The Vermont Statutes Online

Title 19: Highways

Chapter 026: Design-Build Contracts and Public-Private Partnerships

• Subchapter 001: DESIGN-BUILD CONTRACTS

• § 2601. Definitions

  As used in this chapter, unless the context otherwise indicates:

  (1) “Best value” means the highest overall value to the State, considering quality and cost.

  (2) “Design-build contracting” means a method of project delivery where a single entity is contractually responsible to perform design, construction, and related services.

  (3) “Major participant” means any entity that would have a major role in the design or construction of the project as specified by the Agency in the request for proposals.

  (4) “Project” means the highway, bridge, railroad, airport, trail, transportation, 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.

  (5) “Proposal” means an offer by the proposer to design and construct the project in accordance with all request-for-proposals provisions for the price contained in the proposal.

  (6) “Proposer” means an individual, firm, corporation, limited-liability company, partnership, joint venture, sole proprietorship, or other entity that submits a proposal. After contract execution, the successful proposer is the design-builder.

  (7) “Quality” means those features that the Agency determines are most important to the project. Quality criteria may include quality of design, constructability, long-term maintenance costs, aesthetics, local impacts, traveler and other user costs, service life, time to construct, and other factors that the Agency considers to be in the best interests of the State. (Added 2009, No. 50, § 84; amended 2021, No. 20, § 109.)

• § 2602. Authorization

  (a) Notwithstanding section 10 of this title or any other provision of law, the Agency may use design-build contracting to deliver projects. The Agency may evaluate and select proposals on either a best-value or a low-bid basis. If the scope of work requires substantial engineering judgment, the quality of which may vary significantly as determined by the Agency, then the basis of award shall be best-value.

  (b) The Agency shall identify those projects it believes are candidates for design-build contracting, including those involving extraordinary circumstances, such as emergency work, unscheduled projects, or loss of funding.

  (c) The Agency retains the authority to terminate the contracting process at any time, to reject any proposal, to waive technicalities, or to advertise for new proposals if the Agency determines that it is in the best interests of the State. (Added 2009, No. 50, § 84; amended 2021, No. 20, § 110.)

• § 2603. Prequalification

  (a) The Agency may require that entities be prequalified to submit proposals. If the Agency requires prequalification, it shall give public notice requesting qualifications from interested entities electronically through the Agency’s publicly accessible website or through advertisements in newspapers. The Agency shall issue a request-for-qualifications package to all entities requesting one in accordance with the notice.

  (b) Interested entities shall supply for themselves and for all major participants all information required by the Agency. The Agency may investigate and verify all information received. All financial information, trade secrets, or other information customarily regarded as confidential business information submitted to the Agency shall be confidential.

  (c) The Agency shall evaluate and rate all entities submitting a conforming statement of qualifications and select the most qualified entities to receive a request for proposals. The Agency may select any number of entities, except that if the Agency fails to prequalify at least two entities, the Agency shall readvertise the project. (Added 2009, No. 50, § 84.)

• § 2604. Request for proposals

  The Agency may issue a request for proposals, which shall 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 Agency. The request for proposals shall include the criteria for acceptable proposals. 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. In the Agency’s discretion, the request for proposals may provide for a process, including the establishment of a team to review proposals, for the Agency to review conceptual technical elements of each proposal before full proposal submittal for the purposes of identifying defects that would cause rejection of the proposal as nonresponsive. All such conceptual submittals and responses shall be confidential until award of the contract. The request for proposals may also provide for a stipend upon specified terms to unsuccessful proposers that submit proposals conforming to all request-for-proposals requirements. (Added 2009, No. 50, § 84.)

• § 2605. Low-bid award

  If the basis of the award of responsive proposals is low-bid, then each proposal, including the price or prices, shall be sealed by the proposer and submitted to the Agency as one complete package. The Agency shall award the design-build contract to the proposer that submits a responsive proposal with the lowest cost, if the proposal meets all request-for-proposals requirements. (Added 2009, No. 50, § 84.)

• § 2606. Best-value award

  (a) If the basis of the award of responsive proposals is best-value, then each proposal shall be submitted by the proposer to the Agency in two separate components: a sealed technical proposal and a sealed price proposal. These two components shall be submitted simultaneously. The Agency shall first open, evaluate, and score each responsive technical proposal, 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 scores of responsive technical proposals must be limited to an amount certain. During this evaluation process, the price proposals shall remain sealed, and all technical proposals shall be confidential.

  (b) After completion of the evaluation of the technical proposals, the Agency shall open and review each price proposal. The Agency shall develop a system for assessing the cost and quality criteria. The Agency shall award the contract to the proposer of the project representing the best value to the Agency. (Added 2009, No. 50, § 84.)

• Subchapter 002: PUBLIC-PRIVATE PARTNERSHIP PILOT [REPEALED EFFECTIVE JULY 1, 2026]

• § 2611. Pilot established; intent

  (a)(1) The General Assembly hereby establishes a pilot program to authorize the Agency, for a time-limited period, to receive solicited and unsolicited proposals and to enter into P3 agreements if certain conditions are met.

  (2) Nothing in this subchapter is intended to modify any obligations or rights under any other law.

  (b) Before the authority conferred under this subchapter terminates, the General Assembly intends to:

  (1) review whether and how the Agency has exercised the authority and whether the P3 agreements it has entered into have served the public interest; and

  (2) determine whether the authority should terminate, be extended, or be amended.

  (c) If the Agency’s authority under this subchapter terminates, the General Assembly intends that:

  (1) the Agency not have authority to pursue any proposal that has not resulted in a P3 agreement prior to termination of the Agency’s authority; and

  (2) any P3 agreement lawfully entered into prior to termination of the Agency’s authority shall continue in effect after termination of the authority. (Added 2017, No. 158 (Adj. Sess.), § 20, eff. May 21, 2018; repealed on July 1, 2026 by 2017, No. 158 (Adj. Sess.), § 21, as amended by 2023, No. 62, § 41.)

• § 2612. Definitions

  As used in this subchapter:

  (1) “Facility” means transportation infrastructure that is, or if developed, would be, within the jurisdiction of the Agency or eligible for federal-aid funding managed through the Agency.

  (2) “Project” means the capital development of a facility.

  (3) “Proposal” means a conditional offer of a private entity that, after review, negotiation, and documentation, and after legislative approval if required under this subchapter, may lead to a P3 agreement as provided in this subchapter.

  (4) “Public-private partnership” or “P3” means an alternative project delivery mechanism that may be used by the Agency to permit private sector participation in a project, including in its financing, development, operation, management, ownership, leasing, or maintenance. As used in this subchapter, “partnership” shall refer solely to a “public-private partnership” and “partner” shall refer to the State or to the private entity participant or participants in a public-private partnership.

  (5) “P3 agreement” means a contract or other agreement between the Agency and a private entity to undertake a project as a public-private partnership and that sets forth rights and obligations of the Agency and the private entity in that partnership. (Added 2017, No. 158 (Adj. Sess.), § 20, eff. May 21, 2018; amended 2019, No. 59, § 24; repealed on July 1, 2026 by 2017, No. 158 (Adj. Sess.), § 21, as amended by 2023, No. 62, § 41.)

• § 2613. Authority

  (a) The Agency is authorized to receive unsolicited proposals or to solicit proposals to undertake a project as a public-private partnership. The Agency shall develop, and have authority to amend, criteria to review and evaluate such proposals to determine if they are in the public interest and shall review and evaluate all proposals received in accordance with these criteria. In addition to other criteria that the Agency may develop, at minimum, the criteria shall require consideration of:

  (1) the benefits of the proposal to the State transportation system and the potential impact to other projects currently prioritized in the most recently adopted Transportation Program;

  (2) the extent to which a proposal would reduce the investment of State funds required to advance the project that the proposal addresses; and

  (3) the extent to which a proposal would enable the State to receive additional federal funding that would not otherwise be available.

  (b) If the Agency determines that a proposal is in the public interest:

  (1) The Agency is authorized to enter into a P3 agreement with respect to the proposal without legislative approval if:

  (A) the project has been approved in the most recently adopted Transportation Program; and

  (B) total estimated State funding over the lifetime of the project will be less than $2,000,000.00.

  (2) For the following projects, the Agency is authorized to enter into a P3 agreement with respect to the proposal only if the Agency receives specific legislative approval to enter into the P3 agreement:

  (A) a project that has not been approved in the most recently adopted Transportation Program; or

  (B) a project for which total estimated State funding over the lifetime of the project will be $2,000,000.00 or more. (Added 2017, No. 158 (Adj. Sess.), § 20, eff. May 21, 2018; repealed on July 1, 2026 by 2017, No. 158 (Adj. Sess.), § 21, as amended by 2023, No. 62, § 41.)

• § 2614. Legislative approval

  If the Secretary determines that a proposal that requires legislative approval under section 2613 of this title is in the public interest and should be pursued, the Secretary shall submit to the General Assembly:

  (1) a description of the proposal, including:

  (A) a summary of the project scope and timeline;

  (B) the rights and obligations of the State and private entity partner or partners, including the level of involvement of all partners in any ongoing operations, maintenance, and ownership of a facility;

  (C) the nature and amount of State funding of the project and of any ongoing State financial responsibility for ongoing maintenance or operation costs; and

  (D) its effect on any project in the most recent approved Transportation Program;

  (2) a statement detailing how the proposal meets the Agency’s criteria developed under this subchapter; and

  (3) proposed legislation to confer authority to the Agency to enter into a P3 agreement with respect to the proposal. (Added 2017, No. 158 (Adj. Sess.), § 20, eff. May 21, 2018; repealed on July 1, 2026 by 2017, No. 158 (Adj. Sess.), § 21, as amended by 2023, No. 62, § 41.)

• § 2615. Report

  (a) Annually, on or before January 15, the Agency shall report to the House and Senate Committees on Transportation:

  (1) for each P3 agreement entered into following legislative approval required under this subchapter, for as long as the agreement is in effect, a description of the current status of the project and of any substantive change to the P3 agreement since the prior year’s report; and

  (2) for each P3 agreement entered into since the prior year’s report pursuant to section 2613 of this title that did not require legislative approval, a description of the P3 agreement and of the project.

  (b) Notwithstanding 2 V.S.A. § 20(d), the annual report required under this section shall continue to be required unless the General Assembly takes specific action to repeal the report requirement. (Added 2017, No. 158 (Adj. Sess.), § 20, eff. May 21, 2018; repealed on July 1, 2026 by 2017, No. 158 (Adj. Sess.), § 21, as amended by 2023, No. 62, § 41.)