Generally speaking, the most successful solutions to legislative requirements at either the federal or state level are those that give PPP project participants the flexibility to develop the optimal project delivery structure for a particular project. For example, SEP-14 and SEP-15 have been very successful in helping states develop innovative approaches to historical requirements set forth in the Federal-Aid Highway Program. As noted above, the Federal-Aid Highway Program historically prohibited state and local highway authorities from using any procurement method other than low bid. However, as a result of FHWA's creation of the SEP-14 innovative contracting program, many highway authorities were permitted to use D/B, cost-plus-time, warranties, and other experimental contracting approaches on particular projects. The successful implementations of these approaches ultimately convinced FHWA to determine that these approaches had become operational and were no longer experimental techniques.
Similarly, many states have enacted legislation that gives state and local highway officials maximum flexibility in customizing an approach to a particular highway project. These types of legislative or administrative initiatives, which balance the need to protect a public policy interest against the need for flexibility and innovation, have allowed state and local highway authorities to expand the menu of options available to them in the face of growing infrastructure demands and dwindling budgets. Many of the case studies discussed in this report highlight the complexity of the financing and contractual risk-sharing arrangements used to develop and construct highway PPP projects. This underscores the need for significant flexibility in developing the finance plan, project delivery structure, and other aspects of a successful highway PPP. Solutions are best managed by state policy makers who are in the best position to determine what is in the best interest of the state.