Key issues that public agencies must consider in conducting a P3 project procurement are structuring the agreement, conducting a fair and competitive procurement process and negotiating a final agreement that is transparent and protects the public interest.
Model Contract Guides:
FHWA encourages States, transportation agencies, and other public entities to use these Guides as a resource when developing their own Concession Agreements.
This guide presents key concepts for the structuring and development of legal contracts for availability payment-based highway P3s. It is part of a broader effort by FHWA to promote understanding of P3 transactions, which includes the Core Toll Concessions P3 Model Contract Guide. This guide is designed to provide industry-standard concepts, relevant common tools and mechanisms, and situational examples applicable to availability payment-based P3 transactions, and follows a structure similar to the guide on toll concessions.
This chapter on Labor Best Practices is recommended by the U.S. Department of Labor, and discusses labor provisions recommended by the U.S. Department of Labor for all P3 concession agreements, following a collaboration with U.S. DOT, regardless of source of funding (federal, state, or private) or form of compensation (user tolls or availability payments).
This addendum to the Core Toll Concessions Contract Guide adds 20 chapters to the Core Guide's 8 chapters.
This Guide presents key concepts for the structuring and development of legal contracts for highway transportation P3s in the U.S. Required of FHWA by the MAP-21 transportation authorization legislation, the Guide illustrates how P3 contracts are developed and structured and explains their major provisions. The Guide is part of a broader effort by FHWA to promote understanding of P3 transactions, which includes a parallel document on availability payment contracts used in some P3 transactions. This Guide is designed to provide industry-standard concepts, relevant common tools and mechanisms, and situational examples applicable to P3 transactions.
MAP-21 required FHWA to develop standard model P3 contracts for the development, financing, construction, and operation of transportation facilities. On January 16, 2013, FHWA held a listening session for public project sponsors, consultants, private sector contractors, financing institutions, union representatives, concessionaires, and other organizations involved in project development; and members of the general public to provide input as it initiated development of these contracts. Topics discussed included: the design of the model contract template; the scope of the model contracts; and specific provisions included in the model contracts.
This document provides a summary of FHWA's responses to the 133 comments it received on the draft Core Toll Concessions Model Contract Guide it published on February 6, 2014, as well as further clarifications made to the final version of the Guide. The majority of the comments focused on the terms of the concession agreement presented in the Guide including terms relating to tolling regulation, benefit sharing, supervening events, changes in equity interest, changes in law, defaults, early termination, and handback. A minority of comments addressed the desirability of P3s as a matter of public policy.
This paper highlights some key tax-related principles of public-private partnership (P3) structures in the U.S. for both public and private sector participants. The report focuses on key considerations for the public sector at different levels of government and different types of private sector entities. Such key considerations include the distinction between direct and indirect taxes in the context of transportation concessions, the choice of legal entity and other investor-specific tax considerations, and applicable state and local income/franchise taxes relevant to P3 transactions. The report also details tax considerations for transportation concessions, for both the toll concession and the availability payment concession. It makes general observations about the tax implications of each structure. The intended audience of this report is policy and decision makers who are involved in the delivery of transportation infrastructure.
Public agencies can maximize opportunities for innovation when they allow the private sector reasonable flexibility to create efficient solutions while managing associated risks. Public agencies can provide this flexibility to stimulate innovations by specifying outcomes that align with the objectives of project stakeholders rather than mandating means and methods in their request for bid proposals. This paper discusses how a public agency can stimulate innovations that generate value by using performance requirements for design and construction of P3 projects.
This report identifies best practices in the use of P3s where private sector concession companies design build finance operate and maintain new highways and other transportation improvements. The report was prepared by U.S. DOT to describe how public agencies can best work with the private sector to implement new transportation improvements. The document is organized around the following phases in implementing and operating P3 projects: legislation and policy, project development, procurement, and performance monitoring and oversight.
This guidance describes Federal-aid stewardship and oversight practices for P3 projects. Differences in the procurement, construction and financing of P3s vis-à-vis traditional Federal-aid projects raise important issues for FHWA stewardship. The guidance describes FHWA activities when a state DOT—or a local public agency for which the state DOT is responsible—allocates to a private partner the long term obligation for some combination of designing, financing, constructing, operating, and maintaining a highway project.
In June 2001, a team of federal, state, contracting, legal, and academic representatives traveled to Portugal, the Netherlands, France, and England to investigate and document alternative contract administration procedures for possible implementation in the U.S. The scan team discovered that European highway agencies appear to be better at exploiting the efficiencies and resources that the private sector offers, through the use of innovative financing, alternative contracting techniques, design-build, concessions, performance contracting, and active asset management. European agencies have created contracts that focus on the users, while seeking to allocate risk appropriately and establish an atmosphere of trust in the implementation of procedures.