A FRAMEWORK FOR

DISCLOSURE IN PUBLIC-
PRIVATE PARTNERSHIPS
TECHNICAL GUIDANCE FOR SYSTEMATIC, PROACTIVE PRE- & POST-PROCUREMENT
DISCLOSURE OF INFORMATION IN PUBLIC-PRIVATE PARTNERSHIP PROJECTS
© 2017 International Bank for Reconstruction and Development / The World Bank
1818 H Street NW
Washington DC 20433
Telephone: 202-473-1000
Internet: www.worldbank.org

This work is a product of the staff of The World Bank with external contributions. The findings,
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Table of Contents
EXECUTIVE SUMMARY ................................................................................................... 1
PART I ............................................................................................................................... 8
1. Background and Approach ..................................................................................... 8
2. Drivers of Disclosure ............................................................................................. 12
3. Challenges and Benefits ....................................................................................... 15
4. Users and Uses of Disclosed Information ........................................................... 19
PART II ............................................................................................................................ 22
5. Designing a PPP Disclosure Framework ............................................................. 22
6. Legislation and Policy ........................................................................................... 25
7. Pre-Procurement Disclosure ................................................................................ 30
8. Post-Procurement Disclosure.............................................................................. 37
9. Standard Clauses .................................................................................................. 44
10. Templates .......................................................................................................... 46
11. Redactions ......................................................................................................... 55
PART III ........................................................................................................................... 59
12. PPP Disclosure Checklist/ Diagnostic for Countries ..................................... 59
13. Glossary of Terms ............................................................................................. 63
14. References and Resources ............................................................................... 63

i
Acknowledgments
This Framework has been prepared for the World Bank Group by Shyamala Shukla, Senior Public-
Private Partnerships Specialist, World Bank Group Public-Private Partnerships (PPP) Cross-
Cutting Solutions Area (CCSA) and Team Lead for the Project. with technical inputs from Nagaraju
Duthaluri, Lead Procurement Specialist, Public Integrity and Openness and Salih Kemal Kalyoncu,
Senior Procurement Specialist, from the Governance Global Practice. Adetoun Adetona,
Consultant PPP CCSA provided research assistance during public consultations. Research on
country policy and practice has been undertaken by the World Bank Group Public-Private
Partnerships and by Cambridge Economic Policy Associates.

Ian Hawkesworth, Head PPP and Capital Budgeting, Andrew Davies, Senior Councillor, Daniel
Ivarssont, Frederic Saint Martin, Matthieu Cahen and Juliane Jansen, Policy Analysts, Janos
Bertok, Head of Division, Paulo Magina, Head of Unit and Julio Bacioterracino, Deputy Head of
Division of the Organisation for Economic Co-operation and Development (OECD), along with
Petter Mathews and Christiaan Poortman from the Construction Sector Transparency Initiative
(COST) provided valuable inputs. The Framework was reviewed by Olivier Fremond, Adviser,
World Bank Group PPP CCSA; Isabel Chatterton, Manager, Advisory Services in Public-Private
Partnerships, IFC; Richard Cabello, Manager, Advisory Services in Public-Private Partnerships,
IFC; Javier Calvo, Principal Investment Officer, Advisory Services in Public-Private Partnerships,
IFC; Patricia O. Sulser, Chief Counsel, Legal Department, IFC; Marcela Rozo, Senior Operations
Officer, GGP; Gustavo Ezequiel Miranda, Operations Officer, GGP; Daniel Alberto Benitez,
Senior Economist, Transport Global Practice (GTIDR); Julian Mark Jackson, Principal Counsel,
Legal Department, IFC; Myles Francis Doherty, Legal Counsel, IFC; Syed Akhtar Mahmood, Lead
Investment Policy Officer, Trade and Competitiveness Global Practice (GTCDR); Mark Moseley,
Lead Lawyer, World Bank Group PPP CCSA; Aijaz Ahmad, Senior PPP Specialist, World Bank
Group PPP CCSA; and Jeff Delmon, Senior Private Sector Development Specialist, World Bank
Group PPP CCSA. Laurence Carter, Senior Director, World Bank Group PPP CCSA; Anita
George, Senior Director, Energy Global Practice; Pierre Guislain, Senior Director, Transport
Global Practice; Jose Luis Irigoyen, Director, Transport Global Practice; Robert Hunja, Director,
Governance Global Practice; Francois Bergere, Program Manager, Public-Private Infrastructure
Advisory Facility (PPIAF); and Clive Harris, Manager World Bank Group PPP CCSA, provided
valuable guidance.

The Framework has undergone a process of public consultations. The team thanks the following
organizations and individuals who provided valuable suggestions and comments during this
process:

Jerome Jean Haegeli, Head of Investment Strategy and Managing Director, Swiss Re; John Davie,
Chairman, Altra Capital, and Visiting Professor, London Metropolitan University; John B.
Finnigan, Managing Director and Head of Development Organizations, North America Public
Sector Group, Citibank, N.A.; Prashant Sharma, Visiting Research Fellow, United Nations
Research Institute for Social Development (UNRISD), and Global Fellow, Open Society
Foundations; and Silvina Paniza, Director, Ministry of Economy and Finance, Uruguay.

ii
ActionAid International, Association for Women’s Rights in Development, Christian Aid; Heinrich
Boell Foundation, IBON International, International Presentation Associations, International
Rivers, Public Services International, Society for International Development, Transparency
International, Ozfam International, and World Future Council.

Africa Development Interchange Network (Africa); Access Info Europe (Europe); Counter Balance
(Europe); Disaster Risk Reduction Working Group; UN Major Group for Children & Youth;
Regional Focal Point for Latin America and the Caribbean (Latin America); European Network on
Debt and Development (Europe); Red de Educación Popular entre Mujeres de América Latina y el
Caribe (Latin America); Red Latinoamericana sobre deuda, desarrollo y derechos – Latindadd
(Latin America); Sisters of Charity Federation (North America); Southern and Eastern Africa Trade
Information and Negotiations Institute (Africa); and Tax Justice Network-Africa (Africa).

Coalition of the Flemish North-South Movement (Belgium); AfroLeadership (Cameroon); Alliance

for Development (Ghana); Article 19 (United Kingdom); Bank Information Center (United States);
Both Ends (Netherlands); Bretton Woods Project (United Kingdom); CAFSO-WRAG for
Development (Nigeria); Campaign 2015+ International (Nigeria); Campaign for Human Rights and
Development Sierra Leone (Sierra Leone); Center of Concern (United States); Centre for Human
Rights and Climate Change Research (Serbia); Center for Women’s Global Leadership, Rutgers
University (United States); Centre national de coopération au développement – CNCD (Belgium);
Congregation of Our Lady of Charity of the Good Shepherd (United States); Consorcio para el
Dialogo Parlamentario y la Equidad (Mexico); Coordination Office of the Austrian Bishop’s
Conference for International Development and Mission (Austria); Debt Justice Norway (Norway);
Development & Integrity Intervention Goal Foundation (Nigeria); Erlassjahr – Jubilee Germany
(Germany); The Finnish NGDO Platform to the EU (Kehys) (Finland); Fundación Mexicana para
la Planeación Familiar, A.C. (Mexico); Gender Equity: Citizenship, Work and Family (Mexico);
Gestos (Brazil); Initiative for Social and Economic Rights (Uganda); Jubilee Debt Campaign
(United Kingdom); Kenya Debt Relief Network (Kenya); Missionary Oblates of Mary Immaculate
(United States); National Alliance of Women (United Kingdom); Platform London (United
Kingdom); Religious of the Sacred Heart of Mary (United States); Rural Area Development
Programme (Nepal); Society of Catholic Medical Missionaries (United States); Ulu Foundation
(United States); Urgewald (GermanyAmbiente y Sociedad (Colombia); Bretton Woods Project
(United Kingdom); Center of Concern (United States); Centro de los Derechos del Campesino
(Nicaragua); Centro de Derechos Económicos y Sociales (Ecuador); Conferencia Nacional para el
Desarrollo Social (Peru); Corporación de Investigación y Acción Social y Económica (Colombia);
Derecho Ambiente y Recursos naturales (Peru); Fundación Mexicana para la Planeación Familiar,
A.C. (Mexico); Fundar (Mexico); Fundación Jubileo Bolivia; Forum Solidaridad (Peru); Grupo
Nacional de Presupuesto Público (Peru); Instituto Jajachupan (Peru); and Instituto Popular de
Capacitación (Colombia).

The team also thanks Sandra Gain for editing the document.

This is a joint product of the World Bank Group, OECD, COST, and PPIAF. Funding for this
product has been provided by the World Bank Group PPP CCSA and by PPIAF.

iii
Acronyms and Abbreviations
ANI Agencia Nacional de Infraestructura
B.C. British Columbia
BT budget transparency
COST Construction Sector Transparency Initiative
FOI freedom of information
GDP gross domestic product
GGP Governance Global Practice
GIPA Government Information (Public Access) Act 2009
GP Global Practice
HM Her Majesty's
IMG Minimum Guaranteed Income
NDA nondisclosure agreement
OECD Organization for Economic Co-operation and Development
PF2 Private Finance 2
PFI private finance initiative
PFM public financial management
PPIAF Public-Private Infrastructure Advisory Facility
PPP public-private partnerships
PPP CCSA Public-Private Partnerships Cross-Cutting Solutions Area
RFP request for proposal
RFQ request for qualification
RTI right to information
SECOP Sistema Electronico de Contratacion Publica
SPV special purpose vehicle
UN United Nations
WBG World Bank Group

iv
EXECUTIVE SUMMARY
________________________________________________________________________________________________________________________

Objective
The World Bank Group recommends a systematic structure for proactively disclosing information
through this Framework for Disclosure in Public-Private Partnership Projects. The Framework is
embedded in the findings of a global review of public-private partnership (PPP) disclosure
frameworks and practices in transacted PPP contracts in identified jurisdictions, and suggests a
holistic approach to disclosure through predefined standards, tools, and mechanisms, allowing for
increased disclosure efficiency.

There is a dearth of literature and guidance on policy and practice in PPP disclosure and a wide gap
in the understanding of the mechanics of disclosure by practitioners within governments and the
private sector. The Framework seeks to fill this gap, along with its companion volumes on
Jurisdictional Studies and Good Practice Cases. Apart from its potential usefulness to practitioners
in the public and private sectors, the Framework is also intended for World Bank Group and other
multilateral development bank operational teams in PPP-related projects that would have a
tremendous opportunity not only to educate stakeholders on the technicalities associated with
disclosure, but also to take on an advocacy role to promote better disclosure practices. With this
broader approach in mind, professionals in these categories from different social and infrastructure
sectors have been consulted widely during the preparation of the Framework as well as the two
companion volumes.

It is pertinent to note that although the Framework has been prepared for PPP projects, it is equally
applicable to publicly procured infrastructure projects with some amount of customization.

Linking Framework Design with Key Drivers

The Framework has been designed based on the key drivers of disclosure, major factors influencing
the drivers, the challenges and benefits associated with disclosure, and the uses and various
categories of users of information once it is disclosed. Linked directly to these aspects is the issue
of customizing disclosure based on the PPP contract clauses and risk-sharing mechanisms within
contracts.

It is important to look at the drivers of disclosure in PPP and the specific factors influencing these
to maximize the value derived from disclosure and to ensure that disclosure policy and practice are
aligned with the objectives. The World Bank Group’s consultations with stakeholders suggest that
there are multiple but interconnected key drivers, such as mobilizing private capital for investment
in infrastructure, increasing public confidence in PPP projects, achieving better value for money,
and reducing the risk of corruption. Key issues underlying these are the extent of alignment of

1
private investments with public interest, standards in the delivery of services, predictability around
pipelines, a level playing field for bidders, and objective criteria for evaluating bids, among others.
Although these multiple drivers are common to all delivery modes, including public delivery of
infrastructure, these drivers are most specific to PPP projects, given their special characteristics.
These specific factors, to a large extent, have informed the elements that have been recommended
for disclosure under this Framework.

More direct and urgent factors inducing government to disclose more appear to be the wider
government policy on transparency and whether there is supportive legislation. An inference that
can be drawn from the jurisdictional studies is that good practice may be associated with the
existence of legislation supporting disclosure, identified as freedom of information (FOI)
legislation or other supporting legislation, such as PPP, public financial management, sector-
specific legislation, and/or budget transparency related legislation. Where legislation is in place,
especially overarching FOI legislation that includes clauses mandating some form of proactive
disclosure, more information seems to be available in the public domain. To an extent, the period
of time over which PPP projects and programs have been undertaken also impacts disclosure.
However, another related association that we may infer is that practice relating to PPP disclosure
may have developed more rapidly in emerging countries, perhaps because there is more of an
imperative and pressure to create new infrastructure.

Levels of Disclosure
While creating a more generic framework design linked to the drivers of disclosure and the factors
underlying these drivers, it may not be practical to assume that jurisdictions at various levels of
disclosure can easily achieve the recommended level of disclosure. There could be several supply-
side hurdles to the recommended level of disclosure. In addition, disclosure in PPP, similar to other
aspects of PPP, is the responsibility of the public and private sectors. Although FOI Acts usually
place the responsibility of disclosing information on the public sector, in the case of PPP projects,
the public sector on its own cannot provide all the required information and has to be aided and
assisted by the private sector. Clauses on how information will be collected and disclosed need to
be included in contracts. This should ideally include the specific commitments and related
assessment mechanisms during the operational phase of the project. Apart from this contractual
obligation, including mechanisms for the disclosure of information in tendered documents could
potentially be a useful competing factor in the tender selection phase. This could also incentivize
bidders to enhance and streamline exchange of information. In some situations, it might be essential
to enhance the capacity of the public and private sectors for them to understand the importance and
mechanics of disclosure, and to enable them to work together to disclose and disseminate
information effectively.

Although standard clauses and methodologies to handle information suggested in the Framework
will be useful, these may not fully take care of capacity issues. Given these limitations, the
Framework, while recommending a single template for disclosure meant for countries with
sufficient capacity, also underscores the importance of countries assessing their capacity and opting

2
for a lower level of disclosure as required. Two additional relatively basic levels of disclosure have
been included in the Framework, which suggest the use of the same template but with selective
filling in of sections.

Role of Strategic Communication

Disclosure of information appears to be influenced by a host of challenges and benefits. Key
challenges facing disclosure appear to be the reluctance of public bodies to share information in
the absence of a clear mandate, a dearth of practical internal guidance, nonavailability or inaccuracy
of data, time and costs of disclosure, and lack of oversight mechanisms. Sometimes even disclosed
information becomes inaccessible, especially where it consists in placing complex, difficult to
comprehend, full contract documents in the public domain. A disconnect between the objectives of
disclosure and the policies used is also a fundamental challenge. Not surprisingly, challenges such
as increased litigation and consequent delays during or after procurement may also arise for
governments that disclose, feeding back into the general reluctance to share information.

Disclosure has longer-term and distinct benefits, such as greater accountability in expenditure,
higher level of confidence in the fairness of the process, better understanding by the private sector
of the public sector’s requirements and expectations, and the potential for the formulation of
improved policies and practice relating to PPP in the long run. Therefore, it is essential that
challenges are overcome by building the right frameworks for disclosure as well as by framing the
discussion around disclosure through strategic communication with stakeholders.

Since the Framework recommends disclosure beginning with the entry of a project into the
approved preliminary pipeline, it is important that strategic communication around projects and
programs is formulated at an early stage. This essentially means making disclosure not a one-way
process but a two-way, interactive process to ensure that the feedback loops are completed and the
disclosed information is understood, absorbed, and used optimally by all stakeholders. Strategic
communication also entails placing the project in the right context, benchmarking it in terms of
tariffs (and costs) and services using available regional, national, and local benchmarks of existing
projects, and also discussing the pros and cons of different alternatives for providing service,
highlighting the relative advantages of the selected alternative. It is also important to frame the
discussion around other key issues, such as competition and confidentiality, which may be of
concern to the private sector.

Recommended Disclosure
The recommended design is hierarchical and includes a logical framework that moves from a high-
level mandate to disclose toward the basic elements that need to be disclosed. Table ES.1 provides
a snapshot of the recommended features of the Framework. The Framework emphasizes that
although these features make up a desired and easy-to-implement design, not all of the features
may be needed in all jurisdictions. For example, legislation with proactive disclosure elements is

3
not always required, especially where transparency is already embedded in the governance
framework. The United Kingdom is probably one of the few jurisdictions that has all these features
in its disclosure framework for PPP, including a comprehensive chapter on information and
disclosure in the standard PPP clauses.

Before designing a framework, it is also recommended that countries first conduct a rapid
assessment of the status of PPP disclosure using the PPP Disclosure Diagnostic provided as part of
the recommended Framework. The PPP Disclosure Diagnostic provides guidance for assessing the
status of each of the following areas in the jurisdiction under consideration:

• Overview of the general transparency environment

• History and outlook for PPP disclosure
• Political environment for disclosure
• Legal and policy framework
• Process and institutions
• Guidance on confidential information
• Information systems and data standards.

TABLE ES.1: SNAPSHOT OF RECOMMENDED DISCLOSURE

• Provide general coverage of contracts entered into by any

public authority, including ongoing performance information
• Enable public entities to place information in the public
LEGISLATIVE OR domain voluntarily
POLICY MANDATE
• Include broad areas of redactions relevant for PPP
(commercially sensitive information, trade secrets, strategic
and public interest–related confidential information, etc.)

• Explain the applicability of legislation to contracts and project

information
• Specify elements of pre- and post-contract disclosure
• Specify timelines
DETAILED
GUIDANCE • Provide details of confidentiality provisions to the extent
possible
• Discuss any validation requirements
• Provide a template for disclosure

4
TABLE ES.1: SNAPSHOT OF RECOMMENDED DISCLOSURE

• Pre-tender: approved pipeline of projects with brief

description of project, services, estimated cost, likely sources
of revenue, and tentative procurement dates
• Tender: expression of interest, request for qualification,
request for proposal (including evaluation criteria and
preferred bidder negotiation criteria), draft contract, and
detailed project report
PRE-
PROCUREMENT • Evaluations: names of bidders, names of shortlisted bidders at
DISCLOSURE request for qualification, name of preferred proponent,
minutes of bidders’ meetings, all communications with
bidders during procurement, and modifications to documents
• Reports: any oversight reports if available, and value-for-
money (or other methodology for PPP mode evaluation)
reports for disclosure following financial close

• Basic project information: high-level information

• Risk: material risks, allocation, mitigation, actual risk events,
and cost
• Reasons for choice of PPP: qualitative and quantitative
analysis
• Financial information: financing structure, estimates, and
actual revenues (limited by contract type), and forecast and
actual equity return (limited by structure and contract type)
POST- • Government support: guarantees, grants, land, rights,
PROCUREMENT payments for service, and others
DISCLOSURE
• Tariffs: tariff methodology and review and regulation
• Performance: actual performance against targets, actual
penalties against contract provisions, independent engineer or
auditor report, and user feedback and surveys
• Contract termination: termination provisions and handover
provisions
• Renegotiations or changes: details of changes, impact of
change on cost, fiscal commitments and contingent liabilities,
risk allocation, tariff or payment, and services or levels of
service

• Areas or elements that could be considered confidential

CONFIDENTIAL
(subject to overarching law and project-specific
INFORMATION
circumstances): where the competitiveness of the private

5
TABLE ES.1: SNAPSHOT OF RECOMMENDED DISCLOSURE

provider may be jeopardized, such as the base case financial

model, debt structure and pricing methodology, and
components
• Specification of the implications of the audit mandate:
underscoring the extent of disclosure to audit, and that audit
reports along with confidential information will be disclosed
• Specification of time period: time period during which
information will remain confidential

• Maintenance and provision of information: list of reports,

documents, and other information the private provider should
maintain and submit to the authority; website and displays at
site; timelines for submission and disclosure; and penalties for
STANDARD non-submission
CONTRACT • Presumption of full disclosure: everything except confidential
PROVISIONS information
• Confidentiality: language on what constitutes confidentiality,
illustrative list of elements, format for listing confidential
clauses, and clause for disclosure in public interest

• A single platform is recommended; where not possible, cross

PLATFORM links would be desired

• Basic project information can be disclosed pre-procurement as

it becomes available
• Pre-procurement information: according to the milestones in
the process; evaluation and meeting minutes preferably within
two to three business days

TIMELINES • Renegotiations: preferably within 45 to 60 days of execution

of renegotiated contract
• Performance information: preferably within 15 to 30 days of
receipt of information by the authorities
• All other information: preferably within 45 to 60 days of
signing the contract

• Structure: a 10-section simple template including pre- and

post-procurement disclosure elements is recommended
TEMPLATE & • Selective completion of template: recommended based on
DATA STANDARDS three levels of disclosure: for countries with low capacity,
moderate capacity, and mature or substantial PPP programs
and capacity

6
 TABLE ES.1: SNAPSHOT OF RECOMMENDED DISCLOSURE

• A consistent, structured, and exploitable data standard is

recommended

Next Steps
The Framework is recommended for use by jurisdictions with existing or potential PPP programs
with suitable customization based on the maturity of the program, current status of disclosure, types
of contract structures and payment mechanisms used, and availability of public sector capacity.
There is substantial interest in countries at this point in time and scope for practical applications.
There is also scope for use of the Framework, specifically the Disclosure Diagnostic proposed
within the Framework, in conjunction with wider open contracting and general transparency-related
tools, such as the World Bank Group’s Scoping Assessment Tool for Procurement Systems. The
Framework, along with the Disclosure Diagnostic, will be implemented in four countries in FY
2017. It is expected to be implemented in other countries following the initial ones through a joint
program of work of the World Bank Group and the Organisation for Economic Co-operation and
Development. An extension of the Open Contracting Data Standard 1 to PPP using the
recommendations of this Framework is currently ongoing.

The Framework will remain a work in progress and will be refined based on stakeholder feedback,
implementation experience, as well as any significant changes in PPP structures and processes.

1
http://ocds.open-contracting.org/standard/r/1__0__0/en/standard/intro/.

7
PART I
________________________________________________________________________________________________________________________

1. Background and Approach

Background
In January 2013, the World Bank Group (WBG) published a report entitled Disclosure of Project
and Contract Information in Public-Private Partnerships, 2 which consisted of an examination of
disclosure frameworks, including applicable legislation, government policies, rules, regulations
and guidelines, as well as actual practice in transacted contracts in 11 selected jurisdictions. 3 The
scope of the study was limited to reactive 4 and proactive 5 post-procurement disclosure. 6 Several
interviews and global consultations were held with practitioners and policy makers from
governments, and stakeholders from the private sector in a range of countries, including the selected
jurisdictions. Further, technical guidance was provided to individual countries and ministries (on
demand) 7 to improve the transparency of public-private partnership (PPP) programs and projects
in parallel.

The WBG PPP Cross-Cutting Solutions Area (CCSA) further developed the results from the 2013
report through a fresh review of policy and practice in PPP disclosure in 2014. This review included
pre- and post-procurement information disclosure. That is, the review was wider in scope, so as to
include all the phases of a PPP from development to the completion of contract term, but limited
to proactive disclosure only to sharpen the focus on this specific area on the spectrum of disclosure.
Cambridge Economic Policy Associates was retained to work on the initial research and case

2
The 2013 report can be found at the following link:
http://wbi.worldbank.org/wbi/Data/wbi/wbicms/files/drupal-
acquia/wbi/Disclosure%20of%20Project%20PPP.pdf.
3
The 11 selected jurisdictions are the following: New South Wales and Victoria in Australia; Bahia, Brazil,
and Minas Gerais in Brazil; British Columbia in Canada; Chile; India; Peru; South Africa; and the United
Kingdom.
4
Disclosure in response to a request for information, usually under a Freedom of Information or Right to
Information Act, is termed reactive disclosure. It is sometimes also called responsive disclosure, which is
considered more positive as opposed to the inherent negativity in the term “reactive.”
5
Proactive disclosure includes all information that is disclosed by governments either voluntarily or under
a mandate provided by legislation or policy.
6
Post-procurement disclosure pertains to all disclosure in the period immediately after the signing of the
agreement and continues up to completion of the contract term, including any post-contract term activities
mentioned in the contract, such as handover of assets and so forth. Pre-procurement disclosure pertains to
disclosure prior to the signing of the contract and includes all stages of the project from project concept to
the completion of bid and negotiations (that is, just prior to the signing of the contract).
7
So far, such technical guidance has been provided to the Infrastructure Concession Regulatory
Commission in Nigeria and the Ministry of Rural Development in India.

8
studies. Thirteen jurisdictions 8 in various regions were included in the study. Figure 1 and map 1
present a summary of these various initiatives.

FIGURE 1: SNAPSHOT OF WBG PPP CCSA WORK IN PPP DISCLOSURE

MAP 1: REGIONAL COVERAGE OF THE 2014 JURISDICTIONAL STUDY OF PPP

DISCLOSURE

Approach
The immediate objective of this Framework is to provide a systematic structure for disclosing
information, including predefined standards, tools, and mechanisms for increased efficiency for
policy makers interested in developing a policy for PPP disclosure in their countries. There is a

8
The 13 jurisdictions are New South Wales and Victoria in Australia, Minas Gerais in Brazil, British
Columbia in Canada, Chile, Colombia, Honduras, the central government and the state of Karnataka in
India, Kenya, the Philippines, South Africa, and the United Kingdom.

9
dearth of literature on policy and practice in PPP disclosure, which this Framework, together with
the companion jurisdictional and case study volumes, 9 seeks to address.

Although the primary target audience is policy makers, the Framework has been designed more
broadly to address other stakeholders as well. This Framework can be used by legislators,
regulators, PPP practitioners and specialists in the public and private sectors, researchers, civil
society organizations, and the general public, who can contribute to improved transparency through
playing their respective roles, whether as information creators, disseminators, or users. The
Framework is also expected to be useful to teams in the WBG and other multilateral development
banks, providing technical guidance on PPP in client countries to include and integrate disclosure
into PPP programs and projects. With this broader approach in mind, professionals in the above
categories and other interested persons from different social and infrastructure sectors were
consulted widely during the preparation of the Framework.

The larger objective of the Framework is to help foster more transparent, efficient, effective, and
accountable governance of PPP programs and projects in client countries. This is particularly
relevant for jurisdictions that have not fully formalized or implemented their approach and policy
relating to disclosure in PPP. The idea is to help clients think through relevant issues to disclose
not necessarily more information, but more relevant and useful information, and adopt mechanisms
that will help in institutionalizing disclosure.

The recommendations in the Framework, including the elements suggested for proactive
disclosure, are linked to policy objectives that appear to drive disclosure (figure 2) in a range of
jurisdictions. These objectives are treated in greater detail in section 2. The Framework design in
section 5 attempts to connect the objectives to policies and the various challenges and benefits
discussed in section 3. Further, the users of information and how they use disclosed information
have also been key considerations in designing the Framework (section 4). In addition, the nature
of contractual obligations between the parties has been considered while suggesting the elements
to be disclosed in sections 7, 8, and 10. For example, proactive disclosure of information, such as
that related to revenue or equity returns, is suggested where there are clear links to revenue-sharing
clauses in contracts and to government’s own exposure in the context of the risk allocation
decisions inherent within the contract.

A recommended template and brief guidance on the use of the template for countries with varying
levels of capacity are included as part of the Framework.

The Framework also looks at several related issues, such as supportive legislation, confidential
information, and transparency in unsolicited projects.

9
The PPP Group has also prepared the following: Disclosure in Public-Private Partnerships: Jurisdictional
Studies and Disclosure in Public-Private Partnerships: Good Practice Cases, which can be useful
supplements to the Framework.

10
FIGURE 2: ALIGNING THE FRAMEWORK WITH OBJECTIVES AND DRIVERS OF
DISCLOSURE

The rest of Part I of the Framework is based on consultations with stakeholders closely involved
with PPPs and disclosure issues in countries, and essentially summarizes the findings of these
consultations. It also acts as a preamble to Part II, which contains the recommendations. The rest
of Part I is structured as follows:

• Section 2 briefly outlines the objectives and drivers of PPP disclosure.

• Section 3 examines the challenges and benefits associated with disclosure.
• Section 4 looks at the users of information and the various ways in which each set of users uses
the disclosed information. This section sets the context for connecting the disclosure
framework with user needs.

Part II forms the core of the Framework and consists of seven sections. Most of the sections are
designed to look briefly at international practice, followed by recommendations for disclosure with
a brief rationale. The companion volumes on jurisdictional studies and good practice cases (referred
to in footnote 9) deal with country practices in detail, look at actual disclosure in selected projects,
and examine specific types of disclosure. These are suggested as additional reading for policy
makers or practitioners looking to gain a greater understanding of international practice or specific
types of disclosure. The sections in Part II are the following:

• Section 5 focuses on the key elements in designing a disclosure framework.

• Section 6 looks at a desirable legislative, policy, and institutional framework.
• Section 7 focuses on the key elements in pre-procurement disclosure and includes a brief
subsection on disclosure in unsolicited projects.
• Section 8 focuses on the key elements in post-procurement disclosure, including ongoing
performance disclosure.
• Section 9 examines the use of standard clauses.
• Section 10 looks at the use of templates. It also builds a comprehensive template for disclosure
of pre- and post-procurement information. As part of future planned work in creating data
standards for disclosure, an additional subsection on data formats with technical information is
expected to be added to this section in the next iteration of the Framework.
• Section 11 examines the concept of confidential information and redactions.

11
Part III of the Framework contains additional material and resources to help practitioners, and is
structured as follows:

• Section 12 is a Checklist/Diagnostic that can be used to review the status of disclosure in PPP
in a country. It is in the nature of a rapid country PPP disclosure diagnostic to identify gaps
with the objective of developing a strategy and a useful framework for institutionalizing
disclosure.
• Section 13 includes definitions of specific terms used in the text of the Framework. This section
has been included in this version based on demand during the consultation process.
• Section 14 contains useful references and resources, with links to websites, where available, to
supplement the guidance and information provided in the Framework.

2. Drivers of Disclosure
PPP disclosure in the jurisdictions studied appears to be influenced by multiple drivers, such as
reducing the risk of corruption, mobilizing private capital for investment in infrastructure,
increasing public confidence and awareness, and achieving value for money through PPP
transactions (see figure 3). Many of these objectives and drivers inducing governments to disclose
exhibit interconnectedness. For example, in South Africa, the rationale behind the policy objective
of transparency in procurement processes as set forth in the Constitution is the public’s right to be
informed that public money is being spent accountably. As the beneficiary of the service that is
being procured, the public also has the right to be informed that the products that are being procured
through PPP demonstrate value for money.

Other specific factors can be identified under the four broad drivers of disclosure. For example,
important factors contributing to an increase in public confidence are (a) aligning private
investments with public interest and (b) improving the delivery of public services. Similarly, factors
contributing to improved private investment mobilization include (a) the predictability of the PPP
pipeline, (b) a level playing field for all bidders, and (c) objective criteria for evaluating bids, among
others. These specific factors contribute to the key drivers of disclosure and, to a large extent,
determine the elements that should be recommended for disclosure.

In addition to these drivers, which appear to induce governments to disclose more, key direct factors
underlying and supporting better disclosure practices in jurisdictions appear to be the wider
government policy on transparency and whether these policies are, in turn, supported by legislation.

FIGURE 3: FACTORS DRIVING PPP DISCLOSURE

12
Although it is difficult to pinpoint any one of these as the key driver, since the approach to
disclosure varies across jurisdictions, it appears more conclusive that good practice may be
associated with the existence of legislation supporting disclosure. Frequently this legislation
supporting disclosure is identified as freedom of information (FOI) legislation or other supporting
legislation, such as PPP, public financial management (PFM), sector-specific legislation, and/or
budget transparency–related legislation. Legislation other than FOI or PPP legislation frequently
covers limited areas of disclosure. In addition to non-PPP disclosures, legislation may also cover
some aspect of PPP, for example, PFM Acts may mandate the disclosure of all fiscal commitments
and contingent liabilities of the government, including those arising from PPP projects. Budget
transparency legislation mandates disclosing the budgeted amounts for different projects and
programs, including the budget for PPP-related payments.

Where legislation is in place, especially overarching FOI legislation that includes clauses
mandating some form of proactive disclosure, more information seems to be available in the public
domain. FOI Acts are being increasingly interpreted as covering PPPs in addition to mandating
proactive disclosure. And in most of the jurisdictions studied, FOI Acts appear to be powerful
instruments inducing better proactive PPP disclosure. The majority (seven) of the jurisdictions
reviewed by the World Bank have provisions mandating proactive disclosure (see table 1). Where
FOI legislation does not exist or does not include proactive disclosure requirements, there is less
disclosure or relatively non-uniform disclosure practices. This is the case in India, where the FOI
Act recommends but does not mandate proactive disclosure; Kenya, which is yet to have an FOI
Act in place; the Philippines; and, perhaps to a lesser extent, South Africa.

However, it is important to emphasize that although the existence of FOI Acts appears to be
associated with greater levels of disclosure in PPP, several countries (including some not included
in the study) that do not have FOI Acts can still technically mandate disclosure of information
through PPP legislative and policy frameworks, specific PPP disclosure frameworks, PFM, sector-
specific legislation, or individual contracts. However, it logically follows that the coverage
especially in the latter case (individual contracts) could be narrower and non-uniform, and

13
institutionalization may perhaps be more difficult to achieve relative to a scenario where FOI or
some other legislative mandate exists.

To an extent, the period of time during which PPP projects and programs have been undertaken
also impacts disclosure. But it cannot be said that the maturity of disclosure practices is determined
fully by the maturity of the PPP program. Disclosure practice appears to have developed over time
in jurisdictions like British Columbia, New South Wales, and Victoria, which have been
undertaking PPP projects over a long period of time and also have more mature PPP disclosure
regimes. Other jurisdictions, like Colombia, India, and Peru, with relatively recent programs,
appear to have progressed much more rapidly up the learning curve, achieving a good level of
disclosure in a short space of time. Countries in Latin America appear to be disclosing more
information in PPP overall compared with countries elsewhere, whether developing or developed.
For instance, in Colombia, practices in the pre-procurement phase have reached a reasonable level
of maturity and this is true of most countries with substantial PPP programs in Latin America.

One association that we may infer is that practice relating to PPP disclosure may have developed
more rapidly in emerging countries, perhaps because there is more of an imperative and pressure
to create new infrastructure. This observation links back to the objectives of increasing private
sector involvement, increasing public confidence, and ensuring value for money, all of which in
turn are variously linked with the larger objective of reducing the risk of corruption.

14
TABLE 1: FOI ACTS IN THE JURISDICTIONS STUDIED
COUNTRY FOI LAW PROACTIVE

BRITISH COLUMBIA Freedom of Information and Protection of Privacy Act No

CHILE 2008 Access to Public Information Law Yes
COLOMBIA Law of Proactive Disclosure 2013 Yes
HONDURAS 2006 Transparency Law Yes
INDIA & KARNATAKA Right to Information Act 2005 Yes/no
Freedom of Information Bill 2012, currently going through
KENYA Not yet known
Parliament
MINAS GERAIS Transparency Law, 2011 Yes
NEW SOUTH WALES Government Information (Public Access) Act, 2009 Yes
Freedom of Information Bill, currently going through
PHILIPPINES Not yet known
Congress
SOUTH AFRICA Promotion of Access to Information Act, Act 2 of 2000 No

UNITED KINGDOM Freedom of Information Act 2000 Yes

VICTORIA Freedom of Information Act 1982 Yes

3. Challenges and Benefits

Disclosure of information appears to be influenced by many challenges and benefits. Many of the
challenges can be overcome through a sound and well-thought-out framework. A robust framework
is a necessary and, perhaps, a sufficient safeguard against the challenges raised by PPPs, such as
social and environmental impacts, public interest and human rights, democratic accountability,
hidden fiscal exposure, and so forth. In later sections of the Framework, especially the sections
assessing the elements required for a useful disclosure policy, we refer back to some of the
challenges and benefits discussed in this section. Some of the major challenges in information
disclosure highlighted by PPP practitioners are summed up in the following discussion.

• A key challenge facing disclosure in some jurisdictions appears to be the lack of a legal
framework requiring the disclosure of information and, incidentally, the reluctance of public
bodies to share information in the absence of a clear mandate or framework for proactive
disclosure, as well as the lack of clarity on disclosure specific to PPP. There are many layers
of legislation and policy in some of the jurisdictions studied, which leads to lack of clarity and
difficulties in compliance and monitoring. There is also the feeling among government officials
that their decisions as well as “advisory” may be exposed to public scrutiny, which appears to
induce officials to disclose less rather than more where there is a lack of a clear mandate.
• An additional challenge relates to the retroactive applicability of FOI Acts on projects
implemented prior to the legislation. Although the Act would apply in theory, the feasibility of
implementing this retroactive effect on documents in practice is questionable, especially where
the contracts might have some confidentiality clauses binding both parties. For example, this

15
 was an issue when the government decided to disclose contracts in Victoria; the government
had to negotiate with the private party in many cases to enable disclosure. The Infrastructure
Concession Regulatory Commission in Nigeria, while processing its PPP Disclosure
Guidelines, carried out extensive discussions with concessionaires in the port sector to gauge
the level of readiness among private investors to accept the government’s decision to disclose.
The United Kingdom took a decision in 2010 to disclose contracts signed after January 2011;
the policy was not applied to prior projects.
• The main challenge to information disclosure in those jurisdictions where there is a legislative
requirement to disclose proactively appears to be the lack of practical internal guidance and
processes. For example, Kenyan PPP unit officials indicated that if guidelines were made
available, with templates and a dedicated space on the Public-Private Partnerships Unit website,
it would be easier to comply with the disclosure provisions under the PPP Act and the related
provisions of the PFM Act, such as the requirement to disclose contingent liabilities. The WBG
is now providing technical support to the Government of Kenya for disclosure of fiscal
commitments and contingent liabilities. An associated issue in disclosure could be uncertainty
and/or ambiguity within government agencies about their respective disclosure responsibilities,
particularly at the post-procurement stage.
• The availability and accuracy of data on PPP is a critical issue in disclosure. In the post-
procurement phase, it has been observed that project information often is not readily available
in practice.
• Another key challenge appears to be the time and cost involved in establishing disclosure
practices. Submission of information in line with requirements imposes costs to the public and
private parties. Private parties are the repositories of all information during the long operational
period of the project and need to make this available for any ongoing operating performance
disclosure. For the public sector, in turn, there may be a lack of dedicated staff or budgets to
manage information disclosure requirements.
• There seems to be less information disclosure at the post-procurement stage. There is a lack of
performance/monitoring reports, which is not unexpected, as sometimes reports are not
available within the recommended time and the government cannot make the information
available unless it has been able to obtain the information from the special purpose vehicle
(SPV). Further, the policy framework for post-procurement disclosure is less strong and in
many cases does not exist.
• Although there might be clarity on what should be disclosed and when, there is no provision
for any oversight mechanism in many jurisdictions. This lack makes it difficult to understand
the level of compliance. Research on a sample of five projects in each jurisdiction studied
showed several instances of inconsistencies in compliance. In general, there is a lack of
pressure on private entities to disclose specific performance information, or to set up websites
for their projects to keep the general public informed of the developments taking place with the
project.
• Disclosed information is often inaccessible in reality. Governments often disclose long contract
documents in pdf format with no search features available. In addition, for consumers and

16
 members of the general public, the contract documents become inaccessible because of their
technical complexity. Few program and project databases are comprehensive and all in one
place, consisting of all the project documents, including feasibility reports, concession
agreements, and the status of various clearances and land acquisitions.
• A critical issue being discussed in governments with more mature PPP markets and better
disclosure policies is what is perceived to be the disconnect between the objectives of
disclosure and the policies used. Public accountability and transparency are the main aims of
PPP disclosure. However, it is felt in some jurisdictions, like New South Wales, that contract
summaries are often very long and key pieces of information, such as financial information,
are not included, making these long summaries tedious to read but still leaving the reader ill-
informed about the project.
• Apart from challenges impeding better or more disclosure, disclosure itself can have some
unexpected or undesirable ramifications. Greater disclosure requirements provide unsuccessful
bidders with greater access to effected contracts, leading to increased risk of such bidders
bringing claims against the government or potentially providing grounds for bid-rigging in
future infrastructure projects. Practitioners in Pakistan have provided feedback regarding the
challenges of disclosing full PPP contracts, as this might lead to litigation from unsuccessful
bidders. Disclosure of draft tender documents with an invitation to the general public to
comment in Colombia led to some 1,500+ comments that the government undertook to respond
to individually, leading to substantial delays in the project.
However, it is essential that these challenges are overcome with the right frameworks and policies,
given the longer-term and distinct benefits to disclosure that have been pointed out by practitioners,
in many cases with anecdotal evidence to substantiate their views. Some of these benefits are
summarized as follows:
• Disclosure keeps the public sector accountable for expenditure via PPPs. For example, reactive
information disclosure in relation to the Fort St. John Hospital project in British Columbia
allowed analysts to put pressure on the government to achieve value for money from public
expenditure. 10
• Disclosure of PPP projects can also contribute to mitigating the risk of corruption to which
public investments in infrastructure are highly exposed. The extent of public officials’
discretion over the investment decision, the large sums of money involved, and the multiple
stages and stakeholders implicated contribute to making them more vulnerable to undue
influence. Indeed, the Organisation for Economic Co-operation and Development (OECD)
Foreign Bribery Report 11 suggests that almost 60 percent of foreign bribery cases occurred in
four sectors related to infrastructure: 19 percent occurred in the extractives sector, 15 percent
in the construction sector, 15 percent in the transport and storage sectors, and 10 percent in the
information and communications sectors.

10
http://www.policynote.ca/how-the-rules-got-fiddled-to-make-sure-a-public-private-partnership-got-
pushed-through/.
11
http://www.oecd.org/corruption/oecd-foreign-bribery-report-9789264226616-en.htm.

17
• By disclosing proactively, the administrative and economic cost in terms of time and fees for
filing an application to disclose information is avoided. By ensuring a distinct process and
system of proactive disclosure, the volume of individual requests is significantly reduced.
• With appropriate disclosure, public spending on infrastructure can be more productive in
creating real economic and social value and utility. The decision of whether to invest in more
infrastructure, which infrastructure to invest in, and how to invest will be based on a sound
needs assessment and cost-benefit analysis. Disclosure mechanisms that seek to avoid the
influence of vested interests in public decisions result in positive returns on productivity and
avoid the building of excessive or unnecessary infrastructure, such as projects that fail to meet
public needs and whose costs of construction, operation, and maintenance are not justified on
public utility considerations.
• Strengthening transparency along with accountability and scrutiny of public infrastructure
projects and PPPs minimizes the likelihood that additional costs incurred by corruption are
used to artificially inflate the costs of public infrastructure. Increased transparency and scrutiny
of infrastructure projects also seeks to remove more subtle indirect costs, such as selection of
inefficient contractors, lower incentives for private firms to innovate, lower quality government
services, lower trust in government institutions, and allocation of professional talent to rent-
seeking positions as opposed to key strategic positions in the public and private sectors
supporting sustainable economic growth.
• Disclosure of public infrastructure projects may also significantly contribute in reinforcing trust
in government, as well as the legitimacy of the state apparatus and the ability of elected leaders
and government institutions to function effectively. There is a strong correlation between
perceived corruption and confidence in national governments. Given their significant financial
and policy implications, large-scale public investment projects are generally highly visible and
of great interest to citizens and the media. Poor outcomes or allegations of corruption (although
subject to exaggeration from the bandwagon effect) therefore have the potential to influence
citizens’ views of elected leaders and the effectiveness and legitimacy of public institutions.
• The full disclosure of contracts and performance/monitoring reports is essential for democratic
accountability. A contract that is known to all members of the public and other public sector
agencies with a stake in the project would put more pressure on the contract manager to ensure
compliance, as noncompliance will be more visible where performance indicators, milestones,
and targets are well known.
• Information disclosure creates a high level of confidence in the fairness and effectiveness of
the PPP procurement process. This confidence reduces uncertainty from a bidder’s perspective
(for example, potential concerns that a proponent has already effectively been selected and that
the procurement process is simply a tick-box exercise). Greater confidence in the process
reduces barriers to entry, encourages new potential bidders, and incentivizes more competitive
tendering. More competitive tendering is likely to cut economic rents to efficient levels, and
therefore offer better value for money for taxpayers.
• In some jurisdictions, such as India as well as the United Kingdom, information disclosure has
led to a reformulation of government practices with regard to PPPs. Earlier it was more

18
 common for the government to sign memorandums of understanding with individual firms.
Since the beginning of a systematic PPP program with the establishment of the Public-Private
Partnerships Appraisal Committee and standard contract documentation in the mid-2000s,
India engages only in competitive bidding for the allocation of PPP projects at the level of the
national government. At the provincial or state level, a few states that have PPP legislation or
policies follow mostly competitive bidding. Where unsolicited bids are used, there is a
relatively transparent framework for these. In jurisdictions such as the United Kingdom, the
publication of audit reports led to widespread public criticism and pressure to disclose
information on PPPs more systematically, as well as to make major changes in policies. Private
Finance 2 (PF2) has several very progressive disclosure clauses as well as new requirements
for government’s equity contribution in PPPs.
• Disclosed information forms an important input into the procurement process in PPPs, as
highlighted in the OECD Recommendation on Public Procurement. 12 There are several benefits
to disclosure. In particular, in addition to the project-specific request for qualification (RFQ)
and request for proposal (RFP) documents, disclosure of independent reports and public sector
commitments at the pre-procurement stage are important inputs for bidders in evaluating the
project and putting together a feasible proposal guided by a more reliable assessment of the
project’s feasibility.

4. Users and Uses of Disclosed

Information
There does not appear to be any substantial analysis of users and uses of information in the
jurisdictions studied. Such analysis is not straightforward, as it is difficult to identify the uses and
users of disclosed PPP information, given that the information is publically available and so can be
accessed by any person or organization. However, from consultations, it can be inferred that there
are several key groups of users. In addition, we have some inferences, some of which are obvious,
about the use of the disclosed information by each category. Although disclosure of information in
itself is useful, it is found to be of greater value where projects and authorities try to engage
stakeholders in a dialogue. One issue of importance in this context is how governments frame the
discussion around the disclosed information. Many of the pitfalls or unintended consequences of
disclosure, which are discussed briefly in section 3, can be avoided or minimized through a good
communication strategy that is implemented skillfully by governments. Framing of the context
around the disclosed information through a good communication strategy can also educate the users
of disclosed information and ensure the fullest and best use of the information:

• Private companies, including bidders. Bidders constitute a major group among the users of
disclosed information. This is not surprising, as the information, pre- and post-procurement, is
likely to be useful for bidders. For example, the website traffic of Partnerships BC, in British

12
OECD (2015), Recommendation of the Council on Public Procurement.

19
 Columbia, tends to increase significantly when there are specific procurement milestones, such
as publication of the RFPs, largely because of interest from potential bidders. In addition,
parties interested in developing unsolicited proposals tend to follow up on the soundness of the
process and criteria, and also try to gain a better idea of the projects already underway and
potential projects likely to fit within the government’s development plan.
Apart from bidders, private companies in general like to use value-for-money reports for
feedback on the public sector comparator as well as risk allocation issues. Private companies
are also able to gain a greater understanding of why the winning bidder was chosen and
accordingly formulate their own proposals in other bids. Likewise, private companies, with
their internal expertise, can assess the credibility of the winning bid and decide to report
potential signs of irregularities or conflict of interest in the awarding of contracts involving
their competitors. Industry is keen to understand the progress of potential projects coming to
market and during the competitive process when extended approval processes can impact
directly the private sector’s costs of bidding. 13 Feedback of this nature from the private sector
in the United Kingdom led to the establishment of the project tracker.
• Trade media. Trade media are important users of PPP information documents (more
specifically in terms of releasing links to this information to interested parties), and therefore
may also be significant contributors to spikes in website traffic at certain times, for example
when expressions of interest, RFQs, and RFPs are released or news about project closings is
reported. Significantly, some of these journals come out with regular quarterly and annual
reports on project transactions by milestone, as well as the total value and number of closed
projects by sector, country, and region. Examples of these publications include Infrastructure
Journal, InfraNews, and Infrastructure Investor.
• Mainstream media and investigative journalists. The mainstream media includes general news
and investigative journalists who look at aspects of the projects related to service quality, social
issues, integrity issues, fiscal issues, private investment, financial issues, land, environment,
and resettlement, including the procurement process.
• Members of the public and civil society. The general inference is that a few individuals may
be interested in PPP contracts and data, most likely (local) government representatives,
representatives of civil society organizations that are interested in transparency and
accountability more generally, or more frequently for a specific infrastructure service,
indigenous people and communities potentially affected by the PPP project (including resident
welfare associations, especially in the water and power sectors, some of which appear regularly
before independent infrastructure regulators).
• Users of services. Service users are understood to be included among the category “general
public”; however, users of services are more focused users of project information as it affects
them directly. Users are interested in the standards of service as well as actual performance.
• Government departments and oversight enforcement authorities. When a PPP is commissioned,
other government departments, public oversight bodies, and enforcement authorities rely on

13
HM Treasury, A New Approach to Public-Private Partnerships, December 2012.

20
 the information disclosed for their own reporting and monitoring purposes. The disclosed
information also helps in strengthening scrutiny and accountability, as well as keeping a better
handle on public spending with a view to developing better policy. Government officials
working on new but similar projects at the provincial and local levels depend on information
and documents disclosed by national PPP units or by other contracting authorities while
developing and procuring their own PPP projects.
• Investors. These stakeholders use the information to assess the viability of projects and
recommend or make decisions on investments.
• Practitioners and advisors. Practitioners and advisors in the PPP sector consult the disclosed
contracts when they work on new projects that have similarities. This practice seems to have
assisted in standardizing contracts and, in particular, risk allocation.
• Researchers. Researchers frequently access PPP information, contracts, and performance
reports. For example, in 2010 the Conference Board of Canada published a report entitled
“Dispelling the Myths: A Pan-Canadian Assessment of Public-Private Partnerships for
Infrastructure Investments,” which used “value-for-money assessment” documents to assess
the efficiency of PPP procurement. 14,15 Similarly, there is an Australian study that compares
PPP projects with traditionally procured infrastructure on several parameters.

14
Conference Board of Canada report: http://www.fengatecapital.com/DispellingTheMythsRpt_WEB1.pdf.
15
The value-for-money assessment, a document that is often disclosed at the post-procurement stage,
involves a detailed comparison of the total costs of the PPP and conventional procurement options on an ex
ante basis.

21
PART II
________________________________________________________________________________________________________________________

5. Designing a PPP Disclosure

Framework
The PPP disclosure Framework needs to be designed based on the objectives and drivers of
disclosure, its challenges and benefits, and specifically the users and uses of the disclosed
information, the type of government support, and consequently government fiscal risk and
exposure, linking all of these together in a continuum. We have seen some of these aspects in more
detail in the preceding sections. A framework for proactive PPP disclosure is similar to any general
proactive disclosure policy in terms of the broad elements, that is, what should be disclosed, when,
and in what form; what should not be disclosed; and the responsibilities for disclosure. However,
the special circumstances and sensitivities associated with PPP projects, such as the long contract
period, complex structure, provision of “public” services by the private party, performance/output-
based payment mechanisms, and the multiplicity of stakeholders and their sensitivities, among
others, require a PPP disclosure policy to go beyond a general disclosure policy in the level of
detail.

The Framework should preferably provide a legislative or policy mandate for proactive disclosure,
such as through FOI, PPP, PFM, budget transparency, or other legislation, and, in addition, provide
sufficient guidance to officials. The Framework should link the disclosed elements with key drivers
of disclosure and the anecdotal evidence related to the current and potential use of information, as
discussed in sections 2 to 4. The Framework would also vary based on what is already there. For
example, if there is applicable legislation that does not mandate proactive disclosure or if there is
no applicable legislation, such mandate can be supported through policy and guidelines. Another
point to remember is that the higher is the mandate and the more detailed it is, that is, if there are
provisions for proactive disclosure as well as coverage of PPP within the FOI or PPP legislation
itself, there is likely to be a better environment for disclosure and more information is likely to be
disclosed.

A full suite of instruments could enable sound disclosure and induce better disclosure practices.
These instruments include legislation mandating contract or PPP disclosure, preferably with
requirements for proactive disclosure, such as FOI, PPP, PFM, and/or budget transparency (BT)
legislation with more detailed specific guidance, guidance on confidential information, provision
of standard contract clauses, and templates for disclosing information (figure 4).

To build the details of the framework, it is important to understand certain key areas and issues
closely associated with disclosure that could be preexisting or need to be newly established or
incorporated (table 2). Although all these elements are extremely important, we focus our attention
in this Framework on the elements that deserve more focused and substantive attention from the

22
point of view of PPP. We also focus on where the treatment needs to be different for PPP relative
to the treatment of general information disclosure, namely policy (including process and
institutional issues), templates, and confidentiality.

In the reviews by the World Bank, supply-side technology and resource issues have inevitably been
pointed out by policy makers in almost all jurisdictions, whether developed or developing, and
whether with mature or less developed PPP markets. The policy makers find that supply-side issues
are a key impediment to timely and high-quality disclosure, but do not form a substantive part of
the framework given its scope, which is limited to the substance of disclosure. Yet, this impediment
could be mitigated by applying procurement strategies that provide bidders with incentives to
compete on mechanisms to disclose information without unreasonably increasing internal costs. In
addition, countries in a position to support the transfer of technology, systems, and instruments that
support building, processing, and disseminating the required information could incorporate this as
a substantial aspect of improving their disclosure framework.

An important aspect in designing a disclosure framework is that of systems for collection and
aggregation of information. To the extent possible, reports should be machine read or provided as
inputs into a shared information system and able to be turned into structured data that can be
selectively converted into open data as required. For full effectiveness, the disclosure framework
should cover all stages of projects: (a) needs definition and selection phase, (b) appraisal phase, (c)
planning and document design phase, (d) tendering phase, (e) implementation and contract
management phase, and (f) evaluation and audit phase.

In addition, systems need to be built into the design of the disclosure framework that will enable
continuous publishing of procurement as well as performance information and data as and when
key changes happen. Linking and cross-referencing with other existing similar information sets or
databases could be useful. Defining or using harmonized information standards could not only
reduce the human and financial resource challenges identified in section 3, but also allow for
comparative analysis of infrastructure projects.

23
FIGURE 4: ELEMENTS OF A PPP DISCLOSURE FRAMEWORK

TABLE 2: KEY ISSUES IN CONTRACT INFORMATION DISCLOSURE IN PPP PROJECTS

ELEMENT

LEGISLATION AND POLICY

GUIDANCE

24
 TABLE 2: KEY ISSUES IN CONTRACT INFORMATION DISCLOSURE IN PPP PROJECTS

ELEMENT

CONFIDENTIALITY

TEMPLATES

TECHNOLOGY AND DATA STANDARDS

RESOURCES

6. Legislation and Policy

More information is likely to be disclosed proactively where clear mandates supported by
legislation are provided either through the FOI Act alone or by PPP and/or PFM Acts and/or
procurement legislation and/ or specific guidance. In developing a framework for PPP disclosure
in countries, it is important to consider what such legislation, policy, or guidance should
incorporate. Legislation, policy, and guidance read together should provide as much clarity as
possible on what is to be disclosed when, by whom, and how. There will always be gaps in specific
cases as and when new types of problems of interpretation arise, especially with respect to

25
confidential information, but broader issues can be taken care of through sound and practical
legislation and guidance. We have seen in an earlier section that some FOI Acts provide for
proactive disclosure of information. Most FOI Acts are now also understood to cover PPPs in some
way. Many countries also have PPP (or PFM or BT) legislation, policy, or standard operating
procedures, some of which have relevant transparency elements (table 3).

TABLE 3: PPP LEGISLATION AND TRANSPARENCY ELEMENTS

TRANSPARENCY
COUNTRY MAIN PPP LEGISLATION OR POLICY
ELEMENTS

BRITISH Procurement Related Disclosure for Public Guidance on proactive

COLUMBIA Private Partnerships, 2004, 2012 update disclosure

Ley de Concesiones de Obras Publicas, 1991, Information disclosure post

CHILE
2010 update contract
No specific transparency
COLOMBIA Law 1508 of 2012
requirements
Project information is
HONDURAS PPP Promotion Law 2010 confidential until contract
execution with exceptions
INDIA Draft PPP Policy 2012 Publication requirements
Recommends use of model
Infrastructure Policy for the state of Karnataka,
KARNATAKA documents, web
2007, draft update 2013
procurement, etc.
Disclosure of information on
KENYA PPP Act 2013
projects
MINAS GERAIS PPP Law 2003 No specific elements
Chapter on disclosure,
NEW SOUTH New South Wales Public Private Partnerships
summaries, and post-
WALES Guidelines 2006, update 2012
implementation review
Build-operate-transfer Law Implementing Rules Publication requirements for
PHILIPPINES
(RA 7718), 1994, update 2012 agencies
Approaches for improved
SOUTH AFRICA The Public Finance Management Act, 1999
public financial management
Standard text on disclosure
UNITED Private Finance Initiative Standardisation of PFI
and transparency
KINGDOM Contracts 1999, update 2012
requirements for contracts
Commitment to transparency
Partnerships Victoria Requirements 2009, 2013
VICTORIA and disclosure of processes
update
and outcomes

Detailed guidance underlying general FOI legislation works fairly well, as in the cases of Victoria,
New South Wales, the United Kingdom, and British Columbia (see table 4 for an example of
elements recommended for disclosure in the British Columbia guidance). These jurisdictions
operate within a general and specific mandate provided by the FOI Act and provide detailed

26
guidance on elements to be disclosed. There is no specific PPP legislation in these countries. Thus,
specific PPP legislation or even disclosure provisions in any existing PPP legislation may not be
necessary where the FOI Act is strong. However, where FOI Acts do not provide for proactive
disclosure or do not cover or clearly cover PPPs or contracts, or where there is the absence of a
general overall environment for disclosure, specific enabling provisions in PPP legislation would
clearly be helpful or may be considered a prerequisite to detailed guidance.

TABLE 4: BRITISH COLUMBIA: RECOMMENDED DISCLOSURE

ELEMENT DISCLOSURE GUIDANCE

Recommended; a project website or through a link to
REQUEST FOR QUALIFICATIONS the B.C. Bid website; in addition, addenda to RFQ
DOCUMENT (RFQ) available to proponents registering through the B.C.
Bid process
Disclosure of number recommended, disclosure of
NAME AND NUMBER OF PARTIES WHO
names not advised (ability to attract qualified
RESPOND TO THE RFQ
respondents may be affected)

NAME AND NUMBER OF PARTIES SHORT-

Recommended
LISTED AT RFQ STAGE

REQUEST FOR PROPOSAL Recommended

Not recommended (basis for commercial negotiations
DRAFT PROJECT AGREEMENT
and subject to change)
Disclosure of preferred proponent recommended when
NAME OF PREFERRED PROPONENT
evaluation is advanced

TABLE 5: UNITED KINGDOM: KEY PIECES OF MANDATED DISCLOSURE

 Infrastructure and construction pipeline information
 Accessible information on current private finance initiative and future PF2 projects
 Full contract disclosure (except exempt information)
 Full project and financial information where government has equity
 Actual and forecast equity return information
 Business case approval tracker

Legislation should ideally attempt to include key requirements, in particular: (a) proactive
disclosure; (b) specific coverage by direct mention of PPP preferably, or contracts and contract
information, and performance and procurement information as part of the definition of information;
(c) disclosure mechanisms, that is, how the information will be disclosed; and (d) redactions, that
is what information will not be disclosed. The degree of detail to be included in the legislation may
depend on each country’s surrounding integrity risk environment, but it should provide enough
detail to ensure sufficient accountability of public and private actors involved in a particular project.
For example, the New South Wales legislation includes a detailed list of elements to be disclosed,
the Victoria FOI legislation does too, although in less detail, whereas most other countries’ FOI
Acts do not go beyond the mention of contracts and/or government capital or other investments.
Procurement legislation in most cases requires the publication of key documents during the bid

27
process. Legislation may also require the disclosure of a comparative analysis, including the
strengths and weaknesses of each bid.

Specific advantages of more detailed coverage are that there is a strong mandate for disclosure,
there is better clarity on what to disclose, and it becomes inevitable that public bodies disclose.
However, there is the question of evolution. For example, in the United Kingdom, there has been a
lot of evolution in disclosure in PPP after the FOI Act by interpretation and through intense audit
scrutiny and public pressure. The FOI Act itself does not go into too many details of what is
covered; the Act leaves the details to be developed through interpretation and government
guidance, such as the 2010 policy on disclosure and the more recent PF2, which has strong
disclosure requirements (table 5).

Some practical recommendations on what could be covered by legislation are provided in table 6.

TABLE 6: SUGGESTED CONTRACT AND PPP-SPECIFIC CONTENT IN

LEGISLATION
CONTENT DESCRIPTION
Specific information to be covered under disclosure is mentioned within the
COVERAGE OF definition of information or in a separate clause. Contracts entered into by any
CONTRACTS public authority could be included; a separate, short section dealing with
contracts could be useful but not essential.
Provide for proactive disclosure of contracts with a broad listing of elements to
PROACTIVE be disclosed, such as processes related to the following: selection of projects,
DISCLOSURE public consultation, feasibility studies, comparative analyses of each bid based
on strengths and weaknesses, and so forth.
Legislation may also mention disclosure mechanisms, for example the
establishment of sound e-procurement systems for the dissemination of PPP
DISCLOSURE
procurement information or e-performance monitoring systems for the disclosure
MECHANISMS
of performance information.

Broad areas of redactions relevant in the context of PPP contracts, such as

commercially sensitive information and trade secrets, would need to be
REDACTIONS
mentioned as well as strategic/public interest–related confidential information.

The level of detail in specific PPP disclosure guidance would depend to an extent on the detail
included in the legislation and the capacities of each country. The policy and guidance would need
to fill in gaps in practices and procedures for disclosure of information, including a list of the
elements to be disclosed, in the specific context of PPP projects and contracts (table 7).

28
TABLE 7: SUGGESTED SPECIFIC CONTENT IN DETAILED PPP DISCLOSURE
GUIDANCE
CONTENT DESCRIPTION
LEGISLATIVE A clear interpretation of the application of the legislation to PPP contracts and
MANDATE project information.
ELEMENTS TO BE
Specifics of pre- and post-contract disclosure, preferably an exhaustive list of
DISCLOSED
items to be disclosed. (See sections 7 and 8.)
PROACTIVELY
Disclosure could be on a common platform or on other individual ministry or
agency platforms. This must be specified for pre- and post-procurement
PLACE OF
disclosure separately, as this may differ based on institutional roles and
DISCLOSURE
responsibilities for procurement and contract management. However, a single
platform is recommended for ease of access.
Specifics of timelines for each of the elements to be proactively disclosed. For
example, if contract documents are being disclosed, the timeframe would need
TIMELINES to be from the date of the agreement or from the date of financial close. For
project performance information, the requirement could be quarterly updating or
half-yearly updating. For value for money, the timeframe could be from the date
of finalization of the bid. Similarly, timelines should be disclosed for disclosure
of minutes of bid meetings, evaluation meetings, names of shortlisted bidders,
and so on.
Guidance to officials on what constitutes confidentiality. The guidance needs to
go beyond stating the headline issues, which are already a part of related
legislation. Guidance should discuss each element of the contract that might be
TREATMENT OF
part of commercial-in-confidence. There could be detailed discussion of
COMMERCIAL-IN-
elements that usually constitute commercial-in-confidence, such as
CONFIDENCE AND
methodology and elements of pricing; base case financial model, including
OTHER
details of the costs of financing through debt and equity; other unit costs,
CONFIDENTIALITY
profits, elements, and composition of the payments made to the provider, and
PROVISIONS
so forth. Guidance on when to begin detailed negotiations on confidentiality
elements should definitely be included. See section 11 on redactions for more
discussion and a snapshot of practices in selected countries.
The procedure for authentication, whether external or internal to the
department, the official/officials responsible for checking and signing off on the
information to be disclosed, and the timeframe for the purpose. An important
VALIDATION PRIOR
element would be whether to apply external validation to data at all, whether to
TO DISCLOSURE
apply it before disclosure, or whether a provision for random audit after
information has been disclosed would suffice. There could be high costs to
validation, especially external validation, in terms of time and money.
A format for information disclosure that can be filled in by the contracting
agency or other institution responsible for disclosure and/or a data standard will
TEMPLATE AND
help in more uniform information disclosure, and could also be utilized for data
DATA STANDARDS
aggregation by sector, risk profile, value, type, and so forth. See section 10 for
a suggested template.

29
7. Pre-Procurement Disclosure
There are three distinct phases in the procurement process relating to PPP: pre-tender, tender, and
evaluation stages have been built into the suggested disclosure for the pre-procurement phase. The
concerns relating to disclosure and the focus tend to be slightly different in each of these phases.
For example, the audience for the pre-tender phase is wider than that for the tender and evaluation
phases. The rationale for publication of information also tends to be slightly different, as discussed
in box 1. The main elements of the pre-procurement phase relate to publishing the project pipeline;
ensuring that investment decisions are based on national, regional, or sector objectives, and that
they do not unduly favor vested interests over the public interest; establishing the suitability of a
project for implementation through feasibility tests; establishing its suitability as a PPP through a
value-for-money methodology or other suitable methodologies; 16 carrying out the RFQ and RFP;
and evaluating the proposals.

Although every jurisdiction discloses information during the procurement process, the level of
disclosure varies. The highest level of disclosure is with regard to the publication of tender
documents, while fewer jurisdictions publish information on pipelines or feasibility reports or
tender evaluation reports (table 8 and figure 5). British Columbia provides specific guidance on the
elements to be disclosed along with the timing of disclosure. Reports of the fairness advisor are
disclosed in addition to the tender documents excluding the draft contract. The draft contract is not
published, because it is believed that it may harm negotiating positions in future projects. This
reasoning is not clear, however, because final contract documents are available in the public
domain.

TABLE 8: PRE-PROCUREMENT DISCLOSURE REQUIREMENTS IN PPP PROJECTS

ACROSS COUNTRIES

JURISDICTION PROCUREMENT TENDER DOCUMENTS BID EVALUATION

Successful bidders named at

Major capital project RFQ stage, preferred
BRITISH
plan made public by RFQ and RFP proponent named; project
COLUMBIA
responsible minister value-for-money report
disclosed at financial close
CHILE No requirements Calls for tender No requirements

COLOMBIA Published on SECOP Published on SECOP Published on SECOP

Calls for tenders

HONDURAS No requirements No requirements
published
RFQ, RFP, detailed Some states disclose list of
INDIA No requirements
project report disclosed bidders; decisions
Notices inviting tender
KARNATAKA No requirements No requirements
published

16
The methodologies used for processing projects and pipelines may differ from country to country.

30
JURISDICTION PROCUREMENT TENDER DOCUMENTS BID EVALUATION

National priority list of

Publication of RFQ,
KENYA all PPP projects No requirements
project benefits
published
Public consultation
Information on ongoing
MINAS GERAIS process prior to public No requirements
tender processes
bidding
Published by procuring
agency, available on
e-Tendering website, Published by procuring
NEW SOUTH Summaries of public interest
potential PPP projects agency, available on e-
WALES evaluations publicly disclosed
also available on Tendering website
Infrastructure Australia
website
List of priority projects
published by agencies
and local government
Published weekly for
units at least every six
PHILIPPINES three weeks in local and No requirements
months, available in
national newspapers
national newspapers
and PPP center
website
RFQ published in
Government Gazette, on
SOUTH AFRICA No requirements No requirements
institution’s website,
through press releases
Published by procuring
Published by procuring Published by procuring agency
UNITED agency on Contract
agency on Contract on Contract Finder as “award”
KINGDOM Finder website as
Finder as “tender” notice notice
“tentative” notice
Procuring agency to
Published by procuring
publish on Tenders
agency on Victorian
Victoria website; No requirements, but
Government Tenders
VICTORIA potential PPP projects considered on a case-by-case
Website; RFP only
also available on basis
disclosed to short-listed
Infrastructure Australia
bidders
website

31
FIGURE 5: PRE-PROCUREMENT DISCLOSURE: PRELIMINARY EVIDENCE FROM 82
COUNTRIES

The approach to pre-procurement disclosure should be guided by some of the following: private
investors’ concerns about the predictability of the pipeline and the process of procurement,
including a level playing field and transparent decision making; the public utility and the creation
of real economic and social value; the public’s right to know the government’s plans for
infrastructure investments; the likely fiscal impact of projects; likely changes in service and tariff
levels; whether a competitive process has been applied; and whether the project provides better
value for money than other available procurement methods. Disclosure could provide advantages
for the government, such as deriving better value for money by reducing private parties’ bidding
costs (which in turn is linked to the predictability of the process, consequently leading to a faster
process with fewer hitches as well as ease of preparation of bids). This advantage appears to be a
strong objective for disclosure as well as use of standard contract clauses in jurisdictions like
Victoria and the United Kingdom. (See box 1 for suggested elements in pre-procurement
disclosure.)

Unsolicited or privately initiated projects present special transparency challenges. Box 2 suggests
some disclosure provisions for these projects in two situations. Box 3 provides a brief overview of
disclosure of information in unsolicited projects in Colombia.

32
BOX 1: SUGGESTED ELEMENTS IN PRE-PROCUREMENT DISCLOSURE
RATIONALE FOR
DISCLOSED ELEMENTS
DISCLOSURE
Approved pipeline of projects with brief Reinforces trust in government,
description of project, services, estimated cost, provides greater predictability to
likely sources of revenue, and tentative the private sector, has the
procurement dates. Decision-making process potential to enhance competition
PRE-TENDER
leading to the investment decision (including the by preparing the market in
public interest test) and rationale for the choice advance, provides an
of PPP, feedback from stakeholders, and opportunity to all stakeholders to
community consultations. express initial concerns
Informs the market on project
and contract details, creating
Expressions of interest, RFQ, RFP (including potential for better quality bids;
evaluation criteria, preferred bidder negotiation enhances the confidence of
TENDER criteria), draft contract, detailed project report, stakeholders that the bid process
DOCUMENTS minutes of bidders’ meetings, all communications and evaluation will be
with bidders during procurement, modifications to characterized by fairness and
documents. objectivity, and that there is fair
and open communication with all
bidders
Names of bidders, names of shortlisted bidders
Provides evidence of a fair
EVALUATIONS at RFQ, name of preferred proponent,
evaluation process
comparative analysis of bids.
Confirms a fair bid process;
Any oversight reports if available, value-for-
provides confidence to the public
money (or other methodology for PPP mode
about the appropriate choice of
REPORTS evaluation) reports for disclosure following
modality and well-considered
financial close, such as pre-procurement phase
use of public money; provides
element disclosed post-contract signing.
information on risk transfer

33
BOX 2: SUGGESTED ELEMENTS IN DISCLOSURE FOR UNSOLICITED PROJECTS
Based on the process followed in the country, there could be broadly two types of processes for
unsolicited projects: one, a process where the project enters the general competitive tender process,
normally subsequent to the feasibility study and acceptance of the project proposal by the
government; or two, there could be a process whereby the project is not subject to competition at
any point in time and is negotiated separately between the government and the project proponent.

In general, logically, the level of information disclosure for unsolicited projects should be higher
than that for projects initiated by the government. A privately initiated PPP project, which is likely
initiated to promote business objectives, may not fit into nationally-owned development plans. In
addition, there is limited competition and a higher probability of error in the government’s
judgment about the soundness of the project. In this context, there is a lack of comparable projects,
as well as greater probability for misconceptions among the public and other stakeholders.
Therefore, unsolicited projects should be subject to a rigorous test, which may include a public
interest test, to demonstrate relevance to the development plan.

Table B2.1 suggests elements of disclosure for unsolicited projects for these two broad scenarios.
Although disclosure in unsolicited projects can be further elaborated for each type of process
followed, a detailed treatment of this is probably most appropriately situated within work related
to procurement processes for unsolicited projects.

TABLE B2.1: ELEMENTS OF DISCLOSURE FOR UNSOLICITED PROJECTS

ELEMENTS SUGGESTED FOR DISCLOSURE RATIONALE FOR DISCLOSURE

UNSOLICITED PROJECTS SUBJECT TO COMPETITION

On receipt of unsolicited project. Basic information including Creates the potential to reduce public
sector, services to be provided, proposed location, estimated suspicion surrounding unsolicited
capital cost, name of the proponent. projects; demonstrates that public
interest has been tested; reduces the
Following government’s decision to accept. Project feasibility
likelihood of a bad project being
report, evaluation process followed, and factors considered, accepted by the government; provides
especially the public interest test, further procurement and certainty on the process to the proponent
bidding process details, and special conditions and and other potential bidders.
advantages, if any, provided to the proponent.
During the bid process. The same elements as suggested for
projects initiated by the government.

UNSOLICITED PROJECTS NOT SUBJECT TO COMPETITION

On receipt of unsolicited project. Basic information, including Creates the potential to reduce public
sector, services to be provided, proposed location, estimated suspicion surrounding unsolicited
capital cost, name of the proponent, structure of the projects, demonstrates that public
company, composition of its board if any, and beneficial interest has been considered, reduces
ownership. the likelihood of a bad project being
accepted by the government, and
Following government’s decision to accept. Project feasibility
report, evaluation process followed, and factors considered,

34
 especially the public interest test, report detailing the provides certainty on the project to the
rationale for not being subject to competition, details of the proponent.
proposed negotiation process to be followed.
Prior to contract execution. Basic information, including
sector, services to be provided, proposed location, estimated
capital cost, draft contract documents, and details of any kind
of government support proposed (including any payment
commitments, guarantee provisions, and so forth by the
government); any revenues to be earned by the government
and the basis and evaluation process followed for these; and
if user charges are to be paid, the tariff methodology,
including the process for reviews and revisions.

BOX 3: DISCLOSURE OF INFORMATION IN UNSOLICITED PROJECTS IN

COLOMBIA
Unsolicited projects can lead to innovation and can be especially useful in countries where the
government has low levels of capacity. However, unsolicited proposals are brought forward
confidentially, so the level of pre-procurement information proactively placed in the public domain
is usually more limited than might be the case in a competitive procurement process. Unsolicited
projects can also carry a high risk of corruption and poor value for money.

Colombian Law 1508 of 2012 allows unsolicited projects. Private investors submit these projects
to the public authorities in strict confidence. Colombia’s strong PPP institutions have created a
process that seeks to overcome such risks through appropriate information disclosure.

The preparation process proceeds with a two-stage test, as shown diagrammatically in figure B3.1.
Within the process, there is a requirement for a public hearing for those proposals that progress to
the formal feasibility study stage. This is specifically for the benefit of third parties and has to be
undertaken within one month of the feasibility studies being delivered.

35
FIGURE B3.1: UNSOLICITED PROJECT PROCESS DIAGRAM

Following the public hearing, projects are submitted to open tendering if public funding is required,
that is, the standard procurement process is followed via a public tender, which requires the
publication of the same data as would be the case for a public procurement (table B3.1). Where
projects are fully private sector funded, they proceed under an abbreviated procurement process,
but this still takes place via the Sistema Electronico de Contratacion Publica (SECOP) and therefore
relevant information to facilitate other bidders’ participation is placed in the public domain.

A recent National Planning Department publication in Colombia17 also provides a summary of the
status of unsolicited projects and examples of the projects that are currently being pursued.

TABLE B3.1: SUMMARY OF UNSOLICITED PROJECTS IN COLOMBIA

Private sector companies are also publishing information about their involvement in unsolicited
projects. For example, the following details of unsolicited projects were available in recent analyst
reports 18 for Construcciones El Condoer (The Condor Group):

1. Highway 1 Vial of the Plains. Approved by the Agencia Nacional de InfraestructuraI (ANI)
in its feasibility stage, which means it has been submitted to the Ministry of Finance for
approval. It hopes to get the approval of the National Planning Unit and the Ministry. It has
a total investment of Col$1.3 billion (approximately US$640,000), including construction

17
https://colaboracion.dnp.gov.co/CDT/Desarrollo%20Territorial/Oficial%20Ingles%20-
%2004.08.2014.pdf.

18
http://investigaciones.bancolombia.com/InvEconomicas/sid/31096/2014070207382515.pdf

36
 of 42 kilometers (km) of dual carriageway, 71 km of roads, 5 km of bridges, and
maintenance of 264 km of roads.

2. Bolivar Antioquia Connection Vial. Just started the feasibility stage, involves works in
Antioquia and Bolivar, and has a capex investment of about Col$900,000 million (US$455
million).

3. Connection Vial Cesar-Guajira. In the structuring and feasibility stage and review of the
project completed by the National Infrastructure Agency (ANI). The initial project was
presented to the construction sector, mayoral, and gubernatorial associations. Capex is
about Col$311,600 million (US$154 million).

8. Post-Procurement Disclosure
The disclosure of post-procurement information generally seeks to ensure better performance of
projects during the construction and commercial operation phases, prevent extra costs or delays
due to corrupt practices, and correct illegal acts during the pre- and post-procurement phases and
ensure timely redress if there are any. The approach to disclosure of post-procurement information
globally is less consistent than disclosure at the pre-procurement phase. Often proactive publication
is limited to the name, value, and minor description of the project by law, as in Kenya and the
Philippines. In other cases, contract summaries, value-for-money, and other associated reports are
required to be disclosed, as in British Columbia, New South Wales, and Victoria at the point of
contract signing or financial close. In Chile, Colombia, Minas Gerais, and the United Kingdom,
there are ongoing requirements to publish information on the progress of the project, including
financial information in some cases (boxes 4 and 5), as in the United Kingdom under PF2. 19 All
the studied jurisdictions require announcement of contract award, such as an announcement in the
local press, development of contract summaries, or the publication of contracts, redacted for
confidential information. The different approaches are summarized in figure 6.

FIGURE 6: RANGE OF POST-PROCUREMENT DISCLOSURE PRACTICES IN

STUDIED JURISDICTIONS

A problem with post-procurement disclosure, which was pointed out by practitioners, is the timely
collection of information for dissemination. In the United Kingdom, the incorporation of provision
of information into the required services with penalties for failure under the new PF2 contract is a
significant step forward, but it is too early to see the impact yet. Colombia places the onus for
publication on the contractor, which must develop a public website with project details and
information on progress.

19
PF2 is a new approach to PPPs in the United Kingdom that emerged from the private finance initiative
(PFI) scheme. This was developed in 2012 and aims to overcome some of the perceived shortcomings of PFI,
including its approach to information disclosure.

37
Disclosure in projects that do not use standard contracts is another area of concern. Governments
may find it easier to disclose where standard contracts are used, such as in India and the United
Kingdom. Governments may feel less comfortable where bespoke contracts are used for each new
project with a substantially distinct set of risk allocation, payment, and/or tariff mechanisms. The
sensitivities surrounding cost and service as well as who takes the risk for uncertain events could
become quite sensitive and contentious, especially where these give the impression of the lack of a
level playing field for investors in different projects. Our recommendations do not suggest a lower
level of disclosure for such projects. The rationale is that disclosure is equally if not more important
in projects where standard contracts are not used, as the lack of transparency in the absence of
public disclosure in these cases has the potential to become even higher. Tailored allocation of risks
could provide governments with better contract outcomes depending on the complexity of the
project, government capabilities, and so forth. Governments should be open and transparent about
the reasons for supporting the use of specific or different risk allocation parameters, payment
mechanisms, fiscal commitments, contingent liabilities, and other key issues. Disclosure of detailed
feasibility studies and reports on choice of delivery modes could mitigate the impression of the lack
of a level playing field.

A sound post-procurement disclosure policy must preferably include publication of two types of
information, that is, information about the contract at closure, and following that ongoing
performance information through expiry or termination of the contract. This information would
include the following: brief project information at contract award, contract summaries and full
contracts at financial close, contract variations, independent engineer and auditor reports during
contract operation, and performance and financial information through the expiry of the contract
term. It is also important that governments try to develop databases of aggregated project data over
time.

In each of these distinct phases, that is, contract award, financial close, and operational phase, the
elements to be disclosed must be chosen with care to include data that are close to the ultimate
objectives of disclosure. These objectives are to increase the confidence of the public about service,
price, and ongoing achievement of value for money. In addition to the project and contract
information at the commercial and financial close, ongoing information should be provided to
consumers on service and price. The information should include service levels provided compared
with agreed levels; 20 penalties for nonperformance, with descriptions of instances or types of
nonperformance; tariff variations, preferably with a graph that shows all variations of tariffs over
time (along with consumer price index increases and an explanation of the methodology); financial
performance of the project, such as revenues (including sharing if any provided for) and equity
returns; government payments either committed or contingent; and ongoing achievement of value
for money. For full contracts, the presumption should be full disclosure except for specifically
exempt information.

20
This information can have two sources: one, from reports of an independent engineer, validated/cross-
checked by the contracting authority; and two, such data can be generated from the users of services through
user-feedback mechanisms embedded in project monitoring systems.

38
It is also important to disclose specific modifications to contract clauses and/or schedules in the
event of renegotiations. These disclosures should highlight any changes in risk allocation, cost,
tariff, and government total exposure as a result of the renegotiations.

Ideally, a single platform should be used for all PPP-related disclosure. However, given the many
stakeholders involved, and the limitations of information systems within governments, this may
not always be practical or possible. Post-procurement disclosure should ideally be accessible from
the public procurement portal (at the federal and subnational or provincial levels), dedicated PPP
websites, the ministry or contracting authority websites, and the project websites through links,
irrespective of where the information actually resides.

Table 9 sums up the key suggested elements for ongoing post-procurement disclosure.

TABLE 9: ONGOING POST-PROCUREMENT DISCLOSURE

Table 10 provides the range of elements that form the core of post-procurement disclosure by public
authorities along with the rationale for such disclosure.

39
TABLE 10: ELEMENTS OF POST-PROCUREMENT DISCLOSURE
ELEMENT DESCRIPTION RATIONALE FOR DISCLOSURE
Basic project High-level information
information
Risk Material risks, allocation, mitigation, Risk allocation is an important determinant of
actual risk events, and cost cost to government and to the paying
public/user. Inadequate or excessive transfer
of risk is undesirable. Disclosure will provide
evidence of proper or improper risk allocation
and its effect on costs.
Qualitative and quantitative analysis, Choice of methodology affects the costs to
Reasons for including value-for-money analysis, the public and it is important to assure them
choice of PPP/
where available, comparison of that the PPP mode selected is the best
follow up
estimated versus actual possible in terms of cost, given equal
reports
standards of service in all modes tested.
validating
Follow-up reports can demonstrate
choice of PPP
continuing value for money.

Financial Financing structure, shares, voting, Provides evidence that government support
information and so forth; estimates and actual is justified and required at the level and for
revenues earned (in cases where the period for which it is being paid.
there is a minimum revenue guarantee Infrastructure PPP projects are often back-
by government, substantial support ended in terms of revenues, and especially in
provided by government, or provision greenfield projects initial revenue projections
for payment of revenue share by the can be inaccurate and often characterized by
special purpose vehicle(SPV) to the a high level of uncertainty. It is important to
government); forecast and actual demonstrate to stakeholders the continued
equity return (in cases where relevance of payments between the parties to
government has an equity stake or the contract. Where government has equity
substantial government support has stake in a project, it is important to provide
been provided to the SPV either as information on the financial health of the
direct payments or as guarantees); or project, including the returns.
other instances where financial
information affects tariff structures or
the balance of other benefits in the
contract

Government Guarantees, grants, land rights, Government support creates commitments

support payments for service, other and liabilities for government and impacts
government budgets. Disclosure will
demonstrate the level of such liabilities.
Tariffs Tariff methodology and Explains to users why they are paying what
review/regulation they are paying.
Major contracts Contract description, method of Demonstrates whether services agreed to
concluded as tendering, value, and and at the level agreed to are being provided.
part of contractor/supplier name and address
execution of a
PPP project
Performance Open data on actual performance
against targets, actual penalties
against contract provisions,
independent engineer or auditor
performance monitoring report,
dimensions of coverage, user
feedback or surveys, if any

40
 Contract Termination provisions, handover Provides assurance to the public that
termination provisions government has provided for asset quality at
termination as well as continuity in provision
of service.
Renegotiations, Details of changes with dates, Has the potential to prevent unsound
changes specifying any impact of the change decisions based on vested interests of the
on cost, fiscal commitments or SPV, government, or any other specific
contingent liabilities, risk allocation, stakeholder.
tariff, or payment

BOX 4: ONGOING PERFORMANCE INFORMATION DISCLOSURE IN THE UNITED

KINGDOM
The M25, completed in 1986, forms a 125-mile orbital route some 20 miles from the center of
London. In 2009, the Highways Agency signed a 30-year private finance contract with Connect
Plus to widen two sections of the M25, refurbish the Hatfield Tunnel, and operate and maintain the
M25. The contract has a present value cost of £3.4 billion.

The project was controversial, with the National Audit Office concluding in 2011 that it offered
poor value for money. However, the project is an example of good practice for ongoing
performance information disclosure.

The Connect First special purpose vehicle publishes an annual performance report. This provides
information on progress through the year, any main events, as well as key performance indicators.
These indicators cover (a) construction milestones, repairs, and renewals, (b) response times, (c)
repair times, (d) management of defects, (e) Environmental Amenity Index, and (f) safety issues.

41
The following is an illustrative extract from the report:

MEASURE TARGE YR YR YR YR
T
1 2 3 4
%

Reactive callouts achieved within 20 minutes (peak 96 71 87 94 96.3

periods)

Reactive callouts achieved within 40 minutes (off- 96 89 99 100 100

peak periods)

MINS 1 2 3 4

Average response time (peak periods) 15 17 9 6.5 6.3

Average response time 30 32 10 10 10

% 1 2 3 4

Repairs required within 28 days repaired on time 96 47 93 96 96

Temporary repairs made in 24 hours 100 19.4 99.5 100 99.9

INDICATORS YR YR YR
1 2 3

Environmental Amenity Index (%) 90 90 83

http://www.connectplusm25.co.uk/pdfs/Annual%20Performance%20Report%202013%2012Jun13.pdf

42
BOX 5: DISCLOSURE OF FISCAL AND FINANCIAL INFORMATION IN PUBLIC-
PRIVATE PARTNERSHIPS IN CHILE
Chile publishes a clear report on fiscal commitments and contingent liabilities arising from active
public-private partnership (PPP) projects. This is a regular report that also shows the trends in the
movement of contingent liabilities with time, including the annual stock and proportion of liabilities
added. Some illustrative reports can be accessed at the following links.

• Contingent liabilities from PPP:

http://www.dipres.gob.cl/594/w3-propertyvalue-16136.html
• Fiscal commitments:
http://www.dipres.gob.cl/594/w3-propertyvalue-15889.html.
A few examples are illustrated in figure B5.1 and table B5.1. Not all countries involved in PPP
assess, measure, or manage contingent liabilities to the extent that Chile does, and therefore may
not be in a position to disclose information in a similar manner. However, it is highly desirable that
countries demonstrate this method of detailed assessment, management, measurement, and
transparent reporting and disclosure of contingent liabilities.

FIGURE B5.1: CHILE: DISCLOSURE OF INFORMATION ON CONTINGENT

LIABILITIES

Evolution of the Estimated Net Contingent Liabilities of the Concession System associated to Minimum
Guaranteed Income (IMG)

Millions of pesos and as % of gross domestic product of each year

43
TABLE B5.1: SUMMARY OF CONTINGENT LIABILITIES OF THE TREASURY –
REPORTED (% of GDP estimated for 2014)
Annual
Stock
Contingent liability flow Observations
(%)
(%)

Concession system Minimum Income Guarantee 0.01 0.14 Estimate

State guarantee for Debt of Public Enterprises 0.00 1.02 Maximum exposure
Credit guarantee for Tertiary Education 0.01 0.95 Maximum exposure
State deposit guarantee 0.00 1.31 Estimate
Concession system controversies 0.00 0.11 Maximum exposure
Claims against the Treasury 0.01 0.52 Estimate
Coverage fund for the Chilean Economic
-- -- Analysis
Development Agency (corfo) risk
Small business guarantee fund -- -- Analysis
TOTAL 0.03 4.04

Source: Dipres.

In addition, in Chile, financial information for all PPP special purpose vehicles is published at the
following link:
http://www.svs.cl/institucional/mercados/entidad.php?mercado=O&rut=99573420&grupo=&tipo
entidad=RGEIN&row=AABbBQABwAAAA5LAAc&vig=VI&control=svs&pestania=3.

All information on concessions, including financial information, is also available at:

www.concesiones.cl.

9. Standard Clauses
Standard clauses on disclosure provide specific language that can be included in the contracts by
public authorities. These clauses can also guide government negotiating teams while they are
negotiating provisions related to the responsibility of private providers to provide information to
the public authority, the rights and responsibilities of the public authority to disclose such
information fully or partly, any direct disclosure requirements for the SPV, and commercial-in-
confidence and other confidentiality provisions in specific project contracts. Inclusion of clear
disclosure provisions in the standard contract is also a good way to disseminate and educate
investors and potential bidders about the government’s approach to information disclosure in PPP
contracts. Table 11 summarizes the standard clauses in the jurisdictions studied. Table 12 sets out
some suggested inclusions in standard clauses based on good practice.

44
TABLE 11: SUMMARY OF STANDARD DISCLOSURE CLAUSES IN THE STUDIED
JURISDICTIONS
United The new PF2 Standard Contract sets out a full chapter on transparency and information
Kingdom (Chapter 31). This includes required and recommended drafting on confidentiality and
freedom of information. Within the required drafting, contractors must
• Provide a contract summary within 20 days of the signature of the contract
• Provide access to all requested project data
• Provide quarterly summaries of the information provided by the senior lenders
• Provide the authority and HM Treasury a calculation of the equity internal rate of
return and other financial information bi-annually.
Most significantly, the chapter also sets out that the provision of information is part of the
service required and imposes consequences for failure to comply.

Colombia The National Infrastructure Agency (ANI) provides a template contract for its fourth-
generation road sector PPPs. This requires contractors to establish a website that
provides, among other information, the following details of the project to the public:
• Objectives, mission, and vision
• Physical project scope
• Ownership structure of the special purpose vehicle, changes of control, rights and
voting procedures, and composition of the governing bodies
• Information about potential conflicts of interest.
There must also be public disclosure on the Internet portal of financial information reported
to the authorities or to the public and issued a maximum of two months after being
approved by the board.

British The standard drafting developed by Partnerships BC informs the contractor that following
Columbia financial close, the authority expects to publicly disclose the following:
• The Fairness Advisor’s report
• A project report
• Final project agreement, excluding those portions that may be redacted pursuant to
the application of the Freedom of Information and Protection of Privacy Act.

New South Clause 35 of Volume 7: Commercial Principles for Economic Infrastructure of the National
Wales PPP Guidelines provides that the government will be entitled to publish the project
agreement and other project contracts, but disclosure by the private party is generally
prohibited without prior consent of government.

Victoria Alongside the Commercial Principles noted under New South Wales, Partnerships
Victoria: Updated Standard Commercial Principles (2008) requires contracts to include a
clause providing that the government will be entitled to disclose (on the Internet or
otherwise):
• The terms and conditions of the project agreement and any associated transaction
document
• Documents or information arising from or connected to the agreement or transaction
documents (including the performance of those agreements).

India and Paragraph 40.1 of the model concession agreement for National Highway Authority of
Karnataka India projects Rs.100 crores and above sets out that:
• The concessionaire shall make available for inspection by members of the public
copies of this concession agreement, the operation and maintenance contract, the
tolling contract, and the state support agreement at the concessionaire’s site office
during the agreement.

45
 • The concessionaire shall also prominently display at the toll plazas public notices
about the availability of the public documents for inspection
(http://www.nhai.org/concessionagreement.htm).

TABLE 12: WHAT SHOULD THE STANDARD CONTRACT PROVISIONS ON

INFORMATION DISCLOSURE CONTAIN?
ELEMENT DESCRIPTION
Maintenance and • List of various reports, documents, project summary and other information
provision of such as equity ownershipa21 changes, and other financial information that
information the private provider would need to maintain and submit to the authority
• Maintenance of website or displays at site by special purpose vehicle
• Timelines for submission and disclosure on website
• Penalties for non-submission
• Information structure and standards
Disclosure Presumption of full disclosure except commercial-in-confidence and other
exempt information
Confidentiality • Language on what constitutes confidentiality
• Elements of the contract likely to be considered confidential
• Format for listing specific confidential clauses
• The period of time the information will be considered confidential

Disclosure in public Language providing for disclosure of commercially sensitive or confidential

interest information in case of public interest requirement (if provided by law)

10. Templates
One way to disclose is to place information in raw form in the public domain. A relevant example
in this context would be placing full contract documents along with schedules and side deeds in
the public domain. A more user-friendly alternative is to extract useful and relevant information
from the contract documents and place it in a specified format in the public domain, such as a
contract or project summary, or in an easy-to-comprehend database. The advantage of the latter is
that lengthy documents need not be perused by members of the public to find specific project or
contract information (see tips for user-friendliness in table 13).

There are several examples of the use of standard templates (table 14). However, all of these are
for post-procurement disclosure subsequent to contract signing or financial closure and are for
one-time summaries, which are not dynamic and do not provide for ongoing information
disclosure. (The case of Chile is an exception.) To the extent possible, a template for PPP

21
There could be nondisclosure agreements (NDA) already in existence, which may affect retroactive
disclosure related to this. However, the nature of operation of the NDAs that are signed should be carefully
studied to align them with disclosure requirements.

46
disclosure should have dynamic features, with links, and should include key elements of pre- and
post-procurement disclosure (see table 15 for a sample template 22).

The timing of disclosure is important. Preferably, all information in the template (except Part I:
Basic project information, Part II: Procurement information, Part IX: Information on
renegotiations, and Part X: Ongoing performance information) will be disclosed after commercial
close within 45 to 60 days of signing the contract.

Part I: Basic project information can be disclosed pre-procurement as it becomes available.

Part II: Procurement information is recommended for disclosure according to the milestones
in the procurement process. Evaluation and meeting minutes should be uploaded
within two to three business days.

Part IX: Renegotiations should preferably be uploaded within 45 to 60 days of execution of

renegotiated contracts.

Part X: Can be uploaded within 15 to 30 days of receipt of the information by the authorities.

Although these timelines would broadly suit most jurisdictions, some element of customizing
based on process, feasibility, and capacity issues may be required. For fragile or post-conflict
countries or other countries with rudimentary capacity in managing information and timely
disclosure, it is suggested that only the basic elements in the template should be used. In addition,
initially only the key documents and reports may be disclosed fully. That is, those documents
may be uploaded in their original form, with confidential information redacted until such time as
the capacity for more structured disclosure becomes available.

The process of approval within the government usually requires the preparation of detailed
summary documents for the approving committee and senior management. The same can be used
for populating the template and will not entail too much extra effort or capacity. Another way is
to use the private entity to create all the post-procurement disclosures. In a manner similar to the
prescription under PF2, the contract can prescribe this as a service to be provided by the private
entity with penalties for nonperformance. Another example is to include commitments on
exchange of information as a criterion (where suppliers are evaluated, among other things, against
service level agreement including exchange of information), or contract payments made subject
to the submission of requested information. However, pre-procurement information disclosures
would need to be prepared by the public authority. Some of the information can also be prepared
by the transaction advisors and consultants working on specific projects, until such time as the
government itself can prepare the reports.

22
This template is for illustrative purposes and would need to be customized based on the key features present
in PPP contracts in a specific country.

47
TABLE 13: TIPS FOR USER-FRIENDLINESS IN PPP DISCLOSURE
• Publish all the required information on the public procurement portal, and in addition on the
PPP, ministry, and special purpose vehicle (SPV) websites.
• Categorize the project pipeline by phase: concept, feasibility, procurement, and operation.
• Construct the landing page with basic project information, videos, news clips, and links to the
SPV website, if any.
• Provide a web-based project or contract summary in the template (see table 15) with links to
individual sections.
• Provide links to ongoing performance and financial reports from the web-based summary as
well as from the landing page.
• Provide links to procurement and contract documents from the web-based project or contract
summary as well as directly from the landing page:
o Documents categorized as “contract” and “procurement”
o Under procurement, include categories by phase
o Under contract documents, separate amending documents (which may have come at a later
phase).
• Provide links to or information on where users can submit feedback and complaints (state
location, virtual or other), along with the procedure for submissions.

TABLE 14: EXAMPLES OF USE OF STANDARD TEMPLATES FOR DISCLOSURE

United “Publication of New Central Government Contracts” includes several checklists and
Kingdom helpful information, including a checklist for steps to follow for publication of contracts
from contract development to contract execution. This takes into account transparency
clauses in the contract, any required redactions and their accuracy, and the requirements
for publishing the contract 23

New South Chapter 5 of the New South Wales PPP Guidelines (2012) provides detailed guidance as
Wales to what the contract summary must contain, including that it must distinguish between (i)
non-contractual background information; and (ii) contractual information. A Government
Contract Disclosure guidance form, including standard templates, is available from
www.procurepoint.nsw.gov.au.

Victoria Annexure 8 of the Partnerships Victoria guidelines provides a project summary template,
recommending that summaries should:
• Be up to 20 pages
• Provide an explanation of the key principles of the Partnerships Victoria Policy,
including a disclaimer that the information in the project summary should not be relied
on as a complete description and is not intended to be a substitute for the contract
• Provide information on project outcomes, tender process, value for money, public
interest considerations, and contract milestones

23
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61200/guidance-
publication-of-new-central-government-contracts.pdf.

48
 • Include key commercial features.

Chile The Transparency Council publishes several templates for public bodies to use when
proactively publishing information, including one template for subscribed contracts. The
template for subscribed contracts requires information on the object of the contract, links
to the terms of reference, and the assessment process minutes among other criteria.

Capacity issues might limit the format, type, and amount of information that can be put out by the
responsible public authority. While this document makes some practical suggestions for
overcoming any potential capacity constraints, it is likely that some countries might still not be
able to disclose at the level shown in the template in table 15.

Therefore, a graded level of disclosure is suggested, with two intermediate levels prior to
graduating to the full template recommended in table 15.

For countries with low capacity. It is suggested that fragile countries and countries with low
capacity and resources should fill in the template partially, as follows: Part I or Basic Project
Information, Part II or Procurement Information along with disclosure of the RFQ and RFP
documents; and Part VI or Government Support. Another option is to disclose the full PPP
contract with its schedules in the public domain. Sections III-V and VII-X need not be filled in.
The rationale is that these countries lack the staff skills and resources required to extract
information from complex contracts and place it in the template, as this work demands a fairly
high level of understanding of projects and contracts. In addition, contract management practices
may be rudimentary and it may not be possible to put up ongoing performance information in a
timely manner. Procurement information is routinely disclosed in all projects by governments as
mandated by procurement legislation and, therefore, has been included as part of these
recommendations. Disclosing full contract documents would mean a fairly high level of
disclosure without a high level of skills. However, care must be taken to ensure that the
confidential clauses or schedules of contracts are redacted before disclosure.

For countries with intermediate or moderate capacity. It is recommended that in addition to

filling in Parts I, II, and VI, and disclosing full contracts with redaction of confidential
information as in the case of countries with low capacity, moderate capacity countries should also
attempt to fill in Parts VII and X. That is, the countries should provide information on tariffs,
service, and fulfillment of the key performance indicator targets. This would ensure that the
public gets headline information on the basic characteristics of the project, the level of taxpayer
money going into the project, why the public is expected to pay the stated level of tariff, and the
services they would expect to receive against their payments.

49
TABLE 15: SUGGESTED TEMPLATE FOR PROACTIVE DISCLOSURE OF PROJECTS

BASIC PROJECT INFORMATION 24

• Project name, location, sector
• Sponsoring agency/department
• Project value
• Project need: benefits provided, economic and social (including specific information on the public
interest aspect)25
• Stakeholder consultations
• Reason for selection of PPP mode and type in brief
• Brief description of other modes analyzed and reasons for rejecting these
• Technical description of the physical infrastructure
• Dates of various approvals
• High-level description of the services
• Estimated demand to be served annually
• Project additionality

CONTRACT MILESTONES (ESTIMATED AND ACTUAL)

• Date of commercial close
• Date of financial close
• Date of commencement of construction or development
• Date of completion of construction or development
• Date of commissioning
• Date of contract expiry

LINKS TO ALL CONTRACT DOCUMENTS

PARTIES TO THE CONTRACT WITH CONTACT DETAILS

• Public authority: name of authority, name of representative, address, telephone, fax, e-mail
• Private party: name of company or consortium, name of representative, address, telephone, fax, e-mail
• Financiers: name of Lead FI, other FIs, name of representative of lead FI, address, telephone, fax, e-
mail

PROCUREMENT INFORMATION 26
Dates and summary details, links to all procurement documents, final feasibility study (including cost-benefit
analysis, if any), land acquisition, rehabilitation, social (including information on human rights impact
assessment) and environmental assessment, related information, and reports of independent procurement
auditors (if any):
• Request for qualification
• Pre-qualification or short list
• Request for proposal
• Evaluation criteria: brief description with weightage
• Brief information on constitution of the evaluation committees

24
This can be disclosed at the pre-procurement stage with the exception of information on the parties to the
contract, which will be disclosed once it becomes available, that is, at the end of the procurement process.
25
It is recommended in the PPP process to carry out a preliminary examination of the social and
environmental aspects of the project and identify and disclose potential deal-breakers or challenges as early
as possible.
26
This information can be disclosed in the public domain during the procurement stage. Disclosure in the
public domain can be simultaneous with the availability of the documents to prospective bidders.

50
• Negotiation parameters: brief description of the parameters for negotiation with preferred proponent
• Minutes of pre-bid meetings
• Selection of preferred bidder

RISK 27
Listing of risks with information on who bears the risk. The following table can be used. This is not an
exhaustive listing. Countries, sectors, and individual projects may use different categorizations. Several risks
can be further broken down into components or listed together. If within a large category of risk
subcategories are allocated to different parties, it makes sense to show the subcategories clearly:

DESCRIPTION ALLOCATION MITIGATION

Pre-construction risk: all risks up to
financial close
Construction/completion
Cost risk: capital, operating
Refinancing risk
Risk related to change in law, taxes,
scope, technical standards, regulatory
framework
Exchange rate risk
Operating risk
Commercial risk, market risk, demand risk
Performance risk
Financial risk
Force majeure risk
Environmental risk
Social risk

EVALUATION OF PPP OPTION: VALUE FOR MONEY OR OTHER APPROACH USEDe28

• Link to evaluation report (value for money or other)
• State the rationale for doing the project as a PPP, including any qualitative or quantitative value-for-
money, final feasibility studies (including cost-benefit analysis, if any) or other analysis that might have
been used. If nonfinancial benefits have been quantified or considered, these could be stated.
• The discount rates used should be specified in the disclosure along with the risk premium used, if any,
and an explanation for the rate of risk premium used, referring to guidance, if any, available in this
regard or describing project-specific circumstances that justify the risk premium rate used.
• Risk comparison of other financing mechanisms should be specified.

27
Information on risk is best disclosed immediately following the execution of the contract.
28
The rationale for doing PPP can be disclosed at the pre-procurement stage. However, a detailed value-for-
money report, if any, should preferably be disclosed following contract execution given that actual bid
comparison is available following assessment of bidders and final negotiations with the selected bidder. In
addition, where a public sector comparator is created, public entities might have sensitivities in disclosing
the public sector comparator in advance, as it might have the potential to affect their negotiating position
adversely.

51
FINANCIAL INFORMATION 29
• Equity-debt ratio
• Share capital
• Shareholders with proportion held and voting rights
• Certain contracts provide for caps on equity transfer in different stages of the contract, especially during
the construction stage and for a few years thereafter; give details of any such provisions
• Commercial lenders, institutional investors, bilateral or multilateral lenders, public issue of bonds,
supplier credit, other
• Categorize senior debt, mezzanine debt, other
• Amount and tenor of each, fixed or floating rate
• Security and step in arrangements
• Forecast internal rate of return

GOVERNMENT SUPPORT 30
Guarantees • Detail the type and exact details of the guarantees provided—both explicit
and contingent guarantees—such as minimum revenue guarantee,
exchange rate guarantee, debt repayment guarantee, and other
guarantees.
• Provide links to fiscal commitments and contingent liability disclosure
reports, if any.

Grants • Subsidy as a proportion of project value

• Capital subsidies paid during construction with periodicity or milestones
• Operating subsidies and their periodicity or milestones

Service payments • These are payments made by the public authority or purchaser to the
private provider for infrastructure services (applicable in private finance
initiative–type projects)
• Total payments and periodicity
• Methodology for calculating payments
• Indexation used

Land leases, asset • Land transferred on lease or other basis by government: give details of
transfers property numbers with the quantum of land transferred, zoning
information, conditions of transfer
• Equipment transfers: details of equipment with conditions of transfer
• Human resources/personnel transfers: details and conditions of transfer

Other support • Non-complete clauses

• Provision for revenue shortfall loan

Revenue share, if any • Revenue share on base case

• Revenue share on upside
• Links to graphs: annual concessionaire payments to government

29
Key pieces of this information become available at financial close and should, therefore, be disclosed only
after.
30
Information on government support should be made available at the time such support is approved for the
project. In many cases, decisions on this count are taken prior to bidding; in others, the decision is taken at
the end of the bidding process and the quantum and type of support is known only then. Such information is
best made available immediately following firm government decision on this.

52
TARIFFS 31
Tariffs and pricing • This information will be required only where the infrastructure
is financed partly or fully through the levy of user charges
• Methodology for tariff setting/pricing
• Scope for reviews of tariff, pricing, regulatory mechanisms
• Links to graphs: tariff increases over time, consumer price
index movement

CONTRACT TERMINATION
Events of default and Describe key events of default under two major categories:
termination payments concessionaire events of default, and public authority events of
default. State the termination payments against each, stating clearly
the methodology used for total payments. The following format may
be used:

BRIEF DESCRIPTION
OF EVENT OF TERMINATION
PARTY EVENTS OF DEFAULT DEFAULT PAYMENTS
Concessionaire 1.
2.
n.
Authority 1.
2.
n.

Handover State details of handover of assets back to state, condition of assets,

and any other conditions relating to handover. Include details of
provisions for continuity of service.

RENEGOTIATIONS
State variations to contract, if any, after signing of the original contract detailing each change against original
provisions. State in addition the details of renegotiations and circumstances leading to renegotiations. State
specifically any change due to the renegotiated clauses in the following: roles and responsibilities relating to
the project, risk allocation, fiscal exposure, that is, any change in fiscal commitments and contingent
liabilities with a rationale for agreeing to the change. Use the following formats:

Nature of variation
Rationale for variation
Change in roles and responsibilities of the parties due to the variation, if any

31
Where there is a standard way of setting tariffs for specific sectors either by the government directly or by
an independent regulator, it is expected that these methodologies have undergone consultations and been
placed in the public domain. However, for each project it helps to disclose as part of the procurement
documents and as part of the post-procurement template information to be disclosed upon commercial close,
the methodology used, and any modifications applied to the particular project. Similarly, disclosure of target
levels at commercial close can be done as part of Part VII or as part of the ongoing performance information
disclosure during the operational stage. However, it is more intuitive to disclose key performance indicator
targets at commercial close as well as along with the ongoing performance information disclosure at a later
stage.

53
 Change in original risk allocation due to the variation, if any
Change in original fiscal commitments or contingent liabilities of government due to
the variation, if any
Change in capital or operational costs due to the variation, if any
Change in tariffs or service levels due to the variation, if any
Date of variation

PERFORMANCE INFORMATION
Annual demand levels State the actual annual measured levels of demand or stated levels of demand
in the provider's report or contract manager's report. Use the following format.

Year Year Year Year

1 2 3 n
Annual demand
Annual revenues Recommended only where revenue share clauses or other related clauses, such
as minimum revenue guarantees, are present in the contract.

State the actual annual total revenues reported in the financial statements and
reports using the following format. If different categories of revenues need to be
reported, create more rows in the table. Provide links to audited financial
statements of the provider company.

Year Year Year Year

1 2 3 n
Annual total revenues
Actual internal rate of Recommended only where there is government equity investment or other form
return of government support that is substantial.
Performance State actual year-wise performance here against each of 10 to 12 identified
key performance indicators:
KEY Year 1 Year n
PERFORMANCE Target Achievement Target Achievement
INDICATORS

Performance failures State instances of performance failure during the year and the penalty or
abatement. Use the format given below to provide information on the
provisions of the contract as well as the actual penalties imposed:

Year
Category of failure
Number of events
Penalty or abatement provided
in contract
Penalty or abatement imposed
Penalty paid or abatement
effected: Yes/No

Performance Provide links to audit reports, independent performance assessments of the

assessments independent engineer, and any other performance reports available for the
project.

54
11. Redactions
Not all information, either pre- or post-procurement, can be disclosed, given commercial
sensitivities as well as public interest–related limitations. Most FOI laws make an allowance for
specific categories of confidential information. In a majority of the 13 jurisdictions studied,
confidentiality requirements for PPP projects follow wider FOI legislation. Table 16provides a
summary of the restrictions placed on disclosure across the jurisdictions studied.

Although the provisions in most FOI Acts are similar, how issues of confidentiality are interpreted
and treated varies substantially across jurisdictions. For example, Victoria and New South Wales
provide good examples of mature and well considered disclosure policies; however, despite there
being a presumption of complete disclosure and only limited redactions in Victoria, in some of the
contract documents examined, key pieces of financial information, including the base case financial
model, pricing structure, unit payment details, details of dollar abatements for failure to perform,
and loan prices, are among the withheld information.

55
TABLE 16: CONFIDENTIALITY PROVISIONS ACROSS JURISDICTIONS
Freedom of Information (FOI) I confidentiality definitions—disclosure is restricted if:

United It constitutes a trade secret or could prejudice commercial interests (FOI Act 2000 part II,
Kingdom clause 43).
Colombia It includes financial information that could detrimentally impact competitiveness and trade
secrets/intellectual property rights (Law of Proactive Disclosure 2013).
British The information is of potential harm to a third party or public body (Freedom of Information
Columbia and Protection of Privacy Act 1996, clause 21).
New South It includes the commercial-in-confidence provisions (GIPA, 2009, Section 32).
Wales
Victoria Information was provided in confidence or is commercial (Part IV of the FOI Act, 1982).
Minas Gerais It could jeopardize the state or population (Transparency Law 2011, Article 8).
Chile It would affect the performance of the public body or national interest/security (Access to
Public Information Law, Article 7).
India/Karnataka It includes commercial in-confidence, trade secrets, or intellectual property (RTI Act, 205,
Section 8).
South Africa It belongs to a third party (Promotion of Access to Information Act, 2000, clause 36).
Honduras It belongs to a third party (Transparency Law, 20006, Article 16).

Other confidentiality requirements:

South Africa Financial information in the bid is kept confidential to ensure the bidding process is
competitive. After financial close, the transaction adviser must produce a “close out”
report for the confidential and complete records of the institution (PPP Manual, Module
5).

Honduras Everything except the call for tender is deemed confidential until the PPP contract
subscription.

Karnataka Under the KTTP Act, the government has the power to obtain any information it requires
from an authority relating to procurement.

Philippines Confidentiality restrictions refer to unsolicited bids. Under the proposed changes to the
build-operate-transfer law, proprietary information within contracts would be kept
confidential, but only for a limited period.

Kenya Negotiations with bidders are confidential.

Provisions on confidentiality in PPPs in detailed guidance and standard provisions should aim
toward (a) ensuring that only limited information is redacted, and (b) enabling officials to identify
confidential information and suitably prepare information for public disclosure. Table 17 provides
suggestions for provisions on confidential information in legislation, guidance, and standard
clauses.

56
TABLE 17: SUGGESTED PROVISIONS ON CONFIDENTIAL INFORMATION
WHERE WHAT
Provisions in The general classes of confidential information combined with the presumption of full
law disclosure. Commercial confidence as a category important for PPPs is stated in law as
one of the exemptions provided.
Provisions in Guidance should be fairly detailed and in the nature of a step-by-step module in
guidance to negotiating, labeling, and finalizing commercial-in-confidence in PPP contracts as well
officials as understanding how to identify what would really constitute commercial-in-confidence
in a specific case.

It is important to understand that guidance would always leave a lot of discretion to the
negotiating official as commercial-in-confidence in different types of contracts and for
different types of providers would be different. Therefore, it is important to apply the public
interest test to determine what is prejudicial to the public.

Guidance could include the following:

• When should officials start to think of commercial-in-confidence clauses?
• Should the public authority ask for the provider’s opinion on what he or she
considers commercially sensitive information, clause-by-clause or element-by-
element, at the request for proposal stage?
• When should officials begin to negotiate on confidentiality?
• What factors are to be considered as a test of commercial sensitivity? Examples
are disclosure negatively affecting revenues or earnings, the provider’s ability
to compete in the market, unit costs, loan price, or supplier’s proprietary
information, such as specific technical or business solutions.
• How should officials weigh the impact of disclosing or not disclosing information
on strategic and public interest?
• When will labeled confidential information will be reviewed?

Once the clauses are identified, what format should officials use for reflecting the
agreement in the contract? For example, there could be a separate schedule listing all
the confidential clauses or parts of clauses identifying in detail each element.
Standard The standard contract provisions will begin with the application of the Freedom of
contract Information Act to PPPs. The standard provisions need to provide specific language for
provisions confidential information based on the general exemptions provided in the Act, but
pointing to specific elements, which in the context of the project would be considered
confidential.

The standard provisions will state clearly the information that the private provider is
expected to maintain along with timelines for submission: quarterly or bi-annual
performance reports on each of the performance indicators, reports on revenues, reports
on aggregate demand, and so forth.

The audit mandate should be clearly specified along with the extent of disclosure to audit,
which should ideally be the complete information, including information classed as
confidential information. The fact that audit reports along with the confidential information
will be fully in the public domain needs to be underscored in the standard provisions.

The likely confidential elements could be the areas where the competitiveness of the
private provider may be jeopardized due to disclosure, such as the base case financial
model of the private provider, which was the basis of the bid. Additional examples are
other financial elements, such as the debt structure of the provider or the pricing
methodology or elements of pricing that might compromise the competitive position of
the private provider. Such confidential elements must not be of public knowledge or in
the possession of a party without restriction prior to the date of receipt.

It is important to specify the time period during which information will remain confidential,
and when it loses its confidential character.

57
WHERE WHAT
The standard provisions should, however, allow space for specific confidential aspects
of each project and provide a format in which the commercially sensitive contract clauses
will be listed in schedules with the details of specific information for redaction along with
reasons for considering the information as commercially sensitive and the time for which
the information is to be considered as confidential.

58
PART III
________________________________________________________________________________________________________________________

12. PPP Disclosure Checklist/ Diagnostic

for Countries
Objective
The objective of the PPP Disclosure Checklist/Diagnostic is to help PPP policy makers and
practitioners assess the status of PPP disclosure in the jurisdiction and to identify customized PPP
disclosure solutions for all PPP types to enable better disclosure. The Diagnostic can also be used
by World Bank teams.

What the Checklist/Diagnostic Provides

The Disclosure Checklist/Diagnostic provides guidance (figure 7) to assess the status of each of the
following areas in the jurisdiction under consideration:

• Preliminary overview of the general transparency environment

• History and outlook for PPP disclosure
• Political environment for disclosure
• Legal and policy framework
• Process and institutions
• Guidance on confidential information
• Information systems
• Technology and data standards.
Under each of the areas identified, the Disclosure Checklist/Diagnostic provides the key questions
policy makers and practitioners should ask, analysis and techniques for assessing gaps, resources
for learning more, and tools for establishing a customized PPP disclosure framework for the
jurisdiction. Box 6 suggests some key pointers for using the Diagnostic and table 18 is the detailed
Diagnostic. The Diagnostic can be further developed as an Excel-based tool or used as a table
template by the users.

Questions in the Diagnostic can be broken down further into components where there are categories
for which it is difficult to answer yes/no.

59
Key Stakeholder Consultations
To assess the disclosure framework and practice through the use of the Diagnostic, the following
stakeholders would need to be consulted: information commissioners and others responsible for
implementing the FOI Acts (where such Acts exist), the Public-Private Partnerships Unit, the
treasury, data experts, contracting authorities, financiers, investors, bidders, civil society
organizations, consumers of services, and all other categories of information users.

FIGURE 7: PPP DISCLOSURE CHECKLIST/DIAGNOSTIC DESIGN

BOX 6: POINTERS FOR USING THE PPP DISCLOSURE DIAGNOSTIC

INITIAL PRELIMINARY OVERVIEW

A quick survey with a few quick notes based on publications, databases, information disclosed, and
earlier recorded reports. The preliminary overview will focus on disclosure in general as well as
PPP disclosure in particular.

RAPID REVIEW
Each question will be answered as Y/N

In addition to Y or N, the user will also make short notes giving reasons for the Y or N, plus any
relevant information and remarks that could help in gap analysis or strategizing. For example, there
could be some questions for which the answer could be partly Y or a nuanced Y or N.

GAP ANALYSIS
Ideally, gap analysis will be done once the rapid review of all components is completed, or
alternatively, an iterative process will be followed for gap analysis where any relevant information
in the rapid review of other components will be used to modify the previously done gap analysis.

60
What is a gap? This can only be answered relative to a practical need or alternately, a widely
accepted good practice, so references and resources provided with this tool may need to be used at
this stage.

CREATING THE PPP DISCLOSURE FRAMEWORK

This will ideally be done after the rapid review and gap analysis of all components is completed or
alternately there could be several iterations.

Heavy use of references and resources or deployment of an expert in accountability and

transparency along with PPP and data experts is recommended.

61
TABLE 18: PPP DISCLOSURE DIAGNOSTIC

PRELIMINARY ANALYSIS
General transparency and openness This consists of a preliminary look at the
environment broad landscape of general (that is, not
Freedom of Information (FOI) or Transparency necessarily PPP) governance and
Acts? transparency issues followed by a
Robust government information portals? preliminary look at disclosure frameworks
Procurement systems reputed to be transparent specific to PPP projects. This will be based
and open? on high-level, desktop research,
The overall openness of decision-making: for government FOI and PPP websites if any,
example, the quality of public-private dialogue transparency indices, and so forth, from
(overall, not necessarily PPP-specific); tradition of Transparency International, COST, related
consultation on draft laws and regulations UN work, news media reports, open
Information-sharing practices (with public): for government partnership, and open
example, tradition of sharing information on contracting work of the Governance GP of
enacted laws, regulations, policies (is there an e- the World Bank, other easily available WBG
portal, for example, on the stock of laws and or external publications. See Rule of Law
regulations) Index, 32 Corruption Perceptions Index,b33
Information sharing within government: and Index of Economic Freedomc34 to get a
Degree of accountability to nongovernmental sense of how legal, regulatory, and
stakeholders: for example, existence of business- institutional frameworks in the country are
to-government or citizen-to-government feedback perceived and rated.
loops on the quality of service (including
regulatory) delivery If it is a WBG team using the Diagnostic, it
Degree of accountability within government: for should begin to connect with related
example, monitoring mechanisms with associated government counterparts, such as the PPP
system of rewards/penalties Unit, National Treasury, Debt Management
Degree of rent seeking in the government: Office, contracting authorities, information
Mechanisms for capacity building and training in officers, and commissioners (officials
the government responsible for the implementation of the
Overall general perceptions on the functioning of FOI Acts).
legal and institutional frameworks
If it is government itself that is using the
Diagnostic, it will require coordination
across ministries.
The output could be a two to three page
report.
PPP disclosure at first sight…..
PPPs in the country?
Sector focus? Numbers? Size? Types?
Status – development, commercial, financial
close, construction, operational?
Information available on websites on projects and
programs?
Pre- and post-procurement information available?
What elements are disclosed?
Frameworks – PPP Acts, policies on disclosure?
Media reports, feedback from public on
transparency, corruption, governance of PPP
Key lessons?
Key government and private counterparts to
connect to?

32
http://worldjusticeproject.org/sites/default/files/roli_2015_0.pdf.
33
http://www.transparency.org/research/cpi/overview.
34
http://www.heritage.org/index/ranking.

62
 And the prognosis…..
Recent court cases on PPP transparency
Potential or existing stakeholder/ civil society
organization movements
Published outlooks on PPP transparency

COMPONENT RAPID REVIEW Y/N GAP ASSESSMENT CREATING A

FRAMEWORK FOR
DISCLOSURE
POLITICAL • Clear support Y/N To be filled by the To be filled by the
ECONOMY from the highest assessing or country assessing or country
levels of team, but an illustration team, but an illustration
government Y/N below: is the following:
(national and
If there is no support to Where ownership is low,
subnational) to
Y/N the program from the the emphasis will be on
disclosure in
highest levels of dialogue, discussion,
general
government, or there is no and dissemination of
• Agreement on
or little internal support, international practice.
PPP disclosure
the ownership gap is
among internal A moderate or small gap
wide.
stakeholders indicates the need for a
(ministries, If there is internal support more systematic
agencies, but no external pressure approach to PPP
subnational or discussion, the gap is disclosure with an
governments) medium or moderate. ongoing parallel
• Sufficient discussion on best
If there is internal support practices.
agreement on the
and external pressure, but
need to disclose
and pressure to there is no approved plan
disclose among for implementation, the
ownership gap is small.
important external
stakeholders Private sector support,
(political parties, especially among
unions, private concessionaires, is
sector, users, important.
media, political
commentators,
think tanks, civil
society
organizations, and
any other)
LAW Are there laws, Here it is important to To be filled by the
policies, and begin with the FOI Act, go assessing or country
procedures in place down to the PPP Act, team, but an illustration
that include the Y/N PFM Act, and is the following:
following: Y/N Procurement Act, if any,
and look at the disclosure Where the gap is high
and the concept of
• Proactive Y/N provisions in all of these.
disclosure by proactive disclosure is
Y/N Where there is no FOI Act weak, or there is no FOI
governments or
Y/N or no proactive disclosure at all, it might make
agencies
provision in the FOI or the sense to build a general
• Coverage of
PPP, PFM, or culture of disclosure
proactive
Procurement Acts and no through larger open
disclosure relating
coverage of contracts or governance work initially
to contracts or
PPP in the FOI Act, the before focusing on PPP.
PPP
gap is wide. The Governance GP of
• High-level
the World Bank is well
definition of Where there is coverage
confidential of contracts or PPP in FOI
information,

63
 protection to but no proactive equipped to lead this
sensitive contract disclosure provision in work.
information either the FOI, PPP, or
Where the gap is either
• Timelines for the PFM Acts, the gap is
disclosure moderately wide. moderate or small, there
is a need for a strategy
• Are there any
Where there is coverage that looks at
significant
of contracts or PPP as simultaneous work on
legislative or
well as proactive open governance as well
policy
disclosure, but no timeline as sharing of
impediments or
or definition of confidential international practices in
constraints to PPP
information, the gap is PPP disclosure to build a
disclosure?
small. demand for more
openness in the
Where all four features jurisdiction.
are present in legislation,
there is no gap.

DETAILED DIAGNOSTIC
COMPONENT RAPID REVIEW Y/N GAP ASSESSMENT CREATING A
FRAMEWORK FOR
DISCLOSURE
GUIDANCE • Clearly Y/N Where there is no Normally the work on the
established roles guidance, the gap is wide. guidance is less difficult
and Y/N if there is a higher level
Where there is a of enabling clauses for
responsibilities on
Y/N guidance, which is disclosure as part of the
PPP disclosure
missing a majority of the
• Processes and Y/N legislation.
elements stated,
actions clearly
especially those on The Framework for PPP
established in
confidentiality, roles and Disclosure has an
guidance or
responsibilities, and example template and
internal orders
timelines, then the gap is some recommended
• Timelines for Y/N
moderate. inclusions to assist in
disclosure clearly
Y/N developing the guidance.
established Where there is a guidance
• Clear guidance that has most of the key
available for Y/N elements, but might be
officials on the missing either processes
identification and of validation or there are
treatment of technology issues or
confidential monitoring mechanisms,
information, the gap could be between
including the moderate and small. As in
timeframe all other cases of gap
associated with analysis, here too it is a
confidentiality, subjective exercise.
factors to be
considered as a Where there is a guidance
test of commercial that has all or most
sensitivity or elements, there is no gap.
public interest
• There are
penalties
associated with
failure to disclose

64
 • Mechanisms that
monitor
implementation of
disclosure
policies, internal
and external
• Processes for
checking the
accuracy of
information and
validation, internal
and external

DATA, • Degree of Y/N If there are no templates The Framework for PPP
TEMPLATE & consistent, or standard clause, the Disclosure has an
STANDARD structured, and gap in this area is high. example template and
CONTRACT exploitable some recommended
PROVISIONS Y/N If one of these is there but inclusions to assist in
information
disclosed the other is not there, the developing the template.
across projects Y/N gap is moderate.
• Defined common If one or both of these are
open data model Y/N there but inadequate, the
/pattern? gap will still be moderate
• Guidance on Y/N or small based on the
improving data importance of the missing
collection and Y/N elements.
data quality?
• Simple and Y/N If these exist and are
extensible comprehensive and
Y/N inclusive of all relevant
structure?
• Summary records points, there is no gap.
for all available
data at various
stages and Y/N
processes?
• Information on
unit and staff
managing data
standards
• Comprehensive
and clear
template for
disclosure that
covers key pieces
of pre- and post-
procurement
information,
including financial
and performance
information
• The template is
flexible enough to
cater to different
kinds of PPPs and
to PPPs in
different sectors
• The template is
dynamic, that is,
suited to ongoing
financial and

65
 performance
disclosure
• Instructions for
filling the template
included as
required
• There are
standard contract
provisions that
provide the
following:
 Specific
language for
confidential
information
 Specify the
period for
which the
information will
be confidential
 Provide format
for listing of
specific
confidentiality
clauses of each
contract
 State clearly
the information
that the private
provider is
expected to
maintain along
with timelines
for submission
 Specify the
audit mandate
with the extent
of disclosure to
audit

DETAILED DIAGNOSTIC
COMPONENT RAPID REVIEW Y/N GAP ASSESSMENT CREATING A
FRAMEWORK FOR
DISCLOSURE
RESOURCES • Budget is Y/N If there is an adequate The World Bank team or
available Y/N platform for disclosure client country will have to
• Skilled, trained Y/N and no budgetary strategize and
labor is available provisions for hiring extra understand the
• Technology and Y/N personnel for the specific magnitude of the
web platform/s work of disclosure, the resources needed for the
compatible with gap may be moderate or purpose given the nature
easy upload and small. of the framework of
download of disclosure and the
information associated costs.
• Security systems
to prevent data
and information
tampering

66
13. Glossary of Terms
Contract renegotiation Contract Renegotiation refers to changes in the contractual
provisions, other than through an adjustment mechanism provided
for in the contract. 35

Public-private partnership A long-term contract between a private party and a government

entity, for providing a public asset or service, in which the private
party bears significant risk and management responsibility, and
remuneration is linked to performance. 36

Proactive disclosure Proactive disclosure includes all information that is disclosed by

government, either voluntarily or under a mandate provided by
legislation or policy.

Post-procurement disclosure All disclosure in the period immediately after the signing of the
agreement and continuing up to completion of contract term,
including any post-contract term activities mentioned in the
contract, such as handover of assets.

Pre-procurement disclosure Disclosure prior to signing of the contract, including all stages of the
project from project concept to the completion of bid and
negotiations (that is, just prior to signing of the contract).

Reactive disclosure A response to a request for information, usually under a Freedom

of Information or Right to Information Act; this type of disclosure
is also termed as responsive disclosure, which is considered more
positive as opposed to the inherent negativity in the term
“reactive.”

Redactions The removal of confidential and sensitive information from

information disclosed either due to the commercial sensitivity of
the information or public interest or under a legal mandate.

Value for money Value for money means achieving the optimal combination of
benefits and costs in delivering services users want. 37

35
Public-Private Partnerships Reference Guide, Version 2.0. The reference guide can be found at the
following link:
http://api.ning.com/files/Iumatxx-
0jz3owSB05xZDkmWIE7GTVYA3cXwt4K4s3Uy0NtPPRgPWYO1lLrWaTUqybQeTXIeuSYUxbPFWly
suyNI5rL6b2Ms/PPPReferenceGuidev02Web.pdf.
36
Ibid.
37
Ibid.

67
14. References and Resources
Environment Canada. 2008. Audit of the Proactive Disclosure of Contracts over $10,000.
http://www.ec.gc.ca/doc/ae-ve/aer-rve/529_eng.htm.
Freedom of Information Act. 2000. UK Government, London.
Government of Chile. 2008. Access to Public Information Law (Ley sobre Acceso a la
Informacion Publica), and its 2009 regulation, and administrative processes defined
in instructions 4, 5, 7, and 9 from the Transparency Council. Santiago.
———. 2010. Concessions of Public Works Law (Ley de Concesiones de Obras
Publicas), and its 2010 regulation. Santiago.
HM Treasury. 2007. Information and Confidentiality, Standardization of PFI Contracts,
Version 4. London.
———. 2011. Publication of New Central Government Contracts, Guidance Note.
London.
———. 2012. Standardization of PF2 Contracts. London.
Infrastructure Australia. 2009. National PPP Guidelines, Vol 6: Jurisdictional
Requirements, New South Wales Requirements. Sydney.
Local Government Group and Local Public Data Panel. 2010. Local Transparency -- A
Practitioners Guide to Publishing New Contracts and Tenders Data. London.
Ministry of Justice, United Kingdom. 2008. FOI Guidance, Exemptions Guidance, Section
43 -- Commercial Interests. London.
New South Wales. 2009. Government Information (Public Access) Act, No. 52. Sydney.
Partnerships Victoria. Melbourne, Australia. 2010. National PPP Guidelines, Volume 6,
Jurisdictional Requirements, Partnerships Victoria Requirements.
South Africa National Treasury. Standardized Public Private Partnership Provisions.
Pretoria.
Treasury Board of Canada Secretariat. Guidelines on Proactive Disclosure of Contract
Information. Ottawa, ON, Canada. http://www.tbs-sct.gc.ca/pol/doc-
eng.aspx?section=text&id=14676. Accessed December 2011.
U.S. Department of Justice. General Guidance on Proactive Disclosure of Information.
Washington, DC. http://www.justice.gov/oip/foia_guide09/proactive-disclosures.pdf.
Accessed December 2011.
World Bank Institute. 2008. Positive Transparency: The Future of the Right to
Information? A Review of Standards, Challenges and Opportunities. Working Paper
by Helen Darbishire. World Bank, Washington, DC.

Useful websites
http://transparency.number10.gov.uk/transparency/contract-finder/search
http://www.contracts.vic.gov.au
http://colombiacompra.gov.co/es/secop
http://einstitute.worldbank.org/ei/webinar/themes/transparency-and-accountability-in-
public_private-partnerships

68
The World Bank Group provides assistance to
governments in developing countries to improve
access to infrastructure and basic services through
public-private partnerships (PPPs). When designed
well and implemented in a balanced regulatory
environment, PPPs can bring greater efficiency and
sustainability to the provision of public services
such as water, sanitation, energy, transport,
telecommunications, healthcare, and education.

The World Bank Group’s unique value proposition

rests with its capacity to provide support along the
entire PPP cycle. This includes upstream policy and worldbank.org/ppp
regulatory guidance, transaction structuring advice,
as well as financing and guarantees to facilitate
implementation. @WBG_PPP #PPPs

7/2016