The School Board of Miami-Dade County
Bylaws & Policies
Unless a specific policy has been amended and the date the policy was revised is noted at the bottom of that policy, the Bylaws and Policies of the Miami-Dade County Public Schools were adopted on May 11, 2011 and were in effect beginning July 1, 2011.
 

6327 - PUBLIC-PRIVATE PARTNERSHIPS AND UNSOLICITED PROPOSALS

The School Board recognizes that there is a public need for timely and cost-effective construction or upgrades of educational and other facilities that may not be wholly satisfied by the Board’s existing procurement methods such as competitive bidding, design-build, and selection of construction or program management companies. In accordance with State law, this policy provides that in addition to its existing procurement methods, the Board may solicit proposals or receive unsolicited proposals for qualifying public-private project(s) and may thereafter enter into a comprehensive agreement with a private entity, or a consortium of private entities, for the building, upgrading, operating, ownership, or financing of facilities. This policy does not preclude or prohibit other contracting arrangements that include multiple government and private entities.

Definitions

Comprehensive Agreement - the contract between the Board and the private entity that defines the terms and services to be provided with respect to a qualifying project; must include the requirements of F.S. 255.065(7) and those outlined in this policy.

Develop – to plan, design, finance, lease, acquire, install, construct, and/or expand a qualifying project.

Fees – charges imposed by the private entity of a qualifying project, other than a lease payment, for use of all or a portion of the qualifying project pursuant to a comprehensive agreement; this term does not refer to the unsolicited proposal application fee described in this policy.

Lease Payment – any form of payment, including a land lease, by a public entity to the private entity of a qualifying project for the use of the project.

Material Default – nonperformance of its duties by the private entity of a qualifying project which jeopardizes adequate service to the public from the project.

Operate – to finance, maintain, improve, equip, modify, or repair a qualifying project.

Private Entity– any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, nonprofit entity, or other private business entity.

Proposal – a plan for a qualifying project with detail beyond a conceptual level for which terms such as fixed costs, payment schedules, financing, deliverables, and project schedule are defined.

Qualifying Project – a facility or project that serves a public purpose, including but not limited to, vehicle parking facility, fuel supply facility, recreational facility, sporting or cultural facility, medical or nursing care facility, educational facility or other building or facility that is used or will be used by a public educational institution in support of its core educational mission, or any other facility or infrastructure that could be used by the public at large and supports the Board’s educational mission.

Revenues – all income, earnings, user fees, lease payments, or other service payments relating to the qualifying project, including, but not limited to, grant funds.

Designation of Qualifying Projects

The Board may designate qualifying projects as recommended by the Superintendent.

The Board may approve the development or operation of an educational facility or other government facility needed by the Board as a qualifying project, or the design or equipping of a qualifying project that is developed or operated, if it finds that all of the following criteria are met:

 

A.

There is a public need for or benefit derived from a project of the type that the private entity proposes as the qualifying project.

     
 

B.

The estimated cost of the qualifying project is reasonable and beneficial to the Board in relation to similar facilities.

     
 

C.

The private entity’s plans will result in the timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project.

Solicitation of Public-Private Partnership for Qualifying Projects

 

A.

The Superintendent may solicit and recommend public-private partnerships and agreements with private entities to the Board for qualifying projects in accordance with law and this policy.

     
 

B.

If the solicited qualifying project includes design work, the Board’s solicitation must include a design criteria package prepared by an architect, a landscape architect, or an engineer licensed in Florida which is sufficient to allow private entities to prepare a bid or a response. The design criteria package must specify reasonably specific criteria for the qualifying project such as the legal description of the site, with survey information, interior space requirements, material quality standards, schematic layouts and conceptual design criteria for the qualifying project, cost or budget estimates, design and construction schedules, and site development and utility requirements. The licensed design professional who prepares the design criteria package shall be retained to serve the Board through completion of the design and construction of the project. The outside, independent licensed design professional shall be selected through the Board’s existing selection process and procedures. The costs incurred for retaining the licensed design professional may be reimbursed to the Board as part of the comprehensive agreement if the proposer is selected by the Board for award. Notice shall be included in the solicitation documents that such reimbursement may be required under the comprehensive agreement if awarded.

     
 

C.

The Board may also include a reasonable fee in the comprehensive agreement with the proposer that covers the costs of processing, reviewing, and evaluating the proposal, including, but not limited to, reasonable attorney fees and fees for financial and technical advisors or consultants and for other necessary advisors and consultants. The fee shall be determined by the Superintendent. Notice shall be included in the solicitation documents that such fees may be charged.

Unsolicited Proposals of Public-Private Partnership for Qualifying Projects

 

A.

Any private entity may submit an unsolicited proposal to the Board to contract for the design, construction, operation, ownership, acquisition, or leasing of a qualifying project.

     
 

B.

Application Fees

     
 

1.

The Board shall charge a fee to the private entity to cover the costs of processing, reviewing, and evaluating any unsolicited proposal, including a fee to cover the costs of attorneys, engineers, consultants, and financial advisors. The fee charged for reviewing the proposal shall be based on the level of expertise deemed necessary by the Superintendent but will not be greater than the direct costs associated with evaluating the proposal. Direct costs may include, but are not limited to (a) the cost of staff time required to process, evaluate, review, and respond to the proposal, and (b) the costs of attorneys, engineers, financial advisors and other consultants. If the project proceeds beyond the initial review and is published for competition, additional fees for review and evaluation may be charged.

     
 

2.

A private entity that submits an unsolicited proposal must concurrently submit an initial application fee of $25,000. If the application fee is more than the direct costs for the evaluation, the difference will be refunded to the applicant. However, additional fees may be charged based on the nature and complexity of the proposal and review required. If the initial fee does not cover the direct costs to evaluate the proposal, the Superintendent must request in writing the additional amounts required. The private entity must pay the additional amounts within thirty (30) days after receipt of the notice. If the entity fails to pay, the evaluation will not proceed. All fees must be paid prior to further evaluation. Payment must be made by electronic fund transfer wire, cashier’s check or other non-cancelable instrument. Personal checks will not be accepted.

     
 

3.

If the proposal is not evaluated, the Superintendent must return the entire application fee to the private entity.

     
 

C.

Initial Application Process

     
 

1.

Unsolicited proposals and the required application fee shall be submitted to Procurement Management Services. The date and time of receipt will be stamped on the proposal.

     
 

2.

An unsolicited proposal from a private entity for approval of a proposed qualifying project must be accompanied by the following material and information, if applicable:

     
 

a.

A detailed description of the proposed qualifying project.

     
 

b.

A conceptual site plan, floor plans, and elevations.

     
 

c.

A description of the provision of services under the proposed qualifying project.

     
 

d.

A schedule for the initiation and completion of the proposed qualifying project with sufficient detail as to projected milestones.

     
 

e.

A description of the method by which the proposer will secure any necessary property interests that are required for the proposed qualifying project.

     
 

f.

A list of all public utilities, railroad lines, navigable waters and flight paths, if any, that will be crossed or affected by the proposed project and a statement of the plan to accommodate such crossings or effects.

     
 

g.

A description of the proposer’s general plans for financing the proposed qualifying project, including the sources of the private entity’s funds and the identity of any dedicated revenue source or proposed debt or equity investment on behalf of the private entity and the Board.

     
 

h.

Performance guarantees and any other proposed bonding to be provided by the proposer.

     
 

i.

A listing of all proposed obligations or involvement of any other governmental entities, including, but not limited to, contributions to the project’s financing, staffing, and permitting.

     
 

j.

The name and address of a person who may be contacted for additional information concerning the proposal.

     
 

k.

A description of the private entity including the names of owners, directors and officers of the proposer and such information necessary to evaluate the qualifications of the critical personnel to be engaged in the project.

     
 

l.

A listing of all engineering or construction firms proposed to be included on the project and their qualifications and a description of their role in the project.

     
 

m.

Information and supporting documentation of the benefit of the proposal to the public and the Board.

     
 

n.

The proposed user fees, lease payments, or other service payments over the term of a comprehensive agreement, and the methodology for and circumstances that would allow changes to the user fees, lease payments, and other service payments over time.

     
 

o.

Any pricing or financial terms included in an unsolicited proposal must be specific as to when the pricing or terms expire.

     
 

p.

A description of how the project will benefit small and minority businesses, identification of all known small/micro and minority/women-owned business enterprises (as defined in Policy 6320.02) that will participate in the project and the proposed scope of work of each, and a written statement that the proposer and project will comply with all of the Board’s diversity, inclusion and anti-discrimination policies, including Policy 6320.02, Small/Micro and Minority/Women-Owned Business Enterprise Programs; Policy 6320.06, Diversity, Equity, and Inclusion in Business Operations and Practices; Policy 6465, Anti-Discrimination in Business Operations; and Policy 6460, Business Code of Ethics.

     
   

The Superintendent may waive any of these criteria as appropriate for each proposed qualifying project.

     
 

3.

The unsolicited proposal shall include sufficient detail and information to evaluate the proposal and meet the above criteria. If the proposal is not deemed by the Superintendent to be complete or in sufficient detail, it may be rejected at the sole discretion of the Superintendent. The Superintendent shall inform the proposer in writing of the reason for rejection and return the application fee to the proposer.

     
 

4.

If the Superintendent determines that the proposal meets the above requirements and chooses to evaluate an unsolicited proposal involving architecture, engineering, or landscape architecture, s/he must ensure a professional review and evaluation of the design and construction proposed by the initial or subsequent proposers to ensure material quality standards, interior space utilization, budget estimates, design and construction schedules, and sustainable design and construction standards consistent with public projects. Such review shall be performed by an architect, a landscape architect, or an engineer licensed in this State qualified to perform the review and such professional shall advise the Board through the completion of the design and construction of the project and selected through the Board’s existing selection process and procedures.

     

5.

Upon completion of the review and evaluation, the Superintendent shall either reject the proposal or proceed to publication of the proposal under this policy. The Superintendent shall respond to the proposer in writing as to the acceptance or rejection of the unsolicited proposal and inform the Board of any rejection(s).

Publication

 

A.

In determining whether to publish a proposal, the Superintendent must determine that the proposed project:

     
 

1.

is in the public’s best interest;

     
 

2.

is for a facility that is owned by the Board or is for a facility for which ownership will be conveyed to the Board;

     
 

3.

has adequate safeguards in place to ensure that additional costs or service disruptions are not imposed on the public in the event of a material default or cancellation of the comprehensive agreement by the Board;

     
 

4.

has adequate safeguards in place to ensure that the Board or private entity has the opportunity to add capacity to the proposed project or other facilities serving similar predominantly public purposes;

     
 

5.

will be owned by the Board upon completion, expiration, or termination of the comprehensive agreement and upon payment of the amounts financed.

     
 

B.

When a proposal is solicited from private entities for a qualifying project, or an unsolicited proposal is accepted for publication of the project described in the unsolicited proposal, the notice shall be published in the Florida Administrative Register and a newspaper of general circulation in Miami-Dade County at least once a week for two (2) weeks stating the Board has received a proposal and will accept other proposals for the same project. The timeframe within which other proposals will be accepted shall be determined on a project-by-project basis based upon the complexity of the qualifying project and the public benefit to be gained by allowing a longer or shorter period of time within which other proposals may be received. However, the timeframe for allowing other proposals must be at least twenty-one (21) days, but no more than 120 days after the initial date of publication. If approved by a majority of the Board, the Board may alter the timeframe for accepting proposals to more adequately suit the needs of the qualifying project. A copy of the notice must be mailed to each local government in the affected area.

     
 

C.

The notice shall identify the procedures that will be used for submitting and evaluating the proposals which shall be the same as those for submission of unsolicited proposals, including the application fee.

     
 

D.

The cone of silence in Policy 6325 shall be imposed from the time of publication of a competitive proposal, except for unsolicited proposals when the cone of silence will begin at the time the proposal is received in accordance with this policy, until the Board committee meeting immediately prior to the meeting in which the Board will reject all bids or approve an award.

Proposal Evaluation and Approval

 

A.

After the response period for a solicited proposal, or the public notification period for an unsolicited proposal has expired, all proposals received shall be evaluated according to the published criteria and ranked in order of preference. The ranking shall be conducted by a selection committee appointed by the Superintendent on a project-by-project basis and in compliance with existing procurement policies. Factors that must be considered in ranking the proposals include, but are not limited to, professional qualifications of the proposer(s), general business terms, innovative design techniques, or cost-reduction terms, and finance plans. The Superintendent may then begin negotiations for a comprehensive agreement with the highest-ranked firm. If the negotiation results are not satisfactory, the Superintendent may terminate negotiations with the proposer and negotiate with the second-ranked or subsequent-ranked firms, in the order consistent with this procedure. No proposer is guaranteed the award of a contract as a result of being favorably ranked for this project and the issuance of an unsolicited proposal shall create no rights in the proposer including rights as a bidder, under contract, or intellectual property. If only one proposal is received, the Superintendent may negotiate in good faith, but if the negotiation is unsatisfactory, negotiations may be terminated. Notwithstanding this process, any and all proposals may be rejected by the Superintendent or Board in accordance with this policy at any point in the process.

     
 

B.

The bid protest process in Policy 6320 shall apply only to any final Board decision to recommend a contract award to a proposer or to reject all bids, unless such protest is waived.

     
 

C.

The Superintendent shall perform an independent analysis of the proposed public-private partnership which demonstrates the cost-effectiveness and overall public benefit before the contract is recommended to the Board for award.

Comprehensive Agreement

 

A.

Before developing or operating the qualifying project, the private entity must enter into a comprehensive agreement with the Board.

     
 

B.

The agreement shall include the requirements required by F.S. 255.065(7) and those which address:

     
 

1.

delivery of performance and guarantee bonds in compliance with F.S. 255.05;

     
 

2.

Board approvals of the project design, inspection and monitoring by the Board during the course of the project;

     
 

3.

maintenance of public liability insurance by the private entity, periodic filing of financial statements by the private entity;

     
 

4.

procedures governing the rights and responsibilities of the parties during the course of the project and in the event of material default by the private entity;

     
 

5.

provisions for the transfer or purchase of the property or other interest of the private entity by the Board;

     
 

6.

payment schedules and financing arrangements;

     
 

7.

provisions evidencing the private entity’s compliance with all of the Board’s diversity, inclusion and anti-discrimination policies, including Policy 6320.02, Small/Micro and Minority/Women-Owned Business Enterprise Programs; Policy 6320.06, Diversity, Equity, and Inclusion in Business Operations and Practices; Policy 6465, Anti-Discrimination in Business Operations; and Policy 6460, Business Code of Ethics; and

     
 

8.

any other provisions deemed necessary for the qualifying project.

     
 

C.

In accordance with F.S. 255.065(7(b), the agreement may also include provisions that:

     
 

1.

allow the Board to make grants or loans to the private entity;

     
 

2.

relate to notice of fault, cure rights, and unavoidable delays;

     
 

3.

terminate the authority and duties of the private entity and dedicate the qualifying project to the Board;

     
 

4.

address reimbursement and/or payment for costs incurred by the Board in reviewing and processing the initial proposal.

Qualifying Project Financing

 

A.

The private entity may secure its own private-source financing which must be paid in full upon transfer of the facility to the Board in accordance with the comprehensive agreement.

     
 

B.

As provided in and in accordance with State law, the Board may use innovative finance techniques including Federal loans as provided in Titles 23 and 49, C.F.R., commercial bank loans, other public and/or private sources, from its own capital or operating budget, or any other legally permissible funding source including proceeds of debt issuance.

     
 

C.

Financing arrangements, however, shall not require the Board to indemnify the financing source, subject the facility to liens in violation of F.S. 11.066(5), or secure financing by a mortgage on, or security interest in, the real or tangible property of the Board in a manner that could result in the loss of the fee ownership of the property or facility by the Board, or otherwise result in the foreclosure of the Board’s interest in such property.

     
 

D.

If Board financing of a debt obligation is involved, the Board’s Treasury Advisory Committee shall review and approve the financing and debt proposal prior to publication.

     
 

E.

The full faith and credit of the Board may not be pledged to secure the financing of the private entity.

Expiration or Termination

 

A.

Upon expiration or termination of a comprehensive agreement, the Board may use revenues from the qualifying project to pay current operation and maintenance costs of the qualifying project or for any other purpose deemed appropriate by the Board and allowed by law.

     
 

B.

If the private entity materially defaults under the comprehensive agreement, the compensation that is otherwise due to the private entity is payable to satisfy all financial obligations to investors and lenders in the same way provided in the comprehensive agreement. Revenues in excess of the costs for operation and maintenance costs may be paid to the investors and lenders to satisfy payment obligations under those agreements.

     
 

C.

The Board may terminate a comprehensive agreement with cause and exercise any other rights or remedies that may be available to it in accordance with the provisions of the comprehensive agreement.

     
 

D.

The assumption of the development or operation of the qualifying project does not obligate the Board to pay any obligation of the private entity from sources other than revenues from the qualifying project unless stated otherwise in the comprehensive agreement.

Sovereign Immunity

Neither the sovereign immunity of the Board nor any Board officer or employee is waived as a result of participation in, or approval of, any part of a qualifying project or its operation, including, but not limited to, interconnection of the qualifying project with any other infrastructure or project.

Public Records and Public Meeting Exemptions for Unsolicited Proposals

 

A.

An unsolicited proposal received by the Board is exempt from F.S. 119.07(1) and Section 24(a), Art. I, Florida Constitution, until the recommendation for award or rejection is posted.

     
 

1.

If all proposals submitted pursuant to a competitive solicitation for a qualifying project are rejected and notice of an intent to seek additional proposals for such project is concurrently provided, the unsolicited proposal remains exempt until the notice of an intended decision concerning the reissued competitive solicitation for the qualifying project is posted or until the reissued competitive solicitation for such project is withdrawn.

     
 

2.

An unsolicited proposal is exempt for no longer than ninety (90) days after the initial notice rejecting all proposals is posted.

     
 

B.

If no competitive solicitation for a qualifying project is issued, the unsolicited proposal ceases to be exempt 180 days after receipt of the unsolicited proposal.

     
 

C.

Any portion of any meeting during which an unsolicited proposal that is exempt is discussed is exempt from F.S. 286.011 and Section 24(b), Art. I, Florida Constitution.

     
 

1.

A complete recording must be made of any portion of an exempt meeting. No portion of the meeting may be held off the record.

     
 

2.

The recording of, and any records generated during, the exempt meeting are exempt from F.S. 119.07(1) and Section 24(a), Art. I, Fl. Constitution, until such time as the Superintendent posts notice of an intended decision for a qualifying project or 180 days after receipt of the unsolicited proposal by the Board if no competitive solicitation for the project is issued.

     
 

3.

If the intended decision is to reject all proposals and the Superintendent concurrently provides notice of an intent to reissue a competitive solicitation, the recording and any records generated at the exempt meeting remain exempt from F.S. 119.07(1) and Section 24(a), Art. I, Florida Constitution, until such time as the notice of an intended decision concerning the reissued competitive solicitation is posted or until the Board withdraws the reissued competitive solicitation for the project.

     
 

4.

A recording and any records generated during an exempt meeting are exempt for no longer than ninety (90) days after the initial notice rejecting all proposals is posted.

     
 

D.

Board meetings to discuss exempt unsolicited proposals shall be conducted in accordance with Policy 0166, Non-Public Meetings, and called and noticed as a special meeting under Policy 0164, Notice of Meetings, and Policy 0165, Public Meetings.

U.S. Titles 23 and 49, C.F.R.
Section 24(a), Article I, Florida Constitution
F.S. 11.066(5)
F.S. 119.07(1)
F.S. 119.071(1)
F.S. 255.05
F.S. 255.065
F.S. 286.011
F.S. 287.055

Adopted 1/25/17

© Miami-Dade 2017