Posts in Legislation.
Posted in Legislation, News
Major Changes Coming for the Davis-Bacon Act

Federal prevailing wage law, known as the Davis-Bacon Act and Related Acts (Davis-Bacon Act), is applicable to almost every federal and federal-aid project.  The rules governing the Davis-Bacon Act have been essentially unchanged for 40 years.  But now, for the first time since the Reagan administration, the U.S. Department of Labor (Department) is updating the Davis-Bacon Act and making a number of significant changes to how the Davis-Bacon Act is administered ...

Governor Newsom’s Infrastructure Package of Budget Trailer Bills Down But Not Out

Last month, through the annual process known as the “May Revise,” California Governor Gavin Newsom released an update to the 2023-24 state budget proposal that he first introduced in January. The updated budget proposal sets forth a $306.5 billion spending plan that seeks to tackle the state’s growing budget deficit while maintaining key investments in education, healthcare, housing, climate and infrastructure.

Regarding infrastructure, the Governor noted that, due to unprecedented local, state, and federal investments, the state will spend more than $180 billion ...

U.S. Department of Transportation Proposes Important Buy America Actions; FTA Administrator Issues Buy America Dear Colleague Letter

The Infrastructure Investment and Jobs Act (P.L. 117-58; IIJA) expanded the scope of the Buy America preference by requiring that all construction materials, iron and steel, and manufactured products used in federally supported infrastructure projects be produced in the United States. Prior to the IIJA, Buy America requirements did not apply to construction materials.

The federal government began implementing the new requirements earlier this year, beginning with the Office of Management and Budget’s implementation guidance, followed by the U.S. Department of ...

Posted in Legislation, News, Policy
U.S. Department of Transportation Issues Temporary Waiver of Buy America Requirements for Construction Materials

As anticipated by project sponsors and industry participants, the U.S. Department of Transportation (USDOT) issued a temporary waiver of Buy America requirements for construction materials on May 19, 2022.

The Infrastructure Investment and Jobs Act (IIJA) expanded the applicability of Buy America and required the Office of Management and Budget (OMB) to promulgate guidance extending the current Buy America requirements regarding iron and steel and manufactured products to include construction materials, as well. OMB issued initial IIJA-implementing guidance effective ...

FTA Releases Initial Guidance for Capital Investment Grants Program

Transit authorities across the nation rely on the Capital Investments Grants (“CIG”) program administered by the Federal Transit Administration (“FTA”) to fund major capital expenses for expansion and core capacity projects. The CIG program is codified at 49 U.S.C. § 5309, and FTA currently administers the program in accordance with its “Final Interim Policy Guidance” published in June 2016.

The recently enacted Infrastructure Investment and Job Act (P.L. 117-58; “IIJA”) amended the CIG program statute. Consequently, FTA has prepared initial guidance on ...

New Executive Order Will Now Require Project Labor Agreements for Major Federal Construction Projects

On February 4, 2022, President Joe Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Executive Order”)1, which will require the use of project labor agreements (“PLAs”) on large-scale federal construction projects with a total estimated cost to the federal government of $35 million or more.

A PLA is a collective bargaining agreement that applies to a specific construction project and lasts only for the duration of the project. PLAs are primarily designed to reduce jurisdictional disputes among unions and between ...

How Government Funding Dysfunction Limits Bipartisan Infrastructure Law Implementation

The Infrastructure Investment and Jobs Act or “IIJA” (P.L. 117-58) passed on a bipartisan basis in both the House and Senate and was signed by the President one month ago today, on November 15, 2021. One could have assumed that federal agencies would begin allocating the new funding and commence implementation of the IIJA as soon as it became effective. Unfortunately, that is not the case, but for reasons that may not be readily apparent.

The federal government is actually constrained in its ability to implement the IIJA because it is currently funded and operating under a ...

New Infrastructure Bill Expands TIFIA Program

Late last Friday on November 5th, the U.S. House of Representatives passed the $1.2 trillion bipartisan infrastructure bill, the Infrastructure Investment and Jobs Act or IIJA, which President Biden intends to sign on Monday, November 15th. Much of the focus of the bill has been on the unprecedented increase in federal spending to rebuild the nation's roads, bridges, airports, seaports and transit systems. However, there are several provisions of the infrastructure bill that expand, and hopefully will make more transparent, the TIFIA credit assistance program. A low-cost ...

Posted in Legislation, Policy
$65 Billion Investment in the Future of Broadband

The $1.2 trillion infrastructure bill that passed the Senate this week includes $65 billion to improve broadband infrastructure, middle mile infrastructure and broadband access by unserved and underserved communities.

Division F (Broadband) of the bill lays out four key aspects of the program. ...

Public-Private Partnerships Promoted in Bipartisan Infrastructure Package

Yesterday, the Senate released legislative text for its highly anticipated bipartisan infrastructure package, titled the ­­­­­­­­Infrastructure Investment and Jobs Act. Negotiations have been ongoing for months, and while several political and policy hurdles remain before this proposal can arrive on the President’s desk for his signature, agreement on this bipartisan package is a hugely positive development. Project sponsors and practitioners have closely tracked the development of this package not only with respect to overall funding levels and policies but ...

New California Budget Proposal Provides Massive Funding Boost to Higher Education

On May 14, Gov. Newsom unveiled his record-breaking $267 billion budget proposal to tackle some of the greatest challenges facing the state of California, kicking off what’s been described as the most ambitious era of government spending in the state since the mid-20th century. The new proposed budget comes exactly one year to the day after the governor announced spending cuts to schools, homeless services and health care in light of the state’s $54 billion budget shortfall and the worsening COVID-19 pandemic. Thanks to a booming stock market and greater than expected tax ...

President Biden Unveils Historic Infrastructure Proposal

The President unveiled details of his historic infrastructure plan this morning, proposing the largest infrastructure investment in U.S. history.

The President’s proposal, titled the American Jobs Plan, requests roughly $2 trillion in total federal funding and financing tools over the next eight years...

Austin Voters Approve Tax Measure to Help Fund $7.1B Project Connect Plan

On November 3rd, Austin voters approved a property tax increase to help fund the $7.1 billion Project Connect mass transit project. The initial investment, which is a portion of the “Project Connect System Plan,” includes 27 miles of rail service, 31 stations and a transit tunnel. Specific elements of the plan include: ...

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Tags: Texas
CEQA Amended to Expedite Transit and Sustainable Transportation Projects

Governor Newsom recently signed into law Senate Bill 288 (the “Sustainable Transportation COVID-19 Recovery Act”), which will temporarily add new exemptions to the California Environmental Quality Act (CEQA) statute. The purpose of SB 288 is to fast track transit and sustainable transportation projects, provide a boost to public transit agencies affected by COVID-19, aid economic recovery by producing jobs, and reduce driving and GHG emissions. 

These statutory exemptions may help expedite environmental review of transportation projects that are specifically ...

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Governor Newsom Signs Major Housing and Transit CEQA Streamlining Bill

On August 29, 2020, Governor Newsom signed into law AB 2731, which is intended to support the potential redevelopment of the 70-acre Navy Old Town Campus in downtown San Diego. The site would include a LEED Gold certified transit hub, a public transit connection to the San Diego International Airport and adjacent transit-oriented development, including up to 10,000 new residential units. The bill was authored by California State Assemblymember Todd Gloria and Senate President pro Tempore Toni G. Atkins. It authorizes the San Diego Association of Governments (SANDAG) to acquire a ...

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Pursuant to Senate Bill 743 (passed in 2013), the metric for analyzing transportation impacts under the California Environmental Quality Act (CEQA) officially changed over on July 1, 2020 from level of service to vehicle miles traveled (VMT). Now, VMT is the standard for such analyses in nearly all CEQA documents, requiring agencies to implement sweeping changes in their approach to analyzing transportation impacts from major infrastructure and development projects. The following video excerpt from a recent Nossaman webinar on this topic provides a brief overview of these new CEQA guidelines relating to VMT. ...

FY21 Appropriations Bill Calls for Billions in Transportation Funding

The full House will consider the FY21 Transportation, Housing and Urban Development (THUD) bill that the House Appropriations Committee approved with a final vote of 30-22 on July 14, 2020.  For FY2021, the THUD bill provides a total of $107.2 billion in total budgetary resources for the U.S. Department of Transportation, including: ...

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A pair of Senators from both sides of the aisle, Senator Todd Young (R-Ind.) and Senator Catherine Cortez Masto (D-Nev.), introduced the Public Buildings Renewal Act of 2019 last week, which would authorize the use of tax exempt financing along with private equity to rebuild schools and public buildings through public-private partnerships.  We owe it to our students and teachers, our firefighters and nurses, and all taxpayers to find a way to upgrade our schools and public buildings.  This is a public health and safety issue that impacts not just Hoosiers, but all Americans.  Our bill ...

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Posted in Legislation, News

A new Government Accounting Office report says the Federal Transit Administration has failed to meet three statutory requirements (two from MAP-21 and one from the FAST Act) related to the Capital Investments Grant program, the primary source of federal funding for commuter, light rail, subway, ferry and bus rapid transit projects.  FTA says it has no plans to do so.

GAO says FTA has not issued regulations for rating Core Capacity Improvement projects; established a grant program for simultaneous development of multiple transit projects; or implemented a pilot program for ...

In an effort to promote project flexibility, funding innovation, efficiencies and timely implementation, this week the Federal Transit Administration (FTA) released its final rule regarding P3s (and other private involvement) in public transportation projects.

The primary goal of FTA’s Private Investment Project Procedures (or PIPP), new 49 C.F.R. Part 650, is to identify and address FTA requirements that are impediments to the greater use of public-private partnerships and private investment in public transportation capital projects, while protecting the public ...

Posted in Legislation, News

As the December 31, 2018 deadline approaches for freight, passenger, and commuter railroads to implement Positive Train Control (PTC), the Federal Railroad Administration (FRA) is reporting on the progress of individual railroads in complying with the mandate.

In 2008, Congress passed the Rail Safety Improvement Act and mandated that certain railroads carrying passengers or hazardous materials are required to install PTC. The FRA describes PTC as a communication-based/processor-based train control technology designed to prevent train-to-train collisions, overspeed ...

Posted in Legislation, News

The White House released its long-awaited infrastructure proposal to Congress this morning, along with the President’s fiscal year 2019 budget proposal. While elements have been hinted at and leaked before, the 55-page document released today provides significant new details. Though the Administration began to advance discrete priorities by executive action this past year, this broad proposal will require legislation. The Administration has opted to leave to Congress the drafting of the bill, just as it did with tax reform.

The White House proposal includes:

  • Creation of new ...
Posted in Legislation, Policy

President Trump recently signed into law a repeal of the MPO Coordination and Planning Area Reform rule less than a year after the rule was finalized by the Obama administration’s Federal Highway Administration and Federal Transit Administration. The rule, which was largely unpopular with local metropolitan planning organizations (MPOs) across the country, aimed to consolidate many MPOs. As a demonstration of just how unpopular the rule was, the bipartisan repeal effort unanimously passed in the Senate and overwhelmingly passed in the House.

The MPO Consolidation Rule was ...

Posted in Legislation

Last week the House Republican leadership unveiled its much anticipated US tax reform bill.  The bill proposes the most sweeping changes to the tax code in 30 years—since the 1986 Tax Act, which by the way imposed many of the restrictions on private activity bonds that we operate under today.  Among its many provisions would be the outright elimination of tax exempt private activity bonds for a host of public works type projects.

PABs have been the cornerstone of the financing of billions and billions of dollars of new public infrastructure—much of the focus has been on the $6.5 billion ...

Posted in Legislation

A three-judge panel of the California Court of Appeal for the Third District heard oral arguments last week in the longstanding companion cases challenging the legality of AB 32’s cap and trade auctions. (California Chamber of Commerce v. California Air Resources Board and Morning Star Packing Co. v. California Air Resources Board)  The questions most frequently posed by the Justices related to the nature of payments made for greenhouse gas (GHG) emission credits, a contributor in the billions of dollars to the state general fund for programs designed to reduce greenhouse gasses ...

Posted in Legislation, News, Policy

It’s been a productive time for advocates of water in the U.S. with President Obama signing into law the Water Infrastructure Improvements for the Nation Act (WIIN).  WIIN includes the Water Resources Development Act of 2016 (WRDA), together with provisions to authorize critical water projects  and improve drinking water infrastructure, water storage and supply, flood control and waterways across the nation.

A summary of some of WIIN’s key attributes are set out below:

  • WIIN authorizes Congress to provide $20 million for the Water Infrastructure Finance and Innovation Act ...

The National Council for Public Private Partnerships (NCPPP) and the Kentucky Chamber of Commerce recently concluded on October 28 a very well-attended two day conference in Lexington, Kentucky on the Commonwealth’s new public-private partnership (P3) enabling legislation, the so-called "HB-309.  HB-309’s chief drafter, Rep. Leslie Combs, was on-hand, participating in nearly every panel discussion, either as a panelist or from the audience.  Rep. Combs reflected on HB-309 as if she were a proud mama, and her and fellow Kentuckians’ enthusiasm for its flexibility ...

Public agencies with toll-setting authority should take note of a recent federal court decision relating to the uses of user fees and toll revenue, as well as the stated goals of the plaintiff in that case.

The U.S. District Court for the Southern District of New York recently clarified the constitutional uses of toll revenue in American Trucking Associations v. New York State Thruway Authority, 13 Civ. 8123 (CM) (S.D.N.Y. Aug. 10, 2016). In this case, commercial trucking companies and the American Trucking Associations (ATA) claimed that the New York State Thruway Authority ...

Posted in Legislation, Policy

U.S. Transportation Secretary Anthony Foxx, senior Department staff, and even an official from the White House gathered at U.S. Department of Transportation headquarters on July 20th to celebrate the grand opening of the Build America Bureau. After sharing a cake emblazoned with its logo, the dignitaries led a tour through the Bureau’s new office space in what used to be the library, replete with glass offices, motorized desks, and curved computer monitors. Compared to the cubical-farm offices of the modal administrations, the Bureau is clearly something different and new, and ...

Posted in Legislation

In response to a request from the California Department of Transportation, 5,000 California drivers signed up for the state’s nine month pilot program to replace the state’s gas tax with a charge based on vehicle miles traveled.  Starting July 1 of this year, the volunteers will make simulated payments based on how many miles they travel.  Participants include drivers from every part of the state and from every socioeconomic background, according to Malcolm Dougherty, Caltrans executive director.  The opportunity to provide valuable input and evaluate the viability of a ...

Governor Pete Rickets followed through on a promise to rethink infrastructure delivery in Nebraska.  Signing LB 960, the Transportation Innovation Act, into law, Nebraska is poised to clear its backlog of highway development in the state.  The new law passed unanimously in mid-April.

The Transportation Innovation Act reserved $50 million of Nebraska’s cash reserve and allocated approximately $400 million of gas tax revenue to the end of completing a 132-mile portion of an envisioned 600 mile expressway system within the State by 2033.  New tools available to the Nebraska ...

For years, policymakers and economists around the country have been well aware that the federal gas tax is dying.

In its report to Congress, the National Surface Transportation Infrastructure Financing Commission, on which I was honored to serve, made clear that we must replace the 18.4 cent federal gas tax with other means of funding transportation in order to maintain and improve our highways, bridges and transit systems in the United States.

The commission recommended a road user charge as the most effective approach to solving this problem.

[If] we fail to address the immediate ...

Posted in Legislation, P3s

The Illinois Senate is currently reviewing a bill that would greatly expand the authority of public agencies in Illinois to enter into public-private partnership (P3) agreements.  To date, such authority has been limited to the Illinois DOT, the State Toll Highway Authority and, in limited circumstances, local governments.

Democratic Senator Heather Steans introduced the bill on February 19th.  Shortly thereafter, in a show a bi-partisan support, Republican Senator Karen McConnaughay became a chief co-sponsor of the bill.

The bill, known as the Public-Private Partnerships ...

Posted in Legislation

Introduction

On Wednesday, February 24, 2016, Florida’s Governor Rick Scott signed two bills which exempt trade secret financial information from the state’s Sunshine Laws. The change is significant in a state known for expansive open records and meetings laws, and should provide comfort to private sector participants pursuing P3 projects and otherwise doing business in Florida. Both acts take effect on October 1, 2016.

SBs 180 and 182

SB 180 amends Section 812.081 of the Florida Statutes by expanding the definition of trade secret to include financial information ...

Posted in Legislation, News

At the end of 2015, two modal administrations of the United States Department of Transportation (US DOT) have encountered changes to their Buy America programs.  Both the Federal Transit Administration (FTA) and the Federal Highway Administration (FHWA) have had changes imposed upon their Buy America procedures – the FTA by Congress through provisions in the Fixing America’s Surface Transportation Act (or, FAST Act) and the FHWA through a recent opinion in the United States District Court for the District of Columbia (United Steel, Paper and Forestry, Rubber, Manufacturing ...

Posted in Legislation, News

Posted by guest blogger Billy Moore.

Billy Moore of Vianovo works with the Transportation Transformation Group, a consortia of public and private entities that looks at ways of improving the funding and financing of the nation’s transportation infrastructure, which is co-chaired by Nossaman Partner Geoffrey Yarema.

The House and Senate conferees have agreed on a compromise $305 billion five-year surface transportation authorization: the Fixing America's Surface Transportation (FAST) Act. The bill should be headed to the White House in the next few days. It would ...

Posted in Legislation, P3s

Los Angeles County Metropolitan Transportation Authority (LA Metro) is pursuing new public-private partnership (P3) legislation, Assembly bill ABX 1-12 (Bill 12).  Bill 12, introduced and read for the first time on August 26, 2015 at the California extraordinary session on transportation, would give LA Metro greater flexibility and autonomy to procure and finance transportation infrastructure in the LA Metro region.

LA Metro currently has authority under Section 143 of the Streets & Highway Code (Section 143) to deliver transportation projects using a P3 model with the use of ...

Posted in Legislation

Hopes 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 ...

On March 31, 2015, Congressman John K. Delaney (D-MD) spoke at the Washington Briefing of the International Bridge, Tunnel and Turnpike Association (IBBTA) in Washington, DC. At the event, Congressman Delaney provided an update on a bipartisan bill he has sponsored known as The Infrastructure 2.0 Act to fund the federal highway program. The bill uses international corporate tax reform to provide a six-year funding source for the Highway Trust Fund. Specifically, the bill establishes a mandatory, one-time 8.75% tax on existing overseas profits accumulated by U.S. multi-national ...

California Governor Edmund G. Brown, Jr., has signed California Senate Bill (SB) 785. As my colleague Nancy Smith has observed, enactment of SB 785 is a major step forward for the State of California, because now many more state and local agencies can use design-build.

One of the immediate benefits of this change is that the much-anticipated Caltrain electrification project will be able to proceed as a design-build procurement. The authority of the Peninsula Corridor Joint Powers Board (JPB) to issue design-build contracts was slated to expire at the end of this year, but SB 785 ...

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Tags: Rail

With the enactment of Senate Bill 785, the State of California has taken a major step forward in authorizing state and local agencies to use design-build.  Although many California agencies have the ability to use design-build without the need for specific enabling legislation, other agencies require specific design-build legislation in order to be able to use design-build effectively, either because they are precluded by law from using a best value selection process for design-build or do not have the ability to bundle design and construction into a single contract.

The new ...

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Enhanced Infrastructure Financing Districts will soon become a reality for many cities and counties looking for a mechanism to perform some functions previously done by redevelopment agencies.  Senate Bill 628 (SB 628) passed the State legislature on August 30, 2014 which, when signed by the Governor, would expand the use of Infrastructure Financing Districts.

SB 628 authorizes the legislative body of a city or county to establish an enhanced infrastructure financing district, adopt an infrastructure financing plan, and issue bonds, for which only the enhanced infrastructure ...

Posted in Legislation

On Friday, September 5, 2014, the Federal Highway Administration (FHWA) published its final rule for Value Engineering (VE) for road and bridge projects.  The new rule implements changes made to VE requirements under Moving Ahead for Progress in the 21st Century (MAP-21), the last surface transportation authorization law that was signed into law in July 2012.

The FHWA’s final rule for VE increases the project thresholds that trigger a VE analysis, eliminates the VE analysis requirement for design-build projects, and defines the requirements for a state Department of ...

Many federal, state and local government agencies are looking for innovative and cost effective methods to deliver essential social infrastructure such as educational facilities, hospitals and criminal justice facilities and related infrastructure.  As a result, these agencies are increasingly interested in assessing and pursuing the P3 delivery model.  However, these agencies often lack clear statutory authority to use a P3 delivery model for social infrastructure.  Recognizing this gap, Nossaman has developed a model social infrastructure P3 bill, based on its extensive ...

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As demand for government services continues to grow across the United States, federal, state and local government agencies must identify innovative and cost effective methods to deliver essential social infrastructure. While many agencies are interested in pursuing innovative P3 delivery models to procure public buildings, they often lack the clear necessary legislation to authorize P3 deals.

We offer below, for consideration and comment, a draft model social infrastructure P3 bill.  We developed the draft legislation based on our experience advising US public agencies ...

Posted in Legislation

On November 14, a bipartisan group of ten U.S. Senators, led by Mark Warner (D-VA) and Roy Blunt (R-MO), introduced legislation to create a new independent Infrastructure Financing Authority (IFA) to issue loans and loan guarantees for transportation, water, and energy transmission, storage and distribution infrastructure.  S. 1716, titled the Building and Renewing Infrastructure for Development and Growth in Employment or BRIDGE Act, has been referred to the Senate Committee on Commerce, Science and Transportation for review. Other cosponsors are Lindsey Graham (R-SC ...

Posted in Legislation

On July 6, 2013, Oregon became the first state to establish a voluntary road usage charge system for transportation funding.  Senate Bill 810 authorizes the Oregon Department of Transportation (ODOT) to charge up to 5,000 motorists 1.5 cents for every mile they drive rather than the traditional 30-cent gas tax.  The law comes on the heels of two ODOT pilot programs that examined alternative funding mechanisms to the gas tax and tested the vehicles-miles traveled fee (VMT) system.

As reported here, the Executive Director and CEO of the International Bridge, Tunnel and Turnpike ...

Posted in Legislation

A lawsuit recently filed by Scenic America strikes at a guidance issued by the Federal Highway Administration (FHWA) in 2007 related to the use of changeable electronic variable message signs (CEVMS) also known as digital billboards.  These CEVMS, which are seen with increasing frequency on sites adjacent to and intended to be viewed from the highway right of way, rely on state of the art digital technology to provide changeable, high definition commercial messages to the traveling public.

The FHWA guidance being challenged addresses an issue raised by the Highway ...

Posted in Legislation

On September 24 the Federal Highway Administration issued policy guidance on various aspects of MAP-21, including a memorandum to its Division Administrators on the tolling provisions in MAP-21 and questions and answers on federal tolling laws.

The tolling guidance addresses (1) the complete replacement of the prior statutory language of 23 U.S.C. 129(a), (2) the application of the existing HOV/HOT lane provisions in 23 U.SC 166, and (3) the status of the four existing toll pilot programs.  It is a must-read for anyone concerned with federal tolling law and policy.

Sections 129 and ...

Posted in Legislation

The Moving Ahead for Progress in the 21st Century Act (MAP-21) contains meaningful reforms that collectively represent a significant improvement in federal surface transportation law.  For the most part, federal law directly on the subject of public-private partnerships saw little change of significance.  Other federal laws, though not directly addressing PPPs, also affect the viability as a project financing mechanism.  Changes to the TIFIA program and to federal tolling law that will markedly improve project finance via public-private partnerships were addressed in our ...

Nossaman’s 30-plus infrastructure attorneys offer clients, colleagues, strategic partners and industry media a wealth of practical experience, insider insight and thoughtful analysis here on Infra Insight. We blog about what we know best, from industry-leading procurements to local and national policy developments that affect the market and our clients.

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