Highway Public-Private Partnerships
More Rigorous Up-Front Analysis Could Better Secure Potential Benefits and Protect the Public Interest Gao ID: GAO-08-1149R September 8, 2008In February 2008, GAO released a report entitled Highway Public-Private Partnerships: More Rigorous Up-Front Analysis Could Better Secure Potential Benefits and Protect the Public Interest (GAO-08-44) that reviewed: (1) the benefits, costs, and trade-offs of highway public-private partnerships; (2) how public officials have identified and acted to protect the public interest in these arrangements; and (3) the federal role in highway public-private partnerships and potential changes in this role. The enclosed statement discusses these issues.
GAO-08-1149R, Highway Public-Private Partnerships: More Rigorous Up-Front Analysis Could Better Secure Potential Benefits and Protect the Public Interest
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GAO-08-1149R:
September 8, 2008:
The Honorable Joseph F. Markosek:
Majority Chairman:
Committee on Transportation:
Pennsylvania House of Representatives:
The Honorable Richard A. Geist:
Minority Chairman:
Committee on Transportation:
Pennsylvania House of Representatives:
Subject: Highway Public-Private Partnerships: More Rigorous Up-Front
Analysis Could Better Secure Potential Benefits and Protect the Public
Interest:
In February 2008, GAO released a report entitled Highway Public-Private
Partnerships: More Rigorous Up-Front Analysis Could Better Secure
Potential Benefits and Protect the Public Interest [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-08-44] that reviewed: (1) the
benefits, costs, and trade-offs of highway public-private partnerships;
(2) how public officials have identified and acted to protect the
public interest in these arrangements; and (3) the federal role in
highway public-private partnerships and potential changes in this role.
The enclosed statement discusses these issues. If you or your staff
have any questions, please contact Katherine A. Siggerud at (202) 512-
2834 or siggerudk@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this report. Individuals making key contributions to this
report were Phillip Herr (Director), Steve Cohen (Assistant Director),
Carol Henn, Bert Japikse, Richard Jorgenson, and Matthew Rosenberg.
Signed by:
Katherine A. Siggerud:
Managing Director, Physical Infrastructure Issues:
Enclosure:
Mr. Chairmen and Members of the Committee:
As you know, America's transportation system is the essential element
that facilitates the movement of both people and freight within the
country. Nevertheless, the current federal approach to addressing the
nation's surface transportation problems is not working well. Despite
large increases in expenditures in real terms for transportation, the
investment has not commensurately improved the performance of the
nation's surface transportation system, as congestion continues to grow
and looming problems from the anticipated growth in travel demand are
not being adequately addressed. We have called for a fundamental
reexamination of federal surface transportation policies, including
creating well-defined goals based on identified areas of national
interest, incorporating performance and accountability into funding
decisions, and more clearly defining the role of the federal government
as well as the roles of state and local governments, regional entities,
and the private sector.
The private sector has long been involved in surface transportation, as
contractors in the design and construction of highways. In recent
years, the private sector has become increasingly involved in assuming
other responsibilities including planning, designing, and financing.
Under some of these arrangements, the private sector is being looked to
not only to construct facilities, but also to finance, maintain, and
operate facilities under long-term concession agreements--up to 99
years in some cases. In some cases, this involves a constructing a new
facility and operating and maintaining it. In other cases, this
involves operating and maintaining an existing toll road and the right
to collect tolls in exchange for an up-front payment provided to the
public sector.
In February 2008 we issued a report on public-private partnerships in
the highway sector.[Footnote 1] This statement is based on this report
and focuses on (1) the benefits, costs, and tradeoffs to the public
sector associated with highway public-private partnerships, (2) how
public officials have acted to protect the public interest in highway
public-private partnerships, and (3) the federal role in highway public-
private partnerships. We did not review the potential concession of the
Pennsylvania Turnpike as a part of this report and, therefore, are not
providing views in this statement on the proposed public-private
partnership involving this facility. We performed our work in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
We limited the term "highway public-private partnerships" to highway-
related projects in which the public sector enters into a contract,
lease, or concession agreement with a private sector firm or firms, and
where the private sector provides transportation services such as
designing, constructing, operating, and maintaining the facility,
usually for an extended period of time. This definition included long-
term concessions for toll roads in which the private sector firm(s)
receives some or all toll revenues over the life of the lease or
concession agreement with the public sector. There are numerous other
types of arrangements classified as "public-private partnerships" that
we did not include. For example, we did not include fee-for-service
arrangements in which effective ownership of a transportation facility
does not transfer to the private sector. We also recognize that there
may be other forms of highway public-private partnerships. We did not
include these types of public-private partnerships in the scope of our
work, and the findings and conclusions of our work cannot be
extrapolated to those or other types of public-private partnerships.
In summary:
* Highway public-private partnerships have the potential to provide
numerous benefits to the public sector as well as potential costs and
trade-offs. Highway public-private partnerships created to date have
resulted in advantages from the perspective of state and local
governments, such as the construction of new infrastructure without
using public funding and obtaining funds by extracting value from
existing facilities for reinvestment in transportation and other public
programs. The public can potentially obtain other benefits, such as
sharing risks with the private sector, more efficient operations and
management of facilities, and, through the use of tolling, increased
mobility and more cost effective investment decisions. There are also
potential costs and trade-offs--there is no "free" money in public-
private partnerships--they are potentially more costly to the public
and it is likely that tolls on a privately operated highway will
increase to a greater extent than they would on a publicly operated
toll road. There is also the risk of tolls being set that exceed the
costs of the facility, including a reasonable rate of return, should a
private concessionaire gain market power because of the lack of viable
travel alternatives. By leasing existing facilities, the public sector
may give up more than it gains if the net present value of the future
stream of revenues (less operating and capital costs) given up exceeds
the concession payment received. Additionally, because large up-front
concession payments have in part been used to fund immediate needs, it
remains to be seen whether these agreements will provide long-term
benefits to future generations who will potentially be paying
progressively higher toll rates throughout the length of a concession
agreement.
* Highway public-private partnerships we have reviewed sought to
protect the public interest in many ways, largely through concession
agreement terms prescribing performance and other standards. While
these protections are important, governments in other countries,
including Australia and the United Kingdom, have developed systematic
approaches to identifying and evaluating public interest before
agreements are entered into, including the use of public interest
criteria, as well as assessment tools, and require their use when
considering private investments in public infrastructure. For example,
a state government in Australia uses a public interest test to
determine how the public interest would be affected in eight specific
areas, including whether the views and rights of affected communities
have been heard and protected and whether the process is sufficiently
transparent. While similar tools have been used to some extent in the
United States, their use has been more limited. Using up-front public
interest analysis tools can also assist public agencies in determining
the expected benefits and costs of a project and an appropriate means
to deliver the project. Not using such tools may lead to certain
aspects of protecting public interest being overlooked.
* Direct federal involvement in highway public-private partnerships has
generally been limited to projects in which federal requirements must
be followed because federal funds have or will be used. While direct
federal involvement has been limited, the United States Department of
Transportation (DOT) has done much to promote highway public-private
partnerships, but comparatively little either to assist states and
localities in weighing potential costs and trade-offs, or to assess how
potentially important national interests might be protected in such
arrangements. Given the minimal federal funding in highway public-
private partnerships to date, little consideration has been given to
potential national public interests in them. Highway public-private
partnerships may pose national public interest implications such as
interstate commerce that transcend whether there is direct federal
investment in a project. GAO has called for a fundamental reexamination
of federal programs to address emerging needs and test the relevance of
existing policies. Such a reexamination provides an opportunity to
identify emerging national public interests, the role of the highway
public-private partnerships in supporting and furthering those national
interests, and how best to identify and protect national public
interests in future public-private partnerships. We believe DOT has the
opportunity to play a targeted role in ensuring that national interests
are considered, as appropriate and have recommended that Congress
direct the Secretary of Transportation to develop and submit objective
criteria for identifying national public interests in highway public-
private partnerships, including any additional legal authority,
guidance, or assessment tools that would be appropriately required. We
recognize this is no easy task--any potential federal restrictions on
highway public-private partnerships must be carefully crafted to avoid
undermining the potential benefits that can be achieved.
Highway Public-Private Partnerships Can Potentially Provide Benefits
But Also Entail Costs, Risks, And Trade-Offs:
Highway public-private partnerships have the potential to provide
numerous benefits to the public sector. There are also potential costs
and trade-offs.
Potential Benefits:
Highway public-private partnerships created to date have resulted in
advantages from the perspective of state and local governments, such as
the construction of new infrastructure without using public funding and
obtaining funds by extracting value from existing facilities for
reinvestment in transportation and other public programs. For example,
the state of Indiana received $3.8 billion from leasing the Indiana
Toll Road and used those proceeds to fund a 10-year statewide
transportation plan. As we reported in 2004, by relying on private
sector sponsorship and investment to build roads rather than financing
the construction themselves, states (1) conserve funding from their
highway capital improvement programs for other projects, (2) avoid the
up-front costs of borrowing needed to bridge the gap until toll
collections became sufficient to pay for the cost of building the roads
and paying the interest on the borrowed funds, and (3) avoid the
legislative or administrative limits that govern the amount of
outstanding debt these states are allowed to have.[Footnote 2] All of
these results are advantages for the states.
In addition to advantages from the perspective of state and local
governments, highway public-private partnerships potentially provide
other benefits, including the transfer or sharing of project risks to
the private sector. Such risks include those associated with
construction costs and schedules and having sufficient levels of
traffic and revenues to be financially viable. Various government
officials told us that because the private sector more reliably
analyzes its costs, revenues, and risks throughout the life cycle of a
project and adheres to scheduled toll increases, it is able to accept
large amounts of risk at the outset of a project, although the private
sector prices all project risks and bases its final bid proposal, in
part, on the level of risk involved. In addition, the public sector can
potentially benefit from increased efficiencies in operations and life-
cycle management, such as increased use of innovative technologies.
Highway public-private partnerships can also potentially provide
mobility and other benefits to the public sector, through the use of
tolling. The highway public-private partnerships we reviewed all
involved toll roads. These benefits include better pricing of
infrastructure to reflect the true costs of operating and maintaining
the facility and thus improved condition and performance of public
infrastructure, as well as the potential for more cost effective
investment decisions by private investors. In addition, through
congestion pricing, tolls can be set to vary during congested periods
to maintain a predetermined level of service, creating incentives for
drivers to consider costs when making their driving decisions, and
potentially reducing the demand for roads during peak hours.
Potential Costs, Risks, And Trade-Offs:
Although highway public-private partnerships can be used to obtain
financing for highway infrastructure without the use of public sector
funding, there is no "free money" in highway public-private
partnerships. Rather, this funding is a form of privately issued debt
that must be repaid. Private concessionaires primarily make a return on
their investment by collecting toll revenues. Though concession
agreements can limit the extent to which a concessionaire can raise
tolls, it is likely that tolls will increase on a privately operated
highway to a greater extent than they would on a publicly run toll
road. Tolls are generally set in accordance with concession agreements
and, in contrast to public sector practices; allowable toll increases
can be frequent and automatic. The public sector may lose control over
its ability to influence toll rates, and there is also the risk of
tolls being set that exceed the costs of the facility, including a
reasonable rate of return if, for example, a private concessionaire
gains market power because of the lack of viable travel alternatives.
In addition, highway public-private partnerships also potentially
require additional costs to the public sector compared with traditional
public procurement, including the costs associated with (1) required
financial and legal advisors, and (2) private sector financing compared
with public sector financing.
In addition to potentially higher tolls, the public sector may give up
more than it receives in a concession payment in using a highway public-
private partnership with a focus on extracting value from an existing
facility. In exchange for an up-front concession payment, the public
sector gives up control over a future stream of toll revenues over an
extended period of time, such as 75 or 99 years. It is possible that
the net present value of the future stream of toll revenues (less
operating and capital costs) given up can be much larger than the
concession payment received. Concession payments could potentially be
less than they could or should be. Conversely, because the private
sector takes on substantial risks, the opposite could also be true--
that is, the public sector might gain more than it gives up.
Using a highway public-private partnership to extract value from an
existing facility also raises issues about the use of those proceeds
and whether future users might potentially pay higher tolls to support
current benefits. In some instances, up-front payments have been used
for immediate needs, and it remains to be seen whether these uses
provide long-term benefits to future generations who will potentially
be paying progressively higher toll rates to the private sector
throughout the length of a concession agreement. Both Chicago and
Indiana used their lease fees, in part, to fund immediate financial
needs --both also established long-term reserves from the lease
proceeds. Conversely, proceeds from the lease of Highway 407 ETR in
Toronto, Canada, went into the province's general revenue fund.
Highway Public-Private Partnerships Have Sought To Protect Public
Interest In Many Ways, But Use Of Public Interest Criteria Is Mixed In
The United States:
The public interest in highway public-private partnerships can and has
been considered and protected in many ways. State and local officials
in the projects we reviewed heavily relied on concession terms. Most
often, these terms were focused on, among other things, ensuring
performance of the asset, dealing with financial issues, and
maintaining the public sector's accountability and flexibility.
Included in the protections we found in agreements we reviewed were:
* Operating and maintenance standards: These standards put in place to
ensure that the performance of the asset is upheld to high safety,
maintenance, and operational standards and can be expanded when
necessary. For example, based on documents we reviewed, the standards
on the Indiana Toll Road detail require the concessionaire to maintain
the road's condition, utility, and level of safety including a wide
range of roadway issues, such as signage, use of safety features such
as barrier walls, snow and ice removal, and the level of pavement
smoothness that must be maintained.
* Expansion trigger requirements: These triggers require that a
concessionaire expand a facility once congestion reaches a certain
level. Some agreements can be based on forecasts. For example, on the
Indiana Toll Road, when service is forecasted to fall below certain
levels within 7 years, the concessionaire must act to improve service,
such as by adding additional capacity at its own cost.
* Revenue-sharing mechanisms: These mechanisms require a concessionaire
to share some level of revenues with the public sector. For example, on
one Texas project, if the annual return on investment of the private
concessionaire is at or below 11 percent, then the state could share in
5 percent of all revenues. If it is over 15 percent, the state could
receive as much as 50 percent of the net revenues.
While these protections are important, governments in other countries,
including Australia and the United Kingdom, have developed systematic
approaches to identifying and evaluating public interest before
agreements are entered into, including the use of public interest
criteria, as well as assessment tools, and require their use when
considering private investments in public infrastructure. These tools
include the use of qualitative public interest tests and criteria to
consider when entering into public-private partnerships. For example, a
state government in Australia uses a public interest test to determine
how the public interest would be affected in eight specific areas,
including whether the views and rights of affected communities have
been heard and protected and whether the process is sufficiently
transparent. These tools also include quantitative tests such as Value
for Money and public sector comparators, which are used to evaluate if
entering into a project as a public-private partnership is the best
procurement option available.
While similar tools have been used to some extent in the United States,
their use has been more limited. For example, Oregon hired a consultant
to develop public sector comparators to compare the estimated costs of
a proposed highway public-private partnership with a model of the
public sector's undertaking the project. While this study was conducted
before the project was put out for official concession, it was prepared
after substantial early development work was done by private partners.
Neither Chicago nor Indiana had developed public interest tests or
other tools prior to the leasing of the Chicago Skyway or the Indiana
Toll Road. Using up-front public interest analysis tools can also
assist public agencies in determining the expected benefits and costs
of a project and an appropriate means to undergo the project. Not using
such tools may lead to certain aspects of protecting public interest
being overlooked. For example, concerns by local and regional
governments in Texas resulted in statewide legislation requiring the
state to involve local and regional governments to a greater extent in
future highway public-private partnerships. Elsewhere, in Toronto,
Canada, the lack of a transparency about the toll rate structure and
misunderstanding about the toll structure of the 407 ETR facility was a
major factor in significant opposition to the project.
Direct Federal Involvement With Highway Public-Private Partnerships Has
Generally Been Limited, But Identification Of National Interests In
Highway Public-Private Partnerships Has Been Lacking:
Direct federal involvement in highway public-private partnerships has
generally been limited to projects in which federal requirements must
be followed because federal funds have or will be used. However,
minimal federal funding has been used in highway public-private
partnerships to date. While direct federal involvement has been
limited, the administration and the DOT have actively promoted highway
public-private partnerships through policies and practices, including
the development of experimental programs that waive certain federal
regulations and encourage private investment. For example, until August
2007, federal regulations did not allow private contractors to be
involved in highway contracts with a state department of transportation
until after the federally mandated environmental review process had
been completed. Texas applied for a waiver to allow its private
contractor to start drafting a comprehensive development plan to guide
decisions about the future of the corridor before its federal
environmental review was complete. These flexibilities were pivotal to
allowing highway public-private partnership arrangements in both Texas
and Oregon to go forward while remaining eligible for federal funds.
FHWA and DOT also promote highway public-private partnerships by
developing publications to educate state transportation officials about
highway public-private partnerships and to promote their use, drafting
model legislation for states to consider to enable highway public-
private partnerships in their states, creating a public-private
partnership Internet Web site, and making tolling a key component of
DOT's congestion mitigation initiatives.
Recent highway public-private partnerships have involved sizable
investments of funds and significant facilities and could pose national
public interest implications such as interstate commerce that may
transcend whether there is direct federal investment in a project. For
example, both the Chicago Skyway and the Indiana Toll Road are part of
the Interstate Highway System; the Indiana Toll Road is part of the
most direct highway route between Chicago and New York City and,
according to one study, over 60 percent of its traffic is interstate in
nature. However, federal officials had little involvement in reviewing
the terms of either of these concession agreements before they were
signed. In the case of Indiana, minimal federal funds were used to
construct the toll road, and those funds were repaid to the federal
government. FHWA played no role in reviewing either the lease or
national public interests associated with leasing the highway, such as
potential impacts on interstate commerce, nor did it require the state
of Indiana to review these interests. Texas envisions constructing new
international border crossings and freight corridors, which may greatly
facilitate North American Free Trade Agreement-related truck traffic to
other states. However, no federal funding has been expended in the
development of the project to date. Given the minimal federal funding
in highway public-private partnerships to date, few mechanisms exist to
consider potential national public interests in them. For example, FHWA
officials told us that no federal definition of public interest or
federal guidance on identifying and evaluating public interest exists.
The absence of a clear identification and furtherance of national
public interests in the national transportation system is not unique to
highway public-private partnerships. We have called for a fundamental
reexamination of our surface transportation policies, including
creating well-defined goals based on identified areas of national
interest, incorporating performance and accountability into funding
decisions, and more clearly defining the role of the federal government
as well as the roles of state and local governments, regional entities,
and the private sector. Such a reexamination provides an opportunity to
identify emerging national public interests, the role of the highway
public-private partnerships in supporting and furthering those national
interests, and how best to identify and protect national public
interests in future public-private partnerships.
Concluding Observations:
Highway public-private partnerships show promise as a viable
alternative, where appropriate, to help meet growing and costly
transportation demands. The public sector can acquire new
infrastructure or extract value from existing infrastructure while
potentially sharing with the private sector the risks associated with
designing, constructing, operating, and maintaining public
infrastructure. However, highway public-private partnerships are not a
panacea for meeting all transportation system demands, nor are they
without potentially substantial costs and risks to the public--both
financial and nonfinancial--and trade-offs must be made.
Highway public-private partnerships are fairly new in the United
States, and although they are meant to serve the public interest, it is
difficult to be confident that these interests are being protected when
formal identification and consideration of public and national
interests has been lacking, and where limited up-front analysis of
public interest issues using established criteria has been conducted.
Consideration of highway public-private partnerships could benefit from
more consistent, rigorous, systematic, upfront analysis. Benefits are
potential benefits--that is, they are not assured and can only be
achieved by weighing them against potential costs and trade-offs
through careful, comprehensive analysis to determine whether public-
private partnerships are appropriate in specific circumstances and, if
so, how best to implement them.
Despite the need for careful analysis, the approach at the federal
level has not been fully balanced, as DOT has done much to promote the
benefits, but comparatively little either to assist states and
localities weigh potential costs and trade-offs, or to assess how
potentially important national interests might be protected in highway
public-private partnerships. We have recommended that the U.S. Congress
direct the Secretary of Transportation to develop and submit objective
criteria for identifying national public interests in highway public-
private partnerships, including any additional legal authority,
guidance, or assessment tools that would be appropriately required. We
are pleased to note that in a recent testimony before the U.S. House of
Representatives, the Secretary indicated a willingness to begin
developing such criteria. This is no easy task, however. The recent
report by the National Surface Transportation and Revenue Study
Commission illustrates the challenges of identifying national public
interests as the Policy Commission's recommendations for future
restrictions--including limiting allowable toll increases and requiring
concessionaires to share revenues with the public sector-- stood in
sharp contrast to the dissenting views of three commissioners.[Footnote
3] We believe any potential federal restrictions on highway public-
private partnerships must be carefully crafted to avoid undermining the
potential benefits that can be achieved. Reexamining the federal role
in transportation provides an opportunity for the U.S. DOT, we believe,
to play a targeted role in ensuring that national interests are
considered, as appropriate.
[End of enclosure]
Footnotes:
[1] GAO, Highway Public-Private Partnerships: More Rigorous Up-front
Analysis Could Better Secure Potential Benefits and Protect the Public
Interest, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-44]
(Washington, D.C.: Feb. 8, 2008).
[2] GAO, Highways and Transit: Private Sector Sponsorship of and
Investment in Major Projects Has Been Limited, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-04-419] (Washington, D.C.: March
25, 2004).
[3] Transportation for Tomorrow, National Surface Transportation Policy
and Revenue Study Commission, Dec. 2007.
[End of section]
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