Earlier this month, the Florida legislature passed House Bill 85, which establishes statewide authorization and procedures for public-private partnerships. The law, which will be encoded as Section 287.05712, Florida Statutes, authorizes counties, municipalities, school boards, and other political subdivisions and entities to form public-private partnerships with the private sector to develop, operate, or maintain any facility or project that serves a public purpose. Eligible projects include, but are not limited to, wastewater management facilities, transportation facilities, and educational facilities.
The new law establishes a Public-Private Partnerships Guidelines Task Force, which is a 7-member group that will recommend guidelines, to be considered by the Legislature, for the review and selection process for P3s. The Task Force will submit its recommendations by July 1, 2014, and will terminate at the end of 2014. The new law makes clear that a government agency may adopt its own guidelines and the establishment of guidelines through the task force’s recommendation is not a prerequisite for entering into a P3.
The adopted version of the new law contains procedures for the acceptance of unsolicited proposals, but those procedures have been modified from the version of the bill we discussed in a previous post. In the adopted version of the law, the procuring agency is granted discretion to determine the length of time permitted for the receipt of competing proposals, although the time period provided must be at least 21 days and no more than 120 days. Further, the adopted version of the law does not contain the earlier version’s prohibition on disclosing the financial terms of the unsolicited proposal to competing proposers. The adopted law thus does not go as far as the earlier bill in eliminating the competitive disadvantage of being the “first mover,” although the procuring agency is granted the authority to mitigate that problem in part by shortening the time period for submitting a competing proposal.
Significantly, the new law permits government agencies to enter into interim agreements with private partners, which permit the partner to engage in certain activities for which it may be compensated while the final, comprehensive agreement is being negotiated. This provision may help expedite the completion of P3 projects by permitting development activities to commence prior to the negotiation and approval of a final agreement.
Significantly, local governments have already begun to respond to the new law and are moving towards adopting P3-friendly legislation of their own. On June 13, the Miami-Dade County Economic Development and Port Miami Committee will be considering a proposed ordinance that would establish a Public Private Partnership Program to develop a list of potential P3 projects and legislative recommendations to simplify County procurement processes, including the unsolicited proposal process, applicable to P3s. The draft ordinance also contemplates legislative changes to conform County processes to those adopted by the new state law.