Public procurement and PPP
Is the laws governing procurement and PPP normal or particular?
The laws governing procurement within the Netherlands relies on European Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, and was applied within the Netherlands within the Public Procurement Act 2012 (amended 1 July 2016) and its delegated laws and pointers.
With regard to port growth, some extra particular guidelines based mostly on Directive 2014/25/EU (particular sectors) are relevant to port growth procurement.
There isn’t a complete legislative framework for public–personal partnerships (PPPs) within the Netherlands. PPP tasks are often tendered, making use of present procurement laws. Dutch PPP tasks are usually ruled by standardised design–construct–finance–preserve(–function) (DBFM(O)) contracts (model 5.0).
Might the federal government or related port authority contemplate proposals for port privatisation/PPP apart from as a part of a proper tender?
There are not any particular guidelines relevant to the privatisation of Dutch authorities entities. Privatisation of a port authority doesn’t essentially contain a proper tender. Property beforehand owned by a neighborhood authorities could also be transferred or leased in perpetuity to the newly fashioned impartial port authority, however the authorities has retained a full possession curiosity within the newly fashioned privatised port authority in Rotterdam.
Three way partnership and concession standards
What standards are thought-about when awarding port concessions and port three way partnership agreements?
In lots of tender procedures, the award criterion is essentially the most economically advantageous tender. Generally used sub-criteria for the award of a challenge are the worth (internet current worth), the danger administration plan and the worth of sure dangers listed within the tender pointers (listed dangers) accepted by the personal social gathering. The award of port concessions and port three way partnership agreements is steadily determined by the related port authority or commissioning authority. For instance, with regard to the challenge to reclaim land from the North Sea (Maasvlakte II), the Port of Rotterdam Authority used the factors beneath for the concession of a container terminal:
- the monetary bid, together with quantity ensures and income projections (40 per cent);
- the marketing strategy; in different phrases, the diploma to which the brand new terminal would appeal to new cargo to the port (25 per cent);
- the sustainability of the bid, together with percentages of rail, truck and inland waterway modes of transportation that might be used (20 per cent); and
- the terminal idea, with regard to the effectivity and the standard of the proposed terminal (15 per cent).
Is there a mannequin PPP settlement that’s used for port tasks? To what extent can the general public physique deviate from its phrases?
These days, the Dutch authorities recurrently opts for DBFM(O) contracts to grasp massive public works and transport infrastructure tasks. All parts regarding the design, realisation and upkeep of a constructing challenge type an integral a part of one contract to be commissioned by the commissioning social gathering to the contractor. Distinctive for a design–construct–finance–preserve (DBFM) contract is that the financing of the constructing challenge is shifted to the contractor in change for normal funds as compensation in the course of the operating interval of the contract. Since there’s a hyperlink between the operating interval and the financial lifetime of the realised works, the contract is often concluded for an extended interval (20 to 25 years).
A consortium is, typically, included as a particular function automobile (SPV) to conclude and execute the contract for the port growth with the commissioning social gathering (authorities). An SPV is a personal firm with restricted legal responsibility financed both by banks and fairness capital or by loans from the federal government itself, all in change for shares within the firm. It may be mentioned that working a port has develop into an attention-grabbing enterprise, attracting the eye of huge funding teams and fairness fund managers.
The Dutch authorities issued a typical DBFM mannequin settlement for giant infrastructure tasks initiated by the nationwide authorities, however events are free to deviate from this mannequin. Moreover, there are pointers that present a call mannequin with regard as to if a challenge is appropriate for PPP and, in that case, for DBFM. Just lately, native governments have additionally experimented with a light-weight model of DBFM for smaller port growth tasks.
For present port areas, the related port authorities apply customary phrases and situations of their sublease agreements.
What authorities approvals are required for the implementation of a port PPP settlement in your jurisdiction? Should any particular regulation be handed in your jurisdiction for this?
For the realisation of the challenge, a wide range of permits could also be required associated to the surroundings, development, and occupational well being and security requirements. With regard to a DBFM settlement itself, a nationwide authorities company might want to get hold of approval from the Minister of Finance. Below sure circumstances, massive tasks financed by the federal government could also be considered state support throughout the European context and, in these circumstances, approval from the European Fee is subsequently sought earlier than there may be substantial authorities funding in port areas. Nonetheless, in Might 2017, the scope of Regulation (EU) No. 651/2014 was prolonged to ports. Public investments of as much as €150 million in seaports and as much as €50 million in inland ports can now be made with out the approval of the European Fee.
On what foundation are port tasks in your jurisdiction usually applied?
Comparatively massive tasks could also be applied as DBFM(O) tasks. Different tasks may be applied as a traditional authorities procurement for works, as both a design–construct challenge or a design–construct–preserve challenge.
Time period size
Is there a minimal or most time period for port PPPs in your jurisdiction? What’s the common time period?
There isn’t a minimal or most time period for concessions or PPPs. Within the concession for a really massive challenge involving a big funding from personal events, such because the newly constructed Maasvlakte II, a time period of 60 years may be utilized. Normally, concessions and lease agreements in port areas are concluded in 20 to 30 years. In precept, authorities businesses are free to find out the time period. Nonetheless, a time period could also be considered too lengthy if it isn’t proportional to the investments that the concession holder is required to make (see ECJ 9 March 2006, C-323/03, Fee v Spain).
On what foundation can the time period be prolonged?
In precept, the time period could also be prolonged if offered for within the concession, however this isn’t a typical method.
What payment constructions are utilized in your jurisdiction? Are they topic to indexation?
With regard to the land hire of present port areas, the port authority leases or subleases plots of the port space to personal firms. On the premise of these lease agreements, the port authority could cost an occupancy payment for the positioning (mounted per sq. metre or per metre of quay size) and for the services (if relevant). These charges could also be topic to reductions particularly negotiated with the port authority. Usually, the occupancy payment is revised yearly in keeping with inflation. Concessions of port terminals could comprise cargo dealing with charges (income sharing).
Moreover, port authorities could gather harbour dues for the availability of providers, that are calculated on the premise of a number of variables corresponding to gross tonnage, the kind of the vessel and the kind of cargo. The marina dues or berthing charges, buoy dues and dolphin dues are based mostly on a hard and fast payment per linear metre of the ship (total size). The waste charges are based mostly on the capability of the primary engine of a ship; exemption from the waste contribution is feasible offered that various necessities are met.
Does the federal government present ensures in relation to port PPPs or grant the port operator exclusivity?
Usually, the federal government doesn’t present any ensures. A concession, lease or sublease settlement inherently grants exclusivity to a port operator at some point of the concession, lease or sublease settlement.
Does the federal government or the port authority present some other incentives to traders in ports?
The Rotterdam Port Fund (RPF) is an impartial funding fund that was established on the finish of 2016. It’s an initiative by the port of Rotterdam and 4 personal traders. The RPF invests in fast-growing firms that aspire to be part of the transition to the port of the longer term. The 5 traders collectively put roughly €50 million into the fund. They need to finance fast-growing and revolutionary firms which have a relationship with the port sector. The Port of Rotterdam Authority goals to hurry up the vitality transition – the transition from a port aimed toward fossil fuels to using renewable uncooked supplies.
Corporations that spend money on the ports of Rotterdam and Amsterdam are being financially stimulated. That is finished on a person and tailored foundation, relying on the enterprise case at hand. For this function, the port authorities could make use of value mechanisms which are out there to them. Corporations which have a clearly detrimental impression on the surroundings or that concentrate on the storage and transhipment of fossil fuels are not provided any land within the Rotterdam and Amsterdam port areas.