You are here

Official Opinion 2009-7

Official Opinion 2009-7

November 22, 2009
To: 

Commissioner, Georgia Department of Transportation

Re: 

The Georgia Department of Transportation’s authority to enter a binding contract pursuant to the former Public Private Initiatives law was revoked by the 2009 Public Private Partnership law; those projects or portions of projects which were not formalized by an executed contract with the selected firm before May 11, 2009, must be re-procured under the authority and provisions of the 2009 law.

You have requested my opinion whether the Georgia Department of Transportation (“DOT” or “Department”) may continue to negotiate and execute contracts for projects in which the proposed contractors were selected under the former Public Private Initiatives (PPI) law, which was repealed by the General Assembly by substitution of a new Public Private Partnership law (the “2009 PPP law”).[1]   Due to significant procedural and substantive differences between the two laws, it is my opinion that the Department’s legal authority to enter a binding contract under the former PPI law was revoked by the 2009 PPP law, and those projects or portions of projects which were not formalized by an executed contract before May 11, 2009, must be re-procured under the authority and procedures of the 2009 PPP law.

In your request you have listed and described the existing status of four public participation projects which have been in process since the former PPI law was enacted.[2]   Of these four, only one was formalized with an executed contract: the I-75/575 Northwest Corridor project.  The remaining three have not proceeded beyond the negotiation stage. 

The single executed contract under the PPI program was a Developer Services Agreement (“DSA”) intended to define the scope of the Northwest Corridor project and to secure the necessary studies for permitting under the federal National Environmental Policy Act.   The DSA, in its scope of work, contracted for developer services such as environmental studies and assessments, initial preliminary design and design criteria, and like services.  The DSA was a limited contract and had no provisions for construction of the project contained within its scope.[3]   The DSA expires in March 2010 unless extended within its stated scope of services.  While a form of “Project Framework Agreement” was drafted that was intended to lead to a “Contract for Public Private Initiative” and a possible design-build construction contract, no such contracts or other related agreements were ever agreed upon or executed prior to the repealer date of May 11, 2009.

The Georgia Constitution states that “no . . . retroactive law, or laws impairing the obligation of contract . . . shall be passed.”  Ga. Const. art. I, § I, ¶ X.  This constitutional principle would govern the treatment of any PPI contracts which were executed under the former PPI law, including those executed to procure services for the Northwest Corridor Project.  Accordingly, the DSA remains a lawful contract, notwithstanding the repealer, and may be completed.

While the DSA remains protected and in effect under the constitutional provision referenced above, the proposed design-build agreement mentioned therein is not encompassed within the scope of the DSA. The authority for the Department to enter into a design-build agreement was withdrawn with the repeal of the old O.C.G.A. § 32‑2‑80 (2006) and enactment of new, substantive contracting requirements.   Furthermore, it is my understanding that the Board has recently determined not to pursue this project both because of the change in state law and for sound business reasons.

Procedurally, the new law “streamlines” the procurement process; however, there are significant substantive changes as well.  The 2009 PPP law, O.C.G.A. § 32‑2‑80(a)(2) (2009), authorizes a single method of procurement for contracts for a newly defined form of contract: a contract for public-private partnerships (“CPPP”).  While the former PPI law permitted both solicited and unsolicited proposals, the 2009 PPP law requires that a solicited proposal be utilized.[4]   The original Northwest Corridor project, for example, was an unsolicited proposal.  There were no other proposers when it was put out for competitive proposals under the former PPI law’s procedures.

The 2009 PPP law now contemplates that only those “projects that are funded or financed in part or in whole by private sources” qualify for consideration under the public-private partnership provisions of O.C.G.A. § 32‑2‑80 (2009), whereas the former PPI law authorized private financial contribution as one of three permissible legal foundations for the contract.[5]   Further, the procedure requires that the DOT include in the solicitation the DOT’s “proposed financial participations.”[6]   The single proposal submitted for the Northwest Corridor Project included no proposal for a financial participation in the project, and specifically disclaimed any intent on the part of the proposer to engage in any financial participation.

The most significant substantive revisions place two key restrictions upon the DOT’s authority to negotiate a contract for a public‑private partnership after a solicitation.  First, after the DOT solicitation, the 2009 PPP law requires a minimum of two respondents to the solicitation before the Department can proceed to enter into negotiations.  It cannot award a contract if there is only one respondent.[7]   These two respondents must also meet two legal sufficiency standards, one of which is a new requirement: (1) the requirement that the respondents be “deemed fully qualified, responsible, and suitable on the basis of initial responses and with emphasis on professional competence,” and (2) the new mandate that the respondents “meet the level of private financial participation called for by the department” in the solicitation.[8]   Without meeting these specific new requirements, along with the other general requirements of O.C.G.A. § 32‑2‑80, the DOT is without legal authority to negotiate or enter into a CPPP.[9]

Based on the foregoing, it is my official opinion that the Georgia Department of Transportation’s authority to enter a binding contract pursuant to the former Public Private Initiatives law was revoked by the 2009 Public Private Partnership law; those projects or portions of projects which were not formalized by an executed contract with the selected firm before May 11, 2009, must be re-procured under the authority and provisions of the 2009 law.

 

Prepared by:

George S. Zier

Senior Assistant Attorney General

 

Enclosure


 

Attachment 1

 

Public-Private Initiative Projects

2003 through 2008

 

·         I-20 MANAGED LANES CORRIDOR. GDOT announced a Notice of intent to Solicit on July 19, 2007, for the I-20 Managed Lanes Corridor.  Although the Notice of Intent was issued, a solicitation document has not been released as of the date of this letter.

·         I-75/575 NORTHWEST CORRIDOR. Unsolicited proposal was received November 23, 2004, from the Georgia Transportation Partners ("GTP") for in the I-75/I-575 Northwest Corridor.  In October 2005, the Advisory and Executive Committees approve the Northwest Corridor as a PPI project. GDOT signed a Developer Services Agreement ("DSA") with GTP May 18, 2006.  In June 2006, GDOT issued a Notice to Proceed to GTP for development phase activities. GTP is still undertaking work under the DSA which is scheduled to expire March, 2010.

·         GA 400 CROSSROAD REGION. Unsolicited proposal was received December 27, 2004, from the Crossroads 400 Group for improvements to GA 400. At the Department's request, the Crossroads 400 Group submitted revisions to the proposal on November 21, 2005.

·         I-285 NORTHWEST TOT LANES. The Department received unsolicited proposal from the I-285 Northwest TOT Team for a truck only toll lane on I-285.   Four competing proposals were submitted.

 

 

 




[1] O.C.G.A. §§ 32‑2‑78 to ‑80 (2009), enacted at 2009 Ga. Laws 976, 984-87, became effective upon approval by the Governor on May 11, 2009.  It repealed and replaced in toto former O.C.G.A. §§ 32‑2‑78 to ‑80 (2006), as enacted at 2003 Ga. Laws 905, 905-10, and amended at 2005 Ga. Laws 902, 902-09.

[2] See Attachment 1.

[3]The DSA states:   “The services to be performed by the DEVELOPER under this DSA shall encompass and include all work, services, materials, equipment, and supplies necessary to provide project management and administration, professional engineering services and related consultant and coordination services on a requirements basis to DEPARTMENT . . . .”  Individual scopes of work in these categories were developed and executed as “service orders” as required by the DOT.

[4] Compare O.C.G.A. § 32‑2‑78(6) and (8) (2006) with the current PPP law, O.C.G.A. § 32‑2‑80(a)(2) (2009).

[5] Compare O.C.G.A. § 32‑2‑78(5) (2006) with the current PPP law, O.C.G.A. § 3‑2‑80(a)(2) (2009).

[6]See O.C.G.A. § 32‑2‑80(a)(2) (2009).

[7] Compare O.C.G.A. § 32‑2‑80(a) (2006) with the current PPP law, O.C.G.A. § 32‑2‑80(a)(4) (2009).

[8]See O.C.G.A. § 32‑2‑80(a)(4) (2009).

[9] “The department shall have the authority to contract as set forth in this article.”  O.C.G.A. § 32‑2‑60(a) (2009) (emphasis added).