ABSTRACT
Public private partnership (“PPP”) is a project finance model based on sharing the financing, risk, asset or operation of projects –those especially require high investments- with private sector institutions with the purpose of taking the financial burden off the government. The model which is started to be applied in 1660s with the road construction projects with the participation of private sector in the UK continued to be prevalently used in Turkey since 1910 upon the first legal regulations regarding concession in Ottoman period. Although PPP models differ in accordance with the specific project or the local legislation, they are classified based upon various criteria by international organizations. Mentioned models are mainly composed of concession, buildoperate-transfer, build-lease-transfer and transfer of operating rights and the special provisions regarding various sectors in compliance with the legal foundations in Turkey. As a result of this structuring, the current developments in Turkey especially in the fields of health and education in respect to PPP models are examined in this article.
1. PUBLIC PRIVATE PARTNERSHIP AS A PROJECT FINANCE MODEL
1.1. Introduction
Public private partnership is a project finance model to ease the financial burden of goods and services that are traditionally served by the government. It is also made to realize the projects, which burdens or exceeds the government budget or require high amounts of investment.
In the financing of the public projects, the most traditional method of financing is the execution by the government, therefore realizing the goods and services by means of covering the costs from the government budget. In this case, since the government undertakes all the risks of the project, the profit of the project is transferred to the government budget. Therefore, in contrary to the traditional government financing model, the privatization model which is developed in the course of time, the project is being financed by the private sector, which takes up all financial burdens with all its risks and profits.
Since existing models could not serve the need of certain projects, the PPP models are brought in to fill this gap in the business sector, which requires close cooperation between public and private sector. The PPP models enabled the participation of the private sector in publicly owned projects, where the presence of the government is essential. Therefore, the PPP models solved the financing issues at publicly owned projects1. This project finance model is being employed in large scale projects, which require high investment and commonly employed in sectors like infrastructure investments, energy, health, education or transportation.
1.2. Historical Development
The first practices of the projects realized through the collaboration of the government and the private sector commenced with the road construction projects in the UK in 1660s. Especially by the time of 1860s the practices of PPP peaked up through the canal and railway construction projects after the industrial revolution. However many of the investors went bankrupt because of the economic crisis that struck Europe. The application of this PPP model commenced first United Kingdom, and was later followed by countries like United States and France. It is worthwhile to mention that even the Suez Canal in Egypt was financed by this PPP model, which was completed in 1869 by Said Pasha2.
The first application of PPP models in its current form was first applied in 1992 in the UK upon the abolition of the legal regulations which prevented the entrance of the private sector to public area and was known as Private Finance Initiative (PFI)3. Upon successful implementation of the model in the United Kingdom, many countries led the filed including United States of America, Ireland, Spain, Portugal, Germany, France and Italy. While the number of the countries implementing PPP model was about ten in 1999, today the number is more than a hundred4.
1.3. Public Private Partnership Models
When PPP models are reviewed, all the methods from design-build to concession provides hints about the relationship between public and private sectors. Therefore, it can be said that the more closer the design and building process approaches privatization, the more risky it will be, alongside with the responsibilities5. Respectively, each PPP model is developed around particular rights and obligations deriving from different contracts. PPP models are classified by international organizations based on the criteria consisting of the responsibilities of private company in partnership, and whether the operation of the intended cooperation is public or private sector’s power or whether the assets subject to the partnership is in public or private sector’s ownership. By virtue of the World Bank reviews, the range of PPP models can be listed as presented in hereinafter table6:
According to this classification, PPP model can be divided into three groups depending on the public or private sector participation:
1.3.1. PPP Models Subject to Public Operation and Ownership with Very Limited Participation of Private Sector
In these models, the government provides public services to public disclosure by taking up the risks and costs of those projects, by endorsing both public asset values and that of private companies. In the formation of these models, the government aims to increase the efficiency of services that are being delivered or to be initiated by the government usually in the standards determined in the performance contracts, by means of maintaining the fulfillment of delivery of the public services via private sector.
1.3.2. PPP Models which Contain Sharing not only Operation and Ownership but also Risks between Public and Private Sector:
1.3.2.1. Operation and Maintenance Contract (O&M Contracts)
In this kind of contracts, operation of certain works are transferred to the private sector for the period, which is determined under the contract. These works vary from technical support regarding the delivery of the public services to comprehensive operation and maintenance.
This type of PPP models may appear as build-operatetransfer or concession contracts. As an example of such PPP types, water and sanitation procurement, energy projects, and contracts on transfer of the license or operation of train and railways can be given. Generally, PPPs based on international model contracts such as FIDIC, JCT or ICE are also in this scope.
1.3.2.2. Lease Contracts
These PPPs are the ones that private sector operator is responsible for both management as well as the maintenance of public service institutions but has no responsibility of financing the investment. The risks under these kinds of partnerships mostly fall under the responsibility of private sector operator.
Accordingly, the operator is availed of plenty of the incentives for the efficiently delivering the public service. Unlike operation and maintenance contracts, the operator does not fulfill the works that he/she has undertaken for a fixed price. Subsequently, he/she finances the operation by charging the consumer with a certain amount of operating fee or government in the ratio of consumers. As an example of that, leasing the water and sanitation or energy operations to the private sector institutions can be given.
1.3.2.3. Concession, Build - Operate - Transfer, Design - Build - Operate and Similar Contracts
These contracts are product-oriented PPP contracts and they cover the long-term operation of the projects to be built or renovated in addition to the design and construction of them. The projects subject to these contracts can be projects to be newly built (greenfield) or already built but containing significant restoration or development (brownfield).
Under the concession contracts, the government provides to the concessionaire a long term utilization of the public asset of the public service institution. In return, the concessionaire private sector institution undertakes the responsibility to operate the project subject to the contract and invests in a certain level. Herein, the liability and the risk of operation belong to the private sector institution while the ownership and the risk of asset values belong to the public.
Build – operate – transfer projects are the PPP projects that the project contractor private sector institution finances the particular project. In return, the contractor obtains the contract price from the public service institution or the government in the term of operation of the institution subject to the project.
As in the design – build– transfer projects, the public institution finances the construction of the project while the private sector institution designs, builds and operates the project to obtain the products determined by parties in detail.
1.3.2.4. Contracts on the Transfer of the Public Institution in Part or Joint Venture
These contracts are made to transfer a part of shares of the public institution to the private sector institution or for the establishment of a new institution/company ( joint venture) through the joint venture of the public institution and the private sector institution for the purpose of development of a new project. Because of the strategic reasons, the administration of the related public institution or the joint venture is generally left to the private sector institution. But, it is also common that the veto rights of the public are preserved in the administration of the new company or institution.
1.3.3. The PPP Models Subject to Operation and Ownership of Private Company with the Limited Participation of the Government
This means the privatization or the PPPs in which the public institution is transferred in its entirety to the private sector institution. In these cases, the privatization may take place with sales of an asset or an equity share. Generally the government protects its veto rights under the name of golden share in the sales of the equity share. At the same time, these partnerships can also be established with the government keeping some liabilities in the context of the subject matter transfer.
1.4. Risk Sharing in the Public Private Partnerships
Risk, which is defined as “expense, cost or uncertainty about the damage”, is unavoidable in public private partnerships as well as in all the project finances. The risks containing substantial damages are superabundant particularly in the developing states. Therefore, it is crucial that the risks in each project are properly determined, analyzed and distributed7.
The basic understanding in the project finance is that each risk is borne on behalf of the party who is able to bear this risk. To prevent the risks is interpreted as both having control over these risks and covering possible expenses. In this context, generally;
• Development, construction, completion and operation risks belong to the private sector institution and
• Political risks, uninsurable force majeure and risk of “uncertain request” belong to the government.
Certainly, every risk taken by the private sector institution necessitates that contract price, charging in the term of operation, incentives or similar contributions to be provided by the government. Every single risk left to the public institution is determined based on whether the control or influence of the institution is subject to the mentioned institution or the government or the material value of it in case of where it gets beyond control.
2. LEGAL BASIS AND DEVELOPMENT OF PUBLIC PRIVATE PARTNERSHIP IN TURKEY
2.1. Development in Turkey
In the last quarter of 20th century, the concept of the government has changed from a monopolistic government producing and providing services, especially regarding the infrastructure services, to a government determining political regulations and managing them. In this direction, legislation is amended to concord with the PPP administration. Furthermore, the specialization on the process is targeted by creation of the special units that deal only with the PPP projects within an organizational structure.
If the background of the PPP models is investigated in Turkey, primarily, we have to mention “Law on Concession for Public Interest” dated 1910 from the Ottoman Era. This law which is still in force constitutes the basic foundation of the transfer of the services qualified as concession to the private sector. Especially from 1980s to present time, the legal regulations on PPP models regarding their various sectoral implementations continued to rise. Even, the effect of the freedom of contract is increased in these models by accepting that some PPP contracts are subject to the private law. The tables showing the size of the PPP projects in Turkey at present are below:
2.2. Legal Basis
Applicability of the PPP models in the delivery of the public services in Turkey depends on providing the essential legal infrastructure. The current legal infrastructure in this context is considerably insufficient, complicated and disorganized.
The last paragraph of the article 47 of the Constitution of the Republic of Turkey (“Constitution”) states that: “Those investments and services carried out by the State, state economic enterprises and other public corporate bodies, which could be performed by or delegated to persons or corporate bodies through private law contracts shall be determined by law.” According to this provision, the government may execute the public services via the private sector institution with the condition of an available legal basis.
In line with the given provision of the Constitution, a legal framework does not exist in the Turkish law. However, the Ministry of Development, previously called State Planning Organization, prepared a draft law in 2007. The Public Procurement Agency also prepared a draft law in 2009. Both of these drafts are prepared for the development of a legal framework. However these drafts are still not on the parliament’s agenda. Apart from that, the laws and disorganized regulations are still in force with their current states. These regulations comprise the regulatory special provisions of rules and procedures related to the implementation of the PPP models in different sectors. Mentioned draft laws and current legal regulation are explained below.
2.2.1. Legislative Drafting regarding Public Private Partnership
Two different draft laws were prepared by the Ministry of Development in 2007 and the Public Procurement Agency in 2009 with the aim to create a legal basis for PPP, efficient fulfillment of the delivery of the public services by removal of the uncertainty that arises due to the lack of a legal regulation.
2.2.1.1. Draft Law Prepared by the Ministry of Development
A draft law with the name “Draft Law on the Execution of some Investments and Services within the Scope of the Partnership Models between the Public Sector and the Private Sector” was prepared by the Ministry of Development in 2007. Some investments and services executed by the public administrations with the central administration, social security institutions, local governments and the public economic enterprises to be executed through PPPs was aimed with this draft.
In this draft, it is stated that public institutions can establish a partnership with the private sector for implementation of a project and/or providing financial contribution by the PPP model under the related regulations, with the condition that private sector’s shares cannot be more than 49%. Its realization is bound to the Higher Planning Council’s consent.
The most important feature of this draft is that PPP models are not limited in respect to variation. Therefore, a freedom of contract is provided into the framework presented to the related partnerships.
2.2.1.2. Draft Law Prepared by the Public Procurement Authority
A draft law prepared in 2009 by the Public Procurement Authority on “Public Procurement and Sectoral Procurement and Concession Tenders” aims to determine the rules and procedures on the concession tenders regarding the works subject to concession in public procurement or sectoral procurements.
However, taking into consideration the great difference between public procurement and PPPs, especially in terms of their financial structure, it is tenable to say regulating these two subjects in the same law was inappropriate. For instance, specific subjects as in facility transfer, guarantees and risks that take part in the process of conducting PPPs cannot be encountered in a typical public procurement. Thus, if the draft aims to set regulations exclusively for the public private partnerships, a proper regulation should be set in accordance with this.
2.2.2. Current Legislation
As mentioned in the previous section, there is no enacted regulation available although there are drafts related to the legal frameworks on PPPs. However, enacted regulations regarding the rules and procedures and generally oriented towards sectors regarding the realization of PPPs are listed in the table below:
2.3. PPP Models in Turkey
Although there is no legal framework regulating PPPs in Turkey, since 1980, various PPP models are adapted into public service projects considering international customary law8. Some of the models in force including their primary features are explained below:
2.3.1. Concession
Law on Concession about Public Interest numbered 576 and dated 10.06.1910 is the foundation of the concession contracts. It mediates the transfer of the management duty on the infrastructure and public services of the public administration to the private sector institutions.
In its decision dated 29.04.1993 with merits no. 991/1, decision no. 993/173, the 10th Chamber of the Council of State indicates the distinctive feature of the concession contracts as; “If the fulfillment of a duty with the characteristics of a public service is transferred to a private enterprise by an administrative contract, the public service to be conducted by means of concession is in question; and the distinctive features of the concession contracts from others are the fees of the services based on the tariff determined by law to be collected during the concession and the transfer of the service to be made for a long and specified period.”9 Concession contracts are subject to review of the Council of State and public law.
2.3.2. Build – Operate – Transfer
Build - operate - transfer model is defined as a special financing model in which the profits of the sales of the produced goods and provided services are used to cover the costs of the investor.
According to the latest amendments, the built – operate – transfer models which are subjected to the law numbered 3996 are also subject to private law provisions and separated from those related to electricity production, transmission, distribution and trade as per the law numbered 3096 and those related to road construction, maintenance and operation as per the law numbered 3465.
2.3.3. Build – Operate
Build – operate model is exclusively regulated by including only the construction and operation of the power plants and healthcare facilities owned by the investors. Hydroelectricity plants, geothermal plants, nuclear plants and all other plants that operate on renewable energy sources are out of the scope of this law. Contracts within the context of this model are regulated by private law and local or international arbitration can be chosen to settle disputes.
2.3.4. Build - Lease - Transfer
Build – lease- transfer model is put into practice through the Health Services Fundamental Law and can only be applied for projects concerning health services. The Ministry of Health applies build – lease – transfer model for investors, which rents the health facilities after building them on public properties. In these facilities all services are fulfilled by the private sector except the health services. This model is subject to private law provisions.
2.3.5. Transfer of Operating Rights
In the transfer of operating rights model, administration transfers its operating rights of the concerned public institution to a private sector institution, under certain conditions and for a period of time.
2.4. Developments on Public Private Partnership in Turkey
2.4.1. Public Private Partnership in Health Sector
The fundamentals of the PPP model in Turkish health sector are based on the Health Services Fundamental Law numbered 3559 (“Law numbered 3559”). In accordance with the Law numbered 3559, upon the decision of the Council of Ministers, health institutions belonging to public institutions and organizations can be converted into health enterprises with the possession of public entity. In this way, the management in health sector is separated from conducting health services.
The first regulation on conducting health services via PPP is regulated under the additional article 7 of the Law numbered 3559. According to this; “By the decision of the Higher Planning Council regarding the necessity of the health facilities can have (…) a natural person or a legal entity determined through a tender build on the real property belonging to itself or the Treasury by in exchange for lease for a period of time and price with the condition not to exceed forty nine years.” Subject matter primary features of health facilities are determined by the Ministry of Health and predetermined bidders are determined through tender.
In this context, in 2006, Regulation on the Health Facilities to be Built in Exchange for Lease and to be Refurbished in Exchange for Operation of the Areas and Services out of the Areas of the Medical Services of Facilities (“Regulation”) was entered into force.
The Law numbered 6428 was entered into force in order to obviate criticism on the additional article and the mentioned Regulation provisions10. As per the Law numbered 6428, “Ministry of Health and its affiliated institutions; (…) can have the contractor build facilities on the Treasury’s private property in exchange for remuneration regarding independent and continuous right of construction established in a contract free of charge in favor of the contractor by the Ministry of Finance.”
Thus, besides the health facilities, the renovation operations of the facilities in use can be left to the private sector in accordance with the rules determined by the Ministry of Health, in exchange for the delivery of certain services in the facilities and/or operation of commercial service areas and/or the payment of its price.
Application Regulation on Building, Restoration and Obtaining Service with Public-Private Sector Cooperation by Ministry of Health which is cited in the law was entered into force with the publication of the official gazette dated 09.05.2014 numbered 28995. It especially regulates tender procedures in detail.
The most conspicuous discussion on PPPs in the healthcare area is whether to include medical services which are the core area of health services to PPPs11. As a result of lack of an existing legislation on this subject, a serious freedom is given to administration on the transfer of health services. Even though a medical service cannot be transferred in PPP projects in practice, lack of a provision which limits this application is against the purpose of health politics12.
Another important subject is that the PPP models in the field of health in Turkey are based on traditional organization principles with uncertain limits that create liberty in practice. It is required that an organization based on general administration principles in which the services are subject to centralized planning. In this way, the services would be provided through public sources and civil servants while the financing would be covered through taxes, and the risks are covered in a pool. Unfortunately, the current situation carries a great risk with the largescale buildings where the efficiency is uncertain13.
2.4.2. Public Private Partnership in Education Sector
A legal framework regarding the PPP formation in the educational area is not available, though a much dispersed practice is followed by planning and conducting certain projects in the educational area.
The most important project among these projects is the ‘education campuses’ project which came after negotiations with an amendment in the article 16 of the National Education Basic Law numbered 1739, in 2009. The finance model preferred for this project takes its infrastructure from the build – lease – transfer model.
As per the article 23 of the Decree Law on Organization and Duties of Ministry of National Education (“Decree Law”) dated 25.08.2011 and numbered 652, education and training facilities can be built by natural persons or private law legal entities through a tender within the context of preliminary project given by the Ministry and the fundamental standards. It is built on government’s property, in exchange for lease for a period of time and price, with the condition that it should not to exceed forty nine years. According to this regulation, in the education campuses, where there are more than one education institutions, to fulfill the common needs of these institutions, a campus management will be established and the revenue will be collected through managing common open-air area, canteen, auditorium and related areas within the campus.
Also, businesses and operations carried in this context will not be subject to the Public Procurement Law, but rather to the Regulation on the Education and Training Facilities to be Built in Exchange for Lease and to be Refurbished in Exchange for Operation of the Areas and Services out of the Areas of the Education and Training Services of Facilities dated 27.08.2012 and numbered 2012/362 based on the abovementioned Decree Law.
Conclusively, the legal basis of the education campuses project is a decree law and it constitutes a contradiction with the article 47 of the Constitution which states that the public investment and services to be transferred, has to be regulated under a law and the article 123 of the Constitution. However, the process taking the education campuses project, within the context of abovementioned regulations, has been officially endorsed with the architectural project competitions declared on 30.11.2012. In this context, education campuses will be built by the project contractor firms and leased for twenty years by the Ministry of National Education. At the end of this period, they will be transferred to public. During the lease period, the contractor firms will have concession on providing all kinds of services for the campus and the operation of the areas outside of education and training14.
2.4.3. Treasury Guarantee
According to the Law on the Regulation of Public Financing and Debt Management numbered 4749, the treasury can guarantee public administrations, which includes the central government, social security institutions, state economic enterprises, institutions whose more than fifty percent of capital is owned by public. Also funds, public banks, investment and development banks, metropolitan municipalities, municipalities and their affiliated institutions and other local government institutions are included. This guarantee is provided only for the projects within the scope of build – operate – transfer, build – operate, transfer of operation right and similar financing models.
Rules and procedures related to these guarantees are regulated under the Regulation on Assumption of Indebtedness by the Secretariat of Treasury. According to this regulation, in case an investment exceeds a ceratin amount, treasury guarantee can be provided for the external loans supplied for the projects.
Treasury guarantee has an important role as an incentive for the large scale public investment PPP models and contributed greatly for the PPP models expand throughout Turkey.
3. CONCLUSION
As a project finance model, PPPs are first used to provide financing needed for infrastructure investments of countries. With the PPP models, the benefits of the private sector is introduced with regard to its managements skills, while the public sector can concentrate on public planning and supervision activities. Despite the similarities as to the goals and sectors where PPP models are operating, the models and implementations of these PPPs in each country shapes around the needs of both public and private sectors around their idiocratical methods.
In this respect, PPP models have been introduced since 1910 in Turkey and they have been increasing ever since. These models were classified by international organizations depending on different criteria, like discribution of capital, risk and operation responsibility, concession, build-operate-transfer, build-operate, build-lease-transfer and transfer of operating rights models. Subsequently, health campuses integrated into health field and education campuses integrated into education field and related many PPP models came into effect. However, unlimited planning systems and their foundations which are close to public and insufficient legal regulations cause largescale buildings with a skeptical productivity.
In order to combine political consolidation with economic consolidation, PPP models have enabled by the cooperation of Turkish banks, professional legal experts, bankers and officers. By informing the cooperating partners on PPP, international know-how is brought to Turkey, which triggered the expansion of PPP models in Turkey and therefore the legal regulations especially in the fields of health and education appears as inevitable.
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FOOTNOTE
1 Acartürk, E. (2012). Public Private Partnership Model in Turkish Health Sector. Süleyman Demirel University The Journal of Faculty of Economics and Administrative Sciences, 25-51, I.17, P.3.
2 Çekirge, H. (2006). Implementations of Public Private Partnership in the World and Turkey and Evaluation of Financial and General Advantages of Model in an Example Project. İstanbul: Unpublished Post Graduate Thesis, Istanbul University.
3 Green Paper on Public Private Partnerships and Community Law on Public Contracts and Concessions, Brussels, 30.04.2004, COM (2004), 327 T.R. Ministry of Finance, Head of the EU and External Affairs Department, European Commission, Public Private Partnerships and the Green Book on Public Tenders and Concessions in Community Law, paragraph 23, footnote 27, p. 11: “PFI term which inferred as Private Finance Enterprise is the name of a program used by the British government to renew the public infrastructure. The same model is used in other Member States with certain fundamental changes. For instance in Germany, in the course of the development of “Betreibermodell” the PFI model is inspired.”
4 Uz, A. (no date). Public Private Partnership (PPP) (Term and Legal Framework). The Journal of Gazi University Law Faculty I. XI P. 1-2, 1165-1182.
5 Altan, Y., Kerman, U., Aktel, M., Metin, Y., & Eke, E. (2013). The Implementation of the Public Private Partnership in the Local Governments: The Example of Büyükkabaca Municipality. The Journal of International Alanya Administration Faculty, C:5, S:3, p. 11.
6 PPP Arrangements / Types of Public-Private Partnership Contracts. (2015, March 10). August 24, 2015 Worldbank: http://ppp.worldbank.org/publicprivate-partnership/contracts
7 Crothers, John, D. “Risk Identification and Allocation in Project Finance”, pp. 1-14, Euromoney Learning Solutions, London.
8 Canaz Yılmaz, I. (2009). The Models of Public Private Sector Partnership in Turkey, p.1.
9 Council of State, 10. Chamber, 29.4.1993, M.1991/1-D.1993/172. Council of State Magazine, no:88, p.463.
10 Erdem, E. (May 2013). Public Private Partnership Model in Health Sector. August 24, 2015 ErdemErdem: http://www.erdem-erdem.com/articles/sagliksektorunde-kamu-ozel-isbirligi-modeli/.
11 Karasu, K. (2011). Public Private Partnership in the Organizing of Health Services. Ankara University The Journal of SBF, V: 66, No:3, 226-231.
12 (2003). Healthcare Transformation. Ankara: Ministry of Health, p. 24.
13 Karasu, K. (2011). Public Private Partnership in the Organizing of Health Services. Ankara University The Journal of SBF, V: 66, No:3, 226-231.
14 Büyükcan, T., & Yelken, E. (2015). Schools Migrating Abroad: Education Campuses. The Journal of Education Science Community, V:13, I: 49, 17.
