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The Future of Unsolicited Proposals after the Expiration of the Public Records Law Exemption

Diana C. Mendez & Albert E. Dotson, Jr.
Drone photo of Miami-Dade County Civil Courthouse at SunsetIn 2013, the Florida Legislature passed the Public-Private Partnerships ("P3") Act, currently codified as Section 255.065, Florida Statutes, authorizing the use of P3s in a broad range of infrastructure projects at the local and state level. As an important procurement vehicle for the delivery of P3 projects, the legislation explicitly authorized public entities to receive and evaluate Unsolicited Proposals ("UP") from the private sector, creating a uniform framework for the review process applicable to such submittals. The 2013 bill created a task force in charge of recommending guidelines to the Legislature to develop a process for establishing P3s (the "Task Force"). Among its responsibilities, the Task Force reviewed the current public records exemptions and determined whether any new exemptions should be created to maintain the confidentiality of financial and proprietary information received as part of an unsolicited proposal.

Because of the task force recommendations, in 2016, the legislation passed CS/SB 126, explicitly exempting UPs from the public records requirements under Section 119.071(1), Florida Statutes, and the public meetings requirements in Art. I of the State Constitution. The exemption advanced the intent of the P3 legislation to encourage private investment in the public sector by providing assurances to private entities submitting UPs that their innovative ideas and trade secrets would be protected from disclosure. The exemption, however, was subject to the review requirements under Florida's Public Records Law and stood to be repealed on October 2, 2021, unless saved from repeal through reenactment by the Legislature. During the 2021 legislative session, the Legislature failed to adopt the reenactment bill, removing from the P3 statute the provision that was once considered an essential part of the private sector's participation in the UP process.

Two years after the repeal, it is worth revisiting whether submitting a UP in Florida is still worth the effort, considering the risk associated with disclosing proprietary information. Noteworthy is that while the Task Force voted in favor of the 2016 exemption (initially filled in 2014), the focus was on limiting the scope of the exempted information to the proprietary information and trade secrets contained in an UP. The Task Force did not recommend exempting the entire UP. The Task Force was concerned with permitting public entities to provide as much information as possible to potential proposers about the project without revealing proprietary or trade secret information submitted in the UP. The Taskforce concerns resonated years later in 2021 with some public entities when, in a questionnaire submitted to the legislation, most supported the reenactment of the UP exemption but noted having difficulty balancing compliance with the public records exemption with developing solicitation documents that provided sufficient information to obtain competing proposals similar to the UP. 

Since the adoption of the P3 statute, several success stories have resulted from UP submittals. The development of Miami-Dade County's new Civil Courthouse is a representative example. After a failed referendum for a $400 million bond to fund a new civil courthouse, facing a rapidly deteriorating Courthouse, the County was pushed to look into alternative funding mechanisms to develop the new building. The receipt of an UP eventually prompted the County to move forward with a competitive procurement process that was awarded as a P3. The Miami Parking Authority College Station Garage and the redevelopment of the Old City Hall in the City of Homestead are also significant achievements of private sector-initiated projects. These examples show the benefits that private and public sectors receive from the submittal of a UP. A UP submittal can generate stakeholder interest and consideration of projects or means and methods that would not have otherwise been available for their consideration. 

Even with the success of UP-generated projects, in light of the repeal of the exemption, private entities submitting a UP must balance providing sufficient information for the public entity to evaluate the UP and solicit competitive proposals with ensuring the protection of proprietary or trade secret information. In addressing this concern, the private entity can either refrain from including such information or claim the protections afforded under 815.045, Florida Statutes, which expressly exempts from the public records law trade secret information held by a public entity. To claim the exemption, the records must be clearly marked as confidential or trade secret. Following the Task Force's original recommendations, the private entity should avoid marking the entire UP as confidential or trade secret. Instead, legal counsel should review whether the information sought to be protected meets the definition of trade secret. If a public records request is submitted, the private entity may need to seek a protective order from a court to avoid disclosure. The court will conduct a fact-driven analysis to determine whether the exemption applies. The fact-intensive analysis leaves room for uncertainty regarding whether the information will remain exempt.

Additionally, the private entity should consider that no similar exemption from the public meetings requirement exists. Therefore, the public entity may be precluded from discussing the confidential portions of a proposal during a sunshine law meeting. Given the uncertainty surrounding the Trade Secret exemption, before submitting a UP, the private entity should review the public entity's guidelines regarding the evaluation of UPs and understand how the public entity intends to treat any information marked confidential or trade secret. Some jurisdictions will not accept trade secret information and will ask the private entity to waive any protections before the public entity may consider the UP.

To conclude, the success of local infrastructure projects supports the private sector's continued use of the UP process to generate interest and present innovative solutions to public entities. Public entities continue to support the use of these procurement vehicles and, despite the changes to the legislation, are adapting to incentivize private sector involvement. The expiration of the UP public record exemption certainly poses a new challenge that requires careful examination of the public entity's priorities and strategic determination of the information that the private entity should include in the UP. 
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