Bill Text: HI SB2739 | 2018 | Regular Session | Introduced
Bill Title: Relating To Alternative Project Delivery.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-24 - Referred to GVO/WTL, WAM. [SB2739 Detail]
Download: Hawaii-2018-SB2739-Introduced.html
|
THE SENATE |
S.B. NO. |
2739 |
|
TWENTY-NINTH LEGISLATURE, 2018 |
|
|
|
STATE OF HAWAII |
|
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
RELATING TO ALTERNATIVE PROJECT DELIVERY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION
1. The legislature finds that projects can
be delivered in a more efficient manner by increasing the effective use of
state resources. The purpose of this Act
is to provide an alternative method for state government to finance and deliver
public projects on time, on budget, and in compliance with, among other laws,
public labor union laws, prevailing wage laws, environmental and historic
preservation laws, and all permitting laws.
The Act does not mandate, but allows state government to elect an
alternative method of managing public lands and awarding contracts, that is
separate and apart from chapters 171 and 103D, Hawaii Revised Statutes.
SECTION
2. The Hawaii Revised Statutes is
amended by adding a new chapter to be appropriately designated and to read as
follows:
"CHAPTER
ALTERNATIVE PROJECT
DELIVERY PROGRAM
§
-1 Definitions. As used in this
chapter:
"Alternative
proposal" means a proposal submitted by a private entity to a public
entity in response to the public entity's solicitation of alternative proposals
pursuant to this chapter.
"Department"
means the department of accounting and general services.
"Material
default" means the failure of an operator to perform a duty under a
qualified project agreement that jeopardizes the delivery of adequate service
to the public and the duty remains unsatisfied after a reasonable period of
time and after the operator has received a written notice from the public
entity of the failure.
"Offeror"
means a private entity submitting a proposal to a solicitation of alternative
proposals issued by a public entity.
"Operator"
means a private entity that has entered into a qualified project agreement
under section -8.
"Private
entity" means a natural person, corporation, limited liability company,
partnership, joint venture, or other private business entity.
"Public
entity" means any department, commission, council, board, bureau,
authority, committee, institution, legislative body, agency, government
corporation, or other establishment or office of the executive, legislative, or
judicial branch of the State, including the office of Hawaiian affairs.
"Public
notice" means the distribution or dissemination of information to
interested parties using methods that are reasonably available, such as the
publication of statewide notices on the department's or public entity's
internet site, newspaper publication, notice by mail, or electronic mail to
private entities on any applicable offeror mailing list; and any other method
the public entity deems effective for publicizing the solicitation.
"Qualified
project" means the planning, acquisition, financing, development, design,
construction, reconstruction, rehabilitation, replacement, improvement,
maintenance, management, operation, repair, leasing, or ownership of a state
project implemented under this chapter.
"Qualified
project agreement" means an agreement between a public entity and an
offeror on the implementation of a qualified project.
"Request
for information" means the document issued pursuant to section -3 to obtain information from potential
offerors on how a qualified project and its associated solicitation of
alternative proposals should be structured before a solicitation of alternative
proposals.
"Request
for qualification" means the document issued pursuant to section -4 used to obtain support of a private
entity's skills, resources, capabilities, and experience before submitting a
response to a solicitation of alternative proposals.
"Solicitation
of alternative proposals" means the document used in the competitive
proposal process pursuant to section
-5 in which alternative proposals are evaluated on the basis criteria
identified in the solicitation, and in which discussion and negotiations with
offerors may be conducted before final selection and execution of a qualified
project agreement.
§
–2 Alternative project delivery
program; established. (a) There is established the alternative project
delivery program to be administered by the department.
(b) The program shall assist public entities with
the development, solicitation, evaluation, award, and delivery of qualified
projects.
(c) Notwithstanding any law to the contrary, the
department may retain consultants or enter into contracts to provide financial,
legal, or other technical expertise the department deems necessary to assist in
the development, solicitation, evaluation, award, and delivery of qualified
projects.
(d) A public entity shall notify the department
of its intent to use the alternative project delivery program to conduct a
request for information, pre-qualification, or solicitation of alternative
proposals under this chapter to ensure appropriate application of this chapter.
(e) The department shall submit an annual report
to the legislature no later than twenty days prior to the convening of each regular
session describing the requests for information issued, solicitations of
alternative proposals issued, unsolicited proposals received and qualified
project agreements entered into under the program, and the amounts received and
expended by the alternative project delivery special fund during the previous
fiscal year.
§
–3 Requests for information. (a) A public entity may issue a request for
information to obtain information regarding potential qualified projects.
(b) A request for information may include, but is
not limited to:
(1) The objective of the qualified project;
(2) The solicitation of recommendations on how
best to achieve the goals of the qualified project;
(3) Reservation of the right to incorporate in a
solicitation, if issued, any recommendations presented in the response to the
request for information; and
(4) A provision that neither the public entity nor
the private entity responding has any obligation under the request for
information.
(b) A request for information shall be published
in a manner that is intended to give interested parties sufficient public
notice, time, and opportunity to respond.
(c) Any response to a request for information
shall become the property of the public entity issuing the request.
(d) A private entity that submits a response to a
request for information will not be precluded from submitting a proposal and
competing for a resulting qualified project agreement.
§
–4 Pre-qualification. (a) A public entity may provide for a process of
prequalification for private entities to submit a proposal pursuant to
section -5. The process shall include public notice of a
request for qualifications, which identifies the requirements and the criteria
the public entity will use in determining whether the private entity
prequalifies.
(b) To be prequalified to submit a proposal
pursuant to section -5, a private
entity shall, in addition to any requirements set forth in the solicitation of
alternative proposals for a qualified project:
(1) Have available sufficient sources of funding,
capital, securities, or other financial resources necessary to carry out the
qualified project if selected;
(2) Possess, either through its staff,
subcontractors, a consortium, or joint venture agreement, the managerial,
organizational, technical capacity, and experience in the type of project being
solicited;
(3) Agree to comply with all laws governing
entities doing business in the State; and
(4) Certify that no director, officer, partner,
owner, or other individual with direct and significant control over the policy
or finances of the private entity has a conflict of interest or has been
convicted of corruption, fraud, or crime involving moral turpitude in any
jurisdiction of the United States.
(c) If the public entity determines that a
prequalification process is appropriate for a qualified project, only a
prequalified private entity may be an offeror for that project.
§
–5 Solicitation of alternative
proposals. (a) Proposals for a qualified project shall be
solicited by the public entity through a competitive process in which a
solicitation of alternative proposals is issued.
(b) A solicitation of alternative proposals shall
include the following:
(1) A detailed description of the scope and
minimum requirements of the proposed qualified project;
(2) The material terms and conditions applicable
to the alternative proposal process and any resulting contract;
(3) The criteria for evaluation and selection of a
proposal, which shall indicate the relative weight given to each criterion; and
(4) A statement that offerors shall designate in
writing those portions of the proposal that contain trade secrets or
confidential commercial, financial, or proprietary information that are to
remain confidential, subject to chapter 92F; and that the material designated
as confidential shall be readily separable from the proposal to facilitate
inspection of the non-confidential portion.
(c) The public entity shall provide public notice
of a solicitation of alternative proposals.
The solicitation shall be published in a manner that is intended to give
interested parties sufficient public notice, time, and opportunity to respond.
(d) The public entity shall evaluate each
alternative proposal that satisfies the minimum requirements of the
solicitation of alternative proposals according to the evaluation and selection
criteria contained in the solicitation.
(e) The public entity may conduct discussions
with offerors that meet the minimum requirements of the solicitation of the
purpose of clarification to assure full understanding of, and responsiveness
to, the solicitation requirements.
Offerors shall be accorded fair and equal treatment with respect to any
opportunity for discussion and revision of proposals. Revisions may be permitted after submissions
and prior to award for the purpose of obtaining complete and thorough
proposals. In conducting discussions,
there shall be no disclosure of any information derived from proposals
submitted by competing offerors.
(f) The public entity may engage in negotiations
with the highest-ranked offeror and may negotiate:
(1) The statement of work;
(2) The contract price as it is affected by
negotiating the statement of work; and
(3) Any other terms and conditions reasonably related
to those expressly authorized for negotiation in the solicitation of
alternative proposals. Accordingly,
offerors shall not submit, and the public entity shall not accept, for
negotiation any alternative terms and conditions that are not reasonably
related to those expressly authorized for negotiation in the solicitation of
alternative proposals.
In conducting negotiations, there
shall be no disclosure of any information derived from proposals submitted by
competing offerors.
(g) A public entity may terminate negotiations
with an offeror if such negotiations are not successful and commence
negotiations with the next highest scoring offeror, and continue this process
until the public entity has:
(1) Determined to award the contract to the
offeror with whom it is currently negotiating; or
(2) Determined to continue negotiations with the
offerors; or
(3) Determined to cancel the solicitation of
alternative proposals.
(h) Award may only be made to the offeror whose
proposal is determined in writing to be the most advantageous and in the best
interests of the State, taking into consideration the criteria set forth in the
solicitation of alternative proposals.
(i) Proposals shall be made available to the
public upon execution of the alternative project agreement; provided that the
public entity shall not disclose any information that has been designated as
confidential or proprietary by an offeror, if the public entity determines such
designation is proper pursuant to chapter 92F.
(j) The public entity may pay a stipend to an
unsuccessful offeror, in an amount and on terms and conditions determined by
the public entity. All conditions for a
stipend shall be clearly set forth in the solicitation of alternative
proposals.
(k) Any response to a solicitation of alternative
proposals shall become the property of the public entity issuing the
solicitation.
§
–6 Review of solicitations of
alternative proposals; approvals. (a) Before the issuance of a solicitation of
alternative proposals pursuant to section
-5, the public entity shall submit the proposed solicitation of
alternative proposals to the director of finance, the comptroller, and the
attorney general for approval.
(b) Amendments to the solicitation of alternative
proposals may be made, provided that the final solicitation of alternative
proposals issued by the public entity shall be substantially similar to the
solicitation of alternative proposals approved by the director of finance, the
comptroller, and the attorney general.
§ –7 Qualified project agreements; approvals. (a) After selecting a proposal for a qualified
project and obtaining the approval of the director of finance, the comptroller,
and the attorney general of a qualified project agreement, the public entity
may enter into the qualified project agreement for a qualified project with the
selected private entity or entities.
(b) A qualified project agreement approved and
entered into by a public entity pursuant to this chapter shall include the
following:
(1) The term length of the agreement, which,
notwithstanding any law to the contrary, may be for a period not to exceed
ninety-nine years from the date after the full execution of the qualified
project agreement;
(2) A complete description of any facilities to be
developed and the functions and responsibilities to be performed by public
entities and private entities that are party to the agreement;
(3) The types of property interest, if any, that
the private entity will have in the project facilities;
(4) The terms of the planning, acquisition,
financing, development, design, construction, re-construction, rehabilitation,
replacement, improvement, maintenance, management, operation, repair, leasing,
and ownership of the facilities;
(5) The rights that the public entities and
private entities that are party to the agreement have, if any, in revenue
generated as a result of the qualified project agreement;
(6) The minimum quality standards applicable to
the qualified project, including performance criteria, reporting requirements,
incentives, and penalties for failure to meet these standards;
(7) A specific plan to ensure proper maintenance of the project facilities throughout the term of the agreement and a return of the facility to the state in good condition and repair;
(8) The compensation of the private entities,
including the extent to which and the terms upon which a private entity may
charge fees to individuals and entities for the use of the facility, but in no
event shall new fees be imposed or existing fees be amended unless authorized
by the director of finance;
(9) The requirement of an annual independent audit
report furnished by the private entity or entities to the department or
designated public entity covering all aspects of the agreement;
(10) Performance and payment bonds or other
security and risk-mitigation tools deemed suitable by the department or
designated public entity;
(11) If the private entity or entities are
responsible for operating the qualified project, one or more policies of public
liability insurance in amounts determined by the department or designated
public entity to ensure coverage of tort liability for the public and employees
of the private entities;
(12) Grounds for termination of the qualified
project agreement by the public entity or private entity;
(13) Procedures for amending the qualified project
agreement;
(14) Disposition of the facility upon the
conclusion or termination of the qualified project agreement;
(15) The rights and remedies available to the State
for a material breach of the agreement by the private entity or entities or if
there is a material default;
(16) Identification of funding sources to be used
to fully fund the capital, operation, maintenance, and other expenses under the
qualified project agreement;
(17) Certification of compliance with applicable
federal, state, and local laws; and
(18) Any other provisions determined to be
appropriate by the department or public entity.
(c) Qualified project agreements approved and
entered into by a public entity may include review and approval by the public
entity of the private entity's plans for the development, operation, and
maintenance of the qualified project facilities.
(d) No qualified project agreement shall contain
any non-compete provisions limiting the ability of a public entity to perform
its government functions.
(e) The public entity shall have access and the
right to inspect the qualified project or facility at any time with reasonable
notice.
(f) The public entity may apply for and accept
funds from the federal government and other sources of financial aid to fund
qualified projects or otherwise further the purposes of this chapter.
(g) The public entity may enter into qualified
project agreements with other local and state government agencies that are
regional in scope provided that the regional scope is expressly stated in the
solicitation of alternative proposals submitted to the director of finance, the
comptroller, and the attorney general pursuant to section -6.
§
–8 Legal rights; dispute
resolution. (a) The terms of a qualified project agreement
shall not be construed as a waiver of the sovereign immunity of the State or as
a grant of sovereign immunity to any private entity.
(b) No private entity shall be liable for the
debts or obligations of the state government or public entities, unless the
qualified project agreement provides that a private entity is liable under the
qualified project agreement.
(c) In addition to any other remedy available to
the State, in the event of a material default by an operator, the State may
elect to assume the responsibilities and duties of the operator in the
qualified project and, in this instance, the State or a designated public
entity shall succeed to all of the rights, title, and interest in the qualified
project.
(d) The State may terminate, with cause, the
qualified project agreement and exercise any other rights and remedies that may
be available to it under the law or in equity.
(e) The State may make or cause to be made any
appropriate claims under the maintenance, performance, or payment bonds, or
lines of credit, as set forth in the qualified project agreement.
(f) If the State or a designated public entity
elects to assume the responsibility and duties of a qualified project pursuant
to subsection (c), the State may develop or operate the qualified project,
impose previously approved user fees, impose and collect lease payments, and
comply with any service contracts as if it were the operator.
(g) Qualified project agreements are not a
general obligation of the State. The
full faith and credit of the State shall not be pledged to secure any financing
of the operator by the election to assume the responsibilities of an operator,
and the assumption of the operation of the qualified project shall not obligate
the public entity, department, or the state government to pay any obligation of
the operator from sources other than revenue from the project.
§ –9
Transparency. (a) Offerors shall identify those portions of a
proposal or other submission that the offeror considers to be a trade secret or
confidential commercial, financial, or proprietary information. To request nondisclosure of trade secrets and
confidential and proprietary information, the offeror shall:
(1) Submit its request in writing with the
proposal, specifically identifying the information or material asserted to be
confidential and the justification for confidential treatment;
(2) Clearly mark the information or materials for
which protection is sought and submit the information or materials in such a
manner as to be readily separable from the rest of the proposal to facilitate
public access to and inspection of the non-confidential portion of the
proposal; and
(3) Fully comply with any applicable state law
with respect to information that the offeror contends should be exempt from
disclosure.
The
public entity shall consult with the attorney general regarding an offeror's
request for non-disclosure of the parts of the proposal the offeror considers
confidential. The attorney general shall
determine which portions of the request are confidential under law and which
portions are not, in accordance with chapter 92F. If the request for confidentiality is denied
in whole or in part, the information or material deemed to be non-confidential
shall be made available as public information unless the offeror appeals the
decision to deny all or part of the request for confidentiality, pursuant to
section 92F-42(1).
§ –10
Compliance with federal and state law.
(a) Qualified project agreements shall be
exempt from chapter 103D. In connection
with any qualified project agreement by which a public entity leases or
purchases property from another party, notwithstanding and without regard to
chapter 171 or any other law, the public entity may lease or sell, on any terms
the public entity shall determine, to that party the site or property to be
improved or otherwise to be leased or sold back to the public entity.
(b) Unless otherwise provided by law, nothing in
this chapter shall exempt qualified projects and participating public and
private entities from complying with all applicable federal and state laws and
regulations.
§
–11 Applicability;
construction. (a) This chapter shall apply as of January 1,
2019.
(b) Nothing in this chapter shall be construed to
affect any projects or agreements that are developed, solicited, awarded, or
entered into before the effective date of this chapter."
SECTION
3. The department of accounting and
general services is authorized to establish and fill three full-time equivalent
(3.00 FTE) positions, exempt from the provisions of chapter 76, Hawaii Revised
Statutes, for the purposes of this Act.
SECTION
4. There is appropriated out of the
general revenues of the State of Hawaii the sum of $500,000 or so much thereof
as may be necessary for fiscal year 2018-2019 to:
(1) Establish and fill three full-time equivalent
(3.00 FTE) positions pursuant to section 3 of this Act; provided that the
positions may be added to the position count for the department of accounting
and general services; and
(2) Establish and operate the alternative project
delivery program.
The
sum appropriated shall be expended by the department of accounting and general
services for the purposes of this Act.
SECTION
5. This Act, upon its approval, shall
take effect on July 1, 2018.
|
INTRODUCED BY: |
_____________________________ |
|
|
BY REQUEST |
Report Title:
Alternative Project Delivery; Appropriation
Description:
Provides public entities with an alternative method to deliver and finance state projects.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
