HomeMy Public PortalAbout2018_12_11_R163 Public-Private Partnership Guidelines - Recommendation #18 from Economic Development Steering Committee
Town of Leesburg, Virginia
Guidelines for
Implementation of the
Public-Private Education Facilities and
Infrastructure Act of 2002, as amended
December 11, 2018
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Table of Contents
1. Guideline’s Applicability ........................................................................................1
2. Overview .................................................................................................................1
3. Eligible Projects ......................................................................................................2
4. General Provisions ..................................................................................................3
4.1 Proposal Submission ...................................................................................3
4.2 Affected Jurisdictions .................................................................................3
4.3 Proposal Review Fees .................................................................................4
4.4 Virginia Freedom of Information Act .........................................................5
4.5 Use of Public Funds ....................................................................................7
4.6 Applicability of Other Laws .......................................................................8
5. Solicited Bids/Proposals .........................................................................................8
6. Unsolicited Proposals ............................................................................................10
6.1 Decision to Accept and Consider Unsolicited Proposal; Notice ...............10
6.2 Competing Proposals ................................................................................12
6.3 Availability of Proposals for Public Inspection ........................................12
6.4 Initial Review at the Conceptual Stage .....................................................12
6.5 Receipt of Public Comments/Hearings .....................................................13
7. Proposal Preparation and Submission ...................................................................13
7.1 Proposal Content and Format for Submissions at the Conceptual
Stage ..........................................................................................................13
7.2 Proposal Content and Format for Submissions at the Detailed
Stage ..........................................................................................................18
8. Proposal Evaluation And Selection Criteria .........................................................20
8.1 Manner of Evaluation and Use of Outside Professionals .........................20
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8.2 Evaluation Criteria ....................................................................................20
8.3 Qualifications and Experience ..................................................................20
8.4 Project Characteristics ...............................................................................21
8.5 Project Financing ......................................................................................22
8.6 Project Benefit and Compatibility ............................................................22
9. Agreement .............................................................................................................23
10. Adoption of Certain Portions of the Virginia Public Procurement Act
and Use of Competitive Negotiation and Competitive Sealed Bidding
Procedures. ............................................................................................................25
11. Terms and Conditions on Proposal Submission ...................................................26
12. Disputes, Claims, and Other Matters Arising Under or Relating to an y
Agreement .............................................................................................................27
13. Protests of PPEA Procurements ............................................................................29
14. Timelines for Selecting Proposals and Negotiating Agreements and
Accelerated Timelines for Priority Qualifying Facilities ......................................30
15. Proposers’ Agreement to Terms and Conditions of This Policy ..........................30
1. Guideline’s Applicability
1.1 The Town of Leesburg, Virginia, (“town”) has adopted these guidelines
to implement the Public-Private Education Facilities and Infrastructure
Act of 2002, Va. Code §§ 56-575.1, et seq., as amended (“PPEA”).
These Guidelines apply to all procurements under the PPEA conducted
after the date of their adoption where the town is the “responsible
public entity” within the meaning of Virginia Code §56-575.1.
1.2 The town manager and all employees of the town shall follow the PPEA
and these guidelines in any PPEA procurement in which they are involved.
1.3 Any reference in these guidelines to actions to be taken by the “town”,
unless the reference is specifically to the “town council”, includes actions
by the town manager. The town manager ma y delegate his or her duties
under these guidelines to members of town staff.
1.4 Any reference in these guidelines to “Agreement” means an agreement
entered into between the town and a private entity pursuant to the PPEA
and these guidelines.
2. Overview
2.1 The PPEA grants “responsible public entities” the authority to enter into
public-private partnerships with private entities for the development of
certain “qualifying projects” if the public entity determines, under criteria
established b y the PPEA, that such a project serves th e public purpose.
PPEA proposals are also subject to review by an y “affected local
jurisdiction” in which the “qualifying project” will be located.
2.2 Proposals for qualifying projects ma y either be solicited or unsolicited.
PPEA procurements typically will be conducted as a two-phase process,
first involving submission and evaluation of conceptual-phase proposals
resulting in selection of certain proposers to submit detailed-phase
proposals, and then submission and evaluation of detailed-phase
proposals. If the purposes and requirements of the PPEA are met and the
town council so elects, in its discretion, it will then select a detailed-phase
proposal or proposals and enter into an “Agreement” for the project.
2.3 Individuall y-negotiated Agreements between private entities and the town,
along with the PPEA and these guidelines, ultimately will define the
respective rights and obligations of the parties for PPEA projects
involving the town.
2.4 Although these guidelines provide guidance for application of the PPEA,
the version of the PPEA that is in effect at the time the Agreement is
executed is controlling in the event of an y conflict.
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3. Eligible Projects
3.1 A PPEA procurement may only be for a “qualifying project”. The PPEA
contains a broad definition of “qualifying project” that includes for
example;
3.1.1 An education facility, including, but not limited to, a school building
(including any stadium or other facility primaril y used for school events),
any functionally-related and subordinate facility and land to a school
building, and any depreciable propert y provided for use in a school facility
that is operated as part of the public school system or as an institution of
higher education;
3.1.2 A building or facility that meets a public purpose and is developed or
operated b y or for an y public entity;
3.1.3 Improvements, together with equipment, necessary to enhance public
safet y and securit y of buildings to be principall y used by a public entity;
3.1.4 Utilit y and telecommunications and other communications infrastructure;
3.1.5 A recreational facility;
3.1.6 Technology infrastructure, including, but not limited to,
telecommunications, automated data processing, word processing and
management information systems, and related information, equipment,
goods and services;
3.1.7 Any services designed to increase the productivity or efficiency of the
responsible public entity through the use of technology or other means.
3.1.8 Any technology, equipment, or infrastructure designed to deplo y wireless
broadband services to schools, businesses, or residential areas;
3.1.9 Any improvements necessar y or desirable to any unimproved locally- or
state-owned real estate; or
3.1.10 Any solid waste management facility as defined in Virginia Code § 10.1 -
1400 that produces electric energy derived from solid waste.
3.2 The examples set forth herein are merel y provided here for convenience.
The definition of “qualifying project” in the PPEA as of the time in which
the procurement is concluded b y execution of an Agreement is controlling,
and the version of the PPEA then in effect should be consulted to
determine what is a “qualifying project.”
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4. General Provisions
4.1 Proposal Submission
4.1.1 A proposal for a PPEA “qualifying project” ma y be either solicited by the
town or submitted by a private entity on an unsolicited basis. In either
case, the proposal shall be clearly identified as a “PPEA Proposal”. To be
considered, one original and nine (9) copies of an y unsolicited
proposal must be submitted, along with the applicable fee, to Town
Manager, Town of Leesburg, 25 West Market St, Leesburg, Virginia
20176. Solicited proposals shall be submitted in accordance with the
instructions in the applicable solicitation.
4.1.2 Proposers will be required to follow a two-part proposal submission
process consisting of a conceptual phase and a detailed phase, as
described herein. For unsolicited proposals, the conceptual phase of the
proposal shall contain the information specified b y paragraph 7.1 of
these guidelines, and the detailed phase of the proposal shall contain the
information specified at paragraph 7.2 of these guidelines. For solicited
proposals, the solicitation and subsequent instructions by the town
manager will prescribe the information that proposals shall contain.
4.1.3 Proposals should be prepared simply and economicall y. Solicited
proposals should contain all information requested by the solicitation
or subsequent instructions by the town manager. Unsolicited proposals
should contain information specified by these guidelines and also
should include a comprehensive scope of work and, if applicable, a
financial plan for the project, containing enough detail to allow an
anal ysis b y the town manager of the feasibility of the proposed project.
Any facility, building, infrastructure, or improvement included in a
proposal shall be identified specificall y or conceptually. The town
manager may request, in writing, clarification of any submission.
4.1.4 Representations, information and data supplied in, or in connection
with, proposals play a critical role in the competitive evaluation process
and in the ultimate selection of a proposal by the town. Accordingl y, as
part of any proposal, the proposer shall certify that all representations,
information and data provided in support of, or in connection with,
its proposal are true and correct. Such certification shall be made by
authorized individuals who are principals of the proposer and who
have knowledge of the information provided in the proposal. In the
event that material changes occur with respect to an y representations,
information or data provided for a proposal, the proposer shall
immediately notif y the town manager of the same.
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4.2 Affected Jurisdictions
Under the PPEA, an “affected jurisdiction” is any county, city or town in
which all or a portion of a qualifying project is located. An y private entit y
submitting a conceptual or detailed proposal to the town must provide any
affected jurisdiction with a cop y of the private entity’s proposal by
certified mail, express delivery or hand delivery. In the case of solicited
proposals, such copy should be submitted to any affected jurisdiction to
ensure its receipt at the time proposals are due to be submitted to the town.
In the case of unsolicited proposals, such copy should be submitted to any
affected jurisdiction to ensure its receipt within 5 business days after
receiving notice from the town that the town has decided to accept the
proposal pursuant to Section 6.1.1 hereof. An y affected jurisdiction shall
have 60 days from the receipt of the proposal to submit written comments
to the town and to indicate whether the proposed qualifying project is
compatible with the jurisdiction’s (i) comprehensive plan, (ii)
infrastructure development plans, and (iii) capital improvements budget or
other government spending plan. The town shall give consideration to
comments received in writing within the 60-day period, and no negative
inference shall be drawn from the absence of comment by an affected
jurisdiction. The town may begin or continue its evaluation of any such
proposal during the 60-day period for affected jurisdictions to submit
comments.
4.3 Proposal Review Fees
4.3.1 The town manager will require payment of a review fee b y a private entity
submitting an unsolicited proposal to the town and by an y private entities
submitting competing proposals in response to the unsolicited proposal.
Also, if the solicitation so indicates, the town manager may require
payment of a review fee b y an y private entities submitting solicited
proposals. Review fees are to cover the costs of processing, reviewing,
and evaluating proposals, including the cost to compare a proposal to any
competing proposals. Such costs include, but are not limited to, town staff
time, the cost of an y materials or supplies expended, the cost of meals and
travel related to the review process, and the cost of any outside advisors o r
consultants, including but not limited to attorneys, design consultants,
construction consultants, and financial advisors used by town in its sole
discretion, to assist in processing, reviewing, or evaluating the proposal.
Such fees generall y will be in the amount necessary to completely cover
all of the town’s and town’s costs. All fees and additional fees shall be
submitted in the form of a cashier’s check payable to the Town of
Leesburg, Virginia.
4.3.2 Such fees should be imposed as follows:
4.3.2.1 Initial fee. Unless waived or otherwise directed by the town
manager, payment of an initial fee must accompan y the
submission of the proposal to the town in order for the town to
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proceed with its review. The initial fee shall be one and one-
quarter percent (1.25%) of the reasonabl y anticipated total cost of
the proposed qualifying project, but shall be no less than $2,000
nor more than $25,000, regardless of the anticipated total cost;
provided, however, that the town manager, in his or her
discretion, may specify a different initial fee amount in a Receipt
of Unsolicited PPEA Proposal and Solicitation of Competing
Proposals prepared under paragraph 6.1.2 of this policy or no fee
or a different fee in a solicitation issued under paragraph 5 of this
policy.
4.3.2.2 Additional fees. Additional fees shall be paid by proposers
throughout the processing, review, and evaluation of the
proposals, if and as the town manager requires, based upon costs
in excess of initial review fees assessed that the town manager
reasonabl y anticipates incurring. The town manager may impose
additional fees on proposers selected for detailed-phase
consideration as a condition of consideration of their detailed-
phase proposals. The town manager will notify the proposers
concerned of the amount of such additional fees. Proposers must
promptly pa y such additional fees before the town will continue
to process, review, and evaluate the proposer’s proposal. Unless
otherwise specified b y the town manager, additional fees for
detailed-phase review will be one and one-quarter percent
(1.25%) of the total cost of the proposed qualifying project, but
will be no less than $5,000 nor more than $50,000. The town
manager, in his or her discretion, ma y waive additional fees or
require lower additional fees.
4.3.2.3 Reimbursement of excess fees paid. If the total fees paid by
proposers for a phase of a PPEA procurement exceed the total
costs incurred in processing, reviewing, and evaluating proposals
for that phase, then the town shall reimburse the proposers the
difference on a reasonable, pro rata basis. Otherwise, the town
may retain all fees paid
4.4 Virginia Freedom of Information Act
4.4.1 Generally, proposal documents submitted by private entities to the town
are subject to the Virginia Freedom of Information Act (“VFOIA”). In
accordance with VFOIA, such documents are releasable if requested,
except to the extent that they contain (i) trade secrets of the private entit y
as defined in the Uniform Trade Secrets Act (§ 59.1-336, et seq.);
(ii) financial records of the private entity, including balance sheets and
financial statements, that are not generall y available to the public through
regulator y disclosure or otherwise; or (iii) other information submitted by
the private entit y, where, if the records were made public prior to the
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execution of an Agreement, the financial interest or bargaining position of
the town or private entity would be adversely affected. Once an
Agreement has been entered into, and the process of bargaining of all
phases or aspects of the Agreement is complete, the town shall make the
procurement records available upon request, in accordance with Virginia
Code §§ 2.2-4342 and § 56.575.17.D-F.
4.4.2 In order for the records specified in clauses (i), (ii) and (iii) of 4.4.1 to be
excluded from release pursuant to the Virginia Freedom of Information
Act, the private entity shall make a written request to the town that (a)
invokes such exclusion upon submission of the data or other materials for
which protection from disclosure is sought; (b) identifies with specificity
the data or other materials for which protection is sought; and (c) states the
reasons wh y protection is necessary. In addition, the proposer must
clearl y mark each page of its proposal that it contends is not subject to
disclosure under the VFOIA with the legend “Confidential – Not
Releasable under VFOIA.” The town may only protect information
excluded from release by Va. Code § 2.2-3705.6.11 and will not protect
any portion of a proposal from disclosure if the entire proposal has been
designated confidential by the proposer without reasonabl y different iating
between the proprietary and non-proprietary information contained
therein.
4.4.3 The town manager shall determine whether a private entity’s request to
exclude documents from disclosure pursuant to 4.4.2 is necessary to
protect the trade secrets or financial records of the private entity. To
protect other records submitted by the private entity from disclosure, the
town manager shall determine whether public disclosure prior to the
execution of an Agreement would adversely affect the financial interest or
bargaining position of the town or private entity. The town manager shall
make a written determination of the nature and scope of the protection to
be afforded under these guidelines and the PPEA. Once a written
determination is made by the town manager, the records afforded
protection under 4.4.1 through 4.4.3 shall continue to be protected from
disclosure when in the possession of the town and any affected jurisdiction
to which such records are provided by the town.
4.4.4 Nothing in this 4.4 shall be construed to authorize the withholding of
(a) procurement records as required to be made available by Va. Code
§56-575.17; (b) information concerning the terms and conditions of any
Agreement, service contract, lease, partnership, or any agreement of an y
kind entered into by the town and the private entity; (c) information
concerning the terms and conditions of any financing arrangement that
involves the use of an y public funds; or (d) information concerning the
performance of any private entity developing or operating a qualifying
project.
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4.4.5 Once an Agreement has been entered into, the town shall make the
procurement records available upon request, in accordance with Virginia
Code § 56-575.17. However, the following, if properly designated by the
private entit y under this Section 4.4 as “Confidential-Not Releasable under
VFOIA” are not considered procurement records: (i) trade secrets of the
private entity as defined in the Uniform Trade Secrets Act, Va. Code §§
59.1-336, et. seq.; and (ii) financial records, including balance sheets or
financial statements of the private entit y that are not generall y available to
the public through regulatory disclosure or otherwise. Further, costs
estimates relating to a proposed procurement transaction prepared by or
for the town shall not be made available for public inspection.
4.4.6 Any inspection of procurement records under these guidelines will be
subject to reasonable restrictions to ensure the security and integrit y of the
records.
4.4.7 Except as reasonabl y necessary for the town, staff and consultants to
review proposals, the town promises to maintain the confidentiality of
confidential proprietar y information that is provided to it by a private
entit y pursuant to a proposal for procurement under these guidelines if the
private entity follows all the steps required by paragraph 4.4. of these
guidelines to designate the information as confidential proprietary
information excluded from disclosure under VFOIA, and if the
information is, in fact, information that is properly exempt from release
under VFOIA. The town manager shall take appropriate action to protect
the confidentiality of such information from any disclosure beyond
whatever disclosure is reasonably necessary for the town, affected
jurisdictions, staff, and outside consultants having a need to know the
information to carry out the procurement. Despite the town’s sincere
intent to honor this promise of confidentiality, nothing contained herein
shall constitute a waiver of sovereign immunity, a consent to suit, or a
contractual undertaking, and it is a condition of submitting proposals that
no cause of action, in contract or otherwise, shall arise against the town for
any failure to maintain confidentiality of information.
4.4.8 Any information in a proposal that becomes incorporated into an
Agreement with the proposer submitting it, such as b y becoming an
exhibit, shall become a public record releasable under VFOIA upon
execution of the Agreement.
4.5 Use of Public Funds
Virginia constitutional and statutory requirements as they appl y to
appropriation and expenditure of public funds apply to an y Agreement
entered into under the PPEA. Accordingl y, the processes and procedural
requirements associated with the expenditure or obligation of public funds
should be incorporated into planning for any PPEA project, and an y PPEA
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procurement should comply with town fiscal policies. Virginia
constitutional and statutory restrictions that apply to the town regarding
expenditures of public funds shall be deemed to be incorporated into any
Agreement into which the town enters pursuant to the PPEA and to
condition the town’s obligations thereunder.
4.6 Applicability of Other Laws
Nothing in the PPEA shall affect the dut y of the town or an y of its
employees, or agents to comply with all other applicable law; provided,
however, that the applicability of the Virginia Public Procurement Act (the
“VPPA”) is as set forth in paragraph 10 of these guidelines.
5. Solicited Bids/Proposals
5.1 The town manager ma y invite bids or proposals from private entities to
acquire, design, construct, improve, renovate, expand, equip, maintain or
operate qualifying projects. The town manager ma y use a two-part
process consisting of an initial conceptual phase and a detailed phase. The
town manager will set forth in the solicitation the format and supporting
information that is required to be submitted, consistent with the provisions
of the PPEA and these guidelines. Notwithstanding an y provision in these
guidelines to the contrary, the town manager may vary the requirements
for proposal format and content from those in Section 7.
5.2 Prior to inviting an y bids or proposals, the town shall determine pursuant
to paragraph 10 of these guidelines whether to use procedures consistent
with competitive sealed bidding or competitive negotiation of other than
professional services, and if using competitive negotiation, indicate the
justification, consistent with the PPEA and paragraph 10 of these
guidelines, for proceeding in that manner, and the evaluation criteria to be
used to evaluate proposals.
5.3 The solicitation will specify, but not necessarily be limited to, information
and documents that must accompany each proposal and the factors that
will be used in evaluating the submitted proposals. The solicitation will
be posted on the town’s website or posted on the Commonwealth
electronic procurement website. The solicitation will also contain or
incorporate b y reference other applicable terms and conditions, including
any unique capabilities or qualifications that will be required of the private
entities submitting proposals. Pre-proposal conferences ma y be held as
deemed appropriate by the town manager.
5.4 Initial (conceptual) proposals received in response to a solicitation by the
town shall be posted by the town within 10 days after their acceptance b y
posting them or of a summary of them and the location where copies of
the proposals are available for public inspection on the town’s website or
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on the Virginia Department of General Service’s web-based electronic
procurement site, commonly known as eVa, or both. The town may also
publish in a newspaper of general circulation where the qualifying project
will be performed a summary of the proposals and the location where
copies of the proposals are available for public inspection. The town may,
in its discretion, post proposals by other means as well.
5.5 Subject to exclusions from disclosure in 4.4., at least one cop y of each of
the proposals shall be made available for public inspection. Unless
otherwise agreed by the town and the private entity submitting a proposal,
portions of the proposal properl y designated pursuant to 4.4 and
containing trade secrets, financial records, or other records excluded from
disclosure by Va. Code § 2.2-3705.6.11 and these guidelines shall not be
made available for public inspection.
5.6 The town will receive comments from the public on any proposals .
Comments should be in writing and directed to the town manager’s
designee. Comments will be accepted after the proposals have been
received, and a public comment period of at least 30 days will be allowed
before entr y into any Agreement. The town shall hold a public hearing or
hearings on proposals at least 30 days prior to entering into an Agreement.
5.7 Onl y proposals compl ying with the requirements of the PPEA that contain
sufficient information for a meaningful evaluation and that are provided in
an appropriate format will be considered by the town for further review at
the conceptual stage.
5.8 After reviewing conceptual proposals, the town may determine:
5.8.1 Not to proceed further with any proposal,
5.8.2 To proceed to the detailed phase of review with multiple proposals,
or
5.8.3 To proceed to the detailed phase with a single proposal if a finding
is made that the proposer submitting it is the only fully qualified
proposer or is clearl y more highl y qualified than the other
proposers.
5.9 Receipt of Public Comments/Hearings
The town will receive comments from the public on any proposals.
Comments should be in writing and directed to the town manager.
Comments will be accepted after the proposals have been received and a
public comment period of at least 30 days will be allowed before entry
into any Agreement. The town shall hold a public hearing or hearings
on proposals at least 30 da ys prior to entering into an Agreement.
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6. Unsolicited Proposals
The PPEA permits the town to receive and evaluate unsolicited proposals from
private entities to acquire, design, construct, improve, renovate, expand, equip,
maintain, or operate a qualifying project.
The town may publicize its needs and may encourage or notify interested parties to
submit proposals subject to the terms and conditions of the PPEA. When such
proposals are received without issuance of a solicitation, t he proposal shall be
treated as an unsolicited proposal. Proposals received as a result of the town
receiving an unsolicited proposal and then publishing a Notice of Receipt of
Unsolicited Proposal will also be treated as unsolicited proposals.
To ensure that the town receives the best value for an y qualif ying project, the
town will seek and encourage competing unsolicited proposals.
6.1 Decision to Accept and Consider Unsolicited Proposal; Notice
6.1.1 Upon receipt of an y unsolicited proposal or group of proposals and
payment of an y required fee b y the proposer or proposers, the town will
determine whether to accept the unsolicited proposal for publication of
notice and conceptual-phase consideration. If the town determines not to
accept the proposal and not to proceed to publication of notice and
conceptual-phase consideration, the town will return the proposal, together
with all fees and accompanying documentation, to the proposer.
6.1.2 If the town chooses to accept an unsolicited proposal for conceptual -phase
consideration, the town shall:
6.1.2.1 Determine pursuant to paragraph 10 of these guidelines whether to
use procedures consistent with competitive sealed bidding or
competitive negotiation of other than professional services, and if
using competitive negotiation, indicate the justification,
consistent with the PPEA and paragraph 10 of these guidelines,
for proceeding in that manner, and the evaluation criteria to be
used to evaluate the unsolicited proposal and competing
unsolicited proposals;
6.1.2.2 Determine what if any conditions that the town will authorize the
town manager to place upon the proposer and any competing
proposers beyond those contained in these guidelines for going
forward with the unsolicited proposal and for receiving competing
unsolicited proposals;
6.1.2.3 Have the town manager (i) prepare a short document entitled
“Notice of Receipt of Unsolicited Proposal” for purposes of
publication, and (ii) prepare a lengthier document entitled
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“Receipt of Unsolicited PPEA Proposal and Solicitation of
Competing Proposals” that will not be published but will be
available upon request.
a. The Notice of the Receipt of Unsolicited Proposal shall
state that the town (i) has received and accepted an
unsolicited proposal under the PPEA, (ii) intends to
evaluate the proposal, (iii) may negotiate an Agreement
with the proposer based on the proposal, and (iv) will
accept for simultaneous consideration an y competing
proposals that comply with these guidelines and the
PPEA. The notice shall include a summary of the
proposal and state the location where the proposal is
available for public inspection. The notice shall indicate
that conditions have been imposed upon proposers for
proceeding to the initial conceptual phase and inform
them how to obtain the Receipt of Unsolicited PPEA
Proposal and Solicitation of Competing Proposals
containing the conditions and evaluation criteria for the
procurement.
b. Within 10 days of acceptance of the unsolicited proposal,
the town manager shall post the Notice of Receipt of
Unsolicited Proposal on the town’s web site or on the
Virginia Department of General Service’s web-based
electronic procurement site, commonly known as eVa, or
both, for a period of not less than 45 days. The town
manager ma y also publish the same notice at least once in
one or more newspapers or periodicals of general
circulation in the County of Loudoun, Virginia, to
notify the public and any persons that may be interested
in submitting competing unsolicited proposals, with the
first such publication to occur at least 45 days before
competing proposals are due. Competing proposals may
be submitted to the town manager during the period
specified in the notice following the publication required
above.
c. The Receipt of Unsolicited PPEA Proposal and
Solicitation of Competing Proposals shall contain the
following information and shall be provided to
prospective competing proposers and members of the
public on request:
(i) The instructions, terms and conditions applicable
to the procurement;
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(ii) A summary of the project proposed in the
unsolicited proposal that is more detailed than the
summary in the Notice of Receipt of unsolicited
proposals.
(iii) The evaluation criteria to be used for the
procurement (which should be approved b y the
town);
(iv) Instructions for obtaining an y portions of the
unsolicited proposal that are releasable; and
(v) Such other instructions and information as the
town manager deems reasonable and desirable.
d. Copies of unsolicited proposals are available to the
public, upon request, pursuant to the Virginia Freedom of
Information Act (“VFOIA”), except as exempted from
release under the PPEA and VFOIA.
6.2 Competing Proposals
Competing proposals shall be posted by the town within 10 days after their
receipt b y posting on the town’s website or on the Virginia Department of
General Services central electronic website of a summary of the proposals
and the location where copies of the proposals are available for public
inspection. The town may also publish in a newspaper of general
circulation where the qualifying project will be performed a summary of
the proposals and the location where copies of the proposals are available
for public inspection. In addition, the town may, in its discretion, post
proposals by other means deemed appropriate b y the town.
6.3 Availability of Proposals for Public Inspection
Subject to exclusions from disclosure in 4.4., at least one cop y of each of
the proposals shall be made available for public inspection. Unless
otherwise agreed by the town and the private entity submitting a proposal,
portions of the proposal properl y designated pursuant to 4.4 and
containing trade secrets, financial records, or other records excluded from
disclosure by Va. Code 2.2-3705.6.11 shall not be made available for
public inspection.
6.4 Initial Review at the Conceptual Stage
6.4.1 Onl y proposals compl ying with the requirements of the PPEA that contain
sufficient information for a meaningful evaluation and that are provided in
an appropriate format will be considered by the town for further review at
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the conceptual stage. Content and format requirements for proposals at
the conceptual stage are found at Section 7.1.
6.4.2 After reviewing the original proposal and an y competing unsolicited
proposals submitted during the notice period, the town may determine:
6.4.2.1 Not to proceed further with any proposal,
6.4.2.2 To proceed to the detailed phase of review with the original
proposal,
6.4.2.3 To proceed to the detailed phase with a competing proposal, or
6.4.2.4 To proceed to the detailed phase with multiple proposals.
However, the town ma y not proceed to the detailed phase with only one proposal unless it
has determined in writing that only one proposer is qualified or that the only proposer to
be considered is clearly more highly qualified than any other proposer.
6.5 Receipt of Public Comments/Hearings
The town will receive comments from the public on an y proposals, both
unsolicited and competing. Comments should be in writing and directed
to the town manager. Comments will be accepted after the proposals have
been received and a public comment period of at least 30 days will be
allowed before entr y into an y Agreement. The town shall hold a public
hearing or hearings on proposals at least 30 days prior to entering into an
Agreement.
7. Proposal Preparation and Submission
7.1 Proposal Content and Format for Submissions at the Conceptual Stage
The town manager may generall y require that proposals at the conceptual
stage contain information in the following areas: (1) qualifications and
experience, (2) project characteristics, (3) project financing, but onl y if
public financing is unavailable or potentially less advantageous, (4)
project benefit and compatibility, and (5) an y additional information as the
town manager ma y reasonably request. Conceptual-phase proposals
should include an executive summary of the proposal at the beginning of
the proposal. An unsolicited proposal shall include an executive summary
not designated as “Confidential-Not Releasable under VFOIA” that
describes the proposed qualifying project sufficiently so that potential
competitors can reasonably formulate meaningful competing proposals
from a review of the summary and publicl y-available information. Unless
otherwise indicated in the solicitation or Receipt of Unsolicited PPEA
Proposal and Solicitation of Competing Proposals, as applicable,
conceptual-phase proposals should contain the information indicated
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below in the format indicated below unless otherwise indicated by the
town manager:
7.1.1 Qualifications and Experience
7.1.1.1 Identif y the legal structure of the private entity making the
proposal. Identif y the organizational structure for the project, the
management approach, and how each participant in the structure
fits into the overall team. If the private entity that would be
signing an y Agreement would be a corporation, limited liability
compan y, limited partnership, or an entity formed especiall y for
the project, and if the proposer is relying at all on the past
experience, name, or financial statements of any other person or
entity to show the private entities’ capabilities and responsibility,
state what guarant y of performance will be provided by such
other persons or entities.
7.1.1.2 Describe the experience of the entities making the proposal, the
key principals and project managers involved in the proposed
project including experience with projects of comparable size and
complexity, including prior experience bringing similar projects
to completion on budget and in compliance with design, land use,
service and other standards. Describe past safety performance
and current safety capabilities. Describe the past technical
performance history on recent projects of comparable size and
complexity, including disclosure of an y legal claims relating to
such projects. Describe the length of time in business, business
experience, public sector experience, and other engagements.
Include the identit y of any firms that will provide design,
construction and completion guarantees and warranties, and a
description of such guarantees and warranties.
7.1.1.3 For each firm or major subcontractor that will be utilized in the
project, provide a statement listing the firm’s prior projects and
clients for the past 3 years and contact information for same
(name, address, telephone number, e-mail address). If a firm has
worked on more than ten (10) projects during this period, it may
limit its prior project list to ten (10), but shall first include all
projects similar in scope and size to the proposed project and,
second, it shall include as man y of its most recent projects as
possible. Each firm or major subcontractor shall be required to
submit all performance evaluation reports or other documents,
which are in its possession evaluating the firm’s performance
during the preceding three years in terms of cost, quality,
schedule maintenance, claims, change orders, lawsuits, safety and
other matters relevant to the successful project development,
operation, and completion.
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7.1.1.4 Provide the names, prior experience, addresses, telephone
numbers and e-mail addresses of persons within the firm or who
will be directl y involved in the project or who may be contacted
for further information.
7.1.1.5 Provide the current or most recent financial statements of the firm
(audited financial statements to the extent available), and if the
firm is a joint venture, limited liability compan y, partnership or
entity formed specifically for this project, provide financial
statements (audited if available) for the firm’s principal
venturers, members, partners, or stockholders that show that the
firm or its constituents have appropriate financial resources and
operating histories for the project.
7.1.1.6 Identif y an y persons known to the proposer who would be
obligated to disqualify themselves from participation in any
transaction arising from or in connection to the project pursuant
to The Virginia State and Local Government Conflict of Interest
Act, Chapter 31 (Va. Code § 2.2-3100, et seq.).
7.1.1.7 Identif y the proposed plan for obtaining sufficient numbers of
qualified workers in all trades or crafts required for the project.
7.1.1.8 For each firm or major subcontractor that will perform
construction and/or design activities, provide an accuratel y
completed Commonwealth of Virginia Department of General
Services (DGS) Form 30-168.
7.1.2 Project Characteristics
7.1.2.1 Provide a description of the project, including the conceptual
design. Describe the proposed project in sufficient detail so that
type and intent of the project, the location, and the communities
that may be affected are clearl y identified.
7.1.2.2 Identif y and fully describe an y work to be performed by the town
or an y other public entity.
7.1.2.3 Include a list of all federal, state and local permits and approvals
required for the project and a schedule for obtaining such permits
and approvals.
7.1.2.4 Identif y an y anticipated adverse social, economic, environmental
and transportation impacts of the project measured against the
Town’s, County’s or other affected jurisdiction’s comprehensive
land use plan and applicable ordinances and design standards.
Specify the strategies or actions to mitigate known impacts of the
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project. Indicate if an environmental and archaeological
assessment has been completed.
7.1.2.5 Identif y the projected positive social, economic, environmental
and transportation impacts of the project measured against the
town’s, County’s or other affected jurisdiction’s comprehensive
land use plan and applicable ordinances and design standards.
7.1.2.6 Identif y the proposed schedule for the work on the project,
including sufficient time for the town’s review and the estimated
time for completion.
7.1.2.7 Identif y contingenc y plans for addressing public needs in the
event that all or some of the project is not completed according to
projected schedule.
7.1.2.8 Propose allocation of risk and liability, and assurances for timel y
completion of the project.
7.1.2.9 State assumptions related to ownership, legal liability, law
enforcement and operation of the project and the existence of any
restrictions on the town’s use of the project.
7.1.2.10 Provide information relative to phased openings of the proposed
project.
7.1.2.11 Describe an y architectural, building, engineering, or other
applicable standards that the proposed project will meet.
7.1.3 Project Financing
7.1.3.1 Provide a preliminary estimate and estimating methodology of
the cost of the work b y phase, segment (e.g., design, construction,
and operation), or both.
7.1.3.2 Submit a plan for the development, financing and operation of
the project showing the anticipated schedule on which funds will
be required. Describe the anticipated costs of and proposed
sources and uses for such funds, including any anticipated debt
service costs. The operational plan should include appropriate
staffing levels and associated costs based upon the town’s
adopted operational standards. Include an y supporting due
diligence studies, anal yses, or reports.
7.1.3.3 Include a list and discussion of assumptions underlying all major
elements of the plan. Assumptions should include all fees
associated with financing given the recommended financing
approach, including but not limited to, underwriter’s discount,
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placement agent, legal, rating agency, consultants, feasibility
study and other related fees. A complete discussion or interest
rate assumptions should be included given current market
conditions. Any ongoing operational fees should also be
disclosed, as well as any assumptions with regard to increases in
such fees and escalator provision to be required in the
Agreement.
7.1.3.4 Identif y the risk factors and methods for dealing with these
factors. Describe methods and remedies associated with any
financial default.
7.1.3.5 Identif y an y local, state or federal resources that the proposer
contemplates requesting for the project along with an anticipated
schedule of resource requirements. Describe the total
commitment, if any, expected from governmental sources and the
timing of an y anticipated commitment, both one-time and on-
going.
7.1.3.6 Clearly describe the underlying support and commitment
required by the town under your recommended plan of finance.
Include your expectation with regard to the town providing its
general obligation or moral obligation backing.
7.1.3.7 Identif y an y dedicated revenue, source or proposed debt or equit y
investment on behalf of the private entity submitting the
proposal.
7.1.4 Project Benefit and Compatibility
7.1.4.1 Identif y community benefits, including the economic impact the
project will have on the local community in terms of amount of
tax revenue to be generated for the town or other affected
jurisdiction, the number jobs generated for area residents and
level of pay and fringe benefits of such jobs, and the number and
value of subcontracts generated for area subcontractors.
7.1.4.2 Identif y an y anticipated public support, as well as any anticipated
government support (including that in any affected jurisdiction),
for the project.
7.1.4.3 Explain the strategy and plans, including the anticipated timeline
that will be carried out to involve and inform the general public,
business community, and governmental agencies in areas affected
by the project.
7.1.4.4 Describe any anticipated significant benefits to the community,
including anticipated benefits to the economic, social,
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environmental, transportation, Comprehensive Plan, etc., and
whether the project is critical to attracting or maintaining
competitive industries and businesses to the town or other
affected jurisdiction.
7.1.4.5 Describe the project’s compatibility with the comprehensive plan
applicable to the town (including related environmental, land use
and facility standards ordinances, where applicable),
infrastructure development plans, transportation plans, the capital
improvements plan and capital budget or other government
spending plan.
7.1.5 Any additional information as the town manager may reasonabl y request
7.2 Proposal Content and Format for Submissions at the Detailed Stage
If the town decides to proceed to the detailed phase of review with one or
more proposals, the following information, along with an executive
summary of the proposal at its beginning, should be provided b y the
private entity unless waived by the town manager:
7.2.1 A topographical map (1:2,000 or other appropriate scale) depicting the
location of the proposed project.
7.2.2 Conceptual site plan indicating proposed location and configuration of the
project on the proposed site;
7.2.3 Conceptual (single line) plans and elevations depicting the general scope,
appearance and configuration of the proposed project;
7.2.4 Detailed description of the proposed participation, use and financial
involvement of the town. Include the proposed terms and conditions for
the project,
7.2.5 A list of public utility facilities, if any, that will be crossed b y the
qualifying project and a statement of the plans of the proposer to
accommodate such crossings.
7.2.6 Information relating to the current plans for development of facilities that
are similar to the qualifying project being proposed by the private entity in
any affected jurisdiction;
7.2.7 A statement and strategy setting out the plans for securing all necessary
propert y and/or easements. The statement must include the names and
addresses, if known, of the current owners of the subject propert y as well
as a list of an y property the proposer intends to request the town or
affected jurisdiction to condemn.
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7.2.8 A detailed listing of all firms, along with their relevant experience and
abilities, that will provide specific design, construction and completion
guarantees and warranties, and a brief description of such guarantees and
warranties along with a record of any prior defaults for performance.
7.2.9 A total life-cycle cost, including maintenance, specif ying methodology
and assumptions of the project or projects including major building
systems (e.g., electrical, mechanical, etc.), and the proposed project start
date. Include anticipated commitment of all parties; equity, debt, and
other financing mechanisms; and a schedule of project revenues and
project costs. The life-cycle cost anal ysis should include, but not be
limited to, a detailed analysis of the projected return, rate of return, or
both, expected useful life of facility and estimated annual operating
expenses using town adopted service levels and standards.
7.2.10 A detailed discussion of assumptions about user fees or rates, lease
payments and other service payments, and the methodology and
circumstances for changes, and usage of the projects over the useful life of
the projects.
7.2.11 Identification of any known government support or general public support
for the project or financing thereof. Government or public support should
be demonstrated through resolution of official bodies, minutes of
meetings, letters, or other official communications.
7.2.12 Demonstration of consistency with appropriate town and/or affected
jurisdiction comprehensive plans (including related environmental, land
use and facilit y standards ordinances, where applicable), applicable zoning
ordinances or regulations, infrastructure development plans, transportation
plans, the capital improvement plan and capital budget, or indication of
the steps required for acceptance into such plans, ordinances, or
regulations.
7.2.13 Explanation of how the proposed project would impact the town’s or
affected jurisdictions’ development plans.
7.2.14 Description of an ongoing performance evaluation system or database to
track key performance criteria, including but not limited to, schedule, cash
management, qualit y, worker safet y, change orders, and legal compliance.
7.2.15 Identification of an y known conflicts of interest or other factors that may
impact the town’s consideration of the proposal, including the
identification of any persons known to the proposer who would be
obligated to disqualify themselves from participation in any transaction
arising from or in connection to the project pursuant to The Virginia State
and Local Government Conflict of Interest Act, Chapter 31 (Va. Code
§ 2.2-3100, et seq.).
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7.2.16 Acknowledgement of conformance with Sections 2.2–4367 through 2.2-
4377 of the Code of Virginia, the Ethics in Public Contracting Act.
7.2.17 Additional material and information as the town manager ma y reasonably
request.
8. Proposal Evaluation and Selection Criteria
8.1 Manner of Evaluation and Use of Outside Professionals
Unless the town council directs a different manner of evaluation in
writing, evaluations of proposals shall be by such persons or group or
committee of persons as the town manager may designate, subject to such
review as the town council may direct. Evaluations of proposals shall
include, without limitation, analysis of the proposals’ specifics,
advantages, disadvantages, long-term costs, and short-term costs, using the
evaluation criteria specified for the procurement. The town shall engage
the services of qualified professionals not employed by the town, which
may include an architect, professional engineer, certified public
accountant, or other consultant, to provide an independent anal ysis as part
of the evaluation. Notwithstanding the preceding sentence, if the town
determines that such analysis of proposals will be performed b y town
staff, the town need not engage such an outside professional.
8.2 Evaluation Criteria
Evaluation criteria for proposals and their relative importance should be
specified in the solicitation, or Receipt of Unsolicited PPEA Proposal and
Solicitation of Competing Proposals, as applicable, for the procurement
concerned. Evaluation criteria ma y include the following factors, among
others: (1) price; (2) the proposed cost of the qualifying facility; (3) the
general reputation, industry experience and capability of the private entity;
(4) the proposed design of the qualifying project; (5) the eligibility of the
facilit y for accelerated selection, review, and documentation timelines
under these guidelines; (6) local citizen and government comments; and
(7) benefits to the public. If the evaluation criteria are not specified in the
solicitation or Receipt of Unsolicited PPEA Proposal and Solicitation of
Competing Proposals, then the criteria in the preceding sentence along
with following items, and the specified information required under 7.1 and
7.2 above, should be considered in the evaluation and selection of such
PPEA proposals:
8.3 Qualifications and Experience
Factors to be considered in either phase of the town’s review to determine
whether the proposer possesses the requisite qualifications and experience
include, the following:
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8.3.1 Experience, training, and preparation with similar projects;
8.3.2 Demonstration of ability to perform work;
8.3.3 Demonstrated record of successful past performance, including timeliness
of project delivery, compliance with plans and specifications, quality of
workmanship, cost-control, lack of excessive claims, change orders, and
litigation, and project safety;
8.3.4 Demonstrated conformance with applicable laws, codes, standards,
regulations, and agreements on past projects;
8.3.5 Leadership structure;
8.3.6 Project manager’s experience;
8.3.7 Management approach;
8.3.8 Project staffing plans, the skill levels of the proposed workforce, and the
proposed safety plans for the project;
8.3.9 Financial condition;
8.3.10 Project ownership; and
8.3.11 Efforts to facilitate participation of small businesses and businesses owned
by women and minorities in the project.
8.3.12 Willingness to assume full responsibility for design and intent of project
design, including but not limited to, willingness to use design-build
method of project delivery.
8.4 Project Characteristics
Factors to be considered in determining the project characteristics include,
along with the specified information required under 7.1 and 7.2 above, the
following:
8.4.1 Project definition;
8.4.2 Proposed project schedule;
8.4.3 Operation of the project;
8.4.4 Technology; technical feasibility;
8.4.5 Conformity to State, County, town, or affected jurisdiction laws,
regulations, and standards;
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8.4.6 Environmental impacts;
8.4.7 Condemnation impacts;
8.4.8 State and local permits; and
8.4.9 Maintenance of the project.
8.5 Project Financing
The town reserves the right to select its own finance team, source and
financing vehicle in the event any project is financed through the issuance
of obligations that are deemed to be tax -supported debt, or if financin g
such project ma y impact debt rating or financial position. The decision as
to whether to use the financing plan contained in any proposal (whether
solicited or unsolicited) is at the town’s sole discretion.
Factors to be considered in determining whether the proposed project
financing allows access to the necessary capital, at the lowest practical
cost include, along with the specified information required under 7.1 and
7.2 above, the following:
8.5.1 Cost and cost benefit to the town;
8.5.2 Financing and the impact on the debt or debt burden of the town;
8.5.3 Financial plan including overall feasibility and reliability of plan; default
implications; operator’s past performance with similar plans and similar
projects; degree to which operator has conducted due diligence
investigation and anal ysis of proposed financial plan and results of an y
such inquiries or studies.
8.5.4 Estimated cost; including financing source, operating costs, etc., and
8.5.5 Life-cycle cost analysis.
8.6 Project Benefit and Compatibility
Factors to be considered in determining the proposed project’s
compatibility with the town’s, affected jurisdiction’s or regional
comprehensive or development plans include, along with the specified
information required under 7.1 and 7.2 above, the following:
8.6.1 Community benefits; including the economic impact the project will have
on the town in terms of amount of tax revenue to be generated for the
town, the number jobs generated for area residents and level of pay and
fringe benefits of such jobs, and the number and value of subcontracts
generated for area subcontractors.
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8.6.2 Community support or opposition, or both;
8.6.3 Public involvement strategy;
8.6.4 Compatibility with existing and planned facilities;
8.6.5 Compatibility with town, County, regional, and state economic
development efforts; and
8.6.6 Compatibility with the town’s, County’s and affected jurisdiction’s land
use, environmental and transportation plans.
9. Agreement
9.1 Prior to acquiring, designing, constructing, improving, renovating,
expanding, equipping, maintaining, or operating the qualif ying project, the
selected proposer shall enter into an Agreement with the town. The town
will only enter into an Agreement if the town council determines that
the qualifying project to be done pursuant to the agreement serves the
public purpose of the PPEA under the criteria of Va. Code § 56-
575.4C. Each Agreement shall define the rights and obligations of the
town and the selected proposer(s) with regard to the project.
9.2 The terms of the Agreement shall be tailored to address the specifics of the
project and shall include, if applicable, but not be limited to:
9.2.1 The delivery of maintenance, performance and payment bonds or letters of
credit in connection with any acquisition, design, construction,
improvement, renovation, expansion, equipping, maintenance, or
operation of the qualifying project, including, without limitation, bonds or
letters of credit that comply with Virginia Code § 2.2-4337 for
components of the qualifying project that include construction;
9.2.2 The review and approval of plans and specifications for the qualifying
project b y the town;
9.2.3 The rights of the town to inspect the qualifying project to ensure
compliance with the Agreement;
9.2.4 The maintenance of a policy or policies of liability insurance or self -
insurance reasonabl y sufficient to insure coverage of the project and the
tort liability to the public and emplo yees and to enable the continued
operation of the qualifying project;
9.2.5 The monitoring of the practices of the private entity by the town to ensure
proper maintenance, safety, use and management of the qualifying project;
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9.2.6 The terms under which the private entit y will reimburse the town for
services provided;
9.2.7 The policy and procedures that will govern the rights and responsibilities
of the town and the private entity in the event that the Agreement is
terminated or there is a material default by the private entit y, including
without limitation, the conditions governing assumption of the duties and
responsibilities of the private entit y b y the town and the transfer or
purchase of propert y or other interests of the private entity b y the town;
9.2.8 The terms under which the private entity will file appropriate financial
statements on a periodic basis.
9.2.9 The mechanism b y which user fees, lease pa yments, or service payments,
if an y, may be established from time to time upon agreement of the
parties. Any pa yments or fees shall be the same for persons using the
facilit y under like conditions and that will not materially discourage use of
the qualifying project;
9.2.9.1 A copy of an y service contract shall be filed with the town.
9.2.9.2 A schedule of the current user fees or lease payments shall be
made available by the private entity to any member of the public
upon request.
9.2.9.3 Classifications according to reasonable categories for assessment
of user fees ma y be made.
9.2.10 The terms and conditions under which the town will contribute financial
resources, if an y, for the qualifying project;
9.2.11 If the private entity is a limited purpose or “shell” entity, such as a limited
liabilit y compan y, limited partnership, or corporation, that lacks its own
substantial resources and operating history and that will depend on its
members, partners, shareholders or others for resources to perform, then
guarantees of performance b y such entity’s principal members, etc., or
other similar arrangements that adequately assure performance.
9.2.12 The procedures at paragraph 12 of these guidelines; and
9.2.13 Other requirements of the PPEA or provisions that the town determines
serve the public purpose of the PPEA.
9.3 After the town has negotiated an Agreement with a private entit y and
decided to make award to the private entity, but prior to entry into such
Agreement, the town shall:
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9.3.1 Post a summary of the Agreement and the location where a cop y of the
Agreement is available for public inspection. Posting shall be in the same
manner as the posting of initial (conceptual) proposals specified b y 5.4. A
copy of the Agreement shall be made available for public inspection.
9.4 Any Agreement, and any amendments thereto shall first be approved by
the town council and then executed in writing by persons having the
authority to do so. Entry into an y Agreement shall, as a condition
precedent to its effectiveness, be approved b y the town council.
9.5 Parties submitting proposals understand that representations, information
and data supplied in support of, or in connection with proposals play a
critical role in the competitive evaluation process and in the ultimate
selection of a proposal by the town. Accordingl y, as part of the
agreement, the proposing private entity shall certif y that all
representations, information and data provided in support of, or in
connection with, a proposal are true and correct. Such certification shall
be made b y an authorized individual who is a principal of the private
entit y and who has knowledge of the information provided in the proposal.
In the event that material changes occur with respect to any
representations, information or data provided for a proposal, the proposing
private entity shall immediately notify the town of same. Any violation of
this section shall give the town the right to terminate the Agreement,
withhold payment or other consideration due, and seek any other remed y
available at law or in equity.
9.6 As required b y Va. Code § 56-575.9.F. and 56-575.18, when the town
enters into an Agreement pursuant to the PPEA, a cop y should be filed
with the Auditor of Public Accounts electronicall y within 30 days
thereafter. A record reflecting this filing should be kept in the
procurement file.
10. Adoption of Certain Portions of the Virginia Public Procurement
Act and Use of Competitive Negotiation and Competitive Sealed
Bidding Procedures.
10.1 The provisions of the Virginia Public Procurement Act, Va. Code § 2.2-
4300, et seq., shall not apply to procurements b y the town under the PPEA
except as follows:
10.1.1 The definitions of and procedures for “competitive sealed bidding” and
“competitive negotiation” of other than professional services in Va. Code
§§ 2.2-4301, 2.2-4302.1 and 2.2-4302.2 are hereby adopted.
10.1.2 The provisions of Va. Code §2.2-4310 shall apply to all PPEA
procurements.
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10.1.3 The provisions from the Ethics in Public Contracting Act, Va. Code § 2.2-
4367 through 2.2-4377, shall apply to all PPEA procurements.
10.1.4 The provisions of Va. Code §2.2-4343 are adopted as additional authority
for parts of this polic y.
10.2 Before accepting any unsolicited proposal or before issuing any
solicitation for proposals, the town will determine whether it will proceed
to evaluate proposals using either:
10.2.1 “Competitive sealed bidding”, as defined in Va. Code § 2.2-4301 and
described in Va. Code § 2.2-4302.1; or
10.2.2 “Competitive negotiation” of other than professional services as defined in
Va. Code § 2.2-4301 and described in Va. Code § 2.2-4302.2.
10.3 The town may proceed using competitive negotiation procedures
described in 10.2.2 above only if it first makes a written determination that
doing so is likely to be advantageous to the town and the public based
upon either (i) the probable scope, complexity or urgenc y of need, or (ii)
the risk sharing, added value, increase in funding or economic benefit
from the project would otherwise not be available.
11. Terms and Conditions on Proposal Submission
11.1 The following terms and conditions apply to submission of any proposals
to the town pursuant to the PPEA, whether unsolicited, competing
unsolicited, or solicited, and by submitting an y proposal to the town, the
private entity submitting the proposal agrees to them:
11.1.1 Neither these guidelines, nor an y request or solicitation, nor the town’s
receipt or consideration of any proposal shall create any contract, express
or implied, any contractual obligation by the town to any proposer, or any
other obligation b y the town to any proposer. The town makes no
promise, express or implied, regarding whether it will enter into an
Agreement with an y proposer or regarding the manner in which it will
consider proposals. The town will only be bound by the terms of any
Agreement(s) into which it enters should it choose to enter into an y such
Agreement(s).
11.1.2 The town will not be responsible for an y expenses whatsoever incurred by
a proposer, including without limitation, in preparing and submitting a
proposal in an y form, or in engaging in presentations, discussions, or
negotiations in an y manner.
11.1.3 Proposers ma y be required to make an oral presentation or oral
presentations of their proposal in Leesburg, Virginia, at their own
expense. The town manager ma y request the presence of proposers’
representatives
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from their development, financial, architectural, engineering and
construction teams at these presentations. The town manager will
schedule the time and location for these presentations. By submitting its
proposal, the proposer agrees to make these representatives reasonably
available in Leesburg, Virginia.
11.1.4 The town reserves the right of the town manager to waive an y
informalities with respect to any proposal submitted.
11.1.5 The town reserves the right to accept or reject any and all proposals
received, in whole or in part, without explanation, and to negotiate
separately in an y manner necessar y to serve the best interests of the town.
Any procurement under these guidelines ma y result in multiple awards to
multiple proposers.
11.2 The provisions of this paragraph 11 of these guidelines shall apply
automatically to all PPEA procurements by the town.
11.3 The town will not discriminate against a proposer because of race,
religion, color, sex, national origin, age, disability, or any other basis
prohibited by state law relating to discrimination in employment.
12. Disputes, Claims, and Other Matters Arising Under or Relating to
any Agreement
12.1 The following provisions apply to an y disputes, claims or other matters
(collectively “Claim” or “Claims”) arising under or relating to an y
Agreement entered into pursuant to the PPEA by the town, on the one
hand (“Owner”), and any private entity (“Contractor”), on the other hand.
Claims between the parties arising under or relating to an Agreement shall
onl y be resolved as follows:
12.1.1 The Contractor shall give Owner written notice of any Claim for an y
additional compensation, damages, or dela y within ten (10) days of the
beginning of the occurrence of the event leading to the Claim being made
and shall submit the actual Claim and any supporting data within thirty
(30) da ys after the occurrence giving rise to the Claim ends. The written
notice shall be a document addressed to the Owner that clearl y states
Contractor’s intention to make a Claim and the occurrence involved and
shall be transmitted in a manner to ensure prompt receipt by Owner. The
Claim must be certified under oath as true and correct by a principal of
Contractor. The “occurrence” means the condition encountered in the
field giving rise to the Claim and not a later dispute about payment for that
condition. Claims of time impacts will be resolved as the y occur, and no
claims of cumulative impacts or deferral of claimed impacts will be
allowed. Complete satisfaction of subparagraph 12.1 of these guidelines is
an absolute prerequisite for Contractor to pursue a Claim arising under or
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relating to an agreement. Failure b y Contractor to satisfy this paragraph
12.1 shall constitute a waiver b y Contractor of the Claim for which such
failure occurs. A Claim by Owner is not subject to the requirements of this
12.1.1.
12.1.2 The parties shall first endeavor to resolve any Claims between them
through direct negotiations, and if such direct negotiations fail, by non-
binding mediation conducted pursuant to the Rules of the American
Arbitration Association, with the site of the mediation being
Leesburg, Virginia. Should the Claim remain unresolved for the shorter of
(i) following negotiation and mediation, or (ii) more than 90 days after
mediation is requested by a part y, either party may proceed in accordance
with 12.1.3 below. However, nothing in this paragraph 12.1.2 excuses
Contractor from compliance with all the provisions of 12.1.1.
12.1.3 If the procedures of 12.1.2 have been followed, but, more than 90 days
have passed since a party has invoked mediation, and the Claim remains
unresolved, then either party ma y institute an action in the Circuit Court of
the County of Loudoun, Virginia, or if the subject or amoun t in
controversy is within its jurisdiction, the General District Court of the
Count y of Loudoun, Virginia, and may thereafter pursue all available
appeals in Virginia state courts, to the extent they have jurisdiction.
12.1.4 Nothing in paragraphs 12.1.2 and 12.1.3 shall prevent a party from
seeking temporary injunctive or other temporary equitable relief in the
Circuit Court of the County of Loudoun if circumstances so warrant.
12.1.5 In the event of any Claim arising, Contractor shall continue its
performance diligently during its pendency as if no Claim had arisen.
During the pendenc y of any Claim, Contractor shall be entitled to receive
payments for non-disputed items, subject to any right of set-off by Owner.
12.1.6 Paragraph 12 of these guidelines and the provisions of the applicable
Agreement supersede any right at common law by Contractor for a claim
of material breach or for rescission of an y Agreement.
12.1.7 Paragraph 12 of these guidelines shall be deemed automatically
incorporated b y reference into any Agreement e ntered into by the town
pursuant to the PPEA.
12.1.8 For purposes of this Paragraph 12, “Owner” means the town, and
“Contractor” means the private entity or entities entering into the
Agreement, as well as Contractor’s successors, assigns, or others claiming
through Contractor.
12.2 The town manager ma y further supplement this Paragraph 12 of these
guidelines with the terms and conditions of any Agreements.
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13. Protests of PPEA Procurements
The following are the exclusive procedures for contesting or challenging
(protesting) (a) the terms or conditions of an y solicitation of proposals by the
town pursuant to the PPEA, (b) non-selection of a PPEA proposal for
further consideration, and (c) the selection of any PPEA proposal for entry into
an Agreement or the entry into an Agreement under the PPEA:
13.1 Any protest to an y term or condition of a solicitation must be made in
writing and delivered to the town manager so it is received b y the town
manager before proposals are due under the solicitation. Otherwise, an y
such protest shall be deemed to be waived.
13.2 A protest of a town decision not to select a PPEA proposal for further
consideration may onl y be made b y the entity who submitted the proposal
at issue. A protest of a town decision to select a PPEA proposal for entry
into an Agreement or to enter into an Agreement may onl y be made by an
entit y who submitted a proposal for the procurement at issue and who was
reasonabl y likely to have its proposal accepted but for the town’s decision.
Protests shall only be granted if (1) the protester has complied fully with
this paragraph 13 and there has been a clear violation of law, this policy,
or mandator y terms of the solicitation that clearly prejudiced the protestor
in a material wa y, or (2) a statute requires voiding of the decision.
13.3 Any entity desiring to protest a town decision not to select a PPEA
proposal for further consideration, to select a PPEA proposal for entry into
an Agreement, or to enter into an agreement shall submit the protest in
writing and deliver it so that it is received by the town manager not later
than 5 business days after announcement of the decision. Otherwise any
such protest shall be deemed to be waived.
13.4 The town manager shall issue a written decision on a protest within 10
days of its receipt by the town manager.
13.5 If the protest is denied, the protester ma y only appeal the denial or
otherwise contest or challenge the procurement by then filing suit in the
Circuit Court for the County of Loudoun and serving the town with
such suit within 10 days of such denial. Otherwise, the protester’s
right to appeal the denial or to otherwise contest or challenge the
procurement shall be deemed to be waived.
13.6 The exclusive relief allowed if a protest is granted is to void the decision
being protested. Under no circumstances will any monetary relief or
directed award of an Agreement be allowed.
13.7 Strictly following these procedures shall be a mandator y prerequisite for
any challenge of an y nature to a decision by the town relating to terms and
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conditions of a PPEA solicitation, non-selection of a PPEA proposal
for further consideration, selection of a PPEA proposal, or entry into an
agreement. A failure to follow all these procedures strictly shall constitute
a waiver of an y right to challenge judiciall y a town decision (a) as to terms
or conditions in a PPEA solicitation, (b) not to select a PPEA proposal for
further consideration, (c) to select a PPEA proposal, or (d) to enter into an
Agreement.
14. Timelines for Selecting Proposals and Negotiating Agreements
and Accelerated Timelines for Priority Qualifying Facilities
14.1 Normal expected timelines for selecting proposals and negotiating an
Agreement are set out at Appendices A and B hereto. Appendix A sets
out the normal expected timeline for a PPEA procurement solicited b y the
town. Appendix B sets out the normal expected timeline for a PPEA
procurement initiated by an unsolicited proposal.
14.2 For projects deemed a priority b y the town, the portion of timelines related
to selection, review, and documentation may be accelerated.
14.3 The town should generally adhere to these timelines in PPEA
procurements, but the town ma y deviate from them when it is in its
interests to do so.
15. Proposers’ Agreement to Terms and Conditions of This Policy
The town manager shall require as a condition of accepting any proposal for
consideration that its proposer agree to be bound by all the terms and conditions
of these guidelines. Proposers shall submit with any proposal the certification
that is set out in Appendix C hereto.
APPENDIX A
Projected Procurement Timeline for
tow n PPEA Procurement Solicited By
Request for Proposals (“RFP”)
Activity
Number
Date Activity Guidelines Reference
1 D Initiate procurement
under PPEA.
Decide whether to
use competitive
negotiation and
issue RFP.
5.1 & 5.2
2 D+45 Receive Conceptual-
Phase
Proposals
3 D+50 Determine whether
proposers’ requests
to exclude
information from
disclosure are
necessary
4.4.3
4 D+55 Post Conceptual-
Phase Proposals.
Receive public
comments
5 D+105 Evaluate
Conceptual-Phase
Proposals and
decide whether to
proceed. If
proceeding under
PPEA, select
proposers to invite
to submit, and invite
submission of
Detailed-Phase
Proposals
6 D+135 Receive Detailed-
Phase Proposals
7 D+140 Determine whether
proposers’ requests
to exclude
information from
disclosure are
necessary
4.4.3
8 D+180 Evaluate Detailed-
Phase Proposals,
conduct interviews,
and select
proposers for
negotiation of
2
Activity
Number
Date Activity Guidelines Reference
Agreement
9 D+225 Negotiate
Agreement. Select
awardee
10 D+245 Post Agreement for
public
11 D+280 Obtain approvals by
Town Council
Note: Considerable planning before Step 1 is required to determine the town’s needs
for a project and to state them in an RFP.
APPENDIX B
Projected Procurement Timeline for town PPEA
Procurement Initiated By Unsolicited Proposal
Activity
Number
Date Activity Guidelines Reference
1 D Receipt of
Unsolicited
Proposal
6.1.1
2 D+45 Decide whether to
accept Unsolicited
Proposal, whether
to use competitive
negotiation, what
conditions to
impose, and
whether the
proposer’s request
to exclude
information from
disclosure is
necessary
6.1.2.1 6.1.2.1 and
6.1.2.2 4.4.3
3 D+55 Prepare Notice of
Unsolicited
Proposal, Receipt of
Unsolicited
Proposal, and Post
and Publish
6.1.2.3
4 D+115 Receive Competing
Conceptual-Phase
Proposals
6.2
5 D+120 Determine whether
proposers’ requests
to exclude
information from
disclosure are
necessary
4.4.3
6 D+125 Post Competing
Conceptual-Phase
Proposals.
Receive public
comments on
unsolicited and
competing
Conceptual-Phase
Proposals.
7 D+175 Evaluate
Conceptual-Phase
Proposals, decide
whether to proceed.
If proceeding, select
proposers to invite
to submit, and invite
6.2.2
Activity
Number
Date Activity Guidelines Reference
submission of
Detailed-Phase
Proposals
8 D+205 Receive Detailed-
Phase Proposals
9 D+220 Determine whether
proposers’ requests
to exclude
information from
disclosure are
necessary
4.4.3
10 D+250 Evaluate Detailed-
Phase Proposals,
conduct interviews,
and select
proposers for
negotiation of
Agreement
11 D+295 Negotiate
Agreement, select
awardee
12 D+315 Post Agreement for
public
13 D+350 Obtain approval
from town council
APPENDIX C
Proposer’s Certification
Proposer’s Name:
Proposer’s Address Proposer’s:
Telephone No.:
Facsimile No.:
E-mail Address:
Proposer’s or Proposer’s Contractor’s Virginia Class A General Contractor’s License Number (if
applicable):
Proposer’s or Proposer’s Architect’s and Engineer’s Virginia Registration Numbers
(if applicable):
After first being placed under oath, I hereby certify that I have authority to submit this proposal
on behalf of the proposer whose name appears above, that I am a principal of the proposer, that
the proposer hereby agrees to all of the terms and conditions in the Town of Leesburg Guidelines
for Implementation of the Public-Private Education Facilities and Infrastructure Act of 2002, as
amended, that neither the proposer nor any member of its team or their principals is currently
suspended or debarred from public contracting by any federal, state or local government entity,
that I have taken reasonable steps to ascertain the accuracy of all the information contained in
this proposal and this certification, and that the information in this proposal and certification is
accurate to the best of my knowledge or information and belief.
Signature
Printed/Typed Name
Title (Principal of Proposer)
Commonwealth of Virginia :
: to wit
County/City of :
On , 20 , , (same name as above) appeared before me,
and after satisfying me of his/her identity and after being placed under oath, swore to the
truthfulness of the above statement.
Notary
Public My commission expires:
(If applicable) the proposer acknowledges receipt of the following agenda:
Addendum No.:
Addendum No.:
Addendum No.:
Addendum No.:
Dated:
Dated:
Dated:
Dated:
2
PRESENTED: December 11, 2018
RESOLUTION NO. ADOPTED: ________________
A RESOLUTION: APPROVING PUBLIC-PRIVATE PARTNERSHIP GUIDELINES
WHEREAS, the Code of Virginia authorizes two (2) types of Public-Private Partnerships
(PPPs) in Virginia: the Public-Private Transportation Act (PPTA) adopted in 1995 and codified in
Va. Code § 33.2-1800, et seq.; and the Public-Private Education Facilities and Infrastructure Act
(PPEA) adopted in 2002 and codified in Va. Code § 56-575.1; and
WHEREAS, these statutory schemes are intended to encourage investment in Virginia by
private entities and to allow construction of public facilities; and
WHEREAS, public-private partnerships are alternative methods to the traditional public
procurement process (under the Virginia Public Procurement Act or “VPPA”) used by localities to
design, construct, operate and maintain public facilities; and
WHEREAS, both the PPTA and PPEA mandate that in order to utilize these statutory
schemes, guidelines to process solicited or unsolicited bids or offers must be adopted by the
locality; and
WHEREAS, the Economic Development Steering Committee appointed by the Town
Council on April 25, 2017, recommended that the Model PPP Guidelines be adopted by the
Council; and
WHEREAS, staff utilized the Model PPEA Guidelines as well as the PPEA Guidelines
adopted by the Town of Herndon in 2015, to draft the proposed Town of Leesburg PPEA
Guidelines; and
WHEREAS, Town Council last adopted Public-Private Guidelines in 2006; and
WHEREAS, Town Council desires to adopt updated Public-Private (PPEA) Guidelines to
be able to utilize a public-private partnership, should it occur, in the future.
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A RESOLUTION: APPROVING PUBLIC-PRIVATE PARTNERSHIP GUIDELINES
THEREFORE, RESOLVED, the Council of the Town of Leesburg in Virginia approves
the Public-Private Partnership (PPEA) Guidelines presented to the Council on this date.
PASSED this day of ____________, 2018.
______________________________
Kelly Burk, Mayor
Town of Leesburg
ATTEST:
_________________________________
Clerk of Council