Structuring a Joint Venture

Attorneys offer advice for those considering teaming up for concessions contracts


Anxious to meet the deadline to the Airport Authority’s request for proposals (RFP) for a concession operation, a prime concession operator and its politically correct airport concession disadvantaged business enterprise (ACDBE) partner quickly agree to respond to the RFP as a joint venture (JV). The partners execute a basic joint venture agreement; and agree that they will work out the details of the JV if their proposal is accepted. Big mistake. This scenario lays the foundation for decertification of the ACDBE, debarment of the JV, investigation of the JV by the local airport authority, and possible indictment by the feds. Let’s start over.

Responding to a concessions operation RFP as a JV requires planning as to 1) the selection of the right business partners; 2) all the business aspects for operation of a profitable and successful airport concession; and 3) compliance with the 2008 Federal Aviation Administration guidelines on joint venture operations.

The partners must bear in mind that the contemplated venture is essentially a new business with no assets, no capital, and no inventory or management structure. A well thought out business plan addressing the issues of capitalization, governance, and management, along with a well documented JV agreement, will mitigate the risk of failure for the venture. Simply signing the JV agreement will not establish ownership. The bottom line is that ownership will not vest in a joint venture without adequate capital contributions (as discussed below) from each partners’ own resources.

Structure
When responding and bidding on concessions opportunities, the structure of the joint venture and the resulting economic analyses underlying the RFP submission impact more than just the competitiveness of the submission in relation to other bidders. The structure becomes both the blueprint through which your JV will operate and the lens through which regulatory agencies will assess compliance with FAA regulations and guidelines.

Joint venture relationships cannot resemble passive partnerships. The ability of a prime concessionaire to simply include a disadvantaged business as a passive partner will not survive the scrutiny of an audit by the airport authority or regulatory agency.

The first step in structuring a JV is to have the venture properly capitalized. Both partners must contribute equity to the company in an amount equal to their ownership. This initial capitalization is critical.

Partners must engage in analyzing projected cash flow for the business and consider what it will cost to operate the business. Essential costs include, without limitation, company formation, legal and accounting, inventory, working capital, construction, minimal annual guarantee, security deposits, and the training and hiring of employees.

Control; management
After an agreement is reached by the partners on the capitalization structure for ownership, the next crucial steps for the partners to discuss and negotiate are the issues of control and management.

Control as defined by the guidelines sets forth which party is responsible for the day to day operations. The governance structure for management to operate the business must be determined up front in advance of signing the agreement.

FAA guidelines dictate that management and control of the venture should not be monopolized by one owner. The venture must consider management structure very carefully in order to avoid the appearance that the JV is a front for the prime operator, or that the ACDBE partner is participating in the front scheme.

The prime and the ACDBE must exercise control in proportion to its ownership interest. Control is generally demonstrated and exercised by membership and voting power on management committees. The joint venture agreement or operating agreement should clearly address the responsibility for each management committee, the partners participating on the committee, and most importantly the voting structure for the committee.

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