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2006 Georgia Code - 32-2-79

32-2-79. (a) The department may solicit upon prior notice to the Governor, receive, consider, evaluate, and accept an unsolicited or solicited proposal for a public-private initiative only if the proposal complies with all of the requirements of this Code section. (b) The department may consider an unsolicited proposal only if the proposal: (1) Is unique and innovative in comparison with and is not substantially similar to other transportation system projects already in the state transportation improvement program within the department or, if it is similar to a project in the state transportation improvement program, that such project has not been fully funded by the department or any other entity as of the date the proposal is submitted. Unique or innovative features which may be considered by the department in evaluating such a proposal may include but not be limited to unique or innovative financing, construction, design, or other components as compared with other projects or as otherwise defined by department rules or regulations; (2) Is independently originated and developed by the proposer; and (3) Includes or is accompanied by: (A) Such detail and information as the department may require by rule or regulation to assist in its evaluation of the proposal and to determine if the proposal benefits the public. Such information shall include a list of any proprietary information included in the proposal which the proposer considers protected trade secrets or other information exempted from disclosure under Code Section 50-18-70, et seq., except that the information shall also include an executive summary which at a minimum shall summarize the proposed transportation facility or facilities, identify their proposed location, and provide any other additional information that may be required by the rules and regulations of the department. Such executive summary shall be subject to immediate disclosure to other interested competing proposers and the public; (B) An itemized, auditable listing of the costs associated with the development of the proposal; and (C) Such fees as may be required by the rules and regulations of the department for submission of such proposals. (c) Paragraph (1) of subsection (b) of this Code section shall not be deemed to prohibit the department from encouraging the submission of unsolicited or solicited proposals that are well-developed and consistent with the department́s general policy priorities by providing written or oral information to any person regarding the policy priorities or the requirements and procedures for submitting an unsolicited or solicited proposal. (d) If the unsolicited proposal does not comply with the requirements of subsection (b) of this Code section, the department shall return the proposal without further action. In taking such action, the department shall not disclose either the originality of the research or any proprietary information associated with the proposal to any other person or entity. If the unsolicited proposal complies with all the requirements of subsection (b) of this Code section, the department may further evaluate the proposal pursuant to this Code section. (e) Within 30 days of receipt of an unsolicited proposal that meets the requirements of subsection (b) of this Code section, the department shall provide public notice of the proposed project. This notice shall: (1) Be published in a newspaper of general circulation which is a legal organ and upon such electronic website providing for general public access as the department may develop for such purpose or in the same manner as publications providing notice as described in Code Section 32-2-65; (2) Be provided to any person or entity that expresses in writing to the department an interest in the subject matter of the proposal and to any member of the General Assembly whose House or Senate district would be affected by such proposal; (3) Outline the general nature and scope of the unsolicited proposal, including the location of the transportation system project and the work to be performed on the project; and (4) Specify the address to which any comparable proposal must be submitted. (f) Any person or entity who elects to submit a competing proposal for the proposed qualifying project to the department shall submit a written letter of intent to do so by no later than 45 days after the department́s initial publication of the notice accompanied by any fee that the department shall prescribe by guideline, rule, or regulation. Any letter of intent received by the department after the expiration of the 45 day period or without any fee required by the department shall not be valid, and any competing proposal submitted thereafter by a person or entity who has not submitted a timely letter of intent shall not be considered by the department and shall be returned to the person or entity who did not submit a letter of intent by the deadline. For those persons or entities who elect to submit a competing proposal and submit a timely letter of intent with the department, any such competing proposal shall be submitted to the department by no later than 135 days after the department́s initial publication of the notice required by this Code section. Only those competing, compliant proposals submitted by such deadline shall be considered by the department. (g) Upon receipt of a proposal properly submitted in response to the notice described in subsection (e) of this Code section which fully meets the requirements of subsection (b) of this Code section, the department shall: (1) Determine, in its discretion, if any submitted proposal is comparable in nature and scope to the original proposal and whether it warrants further evaluation; (2) Evaluate the original proposal and any comparable proposal and make a recommendation to the Evaluation Committee on whether to move forward with a letter of intent to negotiate; and (3) Conduct good faith discussions and, if necessary, negotiations concerning each qualified proposal. (h) The department shall base its evaluation of the original proposal or comparable proposals on the following factors: (1) Unique and innovative methods, approaches, or concepts demonstrated by the proposal; (2) Scientific, technical, or socioeconomic merits of the proposal; (3) Potential contribution of the proposal to the department́s mission; (4) Capabilities, related experience, facilities, or techniques of the proposer as described in the proposal or unique combinations of these qualities that are integral factors for achieving the proposal objectives; (5) Qualifications, capabilities, and experience of the proposed principal investigator, team leader, or key personnel who are critical in achieving the proposal objectives; and (6) Any other factors appropriate to a particular proposal. (i) Once the department has concluded its evaluation of the unsolicited proposal and any comparable proposals or a solicited proposal where applicable, the department shall transmit its findings and research to the Evaluation Committee for further review. Once the Evaluation Committee has concluded its review and makes its recommendation to the department, the department may execute a letter of intent to negotiate with the entity submitting the most desirable proposal as determined by the department́s evaluation process. At least two weeks prior to approval of any project, the department shall present to the Governor and the House and Senate transportation committees a report with respect to the proposed letter of intent to negotiate. Such letter of intent to negotiate shall indicate the department́s willingness to undertake a public-private initiative if, after public comment: (1) The department determines that the project is financially feasible and in the public interest; and (2) The department and the proposer can arrive at agreeable terms and conditions, including price of the project. (j) The department may execute a letter of intent to negotiate relating to an unsolicited proposal or conforming comparable proposal or a solicited proposal only if: (1) The proposal receives a favorable evaluation by the department and the Evaluation Committee; (2) The department makes a written determination based on facts and circumstances that the proposal is an acceptable basis for an agreement to obtain services from the entity making the proposal; and (3) The specific letter of intent to negotiate is specifically approved by affirmative vote of the State Transportation Board. (k) Once the letter of intent to negotiate is signed by the parties, prior to final contracting for any public-private initiative from the unsolicited or conforming comparable proposal or a solicited proposal, the department: (1) Should provide public notice that the department will receive public comment with respect to such proposal. The notice shall: (A) Be published in a newspaper of general circulation and which is a legal organ, and upon such electronic website providing for general public access as the department may develop for such specific purpose, or in the same manner as publications providing notice as described in Code Section 32-2-65, or both, allowing at least 14 days and no more than 45 days for public comment to be submitted for consideration; (B) Be provided to any person or entity that expresses in writing to the department an interest in the subject matter of the proposal; (C) Outline the general nature and scope of the proposal, including the location of the transportation system project and the work to be performed on the project; and (D) Specify the address to which any public comment or requests for an executive summary must be submitted; and (2) In its discretion, may provide additional opportunity for public comment at a public meeting or meetings. In such event, notice of such meetings shall be provided in the same manner as described in paragraph (1) of this subsection. (l) In taking the actions required by subsections (e) and (k) of this Code section, the department shall not disclose either the originality of the research or any proprietary information associated with the proposal as listed by the proposer required by paragraph (3) of subsection (b) of this Code section. (m) Except as provided under subparagraph (b)(3)(A) of this Code section, the provisions of Code Sections 50-14-1 and 50-18-70 to the contrary notwithstanding, no proposal shall become a 'public record' nor be subject to disclosure as such until the unsolicited proposal, any comparable proposals, or any solicited proposals have been received and any competitive interviews specified in the solicitation process have been completed. At all times thereafter, the department shall not disclose trade secret or proprietary information, or both, specifically designated by the proposer as required by paragraph (3) of subsection (b) of this Code section which meets the definition of a trade secret under Code Section 50-18-70, et seq. Subject to the foregoing, all proposals submitted to the department shall become the property of the department and are subject to Article 4 of Chapter 18 of Title 50. Proposers should familiarize themselves with the provisions of the article to ensure that all documents identified as confidential will not be subject to disclosure under Article 4 of Chapter 18 of Title 50; provided, however, that the department in consultation with the Department of Law shall make the final determination of whether or not the requested materials are exempt from disclosure. In the event that the department elects to disclose the requested material, it shall attempt to provide the proposer advance notice of its intent to disclose. (n) The power of eminent domain shall not be delegated to any private entity under any public-private initiative commenced or proposed pursuant to this chapter. (o) The department or the department́s designee has the authority to make the determination and take the actions required by this Code section. (p) If the department rejects or declines to accept an unsolicited proposal, but within a period of two years following the submission of such proposal the department contracts for a substantially similar project, the department shall reimburse the proposer of the unsolicited proposal for the auditable costs associated with the preparation and development of the proposal upon a request for reimbursement to the department. This provision shall not apply if the department accepts a conforming comparable proposal through the procedures outlined in subsections (f) and (g) of this Code section.

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