Md. Code Regs. 04.01.05.08

Current through Register Vol. 51, No. 24, December 2, 2024

Section 04.01.05.08 - Solicitation Process

A. General.

(1) The solicitation process for Public-Private Partnerships shall be competitive, regardless of whether the Public-Private Partnership concept originated internally within the Department or from an unsolicited proposal.

(2) For each private entity that responds to a public notice of solicitation, the Department shall make a responsibility determination in accordance with State Finance and Procurement Article, § 10A-202(c), Annotated Code of Maryland.

B. Solicitations Relating to Concepts Described in Unsolicited Proposals.

(1) The competitive solicitation process shall protect any proprietary information that is identified as such and included in the unsolicited proposal in accordance with State Finance and Procurement Article, § 10A-301(d)(2), Annotated Code of Maryland.

(2) An individual or firm that has submitted an unsolicited proposal may participate in any subsequent competitive solicitation process, in accordance with State Finance and Procurement Article, § 10A-301(e), Annotated Code of Maryland.

(3) The private entity shall be responsive to all components of the subsequent competitive solicitation process even if certain information requested by the subsequent competitive solicitation process has already been submitted as part of the unsolicited proposal.

(4) The Department reserves the right to issue a public notice of solicitation relating to a concept described in an unsolicited proposal after the rejection or termination of the evaluation of the unsolicited proposal or any competing proposals.

C. Multi-Step Solicitation Process.

(1) The Department may use a multi-step solicitation process that includes, but is not limited to, some of the following steps:

(a) Issuance of a request for qualifications;

(b) Pre-proposal conference;

(c) Issuance of a draft request for proposals;

(d) Industry review meetings; and,

(e) Issuance of a final request for proposals.

(2) The determination to utilize some or all of the solicitation steps shall be made on a case-by-case basis depending on which steps are advantageous to the State.

(3) The Department may include additional solicitation steps on a case-by-case basis as set forth in the public notice of solicitation.

(4) The Department may issue a request for qualifications.

(a) The purpose of a request for qualifications is to:

(i) Identify private entities that qualify as participants in the solicitation process; and,

(ii) Identify a shortlist of the highest qualified candidates for continuing in the solicitation process.

(b) Based on the responses to the request for qualifications, the Department may:

(i) Identify one or more private entities as qualified; and,

(ii) Develop a shortlist of one or more of the highest qualified candidates for continuing in the solicitation process, which are the shortlisted private entities.

(c) Only candidates that have been selected to continue in the solicitation process as shortlisted private entities are eligible to:

(i) Participate in industry review meeting;

(ii) Receive drafts of the request for proposals;

(iii) Submit comments on drafts of the request for proposals;

(iv) Receive the final request for proposals; and,

(v) Submit a written proposal in response to the final request for proposals.

(5) Pre-proposal Conference.

(a) The purpose of a pre-proposal conference is to facilitate better understanding of solicitation requirements and processes.

(b) A pre-proposal conference may be scheduled by the Department after the initial public notice of solicitation for a Public-Private Partnership.

(c) Pre-proposal conferences are open to all interested private entities.

(6) Draft Request for Proposals.

(a) As part of a multi-step solicitation process, the Department may issue one or more draft requests for proposals to shortlisted private entities.

(b) Draft requests for proposals may include, but are not limited to:

(i) Instructions to private entities for responding to the request for proposals;

(ii) Technical provisions;

(iii) Scope of work; and

(iv) Public-Private Partnership agreement key terms and components.

(c) Only shortlisted private entities may submit written or verbal comments and questions concerning the draft request for proposals to the Department to the extent permitted by the solicitation process.

(d) The Department may use comments and questions from the shortlisted private entities for subsequent revisions to the draft request for proposals.

(7) Industry Review Meetings.

(a) The Department may conduct industry review meetings as part of a multi-step solicitation process.

(b) The purpose of industry review meetings is to:

(i) Obtain comments and make revisions to the draft request for proposals:

(ii) Obtain the best value for the State;

(iii) Facilitate the full understanding regarding the requirements of the State for the Public-Private Partnership concept;

(iv) Facilitate the full understanding of the contents of the proposals required to be submitted by shortlisted private entities; and

(v) Finalize the requirements for the request for proposals.

(c) Agreement negotiations may not be conducted during industry review meetings.

(d) Industry review meetings are restricted to candidates that have been selected to continue in the solicitation process as shortlisted private entities.

(e) Industry review meetings may be:

(i) Joint workshops with all shortlisted private entities invited to participate; or

(ii) One-on-one meetings between the Department and individual shortlisted private entities.

(f) The Department may use comments and questions obtained from the shortlisted private entities through industry review meetings for subsequent revisions to the draft request for proposals.

(8) Final Request for Proposals.

(a) In a solicitation process involving a request for qualifications phase, a final request for proposals shall be issued to shortlisted private entities selected to continue in the solicitation process.

(b) The contents of the final request for proposals may be based on information gathered during the earlier solicitation phases, including but not limited to;

(i) Pre-proposal conference;

(ii) Request for qualifications; and,

(iii) Industry review meetings.

(c) The Department may issue a final request for proposals without previously:

(i) Issuing a request for qualifications;

(ii) Issuing a draft request for proposals; or

(iii) Conducting industry review meetings.

(9) Information Available During Solicitation.

(a) The Department may make relevant technical and financial information available to shortlisted private entities through an electronic data room.

(b) The Department may respond to relevant additional information requests by shortlisted private entities in support of due diligence reviews, including requests for site inspections.

(c) Information or site access provided to individual shortlisted private entities pursuant to an additional information request as provided for in §C(9)(b) of this regulation., must also be made available to all other interested private entities if a shortlist of private entities has not yet been established; or, to all other shortlisted private entities if a shortlist of private entities has been established.

(d) Shortlisted Private entities shall be required to sign confidentiality agreements prior to release of information deemed confidential.

D. Reimbursement.

(1) The Department may reimburse a private entity in accordance with State Finance and Procurement Article, § 10A-202(f), Annotated Code of Maryland.

(2) If the Department elects to reimburse a private entity, the specific terms, conditions, method, and timing for reimbursing the private entity shall be described in the public notice of solicitation associated with the specific Public-Private Partnership.

(3) The reimbursement terms and conditions may include the requirement for the private entity to execute a stipend agreement and to transfer rights to use the work product produced by the private entity during the solicitation process to the Department as a condition to receiving reimbursement.

(4) The Department shall only consider reimbursement for shortlisted private entities.

(5) Maximum Reimbursement Amount.

(a) The Department shall not provide a reimbursement in excess of $3,000,000 to an individual private entity for costs incurred in response to the solicitation of a Public-Private Partnership.

(b) The Department may establish a reimbursement less than the maximum prescribed herein on a case-by-case basis.

(6) Except as set forth in the solicitation documents, should the solicitation process or negotiations be suspended, discontinued, or terminated, the private entity shall have no rights of recourse, including reimbursement of the private entity's unsolicited proposal review fees or costs associated, directly or indirectly, with the solicited or unsolicited proposal developments.

E. Reservation of Rights. The Department reserves all rights available by law and in equity in its Public-Private Partnership solicitation process, including without limitation, the right to:

(1) Reject any and all submittals, responses, qualifications, and proposals, whether solicited or unsolicited, at any time or for any reason;

(2) Issue addenda, supplements, and modifications to a public notice of solicitation;

(3) Cancel a solicitation in whole or in part at any time prior to execution of a Public-Private Partnership agreement, subject to any agreed upon compensation to proposers set forth in the solicitation documents or pursuant to State Finance and Procurement Article, § 10A-202(f), Annotated Code of Maryland;

(4) Issue a new public notice of solicitation after withdrawal of a public notice of solicitation;

(5) Establish protocols for private entities to remedy minor deficiencies in responses to requests for qualifications or proposals within a specified period of time;

(6) Disqualify any private entity at any point during a solicitation process for violating any rules or requirements of the solicitation set forth in the public notice of solicitation, in any communication from the Department, or as otherwise set forth by applicable law;

(7) Determine whether to pursue federal credit assistance on behalf of the private entities;

(8) Publicly disclose information received during the solicitation process as governed by law and by the public notice of solicitation, pursuant to State Finance and Procurement Article, § 10A-203(b), Annotated Code of Maryland;

(9) Exercise any other rights reserved or afforded to the Department under applicable law and the public notice of solicitation; or

(10) Disqualify any private entity for any conflict of interest or other conduct manifesting a lack of responsibility determination.

F. Additional reservations of Department rights may be included in the solicitation documents for a Public-Private Partnership.

Md. Code Regs. 04.01.05.08

Regulation .08 adopted effective 46:26 Md. R. 1163, eff. 12/30/2019