Select Committee on Transport Second Report


3  RISK TRANSFER

19. The DfT told us that when considering the potential value for money of the PPP contracts, the Department and London Underground considered "wider, non-quantitative factors", including "the strategic benefits, the ability to create a partnership and the risk share between public and private sectors."[29] It says that the PPP Agreements "struck a balance between the level of risk transferred to the private sector and that retained in the public sector" and that, because the PPP Agreements are outcome-based, they expose the companies to risk of performance payment abatements if contractual targets are not achieved.[30]

20. However, the PPP Arbiter, Chris Bolt, argued that risk transfer under the PPP Agreements "was not as great as I think some people understood". He also said, "This is not a fixed price deal, and I think there has been some misunderstanding about the scale of risk transfer from the public sector to the private sector."[31] He suggested that there were differences of understanding between Metronet and London Underground about the allocation of different risks under the contract. In particular, the cost consequences of increases in the scope of work required to deliver obligations were mostly borne by London Underground; only the low Materiality Threshold and the cost consequences of delivering inefficiently were borne by Metronet.[32]

21. The Arbiter identified four elements of risk that were borne by the private sector under the Metronet contracts:

a)  the shareholders' equity, totalling £350 million (£70 million from each of the parent companies);

b)  5% of Metronet's borrowing, borne by Metronet's funders (the remaining 95% was guaranteed by TfL);

c)  the first £50 million of efficient cost overruns (up to the Materiality Threshold);

d)  the cost of any inefficiency.[33]

22. There is a clear argument for seeking to contain the risk borne by PPP contractors. As the National Audit Office noted in its 2004 Report on the PPP, seeking to transfer too much risk would have been likely to lead to higher-priced bids due to increased contingency provisions by prospective contractors.[34] However, the question remains whether the allocation of risk between the undertakers and the Government was in this case balanced appropriately.

Risk borne by Infraco shareholders

23. Private sector shareholders, who put up a total of some £725 million capital in the three PPP Agreements, stood to receive nominal returns of 18-20% a year. As the first deal of its kind, it was considered that such a rate of return was proportionate to the risks involved, even though it would have been about one third higher than for other recent PFI deals if the Infracos had delivered their obligations at the costs and speeds described in their bids.[35]

24. The former Chairman of Metronet told us that "the shareholders did not behave as if they were taking no risk," and that the loss of £70 million would be a significant one. He did not think that the shareholders would have behaved differently if their investment had been greater.[36] The Secretary of State added that the shareholding companies have "felt the pain, not only financially but reputationally as well."[37] In any case, it is clear that the shareholders' exposure to risk and their net losses as a result of Metronet's failure were reduced by their profit margin on the work, which they were guaranteed through the tied supply chain.

25. The return anticipated by Metronet's shareholders appears to have been out of all proportion to the level of risk associated with the contract. The parent companies were effectively able to limit their liability to the £70 million they each invested in Metronet at the outset. Had Metronet survived, they would also have borne the cost of their own inefficiency along with a minimal amount—£50 million—of any other cost overruns. In the face of this very limited liability it is difficult to lend any credence to the assertion that the Metronet PPP contracts were effective in transferring risk from the public to the private sector. In fact, the reverse is the case: Metronet's shareholders, had the company been operated effectively, stood to make quite extravagant returns. Now that it has failed, it is the taxpayer and the Tube passengers who must meet the cost.

Risk borne by Infraco lenders

26. The risk borne by the Infracos' lenders is heavily offset by the fact that 95% of their debt is guaranteed by London Underground. As the National Audit Office has reported, during the negotiation of the PPP Agreements, ongoing political opposition to the PPP, and Railtrack being placed in administration in 2001, affected lending market sentiment.[38] Before the deals were finalised, the PPP preferred bidders persuaded London Underground that increasing the level of guaranteed debt from 90% to 95% was essential to raise the total amount of finance required. Although one bidder did tell the NAO in 2004 that, before London Underground had agreed to secure 95% of the Infracos' debts, it had been possible to arrange indicative financing without any requirement that the minimum amount of guaranteed debt be specified.

27. Although they ultimately carried risk reduced to 5% or less, lenders charged about £450 million more than they would have charged on the same level (£3,800 million) of direct Government loans. Following the reclassification by the Office for National Statistics of Tube Lines and Metronet's borrowing from the private sector to the public sector in September 2007, it appears with hindsight that this higher cost of borrowing could have been avoided by procuring loans direct to the Government with no additional risk to the public sector.[39]

28. Moreover, the Arbiter considers that Metronet's lenders could have done more under their funding agreements to hold Metronet to account for its escalating costs—for example, by withholding funding and effectively compelling Metronet to trigger an Extraordinary Review much sooner.[40] He indicated that the fact that 95% of Metronet's debt was guaranteed may have reduced the incentive for its creditors properly to look after their loan.[41] In fact, Metronet's former Chairman told us that, over and above a lack of confidence in Metronet's financial model, it was a warning that further lending might not be guaranteed to 95% that finally convinced the banks to stop advancing Metronet more money.[42]

29. In terms of borrowing, the Metronet contract did nothing more than secure loans, 95% of which were in any case underwritten by the public purse, at an inflated cost—the worst of both possible worlds. As with the shareholders, what minimal risk was borne by Metronet's lenders was disproportionately well rewarded, at the expense of tax- and fare-payers. Public sector negotiating parties must be hard-headed in their determination to achieve the best possible terms for financing private sector delivery organisations. The banks should be required to take on substantial risk to reflect the large sums of money available. Additional risk would also increase the incentive for lenders to look after their debt properly. A proper assessment should be made of the cost of higher-risk lending against that of guaranteeing large quantities of private sector debt in the event of a company's failure. If finance cannot be secured at reasonable terms without guaranteeing the vast majority of the debt, loans direct to the Government, which would enjoy the highest credit rating and significantly lower costs, would seem to be the more cost-effective option.

The Materiality Threshold

30. The Materiality Threshold during the first Review Period—the cost increase below which the Infracos cannot claim for additional funds from London Underground—was £50 million for each of the Metronet Infracos and £200 million for Tube Lines. The Materiality Threshold for Tube Lines' PPP Agreement is set to be reduced from £200 million to £50 million for the second 7½ year period. Tube Lines' higher Materiality Threshold of £200 million has given it a powerful incentive to make savings in order to offset any cost increases, rather than seeking additional payments from London Underground. This has encouraged a considerable level of innovation by Tube Lines, for example:

a)  a significant reduction in the time taken to refurbish escalators (from up to nine months to around nine weeks);

b)  a reduction in the time taken to implement station modernisations (from around two years to as little as four months) alongside a reduction in costs of some 40%;

c)  the introduction of a number of new processes and new equipment to make maintenance more efficient; and

d)  more emphasis on preventative maintenance, rather than simply waiting for infrastructure to fail.[43]

31. Tube Lines attributes its innovations to the long-term and output-based nature of the contract and warns that, "Should part of the work undertaken under the PPP be returned in-house, there would be a risk of a return to the resistance to change and entrenched attitudes which militated against innovation before transfer."[44] We do not want to see the baby thrown out with the bathwater; the involvement of the private sector working to an output-based contract has in some areas resulted in significant innovations to approaches that have hitherto remained the same for many decades. It is clear that the private sector will need to be involved to a large extent in delivering the necessary future volume of work, and it is to be hoped that the potential of output-based, fixed-price contracts to result in cost savings can be realised. However, the failure of Metronet fatally damages the Government's assumption that the involvement of the private sector will always result in efficient and innovative approaches to contracts.

32. Metronet's inability to operate efficiently or economically proves that the private sector can fail to deliver on a spectacular scale, although Tube Lines' performance provides an example of private sector innovation and efficiency. The evidence is clear: it cannot be taken as given that private sector involvement in public projects will necessarily deliver innovation and efficiency, least of all if the contracts lack appropriate commercial incentives. Future assessments of the comparative value for money of private sector-managed models for infrastructure projects should not assume a substantial efficiency-savings factor; a detailed assessment should be made of the suitability of the proposed structure of delivery organisations, of bidders' specific expertise and of the strength of the incentives to efficiency. It is worrying that the Government's confidence in such savings appears to stem from a belief that inefficiency is more endemic and irreversible in the public than the private sector.

33. The Arbiter argued that Metronet's relatively low Materiality Threshold of £50 million per Infraco contributed to both a limited transfer of risk away from the public purse and a flawed approach by Metronet to cost management.[45] He considered that Metronet's approach to negotiating cost increases prior to commencing work on projects contributed to delays, particularly in respect of the stations programme.[46]In contrast, he described the original "structure and philosophy" of the Tube Lines contract as "very much around delivering within the amount bid rather than seeing it, as I think Metronet almost did, as a cost-plus contract".[47]

34. It is clear that in negotiating future agreements the Government should seek as high a Materiality Threshold as possible in order that public liability is minimised in the event of an overspend by the private sector. The level of the Materiality Threshold is crucial in encouraging efficiency and innovation. If it is set so low as to be, in effect, a cost-plus contract, this encourages the contractor to hold out for ever-larger payments over and above what was originally bid.

Inefficient costs and the principle of the PPP

35. High-profile public sector overspends, such as the Jubilee line extension project, made the PPP arrangement for the London Underground atractive to the Government because an output-based contract should ensure that inefficient expenditure is entirely the burden of the contractor. The Department maintains that the PPP was introduced by the Government to guarantee value for money for taxpayers and passengers, as well as to utilise the private sector's capacity "to overcome the investment backlog, and maintain and modernise infrastructure".[48] It is therefore surprising that Metronet's collapse seems to have done little to dent the Government's confidence in the PPP model. The PPP Arbiter told us that he believed the basic structure of the PPP—that the private sector delivers best when it is told what outputs to deliver and is free to decide what approach it should take to delivery of those outputs—remains sound and that Metronet's failure should not invalidate the principle of an output-based contract.[49]

36. The Secretary of State was clearly of the view that additional costs to the public are the fault of Metronet itself, particularly the company's structure and corporate governance, rather than an inherent problem with the PPP model.[50] She argued that the model "in theory at least" could deliver good value for money and that Metronet, if it had had "appropriate leadership in place" could have resolved its problems.[51] Even Tim O'Toole, the Managing Director of London Underground, seems to have softened his attitude towards the PPP telling us that Metronet's own structure, rather than the PPP system itself, was at fault for its collapse—although he did point to deficiencies in provisions in the PPP to allow early visibility of problems.[52]

37. On the other hand, the unions have reiterated their opposition to private-sector management of the upgrades. Gerry Doherty, General Secretary of the Transport Salaried Staffs' Association (TSSA), said that Metronet's collapse had confirmed the Union's view that PPP was poorly conceived in the first place and unable to deliver the necessary improvement to the London Underground system.[53] He suggested that a not-for-profit model similar to that employed on the mainline railway network after the collapse of Railtrack might be appropriate for the Underground.[54] Since Metronet's administration, the Mayor of London has signalled his aspiration for Transport for London to take over Metronet, with maintenance carried out in-house and individual contracts being let for upgrades and major investment work.[55]

38. Tube Lines Chief Executive, Terry Morgan, expressed concern over the possibility of Transport for London taking over the Metronet Infracos.[56] Tube Lines also says that its "whole-life asset management approach" allows it to "take a long term and holistic approach to planning" and deliver more quickly as the scoping, design and construction phases can be undertaken without spending time securing new money or tendering for new suppliers.[57] Losing the advantages of whole-life asset management, which are a consequence of the selection, maintenance and renewal of Tube infrastructure being the responsibility of a single party, could certainly be a particular risk of splitting maintenance and upgrade work. If one organisation has long-term responsibility for both upgrading and maintaining infrastructure (which is still the case for Tube Lines), it has an incentive to consider future maintenance requirements when designing and installing upgrades.

39. Now that TfL is in control of the Metronet contract, there is a danger that private contractors brought in to upgrade the network will not be alive to its future maintenance needs, which will be met by TfL. This is not an insurmountable problem but it means that careful attention must be paid to the future maintenance of the underground network at a very early stage in the process of commissioning upgrade work. It might be that, for part or all of the network, letting combined contracts for upgrading and maintenance offers the best value for money.

Value for money

40. Tony Travers of the London School of Economics estimates that £5-7.5 billion has been spent on the Tube network in the past five years, which, he says, "is a huge amount of money to have delivered—at the very best—a train service that's overall no different [from] when we began."[58]

41. In order to assess the relative value for money of the PPP bids, London Underground (then under central Government control through London Regional Transport) undertook an exercise to assess what the work might cost if it were undertaken in the public sector. London Underground acknowledged that its public sector comparators were always subject to a high degree of inherent uncertainty and therefore only gave limited assurance about the reasonableness of the prices quoted by bidders.[59] Broadly speaking, Tube Lines' and Metronet BCV's bid costs were within the range of the projected public sector costs; for the sub-surface lines, the Metronet bid cost was £500-1,000 million less than the public sector cost for the first 7½ years.[60] However, both Metronet companies ended up operating with significantly higher costs than were anticipated in their bid and were projecting a total overspend of around £2 billion by 2010. Some, but not all, of those cost increases would have also been borne by an organisation operating economically and efficiently, for example, those arising as a consequence of the state of the assets.

42. The Committee of Public Accounts published a Report on the PPP in March 2005 that was broadly critical of how the PPP had been put together.[61] The Report's conclusions included the following:

a)  The PPP model might have been used only for major upgrade work, rather than for both upgrade and maintenance.

b)  Departments should not use the Public Sector Comparator as conclusive evidence of the value for money of the PPPs.

c)  Issuance of a public sector bond should be considered for financing future infrastructure projects in which significant risk transfer to the private sector may not be achievable.

43. In our Report of 2005, we reserved judgement on whether the private sector would upgrade the network more efficiently and effectively than would have been the case through the public sector. The major achievement of the PPP, we concluded, had been "to ensure that the Government [committed] itself to providing sustained funding for London Underground; a commitment which, given the political will could have been made without any PPP."[62]

44. The Department says that it introduced the PPP to utilise "the private sector's capacity […] to overcome the investment backlog" and in order to "improve the Underground, safeguard its commitment to the public interest and guarantee value for money for taxpayers and passengers."[63] However, given its complexity and associated administrative costs—some £500 million has been estimated as the cost of setting the London Underground PPP Agreements—and the demonstrable uncertainty associated with 'private sector efficiency gains', the value of paying the private sector to manage public sector infrastructure projects is crucially dependent on the level of risk transfer achieved by the contracts, and it is clear that in the case of the Metronet PPP Agreements the level of risk transfer achieved was not as high as had been thought. [64]

45. The Government should not enter into any further PPP agreements without a comprehensive and accurate assessment of the level of risk transfer to the private sector and a firm idea of what would constitute an appropriate price for taking on such a level of risk. If it is not possible in reality to transfer a significant proportion of the risk away from the public purse, a simpler—and potentially cheaper—public sector management model should seriously be considered.


29   Ev 72 Back

30   Ev 72 Back

31   Q 18 Back

32   Ev 46 Back

33   Q19 Back

34   National Audit Office, London Underground PPP: Were they good deals?, 17 June 2004 Back

35   Ibid. Back

36   Q187 Back

37   Q387 Back

38   National Audit Office, London Underground PPP: Were they good deals?, 17 June 2004, p 25 Back

39   See Ev 74. Back

40   Q 23 Back

41   Qq 51-52 Back

42   Q 202 Back

43   Ev 56 Back

44   Ev 58 Back

45   Q 21 Back

46   Qq 5-7 Back

47   Q 48 Back

48   Ev 70 Back

49   Qq 2, 3 & 50 Back

50   Q 325 Back

51   Qq 320 & 325. Back

52   Q 258 Back

53   Q 68 Back

54   Q 82 Back

55   See, for example, Mayor's Question Time on 12 September 2007. Back

56   Q 116 Back

57   Ev 57 Back

58   "Is this a new Metronet timebomb?", The Evening Standard, 29 October 2007 Back

59   National Audit Office, London Underground PPP: Were they good deals?, 17 June 2004 Back

60   London Underground, Final Assessment Report, 2 February 2002 Back

61   Public Accounts Committee, Seventeenth Report of Session 2004-05, London Underground Public Private Partnerships. HC 446 Back

62   Transport Committee, Sixth Report of Session 2004-05, The Performance of the London Underground, HC 94 Back

63   Ev 70 Back

64   Q 43 refers to the £500 million cost of setting up the agreements. Back


 
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