Md. Code Regs. 04.01.05.09

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

Section 04.01.05.09 - Evaluations, Negotiation, and Award

A. The Department shall conduct evaluations of submitted responses to requests for qualifications and submitted proposals using the information submitted by the private entity.

(1) Submitted information shall be evaluated against the requirements of the solicitation and the evaluation criteria that the Department specifies in the solicitation for the particular Public-Private Partnership opportunity.

(2) The objective of this evaluation process is to select the private entity that provides the best value solution for the State.

(3) The Department's evaluation criteria shall be clearly set forth in each request for solicitation.

(4) A failure to provide all requested information may result in the Department eliminating a response or proposal from further consideration.

B. The processes for evaluating submitted responses to request for qualifications and for evaluating submitted proposals to requests for proposals shall be described and submitted to the Board of Public Works as part of the pre-solicitation process the Board of Public Works shall approve.

C. The Secretary shall establish one or more evaluation committees on a case-by-case basis that may:

(1) Be comprised of:

(a) Secretary's Office employees; and

(b) Other State employees;

(2) Review statements of qualifications;

(3) Review proposals; and

(4) Seek advice from the Department, other State agencies and State employees, and outside experts and consultants during the evaluation process.

D. Best and Final Offers.

(1) After the evaluation of all responsive proposals, the Secretary may request best and final offers from private entities determined by the evaluation committees to be eligible to submit best and final offers.

(2) The Secretary may request multiple iterations of best and final offers.

(3) A best and final offer process is not required.

E. After an apparent best value private entity has been selected by the evaluation committees, in consultation with the Secretary, the Department may enter into negotiations with that private entity.

F. The Secretary may determine that negotiations be completed by a negotiations committee either comprised of members of the evaluation committees or established separately from the evaluation committee that may:

(1) Be comprised of:

(a) Secretary's Office employees; and

(b) Other State employees;

(2) Review the apparent best value private entity's response to the request for proposals;

(3) Review the apparent best value private entity's best and final offer, if any; and

(4) Receive assistance from outside experts and consultants during the evaluation process.

G. The Department, in its sole discretion, may initiate negotiations with a private entity other than the apparent best value private entity if:

(1) Negotiations with the apparent best value private entity are unsuccessful; or

(2) The apparent best value private entity does not provide sufficient information or timely feedback to finalize the agreement in accordance with the Department's schedule for the Public-Private Partnership solicitation.

H. After completion of successful negotiations, the negotiations committee shall recommend a best value private entity to the Secretary for review and approval.

I. After the Secretary provides written approval of the best value private entity, the Department shall:

(1) Finalize and prepare the Public-Private Partnership agreement for execution, in coordination with the best value private entity;

(2) Commence the final agreement review process in accordance with State Finance and Procurement Article, § 10A-203, Annotated Code of Maryland; and

(3) Arrange for meetings between the Secretary and appropriate bargaining unit representatives to provide notice and discuss plans for impacted State employees, in the event that the proposed Public-Private Partnership delivery method has an impact on existing State employees.

J. Final Agreement Review.

(1) The Secretary shall comply with the final agreement review process established in State Finance and Procurement Article, § 10A-203, Annotated Code of Maryland.

(2) A final agreement report shall accompany a final agreement submitted under State Finance and Procurement Article, § 10A-203, Annotated Code of Maryland, containing the following items, if relevant:

(a) The financial plan, including annual cash flows, for any Public-Private Partnership including:

(i) State contributions;

(ii) Federal loans or credit assistance;

(iii) Private investment;

(iv) Local contributions; and

(v) Other funding contributions;

(b) The ongoing financial costs and increases associated with any operating and maintenance contracts;

(c) The impact any public private partnership agreement may have on the State's debt affordability measures;

(d) An analysis of why the proposed agreement is more advantageous than a conventional project delivery;

(e) A description, including the estimated value, of any land, buildings, or other structures or assets that are transferred or exchanged with a private entity as part of the public private partnership;

(f) A summary of the performance measures included in the ongoing operation of the public private partnership;

(g) A summary of the penalties associated with nonperformance relating to the ongoing maintenance and operation; and

(h) A plan for how the long-term operating and maintenance contract will be overseen by the agency.

Md. Code Regs. 04.01.05.09

Regulation .09 adopted effective 46:26 Md. R. 1163, eff. 12/30/2019