Market-led proposals What is the future? March 2016 kpmg.com.au
Contents Introduction 3 Queensland s MLP framework 4 The process 6 Granting of the elusive exclusive mandate 8 Critical success factors for government and proponents 12 About the authors 13 Contacts 14 2016 KPMG, an Australian partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. The KPMG name and logo and are registered trademarks or trademarks of KPMG International. Liability limited by a scheme approved under Professional Standards Legislation.
Market-led propoals What is the future? 3 Introduction In July 2015, the Queensland Government unveiled a new framework for the submission and evaluation of Market Led Proposals (MLPs) received from private sector proponents 1. The release of the new MLP framework has raised questions about the direction government is taking and the impact that the new framework will have. Does it represent a shift in government procurement policy? Does it represent a move towards a new era of collaboration between government and the private sector? Will it succeed in generating successful outcomes for government and private sector proponents? These questions are relevant as there have been a number of MLP frameworks introduced across Australia in recent years and opinions are divided on their effectiveness. The jury is out as to whether such frameworks deliver effective outcomes for either government or the private sector. There are obvious challenges and opportunities for success and failure. 1. Project Assessment Framework Guidelines for the assessment of market-led proposals: https://www.treasury.qld.gov.au/projects-infrastructure/initiatives/market-led-proposals/index.php 2016 KPMG, an Australian partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. The KPMG name and logo and are registered trademarks or trademarks of KPMG International. Liability limited by a scheme approved under Professional Standards Legislation.
4 Market-led propoals What is the future? Queensland s MLP framework The new MLP framework replaces Queensland s previous exclusive mandate guidelines contained in the Government s Value for Money Framework, implemented in 2001. Like its predecessor, the new framework permits government to enter into direct negotiations with a proponent without the requirement for a competitive tender process. Although this is carefully predicated on the understanding that an exclusive mandate will be granted by exception and market testing is likely, the new framework is undoubtedly a positive step towards providing a more transparent, consistent and structured approach for unsolicited proposals. What areas can a MLP cover? Not limited to infrastructure, in Queensland, a MLP can cover a broad range of areas including: delivery of services to or on behalf of government provision of infrastructure access to government assets access to government information, and otherwise, seeking government support to undertake a specific commercial activity. The process The framework sets out a three stage process which proponents will need to navigate through. The key features of each of these are summarised in Figure 1.
Market-led propoals What is the future? 5 Figure 1. Process map Pre-submission stage (optional) Stage 1: Initial proposal Stage 1A: Preliminary assessment Prepare high-level proposal outline and complete Minimum Information Requirements Stage 1B: Strategic assessment Provide additional information as requested Stage 2: Detailed proposal Prepare and submit detailed proposal and provide additional information as requested Stage 3: Final binding offer Negotiate legal and commercial terms
6 Market-led propoals What is the future? The process 0 Pre-submission stage The framework makes provision for an optional, but strongly recommended, pre-submission stage which provides proponents with the opportunity to discuss with Queensland Treasury the potential proposal. Fundamental to this is the proponent s ability to clearly articulate: the proposal the inputs, benefits, assumptions and requirements of government in relation to the proposal, and the unique attributes of both the proposal and the proponent s ability to deliver. Noting, that although government will not reimburse costs under the framework, this can be a valuable stage in testing the water and seeking initial feedback from government, prior to the proponent committing substantial resources to the development of a proposal and formally submitting it to government. 1 Stage 1: Initial proposal Stage 1 requires proponents to describe the proposal, and detail how it addresses the assessment criteria. Stage 1 consists of a tiered evaluation, where the proposal must satisfy Stage 1A: preliminary assessment in order to be given further consideration. Stage 1A: Preliminary assessment Primarily, Stage 1A concerns an assessment by government s MLP Panel to determine if the proposal constitutes a market-led proposal, and if sufficient justification exists for an exclusive mandate. The Panel comprises of senior members from Queensland Treasury, the Department of Premier and Cabinet, the Department of Infrastructure, Local Government and Planning, the Department of State Development and members from other agencies depending on the subject matter of the proposal. If the proposal relates to infrastructure, the Panel will consult Building Queensland. Stage 1A may result in either of the four outcomes: the proposal is suitable to proceed to Stage 1B: Strategic assessment, or the proposal is suitable to proceed straight to Stage 2: Detailed proposal, subject to any specific terms to be agreed with government, or the proposal is not suitable for further consideration on an exclusive basis (i.e. may instead form the basis of a competitive bidding process), or the proposal is not suitable for further consideration. Stage 1B: Strategic assessment For those proposals which have been assessed as suitable to proceed to this stage, government will seek additional information from proponents in order to inform its assessment of the potential benefits to government. A recommendation will be made by the MLP Panel as to whether the proposal proceeds to the next stage, or is not suitable for further consideration on an exclusive basis, or non-exclusive basis.
Market-led propoals What is the future? 7 2 Stage 2: Detailed proposal Stage 2 requires proponents to prepare and submit a detailed proposal, and may also require proponents to supply additional information (upon request by government) and participate in workshops/meetings. At this stage, government may also seek to enter into an agreement with the proponent to cover items such as timeframes for engagement and the format of the detailed proposal. This agreement may also cover the terms for recovery of government s assessment costs from the proponent, and any confidentiality and/or exclusivity arrangements. As per Stage 1B, the MLP Panel may recommend the proposal proceeds to the next stage, or is not suitable for further consideration on an exclusive basis, or non-exclusive basis. It is understood that only a very small number of proposals have progressed to Stage 2 since the introduction of the MLP framework. 3 Stage 3: Final binding offer Stage 3 is the final stage and consists of negotiation of the legal and commercial terms under which the proposal will be delivered. This stage is led by Queensland Treasury and the appropriate line agency, with the executable contract to be presented to government for consideration. This should be a legally binding contract capable of unconditional acceptance and execution, at government s absolute discretion. At this point government may decide to: accept the terms contained in the final binding offer and approve that documentation be executed on this basis, or accept the final binding offer subject to specific conditions, or not accept the final binding offer and conclude the MLP assessment process. The assessment criteria The new framework sets out a non-exhaustive list of nine evaluation criteria which government will consider in assessing a proposal. These principally concern: Community need/government priority Value for money Uniqueness/intellectual property Benefit of proponent s preliminary investment Further detail of each is contained in the MLP guidelines. Most notably, the guidelines stay silent on the relative importance of each of the criteria and whether the proposal must satisfy all criteria at each stage. Furthermore, it is noted that government reserves the right to introduce additional assessment criteria at Stage 2. Risk/cost allocation Capacity and capability of the proponent Feasibility Public interest and benefits to government Competing proposals.
8 Market-led propoals What is the future? Granting of the elusive exclusive mandate In order to warrant the granting of an exclusive mandate whereby the proponent has the exclusive right to negotiate with government and deliver the project, the new framework indicates that the proponent must demonstrate: 1. Why the proposal (and/or proponent) is unique in its ability to achieve a government priority outcome. 2. Why the proposal is unable to be replicated by a competitor. 3. Why a different process to the traditional competitive market tender process is justified. Examples may include where: the proponent owns or controls land, intellectual property or other legal or contractual rights that limit competitors from being able to deliver the same outcomes there are no competitors, or those currently in the market would be unable to deliver the same outcomes, or a combination of unique attributes are demonstrated by the proponent to create a unique proposal and constitute an innovative departure from previous practice. The statistics from other States are telling as to the difficulty in convincing government of why an exclusive negotiation should be pursued. Most notably, the NSW Government received over 117 unsolicited proposals since January 2012, approximately 95 percent of which were not progressed, largely due to the proposals having been assessed as not being sufficiently unique to warrant exclusive negotiations. Technological advantages, particularly if they are proprietary to the proponent, may be advantageous here, however, this does introduce issues in relation to the protection of confidentiality and intellectual property. Proponents would want to avoid a scenario where they are unsuccessful, the government cherry picks ideas from the proposal and runs a competitive tender process. Under the new framework intellectual rights of the proponent will be protected, however the concept encapsulated in the proposal itself may not. The framework is also clear that government specifically reserves the right to submit any MLP to competitive processes if the proposal fails to meet any of the criteria to the government s satisfaction at any point during the assessment process. In this scenario, it would be interesting to consider the government s willingness (or ability) to recognise the original proponent s initial contribution, as the source of the initial MLP and owner of the original idea. This may be by way of granting the original proponent a form of competitive advantage in the tender process such as by granting the proponent additional bonus points in the evaluation process or, where the original proponent is unsuccessful in the tender process, granting the proponent the option to price match the winning bid. Another relevant factor for proponents in securing an exclusive mandate is the ability to demonstrate the savings or value for money to government that will result from pursuing an exclusive negotiation, compared to the relatively high costs of a competitive tender process. In relation to this, the proponent may consider, as a means of providing government with a level of certainty that the proposal will be value for money from the government s perspective, agreeing upfront to a defined rate of return and/or committing to a transparent bidding process for each component of works (e.g. construction) in order to secure the best value price from contractors. Depending on the features of the project, a proponent may also be able to identify additional value for money enhancement opportunities for government or the affected communities arising out of the proposal. Finally, proponents should bear in mind that where an exclusive mandate is granted to the private sector to develop an innovative proposal, government will normally not accept any material project risks or make any service or facility payments to the proponent, (unless doing so achieves a better value for money outcome). Any material cost or risk exposure that is proposed to be allocated to government would need to be considered in the context of the benefits expected to be gained by the government. Risk transfer to government would be expected to raise the bar for proponents.
Market-led propoals What is the future? 9 Other MLP Frameworks in Australia Queensland s MLP framework provides a comparable process to the market-led, or unsolicited, proposal regimes that have been adopted in Victoria and New South Wales in the last 24 months. In particular, Queensland s framework draws significantly on the regime implemented in New South Wales. Outlined on the right, is a background to each regime. This supplements the table on pages 12-13 which provides an overview of the key features of each regime. New South Wales In January 2012, the NSW Government launched its Guide for the Submission and Assessment of Unsolicited Proposals. The government subsequently released an updated guide in February 2014 to reflect industry feedback and improve the quality of proposals received. In particular, the revised guidelines seek to enhance, clarify and streamline certain aspects of the regime in order to improve outcomes for both the private sector and government. Victoria On 18 November 2015, the Department of Treasury and Finance released the Market-led Proposals Guideline for assessing unsolicited proposals received by the government from the private sector in Victoria. This replaces the previously released Market-led Proposals Interim Guideline, and reflects the recommendations made by the Victorian Auditor-General (VAGO) in August 2015 to improve the guideline and assessment process. In particular, the VAGO identified a need to: improve the level of rigour applied to assessing and realising the intended benefits of unsolicited proposals consider and fully assess alternative funding options for unsolicited proposals require proponents to clearly communicate value for money and define stakeholder engagement strategies.
10 Market-led propoals What is the future? Queensland State Framework Scope of Proposals Stages Project Assessment Framework Guidelines for the Assessment of Market-Led Proposals www.treasury.qld.gov.au/projects-infrastructure/initiatives/ market-led-proposals/index.php Delivery of services to or on behalf of government Provision of infrastructure Access to government assets Access to government information Seeking government support to undertake a specific commercial activity Three stage process, in addition to an optional pre-submission stage: Stage 1: Initial proposal 1A: Preliminary assessment 1B: Strategic assessment Stage 2: Detailed proposal Stage 3: Final binding offer Assessment Criteria Cost recovery Proponent s Costs Community need/government priority Value for money Uniqueness/intellectual property Benefit of proponent s preliminary investment Risk/cost allocation Capacity and capability of the proponent Feasibility Public interest and benefits to government Competing proposals The proponent is responsible for its own costs government does not reimburse proponents costs associated with the development of MLPs. Cost recovery Government s Assessment Costs Intellectual Property Rights At the discretion of government, it may seek to enter into an agreement with the proponent for the recovery of the government s assessment costs. This may include, but is not limited to, costs relating to internal resources applied to the assessment, external advisor fees and reasonable travel. Where a MLP is not accepted by the government and instead an alternative process is undertaken (e.g. competitive bidding process or third party development) government agencies must not inappropriately disclose or utilise any genuine intellectual property provided by a proponent to government. Proposals under assessment (Stage 2): Logan Enhancement Project Transurban Brisbane Cruise Ship Terminal Port of Brisbane Submitted Proposals
Market-led propoals What is the future? 11 New South Wales Unsolicited Proposals Guide for Submission and Assessment www.nsw.gov.au/your-government/unsolicited-proposals Victoria Market-Led Proposals Guideline www.dtf.vic.gov.au/publications/infrastructure-delivery- publications/market-led-proposals-guideline/market-led- Proposals-Guideline Delivery of services and projects Construction of infrastructure projects Provision of services Three stage process, in addition to an optional pre-submission stage: Stage 1: Initial proposal 1A: Preliminary assessment 1B: Strategic assessment Stage 2: Detailed proposal Stage 3: Final binding offer Uniqueness Value for money Whole of government impact Return on investment Capability and capacity Affordability Risk allocation Five stage process, in addition to an optional pre-submission meeting: Stage 1: Preliminary assessment of ideas or proposals Stage 2: Strategic assessment, interim due diligence and recommendation Stage 3: Detailed due diligence, investment case and procurement preparation Stage 4: Negotiation and assessment of final offer Stage 5: Contract award Service/project need and government objectives Value for money Innovative and benefits to the public Feasibility and capability Uniqueness Government will not normally reimburse costs associated with unsolicited proposals. At Stage 2, government may seek to enter into a Participation Agreement containing detail of cost arrangements. Reimbursement of costs of the proponent will only be considered if the proposal progresses to Stage 3. Cost reimbursement will be decided by government on a case-by-case basis and should be documented and agreed at the start of Stage 3. The government is responsible for its costs in assessing the proposals as submitted. If the proposal does not meet the assessment criteria and the opportunity to participate is offered to the market, the government will respect any IP owned by the proponent. Where the government chooses not to proceed with the proposal and wishes to use IP, appropriate compensation will be considered. Completed proposals: Crown Sydney Resort University of Sydney NorthConnex Proposals under assessment (Stages 2/3): Macquarie Square AMP Capital and Macquarie University Wynyard Place Brookfield Office Properties Australia Pty Ltd Unsuccessful / withdrawn proposals: University of Western Sydney Echo Entertainment Completed proposals: CityLink Tulla Widening Proposals under assessment: Digital Train Radio System Upgrade Victoria Police Centre Western Distributer Unsuccessful / withdrawn proposals: Cranbourne Pakenham Rail Corridor Moolap Saltworks Urban Renewal
12 Market-led propoals What is the future? Critical success factors for government and proponents MLPs face a series of challenges that can be seen as being associated with overcoming perceptions and objections that over many years have formed part of the DNA of government and the private sector. These include: For government: achieving outcomes that meet government priorities and objectives overcoming concerns about purchasing without competition and not achieving value for money being seen to be picking winners deterring the rent-seeker delivering an efficient and timely outcome without compromising a consultative and robust decision process providing a level of certainty to the private sector regarding the process, milestones and stage gates understanding private sector concerns regarding bid costs, process risk, and protection of IP. For proponents: demonstrating uniqueness to government demonstrating value for money If experience can be taken as a guide, achieving outcomes that satisfy government and the private sector will be challenging in the greater majority of cases. A successful report card for the MLP framework is likely to involve a combination of clear early decisions to reject proposals, early advice and clear directions on how proposals may need to be modified, and a smaller number of well-structured success stories. Forty submissions could not be expected to result in 40 successfully completed MLPs. Successful outcomes can only come from good-will, common-sense, a healthy dose of pragmatism, and a willingness of both sides to understand the perspectives of each other. Looking ahead So where is the MLP framework heading in Queensland? Is the new proposal a meeting point for the private sector and government? MLP frameworks have the potential to generate highly effective outcomes between government and the private sector as long as the critical success factors are observed for government and private sector proponents, and all parties have realistic expectations. overcoming concerns regarding certainty of process, timing, and outcome protecting IP avoiding significant bid costs whilst providing high-quality proposals.
Market-led propoals What is the future? 13 About the authors Graham Matthew Graham is the Partner in Charge of KPMG s Infrastructure and Projects Group in Queensland. Graham has more than 25 years of experience in advising on major infrastructure projects including financial and commercial assessments, project modelling, risk analysis, strategic options analyses, project evaluation, procurement strategy, project restructuring, and capital raising. He is presently advising on some of the largest infrastructure projects in Australia in the rail, port, road, and social infrastructure sectors and has advised on a number of market led proposals. Prior to joining KPMG, Graham was a General Manager of Queensland Treasury Corporation and was a trusted adviser to the State of Queensland on matters of funding, procurement, and commercial and financial risk assessment and commercial policy on major infrastructure projects, government investments, and commercial arrangements in the rail, port, energy, water, justice, health, and accommodation sectors. He is also a former Vice President and Corporate Finance Group Head for Citibank in Queensland. Andrew Hoyling Andrew is a Director in KPMG s Infrastructure and Projects Group. Andrew has over 14 years of experience in infrastructure investment and advisory roles. He has advised corporates and government and undertaken principal investments across a range of infrastructure types including rail, port, road, social and energy and for both greenfield and brownfield projects. Andrew's experience includes roles in project feasibility assessment and investment evaluation, commercial structuring and documentation, transaction execution, preparing investment proposals, financial modelling, joint venture arrangements and asset management. Sarah Freyne Sarah is a Senior Executive in KPMG s Infrastructure and Projects Group, with extensive experience in project finance and infrastructure advisory roles. Sarah has worked with both the public and private sectors in Europe and Australia, and is skilled in procurement design and development, financial and commercial analysis, contract development and negotiation, commercial structuring, and transaction execution. Prior to joining KPMG, Sarah worked in Barclays Debt Finance team in London, where she worked on a number of project finance transactions across the renewable energy, water, and road sectors.
Contacts Want to know more or want assistance with a MLP? Graham Matthew Partner 0419 737 073 gmatthew@kpmg.com.au Andrew Hoyling Director 0403 445 208 ahoyling1@kpmg.com.au Sarah Freyne Senior Executive 0429 334 127 sfryene@kpmg.com.au kpmg.com.au The information contained in this document is of a general nature and is not intended to address the objectives, financial situation or needs of any particular individual or entity. It is provided for information purposes only and does not constitute, nor should it be regarded in any manner whatsoever, as advice and is not intended to influence a person in making a decision, including, if applicable, in relation to any financial product or an interest in a financial product. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. To the extent permissible by law, KPMG and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information (including for reasons of negligence, negligent misstatement or otherwise). 2016 KPMG, an Australian partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. The KPMG name and logo and are registered trademarks or trademarks of KPMG International. Liability limited by a scheme approved under Professional Standards Legislation. March 2016. NSW N13826INFRA