| No. |
Issue: |
Short Answer: |
Sample Provision: |
| 1. |
Does the relevant law allow solicited and unsolicited proposals for PPP projects? |
Yes. |
§223.203(a) for CDAs, “the department may accept unsolicited proposals for a proposed project or solicit proposals in accordance with this section.” §227.023 for Trans-Texas Corridor (incorporates comprehensive development agreement powers under §223). §366.402(a) for Regional Toll Authorities (RTA) |
| 2. |
Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project? |
Yes. |
§223.202 limits public funds “disbursed by the department from the state highway fund and the Texas mobility fund during a federal fiscal year to pay the costs under comprehensive development agreements may not exceed 40 percent of the obligation.” §222.074 permits SIB loans to be made to private parties. §366.401(d) permits a RTA to authorize the investment of public and private money, including debt and equity participation. See §370.302(e) for Regional Mobility Authorities (RMAs). |
| 3. |
Who has rate-setting authority to impose user fees and under what circumstances may they be changed or otherwise reviewed? |
Agreement. |
§223.208(a)(2) for CDA. Terms negotiated between the department and the private participant include setting reasonable toll rates. §366.407 for CDAs executed by RTAs. See §370.311 for RMAs. |
| 4. |
Does the relevant law permit TIFIA loans to be used on PPP projects? |
Yes. |
§222.101 allows the Department to spend money from any source for the construction, maintenance, and operation of toll facilities. |
| 5. |
Is the number of PPP projects limited to only a few "pilot" or "demonstration" projects? |
No. |
However, §223.201(f), and §370.305(a) for CDAs executed by RMAs, state the authority to enter into CDA expires on August 31, 2009. |
| 6. |
Are there restrictions concerning the geographic location of PPP projects? |
Yes. |
§223.208 (c), §227.023(c) for TTC, §366.407(c) for RTAs, and §370.033(a)(3) for RMAs, a project must be identified in the department's unified transportation program or be located on a transportation corridor identified in the statewide 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. |
§91.054 for rail facility or system and §223.201(a)(1)-(5) for CDAs includes toll projects, facilities, and state highways. For RTAs, see §366.032 turnpike project or system. For RMAs see §370.003(14) definition of "transportation project."
For Trans Texas Corridor, see §227.001(4) "facility." |
| 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? |
Yes. |
§228.201 includes limits on toll facility designation. |
| 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. |
For CDAs, §228.0055 contract payments shall be applied to transportation projects or air quality projects.
For RTAs, §366.409 contract payments received by an authority shall be used to finance the construction, maintenance, or operation of a turnpike project or a highway. For RMAs, excess revenues are to go to other transportation projects pursuant to §370.172(h), or go to Texas Mobility Funds. §370.174.
|
| 11. |
Is prior legislative approval required when an individual PPP proposal is received? |
No. |
However, §371.052 sets forth when a toll project entity must notify the Legislative Budget Board. |
| 12. |
Are there any similar requirements that subject the PPP proposal or the negotiated PPP agreement to a local veto? |
No. |
|
| 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. |
§223.203(e-1) and (e-2) process to enter a CDA including design-build.
§223.208(h) CDAs limited to 52 years. §227.082(a) lease of property on TTC allowed for 50 years. §366.407(g) for RTAs.
|
| 14. |
Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws? |
Yes. |
§223.203(o) for CDAs. For RTAs §366.402(o) §370.306(o) for RMAs. |
| 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. |
§223.206 authorizes public property owned by the department to be leased. §227.082 authorizes franchises and licenses for TTC. §366.033(a)(13) for RTAs and §370-033(a)(13) for RMAs. |
| 16. |
Does the public sector have the authority to issue toll revenue bonds or notes? |
Yes. |
§228.102 authorizes the issuance of toll revenue bonds to pay all or part of the cost of a toll project or system. §366.111 permits RTAs to issue bonds. §370.111 permits RMAs 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. |
§228.251(2) definition for “local government entity” includes “a nonprofit corporation, including a transportation corporation created under Chapter 431.” However, under §228.254(a), nonprofits are specifically excluded from the ability to issue bonds. |
| 18. |
Does the relevant public agency have the authority to hire its own technical and legal consultants? |
Yes. |
§223.201(c) for the TXDOT. §366.401(c) for RTAs. §370.304(c) for RMAs. |
| 19. |
Does the relevant law permit the public sector to make payments to unsuccessful bidders for work product contained in their proposals? |
Yes. |
§223.203 (m) for CDAs. §366.402(m) for RTAs. §370.306(m) for RMAs. |
| 20. |
Can the agency charge application fees to offset its proposal review costs? |
Yes. |
§223.203(l) for unsolicited CDAs. §366.402(l) for RTAs. §370.306(l) for RMAs. |
| 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. |
§223.203(c) for CDAs. §366.402(c) for RTAs.
§370.306(c) for RMAs.
|
| 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? |
Yes. |
§371.103 – A CDA may not contain a provision that limits or prohibits the construction, reconstruction, expansion, rehabilitation, operation or maintenance of a highway or other transportation project, as that term is defined by §370.003. |
| 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? |
Not Restricted. |
§223.201 authorizes the department to enter an agreement for CDAs. §366.401 for RTAs. §370.031 for RMAs. |
| 25. |
Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach? |
No. |
§223.203(b), criteria relating to qualifications and award of contracts to be specified in department rules. §366.402(b) for RTAs and §370.306(b) for RMAs, criteria relating to qualifications and award of contracts to be specified in authority rules. |
| 26. |
Does the relevant law specify the structure and participants for the review process involving PPP proposals? |
Yes. |
§223.203(h), “the department shall evaluate each proposal based on the criteria described in the request.” §366.402(h) for RTAs the authority shall evaluate each proposal based on the criteria described in the request. For RMAs, §370.306(h), the authority shall rank each proposal based on the criteria described in the request.
§371.051. A toll project entity may not enter into a comprehensive development agreement unless the attorney general reviews the proposed agreement and determines that it is legally sufficient.
§371.052 sets forth when the toll project entity shall provide information to the State Legislative Budget Board.
|
| 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 |
§223.204 lays out the confidentiality of information for CDAs, §366.403 for RTAs. and §370.307 for RMAs. For projects for which the commission has selected an apparent best value proposer after May 1, 2007, see §371.151, before a toll project entity enters into a CDA for a highway toll project, the entity must disclose through publication financial information about the project. |
| 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. |
§223.206(b) for CDAs. §366.405(b)for RTAs. §370.181(b) for RMAs. |
