Overview of the framework

Need for a framework

Economic growth and trade expansion in recent years have

enhanced the relevance of port sector as a critical element in
globalisation of the Indian economy. In particular, this sector
has been witnessing significant interest from both domestic
as well as foreign investors following the policy initiatives
taken by the Government of India to promote Public Private
Partnerships (PPP) on Build, Operate and Transfer (BOT)
basis. However, the actual inflow of investment has been less
than expected, and future prospects will depend on adoption of
a comprehensive policy and regulatory framework necessary
for addressing the complexities of PPP, and particularly for
balancing the interests of users and investors. Moreover,
transformation of rules will have to be accompanied by a
change in the institutional mindset.

This volume responds to the need for evolving a model

document that reflects best practices, particularly from the
perspective of public policy on the one hand and bankability
of projects on the other hand. Besides all the advantages
associated with such a document, this would also enhance the
possibilities of securing upto 20% of the capital costs by way of
viability gap grants from the Central Government coupled with
long-term debt from the India Infrastructure Finance Company
(IIFC) for funding upto 20% of the project costs.

For building and operating port terminals on BOT basis, A comprehensive

framework
a precise policy and regulatory framework is being spelt out
is a pre-requisite
in a Model Concession Agreement (MCA). This framework for PPP
addresses the issues which are typically important for limited
recourse financing of infrastructure projects, such as mitigation
and unbundling of risks; allocation of risks and rewards;
symmetry of obligations between the principal parties;
precision and predictability of costs and obligations; reduction
of transaction costs; force majeure; and termination. It also
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deals with other important concerns such as user protection;

transparent and fair procedures; and financial support from
the Government.

The MCA also elaborates on the basis for commercialising

ports in a planned and phased manner through optimal
utilisation of resources on the one hand and adoption of
international best practices on the other. The objective is to
secure value for public money and provide efficient and cost-
effective services to the users.

Elements of financial viability

The four critical elements that determine the financial

viability of a port terminal are traffic volumes, port tariffs,
concession period and capital costs. The concession period
typically granted by the Port Trusts is 30 years. This timeframe
should normally enable a robust project structure and any further
extension would improve financial viability only marginally as
the present value of projected revenues after 30 years would be
comparatively low from the Concessionaire’s perspective.

The capacity constraints currently faced by major ports

mean that there is effectively no competition in the port sector.
As a result, cargo movement at each port is virtually captive
and volumes are not normally volatile. Over time, efficiencies
at the port level would contribute to traffic diversion across
competing ports, but that would pre-suppose creation of
sufficient capacity at the respective ports.

In view of the limited competition between ports today,

the Government would continue to determine the tariff but it
should be capped in line with the tariffs prevailing in the region.
A pre-determined tariff structure would also lead to greater
predictability of the revenue streams of Concessionaires,
besides incentivising efficiency and cost reduction. In the
medium term, tariffs should find their own levels through
competition, but that can happen only after adequate capacity
has been created.

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As three of the four above-stated parameters would thus be

virtually pre-determined, capital cost is the variable that will
determine the financial viability of a port BOT project. Bidders
may, therefore, seek an appropriate capital grant/subsidy from the
Government/or the respective Port Trust (the “Trust”) in order to
reduce their capital investment for arriving at an acceptable rate
of return. Though PPPs undertaken so far in the sector have been
financially viable and self-sustaining, the Government’s initiative
to build large capacities (with redundancy of upto 30%) could
give rise to the need for Government support in some cases.

Technical parameters

Unlike the normal practice of focussing on construction Technical parameters

will focus on the level
specifications, the technical parameters proposed in the MCA
of service for the users
are based mainly on output specifications, as these have
a direct bearing on the level of service for users. Only the
core requirements of design, construction, operation and
maintenance of the port terminal are to be specified, and
enough room would be left for the Concessionaire to innovate
and add value.

In sum, the framework focuses on the ‘what’ rather

than the ‘how’ in relation to the delivery of services by the
Concessionaire. This would provide the requisite flexibility
to the Concessionaire in evolving and adopting cost-effective
designs without compromising on the quality of service for
users. Cost efficiencies would occur because the shift to
output-based specifications would provide the private sector
with a greater opportunity to innovate and optimise designs
in a way normally denied to it under conventional input-based
procurement specifications.

Performance standards

At the port terminal, the Concessionaire would not only

procure the civil works and equipment, it would also provide
services in the form of cargo handling. The efficiency of its

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services would normally reflect in the dwell time of cargo at

the port terminal. The framework identifies benchmarks for key
performance indicators such as dwell time, berth productivity,
vehicle service time and ship handling productivity, and
specifies penalties for continued failure in achieving the
requisite levels of performance.

Concession period
Concession period The guiding principle for determining project-specific
to be normally
concession period should normally be the capacity of the
thirty years
respective port terminal to handle the expected cargo at the
end of the proposed concession period. However, in the
case of port terminals, capacity constraints would normally
be addressed by construction of additional terminals at the
same or adjacent ports. As such, it would be advantageous to
allow a longer concession period both from the perspective
of the concessionaire as well as the Government. The Major
Port Trust Act, 1963 stipulates a maximum period of 30 years
and unless there are reasons for making an exception, the
concession period should normally be fixed at 30 years.

The time required for construction of a port terminal (about

two years) has been included in the concession period so as
to incentivise early completion, leading to maximisation of
revenues.

Selection of Concessionaire
Competitive bidding Selection of the Concessionaire will be based on open
on single parameter
will be the norm competitive bidding. All project parameters such as the
concession period, tariff, price indexation and technical
parameters are to be clearly stated upfront, and short-listed
bidders will be required to specify the proportion of revenues
from user charges that they are willing to share with the Port
Trust. The bidder who offers the highest revenue share should
win the contract. In exceptional cases where instead of offering
a revenue share, the bidders seek a capital grant/ subsidy
from the Government/ Trust, the bidder who seeks the lowest

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grant would win the contract, subject to a maximum subsidy

of 20% of project cost and an additional 20% for O&M after
commissioning the port terminal.

Concession fee

Concession fee will be a fixed sum of Re. 1 per annum for

the concession period. Where bidders do not seek any grant
and are willing to make a financial offer to the Government/
Trust, they will be invited to quote a higher concession fee
in the form of a share in revenues from tariffs. The revenue
share quoted for the initial year could be increased for each
subsequent year by an additional 1%.

The rationale for the above fee structure is that in the Concession fee should
be levied when revenue
initial years, debt service obligations would entail substantial streams can sustain it
outflows. Over the years, however, the Concessionaire will
have an increasing surplus in its hands owing to the declining
debt service and rising revenues. Recognising this cash flow
pattern, the concession fee to be offered by the Concessionaire
will be based on an ascending revenue-share structure.

Risk allocation

As an underlying principle, risks have been allocated to the

parties that are best able to manage them. Project risks have,
therefore, been assigned to the private sector to the extent it
is capable of managing them. The transfer of such risks and
responsibilities to the private sector would increase the scope
of innovation leading to efficiencies in costs and services.

The commercial and technical risks relating to Risk alleviation and

mitigation is critical
construction, operation and maintenance are being allocated
to private investment
to the Concessionaire, as it is best able to manage them. Other
commercial risks, such as the rate of growth of cargo traffic,
are also being allocated to the Concessionaire. The traffic risk,
however, is significantly mitigated as the port is virtually a
monopoly where existing traffic volumes can be measured with
reasonable accuracy. On the other hand, all direct and indirect

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political risks are being assigned to the Government/ Trust.

It is generally recognised that economic growth and port

connectivity will have a direct influence on the growth of
traffic and that the Concessionaire cannot in any manner
manage or control these elements. By way of risk mitigation,
the MCA provides for extension of the concession period in the
event of a lower than expected growth in traffic. Conversely,
the concession period is proposed to be reduced if the traffic
growth exceeds the expected level.

The MCA provides for a target traffic growth and stipulates

an increase of upto 7 years in the concession period if the
growth rate is lower than projected. For example, a shortfall of
10% in the target traffic after 20 years will lead to extension
of the concession period by 5 years. On the other hand, a
reduction of up to 3 years is stipulated in the event of a higher
than expected growth. For example, an increase of 6% in the
target traffic will reduce the concession period by 18 months.

Financial close
Project implementation Unlike other agreements for private infrastructure projects
must commence as per
which neither define a time-frame for achieving financial
agreed timeframe
close, nor specify the penal consequences for failure to do
so, the MCA stipulates a time limit of 180 days for achieving
financial close (extendable for another 120 days on payment
of a penalty), failing which the bid security shall be forfeited.
By prevalent standards, this is a tight schedule, which is
achievable only if all the parameters are well defined and the
requisite preparatory work has been undertaken.

The MCA represents the comprehensive framework

necessary for enabling financial close within the stipulated
period. Adherence to such time schedules will usher in a
significant reduction in costs besides ensuring timely provision
of needed infrastructure. This approach would also address
the present problem of infrastructure projects not achieving
financial close for long periods.

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Port tariffs

A balanced and precise mechanism for determination of tariffs Tariffs should be

determined with great
has been specified for the entire concession period since this
care and precision
would be of fundamental importance in estimating the revenue
streams of the project and, therefore, its viability. The tariffs shall
be based on the rates to be notified by the Government.

The MCA provides for indexation of the tariffs to the

extent of 40 per cent thereof linked to WPI. Since repayment
of debt would be substantially neutral to inflation, the said
indexation of 40 per cent is considered adequate. A higher
level of indexation is not favoured, as that would require the
users to pay more when they should be receiving the benefit
of a depreciated asset. A higher indexation would also add to
uncertainties in the financial projections of the project.

Construction

Handing over possession of the required land and obtaining

of environmental clearances are being proposed as conditions
precedent to be satisfied by the Government/ Trust before
financial close.

The MCA defines the scope of the project with precision

in order to enable the Concessionaire to determine his costs
and obligations. Additional works may be undertaken within
a specified limit, only if the entire cost thereof is borne by the
Government/ Trust.

Before commencing the collection of tariffs, the Service quality

and safety must
Concessionaire will be required to subject the Port Terminal to be ensured
specified tests for ensuring compliance with the specifications
relating to safety and quality of service for the users.

Operation and maintenance

Operation and maintenance of the Port Terminal is proposed Maintenance

standards will be
to be governed by strict standards with a view to ensuring a
enforced strictly
high level of service for the users, and any violations thereof

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would attract stiff penalties. In sum, operational performance

would be the most important test of service delivery.

The MCA provides for an elaborate and dynamic mechanism

to evaluate and upgrade safety requirements on a continuing
basis. The MCA also provides for traffic regulation, security
and rescue operations.

Right of substitution
Lenders will have the In the port sector, the project assets do not constitute
right of substitution
adequate security for lenders. It is the project revenue streams
that constitute the mainstay of their security. Lenders would,
therefore, require assignment and substitution rights so that the
concession can be transferred to another company in the event of
failure of the Concessionaire to operate the project successfully.
The MCA accordingly provides for such substitution rights.

Force majeure
Concessionaire will The MCA contains the requisite provisions for dealing
be protected against
with force majeure events. In particular, it affords protection
political actions
to the Concessionaire against political actions that may have a
material adverse effect on the project.

Termination

In the event of termination, the MCA provides for a

compulsory buy-out by the Government/ Trust, as neither the
Concessionaire nor the lenders can use the port terminals in
any other manner for recovering their investments.
Pre-determined Termination payments have been quantified precisely as
termination payments
compared to the complex formulations in most agreements
should provide
predictability relating to private infrastructure projects. Political force majeure
and defaults by the Government/ Trust are proposed to qualify
for adequate compensatory payments to the Concessionaire
and will thus guard against any discriminatory or arbitrary
action by the Government/ Trust. Further, the project debt
would be fully protected by the Government/ Trust in the event

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 OVERVIEW OF THE FRAMEWORK

of termination, except for two situations, namely, (a) when

termination occurs as a result of default by the Concessionaire,
only 90 per cent of the debt will be protected, and (b) in
the event of non-political force majeure such as Act of God
(normally covered by insurance), only 90 per cent of the debt
beyond the insurance cover will be protected.

Monitoring and supervision

Day-to-day interaction between the Government/ Trust

and the Concessionaire has been kept to the bare minimum
following a ‘hands-off’ approach, and the Government/ Trust
shall be entitled to intervene only in the event of default. Checks
and balances have, however, been provided for ensuring full
accountability of the Concessionaire.

Monitoring and supervision of construction, operation A credible and fair

arrangement for
and maintenance is proposed to be undertaken through an supervision is essential
Independent Engineer (a qualified firm) that will be selected
by the Government/ Trust through a transparent process. Its
independence would provide added comfort to all stakeholders,
besides improving the efficiency of project operations. If
required, a public sector consulting firm may discharge the
functions of the Independent Engineer.

The MCA provides for a transparent procedure to ensure

selection of well-reputed statutory auditors, as they would play
a critical role in ensuring financial discipline. As a safeguard,
the MCA also provides for appointment of additional or
concurrent auditors.

To provide enhanced security to the lenders and greater

stability to the project operations, all financial inflows and
outflows of the project are proposed to be routed through an
escrow account.

Support and guarantees by the Government

By way of comfort to the lenders, loan assistance from the

Government/ Trust has been stipulated for supporting debt

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Support and service obligations in the event of a revenue shortfall resulting

guarantees by from political force majeure or default by the Government/
the Government
are essential Trust. Guarantees and/ or compensation have also been
provided to protect the Concessionaire, though for a limited
period, from construction of competing port terminals which
can upset the revenue streams of the project.

Miscellaneous

A regular traffic census and annual survey has been

stipulated for keeping track of traffic growth. Sample checks
by the Government/ Trust have also been provided for.
As a safeguard against siphoning of revenue share by the
Concessionaire, a floor level in present and projected traffic
has also been stipulated.
An effective dispute The MCA also addresses issues relating to dispute
resolution mechanism
resolution, suspension of rights, change in law, insurance,
is critical
defects liability, indemnity, redressal of public grievances and
disclosure of project documents.

Framework for new ports

The framework contained in the MCA is applicable to

PPPs in building new port terminals at existing ports. With
some modifications, it can be applied to transfer of existing
port terminals from the Government/ Trust to private entities.
Similarly, with some modifications, it can also be applied to
PPPs for building new ports on BOT basis.

Conclusion
Private participation Together with the Schedules, the proposed framework
should improve
addresses the issues that are likely to arise in financing of port
efficiencies and reduce
costs projects on BOT basis. The proposed regulatory and policy
framework contained in the MCA is critical for attracting
private investment with the concomitant efficiencies and lower
costs, necessary for accelerating growth.

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