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Grant Anticipation Revenue Vehicles (GARVEEs)

Frequently Asked Questions

Legislative Reference

Where can I find the legislative or regulatory reference to GARVEEs and are GARVEEs being proposed for reauthorization?

The term GARVEE (Grant Anticipation Revenue Vehicle) was created by FHWA innovative finance experts. It describes a type of debt vehicle made possible by changes in the Federal-aid Highway Program. Since it is not a legislative term, it cannot be found in Title 23 of the U.S. Code, Volume 23 of the Code of Federal Regulations, or in SAFETEA-LU.

The legislative change that facilitated GARVEEs occurred with the NHS Act of 1995, which was codified in Section 122 of Title 23 of the U.S. Code. Prior to this change, states could only use Federal-aid funds to pay debt service on a very limited basis. Section 122 allows states to claim reimbursement for principle, interest, and issuance costs on all eligible Federal-aid projects, rather than claiming construction reimbursement. Since this provision is now part of the regular Federal-aid Highway Program, there is no need to have specific GARVEE provisions in SAFETEA-LU's successor.

Structure and Revenue Pledge

Can GARVEEs be used for any Federal-aid project?

Yes. GARVEEs are not limited to any type of project or funds. Any program category under Title 23 is eligible.

Who can issue GARVEEs?

Under Section 122 of Title 23, an eligible issuer is a state or political subdivision of a state or a public authority. State law may also specify authorized entities for GARVEE debt issuance.

Are GARVEEs backed by a Federal guarantee?

No, there is no Federal guarantee for GARVEEs. GARVEEs can only be backed by a pledge of the state or local government, or other issuing entity.

Does FHWA set limits on GARVEE amounts?

No, neither legislation nor administrative policy sets limits on GARVEE amounts. However, GARVEE projects must be part of an approved, fiscally-constrained STIP, and GARVEE debt service must appear on that STIP.

What is a recommended/suggested guideline on the proportion of future Federal-aid apportionments to be dedicated to repayment of GARVEE debt?

There is no official guidance or recommendation on this issue. Many states have tended to limit the percentage in some fashion, ranging from 10 to 50 percent.

Does FHWA set limits on GARVEE terms?

No legislation, regulation, or administrative policy limits GARVEE terms. The market determines what term is an acceptable risk, and over how many anticipated highway funding reauthorizations a debt instrument should span.

What is a recommended/suggested term limit for GARVEE debt?

GARVEE terms are limited by legislation, regulations, or administrative policy limits. The market determines what term is an acceptable risk, and over how many anticipated highway funding reauthorizations a debt instrument should span.

Does FHWA set limits on GARVEE interest rates and issuance costs?

No, FHWA does not set such limits, and all interest and issuance costs are eligible. State and local governments use their own procedures to ensure that interest rates and issuance costs are reasonable, based on current market conditions.ding reauthorizations a debt instrument should span.

Can GARVEEs be used for transit projects?

Any Federal-aid highway funds that could be used to pay for transit projects through the provision for flex "funds" or other funding flexibilities could also be used to repay debt instruments used to finance transit projects. Since flex "funds" are transferred to the Federal Transit Administration (FTA), their use for debt service is subject to Title 49 requirements and FTA guidelines. Not all Federal-aid highway funding categories can be used for transit, which could affect debt capacity levels and coverage ratios.

Federal-aid Matching and GARVEEs

How is the matching ratio set for GARVEEs?

The maximum Federal share of the cost of a bond issue project approved under Section 122 is the share as defined under Section 120 of Title 23. This constitutes the legal pro rata share in effect at the time of execution of the project agreement. For any bond issue, the Federal share eligible for reimbursement depends on the amount of bond proceeds applied to approved Federal-aid projects, including payment of soft costs, such as capitalized interest, issuance expenses, and credit enhancement fees. In situations where 100 percent of project costs are debt financed through one bond issue, the bond-related reimbursements may be measured on a nominal, current-year basis (e.g., 80 percent of each debt service payment will be payable from Federal-aid and 20 percent from state match.) This will simplify both State Transportation Improvement Program (STIP) planning and the calculation of reimbursement amounts and shares. However, this may not always be the case. The Federal and non-Federal share may be financed separately. For example, the Federal share may be debt financed, while the state share is funded on a pay-as-you-go basis.

Can tapering be used in conjunction with GARVEEs?

No. Tapered match (allowing the Federal share to vary over the life of the project, as long as it is ultimately the appropriate ratio) is not permitted on debt-related reimbursements.

Can I match GARVEEs with non-cash matches, such as private donations?

Yes, non-cash matches can be used as the non-Federal share of a GARVEE-financed project.

Can I match GARVEEs with toll credits?

Yes, toll credits authorized by Section 129 of Title 23 can be used as the non-Federal share of a GARVEE-financed project.

Can interest earned on bond proceeds serve as match?

Yes, interest earned on bond proceeds is considered eligible as a non-Federal match.

GARVEE Reporting in the Transportation Planning Process

How should GARVEE/GAN debt service be reflected in the STIP, metropolitan transportation plan, and TIP?

For a GARVEE- or GAN-funded project, the Federal share of the debt-related costs (e.g., interest and principal payments, associated issuance costs, and ongoing debt servicing expenses) anticipated to be reimbursed with Federal-aid funds over the life of the bonds should be designated as AC in the transportation plan/program document showing GARVEE/GAN bond proceeds as the revenue source. In the case of projects taking advantage of the new Debt Service Reserve reimbursement capability, the same process should be followed, but including immediate repayment of the debt service reserve in the first year of the debt.

How should GARVEE debt service appear on the Long-Range Plan?

The full cost of planned GARVEE projects (including interest costs) should appear on the Long-Range Plan.

What kinds of interest and issuance costs can be reimbursed?

Issuance costs include the following: underwriters discount; rating agency fees, printing, publication, or advertising expenses with respect to the bonds; all fees, expenses, and costs of registrars and paying agents; and all fees, expenses, and costs of attorneys, financial advisors, bond counsel, accountants, feasibility consultants, computer programmers, or other experts employed to aid in the sale and issuance of bonds. Credit enhancement fees include bond insurance, premiums, and letter or line of credit fees.

Can Federal-aid funds be used to reimburse the cost of reserve accounts or contingency funds?

A reserve account or contingency fund required by (or incidental to) the debt issuance and capitalized by bond proceeds is considered an eligible Federal-aid expense. The funds deposited in such an account, along with any interest earnings, must be used for project costs - either on a current basis (including interest) or as a final payment to the bondholders. They cannot be released and disbursed to any other party for any other purpose. If the reserve account is to be liquidated to make the final debt service payment, it will not be eligible for Federal-aid reimbursement. Likewise, if unused bond proceeds are applied to pay principal and/or interest, such payments will not be eligible for reimbursement.

Would bonds issued by a State Infrastructure Bank (SIB) be considered an eligible debt financing instrument? Could a state be reimbursed for principal and interest on SIB bonds?

Yes, a SIB would be an eligible debt-financing instrument, and debt service costs would be eligible for reimbursement.

Can regular Federal-aid funds and GARVEE proceeds be used on the same project?

Initial GARVEE guidance required states to choose between being reimbursed for debt service costs on a project and being reimbursed for construction costs. That provision was intended to prevent states from seeking reimbursement for both construction and for the debt service for bond proceeds that financed the construction.

Revised guidance issued by FHWA in March 2004 clarifies that both types of financing can be used on the same project, as long as only one type of reimbursement is used for each expenditure. At the time the project agreement is signed, the state will make an election to seek reimbursement for debt service and/or related issuance costs in lieu of reimbursement for construction costs. FHWA prefers that each project be reimbursed either on the basis of debt-related costs or on invoice costs (not both). However, FHWA will consider exceptions to this either/or provision, if the state provides assurance that the project costs being reimbursed from the bond proceeds can be identified and tracked. For example, the bond proceeds may used to fund a project phase or a specific activity, or be limited to a dollar amount per project.

If a GARVEE issuer receives an arbitrage penalty, is the cost associated with that penalty eligible for Federal-aid reimbursement as a project cost?

In the case of government-issued debt, arbitrage occurs when a government entity issues bonds obligating it to pay one rate of interest, and is able to invest the bond proceeds at a higher rate of interest. For example, a bond might be issued at 4.5 percent interest, but a government entity might be able to earn 5 percent interest on the bond proceeds. The resulting gain is referred to as arbitrage earnings. The arbitrage earnings on tax-exempt bonds are constrained by Federal tax laws. Arbitrage earnings that exceed limits imposed by Federal regulations must be rebated to the Federal government. Generally, a government issuer can avoid rebating interest earnings on construction bonds if it expends 10 percent of the proceeds and earnings within six months, 45 percent within one year, 75 percent within 18 months, and 100 percent within two years. The IRS exception provisions also permit an issuer to pay a penalty rather than a rebate if these schedules are not satisfied.

Any arbitrage penalty incurred by a GARVEE issue is not eligible for Federal-aid reimbursement in accordance with Federal policy, and must be covered from other sources. This exclusion from allowable costs is addressed in the March 2004 GARVEE Guidance. Specifically, 2 CFR Appendix B to Part 225 (Selected Items of Cost) (formerly OMB Circular A-87), Section 16 states that Fines, penalties, damages, and other settlements resulting from violations (or alleged violations) of, or failure of the governmental unit to comply with, Federal, state, local, or Indian tribal laws and regulations are unallowable except when incurred as a result of compliance with specific provisions of the Federal award or written instructions by the awarding agency authorizing in advance such payments."

If a state receives a premium on the sale of GARVEE bonds does it need to credit the premium back to FHWA?

The premium is the amount by which an issue's proceeds differ from the face value of the bonds. If there is a premium on the transaction, it means that bondholders bought the bonds for higher than their par amount "or face value" (e.g., they bought a $1,000 bond offering 5.5 percent interest, for $1,050). Investors might do this because the interest rate of 5.5 percent is higher than prevailing interest rates. In the bond pricing, underwriters and financial advisers might set the rates at slightly higher than prevailing market rates to ensure that the proceeds are sufficient to construct the project, so they might offer slightly higher than prevailing market rates. Different combinations of face value and interest payment may appeal differently to different investors.

FHWA and the state must be certain that proceeds generated from the sale of bonds go towards the project for which the bonds were sold. Those net proceeds would include the premium. There may be an issue with the premium if the net proceeds are more than needed to construct the eligible project. In this case, the excess might be used to cover debt service, which would reduce the Federal funds required to pay debt service.

Do states need to give FHWA credit for the investment income received from the cash balance in the construction bond proceeds account? Can the investment income be used in the construction bond proceeds account to pay construction costs?

In this case, the state does not need to give FHWA credit. Interest earned on bond proceeds is considered state funds. If a state chooses to use those funds for construction expenditures and/or payment of debt service, it can count as part of the non-Federal share required to match the Federal share of debt service.

Before a state can close out a debt service, does it have to wait until all bond sale costs associated with the project are paid?

The state does have to wait until all bonds are paid before it can close out a project. The state may wish to discuss a closing process with the Division, for example in the case where all the usual project construction closing requirements (e.g. final inspection, etc.) are satisfied, but the financial closing will still have to wait until the debt service is fully repaid.

Is it possible to obtain a Federal project number associated only with bond debt on a project that may be funded with conventional federal funding such as an earmark or formula funds?

No, a GARVEE project has to be defined like all other projects. The project must be eligible for Federal-aid funds. The bond issuance itself is not eligible for funding and accordingly the debt cannot have a project number associated with it. With a GARVEE-financed project, the only difference is that debt service, including interest and issuance costs, must be paid in addition to construction costs, which are covered by the principal.

State Infrastructure Banks and GARVEEs

How can the State Infrastructure Bank (SIB) program be used in conjunction with GARVEEs?

SIBs and GARVEEs can work together in several ways to secure financing for eligible Federal-aid projects.

  • SIB as GARVEE Lender
    Since SIB loans may be repaid with Federal-aid funds, the SIB can be the source of financing for a loan repaid with Federal-aid funds. In this case, the SIB could be reimbursed under Section 122 of Title 23 for a loan made to an eligible project. In essence, the SIB would play the same role as a commercial bank or the capital markets, providing the capital that will eventually be repaid with Federal-aid funds. Oregon's SIB uses this model extensively.
  • SIB as Credit Assistance to GARVEEs
    If a state DOT or local government instead seeks to finance a project with a GARVEE bond obtained from the capital markets, a SIB can provide a line of credit, interest rate buy-down, or other form of credit assistance to the GARVEE debt. This SIB credit assistance would effectively lower the interest rate on a GARVEE instrument. This technique could be particularly useful for local governments or tribal governments that are issuing GARVEEs, since they generally have lower coverage ratios than bonds issued by state DOTs. For example, suppose a local government received $1 million in Federal-aid funds annually, and wanted to start a project that cost $6.5 million. If the government issued a GARVEE bond at 6 percent, the annual debt service would be approximately $883,000, with a debt service coverage ratio of 1.13. With SIB credit assistance, the local government could probably obtain a higher rating, and either borrow more funds or achieve a lower interest rate.
  • SIB as Subordinate Lender
    Finally, a SIB loan that finances the same project as a GARVEE can be structured as a subordinate loan that will also assist the credit rating of the GARVEE. The GARVEE bondholders may be willing to accept lower interest rates on such a transaction, because they would be repaid before the SIB in the event of a shortfall. For example, if the local government mentioned above were able to finance a percentage of the project with a SIB loan, it would be able to increase its coverage ratio, and lower its interest rate. If the source of repayment on the SIB loan is non-Federal, it could even serve as all or part of the non-Federal share required to match the GARVEE debt service payment.

GARVEEs Issued by Other Entities

Can GARVEEs be issued by a 63-20 Public Benefit Nonprofit Corporation?

Yes, debt instruments issued by 63-20 corporations may be repaid with Federal-aid funds, as long as the bonds are issued on behalf of the state and the proceeds are used for Title 23 eligible projects.

Can GARVEEs be issued by a local government?

There is no Federal prohibition or restriction that would prevent a local government issuing a GARVEE, but local governments may face more legal and financial issues than state governments.

Legal Issues - First, the local government would need to have the authority under the laws of its state to issue debt or otherwise borrow funds. In many states, obtaining such borrowing authority requires a vote of the local governing body, state legislature, and/or approval by voter referendum in the affected area. Second, a local government would have to assure the capital markets that it has the legal authority to determine use of the Federal-aid funds that are being pledged. Such assurance might take the form of a Memorandum of Understanding (MOU) between the local government and the applicable state DOT. Even if the local government obtained such an MOU, the capital markets would probably take into consideration the history of the relationship between the state DOT and the local government, the process for allocating Federal-aid funds within that state, and the enforceability of any financial commitments under state law.

Financial Issues - Local governments might have more difficulty issuing GARVEEs backed solely by Federal-aid funds (a standalone "GARVEE") because a coverage ratio on a local GARVEE is likely to be much lower than for state debt issuance. For example, if a local government received (on average) $10 million in Federal funding each year, and proposed to issue a bond with debt service of $7.5 million per year, its coverage ratio would be only 1.33. In most cases, state-based GARVEEs can easily achieve higher coverage ratios, because of the high relative size of state Federal-aid programs to the amount of debt service. With lower coverage ratios, local governments may need backstop pledges, bond insurance, or credit assistance from the Federal or state government to achieve acceptable bond ratings and low interest rates. Programs such as state bond banks or state infrastructure banks could provide credit assistance to local government issuers.

Instead of having local governments issue their own GARVEE debt, some state governments are partnering with local governments in innovative ways. In California, the state GARVEE program issues bonds on behalf of local governments, which can seek capital funding for projects if they pledge future allocations of funding toward repayment. This provides local governments with the benefit of state bonding authority (and its bond rating). In Mississippi, the state bond bank has assisted local projects by issuing debt repaid by future Federal bridge funding.

Can GARVEEs be issued by Tribal Governments?

Under Section 122 of Title 23, Federal-aid funds, including tribal allocations from the Indian Reservation Roads (IRR) program, may be used to pay the interest and issuance costs of bonds issued to advance eligible IRR projects. While tribal governments may use Federal-aid funds to repay debt service, the Federal government does not guarantee the tribally issued bonds. The Bureau of Indian Affairs (BIA) uses the term "flexible financing" rather than "innovative financing" to describe bonding and other financing arrangements.

Example 1 - A tribal government receives an annual IRR allocation of $150,000. The tribal government could pledge this amount towards a project costing $1 million, and issue a bond with a 10-year term, assuming a six percent interest rate. The tribal government could use the bond proceeds to begin the $1 million project immediately, and pay the debt service (approximately $136,000 annually) on the bond with its future IRR allocations. The remaining amount of the annual IRR allocation could be used for other projects.

Tribal governments also may be eligible to apply to states for financial assistance through a State Infrastructure Bank (SIB) program to advance eligible IRR projects. As has been discussed in IFQ previously, a number of states have active SIB programs, ranging in size from under $100,000 to $80 million or more. These banks can provide loans, lines of credit, and loan guarantees for eligible transportation projects. The maximum term for loans is 35 years, but initial repayments do not have to begin until five years after project construction. Interest rates and exact loan terms are set by the state DOT involved, and/or by the SIB itself, if it has a separate governing body. Federal-aid funds, including IRR funds, may be used to repay these loans.

Example 2 - A tribal government's IRR allocation is $100,000, and it plans to begin a project that will cost $300,000. The tribal government could apply to the state DOT's SIB to provide them a five-year loan for the project. The tribal government would pledge to use approximately $71,000 of its IRR allocation each year to repay the loan at six percent interest. The remainder of the annual IRR allocation, or $29,000, would be available for other projects.

Example 3 - A tribal government receives an annual IRR allocation of $150,000. The tribal government could pledge this amount towards a project costing $1 million, and issue a bond with a 10-year term. The tribal government could use the bond proceeds to begin the $1 million project immediately, and pay the debt service of the bond with its future IRR allocations. If the capital markets demand a higher interest rate than six percent, the tribal government could apply to the state to use a SIB line of credit to provide additional guarantee of repayment of the bond. The tribal government could then negotiate a lower interest rate, because the SIB line of credit would be available in the event of a temporary shortfall.

Indirect GARVEEs

What is the difference between a GARVEE and an Indirect GARVEE?

A GARVEE is any bond, debt, note, or other instrument for which a state claims reimbursement for debt service under Section 122 of Title 23. The proceeds of GARVEE bonds must be used for projects that are eligible for Federal aid and that follow Federal requirements. As debt service becomes due, states bill the Federal government for the applicable Federal share of debt service (typically 80 percent) and receive reimbursement. For example, if a state issued a $100 million bond whose debt service was $12 million annually for 10 years, the state would claim reimbursement for 80 percent of $12 million, or $9.6 million, until the debt is retired. The reimbursement includes any interest and issuance costs associated with the bond.

An Indirect GARVEE is a bond whose debt service is paid from construction reimbursements from eligible Federal-aid projects, as well as other sources. While the state may pledge its Federal construction reimbursements for debt service, the reimbursements it receives are not linked in any way to the Indirect GARVEE; instead, they are made based on eligible construction expenditures on any federally eligible projects.

The construction reimbursements that a state uses to pay Indirect GARVEE debt service may be from projects that the bond proceeds paid for or from entirely separate projects. Because the construction reimbursements are not associated with a debt issuance, the state is not eligible to claim reimbursement for interest and issuance costs on Indirect GARVEEs. Indirect GARVEEs are issued under state laws and requirements, and proceeds from them do not necessarily have to be used on Federal-aid projects. However, any project that ultimately receives Federal-aid construction reimbursement must follow all Federal-aid requirements.

Why would a state issue a GARVEE rather than an Indirect GARVEE, and vice versa?

Depending on state laws, a state might be able to issue either type of vehicle. Some states might prefer to issue a GARVEE in order to claim interest and issuance costs and in order to preserve a direct link between the project and the funds used to repay its debt service. Other states may forgo the additional eligibility for interest and issuance, and issue an Indirect GARVEE because it might allow them to use construction reimbursements from a variety of projects for debt service. Some states may find it difficult to issue Indirect GARVEEs because construction reimbursements become subject to appropriation by the state legislature when received, or are otherwise restricted by state law.

In both cases, a state does not receive any additional Federal-aid through using either vehicle; it simply elects to use its Federal aid funds in different but equally legitimate ways.

Financial Management*

Division approval of GARVEE-funded Federal-aid projects via the Projects Module in the Fiscal Management Information System (FMIS):

What are the basic internal controls required prior to authorizing a GARVEE funded program (e.g., written procedures, risk assessment, employee training)? Do they differ in any way from that of executing the traditional Federal-aid program?

Except for the reimbursement process, projects funded with the proceeds of a GARVEE bond are subject to the same requirements as other Federal-aid projects. FHWA does not approve the bond issue itself, only the project to be debt-financed and the associated eligible debt service costs. It is recommended that FHWA and the State DOT enter into a MOA/MOU to describe the general procedures to process GARVEE transactions, with an appendix listing the projects to be authorized as a recipient of GARVEE bond proceeds, which can easily be updated. OIPD will review submitted MOU/MOAs for completeness and provide feedback to the division office for initial and subsequent modification(s). Detailed procedures for reviewing and authorizing GARVEE projects should be in the division's Project Authorization Review and Approval SOP as an appendix.

The State must have legislation allowing the issuance of bonds and the use of GARVEE proceeds. While FHWA doesn't approve the bond issuance, it's a good practice for the division office to be aware of the legislative requirements surrounding the program in the individual State.

If multiple projects are funded with the proceeds of a bond issue, each project would be allocated a prorated share of the debt-related costs. The State should have a process in place to properly distribute interest and financing costs throughout the projects listed in the bond indenture via a debt service schedule. Prior to the issuance of additional bonds, the State DOT and FHWA will amend all necessary attachments to the MOA/MOU with Debt Service Schedules and Project Allocations as needed to reflect the changes.

When the project is ready to be authorized by FHWA, the State should submit the debt service schedule with the project agreement request for authorization. The project must be authorized by FHWA, typically through FMIS, in accordance with normal FMIS procedures, provided that the costs associated with the bonds will be entered as Improvement Type 45: Debt Service.

At what stage of the project's authorization does debt service have to be identified in the STIP (e.g., before project authorization, before the debt sale)?

Prior to Federal authorization of a project as advanced construction (AC), the project must be included in the federally-approved STIP (23 CFR 630.705), which may occur after the issuance of debt. This holds true for any changes to the projects that are funded as GARVEE, if additional projects are added, or if there's a refunding of bonds. The STIP must continue to be fiscally constrained. The Federal share of the debt-related costs (e.g., interest and principal payments, associated issuance costs, and ongoing debt servicing expenses) anticipated to be reimbursed with Federal-aid funds over the life of the bonds should be designated as AC in the STIP showing GARVEE bond proceeds as the funding source. The State needs to document, by year, the Federal and non-Federal funds needed to reimburse the debt service costs. (GARVEE Guidance 2014, Section 4.1)

Can debt service be added to a project after the project itself has already been authorized by FHWA? If so, is this contradictory to the guidance that indicates the use of debt service has to be identified prior to project approval?

It is recommended that the determination to utilize GARVEE proceeds be before the project is authorized and a contract awarded. The project must identify the funding sources in the STIP before authorization, which includes debt service. There may be instances where the determination to use bond proceeds occurs after the project is authorized. Since GARVEE projects are authorized as AC, which is not a commitment of funding, non-obligated funds may, in limited circumstances, be authorized as debt service. The State DOT must process a STIP modification showing the utilization of debt service on the project. If the MOA/MOU lists debt service projects, this must be updated to reflect the changes prior to the project(s) being authorized in FMIS. Once the STIP amendment and MOA/MOU revision is approved, the State DOT can submit the project authorization/modification via FMIS to the division office showing the adjustment for debt service.

When modifying a project to add debt service, the only increase in funding should be to add the interest portion of the debt service payments. The principal portion of the payments should have already been accounted for in the project costs authorized. The division office may coordinate this approval with OIPD. Debt service may not be added to a project that is being paid as a regular Federal-aid project and Federal-aid may not be removed to make the project an AC project.

Once a GARVEE-funded project is authorized, based on an executed MOA/MOU and initial bond model schedule, what responsibility does the division have in its approval of modifications to GARVEE-funded project(s) throughout the life of the grant(s)? What, precisely, is FHWA approving differently from a conventional Federal-aid project?

The project should progress as a conventional Federal-aid project, just like any other AC project. The Project Allocations may be amended by the State to adjust for overruns or shortages in projects based on actual expenditures, as well as for the purpose of substituting or adding federally-eligible projects. The State will submit any Project Allocation amendment to FHWA for approval. If there are changes to the number of projects utilizing GARVEE, the MOA/MOU, if executed, should be updated to reflect the changes before any new projects or project changes are authorized by FHWA. Modifications to GARVEE projects should align with the bond indenture, debt service schedule, and STIP and where multiple (program) of projects are recipients of bond proceeds, the pro rata share of the allocable debt service payments will be reflected in the annual/biannual AC conversion and modification. Approvals should follow the agreed upon procedures, which should be outlined in the MOA/MOU (e.g., The DA and CEO may be involved when a new sale occurs, but otherwise may have delegated program approval actions.).

The GARVEE program is complex, and there may be other innovative finance techniques in use on the projects. The division offices should use their judgement in making program and project approvals and modifications, but may coordinate the approval(s) with OIPD in order to ensure the program stays within regulation and policy.

Remember the GARVEE bond is not technically federally funded, the projects are with the eligible cost of debt service allocable to the projects eligible for Federal-aid reimbursement. If any proceeds from the bond are used for ineligible activities, a proportional share of the debt service is also ineligible for Federal-aid.

The Federal share is established at the time of authorization of the project agreement and may be revised when the construction contract is awarded. If there are changes in the total cost or ineligible or unauthorized activities paid with bond proceeds, a new debt service schedule should be submitted with the project modification request showing why the total debt service has changed.

The Federal-aid project agreement may be revised when the State issues its GARVEE bonds and determines its annual principal and interest payments and any other bond-related costs. It's recommended that modifications to convert AC are limited to the debt service payments for one fiscal year at a time; AC conversions should align with the payments to be made for the fiscal year. Funds used to convert AC must directly relate to eligible projects paid for by the bond proceeds. For example, if only 50% of the project costs were eligible for NHPP funding, then the payments may only be paid by no more than the Federal share of 50% NHPP funds.

If FHWA is operating under a Continuing Resolution (CR), and the MOA/MOU requires the State DOT's first obligation of the fiscal year to be that year's debt service payments, how should the State DOT handle the obligations if there isn't enough obligation limitation available to cover the full obligation(s)?

If FHWA is operating under a CR and the bond indenture requires the initial obligation to be for debt service payments, the initial obligation should be to the extent obligation limitation is available (e.g., the Federal share of debt service payments to be made for FY 2016 total $50 million; the CR has authorized the State DOT to receive $35 million in obligation limitation. The State DOT obligates the $35 million available to the applicable projects. The second CR authorizes the State DOT to receive $100 million. The State DOT obligates the remaining $15 million to cover FY 2016's debt service payments, and then proceeds to process obligations and transfers). As obligation limitation becomes available, the first obligation should be for debt service payments. No further obligations should be made until all of the debt service payments have been incurred.

Projects that are ready to proceed and are held up by the short term CR can be authorized as AC in order to establish an eligibility date for costs incurred. Projects should not begin to incur costs without FHWA authorization in cases where GARVEE obligations are limiting other Federal-aid obligations at the beginning of the fiscal year.

What document(s) should a division be requesting of State DOT grantees as a condition of FHWA approval of modifications to GARVEE projects (e.g., debt service schedule, bond indenture)?

The approved project agreement defines the terms of the project, ensures that the project will follow all applicable Federal requirements, and the AC authorization makes the project eligible for Federal reimbursement, once AC amounts related to debt service payments have been converted to Federal funds. While each State DOT may execute the GARVEE program in a different manner, it is recommended that Division Financial Management staff review at least the bond indenture, which is to ensure the projects committed to in the issuance are what get authorized; the debt service schedule, which should accurately reflect each payment to be made, to include principal and interest/financing; the STIP reference indicating the project will utilize debt service and all future year conversions during the STIP authorized period. When a GARVEE is issued for group or program of projects, refer to the GARVEE guidance on FMIS processing for a detailed description of the modification process during the debt service schedule.

How does the project's oversight distinction [i.e., Projects of Division Interest (PoDI), State Administered, Locally Administered] impact the requirements for review in the approval of a modification to a GARVEE project?

Projects funded with the proceeds of a GARVEE bond are subject to the same requirements as other Federal-aid projects. If the project is deemed a PoDI, the division's oversight agreement should address what part(s) of the project must have division involvement. Regardless of the entity administering the GARVEE project, the State, as the recipient of Federal-aid, is responsible for ensuring that projects are carried out in accordance with Federal requirements.

What responsibility does the division have in its approval of project closeout on GARVEE-funded project(s)? Understanding that, for accounting purposes, a GARVEE project remains active until the GARVEE bonds have been fully retired (i.e., the last debt service payment reimbursement has been made) and any adjustments to the Federal share of project costs have been finalized, as well as that GARVEE bonds may be fully retired at final maturity or via early defeasance or full repayment, are there specific documents the division needs to request in order to verify this? (GARVEE Guidance 2014, Section 4.10)

The State is also required to maintain all payment and construction documentation related to the Federal-aid project for three years after final payment of the bond and project closeout. Conventional project closeout documentation will be submitted to FHWA for each project.

If the cost of the project(s) planned to be funded with the GARVEE bond proceeds is less than anticipated and excess GARVEE bond proceeds result, the issuer of the GARVEE bonds should consult with bond counsel, the bond trustee, and other advisors to ensure compliance with Internal Revenue Service requirements (GARVEE Guidance 2014, Section 5.5).

For close-out purposes, the division should obtain a letter from the DOT CFO, Director of Finance, or Director of Debt, depending on how the State is structured. While there's currently no standard format for this letter, the State should affirm that i) both the GARVEE bond and project(s) financed by the GARVEE bond are complete and ii) it does not anticipate submitting any additional requests for reimbursement relating to either the GARVEE bond or project(s) financed by the bond. The letter should be retained in a file, hard-copy or electronic, for the use of audit staff and/or successor financial management staff.

Can GARVEE funds be used to pay for construction costs, where those costs would have otherwise been paid for with the equity funds (i.e., Private Activity Bond (PAB) and Transportation Infrastructure Finance and Innovation Act (TIFIA) loan)? Some of the remaining equity proceeds will flow into the project after construction and will be utilized to pay down TIFIA and PABs.

Yes, as long as GARVEE proceeds are spent on an activity that is subject to 23 U.S.C. 122, where:

  • the State or local government requests that Federal-aid highway funds participate in debt-related costs as a 'cost of construction;'
  • with Federal reimbursements occurring when the debt-related costs are incurred; and
  • in lieu of reimbursements on a progress basis as construction costs are incurred.

If the TIFIA proceeds or PABs were utilized to pay for costs for such a project, then a State could in theory choose to redeem the PABs or TIFIA with proceeds.

Does interest that was earned on the transfers during the time they were in accounts, and before the GARVEE note payments were made, need to be returned to FHWA at the time of project closeout?

Any interest earned must be used for program purposes; this means either for GARVEE bond debt service payments or to advance some other project eligible under the same cost category as the project(s) originally financed by the GARVEE.

Division approval of GARVEE reimbursement via the Current Bill Module in FMIS:

What responsibility does the division have in its approval of periodic payment reimbursements to GARVEE-funded project(s) throughout the life of the grant(s)? Is there more to review than ensuring the payment is aligned with the debt service schedule?

States may seek Federal-aid reimbursements on authorized Federal-aid projects for eligible bond-related costs as these costs are incurred. Issuance costs, debt service payments, redemption payments for term bonds, and incidental costs (such as paying agent/trustee fees) represent costs incurred that may be reimbursed with Federal-aid funds to the extent such costs are deemed eligible, without regard to the construction status of the project. (GARVEE Guidance 2014, Section 4.8)

In determining which costs are eligible for reimbursement, the States and FHWA Division Offices will rely on established FHWA policies and Federal cost principles (2 CFR 200). FHWA reimbursements should align with the debt service schedule executed prior to Federal-aid project authorization. When converting AC, which is most likely the first transaction of the fiscal year, the amount obligated should align with the payments to be made that year. Each individual payment made throughout that fiscal year should align with that information. As with conventional Federal-aid projects, billing reviews may be necessary based on the division's risk assessment. Additional oversight may be necessary if GARVEE funds are comingled with other Federal funds. It should be noted the primary eligibility of costs associated with the bond payments is made at the time the cost is incurred on the actual construction project. Once construction is actually complete, the yearly payments should remain fairly standardized except if there is a change in bond payment terms.

It is good practice to have the State DOT indicate the amount(s) billed to individual GARVEE project(s) in order to provide the division a searchable record of GARVEE payments, and enable an expedited review/approval as aligned with the debt service schedule. This information may be contained in the e-mail notification of GARVEE billings (if applicable).

Divisions should ensure that payments made by FHWA minimize the time between receipt of Federal-aid reimbursement and debt service payment dates. Federal payments should be made to a State in sufficient time to ensure that debt service payments are made as scheduled in accordance with Cash Management Improvement Act requirements (31 CFR 205; GARVEE Guidance 2014, Section 4.8).

What document(s), if any, should a division be reviewing of State DOT as a condition of FHWA approval of payments made throughout the life of a GARVEE project(s)? Is there an existing FHWA policy or guidance document denoting reimbursement requirements relevant to a GARVEE program beyond a signed MOA/MOU and initial bond model repayment schedule?

When approving a GARVEE payment, the division office should ensure the payment aligns with the debt service payment date, including the payment amount, indicated in the bond indenture and the debt service schedule that shows what principal and interest/financing payments are made with each payment.

When Division offices are reviewing cost, they should consider allowable/ unallowable debt-service costs:

Allowable Costs
In accordance with 23 U.S.C. 122, allowable bond-related costs eligible for reimbursement include:

  • Interest payments and retirement of principal under an eligible debt financing instrument (including any capitalized interest);
  • Issuance costs and credit enhancement fees , as further described below; and
  • Any other cost incidental to the sale of an eligible debt financing instrument (as determined by the Secretary of the United States Department of Transportation). These can include on-going paying agent/trustee fees and audit costs.

Unallowable Costs

  • Costs resulting from non-Federal entity violations of, alleged violations of, or failure to comply with, Federal, state, tribal, local or foreign laws and regulations are unallowable, except when incurred as a result of compliance with specific provisions of the Federal award, or with prior written approval of the Federal awarding agency (See 2 CFR 200.441).
  • Costs identified as allowable or unallowable are not all-inclusive and FHWA may determine the status of additional cost items as they arise. Division Office should consult with OIPD on specific eligibility questions.

When a GARVEE is issued for group or program of projects, refer to the GARVEE guidance on FMIS processing for a detailed description of the modification process during the debt service schedule.

Does the project's oversight distinction impact the requirements for review in the approval of payments on a GARVEE project(s)?

Projects funded with the proceeds of a GARVEE bond are subject to the same requirements as other Federal-aid projects. The division's oversight agreement should address what part(s) of the project must have division involvement.

What questions should the division staff ask during a billing review of its GARVEE project or program of projects?

The FHWA Division Office should conduct a periodic review of the State's GARVEE bond program. Suggested questions can be found in Appendix C of the GARVEE Guidance. These reviews are beneficial to ensure that the program and projects are being administered in accordance with Federal requirements, that only costs allocable to the Federal-aid highway program are charged to Federal-aid funds and to determine if certain processes can be improved in accordance with identified best practices.

* The Center of Innovative Finance recognizes the contributions of FHWA Division Financial Management staff members Karen Damiani, Jackie Gillispie, Eric Griffith, Stephanie James, David Morvan, Jessica Patterson, Randy Rhuman and Douglas Roberts in assisting in the development of these FAQs

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