| No. |
Issue: |
Short Answer: |
Sample Provision: |
| 1. |
Does the relevant law allow solicited and unsolicited proposals for PPP projects? |
Yes. |
§72-6-205(1)(a) and (b) permits the Transportation Commission to solicit tollway development proposals and accept unsolicited proposals. |
| 2. |
Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project? |
Yes. |
§72-6-203(4)(b) permits combinations of public and private funding and finance. |
| 3. |
Who has rate-setting authority to impose user fees and under what circumstances may they be changed or otherwise reviewed? |
Commission. |
§72-6-203(1). The toll rate or user fee will be determined by agreement. Under §72-6-206, the State Department of Transportation must submit to the Transportation Commission a proposed method of determining user fees and a maximum toll rate or user fee. |
| 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. |
The statute is limited to tollways. |
| 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. |
Under §72-6-118 (3) the Legislature and the Transportation Commission must approve the establishment or operation of a tollway on an existing state highway. However, the Transportation Commission may establish high occupancy toll lanes on existing highways without legislative approval. |
| 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. |
§72-6-118 (7)(b) requires funds to be deposited into a Tollway Restricted Special Revenue Fund. |
| 11. |
Is prior legislative approval required when an individual PPP proposal is received? |
No. |
However, under §72-6-206, the Transportation Commission must approve all tollway development agreements. |
| 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. |
§63-56-520.5(2)(c) gives the Department of Transportation and the Transportation Commission authority to establish, by rule, requirements for procurements. |
| 14. |
Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws? |
No. |
|
| 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. |
§72-6-203(5)(c). |
| 16. |
Does the public sector have the authority to issue toll revenue bonds or notes? |
Yes. |
§72-6-203(4)(f). |
| 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. |
Under §72-6-203(2) requires the Department of Transportation to engage outside consultants and counsel to provide certain services. |
| 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. |
|
| 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 express provision. |
|
| 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. |
§72-6-203 only authorizes the Department of Transportation to enter into tollway development agreements. |
| 25. |
Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach? |
No. |
§63-56-502.5(3)(c) requires certain qualifications, but there is no reference to evaluating criteria. |
| 26. |
Does the relevant law specify the structure and participants for the review process involving PPP proposals? |
Yes. |
Under §63-56-502.5(2), proposals are reviewed by the Department of Transportation and the Transportation Commission. |
| 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. |
|
| 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. |
§72-6-203(1)(c). |
