| No. |
Issue: |
Short Answer: |
Sample Provision: |
| 1. |
Does the relevant law allow solicited and unsolicited proposals for PPP projects? |
Yes. |
§367.804(3)(a), (b).
§383.015 permits tollway projects to be initiated by the Department, units of local government or private entities.
|
| 2. |
Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project? |
Yes. |
§367.812 permits loans from the Oregon Transportation Infrastructure Fund, which may be on a senior, parity or subordinate basis. See also §367.816.
§383.009(2)(e) permits loans of moneys in the State Tollway Account to be loaned to private entities.
|
| 3. |
Who has rate-setting authority to impose user fees and under what circumstances may they be changed or otherwise reviewed? |
Agreement. |
§367.804(7); 367.806(1)(b) - agreement may include the imposition and collection of franchise fees or user fees.
§383.005(2) Any private entity or unit of government that operates a tollway project pursuant to an agreement with the department may impose and collect tolls on the tollway project.
|
| 4. |
Does the relevant law permit TIFIA loans to be used on PPP projects? |
Yes. |
§367.812(3)(b).
No provision in tollway statute.
|
| 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. |
Under §367.802(3), a "Transportation project" means "any mode of transportation in this state."
Under §383.003 a "tollway" is defined as a "roadway, path, highway, bridge, tunnel, railroad track, bicycle path or other paved surface or structure specifically designed as a land vehicle transportation route."
|
| 8. |
Is there a legal requirement to remove tolls after the repayment of project debt? |
No. |
|
| 9. |
Does the relevant law permit the conversion of existing or partially constructed highways into toll roads? |
No express provision. |
|
| 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. |
§367.810 Moneys from any transportation project developed under the act go into the State Transportation Enterprise Fund.
§383.009 Revenues from tollways go into State Tollway Account.
|
| 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. |
§367.804(3)(c) provides for consultation with any appropriate local government MPO or area commission on transportation. |
| 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. |
§367.806(5) exempts projects from the general procurement law contained in ORS ch. 279.
§367.806(4) also exempts the application of the tollway statute, found at §§383.003 to 383.027.
|
| 14. |
Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws? |
Yes. |
§383.017(1) exempts projects from other procurement laws. |
| 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. |
§367.806(1)(a) permits entering into "agreements" for, among other things, the leasing and operation of transportation projects.
§383.005 permits design-build agreements, leases, lease-purchase agreements and licenses, franchises or other agreements for the periodic or long-term operation or maintenance of a tollway project.
|
| 16. |
Does the public sector have the authority to issue toll revenue bonds or notes? |
Yes. |
§367.812(1). The amount of revenue bonds issued is subject to approval of the State Legislature. § 286.525.
§383.023 authorizes revenue 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.
|
§383.027 provides (2) A nonprofit corporation organized under Oregon law may issue revenue bonds for the purpose of financing a tollway project. (Not clear whether this constitutes authorization for approval of creation of nonprofit.)
|
| 18. |
Does the relevant public agency have the authority to hire its own technical and legal consultants? |
Yes. |
§367.804(8).
§367.808(1) provides for the appointment of special assistant attorneys general. |
| 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? |
Yes. |
Under §367.804(d), the amount is determined by ODOT.
§383.015 permits ODOT to charge administrative fees.
|
| 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/No. |
See OAR 731-070-0005 et seq. In 90 days, or such later time as ODOT states in the notice. |
| 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. |
§367.810 applies only to ODOT. |
| 25. |
Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach? |
No. |
Criteria are specified in the Administrative Rules, Division 70.
§383.017 specifies evaluation criteria.
|
| 26. |
Does the relevant law specify the structure and participants for the review process involving PPP proposals? |
Yes. |
§367.822 provides for advisory committees which may review proposals and make recommendation. |
| 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. |
§367.804(5), (6).
§383.025 Sensitive business, commercial or financial information presented to the Department of Transportation by a private entity for the purpose of determining the feasibility of the entity's participation in a tollway project is exempt from disclosure under ORS 192.410 to 192.505.
|
| 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. |
No limitation in PPP statute.
§ 383.005 permits licenses, franchises or other agreements for the periodic or long-term operation or maintenance of a tollway project. |
