| No. |
Issue: |
Short Answer: |
Sample Provision: |
| 1. |
Does the relevant law allow solicited and unsolicited proposals for PPP projects? |
Yes. |
§65-43-3(2)(b) allows a governmental entity to accept unsolicited proposals for a proposed new toll road or solicit proposals. |
| 2. |
Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project? |
Yes. |
§65-43-7(1) permits board of supervisors or a county or the governing authorities of a municipality to borrow money for the project. The bonds authorized under §4 shall be payable out of any revenues derived from the project, including grants or contributions from the federal government or other sources.
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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 by approval. |
§65-43-3(4) allows private companies to establish, charge and collect motor vehicle operators tolls for use of the highway or bridge and its facilities. The amount of such tolls, and any modification thereto, shall be subject to approval by the contracting governmental entity after notice and public hearing. |
| 4. |
Does the relevant law permit TIFIA loans to be used on PPP projects? |
No express provision. |
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| 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. |
§65-43-1 Toll roads and bridges may only be constructed at and along those locations where an alternative untolled route exists. |
| 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)? |
Yes. |
§65-43-1 Restricted to construction of new toll roads and bridges for motor vehicle traffic. |
| 8. |
Is there a legal requirement to remove tolls after the repayment of project debt? |
No. |
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| 9. |
Does the relevant law permit the conversion of existing or partially constructed highways into toll roads? |
No. |
§65-43-1 An existing road or any segment of an existing road shall not be part of a new toll road, and the reconstruction or repair of an existing road shall not be tolled. |
| 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. |
§65-43-3(4) Contracts entered into with the Mississippi Transportation Commission to require a company to pay a percentage of all tolls collected to the Mississippi Department of Transportation.
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| 11. |
Is prior legislative approval required when an individual PPP proposal is received? |
No. |
|
| 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. |
§65-43-3(2)(b) requires the governmental entity to use a competitive procurement process that provides the best value for the governmental entity. §65-43-3(3) limits the term of a contract to 30 years and shall not be extended or renewed.
|
| 14. |
Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws? |
Yes. |
§65-43-3(2)(g) Except as provided under subsection (2) of this section, no such contract entered into hereunder shall be subject to the provisions of §65-1-8, §31-7-13 or any other public bid or public procurement laws of the state. |
| 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. |
§65-43-3(3) allows for contracts to be up to 30 years and shall not be extended or renewed. |
| 16. |
Does the public sector have the authority to issue toll revenue bonds or notes? |
Yes. |
§65-43-7(1) permits the board of supervisors of a county or the governing authorities of municipality to have the right to issue bonds. |
| 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. |
§65-43-3(2)(c) In evaluating proposals, a government entity may solicit input from other sources regarding such a proposal. |
| 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. |
|
| 20. |
Can the agency charge application fees to offset its proposal review costs? |
No express provision. |
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| 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). |
Project-by-Project |
§65-43-3(2)(c) requests for competing proposals shall include the deadline by which proposals must be received. |
| 22. |
Is the public sector required to maintain comparable non-toll routes when it establishes new toll roads? |
No express provision. |
|
| 23. |
Are there any non-compete clause prohibitions? |
Yes. |
See Question 6 above, restrictions on geographic locations. |
| 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. |
§65-43-1 allows the Mississippi Transportation Commission, county boards of supervisors and /or governing authorities of municipalities to construct, operate, maintain, individually or jointly with other governmental entities, new toll roads and toll bridges. |
| 25. |
Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach? |
No. |
§65-43-3(2)(c) Requests for competing proposals shall include criteria used to evaluate the proposals and relative weight given to the criteria. |
| 26. |
Does the relevant law specify the structure and participants for the review process involving PPP proposals? |
Yes. |
§65-43-3(2)(c) and (d) Governmental entity shall publish request for competing proposals; may interview proposers; shall rank each proposal based on criteria and select the entity that offers the best value. §65-43-3(2)(h) requires the Mississippi Transportation Commission to evaluate each proposal. |
| 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? |
No. |
§65-43-3(2)(a) Every contract entered into by a governmental entity (except for contracts entered into with another governmental entity), at a minimum must provide for the design and construction of a new toll road or toll bridge project and may also provide for the financing, acquisition, lease, maintenance, and / or operation of a new toll road or toll bridge project.
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