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8 CMAR, and not all states use the same definitions for velopment, energy, financial management, and the categories of construction.12 schools.17 Specifically, the survey revealed that 11 states per- As of the writing of this digest, approximately 20 mit CMAR in five areas (state building construction, K- states have some form of PPP-authorizing legislation. 12 education, higher education, local government, and Appendix C provides a compilation of some applicable horizontal nonbuilding DOT projects). It showed that in PPP legislation in each state, along with Web site links. seven states, CMAR is not allowed in any of those five As can be noted in the compilation, as well as through areas; in 32 states, it is allowed in some of those areas. several of the case studies included in this report, sev- The American Institute of Architects also produced a eral states have allowed BOT and DBOM concessions summary of state-by-state CMAR laws.13 through their PPP legislation. Broadly speaking, the most prevalent use of CMAR Florida DOT is using its PPP legislation to obtain fi- in the public sector is in the western states, which have nancing for some of its projects that would otherwise created legislation that allows the liberal use of the not be able to be developed. For example, its I-75 project process. For example: is a nearly $430 million project on a heavily-traveled section of Interstate highway that carries up to 85,000 Arizona. As noted above, Arizona has one of the vehicles per day. The project involves widening I-75 most progressive alternative project delivery statutes in from four to six lanes from Golden Gate Parkway in the United States. As is the case with DB, Arizona law Naples to Colonial Boulevard in Fort Myers. It also in- allows an agency to use CMAR to procure construction cludes interchange upgrades. This PPP is using DB as services on a qualifications basis, with price not a fac- its delivery model, with the joint venture acting as the tor. design-build-financer. The joint venture will provide Oregon. The Oregon CMAR process has a long his- "gap" financing, which allows Florida DOT to imple- tory of successful use on a variety of public projects.14 ment the project in advance of its planned program, and Similar to Arizona, it does not require price as a factor, pay out the contract monies to the design-build-financer and relies on qualifications and interviews for selecting over time.18 The design work began in May 2007, with the successful firm. completion anticipated in summer of 2010. Utah. In October 2006, the Utah DOT and the Fed- While it is beyond the scope of this digest to review eral Highway Administration entered into an agree- the attributes of PPP legislation across the country, it is ment to implement and evaluate a program of projects worth observing several major points about this proc- utilizing the Construction Manager/General Contract ess. The first issue is legislative: does the agency have contracting method. Twenty-four projects have been the statutory right to execute a contract that does not authorized under this process, and the annual report have a fixed price for construction services? Some for 2008 provides helpful guidance on the success of the states, like Virginia, have addressed this directly. Vir- program.15 ginia's Public Private Transportation Act of 1995 (PPTA) gives the Commonwealth of Virginia, acting through the Virginia DOT (VDOT), broad abilities to Public-Private Partnerships contract on terms that it deems to be in the best inter- PPPs are ests of the public. This legislative authority, for exam- contractual agreements between a public agency (federal, ple, recently resulted in VDOT executing a Comprehen- state, or local) and a private sector entity. Through this sive Agreement with Capital Beltway Express, LLC, a agreement, the skills and assets of each sector (public and venture between Transurban and Fluor, for the financ- private) are shared in delivering a service or facility for ing, design, construction, and operation of 14 mi of new the use of the general public. In addition to the sharing of high occupancy toll facilities on the Capital Beltway in resources, each party shares in the risks and rewards po- Northern Virginia. This project reached financial clo- tential in the delivery of the service and/or facility.16 sure in December 2007 and is currently under construc- PPPs are being used in a variety of industry sectors, tion. It involves an 80-year toll concession and is ap- including transportation, water/wastewater, urban de- proximately a $1.5 billion project. The PPTA was also the vehicle by which the Dulles Metrorail Project (dis- cussed in detail subsequently) was procured on a DB 12 Associated General Contractors of America Web site, basis and funded entirely by public monies. www.agc.org. Another timely PPP issue involves the requirement 13 American Institute of Architects Web site, for performance and payment bonds. Projects performed www.aia.org/advocacy/state/aias078882. under many PPP statutes are not required to follow the 14 Oregon Public Contracting Coalition Guide to CM/GC state's procurement statutes, giving the agency flexibil- Contracting, http://www.agc-oregon.org/public/resource_ ity in how it will secure performance of the private center/publications/CM_GC_Guide_05.pdf. 15 Utah DOT Annual Report on the Use of CMGC, 17 http://www.udot.utah.gov/main/uconowner.gf?n=113504002204 Id. 9311030. 18 Florida Department of Transportation (2009), 16 National Council for Public-Private Partnerships, http://www.dot.state.fl.us/financialplanning/Finance- www.ncppp.org. Work%20Program.pdf.