This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0781.CRG
DATE: 2/1/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 781 Unsolicited Proposals for Public-private Partnerships
SPONSOR(S): Constitutional Rights, Rule of Law & Government Operations Subcommittee, Clemons
TIED BILLS: IDEN./SIM. BILLS: CS/SB 870
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Constitutional Rights, Rule of Law &
Government Operations Subcommittee
11 Y, 0 N, As CS Villa Miller
2) State Administration & Technology
Appropriations Subcommittee
3) State Affairs Committee
SUMMARY ANALYSIS
Public-private partnerships (P3s) are contractual arrangements between public and private entities that
facilitate increased private sector involvement in the funding and execution of public building and infrastructure
projects. Current law authorizes a responsible public entity (RPE) (i.e., local government) to receive unsolicited
proposals or to solicit proposals for a qualifying P3 and thereafter enter into a comprehensive agreement for
the building, upgrading, operating, ownership, or financing of facilities.
If the RPE intends to execute a comprehensive agreement for a project arising from an unsolicited proposal,
the RPE must publish notice in the Florida Administrative Register (FAR) and a newspaper of general
circulation, and mail a copy of the notice to each affected local government, stating that the RPE has received
the proposal and will accept other proposals for the same project. After the public notification period has
expired, the RPE ranks the proposals received in order of preference and begins negotiations. However,
before approving a comprehensive agreement, the RPE must determine the proposed project: is in the public’s
best interest, is for a facility that is owned by the RPE or one for which ownership will be conveyed to the RPE,
and the facility will be owned by the RPE upon completion, expiration, or termination of the comprehensive
agreement and upon payment of the financed amounts.
The bill authorizes an RPE to proceed with an unsolicited proposal for a qualifying project without engaging in
a public bidding process. To do so, an RPE must hold an initial duly noticed public meeting at which the
proposal is presented and affected public entities and members of the public are able to provide comment. The
RPE then must hold a second duly noticed public meeting at which the RPE determines that the proposal is in
the public’s interest based on specified factors.
The bill provides that an RPE is authorized, but no longer required, to publish notice in the FAR and a
newspaper of general circulation and mail a copy to each affected local government in the affected area if the
RPE intends to execute a comprehensive agreement for a project arising from an unsolicited proposal. If the
RPE decides to proceed with an unsolicited proposal without engaging in the public bidding process, the RPE
must publish a report that provides the public interest determination, and specifically detailed information, in
the FAR for at least 7 days.
The bill amends the agreement approval process by no longer requiring the RPE to determine that an
unsolicited proposed project will be owned by the RPE. If ownership will not be conveyed to the RPE within 10
years after the initial public operation begins, the public benefits apart from ownership must be identified and
stated by the RPE. The RPE will only be required to determine the proposed project is in the public’s best
interest if the proposal was solicited.
The bill may have an indeterminate fiscal impact on the state and local governments. See Fiscal Comments. STORAGE NAME: h0781.CRG PAGE: 2
DATE: 2/1/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Public-private Partnerships
Public-private partnerships (P3s) are contractual arrangements between public entities and private
sector entities
1
that facilitate increased private sector involvement in the funding and execution of public
building and infrastructure projects. These agreements enable the collaboration of skills and assets
from both sectors to provide services or facilities for the benefit of the general public. In addition to
resource sharing, both parties assume shared risks and potential rewards throughout the delivery of the
service or facility.
2
Several statutes promote and offer direction for P3 projects, including those for
services and facilities related to transportation,
3
housing,
4
and education.
5
Current law grants responsible public entities (RPEs)
6
the authority to engage in P3 projects aimed at
developing an extensive array of public-use facilities or projects that fulfill a public purpose. Examples
of qualifying projects include those for mass transit, vehicle parking, airports or seaports, educational
facilities, and public sector buildings or complexes such as courthouses or city halls.
7
The P3 law
outlines specific requirements to which RPEs must adhere, including protocols for reviewing and
approving proposals.
8
Procurement Procedures
An RPE may receive unsolicited proposals or may solicit proposals for a qualifying P3 and thereafter
enter into a comprehensive agreement for the building, upgrading, operating, ownership, or financing of
facilities. To cover the costs associated with evaluating unsolicited proposals, a reasonable application
fee may be established. The RPE opting not to assess the unsolicited proposal must refund the
application fee.
9
1
“Private entity” means any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture,
business trust, public benefit corporation, nonprofit entity, or other private business entity. S. 255.065(1)(g), F.S.
2
See Florida Department of Transportation, Public-Private Partnerships, https://www.fdot.gov/comptroller/pfo/p3.shtm (last visited
January 7, 2024).
3
See 334.30, F.S., relating to public-private transportation facilities.
4
See 420.0003(2)(b), F.S., relating to state housing strategy.
5
See 1013.35, F.S., relating to school district educational facilities plans.
6
“Responsible public entity” means a county, municipality, school district, special district, or any other political subdivision of the state;
a public body corporate and politic; or a regional entity that serves a public purpose and is authorized to develop or operate a qualifying
project. S. 255.065(1)(j), F.S. “Develop” means to plan, design, finance, lease, acquire, install, construct, or expand. S. 255.065(1)(b),
F.S. “Operate” means to finance, maintain, improve, equip, modify, or repair. S. 255.065(1)(f), F.S.
7
“Qualifying project” means a facility or project that serves a public purpose, including, but not limited to, any ferry or mass transit
facility, vehicle parking facility, airport or seaport facility, rail facility or project, fuel supply facility, oil or gas pipeline, medical or nursing
care facility, recreational facility, sporting or cultural facility, or educational facility or other building or facility that is used or will be used
by a public educational institution, or any other public facility or infrastructure that is used or will be used by the public at large or in
support of an accepted public purpose or activity; an improvement, including equipment, of a building that will be principally used by a
public entity or the public at large or that supports a service delivery system in the public sector; a water, wastewater, or surface water
management facility or other related infrastructure; or notwithstanding any provision of this section, for projects that involve a facility
owned or operated by the governing board of a county, district, or municipal hospital or health care system, or projects that involve a
facility owned or operated by a municipal electric utility, only those projects that the governing board designates as qualifying projects
pursuant to this section. S. 255.065(1)(i), F.S.
8
“Proposal” means a plan for a qualifying project with detail beyond a conceptual level for which terms such as fixing costs, payment
schedules, financing, deliverables, and project schedule are defined. S. 255.065(1)(h), F.S.
9
S. 255.065(3)(a), F.S. STORAGE NAME: h0781.CRG PAGE: 3
DATE: 2/1/2024
An unsolicited proposal from a private entity for approval of a qualifying project must be accompanied
by the following material and information, unless waived by the RPE:
A comprehensive description of the qualifying project;
A detailed account of the method proposed by the private entity to secure the necessary
property interests required for the qualifying project;
A description of the private entity’s general plans for financing the qualifying project;
The name and address of a designated contact person who can provide additional information
about the proposal;
The proposed user fees,
10
lease payments,
11
or other service payments throughout the term of
the comprehensive agreement, along with the methodology for and circumstances allowing
adjustments to these payments over time; and
Any additional material or information reasonably requested by the RPE.
12
If the RPE intends to execute a comprehensive agreement for a project arising from an unsolicited
proposal, the public entity must publish notice in the Florida Administrative Register (FAR) and a
newspaper of general circulation and mail a copy of the notice to each local government in the affected
area.
13
The notice must be published at least once a week for two weeks stating that the public entity
has received a proposal and will accept other proposals for the same project. The specific timeframe for
accepting proposals varies for each project based upon the complexity of the project and the public
benefit derived from allowing a longer or shorter submission period. However, the duration for
accepting additional proposals must range from a minimum of 21 days to a maximum of 120 days,
unless an alternative timeframe that more adequately suits the needs of the qualifying project is
approved by a majority vote of the RPE’s governing body.
14
Project Qualification and Approval
For an unsolicited proposal, after the public notification period has expired the RPE ranks the proposals
received in order of preference. The RPE may then begin negotiations for a comprehensive agreement
with the highest-ranked firm. If the negotiation outcome is unsatisfactory, the RPE may terminate
negotiations and engage with each subsequent-ranked firm in order of preference. The RPE may reject
all proposals at any point in the process until an agreement is reached.
15
Before approving a comprehensive agreement, the RPE must determine that the proposed project:
Is in the public’s best interest;
Is for a facility owned by the RPE or for which ownership will be conveyed to the RPE;
Has adequate safeguards to prevent additional costs or service disruptions for the public in case
of material default
16
or cancellation of the comprehensive agreement by the RPE;
Includes measures to allow the RPE or the private entity to add capacity to the proposed project
or other facilities serving similar predominantly public purposes;
Will be owned by the RPE upon completion, expiration, or termination of the comprehensive
agreement and upon payment of the financed amounts.
17
10
“Fees” means charges imposed by the private entity of a qualifying project for use of all or a portion of such qualifying project
pursuant to a comprehensive agreement. S. 255.065(1)(c), F.S.
11
“Lease payment” means any form of payment, including a land lease, by a public entity to the private entity of a qualifying project for
the use of the project. S. 255.065(1)(d), F.S.
12
S. 255.065(4), F.S. Any pricing or financial terms included in an unsolicited proposal must be specific as to when the pricing or terms
expire.
13
“Affected local jurisdiction” means a county, municipality, or special district in which all or a portion of a qualifying project is located.
S. 255.065(1)(a), F.S.
14
S. 255.065(3)(b), F.S.
15
S. 255.065(5)(c), F.S.
16
“Material default” means a nonperformance of its duties by the private entity of a qualifying project which jeopardizes adequate
service to the public from the project. S. 255.065(1)(e), F.S.
17
S. 255.065(3)(d), F.S. STORAGE NAME: h0781.CRG PAGE: 4
DATE: 2/1/2024
Comprehensive Agreement
The RPE and the private entity must enter into a comprehensive agreement before developing or
operating a qualifying project. The comprehensive agreement must provide for:
Delivery of performance and payment bonds, letters of credit, or other security related to the
qualifying project’s development or operation;
Review of the qualifying project design by the RPE. This does not require the private entity to
complete the project’s design before executing the comprehensive agreement;
Inspection of the qualifying project by the RPE;
Maintaining a public liability insurance policy, a copy of which together with proofs of coverage
are filed with the RPE, or satisfactory proof of self-insurance;
Monitoring the maintenance practices of the private entity by the RPE to ensure proper upkeep
of the qualifying project;
Periodic filing of financial statements pertaining to the qualified project by the private entity;
Procedures governing the rights and responsibilities of both parties in the event of a termination
of the comprehensive agreement or a material default by the private entity;
User fees, lease payments, or service payments that do not discourage use of the project, as
may be established in the agreement; and
Duties of the private entity, including the terms and conditions that the RPE determines serve
the public purpose of the qualifying project.
18
Effect of the Bill
The bill authorizes an RPE to proceed with an unsolicited proposal for a qualifying project without
engaging in a public bidding process. Accordingly, the RPE will no longer be required to provide notice
of accepting additional bids or to rank received proposals in order of preference. However, an RPE may
only abstain from the public bidding process if the RPE holds a duly noticed public meeting at which the
proposal is presented, affected public entities and members of the public are able to provide comment,
and the RPE then conducts a second duly noticed public hearing at which the RPE determines that the
proposal is in the public’s interest. In making the public interest determination, the RPE must consider
all of the following factors:
The benefits to the public;
The financial structure of and the economic efficiencies achieved by the proposal;
The qualifications and experience of the private entity that submitted the proposal and such
entity’s ability to perform the project;
The project’s compatibility with regional infrastructure plans; and
Public comments submitted at the meeting. The RPE must provide a statement that explains
why the proposal should proceed and addresses such comments.
The bill provides that an RPE is authorized, but no longer required, to publish notice in the FAR and a
newspaper of general circulation, and mail a copy of the notice to each local government in the affected
area, of receiving an unsolicited proposal if an RPE intends to execute a comprehensive agreement for
a project arising from an unsolicited proposal. If the RPE decides to proceed with an unsolicited
proposal without engaging in a public bidding process, the RPE must publish in the FAR for at least 7
days a report that provides the public interest determination, includes the factors considered in making
such public interest determination, and the RPE’s findings based on each considered factor.
The bill amends the comprehensive agreement approval process. An RPE no longer will be required to
determine that an unsolicited proposed project will be owned by the RPE upon completion, expiration,
or termination of the comprehensive agreement and upon payment of the amounts financed. However,
if ownership will not be conveyed to the RPE within 10 years after the initial public operation begins, the
public benefits apart from ownership must be identified and stated by the RPE. In addition, an RPE will
only be required to determine a proposed project is in the public’s best interest if the proposal was
solicited.
18
S. 255.065(7)(a), F.S. STORAGE NAME: h0781.CRG PAGE: 5
DATE: 2/1/2024
B. SECTION DIRECTORY:
Section 1 amends s. 255.065, F.S., relating to public-private partnerships.
Section 2 provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill authorizes RPEs to proceed with an unsolicited proposal for a qualifying project without
engaging in a public bidding process if certain conditions are met. Accordingly, private entities may
experience less competition when contracting with RPEs through such means resulting in more
economically attractive contracts for the private entities. The financial impact to the private sector is
indeterminate at this time.
D. FISCAL COMMENTS:
The bill authorizes RPEs to proceed with an unsolicited proposal for a qualifying project without
engaging in a public bidding process if certain conditions are met. Accordingly, private entities may
experience less competition when contracting with RPEs through such means resulting in contracts
more economically attractive for the private entities but possibly less advantageous to the taxpayers.
Such costs may be offset, at least in part, by reducing the workload expenditures associated with the
public bidding process. The fiscal impact to the state and local governments is indeterminate at this
time.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY: STORAGE NAME: h0781.CRG PAGE: 6
DATE: 2/1/2024
The bill neither authorizes nor requires additional executive branch rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On February 1, 2024, the Constitutional Rights, Rule of Law & Government Operations Subcommittee
adopted a proposed committee substitute (PCS) and reported the bill favorably as a committee substitute.
The PCS required an RPE wishing to proceed with an unsolicited proposal without engaging in the public
bidding process to hold two duly noticed public meetings instead of one that meet certain requirements. If
the RPE decides to proceed with an unsolicited proposal without engaging in public bidding, the PCS
requires the RPE to publish in the FAR a report including the necessary public interest determination, the
factors considered in making that determination, and the RPE’s findings base on each considered factor.
This analysis is drafted to the committee substitute as approved by the Constitutional Rights, Rule of Law &
Government Operations Subcommittee.