A. Selection of Projects. Any proposer or responsible state agency may submit to the Partnership Committee one or more proposals for partnership projects in connection with any public service. The Partnership Committee shall identify potential projects and public services for which a public-private partnership may be appropriate from those received from a proposer, a responsible state agency or those identified by the Partnership Committee itself. The Partnership Committee shall select such projects based on the partnership's potential to improve public operational efficiencies, improve environmental performance, promote public safety, attract private investment in the state and minimize governmental liabilities.
B. Public-Sector Comparators. After the Partnership Committee identifies a potential partnership for a public project or public service, the Office of Public-Private Partnerships shall conduct a public-sector comparator study of the potential partnership. The Partnership Committee shall determine the scope of each public sector comparator, which scope shall depend on the type of proposed partnership and the nature of the public service under consideration for the partnership. The following issues shall be considered as components of a public sector comparator:
1. The definition of the need served by the proposed partnership;
2. The cost required to meet the public need served by the public service under traditional procurements or traditional state agency operations;
3. An analysis of alternative methods for providing the public services under consideration, including but not limited to design-build, design-build-finance, design-build-finance-operate-maintain, service contracts or leases and how the alternative method(s) would meet the need served by the public service; and
4. An evaluation of the cost/benefit of using an alternative method or public-private partnership to render a public service, which cost/benefit analysis shall include:
C. The Partnership Committee shall use the results of the public sector comparator to determine which public services and projects are appropriate for partnership. The Office of Public-Private Partnerships shall publish on its website the public sector comparator for each project to provide a public service for which a request for qualifications is initiated.
D. The Office of Public-Private Partnerships shall publish notice of the intent to enter into a contract for a partnership for public service or related project and shall prepare a request for qualifications for private sector entities interested in serving as proposers for the partnership. The notice shall notify interested parties of the opportunity to submit their qualifications for consideration and shall be published at least sixty (60) days prior to the deadline for submitting those qualifications. The Office also may advertise the information contained in the notice in appropriate trade journals and otherwise notify parties believed to be interested in providing the public service and in any related project.
E. After inviting proposers to bid on the project, the Partnership Committee shall evaluate the qualifications submitted and may hold discussions with proposers to further explore their qualifications. Following this evaluation, the Partnership Committee may determine a list of qualified proposers based on criteria in the invitation and invite only those proposers to submit a proposal.
F. The Office of Public-Private Partnerships shall prepare a request for proposal, which may include proposal stipends and the proposed partnership contract, both of which shall be approved by the Partnership Committee. After the Partnership Committee's approval of the request for proposal and the partnership contract, the project shall be deemed an Approved Partnership Procurement.
G. Partnership contracts may contain the terms and conditions to carry out and effect the purposes of this act, including the duration of the contract, which shall not exceed ninety-nine (99) years, rates or fees for the public services to be provided or methods or procedures for the determination of such rates or fees, standards for the public services to be provided, responsibilities and standards for operation and maintenance of any related project, required financial assurances, financial and other data reporting requirements, bases and procedures for termination of the contract and retaking of possession or title to the project, and events of default and remedies upon default, including mandamus, a suit in equity, an action at law or any combination of those remedial actions. Partnership contracts may also include a requirement for the delivery of performance and payment bonds required for all construction activities and letters of credit, surety bonds or other security in connection with the development or operation of the qualifying project in the forms and amounts satisfactory to the responsible governmental entity.
H. After proposals are received, the Office of Public-Private Partnerships, using the criteria established in the request for proposal by the Partnership Committee, shall evaluate the proposals submitted and may hold discussions with proposers to further explore their proposals, the scope and nature of the public service(s) they would provide and the various technical approaches they may take regarding the public service and any related project. Following this evaluation, the Partnership Committee shall select and rank no fewer than three proposers that the Partnership Committee considers to be the most qualified to enter into the contract, except when the Partnership Committee determines that fewer than three qualified proposers are available, in which case the Partnership Committee shall select and rank them.
I. After the proposers have been ranked by the Partnership Committee, the Director of the Office of Management and Enterprise Services (OMES) and the authorized representative of the responsible state agency shall negotiate the contract with the proposer ranked most qualified to provide the public service at a compensation determined in writing to be fair and reasonable and to purchase, lease or otherwise take a legal interest in the project.
J. Upon failure to negotiate a contract with the proposer ranked most qualified, the Director of OMES shall inform the proposer in writing of the termination of negotiations and may enter, with the responsible state agency, into negotiations with the proposer ranked next most qualified. If negotiations again fail, the same procedure may be followed with each next most qualified proposer selected and ranked, in order of ranking, until a contract is negotiated and executed or the request for proposal is withdrawn.
K. If the Director of OMES and the authorized representative of the responsible state agency fail to negotiate a contract with any of the ranked proposers, the Director of OMES, in consultation with the responsible state agency, may terminate the process or select and rank additional proposers based on their qualifications or proposals, and negotiations shall continue as with the proposers selected and ranked initially until a contract is negotiated.
L. The Director of OMES and the authorized representative of the responsible state agency may jointly reject any and all submissions of qualifications or proposals and may jointly terminate the procurement process at any point.
M. The Director of OMES and the authorized representative of the responsible state agency shall have the authority to make commercially reasonable changes to the partnership contract approved by the Partnership Committee. Any such contract may contain the terms and conditions to carry out and effect the purposes of this act.
N. Any submission not selected by the responsible state agency shall be considered intellectual property that shall remain the property of the proposer.
Added by Laws 2017, c. 251, § 5, eff. Nov. 1, 2017.