Neb. Admin. Code tit. 412 — Roadway Design Division

Chapter 1 Driveway and Approach Road Permits

Neb. Admin. Code tit. 412, ch. 1 Driveway and Approach Road Permits {#sec-412-nac-1 omnilex-key=us-ne-regs-official--title-412--412 NAC 1}

001 PERMITS FOR THE CONSTRUCTION, USE, ALTERATION, AND RELOCATION OF DRIVEWAYS AND APPROACH ROADS ON STATE HIGHWAY RIGHTS OF WAY

001.01 Definitions: The following definitions apply unless the context otherwise requires:

001.01A Applicant: A person who makes application for or acquires a permit.

001.01B Approach Road: A commercial entrance and exit road and may be singular or plural.

001.01C Department: The Department of Transportation of the State of Nebraska acting through its authorized representatives.

001.01D Driveway: A private entrance or exit road to a home, farm, or field.

001.01E Highway: A road or street. including the entire area within the right of way and all structures thereon, which has been designated as a pan of the State Highway System.

001.01F Person: An individual, firm, partnership, association, or corporation.

001.02 Any person desiring to construct a new driveway or approach road or any person desiring to relocate or attar an existing driveway or approach road will apply for a permit to do so. No permits will be issued, even though application is made, for driveways or approach roads to private property along those areas where the Department has acquired all or portions of the rights of access.

001.03 All applications for permits will be made on the form prepared and furnished by the Department

001.04 Applications for hard surfaced driveways and for approach roads may be made to the Department of Transportation, Box 94759, Lincoln, Nebraska 88509-4759.

001.05 All applications for driveways without hard surfacing may be made to the proper District Engineer's office as listed:

District 1: 302 Superior Street

Lincoln, NE 68521

Phone: 402.471.0850

District 2: 4425 South 108th Street

Omaha, NE 68145

Phone: 402.595.2534

District 3: 408 North 13th Street

Norfolk, NE 68702

Phone: 402.370.3470

District 4: 211 North Tilden Street

Grand Island, NE 68802

Phone: 308.385.6265

District 5: 140375 Rundell Road

Gering, NE 69341

Phone: 308.436.6587

District 6: 1321 North Jeffers Street

North Platte, NE 69103

Phone: 308.535.8031

District 7: 619 Auditorium Drive

McCook, NE 69001

Phone: 308.345.8490

District 8: 736 East 4th Street

Ainsworth, NE 69210

Phone: 402.387.2471

001.06 The approval by the Department of an application for the construction of a driveway or approach road will constitute the permit tor such work. The application may be approved as submitted or may be changed by the Department to conform to certain engineering and maintenance practices. If an application is denied, it will be returned to the applicant without approval.

001.07 In addition to the conditions set forth on the application and permit form. the Department will make a drawing of all driveways and approach roads having hard surface and all approach roads having gravel or crushed rock surface. These drawings and all the conditions set forth thereon will be attached to and constitute a part of the permit.

001.08 Any alteration, relocation, or construction of a driveway or an approach road must be done in accordance with the provisions of the permit. The applicant will be required to furnish a certified check to the Department as a guarantee of his faithful compliance with the conditions and provisions of the permit and the payment to the Department for any expense incurred by it in connection with the operations of the applicant on the State Highway right of way. The amount of the check will be determined after the receipt of the application and will be based upon the extent of the proposed work on the highway right of way.

001.09 Each driveway and approach road will be constructed in such a manner that the drainage and side ditches of the highway are not altered. The applicant will provide, at their own expense, approved drainage structures beneath or shallow gutters across the driveway or approach road in line with the normal side ditches.

001.10 Whenever the highway, on which a driveway or approach road has been constructed, is altered By the Department, the Department will restore all existing driveways and approach roads or revise them to conform to the change in the highway.

001.11 All approach roads to one business establishment will be physically separated from each other. The method of separation will be designated by the Department on the permit.

001.12 Any person Possessing a driveway or approach road connecting with a State Highway before September 18, 1955. and does not have a permit for such driveway or approach road, who makes a request for any improvement whatsoever to be made by the State to such driveway or approach road must make his entire driveway or approach road conform to the standards set out by the Department for similar driveways or approach roads, maintained under permits, before such requested improvement are made.

History

• Effective 2019-12-07

Chapter 2 The Accommodation of Mailboxes and Newspaper Delivery Boxes and Support Posts on Highway Rights-of-Way

Neb. Admin. Code tit. 412, ch. 2 The Accommodation of Mailboxes and Newspaper Delivery Boxes and Support Posts on Highway Rights-of-Way {#sec-412-nac-2 omnilex-key=us-ne-regs-official--title-412--412 NAC 2}

001 General

001.01 Lawful Use - The placement, use, and maintenance of a Mailbox shall be considered a necessary and proper use of state highway property.

001.02 Applicability

001.02A These rules and regulations only apply to the installation of new Mailboxes on state highways completed after the effective date of the 2020 revisions of these rules and regulations.

001.02B Mailboxes existing on the date of the 2020 revisions will be allowed to remain in place so long as they were in substantial compliance with the rule and regulation in effect when such Mailbox was first installed.

001.02C The following will not be considered a new Mailbox installation:

001.02C1 Replacement of a Mailbox Receptacle or the addition of another Mailbox Receptacle on the same Mailbox Support;

001.02C2 Replacement or addition of a newspaper delivery box;

001.02C3 Repair or maintenance of any part of the Mailbox;

001.02C4 Resetting a pre-existing conforming Mailbox Support at the approximate location of the pre-existing Mailbox;

001.02C5 Replacement of a non-conforming Mailbox Support with a conforming Mailbox Support at the approximate location of the pre-existing Mailbox;

001.02C6 Replacement of a Mailbox Support with a conforming multiple Mailbox Support;

001.02C7 Installation of a new Mailbox next to an existing Mailbox or row of Mailboxes;

001.02C8 Other similar minor repairs, maintenance, adjustments and alterations of an existing Mailbox.

001.03 Mailbox Removal: The Department is authorized, but not required, to remove a Mailbox located on highway property under the following circumstances:

001.03A When the Mailbox does not conform to the version of these rules and regulations in effect prior to the 2020 rule revisions.

001.03B When the Department is constructing or completing a highway project in any instance when the Department determines such Mailbox should be removed.

001.03C When a new mailbox has been installed after the effective date of the 2020 rule revisions when such new Mailbox does not meet the requirements of these revised rules.

001.03D The Department, in its sole discretion, retains the right to remove one or more mailboxes and reinstall them at a conforming location when the Department has given notice to the Mailbox Owner that the mailbox needs to be removed and reinstalled in conformance with these rules and the mailbox owner has failed to remove it within a reasonable time.

001.04 Statement of Intent

001.04A These regulations are intended to promote general uniformity for the installation of Mailboxes. The standards set out below are based on multiple considerations including, but not limited to, uniformity, the efficiency of mail delivery and retrieval, and the overall operation of the highway facility.

001.04B However, because of the inherent imprecision of installation and measurement, the strict application of the dimensions set out in these standards to a particular installation may be inappropriate. Measurements may vary as a result of the measurement method used and the inherent discretion required in selecting the appropriate beginning and end points of the feature being measured. Further, the dimensions set forth below are intended to identify the typical Mailbox installation. Precise compliance with the typical Mailbox installation provisions does not necessarily enhance the efficiency of mail delivery and retrieval, grandfathering of existing mailbox installations that conformed to the prior version of these rules or the overall safety of the highway facility.

001.04C Absent bad faith, a failure to meet these provisions should not be viewed as improper, as a violation of these provisions, or as evidence of negligence, in and of itself. Therefore, these rules should not be interpreted as requiring strict compliance at each location because such precision was not intended.

001.04D This statement of intent is not intended to limit or affect any remedy available to the Department by law.

001.05 The Department is authorized, but is not required, when completing a highway construction or maintenance project, to remove and relocate Mailboxes to the extent deemed appropriate by the Department, as a part of such project.

001.06 Interstate Highways and Freeways: Mailboxes will not be allowed on a any highway included as part of the National System of Interstate and Defense Highways, or b any Department designated freeway.

002 Definitions

002.01 Department: The Nebraska Department of Transportation, and its employees and representatives.

002.02 Mailbox: A structure conforming to these rules placed along a highway for use by the United States Postal Service (USPS) to deliver mail to a Mailbox Owner. Unless the context otherwise requires, a Mailbox includes the following components: Mailbox Receptacle, Mailbox Support, and Mailbox Attachment Device.

002.03 Mailbox Owner: The postal customer, whether a person, persons or an entity, to whom mail is delivered to a specific Mailbox by the USPS.

002.04 Mailbox Receptacle: The enclosed part of a Mailbox where mail is placed as a part of the delivery and retrieval of mail.

002.05 Mailbox Support: A post or other approved support device affixed to the ground and connecting to the Mailbox Attachment Device.

002.06 Mailbox Attachment Device: The hardware or device used to attach a Mailbox Receptacle to the Mailbox Support.

002.07 Mailbox Turnout: The area outside the Traveled Way, including when applicable the surfaced highway shoulder, provided for use by a vehicle delivering or collecting mail from a Mailbox.

002.08 Traveled Way: The traveled way, or traffic lane, is the portion of the roadway for the movement of vehicles exclusive of shoulders and Mailbox Turnouts. The outside edge of the traveled way, as used in this rule and regulation, may not be located at the same place as the painted white line along the outside edge of the Traveled Way.

002.09 Urban Area Location: A low speed posted 45 miles per hour and lower only urban segment of a state highway. An Urban Area Location is usually in or near the corporate limits of a city or village and typically includes residential, commercial or industrial development fronting along one or both sides of the highway. The speed limit of the Urban Area Location is usually lower than the speed limit of the adjoining rural segment of such highway.

003 Mailbox Receptacle

003.01 Material Provision: The Mailbox Receptacle shall be constructed of light weight sheet metal or durable thin gauge plastic, and should also conform to any applicable non-contradictory dimension or material requirements of the U.S. Postal Service.

003.01a Locking Mechanism: A Mailbox Receptacle may include a light weight locking mechanism so long as the Mailbox Receptacle meets the material and dimension standards set out in Section 003.

003.02 Dimensions Standards:

003.02a Mailbox: The dimensions of the Mailbox Receptacle should be no greater than the following: width - 11 inches; height - 14 inches; and depth - 25 inches. If the Mailbox Receptacle includes an integrated newspaper delivery box, the same dimensions apply except the height of the combined box should be no greater than approximately 25 inches.

003.02b Newspaper Delivery Box: A Newspaper Delivery Box may be placed on a Mailbox Support or integrated with a Mailbox Receptacle in accordance with these rules. A separate Newspaper Delivery Box shall be of light weight sheet metal or durable thin gauge plastic construction of maximum dimensions not to exceed the following: width - 8 inches; height 8 inches and depth - 21 inches.

003.03 Mailbox Owner Responsibility: The Mailbox Owner is solely responsible for the Mailbox Receptacle and newspaper delivery box, including but not limited to providing, installing, securing, inspecting, replacing, adjusting, repairing, using and maintaining the Mailbox Receptacle and any separate or attached Newspaper Delivery Box.

003.04 Mailbox Decorations or Attachments: The Mailbox Owner should not place or allow the placement of attachments or decorations on the Mailbox Receptacle or Mailbox Support in a way that:

003.04A materially obstructs the visibility of vehicles entering or exiting the highway,

003.04B Adds material weight, or

003.04C Would cause the Mailbox to significantly exceed the maximum Mailbox dimensions set out above.

004 Mailbox Support

004.01 Material and Dimension Provision: State will provide a mailbox support to be used on State highways. Mailbox supports will be supplied by State upon request. A Mailbox Support provided by the State shall be deemed to be conforming to these rules. The Mailbox Owner will be solely responsible for injury, damage, cost and liability arising out of any modifications to the State-provided Mailbox Support.

004.02 A cantilever or swing-away Mailbox Support may be installed with prior approval of the Nebraska Department of Transportation.

005 Mailbox Support Installation, Mailbox Receptacle Height, and Maximum Number and Grouping of Supports and Mailboxes

005.01 Mailbox Support Guidance: The Mailbox Support should be installed at a depth sufficient to adequately secure the Mailbox Support in the ground. The Mailbox Support may be installed in concrete, no higher than ground level, when site conditions include concrete or other hard surfacing at the location where the Mailbox Support is to be installed.

005.02 Mailbox Receptacle Height Guidance: The Mailbox Owner is responsible for meeting any applicable Mailbox Receptacle height requirements of the United States Postal Service. The height to the bottom of the Mailbox Receptacle should be approximately between 39 and 48 inches above ground level, subject to installation tolerances and specific site conditions.

005.03 Spacing of Mailboxes and Supports: The space between Mailbox Supports should be approximately equivalent to the height 005.02 of the respective Mailbox Supports.

005.04 Maximum Number of Mailboxes: There should be no more than a group of ten Mailbox Receptacles at any new Mailbox location at a driveway or intersection.

006 Mailbox Attachment Device - State will provide a Mailbox Attachment Device to be used on State highways. Mailbox Attachment Devices will be supplied by State upon request. A Mailbox Attachment Device provided by the State shall be deemed to be conforming to these rules. The Mailbox Receptacle should be firmly attached to the Mailbox Support, using the Mailbox Attachment Device. Any separate Newspaper Delivery Box should be properly attached to the Mailbox Support. The Mailbox Owner is responsible for installing, inspecting, repairing, replacing and tightening these connections when necessary.

007 Lateral Distance to Mailbox Support

007.01 Rural Locations:

007.01A Highway with a Non-Surfaced Shoulder: When installing a new Mailbox on a highway with a non-surfaced shoulder, a Mailbox Owner should install the Mailbox Support no closer than approximately seven feet from the outside edge of the pavement surfacing, or at the outside of the edge of the non-surfaced shoulder, whichever is further from the highway centerline (See Figure 1). For highways that include an eight-foot non-surfaced shoulder at the new Mailbox location, the Mailbox Support should be installed one foot outside of the non-surfaced shoulder (See Figure 2). For gravel surfaced state highways, the Mailbox should be placed one foot outside of the shoulder (See Figure 3).

Figure 1

Figure 2

Figure 3

007.01B Highway with a Surfaced Shoulder: When installing a new Mailbox on a highway with a surfaced shoulder, a Mailbox Owner should install the Mailbox Support no closer than approximately five feet from the outside edge of the surfaced shoulder, however, the placement location need not exceed approximately twenty-one feet from the inside edge of the outside lane.

007.01C A Mailbox Owner need not meet the lateral location provisions of i or ii above for a new Mailbox when a Mailbox Owner is installing a Mailbox next to an existing Mailbox or a series of Mailboxes.

007.01D In the event that a new Mailbox installation does not meet the dimensions set out above but the approximate distance from the outside edge of the traveled lane to the face of the Mailbox exceeds six feet, such installation shall not be considered nonconforming.

007.02 Urban Area Locations: When installing a new Mailbox on a highway in an Urban Area Location, the Mailbox Owner should install the Mailbox Support a within approximately six inches behind the highway curb at a location where a curb is present or b one foot outside of the existing shoulder, whichever is applicable.

007.03 Construction Tolerances: The measurement of features along the roadside environment cannot be completed with the accuracy that may be implied from these Mailbox lateral location provisions because of Mailbox installation methods, highway paint striping operations, and inconsistency in measurement methods. Absent bad faith, a nominal failure to meet these standards should not be viewed as improper, as a violation of these standards, or as evidence of negligence, in and of itself. These standards should not be interpreted as requiring strict compliance at any particular Mailbox location because such precision was not intended.

008 Longitudinal Location of New Mailboxes Near Intersecting Public Roads or Private Driveways

008.01 General - There are no requirements for the longitudinal location of either existing or new mailboxes under this rule and regulation. ¹

¹ Section 008 is the result of a detailed review and decision based on existing law, existing highway conditions, the Roadside Design Guide suggestions, the AASHTO Green Book, other States’ provisions, costs, engineering judgment, mail delivery and pickup considerations, and operational performance information. It is the judgment of the drafters that based on a consideration of all current information, having no express longitudinal location provisions is in the overall best interest of the Department, the State of Nebraska, Nebraska citizens and the traveling public. Motorists must recognize and meet their duty to use reasonable care to protect themselves and others when in the vicinity of mailboxes including while mail is being delivered or picked-up along the State Highway System.

009 Mailbox Turnouts

Mailbox Turnouts should be hard surfaced or when approved by the Department in advance, may be surfaced with millings, crushed rock, crushed concrete, gravel, or other similar materials.

010 Urban Area Locations

010.01 Effective Date: The Urban Area Location provisions of this section apply to any Mailbox installed at a new location after the effective date of the 2020 revisions of this Regulation.

010.02 Curbed Highway Segments: A Mailbox in an Urban Area Location that meets the requirements of Sections 003, 004, 005, 006 and 008 of these Rules and Regulations may be installed or placed so that the front face of the Mailbox Receptacle is no closer than approximately six 6 inches behind the roadside face of the curb on any highway segment that includes a highway curb at or outside of the outside edge of the Traveled Way.

010.03 Non-Curbed Highway Segments: A Mailbox in an Urban Area Location that meets the requirements of Sections 003, 004, 005 and 006 of these Rules and Regulations may be installed or placed so that the front of the Mailbox Receptacle is no closer than approximately six 6 inches behind the outside edge of the highway pavement for non-curbed segments.

010.04 Urban Segments: For Urban segments Area Locations with speeds above 45 miles per hour, there should be a minimum six foot hard-surfaced shoulder or an eight foot Mailbox Turnout.

ANNOTATION

Title 412 Chapter 2

Enabling Legislation

§39-699 Neb. Rev. Stat.

History

• Effective 2021-07-12

Chapter 3 Utility Permits

Neb. Admin. Code tit. 412, ch. 3 Utility Permits {#sec-412-nac-3 omnilex-key=us-ne-regs-official--title-412--412 NAC 3}

001 PERMITS FOR THE OCCUPANCY OF HIGHWAYS BY POLE LINES

001.01 DEFINITIONS: The following definitions apply within this regulation unless the context otherwise requires:

001.01A APPLICANT: A person who makes application for or acquires a permit to occupy a highway with pole lines.

001.01B DEPARTMENT: The Nebraska Department of Transportation.

001.01C HIGHWAY: A road or street including the entire area within the right of way and all structures thereon, which has been designed as a part of the State Highway System.

001.01D PERSON: Every natural person, firm, co-partnership, association, organization, or corporation, both public and private.

001.02 Any person desiring to occupy any portion of a highway with a pole, pole line anchor, or brace will apply for a permit to do so except where the occupancy is a cross-arm overhang or a single private service pole.

001.03 All applications for permits will be made on the form prepared and furnished by the Department.

001.04 Applications may be made to the Department of Transportation, Box 94759, Lincoln, Nebraska 68509-4759.

001.05 Any person desiring to construct a single private service connection across a highway, a pole of which will rest upon the highway, will be required to make a report to the Department and within forty-five days after the completion of the crossing. Such report will be made on DR Form 21, furnished by the Department and will give the pertinent data with regard to the crossing and pole location. Where feasible, the above mentioned pole will be located adjacent to an entrance to the property being served and no guy wires or braces to this pole will be located on the highway.

001.06 All applications for a permit will show the full name and address of the applicant and will set forth the type of use that is desired by the applicant, that is, whether it is to be a crossing or parallel occupancy of the highway.

001.07 The applicant will submit a plan or sketch showing in detail the type of pole line he proposes to install, the size and height of the poles, the number of wires to be carried, the voltage of any transmission line, or any other information that may pertain to the location of the pole line on the highway to be occupied and will show the exact location of the portions of the highway to be occupied with respect to land lines and civil subdivision. The plan or sketch will also indicate the exact location of all proposed guy wires, anchors, or braces.

001.08 No permit will be issued for the placing of deadmen, anchors, guy wires or braces unless the conditions requiring the same have been thoroughly investigated by a representative of the Department and it is found feasible to construct the line without the same.

001.09 If permission to place guy wires and braces on the highway is given subsequent to a Department investigation, the exact point of entry of the wires or braces into the ground will be marked distinctly by the applicant in a manner meeting the approval of the Department.

001.10 The applicant will be required to indemnify and hold harmless the State of Nebraska from any damage of any nature to any person or property which may result from the applicant's operations on and from the occupancy of the highway.

001.11 The applicant will be held fully responsible for any damages to or defacing of the highway that may be caused by his operations and he will be required to restore said highway to its original condition.

001.12 After the receipt of the written application for permission to cross or parallel occupy any portion of the highway with a pole line, a permit may be granted by the Department The permit will set forth the regulations and restrictions governing the installation of the pole line and any specific instructions applying to the particular installation under consideration.

001.13 No work will be performed by the applicant until he has obtained a permit.

001.14 The applicant will provide and maintain, at his expense, adequate lights. signs or other protective devices so as to properly protect the traveling public during his operation on the highway.

001.15 The applicant will conduct his operations in such a manner so as not to unreasonably interfere with or obstruct vehicular traffic on the highway.

001.16 Should the construction and maintenance of a highway necessitate the moving or relocating of any pole line. the owner will move or relocate the line at his own expense and as directed by the Department except as otherwise provided by law with regard to the National System of Interstate and Defense Highways.

001.17 Any owner needing to move or relocate any pole line because of construction and maintenance of a highway will not be expected to file application for relocation of existing pole lines.

002 PERMITS FOR THE OCCUPANCY OF HIGHWAYS BY UNDERGROUND PIPES OR CONDUITS

002.01 Any person desiring to occupy any portion of a highway with an underground pipe line or conduit will apply to the Department for a permit to so occupy.

002.02 All applications for permits will be made on the form prepared and furnished by the Department.

002.03 Applications may be made to the Department of Transportation, Box 94759, Lincoln. Nebraska 68509-4759.

002.04 All applications for a permit will show the full name and address of the applicant and will set forth the type of use that is desired by the applicant that is, whether it is to be a crossing or a parallel occupancy of the highway.

002.05 The applicant will submit a plan or sketch showing in detail the type and the nature of the pipe or conduit, the length of the pipe or conduit, and the depth at which the pipe or conduit will be installed beneath the highway surface. The plan or sketch will set forth the number and surface type of the highway and the exact locations of the portions of the highway to be occupied with respect to land lines and civil subdivisions.

002.06 The applicant will be required to backfill all excavated trenches in thin layers and will compact the replaced material until its density is equal to at least that of the surrounding earth. No "mounding over” of the trench will be permitted.

002.07 The Department may mandate the pipes or conduits to be installed in casings.

History

• Effective 2019-12-07

Chapter 4 When Use of Public Private Partnerships May Be Appropriate

Neb. Admin. Code tit. 412, ch. 4 When Use of Public Private Partnerships May Be Appropriate {#sec-412-nac-4 omnilex-key=us-ne-regs-official--title-412--412 NAC 4}

01.01 DEFINITIONS

For purposes of this rule and regulation, the terms below have the following meanings:

01.01A “Alternative Project Delivery Method” means one of the methods of contracting for public projects authorized in Neb. Rev. Stat. §§ 39-2808 et seq, including Public Private Partnerships.

01.01B “Public Private Partnership, or P3” means a project delivery method for construction or financing of capital projects or procurement of services under a written public-private partnership agreement entered into pursuant to Neb. Rev. Stat. § 39-2825 between at least one private partner and the State of Nebraska.

01.01C “Value-for-Money” means the process used to compare the financial impacts on the Department of use of a P3 project delivery method against other project delivery methods. This process looks to determine the ideal delivery method when considering cost, quality, time and performance.

01.02 PURPOSE .

This rule and regulation implements Neb. Rev. Stat.§ 39-2825, generally relating to establishing criteria to be used in determining when a P3 Alternative Project Delivery Method should be considered for a particular Department of Transportation (“The Department”) transportation project.

01.03 PUBLIC POLICY

The Department promotes and encourages the use of P3 when (a) determined to be more appropriate than the other Alternative Project Delivery Methods based on consideration of the criteria set out in 01.04, (b) found to be in the State’s best interest, and (c) its use is consistent with the limitations of the Constitution of Nebraska.

01.04 CRITERIA TO WEIGH IN ANALYZING WHEN USE OF P3 MAY BE APPROPRIATE FOR DELIVERY OF A DEPARTMENT TRANSPORTATION PROJECT

01.04A The Director of Transportation (“The Director”) or designee will make an initial determination whether any proposed project will be considered for use of an Alternative Project Delivery Method or whether the project should be developed under the traditional design-bid build method of Neb. Rev. Stat. § 39-1348 et seq. If a proposed project is selected by the Director as a candidate for an Alternative Project Delivery Method, then the following criteria shall be applied in determining whether to use P3. The Director reserves the right to reconsider the use of P3 or another Alternative Project Delivery Method whenever such reconsideration is in the best interest of the Department.

01.04B Subject to the provisions of Section 01.05, the following are qualitative considerations that the Department may evaluate when determining whether it is appropriate to use a P3 delivery method:

01.04B1 Whether a project presents complex technical requirements;

01.04B2 Whether a project affords a material opportunity to employ private sector innovations, technical concepts, or specialized knowledge/expertise;

01.04B3 Whether there is a need to accelerate completion or to contract for a date certain for project completion;

01.04B4 Whether the project affords the Department an opportunity to allocate typical public-sector risks to a private partner in exchange for the private sector meeting performance-based requirements rather than technical specifications;

01.04B5 Whether there are favorable market conditions, by way of greater competition for projects, a program of projects, or financial market conditions being conducive to private sector investment under a Value-for-Money analysis;

01.04B6 Whether P3 delivery may better meet the public expectations for project approach, project cost and completion;

01.04B7 Whether the project lends itself to delegating lifecycle, technology, or long-term performance responsibilities to the private partner(s);

01.04B8 Whether the project will be required to function at a high level, low failure rate, under intense use conditions;

01.04B9 Whether P3 delivery may make for more efficient use of State resources, including but not limited to human capital; and

01.04B10 Whether there is Value-for-Money in transactional/procurement costs to pursue P3 delivery rather than conventional delivery.

01.04C Subject to the provisions of 01.05, the following are capital planning, budgetary, and other monetary considerations that the Department may take into account when determining whether it is appropriate to use a P3 delivery method:

01.04C1 Whether there is need, or opportunity, in the project to predict, control, or reduce life cycle costs;

01.04C2 Whether there is a market opportunity to involve private investment to better manage capital planning dollars relative to the need to deliver the project in the nearer term;

01.04C3 Whether the project presents an opportunity to capture savings from the economies of scale;

01.04C4 Whether there is a market opportunity to involve private investment to maximize the timing and use of State revenue; and

01.04C5 Whether the project needs to emphasize (and thus to impose) operating and maintenance discipline to diminish or eliminate unexpected or deferred maintenance, or to plan for and manage expenses relating to planned maintenance, by shifting duties to the private partner.

01.05 INTERPRETIVE INTENT; CONSTRAINTS

01.05A The Department decision whether the P3 delivery method is appropriate is both project and situation-specific. Nothing in this rule and regulation will be construed to compel use of P3 delivery solely by virtue of the analysis of the project and situation-specific considerations against the foregoing criteria. If the Department determines by weighing the project and situation-specific considerations of a proposed project that P3 may be appropriate, the Department may nevertheless elect to deliver the project via other project delivery methods.

01.05B The foregoing list of criteria is not exclusive. The foregoing list is not presented in any order, and no single criterion is to be construed as more or less important than another based upon its placement on the list. Some criteria are overlapping. No single criterion is determinative, nor is any single criterion required, for the Department to determine when use of the P3 delivery method is appropriate for a particular project.

01.05C The foregoing criteria may be considered as criteria favoring project delivery methods other than P3 as may be authorized under Nebraska law.

01.05D Analysis as to whether P3 delivery may be appropriate, in part according to the foregoing criteria, shall consider such additional criteria, constraints, requirements, impositions, and considerations, when appropriate, including the use of federal funding, federal participation, or other basis upon which federal law imposes requirements regarding delivery method, features, procurement, requirements, risk apportionment, or other features of the project.

01.05E Nothing in this rule and regulation will be construed to limit any other provision of Nebraska law, rule, or regulation, including published procurement policies and manuals.

01.05F The decision whether to use the P3 alternate delivery method is in the sole discretion of the Department and any such decision shall not create a right or cause of action for anyone, or the right to appeal or to contest the decision.

History

• Effective 2023-08-22