An Act To Stimulate the Maine Economy and Promote the Development of Maine's Priority Transportation Infrastructure Needs
Maine Legislature, Session 124, LD 1639
Committee Amendment CA_A_H699 (House)

COMMITTEE AMENDMENT "A " 
to H.P. 1167, L.D. 1639, Bill, "An Act To 
Stimulate the Maine Economy and Promote the Development of Maine's Priority 
Transportation Infrastructure Needs" 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'PART A 
Sec. A-I. 23 MRS A c. 410, sub-c. 5 is enacted to read: 
SUBCHAPTER 5 
PUBLIC-PRIVATE PARTNERSHIPS 
§4251. Public-private partnerships; transportation projects 
1. Definitions. As used in this subchapter, unless the context otherwise indicates, 
the following terms have the following meanings. 
A. "Agreement" means a contract between the depal1ment and a private entity to 
create a public-private palinership that allows for private sector participation in the 
financing, development, operation, management, ownership, leasing or maintenance 
of a transRortation facility and that sets forth rights and obligations of the department 
and the private entity in that palinership. 
. B. "Project" means the initial capital development of a transportation facility. 
C. 
"Proposal" means a conditional offer of a private entity that, after review, 
negotiation, documentation and legislative approval, may lead to an agreement as 
Rrovided in this subchapter. 
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COMM1TIEE AMENDMENT "A" to l-l.P. 1167. L.D. 1639 
D. "Transportation facility" means a facility that is or if developed would be within 
the jurisdiction of the department including a highway, bridge, railroad line, pier, 
airport, trail, ferry vessel, building or other improvement. 
2. Applicability. This subchapter applies to a proposal or agreement for a private 
entity to form a public-private partnership when the department estimates that the initial 
capital cost of a project is $25,000,000 or more or when the proposal includes placing 
tolls on existing transportation facilities that were not previously subject to tolls. Nothing 
in this section is intended to prohibit or otherwise affect programs that do not meet the 
criteria ofthis subsection. 
3. Authorization. Notwithstanding any other provision of law, the department is 
authorized to receive or solicit proposals to form a public-private partnership with respect 
to a transportation facility. 
Proposals must be reviewed in accordance with this 
subchapter. 
Upon approval of the Legislature as provided in this subchapter, the 
department may enter into an agreement. 
4. 
Standards for review. 
Before submitting a proposal to the Legislature for 
approval the department must find that the proposal meets the following standards. 
. A. The purpose of and need for the transportation facility must be consistent with the 
10ng-tenTI planning of the department. 
B. The private entity must have the financial, technical and operational capacity to 
discharge the responsibilities set forth in the proposal cost-effectively and responsibly 
as determined by the department. This capacity must include, but is not limited to, 
meeting department prequalification standards for professional engineering services 
and general contracting. 
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The proposed transportation facility must be owned, controlled, operated and 
maintained in a manner satisfactory to the department. 
D. The proposal must be cost-effective in the long term. 
E. The proposal must limit the use of state capital funding to less than 50% of the 
initial capital cost of the transportation facility and to the extent practicable minimize 
the use of transportation funding sources such as the Highway Fund, general 
obligation bonds supported by the Highway Fund, the TransCap Trust Fund under 
Title 30-A, section 6006-G and program funding provided by the Federal Highway 
Administration. 
F. If the proposed transportation facility is to be supported by tolls or other user fees, 
the private entity must provide a traffic and revenue study prepared by an expert 
acceptable to the department and national bond rating agencies. The private entity 
must also provide a finance plan consistent with the traffic and revenue study that 
identifies the proposal costs, revenues by source, financing, major assumptions, 
internal rate of return on private investments and whether any government funds are 
assumed to deliver a cost-feasible project and that provides a total cash flow analysis 
beginning with implementation of the project and extending for the term of the 
agreement. 
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COMMITTEE AMENDMENT "P" to H.P. 1167, L.D. 1639 
G, The proposal must demonstrate safeguards adequate to ensure that no significant 
additional costs or service disruptions would be borne by the traveling public and 
residents of the State if the private entity defaults or cancels the agreement 
H. The proposal must include provisions guaranteeing performance by the private 
entity and payment of subcontractors, including, but not 'Iimited to, performance and 
payment bonds, letters of credit, parent company guarantees and lender and equity 
partner guarantees. 
I. The proposal and the transportation facility must comply with all requirements of 
applicable federal, state and local laws and depa1iment rules, policies and procedures, 
1. The proposal must identify the law enforcement jurisdictions and responsibilities 
relative to the transportation facility, 
£(, The proposal must provide that all reasonable costs of substantially affected local 
governments and utilities related to the transportation facility are borne by the private 
entity or are otherwise provided for to the satisfaction of the department 
L The proposal and transportation facility are in the best interest of the public. 
5. Proposal and selection processes; solicited and unsolicited. The department 
may request proposals from private entities' for a public-private partnership for a 
transp01iation facility or may accept unsolicited proposals pursuant to this subsection. 
A. If the department receives an unsolicited proposal and determines that it meets the 
standards in this subchapter, the department shall publish a notice of the receipt of the 
proposal on the department's publicly accessible website or through advertisements in 
newspapers. 
If a notice is published exclusively in newspapers, the notice must 
appear in 2 or more public newspapers circulated wholly or in pa1i in the State and in 
one public newspaper circulated wholly or in pa1i in the county where the proposed 
transportation facility is to be located if any such newspaper is circulated in that 
county. The notice must provide that the depa1iment will accept, for 120 days after 
the initial date of pUblication, proposals meeting the standards in subsection 4 from 
other private entities for transportation facilities that satisfy the same basic purpose 
and need. A copy of the notice must be mailed to each local government in the area 
affected by the proposal. 
8. After the proposal or proposals have been received, and any public notification 
period has expired, the depa1iment shall rank the proposals in order of preference. In 
ranking the proposals, the department may consider factors that include, but are not 
limited to, professional qualifications, general business terms, innovative engineering 
or cost-reduction terms, finance plans and the need for state funds to deliver the 
project and discharge the agreement The department shall undertake negotiations 
with the private entity SUbmitting the I st-ranked proposal. If the department is not 
satisfied with the results of the negotiations, the department may, at its sole 
discretion, terminate negotiations with that entity and the department may negotiate 
with the other entities in order of the ranking of their proposals. If only one proposal 
is received, the department shall negotiate in good faith and, if the department is not 
satisfied with the results of the negotiations, the department may, at its sole 
discretion, terminate negotiations. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT "A "to H.P. 1167, L.D. 1639 
C. The department may require that the private entity assume responsibility for all 
costs incurred by the State or local governments before execution of the agreement, 
including costs of retaining independent experts to review, analyze and advise the 
department with respect to the proposal. 
6. Tolls; fares. An agreement may authorize the private entity to impose tolls or 
fares for the use of the transportation facility. The following provisions apply to such an 
agreement. 
A. The agreement must be consistent with the traffic and revenue study required 
under subsection 4, paragraph F. 
B. The agreement must ensure that the transportation facility and any related toll 
facility are properly operated and maintained in accordance with department 
standards or standards generally accepted in the transpOltation industry. 
C. The agreement must include provisions governing changes in tolls or fares. 
D. 
The department may require provisions in the agreement that ensure that a 
negotiated portion of revenues from a toll-generating or a fare-generating 
transportation facility is returned to the department overthe Iifeofthe agreement. 
7. Exercise of powers. If the depaltment exercises its power of eminent domain for 
the development and construction of a transportation facility pursuant to this subchapter, 
the department must retain ownership rights and interests taken. The State may provide 
maintenance, law enforcement and other services with respect to a transportation facility 
owned by a private entity when the agreement provides for reasonable reimbursement for 
such services. 
8. Term of agreement. An agreement may not exceed a term of 50 years unless the 
Legislature, upon the recommendation of the Commissioner of Transportation, approves 
a longer term. 
9. 
Legislative approval. 
If the department determines that a public-private 
partnership proposal and draft agreement meets the standards of this subchapter, the 
department shall submit to the Legislature a bill that authorizes the agreement. The bill 
must include a statement that the proposal meets the standards in subsection 4, a 
summary of the substance of the draft agreement and a description of the nature and 
amount of state investment, if any, including effects on programmed capital work. 
10. Confidentiality of proposals and negotiations. All records, notes, summaries, 
working papers, plans, interoffice and intraoffice memoranda or other materials prepared, 
used or submitted in connection with any proposal considered under this subchapter are 
confidential and not subject to public review until the department determines that the 
proposal meets the standards of this subchapter or until the proposal is finally rejected by 
the department. 
11. Report of proposals. By February I st, annually, the department shall provide to 
the joint standing committee of the Legislature having jurisdiction over transportation 
matters a report summarizing a'lI proposals that the department has determined meet the 
standards of this subchapter or that have been finally rejected during the previous 
calendar year. 
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COMMITTEE AMENDMENT "~,, to H.P. 1167, L.D. 1639 
12. Rules. The department may adopt rules to implement this subchapter. Rules 
adopted pursuant to this subsection are routine technical rules as defined in Title 5, 
chapter 375, subchapter 2-A. 
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PARTB 
Sec. B-1. 23 MRS A §753-A, as amended by PL 2007, c. 306, §3, is repealed. 
Sec. B-2. 23 MRS A §4244 is enacted to read: 
§4244. Design-build contracting 
1. Definitions. As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A. "Best value" means the highest overall value to the State, considering quality and 
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cost. 
B. "Design-build contracting" means a method of project delivery whereby a single 
firm is contractually responsible for performing design, construction and related 
services. 
C. "Major participant" means a firm that would have a major role in the design or 
construction of a project as specified by the department in its procurement 
documents. 
D. 
"Project" means the highway, bridge, railroad, pier, airpOli, trail, ferry vessel, 
building or other improvement being constructed or rehabilitated, including all 
professional services, labor, equipment, materials, tools, supplies, warranties and 
incidentals needed for a complete and functioning product. 
E. "Proposal" means an offer by the proposer to design and construct the project in 
accordance with all request-for-proposals provisions. 
F. 
"Proposer" means an individual, firm, corporation, limited liability company, 
partnership, joint venture, sole proprietorship or other entity that submits a proposal. 
G. 
"Public notice" means notice given electronically through the department's 
publicly accessible website or through adveliisements in newspapers. Ifnotice is to 
be given exclusively in newspapers, the notice must appear in 2 or more public 
newspapers circulated wholly or in part in the State and in one public newspaper 
circulated wholly or in part in the county where the proposed project is located if any 
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such newspaper is circulated in that county. 
H. "Quality" means those features that the depaliment determines are most important 
to the project. 
Quality criteria include design, constructability, long-term 
maintenance costs, aesthetics, local impacts, traveler and other user costs, service life, 
time to construct and other factors that the depariment considers to be in the best 
interest of the State. 
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2. Authorization. Notwithstanding section 4243 or any other provision of law, the 
department may lise design-build contracting to deliver projects. The department may 
evaluate and select proposals on either a best-value or low-bid basis. If the scope of work 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT" A" to 1-I.P. 1167, L.D. 1639 
requires substantial engineering judgment, the quality of which may VaJY significantly, as 
determined by the department, then the basis of award must be the best value. 
The department retains the authority to terminate the contracting process at any time, to 
reject any proposal, to waive technicalities or to solicit new proposals if the department 
determines that doing so is in the best interest of the State. 
3. Prequalification. A proposer must be prequalified to be eligible to submit a 
proposal. A proposer must be prequalified by a project-specific request-for-qualifications 
process described in this subsection, or a proposer may be a team formed of contractors 
and designers that are each prequalified separately for design-build contracting in 
accordance with ongoing prequalification procedures established by the department. The 
department shaIl specify the method of prequalification in its discretion, except that if the 
basis of award is the best value, then prequalification must be through a project-specific 
request-for-qualifications process. 
The department shaIl give public notice of a project-specific request-for-qualifications 
process. 
The depaliment shaIl issue a request-for-qualifications package to all firms 
requesting one in accordance with the notice. 
Interested firms shaIl supply, for 
themselves and all major participants, all information required by the department. The 
department may investigate and verify all information received.· 
All financial 
information, trade secrets or other information customarily regarded as confidential 
business information submitted to the depaJiment is confidential. The department shaIl 
evaluate and rate all firms submitting a conforming statement of qualifications and select 
the most qualified firms to receive a request for proposals. The department may select 
any number of firms, except that, if the department fails to prequalify at least 2 firms, the 
department shall repeat the request-for-qualifications process or select a different project 
delivery method. 
4. 
Request for proposals. 
If prequalification is through project-specific 
prequalification, the depaJiment shall issue a request for proposals to those firms 
prequalified. 
If prequalification is through ongoing prequalification procedures 
established by the department, the department shaIl give public notice of the request for 
proposals. The request for proposals must set forth the scope of work, design parameters, 
construction requirements, time constraints and all other requirements that have a 
substantial impact on the cost or quality of the project and the project development 
process, as determined by the department. The request for proposals must include the 
criteria for acceptable proposals and must include a request-for-information process that 
allows for clarification of such criteria. For projects to be awarded on a best-value basis, 
the scoring process and quality criteria must also be contained in the request for 
proposals. The request for proposals may also provide for a process for the department to 
meet with each proposer individually to review conceptual technical elements of each 
proposal before full proposal submittal for the purposes of identifying design or other 
technical elements that are unacceptable to the department or that obviously would cause 
rejection of the proposal as nonresponsive. 
All such conceptual technical meetings, 
including submittals and responses, are confidential until award of the contract, but the 
department may issue addenda to all proposers to clarify design or other technical 
elements that will or will not be allowed. Upon award of the contract and after resolution 
of any procurement disputes, the department shall return documents submitted by 
unsuccessful proposers upon request. The request for proposals may also provide for a 
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stipend upon specified terms to unsuccessful proposers that submit proposals conforming 
to all material request-for-proposals requirements as determined by the department. 
5. Low-bid award. I[the basis of the award is lowest cost, then each proposal must 
be submitted by the proposer to the department in 2 separate components, a sealed 
technical proposal and a sealed price proposal. These 2 components must be submitted 
simultaneously. The department shall first review technical proposals for responsiveness. 
The department shall award the contract to the proposer that submits a responsive 
proposal with the lowest price, if the proposal meets all material request-for-proposals 
requirements as determined by the department. 
6. Best-value award. If the basis of the award is best value, then each proposal 
must be submitted by the proposer to the department in 2 separate components, a sealed 
technical proposal and a sealed price proposal. These 2 components must be submitted 
simultaneously. 
The department shall open first each technical proposal and evaluate and score it based on 
the quality criteria contained in the request for proposals. The request for proposals may 
provide that the range between the highest and lowest quality score of responsive 
technical proposals must be limited to an amount certain. During this evaluation process, 
the price proposals must remain sealed and all technical proposals are confidential. 
After completion of the review for responsiveness, the department shall publicly open 
and read each price proposal associated with each responsive technical proposal. The 
depaJtment shall calculate the overall value rating fOJ' each proposal, which is the total 
price divided by the quality score. 
The depaJtment shall award the contract to the 
proposer with the lowest price per quality score point, if the proposal meets all material 
request-for-proposals requirements as determined by the department. 
7. Procurement disputes. The request for proposals must provide for resolution of 
disputes that may arise before award of the contract by including a dispute review board 
procedure in accordance with the department's standard specifications. 
Except in 
extraordinaty circumstances as determined by the department, including emergency work 
or situations in which delay could result in the loss of funding, the request for proposals 
must include a provision that requires that the procurement process be suspended pending 
final resolution of such disputes. In cases involving such extraordinary circumstances 
when suspension of the procurement process does not occur, proposers that are not 
selected may seek monetaty damages directly related to such nonselection.' 
SUMMARY 
This amendment replaces the bill. 
The purpose o~ Pati A of this amendment is to stimulate the Maine economy by 
allowing the Department of Transportation to receive and solicit proposals and, with 
legislative approval, enter into agreements with private entities for the building, 
ownership, leasing or financing of cetiain transportation facilities. 
Part B makes changes to the design-build procurement statutes for the Department of 
TranspOltation. 
FISCAL NOTE REQUIRED 
(See Attached) 
COMMITTEE AMENDMENT 
Approved: 03/05110 frac. 
LD 1639 
LR 2033(02) 
An Act To Stimulate the Maine Economy and Promote the Development of Maine's Priority 
Transportation Infrastructure Needs 
Fiscal Detail and Notes 
Fiscal Note for Bill as Amended by Committee Amendment "~,, 
Committee: Transportation 
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Fiscal Note Required: Yes 
Fiscal Note 
Potential current biennium cost increase - Highway Fund 
Potential current biennium cost increase - Federal Expenditures Funds 
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This legislation allows the DepaJ1ment of Transportation, with Legislative approval, to enter into agreements with 
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private entities for the building, ownership, leasing or financing of certain transportation facilities. Until potential' 
proposals from private entities are received, it is not possible to determine whether or not there would be a cost to the 
State. 
LR2033(02) - Fiscal Note - Page 1 of 1 
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