USA Law and Practice Contributed by: John D. O’Neill, Jr., David B. Horner, Andrej Micovic and Ryan Pedraza, Hunton Andrews Kurth LLP
curement authorisations. Local governments may also play an important role through zoning approvals, utility co-ordination, roadway permits and community plan - ning processes. The most significant obstacles to transportation expansion are often environmental review require - ments, right-of-way acquisition, utility relocation, per - mitting timelines, funding limitations and community opposition. In urban areas, securing additional land can be particularly challenging. Rail projects frequently face additional complexities associated with freight railroad co-ordination, opera - tional impacts, and negotiations regarding access to existing infrastructure. For both road and rail projects, obtaining necessary approvals often represents one of the most significant schedule and development risks. 5. Public Procurement and Concession Regimes 5.1 Procurement Framework Public procurement for transportation infrastructure in the United States is governed by a combination of federal, state and local laws. There is no single nation - al procurement code. Instead, procurement require - ments depend largely on the procuring authority, fund - ing sources and applicable state legislation. For projects receiving federal assistance, agencies must comply with federal requirements relating to competition, conflicts of interest, disadvantaged busi - ness enterprise participation, civil rights and grant administration. State and local procurement rules continue to apply, provided they are consistent with applicable federal requirements. Road P3 procurements are conducted pursuant to state-specific P3 legislation. These statutes estab - lish procurement procedures, approval requirements, evaluation criteria and contracting authority for long- term concession arrangements. 5.2 Tender Procedures Competitive procurement remains the dominant approach for major transportation projects. Most
transportation agencies utilise a two-stage procure - ment process consisting of a request for qualifications (RFQ) followed by a request for proposals (RFP). Under the RFQ stage, agencies evaluate the technical, operational and financial capabilities of prospective bidders and establish a shortlist of qualified teams. The RFP stage involves detailed technical proposals, financing plans, commercial terms and contract nego - tiations. For complex transportation projects, agen - cies frequently engage in confidential discussions and iterative proposal development before selecting a preferred bidder. Many state P3 statutes also permit unsolicited pro - posals. In most cases, the public authority must pro - vide notice and an opportunity for competing propos - als before proceeding with negotiations. Although unsolicited proposals remain an important feature of certain state P3 programmes, most major transpor - tation concessions continue to be procured through structured competitive processes. 5.3 Evaluation and Award Criteria Transportation procurements are typically awarded based on a combination of technical, financial and commercial criteria rather than solely on price. Evaluation factors commonly include technical design quality, construction approach, lifecycle maintenance plans, operational capabilities, project schedule, financing certainty, risk allocation, safety performance and overall value to the public authority. In P3 pro - curements, particular emphasis is often placed on the bidder’s ability to manage long-term lifecycle risks and secure committed financing. Public authorities frequently conduct value-for-mon - ey analyses and public interest assessments before awarding major concession agreements. These evalu - ations seek to determine whether private-sector par - ticipation provides measurable benefits compared to traditional public delivery methods. 5.4 Contract Duration and Termination Contract durations vary significantly depending on the project structure and delivery model. Traditional design-build contracts terminate upon completion of
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