekki-Epe Expressway in the Eti-Osa council- area that is to be subjected to tolls- rose up in arms against the plan, protesting what they deem to be unfair financial burden. The issue according to the representatives of the groups is that two of the three proposed toll gates would be located in Eti-Osa, thereby subjecting residents in the area to payment of tolls each time they needed to leave their homes.
The toll road sector is evolving rapidly and has become increasingly global, as entities with the expertise to build, operate, maintain, and finance these facilities have lent their services across international boundaries. LCC for example is a ‘special purpose vehicle’ set up by a group of Nigerian and South African companies. Proponents of toll roads believe that the private sector can bring a level of competition and efficiency that can benefit road project development and operations.
Toll road financing, construction, revenue generation, and operation can be undertaken through several organisational structures and frameworks. Revenues can be generated through traditional ‘direct user’ charges, in which motorists using the facility pay a toll, or through third-party payments. Third-party payments are typically from a public sector sponsor to a private sector concessionaire, either in the form of shadow toll payments based on facility usage or availability payments based on the concessionaire's ability to meet certain performance benchmarks. With regards to the Lekki-Epe project, traditional ‘direct user’ charging regime will be employed. Under this system, a vehicle makes a payment via cash or an electronic method for the use of the road facility.
On face value, the Lekki-Epe project PPP mechanism seems laudable, as it has facilitated the delivery of a key transport infrastructure. But from a technical perspective, I find it hard to understand the rationale behind the PPP arrangements and therefore share local residents’ concern.
It is inevitable that these tolls will have a huge impact on local road users. When asked about the likely toll charge, LCC representatives noted that “an amount will only be fixed when the road construction is completed”. Experience shows that private toll operators have had greater success at regularly imposing toll rate hikes in order to maximize their profit. The management of toll operating companies are also less concerned about the political or social implications of such price hikes. When concessions are initially granted, toll rates tend to be lower than revenue maximisation levels. Nevertheless, once under concessionaire control, toll rates will likely increase to maximum economic or legal revenue levels.
Tolling of Lekki-Epe expressway is not in anyway appropriate for many reasons. Why will the Lagos state government enter into a PPP contract that will allow tolling on a strategic road, in an area without an alternative road access or decent public transport system? It’s been reported that three tolling booths are proposed on the road corridor at Maroko, Sangotedo and Epe. If that’s case, the question needs to be asked about the concessionaire tolling strategy. Is the toll been targeted towards local traffic or long distance travellers? Why should a local resident making a short trip between Sangotedo and Ajah be subjected to a toll, in the absence of an alternative road access? Compelling local residents to payment of roads in the absence of an alternative raises serious equity issues. This makes the concessionaire (LCC) a monopoly service provider, and therefore it’s likely to create a serious distortion in the market.
As we all know, continuous urban sprawl in Lagos has made the Lekki-Epe corridor, one of the fastest growing corridors. The road is only link between towns along the Lekki axis and Victoria Island. The govt has allowed intensification of development along this corridor to perpetuate over the years without a long term strategy of how it will improve key infrastructure. Instead of the government to grapple with this issue, it has decided to hand it over to the private sector for solution. The toll will have a massive impact on local residents, some of whom are currently struggling with everyday life. The lack of alternative road access can only result in the concessionaire making a ‘killing’ out of this project in terms of financial returns. It would have been more appropriate if the private sector is encouraged to finance the construction of a ‘bypass’, which can be tolled appropriately. Road users who value their time and do not want to be stuck in traffic will use the bypass but at a premium.
However, if the government feels a desperate need for a PPP, a better approach could have been through ‘shadow tolls’. This is a situation where a LCC will receive payments over time for the successful construction and operation of the facility from a state government, and road users will not responsible for a payment. The amount of payment that is received from government will be a function of a theoretical toll rate per vehicle with revenue minimums and maximums. I consider this method appropriate in this situation because of lack of alternative free roads in the area, and likely community backlash, which will arise with direct user charging.
Whilst I agree that Lekki-Epe Expressway is a critical transport infrastructure that is in dire need of rehabilitation and upgrade, the way and manner the contract has been structured however needs to be called into question. It’s either there’s been ‘foul’ play in the award of contract or an error of judgment on the part of Lagos State Government. I want to believe it is the latter rather than the former.
Whatever be the reason, it is high time some of the PPP contracts signed by the government (either Federal or State) come under scrutiny. PPP should be aimed at delivering ‘value for money’. Prior to entering into PPP contracts, the government should endeavour to assess infrastructure projects against a ‘public sector comparator’, as part of its project appraisal. This should determine if the most cost-effective way of delivery is through a PPP. It is likely that sometimes, that certain projects could be delivered cheaper by the public sector.
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