PPP Legislation - Public Private Partnerships

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PPP Legislation

ANALYSIS FOR STATE OF WASHINGTON	« back
Statute:
WASH. REV. CODE Ch. 47.29 WASH. REV. CODE Ch. 47.46

Summary:
New PPP enabling legislation was enacted in May 2005 (as H.B. 1541). In the findings of that legislation, the legislature noted that the public-private transportation initiatives created under WASH. REV. CODE Ch. 47.46 has not met the needs and expectations of the public or private sectors for the development of transportation projects. Under the new statute, the exclusive source of financing for WashDOT projects is state treasurer-issued indebtedness; and no such indebtedness, or expenditures from it, may occur without prior legislative approval. Currently, solicited proposals only, but unsolicited proposals may be accepted after 6/30/07.

Key Elements of Washington's PPP Enabling Legislation

Last Updated: August 2006

No.	Issue:	Short Answer:	Sample Provision:
1.	Does the relevant law allow solicited and unsolicited proposals for PPP projects?	Yes, starting 6/30/07.	Solicited proposals only, as detailed in §47.29.090. It is unclear when unsolicited proposals may be accepted; however, §47.29.170 states they may be accepted after 6/30/07, which contradicts the provision in § 47.29.090(1)(b).
2.	Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project?	Yes.	§47.29.060 specifies a number of financing means that may be used to finance a PPP project. However, §47.29.060(3) and (4) require the state treasurer and state finance committee or the governing board of a public benefit corporation to issue or approve certain types of financing.
3.	Who has rate-setting authority to impose user fees and under what circumstances may they be changed or otherwise reviewed?	No express provision.	While there is no express provision, presumably the partnership agreement required under §47.29.140 would include the toll rate.
4.	Does the relevant law permit TIFIA loans to be used on PPP projects?	Yes.	§47.29.060(1)(b).
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.	§47.29.020(5) and (10) define eligible transportation projects broadly.
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.	No express provision, but broad definition of transportation project eligible under the statute probably encompasses such conversions.
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.	State financing of WSDOT projects will be through the motor vehicle fund, which restricts the fund's uses to transportation purposes.
11.	Is prior legislative approval required when an individual PPP proposal is received?	Yes.	§47.29.060(4) requires the state finance committee or the governing board of a public benefit corporation to approve the financing of any public project (as defined in §47.29.050) developed in conjunction with a transportation project. §47.29.060(5) states that any financing (without approval) may be used on non-public facility projects developed in conjunction with a transportation project. Additionally, §47.29.180 requires that an advisory committee be formed for any project with costs of $300 million or more for the purpose of advising the commission.
12.	Are there any similar requirements that subject the PPP proposal or the negotiated PPP agreement to a local veto?	No.	§§47.29.150 and 160, however, require that certain public hearings be held before the Transportation Commission approves the relevant project agreement.
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.	§47.29.090 provides generally for project review, evaluation, and selection. §47.29.170 required the commission to adopt rules to facilitate the acceptance, review, evaluation, and selection of unsolicited proposals.
14.	Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws?	Yes.	Exemption confirmed in State ex rel. Citizens Against Tolls V. Murphy, 151 Wn.2d 226, 88 P.3rd 375 (2004).
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.	Projects may be leased to private entity pursuant to §§47.29.040 and .050.
16.	Does the public sector have the authority to issue toll revenue bonds or notes?	Yes.	§47.29.250 through the state treasurer. Also under separate statute; see §47.46.010 - 47.46.257 (which, per §47.29.010, is to be phased out coincident with completion of Tacoma Narrows Bridge project).
17.	Does the public sector have the authority to form nonprofits and let them issue debt on behalf of a public agency?	No.	Precluded by §47.29.060(3) (requiring all project indebtedness be issued by state treasurer for any transportation project that is owned, leased, used, or operated by the State). §47.29.060(4) contemplates 63-20 financing, but this would be restricted to other public projects co-developed with transportation projects.
18.	Does the relevant public agency have the authority to hire its own technical and legal consultants?	Yes.	§47.29.120. However, authority of WSDOT to retain lawyers is restricted by separate laws sole empowering the State Attorney General to represent WSDOT or to retain outside legal counsel to represent WSDOT.
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.	§47.29.010.
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.	§47.29.170(5).
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?	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.	Limited to State (department and transportation commission).
25.	Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach?	Yes.	§47.29.090 provides generally for project review, evaluation, and selection. §47.29.170 required the commission to adopt rules to facilitate the acceptance, review, evaluation, and selection of unsolicited proposals.
26.	Does the relevant law specify the structure and participants for the review process involving PPP proposals?	Yes.	§47.29.180 requires that an advisory committee be formed for any project with costs of $300 million or more for the purpose of advising the 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?	Yes.	§47.29.190 requires a proposer to identify confidential, proprietary information, or trade secrets and justify why it should be kept confidential.
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.	§§47.29.040 and .140.

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