Public-private partnerships (P3s) have been gaining increased favor in the U.S. as a way for the public sector to harness the expertise and efficiencies of the private sector in meeting the infrastructure and social needs of local and state governments. Although P3s have been used for many years for the building of “toll” roads and bridges, they are now gaining popularity for building and repairing a wide array of infrastructures including: water systems; sewer systems; buses running on natural gas, light rail systems, and other transportation; courthouses; jails; affordable living accommodations, mixed use development of retail and housing on government-owned land, dormitories and housing for universities. P3s have been successfully used in Canada and Europe to build all of the above and more, including hospitals, for many years.

Although there is promise for this type of P3 use in the U.S., there are still many barriers and challenges to overcome. This type of creative financing between entities that do not typically partner (i.e., the public and private sectors) presents unique and challenging issues for in-house counsel trying to protect their companies while not killing the deals. Based on our experience counseling clients in these matters, the following is an overview of issues and considerations that in-house counsel should keep in mind when approaching P3 projects.

Structuring the Projects

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