§ 21-307. Same—Unsolicited proposals.
(a)
In general. The City may receive, evaluate and select for negotiations unsolicited proposals from private entities to acquire, construct, improve, renovate, expand, maintain, operate, implement or install a qualifying project or to design or equip projects so constructed, improved, renovated, expanded, maintained, operated, implemented or installed. The City may publicize its needs and may encourage interested parties to submit proposals subject to the terms and conditions of this article and the Public-Private Transportation Act of 1995, codified in Code of Virginia, title 33.2, ch. 18 (Code of Virginia, § 33.2-1800 et seq.), or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Code of Virginia, title 56, ch. 22.1 (Code of Virginia, § 56-575.1 et seq.), as applicable. Any proposal submitted pursuant to this article that is not received in response to an invitation for bids or a request for proposals shall be treated as an unsolicited proposal under this article. Such unsolicited proposals include, but are by no means limited to:
(1)
Proposals received in response to a notice of the prior receipt of another unsolicited proposal as provided for in Subsection (d) of this section; and
(2)
Proposals received in response to publicity by the City concerning particular needs when the City has not issued a corresponding invitation for bids or request for proposals, even if the City otherwise has encouraged the submission of proposals pursuant to this article that address those needs.
(b)
Proposal review fee.
(1)
In general. The City may seek the advice of internal staff or outside advisors or consultants with relevant experience in determining whether to enter into a comprehensive agreement with a private entity as the result of an unsolicited proposal. The City may charge a fee to the private entity submitting any unsolicited proposal or competing unsolicited proposal to cover the costs of processing, reviewing, and evaluating that unsolicited proposal or competing unsolicited proposal submitted under this article and the Public-Private Transportation Act of 1995, codified in Code of Virginia, title 33.2, ch. 18 (Code of Virginia, § 33.2-1800 et seq.), or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Code of Virginia, title 56, ch. 22.1 (Code of Virginia, § 56-575.1 et seq.), including a fee to cover the costs of outside attorneys, consultants and financial advisors.
(2)
Fee to be reasonable. Any fee charged for such review of a proposal shall be reasonable in comparison to the level of expertise required to review the proposal, shall generally be in the amount necessary to cover all of the City's costs and shall not be greater than the direct costs associated with evaluating the proposed qualifying project. Direct costs may include the:
a.
Cost of staff time, including overhead;
b.
Cost of any materials, supplies or other resources; and
c.
Out-of-pocket costs of attorneys, financial advisors, and other advisors or consultants expended by the City, in its sole discretion, to assist in processing, evaluating, reviewing and responding to the proposal.
(3)
Calculation of fee. The City may charge the proposal review fee in two parts. The first part of the proposal review fee shall be in the amount of 2½ percent of the value of the qualifying project under the submitted proposal, except that, notwithstanding the preceding, this initial fee shall be no less than $2,500.00 and no more than $50,000.00, and shall be included by the private entity as part of its submitted proposal. The second part of the proposal review fee shall consist of the remaining direct costs not covered by the first part of the proposal review fee and shall be imposed by the City throughout the processing, review and evaluation of the proposal if and as the City reasonably anticipates incurring costs in excess of the first part of the proposal review fee. The City shall notify the proposer of the amount of such additional direct costs as and when it anticipates incurring such costs. Prompt payment of such costs shall be required before the City will continue to process, review and evaluate the proposal.
(4)
Refund of all or part of fee. The City shall refund all fees submitted by a private entity in connection with an unsolicited proposal if the City decides not to proceed to publication and conceptual-phase review of the unsolicited proposal. The City shall refund any portion of fees paid in excess of its direct costs associated with evaluating a proposal. In the event the City chooses to consider more than one proposal in the detailed phase of review, the City shall not refund the fees paid by an unsuccessful proposer for costs incurred during the detailed phase of review.
(c)
Decision to accept and consider unsolicited proposal. Upon receipt of any unsolicited proposal or group of proposals and payment of any required fee by the proposer or proposers, the City, in its sole discretion, shall determine whether to accept the unsolicited proposal for publication and conceptual-phase consideration. If the City, in its sole discretion, determines not to accept the proposal and proceed to publication and conceptual-phase consideration, it will return the proposal, together with all fees and accompanying documentation, to the proposer. The City may reject or discontinue its evaluation of any proposal at any time. Further, if the City determines that it is in the City's interest to do so with respect to any unsolicited proposal, the City may eliminate review at the conceptual stage and proceed directly to a review at the detailed stage.
(d)
Public notice of receipt of unsolicited proposal.
(1)
If the City chooses to accept an unsolicited proposal for conceptual-phase consideration, it shall post a notice in a public area regularly used by the City for posting of public notices for a period of not less than 45 calendar days. The City shall also publish the same notice in the Virginia Business Opportunities publication and in one or more newspapers or periodicals of general circulation in the City to notify any parties that may be interested in submitting competing unsolicited proposals. In addition, the notice may be advertised in such other publications as the Director may deem advantageous to the City. Such notice shall be so posted and published as to allow for a reasonable period determined by the Director to be appropriate to encourage competition and public-private partnerships pursuant to the goals of this article, such period not to be less than 45 calendar days, during which the City will receive competing proposals pursuant to this article and the Public-Private Transportation Act of 1995, codified in Code of Virginia, title 33.2, ch. 18 (Code of Virginia, § 33.2-1800 et seq.), or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Code of Virginia, title 56, ch. 22.1 (Code of Virginia, § 56-575.1 et seq.), as applicable. The notice shall state that the City:
a.
Has received and accepted an unsolicited proposal under the Public-Private Transportation Act of 1995, codified in Code of Virginia, title 33.2, ch. 18 (Code of Virginia, § 33.2-1800 et seq.), or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Code of Virginia, title 56, ch. 22.1 (Code of Virginia, § 56-575.1 et seq.), as applicable;
b.
Intends to evaluate the proposal;
c.
May negotiate a comprehensive agreement with the proposer based on the proposal; and
d.
Will accept for simultaneous consideration any competing proposals that comply with this article and the Public-Private Transportation Act of 1995, codified in Code of Virginia, title 33.2, ch. 18 (Code of Virginia, § 33.2-1800 et seq.), or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Code of Virginia, title 56, ch. 22.1 (Code of Virginia, § 56-575.1 et seq.), as applicable.
(2)
The notice also shall summarize the proposed qualifying project or projects and identify their proposed location or locations. Copies of unsolicited proposals shall be available upon request, subject to the provisions of:
a.
b.
The Virginia Freedom of Information Act, codified in Code of Virginia, title 2.2, ch. 37 (Code of Virginia, § 2.2-3700 et seq.); and
c.
Code of Virginia, § 56-575.4(G).
During the 45-calendar-day period for receiving competing unsolicited proposals, the City may continue to evaluate the original unsolicited proposal.
(Code 1993, § 22.1-173; Code 2004, § 74-404; Ord. No. 2004-27-41, § 1, 2-23-2004)
(Code 1993, § 22.1-173; Code 2004, § 74-404; Ord. No. 2004-27-41, § 1, 2-23-2004)