Code of Maryland Regulations
Title 11 - DEPARTMENT OF TRANSPORTATION
Subtitle 07 - MARYLAND TRANSPORTATION AUTHORITY
Chapter 11.07.06 - Transportation Public-Private Partnership Program
Section 11.07.06.08 - Solicitation Process
Universal Citation: MD Code Reg 11.07.06.08
Current through Register Vol. 51, No. 6, March 22, 2024
A. General.
(1) The solicitation process for public-private partnerships shall be competitive, regardless of whether the public-private partnership concept originated internally within the Authority or from an unsolicited proposal.
(2) For each private entity that responds to a public notice of solicitation, the Authority shall make a responsibility determination in accordance with State Finance and Procurement, § 10A -202(c), Annotated Code of Maryland.
B. Solicitations Relating to Concepts Described in Unsolicited Proposals.
(1) The competitive solicitation process shall protect any proprietary information that is identified as such and included in the unsolicited proposal in accordance with State Finance and Procurement, § 10A -301(d)(2), Annotated Code of Maryland.
(2) An individual or firm that has submitted an unsolicited proposal may participate in any subsequent competitive solicitation process, in accordance with State Finance and Procurement, § 10A -301(e), Annotated Code of Maryland.
(3) The private entity shall be responsive to all components of the subsequent competitive solicitation process even if certain information requested by the subsequent competitive solicitation process has already been submitted as part of the private entity's unsolicited proposal.
(4) The Authority reserves the right to issue a public notice of solicitation relating to a concept described in an unsolicited proposal after the rejection or termination of the evaluation of the unsolicited proposal or any competing proposals.
C. Multistep Solicitation Process.
(1) The Authority may use a multistep solicitation process that includes, but is not limited to, some or all of the following steps:
(a) Issuance of a request for qualifications;
(b) Preproposal conference;
(c) Issuance of a draft request for proposals;
(d) Industry review meetings; and
(e) Issuance of a final request for proposals.
(2) The determination to use some or all of the solicitation steps will be on a case-by-case basis.
(3) The Authority may include additional solicitation steps on a case-by-case basis as set forth in the public notice of solicitation.
(4) Request for Qualifications.
(a) The purpose of a request for qualifications is to:
(i) Identify private entities that qualify as participants in the solicitation process; and
(ii) Identify a shortlist of the highest qualified candidates for continuing in the solicitation process, which are the shortlisted private entities.
(b) Based on the responses to the request for qualifications, the Authority may:
(i) Identify one or more private entities as qualified; and
(ii) Develop a shortlist of one or more of the highest qualified candidates for continuing in the solicitation process, which are the shortlisted private entities.
(c) Only candidates that have been selected to continue in the solicitation process as shortlisted private entities are eligible to:
(i) Participate in industry review meetings;
(ii) Receive drafts of the request for proposals;
(iii) Submit comments on drafts of the request for proposals;
(iv) Receive the final request for proposals; and
(v) Submit a written proposal in response to the final request for proposals.
(5) Preproposal Conference.
(a) The purpose of a preproposal conference is to facilitate better understanding of solicitation requirements and processes.
(b) A preproposal conference may be scheduled by the Authority after the initial public notice of solicitation for a public-private partnership.
(c) Preproposal conferences are open to all interested private entities.
(6) Draft Request for Proposals.
(a) As part of a multistep solicitation process, the Authority may issue one or more draft requests for proposals to shortlisted private entities.
(b) Draft requests for proposals may include, but are not limited to:
(i) Instructions to private entities for responding to the request for proposals;
(ii) Technical provisions;
(iii) Scope of work; and
(iv) Public-private partnership agreement key terms and components.
(c) Only shortlisted private entities may submit written or verbal comments and questions concerning the draft request for proposals to the Authority to the extent permitted by the solicitation process.
(d) The Authority may use comments and questions from shortlisted private entities for subsequent revisions to the draft request for proposals.
(7) Industry Review Meetings.
(a) The Authority may conduct industry review meetings as part of a multistep solicitation process.
(b) The purpose of industry review meetings is to:
(i) Obtain comments and make revisions to the draft request for proposals;
(ii) Obtain the best value for the State;
(iii) Facilitate the full understanding regarding the requirements of the State for the public-private partnership concept;
(iv) Facilitate the full understanding of the contents of the proposals required to be submitted by shortlisted private entities; and
(v) Finalize the requirements for the request for proposals.
(c) Agreement negotiations may not be conducted during industry review meetings.
(d) Industry review meetings are restricted to candidates that have been selected to continue in the solicitation process as shortlisted private entities.
(e) Industry review meetings may be:
(i) Joint workshops with all shortlisted private entities invited to participate; or
(ii) One-on-one meetings between the Authority and individual shortlisted private entities.
(f) The Authority may use comments and questions obtained from shortlisted private entities through industry review meetings for subsequent revisions to the draft request for proposals.
(8) Final Request for Proposals.
(a) In a solicitation process involving a request for qualifications phase, a final request for proposals shall be issued to shortlisted private entities selected to continue in the solicitation process.
(b) The contents of the final request for proposals may be based on information gathered during earlier solicitation phases, including but not limited to:
(i) Preproposal conference;
(ii) Request for qualifications; and
(iii) Industry review meetings.
(c) The Authority may issue a final request for proposals without previously:
(i) Issuing a request for qualifications;
(ii) Issuing a draft request for proposals; or
(iii) Conducting industry review meetings.
(9) Information Availability During Solicitation.
(a) The Authority may make relevant technical and financial information available to private entities through an electronic data room.
(b) The Authority may respond to relevant additional information requests by private entities in support of due diligence reviews, including requests for site inspections.
(c) Information or site access provided to individual private entities pursuant to an additional information request shall also be made available to all other interested private entities if a shortlist of qualified private entities has not yet been established.
(d) Information or site access provided to individual shortlisted private entities pursuant to an additional information request shall also be made available to all other shortlisted private entities if a shortlist of qualified private entities has been established.
(e) Private entities may be required to sign confidentiality agreements prior to release of information deemed confidential.
D. Reimbursement.
(1) The Authority may reimburse a private entity in accordance with State Finance and Procurement Article, § 10A -202(f), Annotated Code of Maryland.
(2) If the Authority elects to reimburse a private entity, the specific terms, conditions, method, and timing for reimbursing a private entity will be described in the public notice of solicitation associated with the specific public-private partnership.
(3) The reimbursement terms and conditions may include the requirement for the private entity to execute a stipend agreement and to transfer rights to use the work product produced by the private entity during the solicitation process to the Authority as a condition to receiving reimbursement.
(4) The Authority will only consider reimbursement for shortlisted private entities.
(5) Maximum Reimbursement Amount.
(a) The Authority may not provide a reimbursement in excess of $3,000,000 to an individual private entity for costs incurred in response to the solicitation of a public-private partnership.
(b) The Authority may establish a reimbursement less than the maximum prescribed in §D(5)(a) of this regulation on a case-by-case basis.
(6) Except as set forth in the solicitation documents, should the solicitation process or negotiations be suspended, discontinued, or terminated, the private entity shall have no rights of recourse, including reimbursement of the private entity's unsolicited proposal review fees or costs associated, directly or indirectly, with the solicited or unsolicited proposal developments.
E. Reservation of Rights.
(1) The Authority reserves all rights available by law and in equity in its public-private partnership solicitation process, including without limitation the right to:
(a) Reject any and all submittals, responses, qualifications, and proposals, whether solicited or unsolicited, at any time or for any reason;
(b) Issue addenda, supplements, and modifications to a public notice of solicitation;
(c) Cancel a solicitation in whole or in part at any time prior to the execution of a public-private partnership agreement, subject to any agreed upon compensation to proposers set forth in the solicitation documents or pursuant to State Finance and Procurement Article, § 10A -202(f), Annotated Code of Maryland;
(d) Issue a new public notice of solicitation after withdrawal of a public notice of solicitation;
(e) Establish protocols for private entities to remedy minor deficiencies in responses to requests for qualifications or proposals within a specified period of time;
(f) Disqualify any private entity at any point during a solicitation process for violating any rules or requirements of the solicitation set forth in the public notice of solicitation, in any communication from the Authority, or as otherwise set forth by applicable law;
(g) Determine whether to pursue federal credit assistance on behalf of the private entities;
(h) Publically disclose information received during the solicitation process as governed by law and by the public notice of solicitation, pursuant to State Finance and Procurement, § 10A -203(b), Annotated Code of Maryland;
(i) Exercise any other rights reserved or afforded to the Authority under applicable law and the public notice of solicitation; and
(j) Disqualify any private entity for any conflict of interest or other conduct manifesting a lack of responsibility.
(2) Additional reservations of the Authority's rights may be included in the solicitation documents for a public-private partnership.
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