The report into the status of behaviours, relationships and disputes across the PFI sector, commissioned by the IPA and undertaken by Barry White and Andrew Fraiser (commonly referred to as the White Fraiser Report), suggests that while relationships between parties are “generally reasonable”, there are “pockets of poor behaviour” that need to be addressed.
A version of the report seen by Partnerships Bulletin suggests that there have been incidents of poor behaviour on both sides of the public-private divide, and refuses to condemn one party or another for problems in the sector - instead arguing that there has been “historic under management of PFI contracts by both the public and private sectors” that has been “to the detriment of the performance of some PFI contracts”.
The report was commissioned last year, after increasing concern in the industry over aggressive contract management behaviours, first reported by Partnerships Bulletin in February last year. In September, law firm DLA Piper published its ‘Project Autumn’ initiative, which set out a number of recommendations to improve the behaviours within PFI contracts, particularly in relation to avoiding disputes during the expiry and handback process.
Among those recommendations was the creation of an Expiry and Handback Resolution Council. The White Fraiser Report acknowledges this idea, but instead suggests a PFI Dispute Resolution Forum, which would have jurisdiction to hear any type of PFI dispute, not simply those related to expiry and handback.
This forum would also make anonymised versions of adjudicative decisions publicly available, thereby “allowing a body of ‘PFI common law’ to develop”, the report suggests.
The report also acknowledges the impact that some “unprofessional behaviour” is having on those in the profession, as has also been reported by Partnerships Bulletin. The report warns that in some disciplines “it is increasingly difficult to attract high calibre staff, because the employee market considers there to be growing reputational and wellbeing risks associated with accepting particular roles”.
However, the report rejects plans for an industry code of conduct, arguing that similar efforts have been tried before but failed to produce any positive results.
The report is due to be published in full later this month. It is understood that the IPA is planning to review the findings and recommendations, before responding in due course.