RCW ch. 47.47 — Revised Code of Washington Chapter 47.47 RCW — Public-Private Partnership Projects

RCW 47.47.010 Findings. (1) The legislature finds that a full set of project procurement, contracting, financing, and funding tools are needed to enable the delivery of transportation projects in a manner most advantageous to the public. Current public-private partnership laws have failed to spur innovative proposals from the private sector or new project delivery approaches from the department of transportation. (2) The legislature confirms the findings from previous studies that current laws and administrative processes are the primary obstacle impairing the state's ability to utilize public-private partnerships. The legislature finds that a new public-private partnership law is needed to: (a) Transparently demonstrate and deliver better value for the public including, but not limited to, expedited project delivery and more effective management of project life-cycle costs; (b) Provide an additional option for delivering complex transportation projects, including addressing a shortage of truck parking; (c) Incorporate private sector expertise and innovation into transportation project delivery; (d) Allocate project risks to the parties best able to manage those risks; (e) Allow new sources of private capital; (f) Increase access to federal funding and financing mechanisms; (g) Better align private sector incentives with public priorities; and (h) Provide consistency in the review and approval processes for the full range of project delivery tools and contracting methods. [ 2025 c 417 s 1201.] NOTES: Effective date— RCW 47.47.020 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Commission" means the transportation commission. (2) "Department" means the department of transportation. (3) "Eligible transportation project" means any project that is not a rail project and meets the criteria to be evaluated for delivery in RCW 47.47.060, whether capital or operating, where the state's purpose for the project is to preserve or facilitate the safe transport of people or goods via any mode of travel. (4) "Private sector partner" and "private partner" means a person, entity, or organization that is not the federal government, a state, or a political subdivision of a state. (5) "Public funds" means all moneys derived from taxes, fees, charges, tolls, or other levies of money from the public. (6) "Public sector partner" and "public partner" means any federal or state unit of government, bistate transportation organization, or any other political subdivision of any state. (7) "State finance committee" means the entity created in chapter 43.33 RCW. (8) "Unit of government" means any department or agency of the federal government, any state or agency, office, or department of a state, any city, county, district, commission, authority, entity, port, or other public corporation organized and existing under statutory law or under a voter-approved charter or initiative, and any intergovernmental entity created under chapter 39.34 RCW or this chapter. [ 2025 c 417 s 1202.] NOTES: Effective date— RCW 47.47.030 Department powers and duties. (1) The department shall develop policies and, where appropriate, adopt rules to carry out this chapter and govern the use of public-private partnerships for transportation projects. At a minimum, the department's policies and rules must address the following issues: (a) The types of projects allowed; (b) Consistent with RCW 47.47.090, a process and methodology for determining whether a public-private partnership delivery model will be in the public's interest; (c) Consistent with RCW 47.47.140, a process and methodology for determining whether a negotiated partnership agreement will result in greater public value to the state than if the project is delivered using other procurement and contracting methods; (d) The types of contracts allowed, with consideration given to the best practices available; (e) Minimum standards and criteria required of all proposals; (f) Procedures for the proper identification, solicitation, acceptance, review, and evaluation of projects, consistent with existing project procurement and contracting requirements and practices; (g) Criteria to be considered in the evaluation and selection of proposals that includes: (i) Comparison with the department's internal ability to complete the project that documents the advantages of completing the project as a partnership versus solely as a public venture; and (ii) Factors such as, but not limited to: Priority, life-cycle cost, risk sharing, scheduling, innovation, and management conditions; (h) The protection of confidential proprietary information while still meeting the need for transparency and public disclosure that is consistent with RCW 47.47.150; (i) Protection for local contractors to participate in subcontracting opportunities that is consistent with RCW 47.47.040(3); (j) Specifying that maintenance issues must be resolved in a manner consistent with chapter 41.80 RCW; (k) Guidelines to address security and performance issues. (2) During its rule-making activities, the department must consult with the department's office of equity and civil rights. (3) By September 1, 2026, the department must provide a report to the house of representatives and senate transportation committees on proposed policies and guidelines it intends to develop into administrative rules. Rules adopted by the department pursuant to this chapter may not take effect before January 1, 2027. [ 2025 c 417 s 1203.] NOTES: Effective date— RCW 47.47.040 Applicability of other transportation project governing provisions. (1) For any eligible transportation project that requires the imposition of tolls on a state facility, the legislature must approve the imposition of such tolls consistent with RCW 47.56.820. (2) For any eligible transportation project that requires setting or adjusting toll rates on a state facility, the commission has sole responsibility consistent with RCW 47.56.850. (3)(a) If federal funds are provided for an eligible transportation project developed under this chapter, disadvantaged business enterprise inclusion requirements, as established, monitored, and administered by the department's office of equity and civil rights, apply. (b) If no federal funds are provided for an eligible transportation project developed under this chapter, state laws, rates, and rules must govern, including the public works small business certification program pursuant to RCW 39.19.030(7) as monitored and administered by the department's office of equity and civil rights. [ 2025 c 417 s 1204.] NOTES: Effective date— RCW 47.47.050 Application of public works provisions. All other transportation and public works project procurement and contracting governing provisions and procedures that do not conflict with this chapter, including responsible bidder and apprenticeship requirements under chapter 39.04 RCW and prevailing wage requirements under chapter 39.12 RCW, apply to the entire eligible transportation project. [ 2025 c 417 s 1205.] NOTES: Effective date— RCW 47.47.060 Project cost threshold for evaluation. Any eligible transportation project with an estimated cost to the state of less than $500,000,000, or any project on a United States route that is not an interstate route and includes replacement of a seismically vulnerable elevated structure at least one and one-half miles long that crosses a river, may be evaluated for delivery under a public-private partnership model as prescribed under this chapter. [ 2025 c 417 s 1206.] NOTES: Effective date— RCW 47.47.070 Eligible financing. (1) Subject to the limitations in this section, the department may, in connection with the evaluation of eligible transportation projects, consider any financing mechanisms from any lawful source, either integrated as part of a project proposal or as a separate, stand-alone proposal to finance a project. Financing may be considered for all or part of a proposed project. A project may be financed in whole or in part with: (a) The proceeds of grant anticipation revenue bonds authorized under 23 U.S.C. Sec. 122 and applicable state law. Legislative authorization and appropriation are required to use this source of financing; (b) Grants, loans, loan guarantees, lines of credit, revolving lines of credit, or other financing arrangements available under the transportation infrastructure finance and innovation act under 23 U.S.C. Sec. 181 et seq., or any other applicable federal law, subject to legislative authorization and appropriation as required; (c) Infrastructure loans or assistance from the state infrastructure bank established under RCW 82.44.195, subject to legislative authorization and appropriation as required; (d) Federal, state, or local revenues, subject to appropriation by the applicable legislative authority; (e) User fees, tolls, fares, lease proceeds, rents, gross or net receipts from sales, proceeds from the sale of development rights, franchise fees, or any other lawful form of consideration. However, projects financed by tolls must first be authorized by the legislature under RCW 47.56.820; (f) Loans, pledges, or contributions of funds, including equity investments, from private entities; (g) Revenue bonds, subject to legislative authorization and appropriation as required. (2) Subject to subsection (4) of this section, the department may develop a plan of finance that would require either the state or a private partner, or both, to: Issue debt, equity, or other securities or obligations; enter into contracts, leases, concessions, and grant and loan agreements; or secure any financing with a pledge of funds to be appropriated by the legislature or with a lien or exchange of real property. (3) As security for the payment of any financing, the revenues from the project may be pledged, but no such pledge of revenues constitutes in any manner or to any extent a general obligation of the state, unless specifically authorized by the legislature. Any financing described in this section may be structured on a senior, parity, or subordinate basis to any other financing. (4) The department shall not execute any agreement with respect to an eligible transportation project, including any agreement that could materially impact the state's debt capacity or credit rating as determined by the state finance committee, without prior review and approval of the plan of finance and proposed financing terms by the state finance committee. [ 2025 c 417 s 1207.] NOTES: Effective date— RCW 47.47.080 Use of federal funds or other sources. (1) The department may accept from the United States or any of its agencies such funds as are available to this state or to any other unit of government for carrying out the purposes of this chapter, whether the funds are made available by grant, loan, or other financing arrangement. The department may enter into such agreements and other arrangements with the United States or any of its agencies as may be necessary, proper, and convenient for carrying out the purposes of this chapter, subject to subsection (2) of this section. (2)(a) The department may accept from any source any grant, donation, gift, or other form of conveyance of land, money, other real or personal property, or other valuable thing made to the state of Washington, the department, or a local government for carrying out the purposes of this chapter. (b) Any eligible transportation project may be financed in whole or in part by contribution of any funds or property made by any private entity or public sector partner that is a party to any agreement entered into under this chapter. [ 2025 c 417 s 1208.] NOTES: Effective date— RCW 47.47.090 Public interest finding. (1) The department may evaluate eligible transportation projects that are already programmed for other delivery methods to determine their appropriateness for delivery under a public-private partnership model. (2) Before entering into a formal solicitation or procurement to develop a project as a public-private partnership, the department must make formal findings that utilizing a public-private partnership delivery method is in the public's interest. The department must adopt rules detailing the process and criteria for making such findings. At a minimum, the criteria must consider whether: (a) Public ownership of the asset can be retained; (b) Transparency during the consideration of a public-private partnership agreement can be provided; (c) Public oversight of the private entity's management of the asset can be provided; and (d) Additional criteria that reflects the legislative findings in RCW 47.47.010. (3) Before commencing any solicitation to deliver the project as a public-private partnership, the department must provide an opportunity for public comment on the proposed project and delivery method. (4) Upon a finding of public interest pursuant to subsection (2) of this section, the department must provide written notification of their finding of public interest and intent to deliver the project as a public-private partnership to the general public, to the chairs and ranking members of the transportation committees of the legislature, and to the governor. (5) Upon a finding of public interest pursuant to subsection (2) of this section, the department may: (a) Solicit concepts or proposals for the identified public-private partnership project from private entities and units of government; (b) Evaluate the concepts or proposals received under this section. The evaluation under this subsection must include consultation with any appropriate unit of government; and (c) Select potential projects based on the concepts or proposals. [ 2025 c 417 s 1209.] NOTES: Effective date— RCW 47.47.100 Use of funds for proposal purposes. (1) Subject to the availability of amounts appropriated for this specific purpose, the department may spend such moneys as may be necessary for stipends for respondents to a solicitation, the evaluation of concepts or proposals for eligible transportation projects, and for negotiating agreements for eligible transportation projects authorized under this chapter. Expenses incurred by the department under this section before the issuance of transportation project bonds or other financing must be paid by the department and charged to the appropriate project. The department must keep records and accounts showing each charged amount. (2) Unless otherwise provided in the omnibus transportation appropriations act, the funds spent by the department under this section in connection with the project must be repaid from the proceeds of the bonds or other financing upon the sale of transportation project bonds or upon obtaining other financing for an eligible transportation project, as allowed by law or contract. [ 2025 c 417 s 1210.] NOTES: Effective date— RCW 47.47.110 Expert consultation. The department may consult with legal, financial, technical, and other experts in the public and private sector in the evaluation, negotiation, and development of projects under this chapter. [ 2025 c 417 s 1211.] NOTES: Effective date— RCW 47.47.120 Contracted studies. In the absence of any direct federal funding or direction, the department may contract with a private developer of a selected project proposal to conduct environmental impact studies and engineering and technical studies. [ 2025 c 417 s 1212.] NOTES: Effective date— RCW 47.47.130 Partnership agreements. (1) The following provisions must be included in any transportation project agreement entered into under the authority of this chapter and to which the state is a party: (a) For any project that proposes terms for stand-alone maintenance or asset management services for a public facility, those services must be provided in a manner consistent with any collective bargaining agreements, chapter 41.80 RCW, and civil service laws that are in effect for the public facility; (b) A finding of public interest, as issued by the department pursuant to RCW 47.47.090; (c) If there is a tolling component to the project, it must be specified that the tolling technology used in the project must be consistent with tolling technology standards adopted by the department for transportation-related projects; (d) Provisions for bonding, financial guarantees, deposits, or the posting of other security to secure the payment of laborers, subcontractors, and suppliers who perform work or provide materials as part of the project; (e) All projects must be financed in a manner consistent with RCW 47.47.070. (2) At a minimum, agreements between the state and private sector partners entered into under this section must specifically include the following contractual elements: (a) The point in the project at which public and private sector partners will enter the project and which partners will assume responsibility for specific project elements; (b) How the partners will share management of the risks of the project; (c) The compensation method and amount for the private partner, establishing a maximum rate of return, and identifying how project revenue, if any, in excess of the maximum rate of return will be distributed; (d) How the partners will share the costs of development of the project; (e) How the partners will allocate financial responsibility for cost overruns; (f) The penalties for nonperformance; (g) The incentives for performance; (h) The accounting and auditing standards to be used to evaluate work on the project; (i) For any project that reverts to public ownership, the responsibility for reconstruction or renovations that are required for a facility to meet all service standards and state of good repair upon reversion of the facility to the state; (j) Provisions and remedies for default by either party, and provisions for termination of the agreement for or without cause; (k) Provisions for public communication and participation with respect to the development of the project. [ 2025 c 417 s 1213.] NOTES: Effective date— RCW 47.47.140 Best value finding and agreement execution. Before executing an agreement under RCW 47.47.130, the department must make a formal finding that the negotiated partnership agreement is expected to result in best value for the public, and the agreement must be approved through duly enacted legislation. The department must develop and adopt a process and criteria for measuring, determining, and transparently reporting best value relevant to the proposed project. At minimum, the criteria must include: (1) A comparison of the total cost to deliver the project, including any operations and maintenance costs, as a public-private partnership compared to traditional or other alternative delivery methods available to the department; (2) A comparison with the department's current plan, resources, delivery capacity, and schedule to complete the project that documents the advantages of completing the project as a public-private partnership versus solely as a public venture; and (3) Factors such as, but not limited to: Priority, cost, risk sharing, scheduling, asset and service quality, innovation, and management conditions. [ 2025 c 417 s 1214.] NOTES: Effective date— RCW 47.47.150 Confidentiality. A proposer must identify those portions of a proposal that the proposer considers to be confidential, proprietary information, or trade secrets and provide any justification as to why these materials, upon request, should not be disclosed by the department. Patent information will be covered until the patent expires. Other information, such as originality of design or records of negotiation, is protected under this section only until an agreement under RCW 47.47.140 is reached. Eligible transportation projects under federal jurisdiction or using federal funds must conform to federal regulations under the freedom of information act. [ 2025 c 417 s 1215.] NOTES: Effective date— RCW 47.47.160 Government agreements. The state may, either separately or in combination with any other public sector partner, enter into working agreements, coordination agreements, or similar implementation agreements, including the formation of bistate transportation organizations, to carry out the joint implementation and operation of an eligible transportation project selected under this chapter. The state may enter into agreements with other units of government or Canadian provinces for transborder transportation projects. [ 2025 c 417 s 1216.] NOTES: Effective date— RCW 47.47.170 Eminent domain. The state may exercise the power of eminent domain to acquire property, easements, or other rights or interests in property for projects that are necessary to implement an eligible transportation project developed under this chapter. Any property acquired pursuant to this section must be owned in fee simple by the state. [ 2025 c 417 s 1217.] NOTES: Effective date— RCW 47.47.180 Federal laws, rules, and regulations. Applicable federal laws, rules, and regulations govern in any situation that involves federal funds if the federal laws, rules, or regulations: (1) Conflict with any provision of this chapter; (2) Require procedures that are additional to or inconsistent with those provided in this chapter; or (3) Require contract provisions not authorized in this chapter. [ 2025 c 417 s 1218.] NOTES: Effective date— RCW 47.47.190 Public-private partnerships account. (1) The public-private partnerships account is created in the custody of the state treasurer. (2) The following moneys must be deposited into the account: (a) Proceeds from bonds or other financing instruments; (b) Revenues received from any transportation project developed under this chapter or developed under the general powers granted to the department; and (c) Any other moneys that are by donation, grant, contract, law, or other means transferred, allocated, or appropriated to the account. (3) Expenditures from the account may be used only for the planning, acquisition, financing, development, design, construction, reconstruction, replacement, improvement, maintenance, preservation, management, repair, or operation of any eligible transportation project under this chapter. (4) The state treasurer may establish separate subaccounts within the public-private partnerships account for each transportation project that is initiated under this chapter or under the general powers granted to the department. The state may pledge moneys in the public-private partnerships account to secure revenue bonds or any other debt obligations relating to the project for which the account is established. (5) Only the secretary or the secretary's designee may authorize distributions from the account. The account is subject to the allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures. [ 2025 c 417 s 1219.] NOTES: Effective date—