介绍:
QUESTION FROM THE AUDIENCE: Can you or either Jodie address how Maryland statutory framework that corresponds with contract law, because to me that’s very important because the private developer is in contract with the private agency, could you briefly explain that?
PROFESSOR WALCHAK: Jodie do you want to hold and do that during your 15 minutes because I think I’m supposed to sit down.
JODIE MISIAK: I think it would be good if my Attorney General representative would address that issue. I’m not an attorney.
PROFESSOR WALCHAK: Let me give you the short answer. It is another form of procurement. So whenever the government engages with a private sector entity, it spends public dollars. It’s typically, unless carved out by legislation, it’s typically required to go through the public procurement process. Which is called Division II of the state finance procurement article, for all the UB law students, go look it up. Well, Division II handles most of the goods and services procurement for the state, but there are many activities where the state will engage contractually with private sector parties that are outside the procurement system. And that is what the law was created to do. For many reasons, which we could probably have a whole seminar on that, but it is basically a miniature procurement system, dedicated to these types of projects. It still has a competitive environment RFP. You can put a solicitation out, you can put potential proposers in, but it is segregated because it inevitably involves the assets of the state because they’re being used by a private sector entity, which is not typically the case when the state goes out and just buys goods and services from a contractor. So it has special needs and that is why and one of the reasons, why it was set apart. But I will hold. You will get a lot of color on these projects, going forward. These guys are fantastic and I think I need to turn it over to Preston Bryant, who is our consultant perspective, *113 from McGuire Woods. He has a fantastic background in PPPs, Preston it’s to you...
V. Panel Remarks
Panelists:
Preston Bryant, Senior VP, McGuireWoods Consulting, and former member of the Virginia House of Delegates
Professor Martin Jacobson, University of Chicago Law School; retired partner, Simpson Thacher & Bartlett LLP
Shyamala Shukla, Senior consultant/advisor, Infrastructure Finance, World Bank
Patrick Decorla-Souza, Public private partnership program manager, Office of Innovative Program Delivery, Federal Highway Administration
Jodie Misiak, Director, Innovative Project Delivery, Maryland Department of Transportation (MDOT) Office of Innovative Financing
John Smolen, Associate, Infrastructure Practice Group, Nossaman LLP, Washington, D.C.
PRESTON BRYANT: Good evening, I’m Preston Bryant and I’m from Richmond. This is my first time at the law school here and I love it. What a terrific facility. Thank you, Alex, for organizing this and inviting us all. What I wanted to do is talk a little bit about the Virginia law, because the Virginia law is probably one of the granddaddies of the state P3 laws and so many other states, as I’ll show, have adopted the Virginia law, in whole or in part. So part of the madness in me going first, may be to provide some foundation here in Virginia. And this is what I’ll sort of talk about: the legislative history, the fact that as Scott said it’s just another procurement tool, that’s what it is, how the Virginia law works, the process and some projects and pros and cons.
In Virginia, we had passed in 1995, the Public Private Transportation Act. You may recall in the early 90’s we had a new Governor, George Allen. He was a very conservative Republican, ‘small government, we’re going to shrink everything and we’re going to outsource a lot.’ They undertook a 1994 study to look at outsourcing and public private partnerships. They first focused on transportation and that led to the passage to what we call the PPTA, the Public Private Transportation Act. It actually ended up being very successful. And after seven years of pretty good success with the PPTA, we passed in 2002, the Public Private Education Facilities and Infrastructure Act. Big emphasis on infrastructure, which we have shortened to PPEA. For some reason, ‘Public-private everything else some people call it’ and that has been more of a social infrastructure, everything from K-12 schools, to wastewater treatment plants, to court houses, to you name it. So I’m going to focus, not so much on transportation, as some others will *114 focus on transportation. I’m going to talk about Virginia’s social infrastructure law.
The history of it, as I just said, the transportation act passed in ‘95, the social infrastructure act in 2002, and then we spent a year working on the model guidelines. What are guidelines? The guidelines really are, as this is a procurement tool, the guidelines are the rules of the road. The rules under which a developer will propose a project and the rules under which the public entity will consider and act on that proposal. So everybody’s on the same sheet of music, when it comes to the procurement statute. Everyone has the same set of guidelines. Now these were model guidelines and we spent the year developing them and before at the local government level a project can be done or be even proposed. The local government will have had to have adopted those guidelines and if they haven’t, you can’t even consider it. And as a matter of business, most local governments in Virginia have adopted the guidelines. They’re allowed to tailor them to their own color, if they would like. Most have adopted them, just as a matter of routine business, to have them on the shelf in case they ever get one of these animals proposed to them.
