The role of legal advisor is to provide comprehensive counsel on all project elements including structure, development, and execution of the P3. An agency’s goal when selecting a legal advisor is to partner with a firm that has experience with P3 procurements and understands the nuances of leveraging private dollars as a means to create or improve public services. These transactional services include but are not limited to knowledge and execution in: authorizing legislation, partner selection, unsolicited or EOI/RFI/RFQ/RFP preparation and bidding process, asset sales/purchases and leases, the development, negotiation, documentation, implementation and monitoring of service and performance standards, financial terms, and project finance.
One of the legal questions that P3 procurement teams must confront in many jurisdictions is the authority to hire legal advisors independently. In many government structures it is the state attorney general’s office that hires and manages all external legal advisory services. This means that the water P3 procurement team might need to work with its state attorney general to identify a legal adviser with the right expertise for the project. Water P3 procurement teams should determine the responsibility for legal advisory hiring early in the process.
Public entity participation in P3 relationships is typically governed by specific authorizing statutes, which directs and informs the procurement and contract requirements.
Procurement Process in Place
The procurement process and approach are core to project success and achieving the proposed objectives. Up front work pays off with increased competition, achievable objectives, and public buy in.
Legal Authority to undertake the Procurement Process
There is different between P3 authorizing legislation and all the authority to fully undertake that procurement. Making sure that all required procurement requirements and processes will allow for the P3 procurement method can be difficult. The P3 procurement team needs to work closely with the governments traditional procurement office and legal advisers (both internal to government and external) to assure that the government’s regulations will allow for a P3 procurement.