Public-Private Education Facilities and Infrastructure Act 2002 (PPEA) Joe Damico

Presentation Outline Public-Private Education Facilities and Infrastructure Act (2002) – PPEA What is it? PPEA Code Requirements – Guidelines – Qualifying Project – Initiate a Qualifying Project – Evaluating a Qualifying Project – Executing the Deal Impact of Legislative Amendments to PPEA Processes Should a PPEA Procurement Process be Initiated?

PPEA – What is it? General Assembly (GA) passed legislation during 2002 GA Session: – Need for timely acquisition process not satisfied by existing procurement methods – Inadequate resources to develop new facilities and infrastructure – Public-private partnerships can improve delivery schedule and lower costs – Encourage investment in the Commonwealth by private entities, facilitate bond financing and have the greatest possible flexibility in contracting Simply stated: just another procurement process – Code of Virginia § § –

PPEA Code Requirements Guidelines Public entities shall adopt “Guidelines”; Require: – Competition, public notice, opportunity to meet with public entity – Evaluation criteria, timelines for selecting proposals and negotiating an agreement – Procedures for accelerated selection involving projects deemed high priority – Final review and analysis procedures – Procedures for review by public body having appropriation authority – Methodology for posting proposal information to encourage competition

PPEA Code Requirements Guidelines PPEA working group: – Maintain “Model Guidelines” for state public bodies –

PPEA Code Requirements Guidelines Adoption of Model Guidelines by other public bodies: – NOT required to use the PPEA working group model procedures, but may – Other public bodies must have procedures Procurement law, policies and procedures that DO NOT apply: – Virginia Public Procurement Act – DGS/DPS – Agency Procurement and Surplus Property Manual – DGS/DEB – Construction and Professional Services Manual

PPEA Code Requirements Qualifying Project What is considered a PPEA “Qualifying Project”: – Any education, recreational, or solid waste management facility – Any building or facility that meets a public purpose – Any building improvements necessary to enhance public safety and security – Any improvements necessary or desirable to unimproved real estate – Utility, telecommunications and other communication infrastructure – Technology infrastructure, services, and applications – A project designed to increase productivity or efficiency using technology or other means

PPEA Code Requirements Initiate a Qualifying Project Qualifying projects may be Initiated: – From the submission by private entities of an “unsolicited” proposal – In response to a public entity request for proposals or invitation for bids The public entity may proceed under the PPEA process provided it determines that a qualifying project serves a “public purpose”: – Estimated cost of the project is reasonable – Private entity’s plan will result in the timely development and operation – There is a public need for or benefit derived from the qualifying project

PPEA Code Requirements Evaluating a Qualifying Project Unsolicited or Solicited (most cases a two phase process): – Conceptual Proposals (phase I) – Detailed Proposals (phase II)

PPEA Code Requirements Evaluating a Qualifying Project Conceptual proposals: – Requirements for the content of conceptual proposals are provided in § – Unsolicited proposals may be rejected at any time – Unsolicited proposals must be publicly posted within 10 working days of acceptance – A private entity must provide their proposal to each affected local jurisdiction – Conceptual proposals are evaluated, then short-listed – Private entities that have been short-listed will be asked to submit detailed proposals

PPEA Code Requirements Evaluating a Qualifying Project Detailed Proposals: – Detailed proposal submission requirements – Determine evaluation criteria for detailed proposal – Private entities may be called-in to present their detailed proposal – Evaluation committee determines negotiation points – Negotiations conducted with each private entity submitting a detailed proposal – May move forward with an “interim” or “comprehensive” agreement

PPEA Code Requirements Evaluating a Qualifying Project Public-Private Partnership Advisory Commission Process: – – Comprised of 11 members: 8 legislative members; 3 executive branch members – Public entity responsibilities (state agencies only): Provide detailed proposals to advisory commission for review Negotiate agreement after commission decision to accept or decline review Send agreement to the commission 30 days prior to execution – Commission’s responsibilities: 10 days to decide to accept or decline proposals for review – If accepted, 45 days to review and provide findings/recommendations

PPEA Code Requirements Executing the Deal – Interim/Comprehensive Agreements Negotiations can result in an interim or comprehensive agreement Interim Agreement: – Smaller in scope than a comprehensive agreement – May be entered into by public and private entity: Enable the private entity to commence certain work and be compensated Establish the process and timing for negotiations of a comprehensive agreement Contain other provisions related to the project that may deem appropriate – Does not require that the parties enter into a comprehensive agreement Comprehensive Agreement: – Includes scope of work, timeline, cost, terms and conditions, and reference work completed under an interim agreement

PPEA Code Requirements Executing the Deal – Interim/Comprehensive Agreements Both Agreements Require: – Approval by public entity’s appropriating authority – Approval by Public-Private Partnership Advisory Commission – Any changes agreed upon must be by written amendment – Public hearing no later than 30 days prior to entering into an agreement – Availability of procurement records to public once agreement is executed – Procurement documents to be filed with the Auditor of Public Accounts

Impact of Legislative Amendments to PPEA Processes There have been 39 amendments to the PPEA since its introduction A PPEA procurement initiative has become more cumbersome: – GA Session 05 – introduction of interim agreement – implemented in FY06 – GA Session 07 – introduction of review Commission – implementation in FY08 – GA Session 09 – introduction of public hearing requirement - implementation in FY10 Approximately 115 days added to the PPEA process: – PPEA Commission = 10 days for decision to accept or reject review of proposals – PPEA Commission = 45 days allowed for review – PPEA Commission = submit agreement 30 days prior to execution – Public Hearing = approximately 30 days – Prepare final procurement documents for Auditor of Public Accounts = time ??

Impact of Legislative Amendments to PPEA Processes interim agreement > review commission > public hearing >

Should You Consider Initiating a PPEA Process Depends – Do not think so, if: Procurement flexibility is necessary Completing the procurement in a timely manner is important Can accomplish same scope of work using conventional procurement process Funding is already appropriated/budgeted – May want to consider, if: There is a need to keep government leaders/decision makers informed Funding/financing is an issue Bring in your agency’s legal representative early and keep them engaged

Questions?