| No. |
Issue: |
Short Answer: |
Sample Provision: |
| 1. |
Does the relevant law allow solicited and unsolicited proposals for PPP projects? |
Yes. |
§334.30(1) for transportation facilities.
See also §337.251 for leases of property for joint public-private development.
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| 2. |
Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project? |
Yes. |
§334.30(7) The Florida DOT may lend funds from the Toll Facilities Revolving Trust Fund under §338.251.
§334.30(1)(b) provides that for projects on the State Highway System, the Florida DOT may use state resources to participate in funding and financing the project.
§339.55 authorizes loans from the State Infrastructure Bank to private entities.
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| 3. |
Who has rate-setting authority to impose user fees and under what circumstances may they be changed or otherwise reviewed? |
Private entity. |
§334.30(2)(c). Any toll revenues shall be regulated by the department pursuant to §338.165(3). The regulations governing the future increase of toll or fare revenues shall be included in the public-private partnership agreement.§338.165(3) For existing facilities, the department, including the turnpike enterprise, shall index toll rates to the annual CPI or similar inflation indicators. Toll rate adjustments for inflation under this subsection may be made no more frequently than once a year and must be made no less frequently than once every 5 years as necessary to accommodate cash toll rate schedules. Toll rates may be increased beyond these limits as directed by bond documents, covenants, or governing body authorization or pursuant to department administrative rule. |
| 4. |
Does the relevant law permit TIFIA loans to be used on PPP projects? |
Yes. |
§334.30(8) allows the department to use innovative finance techniques associated with a public-private partnership under §334.30, including, but not limited to, federal loans as provided in titles 23 and 49 of the Code of Federal Regulations. |
| 5. |
Is the number of PPP projects limited to only a few "pilot" or "demonstration" projects? |
No. |
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| 6. |
Are there restrictions concerning the geographic location of PPP projects? |
Yes. |
§334.30(1). The Department may advance projects programmed in the adopted 5-year work program or projects increasing transportation capacity and greater than $500 million in the 10-year Strategic Intermodal Plan. §338.165(6). Selection of projects on the State Highway System for construction, maintenance, or improvement with toll revenues shall be, with the concurrence of the department, consistent with the Florida Transportation Plan. |
| 7. |
Are there restrictions concerning the particular mode of transportation eligible to be developed as a PPP project (e.g., truck, passenger auto, freight rail, passenger rail)? |
No. |
§334.30(1) authorizes agreements for "transportation facilities."
§334.03 (31) defines "transportation facilities" as "any means for the transportation of people or property from place to place which is constructed, operated, or maintained in whole or in part from public funds."
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| 8. |
Is there a legal requirement to remove tolls after the repayment of project debt? |
No express provision. |
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| 9. |
Does the relevant law permit the conversion of existing or partially constructed highways into toll roads? |
No express provision. |
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| 10. |
Is there a restriction that prevents the revenues from PPP projects from being diverted to the state's general fund or for other unrelated uses? |
Yes. |
Pursuant to §334.30(2)(c) any toll revenues shall be regulated by the department pursuant to §338.165(3). The department shall include provisions in the public private partnership agreement that ensure a negotiated portion of revenues from tolled or fare generating projects are returned to the department over the life of the public private partnership agreement. See §334.30(2)(e)
§337.251(8) for leases states that revenue from a joint public-private use shall be deposited in the State Transportation Trust Fund. |
| 11. |
Is prior legislative approval required when an individual PPP proposal is received? |
Yes. |
§334.30(1) requires "legislative approval as evidenced by approval of the project in the department's work program." §334.30(2)(d). The department shall provide the analysis required in subparagraph (6)(e)2 to the Legislative Budget Commission created pursuant to §11.90 for review and approval prior to awarding a contract on a lease of an existing toll facility. |
| 12. |
Are there any similar requirements that subject the PPP proposal or the negotiated PPP agreement to a local veto? |
No. |
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| 13. |
Does the relevant law permit all kinds of procurements for PPP project delivery? These might include, for example, calls for projects, competitive RFQ and RFPs, qualifications review followed by an evaluation of proposer concepts, use of design build, procurements based on financial terms such as return on equity rather than on price, long-term asset leases for some period of up to 60 years or longer from the time operations commence? |
Yes / No |
§334.30.(6)(b). Public-private partnerships shall be qualified by the department as part of the procurement process as outlined in the procurement documents, provided such process ensures that the private firm meets at least the minimum department standards for qualification in department rule for professional engineering services and road and bridge contracting prior to submitting a proposal under the procurement.
§334.30(12). Public-private agreements under §334.30 shall be limited to a term not exceeding 50 years. |
| 14. |
Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws? |
Yes. |
§334.30(6) requires the procurement of a public-private partnership by the department to follow the procurement procedures set forth in §334.30. |
| 15. |
Does the relevant law authorize the public sector to grant long-term leases/franchises for the construction, operation and maintenance of toll facilities? |
Yes. |
§334.30(12) limits the term of public-private partnerships under §334.30 to 50 years. However, upon making written findings that an agreement under this section requires a term in excess of 50 years, the secretary may authorize up to 75 years. A term of more than 75 years must be specifically approved by the legislature. |
| 16. |
Does the public sector have the authority to issue toll revenue bonds or notes? |
Yes. |
§338.227 grants the Florida DOT authority to issue revenue bonds to pay for turnpike projects. |
| 17. |
Does the public sector have the authority to form nonprofits and let them issue debt on behalf of a public agency? |
No express provision. |
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| 18. |
Does the relevant public agency have the authority to hire its own technical and legal consultants? |
Yes. |
§334.30(1) The Florida DOT may engage services of private consultants to assist in the evaluation. |
| 19. |
Does the relevant law permit the public sector to make payments to unsuccessful bidders for work product contained in their proposals? |
No express provision. |
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| 20. |
Can the agency charge application fees to offset its proposal review costs? |
Yes. |
§334.30(1) The fee must be sufficient to pay the costs of evaluating the proposals. |
| 21. |
Does the relevant law allow adequate time for the preparation, submission and evaluation of competitive proposals? Note that the agency should have the authority to establish these deadlines on a case-by-case basis depending on the complexity and scope of the initial proposal or other factors that might promote competition (e.g., more review time during holiday periods). |
No. |
The 120-day period for advertising competitive proposals is mandated in the statute at §334.30(6)(a). This statute provides closure for the advertising of unsolicited proposals. FDOT can accept or reject proposals at any point in the process, whether they are solicited or unsolicited. The same period also applies for competitive bidding for leases under §337.251(2). |
| 22. |
Is the public sector required to maintain comparable non-toll routes when it establishes new toll roads? |
No. |
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| 23. |
Are there any non-compete clause prohibitions? |
Yes. |
§334.30(1)(d) specifically requires that the proposed project must have adequate safeguards in place to ensure that the department or private entity has the opportunity to add capacity to the proposed project and other transportation facilities serving similar origins and destinations. See §348.0004(a) for authorities. |
| 24. |
Is the authority to enter into PPPs restricted to the state DOT or state turnpike authority or may regional or local entities also do so? |
No. |
§348.0004(9)(a) provides that, notwithstanding any other provision of the Florida Expressway Authority Act, any expressway authority, transportation authority, bridge authority, or toll authority may receive or solicit proposals and enter into agreements with private entities, or consortia thereof, for the building, operation, ownership, or financing of authority transportation facilities or new transportation facilities within the jurisdiction of the authority which increase transportation capacity. |
| 25. |
Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach? |
Yes. |
§334.30(6) The Florida DOT "may" consider factors, including but not limited to professional qualifications, general business terms, innovative engineering or cost-reduction terms, finance plans, and the need for state funds to deliver the project. |
| 26. |
Does the relevant law specify the structure and participants for the review process involving PPP proposals? |
No. |
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| 27. |
Does the relevant law protect the confidentiality of PPP proposals and any related negotiations in the period prior to execution of the PPP agreement? |
No express provision. |
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| 28. |
Does the relevant law provide for the ability of the public sector to outsource long-term operations and maintenance and other asset management duties to the private sector? |
Yes. |
§334.30(1) includes "operation." |
