05 SB270/AP
Senate
Bill 270
By:
Senators Williams of the 19th, Whitehead, Sr. of the 24th and Kemp of the
46th
AS PASSED
AS PASSED
AN
ACT
To
amend Article 4 of Chapter 2 of Title 32 of the Official Code of Georgia
Annotated, relating to the general contracting powers of the Department of
Transportation, so as to permit the acceptance of solicited as well as
unsolicited proposals for public-private initiatives; to allow for the
disclosure of nonproprietary matters from the unsolicited and solicited
proposals in order to encourage competition; to provide for a payment and
performance bond sufficient to protect the interest of the public; to extend the
time for submission of competing proposals; to amend Part 1 of Article 1 of
Chapter 10 of Title 32 of the Official Code of Georgia Annotated, relating to
the Georgia Highway Authority generally, to provide for additional definitions
and powers of the authority; to provide for related matters; to provide an
effective date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
4 of Chapter 2 of Title 32 of the Official Code of Georgia Annotated, relating
to the general contracting powers of the Department of Transportation, is
amended by striking Code Section 32-2-78, relating to the definitions governing
public-private initiatives, and inserting in its place the
following:
"32-2-78.
As
used in this chapter, the term:
(1)
'Department' means the Georgia Department of Transportation.
(2)
'Evaluation Committee' means the one or more committees established for the
purpose of evaluating and making a recommendation with respect to unsolicited
proposals, solicited proposals, competing proposals, or comparable proposals as
set forth in this chapter. The Evaluation Committee shall consist of a designee
of the Governor, a designee with a background in finance to be named by the
Governor, the commissioner of the Department of Transportation, the director of
the State Road and Tollway Authority, and the director of the Georgia Regional
Transportation Authority. The Evaluation Committee shall employ such experts as
needed in the performance of its duties and charge the expenses incurred by it
to such funds made available to the department for such purposes.
(3)
'Letter of intent to negotiate' means the written statement of mutual intent by
the department and the proposer for a public-private initiative to develop and
implement a course of negotiation, within a substantive framework, which if
successfully completed could lead to a binding contractual agreement to
accomplish a proposed transportation system project.
(4)
'Private contribution' means resources supplied by a private entity to
accomplish all or any part of the work on a transportation system project,
including funds, financing, income, revenue, cost sharing, technology, staff,
materials, equipment, expertise, data, or engineering, construction, or
maintenance services, or other items of value. To the extent that this
definition may conflict with any federal law or regulation, for any project
utilizing federal funds, the federal definition shall supersede this
paragraph.
(5)
'Public-private initiative' means a nontraditional arrangement between the
department and one or more private or public entities that provides
for:
(A)
Acceptance of a private contribution to a transportation system project or
service in exchange for a public benefit concerning that project or
service;
(B)
Sharing of resources and the means of providing transportation system projects
or services; or
(C)
Cooperation in researching, developing, and implementing transportation system
projects or services.
(6)
'Solicited proposal' means a written proposal for a public-private initiative
that is submitted by a private entity for the purpose of entering into an
agreement with the department concerning a transportation system project in
response to a formal solicitation or notification issued by the department. A
solicited proposal may be made as a competing proposal or comparable proposal to
an unsolicited proposal.
(7)
'Transportation system' means the state transportation infrastructure and
related systems, including highways, roadways and associated rights of way,
bridges, tunnels, overpasses, ferries, airports, port facilities, vehicle
parking facilities, park-and-ride lots, transit systems, transportation
management systems, intelligent vehicle highway systems, or similar facilities
used for the transportation of persons or goods, together with any other
property, buildings, structures, parking areas, appurtenances, and facilities
needed to operate such system, including any major transportation facility as
defined by paragraph (3) of subsection (a) of Code Section 32-2-3, and any
other facility for other transportation purposes as defined by paragraph (18) of
Code Section 32-1-3.
(8)
'Unsolicited proposal' means a written proposal for a public-private initiative
that is submitted by a private entity for the purpose of entering into an
agreement with the department concerning a transportation system project but
that is not in response to a formal solicitation or request issued by the
department."
SECTION
2.
Said
article is further amended by striking Code Section 32-2-79, relating to
requirements for unsolicited proposals for public-private initiatives, and
inserting in its place the following:
"32-2-79.
(a)
The department may solicit upon prior notice to the Governor, receive, consider,
evaluate, and accept an unsolicited or solicited proposal for a public-private
initiative only if the proposal complies with all of the requirements of this
Code section.
(b)
The department may consider an unsolicited proposal only if the
proposal:
(1)
Is unique and innovative in comparison with and is not substantially similar to
other transportation system projects already in the state transportation
improvement program within the department or, if it is similar to a project in
the state transportation improvement program, that such project has not been
fully funded by the department or any other entity as of the date the proposal
is submitted. Unique or innovative features which may be considered by the
department in evaluating such a proposal may include but not be limited to
unique or innovative financing, construction, design, or other components as
compared with other projects or as otherwise defined by department rules or
regulations;
(2)
Is independently originated and developed by the proposer; and
(3)
Includes or is accompanied by:
(A)
Such detail and information as the department may require by rule or regulation
to assist in its evaluation of the proposal and to determine if the proposal
benefits the public. Such information shall include a list of any proprietary
information included in the proposal which the proposer considers protected
trade secrets or other information exempted from disclosure under Code Section
50-18-70, et seq., except that the information shall also include an executive
summary which at a minimum shall summarize the proposed transportation facility
or facilities, identify their proposed location, and provide any other
additional information that may be required by the rules and regulations of the
department. Such executive summary shall be subject to immediate disclosure to
other interested competing proposers and the public;
(B)
An itemized, auditable listing of the costs associated with the development of
the proposal; and
(C)
Such fees as may be required by the rules and regulations of the department for
submission of such proposals.
(c)
Paragraph (1) of subsection (b) of this Code section shall not be deemed to
prohibit the department from encouraging the submission of unsolicited or
solicited proposals that are well-developed and consistent with the
department́s
general policy priorities by providing written or oral information to any person
regarding the policy priorities or the requirements and procedures for
submitting an unsolicited or solicited proposal.
(d)
If the unsolicited proposal does not comply with the requirements of subsection
(b) of this Code section, the department shall return the proposal without
further action. In taking such action, the department shall not disclose either
the originality of the research or any proprietary information associated with
the proposal to any other person or entity. If the unsolicited proposal
complies with all the requirements of subsection (b) of this Code section, the
department may further evaluate the proposal pursuant to this Code
section.
(e)
Within 30 days of receipt of an unsolicited proposal that meets the requirements
of subsection (b) of this Code section, the department shall provide public
notice of the proposed project. This notice shall:
(1)
Be published in a newspaper of general circulation which is a legal organ and
upon such electronic website providing for general public access as the
department may develop for such purpose or in the same manner as publications
providing notice as described in Code Section 32-2-65;
(2)
Be provided to any person or entity that expresses in writing to the department
an interest in the subject matter of the proposal and to any member of the
General Assembly whose House or Senate district would be affected by such
proposal;
(3)
Outline the general nature and scope of the unsolicited proposal, including the
location of the transportation system project and the work to be performed on
the project; and
(4)
Specify the address to which any comparable proposal must be
submitted.
(f)
Any person or entity who elects to submit a competing proposal for the proposed
qualifying project to the department shall submit a written letter of intent to
do so by no later than 45 days after the
department́s
initial publication of the notice accompanied by any fee that the department
shall prescribe by guideline, rule, or regulation. Any letter of intent
received by the department after the expiration of the 45 day period or without
any fee required by the department shall not be valid, and any competing
proposal submitted thereafter by a person or entity who has not submitted a
timely letter of intent shall not be considered by the department and shall be
returned to the person or entity who did not submit a letter of intent by the
deadline. For those persons or entities who elect to submit a competing
proposal and submit a timely letter of intent with the department, any such
competing proposal shall be submitted to the department by no later than 135
days after the
department́s
initial publication of the notice required by this Code section. Only those
competing, compliant proposals submitted by such deadline shall be considered by
the department.
(g)
Upon receipt of a proposal properly submitted in response to the notice
described in subsection (e) of this Code section which fully meets the
requirements of subsection (b) of this Code section, the department
shall:
(1)
Determine, in its discretion, if any submitted proposal is comparable in nature
and scope to the original proposal and whether it warrants further
evaluation;
(2)
Evaluate the original proposal and any comparable proposal and make a
recommendation to the Evaluation Committee on whether to move forward with a
letter of intent to negotiate; and
(3)
Conduct good faith discussions and, if necessary, negotiations concerning each
qualified proposal.
(h)
The department shall base its evaluation of the original proposal or comparable
proposals on the following factors:
(1)
Unique and innovative methods, approaches, or concepts demonstrated by the
proposal;
(2)
Scientific, technical, or socioeconomic merits of the proposal;
(3)
Potential contribution of the proposal to the
department́s
mission;
(4)
Capabilities, related experience, facilities, or techniques of the proposer as
described in the proposal or unique combinations of these qualities that are
integral factors for achieving the proposal objectives;
(5)
Qualifications, capabilities, and experience of the proposed principal
investigator, team leader, or key personnel who are critical in achieving the
proposal objectives; and
(6)
Any other factors appropriate to a particular proposal.
(i)
Once the department has concluded its evaluation of the unsolicited proposal and
any comparable proposals or a solicited proposal where applicable, the
department shall transmit its findings and research to the Evaluation Committee
for further review. Once the Evaluation Committee has concluded its review and
makes its recommendation to the department, the department may execute a letter
of intent to negotiate with the entity submitting the most desirable proposal as
determined by the
department́s
evaluation process. At least two weeks prior to approval of any project, the
department shall present to the Governor and the House and Senate transportation
committees a report with respect to the proposed letter of intent to negotiate.
Such letter of intent to negotiate shall indicate the
department́s
willingness to undertake a public-private initiative if, after public
comment:
(1)
The department determines that the project is financially feasible and in the
public interest; and
(2)
The department and the proposer can arrive at agreeable terms and conditions,
including price of the project.
(j)
The department may execute a letter of intent to negotiate relating to an
unsolicited proposal or conforming comparable proposal or a solicited proposal
only if:
(1)
The proposal receives a favorable evaluation by the department and the
Evaluation Committee;
(2)
The department makes a written determination based on facts and circumstances
that the proposal is an acceptable basis for an agreement to obtain services
from the entity making the proposal; and
(3)
The specific letter of intent to negotiate is specifically approved by
affirmative vote of the State Transportation Board.
(k)
Once the letter of intent to negotiate is signed by the parties, prior to final
contracting for any public-private initiative from the unsolicited or conforming
comparable proposal or a solicited proposal, the department:
(1)
Should provide public notice that the department will receive public comment
with respect to such proposal. The notice shall:
(A)
Be published in a newspaper of general circulation and which is a legal organ,
and upon such electronic website providing for general public access as the
department may develop for such specific purpose, or in the same manner as
publications providing notice as described in Code Section 32-2-65, or both,
allowing at least 14 days and no more than 45 days for public comment to be
submitted for consideration;
(B)
Be provided to any person or entity that expresses in writing to the department
an interest in the subject matter of the proposal;
(C)
Outline the general nature and scope of the proposal, including the location of
the transportation system project and the work to be performed on the project;
and
(D)
Specify the address to which any public comment or requests for an executive
summary must be submitted; and
(2)
In its discretion, may provide additional opportunity for public comment at a
public meeting or meetings. In such event, notice of such meetings shall be
provided in the same manner as described in paragraph (1) of this
subsection.
(l)
In taking the actions required by subsections (e) and (k) of this Code section,
the department shall not disclose either the originality of the research or any
proprietary information associated with the proposal as listed by the proposer
required by paragraph (3) of subsection (b) of this Code
section.
(m)
Except as provided under subparagraph (b)(3)(A) of this Code section, the
provisions of Code Sections 50-14-1 and 50-18-70 to the contrary
notwithstanding, no proposal shall become a 'public record' nor be subject to
disclosure as such until the unsolicited proposal, any comparable proposals, or
any solicited proposals have been received and any competitive interviews
specified in the solicitation process have been completed. At all times
thereafter, the department shall not disclose trade secret or proprietary
information, or both, specifically designated by the proposer as required by
paragraph (3) of subsection (b) of this Code section which meets the definition
of a trade secret under Code Section 50-18-70, et seq. Subject to the
foregoing, all proposals submitted to the department shall become the property
of the department and are subject to the Georgia Open Records Act. Proposers
should familiarize themselves with the provisions of the Act to ensure that all
documents identified as confidential will not be subject to disclosure under the
Open Records Act; provided, however, that the department in consultation with
the Department of Law shall make the final determination of whether or not the
requested materials are exempt from disclosure. In the event that the
department elects to disclose the requested material, it shall attempt to
provide the proposer advance notice of its intent to disclose.
(n)
The power of eminent domain shall not be delegated to any private entity under
any public-private initiative commenced or proposed pursuant to this
chapter.
(o)
The department or the
department́s
designee has the authority to make the determination and take the actions
required by this Code section.
(p)
If the department rejects or declines to accept an unsolicited proposal, but
within a period of two years following the submission of such proposal the
department contracts for a substantially similar project, the department shall
reimburse the proposer of the unsolicited proposal for the auditable costs
associated with the preparation and development of the proposal upon a request
for reimbursement to the department. This provision shall not apply if the
department accepts a conforming comparable proposal through the procedures
outlined in subsections (f) and (g) of this Code
section."
SECTION
3.
Said
article is further amended by striking Code Section 32-2-80, relating to
authority to contract with proposer for public-private initiative, and inserting
in its place the following:
"32-2-80.
(a)
If the department follows the evaluation criteria set forth in Code Section
32-2-79 and if an unsolicited or solicited proposal contains all the information
required by that Code section and the proposal is accepted by the department as
demonstrated by the execution of a letter of intent to negotiate, upon
completion of the public comment period, the department shall have the authority
to contract with the proposer for a public-private initiative based upon the
proposal without subjecting such contract to public bid as required by Code
Section 32-2-64, 32-10-68, or 50-5-72. Such contracts shall be in compliance
with all other applicable federal and state laws, including, but not limited to,
Code Sections 13-10-40, 13-10-60, and 32-2-70, and each specific contract shall
be specifically approved by affirmative vote of the State Transportation Board
and concurrence by the Governor.
(b)
Any agreement entered into pursuant to this article may authorize funding to
include tolls, fares, or other user fees and tax increments for use of the
transportation facility that is the subject of the proposal. The department may
take any action to obtain federal, state, or local assistance for a qualifying
project that serves the public purpose of this chapter and may enter into any
contracts required to receive such assistance. Any funds received from the
state or federal government or any agency or instrumentality thereof shall be
subject to appropriation as provided by the Constitution and laws of this state.
The department may determine that it serves the public purpose of this chapter
for all or any portion of the costs of a qualifying project to be paid, directly
or indirectly, from the proceeds of a grant or loan made by the federal, state,
or local government or any instrumentality thereof, including, but not limited
to, the State Road and Tollway Authority and the Georgia Highway Authority. The
department may agree to make grants or loans to the operator from time to time
from amounts received from the federal, state, or local government or any agency
or instrumentality, including, but not limited to, the State Road and Tollway
Authority and the Georgia Highway Authority.
(c)
The department, in its sole discretion, may reject any unsolicited or solicited
proposal at any time until a contract is signed with the entity submitting the
proposal. In the event that an unsolicited proposal is rejected but the
department subsequently proceeds with all or part of such proposal within a
period of two years, the entity submitting the proposal shall be entitled to
reimbursement of the costs of developing the unsolicited proposal as indicated
in subsection (p) of Code Section 32-2-79; provided, however, that the
department shall not be responsible for reimbursement of the costs of developing
a solicited
proposal."
SECTION
4.
Part
1 of Article 1 of Chapter 10 of Title 32 of the Official Code of Georgia
Annotated, relating to the Georgia Highway Authority generally, is amended by
striking paragraph (10) of Code Section 32-10-1, relating to the definitions
governing the Georgia Highway Authority, and inserting in its place the
following:
"(10)
'Project' means:
(A)
A continuous length or stretch of state road, including bridges thereon, as to
which the authority has undertaken or agreed to undertake any action permitted
by the terms of this article or as to which any such action has been completed
by the authority;
(B)
A continuous length or stretch of county road, including bridges thereon, as to
which the authority has undertaken or agreed to undertake any action permitted
by the terms of this article or as to which any such action has been completed
by the authority;
(C)
A continuous length or stretch of urban road, including bridges thereon, as to
which the authority has undertaken or agreed to undertake any action permitted
by the terms of this article or as to which any such action has been completed
by the authority;
(D)
One or more bridges, as defined in paragraph (5) of this Code section, together
with the approaches thereto, as defined in paragraph (1) of this Code section;
and
(E)
A project undertaken pursuant to a public-private initiative as authorized
pursuant to Code Section
32-2-78."
SECTION
5.
Said
part is further amended by striking paragraphs (10) and (11) of Code Section
32-10-4, relating to powers of the Georgia Highway Authority generally, and
inserting in their place the following:
"(10)
To do and perform all things necessary or convenient to carry out the powers
conferred upon the authority by this article;
(11)
To prescribe rules and regulations as approved by the department for the
operation of each project constructed under this article, including rules and
regulations to ensure maximum use of each such project; and
(12)
To incorporate one or more nonprofit corporations as subsidiary corporations of
the authority for the purpose of carrying out any of the powers of the authority
and to accomplish any of the purposes of the authority. Any such subsidiary
corporation shall be a nonprofit corporation, a body corporate and politic, and
an instrumentality and public corporation of the state and shall exercise
essential governmental functions. Any subsidiary corporations created pursuant
to this power shall be created pursuant to Chapter 3 of Title 14, the 'Georgia
Nonprofit Corporation Code,' and shall be filed with the Secretary of State, who
shall be authorized to accept such filings. The commissioner and two
individuals appointed by the members of the authority shall constitute the
members of and shall serve as directors of any subsidiary corporation, and such
appointment shall not constitute a conflict of interest, provided that the
provisions of subsection (a) of Code Section 45-10-23 or any other law shall not
prevent full-time employees of the authority or the Department of Transportation
from serving as members of the governing board of such subsidiary corporation.
Upon dissolution of any subsidiary corporation of the authority, any assets
shall revert to the authority or to any successor to the authority or, failing
such succession, to the state, provided that any toll collection or other
tollway operations remain under the authority of the State Road and Tollway
Authority. The authority shall not be liable for the debts, obligations, or
bonds of any subsidiary corporation or for the actions or omissions to act of
any subsidiary corporation unless the authority in writing expressly so
consents."
SECTION
6.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
7.
All
laws and parts of laws in conflict with this Act are repealed.