Barkdull, Egan and Rivin: Using P3s to finance transportation initiatives

George T. Taft


By Denise Barkdull, John Egan and Edward Rivin

Indiana’s debt is projected to attain a staggering $30 billion by 2025. Yet according to the American Society of Civil Engineers’ Infrastructure Report Card, Indiana’s infrastructure is in dire require of expenditure. The group notes their conclusions from a lengthy research:

“[D]riving on roadways in will need of fix in Indiana fees every driver $480 for each 12 months, and 7.4% of bridges are rated structurally deficient. Consuming water demands in Indiana are an believed $7.52 billion, and wastewater requirements overall $7.16 billion. 266 dams are viewed as to be substantial-hazard prospective. The state’s colleges have an believed funds expenditure hole of $518 million. This deteriorating infrastructure impedes Indiana’s skill to contend in an more and more world marketplace.”

The dilemma begs to be asked: How can Indiana fund these significantly-wanted improvements? Governmental entities throughout the country have endorsed the thought of combining the sources of the community and personal sectors by “public-non-public partnerships” (P3s) to finance and handle America’s crumbling infrastructure extensive-phrase. By getting entry to private capital and sources, governmental divisions can handle their infrastructure wants improved and much more effectively, thereby relieving concerns of building good quality and delays primary to amplified fees because of to inflation. As a substantial more advantage, P3s allow for community entities to shift project risks to personal entities, a mainly not possible feat with classic layout/minimal bid/construct procurement methodologies. P3s also present the option for speedier venture implementation than traditional methodologies.


Indiana law will allow the Indiana Division of Transportation (INDOT) and the Indiana Finance Authority (IFA) to enter into P3s to manage transportation tasks. Partnerships involving community and private entities arrive in many molds relying on the unique requires of the associated entities. For illustration, if the general public entity wants to shift chance of the infrastructure to a personal entity, a common design-construct-finance-run-and-sustain (DBFOM) arrangement may perhaps be useful mainly because it allocates the accountability for funding, construction and very long-phrase danger to the personal entity. On the other hand, wherever the public entity wants to maintain management of the infrastructure immediately after building, a “public-general public partnership” (P2) could be most well-liked. Pinpointing the framework of the partnership between the general public and non-public entities needs a dive into their respective objectives and necessities. Presented the flexibility of the likely arrangements, these partnerships will be the wave of the foreseeable future when it arrives to addressing America’s infrastructure challenges.

Indiana has two P3 statutes that INDOT and IFA can use to finance and regulate transportation initiatives: Indiana Code sections 8-15.5 and 8-15.7, respectively. Community-Non-public Partnership Method Implementation Tips released by INDOT ultimately immediate INDOT and IFA to consider the subsequent things in analyzing regardless of whether a P3 is proper for a job and what P3 construction would provide the best benefit to taxpayers: venture complexity, alternatives for private sector innovation, will need to accelerate job enhancement, potential efficiencies by means of risk transfer, capacity to transfer danger or accountability, funding necessities, and ability to elevate funds.


After the P3 route is carried out, the structure of the arrangement alone (e.g., responsibilities of every single party) largely relies upon on the variety of venture being carried out and the resources and danger tolerance of every party. Like the point out of Indiana, when it arrives to jobs involving transportation tasks (e.g., bridges and roadways), most community entities only do not have the financial methods or the money to fund and personnel the infrastructure assignments. Take, for example, the Brent Spence Bridge that connects Ohio and Kentucky. In accordance to The Hill and other community resources, the Brent Spence Bridge is an infrastructure crisis in dire need of interest. In pursuit of addressing the bridge’s infrastructure issues, a P3 is staying employed to defeat the gap involving needed and offered job cash while also shortening the task timeline substantially. The project is structured as a DBFOM, shifting the obligation for funding, making, working and sustaining the bridge to the personal entity. Indiana’s I-69 Area 5 was completed by means of a equivalent P3 whereby IFA contracted a private entity to finance, design, build and handle the undertaking, therefore unlocking essential cash and resources for the task even though also shifting certain danger profiles to the non-public entity.

Indiana utilized a P3 for its part of the $2.3 billion Louisville-Southern Indiana Ohio River Bridges Venture, the East Close Crossing. The East Conclude Crossing, INDOT’s greatest P3 project to day, was shipped as an availability-payment DBFOM concession between INDOT, IFA and WVB East End Partners. Indiana receives tolls from the Bridges Project and can make availability payments to the concessionaire, which is liable for the ongoing operation and routine maintenance of the composition over a 35-yr expression. The East Conclusion Crossing opened to site visitors in 2016.

As states’ deficits continue on to improve – particularly right after the COVID-19 pandemic – public entities will be in search of new methods to fund and complete much desired infrastructure jobs in their jurisdictions. As completed P3 assignments across the nation are displaying, governmental entities are likely to use P3s at a rising amount in the long term to unlock a lot wanted funding and means for these infrastructure initiatives.•

Denise Barkdull, John Egan and Ed Rivin are lawyers at Frost Brown Todd. FBT member David Rogers contributed to this short article. Opinions expressed are individuals of the writer.

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