Last year, the Florida Legislature enacted HB 781, expanding the statutory framework for public-private partnerships (P3s) in Florida. As we explained in a prior blog post, the amendments to Section 255.065 of the Florida Statutes streamlined the process for review of unsolicited proposals, and provides local governments with the flexibility of accept unsolicited proposals without engaging in a public bidding process, so long as the governing board complies with heightened procedural safeguards for public notice and comment, and thereafter determines that it is in the public interest to proceed with the proposal.
At least one municipality, the City of Cape Coral, has already utilized the new statutory framework to proceed with a comprehensive agreement for a park project, after making detailed findings following two public hearings, that an unsolicited proposal was in the public interest because, among other factors, the proposal involved a lower cost for delivery of the improvements, with less risk for the city.
In response to the new law, municipalities in Florida are beginning to update their unsolicited proposal procedures to better align their existing procurement rules with the new statutory framework (although doing so is not required in order to utilize the new law). Some municipalities, such as the City of Boca Raton, have updated their procedures through adoption of administrative guidelines. Other municipalities, such as the City of Key West, the City of Melbourne, the City of Hialeah, and the City of Miami Gardens have recently adopted ordinances, formally codifying their P3 requirements as part of their municipal procurement codes.
The trend to codify unsolicited P3 proposals as part of a public entity’s local procurement code is a positive development for P3s in Florida. Rather than treating the statutory unsolicited proposal process as an alternative that is somehow “outside” a local government’s standard procurement approach, adoption of P3 requirements as part of an agency’s formal procurement code places P3s on par with other generally available procurement methodologies, with the unsolicited proposal process being just “one more tool” in the procurement toolkit.
In addition, nearly all agencies that have updated their unsolicited proposal procedures have included robust submission requirements and review criteria as part of their updated rules. The use of these procedures will allow for the comprehensive evaluation of the costs and benefits of a proposal, including financial factors, and non-financial factors, such as consideration of timing and risk, and will enable local governments to demonstrate that any decision to proceed with an unsolicited proposal was based on a fair, transparent, and sound decision-making process. Moreover, as many P3s ultimately involve a lease of public property for the construction of a project, the adoption of P3 procedures in the public entity’s code of ordinances provides the local government with the ability to specify whether or to what extent any local code requirements for leasing of property otherwise apply, thereby providing clarity and efficiency to the process, both for proposers and stakeholders.
Although many local governments have yet to revise their P3 unsolicited proposal rules to incorporate the recent state legislative changes, local governments are trending in the right direction. Even with the adoption of P3 procedures, developers interested in submitting an unsolicited proposal should be aware that, depending on the type of project or agreements involved, there may be multiple layers of submittal and/or approval requirements (and not only those identified in the P3 statute). For this reason, a proposal strategy that takes into account all of the rules applicable to a given project, and which carefully tailors the proposal to each jurisdiction’s specifications, will be critical to make a proposal successful.
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