Ga. Comp. R. & Regs. R. 672-17-.04 - Solicitation Process

(1) Applicability. If the Department decides to procure a Public-Private Partnership, it will solicit participation through a procurement process in accordance with the requirements of these Rules. Such procurement process may involve, without limitations, Request for Qualifications, listing of the most qualified Proposers, Request for Proposals, discussions, interviews, one-on-one meetings, requests for additional information or clarifications, written questions and responses, negotiations, and/or best and final offers.

(2) Request for Qualifications.

(a) General. As part of a solicitation for a Public-Private Partnership, the Department may, in its sole discretion, issue a Request for Qualifications. A Request for Qualifications for a Public-Private Partnership will set forth the basic criteria for professional experience, competence, and capability to undertake and perform a proposed Public-Private Partnership, and such other information as the Department considers relevant or necessary in the Request for Qualification. At its sole discretion, the Department may elect to furnish conceptual designs, fundamental details, technical studies and reports or detailed plans of the proposed project in the Request for Qualifications. The Request for Qualifications may request one or more conceptual approaches to bring the Public-Private Partnership to fruition.

(b) Notice. If the Department initiates a solicitation by issuing a Request for Qualifications, as applicable, the Department shall, at least thirty (30) days prior to the date for receipt of responses to such request, post the legal notice for said request on the Department of Administrative Services website or in substantially the same manner utilized by the Department to solicit Requests for Qualifications, as applicable.

(c) Evaluation. The Department, after evaluating the qualification submittals received in response to a Request for Qualifications, will identify and approve a list of qualified Proposers that is composed of those Proposers that are considered most qualified to respond to a Request for Proposals for a proposed Public-Private Partnership. The list will comprise of at least two (2) qualified Proposers, but no more than five (5) qualified Proposers. Notwithstanding the foregoing, the Department has the right to cancel or suspend the solicitation at any time. In evaluating the qualification submittals, the Department will consider such qualities that the Department considers relevant to the Public-Private Partnership, which may include the Proposer's financial condition, stated capacity and willingness to assume responsibility and risk, management stability, technical capability, experience, staffing, and organizational structure. The Request for Qualifications shall include the criteria used to evaluate the qualification submittals and the relative weight given to the criteria. The Department shall notify each Proposer providing a qualification submittal whether it is on the list of most qualified Proposers.

(3) Request for Proposals.

(a) General. The Department may issue a Request for Proposals by providing notice pursuant to subsection (c)(2) or (c)(3) of this Rule 672-17-.04. A Request for Proposals shall indicate the general scope of the Public-Private Partnership, the proposed financial participation of the Department and the Proposer in the Public-Private Partnership, and other factors that will be used in evaluating the Proposal including the submission of detailed documentation regarding the Public-Private Partnership or unique capabilities or qualifications that will be required by the Proposer. The Request for Proposals may require the submission of additional information relating to:

1. the Proposer's qualifications and demonstrated technical and financial competence;

2. the Proposer's technical proposal for and approach to implementing the Public-Private Partnership, including all assumptions;

3. the Proposer's schedule for implementing the Public-Private Partnership;

4. the Proposer's financial and/or price proposal for and approach to implementing the Public-Private Partnership;

5. a detailed estimate with all material quantities and price assumptions used to form the basis of the Proposal;

6. factors used in evaluating the Proposal;

7. any other information the Department considers relevant or necessary.

(b) Notice of Request for Proposals without Request for Qualifications. If the Department initiates a solicitation by issuing a Request for Proposals and has not established a list of most qualified Proposers using a Request for Qualifications, the Department shall, at least ninety (90) days prior to the date for receipt of Proposals in response to such request, post the legal notice for said request on the Department of Administrative Services website or in substantially the same manner utilized by the Department to solicit requests for proposals.

(c) Notice of Request for Proposals following Request for Qualifications. If the Department has issued a Request for Qualifications and has a list of at least two most qualified Proposers in response to the Request for Qualifications, the Department may notify and issue a Request for Proposals to such qualified Proposers. The Department may, in its sole discretion, issue a draft Request for Proposals to such qualified Proposers for review and comment prior to issuing the final Request for Proposals.

(d) Payment for work product. The Request for Proposals may stipulate an amount of money that the Department will pay to an unsuccessful Proposer that submits a Proposal that is responsive to the requirements of the Request for Proposals. The Request for Proposals may also stipulate an amount of money that the Department may pay to Proposers in the event that the Department cancels the procurement before the receipt of Proposals. The Request for Proposals shall specify the criteria and conditions under which such payments will be made. In determining the amount of payment, if any, for work product, the Department shall consider:

1. the effect of a payment on the Department's ability to attract quality Proposers and meaningful Proposals and to generate competition;

2. the work product expected to be included in the Proposal and the anticipated value of that work product;

3. the complexity of the Public-Private Partnership; and

4. the costs anticipated to be incurred by a Proposer in preparing a Proposal.

(e) Discussions and negotiations. Based on the evaluation factors as set forth in the Request for Proposals, the Department shall rank all Proposals that are complete, in conformance with, and responsive to the Request for Proposals, and shall select in order of preference two or more of the Proposers whose qualifications and proposed services are deemed most meritorious for negotiations. Such negotiations may include, but are not limited to, one-on-one meetings, and requests for Proposal revisions and/or best and final offers. Notwithstanding the foregoing, the Department reserves the right in its sole discretion to engage in individual discussions with, to negotiate with, and/or award a contract to only one Proposer when it is clearly more qualified and suitable than the other Proposers or when the Department receives only one responsive Proposal.

(f) Best value selection and award. Pursuant to the Guidelines, the Department shall submit a recommendation to the Board regarding approval of the Proposal determined to provide the apparent best value to the State of Georgia upon contract terms that are the most satisfactory and advantageous to the State of Georgia. Before making such selection, the Department shall consult with participating local governing authorities. The Board may approve or disapprove the recommendation, and if approved, the award will be subject to the successful completion of negotiations, any necessary federal action, execution by the Commissioner of the appropriate agreement(s), and satisfaction of such other conditions that are identified in the Request for Proposals. Upon award of a contract for a Public-Private Partnership, the Department will notify the Proposers in writing of the Department's rankings, and shall also make the rankings available to the public.

(g) Public comment on Proposals. The Department shall provide opportunity for written public comment with respect to the Proposal(s) responsive to a Request for Proposals at least ten (10) days after receipt of the Proposal(s) by posting an executive summary of the Proposal(s) on the Department of Administrative Services website or in substantially the same manner utilized by the Department to solicit requests for proposals for public written comment for a minimum of thirty (30) days. Further, the Department shall hold at least one public hearing prior to the expiration of the period for receipt of written public comments, which shall be held in each county where the Project, or portion thereof, is located. All public hearings required to be held pursuant to applicable law will be directed and overseen by the Department, with participation by such other entities as it deems appropriate. Notwithstanding the foregoing, information in a Proposal that is proprietary or confidential shall not be disclosed to the public pursuant to subsection (1)(b) of Rule 672-17-.06.

(h) Approval of contract. Prior to the execution of any contract(s) between the Department and the apparent best value Proposer, the Board shall approve the contract(s) recommended by the Department.

(4) Terms of contract. The contract for a Public-Private Partnership shall identify the rights and obligations of the Department and the Private Partner with respect to the Project. By way of example only, a contract for a Public-Private Partnership may include, but is not limited to, the following:

(a) Provisions authorizing the Private Partner to impose, collect and enforce user fees, tolls, fares, rents, tax increments or similar charges and fees;

(b) Provisions allowing the Department to accept payments of money from the Private Partner and to divide revenues with the Private Partner;

(c) Provisions addressing how the development costs and the Project risks will be allocated;

(d) Provisions establishing performance criteria and/or incentives;

(e) Provisions addressing the acquisition and ownership of rights-of-way, real estate, capital improvements and other property interests that may be required;

(f) Provisions addressing responsibility for reconstruction or renovations that is required in order for the Project to meet applicable government standards at the end of the term of the contract;

(g) Provisions providing for security, patrolling and law enforcement on, in or for the Project;

(h) Provisions identifying any technical specifications that must be satisfied, and a process whereby the Private Partner may request and receive authorization to deviate from such specifications on making a showing satisfactory to the Department;

(i) Provisions addressing how public funds may be contributed toward the Public-Private Partnership and the basis of such contribution, including the use of state and federal loan programs, and grant and credit programs;

(j) Provisions regarding the Private Partner's compensation, including but not limited to, provisions regarding the use of availability payments, retention of fees, tolls, fares, rents or similar charges and fees, and generation and use of other revenues;

(k) Provisions specifying the conditions under which the Private Partner is entitled to compensation for lost revenues or other demonstrable damages resulting from the construction of a competing facility by the Department;

(l) Provisions specifying events of default and remedies available to the Private Partner and the Department, including compensation that may be payable to the Department or Private Partner in connection with termination of the Public-Private Partnership;

(m) Provisions allowing for the resolution of disputes through non-binding dispute resolution and the procedures to commence such non-binding dispute resolution; and

(n) Provisions regarding the maintenance and auditing of the Private Partner's work product, books and records.

Notwithstanding the foregoing, the terms of a contract for a Public-Private Partnership shall not convey rights or obligations to the Department or Private Partner that are prohibited by, contrary to, or in violation of applicable law.

Notes

Ga. Comp. R. & Regs. R. 672-17-.04

Authority O.C.G.A. Secs. 32-2-2, 32-2-79, 50-13-4.

Original Rule entitled "Receipt of Unsolicited Proposals" adopted. F. Dec. 12, 2003; eff. Jan. 1, 2004. Repealed: New Rule entitled "Receipt of Solicited, Unsolicited, Competing or Comparable Proposals" adopted. F. July 22, 2005; eff. August 11, 2005. Repealed: New Rule entitled "Solicitation Process" adopted. F. Jan. 25, 2010; eff. Feb. 14, 2010. Repealed: New Rule of same title adopted. F. Apr. 21, 2010; eff. May 11, 2010.