The initial analysis and assessment of Pennsylvania's infrastructure needs happened as it should have. The Transportation Funding and Reform Commission not only identified a massive gap in infrastructure funding in Pennsylvania, but also began a preliminary exploration of options to solve the problem. It recommended that the state continue to employ user-based fees such as motor fuel taxes and motor license fees, but also suggested that options regarding public-private partnerships be explored. The commission counseled that principles should be established to guide such arrangements.48
Roy Kienitz, Governor Rendell's deputy chief of staff, says the administration explored many different options to meet the infrastructure funding crisis before concluding that the lease deal was the best option and starting the bidding process in September 2007.49 The timing of the governor's proposal to lease the turnpike confused many legislators, however, because it came just after passage of Act 44. In addition to pitting privatization advocates against those who believed that public assets should remain in public control, the debate pitted the neighbors of the turnpike against the neighbors of I-80.
The Pennsylvania legislature had been exploring transportation public-private partnerships before the governor proposed leasing the turnpike, but primarily as a vehicle to build new infrastructure. A House task force had also recently taken a broader look at transportation public-private partnerships, travelling to Virginia and Florida. "We were trying to learn from their mistakes and omissions," says Representative Kate Harper, a Republican member of the House Transportation Committee who served on the task force and ultimately opposed the Pennsylvania Turnpike lease.50
The lack of agreement between the legislature and the executive branch on a number of basic principles hurt the process. Legislation that would have allowed Pennsylvania to pursue public-private partnerships passed the Senate in June 2008, but it expressly prohibited a lease of the turnpike and failed to progress in the House. The executive branch embarked on the deal, initiating the bidding process and entering into negotiations before the legislature had signaled that it was willing to consider a concession of the turnpike. The backward process caused a plethora of related problems and contributed to a highly politicized debate that left Pennsylvania and the bidders in limbo for months-and ultimately contributed to the failed deal. "There will not be another consortium that will proceed in any state where they have to put their bids in first and then gain legislative approval to lease the asset," says John Durbin, the former executive director of the Turnpike Commission and now a consultant to Abertis.51 Reconsidering enabling legislation would give lawmakers the ability to debate the pros and cons of public-private partnerships and to educate themselves more thoroughly about these deals before they consider a particular proposal.