Highway Public-Private Partnerships: More Rigorous Up-Front	 
Analysis Could Better Secure Potential Benefits and Protect the  
Public Interest (08-SEP-08, GAO-08-1149R).			 
                                                                 
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 (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.		 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-1149R					        
    ACCNO:   A84040						        
  TITLE:     Highway Public-Private Partnerships: More Rigorous       
Up-Front Analysis Could Better Secure Potential Benefits and	 
Protect the Public Interest					 
     DATE:   09/08/2008 
  SUBJECT:   Cost analysis					 
	     Highway planning					 
	     Interstate highways				 
	     Performance measures				 
	     Primary highways					 
	     Public roads or highways				 
	     Risk management					 
	     State highways					 
	     Strategic planning 				 
	     Toll roads 					 
	     Transportation costs				 
	     Transportation industry				 
	     Transportation planning				 
	     Transportation policies				 

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GAO-08-1149R

   

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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 [email protected]. 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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