MARYLAND DEPARTMENT OF TRANSPORTATION AND MARYLAND TRANSIT ADMINISTRATION REQUEST FOR PROPOSALS TO DESIGN, BUILD, FINANCE, OPERATE AND MAINTAIN THE

Transcription

1 MARYLAND DEPARTMENT OF TRANSPORTATION AND MARYLAND TRANSIT ADMINISTRATION REQUEST FOR PROPOSALS TO DESIGN, BUILD, FINANCE, OPERATE AND MAINTAIN THE PURPLE LINE PROJECT THROUGH A PUBLIC-PRIVATE PARTNERSHIP AGREEMENT INSTRUCTIONS TO PROPOSERS ISSUED JULY 28, 2014 FINAL REQUEST FOR PROPOSALS ADDENDUM #1 ISSUED SEPTEMBER 26, 2014 MDOT/MTA Purple Line Project Final Request for Proposals Instructions to Proposers

2 TABLE OF CONTENTS Page Section 1.0 INTRODUCTION AND GENERAL PROVISIONS Introduction Purpose; General Project and Scope of Work Description; Status of Environmental Approval Documents in the Request for Proposals Definitions and Acronyms Key Solicitation Milestones and Solicitation Schedule; Commercial and Financial Close Deadlines General Provisions Regarding Proposals Restrictions from Participation Federal and State Requirements Federal Funding and Financing Section 2.0 SOLICITATION PROCESS Solicitation Method Receipt of the Request for Proposal Documents, Communications and Other Information Questions and Responses Regarding the RFP and Addenda Pre-Proposal Submittals Pre-Proposal Meetings and Requests for Information Examination of RFP and Site Access Changes in Proposer s Organization and Key Personnel Light Rail Vehicle (LRV) Supplier [Reserved] Non-Exclusive Relationship with Monoline Insurers and Rating Agencies Release of Exclusive Relationship with Core Lender(s) and Lead Underwriter Non-Exclusive Relationship with Multiple Lead Underwriter(s) Section 3.0 ALTERNATIVE TECHNICAL CONCEPT REVIEWS Alternative Technical Concepts Pre-Proposal Submission of ATCs Owner Review of Pre-Proposal Submission of ATCs MDOT/MTA i Final Request for Proposals Purple Line Project Instructions to Proposers

3 3.4 Incorporation of ATCs into the Contract Documents Confidentiality of ATCs Section 4.0 REQUIREMENTS FOR SUBMITTAL OF PROPOSALS AND ACCEPTANCE OF DELIVERY BY owner General Submittal Requirements Requirement to Submit Compliant Proposal General Format Additional Requirements for Proposal Delivery Currency Modifications, Withdrawals and Late Submittals Forfeiture of Proposal Security; Relief from Obligation to Close By Specified Deadline Acceptance of Delivery by the Owner Section 5.0 EVALUATION AND POST-SELECTION PROCESS Overview P3 Objectives Organization of Evaluation Committees Responsibility Determination Best Value Determination Pass/Fail and Responsiveness Evaluation Qualitative Evaluation Technical Proposals Financial Proposals Requests for Clarification; Requests for Best and Final Offers Identification of the Selected Proposer and Finalization of the Agreement Owner Review of Post-Selection Deliverables Section 6.0 AWARD AND EXECUTION; POST-EXECUTION ACTIONS Final Award, Execution and Delivery of Contract Documents Ownership of Work Product and Stipend Payment Costs Not Reimbursable Financial Close Security and Return of Proposal Security Section 7.0 CONTRACT FORMATION DISPUTE PROCEDURES MDOT/MTA ii Final Request for Proposals Purple Line Project Instructions to Proposers

4 7.1 Section Definitions Form and Filing Time for Filing Requested Information Time for Filing Making Information on Protests Available Negotiation with Protester and Interested Parties Decision by the Contracting Officer and Reviewing Authority Time for Filing Appeal Request for Hearing Right to Proceed with Solicitation and Agreement Right to Legal Remedies Section 8.0 OWNER RESERVED RIGHTS AND DISCLAIMERS Reserved Rights Disclaimers MDOT/MTA iii Final Request for Proposals Purple Line Project Instructions to Proposers

5 EXHIBITS Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G ITP Definitions and Acronyms Technical Proposal Instructions Financial Proposal Instructions Required Forms Project Labor Agreement Requirements Summary and Order of Proposal Contents P3 Objectives and Evaluation Criteria/Sub-Criteria Summary Matrix FORMS Form A Proposal Letter Form B-1 Identification of Proposer and Equity Members Form B-2 Information About Proposer Organization Form B-3 Information About Major Participants and Other Identified Contractors Form C Proposal Affidavit Form D Certification Regarding Labor Peace Agreement for On-Site Operations and Maintenance Employees Form E Personnel Work Assignment Form and Commitment of Availability Form F Non-Collusion Affidavit Form G-1 Buy America Certification Light Rail Vehicles Form G-2 Buy America Certification Steel, Iron, and Manufactured Products Form H-1 Proposer s Acknowledgement of DBE and MBE Program Requirements Form H-2 (Design Work) MDOT DBE Form A Federally-Funded Contracts Certified DBE Utilization and Fair Solicitation Affidavit Form H-3 (Design Work) MDOT DBE Form B Federally-Funded Contracts DBE Participation Schedule Form H-2 (Construction Work) MDOT DBE Form A Federally-Funded Contracts Certified DBE Utilization and Fair Solicitation Affidavit Form H-3 (Construction Work) MDOT DBE Form B Federally-Funded Contracts DBE Participation Schedule Form H-4 MDOT DBE Form C Federally-Funded Contracts Outreach Efforts Compliance Statement Form H-5 MDOT DBE Form D Federally-Funded Contracts DBE Subcontractor Project Participation Affidavit Form H-6 MDOT MBE/DBE Form E Good Faith Efforts Guidance and Documentation Form H-7 MDOT MBE Forms Package Form I-1 Conflict of Interest Disclosure Statement (Federal) Form I-2 Conflict of Interest Affidavit and Disclosure (Maryland) Form J NPV Proposal Form Form K-1 Proposal Bond Form K-2 Form of Letter of Credit (Proposal) Form L Confidentiality Agreement Form M Opinion of Counsel MDOT/MTA iv Final Request for Proposals Purple Line Project Instructions to Proposers

6 Form N Form O-1 Form O-2 Form O-3 Form O-4 Form O-5 Form O-6 Form P Form Q Form R Form S Form T Form U-1 Form U-2 Form V Form W-1 Form W-2 Form W-3 Form W-4 Form X Form Y Form Z Completion Deadlines D&C Work Pricing Sheet LRV Option Pricing Insurance Pricing Sheet Hazardous Material Remediation Pricing Sheet O&M Period Pricing Sheet Availability Payment Mechanism Pricing Sheet Financial Plan Summary Equal Employment Opportunity Certification Use of Contract Funds for Lobbying Certificate Living Wage Affidavit of Agreement Drug and Alcohol Free Workplace Certification Form of Financial Close Bond Form of Financial Close Security Irrevocable Standby Letter of Credit Nationally Targeted Worker FTE Projections and Skill Requirements Information Regarding Light Rail Vehicle Supplier Light Rail Vehicle Supplier Certification U.S. Manufacturing Employment Plan Light Rail Vehicles Certification of Approved Disadvantaged Business Enterprise Annual Goal (LRV Supplier) Form of Stipend Agreement Proposer s Minimum Insurance Requirements Letter from Independent Insurance Broker/Consultant MDOT/MTA v Final Request for Proposals Purple Line Project Instructions to Proposers

7 INSTRUCTIONS TO PROPOSERS (Request for Proposals: Purple Line Project) SECTION 1.0 INTRODUCTION AND GENERAL PROVISIONS 1.1 Introduction The Request for Proposals ( RFP ) is issued by the Maryland Transit Administration ( MTA ) and the Maryland Department of Transportation ( MDOT ) (collectively referred to as Owner or MTA/MDOT ), to seek competitive proposals (individually, a Proposal and collectively, Proposals ) for an availability payment concession publicprivate partnership to be evidenced by a public-private partnership agreement ( Agreement ), as more fully described in the RFP. The Agreement shall provide that the Concessionaire shall finance, develop, design, construct, equip and supply light rail vehicles for, and operate and maintain the Purple Line Light Rail Project ( Project ) through an availability payment concession. The form of Agreement, with the other Contract Documents, is included with the RFP. The Owner is issuing the RFP to those Proposers shortlisted on January 8, 2014, based on the Owner s evaluation of Statements of Qualification ( SOQs ) delivered to the Owner on December 10, 2013 in response to the Request for Qualifications for the Purple Line Project issued on November 8, 2013 (as amended, the RFQ ). Proposers must comply with these Instructions to Proposers ( ITP ) during the solicitation. 1.2 Purpose; General Project and Scope of Work Description; Status of Environmental Approval Purpose The Owner has determined that the P3 approach to the Project will: Increase the likelihood of consistently excellent, highly responsive service; Integrate various Project elements into a single agreement that clearly outlines the optimal allocation of Project risk between the public and private partners; Provide greater incentive to make investment decisions that are optimized over the life of the asset; Provide strong incentives for the private partner to maintain schedule discipline during the Term; MDOT/MTA 1 Final Request for Proposals Purple Line Project Instructions to Proposers

8 Provide the private sector with opportunities and incentives to propose enhancements to the asset design and delivery approach that could benefit longterm operating and maintenance performance; and Through operational benefits, risk transfer efficiencies, life-cycle planning, schedule discipline, and innovation opportunities, provide long-term financial savings relative to a traditional project delivery approach General Project and Scope of Work Description The Concessionaire will be responsible for the financing, development, design, construction, equipping, supply of light rail vehicles for, and operations and maintenance of the Project in accordance with the Contract Documents. A general description of the Project and the Concessionaire s scope of work is set forth in Part 1 of the Technical Provisions Status of Federal Environmental Approval MTA has followed and continues to follow FTA s guidance for compliance with the National Environmental Policy Act ( NEPA ). The Final Environmental Impact Statement ( FEIS ) was published in the Federal Register on September 6, A NEPA Record of Decision ( ROD ) for the Project was signed by FTA on March 19, 2014 and published in the Federal Register on March 31, The 180-day deadline for submitting claims associated with the FTA ROD has expired. The FTA was served on September 8, 2014 with an action captioned Friends of the Capital Crescent Trail v. FTA, Civil Case No (RJL), in the U.S. District Court for the District of Columbia. While this litigation is not anticipated to impact construction or schedule, MTA will be filing a timely Motion to Intervene in this litigation and provisions in the RFP address litigation concerns. Nothing contained in this RFP is intended to modify, limit, or otherwise constrain the environmental process or commit the Owner or any other entity to undertake any action with respect to the Project, including any solicitation or the final design and construction of the proposed Project. 1.3 Documents in the Request for Proposals General The RFP consists of the following, and any other documents that may be issued by Addendum, as such documents may be amended and supplemented: (a) this ITP (including exhibits and forms) MDOT/MTA 2 Final Request for Proposals Purple Line Project Instructions to Proposers

9 (b) (c) the Contract Documents the Reference Documents Refer to Section 1.2 of the Agreement for the list of the Contract Documents and their order of precedence. A list of the Reference Documents will be furnished to the Proposers Availability of Reference Documents The Reference Documents, which can be accessed through the Website, are included in the RFP for the purpose of providing information to Proposers. Except as may be expressly provided otherwise in the Contract Documents, (a) the Reference Documents are neither mandatory nor binding and (b) Proposers are not entitled to rely on the Reference Documents or any information, opinions, suggestions, directions or recommendations therein as (i) presenting solutions for the financing, development, design, construction, equipping, supply of the light rail vehicles for, or (ii) operating or maintenance of, the Project or other direction, means or methods for complying with the requirements of this solicitation, the Contract Documents, Governmental Approvals or applicable Laws Owner s Disclaimer Related to Reference Documents Except as may be expressly provided otherwise in the Contract Documents, the Owner shall not be responsible or liable in any respect for any causes of action, suits, judgments, claims, expenses, damages or losses whatsoever suffered or brought by any Proposer by reason of (a) any use, in connection with participation in this solicitation, of information, opinions, suggestions or recommendations contained in the Reference Documents or (b) any action or forbearance in reliance on the Reference Documents. Although the Reference Documents may include interpretations, extrapolations, analyses and recommendations concerning data, design solutions, technical issues and solutions and means and methods, such interpretations, extrapolations, analyses and recommendations are (i) preliminary in nature and, in many cases, are obsolete; (ii) not intended to express the views or preferences of the Owner or any other Governmental Entity or represent any statement of approval or acceptance thereof by the Owner or any other Governmental Entity; and (iii) not intended to form the basis of a Proposer s design solutions, technical solutions or construction means and methods. Except as may be expressly provided otherwise in the Contract Documents, Proposers shall use or not use the Reference Documents at their sole risk and remain solely responsible and liable for (1) all investigations and analyses relating to the Project, including those relating to Site conditions, geotechnical conditions, Utilities, structures and bridge design, (2) the preparation of their Proposals, and (3) any design, construction, operations and maintenance solutions, means, and methods that they select, in each case, without regard to anything contained in the Reference Documents. MDOT/MTA 3 Final Request for Proposals Purple Line Project Instructions to Proposers

10 The Owner does not represent or warrant that the information, opinions, suggestions or recommendations contained in the Reference Documents are complete or accurate or that such information, opinions, suggestions or recommendations are in conformity with the requirements of the RFP, Governmental Approvals or applicable Laws. Proposers shall have no right to compensation, time extension or other claim in connection with participation in this solicitation based on any incompleteness or inaccuracy in the Reference Documents, except as otherwise expressly provided in the Contract Documents. 1.4 Definitions and Acronyms Refer to Exhibit A hereto for the meaning of various capitalized terms and acronyms used but not defined herein, and refer to Exhibit 1 to the Agreement for the meaning of capitalized terms and acronyms used but not defined herein or in said Exhibit A. 1.5 Key Solicitation Milestones and Solicitation Schedule; Commercial and Financial Close Deadlines Key Solicitation Milestones and Solicitation Schedule The following represents the key solicitation milestones: EVENT DATE and TIME Issue Final RFP July 28, 2014 Proposal Due Date January 9, 2015 at 12:00 P.M. (Eastern Time) Anticipated Notification of Selected Proposer On or before March 12, 2015 Execution of Agreement and Other Execution Documents by the Concessionaire Review, Analysis and Comment Period Required by the Act Commercial Close Financial Close On or before 30 days after notification of the Selected Proposer No more than 30 days after posting of Agreement No later than 3 days after Board of Public Works Approval No later than 180 days after the Proposal Due Date (unless provided otherwise in the Agreement) Additional solicitation events and deadlines are set forth in the Solicitation Schedule that is accessible through the Website. All dates set forth in the Solicitation Schedule are MDOT/MTA 4 Final Request for Proposals Purple Line Project Instructions to Proposers

11 subject to change by the Owner, and Proposers shall be solely responsible for monitoring the Solicitation Schedule for any such changes Commercial Close and Financial Close Deadlines If Proposer is notified as the Selected Proposer, Proposer shall be required to, on or before the date specified in Section 1.5.1, deliver to the Owner executed copies of the Agreement and the documents required under Section Once the Agreement and Execution Documents have been executed by the Concessionaire, they will be held by the Owner in safekeeping until the Board of Public Works has approved the Agreement. Commercial Close will occur once the Board of Public Works has approved the Agreement and the Owner has executed the Agreement. The Owner may extend the deadline for Commercial Close by written notice to the Selected Proposer, but may not extend the date of Commercial Close beyond the 180-day Proposal validity period without mutual agreement by the Selected Proposer. Concessionaire shall be required to achieve Financial Close as set forth in the Agreement. 1.6 General Provisions Regarding Proposals The Owner is issuing the RFP in accordance with the provisions of Title 10A of the State Finance and Procurement Article of the Annotated Code of Maryland ( Act ) and Title 11, Subtitle 01, Chapter 17 of the Code of Maryland Regulations ( P3 Regulations ). The Proposers and their respective Proposals must comply with the requirements of the RFP, the Act, P3 Regulations and other applicable Law. By submitting a Proposal, a Proposer agrees to the terms, conditions, and requirements contained in the RFP, the Act, P3 Regulations and other applicable Law. Further, any questions, issues or disputes relating to the RFP shall be governed by Maryland law. After Commercial Close, the requirements of the Contract Documents shall govern Proposal Contents As used in this solicitation, the term "Proposal" means a Proposer's complete response to this RFP, including (a) a Technical Proposal, and (b) a Financial Proposal. Requirements for the Technical Proposal and the Financial Proposal are set forth in Exhibits B and C, respectively, and a list showing the required contents and order of the entire Proposal is found in Exhibit F. The Proposal shall be organized in such order and clearly indexed in accordance with Exhibit F. Each Proposal shall include an adapted checklist version of Exhibit F, prepared by each Proposer, reflecting inclusion and ordering of the Technical Proposal and Financial Proposal prescribed in Exhibit F. Each part of the Proposal shall be clearly titled and shall be submitted without reservations, qualifications, conditions or assumptions set forth therein. Any failure to provide all the information and all completed forms in the order and format specified, or submittal of a Proposal subject to any reservations, qualifications, conditions or assumptions may MDOT/MTA 5 Final Request for Proposals Purple Line Project Instructions to Proposers

12 result in the Owner s rejection of the Proposal or giving it a lower rating. All blank spaces in the Proposal forms must be filled in as appropriate. No change shall be made in the Proposal forms by the Proposer Inclusion of Proposal in Contract Documents Those portions of the Selected Proposer s Proposal identified by asterisks in Exhibit F will be appended and become part of the Contract Documents. Other portions of the Proposal may be incorporated in the Contract Documents by reference Commitments in the Proposal Each Proposal will be evaluated based on the level of commitment provided by the Proposer. Tentative commitments will be given no consideration. For example, phrases such as we may or we are considering will be given no consideration in the evaluation process since they do not indicate a firm commitment. Phrases such as we will or we shall indicate a firm commitment Applicability of Public Information Act The Maryland Public Information Act ( PIA ), Section , et seq. of the State Government Article of the Annotated Code of Maryland applies to documents submitted to the Contracting Officer in response to the RFP. If a Proposer submits information in its Proposal that it believes contains confidential commercial information, confidential financial information or trade secrets and that the Proposer believes would not be subject to disclosure under the PIA, the Proposer must do the following. (a) Clearly mark all confidential commercial information, confidential financial information or trade secrets as such in its Proposal at the time the Proposal is submitted and include a cover sheet identifying each section and page which has been so marked; (b) With respect to each such section and page, include a statement with its Proposal justifying the Proposer s determination that the identified information is protected and why such information, upon request, should not be disclosed pursuant to the PIA; and (c) Defend any action seeking release of the records it believes should not be disclosed and indemnify, defend, and hold harmless the State, its agents, and its employees from any judgments awarded against the State in favor of the party requesting the records, including any and all costs connected with that defense. This indemnification survives the State s cancellation or termination of this solicitation or award and subsequent execution of a Agreement. In submitting its Proposal, the Proposer agrees that this indemnification survives as long as the protected records are in possession of the State. MDOT/MTA 6 Final Request for Proposals Purple Line Project Instructions to Proposers

13 1.7 Restrictions from Participation The State Ethics Commission ( Commission ) administers the provisions of the Maryland Public Ethics Law, found in Title 15 of the State Government Article of the Annotated Code of Maryland, which contains various restrictions on participating in State procurements. No firm that is ineligible for State contracts thereunder may participate as a member of the Proposer Team. Any questions regarding eligibility should be directed to the Commission. The Owner has determined that the following firms and their affiliates present the appearance of a conflict of interest and their participation on a Proposer team could lead the Proposer to be disqualified: AECOM Technical Services Gannett Fleming, Inc. AMEC GL Communications, Inc. AmDyne Corporation Insurance Services Group, Inc. Athavale, Lystad & Associates, Inc. Jacobs Engineering Group, Inc. BMO Capital Markets Kaplan, Kirsch & Rockwell LLP Business Transformation Group Keystone Research Center Chesapeake Environmental Management, Inc. Coastal Resources, Inc. DACCO Sci, Inc. Diversified Property Services, Inc. Dovetail Cultural Resources Group, Inc. KGP Design Studio LLC Kutak Rock LLP Mahan Rykiel Associates, Inc. McKennon Shelton & Henn LLP Mercado Consultants Inc. Miles & Stockbridge P.C. DRM International, Inc. Nossaman LLP E2CR Inc. P.E.L.A. Design Inc. EBA Engineering, Inc. Parsons Brinckerhoff, Inc. Edwards Utility Mapping Corporation PFM Gallop Corporation MDOT/MTA 7 Final Request for Proposals Purple Line Project Instructions to Proposers

14 Procurement Services Consulting, LLC Progressive Engineering Consultants, Inc. STV Incorporated TAC Companies, LLC The ALS Group Remline Corporation Venable LLP RJM Engineering Virginkar & Associates, Inc. Rosborough Communications, Inc. Rummel, Klepper & Kahl LLP Sabra, Wang & Associates, Inc. Wallace, Montgomery & Associates, LLP Whitman, Requardt & Associates, LLP Sidhu Associates, Inc. Proposers are also advised that the Owner s restrictions from participating in the RFP are intended to augment applicable federal and State Law, including federal organizational conflict of interest Laws and the Laws relating to NEPA. Such applicable Laws will also apply to Proposer teams and teaming and may preclude certain firms or their respective entities from participating on a Proposer team. By submitting its response to this RFP, each Proposer agrees that, if an organizational conflict of interest is thereafter discovered, the Proposer must make an immediate and full written disclosure to the Contracting Officer that includes a description of the action that the Proposer has taken or proposes to take to avoid or mitigate such conflict. If an organizational conflict of interest that the Proposer knew or should have known about but failed to disclose is determined to exist during the solicitation process, the Owner may disqualify the Proposer. If an organizational conflict of interest exists that the Proposer knew or should have known about but failed to disclose and the Proposer has entered into the Agreement as Concessionaire, the Owner may terminate the Agreement for Concessionaire Default. In either case, the Owner reserves all legal rights and remedies. 1.8 Federal and State Requirements Proposers are advised that the RFP is drafted based on the assumption that the Project and the plan of finance for the Project will remain eligible for federal-aid funds. Accordingly, the solicitation documents and Contract Documents will conform to requirements of applicable federal Law, including FTA regulations. Further, the RFP is subject to State requirements as set forth in the Act, including, but not limited to, requirements related to collusion, false statements, nondiscrimination, security for construction contracts, prevailing wage rates, and living wages. Proposer shall be MDOT/MTA 8 Final Request for Proposals Purple Line Project Instructions to Proposers

15 required to comply with such requirements and execute the required forms as set forth in the RFP. The Owner views State Laws, specifications, regulation and policies that are relevant to this solicitation and the Project as not contrary to applicable federal Law, but, in the abundance of caution, if the Owner determines that any provisions of State Laws, specifications, regulations, or policies operate in any manner contrary to federal requirements to prevent submission of a Proposal, or prohibit consideration of a responsive Proposal submitted by any responsible Proposer, such provisions shall not be applicable to the Project. In light of the foregoing, the Owner reserves the right to modify the solicitation process described herein to address any concerns, conditions or requirements of FTA or other applicable federal agency. Proposers will be notified of any such modifications as provided in Section Participation of Small, Disadvantaged, Minority and Women-Owned Businesses Depending on the funding source, phase of the Project, and/or nature of the Work, there are different small, disadvantaged, minority, and women-owned business programs that will apply to the Project. As a recipient of federal funds for the Project, MTA must comply with the Disadvantaged Business Enterprise ( DBE ) Program requirements of 49 CFR Part 26, Appendix A. Pursuant to Section 10A-403(b) of the State Finance and Procurement Article of the Annotated Code of Maryland, the State Minority Business Enterprise ( MBE ) program applies to P3 projects to the extent it is practicable and legally permissible. MDOT and its USDOT-funded modal administrations, including MTA, are responsible for administering the DBE and MBE programs consistent with federal and State requirements. This includes (a) employing race-neutral efforts and programs to reduce barriers and level the playing field for the participation of small, disadvantaged, minority and women-owned businesses; (b) setting DBE and MBE goals on a project-by-project basis; and (c) monitoring program compliance and the participation of DBE and MBE firms, where appropriate, during the course of the Project. For reference purposes only, the aspirational DBE goal for MTA is 27% for federal fiscal years 2014 through 2016; the aspirational overall goal for the State s MBE program is 29% for State fiscal years 2014 and 2015, and project specific sub-goals may apply. The Owner has set the following goals for each phase of the Project based on the actual work and the availability of DBEs and MBEs to perform the work. For the Design-Build Period, Proposers are advised that the Owner has established the following DBE participation goal for the Design Work: DBE 26% For the Design-Build Period, Proposers are further advised that the Owner has established the following DBE participation goal for the Construction Work: DBE 30% MDOT/MTA 9 Final Request for Proposals Purple Line Project Instructions to Proposers

16 For the O&M Period, Proposers are advised that the decision on whether and to what extent a participation goal for the O&M Work will be set may not be determined by the Owner until three years prior to the start of Revenue Service Availability or later. By submitting its Proposal, the Proposer agrees to (i) meet the established DBE participation goals for the Design Work and Construction Work for the Design-Build Period, as well as the DBE participation goals and/or MBE participation goals/subgoals that may be established for the O&M Work for the Project, or (ii) if unable to meet an established goal (including subgoals), request and obtain a waiver after demonstrating good faith efforts to meet the goals. The waiver process is summarized in the Agreement and more fully set forth in COMAR , Form H-6 (MDOT MBE/DBE Form E Good Faith Efforts Guidance and Documentation), and the MDOT MBE and DBE Program Manuals, which can be found at: sources_information/resources%20information Further, Proposers are prohibited from requiring DBE or MBE firms to commit exclusively to work as a subcontractor for Proposer or any other member of the Proposer Team. Forms relating to the participation of DBE and MBE firms are contained in Form H. Proposers shall complete, sign and include with their Proposal Form H-1 Proposer s Acknowledgement of DBE and MBE Program Requirements, Form H-2 (Design Work) MDOT DBE Form A Federally-Funded Contracts Certified DBE Utilization and Fair Solicitation Affidavit, and Form H-3 (Design Work) MDOT DBE Form B Federally Funded Contracts DBE Participation Schedule, and the DBE/MBE Participation Plan in Section of Exhibit B. Submission of Form H-1, Form H-2 (Design Work), Form H- 3 (Design Work), and the DBE/MBE Participation Plan are the only DBE and MBE documents required at the time of submission of a Proposal. The remaining MDOT DBE/MBE Participation Forms: Form H-2 (Construction Work), Form H-3 (Construction Work), Form H-4 MDOT DBE Form C Outreach Efforts Compliance Statement, Form H-5 MDOT DBE Form D DBE Subcontractor Project Participation Affidavit Form H-6 MDOT MBE/DBE Form E Good Faith Efforts Guidance and Documentation, and all documents provided under Form H-7 (MBE Forms Package), shall be submitted by the Concessionaire directly to the Owner at a later date as directed by the Owner. The Owner is currently reviewing Form H-2 through Form H-7, and anticipates that clarifications to those forms will be forthcoming. Further, the DBE/MBE Participation Forms are subject to revision by the Owner, and the schedule for submission of those forms is subject to change or modification by the Owner. At Financial Close, the Concessionaire shall provide to the Owner the following information: MDOT/MTA 10 Final Request for Proposals Purple Line Project Instructions to Proposers

17 (a) a list of Construction Work contracts, including the dollar value, for which Construction Work is anticipated to begin within the first 180 days after Financial Close; and (b) DBE Participation Forms (as directed by the Owner), for each Construction Work contract already awarded. Beginning 90 days after Financial Close and on a quarterly basis thereafter, the Concessionaire shall submit: (i) an updated list of Construction Work contracts, including the dollar value, for which Construction Work is anticipated to begin within the next 180-day period; (ii) DBE Participation Forms (as directed by the Owner), for the Construction Work contracts awarded since the last submission of DBE Participation Forms; and (iii) any other forms or information the Owner requests related to the total dollar value of the awarded Construction Work contracts and total commitments to DBE firms. For purposes of Form H-2 (Design Work) and Form H-3 (Design Work), the term Total Contract Value means the Total Value of D&C Design Services calculated pursuant to Form O-1. For purposes of Form H-2 (Construction Work) and Form H-3 (Construction Work), the term Total Contract Value means the Total Value of D&C Construction Work calculated pursuant to Form O-1. For purposes of the forms specified in this Section 1.8 and found in Form H, the following have the meaning specified below: (1) Contractor shall mean Concessionaire (2) Procurement Officer shall mean Contracting Officer Buy America Requirements The RFP is subject to the Buy America Requirements, 49 U.S.C. 5323(j) and 49 CFR Part 661, and regulations and/or guidance implementing this statutory provision issued by the Federal Transit Administration Labor Requirements Construction The Owner will comply with the Federal Executive Order (Use of Project Labor Agreements for Federal Construction Projects) and with the Maryland Executive Order (Procurement Guidelines Authorization of Project Labor Agreements, Authorization of Apprenticeship Agreements, and Community Hiring). The Owner is also committed to reducing barriers to employment for the available workforce in the construction industry and is committed to working with the MDOT/MTA 11 Final Request for Proposals Purple Line Project Instructions to Proposers

18 Concessionaire, community-based organizations, and Preferred Training Partners and others to achieve this goal. It is the Owner s intent that the Construction Labor and Workforce Development Plan submitted pursuant to Section of Exhibit B be the guiding document for implementing the applicable provisions set forth in the Agreement Operations and Maintenance The Owner will require the Concessionaire, and the Concessionaire shall cause its O&M Contractor, to assume all obligations under the applicable Section 13(c) agreements (if any) as required under 49 U.S.C. 5333(b). Further, the Concessionaire shall, and shall cause its O&M Contractor and all Contractors performing Operations Work or Maintenance Work, to execute and deliver to the Owner by Final Completion any Labor Peace Agreement in accordance with Section of the Agreement. A Certification Regarding Labor Peace Agreement for On-Site Operations and Maintenance Employees (Form D) shall be submitted with the Proposal in accordance with Section of Exhibit B Verification of Registration and Tax Payment Before a corporation, limited liability company, or limited partnership can do business in the State, it shall be registered and in good standing with the Department of Assessments and Taxation, State Office Building, Room 803, 301 West Preston Street, Baltimore, Maryland. The Concessionaire must complete the registration and ensure that it is in good standing as a condition to execution of the Agreement by the Owner. 1.9 Federal Funding and Financing FTA Funding The Project was accepted into the Preliminary Engineering stage of FTA s Capital Investment Grant (also referred to as New Starts ) program in October The Project has since maintained positive ratings for the two summary criteria, Project Justification and Local Financial Commitment. For the FY15 New Starts Annual Report, the Project received Medium-High ratings on the Project Justification, Local Financial Commitment, and Overall Project Rating. In the President s FY15 Budget, FTA recommended the Project for New Starts funding, as well as receipt of a Full Funding Grant Agreement in FY15. The Owner is seeking a $900 million Full Funding Grant Agreement from FTA, with annual federal funding amounts up to $100 million. The Full Funding Grant Agreement will be between MTA and FTA, and the Owner will retain responsibility for securing the FTA federal funding. On August 28, 2014, FTA approved the Owner s request for the Project to enter the New Starts Engineering phase of the New Starts program. This approval to initiate Engineering is a requirement of the federal transit laws governing the New Starts MDOT/MTA 12 Final Request for Proposals Purple Line Project Instructions to Proposers

19 program. FTA is required by law to evaluate a proposed New Starts project against a number of criteria and ensure that prospective grant recipients demonstrate the technical, legal, and financial capability to implement the Project. As a result of FTA s evaluation of the Project, an overall project rating of Medium-High was assigned. With approval to enter the Engineering phase, the Owner has certain pre-award authority and can start submissions and negotiations toward a Full Funding Grant Agreement TIFIA Credit Assistance On August 9, 2013, MDOT submitted a letter of interest to the TIFIA Joint Program Office ( TIFIA JPO ) that requested a direct loan on behalf of the Concessionaire. On November 8, 2013, the USDOT notified MDOT that the Project had been accepted for creditworthiness review by the TIFIA JPO. The Owner has furnished Proposers with a TIFIA Term Sheet that includes assumptions, terms and conditions that Proposers must use in developing their Financial Proposals. The Owner will bear the risk and have the benefit of changes in the TIFIA Structuring Assumptions (either positive or negative) in accordance with the Contract Documents. The Proposers shall not independently contact the TIFIA Joint Program Office prior to the Proposal Due Date with respect to the TIFIA application for the Project. Proposers, however, will be provided the opportunity to provide questions and comments related to the TIFIA Term Sheet prior to the Proposal Due Date. The Selected Proposer will be expected to reimburse the TIFIA Joint Program Office for all credit processing costs it incurs in connection with the Project, including without limitation outside financial and legal consultant costs PABs Allocation General The Owner has received a provisional $1.3 billion USDOT PABs allocation for the Project. The Owner expects the allocation to remain available throughout the solicitation process and until Financial Close. The use of PABs, if available, in a Proposer s plan of finance is optional and entirely the decision of the Proposer. If the Initial Project Debt includes PABs, then the Maryland Economic Development Corporation will serve as the issuer of the PABs. Further, the Owner has entered into a Memorandum of Understanding with MEDCO regarding the issuance of the PABs. Proposers shall be solely responsible for obtaining ratings, bond counsel opinions, credit enhancement (as applicable) and an underwriting commitment or placement of the PABs, as well as satisfying any conditions placed on the use of the allocation by USDOT or complying with any other requirements of State and federal tax Laws. The foregoing approach has been developed by the Owner as an accommodation to the Proposers and in order to attempt to facilitate the use of PABs by Proposers. The MDOT/MTA 13 Final Request for Proposals Purple Line Project Instructions to Proposers

20 Owner makes no representation as to, nor guarantees the amount, if any, of PABs that can or will be issued for the Project or the use of proceeds to finance the Project as a matter of federal tax Law. Proposers should seek the advice of their own tax consultants. Should a Proposer elect to include PABs in its Financial Proposal, it does so at its own risk and cost, and the Owner shall have no liability with respect thereto Designation of Lead Underwriter(s) and Lead Underwriter(s) Counsel Proposer s lead underwriter(s) ( Lead Underwriter(s) ) must be a nationally recognized firm(s) with experience in transportation infrastructure finance. Proposer must obtain the Owner s approval of its Lead Underwriter(s) and Lead Underwriter s counsel prior to the Proposal Due Date in accordance with Section 2.4, which approval will not be unreasonably withheld. Proposer may submit more than one Lead Underwriter for the Owner s approval. Proposer shall provide the following qualifications of Proposer s Lead Underwriter(s) and Lead Underwriter s counsel in advance of the Proposal Due Date no later than the date set forth in the Solicitation Schedule: (a) For each proposed Lead Underwriter, Proposer shall specifically provide information regarding the underwriter s successful experience with PABs (or other market as applicable), investment grade project financings and transportation infrastructure finance. Please provide examples of specific P3 transportation projects demonstrating such experience. (b) Counsel for the Lead Underwriter(s) must be a nationally recognized firm with experience in transportation infrastructure finance and cannot serve as bond counsel. Proposer shall specifically provide information regarding the counsel s successful experience with PABS (or other market as applicable), investment grade project financings, and P3 transportation projects. Please provide examples of specific PAB transactions that such counsel has worked on (ideally as underwriter counsel). Qualifications for each Lead Underwriter and the Lead Underwriter(s) counsel shall be no more than 4 pages, in 12 point font and submitted via the file upload tool accessed through the Website. The Owner shall endeavor to respond to the submittal of the Proposer s Lead Underwriter(s) and Lead Underwriter s counsel within 10 Business Days of the Friday of the week in which the submittal was submitted. If a Lead Underwriter or Lead Underwriter s counsel is not pre-approved by the Owner, Proposer shall submit a different candidate by the date set forth in the Solicitation Schedule, and the Owner shall use reasonable efforts to respond within 10 Business Days after the resubmission. It is the Proposer s sole responsibility to ensure that approval occurs prior to the Proposal Due Date Designation of Bond Counsel Proposer s bond counsel, which shall be responsible for issuing all bond and tax opinions and other customary activities performed by bond counsel, must be a nationally recognized firm listed in the Bond Buyer's Municipal Marketplace, licensed in Maryland, and with experience in PABs, investment grade project financings, and MDOT/MTA 14 Final Request for Proposals Purple Line Project Instructions to Proposers

21 transportation infrastructure finance. Bond counsel cannot serve as counsel for the lenders. Proposer must obtain the Owner s approval of its bond counsel prior to the Proposal Due Date in accordance with Section 2.4, which approval will not be unreasonably withheld. Proposer shall provide the qualifications of bond counsel in advance of the Proposal Due Date no later than the date set forth in the Solicitation Schedule. Qualifications shall be no more than 3 pages, in 12 point font and submitted via the file upload tool accessed through the Website. The Owner shall endeavor to respond to the submittal of the Proposer s bond counsel within 10 Business Days of the Friday of the week in which the submittal was submitted. If bond counsel is not preapproved by the Owner, the Proposer shall submit a different candidate by the date set forth in the Solicitation Schedule, and the Owner shall use reasonable efforts to respond within 5 Business Days after the re-submission. It is the Proposer s sole responsibility to ensure that approval occurs prior to the Proposal Due Date. The Selected Proposer may request that the Owner allow the bond counsel to also act as the Selected Proposer s local counsel and the Owner will consider allowing the same under the following circumstances: The Owner will not sign any conflict waivers; If there is a dispute between the Concessionaire and the Owner that results in a conflict of interest for counsel, the firm must resign as the Concessionaire s counsel upon the Owner s request; The Owner may hire additional PABs Issuer s counsel, at its cost; and The counsel will not be entitled to participate on the Concessionaire s behalf in any dispute or action between the Owner and the Concessionaire. MDOT/MTA 15 Final Request for Proposals Purple Line Project Instructions to Proposers

22 SECTION 2.0 SOLICITATION PROCESS 2.1 Solicitation Method The Owner will award the Agreement (if at all) to the responsible Proposer offering a Proposal meeting the standards set by the Owner and which is determined by the Owner, through evaluation based upon the criteria set forth in applicable Law and the RFP, to provide the best value to the Owner and to be in the best interest of the State of Maryland. The Owner will accept Proposals for the Project only from those Proposers that the Owner has shortlisted for the solicitation based on their responses to the RFQ. 2.2 Receipt of the Request for Proposal Documents, Communications and Other Information The RFP will be issued and made accessible to shortlisted Proposers through the Website. The Contracting Officer has provided to the Proposers with a username and password to access the Website. Proposers experiencing difficulty accessing the Website may request assistance by sending an to techsupport@purplelinemd.com Contracting Officer The Owner has designated the following individual to be the Contracting Officer for the solicitation: Robert Schleigh, Contracting Officer Maryland Transit Administration 100 S. Charles Street Tower Two, Suite 700 Baltimore, Maryland contractingofficer@purplelinemd.com From time to time during the solicitation process, the Contracting Officer may designate another representative to carry out some or all of the Contracting Officer s obligations pertaining to the Project. Any submissions required in the RFP from Proposers prior to the Proposal Due Date, including Pre-Proposal Submittals, shall be sent to the attention of the Contracting Officer via the Website s file upload tool Identification of Proposer Authorized Representative A Proposer shall identify in its Proposal an individual authorized to act on behalf of the Proposer relating to the solicitation ( Proposer Authorized Representative ) to include a name, company, title, mailing address, address, business phone and cell phone. If a Proposer changes its Proposer Authorized Representative to receive documents, MDOT/MTA 16 Final Request for Proposals Purple Line Project Instructions to Proposers

23 communications or notices in connection with this solicitation subsequent to its submission of its Proposal, the Proposer shall provide the Contracting Officer with the same contact information requested above of such new Proposer Authorized Representative. Failure to identify a Proposer Authorized Representative in writing may result in the Proposer failing to receive important communications from the Owner. The Owner is not responsible for any such failure Rules of Contact From and after the date of notification of shortlisting and ending on the earliest of (i) the execution and delivery of the Agreement, (ii) rejection of all Proposals by the Owner or (iii) cancellation of the solicitation, the following rules of contact shall apply. These rules are designed to promote a fair and unbiased solicitation process. Contact includes face-to-face, telephone, facsimile, electronic-mail ( ), other electronic means or formal written communication. The specific rules of contact are as follows: (a) Section of the State Finance and Procurement Article of the Annotated Code of Maryland, prohibits and penalizes collusion. (b) No Proposer or any of its team members may communicate with another Proposer or its team members with regard to the RFP or either team s Proposal; provided, however, that subcontractors that are shared between two or more Proposers may communicate with their respective team members so long as those Proposers establish reasonable protocols to ensure that the subcontractor will not act as a conduit of information between the teams (contact among Proposer organizations is allowed during informational meetings organized by the Contracting Officer); (c) Proposers shall correspond with the Owner regarding the RFP only through designated representatives (which initially shall be the Contracting Officer); (d) Until the earliest of (i) award and execution of the Agreement, (ii) rejection of all Proposals by the Owner or (iii) cancellation of the solicitation, no Proposer or representative thereof shall have any ex parte communications regarding this solicitation with: Any member of the Owner; or Any employees, representatives, members, consultants, contractors or advisors of the Owner involved with the solicitation (including those referenced in Section 1.7), except for communications expressly permitted by the solicitation process. The foregoing restriction shall not, however, preclude or restrict communications with regard to matters unrelated to the solicitation or limit participation in public meetings or formal MDOT/MTA 17 Final Request for Proposals Purple Line Project Instructions to Proposers