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

The Procurement Process and 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 finance perspectives for all project stakeholders and how and why the ‘finance imperative’ drives the project and disputes. You will also discuss how to avoid common misunderstandings and to help things run smoothly.

Traditional P3 Agreement and Key Documents

• Unpack the Design‑Build‑Finance‑Maintain (DBFM) project agreement along with other key RFP contracts
• Anatomy and mechanics of core documents, how they relate and where things often go wrong
• How the project documents relate to the trajectory, and which documents are used when
• Examine the DBFM 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 Discussion: Working Through the Project Agreement 

Following an introduction to the program’s unique fact scenario (DBFM), acting as Projectco or a public entity, you will work through the structuring and development of the project agreement and the decision‑making process (before the RFP), in light of key stakeholders, and provide input on risk allocation and management. The discussion will conclude with a group debrief, including a checklist of considerations.

Understanding Risk During Construction

• Where do people stumble/go wrong? Where do things snowball?
• Risk management processes, analyses, allocation and troubleshooting, and managing stakeholder relations
• 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
• Troubleshooting tools and practical insights

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 the funds flowing and overcome common ‘pain points’

Dealing with Performance Security and Insurance

• Key risks, stumbling points and blind spots
• 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 practical considerations and approaches involved with submitting a claim when faced with overrun, delay and going beyond the long stop. You will discuss key documents and considerations and share findings with the class. The session will conclude with a group debrief, a checklist of considerations, risk management and drafting tips.

Understanding Risk During Operations

• Why a 30‑year term? Forecasting technology change (lifecycle refresh) and impacts
• Key risks including scope split and the unique impacts of technology
• Managing stakeholders – examining roles, interactions, communications and project 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
• Adaptive 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 and 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 that deductions have led to a Lender default. You will discuss key documents and issues and share findings with the class. The session will conclude with a group debrief, including a checklist of considerations, risk management and drafting tips.

What Have I Gotten into Over the Next 20 Years?

• Overview of each approach, what each seeks to achieve and important project impacts
• Cutting through web of relationships and navigating key points of intersection
• The pivotal role of lenders and why it matters
• Employing a dispute avoidance approach
• How and why disputes influence legal and process developments

Resolving P3 Disputes: From Early Stages Through to Formal Proceedings

In a series of practical sessions, you will explore the available P3 dispute processes and mechanisms:

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:

• 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 within the project agreements and what to do if the contract seems to be against you
• Anatomy and mechanics – core steps, timelines and what to do when
• Roles and intersections of the parties, and dealing with stakeholders
• Insights for applying a dispute avoidance approach at each stage – internally and externally
• Strategies for framing concerns and disputes
• Communication and negotiation techniques, with specific language and drafting tips
• 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 Discussion: Working Through a Project Dispute

Acting as a Projectco or a Contractor, you will analyze challenges suspected of contributing to ongoing project problems and aim to avoid unnecessary escalation or delay. You will work through issues, suggest suitable strategies and techniques to negotiate, mitigate and resolve problems 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.

Understanding Changing Market Conditions: The Next Generation of P3 Models

• How changing market conditions are 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 is long‑term forecasting important?
• Sustainability in project delivery – key risks, national building code, climate risk, carbon tax, ESG

Exploring Newer and Emerging P3 Models

You will delve into the structures and objectives of Progressive Design Build, Progressive P3, Integrated Project Delivery, Alliancing and Revenue Risk Concession models:

• Overview and critical analysis
• What the model seeks to achieve
• Anatomy and mechanics
• Pros and cons of each
• Practical risk management considerations and strategies, with takeaways and resources

Interactive Activity: Choose Your P3 Model

Using a fact scenario that does not lend itself to a traditional P3 or a conventional project model, you will take part in 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.

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

Legal, finance and industry experts will discuss important developments, where things are heading, and their insights and tips on how to get prepared:

• Are 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 complex 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 multiple‑choice exam requires online completion and a passing grade of 80% due by March 7, 2025.

The program includes three succinct, pre‑recorded classes covering core concepts and principles to help lay a knowledge foundation before class. It is strongly recommended to view all primers prior to attending the program. To obtain your certificate, all three primers must be viewed:

• Landscape of Canadian Infrastructure Delivery (~48 mins, recorded 2023)
• Overview and Key Distinctions of Project Delivery Models Used in Canada (~59 mins, recorded 2023)
• Value for Money Analysis and Crucial Commercial and Financial Terms and Considerations (~64 mins, recorded in 2023)