Header graphic for print

Infra Insight Blog

Law & Policy

“DRIVE, He Said[1] ”—But When?? Congress ducks new long term transportation funding bill and adopts a three-month extension of MAP-21 instead

Posted in Legislation

Hopes  that that the Congress would pass S. 1647, the Developing a Reliable and Innovative Vision for the Economy Act (DRIVE Act),  a six-year, $478 billion transportation funding reauthorization bill before the August recess have, like so many times before, come to naught.  Instead we get a three month extension of the current transportation funding and authorization law, MAP-21, that will provide $8 billion to allow current project funding and implementation to continue.

The three-month extension, H.R. 3236, the Surface Transportation and Veterans Health Care Choice Improvement Act, passed out of the House on Wednesday by a vote of 385-34.  Senate Majority Leader Mitch McConnell, R-Ky, committed to take up the short term funding extension in the Senate before the recess and to continue debate on its long term version of a reauthorization bill with the goal to have a bicameral conference in September to resolve issues. The Senate acted on Thursday afternoon, passing the extension by a vote of 91-4.

In addition to the $8 billion in funding for the Highway Trust Fund — the same amount that had been in the previous five-month extension — the short-term bill also includes more than $3 billion in emergency funding to prevent a shortfall that may have forced several U.S. Department of Veterans Affairs hospitals to shutter temporarily.

The three month extension was necessary to avoid expiration of MAP-21, scheduled to expire unless extended or replaced by this Friday.  The DRIVE Act as proposed by the Senate Environment and Public Works Committee contains an amendment that would reauthorize the Export-Import Bank, whose charter was allowed to expire at the end of June.  However House Majority Leader Kevin McCarthy, R-Calif. has expressed the view that a DRIVE Act bill with such a provision would be DOA in the House.

Funding the DRIVE Act remains an open issue.  Current federal gas tax revenues generate about $35 billion a year for the Trust Fund, about $10 billion a year shy of the amount needed to fund the long term bill.  Among options being considered is a package of offsets totaling $47 billion or so that would augment the fund for at least three years. Some of the proposed offsets, such as a proposal to sell off 100 million barrels of oil in the Strategic Petroleum Reserve, have already met with opposition, however.

The Senate, prior to voting on the extension bill, also approved its version of   the DRIVE Act bill on Thursday by a vote of 65-34.  The House is expected to craft its own version of the long term bill after the recess, which will be harmonized, we hope, with the Senate’s version through the conference process.

[1] (1971). Directed by Jack Nicholson, starring William Tepper, Karen Black, Michael Margotta.

Presidio Parkway Opens in San Francisco

Posted in Bridges, Design-Build, Social Infrastructure, Tollroads/ Turnpikes/ Managed Lanes, Tunnels

The long-awaited Presidio Parkway opened for the first time to Bay Area motorists on July 12th, ahead of schedule and to local and national praises.

The $1.1 billion Presidio Parkway replaces Doyle Drive – an outdated and seismically deficient viaduct – as San Francisco’s main connection to the Golden Gate Bridge.  The new 1.6-mile, six-lane roadway tucks elegantly into the natural contours of the historic Presidio of San Francisco, and enhances transit, pedestrian and bicycle access within the national park area.  The Presidio Parkway has received numerous honors, including awards for design, public outreach, historical renovation and innovative project delivery.

The Presidio Parkway is important in California because it is the only project delivered under the state’s revived public-private partnership (P3) law, which in 2009 authorized Caltrans and regional transportation agencies (under Streets & Highways Code Section 143) to enter into an unlimited number of P3 projects without certain restrictions that previous laws had imposed.

The Presidio Parkway was procured jointly by Caltrans and the San Francisco County Transportation Authority using California’s first availability payment contract for a transportation project.  Under the contract, between Caltrans and Golden Link Concessionaire (GLC), GLC is responsible for delivering and operating the project using the design, build, finance, operate and maintain (DBFOM) model.  In exchange for providing these services, GLC receives a construction milestone payment (payable shortly after the project opens to traffic) and a 30-year stream of availability payments to cover its costs to finance, operate and maintain the project plus a reasonable return on equity.

Availability payment P3s gained traction in the U.S. over recent years, as cash-strapped government entities searched for innovative ways to deliver much needed infrastructure to their constituents.  These deals are attractive because they can offer significant advantages over traditional project delivery methods, including freeing up public funds for use on other projects, achieving expedited delivery schedules, and shifting to the private sector the risks of financing, design, construction, operation and long term maintenance.

Despite California’s multi-year multi-billion dollar shortfalls in highway transportation funding, however, the state has been slow to use its broad P3 authority for highway projects.  Some market observers attribute this to the effects of the last financial crisis and considerable in-state political opposition to P3s, which contributed to the lapse in 2003 of the state’s previous P3 statutory authority.

The Presidio Parkway is currently used as a case study by the USDOT’s Build America Transportation Investment Center (BATIC), which serves as a one-stop shop for state and local governments, public and private developers and investors seeking to utilize innovative financing strategies for transportation infrastructure projects.  P3 proponents are hopeful that a Presidio Parkway success story will reinvigorate California’s appetite for highway P3s, before the existing statutory authority expires at the end of 2016.

For more information on the Presidio Parkway and other US transportation P3 projects, visit BATIC’s website at http://www.transportation.gov/buildamerica.

Toll Road Use on the Rise

Posted in Tollroads/ Turnpikes/ Managed Lanes

Drivers in the U.S. are seeing the benefits of toll roads, according to a new report published by the International Bridge, Tunnel and Turnpike Association (IBTTA).   The 2015 Report on Tolling in the United States (June 30, 2015), indicates that U.S. drivers took 5.7 billion trips last year on toll roads, reflecting a 14% increase over the last four years.  The construction of new toll roads is also on the rise and thus may be contributing to the steady increase in toll traffic.

According to the Federal Highway Administration, the number of toll road miles in the U.S. increased from about 5400 in 2011 to almost 6000 in 2013.   Toll roads and crossings are now located in 34 states and Puerto Rico, generating a total of $13 billion in toll revenue in 2013, which represents about 5% of all highway revenues in this country, according to the IBTTA report.

One of the factors cited by the report for the growth in toll roads is the increased use of new technology, such as all-electronic tolling, that allows drivers to avoid traffic congestion without waiting in line or stopping at toll booths to pay the toll.   According to the report, there are now 37 million electronic toll accounts in the U.S., which is an increase of 20% in the past five years.  Last year, Virginia officials joined the ranks of new technology adopters and announced that the state was converting its coin basket “exact change” lanes to E-ZPass only on the Dulles Toll Road.

Another possible reason that more drivers are using toll roads is the safety factor.  The data provided in IBTTA’s report suggests that the fatality rate on toll roads is about one-third that of all U.S. roads, with 0.50 fatalities on toll roads per 100 million vehicle miles traveled, compared with an average of 1.47 fatalities per 100 million vehicle miles traveled on all U.S. roads.  According to the report, the difference in safety may be due in part to the fact that most toll roads are centrally operated from modern operations centers linked to dedicated maintenance, emergency response and police services.

Although there are still a significant number of those opposed to toll roads in this country, the IBTTA report suggests that there is a growing appetite for more tolling as federal highway funding dries up and legislators search for other ways of paying for safe, reliable transportation facilities.

Procurement Issues: One-on-One Meeting Procedures

Posted in Design-Build, PPPs

These ladies know how to get things doneExperience with innovative procurements indicates that holding one-on-one meetings with proposers is beneficial whenever selection is based on a “best value” evaluation of competitive proposals—whether the procurement contemplates selection based on initial proposals or whether selection will be made following discussions and receipt of revised proposals.  Some agencies are unaccustomed to holding confidential meetings with proposers and we are often asked for information about best practices for these meetings.  This blog discusses the benefits of such meetings and issues to be considered by the procuring agency in establishing procedures for these meetings.

  1. Benefits of One-on-Ones.  We have heard from proposers that one-on-one meetings gives them an enhanced understanding of the owner’s goals and the project needs, enabling them to submit better proposals.  The ability to participate in such meetings is critical when a proposer is offered the latitude to include alternative technical concepts (“ATCs”) in its proposal.   Holding one on one meetings also helps to level the playing field for firms that have not previously had an opportunity to work with the project owner.  Benefits to the owner also include the ability to improve the quality of the procurement package based on comments from proposers, and to gain a greater understanding of how proposers view the project requirements and risks.Use of one-on-one meetings is particularly helpful when the procuring agency is using a project delivery method for the first time, and must make decisions relating to the procurement and contract without the benefit of past experience with similar projects.  Even when the agency has past experience, meetings can still be beneficial, since every project is different, and proposers on the new procurement may not have had the opportunity to participate in meetings for previous projects.
  2. Agencies Using One-on-Ones.  Federal agencies procuring contracts under FAR 15 routinely hold one-on-one meetings with proposers during the pre-proposal period.  FAR § 15.201(a) specifically encourages agencies to engage in such meetings to exchange information with potential offerors, with the stated goal of improving the understanding of all participants regarding both the owner’s requirements and industry capabilities.  According to FAR § 15.201(b), this process allows potential offerors to judge whether or how they can better satisfy the owner’s requirements and enhances the owner’s ability to obtain quality supplies and services at reasonable prices.  It also increases efficiency in proposal preparation, proposal evaluation, negotiation, and contract award.  Section 15.201(c) notes that an early exchange of information helps to identify and resolve concerns regarding the acquisition strategy, the feasibility of the requirement, the suitability of the proposal instructions and evaluation criteria, the availability of reference documents, and any other industry concerns or questions.”One-on-one meetings are also commonly used in design-build and public-private partnership procurements by state and local agencies.  Requests for proposals (“RFPs”) issued by the California Department of Transportation (“Caltrans”), Florida Department of Transportation, Texas Department of Transportation and many other agencies contemplate one-on-one meetings with the shortlisted proposers.  These meetings are particularly important where the RFP allows proposers to submit ATCs since the proposers need to receive feedback on such concepts before deciding whether or not to invest time and effort to incorporate them into the proposal, and proposers are highly concerned about preserving confidentiality of their proprietary ideas.
  3. Procedures for One-on-Ones.  Since one-on-one meetings often involve provision of information and feedback by the project owner to the proposers, it is important to ensure that no proposer gains an unfair advantage through these meetings.  Our firm generally recommends that the project owner’s contracting officer (or other designated individual) be given responsibility for attending all one-on-one meetings and keeping track of information provided to the teams, to ensure that all teams receive the same information.

The guidance provided by FAR 15 may be helpful to procuring agencies establishing procedures for one-on-one meetings.  According to FAR § 15.201(c)(4), meetings with potential offerors involving potential contract terms and conditions should include the contracting officer, and after release of the solicitation, the contracting officer must take a more active role in any exchanges with potential offerors.  The FAR follows a clear equal treatment rule.  According to FAR § 15.201(f), when specific information about a proposed acquisition that would be necessary for the preparation of proposals is disclosed to one or more potential offerors, that information must be made publicly available as soon as practicable, but no later than the next general release of information, in order to avoid creating an unfair competitive advantage.  However, FAR § 15.201(f) also states that information provided to a potential offeror in response to its request may not be disclosed if doing so would reveal the potential offeror’s confidential business strategy.

Agencies may also look to language in RFPs issued by other agencies in setting up procedures for one-on-one meetings.  The RFP for TxDOT’s Harbor Bridge Project offers one such example, stating:Harbor Bridge TxDot

  • One-on-one meetings will be held with Proposers to discuss issues and clarifications regarding the RFP and Proposer’s ATCs.
  • TxDOT will not discuss with any Proposer any Proposal or ATC other than its own.
  • Proposers shall not seek to obtain commitments from TxDOT in the meetings or otherwise seek to obtain an unfair competitive advantage over any other Proposer.
  • No aspect of these meetings is intended to provide any Proposer with access to information that is not similarly available to other Proposers, and no part of the evaluation of Proposals will be based on the conduct or discussions that occur during these meetings.
  • Persons attending the one-on-one meetings will be required to sign an acknowledgment regarding the rules applicable to the meetings, and each Proposer will be required to identify all participants from the Proposer whether attending in person or by phone.
  • Proposers may ask questions and receive informal responses during the one-on-one meetings, but may not rely on responses received during the meetings.
  • TxDOT reserves the right to disclose to all Proposers any issues raised during the one-on-one meetings, except to the extent that TxDOT determines, in its sole discretion, such disclosure would impair the confidentiality of an ATC or would reveal a Proposer’s confidential business strategies.

It has become a standard practice for innovative procurements to include confidential one-on-one meetings with proposers.  Owners engaging in such meetings should adopt procedures to ensure that relevant information provided to one proposer is provided to all of the proposers, and to ensure that confidential business information discussed in the meetings is not inadvertently passed on to other proposers.


Financing and an Extended Lease Term Now Required For Enforceable Lease-Leasebacks in California

Posted in Design-Build

On June 1, 2015, a California Court of Appeal held that in order for a lease-leaseback arrangement to be enforceable, the lease must be “genuine”, containing both a financing component and a lease term that extends beyond the construction period (Davis v. Fresno Unified School District, et al. (2015) __CalRptr.3d__ [2015 WL 3454720].)


In 2012, the Fresno Unified School District (District) entered into a negotiated agreement utilizing the lease-leaseback project delivery method for the construction of improvements at a District middle school.  The District leased the project site to the contractor for a nominal amount through a site lease (the lease).  The contractor then constructed the project on the site and, during the construction period, purported to lease the site back to the District through a facilities lease (the leaseback).  The total of the facilities lease payments equaled the cost of construction, and were paid monthly based of the progress of the construction work.  Once the construction was complete, both leases terminated, and the facilities were handed over to the District.  Plaintiff Stephen Davis, a taxpayer, filed a lawsuit against the District and the contractor, challenging the noncompetitive contractual arrangement and contending, in relevant part, that the arrangement was invalid because it did not satisfy the statutory criteria for a lease-leaseback.


The Court of Appeal held that the exception to the competitive bidding requirement in section 17406(a) of the California Education Code only applies if a lease-leaseback is “genuine,” meaning that it includes both a financing component and a lease term during which the District uses the improvement (that is, a lease term beyond the construction period).  The rationale offered by the court was that the primary legislative intent behind the exception to competitive bidding is to provide a source of financing for the construction of public schools, enabling school districts to avoid the constitutional debt limit while making payments over an extended period.

In addition, the court noted that the performance of preconstruction (e.g., consulting) services may disqualify a contractor from securing the lease-leaseback contract itself on conflict of interest grounds.


Lease-leasebacks should include provisions which would avoid the result in the Davis case, specifically, by employing a lease as a tool to finance the project (rather than a tool to merely pay for construction), and by providing for a lease term that extends beyond the construction period.  Providing for an extended lease term may aid districts in resolving some troublesome issues associated with the completion of traditional construction projects, such as repair of defects and performance of warranty work generally.  However, it may be that the upshot of the Davis case is that districts will look to other delivery methods, such as the design-build delivery method, rather than lease-leaseback, when they want to select a contractor on factors other than low price.

IRWA Professionals Keenly Interested in Design-Build Issues

Posted in Design-Build

Identifying and allocating the risks associated with right-of-way acquisition in design-build projects was a hot topic for the standing-room only crowd at last week’s annual Education Conference of the International Right of Way Association in San Diego, California.  Nossaman litigation/eminent domain partner Artin Shaverdian hosted a panel on “Design-Build Projects and Right of Way Acquisition: Benefits, Challenges and Pitfalls.” Questions from the audience during the interactive session focused on the various approaches that agencies have taken to allocate responsibilities for right-of-way acquisition and utility relocation, and the related issue of allocating liability for right-of-way and utility relocation related delays.  The panel described the various risks unique to design-build, and the range of approaches taken, from the owner’s total retention of responsibility and risk associated by guaranteeing access to the design-builder by a particular date (e.g., Utah DOT’s I-15 Project), to transferring almost total responsibility and risk to the design-builder (e.g., SCDOT’s US Route 701 Bridge Replacements over Yauhannah Lake, Great Pee Dee River, and Great Pee Dee Overflow Project).  Alternative Technical Concepts and Value-Engineering Change Orders were also a major topic of interest.  The panelists described their individual experiences in how these concepts have been used to great benefit.

A show of hands from the audience indicated that about a third of the attendees had some experience with handling right-of-way acquisition in the design-build context for their respective organizations, and many indicated a need for enhanced processes for coordination and communication among the many different disciplines involved in design-build projects.  The panel emphasized that a successful design-build project requires that the right-of way team be involved from the early stages of project development, and there must be regular, systematic communication among all parties involved in the process.
Joining Artin on the panel, Mark Lancaster, right of way manager for the Riverside County Transportation Commission, brought his perspective gained from successful handling of the complex right-of-way acquisition process for the SR-91 Corridor Improvement Project that obligates the RCTC to deliver right-of-way access to the design-builder pursuant to an aggressive construction schedule. Joey Mendoza of Overland, Pacific and Cutler, Inc., provided insight on his firm’s best practices in coordinating the design-build right-of-way and utility relocation processes, and developing  technical requirements.  Also joining the panel was Nossaman infrastructure partner Donna Brady, who identified the various risks involved with right-of-way in design-build, and described how the owner’s right-of-way staff, technical advisors, and legal counsel work together to develop a comprehensive set of detailed RFP documents, in a manner consistent with the owner’s philosophy and goals for the project.  Ms. Brady is a co-author of a soon-to-be published NCHRP Study of the liability of design-builders for design, construction and acquisition claims.

Service Begins on Houston METRO Green and Purple Lines

Posted in Design-Build, Rail and Transit

Houston residents enjoyed free rides on Saturday, May 23, 2015 as part of the Metropolitan Transit Authority of Harris County (METRO’s) opening of the Green (East End) and Purple (Southeast) light rail lines.  The two new lines are part of an approximately $1.22 Billion expansion of METRO’s existing light rail system which also includes a 5.3 mile extension to the Red (North) line that began service in December 2013.  With the addition of the two new lines, Houston’s light rail transit system increases from 12.5 miles to 23 miles.

Since the opening of the Red Line extension, from the University of Houston Downtown to Northline Commons, its ridership has exceeded expectations and continues to grow.  March light rail ridership was 12.5 percent higher than March 2014, while overall bus ridership dropped by 3 percent. Even accounting for bus lines the train replaced, rail is carrying more riders, and its expansion north has meant more people can make direct trips downtown and to the Texas Medical Center.

The Green Line currently runs from the east side of the downtown Theater District to the BBVA Compass Stadium with plans to open additional stops extending the line further to the east in 2016.  The Purple Line runs from downtown to Texas Southern University and the University of Houston, which will give both universities’ growing student populations access to downtown businesses and eateries. Together, the two new lines add connections from the theater and nightlife districts downtown to Discovery Green, the George R. Brown Convention Center, Toyota Center, Minute Maid Park, Dynamo Stadium, the East End, University of Houston, Texas Southern University, MacGregor Park and Palm Center. With the new lines providing more access and additional stops, METRO’s light rail ridership is expected to continue to grow.Houston METRO

North Carolina Achieves Financial Close on State’s First Highway Public-Private Partnership

Posted in PPPs, Tollroads/ Turnpikes/ Managed Lanes

asdfNorth Carolina, acting through the North Carolina Department of Transportation (NCDOT), reached a major milestone on May 20, 2015 when financial close was achieved on the I-77 Express Lanes Project – the first highway public-private partnership in the state.  The project, with a design and construction cost estimated at approximately $591 million, will add 26 miles of tolled, express lanes along the existing I-77 corridor in the Charlotte region.  The financing package includes $100 million of private activity bonds and a $189 million TIFIA loan from the U.S. Department of Transportation, all of which are to be repaid by the project’s developer, I-77 Mobility Partners.  The developer will also invest approximately $248 million in equity and NCDOT, the project’s owner, will contribute approximately $95 million in public funds directly into the project.

The developer will design, build, toll, operate and maintain the express lanes for 50 years after construction and will assume the risk if toll revenues do not meet projections.  The developer is comprised of Cintra Infraestructuras, S.A. and Aberdeen Global Infrastructure Partners II LP, as equity investors, and the design-build contractor is Sugar Creek Construction LLC, a company affiliated with W.C. English Incorporated and Ferrovial Agroman, S.A.

A unique feature of the project is a contractual provision that enhanced the creditworthiness, and facilitated the financing, of the project.  Known as the Developer Ratio Adjustment Mechanism (DRAM), this contractual provision afforded contingent protection to lenders if the developer was unable to meet its debt service payment obligations due to insufficient revenues.  Under the DRAM, if the projected total debt service ratio for the next forecasted debt service payment fell below a ratio of 1:0:1.0, then NCDOT, subject to certain limitations and conditions, would make payments to the developer for the benefit of the lenders to cover the shortfall.  In no event could the DRAM payment exceed $12 million in any year or $75 million in the aggregate.   This “safety net” for lenders, which lasts until final maturity of the TIFIA loan, was a key factor enabling the project to achieve investment grade ratings.

According to NCDOT’s press release, the project will provide immediate and long-term traffic management solutions within three years after the start of construction, avoiding piecemeal improvements to the I-77 corridor that would have taken two decades using traditional funding sources.

The Texas Department of Transportation and Lane-Abrams Joint Venture Reach Agreement on the State Highway 360 Project

Posted in Design-Build

On May 15, 2015, the Texas Department of Transportation (TxDOT) and Lane-Abrams Joint Venture  (DB Contractor) entered into a design-build contract (DBA) and associated comprehensive maintenance agreement (COMA) for the approximately $300 million SH 360 Project (the Project).

Pursuant to the DBA, DB Contractor will design and construct and potentially maintain approximately 9.7 miles of improvements to SH 360 consisting of two toll lanes in each direction from approximately Green Oaks Blvd/Kingswood Blvd to US 287, in addition to frontage road and intersection improvements.  The Project also includes grade separation of the US 287 northbound and southbound main lanes with the SH 360 frontage roads.  The Project includes additional potential option work, which would complete the ultimate improvements at nine cross streets along the project right of way.  At TxDOT’s option, DB Contractor will perform comprehensive maintenance services under the COMA, including routine maintenance, capital maintenance and incident management, for up to three five-year terms after construction is complete.

Lane-Abrams JV was one of four proposers that submitted a Proposal for the Project.  Lane-Abrams JV is a joint venture consisting of Lane Construction Corporation and J.D. Abrams.  The major non-equity and other team members of the Lane-Abrams JV team include:

  • AECOM Technical Services, Inc.
  • Blanton & Associates, Inc.
  • CSJ Utility Coordinators, LLC
  • Fugro Consultants, Inc.
  • Hayden Consultants, Inc.
  • Infrastructure Corporation of America
  • K Strategies Group, LLC
  • Michael Baker Jr., Inc.
  • Pinnacle Consulting Management Group, Inc.
  • Rios Engineering, LLC
  • Rodriquez Engineering Laboratories, LLC
  • SE3, LLC

The parties anticipate construction to begin in late 2015. The Project, which is being constructed in collaboration with the North Texas Tollway Authority (NTTA), is scheduled to be completed in the fall of 2017.

Cities and State Legislature Organizations come together in Washington to Tout P3s during Infrastructure Week, 2015

Posted in News

As part of Infrastructure Week, 2015, several interested organizations banded together for an afternoon meeting on Monday, May 11, that focused on public-private partnerships as a way out of the infrastructure crunch.  Projects, big and small, stand to benefit from engaging the private sector to solve an array of infrastructure challenges.  The event was hosted by the Pew Charitable Trusts, and moderated by Cleveland City Councilman Matt Zone, who is also the 2nd Vice President of National League of Cities (NLC).  Art Smith, President of the National Council for Public-Private Partnerships (NCPPP) gave a primer on P3s, followed by perspectives from private equity investment, risk management professionals and engineering consultants, all of whom presented case studies on P3 successes.  Indiana State representative Ed Soliday presented the current state-level P3 legislative landscape, applauding the flexibility in Georgia’s most recent P3 statute and advising his fellow state-level legislators to allow the P3 market to give value to their constituents.

Attendees peppered the speakers with questions ranging from the prospects for federal level P3 legislation to the viability of local level P3s.  Co-hosts NCPPP, NLC and the National Conference of State Legislatures called the event a success.