Protecting the Public in Public-Private Partnerships Strategies for Ensuring Adaptability in Concession Contracts

Abstract

State and local government face ever-growing costs in order to provide adequate services, facilities, and infrastructure for their citizens, but traditional means of financing the provision and maintenance of public services is no longer adequate to cover expenses.  Concession contracts—a type of public-private partnership whereby governments lease infrastructure assets to private entities, generally in return for large, up-front payments—have been proposed as a potential, innovative solution.  The few concession contracts that have been implemented, however, have generated considerable controversy. The biggest concern is that these concessions—which can last upwards of seventy-five years—sacrifice long-term public interest for short-term economic gain.  This Note seeks to evaluate the legal strategies available to governments to ensure that governments who enter into concession contracts are able to adapt to changing circumstances throughout the course of the lease. This Note proposes several strategies that governments can implement through structural, regulatory, and contractual channels in order to maximize long-term adaptability and ensure that public interest is not subordinated to private economic gain.

The author would like to thank Professor Michael Heller for his guidance and comments, as well as the editorial staff of the Columbia Business Law Review for its help in preparing this Note for publication.