Public-Private Partnership Law Creates New Procurement Method

HB 85, passed by the Florida Legislature is expected to be signed into law by the Governor. HB 85 creates a new Florida Statute, Section 287.05712, Public-Private Partnerships. Upon becoming law, Section 287.05712 will usher in a new procurement method in the State of Florida. Namely, the "unsolicited proposal".

Traditionally, public agencies in Florida accept bids by way of an Invitation for Bid, Request for Proposals, or Request for Qualifications. These traditional procurement methods typically define the project for bidders to respond to. In the case of an "unsolicited proposal", it will be up to the bidder to define the project for the public agency's consideration. After the effective date of the new law, public agencies will be authorized to receive and consider unsolicited proposals for a "qualifying project" as defined therein.

Public agencies will be authorized to establish a reasonable application fee which is intended to cover the cost of evaluating the proposal. If the public agency intends to enter into an agreement in relation to an unsolicited proposal, it must provide notice of no less than 21 days and up to 120 days before entering into an agreement in order to allow other bidders to submit a proposal. Thereafter, the new law provides for a more traditional process for the evaluation, ranking and ultimate contract award.

The spirit and intent of the new law has been widely reported on during this past Legislative Session. While the public necessity for the new law is driven by virtue of the need for private funding of much needed public works projects, the codification and authority for public agencies to accept unsolicited proposals is a key component of the process.

Is a Florida Public/Private Partnership Statute Imminent?

Seeing the potential of public/private partnerships (“P3”) as the preferred means for funding and building public projects now and in the future, Governor Rick Scott has pushed a P3 statute near the top of his agenda for the upcoming legislative session. Since the last session, he led a trip to Spain to court some of the biggest P3 financiers and builders in the world, espousing the vast potential for P3 jobs in Florida. Legislators have already been tapped to sponsor P3 bills in the House and Senate and bill drafting is currently underway. As a result of the current crisis in public university funding, the Florida Board of Governors appointed a task force on facilities funding that is looking into possible legislation, including P3 legislation, with a charge to report its findings by November 7, 2012, in time to seek a legislative cure.

P3 legislation is not just a pipe dream. A comprehensive bill (some would say too comprehensive) passed the Florida House in the last week of this past legislative session, but without enough time for the Senate to vote on it, especially in light of other legislative priorities such as budgets and reapportionment. However, that was the furthest a non-DOT P3 bill had traveled in the legislature, suggesting increased momentum for P3 legislation. This year, with gubernatorial support and a wellspring of concern about the need for public funds for construction, infrastructure and maintenance, we expect to see the much-needed statutory framework for P3 this year.

If any of you are interested or participating in the drafting or support of P3 legislation, please contact me so we can coordinate efforts. You can reach me at Lee Weintraub, phone number (954) 985-4147, email lweintraub@becker-poliakoff.com, fax (954) 985-4176.

Together we can kick start this new era of public construction and jobs growth in Florida.