LEGISLATIVE REQUIREMENTS LEGISLATIVE REQUIREMENTS FOR UNSOLICITED PROPOSALSFOR UNSOLICITED PROPOSALS

FLORIDA COUNCIL FOR PUBLIC/PRIVATE FLORIDA COUNCIL FOR PUBLIC/PRIVATE PARTNERSHIPSPARTNERSHIPS

OCTOBER 3, 2013OCTOBER 3, 2013

Lee A. Weintraub, Esq.Lee A. Weintraub, Esq.Becker & Poliakoff, P.A.Becker & Poliakoff, P.A.

3111 Stirling Road3111 Stirling RoadFt. Lauderdale, FL 33311Ft. Lauderdale, FL 33311

954-985-4147954-985-4147lweintraub@bplegal.comlweintraub@bplegal.comgburgess@bplegal.comgburgess@bplegal.com

Section 287.05712 applies to any facility Section 287.05712 applies to any facility or project serving a public purposeor project serving a public purpose

It applies to counties, municipalities, It applies to counties, municipalities, school boards, any other political school boards, any other political subdivision of the state, and any public subdivision of the state, and any public body, corporate and politicbody, corporate and politic

Public Entity GuidelinesPublic Entity Guidelines

Formal establishment or adoption of Formal establishment or adoption of guidelines by public entity is not required guidelines by public entity is not required for entity to request or receive P3 for entity to request or receive P3 proposalsproposals

Public entity may adopt its own guidelines Public entity may adopt its own guidelines provided they are consistent with this statuteprovided they are consistent with this statute

Procurement ProceduresProcurement Procedures

Public entity may receive unsolicited proposals Public entity may receive unsolicited proposals or may solicit proposals through traditional or may solicit proposals through traditional procurement methodsprocurement methods

Public entity may establish a reasonable Public entity may establish a reasonable application fee for unsolicited proposalsapplication fee for unsolicited proposals Fee must be sufficient to pay costs of evaluating the Fee must be sufficient to pay costs of evaluating the

proposalproposal Public entity may hire private consultants to assist in Public entity may hire private consultants to assist in

the evaluation, paid for by private entity the evaluation, paid for by private entity

CONTENTS OF UNSOLICITED CONTENTS OF UNSOLICITED PROPOSALSPROPOSALS

Unsolicited proposal must be accompanied by Unsolicited proposal must be accompanied by following items, unless waived by public entity:following items, unless waived by public entity: Conceptual design of facility and schedule for Conceptual design of facility and schedule for

constructionconstruction Description of method by which private entity Description of method by which private entity

proposes to secure necessary property interestsproposes to secure necessary property interests Description of private entity’s general plans for Description of private entity’s general plans for

financing projectfinancing projectIncludes sources of private entity’s funds and identity of any Includes sources of private entity’s funds and identity of any dedicated revenue source or proposed debt or equity dedicated revenue source or proposed debt or equity investment on behalf of private entityinvestment on behalf of private entity

CONTENTS OF UNSOLICITED CONTENTS OF UNSOLICITED PROPOSALSPROPOSALS

Proposed user fees, lease payments or other Proposed user fees, lease payments or other service payments over term of agreementservice payments over term of agreement

Including methodology for and circumstances that Including methodology for and circumstances that would allow changes to user fees would allow changes to user fees

Procurement ProceduresProcurement Procedures

If the public entity intends to enter into a If the public entity intends to enter into a comprehensive agreement, it must publish comprehensive agreement, it must publish notice in the Florida Administrative notice in the Florida Administrative Register and newspaper of general Register and newspaper of general circulation at least once a week for two circulation at least once a week for two weeksweeks

Procurement ProceduresProcurement ProceduresNotice must provide that the public entity has Notice must provide that the public entity has received a proposal and will accept other received a proposal and will accept other proposals for the same projectproposals for the same project

Time frame for accepting other proposals shall Time frame for accepting other proposals shall be determined by public entity on project by be determined by public entity on project by project basisproject basis Based upon complexity of the project and the public Based upon complexity of the project and the public

benefit to be gained by allowing a longer or shorter benefit to be gained by allowing a longer or shorter period of time for competing proposalsperiod of time for competing proposals

Time frame must be at least 21 days, but no more Time frame must be at least 21 days, but no more than 120 days, after initial date of publicationthan 120 days, after initial date of publication

Copy of the notice must be mailed to each local Copy of the notice must be mailed to each local government in affected areagovernment in affected area

Project Qualification and ProcessProject Qualification and Process

After competitive bidding period has expired, After competitive bidding period has expired, public entity ranks proposals received in order of public entity ranks proposals received in order of preferencepreference Public entity may consider professional qualifications, Public entity may consider professional qualifications,

general business terms, innovative design general business terms, innovative design techniques, cost reduction terms, and finance planstechniques, cost reduction terms, and finance plans

Private entity must meet minimum standards Private entity must meet minimum standards contained in public entity’s guidelines for qualifying contained in public entity’s guidelines for qualifying professional services & contracts for traditional professional services & contracts for traditional procurement projectsprocurement projects

Project Qualification and ProcessProject Qualification and Process

Public entity may then begin negotiating Public entity may then begin negotiating with highest ranked firmwith highest ranked firm If pubic entity is not satisfied with results of If pubic entity is not satisfied with results of

negotiations, public entity may terminate negotiations, public entity may terminate negotiations and begin negotiating with negotiations and begin negotiating with second ranked firmsecond ranked firm

Public entity may reject all proposals at any Public entity may reject all proposals at any point in processpoint in process

Project Qualification and ProcessProject Qualification and Process

Public entity shall perform independent Public entity shall perform independent analysis of proposed P3 to demonstrate analysis of proposed P3 to demonstrate cost-effectiveness & overall public benefit cost-effectiveness & overall public benefit before initiating procurement process or before initiating procurement process or awarding contractawarding contract

Procurement ProceduresProcurement Procedures

Public entity is authorized to approve project Public entity is authorized to approve project if:if:

Project is in public’s best interestProject is in public’s best interest Facility is owned by public entity or ownership will be conveyed Facility is owned by public entity or ownership will be conveyed

to public entityto public entity Adequate safeguards in place to ensure additional costs or Adequate safeguards in place to ensure additional costs or

service disruptions are not imposed on public if material default service disruptions are not imposed on public if material default or cancellation of agreementor cancellation of agreement

Adequate safeguards in place to ensure capacity may be added Adequate safeguards in place to ensure capacity may be added if desired if desired

Estimated cost is reasonable in relation to similar facilitiesEstimated cost is reasonable in relation to similar facilities