PPP Legislation - Public Private Partnerships

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PPP Legislation

ANALYSIS FOR STATE OF MARYLAND	« back
Statute:
MD CODE REGS. 11.07.06 MD. TRANSPORTATION CODE ANN. § 8-204 MD PPP Guidance

Summary:
Chapter 11.07.06 of the Maryland Code of Regulations establishes a transportation public-private partnership program. A 1996 Attorney General opinion referenced in the annotations to this statute also gives the Maryland Transportation Authority the authority to construct toll roads using certain forms of PPPs. 1 Additional legislative authority may be needed, however, depending on the form of the transaction. There is also no express provision regarding the acceptance of unsolicited proposals for highway projects.
¹ See MD 81 Op. Att’y Gen. (issued 2/2/96).

Key Elements of Maryland's PPP Enabling Legislation	Last Updated: August 2006
Not applicable

No.	Issue:	Short Answer:	Sample Provision:
1.	Does the relevant law allow solicited and unsolicited proposals for PPP projects?	Yes.	§ 11.07.06.05B allows unsolicited projects, but § 11.07.06.02D(2) prohibits unsolicited proposal for the sale of assets or operations or maintenance services.
2.	Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project?	No express provision.
3.	Who has rate-setting authority to impose user fees and under what circumstances may they be changed or otherwise reviewed?	Agreement.	§11.07.06.12. User fees are negotiated as part of the PPP agreement.
4.	Does the relevant law permit TIFIA loans to be used on PPP projects?	No express provision.
5.	Is the number of PPP projects limited to only a few "pilot" or "demonstration" projects?	No.
6.	Are there restrictions concerning the geographic location of PPP projects?	No.
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.
8.	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.
9.	Does the relevant law permit the conversion of existing or partially constructed highways into toll roads?	Yes.	§ 11.07.06.01B(2) allows PPPs to fund the “major rehabilitation or major expansion of certain existing transportation facilities”.
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?	No.
11.	Is prior legislative approval required when an individual PPP proposal is received?	No.	However, § 11.07.06.04A(4) requires the selected project to be approved by the Maryland State Board of Public Works.
12.	Are there any similar requirements that subject the PPP proposal or the negotiated PPP agreement to a local veto?	No.	However, § 11.07.06.11C-D allow comments from local agencies and affected jurisdictions. Affected jurisdictions have 60 days after receipt to review a proposal and provide comments to the authority.
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.	§ 11.07.06.05.
14.	Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws?	No.	According to § 11.07.06.02D(1), proposal submissions must comply with State Finance and Procurement Article, Title 5, Subtitle 7B, Annotated Code of Maryland.
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.	§11.07.06.04C(2)- allows thelength of ownership to be determined by agreement.
16.	Does the public sector have the authority to issue toll revenue bonds or notes?	No express provision.
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.
18.	Does the relevant public agency have the authority to hire its own technical and legal consultants?	Yes.	§11.07.06.11B(3) and C(3) allow the MTA to utilize financial, technical, and legal consultants.
19.	Does the relevant law permit the public sector to make payments to unsuccessful bidders for work product contained in their proposals?	No.	§ 11.07.06.04H(1) prohibits the reimbursement of the costs of a proposer.
20.	Can the agency charge application fees to offset its proposal review costs?	Yes.	§11.07.06.08A requires unsolicited proposals to be accompanied by a $30,000 application fee -- $5,000 for initial review of a conceptual proposal and $25,000 for detailed review of a proposed concept.
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).	Yes.	§ 11.07.06.11 does not identify time limits for reviewing proposals.
22.	Is the public sector required to maintain comparable non-toll routes when it establishes new toll roads?	No.
23.	Are there any non-compete clause prohibitions?	No.
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?	Restricted.	§ 11.07.06.02A. Limited to the Maryland Transportation Authority.
25.	Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach?	Yes.	§ 11.07.06.11 establishes the evaluation and selection criteria.
26.	Does the relevant law specify the structure and participants for the review process involving PPP proposals?	Yes.	§ 11.07.06.11 describes the MTA’s two-phase process for evaluating proposals.
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?	Yes/No.	§ §11.07.06.10 requires the proposer to identify confidential information and justify why it should be protected.
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.	§11.07.06.12A(6) requires that the PPP agreement provide who is responsible for operations and maintenance.

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