This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0781a.SAC
DATE: 2/19/2024
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 and
others
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 Affairs Committee Villa Williamson
SUMMARY ANALYSIS
Public-private partnerships (P3s) are contractual arrangements between public entities and private sector
entities that facilitate increased private sector involvement in the funding and execution of public building and
infrastructure projects. Current law authorizes a local government, which is referred to as a responsible public
entity (RPE), to receive unsolicited proposals or to solicit proposals for a qualifying P3 project 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 certain notices stating that the RPE has received an unsolicited 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 that 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 Florida
Administrative Register (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 seven days.
The bill no longer requires the RPE to determine that an unsolicited proposed project will be owned by the
RPE. The RPE will only be required to determine the proposed project is in the public’s best interest or will be
conveyed to the RPE upon completion and payment if the proposal was solicited.
The bill may have an indeterminate fiscal impact on local governments. STORAGE NAME: h0781a.SAC PAGE: 2
DATE: 2/19/2024
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 allows responsible public entities (RPEs)
6
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
Current law outlines specific
requirements to which RPEs must adhere, including protocols for reviewing and approving proposals.
8
Procurement Procedures
Current law allows an RPE to receive unsolicited proposals or may solicit proposals for a qualifying P3
project 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. If the RPE opts not to assess the unsolicited
proposal, it must refund the application fee.
9
An unsolicited proposal from a private entity for approval of a qualifying project must be accompanied
by the following materials 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.
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: h0781a.SAC PAGE: 3
DATE: 2/19/2024
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.
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 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 local government in the affected area.
13
The
notice must be published at least once a week for two weeks stating the RPE has received a proposal
and will accept other proposals for the same project. 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
After the public notification period has expired for an unsolicited proposal, 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
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.
Maintenance of 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.
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: h0781a.SAC PAGE: 4
DATE: 2/19/2024
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.
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.
The RPE then must conduct 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 bill requires the RPE
to 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.
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 authorizes, but no longer requires, an RPE to publish notice of receiving an unsolicited proposal
in the FAR and a newspaper of general circulation, and mail a copy of the notice to each 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 a public bidding process, the RPE must publish in the FAR for at least seven 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. Such process no longer requires an
RPE 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 the public
interest determination.
The bill only requires an RPE to determine a proposed project is in the public’s best interest, or will be
conveyed to the RPE upon completion and payment of amounts financed, if the proposal was solicited.
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:
18
S. 255.065(7)(a), F.S. STORAGE NAME: h0781a.SAC PAGE: 5
DATE: 2/19/2024
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
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 local governments is indeterminate
at this time.
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:
None.
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:
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 STORAGE NAME: h0781a.SAC PAGE: 6
DATE: 2/19/2024
the RPE decides to proceed with an unsolicited proposal without engaging in public bidding, the PCS
required 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.