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On February 17, President Obama signed the American Recovery and Reinvestment Act of 2009^[1] (the Act) into law. The broad outlines of the Act have been widely reported. Title XII of Division A of the Act addresses transportation. Also in Division A are general provisions applicable to the Act as a whole, including transportation projects. Division B of the Act relates largely to taxation and finance issues and contains further opportunities for highway and rail projects.

The Act provides more than $48 billion for transportation infrastructure projects as follows:

• $27.5 billion in highway funds
• $1.5 billion for new discretionary grants (including $200 million for TIFIA)
• $9.3 billion for high-speed rail, intercity passenger rail service and Amtrak
• $8.4 billion for transit programs
• $1.3 billion for aviation and airport programs
• $100 million for grants to small shipyards
• $20 million to the Inspector General of the Department of Transportation for increased oversight activities

The Act also includes expanded opportunities for bond and other debt funding of transportation infrastructure and makes private activity bonds more attractive.

Accompanying this overview is a table summarizing key provisions of the Transportation title of the Act.  To view the table, click here.

The following assessment examines in greater detail the technical provisions associated with highway and rail project implementation, including what States, local governments and other recipients must do to access available funds and comply with other mandates^[2] and is based on the express provisions of the Act.^[3] Bond and other financing provisions included in Division B of the Act are also reviewed.

Highlights include:

• Accelerated funding obligation. A general goal applicable to the entire Act is to give preference to "activities that can be started and completed expeditiously, including a goal of using at least 50 percent of the funds for activities that can be initiated not later than 120 days after the date of the enactment of this Act." Recipients shall also use grant funds in a manner that maximizes job creation and economic benefit.^[4]

The Transportation title has more specific time requirements. States must obligate half of their highway funds (other than those suballocated to urbanized and other areas) within 120 days of the date that the Federal Highway Administration (FHWA) apportions the highway funds made available under the Act. Transit funds must be obligated within 180 days of date that the Federal Transit Administration (FTA) makes its apportionments. For both programs, most of the remainder must be obligated within one year of apportionment – with the possibility that the Secretary may extend the deadline – or be subject to redistribution. For highway funds, the 120 day and one year deadlines do not apply to highway funds suballocated to urbanized and other areas. Although funding for major rail programs is available until September 30, 2012, funds made available to Amtrak must be awarded within 30 days of enactment for projects that can be completed within 2 years.

• Implementation through existing programs. The Act provides no relief from existing planning, project development, environmental review or other requirements. Given the Act's tight schedule requirements, most of these funds will be spent either on "shovel ready" projects that have already complied with most requirements or on smaller projects that pose little likelihood of environmental impact or controversy.

• Multi-modal focus. The Act provides funding for all transportation modes. In addition, the Act expands eligibility for highway funding to include intercity passenger rail, freight rail, and port infrastructure projects. The Act creates a $1.5 billion discretionary program that provides the Secretary broad discretion to fund projects across all surface transportation modes. This is in addition to a discretionary program embedded in the aviation portion of the Act.

• Extensive oversight, reporting and certification requirements. The Act provides funding for stringent oversight by the Inspectors General and establishes an Oversight and Transparency Board to coordinate government-wide oversight programs. Transportation programs are subject to two layers of reporting requirements addressing project implementation and expenditures, job creation, and contracting. Governors, mayors or other chief executives of recipient transportation agencies must certify as to their "maintenance of effort" to ensure that funds under the Act add to current programs, rather than supplanting them. In addition, these officials must certify that the projects under the Act meet the purposes of the Act and are sound public expenditures. Whistle blower employees of States, local governments and contractors who disclose gross mismanagement and abuse are protected from reprisal.

HIGHWAY AND RAIL PROVISIONS

I. HIGHWAY PROGRAMS

The Act provides $27.5 billion to highway projects administered by FHWA. Projects qualifying for these funds are those now eligible for Surface Transportation Program (STP) funding, the broadest of the so-called title 23 programs.^[5] In addition to projects eligible under the STP, the Act also allows States to expend these funds for certain port infrastructure and passenger and freight rail projects. The provision's several requirements and restrictions are detailed below. Because the Congress relied on the STP, deductions and set asides normally applicable to STP funds, such as funds for State planning and research, apply in the same manner as funds made available under the Act.

    A. Suballocation

The Act deviates from some of the suballocation rules of title 23. Urbanized and other areas must be suballocated 30% of the funds apportioned to each State. (This is less than the 56.25% otherwise suballocated under title 23.^[6]) Use of suballocated funds under the Act follows the same rules as funds suballocated under the STP currently. They must be expended in urbanized and other areas, but otherwise are administered by the States as regular Federal-aid highway funds. Suballocated funds are not subject to redistribution if not spent within 120 days or one year, but remain available for expenditure until September 30, 2010. This deadline cannot be extended.

    B. 100% Federal Funding / Program Set Asides / Apportionment

At the discretion of the State, the Federal share payable under the Act is up to 100% of eligible project costs. In addition, funds made available under the Act will not be subject to the "obligation ceilings" included in annual USDOT appropriation acts that normally apply to Federal-aid highway apportionments.

There are several set asides included in the $27.5 billion available through FHWA:

• $550 million is dedicated to Federal and Indian lands (and thus administered under chapter 2 of title 23)
• $20 million is for on the job training
• $20 million is for bonding assistance for Disadvantaged Business Enterprises (DBEs)
• $105 million is for Puerto Rico
• $45 million is for the other territories
• $60 million is for discretionary grants to ferry boat and terminal projects to be distributed to States, with priority to projects that can be completed within 2 years
• $40 million is for FHWA administration

The remainder ($26.7 billion) is apportioned to the States, with 50% to be apportioned in the same manner as STP funds, and 50% to be apportioned in the same manner as the obligation ceiling is apportioned under the FY2008 USDOT appropriations act.^[7] Three percent (3%) of the funds apportioned to the States must be set aside for transportation enhancement projects.

    C. Planning / Environmental / STP Requirements Apply

The Act creates no special processing provisions. In fact, the Act specifically provides that highway funds shall be administered "as if apportioned under chapter 1 of title 23, United States Code," eliminating the need for state and local governments to follow novel procedures. This means:

• Projects must be a product of the transportation planning process in order to be eligible for Federal funds under the Act. Thus, projects must come from a long range transportation plan and transportation improvement program (TIP) and/or State transportation improvement program (STIP).^[8] Projects must also comply with transportation conformity requirements in air quality nonattainment and maintenance areas. Projects not now on a STIP or TIP must be added to one in order to become eligible for funding under the Act. FHWA and FTA urged planning officials to begin this process last fall in anticipation of the enactment of the stimulus bill.

• Projects must comply with environmental and design requirements typically applicable to Federal-aid highway projects. Projects must meet the procedural requirements of the National Environmental Policy Act (NEPA) and other applicable environmental laws.

• Federal project administration requirements apply to projects funded under the Act in the same way that these requirements apply to projects generally eligible for STP funding.

• It should be noted that the DBE program is expressly made applicable to funding under the Act for both highway and transit projects.

• The Act includes a "Buy American" provision (§1605) that requires that all "iron, steel, and manufactured goods" used in projects funded by the Act be produced in the United States unless the head of the Federal agency funding the project finds that doing so is contrary to the public interest, the iron, steel or manufactured products are not readily available in sufficient quantity or quality, or the cost of the project is increased by more than 25% as a result. This finding must be published in the Federal Register. Section 1605 is almost identical to 23 U.S.C. §313, often referred to the "Buy America" provision. Section 313 applies to the use of "iron, steel, and manufactured products." Thus, this provision should not change existing "Buy America" requirements already applicable to the Federal-Aid Highway Program.^[9]

    D. 120 Days to Obligate 50% of Funds, 1 Year for Remainder

The Act set specific time deadlines by which funds not suballocated to urbanized and other areas must be obligated (70% of the amount apportioned to each State):

• Each State must obligate 50% of the amount within 120 days of the date that FHWA apportions the funds to the States (FHWA has stated that this will occur in the first part of March). If the State does not reach this goal, the shortfall is deducted from the State's apportionment and redistributed by FHWA using the procedures for redistributing the unused obligation ceiling. The Secretary has no flexibility to waive this requirement.

• The remaining 50% must be obligated within one year of apportionment. If the State does not reach this level, the shortfall will be redistributed in the same manner as above. However, this deadline may be extended, but only if the Secretary finds that there exists in the State an "extreme bidding environment" or other extenuating circumstances.

For the Federal-aid highway program, "obligation" occurs with execution of the project agreement under 23 U.S.C. §106.^[10] For most construction projects, this occurs when FHWA authorizes the project to be advertised for bids.^[11] For design/build projects, this occurs when the State issues the Request for Proposals.^[12] For planning and research activities, obligation occurs when FHWA approves the planning or research work plan.^[13] For projects qualifying for TIFIA funding, obligation occurs with the approval of the term sheet.^[14] Obligation is a specific act by FHWA that contractually obligates the Federal government to pay its share of the cost of the activity described in the obligation.

II. $1.5 BILLION DISCRETIONARY GRANT PROGRAM

The $1.5 billion discretionary "Supplemental Grants for a National Surface Transportation System" provision of the Transportation title is available for highway, rail, transit and port infrastructure projects. These funds will be awarded competitively, based on criteria that the Secretary must publish within 90 days of the effective date of the Act. Applications for grants must be made within 180 days, and awards will be given within one year. Once awarded, projects under this program will be administered under the same rules as apply to such projects generally.

Of this $1.5 billion, the Secretary may use up to $200 million for the Transportation Infrastructure Finance and Innovation Act (TIFIA) program. These funds are administered centrally by USDOT and are obligated based on the "subsidy amount" required for TIFIA loans Thus, each dollar of the subsidy amount can support approximately $8 in TIFIA loans. The Act's TIFIA funds are intended to remedy the current shortfall in available funds for projects.^[15]

III. RAIL PROGRAMS

The Act provides a total of $9.3 billion for high speed rail, intercity passenger rail service improvements, and Amtrak.

    A. $8 Billion - Capital Assistance for High Speed Rail Corridors and Intercity Passenger Rail Service

$8 billion is made available through three separate programs authorized pursuant to the Passenger Rail Investment and Improvement Act of 2008 ("PRIIA")^[16], which includes the following provisions:

• Section 301, Capital Assistance for Intercity Passenger Rail Service.^[17]
• Section 302, Congestion Grants.^[18]
• Section 501, High-Speed Rail Corridor Program.^[19]

Applicants eligible for rail funds under the Act may apply for grants with up to 100% federal share through any or all of the PRIIA provisions. Under the Act, the Secretary "shall give priority to projects that support the development of intercity high speed rail service."

USDOT must quickly generate both a strategic vision and implementing guidance, as the Act requires USDOT to submit to Congress, within 60 days of enactment, a "strategic plan that describes how the Secretary will use the funding provided under this heading to improve and deploy high speed passenger rail systems." Additionally, USDOT "shall issue interim guidance to applicants covering grant terms, conditions, and procedures until final regulations are issued" within 120 days of enactment. Both the vision and guidance will no doubt be observed closely.^[20]

A review of the Act's rail program and §§301, 302 and 501 of PRIIA answers some questions:

• Who can apply for funding? Applicants eligible to apply for §301 intercity passenger service grants include "a State (including the District of Columbia), a group of States, an Interstate Compact, or a public agency established by one or more States and having responsibility for providing intercity passenger rail service."^[21]

Section 302 provides authority for USDOT to make congestion reduction grants to "States, or to Amtrak in cooperation with States . . ."^[22]

Applicants eligible for §501 high speed rail grants include "a State, a group of States, an Interstate Compact, a public agency established by one or more States and having responsibility for providing high-speed rail service, or Amtrak."^[23]

• For what purposes can the funds be used? Funding for grants pursuant to §§301 and 501 can be used for "capital projects," as defined at 49 USC §§24401(2) and 26106(b)(3). Section 302 provides broad authority for USDOT to issue grants for "financing the capital costs of facilities, infrastructure, and equipment for high priority rail corridor projects necessary to reduce congestion or facilitate ridership growth in intercity rail passenger transportation."^[24]

Notably, the Act deleted the requirement in §§301 and 501 that an eligible "capital project" be included in a State rail plan. Additionally, grants awarded pursuant to §301 are subject to that program's new project management oversight and grant condition provisions.

• How long will rail funds be available under the Act? The Act requires that the $8 billion for high speed rail and intercity corridor service remain available until September 30, 2012.

    B. $1.3 Billion ­Amtrak Capital Grants

The Act provides $1.3 billion for Amtrak, of which $450 million must be used for "capital security grants." For the remaining $850 million, "priority shall be given to projects for the repair, rehabilitation, or upgrade of railroad assets or infrastructure, and capital projects that expand passenger rail capacity including the rehabilitation of rolling stock."

No funds provided to Amtrak under the Act can be used to subsidize operating losses. Not more than 60% of the non-security funds may be used for "projects along the Northeast Corridor." USDOT shall "take measures to ensure that projects funded under this heading shall be completed within 2 years of enactment . . . and shall serve to supplement and not supplant planned expenditures for such activities from other Federal, State, local and corporate sources."

Amtrak is required to award the funds not later than 30 days after enactment.

IV. BOND AND FINANCING INITIATIVES^[25]

Recognizing the importance of the municipal bond market in attracting capital investment for the nation's infrastructure in the Act, Congress approved several changes to existing bond provisions and added several new types of bonds available to state and local government issuers. According to a Government Finance Officers Association spokesperson speaking to The Bond Buyer Magazine, "Congress afforded state and local governments many tools—both with direct funding and with these bond provisions—that will allow governments to build necessary and essential infrastructure throughout the country."

    A. Private Activity Bonds (PABs) and the Alternative Minimum Tax

Market participants are especially pleased with provisions in §1503 of the Act that provide an exemption from the alternative minimum tax (AMT) for all PABs issued in 2009 and 2010 including those for qualified highway facilities, docks and wharves, airports, commuter rail and high speed rail facilities—as well as any bonds issued to refund bonds issued between 2004 and 2009. Some viewed the AMT as a major impediment to the issuance of private activity bonds for privately developed and operated toll roads.

    B. Build America Bonds

Section 1531 of the Act includes the new Build America Bonds provision. Issuers of government Build America Bonds may issue taxable bonds in 2009 and 2010 for capital expenditures in exchange for either a direct cash subsidy from the federal government or a tax credit for investors. The tax credit would equal 35% of the interest paid on the bonds. Mutual funds that purchase the tax credit bonds may pass the credit through to their investors, which should broaden the market for these instruments.

    C. Recovery Zone Bonds

Section 1401 of the Act provides $25 billion in assistance to economically distressed areas ("Recovery Zones") through two new tax credit bond programs which will be apportioned according to each State's relative employment decline. The $10 billion in Recovery Zone Economic Development Bonds will help finance economic development projects, including transportation infrastructure projects. The $15 billion in Recovery Zone Facility Bonds will help finance depreciable property to be used in Recovery Zones in the conduct of a trade or business, and could be used to finance toll road facilities.

    D. High Speed Rail PABs

Section 1504 of the Act amends current law so that high-speed rail projects qualify for PAB financing if the trains can attain a top speed of at least 150 miles per hour rather being required to operate in excess of this speed.

    E. Attracting Institutional Buyers

Sections 1501 and 1502 of the Act would make municipal bonds more attractive to bank purchasers by enhancing the deductibility of their costs of buying and carrying tax exempt bonds.

    F. No Withholding Payments to Government Contractors

Section 1511 of the Act would delay until 2012 the implementation of a 2005 statute requiring state and local governments to withhold 3% of all payments to government contractors. Critics of the law were pushing for a House proposal which would have permanently repealed the provision.

V. GENERAL PROVISIONS

    A. Oversight

The Act contains unprecedented oversight provisions:

• Both within the Transportation title specifically and generally in §§1514 and 1515, the Inspectors General are given broad authority to investigate fraud and abuse. They are given express authority to review the records and interview employees of entities using funds made available by the Act, including States, local governments, contractors, subcontractors, and subgrantees. Findings not related to criminal investigations or otherwise subject to confidentiality will be posted on the Internet.
  
  
• Section 1521 of the Act establishes the Recovery Accountability and Transparency Board (the Board) to "coordinate and conduct oversight of covered funds to prevent fraud, waste, and abuse." The Board is composed of key Inspectors General of agencies funding programs under the Act. The Chair of the Board may be the Deputy Director of the Office of Management and Budget or another presidential appointee confirmed by the Senate. The Board is charged with reviewing the proper administration of the Act, ensuring fair competition, and encouraging the sound expenditure of funds made available under the Act. The Board has investigative powers, can hold hearings, and is required to report regularly to the President and the Congress. Its reports are to be made publicly available and posted on its website. The broad reporting requirements described below are also administered by the Board. The Board can hire its own employees and use staff detailed from other agencies.
  
  
• Section 1541 of the Act establishes a Recovery Independent Advisory Panel. This panel, appointed by the President, advises the Board on ways to avoid waste, fraud and abuse in the administration of the Act. The panel can hold hearings and gather evidence from Federal agencies and other sources.
  
  
• Section 1513 provides for specific reports to Congress by the Council of Economic Advisors on the effects of the Act on the economy.

    B. Certification Requirements

There are two separate Certification requirements applicable to transportation projects:

• Section 1511 of the Act requires the Governor, mayor or other chief executive of a recipient to certify that each infrastructure investment has been properly reviewed and vetted. The certification must include an estimation of the total investment cost and the amount of funding under the Act that will be used. The certification must be posted on the website of the Recovery Accountability and Transparency Board. Making and posting the certification is a precondition to receiving any funding under the Act.
  
  
• Section 1201 of the Act, which is part of the Transportation title, also requires that the Governor certify to the Secretary of Transportation that the State will maintain its level of effort with regard to State funding for the types of transportation projects funded by the Act as of the effective date of the Act. This certification must be made within 30 days of the effective date of the Act, and must provide information about the level of State funding planned for such projects through September 30, 2010. Failure to maintain the level of effort in the certification will prevent the State from receiving any additional funds for the State's Federal-aid highway program from the August 2011 redistribution of obligation authority. Note that although this certification requirement must cover all modes of transportation funded under the Transportation title, only highway obligations are potentially affected by the failure to comply with the certification.

    C. Reporting Requirements

The Act contains extensive reporting requirements that must be met by the Federal agencies responsible for administering the various programs funded by the Act, as well as by recipients such as State and local governments.

Reporting requirements specific to transportation agencies are spelled out in §1201(c) of the Act. Each recipient must provide periodic reports to the Secretary of Transportation that include information regarding the following items:

• A description of how appropriated funds are allocated, obligated, and expended;
  
  
• The number of projects put out to bid and the federal funds involved in those projects;
  
  
• The number of contracts awarded and the federal funds involved in those projects;
  
  
• The number of projects begun and the number completed, and the federal funds involved;
  
  
• The number of jobs created or sustained by the Federal funding provided, both directly and, if possible, indirectly, including the total number of job-years and the increase in employment.
  
  
• The amount of funds spent on programs funded by the Act through September 30, 2010, as compared to the level of expenditures planned prior to the enactment of the Act.

Reports are required within 90 days, 180 days, and one, two and three years after enactment.

In addition, §1512 of the Act requires fund recipients to provide reports to the Federal agencies from which they receive funding under the Act. Their reports must include:

• The total amount of recovery funds received from that Federal agency;
  
  
• The amount of recovery funds received that were expended or obligated to projects or activities; and
  
  
• A detailed description of all projects or activities for which recovery funds were expended or obligated. For each project, the description must include:

(A) the name of the project or activity;
(B) a description of the project or activity;
(C) an evaluation of the completion status of the project or activity;
(D) an estimate of the number of jobs created and the number of jobs retained by the project or activity; and
(E) for infrastructure investments made by State and local governments, the purpose, total cost, and the agency's rationale for funding the infrastructure investment with funds made available under this Act, along with the name of the contact person at the agency if there are concerns with the infrastructure investment.

Reports under §1512 are due ten days after the end of each quarter, and Federal agencies must post the information received in these reports within 30 days after the end of each quarter. Recipients must start making reports within 180 days of enactment, and the reports are a condition of receiving further funding under the Act. The Office of Management and Budget is charged with providing guidance to recipients regarding this reporting requirement.

    D. Whistleblower Protection

Section 1553 of the Act establishes strong protections for employees of States, local governments and contractors who disclose to Federal officials gross mismanagement, gross waste of funds, specific threats to public health and safety, abuse of authority, or violations of law or regulation (including competition in contracting requirements). These employees may not be dismissed, demoted or discriminated against by their employer for providing this information, even in the regular course of their employment. The Act creates comprehensive review procedures to ensure that the employee is protected, and also to ensure that actions by employers unrelated to the whistle blowing are properly considered. The Act creates a Federal cause of action for those who believe that their rights were not properly addressed by the reviewing Federal officials.

    E. Expedited Review

The Act does little to specifically require reviewing Federal agencies to use expedited procedures to ensure that the deadlines for obligating projects are met. Section 3(b) of the Act provides that "the President and the heads of Federal departments and agencies shall manage and expend the funds made available in this Act so as to achieve the purposes [of the Act] including commencing expenditures and activities as quickly as possible consistent with prudent management."

Section 1609 of the Act reminds agencies of their duties under the National Environmental Policy Act (NEPA), but also provides that "adequate resources within this bill must be devoted to ensuring that applicable environmental reviews under NEPA are completed on an expeditious basis and that the shortest existing applicable process under the National Environmental Policy Act shall be utilized."

Taken together, these provisions should provide agencies a basis to consider expedited and emergency procedures. These procedures generally do not involve the waiver of substantive requirements. For NEPA, this means that that the agency administering funding under the Act might consult with the Council on Environmental Quality (CEQ) on ways of reviewing environmental impacts on an expedited basis, perhaps limiting the time and scope of public review. Economic hardship is recognized in the procedures of a number of agencies for using these kinds of emergency powers. The CEQ is believed to be working on guidance to Federal agencies. Other resource agencies may follow suit. However, even with expedited procedures, it is highly unlikely that a project involving significant environmental impacts could meet a 120 or 180 day deadline if it had not already been reviewed in a completed environmental impact statement (EIS).

Many other transportation projects that involve significant environmental impacts or are not close to the completion of the NEPA process will face difficulty in meeting the one year deadline or the general requirement that most funds be obligated by the end of fiscal year 2010. For example, for highway projects in FY2008, FHWA reported that it took an average of 75 months to complete the EIS process. Even projects requiring only an environmental assessment took about 12 to 26 months to complete the process. While agencies may be able to reduce this time, even substantial reductions may not be enough to enable projects at the beginning of the NEPA review process to use funds subject to the deadlines set forth in the Act.^[26]

Current agency guidance does not seem to reflect an intent to use the opportunities envisioned for creating expedited review processes. However, this may change, particularly if States and other recipients have difficulty in moving enough projects through the approval process to make full use of the funds the Act provides within the deadlines the Act establishes.

    F. Fixed Price Contracting

Section 1554 of the Act requires that fixed-price, competitive contracting must be used "to the maximum extent possible." Non-fixed-price contracts and those not awarded using competitive procedures must be posted in a special section of the Board's website. Arguably this provision should not prohibit the use of other contract types that are competitively awarded when this is necessary to efficiently implement projects authorized by the Act. Moreover, this provision likely must be reconciled with the stringent requirements for expedited project implementation. However, where alternative contracting mechanisms are used, the need to do so will have to be documented.

VI. CONCLUSION

The American Recovery and Reinvestment Act almost doubles the amount of transportation funding that is normally available in any given fiscal year. The Act uses existing statutory mechanisms for distributing funds and planning, developing, reviewing and constructing projects. Under these procedures, even relatively simple projects have often taken many months, if not years, to complete. At the same time, the economic crisis that the Act is designed to address mandates that funds be obligated within very short deadlines, compelling timely project start and completion of construction. The President's commitment to transparency and careful oversight has layered new and comprehensive reporting requirements on top of this process. While many questions and issues will arise as the Act is implemented, Federal transportation officials and their State and local counterparts anticipate a positive outcome.

For further information, please contact:

Edward V.A. Kussy, ekussy@nossaman.com or 202.887.1464
Karen J. Hedlund, khedlund@nossaman.com or 202.887.1420
Donald M. Itzkoff, ditzkoff@nossaman.com or 202.887.1482
Barney A. Allison, ballison@nossaman.com or 213.612.7847
Adam S. Horsley, ahorsley@nossaman.com or 202.887.1493

Edward V.A. Kussy is the former deputy chief counsel, Federal Highway Administration and specializes n federal transportation policy issues.
Karen J. Hedlund is a nationally prominent infrastructure attorney specializing in federal policy and public-private partnerships.
Donald M. Itzkoff is a former deputy administrator for the Federal Railroad Administration and provides public and private transportation clients with legislative, regulatory, and strategic advice.
Barney A. Allison is an infrastructure attorney with a special focus on bond issues and innovative financing for public-private partnerships.
Adam S. Horsley is an associate with Nossaman's Infrastructure Practice Group.