The Unsolicited Proposal What the Public Sector Needs to Know What the Private Sector Should Expect

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Allan Sims
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1 Public-Privte Prtnerships: A Solution for Florid Public Construction Projects November 6, 2013 Orlndo, FL The Unsolicited Proposl Wht the Public Sector Needs to Know Wht the Privte Sector Should Expect S. ELYSHA LUKEN Florid Br Bord Certified Construction Lwyer Prtner, Smith Currie &Hncock LLP

2 Wht Is An Unsolicited Proposl? A written proposl for new or innovtive ide tht is submitted to n gency on the inititive of the offeror For the purpose of obtining contrct with the government Not in response to request for proposls or ny other government initited solicittion Restted FAR Definition 48 CFR Ssdf

3 Wht Is Not An Unsolicited Proposl? Ssdf Advertising mteril: Informtion on products, services or cpbilities to stimulte interest in buying Commercil item offers: Suggestions of items or services s lternte/replcement for existing items or services Contributions: A concept, ide or suggestion without intention to devote further effort to develop concept Routine Technicl Correspondence: RFIs regrding interest in reserch res or other written technicl inquiries. Restted FAR Definition 48 CFR (b)

4 Trditionl Procurement Models Competitive Procurement Design-Bid-Build: Public entity plns, designs, nd solicits Competitive Solicittion: Public entity cretes frmework for project, requests sttements of qulifictions from potentil proposers Proposers re evluted nd shortlisted bsed on RFQ Shortlisted proposers respond to RFP which delinetes public entity s intended scope Costs nd Time for Public Entity Ssdf

5 Ssdf How Are Unsolicited Proposls Different? Cost Avoidnce: Avoidnce of upfront costs to estblish project, scope nd desired prmeters; cost voidnce of engineering, design, finncil, legl for preprtion of solicittion documents; collection of review fee for UP Expnd Innovtion: UPs re vluble technique for the government to use in relying on privte sources to obtin innovtive or unique methods to ccomplish its missions; public entity does not dictte scope nd prmeters Expedited: Allows for n expedited review nd procurement process while still ensuring n opportunity for competitive proposls.

6 Ssdf How Does Florid Define n Unsolicited Proposl Prior to HB85, UPs uthorized for FDOT, trnsporttion/expresswy uthorities, nd municiplities requirements for contents of unsolicited proposl but no definition Section defines proposl s: pln for qulifying project with detil beyond conceptul level for which terms such s fixing costs, pyment schedules, finncing, deliverbles, nd project schedule re defined.

7 Historicl Use of P3 in Florid Since 1960s P3 legisltion for identified public sectors: trnsporttion, housing, nd wter Since 1968, municiplities hve hd home rule nd bility to permit P3 by locl ordinnce for municipl infrstructure: wter supply; wste nd sewge collection; ir, ril, bus nd wter terminls; port fcilities; public trnsporttion; rods, tunnels, nd bridges Unsolicited Proposls Hve Been Prt of the Process Ssdf

8 Florid Authoriztion for UP Municiplities Municiplities permit UP by ordinnce Mimi-Dde County Ordinnce 2-8.1(k) UPs for infrstructure work in excess of $15M County evlutes ($25K+ fee not greter thn direct costs); issues competitive solicittion sttement; evlutes nd rnks proposls; nd my negotite with rnked proposers. Ssdf

9 Florid Authoriztion for UP Trnsporttion FDOT (s , F.S.): must publish on receipt, 120 dys for lternte proposls, $50,000 fee Jcksonville Trnsporttion Authority (s , F.S.): must publish on receipt, 60 dys for lternte proposls, $25,000 fee Tmp By nd NW Florid Regionl Trnsporttion Authorities (s , F.S., s ): must publish on receipt, 60 dys for lternte proposls, fee by rule Expresswy Authorities (s , F.S.): my receive UP, dopt procedures nd fee by rules Ssdf

10 Florid s New Public Privte Prtnership Sttute Cretes s , F.S. to govern P3 procurement process for Qulifying Projects by Responsible Public Entity Qulifying Project: Any fcility or project tht serves public purpose Ferry, mss trnsit, prking, irport, seport, ril, fuel supply fcility, oil or gs pipeline; wter/wstewter fcility Medicl, recretion, sporting, culturl, or eduction fcility; Includes building improvements (nd equipment) principlly used by public entity or public tht supports service delivery Responsible Public Entity: counties, municiplities, school bords, regionl entities, stte subdivisions Ssdf

11 Ssdf Specific Provisions for UP in New P3 Sttute UPs Expressly Permitted: Resonble ppliction fee for evlution sufficient to py costs, my use privte consultnts Publiction Required: If intends to enter into comprehensive greement bsed on UP, must publish for 2 weeks in Florid Administrtive Register nd newspper of generl circultion the receipt of UP, nd tht will ccept other proposls for the sme project Timefrme for Other Proposls: Responsible Public Entity to determine time frme for receipt of other proposls, bsed on complexity of the project nd public benefit to be gined from longer or shorter time frme, must be t lest 21 dys nd no more thn 120 dys from initil publiction.

12 Ssdf Who Cn Submit UP under New P3 Sttute? Privte Entity person, corportion, prtnership, LLC, LP, JV, trust, non-profit Must meet minimum stndrds contined in Responsible Public Entity s guidelines for qulifying professionl services nd contrcts for trditionl procurement projects Privte Entity must be ble to provide bonds, letters of credit, prent compny or lender gurntees, if construction, s bonds

13 Wht is Required for UP in New P3 Sttute? A Proposer s UP must contin, unless wived: Project description, including conceptul design of fcilities or conceptul pln for provision of services; schedule for initition nd completion Method for securing property interests Proposer s generl pln for finncing, including source of proposer s funds, identifiction of dedicted revenue source or proposed debt or equity investment by proposer Contct informtion Proposed user fees, lese pyments or other service pyments over the term of the CA, methods nd circumstnces for chnge of such terms Ssdf

14 Wht Additionl Informtion My Be Required by Responsible Public Entity? A Responsible Public Entity my request Additionl mteril or informtion tht the responsible public entity resonbly requests. Specific uthoriztion for Responsible Public Entity to require technicl study prepred by ntionlly recognized expert with experience in prepring nlysis for bond rting gencies In evluting technicl study, responsible public entity my rely on internl stff reports, or externl dvisors or consultnts Ssdf

15 How Does Responsible Public Entity Evlute UPs under New P3 Sttute? After public notice period hs expired for UP, Responsible Public Entity shll rnk proposls received in order of preference considering: Professionl qulifictions Generl business terms Innovtive design techniques Cost-reduction terms Finnce terms Ssdf

16 How Does Responsible Public Entity Evlute UPs under New P3 Sttute? After rnking, my negotite for Comprehensive Agreement with highest-rnked firm If not stisfied with results, my terminte negotitions, nd negotite with second-rnked or subsequent firms If only one proposl is received, my negotite with proposer, nd terminte if unsuccessful My reject ll proposls t ny time prior to CA Ssdf

17 Privte Sector Considertions Unsolicited should never be unexpected or unwnted Find chmpion for your proposl nd determine other decision-mkers necessry for consensus Determine gency time frmes nd costs Avoid uncompensted effort Determine downsides to reveling confidentil nd proprietry informtion

18 Privte Sector Checklist Identify potentil P3 projects of interest to Responsible Public Entity Review procurement procedures for protections nd requirements Begin conceptul discussions to understnd procedures, projects of interest, nd plyers Prepre unsolicited proposl

19 Responsible Public Entity Considertions Become UP prepred: procedures for receipt nd review of UPs Wht dditionl informtion will you need qulifictions, experience When firm expresses n interest, cn you provide: Prequlifiction requirements nd fees UP submission nd evlution procedures Informtion on objectives nd missions

Responsible Public Entity Checklist Are we redy for UP? Who is responsible for UPs? Does UP comply with public entity rules nd s. 287.05712, F.S.

20 Responsible Public Entity Checklist Are we redy for UP? Who is responsible for UPs? Does UP comply with public entity rules nd s , F.S.: Proposer s qulifictions Proposer s terms nd business pln for Project Innovtive engineering or cost-reduction terms Proposer s finnce plns Identifiction of need for stte funds

21 Public-Privte Prtnerships: A Solution for Florid Public Construction Projects November 6, 2013 Orlndo, FL The Unsolicited Proposl Wht the Public Sector Needs to Know Wht the Privte Sector Should Expect S. ELYSHA LUKEN Florid Br Bord Certified Construction Lwyer Prtner, Smith Currie &Hncock LLP

Exhibit A Covered Employee Notification of Rights Materials Regarding Allied Managed Care Incorporated Allied Managed Care MPN MPN ID # 2360

Exhibit A Covered Employee Notification of Rights Materials Regarding Allied Managed Care Incorporated Allied Managed Care MPN MPN ID # 2360 Covered Notifiction of Rights Mterils Regrding Allied Mnged Cre Incorported Allied Mnged Cre MPN This pmphlet contins importnt informtion bout your medicl cre in cse of workrelted injmy or illness You