Unsolicited Proposals for Public-Private Partnerships
We have previously discussed the State of Florida’s P3 law, which broadly authorizes private firms to submit unsolicited proposals to state and local agencies for a wide variety of public services and facilities. The concept behind an unsolicited proposal is simple enough. The private sector is constantly innovating. As a result, the government may not have enough information to draft a request for proposals and solicit offers for a particular solution. Essentially, the government cannot ask for what it cannot describe. In those situations, the private sector can jumpstart the process by submitting a unsolicited proposal that informs the government of its innovative solution. Ordinarily, if the government likes the new idea, it must then conduct a competitive process that permits other firms to submit alternative proposals.
Every jurisdiction has its own procedures for accepting and processing unsolicited proposals. Although the Florida P3 law provides certain default procedures, individual jurisdictions can also adopt their own, more specific procedures. Miami-Dade County, for example, has recently adopted its own process for accepting unsolicited proposals. Outside of Florida, there is remarkable diversity in how unsolicited proposals are accepted and treated. In some cases, unsolicited proposals are only accepted during certain windows of time and for certain types of projects—essentially, a solicitation of unsolicited proposals. The Pennsylvania Department of Transportation utilizes this type of procedure and recently opened a submission window for unsolicited proposals. And some jurisdictions incentivize the submission of new ideas by giving the unsolicited proposer extra points in the competitive process, a right of first refusal—sometimes called a “Swiss Challenge”, or agreeing to pay the unsolicited proposer its preparation costs if the contract is ultimately awarded to a competitor. Florida does not provide incentives of this type, but Florida does exempt unsolicited proposals from public-records laws to ensure that competitors are not able to steal the innovative idea when preparing their own competing proposals.
When establishing procedures for accepting unsolicited proposals, a government must balance many different public policies. Because there are many different ways to balance those policies, it is unsurprising that procedures vary from one jurisdiction to another. On one hand, unsolicited proposals are often very expensive to produce—for complex projects, the cost can easily exceed one million dollars, and the procedures must take that expense into account. Before undertaking the expense of preparing an unsolicited proposal, a firm will generally want some comfort that the government will actually take the time to review its proposal and that its competitors won’t be able to obtain the benefit of its ideas. On the other hand, the government may wish to limit the resources it must spend reviewing something it did not ask for, and it must also take measures to ensure that it gets the benefit of open competition. Florida currently splits the difference between those competing goals by requiring a competitive process, but protecting the unsolicited proposal from disclosure as a public record. Florida also authorizes the submission of unsolicited proposals for any project at any time, but requires that the proposer pay the government’s review costs. Thus far, that approach has resulted in the submission of several unsolicited proposals throughout the state.