Infrastructure

The process of growing urbanisation of modern societies is closely tied to the development of infrastructure. Infrastructure is the vital support for economic activity and facilitates social relations. Without the networks and systems for urban or interurban transport, the supply of freshwater and treatment of wastewater, the collection and treatment of waste, the transportation and distribution of any kind of fluids (electricity or liquid or gaseous fuels) or data (telecommunications networks), urban societies simply would not have been able to develop, being incapable of meeting the challenges that their expansion posed and continues to pose.

There can be no question therefore of the importance for the economy and community life of infrastructure and the services (normally public) that are provided in relation to such infrastructure.

The design, construction, maintenance and operation of infrastructure by private companies or the provision of certain public services that make use of such infrastructure are subject to rigorous regulation by the public authorities and normally require long-term and continuing-performance contracts to be awarded and entered into that are highly complex. Such activities require large investments and it is common for developers to resort to external financing.    

Our Infrastructure team

At Ramón and Cajal Abogados our Infrastructure team is formed by lawyers specialising in public law, public sector procurement and contentious-administrative proceedings, project finance and the financing of mergers and acquisitions. Such team is able to draw on the expertise and support of members of other practices of the firm such as our tax or civil litigation practices.

Our team provides developers, banks and investors and public authorities with comprehensive and innovative advice in infrastructure-related matters, as well as high value-added in complex transactions such as, for example, public-private partnerships (PPPs).

The Infrastructure team advises both the public-sector entities that develop the relevant projects as well as the companies interested in executing them or the banks and investors financing them, both in Spain and abroad.   

Our Infrastructure team is led by the following partners:

  • Pablo Silván. Public sector procurement. Regulation. Contentious-administrative proceedings.
  • Carlos Melón. Public sector procurement. Regulation. Contentious-administrative proceedings.
  • Miguel García-Stuyck. M&A.
  • Javier Menchén. Finance and Banking.
  • Amado Giménez. Finance and Banking.

Our services

Tenders and procurement

The legal advice that our Infrastructure team provides during the tender stage comprises the drafting (for the public authorities) of specific bidding terms and conditions or the review (for the bidders) of the legal obligations and risks that must be assumed under such terms and conditions, for the submission of bids, as well as the challenging (in administrative proceedings, including special appeals in matters of procurement or contentious-administrative appeals) of such terms and conditions or of the various decisions that may be taken during the tender process (exclusion of bidders, awarding of the contract, etc.).

Finance

Whether projects to be executed under concession agreements (for construction works or services) or other vehicles for public-private partnerships (public concessions, surface rights, etc.), the legal advice that our Infrastructure team provides to shareholders (sponsors) or to banks or investors in matters relating to non-recourse or limited recourse financing includes the legal review of the asset to be financed, the design of the most appropriate financing structure depending on the nature of the asset and the negotiation and drafting of the relevant facility agreements. Our advice also includes the review of the taxation of the financing structure specifically selected.

Construction

In the construction stage the legal advice provided by our Infrastructure team comprises both negotiating the amendments that the contracting authority wishes to make to the contracts entered into and determining their consequences, such as, where appropriate, filing a claim before the relevant courts (normally the contentious-administrative courts) or arbitral tribunals against any possible additional costs or penalties that may be imposed.    

Operation

In the operation stage our legal advice comprises both negotiating the amendments to the contracts entered into and determining their consequences, as well as, where appropriate, challenging before the relevant courts (normally the contentious-administrative courts) or arbitral tribunals the decisions that may be taken by the contracting authority exercising unreasonably its powers (specifically, the interpretation of the contract or the imposing of penalties on the grounds of breach by the contractor of its obligations).

Transfer of projects to other companies

It is not uncommon for the companies who have been awarded long-term infrastructure projects, such as those that are usually undertaken under concession agreements for public construction works or under public-private partnership agreements, to transfer such projects to other companies. Our legal advice in this area comprises drawing up the relevant due diligence reports, drafting and negotiating the purchase agreements and advising on the various permits and authorisations required.  

Termination

Whether projects to be executed under concession agreements (for construction works or services) or other vehicles for public-private partnerships (public concessions, surface rights, etc.), their termination, irrespective of the cause, poses considerable challenges. In addition to the settlement of the contract / reversion of the assets to the contracting authority, the early termination of the project poses the issue of the amount of the compensation to which the contractor may be entitled, it being normal for the relevant administrative decisions to be challenged before the courts (generally, the contentious-administrative courts).

Regulation

In the case of management of public services by private companies, whether making use or not of certain infrastructure, our Infrastructure team advises service providers in relation to any decisions that may be taken by the contracting authority (e.g., amendments of the agreement, amendments of fees, imposing of penalties due to breach, etc.), challenging the relevant decisions before the courts (normally, the contentious-administrative courts).

Our experience

The Infrastructure team has advised in relation to the development, execution or financing of projects for roads, car parks, railways, ports, irrigation systems, desalination or water purification plants, wastewater treatment plants, waste treatment and recovery plants, administrative buildings, hospitals and educational centres, etc.

For example, we have advised in the following matters:

  • Advising and defending a company awarded a concession for toll motorways in relation to various penalties imposed by the authority granting the concession when enforcing the agreement.
  • Advising and defending a company awarded a concession for various car parks and the contract for regulated parking services (ORA) of a major Spanish city in relation to the termination of the agreement by the authority granting the concession.
  • Advising a company awarded an international railway project in relation to the early termination of the concession agreement and its impact on the financing of the project.
  • Advising and defending a company awarded a concession for a hospital in relation to the acknowledgement of the right to receive the full consideration agreed in the concession agreement, irrespective of the reduction in the applicable VAT (for an amount of over EUR 100 million).
  • Advising a major Spanish construction group in relation to the awarding of the contract for healthcare transport services by road, put out to tender by a regional government (for an amount of nearly EUR 80 million).
  • Advising and defending a company awarded a concession for a desalination plant in relation to the compensation for damages caused by the early termination of the concession agreement.
  • Advising and defending a major construction group in relation to the compensation for damages caused by delays and the lack of availability of the land necessary for the execution of railway construction works.  
  • Advising and defending a major construction group in relation to the compensation for damages caused by delays and the lack of availability of land, and acknowledgement of the right to charge for additional units constructed in the works for a motorway.
  • Advising and defending a company awarded a concession in relation to the annulment of the order of closure of a medical waste treatment plant.
  • Advising and defending a company awarded a concession in relation to the cancellation of five tenders for home respiratory treatment services (for an aggregate amount of over EUR 300 million).
  • Advising and defending a company of a major construction and services group in relation to the annulment of the decision to award a contract for urban waste collection and management services for a large Spanish city.