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International Construction Law Review

BANKING CONSTRUCTION RISK IN THE LONDON UNDERGROUND PUBLIC PRIVATE PARTNERSHIP: A CASE STUDY IN APPLIED PROJECT FINANCING

ROBERT LONERGAN*

Senior Associate, Bell Gully, Auckland, New Zealand

1. INTRODUCTION

The construction industry has developed a variety of models for allocating and managing construction risk: traditional procurement (where the employer retains design risk and tenders the work to a single contractor), design and build procurement (where the employer transfers design and price risk in whole or part to the contractor) and management procurement (where the employer retains risk and control in relation to design and the co-ordination of separate works packages). Further mechanisms have been developed to allow employers and contractors to share pricing risk (by way of a target cost mechanism) or to enhance the management of speculative risks (by entering into an alliancing arrangement).
The nature of limited recourse (project) financing militates against the use of procurement models in which key pricing or completion risks are retained by an employer: project financing construction risk models are therefore derived from the design and build model but with greater risk transfer from the employer to the contractor. There may however be projects where it is simply not possible to apply the traditional project finance construction model: the transfer of traditional project finance risks to a contractor may not represent a value for money risk transfer, or a contractor may simply not be willing to assume those risks at any price. In these circumstances the issue arises as to what extent other forms of construction procurement can be accommodated within the limited recourse model. The London Underground Ltd (LUL) PPP is an example of the limitations of the traditional project finance construction model as an effective mitigant of project risk. This paper discusses the means by which construction risk was allocated and managed, not only at the subcontract level but as between the other project participants, so as to produce a bankable project structure.


[2004]
The International Construction Law Review

386

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