Utah Administrative Code

The Utah Administrative Code is the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules (see Subsection 63G-3-102(5); see also Sections 63G-3-701 and 702).

NOTE: For a list of rules that have been made effective since October 1, 2019, please see the codification segue page.

NOTE TO RULEFILING AGENCIES: Use the RTF version for submitting rule changes.


R926. Transportation, Program Development.

Rule R926-16. Unsolicited Proposals for Transportation Infrastructure Public-Private Partnerships.

As in effect on October 1, 2019

Table of Contents

R926-16-1. Purpose and Authority.

(1) Purpose. This rule provides a procedure for submitting, screening, evaluating, and implementing unsolicited proposals to form Transportation Infrastructure public-private partnerships (TIPPPs); soliciting proposals to compete with an unsolicited proposal based on concepts within the unsolicited proposal; and excluding unsolicited proposals covered specifically by other rules or that are the responsibility of other state entities.

(2) Authority. The provisions of this rule are authorized by Utah Code Sections 72-1-201(1)(h) and 63G-6a-712.

R926-16-2. Definitions.

Except as otherwise stated in this rule, terms used in this rule are as defined in the applicable Statutes. The following additional terms are defined for this rule:

(1) "Days" means calendar days.

(2) The "Department" means the Department of Transportation.

(3) "Proposer" means private entities that submit letters of interest, qualifications, or proposals under a solicitation for the purposes of entering into a public-private partnership agreement with the Department, and may include a person or persons, firms, partnerships or companies or any legal combination or consortium thereof.

(4) "Submitter" means a private entity that submits an unsolicited proposal that complies with the requirements of Utah Code Section 63G-6a-712.

(5) "Transportation Infrastructure" means any infrastructure element that is associated with the state transportation system and is the responsibility of the Department.

R926-16-3. Unsolicited Proposal Requirements.

(1) The Department is not required to accept, review, or evaluate an unsolicited proposal.

(2) Should the Department accept delivery of an unsolicited proposal it will provide an acknowledgement of receipt to the submitter, but has no obligation to consider, evaluate, or advance an unsolicited proposal.

(3) Unsolicited Proposals for TIPPPs must be submitted to the Department using the system the Department has established to accept solicited proposals. An unsolicited proposal submittal must, at a minimum, include:

(a) a statement establishing the period during which the unsolicited proposal will remain valid, which may be not less than 12 months following initial delivery. A renewal statement may be required as determined solely by the Department;

(b) information required for unsolicited proposals set forth in Utah Code Section 63G-6a-712;

(c) a map indicating the location of the proposed facility, when applicable;

(d) a description of the organizations representing the submitter and the organizations who would develop, finance, construct, operate and maintain the facility;

(e) a description of the submitter's plan for developing, financing, constructing, operating, maintaining, or any combination of these elements, including identification of any revenue needed to support the project and proposed debt or equity investment proposed by the submitter;

(f) a description of how the unsolicited proposal is consistent with the goals of the Department and addresses a demonstrated need for the State;

(g) an estimate of the amount of funding, if any, to be provided by the State;

(h) a list of the major permits and approvals required by local, state, and federal agencies to develop or operate a project or facility resulting from an unsolicited proposal along with a projected schedule for obtaining the permits and approvals;

(i) a statement acknowledging that the Department has no obligation to advance or compensate a submitter for any environmental studies needed, including but not limited to NEPA, and other work associated with an unsolicited proposal;

(j) a description of the types of public utility facilities, if any, that may be impacted by a project originating from the unsolicited proposal and a statement of the plans to accommodate the impact;

(k) identification of any elements that are being claimed as trade secrets or confidential that meet the requirements of Utah Code Section 63G-2-309(1)(a)(i), together with justification of the same; and

(l) any additional information the Department determines is necessary to evaluate an unsolicited proposal. The submitter will be notified by the Department of any such additional information needed.

R926-16-4. Unsolicited Proposal Initial Threshold Review, Stage One -- Screening, and Stage Two -- Detailed Evaluation.

(1) Evaluation. The Department may appoint an individual or an evaluation committee, as it deems appropriate and after any required fee is paid, to conduct reviews of unsolicited proposals to determine whether to request competing proposals and qualifications, request additional information to facilitate further evaluation, or reject the unsolicited proposal.

(2)(a) Review Procedure. The review procedure for unsolicited proposals includes the initial threshold review followed by two additional stages of evaluation, Stage One -- Screening, and Stage Two -- Detailed Evaluation.

(b) The Department will make the decision to review or reject an unsolicited proposal and decisions regarding proceeding through the review procedure unilaterally, however, the Department will consult with the submitter prior to deciding to reject a proposal or move to the next stage in the review procedure.

(c) The Department will decide to reject a proposal or continue to the next stage in the review procedure within a reasonable time, but not more than 60 days after the date the proposal is received or the day an evaluation stage begins.

(d) The Department and the submitter may agree to extend a review period beyond 60 days after a consultation.

(e) The Department and the submitter must cooperate and proceed through the review procedure as expeditiously as practicable.

(3) Initial Threshold Review. The initial threshold review will consider whether the unsolicited proposal meets the minimum statutory and regulatory requirements, includes the required minimum content, and satisfies the definition of an unsolicited proposal. If the Department determines it will consider the unsolicited proposal further following the initial threshold review, the further review will be conducted in two stages, Stage One -- Screening, and Stage Two -- Detailed Evaluation.

(4) Stage One -- Screening. The Stage One -- Screening will be a summary review to determine whether the unsolicited proposal merits proceeding to Stage Two -- Detailed Evaluation.

(a) The Stage One -- Screening shall determine if the unsolicited proposal sufficiently addresses the following criteria:

(i) the proposal offers direct or anticipated benefits to the State;

(ii) is consistent with the Department's objectives and goals;

(iii) satisfies a need for the State that can be reasonably accommodated in annual long-term capital and operating budgets without displacing other planned expenditures, and without placing other committed projects at risk;

(iv) is not substantially duplicative of other projects that have been fully funded by the State, the Department, or any other public entity as of the date of the unsolicited proposal;

(v) would materially advance or accelerate the implementation of projects identified on the Statewide Transportation Improvement Program, Statewide Long-Range Transportation Plan or other strategic plan maintained by the Department;

(vi) is a project that advances the goals or objectives of a project identified in the Statewide Long-Range Transportation Plan;

(vii) offers goods or services that the Department may not have intended to procure or provide through the normal contract process;

(viii) is within the Department's jurisdiction and authority; and

(ix) has other benefits specific to the unsolicited proposal.

(b) The Department may reject proposals that do not meet the Stage One -- Screening criteria or generally fail to meet the minimum requirements established under statute and this rule or that the Department otherwise determines do not merit further review.

(c) The Department will complete the Stage One -- Screening and notify the submitter of its conclusions as follows:

(i) the unsolicited proposal fails to meet Stage One screening requirements, and in the sole discretion of the Department, it cannot be revised so that compliance is possible, or

(ii) further information is needed before the Department can determine whether to proceed with Stage Two -- Detailed Evaluation, or

(iii) the unsolicited proposal will be subject to Stage Two -- Detailed Evaluation, subject to the satisfactory receipt by the Department of additional information and receipt of the evaluation fee described in R926-16-7.

(5) Stage Two -- Detailed Evaluation. The purpose of the Stage Two -- Detailed Evaluation of the unsolicited proposal is to allow the Department to determine whether to issue a request for competing proposals and qualifications related to the unsolicited proposal.

(a) The Department will begin the Stage Two -- Detailed Evaluation upon the later of (i) the date of the receipt of any additional detailed information requested to supplement the unsolicited proposal, or (ii) the date of receipt of the evaluation fee described in R926-16-7.

(b) Where an unsolicited proposal is selected to proceed to Stage Two -- Detailed Evaluation, the Department may request from the submitter more detailed information regarding the unsolicited proposal. Additional detailed information requested for the unsolicited proposal may include:

(i) the types of support required from the State including facilities, equipment, property and personnel;

(ii) a sufficiently detailed description of the scope of work and commercial terms the submitter anticipates in the public-private partnership to allow the Department to assess the value provided;

(iii) a cashflow analysis showing capital, maintenance and operating costs and revenues;

(iv) conceptual finance plan; and

(v) form of a TIPPP (e.g., availability payment) and a schedule for implementation showing the dates for property or services to be provided by the State.

(c) The submitter must provide information to assist the Department to incorporate any concepts the submitter considers to be proprietary, confidential, or trade secret within the solicited procurement in a manner that will be acceptable to the submitter.

(d) The Stage Two -- Detailed Evaluation will consider the overall costs for delivery of the project over the term of the proposed agreement described in the unsolicited proposal and the proposed approached to financing and funding the project described in the unsolicited proposal, including potential revenue streams. Additionally, the Stage Two -- Detailed Evaluation will consider the potential risks and reasonableness of assumptions associated with implementing the proposal and modifications to project scope, risk allocation and commercial terms that would need to be incorporated within a solicited proposal.

(e) The Department will complete the Stage Two -- Detailed Evaluation, make its decision, and notify the submitter as follows:

(i) the unsolicited proposal (or certain concepts therein) is suitable to form the basis of a competitive solicitation. The Department intends to provide the submitter with the opportunity to discuss a potential solicitation. Subject to satisfactory conclusion of this discussion, the submitter will be waived from certain fees and requirements with respect to its response to a forthcoming competitive solicitation; or

(ii) the unsolicited proposal is not suitable to form the basis of a competitive solicitation. The Department does not intend to issue a competitive solicitation at this time. The submitter will not be excluded from participating in any future solicitation, and the Department will not waive any fees or requirements in response to a future solicitation.

(6) The Department may, in its sole discretion, adopt or reject concepts contained within an unsolicited proposal.

(7) The Department may, in its sole discretion, make significant modifications to the concepts in an original or updated unsolicited proposal.

(8) The Department will notify the submitter of the original or updated unsolicited proposal of the concepts it intends to adopt within a solicitation and will provide the submitter with a reasonable opportunity to object to the way such concepts are incorporated and to suggest modifications to avoid disclosure of content that the submitter considers proprietary, confidential or trade secret.

R926-16-5. Solicitation of Competing Proposals.

(1) The Department may, at any time, rather than rejecting the unsolicited proposal and terminating the process, elect to issue a request for competing proposals based on the unsolicited proposal, including modifications made consistent with subsection R926-16-4. If the Department issues a request for competing proposals, the submitter will be offered the opportunity to participate in the competition provided the submitter agrees in writing to continue participating throughout the entirety of the competition process. The process for soliciting competing proposals and qualifications must meet all requirements of applicable Utah law, including Utah Code Section 63G-6a-1402 and Sections 63G-6a-701-712.

(2) If the Department elects to move forward and issue a request for competing proposals, the Department will provide public notice of the proposed project according to subsection R926-16-6.

R926-16-6. Public Notice.

(1) Public notice regarding solicitations originating from R926-16-5 must be posted on the Department's website and must also be published in accordance with the requirements of Utah Code Section 63G-6a-112.

(2) Notice of a solicitation will indicate where, when, and how to obtain the solicitation documents, when responses are due and will generally describe the project scope or service desired and may contain other information such as the desired schedule or financial model.

(3) Where the executive director or a deputy director determines appropriate, the Department may require payment of a fee or a deposit for the supplying of the solicitation package.

(4) A copy of the solicitation documents will be made available for public inspection at the Department's primary offices in the Calvin Rampton Building.

R926-16-7. Fees Related to Unsolicited Proposals.

(1) As authorized by 63G-6a-712(5), the Department will assess fees to cover the actual costs of processing, considering, and evaluating unsolicited proposals as follows:

(a) a screening fee for every unsolicited proposal that passes the initial threshold review and enters the Stage One -- Screening process, and

(b) an evaluation fee for every unsolicited proposal that is subject to the Stage Two -- Detailed Evaluation.

(2)(a) The unsolicited proposal must be accompanied by a check for the screening fee, which must be a cashier's, certified, or official check drawn by a federally insured financial institution in the amount of $20,000 for the screening fee associated with the Stage One -- Screening. This check will be returned to the submitter if the unsolicited proposal does not pass the initial threshold review and will be drawn upon no earlier than 30 days after the Department responds to the submitter that it intends to proceed with the Stage One -- Screening.

(b) The Department will assess an evaluation fee for every unsolicited proposal that is subject to the Stage Two -- Detailed Evaluation. Evaluation fees must be paid by a cashier's, certified, or official check drawn by a federally insured financial institution in an initial amount of $20,000 plus .01% of the total estimated cost of design and construction of the project.

(c) The Department will provide the submitter with periodic updates of expenses and will request additional funds to cover the actual costs of processing, considering, and evaluating the unsolicited proposal if additional funds are needed.

(d) The submitter may elect to discontinue its pursuit of the unsolicited proposal at any time and avoid paying the additional funds. No refund will be issued for expenses already incurred.

(3) The executive director or a deputy director may waive or modify the fee structure for an unsolicited proposal, in whole or in part, if he or she determines that the Department's costs have been substantially covered by a portion of the fee or if it is otherwise determined a waiver or modification is reasonable and in the best interests of the State.

(4) When the Department solicits competing proposals, the Department may require each proposer that submits a competing proposal to submit a fee with the competing proposal. The amount of the fee will be identified in the solicitation documents and will not exceed the amount of the evaluation fee for the original unsolicited proposal stated in R926-16-7(2).

(5) The submitter that submitted the original unsolicited proposal triggering the solicitation will be exempt from this fee provided that, in the sole discretion of the Department, the requirements of the solicitation are sufficiently similar to the content of the original unsolicited proposal.

R926-16-8. Predevelopment Agreements.

(1) An unsolicited proposal may be used to establish a predevelopment agreement that may become a TIPPP. The first phase of a predevelopment agreement will result in a determination of feasibility and ultimately result in a project development plan and financing plan.

(2) An unsolicited proposal for the first phase of a predevelopment agreement shall include applicable elements from R926-16-3 and all of the following:

(a) overall approach to the predevelopment agreement process and a demonstration of how the project can be effectively and efficiently developed, financed and completed;

(b) proposed initial scope of work to advance and define a feasible project that can be ultimately scoped, priced and financing secured;

(c) relative responsibilities between the Department and the Proposer during the predevelopment agreement phase;

(d) the payment structure, terms and conditions under which the Proposer will be compensated for undertaking the predevelopment agreement scope of work; and

(e) schedule and milestones applicable to the predevelopment agreement scope activities.

(3) The subsequent phase or phases may be for all or a portion of the remaining services necessary to deliver the proposed project and may include, design services, construction services, operation or maintenance services, traffic, ridership and revenue estimates, financing and toll or user fee collection services, or any other requirement the Department deems necessary. Each subsequent phase will commence after the preceding phase has been completed.

(4) Award of the first phase will be based on the Department's competitive solicitation in accordance with R926-16-5, subject to R926-16-7.

(5) The entity awarded the first phase may have the first opportunity to submit a proposal for the subsequent phase or phases, as set forth in the predevelopment agreement. The entity awarded the first phase must provide all supporting documentation used to determine the scope, schedule, and cost in its proposal for each subsequent phase to the Department for review, along with any other information and requirements set forth in the predevelopment agreement.

(6) The Department may accept or reject the proposal. If the Department rejects the proposal, the Department may provide a counteroffer and/or negotiate with the entity awarded the first or prior phase, or in lieu of providing a counteroffer or if the negotiations are unsuccessful, choose to solicit competitive proposals for the subsequent phase or phases.

R926-16-9. Rights Related to Proposals; Release of Rights and Indemnification.

(1) A submitter of an unsolicited proposal will not obtain any claim or have any right or expectation to use any route, corridor, rights of way, public property or public facility by virtue of having submitted a proposal that proposes to use such route, corridor, rights of way, public property or public facility or otherwise, involves or affects such. By submitting an unsolicited proposal, a submitter thereby waives and relinquishes any claim, right, or expectation to occupy, use, profit from, or otherwise exercise any prerogative with respect to any route, corridor, rights of way, public property or public facility identified in the proposal as being necessary for or part of the proposed project.

(2) By submitting such a proposal, a submitter thereby waives and relinquishes any right, claim, copyright, proprietary interest or other right in any proposed location, site, route, corridor, rights of way, alignment, or transportation mode or configuration identified in the proposal as being involved in or related to the proposed project, and submitter must include in the proposal an indemnity that holds the state harmless against any such claim made by any entity that is a member of the proposer's proposal team, including their agents, employees and assigns.

(3) The waiver and release of rights in this section do not apply to a submitter's rights in any documents, designs and other information and records that are otherwise classified as protected records under Utah Code Section 63G-2-305 or 63G-2-309.

R926-16-10. Participation of Public Entities.

In order to ensure that the procurement process for TIPPPs originating from an unsolicited proposal remains fair and competitive, public entities will not be permitted to submit proposals or to participate as a member of proposer teams with respect to solicitations issued by the Department under this rule R926-16. Furthermore, so long as an active solicitation is outstanding for a transportation infrastructure public-private partnership agreement, the Department will not separately negotiate with a public entity for the project that is the subject of that solicitation.

KEY

transportation, highways, public-private partnerships, unsolicited proposals

Date of Enactment or Last Substantive Amendment

May 8, 2019

Authorizing, Implemented, or Interpreted Law

72-1-201; 63G-6a-712


Additional Information

Contact

For questions regarding the content or application of rules under Title R926, please contact the promulgating agency (Transportation, Program Development). A list of agencies with links to their homepages is available at http://www.utah.gov/government/agencylist.html or from http://www.rules.utah.gov/contact/agencycontacts.htm.