A public sector comparator model would provide for a true market-driven value to be determined for a toll project. Although Federal rules do not allow public and private competition (CFR 635.112(e): "(e) No public agency shall be permitted to bid in competition or to enter into subcontracts with private contractors'), the Federal Highway Administration (FHWA) does have the authority to approve a waiver to the Federal rules under the SEP-15 process.
SEP-15 (Special Experimental Project) is a new experimental process that allows the FHWA to identify, for trial evaluation, new public-private partnership approaches to project delivery. It is anticipated that these new approaches will allow the efficient delivery of transportation projects without impairing FHWA's ability to carry out its stewardship responsibilities to protect both the environment and American taxpayers. An approved SEP-15 could allow for the public sector entity to submit a comparator at the same time as the private sector proposal provided a procurement process is pre-determined, approved by the FHWA, and followed by all parties allowing for fair and meaningful competition.
This process was pre-approved for use in the original SH 121 procurement process when, in February of 2006, the NTTA expressed their interest in submitting a Public Sector Comparator to the private sectors' CDA bid for the project. Prior to submitting a formal request for SEP-15 approval from the FHWA, however, NTTA rescinded their decision to propose on SH 121 as part of a comprehensive Regional Protocol Agreement between NTTA and TxDOT.
If the procurement process had continued as originally initiated, both the private sector and public sector bids would have been submitted concurrently. Then TxDOT would have scored the private sector proposals and determined the best value proposal, and the RTC and TxDOT would have compared that proposal to NTTA's submittal. The Regional Transportation Council would have then selected the best value proposal and recommended their selection to the TxDOT Commission. Exhibit A, Flow Chart of Responsible Agency/Developer Determination - Public Sector Comparator Process, demonstrates this process.
It is important to note that for this process to be fair and ethical, it would be imperative for both the private sector proposers and the public agency to utilize the same costs for toll collection and that the MPO and Commission decisions would be considered final.