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D.C. Municipal Regulations (Last Updated: September 13, 2017) |
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Title 27. CONTRACTS AND PROCUREMENT |
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Chapter 27-48. PUBLIC-PRIVATE PARTNERSHIPS |
Section 27-4807. UNSOLICITED PROPOSALS: REQUEST FOR ALTERNATIVE PROPOSALS AND COMPREHENSIVE EVALUATION
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4807.1 Comprehensive Evaluation of Unsolicited Proposal: If the result of the preliminary evaluation is favorable, the unsolicited proposal will enter the comprehensive evaluation phase.
4807.2Unsolicited Proposal Clarification: During the comprehensive evaluation phase the DC OP3 may communicate with the proposer (hereinafter referred to as the “Original Unsolicited Proposer”) for clarification of the proposal. This process will not be an opportunity for changes to be made to the unsolicited proposal; only for clarification of proposal aspects to allow an evaluation by the DC OP3.
4807.3Notification of the Unsolicited Proposer: The DC OP3 will notify the Original Unsolicited Proposer that the unsolicited proposal has been deemed favorable. The DC OP3 will also notify the proposer of the alternative proposals process outlined in § 4807.4 and of the proposer’s ability to submit a modified proposal as part of the process outlined in § 4807.7.
4807.4 Public Notice and Alternative Proposals: The DC OP3 will publish the executive summary of the Original Unsolicited Proposer’s proposal and any non-proprietary aspects of the unsolicited proposal on the DC OP3 website. As part of its publication of the unsolicited proposal, the DC OP3 will also publish a request for alternative proposals (RFAP) soliciting other private parties to submit alternative proposals. The DC OP3 will also publish notice in the DC Register and in any other publication or on any website that the DC OP3 deems appropriate.
4807.5Schedule: The DC OP3 will allow alternative proposals to be submitted in response to the RFAP for at least thirty (30) days after the notice is published in the D.C. Register. In most cases, the response period will be longer than thirty (30) days in order to increase the competitive environment for the project. The response period will be expressly stated in the RFAP.
4807.6Requirements of Alternative Proposals: All responses to the RFAP must meet all the requirements of an original unsolicited proposal as stated in § 4806. The requirements include the completion of the unsolicited proposal form and any other requirements included in the public notice issued under § 4807.4.
Each alternative proposer will be required to pay the preliminary evaluation fee described in § 4806.3 and the comprehensive evaluation fee described in § 4807.13.
4807.7Amended Submittals by the Original Unsolicited Proposer: During the RFAP response period, the original unsolicited proposer may submit an amended proposal based upon the RFAP. The amended proposal may only update the original proposal to the extent necessary to be responsive to additional requirements or clarifications about the project that DC OP3 has requested in the RFAP or to respond to project-specific scoring criteria; the amended proposal may not constitute a completely new proposal. The original unsolicited proposer will not be required to pay an additional preliminary evaluation fee if it submits an amended proposal.
4807.8Comprehensive Evaluation: After the end of the RFAP response period, the DC OP3 will evaluate the original unsolicited proposal, or amended original unsolicited proposal if one is submitted, and any alternative proposals.
4807.9Comprehensive Evaluation Criteria: The DC OP3 will evaluate the original unsolicited proposal, or amended original unsolicited proposal if one is submitted, and any alternative proposals under the same criteria outlined in the RFAP, including the general criteria stated in § 4807.15.
4807.10Comprehensive Evaluation Period: The DC OP3 will establish a time period for the comprehensive evaluation of the original unsolicited proposal, or amended original unsolicited proposal if one is submitted, and any alternative proposals. The time period will be shared with all proposers no more than ten (10) business days after the end of the RFAP response period. The DC OP3 may, at any time, revise the time period for review as needed.
4807.11Proposer Presentations: The DC OP3 and Owner Agencies may communicate with proposers or require them to give one or more oral presentations to clarify their proposal and answer questions that will aid in the understanding and evaluation of the proposal.
4807.12 Evaluation Committees: The DC OP3 will evaluate all responses to an RFAP that are deemed to be responsive and meet the minimum requirements of the RFAP. The evaluation of proposals will be based on the criteria stated in the RFAP, including the general criteria stated in § 4807.15.
For most RFAPs, the evaluation of responses to an RFAP will be divided between two committees matching the two required packets outlined in the Guidelines. The two review committees will consist of:
(a) Technical Review Committee: The technical review committee will review all technical aspects of the proposal, including proposed project scope, innovative use of technology, engineering and design, and operation and maintenance of the project. Members of this committee will in most cases include technical staff from the Owner Agency and technical staff from associated District agencies.
(b) Financial Review Committee: The financial review committee will review all financial aspects of each proposal including financing to be provided by the private partner, federal sources, and external sources and any fiscal obligations of the District to the project as proposed. Members of this committee will in most cases include financial staff from the Owner Agency, financial staff from associated District agencies, a representative from the Office of the Chief Financial Officer, and a representative from the Mayor’s Office of Budget and Finance.
In some instances where the DC OP3 deems it appropriate, a single committee will review both technical and financial aspects of each proposal. This will be stated in the RFAP and separate packets for technical and financial aspects of proposals will not be required.
The Director and Deputy Director of the DC OP3, as well as the Director (or his or her designee) of the Owner Agency may serve on both committees.
4807.13Comprehensive Evaluation Review Costs: The original unsolicited proposer and any alternative proposers will be required to pay a comprehensive evaluation fee. The fee will be set by the DC OP3 based on all direct costs reasonably anticipated by the DC OP3 for the comprehensive evaluation. The amount of the fee will be set forth in the public notice described in § 4807.4. Each alternative proposer will be required to submit the fee to the DC OP3 with its alternative proposal. The original unsolicited proposer must submit the fee to the DC OP3 by the end of the RFAP period (or with the submission of its amended proposal, if it submits an amended proposal). No unsolicited proposal or alternative proposal will be reviewed without payment of the Comprehensive Evaluation Review fee.
The comprehensive evaluation fees will be used to cover the costs of the comprehensive evaluation. If the fees paid to the DC OP3 exceed the DC OP3’s total cost for the unsolicited review process, the DC OP3 will reimburse the remaining funds equally to all proposers at the end of the review period.
If an unsolicited proposer or alternative proposer does not wish to pay the comprehensive evaluation fee, it may withdraw its proposal without penalty.
4807.14Use of Unsolicited and Alternative Proposals: Each unsolicited proposal and alternative proposal shall become the property of the District, and the DC OP3 and the District may use any information or concepts within such proposals for whatever purpose it deems appropriate.
4807.15Selection of a Preferred Bidder: Based on the results of the evaluation committees, the DC OP3 will declare the proposer with the highest overall score the Preferred Bidder. The DC OP3 may also select a secondary bidder to be engaged in the event that an agreement is not reached between the District government and the Preferred Bidder. Unsolicited and alternative proposals will be reviewed under the criteria as stated in the RFAP, which will include, at a minimum, the following:
(a) Cost;
(b) Delivery time;
(c) Financial commitment required of public entities;
(d) Capabilities, related experience, facilities, or techniques of the proposer or unique combinations of these qualities that are integral factors for achieving the proposal objectives;
(e) Value-for-money and public sector comparator analysis of the proposal;
(f) Innovative methods, approaches, or concepts demonstrated by the proposal;
(g) Scientific, technical or socioeconomic merits of the proposal;
(h) Potential contribution of the proposal to the mission of the District, including how the proposal benefits the public;
(i) The proposal must not duplicate an existing infrastructure project or services in a competitive way nor closely resemble a pending competitive proposal for a P3 or other procurement; and
(j) Other factors as the DC OP3 deems appropriate to obtain the best value for the District.
4807.16OCFO Certification: For the proposal to be selected, the Chief Financial Officer of the District of Columbia must also certify:
(a) The availability of any funds, debts, or assets that the District will contribute to the project;
(b) That no provision of the proposal would violate the District Anti-Deficiency Act of 2002; and
(c) That the project is not likely to have a significant adverse impact on the District’s bond ratings.
4807.17OAG Certification: For the proposal to be selected, the Attorney General of the District of Columbia must certify that:
(a) Proper indemnifications, including project insurance and bonding are included in the proposal; and
(b) There are no interstate compact issues if the project involves multiple jurisdictions.
4807.18Notice of Selection of Preferred and Secondary Bidders: When a Preferred Bidder has been selected, the point of contact provided on the proposal will be notified by the DC OP3. If it has been determined that a secondary bidder will also be selected, that secondary bidder will also be notified. The DC OP3 will provide public notice of this selection and its intent to commence negotiations. Negotiations will only begin with the secondary bidder if negotiations have been terminated with the Preferred Bidder.
4807.19Communication during the Procurement Process: While the DC OP3 encourages communication during the procurement process, the point of contact listed in the procurement documents will serve as the sole official coordinator of communication with the party making the inquiry. To be relied upon by all parties, all official communication must be written. Communication during the procurement process that violates the communication policies set out in the procurement documents may result in penalties, including disqualification of a proposer.
4807.20Confidential Information Included as Part of an Unsolicited or Alternative Proposal: The DC OP3 and Owner Agency understand the need for some information provided by private entities to remain confidential. In order to protect confidential or proprietary information, the proposer must identify those portions of its proposal, or other submitted materials, that it considers to be confidential or proprietary. For the confidential or proprietary information of a proposer to be exempt from public disclosure, the proposer must do all of the following when the proposal is submitted to the DC OP3:
(a) Invoke exclusion on submission of the information or other materials for which protection is sought;
(b) Identify, with conspicuous labeling, the data or other materials for which protection is sought;
(c) State the reasons why protection is necessary; and
(d) Fully comply with any applicable District law with respect to information that the proposer contends should be exempt from disclosure.
The DC OP3 will review information that a proposer designates as confidential or proprietary to determine if that designation is proper. Where the proposer cannot justify the protection of information, DC OP3 may ask the proposer to revise its proposal accordingly. If an agreement cannot be reached between the proposer and the DC OP3 regarding the designation of information as confidential or proprietary, the proposer may withdraw its proposal from the procurement and all unused fees paid by the proposer will be returned to the proposer. If an unsolicited proposal is rejected under Subsections 4806.2 and 4806.4 or withdrawn by the proposer prior to the comprehensive evaluation period, the DC OP3 will return all copies of the unsolicited proposal to the proposer and such proposals shall be confidential to the extent allowed by the Freedom of Information Act, including statutory exclusions that protect proprietary information among other things.
The DC OP3 and Owner Agency will not release or disclose any part of the proposal other than the executive summary and information required to be disclosed under §§ 109(b) and 114(a) of the P3 Act (D.C. Official Code §§ 2-273.04(b) and 2-273.09(a)) before the award of the P3 agreement and at the conclusion of any protest, appeal, or other challenge to the award, absent an administrative or judicial order requiring such a disclosure. After the final award of the P3 agreement, the Freedom of Information Act shall apply to the proposal except for statutory exclusions such as proprietary information.
4807.21Termination of the Process: The DC OP3 may terminate the unsolicited proposal procurement process at any time. In the event of such a termination, the DC OP3 will return the unused funds paid by unsolicited or alternative proposers for the comprehensive evaluation process equally to all proposers.