1. U.S. Department of Transportation, Report to Congress on Public-Private Partnerships (Washington, D.C.: U.S. DOT, 2004), http://www.fhwa.dot.gov/reports/pppdec2004/#2a.
2. "U.S. & Canadian Transportation Projects Scorecard," Public Works Financing 249 (May 2010): 24-25, http://www.publicinfrastructure.ca.gov/GSLibrary/Downloads/download.ashx?fle=sites/1832/17450/442064/May%202010%20Issue%2C%20PUBLIC%20WORKS%20FI-NANCING.pdf See also Appendix G.
3. NCSL Policy on Surface Transportation Federalism, 2008, http://ecom.ncsl.org/statefed/transportation.htm#surfacetrans. The fuller excerpt reads as follows:
All funding and financing options must be available to state legislatures for state and federal-aid programs. All current federal restrictions on states' authority to toll should be removed so that states can optimize resources for capacity expansion, operations, and maintenance while ensuring free flow of goods and people. Tolling, value-pricing, and public-private partnerships (PPPs) should remain state provinces and are not appropriate federal funding mechanisms.
Federal guidelines should be designed to accommodate private sector support. The level of private sector participation is best determined by state and local authorities, and private participation should not be a prerequisite for receiving federal funds. Statutory or regulatory barriers to state and locally-granted revenues should be removed. Congress should not mandate or prescribe state use of toll revenues or tolling mechanisms, though Congress may seek to incentivize states to avoid redirection of toll revenues to non-transportation uses. State legislators understand and will protect the public interest.
Congress should continue Transportation Infrastructure Finance and Innovation Act (TIFIA), Grant Anticipation Revenue Vehicles (GARVEE), private-activity bond, and State Infrastructure Bank (SIB) programs. Congress should expand credit-based and loan guarantee programs to incentivize private sector investment - particularly for freight mobility by rail, highway, and waterway - when and if such projects appear in state plans.
4. PriceWaterhouseCoopers LLP, Public-Private Partnerships: The U.S. Perspective (n.p.: PriceWaterhouseCoopers LLP, 2010), 11, http://www.pwc.com/us/infrastructure-ppp.
5. Jeffrey N. Buxbaum and Iris N. Ortiz, Public Sector Decision Making for Public-Private Partnerships: A Synthesis of Highway Practice, NCHRP Synthesis 391 (Washington, D.C: Transportation Research Board, 2009), 7, http://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_syn_391.pdf
6. U.S. Department of Transportation, Report to Congress, viii.
7. PR. 2009 Act No. 29.
8. J. Juis Guasch, Granting and Renegotiating Infrastructure Concessions: Doing It Right (Washington, D.C: The International Bank for Reconstruction and Development/The World Bank, 2004), cited in Wendell C. Lawther, "Privatization of Transportation Systems," in Handbook of Transportation Policy and Administration, ed. Jeremy F. Plant, Van R. Johnston and Cristina E. Ciocirlan (Boca Raton, Fla.: CRC Press, 2007), 371.
9. Buxbaum and Ortiz, Public Sector Decision Making, 7; Lawther, "Privatization of Transportation Systems," 371-2; NCSL Foundation for State Legislatures, NCSL Foundation Partnership: Public-Private Partnerships (P3s or PPPs) for Transportation Meeting Summary, April 22-25, 2009 (Denver, Colo.: NCSL, 2009), 15, http://www.ncsl.org/documents/transportation/PPPmeetingsum09.pdf
10. See NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 22-23.
11. Adapted from Pete Rahn, Government Perspective on Evaluating PPP Approach [PowerPoint presentation] (Jefferson City, Mo.: Missouri DOT, 2009), http://www.modot.mo.gov/newsandinfo/documents/09-01-27PPPpresentation.pdf
12. Elizabeth F. Jones and David M. Epperson, Report of the Legislative Study Committee on Private Participation in Toll Projects (Austin, Texas: Legislative Study Committee on Private Participation in Toll Projects, 2008), 28, 39, http://www.senate.state.tx.us/75r/Senate/commit/c820/ SB792Report.pdf; Partnerships British Columbia (Partnerships BC), Understanding Public Private Partnerships (Vancouver, B.C.: Partnerships BC, March 2006), http://www.partnershipsbc.ca/pdf/Understanding%20Public%20Private%20Partnerships%2023-mar-06.pdf
13. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 26.
14. Edward Fishman, Major Legal Issues for Highway Public-Private Partnerships: Legal Research Digest 51 (Washington, D.C: NCHRP 2009), 4, http://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_lrd_51.pdf
15. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 15, 22, 26, 65-66; Buxbaum and Ortiz, Public Sector Decision Making, 7-8; William M. Leavitt and John C. Morris, "Public Works Service Arrangements in the 21st Century: The Multiple-Sector Partnership as an Alternative to Privatization," Public Works Management & Policy 12, no. 1 (2007): 325-330, cited in Buxbaum and Ortiz, Public Sector Decision Making, 7.
16. See note 99.
17. Figure 2 is drawn largely from Buxbaum and Ortiz, Public Sector Decision Making, 8; NCSL Partners Project, Meeting Summary (April), 26, 65-66; Zhirong (Jerry) Zhao, Understanding Public-Private Partnerships in State Highway Development (Minneapolis: University of Minnesota, May 2010).
18. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 15; U.S. Department of Transportation, Innovation Wave: An Update on the Burgeoning Private Sector Role in U.S. Highway and Transit Infrastructure (Washington, D.C: U.S. DOT, 2008), 9, http://www.fhwa.dot.gov/reports/pppwave/index.htm.
19. Fishman, Major Legal Issues, 32-33; U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships: More Rigorous Up-front Analysis Could Better Secure Potential Benefits and Protect the Public Interest, GAO-08-44 (Washington, D.C: U.S. GAO, 2008), 22-23, http://www.gao.gov/new.items/d0844.pdf
20. Drawn from Federal Highway Administration (FHWA), User Guidebook on Implementing Public-Private Partnerships for Transportation Infastructure Projects in the United States, Final Report, Work Order 05-002 (Washington, D.C: FHWA, 2007), http://www.fhwa.dot.gov/ipd/pdfs/ppp_user_guidebook_fnal_7-7-07.pdf, cited in Buxbaum and Ortiz, Public Sector Decision Making, 17.
21. NCSL Foundation for State Legislatures, NCSL Foundation Partnership: Public-Private Partnerships (P3s or PPPs) for Transportation Meeting Summary, July 20, 2009 (Denver, Colo.: NCSL, 2009), 22, http://www.ncsl.org/documents/transportation/Summit09P3mtgsum.pdf
22. The tax-exempt debt market, which is unique to the United States, is one oft-cited reason for the relatively low number of PPPs in this country compared to elsewhere. See NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 17.
23. Sources for Figure 3 include American Association of State Highway and Transportation Officials (AASHTO) Center for Excellence in Project Finance, Financing (Washington, D.C.: AASHTO, 2008), http://www.transportation-finance.org/funding_financing/financing; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Project Finance: Tools and Programs (Washington, D.C.: FHWA, 2010), http://www.fhwa.dot.gov/ipd/finance/tools_programs/index.htm.
24. Federal Highway Administration (FHWA) Office of Innovative Program Delivery, TIFIA Approved Projects (Washington, D.C.: FHWA, July 29, 2010), http://www.fhwa.dot.gov/ipd/tifa/projects_case_studies/index.htm.
25. American Association of State Highway and Transportation Officials (AASHTO) Center for Excellence in Project Finance, Project Finance State by State: State Infrastructure Banks (SIBs), (Washington D.C: AASHTO, 2010), http://www.transportation-fnance.org/tools/state_by_state/sibs.aspx.
26. Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Project Finance: Tools and Programs: Private Activity Bonds (PABs), (Washington, D.C: FHWA, 2010), http://www.fhwa.dot.gov/ipd/p3/tools_programs/pabs.htm.
27. Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010.
28. Buxbaum and Ortiz, Public Sector Decision Making; Fishman, Major Legal Issues, 7. It should be noted that brownfield concessions in other countries tend to have shorter terms; European Union countries limit them to between 21 years and 35 years, and thus a 99-year concession could be considered atypical in a global context. In the United States, however, three of the four such leases to date are for 99 years, and one (the Indiana Toll Road) for 75 years. See also Appendices B and G and page 11.
29. Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010; Jones and Epperson, Report of the Legislative Study Committee, 28, 39; Partnerships British Columbia (Partnerships BC), Understanding Public Private Partnerships.
30. Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010; Geoffrey Segal, Macquarie Capital, e-mail to author, Dec. 30, 2009; Janice Weingart Brown et al., Public-Private Partnerships for Highway Infrastructure: Capitalizing on International Experience, Federal Highway Administration (FHWA) Report FHWA-PL-09-010 (Washington, D.C: FHWA, 2009), http://international.fhwa.dot.gov/pubs/pl09010/index.cfm.
31. Kearsarge Global Advisors, Benefits of Private Investment in Infrastructure (Washington, D.C: Kearsarge Global Advisors, 2009), http://www2.vlaanderen.be/pps/documenten/benefits_of_private_investment_in_infrastructure.pdf, cited in PriceWaterhouseCoopers LLP, Public-Private Partnerships. In 2008, however, widely reported estimates of the private capital available for infrastructure investment placed the number at more than $400 billion; see Mary Peters, then U.S. Secretary of Transportation, speech to the National Governors Association (Feb. 25, 2008), cited in Jones and Epperson, Report of the Legislative Study Committee, 38.
32. Information about project acceleration is available from: Christopher Conkey, "Highway Upgrade Goes Private: Florida Deal With Spanish-Led Group Serves as a Model for Cash-Strapped States," Wall Street Journal, March 9, 2009, http://online.wsj.com/article/NA_WSJ_ PUB:SB123655310893265587.html; William Eggers and Tom Startup, Closing the Infrastructure Gap: The Role of Public-Private Partnerships (Washington, D.C: Deloitte, 2006), 1, http://www.deloitte.com/assets/Dcom-UnitedStates/Local%20Assets/Documents/us_ps_ClosingInfrastructureGap2006%281%29.pdf; U.S. Department of Transportation, Report to Congress, 48-51. The U.S. DOT report in particular lists several projects for which private investment was critical to project advancement.
33. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 21.
34. See NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 23.
35. Eggers and Startup, Closing the Infrastructure Gap, 8; U.S. Department of Transportation, Report to Congress, 41-55.
36. U.S. Department of Transportation, Report to Congress, 2.
37. Eggers and Startup, Closing the Infrastructure Gap, 8; Fishman, Major Legal Issues, 5-6; NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 22-23. See also Robert W Poole Jr., "What about Public Service?" Roads & Bridges (October 2009), http://www.roadsbridges.com/What-about-public-service-article11181, which argues that elements of traditional procurement- such as low-bid requirements and pressure to spread capital investment dollars among as many projects as possible-give state DOTs incentives not to pursue lifecycle efficiencies.
38. U.S. Department of Transportation, Report to Congress, 52.
39. Zhao, Understanding Public-Private Partnerships, 10.
40. See note 37 for sources.
41. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 59-62.
42. Ibid., 27.
43. See NCSL Foundation for State Legislatures, NCSL Foundation Partnership: Public-Private Partnerships (P3s or PPPs) for Transportation Meeting Summary, December 11, 2009 (Denver, Colo.: NCSL, 2009), 5, http://www.ncsl.org/documents/transportation/P3forumsum1209v2.pdf
44. Leonard Gilroy, Modernizing and Expanding Pennsylvania's Transportation Infrastructure through Public-Private Partnerships [Testimony before the Pennsylvania House Republican Policy Committee] (Los Angeles, Calif: Reason Foundation, 2009), 13-14, http://reason.org/files/testimony_pennsylvania_transportation_public_private_partnerships.pdf
45. A helpful resource on PPP-related concerns is the 2009 NCHRP report by Jeffrey Buxbaum and Iris Ortiz entitled Public Sector Decision Making-cited frequently throughout this report-which highlights concerns about PPPs as identified by survey respondents in legislatures, state DOTs, private companies, universities and interest groups.
46. Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010; Geoffrey Segal, Macquarie Capital, e-mail to author, Dec. 30, 2009; Janice Weingart Brown et al., Public-Private Partnerships for Highway Infrastructure.
47. See Phineas Baxandall, Kari Wohlschlegel, and Tony Dutzik, Private Roads, Public Costs: The Facts about Toll Road Privatization and How to Protect the Public (Boston: USPIRG, 2009), 17-21, http://cdn.publicinterestnetwork.org/assets/H5Ql0NcoPVeVJwymwlURRw/Private-Roads-Public-Costs.pdf
48. Baxandall et al., Private Roads, 29-30.
49. José Gómez-Ibáñez, Dominique Lorrain, and Meg Osius, The Future of Infrastructure Privatization, Working Paper (Cambridge, Mass.: Taubman Center for State and Local Government, Kennedy School of Government, Harvard University, 2004), 9, http://www.hks.harvard.edu/taubmancenter/pdfs/working_papers/gomezibanez_04_infrastructure.pdf, cited in Baxandall et al., Private Roads, 29.
50. John P. Jeffers et al., Audit Stewardship and Oversight of Large and Innovatively Funded Projects in Europe, FHWA-PL-07-001 (Washington, D.C: FHWA, 2006), cited in Buxbaum and Ortiz, Public Sector Decision Making, 37.
51. Fla. Stat. Ann. §334.30(12); Me. Rev. Stat. Ann. tit. 23, §4251(8); Miss. Code Ann. §65-43-3(3); P.R. 2009 Act No. 29 (10)(e).
52. Buxbaum and Ortiz, Public Sector Decision Making, 36-37.
53. See Baxandall et al., Private Roads, 18; Buxbaum and Ortiz, Public Sector Decision Making, 29, 32; Fishman, Major Legal Issues, 35-36; U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 45-46. For additional examples of noncompete clauses, see also Nicholas Farber, "Note: Avoiding the Pitfalls of Public Private Partnerships: Issues to be Aware of When Transferring Transportation Assets," Transportation Law Journal 35, no. 1 (2008): 110, http://law.du.edu/pdfdocuments/v35/FARBER_Note.pdf
54. See Robert W. Poole Jr., Orange County's 91 Express Lanes: A Transportation and Financial Success, Despite Political Problems, Policy Paper 39 (Los Angeles, Calif: Reason Foundation, 2005), http://reason.org/files/b66ba1c80e56be1466244e4f77245836.pdf This report describes some of the controversy about the noncompete clause in the original PPP agreement for California's SR-91 project in Orange County, and the industry's overall transition to a different approach. See also Fishman, Major Legal Issues, 36.
55. See Fishman, Major Legal Issues, 36. This report recommends negotiating a noncompete clause that adequately balances the private entity's need to make a profit with the public sector's obligation to provide adequate transportation facilities to its constituents. It also advises not having noncompete clauses that prevent improvements to competing roads or highways. Another alternative the report offers is to allow the public sector to retain traffic risk through an availability payment approach.
56. Ariz. Rev. Stat. Ann. §28-7705(F); Cal. Streets & Highways Code §143(i); Colo. Rev. Stat. §43-3-304; Fla. Stat. Ann. §334.30; Fla. Stat. Ann. §348.0004; Miss. Code Ann. §65-43-1; N.C. Gen. Stat. §136-89.197; Tex. Transportation Code Ann. §371.103. Also, in Alabama under Ala. Code §23-1-81(e), no toll bridge may be established over the same watercourse within two miles of any other toll bridge. See also Federal Highway Administration (FHWA) Office of Innovative Program Delivery, State P3 Legislation (Washington, D.C: FHWA, 2007), http://www.fhwa.dot.gov/ipd/p3/state_legislation/state_legislation_overview.htm; Fishman, Major Legal Issues, 36.
57. Jones and Epperson, Report to the Legislative Study Committee, 56-62.
58. Dennis Houlihan, American Federation of State, County and Municipal Employees (AFSCME), conversation with author, Dec. 11, 2009.
59. Baxandall et al., Private Roads; Buxbaum and Ortiz, Public Sector Decision Making; Jones and Epperson, Report of the Legislative Study Committee, 52-55; PriceWaterhouseCoopers LLP, Public-Private Partnerships; U.S. Department of Transportation, Report to Congress, 80; U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 35-36. See also Richard Wronski, "Privatize Illinois' Tollways? Voters Say No," Chicago Tribune, Jan. 25, 2010, http://www.chicagobreakingnews.com/2010/01/privatize-illinois-tollways-voters-say-no.html; this article reports that a statewide poll of likely primary voters showed widespread Republican and Democrat opposition to the idea of leasing the Illinois Tollway, largely because respondents felt that tolls were likely to increase.
60. Buxbaum and Ortiz, Public Sector Decision Making, 34.
61. Ibid., 14.
62. Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010.
63. New York Citizens Budget Commission (CBC), How Public-Private Partnerships Can Help New York Address Its Infrastructure Needs: A Summary of a Report by the Citizens Budget Commission (New York: CBC, December 2008), 10, http://www.cbcny.org/CBC_PPP_v6.pdf; U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 33-34; PriceWaterhouseCoopers LLP, Public-Private Partnerships, 12.
64. Baxandall et al., Private Roads, 21-26; U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 33-34.
65. Jones and Epperson, Report of the Legislative Study Committee, 52.
66. For an example of the public sector being owed money at the time of a PPP default, see Patrick Temple-West, "Trends in the Region: Toll Tug-of-War in South Carolina," Bond Buyer 373, no. 33346 (July 2010): 1.
67. Buxbaum and Ortiz, Public Sector Decision Making, 37; John Foote, Kennedy School of Government, Harvard University, e-mail to author, Jan. 11, 2010.
68. Gilroy, Modernizing and Expanding Pennsylvania's Transportation Infrastructure, 15.
69. Buxbaum and Ortiz, Public Sector Decision Making, 24; see also Baxandall et al., Private Roads, 30.
70. Buxbaum and Ortiz, Public Sector Decision Making, 24.
71. Ibid., 24; see also Baxandall et al., Private Roads, 30-31.
72. Buxbaum and Ortiz, Public Sector Decision Making, 24-26; Fishman, Major Legal Issues, 30; The Pew Center on the States, Driven by Dollars: What States Should Know When Considering Public-Private Partnerships to Fund Transportation (Washington, D.C: The Pew Center on the States, 2009), 21-23, http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/State_policy/PA_Turnpike_FINAL_WEB.pdf; Regional Plan Association (RPA), Proceed with Caution: Ground Rules for a Public Private Partnership in New Jersey (n.p.: RPA, 2007), http://www.rpa.org/pdf/rpappp01082007.pdf; U.S. Department of Transportation, Report to Congress, 108.
73. Del. Code Ann. tit. 2, §2003; Ind. Code Ann. §8-15.5-4-6; Tex. Transportation Code §371.052(d). See also Fishman, Major Legal Issues, 29. In addition, the model PPP statutes developed by FHWA and by Nossaman LLP (see notes 94 and 100) provide examples of how states can legislatively address issues of confidentiality and proprietary information.
74. Buxbaum and Ortiz, Public Sector Decision Making, 34-35.
75. Ibid., 35-36; Dennis Houlihan, American Federation of State, County and Municipal Employees (AFSCME), conversation with author, July 20, 2009, and memo to author, February 2, 2010.
76. In 2006, Mark Florian, then managing director of Goldman, Sachs & Co., addressed this generally by testifying that, "It is also important to consider the future of the municipal employees as a result of a concession. It is possible for concession contracts to be written so a concessionaire must use municipal employees for all or a portion of toll collection, maintenance, administration, etc." Mark Florian, "Statement of Mr. Mark Florian, Managing Director, Goldman, Sachs & Co.: Testimony before the Subcommittee on Highways, Transit and Pipelines of the House Transportation and Infrastructure Committee," in Understanding Contemporary Public Private Highway Transactions: The Future of Infrastructure Finance? (109-75), Hearing Before the Committee on Highways, Transit and Pipelines of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Ninth Congress, Second Session, May 24, 2006 (Washington, D.C: U.S. Government Printing Office, 2006), 77, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_house_hearings&docid=f:28290.pdf
77. Del. Code Ann. tit. 2, §2003(f); Ill. Rev. Stat. ch. 820 §130/2; Ind. Code Ann.§5-23-3-3, §5-23-4-2, §8-15.5-6-2 and §8-15.7-6-2; Mass. Gen. Laws Ann. ch. 6C, §64(c)(26). See also Buxbaum and Ortiz, Public Sector Decision Making, 36. Ill. Rev. Stat. ch. 50 §§615/25 et seq. (relating to leased facility property at Chicago Midway International Airport) include additional examples of statutory labor protections for PPPs, beyond prevailing wage requirements.
78. Buxbaum and Ortiz, Public Sector Decision Making, 35-36.
79. Ibid., 27-28.
80. Ariz. Rev. Stat. Ann. §§28-7701 to 7710; see also NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 28.
81. Gilroy, Modernizing and Expanding Pennsylvania's Transportation Infrastructure, 12-13; Patrick Rhode, Cintra US, e-mail to author, Aug. 20, 2010; PriceWaterhouseCoopers LLP, Public-Private Partnerships.
82. For more on the negative impacts of diversion for local communities located on nearby, untolled roads, see Baxandall et al., Private Roads, 17, 19. Diversion that results from converting existing highways to public or private tolled roads can also create problems for rural communities located on those roads, which often rely economically on that traffic; for more on this, see The Pew Center on the States, Driven by Dollars, 11.
83. Jones and Epperson, Report of the Legislative Study Committee, 56.
84. Buxbaum and Ortiz, Public Sector Decision Making.
85. The United States, however, is not unique in this regard. In other countries such as Australia, Canada, India and Nigeria, state or provincial governments also own, operate and finance transportation assets. Source: David Wright, International Financial Services, e-mail to author, Aug. 17, 2010.
86. Hiroyuki Iseki et al., Task B-2: Status of Legislative Settings to Facilitate Public Private Partnerships in the U.S., California PATH Research Report UCB-ITS-PRR-2009-32 (Berkeley, Calif: Institute of Transportation Studies, University of California, Berkeley, 2009), 6, http://www.path.berkeley.edu/PATH/Publications/PDF/PRR/2009/PRR-2009-32.pdf.
87. This section describes the federal role in PPPs as of October 2010. Note that federal PPP activities may change under new transportation authorization legislation, however, which is due to be enacted sometime in 2010 or 2011. For a review of some broad policy options that Congress may consider, see National Surface Transportation Policy and Revenue Study Commission, Transportation for Tomorrow: Report of the National Surface Transportation Policy and Revenue Study Commission (Washington, D.C.: National Surface Transportation Policy and Revenue Study Commission, December 2007), http://ntl.bts.gov/lib/33000/33400/33441/fnal_report/pdf/front_cover.pdf, cited in William J. Mallett, CRS Report for Congress: Public-Private Partnerships in Highway and Transit Infastructure Provision (Washington, D.C: Congressional Research Service [CRS], 2010).
88. Congressional Budget Office (CBO), CBO Memorandum: Toll Roads: A Review of Recent Experience (Washington, D.C: CBO, 1997), http://www.cbo.gov/ftpdocs/40xx/doc4014/1997doc03-Entire.pdf
89. Fishman, Major Legal Issues, 22.
90. Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Project Finance: Tools and Programs.
91. See note 22.
92. Fishman, Major Legal Issues, 24; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships: Tools and Programs: SEP-15 (Washington, D.C: FHWA, 2010), http://www.fhwa.dot.gov/ipd/p3/tools_programs/sep15.htm; Matt Sundeen and James B. Reed, Surface Transportation Funding: Options for States (Denver, Colo.: NCSL, 2006), 50, http://www.ncsl.org/docu-ments/transportation/surfacetranfundrept.pdf; U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 66-67.
93. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 68-69; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships (Washington, D.C: FHWA, 2010), http://www.fhwa.dot.gov/ipd/ p3/index.htm; Karen J. Hedlund, Statement of Karen J. Hedlund, Chief Counsel, Federal Highway Administration, U.S. Department of Transportation before the Joint Michigan House of Representatives and Senate Transportation Committees, Hearing on Public Private Partnerships (Washington, D.C: FHWA, Sept. 15, 2009), http://www.house.mi.gov/SessionDocs/2009-2010/Testimony/Committee23-9-16-2009.pdf
94. Federal Highway Administration (FHWA), Working Draf [FHWA Model Legislation for States Considering P3 Authorization] (Washington, D.C: FHWA, 2010), http://www.fhwa.dot.gov/ipd/p3/state_legislation/index.htm, http://www.fhwa.dot.gov/ipd/pdfs/legis_mod-el_0610.pdf
95. See U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships; William J. Mallett, CRS Report for Congress: Public-Private Partnerships in Highway and Transit Infastructure Provision (Washington, D.C: Congressional Research Service [CRS], 2008); Mallett, CRS Report for Congress [2010].
96.The Pew Center on the States, Driven by Dollars, 4.
97. See The Pew Center on the States, Driven by Dollars. In this report, the importance of passing enabling legislation before pursuing deals is presented as a lesson learned from the failed attempt to lease the Pennsylvania Turnpike in 2008. In that situation, the executive branch began the bidding process and entered into negotiations before enabling legislation had been passed. In the end, the legislation failed and the bidder withdrew. See also NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 36-37; Iseki et al., Task B-2: Status of Legislative Settings, v.
98. Legislation pertaining to highway projects is the focus of this report. Some jurisdictions, however-including Guam, Illinois, Michigan, New Jersey and Washington-have enacted statutes authorizing PPPs solely for mass transit, high-speed rail, aviation, port or ferry projects. See Michael Pikiel, Jr. and Lillian Plata, "A Survey of PPP Legislation across the United States," Global Infastructure 1 (2008): 52-65, http://www.ncppp.org/resources/State%20PPP%20Legislation%20Survey_2008.pdf; Nossaman LLP, State Legislation Authorizing Public-Private Partnerships (PPP) for Transit Projects (Washington, D.C: Nossaman LLP, 2009), http://www.ncppp.org/FTA/EnablingLegislation.pdf
99. Design-build is sometimes considered the PPP approach with the least private involvement; this report generally takes that approach. Some authors such as the New York Citizens Budget Commission (CBC), however, have excluded design-build from the PPP category because it has to do only with a project's construction phases. In this section of the report, design-build and PPP legislation are listed separately because design-build authorizations are often contained in different statutes than those for other kinds of transportation PPPs. Also, each kind of provision has been enacted by a different subset of states. See Figures 6 and 7 and Appendices B and E for more details.
100. Federal Highway Administration, Working Draft [FHWA Model Legislation]; Nossaman LLP, A Bill for an Act Relating to Public-Private Partnerships for Public Infastructure (Los Angeles, Calif: Nossaman LLP, 2009), http://64.106.216.3/Files/28546_Model%20PPP%20 Legislation.pdf See also NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 19-21, 23-24.
101. Sources for Figure 6 include original research using Westlaw and StateNet; Buxbaum and Ortiz, Public Sector Decision Making; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, State P3 Legislation; Fishman, Major Legal Issues, 31; Iseki et al., Task B-2: Status of Legislative Settings; NCSL Transportation Program, NCSL Transportation Funding Legislation Database (Denver, Colo.: NCSL, 2010), http://www.ncsl.org/default.aspx?tabid=13597; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements and Sample Provisions, State PPP Enabling Legislation for Highway Projects (Washington, D.C: Nossaman, Guthner, Knox and Elliott LLP, October 2005), 2, http://www.fhwa.dot.gov/ipd/pdfs/legis_key_elements.pdf; Nossaman, Guthner, Knox and Elliott LLP, Overview of States with Signifcant Transportation Public Private Partnership ("PPP") Authority (Washington, D.C.: Nossaman, Guthner, Knox and Elliott LLP, 2005), http://www.ncppp.org/councilinstitutes/stlouis_2005/hedlund_3.pdf; Pikiel, Jr. and Plata, "A Survey of PPP Legislation."
102. Sources for Figure 7 include original research using Westlaw and StateNet; Design-Build Institute of America (DBIA), Legislation and Advocacy: State Legislation (Washington, D.C.: DBIA, 2010), http://www.dbia.org/advocacy/state; NCSL Transportation Program, NCSL Transportation Funding Legislation Database; Sundeen and Reed, Surface Transportation Funding.
103. Iseki et al., Task B-2: Status of Legislative Settings, iii.
104. States' use of a "pilot" or "demonstration" project approach to PPP authorization has decreased over the past two years. As of January 2009, seven states-Alaska, Arizona, California, Indiana, Missouri, North Carolina and Tennessee-limited PPPs to selected projects. Legislation enacted in 2009 extended PPP authorization beyond these restrictions in Arizona, California and Missouri. Illinois, however, then adopted a pilot project approach in 2010, when new legislation authorized the state DOT to enter into only one highway PPP, for the Illiana Expressway. See Appendices B and C for relevant citations. See also Buxbaum and Ortiz, Public Sector Decision Making, 13; Nossaman, Guthner, Knox and Elliott LLP, Key Elements of State PPP Enabling Legislation for Highway Projects (Washington, D.C.: Nossaman, Guthner, Knox and Elliott LLP, December 2007), http://www.fhwa.dot.gov/ipd/p3/state_legislation/state_legislation_key_elements.htm.
105. Fishman, Major Legal Issues, 26; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements.
106. Buxbaum and Ortiz, Public Sector Decision Making, 13.
107. Table 3 is drawn from Iseki et al., Task B-2: Status of Legislative Settings, ix; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements.
108. Sources for Figure 8 are the same as for Appendix B and Figure 6; see note 101.
109. See Baxandall et al., Private Roads, 31.
110. "What Role Should Public-Private Partnerships Play?" National Journal Expert Blogs, Transportation, April 6, 2009, http://transporta-tion.nationaljournal.com/2009/04/what-role-should-publicprivate.php; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements, 4; Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010.
111. Other provisions besides legislative approval requirements that may add further uncertainty to the PPP process and dissuade bidders include local veto options-as in Arizona, Delaware and Minnesota-or, as introduced in new legislation passed in 2009 in Missouri, a requirement for final approval by a vote of the people for certain PPP projects. See Appendix B; Nossaman, Guthner, Knox and Elliott LLP, Key Elements; and Iseki et al., Task B-2: Status of Legislative Settings, 11.
112. Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010.
113. Tyler Duvall, former U.S. Assistant Secretary for Transportation Policy, e-mail to author, March 12, 2010.
114. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 8.
115. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 33.
116. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 8, 19 (quoting the American Trucking Association); Jeffrey N. Buxbaum and Iris N. Ortiz, Protecting the Public Interest: The Role of Long-Term Concession Agreements for Providing Transportation Infastructure, Research Paper 07-02 (Cambridge, Mass.: Cambridge Systematics, 2007), http://www.usc.edu/schools/sppd/keston/ pdf/20070618-trans-concession-agreements.pdf; Fishman, Major Legal Issues; Baxandall et al., Private Roads; Jones and Epperson, Report of the Legislative Study Committee, 52-62; The Pew Center on the States, Driven by Dollars; U.S. Department of Transportation, Innovation Wave.
117. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 25.
118. Partnerships British Columbia (Partnerships BC), Understanding Public Private Partnerships.
119. Buxbaum and Ortiz, Public Sector Decision Making; The Pew Center on the States, Driven by Dollars; The Pew Center on the States, Key Questions for States (Washington D.C.: The Pew Center on the States, 2009), http://www.pewcenteronthestates.org/uploadedFiles/Stakehold-ers%20questions.pdf (included as Appendix H).
120. McGraw-Hill Construction, Public-Private Partnership: Accelerating Transportation Infastructure Investment (New York, N.Y.: McGraw-Hill, 2009), cited in PriceWaterhouseCoopers LLP, Public-Private Partnerships, 12.
121. See The Pew Center on the States, Driven by Dollars, 25. In March 2008, referring to the attempt to lease the Pennsylvania Turnpike, Roger Madigan-then Republican chair of the Pennsylvania Senate Transportation Committee-said, "The complexity of this issue and the extremely limited amount of information that has been flowing to the public and the General Assembly creates a very steep learning curve for everyone outside of the administration in dealing with a significant public policy decision."
122. Buxbaum and Ortiz, Protecting the Public Interest, 34-35.
123. Ibid.; Baxandall et al., Private Roads, 33; NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (December 2009).
124. Several organizations that serve governmental entities have looked at PPPs and may facilitate public sector peer-to-peer dialogue about these issues. The NCSL Partners Project has provided one forum for this kind of dialogue. Other relevant organizations include the American Association of State Highway and Transportation Officials (AASHTO), the National Governors Association (NGA), the Council of State Governments (CSG) and the National League of Cities (NLC).
125. See Jones and Epperson, Report of the Legislative Study Committee, 48-50.
126. The Council of Project Finance Advisors Working Group, Whitepaper Draft 1 (Washington, D.C.: McKenna Long & Aldridge LLP 2009), 2.
127. Mark Dutz et al., Public-Private Partnership Units: What Are They, and What Do They Do? Public Policy for the Private Sector, no. 311 (Washington, D.C: World Bank, September 2006), http://rru.worldbank.org/PublicPolicyJournal/Summary.aspx?id=311; Eggers and Startup, Closing the Infastructure Gap, 13; Edward Farquharson, Partnerships UK, e-mail to author, Dec. 12, 2009; Jones and Epperson, Report of the Legislative Study Committee, 48-50.
128. Examples of guidance documents from international public PPP advisory bodies include Partnerships Victoria, Policy and Guidelines (Melbourne, Victoria: Partnerships Victoria, 2010), http://www.partnerships.vic.gov.au/CA25708500035EB6/0/A987456B94096C71CA25755C0015F1C6?OpenDocument; Partnerships British Columbia (Partnerships BC), Guidance Documents (Vancouver, B.C.: Partnerships BC, 2010), http://www.partnershipsbc.ca/files/guidance.html; Partnerships UK, Guidance (London: Partnerships UK, 2010), http://www.partnershipsuk.org.uk/PUK-Guidance.aspx.
129. Edward Farquharson, Partnerships UK, e-mail to author, Dec. 12, 2009.
130. Sources for Table 4 include the listed Web sites; Edward Farquharson, Partnerships UK, e-mail to author, Dec. 12, 2009; Eggers and Startup, Closing the Infrastructure Gap; and Jones and Epperson, Report of the Legislative Study Committee.
131. Jones and Epperson, Report of the Legislative Study Committee, 84.
132. The Council of Project Finance Advisors Working Group, Whitepaper Draft 1, 14; NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 7-8.
133. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 43.
134. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 24.
135. According to Greg Ostrander, Michigan Legislature (e-mail to author, Nov. 25, 2009), although Michigan has toll bridges, it has chosen not to toll its highways or roads. Tolling roads has "not been considered economically feasible as Michigan is off the nation's heavily used east/west corridors" and "a system of toll-free highways has been viewed as important to commerce, industry, tourism, and general economic development," according to the Michigan DOT Web site at http://www.michigan.gov/mdot/0,1607,7-151-14013-28071--F,00.html. Nevertheless, simultaneous with legislative deliberations described in the text, the Michigan PPP Office in the executive branch has been working with state agencies and departments to determine how PPPs could be applied to a variety of sectors in the state.
136. The Pew Center on the States, Driven by Dollars, 16.
137. Buxbaum and Ortiz, Protecting the Public Interest, 46.
138. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 30; Buxbaum and Ortiz, Protecting the Public Interest, 37; Frank J. Busalacchi, Testimony on Protecting the Public Interest in Public Private Partnerships to the Subcommittee on Highways and Transit of the House Committee on Transportation and Infrastructure (Madison, Wis.: Frank J. Busalacchi, 2007), http://transporta-tion.house.gov/hearings/Testimony.aspx?TID=11942&NewsID=51.
139. Regional Plan Association, Proceed with Caution, 1-2.
140. See Baxandall et al., Private Roads; Buxbaum and Ortiz, Public Sector Decision Making; Buxbaum and Ortiz, Protecting the Public Interest; Jones and Epperson, Report of the Legislative Study Committee; Regional Plan Association, Proceed with Caution; The Pew Center on the States, Driven by Dollars; U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships.
141. Germa Bel and John Foote, Comparison of Recent Toll Road Concession Transactions in the United States and France (n.p.: Germa Bel and John Foote, 2007), 17, http://www.ub.edu/graap/Bel&Foote.pdf
142. The Pew Center on the States, Driven by Dollars, 19.
143. Bel and Foote, Comparison of Recent Toll Road Concession Transactions, 23; NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 17-18.
144. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 8.
145. Buxbaum and Ortiz, Protecting the Public Interest, 37.
146. See note 116.
147. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 43.
148. Ibid., 43; Farber, "Note: Avoiding the Pitfalls," 41.
149. Tyler Duvall, former U.S. Assistant Secretary for Transportation Policy, e-mail to author, March 12, 2010.
150. This quote comes from the Principles for PPPs that were assembled in 2008 by a coalition of national environmental and public health groups, including the Environmental Defense Fund, Sierra Club California, the Trust for Public Land, Food and Water Watch, Planning and Conservation League and others. This is available as an attachment to: Michael Replogle, Transportation Director for the Environmental Defense Fund, Testimony of Michael Replogle (Albany, N.Y.: Michael Replogle, November 2008), 4, http://esd.ny.gov/Subsidiaries_Projects/SAM/Data/Testimony/Replogle110608.pdf
151. Ibid., 4; Buxbaum and Ortiz, Public Sector Decision Making, 24-26; Baxandall et al., Private Roads, 37; Regional Planning Association, Proceed with Caution, 4-5; "What Role Should Public-Private Partnerships Play?" National Journal Expert Blogs.
152. Buxbaum and Ortiz, Public Sector Decision Making, 24.
153. Va. Code §56-573.1:1; Buxbaum and Ortiz, Public Sector Decision Making, 25-26.
154. Federal Highway Administration (FHWA), Case Studies of Transportation Public-Private Partnerships in the United States (Washington, D.C.: FHWA, July 2007), cited inThe Pew Center on the States, Driven by Dollars, 21.
155. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 22, 24.
156. See also Fishman, Major Legal Issues, 16.
157. The Council of Project Finance Advisors Working Group, Whitepaper Draft 1, 11.
158. Ibid.
159. Fishman, Major Legal Issues, 3.
160. Regional Plan Association, Proceed with Caution, 4-6.
161. Buxbaum and Ortiz, Public Sector Decision Making, 26.
162. The Pew Center on the States, Driven by Dollars, 4.
163. Eggers and Startup, Closing the Infrastructure Gap, 11.
164. See Regional Plan Association, Proceed with Caution, 7-9; see also Baxandall et al., Private Roads.
165. U.S. Department of Transportation, Report to Congress, 2, also cited in U.S. Department of Transportation, Innovation Wave, 8.
166. Baxandall et al., Private Roads, 12; see also NW Financial Group LLC, Then There Were Two: Indiana Toll Road vs. Chicago Skyway (n.p.: NW Financial Group LLC, November 2006), http://www.corridorwatch.org/ttc/pdf/indiana_toll_road.pdf It is diffcult to estimate the potential long-term revenues to the state had the road remained publicly operated, especially given the uncertainty of what toll rates the state might have imposed over that 75-year period. Note, however, that the Indiana Toll Road-like the Chicago Skyway-was operating at a loss when leased, so at that time there were no revenues to lose (Geoffrey Segal, Macquarie Capital, note to author, July 28, 2010).
167. The Pew Center on the States, Driven by Dollars, 3.
168. New York Citizens Budget Commission (CBC), How Public-Private Partnerships Can Help (Summary), 10.
169. NCSL Fiscal Affairs Program, State Budget Update: July 2010 (Preliminary Report) (Denver, Colo.: NCSL, 2010), 10; NCSL Fiscal Affairs Program, State Budget Update: November 2009 (Denver, Colo.: NCSL, 2009), 3.
170. James B. Reed, "Transportation Funding Outlook 2009," LegisBrief (National Conference of State Legislatures) 17, no. 10 (February 2009).
171. See note 31.
172. Eggers and Startup, Closing the Infrastructure Gap, 10.
173. Jones and Epperson, Report of the Legislative Study Committee, 28, 39; Partnerships British Columbia (Partnerships BC), Understanding Public Private Partnerships.
174. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships.
175. The Pew Center on the States, Driven by Dollars, 16.
176. Del. Code Ann. tit. 2, §2003(b)(iii); Fla. Stat. Ann. §334.30(1); La. Rev. Stat. Ann. §48:2084(D)(1)(b) and §48:2084.3; Me. Rev. Stat. Ann. tit. 23, §4251(4)(a); Va. Code §56-558(A)(1) and §56-563(B); W. Va. Code §17-27-5(e)(2). See also Buxbaum and Ortiz, Public Sector Decision Making, 14.
177. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 39.
178. Buxbaum and Ortiz, Public Sector Decision Making, 14; Leonard Gilroy, Reason Foundation, e-mail to author, Feb. 10, 2010.
179. Buxbaum and Ortiz, Public Sector Decision Making, 14-15.
180. Buxbaum and Ortiz, Public Sector Decision Making, 15; Iseki et al., Task B-2: Status of Legislative Settings, 8.
181. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 40.
182. Ibid., 18; Buxbaum and Ortiz, Public Sector Decision Making, 18.
183. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 57.
184. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 27.
185. Henry Kerali, Public Sector Comparator for Highway PPP Projects (Washington, D.C.: World Bank, n.d.), http://siteresources.worldbank.org/INTTRANSPORT/Rerc36291-1122908670104/1504838-1151587673078/PSCforHighwayPPPProjects-v2.pdf.
186 Sources for Figure 9 include Darrin Grimsey and Mervyn K. Lewis, "Are Public-Private Partnerships Value for Money? Evaluating Alternative Approaches and Comparing Academic and Practitioner Views," Accounting Forum 29 (2005), 345-378, cited in Buxbaum and Ortiz, Public Sector Decision Making, 21; PriceWaterhouseCoopers LLP, Public-Private Partnerships, 9.
187. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 54.
188. Sources for Table 5 include the listed Web sites and Buxbaum and Ortiz, Public Sector Decision Making, 20.
189. Ibid., 52-53; Baxandall et al., Private Roads, 32.
190. Edward Farquharson, Partnerships UK, e-mail to author, Dec. 12, 2009.
191. Buxbaum and Ortiz, Public Sector Decision Making, 19.
192. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 52-55; Jones and Epperson, Report of the Legislative Study Committee, 76; Buxbaum and Ortiz, Public Sector Decision Making, 19.
193. U.S. Government Accountability Office (GAO), Highway Public-Private Partnerships, 56.
194. Leonard Gilroy, ed. Reason Foundation 2009 Annual Privatization Report (Los Angeles, Calif: Reason Foundation, 2009), 59, http://reason.org/news/show/annual-privatization-report-20-28; Jones and Epperson, Report of the Legislative Study Committee, 38.
195. Fla. Stat. Ann. §334.30; Md. Transportation Code Ann. §4-205; PR. 2009 Act No. 29; Wash. Rev. Code Ann. §47.29.030.
196. The author received personal communication that Florida conducted a PSC analysis for the proposed Alligator Alley project, but a lack of expertise with this tool and inadequate appropriations prevented the process from being adequately robust; this has not been independently verified.
197. Jones and Epperson, Report of the Legislative Study Committee, 54. For a critique of Partnership BCs PSC methodology, see Martin Shaffer, Review of Partnerships BCs Methodology for Quantitative Procurement Options: Discussion Draft - August 2009 (Burnaby, British Columbia: Canadian Union of Public Employees, November 2009), http://www.cupe.bc.ca/sites/default/files/nov_19_shaffer_oct_09_pbc_evalua-tion_methodology.pdf
198. Ibid., 55-56.
199. PriceWaterhouseCoopers LLP, Public-Private Partnerships, 9.
200. Richard B. Norment, National Council for Public-Private Partnerships, e-mail to author, March 5, 2010.
201. The Pew Center on the States, Driven by Dollars, 25.
202. Buxbaum and Ortiz, Protecting the Public Interest, 5.
203. Kerali, Public Sector Comparator; Buxbaum and Ortiz, Public Sector Decision Making, 33.
204. U.S. Government Accountability Office, Highway Public-Private Partnerships, 44; Jones and Epperson, Report of the Legislative Study Committee, 62.
205. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (July 2009), 23; Jones and Epperson, Report of the Legislative Study Committee, 43.
206. Kerali, Public Sector Comparator; Buxbaum and Ortiz, Public Sector Decision Making, 18.
207. See The Pew Center on the States, Driven by Dollars, 11, 29, for more on Pennsylvania's overvaluation of the turnpike deal. See also Buxbaum and Ortiz, Protecting the Public Interest, 10.
208. Buxbaum and Ortiz, Public Sector Decision Making, 32; Regional Plan Association, Proceed with Caution, 10-11.
209. Fishman, Major Legal Issues, 33.
210. The point of view that states may want flexibility to spend PPP proceeds on competing fiscal priorities was raised by Dennis Houlihan, American Federation of State, County and Municipal Employees (AFSCME), and Senator Dennis Nolan (Nev.) in a conversation with the author on April 9, 2010. However, the perspective is not necessarily one held by either Mr. Houlihan or Senator Nolan.
211. Buxbaum and Ortiz, Public Sector Decision Making, 32; Leonard Gilroy, Reason Foundation, conversation with author, April 9, 2010.
212. In addition, decisions may need to be made about how to use any public funds that are freed by the use of PPPs-i.e., state or local funds that would have been used to finance a transportation project if private financing had not become available. Source: Sarah Freeman, Indiana General Assembly, conversation with author, April 9, 2010.
213. The Pew Center on the States, Driven by Dollars, 19.
214. Karen J. Hedlund, Statement of Karen J. Hedlund, Partner, Nossaman, Guthner, Knox and Elliott LLP before the Subcommittee on Highways, Transit, and Pipelines, Committee on Transportation and Infrastructure, U.S. House of Representatives, Hearing on "Understanding Contemporary Public Private Highway Transactions: The Future of Infrastructure Finance?" (Washington, D.C.: Nossaman, Guthner, Knox and Elliott LLP May 24, 2006), 2, http://www.ncppp.org/resources/papers/hedlundtestimony_506.pdf This resource includes information about how states have tended to procure private partners, and the content of relevant state laws and regulations.
215. Fishman, Major Legal Issues, 28.
216. Ibid.; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements, 5.
217. Nossaman, Guthner, Knox and Elliott LLP, Key Elements, 2.
218. Fishman, Major Legal Issues, 30; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements, 8. In many cases, Texas law also formerly addressed these issues, but is not included in these lists because the relevant statute expired in 2009 and had not been reauthorized as of October 2010.
219. Fishman, Major Legal Issues, 29; Nossaman, Guthner, Knox and Elliott LLP, Key Elements, 3; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements, 9.
220. Fishman, Major Legal Issues, 29; Nossaman, Guthner, Knox and Elliott LLP, Key Elements, 3; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements, 9.
221. Fishman, Major Legal Issues, 29; Nossaman, Guthner, Knox and Elliott LLP, Key Elements, 2-3; Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements, 7.
222. Buxbaum and Ortiz, Public Sector Decision Making, 24-26; Fishman, Major Legal Issues, 30; Regional Plan Association, Proceed with Caution; The Pew Center on the States, Driven by Dollars, 21-23.
223. The Pew Center on the States, Driven by Dollars, 21.
224. Nossaman, Guthner, Knox and Elliott LLP, Key Elements.
225. Fishman, Major Legal Issues, 30.
226. Buxbaum and Ortiz, Public Sector Decision Making, 19; U.S. Department of Transportation, Innovation Wave, 55.
227. Sources for the glossary include: American Association of State Highway and Transportation Officials (AASHTO) Center for Excellence in Project Finance, Financing; American Association of State Highway and Transportation Officials (AASHTO) Center for Excellence in Project Finance, Section 129 Loans (Washington, D.C: AASHTO, 2008), http://www.transportation-fnance.org/funding_fnancing/fnancing/credit_assistance/section_129_loans.aspx; American Association of State Highway and Transportation Officials (AASHTO) Center for Excellence in Project Finance, State Infrastructure Banks (Washington, D.C: AASHTO, 2008), http://www.transportation-fnance.org/funding_fnancing/fnancing/credit_assistance/state_infrastructure_banks.aspx; American Association of State Highway and Transportation Officials (AASHTO) Center for Excellence in Project Finance, Value Capture (Washington, D.C: AASHTO, 2010), http://www.transportation-fnance.org/funding_fnancing/funding/local_funding/value_capture; Buxbaum and Ortiz, Public Sector Decision Making; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Project Finance; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Project Finance: Tools and Programs: Private Activity Bonds (PABs); Farber, "Note: Avoiding the Pitfalls"; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Revenue: Non-Road Pricing Revenue Defined: Value Capture (Washington, D.C: FHWA, 2010), https://www.fhwa.dot.gov/ipd/revenue/non_pricing/defned/value_capture.htm; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Project Finance: Tools and Programs: Federal Credit Assistance Tools (Washington, D.C: FHWA, 2010), http://www.fhwa.dot.gov/ipd/fnance/tools_programs/federal_credit_assistance/index.htm; Federal Highway Administration (FHWA) Office of Innovative Program Delivery, TIFIA Approved Projects, (Washington, D.C: FHWA, 2010), http://www.fhwa.dot.gov/ipd/tifa/projects_case_studies/index.htm; Fishman, Major Legal Issues; Michael Iacono et al., Value Capture for Transportation Finance: Report to the Minnesota Legislature (Minneapolis: The Center for Transportation Studies, University of Minnesota, June 2009), http://www.cts.umn.edu/Research/Featured/ValueCapture/index.html; NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009); New York Citizens Budget Commission (CBC), How Public-Private Partnerships Can Help (Summary), 6; U.S. Department of Transportation, Report to Congress; Zhao, Understanding Public-Private Partnerships.
228. Sources for Appendix B are the same as for Figures 6 and 8; see note 101.
229. Melissa Maynard, "Slowdown on the Public-Private Express," Stateline, Sept. 16, 2010, http://stateline.org/live/printable/story?contentId=513479.
230. Sources for Appendix C include original research using Westlaw and StateNet; NCSL Transportation Program, NCSL Transportation Funding Legislation Database.
231. For the purposes of this report, both resolutions are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
232. For the purposes of this report, both bills are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
233. See also Illinois Senate Bill 305, an identical bill introduced in 2009 that carried over to 2010. For the purposes of this report, however, only the version introduced in 2010 (Senate Bill 2621) is counted as one of the 52 transportation PPP legislative measures considered during 2010 state legislative sessions.
234. Illinois Senate Resolutions 794 and 806 are nearly identical in their provisions, except for some differences in the composition of the proposed Illinois and Midwest High-Speed Rail Commission. For the purposes of this report, both resolutions are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
235. For the purposes of this report, both bills are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
236. For the purposes of this report, both bills are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
237. For the purposes of this report, both bills are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
238. Ohio Senate Bill 121 and House Bill 166 are nearly identical in their provisions relating to transportation innovation authorities. Some differences are apparent in sections 5539.11(B)(3) and 5539.11(B)(8), and section 5539.12 exists only in House Bill 166. For the purposes of this report, both bills are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
239. See also Pennsylvania House Bill 1510, an identical bill introduced in 2009 that carried over to 2010. For the purposes of this report, however, only the version introduced in 2010 (House Bill 9a) is counted as one of the 52 transportation PPP legislative measures considered during 2010 state legislative sessions.
240. South Carolina House Bill 4033 and Senate Bill 521 are generally similar, but contain distinct differences throughout. For example, House Bill 4033 authorizes only specific project delivery models (design-build-operate-maintain or design-build-finance-operate-maintain), while Senate Bill 521 generally authorizes public-private initiatives. House Bill 4033 also prohibits collection of a toll for maintenance and operations on a road subject to a partnership agreement after the expiration of the agreement, or after financial obligations related to the financing the road are satisfied, while Senate Bill 521 does not prohibit this. Sections pertaining to requests for proposals, interim agreements, default, surety bonds and other matters also differ. For the purposes of this report, these two bills are listed together due to their overall similarity, but are counted separately among the 52 transportation PPP measures considered during 2010 state legislative sessions.
241. For the purposes of this report, both bills are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
242. For the purposes of this report, both bills are counted among the 52 transportation PPP measures considered during 2010 state legislative sessions.
243. See Nossaman, Guthner, Knox and Elliott LLP, Overview of Key Elements. See also Nossaman, Guthner, Knox and Elliott LLP, Key Elements; this resource shows which state statutes contained each kind of provision as of 2007.
244. Sources for Appendix E are the same as for Figure 7; see note 102.
245. Although not in statute, also note that legislation enacted in 2010 (House Bill 500; Del. Laws, Chap. 329) authorizes the state DOT to continue utilization of the design-build contract mechanism for a total of 12 transportation construction projects; subjects design-build contracts to other provisions; and requires the co-chairs of the Joint Legislative Committee on the Capital Improvement Program and the Director of the Office of Management and Budget to approve all other projects subject to this section (see Appendix F).
246. Although not in statute, also note that legislation enacted in 2010 (House Bill 2650; 2010 Kan. Sess. Laws, Chap. 156) authorizes the state DOT to procure one design-build demonstration project in Johnson or Wyandotte county (see Appendix F).
247. Sources for Appendix F include original research using Westlaw and StateNet; Design-Build Institute of America (DBIA), State Pending Legislation (7/13/10) (Washington, D.C: DBIA, 2010), http://www.dbia.org/NR/rdonlyres/A7C01741-6CB4-41C6-B96A-0508CF23FCD8/0/StatePendingLeg20100713.pdf; NCSL Transportation Program, NCSL Transportation Funding Legislation Database.
248. For the purposes of this report, both bills are counted among the 28 design-build bills considered during 2010 state legislative sessions.
249. Although the Hawaii DOT has engaged in design-build projects under the current state procurement code, the law is not specific in regards to authorizing design-build.
250. For the purposes of this report, both bills are counted among the 28 design-build bills considered during 2010 state legislative sessions.
251. For the purposes of this report, both bills are counted among the 28 design-build bills considered during 2010 state legislative sessions.
252. "U.S. & Canadian Transportation Projects Scorecard."
253. More information about Canadian projects is also available at Canadian Council for Public-Private Partnerships (CCPPP), Canadian PPP Projects Database (Toronto, Ontario: CCPPP, 2010), http://projects.pppcouncil.ca/ccppp/src/public/search-project?pageid=3d067bedfe2f4677470dd6ccf64d05ed.
254. Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships: Case Studies (Washington, D.C: FHWA, 2010), http://www.fhwa.dot.gov/ipd/p3/case_studies/index.htm.
255. Information about this project is from Texas Department of Transportation, I-635 Managed Lanes Project (Austin, Texas: TxDOT, 2010); Texas Department of Transportation, LBJ-635 CDA - Executed Version (Austin, Texas: TxDOT, 2009), http://www.txdot.gov/project_in-formation/projects/dallas/635_lbj_cda/cda.htm.
256. Information about this project is from "Balfour Beatty: DTP Reach Final Close Eagle P3 Commuter Rail Project," Wall Street Journal (Aug. 16, 2010), http://online.wsj.com/article/BT-CO-20100816-700702.html; Regional Transportation District (RTD) of Denver, Eagle P3 Project (Denver, Colo.: RTD of Denver, 2010), http://www.rtd-fastracks.com/main_126; "Denver Eagle Rail P3 Award Soon," Public Works Financing 249 (May 2010): 8, http://www.publicinfrastructure.ca.gov/GSLibrary/Downloads/download.ashx?fle=sites/1832/17450/442064/May%202010%20Issue%2C%20PUBLIC%20WORKS%20FINANCING.pdf
257. NCSL Foundation for State Legislatures, NCSL Foundation Partnership Meeting Summary (April 2009), 18.
258. Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships: Case Studies.
259. Ibid.
260. Ibid.
261. Information about the South Bay Expressway bankruptcy is from Rich Saskal, "California P3 Files Chapter 11: 3-Year-Old Tollway in Dire Straits," Bond Buyer (March 30, 2010), http://www.bondbuyer.com/issues/119_309/California_P3_Files_Chapter_11-1010232-1.html.
262. U.S. Department of Transportation, Innovation Wave, 13.
263. Ibid., 14.
264. Information about the Las Vegas Monorail bankruptcy is from Barney A. Allison, "Las Vegas Bankruptcy Monorail Decision Bodes Well for Project Owners," Nossaman LLP Infra Insight Blog (June 1, 2010), http://www.infrainsightblog.com/articles/ppps; Bill Rochelle, "Las Vegas Monorail, AbitibiBowater, Black Crow, Broadstripe: Bankruptcy," Bloomberg (Oct. 6, 2010), http://www.bloomberg.com/news/2010-10-06/vegas-monorail-abitibi-black-crow-broadstripe-bankruptcy.html.
265. The project type listing for the Las Vegas Monorail is drawn from Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships: Case Studies; the case study includes additional details about this unusual project.
266. Information about the Southern Connector bankruptcy is from Patrick Temple-West, "Trends in the Region." See also Patrick Temple-West, "South Carolina Toll Road Bondholders File Claim," Bond Buyer 373, no. 33385 (September 20, 2010).
267. Information about this project is from Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships: Case Studies.
268. The notice to proceed date for the Red Jacket Section of the King Coal Highway was not available; however, the West Virginia Department of Transportation reports that construction funds were first authorized by the Division of Highways in September 2004. Source: David Cramer, WVDOT, e-mail to author, Aug. 23, 2010.
269. Information about this project is from Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships: Case Studies.
270. Information about this project is from Federal Highway Administration (FHWA) Office of Innovative Program Delivery, Public-Private Partnerships: Case Studies; "Volkert Teams Up with Private Interests to Fulfill a Public Need," Volkert Views (Spring 2001): 1, 4, http://www.volkert.com/PDF%20Files/Volkert%20Views%20Spring%202001.pdf
271. Michigan DOT, Report to the Legislature of the State of Michigan Responding to Public Act 116 of 2009, Section 384 (Lansing, Mich.: MDOT, 2010), http://www.partnershipborderstudy.com/pdf/4-29-10/2-2010-04-29.DRIC.Report.to.Legislature.with.Appendices.A.&.D.pdf.
272. Florida DOT, FDOT First Coast Outer Beltway (Tallahassee, Fla.: FDOT, 2010), http://www.fdotfrstcoastouterbeltway.com/index.asp; "Florida DOT Restarting Concession Procurement for Jacksonville Outer Belt," Toll Roads News (June 24, 2009), http://www.tollroadsnews.com/node/4226.
273. Virginia DOT, A Virginia Department of Transportation Public-Private Partnership: Downtown Tunnel / Midtown Tunnel / MLK Extension (Richmond, Va.: VDOT, 2010), http://midtowntunnel.org.
274. Virginia DOT, A Virginia Department of Transportation Public-Private Partnership: U.S. Route 460 Corridor Improvements Project (Richmond, Va.: VDOT, 2010), http://www.route460ppta.org.
275. Georgia DOT, West by Northwest Project Overview (Atlanta, Ga.: GDOT, 2010), http://www.dot.state.ga.us/informationcenter/p3/projects/WbyNW/Pages/default.aspx.
276. "NYC Goethals Bridge Challenges P3 Builders," Public Works Financing 249 (May 2010): 1-4, http://www.publicinfrastructure.ca.gov/GSLibrary/Downloads/download.ashx?fle=sites/1832/17450/442064/May%202010%20Issue%2C%20PUBLIC%20WORKS%20FINANC-ING.pdf; The Port Authority of New York And New Jersey, Request for Information Related to the Future Issuance of a Request for Qualifications and Subsequent Request for Proposals to Design/Build/Finance & Maintain the Goethals Bridge Replacement Project (RFI #21273) (New York: The Port Authority of New York and New Jersey, May 2010), http://www.panynj.gov/business-opportunities/pdf/RFIDOC_21273.pdf
277. Virginia DOT, I-95/395 Project Info (Richmond, Va.: VDOT, 2010), http://www.virginiahotlanes.com/i95/project-info; "Virginia I-395 HOT Lanes Shelved," Public Works Financing 241 (September 2009): 15, http://www.publicinfrastructure.ca.gov/GSLibrary/Downloads/download.ashx?fle=sites/1832/17450/442064/September%202009%20Issue%2C%20PUBLIC%20WORKS%20FINANCING.pdf.
278. "Doyle Drive P3 Deadline Looms," Public Works Financing 249 (May 2010): 5, http://www.publicinfrastructure.ca.gov/GSLibrary/Downloads/download.ashx?fle=sites/1832/17450/442064/May%202010%20Issue%2C%20PUBLIC%20WORKS%20FINANCING.pdf.
279. Gwinnett County Government, Ronald Reagan Parkway Extension: A Feasibility Study (Lawrenceville, Ga.: Gwinnett County DOT, 2010), http://www.reaganextension.com/home.cfm.
280. Georgia DOT, MMPT Project Overview (Atlanta, Ga.: GDOT, 2010), http://www.dot.state.ga.us/informationcenter/p3/projects/mmpt/Pages/default.aspx.
281. Puerto Rico Public-Private Partnerships Authority, Request for Qualifications to Acquire a Concession to Finance, Operate and Maintain Toll Roads in Puerto Rico (San Juan, PR.: Puerto Rico Public-Private Partnerships Authority, June 2010), http://www.app.gobierno.pr/wp-con-tent/uploads/2010/06/RFQ%20Toll%20Roads%20Project%20Phase%20I%20-%20June-15-2010.pdf
282. California Public Infrastructure Advisory Commission, California's Emerging Pipeline of Transportation Public-Private Partnerships as of February 1, 2010 (Sacramento, Calif: California Public Infrastructure Advisory Commission, 2010), http://www.publicinfrastructure.ca.gov/page.asp?o=cabth&s=PIAC&p=383078&i=305336; Geoffrey Segal, Macquarie Capital, e-mail to author, Aug.10, 2010.
283. See Larry Caudle, "Lease on Life: MoDOT Develops PPP to Add Years to Bridges," Roads and Bridges 47, no. 1 (January 2009), http://www.roadsbridges.com/Lease-on-life-article9957; "Mississippi DOT Stops Jackson Airport Parkway P3: Rating Agencies No to Investment Grade," Toll Roads News (Sept. 9, 2009), http://www.tollroadsnews.com/node/4346; "No Bids for 'Gator Alley Concession in Florida," Toll Roads News (May 18, 2009), http://www.tollroadsnews.com/node/4167; Talanworth Limited, SH 121 Toll Project, Texas, USA (Kenilworth, UK: Talanworth Limited, 2010), http://www.talanworth.com/index.html; "What Does Collapse Of Midway Airport Deal Mean For Privatization?" National Journal Expert Blogs, Transportation, May 11, 2009, http://transportation.nationaljournal.com/2009/05/what-does-collapse-of-midway-a.php.
284. The Pew Center on the States, Key Questions for States.