As noted in Section 4, one of the most important catalysts for the use of PPPs by state and/or local transportation agencies is passage of enabling legislation granting these agencies statutory permission to form public-private partnership agreements to delivery infrastructure facilities and services. Twenty-one states and the Commonwealth of Puerto Rico have already enacted legislation enabling the use of PPPs for transportation projects, as shown earlier in Exhibit 14. Appendix B provides a summary of the key provisions of the enabling PPP legislation for these twenty-one states and Puerto Rico, plus the proposed PPP enabling legislation for Louisiana.
The degree to which partnerships have been enacted under these acts varies greatly, however, in relation to the number and nature of agreements permitted under each statute. A key distinction is whether solicited proposals, unsolicited proposals, or both are enabled. In some cases acts apply only to particular types of facilities, such as toll highways or toll bridges, or specify the level of government or agency types permitted to partner. Others are established as pilot legislation and limit the number of partnerships permitted. For example, the Commonwealth of Massachusetts enacted PPP legislation to permit only one project to use the DBOM approach financed through a 63-20 public-benefits corporation for rehabilitating Route 3 north of Boston to the New Hampshire state line. Some bills have been ineffective vehicles for public-private partnerships given provisions that create risk and uncertainty sufficient to deter potential private sector construction, design, and/or financing firms from partnering under the statute. These include initial PPP legislation in Washington State and California.
The Federal Highway Administration (FHWA) has published a study of the state PPP enabling statutes identifying key elements for highway projects.9 Most of the same elements would apply to transit projects. In addition, USDOT has published in draft form model PPP legislation for states to consider.10 These documents provide useful insights for states considering either adoption of comprehensive PPP legislation or amendments to their existing enabling statutes and regulations regarding the use of alternative project development, financing, delivery, and/or operations.
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6 40 U.S.C. Section 276a et seq.
7 Now codified at 49 U.S.C. 5333(b).
9 http://www.fhwa.dot.gov/ppp/legis_key_elements.pdf.
10 http://www.fhwa.dot.gov/ppp/legis_model.pdf. It should be noted that FHWA's web page specifically advises that the model legislation is provided for informational purposes only and that it should not be construed as the policy of USDOT or FHWA.