Transit Public-Private Partnerships: Legal Issues (2014)

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7 PPP contract.41 There are issues concerning whether PPPs are sufficiently transparent and whether a PPP means the loss of control of plan- ning or operational issues, such as the setting of transit fares.42 Transit agencies responding to the survey also observed that there are some inconveniences in using a PPP. A PPP may be a lengthy, compli- cated project,43 there is a need for confidentiality during the selection and negotiation process,44 and a transit agency has less control of a facility subject to a PPP.45 Although TriMet states that there were no disadvantages in using a PPP for TOD, it stated that there are “excessive” insur- ance requirements for a PPP project currently in the design phase.46 Finally, regardless of the reasons for a PPP, there seems to be a consensus that a successful PPP requires political and public support; a proc- ess for the competitive selection of a proposal and the private partner; sufficient funding; a reliable source of future revenue; a proper allocation of the risks of a PPP between or among the part- ners; and a clear understanding of and compli- ance with federal, state, and local legal require- ments, including land-use and environmental requirements. III. METHODS OF ALTERNATIVE PROJECT DELIVERY FOR TRANSIT PROJECTS AND PPPS A. A Policy Shift from Design-Bid-Build Procurement Under the traditional method of contracting— the design-bid-build method—a public transit or other public authority decides on the “need for building a new facility” or the expansion of ser- vice; decides how to pay for the project; designs or contracts for the design of the project; solicits bids for the project’s construction pursuant to the de- sign and specifications; and on completion owns, operates, and maintains the facility.47 Since 1990, 41 Rosenau, supra note 7, at 105. 42 See Mark Perlman & Julia Pulidindi, Public- Private Partnerships for Transportation Projects 4, NATIONAL LEAGUE OF CITIES, MUNICIPAL ACTION GUIDE (2012), hereinafter referred to as “Public-Private Part- nerships for Transportation Projects.” 43 La Crosse Municipal Transit Utility Response. 44 Conn. DOT Response. 45 PVTA Response. 46 Milford Transit District Response. 47 MALLETT, supra note 25, at 5. however, when FHWA first allowed state DOTs to evaluate nontraditional contracting techniques, the DOT has encouraged greater use of alterna- tive contracting.48 In 1991, the Intermodal Surface Transporta- tion Efficiency Act (ISTEA) initiated a demonstra- tion program for the use of DB and design-build- operate-maintain (DBOM) contracts in connection with FTA’s New Starts program. FTA thereafter issued guidance on the use of DB and DBOM con- tracts for the New Starts program49 and chose five projects to participate in a demonstration pro- gram.50 The Transportation Equity Act for the 48 Under FHWA’s Special Experimental Project No. 14—Innovative Contracting (SEP-14) program, FHWA authorized four methods of alternative contracting: cost-plus-time bidding, lane rental arrangements, war- ranties, and design-build (DB) contracts. In 2002, the SEP-14 program became known for the use of the term “alternative contracting” rather than “innovative con- tracting.” FHWA, Construction, Contract Administra- tion, available at http://www.fhwa.dot.gov/program admin/contracts/sep_a.cfm. However, the principal form of contracting tested by 38 states was the DB form. FHWA User Guidebook on Implementing PPPs, supra note 23, at 66. Later, FHWA’s Special Experimental Project No. 15 (SEP-15) program focused on “project delivery in the areas of contracting, compliance with environmental regulations, right-of-way acquisition, and project fi- nance.” MALLETT, supra note 25, at 15. SEP-15 permit- ted the use of nontraditional contracting methods for federal-aid highway projects. H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at X. FHWA Innova- tive Program Delivery, available at http://www.fhwa.dot .gov/ipd/p3/tools_programs/sep15_procedures.htm. States may request waivers of certain FHWA regula- tions and policies regarding a project; however, if a PPP seeks a waiver, the application must be channeled through the state DOT. Id. SEP-15 permitted “the test- ing of innovative approaches to finance, planning, envi- ronmental clearance, and right-of-way acquisition for designated projects.” FHWA User Guidebook on Imple- menting PPPs, supra note 23, at 68. 49 FTA, Interim Guidance on Design-Build Project Delivery and the FFGA Process, at 16–17, hereinafter referred to as “FTA Interim Guidance on DB and FFGA Process,” available at http://www.fta.dot.gov/ legislation_law/12305_4191.html. See MALLETt, supra note 25, at 16–17. 50 According to FTA the demonstration projects in- clude the Los Angeles Union Station Intermodal Ter- minal, Baltimore Light Rail Transit (LRT) System Ex- tensions, San Juan Tren Urbano, Bay Area Rapid Transit District San Francisco International Airport Extension, and New Jersey Hudson-Bergen LRT line. FTA Interim Guidance on DB and FFGA Process, supra

8 21st Century (TEA-21) clarified that turnkey pro- jects “could include designing, building, operating, or maintaining a transit system or operable seg- ments of a transit system.”51 In 2005, Section 3011(c) of the Safe, Account- able, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) author- ized the Secretary of Transportation to establish a pilot program for the use of PPPs in new fixed- guideway capital projects, known as “Penta-P.”52 Section XIII discusses the three projects that were selected. SAFETEA-LU also permitted regulations to be revised to allow transportation agencies to pro- ceed with certain actions prior to the receipt of final approval under the National Environmental Policy Act (NEPA).53 Under SAFETEA-LU, sub- ject to compliance with all applicable federal re- quirements, DB contracting was permitted for any capital project financed through FTA programs.54 SAFETEA-LU also authorized the inclusion of intercity bus and rail terminals for joint develop- ment.55 B. The Use of Alternative Methods of Project Delivery 1. Design-Build Of the alternative methods of project delivery, the DB and DBOM procurements are the ones utilized most frequently by the transit sector.56 The DB form also is the most common approach note 49. FTA states that the projects “were selected because they represent various technologies, levels of investment, engineering complexity, financial arrange- ments, and management structures.” Id. 51 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at X. 52 MALLETT, supra note 25, at 16–17. 53 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at IX. 54 Id. at X. 55 Mallett, supra note 25, at 16. 56 Nossaman LLP, FTA Announces Terms of the Pub- lic-Private Partnership Pilot Program to Encourage Private Investment in Transit Projects, at 2 (Jan. 31, 2007), hereinafter referred to as “FTA Public-Private 3P Program,” available at http://www.nossaman.com/ fta-announces-terms-publicprivate-partnership-pilot- program. See Public-Private Partnerships for Transpor- tation Projects, supra note 42, at 2 (stating that the DB form of procurement is the most frequently used form of alternative contracting by public transit authorities). for highway projects.57 Based on the number of projects, DBOM procurement is the second-largest category of PPP projects for transit agencies, but based on the total cost of the projects, the use of DB and DBOM contracts by transit agencies is approximately equal.58 The use of concession con- tracts for PPPs, such as for toll roads, represents the second-largest category for highway projects. Rather than providing design specifications on which contractors are solicited to bid, a transit agency in a DB procurement determines initially what it wants. The agency provides contractors with the agency’s required performance specifica- tions or outputs for a proposed project.59 Whether a design-builder is a company or a team of com- panies, a design-builder is expected to develop the most effective means for meeting the transit agency’s performance specifications.60 A DB con- tract compels a contractor “to complete life-cycle- cost analyses of all design and construction op- tions” and shifts “the risk of project quality to the private contractor.”61 A DB contract affords a con- tractor greater flexibility but imposes more re- sponsibility for a project.62 Some design-builders reportedly are willing to “guarantee” their work for a period of 5 years to as long as 20 years after delivery of a project.63 Some of the other attributes of a DB contract are: • “[T]he design-builder…assumes the risk that the drawings and specifications are free from er- ror.”64 • A DB contract helps to control schedules and costs by combining the responsibilities for design and construction in one contract.65 57 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at 1. 58 FHWA User Guidebook on Implementing PPPs, supra note 23, at 62. Of 12 major transit-related PPP projects discussed in the text, 8 were design-build pro- jects, 3 were design-build-operate-maintain projects, and 1 was a design-build-finance-operate project. See id. (exhibit 40). 59 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at 19. 60 FTA Report to Congress on PPPs, supra note 5, at 3. 61 FISHMAN, supra note 11, at 5. 62 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at VIII. 63 FISHMAN, supra note 11, at 5. 64 FTA Report to Congress on PPPs, supra note 5, at 3.

9 • When a contractor assumes the risk for the quality of a project (e.g., material and workman- ship or performance guarantees), a public partner has less responsibility for inspections and testing during the construction of the facility.66 • Construction may begin before the details of a project are finalized.67 • The “private partner is responsible for timely project completion within the specified budget.”68 • The private partner “assumes the risk of changes in labor and material costs, cost man- agement, and efficient construction practices.”69 • A DB approach may “result in cost savings, price certainty and time savings.”70 It has been argued that DB contracts have some limitations. First, the method is not neces- sarily free of subjectivity even though a design- builder may be selected because of scoring “the highest on evaluation criteria.”71 Evaluators may have a tendency to consider only contractors with the most design-build experience. Second, net worth requirements may disqualify “most contrac- tors from competing, regardless of their ability to deliver the project.”72 Third, the DB approach may “put too much emphasis on non-construction ele- ments of a proposal,” thus resulting in the exclu- sion of good but more expensive proposals.73 Numerous projects receiving grants from the FTA have relied on the DB type of procurement.74 According to FTA, “there are two non-New Start 65 FHWA User Guidebook on Implementing PPPs, supra note 23, at 25. 66 FISHMAN, supra note 11, at 5. 67 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at VIII. 68 O’Steen & Jenkins, supra note 6, at 288. 69 Id. 70 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at 3. 71 Id. at 50. 72 Id. 73 Id. 74 See discussion of pending and completed transit PPPs in App. A. See also FTA Report to Congress on PPPs, supra note 5, at 4 (e.g., the BART Extension to San Francisco International Airport; Denver Southeast Corridor T-Rex Project; Greenbush, Massachusetts, Commuter Rail; South Florida Commuter Rail Up- grades; Minneapolis Hiawatha Light Rail Transit Pro- ject; New Jersey Hudson-Bergen Light Rail Line; Oak- land Airport Connector; Reno Transportation Rail Access Corridor; and the WMATA Largo Metrorail Ex- tension). fixed guideway projects with Federal interest that have been delivered using a DB approach,” the Portland MAX Airport Extension and the Air- Train JFK.75 2. Design-Build-Operate-Maintain The DBOM is the DB method with operate and maintain responsibilities included. The DBOM method is used for toll roads, transit facilities, airports, and other infrastructure projects.76 The DBOM “may be used for new projects or to up- grade existing infrastructure” with contract terms “between fifteen to twenty-five years.”77 With DBOM procurements, a transit agency retains ownership of a project and may retain significant responsibility for oversight of the project. A DBOM contract incentivizes a contractor to de- liver a “high quality project because the contrac- tor is responsible for operating and maintaining the facility for a specified period of time after con- struction.”78 The transit partner may pay incen- tives or assess charges based on the private part- ner’s performance or based on the condition of the DBOM facility.79 Examples of projects for which the DBOM method was selected for a PPP include the Denver Eagle P3 East and Gold Rail Line Projects; the Houston North and Southeast Corridor High Ca- pacity Transit Extension Projects; and the earlier Hudson-Bergen Rail Transit Project (HBLR) in 75 FTA Report to Congress on PPPs, supra note 5, at 4. The term “non-New Starts funding” is explained by the Government Accountability Office (GAO) in its re- port to congressional committees entitled Public Transit Funding for New Starts and Small Starts Projects, Oc- tober 2004 through June 2012, at 10 (2012), available at http://www.gao.gov/assets/660/650030.pdf. The GAO report states that “[f]unds from other FTA programs provided about $185 million, or about 1 percent of total federal funding” for the period studied. Id. The report notes that [a] total of 9 of the 25 New Starts projects used non-New Starts FTA funding, either from the Urbanized Area Formula program, the Fixed Guideway Modernization formula program, or Buses and Bus Related Equipment and Facilities discretion- ary program. In addition, one project used a $280 million Transportation Infrastructure Finance and Innovation Act (TIFIA) loan to help finance the project. Id. at 10–11. 76 Public-Private Partnerships for Transportation Projects, supra note 42, at 2; Steinmann, supra note 27. 77 O’Steen & Jenkins, supra note 6, at 274–75. 78 FISHMAN, supra note 11, at 5. 79 O’Steen & Jenkins, supra note 6, at 274–75.

10 New Jersey.80 Three agencies responding to the survey selected DBOM contracting for their PPP projects. C. Other Methods of Alternative Contracting 1. A+B Contracting As described by one source, A+B Contracting, also referred to as cost-plus-time bidding, is a method of procurement that “selects the lowest bidder based on consideration of both (A) the pro- posed price for the contract bid items and (B) the value associated with the time needed by the con- tractor to complete the project.”81 One purpose of such contracting is to incentivize the “A+B con- tractor to ‘minimize delivery time for high prior- ity’ projects.”82 With incentives for early comple- tion and penalties for late completion the A+B contractor assumes the risk “of failing to meet project deadlines.”83 One agency responding to the survey reported using the A+B method for a PPP project.84 2. Construction Management/General Contractor With construction management/general con- tractor (CMGC) contracting, a public agency hires a contractor and a designer and “marries the two.”85 The approach permits the design of the project to proceed with construction expertise pro- vided by an independent firm.86 During the final stages of [the] design, the contracting agency may negotiate with the CMGC firm to obtain a price for construction. If successful, the CMGC then be- comes the prime construction contractor. If the contract- ing agency is not able to agree on a reasonable price, it still has the option of proceeding with a traditional low- bid construction contract.87 In CMGC contracting, “the project owner re- tains full control of project design throughout the design process.”88 Although “common in the verti- cal building industry,” the CMGC method is “rela- 80 FTA Report to Congress on PPPs, supra note 5, at 13. 81 FISHMAN, supra note 11, at 5. 82 Id. 83 Id. at 6. 84 PVTA Response. 85 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at 21. 86 Id. at 36. 87 Id. 88 FISHMAN, supra note 11, at 6. tively rare in the highway industry.”89 Neverthe- less, four transit agencies responding to the sur- vey reported having selected the CMGC approach for a PPP.90 3. Construction Manager at Risk With construction manager at risk (CMR) con- tracting, there are separate contracts for the con- struction manager and the design contractor dur- ing the “initial phase” of a project “as the design work progresses.”91 The project therefore is un- derway prior to the parties’ entry into a DB con- tract.92 The Miami Intermodal Center (MIC), a $2.0 billion project with the completion of the Miami Central Station expected in early 2014, is an ex- ample of the use of the CMR method.93 The method was deemed to be “best suited” for the integration of the requirements of the Florida De- partment of Transportation (FDOT).94 According to FDOT, the CMR approach is advantageous to the owner for a number of reasons. The CMR con- tract could “deliver the completed project within the project objective time frame” based entirely on qualifications, not “skewed by cost considera- tions.”95 CMR allowed FDOT to select a “stand- alone designer” based on FDOT’s architectural and engineering qualification process and af- forded FDOT the “widest latitude to select a blue chip contractor with a record of success.”96 FDOT was able to begin construction prior to design completion, centralize risk and responsibility un- der one contract, and guarantee completion of the project at the negotiated price.97 The CMR ap- proach has resulted in savings for FDOT while delivering a high quality project “through con- 89 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at 36. 90 La Crosse Municipal Transit Utility Response; Milford Transit Authority Response; PVTA Response; and SEPTA Response. 91 FISHMAN, supra note 11, at 6. 92 Id. 93 FHWA, Innovative Program Delivery, Project Pro- files, available at http://www.fhwa.dot.gov/ipd/project_ profiles/fl_miami_intermodal.htm. See Miami Intermo- dal Center (MIC), Welcome to the MIC, available at http://www.micdot.com/. 94 MIC, Construction, available at http://www.micdot.com/construction.html. 95 Id. 96 Id. 97 Id.

11 structability [and] value engineering” on a “fast tracked project delivery schedule.”98 4. Operate-Maintain A method that is getting more attention for use by transit agencies is the operate and maintain (OM) method of contracting.99 One of the simplest forms of PPPs, a long-term OM contract may be used for new or existing infrastructure. As a re- sult of changes to the federal income tax laws in 1997, discussed in Section XI.A, OM contracts have become more popular because the term of an OM contract may be as long as 20 years or even longer.100 Sections XI.A and XI.C discuss some of the tax and contractual issues presented by long- term leasing arrangements. 5. Operations, Maintenance, and Management Although public ownership and control are maintained under an operations, maintenance, and management (OMM) approach, the contract transfers all or a significant part of the manage- ment of a transit facility to a private party.101 6. Build-Own-Operate With a build-own-operate (BOO) contract, a “private partner owns the facility and is assigned all operating revenue risk and any surplus reve- nues for the life of the facility.”102 However, BOO contracts are said to be unpopular in the United States. BOO contracts arguably are not in the public interest because of the public agency’s loss of “control over how the asset is preserved or priced to the user.”103 With a BOO-type of ar- rangement, there is “not necessarily…a contrac- tual obligation to transfer the facility back to the public sector upon expiration of the useful life of the asset.”104 98 Id. 99 H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at 2. 100 O’Steen & Jenkins, supra note 6, at 273. 101 Advancing Professional Construction and Pro- gram Management Worldwide, An Owner's Guide to Project Delivery Methods, at 26 (2012), available at http://cmaanet.org/files/Owners%20Guide%20to%20Proj ect%20Delivery%20Methods%20Final.pdf. 102 FTA Report to Congress on PPPs, supra note 5, at 6. 103 FHWA User Guidebook on Implementing PPPs, supra note 23, at 12. 104 FISHMAN, supra note 11, at 7; YESCOMBE, supra note 1, at 12. In sum, as illustrated by the discussion in Ap- pendix A on 30 pending or completed transit PPPs, transit agencies primarily are using the DB, DBOM, and CMGC methods of project deliv- ery. Of the agencies responding to the survey, four selected the CMGC approach;105 three used a DBOM contract;106 one chose A+B contracting;107 one selected what it described as a design-build- operate-maintain-manage contract;108 and one agency reported using a design-build-manage con- tract for a PPP.109 Copies of some contracts and related documents provided by transit agencies are included in Appendix C. D. Alternative Methods of Project Delivery that Include Financing 1. Design-Build-Finance-Operate Alternative methods of project delivery may combine a transfer of responsibility to the private partner to arrange for or be involved in the fi- nancing of a project.110 A design-build-finance- operate (DBFO) is also known as a design- construct-manage-finance (DCMF) or design- build-finance-maintain (DBFM) type of con- tract.111 The primary use of a DBFO contract is for a new system with an average PPP term of 20 years or more with revenues generated by “direct user fees, payments from the public sponsor, or both.”112 Revenues from the operation of a facility are used “to repay the private financing and other financing” for its construction.113 The contract may provide for “performance incentives and in- clude provisions for such things as maximum rate of return, non-compete clauses, and maximum user fees.”114 Although not a transit project, a design-build- finance-operate-maintain (DBFOM) contract is being used for the Port of Miami Tunnel Pro- 105 La Crosse Municipal Transit Utility Response; Milford Transit Authority Response; PVTA Response; and SEPTA Response. 106 Conn. DOT Response; N.J Transit Response; and Response of Stark Area Regional Transit Authority (SARTA), hereinafter referred to as “SARTA Response.” 107 PVTA Response. 108 N.J. Transit Response. 109 Response of SEPTA. 110 FISHMAN, supra note 11, at 6. 111 YESCOMBE, supra note 1, at 12. 112 O’Steen & Jenkins, supra note 6, at 276. 113 FISHMAN, supra note 11, at 6. 114 O’Steen & Jenkins, supra note 6, at 276 (footnote omitted).

12 ject.115 The project is being developed as a PPP with Miami Access Tunnel, LLC (MAT), which has two finance investors, Meridiam Infrastruc- ture Finance, in which nine banks reportedly par- ticipated with 90 percent equity, and Bouygues Travaux Publics, with 10 percent equity. Addi- tional funding was provided by FDOT and by Mi- ami-Dade County.116 The partnership was struc- tured so as to transfer to the private parties a substantial part of the risks of construction, in- cluding cost overruns, and of the tunnels’ cost of operation and maintenance.117 A DBFO structure was planned for BART’s Oakland Airport Connector project in which a pri- vate consortium was “expected to finance half of the project’s capital cost, with debt service to be repaid from fare revenue generated by the pro- ject’s operation.”118 It appears, however, that BART ultimately selected a DB contract along with an OM contract for the system’s technol- ogy.119 Finally, although other PPPs may do so as well, a PPP using a DBFO may issue private activity bonds, a topic discussed in Section VIII.B of the digest.120 2. Design-Build-Finance-Operate-Maintain The DBFOM approach adds a financial compo- nent to the DBOM method of contracting and may permit “lifecycle cost savings” by undertaking a project prior to increased costs for a project.121 Both the DBFO and DBFOM methods are used to attract private capital and to transfer financial risk to private interests. Revenues generated by 115 FHWA, Innovative Program Delivery, Project Pro- files, Port of Miami Tunnel (expected completion in 2014), hereinafter referred to as “Profile—Port of Miami Tunnel,” available at http://www.fhwa.dot.gov/ipd/ project_profiles/fl_port_miami_tunnel.htm. 116 O’Steen & Jenkins, supra note 6, at 276. 117 Id. 118 FTA Report to Congress on PPPs, supra note 5, at 11. 119 See § XIII.B of the digest. 120 Steinmann, supra note 27. 121 A May 2013 study “found little direct information about the use of [lifecycle cost analyses (LCCAs)] spe- cifically for P3 projects” and concluded that “it is un- clear whether consultants have a formal LCCA method- ology for estimating such costs.” Minnesota Department of Transportation, Transportation Research Synthesis, The Use of Life-Cycle Cost Analysis to Evaluate Public- Private Partnerships, at 1 (May 2013), available at http://www.dot.state.mn.us/research/TRS/ 2013/TRS1304.pdf. the completed project, taxes, or other funds may be used to repay private investors.122 There have been more DBFOM projects in re- cent years “because of limits on the amount of tax- exempt bonds that can be issued by state entities” and because of the availability and use of the other financing techniques discussed in Sections VIII, IX, and X of the digest.123 An example of PPP procurement using a DBFOM contract is the Den- ver Eagle P3 East Rail and Gold Rail Line pro- jects. In June 2010, Denver Transit Partners was selected to design, build, finance, operate, and maintain the East Rail Line and other Eagle P3 elements under a 34-year concession contract.124 3. Design-Build-Finance-Operate-Maintain- Transfer The design-build-finance-operate-maintain- transfer (DBFOMT) approach is not common in the United States but was an option considered for the Dulles Greenway project, a toll road in Virginia near the separate access highway to the Washington-Dulles International Airport. The Greenway was constructed pursuant to a DBFOM contract.125 4. Build-Operate-Transfer The build-operate-transfer (BOT) method of procurement is “similar to the DBFO approach except that the contractor retains ownership of the facility after construction and during the op- erating and maintenance phase of the project.”126 As noted with a BOO type of contract, the facility that is constructed is not necessarily transferred to the public partner at the end of the useful life of the facility. One reason for a BOT type of pro- curement is that the contractor “accepts all reve- 122 FTA Report to Congress on PPPs, supra note 5, at 6. 123 FISHMAN, supra note 11, at 7; YESCOMBE, supra note 1, at 12 (stating that with a BOT contract the pri- vate sector is the owner during the term of the contract, after which time the public sector becomes the owner). 124 See RTD, FasTracks: Gold Rail Line, available at http://www.rtd-denver.com/FF-GoldLRT.shtml, and RTD, FasTracks: East Rail Line, available at http://www.rtd-denver.com/FF-EastLRT.shtml. 125 FHWA, Innovative Program Delivery, Project Pro- files, Dulles Greenway, available at http://www.fhwa.dot.gov/ipd/project_profiles/va_dulles_ greenway.htm. 126 FISHMAN, supra note 11, at 7. The BOT is also known as the build-own-operate-transfer (BOOT); YESCOMBE, supra note 1, at 12.