Public-Private Education Facilities and Infrastructure Act 2002 (PPEA)

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Public-Private Education Facilities and
Infrastructure Act 2002 (PPEA)

• Joe Damico

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Presentation Outline Public-Private Education
Facilities and Infrastructure Act (2002) PPEA

• What is it?
• PPEA Code Requirements
• Guidelines
• Qualifying Project
• Initiate a Qualifying Project
• Evaluating a Qualifying Project
• Executing the Deal
• Impact of Legislative Amendments to PPEA
  Processes
• Should a PPEA Procurement Process be Initiated?

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PPEA What is it?

• General Assembly (GA) passed legislation during
  2002 GA Session
• Need for timely acquisition process not satisfied
  by existing procurement methods
• Inadequate resources to develop new facilities
  and infrastructure
• Public-private partnerships can improve delivery
  schedule and lower costs
• Encourage investment in the Commonwealth by
  private entities, facilitate bond financing and
  have the greatest possible flexibility in
  contracting
• Simply stated just another procurement process
• Code of Virginia 56-575.1 - 56-575.18
• http//leg1.state.va.us/cgi-bin/legp504.exe?000co
  d56-575.1

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PPEA Code Requirements Guidelines

• Public entities shall adopt Guidelines
  Require
• Competition, public notice, opportunity to meet
  with public entity
• Evaluation criteria, timelines for selecting
  proposals and negotiating an agreement
• Procedures for accelerated selection involving
  projects deemed high priority
• Final review and analysis procedures
• Procedures for review by public body having
  appropriation authority
• Methodology for posting proposal information to
  encourage competition

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PPEA Code Requirements Guidelines

• PPEA working group
• Maintain Model Guidelines for state public
  bodies
• http//dgs.virginia.gov/PPEA/tabid/62/Default.asp
  x

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PPEA Code Requirements Guidelines

• Adoption of Model Guidelines by other public
  bodies
• NOT required to use the PPEA working group model
  procedures, but may
• Other public bodies must have procedures
• Procurement law, policies and procedures that
  DO NOT apply
• Virginia Public Procurement Act
• DGS/DPS Agency Procurement and Surplus
  Property Manual
• DGS/DEB Construction and Professional Services
  Manual

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PPEA Code Requirements Qualifying Project

• What is considered a PPEA Qualifying Project
• Any education, recreational, or solid waste
  management facility
• Any building or facility that meets a public
  purpose
• Any building improvements necessary to enhance
  public safety and security
• Any improvements necessary or desirable to
  unimproved real estate
• Utility, telecommunications and other
  communication infrastructure
• Technology infrastructure, services, and
  applications
• A project designed to increase productivity or
  efficiency using technology or other means

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PPEA Code RequirementsInitiate a Qualifying
Project

• Qualifying projects may be Initiated
• From the submission by private entities of an
  unsolicited proposal
• In response to a public entity request for
  proposals or invitation for bids
• The public entity may proceed under the PPEA
  process provided it determines that a qualifying
  project serves a public purpose
• Estimated cost of the project is reasonable
• Private entitys plan will result in the timely
  development and operation
• There is a public need for or benefit derived
  from the qualifying project

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PPEA Code Requirements Evaluating a Qualifying
Project

• Unsolicited or Solicited (most cases a two phase
  process)
• Conceptual Proposals (phase I)
• Detailed Proposals (phase II)

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PPEA Code Requirements Evaluating a Qualifying
Project

• Conceptual proposals
• Requirements for the content of conceptual
  proposals are provided in 56-575.4
• Unsolicited proposals may be rejected at any time
• Unsolicited proposals must be publicly posted
  within 10 working days of acceptance
• A private entity must provide their proposal to
  each affected local jurisdiction
• Conceptual proposals are evaluated, then
  short-listed
• Private entities that have been short-listed will
  be asked to submit detailed proposals

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PPEA Code RequirementsEvaluating a Qualifying
Project

• Detailed Proposals
• Detailed proposal submission requirements
• Determine evaluation criteria for detailed
  proposal
• Private entities may be called-in to present
  their detailed proposal
• Evaluation committee determines negotiation
  points
• Negotiations conducted with each private entity
  submitting a detailed proposal
• May move forward with an interim or
  comprehensive agreement

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PPEA Code RequirementsEvaluating a Qualifying
Project

• Public-Private Partnership Advisory Commission
  Process
• http//leg1.state.va.us/cgi-bin/legp504.exe?000co
  d30-278
• Comprised of 11 members 8 legislative members
  3 executive branch members
• Public entity responsibilities (state agencies
  only)
• Provide detailed proposals to advisory commission
  for review
• Negotiate agreement after commission decision to
  accept or decline review
• Send agreement to the commission 30 days prior to
  execution
• Commissions responsibilities
• 10 days to decide to accept or decline proposals
  for review
• If accepted, 45 days to review and provide
  findings/recommendations

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PPEA Code Requirements Executing the Deal
Interim/Comprehensive Agreements

• Negotiations can result in an interim or
  comprehensive agreement
• Interim Agreement
• Smaller in scope than a comprehensive agreement
• May be entered into by public and private entity
• Enable the private entity to commence certain
  work and be compensated
• Establish the process and timing for negotiations
  of a comprehensive agreement
• Contain other provisions related to the project
  that may deem appropriate
• Does not require that the parties enter into a
  comprehensive agreement
• Comprehensive Agreement
• Includes scope of work, timeline, cost, terms and
  conditions, and reference work completed under an
  interim agreement

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PPEA Code Requirements Executing the Deal
Interim/Comprehensive Agreements

• Both Agreements Require
• Approval by public entitys appropriating
  authority
• Approval by Public-Private Partnership Advisory
  Commission
• Any changes agreed upon must be by written
  amendment
• Public hearing no later than 30 days prior to
  entering into an agreement
• Availability of procurement records to public
  once agreement is executed
• Procurement documents to be filed with the
  Auditor of Public Accounts

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Impact of Legislative Amendments to PPEA
Processes

• There have been 39 amendments to the PPEA since
  its introduction
• A PPEA procurement initiative has become more
  cumbersome
• GA Session 05 introduction of interim agreement
  implemented in FY06
• GA Session 07 introduction of review Commission
  implementation in FY08
• GA Session 09 introduction of public hearing
  requirement - implementation in FY10
• Approximately 115 days added to the PPEA process
• PPEA Commission 10 days for decision to accept
  or reject review of proposals
• PPEA Commission 45 days allowed for review
• PPEA Commission submit agreement 30 days prior
  to execution
• Public Hearing approximately 30 days
• Prepare final procurement documents for Auditor
  of Public Accounts time ??

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Impact of Legislative Amendments to PPEA Processes
interim agreement gt
review commission gt
public hearing gt
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Should You Consider Initiating a PPEA Process

• Depends
• Do not think so, if
• Procurement flexibility is necessary
• Completing the procurement in a timely manner is
  important
• Can accomplish same scope of work using
  conventional procurement process
• Funding is already appropriated/budgeted
• May want to consider, if
• There is a need to keep government
  leaders/decision makers informed
• Funding/financing is an issue
• Bring in your agencys legal representative early
  and keep them engaged

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Questions?