Senate Bill 576 on public/private partnership construction was drastically revised, but the core facets of the legislation, opening the door to great public construction opportunities, remains unimpaired. And the bill is gaining momentum as it continues to pass through legislative committees.
The changes in the new bill from the original version include:
1) public entities may contract for 3P projects only with legislative approval or if consistent with local government appropriation process as evidenced by approval of the project in the public entity’s work program;
2) detailed instructions on public notice, opportunity for competing proposals to be submitted on any 3P project, and the manner of selecting among competing proposals (traditional procurement requirements and bid protests don’t apply here);
3) prohibition against the use of state funds unless the project is for a facility owned by the public entity or a facility whose ownership will be conveyed to the public entity;
4) the private entity must provide an investment-grade technical study prepared by a nationally recognized expert detailing the finance plan, including required payment & performance bonds plus, in appropriate circumstances, letters of credit and guarantees from parent companies, lenders and equity partners;
5) the requirement that the 3P agreement ensure a negotiated portion of revenues from fee-generating projects are returned to the public entity over the life of the agreement; and
6) specific provisions addressing the financing of the job, such as the conditions for loans from the public entity for construction, suggestions for innovative finance techniques, and the prohibition against indemnity agreements from the public entity or pledging of security interests in the public entity’s assets.
Sometimes the law isn't as you would expect. In fact, sometimes the law can dictate a result that you think is unfair. Therefore, it is always best to have someone research what the law is, instead of assuming it says what you think would be fair. As an example, some might find the law regarding the recoverability of home office overhead damages counterintuitive....