Reed Smith Client Alerts

I. Overview: The Department of Transportation ("DOT") is once again soliciting requests for surface transportation infrastructure projects. This began in the American Recovery and Reinvestment Act of 2009 (“Recovery Act”) under the Grants for Transportation Investment Generating Economic Recovery Program, commonly called "TIGER." The popularity of this program has endured through the years, even though the total funding amount has decreased and the name is, technically, no longer TIGER. This year the DOT is providing $600 million in funding for “National Infrastructure Investments,” as directed by Congress in the Consolidated Appropriations Act, 2014 (Public Law 113-76). But a TIGER by any other name still has its roar and clients are advised to take advantage.

II. History and Scope: TIGER’s popularity has been evidenced by its staying power over the years. Even as Congress and the President have wrestled with the appropriate level of cuts to the federal budget under the “sequestration” process, TIGER has still received funding. The Recovery Act initially appropriated $1.5 billion for TIGER, which wound up funding 51 road, rail and port projects. The annual amount has decreased: from $600 million in Fiscal Year 2010 (“FY 10”), $526.944 million for FY 11, $500 million for FY 12, $473.847 million for FY 13 to the current $600 million . But it has not disappeared. It is testament to how ingrained the program has become that while Congress did not give the current iteration the name of TIGER, the DOT’s Notice of Funding Availability (NOFA) states that it will continue to refer to the program as “TIGER Discretionary Grants” (Page One). Another sign of TIGER’s popularity is the fact that its scope has been expanded to cover transportation planning projects, as well as capital projects. For this round of TIGER funding, up to $35 million will go to planning grants.

III. Eligibility: Page Five of the NOFA indicates that “eligible applicants” for TIGER Discretionary Grants are

  1. State, local and tribal governments
  2. Transit agencies
  3. Port Authorities
  4. Metropolitan Planning Organizations (MPOs).

Eligible surface transportation projects fall in the following categories

  1. Highway and Bridge Projects
  2. Mass Transit
  3. Passenger and freight rail
  4. Port Infrastructure
  5. Intermodal.

Projects do not have to be limited solely to transportation needs but can cross into other areas, such as housing, economic development, and storm-water and other infrastructure investments. However they must result in “publicly accessible surface transportation infrastructure” (Page Seven).

IV. Primary and Secondary Selection Criteria:

The Primary Selection Criteria for TIGER projects are:

  1. State of Good Repair. The DOT wants projects that return or keep a facility in a state of good repair, especially those that “minimize life cycle costs and improve resilience” (Page 12).
  2. Economic Competitiveness. The DOT wants projects that contribute “to the
    economic competitiveness of the United States and…creat[e] and preserv[e] jobs” (Id). The NOFA emphasizes projects that fall in “Economically Distressed Areas” as deserving particular attention. The DOT defines “economically distressed” generally as areas that have either:
    a. An unemployment rate for the past two years at least one percent
    greater than the national average; or
    b. Per capita income 80 percent or less of the national average.
    (Using criteria set forth in section 301(a)(1) and (2) of the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3161).
  3. Quality of Life. The DOT is focusing on projects that create “affordable and
    convenient transportation choices,” one of its six “Livability Principles.” Projects that connect “economically disadvantaged populations, non-drivers, senior citizens, and persons with disabilities with employment, training, and education will receive particular consideration” (Page 14).
  4. Environmental Sustainability. The DOT will assess the project’s ability to:
    a.  reduce energy use and air or water pollution;
    b. avoid adverse environmental impacts to air or water quality;
    c. provide environmental benefits such as brownfield redevelopment,
    wetlands creation or storm-water mitigation.
  5. Safety. The DOT will look for projects that “reduce the number, rate, and consequences of surface transportation-related accidents, serious injuries, and fatalities among operators, drivers and/or non-drivers; [contribute] to the elimination of highway/rail grade crossings, or [prevent] unintended releases of hazardous materials” (Page 15).

The Secondary Selection Criteria for TIGER projects are:

  1. Innovation. The DOT looks for innovative technology used in a project, such as intelligent transportation systems, dynamic pricing and smart card technology (Page 15).
  2. Partnership. The DOT looks for a partnership with other entities, such as state or local governments, other public entities, and private or non-profit entities
    (Page 16).

V. Not all applications are viewed the same: We know that not all applications are viewed the same. The NOFA talks, for example, of state of repair, economic competitiveness and quality of life as primary criteria for deciding a project’s worth (Page 15). We would note they are crucial. But our work representing clients in prior rounds of funding note other things of equal importance such as:

  1. Location helps. We know that the location of a project helps in the decision to receive funding. Projects located in rural areas, for example, receive special consideration. The DOT lowers the minimum grant amount for rural projects to $1 million, to allow more rural projects to receive funding. It also requires that 20 percent of the total funding s provided for TIGER Discretionary Grants (or $120 million) shall be used for projects located in rural areas. Finally, the local match for rural projects drops from 20 percent to 0 percent.
  2. Higher local share helps. While the average local match is 20 percent (except for the rural projects listed above), we know that the DOT values projects where as high a local match as possible is offered. The NOFA notes on Page 31 that “planning applications will be more competitive if they can demonstrate funding support above the 20 percent match requirement for urban areas, and the 0 percent match requirement for rural areas.
  3. Congressional support is vital. Our work on prior applications has shown time and again that you cannot go to the DOT without securing the support of the local members of Congress. The DOT goes to each member to gauge their support (or lack thereof) for every application. We know how to work with each Member to gain their support and have done so in the past.

VI.  The deadline is fast approaching: The deadline for applications is April 28, 2014. We are partnered with a former Administration official, who can help provide guidance on the process at the DOT. The NOFA notes that it takes two to four weeks to complete the application. Let us know if we can work with you.


Client Alert 2014-097