COMPLIANCE WITH PROCUREMENT VEHICLES AND PROTESTING THOSE WHO DON’T COMPLY William J. Cea, Esq. Becker & Poliakoff, P.A. Deborah Bovarnick Mastin, Esq. Law Office of Deborah Mastin, P.A. Presented by:

PROCUREMENT VEHICLES Public/Private Partnership Act, Florida Statutes, Section :  Provides substantive requirements for a “qualifying project”.  Authorizes responsible public entities to solicit proposals.  Supplements public agency authority.  Public agencies must still follow applicable procurement process (ex. RFP, ITN).  Unsolicited proposals are treated separately.

PROCUREMENT VEHICLES Prepare and advertise in accordance with applicable law and local codes and policies. Examples:  Florida Statutes, § , advertising requirements.  Florida Statutes §255.20, local bids and contracts for public construction works.  Florida Statutes, § , Consultants’ Competitive Negotiation Act – expressly referenced in the P3 Act.  Local ordinances and purchasing policies.

PROCUREMENT VEHICLES Considerations from the public perspective:  What are the agency’s concerns?  Advertisement of the solicitation.  Receipt of proposals, replies, etc.  Evaluation process.  Compliance with public records and sunshine laws.  Award decisions.  Lobbying/ “Cone of Silence” Restrictions

PROCUREMENT VEHICLES Application of Concepts to an Airport Capital Development Project  Federal Approvals: FAA, Corps of Engineers, Environmental.  State and Regional: Environmental, Regional Land Use  Local: Zoning, Noise, Other Stakeholders?

PROCUREMENT VEHICLES Project Tips:  You get what you pay for – Hire the most experienced staff and consultants you can.  It takes a village – Involve the users in identifying effective improvements.’  Measure twice, not once – Peer review plans.  Join the 21 st Century – Use available technology (Building information management, 4-D scheduling software…)  Incorporate a dispute board internal to the PPP to avoid, mitigate and manage team disputes.

PROTESTS OF AGENCY ACTION Types of protests:  Specification challenge – Is one afforded?  Intended award or rejection decisions.

PROTESTS OF AGENCY ACTION What are the rules of engagement?  Florida Statutes, Chapter 120 – The Administrative Procedure Act. OR  Local codes and policies.

PROTESTS OF AGENCY ACTIONS Traditional protest grounds:  Lack of qualifications.  Material irregularities.  Improper price changes.  Agency failure to adhere to advertised terms and conditions.  Sunshine law violations.  Contract does not resemble advertised scope.  Case law standards.

PROTESTS OF AGENCY ACTION Potential P3 protest considerations and grounds:  Does the project meet the definition of a “qualifying project”?  Has the agency adopted any guidelines providing “reasonable criteria for choosing among competing proposals”?  Has the agency made all of the findings required by the Act?  Whether the agency complied with the CCNA.  Whether the agency notified “affected local jurisdictions”.  Does the comprehensive agreement provide all of the mandatory terms?

DISCUSSION AND Q&A