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 §56-575.1 - §56-575.18

– http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+56-575.1

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

– http://dgs.virginia.gov/PPEA/tabid/62/Default.aspx

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 RequirementsInitiate 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 §56-575.4

– 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 RequirementsEvaluating 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 RequirementsEvaluating a Qualifying Project

• Public-Private Partnership Advisory Commission Process:– http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+30-278

– 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 ??

0

2

4

6

8

10

12

14

FY04 2 1

FY05 11 6

FY06 6 14

FY07 4 10

FY08 4 8

FY09 7 10

FY10 1 7

State Local

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?