How much does extending a toll road concession period lower tariffs? (Spoiler: not much)

About three weeks ago, the Minister of Public Works and People’s Housing Basuki Hadimuljono reported that his ministry was looking into extending the concessions of toll roads in an effort to reduce toll road tariffs. Katadata reports that this was in response to an order from President Joko Widodo to reduce toll road tariffs this year, as he had received many complaints from the public that they were too expensive.

This obviously begs the question: how much does extending a toll road concession period lower tariffs? (Spoiler for those who want to skip ahead: comfortably less than 2%).

OK, so we need to build a financial model and collect a bunch of data?

Actually, we don’t need to build a financial model, and don’t need to collect much data at all.

If all we need to know is the percentage change in tariff, we can get in the right ballpark with just the following data:

  • The current length of the toll road concession in question
    • Concession lengths that range from 31 to 50 years with an average all toll roads of 39.3 years (BPJT), so let’s say 40 years.
  • The desired length of the concession
  • The weighted average cost of capital (“WACC”) for Indonesian toll roads
  • The share of capital expenditure in total project cash outflows
    • Capex usually accounts for about two-thirds of cash outflows over the life of a toll road project, in present value terms

We can do this by using the PMT() function in Excel, and just modelling all of the cashflows as an amortising loan payment using the tenor of the loan as the number of periods, and the WACC as the interest rate.

table.png

So as you can see in the table above, even if we set the WACC at an unrealistically low figure of 9%, and extend the concessions all the way out to 60 years, on average, the impact on the tariff is going to be less than 2%. More than likely, it’s going to be less than 0.5%.

(Nerd note: in fact, it’s going to be even smaller than that, because amortising loan payments are constant in nominal terms, while toll road tariffs in Indonesia grow roughly at inflation, so will be backloaded; hence, further discounted. And it’s not like you can get debt on a 60 year tenor either, so you’re still going to be front-loading debt payments, and back-loading dividends, whether it’s a 20 year or a 60 year concession. In any case, the impact is comfortably less than 2%)

Why is the impact so small?

It can be counterintuitive that adding 20 years to a 40-year concession has such a small impact on the tariff; after all, there’s another 20 years’ worth of traffic to spread the capital costs over. The problem is that, 40 years in the future, those cashflows aren’t worth that much in today’s money.

Even at a 9% discount rate, one dollar in 40 years is only worth 3 cents in today’s money, so the many millions of dollars of revenue that a toll road might earn in years 41 to 60 really don’t do a lot to lower the tariff required to cover the project costs projected in today’s money.

Is lowering toll road tariffs even desirable?

The purported aim of this policy is to reduce logistics costs incurred by Indonesia’s businesses while transporting goods on roads. This is a laudable aim, after all, Indonesia’s logistics costs are among the highest in the world as a share of GDP; accounting for 26% of GDP in 2016, compared to 14% in Malaysia, and 8% in Singapore.

However, the main drivers of roads logistics costs are not toll road tariffs, but rather congestion, and wear and tear on cars due to poor quality roads. If you did lower toll roads tariffs a significant amount, you could conceivably increase traffic on the roads, making traffic worse, and increasing the logistics costs overall.

Floating policies like this drives investor perception of risk

Any infrastructure developer knows that an extra 20 years on their concession will have a negligible amount on tariffs, so the government looks unprofessional when they go public with policies like this. In a developer’s eyes, it looks like the government is politicising toll road tariffs, increasing regulatory uncertainty; the impacts of which they are very familiar with.

As I said in my article in the Lowy Institute’s Interpreter blog in August last year “The government’s propensity to undertake post-bid renegotiations is part of the reason that cost of capital for utilities developers in Indonesia is closer to the neighbourhood of its lower-income ASEAN neighbours Vietnam, and Cambodia, rather than its lower-middle-income peers of the Philippines and Thailand.” (Check out that post for the accompanying graph).

Summing up

Extending toll road concessions is not an idea that is worth the attention that has been paid to it over the past few weeks. It won’t lower tariffs by a significant amount, and it’s not clear that lowering tariffs is a sensible policy aim anyway. By promoting this policy, the government stoking investors’ perceptions of regulatory uncertainty, keeping the cost of capital high.

Looking back at the table above, it strikes me that the tariff is dramatically more sensitive to changes in WACC than it is to changes in the length of the concession period. It could be that announcing this policy has already had an impact on future toll road tariffs, but not in the direction that the government was hoping.

When is borrowing at a low interest rate a bad thing for governments?

I was pleased to write an article for the Lowy Institute's great blog, The Interpreter, on Indonesia's regulation of toll roads entitled Indonesia's unorthodox toll road debt. 

From the article:

In 2016 Indonesia’s Ministry of Public Works dramatically underestimated the funds it needed to acquire land for toll road development. To try to keep development on schedule, the government leaned on toll road developers to lend them the difference at well-below-commercial rates. 

In the article, I try to set out how borrowing from the toll road developers at low interest rates may end up costing them more in the long run. To read more, head on over and have a read.

The Indonesian government just needlessly cost itself and its citizens a hundred million dollars

The Indonesian government announced last week that they will be cutting toll road tariffs by 25% on private toll roads, and 35% on Jasa Marga run toll roads, effective from the 7th of July until 5 days after Lebaran.

The government instructed toll road operators to make the cut to help out people during their long trip home.

In this post, I’m going to argue that, yes, this does save some of Indonesia's citizens money, but that it is inefficient, poorly targeted, and will cost the government (at least) a hundred million dollars over the next few years.

First off, how much does it save people?

I don’t have numbers on the amount of money this could cost toll road operators (which is the same as the aggregate amount that it saves users), but we can try to estimate a ballpark figure.

The tariff cut is in effect for 16 days, being 16/365 = 4.4% of a year. How much money the companies will lose will depend on the traffic flows. If traffic flows are heavier over that period than over the year as a whole, we’ll lose 25%/35% on more than 4.4% of a year, if they’re light then they will lose less than that.

To me, it seems plausible that they’d be heavy, because a large chunk of the country will be travelling over this period. But then, most toll roads are in Jakarta, and people leave the city during this period, and the flows might be heavy only for a few travelling days, while they’ll be light for a few days in the middle; this could mean that the flows are on average lighter. For this sort of analysis, it’s probably not too far wrong to just assume that traffic flows are, over the whole 16 day period, pretty much in line with the average flows over the year. In that case, we can just multiply the discount by 4.4% of the year, and find that private toll road operators should expect to lose around about 1.1% of their annual revenues over this period, while Jasa Marga will lose 1.5%.

I haven’t got data on the total fare revenue collections on all toll roads in Indonesia, but, in 2014, Jasa Marga’s receipts were around IDR 6.6 trillion and they control a bit under 60% of Indonesia’s toll road network. Assuming revenues roughly split that way too, we can estimate around IDR 4.8 trillion of non-Jasa Marga toll revenues. With a bit of growth and rounding, I’ll assume IDR 7 trillion for Jasa Marga and IDR 5 trillion for non-Jasa Marga toll operators.

So, as a result of this tariff cut, Jasa Marga will lose around IDR 105 billion (USD 8 million), and private companies will lose around IDR 55 billion (USD 4 million) in revenues. Toll road users will be better off by around IDR 160 billion (USD 12 million); the sum of those two amounts.

Just to reiterate again, this is a ballpark figure. It might be twice, it might be half, but it’s probably not 10 times, or 10% of that amount.

And who are the beneficiaries of this transfer?

The beneficiaries of this cut will obviously be the people that use the toll roads. So, who are they, and how much benefit will they actually get each?

Poor people will get some of the transfer, but not much. Poor people either ride motorbikes or the train, so avoid toll roads, or ride buses or “travels”, where their share of the toll is between one fifth and one fiftieth of the fee, depending on the number of people that are in the vehicle. If you have packed full a Toyota Avanza driving from Jakarta to Surabaya, taking every toll road on the way, both ways, your toll fees are about IDR 500,000. So, assuming 5 passengers with bags, the cost per passenger is about IDR 100,000. So, the saving to each poor person is about IDR 30,000 (USD 2.25). If the trip is shorter, or the vehicle is bigger, the savings will be smaller.

Even to a poor person, this is not much. A bus ticket to Surabaya around this time of year is around IDR 500,000, so you might be saving them 6% of their fare. This probably doesn’t even cover their food costs for the journey.

And, this is assuming that bus and travel companies adjust their prices at all. There is a lot of research that says that prices are sticky, so most likely the transportation companies are the ones that will get the windfall profit.

So, other than some poor people and transportation companies that serve them, you’ll have middle-class and rich people, who care even less about a savings of IDR 100,000 on their carload than poor people do about their IDR 30,000.

So, with this policy, the government extracted around USD 12 million from toll road operators, and spread it around a bunch of people that didn't really need it and won't even really notice it.

So why is this such a bad thing?

So, why am I making such a big fuss about this? How does costing toll road operators USD 12 million, most of which is borne by an SOE anyway, cost the government so much money? I’m going to deal with three reasons, as follows:

  1. It’s not fair;
  2. It’s operationally disruptive; and
  3. It sets (or reinforces) terrible regulatory expectations.

It’s not fair

There will be a certain group of people that will scoff at this: “Billion dollar companies can’t afford to give the average citizens a measly tariff cut for a few weeks?”

It’s true, the amounts are relatively small for a billion dollar company, but the point isn’t the amount, the point is that the government made a deal, and signed a contract, now they are unilaterally renegotiating it.

If we imagine a toll road which, in present value terms, will cost USD 1 billion, where the revenues will cover USD 900 million of that. To get it done, the government will have to pay a USD 100 million subsidy and the cashflows will look like the below, in present value terms.

When bidders bid on infrastructure projects in open tenders, they are bidding pretty close to the subsidy (tariff, concession fee, whatever the bid factor/balancing item is) that will exactly cover their costs and no more. They have to work as hard as they can to push down their capital and operational costs, put together the best financing package, convince their lenders to lend at the lowest rate possible, design the best/cheapest systems, and generally do everything they can to bid as cheaply as possible while meeting the minimum service standards. To win, you’re really cutting close to the bone.

So, any tariff cut or unexpected increase in costs, even a small one, means the investors will have lost money.

Imagine you are having lunch with some friends, then the President turns up and says “Surprise! Everyone’s lunch today is free!” then walks out, leaving the restaurants to bear the cost of your free lunch. This is pretty much what is happening here.

The concessionaire agreed to provide a service and bid their tariff according to a particular revenue projection, and all of a sudden, they’re being told that they aren’t allowed to charge what it says they are allowed to in the contract. That’s just not fair.

It’s operationally disruptive

The government has instructed an operator to cut tariffs; how much cash have they got in the bank?

If they have optimised their system, they’ll have as much as they need for that month and not a rupiah more. If they have any excess cash, they should use it to pay off their debts or dividends to their shareholders. All of a sudden, they’re being told that they’re going to lose 25% of their revenues for two weeks with no notice, and the banks are all about to go on holiday.

If a particular toll road operator loses USD 1 million, that means they need to scramble around to find this extra USD 1 million so that they can pay their employees’ salaries and keep the lights on. It’s not a massive amount of money for them, but it’s not easy to mobilise at short notice.

Toll road operators will also need to figure out how to implement a tariff cut with no notice. Tariff adjustments are things that they only expect every 2 years according to a schedule, so they have time to print up new signs, update their computer systems, figure out how much of every denomination of cash they stick in each toll booth, and so on. They, most likely, aren’t set up to change tariffs at a moment’s notice for a 16 day period.

Finding cash and implementing a no-notice tariff cut are not insignificant operational disruptions. Dealing with them will take significant time from the senior management, and probably the lenders as well. The cost of these disruptions is not included in the USD 12 million figure I estimated above.

It sets (or reinforces) terrible regulatory precedent

By cutting tariffs like this for one year in Lebaran, Indonesia has now created an expectation on the part of bidders that they will do the same in future. In Indonesia, for the next couple of years, faced with the same projections of cost and revenues, bidders will bid, discounting their revenues by 1.1%, accounting for the expectation that the government will force them to cut their revenues. For our billion dollar toll road above, going forward in Indonesia, the cashflows in present value terms will now look like the below.

The government will have to pay another USD 10 million in subsidy to cover the cost of the expectation that they created by cutting tariffs like this.

So how much will this cost the government in the long-run?

The government has 5 toll road projects in the “prospective” category of BAPPENAS’s priority project list, with capital costs as follows:

Manado – Bitung – USD 353 million

Tanjung Priok Access – USD 612.50 million

Balikpapan – Samarinda – USD 1.2 billion

Cileunyi – Sumedang – Dawuan – USD 1015.8 million

Pandaan – Malang – USD 420 million

The total capital cost of these toll roads is USD 3.6 billion. Assuming a capex/opex split of 60/40 and that land acquisition cost will be borne by the government, the total net present cost of these toll roads to the private sector will be on the order of USD 6 billion. Assuming no VGF, 1.1% of revenues needed to cover these toll roads represents USD 66 million.

So, future bidders in the toll road sector will “price in” the expectation that the government will force them to cut their tariffs during Lebaran. This price will be passed through to government through requesting a higher subsidy, or paying a lower concession fee; or through to users by charging a higher tariff.

In addition to the USD 66 million, investors will look at a government that is willing to surprise them with multi-million dollar losses not envisioned in their contracts, and expect that there will be a few more surprises as well. To cover this expectation, they will need to build an even larger margin of safety. It is eminently plausible that the margin the investors will assign to this uncertainty will be on the order of USD 100 million dollars.

The broader impacts

The expectation of regulatory intervention applies outside the toll-road sector as well. A government that is happy to force toll road companies to cut their tariffs might force private water operators to freeze their tariffs, apply arcane leverage constraints to airlines, or dramatically change the venues through which they can sell their product.

A government that acts erratically in its regulation is a significant driver of the country risk premium that investors and lenders will apply when deciding how to value their products in Indonesia. This flows through to the cost of finance, which is a component of almost every good in the country pushing up costs to all consumers, and harming the competitiveness of Indonesia's firms, relative to those in countries where the government does not take actions like this.

So, what can they do?

The damage isn’t necessarily completely done. If the government compensates the toll road operators for the gap between the tariff they normally charge and the one they’re being forced to charge, that would mitigate a lot of the impact of the expectations of regulatory meddling.

Even if they don’t do that, they can still mitigate some of the poor expectations by the way they design their concession agreements going forward. All they need to do is build in the right to cut tariffs whenever they want, but make it clear that they must give reasonable notice, and that the government will meet the gap between their agreed tariff, and the tariff that the government may choose to impose.

It will be interesting to see how the next round of tenders proceeds following this announcement.

How Indonesia can deliver rural toll roads

Earlier this week, BAPPENAS launched its priority list of PPP projects for 2015, including 5 prospective toll road projects and 1 potential toll road project. Following the tradition, they have included Manado – Bitung in their list of projects in the pipeline.

I wanted to write about this project because it illustrates a few problems with Indonesia’s approach to PPPs in the toll road sector, and one thing they’re (hopefully about to be) doing right.

History of the Manado – Bitung toll road project

The Manado – Bitung toll road is a 38km road planned to link the coastal cities of Manado and Bitung to support their integration into a unified metropolitan area across the province of North Sulawesi. In the 2013 PPP book, the investment cost was estimated at USD 353 million. I’ve never been to either of the cities, but I understand that this is a longer-term plan, and that the existing traffic flows, while heavy for the existing road, will not remotely cover the cost of construction and operation of the sort of toll road that has been proposed.

In the market soundings I have attended and briefings I have read, people spruiking the project have talked up the potential of the Bitung special economic zone (“SEZ”) and the upgrading of the port to drive traffic growth. There is some information on the SEZ here, and the upgrading of the port here.

The Manado – Bitung toll road has been included in every PPP book ever published by the Indonesian government. It was tendered in 2014, but the tender failed when it emerged that the winning bidder had no experience at all in the road sector and no ability to deliver the project (if I remember correctly, it was also tendered at some point in the late 2000s, but I can’t find a record of it).

Like all toll roads in Indonesia, the Manado – Bitung toll road was tendered with the private party taking full demand risk, getting all of their remuneration via user charges. The existing traffic flows were low, but government asked investors to take into account the potential traffic flows that might arise when the SEZ and upgraded port were finished. Given the uncertainty around the timelines of the development of these two facilities, and the impact they may have had on usage, all of the serious bidders took a conservative view of the traffic flows and realised that there was no way they would cover their costs through user charges alone. As there was no subsidy on offer, the serious bidders elected not to waste their time, leaving only poorly qualified bidders like the one that won.

So, all we need to do is offer a subsidy?

As I noted above, there is a lot of uncertainty surrounding the traffic flows. Private investors will necessarily take a conservative view on the traffic flows, but, with a sufficiently large subsidy, the project should be able to be made financially viable.

If the government wants the project, is that the best thing for them to do?

I would actually tend to think that, no, in fact, that would not be the best thing for government to do.

Excessive risk aversion transfers value to the private sector

The traffic flows for the toll road are highly uncertain. The government thinks that the traffic flows will be great, because they will develop the port and the SEZ, driving traffic, and they will create a conducive policy environment that will spur development along the route, further increasing traffic. Unfortunately for the government, the private sector bidders do not believe this, as the government has no track record of delivering projects like this on time.

The graph below shows, a simple depiction of what the two different scenarios could look like.

In a toll road, you get the vast majority of your revenues from user charges. Assuming you’ve got a single tariff for all cars regardless of distance, your revenues are the number of cars that drive on your road, multiplied by the tariff, as simple as that.

In an infrastructure deal, you’ve got two kinds of cash outflows: capital expenditure (“capex”), and operational expenditure (“opex”). Put very simply, capex is the investment you make upfront, which is fixed, and opex is the cost you bear over time, which changes depending on your traffic. If more people drive on your road, you have to spend more on maintenance. It’s a bit more complicated than that in the real world, but this will do for now.

The government looks at the projected costs and multiplies their traffic flows by the tariff; the difference between the two is the subsidy they think will cover the cost of service. The private sector party uses the same cost estimate, but with a more conservative estimate of traffic flows, calculate that they will need a relatively larger subsidy. In present value terms, the graph below shows how that arithmetic works with some simplified numbers.

In my simplified example, the government think they’ll need a USD 75 million subsidy, and the private party think they’ll need a USD 150 million subsidy.

Unfortunately for the government, what they think doesn’t matter. They run a tender with the minimum subsidy as the bid factor, so all the bidders get together and try and figure out ways to lower their costs, and raise their revenues, eventually arriving at the minimum subsidy they think they can get the job done for. Whoever bids the lowest subsidy wins, so the winning bidder’s expectation of the costs and traffic flows is what determines the subsidy, not the government’s. And, that’s the way it should be.

Through running a tender process, the government is trying to get to what economists call “efficiency.” The efficient subsidy will be an optimisation of the lowest costs capable of meeting the service standards and the best guess at the traffic flows. Each bidder will bid a subsidy that covers their costs, including a reasonable return on their investment, and no more. If they bid more, they would run the risk of being undercut by the other bidders. If the tender process is free and fair, you should come pretty close to the minimum subsidy possible to get the job done.

But, what happens if, in fact, the government exceeds the winning bidder’s expectation and delivers the port and the SEZ, and develops the area around the toll road in such a way that the government’s projection of the traffic flows were realised. The private party already got their subsidy, so the high traffic volumes just mean that the private sector makes a whole lot more money. They got a high subsidy, representing the conservative traffic forecast, then the high revenues from the actual high traffic volumes. The graph below shows what the cashflows could look like in present value terms.

In this simple example, the private party ends up making an economic profit of USD 45 million in present value terms. This means, they ended up covering their costs, including a return on their capital, plus a nice return over and above that.

How can a tender process result in economic profits?

But how can this happen? I said earlier that the subsidy was “efficient”, and efficiency means you just cover your costs, no economic profits. How can a free and fair tender process end up resulting in such a large economic profit?

For starters, in a project like this, someone will always make an economic profit or loss, because you will never predict exactly how many cars are going to drive on your road. If you get only one more car travelling on your road than you expected over the thirty year concession, the tariff paid by that additional car represents your economic profit, if you get one less, that’s your economic loss. In an uncertain world, efficiency means making the best possible guess with the best possible information available at any given time.

The winning bidder bid on the basis of the best information available at the time. They could not have known that the traffic flows would materialise in the way that they did. So, while, looking back, we can say they made a large economic profit, at the time of bid, the expected value of that profit was zero. Unfortunately for decision makers faced with uncertainty, as we live in the present, we’ll just have to live with the swings.

When something like this happens and a private party is making a whole lot of money, governments sometimes try to renegotiate the contract, to claw back some of the economic profit that the private sector is making. In the world of risk, that’s what we like to call a “heads I win, tails you lose” situation. Let’s say I offer to bet you USD 100 on a coin flip, if I win, I take your money, but if I lose, I try and renegotiate and say that I didn’t know it was going to turn out this way. This is analogous to what government is trying to do in some instances when they try and renegotiate contracts to claw back profits when things go well. If the private sector party over-estimated the traffic forecasts and was making an economic loss, the government would not (or, at least, should not) have stepped in to let them increase their tariff or to pay them extra subsidy, but when it is going well for the private party, they step in and try to renegotiate.*

What other options do we have?

At the other end of the demand risk allocation spectrum, you have what is called an availability payment, where the private party actually can have no exposure to traffic flows at all. As a simple example of an availability payment PPP, imagine a private party with a fixed monthly payment that they get as long as the road is in the minimum specified condition. This payment is set during the bid process to exactly cover their capex over a 30 year period. If they let the road condition slip either by building it shoddily in the first place, or by maintaining it poorly, they won’t get their initial investment back. On top of that, they have a separate payment that they get per car which is designed to cover their opex and no more. Revenue collection may be handled by the private party, but that goes straight into a government account.

The graph below shows a simple example of the cashflows in PV terms:

The biggest thing you may note is that the costs and revenues are different. This is because an availability PPP is seen as much lower risk to the private party than a full demand-risk PPP, so private parties can raise equity and borrow from banks at much lower cost, meaning they don’t need to ask for as much money to cover their debt service and repay their equity holders. But, on the other hand, as the government is bearing the risk, they should also discount the revenues they expect to receive to reflect the fact that they are bearing more risk.

I’m calling the subsidy an “effective subsidy” here because it’s not a payment in the same way that the subsidy for a demand risk subsidy is. The payments are the fixed and variable payments, the subsidy is just the residual between those payments and the revenues, whatever they may be.

As I mentioned earlier, this puts demand risk on the government. If the revenues are less than expected, the effective subsidy will be larger than expected, and the government will have to find more cash to pay the private party’s payments than it thought it would. If the revenues are higher than expected, the government takes the whole gain.

So, which is better?

In one case, the private party takes the risk, in the other, the government takes the risk. How do we decide which option is right for us?

True efficiency also means efficient risk allocation

The most basic principle of risk allocation is that you allocate the risk to the party best able to manage it**. If neither party has any control over the risk, then it doesn’t really matter which party you allocate the risk to. In a mature city, for example, there may not be much the government can do to influence traffic flows.

In this particular case, however, there are significant public actions that will need to be taken in the next few years, the government has much more control over the policy levers that will drive the traffic, while the private party will have almost no ability to influence demand. Further, the government has no track record of delivering the port, SEZ and surrounding infrastructure. Indonesia has over-promised and under-delivered in infrastructure for decades. No investor is going to bet hundreds of millions of dollars that the government will suddenly spring into action and deliver faster than it has ever delivered before.

Too many investors, and would-be investors have been burned trying to invest in Indonesian infrastructure, so private sector traffic projections for a toll road like this will always be conservative. If the government truly believes that it can deliver the work program, and it wants to get the value of the traffic flows associated with the delivery of that work program, then they must take on demand risk themselves. 

Government officials here are very risk averse (for good reason), so when you offer them a choice between bearing a risk themselves, or allocating it to the private sector, the initial reaction is almost always to dump it on the private sector party. But, if the risk is one that they are truly the best party to manage, they will end up paying more, and maybe even transferring value to the private party by forcing the issue. To me, that's a worse kerugian keuangan negara (state financial loss), than any loss government might make by taking on demand risk themselves.

Note: I am simplifying it a bit by just saying “government.” In fact, the contracting agency for toll roads is BPJT, the party responsible for building the port is Pelindo IV, the party responsible for building the SEZ is the provincial government of North Sulawesi, and the parties responsible for developing Manado and Bitung are the respective city governments. So, the Indonesian government as a whole has the control, but coordinating all of the parties will be a big job. BPJT alone won’t have the authority to knock heads together, but they’ll have a lot more access to the people that do than a private party. If you hire someone to build a road, get them to build a road, don't ask them to build a road, and coordinate 5 different government entities. That's government's job.

What is the Indonesian government doing to rectify this?

Earlier this year, the government issued Presidential Regulation 38/2015 concerning government cooperation with business entities in the provision of infrastructure. This replaces an earlier piece of legislation, and the new regulation explicitly incorporates language providing greater flexibility for the government to undertake availability-based PPPs.

So, will we see an availability payment being applied for Manado – Bitung?

It’s too early to say. I hope so. I suspect it’s probably appropriate for a toll road like Balikpapan – Samarinda as well.

There has been talk about the use of performance-based annuity schemes (“PBAS”, which is just a fancy name for an availability payment) for the construction of non-tolled roads, but I haven’t yet seen any statement from BPJT on whether they intend to use this model for tolled roads as well. I guess we’ll see what they think when BAPPENAS finally publishes the PPP book with more information.

*Note that the proscription on renegotiating does not apply where projects were not competitively awarded. This happens a lot in resource projects in developing countries either due to information asymmetries, or straight out corruption (the New Yorker has an example of one here). Renegotiation or even termination could be the efficient outcome there.

**If you want to know more, a good treatment of this is in Tim Irwin’s book Government Guarantees, available in PDF here. Aside from the discussion of risk, it’s a fantastic resource for people in the infrastructure business.

Remedy period over, Kanci - Pejagan toll road is being repaired

In my maiden blog post, I wrote about how the MNC group had been called in default of their obligations under their concession agreement by Indonesia's Toll Road Regulatory Authority (BPJT) and had been given a 90 day rectification period. In the articles I linked to in that blog post, the MNC Group seemed to be trying to deflect blame for the poor condition of their road, even though, under their concession agreement, they alone are responsible.

Bisnis.com reports that the rectification period ended on the 17th of May and PT Semesta Marga Raya--the holding company for the road--seems to still be in control. Bisnis.com reports that the road surface is still not in great condition and that substantial works are ongoing, but the fact that they are still in control suggests that they have either met the minimum required standards for road quality, or they have convinced BPJT that they will do so within a reasonable timeframe. The President Director of PT MNC Infrastruktur Utama, Syafril Nasution, confirmed that works are ongoing and that they have spent IDR 80 billion on rehabilitation of the road so far.

I haven't seen a public record of what the MNC Group spent buying this toll road, but it was most likely something on the order of the IDR 2 trillion. If they hadn't foreseen this expense, they're looking at something like a 4% loss, even more if the IDR 80 billion doesn't include all the spending they will need to do to get the road up to standard. This is a pretty significant loss in the infrastructure business.

It seems like, in this case, BPJT has done their job well. They identified a problem and used the remedies available to them under the contract to force their concessionaire to solve the problem. I'm sure this is disappointing for the MNC Group, but this is how the infrastructure business is meant to work.

To me, this is an encouraging sign of Indonesia's growing maturity as a recipient of private investment in its infrastructure. BPJT, as the regulator, is establishing precedents for how it acts in holding concessionaires responsible for their obligations under their concession agreements*. A consistent track record of fair and balanced regulatory judgments is a very valuable thing in attracting the kind of infrastructure investors Indonesia wants when it finally gets around to tendering the next round of PPP toll road projects.

*Of course, we need to look at how BPJT acts in situations where the penalties or benefits are in the concessionaire's favour too. I hope they are as quick to enforce the contract in those instances!

Do the MNC Group not understand the infrastructure business, or do they understand it too well?

The MNC Group is one of Indonesia's largest media conglomerates. In 2013, they moved into infrastructure by, among other things, purchasing a few toll roads from the Bakrie Group. Over the past few weeks they seem to have been getting in trouble with their Kanci - Pejagan toll roads, and the comments they have been making in the media have been more than a little worrying for people that work in the field of infrastructure regulation.

The week before last, Detik Finance published two articles titled "Bakrie and MNC have been in default on the Kanci-Pejagan Toll Road" and "MNC: The Kanci-Pejagan Toll Road has been broken since we bought it from the Bakries."

The first article claims they are not meeting the minimum service standards and that they need to fix the toll road at their own cost, or try and sell it to someone who will. According to the head of Indonesia's Toll Road Regulatory Authority (BPJT), Achmad Gani Ghazali, they've got 90 days to rectify, of which about half has elapsed.

In the second article, the President Director of the operating company, PT Semesta Marga Raya, Irmawanto Soekamto, is quoted as saying "The tollway was in really bad condition when we received it. From the beginning, the tollway has had continual repair work conducted on it", and "we have been asking ourselves, the construction of this road should last decades, but why, as soon as we receive it, is it in such bad condition?"

In addition to blaming the Bakries, Detik's article also notes that Indonesian state-owned contractor PT Adhi Karya (Persero) constructed the road and that it was opened by former President Susilo Bambang Yudhoyono.

The article further notes that the concessionaire asks for forbearance from their users and that they are pursuing legal action to determine the cause of the poor road condition. It closes with a quote from Irmawanto: "I am certain, truth will come out. We all know that this toll road was heavily damaged from the start. So we just need to wait and see who is truly responsible for all of this damage."

I don't know who was responsible for the damage that has led to the current poor quality of the road, but I can tell you who is responsible for fixing it now: the MNC group as current concessionaire.

A CA, like any agreement, governs rights and responsibilities of the parties. In toll roads, the government concedes to allow a private party to charge a toll for the use of the road, but in return, they must build and maintain the road such that it meets the specified minimum standards. In Indonesia, there are only two parties to a toll road CA, the government and the concessionaire. As such, the only two parties with any rights or responsibilities under the CA are the government and the concessionaire.

As the MNC group currently own the operating company, then even if Adhi Karya built a poor quality road, and the Bakries maintained it badly, the users and the government should not care. As the current concessionaire, the MNC group alone have the responsibility to ensure the road is in good order and they alone must bear the cost of doing so.

It is possible that the MNC group can sue either the Bakries or Adhi Karya to recover or defray some of the cost of repairing the road and, if so, I wish them the best of luck in their endeavour, but I have never seen a clause in an Indonesian CA that allows the concessionaire to breach its minimum service standards while it has a fight with some other party. In fact, most CAs in all jurisdictions specifically note that the concessionaire is solely responsible sub-contractor non-performance, and that any change in ownership must be conducted in such a way as to ensure the continued fulfillment of the minimum service standards.

When MNC bought the toll road, they would have run a financial model projecting out all of the revenues they expect to get over the remaining life of the concession, and the costs they would incur in keeping their asset in the required condition to figure out how much they would be willing to pay for the asset. Their projected costs should have included, of course, any rehabilitation required to bring the road up to the required minimum standard.

If MNC did not accurately project the costs or rehabilitation or ongoing maintenance, or didn't read the CA to understand their minimum standards, then, quite frankly, they should lose money... They're a serious company paying serious money taking on some serious obligations. If they're not going to take it seriously, then they shouldn't be in this business.

This idea that a sub-contractor or previous owner non-performance is not the government's problem is not some arcane point of theory, this is beginner stuff. In giving an interview like the one Irmawanto gave to Detik, it seems like one of two scenarios is possible:

  1. MNC don't understand the simplest things about infrastructure investing
  2. MNC think that the government does not understand the simplest things about infrastructure regulation.

Unfortunately, private businesses making money by betting on the second scenario has some precedent, not just in Indonesia, but all over the world. When we get private contractors to invest in and operate our infrastructure, we want them to innovate on lowering cost, or raising revenue, but sometimes they choose to innovate in trying to renegotiate contracts or otherwise weasel out of their obligations. 

The reality is, especially in developing countries, regulators often don't understand contracts that well, and private companies can usually afford much more expensive and intimidating lawyers than the government can, so even a really well-designed contract* can result in a bad outcome.

CAs often have a clause that allows for the concessionaire to get compensation in the event that the government asks them to do something that might cause them to incur extra costs. Examples of reasonable requests a government might make that a concessionaire could reasonably request compensation for might include widening a road, changing the weight limit of a bridge, installing flood mitigation measures following a new national standard and so on. The concessionaire's compensation for the government's request could be cash, relief of paying a concession fee, an increase in tariff, an extension of the concession period, or something similar. MNC may be hoping that they can convince the government that this rehabilitation expense should be considered a government request that causes them to incur extra costs, rather than something that arose as a result of their own negligence.

In my experience, I have found BPJT to be staffed with pretty professional operators that wouldn't fall for things like this, but then, MNC have a reasonable track record of success in investments that indicate that they know what they are doing.

I don't know which of my scenarios accurately describes MNC's thinking, but I hope they're spending more on maintenance and rehabilitation than they are on their legal fight... Either way, they've only got half of their 90 day rectification period left, so we'll find out soon enough...

Note: all quotes are translated by the author, for the original wording, please refer to the linked articles.

*The regulatory capacity of the government is a critical thing to take into account when designing a contract, and aligning the regulatory responsibility with their capacity decreases your chances of getting a bad outcome.