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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
SENATE BILL 1692 By: Bergstrom
AS INTRODUCED
An Act relating to state contracts; creati ng the
Establishing Public-Private Partnership Office Act;
providing definitions; establishing Office of Public-
Private Partnerships; providing for appointment of
Director by Governor; authoriz ing the office to
identify and approve proposals; authorizing Director
to work with state agencies to provide public
services; directing the Director to p rovide annual
report to Legislature and post report online;
allowing for the submission of proposals by
individuals or state agencies; requiring the office
to conduct a study on potential projects and publi c
services; providing factors to consider in study ;
requiring publication of results of the study online;
requiring notice of intent by the office to enter
into a contract; requiring the office to prepare a
request for proposals; authorizing office to evaluate
proposals; authorizing Director to n egotiate contract
with proposer; providing provisions upon failure to
negotiate contract; providing exemption f rom taxes or
assessments during contract period; promulgation of
rules; providing exemption of office fr om the Central
Purchasing Act; providing for codif ication; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 131.1 of Title 74, unless there
is created a duplication in numbering, reads as follows:
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This act shall be known and may be cited as the “Establishing
Public-Private Partnership Office Act”.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 131.2 of Title 74, unless there
is created a duplication in numbering, reads as follows:
As used in this act:
1. “Contract” means any purchase and sal e agreement, lease,
service agreement, franchise agreement, concession agr eement, or
other written agreement entered in to under this act with respect to
the provision of a public service and any project related thereto;
2. “Director” means the Director of the Office of Public -
Private Partnerships;
3. “Improvement” means any construction, reconstruction,
rehabilitation, renovation, installation, improvement, en largement,
or extension of property or improvements to property;
4. “Office” means the Office of Public-Private Partnerships;
5. “Private sector entity” means any corporation, whether for
profit or not for profit, limited liability company, partnership,
limited liability partnership, sole proprietorship, business trust,
joint venture, or other entity, but shall not mean the state, a
political subdivision of this state, or a public or g overnmental
entity, agency, or instrumentality of this state ;
6. “Project” means real or personal property, or both, and
improvements thereto or in support thereof including undivided and
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other interests therein, used for or in the p rovision of a public
service;
7. “Proposer” means a private sector entity, a local or
regional public entity or agency, or any group or combination
thereof, submitting qualifica tions or a proposal for a public-
private partnership contract;
8. “Public service” means a service provided for a public
purpose of the responsible state agency and identified in
procurement documents under this act; and
9. “Responsible state agency ” means the agency, department,
commission, authority, or other instrumentality of the state
responsible for the provision of the public service , which is or is
proposed to be the subject of a contract.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as S ection 131.3 of Title 74, unless there
is created a duplication in numbering, reads as follows:
A. There shall be established an Office of Public-Private
Partnerships reporting to the Governor and independent of other
agencies and departments of this stat e. The Office shall be headed
by a Director, appointed by the Governor for a term of five (5)
years, who shall demonstrate knowledge, trainin g, or experience in
one or more of the following a reas:
1. Infrastructure development or operation;
2. Capital markets and finance including municipal finance;
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3. Public-sector planning; or
4. Procurement.
B. The Office shall have the authority to identify potential
public-private partnerships, to approve a short -list of qualified
proposers, to approve requests f or proposals, and to approve
template contracts before they are sent to proposers. The Office
shall have the authority to charge fees for se rvices it shall render
as part of the procedures to establish partner ships in accordance
with this act and to recei ve money on loan to covers its operation
expenses and to accomplish the purposes of this act.
C. The Director and the authorized representat ive of a
responsible state agency may j ointly take action and execute any
contract for the provision of a public se rvice or facility in order
to more efficiently and effectively provide public services
including by generating add itional resources in suppo rt of those
public services and related projects.
D. The Director shall provide to the Legislature and post
online an annual report within six (6) weeks following th e end of
each fiscal year that:
1. Lists those public-private partnerships that:
a. are expected to be soliciting bids within the next
fiscal year,
b. are in progress,
c. were completed during the pr evious fiscal year, or
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d. were removed from consideration during the previous
fiscal year; and
2. Summarizes actions taken by the Office to fulfi ll its duties
pursuant to this section.
SECTION 4. NEW LAW A ne w section of law to be codified
in the Oklahoma Statutes as Section 131.4 of Title 74, unless there
is created a duplication in numbering, reads as follows:
A. Any proposer or responsible state agency may submit to the
Office of Public-Private Partnerships one or more proposals for
partnership projects in connection with any public service. The
Office shall identify potential projects and public services for
which a public-private partnership may be appropriate from those
received from a proposer, a responsible state agency, or those
identified by the Office itself. The Office shal l select such
projects based on the partne rship’s potential to improve public
operational efficiencies, improve environmental performance, promote
public safety, attract private investment in this state and
efficiently allocate risk.
B. After the Office i dentifies a potential partnership for a
public project or public ser vice, the Office shall cond uct a public-
sector comparator stud y of the potential partnership. The Office
shall determine the scope of ea ch public-sector comparator, which
scope shall depend on the type of prop osed partnership and the
nature of the public service under consid eration for the
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partnership. The following issues shall be considered as components
of a public-sector comparator:
1. The definition of the need served by the propose d
partnership;
2. The cost required to meet the public need served by the
public service under traditional procurements or traditional state
agency operations;
3. A comparative analysis of rendering the public service by
allowing the responsible state ag ency to utilize traditional
methods;
4. The financial impact the partnership will have on the
responsible state agency;
5. The impact a partnership would have on job formation,
economic growth, and the co mmunity in which the public service is to
be rendered; and
6. A competitive neutrality adjustment.
C. The Office shall use the results of the publi c sector
comparator analysis to determine which public services and projects
are appropriate for partner ship. The Office shall publish on its
website the analysis for each project to provide a public service
for which a request for qualifications is init iated.
D. The Office shall publi sh notice of the intent to enter into
a contract for a partnership for public service or related project
and shall prepare a request for qualifications for private sector
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entities interested in serving as proposers for the p artnership.
The notice shall notify interested parties of the opportunity to
submit their qualifications for consideration and shall be published
at least thirty (30) days prior to the deadl ine for submitting those
qualifications. The Office also may advertise the information
contained in the notice in appropriate trade journals and otherwise
notify parties believed to be interested in providing the public
service and in any related project.
E. After inviting qualifications, the Office shall evaluate the
qualifications submitted and may hold discussions with proposers to
further explore their qualifications. Following this evaluation,
the Office may determine a list of qualified proposers based on
criteria in the invitation, select and rank no more than four
proposers, and invite only those proposers to submit a proposal.
F. The Office shall prepare a reques t for proposals and an
outline of the proposed par tnership contract. Partnership contracts
may contain the terms and conditions to carry out and eff ect the
purposes of this act including the duration of the contract, rates,
or fees for the public services to be provided or methods or
procedures for the determination of such rates or fees, standards
for the public services to be pr ovided, responsibilities and
standards for operation and maintenance of any related project,
required financial assurances, financial and other data reporting
requirements, bases and procedures for termination of the contract
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and retaking of possession or title to the project, and events of
default and remedies upon default including mandamus, a suit in
equity, an action at law, or any combination of those remedial
actions.
G. After proposals are received, the Office, using the criteria
established in the request for proposals, shall evaluate the
proposals submitted and may hold discussions with prop osers to
further explore their p roposals, the scope and nature of the public
service or services they would provide, the various technical
approaches they may take regarding the p ublic service, and any
related project, price, and other factors that determined best
value.
H. The Director and the authorized representative of the
responsible state agency shall negotiate the contract with the best
value proposer ranked most qualified to provide the public service
at a compensation determined in writing to be fair and reasonable ,
and to purchase, lease, or otherwise take a legal interest in the
project.
1. Upon failure to negotiate a contract with the proposer
ranked most qualified, th e Director shall inform the proposer in
writing of the termination of negotiations and may enter, with the
responsible state agency, into negotiations with the proposer ranked
next most qualified. If negotiations again fail, the same procedure
may be followed with each next most qualified proposer selected and
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ranked, in order of ranking, unt il a contract is neg otiated and
executed.
2. If the Director and the authorized representative of the
responsible state agency fail to negotiate a contract with any o f
the ranked proposers, the Director, in consultation with the
responsible state agency, may terminate the process or select and
rank additional proposers, bas ed on their qualifications or
proposals, and negotiations shall continue as with the proposers
selected and ranked initially unti l a contract is negotiated.
3. The Director and the authorized representative of the
responsible state agency may jointly reject any and all submissions
of qualifications or proposals and may jointly terminate the
procurement process at any point.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 131.5 of Title 74, unless there
is created a duplication in numbering, reads as follows:
The exercise of the powers granted by this act shall be for the
benefit of the people in this state and shall b e liberally construed
to effect the purposes thereof. As the performance of public
services shall constitute the performance of essential government
functions, any project or part thereof owned by the s tate and used
for performing any public service pursuant to a contract entered
into in this act that would be exempt from taxati on or assessments
in the absence of such contract shall remain exempt from taxation
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and assessments levied by the state and i ts subdivisions to the same
extent as if not subject to t hat contract. Any transfer or lease
between a proposer and the state of a project or part thereof, or
item included or to be included in the project, shall be ex empt from
the taxes levied if the state is retainin g ownership of the project
or part thereof that is being transferre d or leased.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 131.6 of Title 74, unless there
is created a duplication in numbering, reads as follows:
The Director of the Office of Public-Private Partnerships, in
consultation with the responsible state agency, may retain or
contract for the services of commercial appraisers, engineers,
investment bankers, financial advisors, accounting experts, and
other consultants, inde pendent contractors o r providers of
professional services as are nec essary in the judgement of the
Director to carry out the powers and duties described in Section 2
of this act including identification of public services and any
related projects to be su bject to invitations f or qualifications or
proposals under this act, the development of those invitations and
related evaluation of those invitations, and nego tiation of any
contract under this act.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 131.7 of Title 74, unless there
is created a duplication in numbering, reads as follows:
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Any contracts the Office of Public-Private Partnerships enters
into with proposers shall not be subject to the Oklahoma Central
Purchasing Act.
SECTION 8. This act shall become effective November 1, 2022.
58-2-3355 MR 1/20/2022 5:44:01 PM