Dallas area MPO says choice of NTTA conforms with federal rules neglecting mention of Cintra/GS selection

The Dallas area metro plan organization (MPO) says it has reached agreement with the North Texas Tollway Authority (NTTA) on terms for its development of SH121, a new tollroad north of Dallas. A strangely defensive and very evasive statement issued today by the North Central Texas Council of Government's (NCTCOG) Regional Transportation Council (RTC) says the RTC "sees no conflict with federal procurement procedures."

TxDOT selected Cintra/JPMorgan to develop SH121 earlier this year in a competitive procurement in which NTTA chose not to bid, and according to federal law was ineligible to bid as a public authority. The Federal Highway Administration's general counsel Robert Rae in letters to the Texas secretary of transportation has said the decision of Texas authorities to re-open the SH121 procurement to the NTTA after a developer was selected is a clear violation of federal procurement law and will cause federal support for the project to be withdrawn.

(CORRECTION: we incorrectly paired Goldman Sachs with Cintra earlier)

The RTC does not address this issue at all in its statement today.

Indeed, bizarrely, it doesn't even mention the existence of a preceding procurement by Texas DOT and the selection of Cintra/GS, or the NTTA's own long negotiations with Cintra/JPM, and their initial support for it. It's as if they never happened.

The statement claims the MPO "has legal responsibilities under federal law that permitted them to obtain an outside proposal from the North Texas Tollway Authority."

The federal objection was not to the MPO getting an outside proposal from NTTA, but to getting it after a competitive process had produced a selection.

The NCTCOG/RTC statement continues:

"The RTC sees no conflict with federal procurement
procedures, based on the following:

"1. U.S. Department of Transportation SAFETEA-LU Fact Sheet on metropolitan planning states, 'Local officials, in cooperation with
State and transit agencies, remain responsible for determining the best transportation investments to meet metropolitan transportation needs.'

"2. Federal requirement regarding air quality conformity; the process for an MPO to aggressively advance air quality projects (42.
U.S.C. 7504, 7506 (c), and 40 CFR Parts 51 and 93)

"3. Federal requirement regarding financial constraint: the process of pursuing innovative finance methods to advance project delivery. (23U.S.C. 134, 23 CFR 450.322 , 23 CFR 450.324)"

Michael Morris transport director at the NCTCOG is quoted: "We are in a new era of project delivery, and local elected officials have every right to advance projects that reduce congestion, improve safety and enhance air quality. They not only have the responsibility to do so, they have federal rules that require them to."

A final decision on the SH121 project still rests with the Texas Transportation Commission. It will have to cancel the procurement in which Cintra/GS was selected to allow NTTA to take the project - at some cost to its reputation as a reliable business partner.

TOLLROADSnews 2007-08-09