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The 192nd General Court of the Commonwealth of Massachusetts

Section 63: Contracts for design-build-finance-operate-maintain or design-build-operate-maintain services

Section 63. (a) Notwithstanding any general or special law to the contrary, the board of directors of the department, in conjunction with the special public-private partnership infrastructure oversight commission established in section 73, may solicit proposals and enter into contracts for design-build-finance-operate-maintain or design-build-operate-maintain services with that responsible and responsive offeror submitting the proposal that is most advantageous to the department through the sale, lease, operation and maintenance of a transportation facility within the commonwealth; provided, however, that such proposal shall be in full compliance with all applicable requirements of federal, state and local law, including section 26 to 27H, inclusive, of chapter 149; provided further, that any such contract shall not be subject to the competitive bid requirements set forth in sections 38A1/2 to 38O, inclusive, section 39M of chapter 30, or sections 44A to 44M, inclusive, of chapter 149; and provided further, that each such contract shall be awarded pursuant to chapter 30B except for clause (3) of paragraph (b) and paragraphs (e) and (g) of section 6, clause (4) of section 13 and section 16 of said chapter 30B.

(b)(1) In soliciting and selecting a private entity with which to enter into a public-private agreement for design-build-finance-operate-maintain or design-build-operate-maintain services, the department shall utilize the following competitive sealed proposals procurement approach:

(2) each request for proposals for design-build-operate-maintain and design-build-finance-operate-maintain services:

(A) shall include design requirements;

(B) shall solicit proposal development documents; and

(C) may, if the department determines that the cost of preparing proposals is high, considering the size, estimated price and complexity of the procurement:

(i) prequalify offerors by issuing a request for qualifications in advance of the request for proposals; and

(ii) select a short list of responsible offerors prior to discussions and evaluations, if the number of proposals that will be short-listed is stated in the request for proposals and prompt public notice is provided to all offerors as to which proposals have been short-listed; or

(iii) pay stipends to unsuccessful offerors; provided, however, that the amount of such stipends and the terms under which such stipends shall be paid shall be included in the request for proposals;

(3) adequate public notice of the request for proposals, with an opportunity for public comment, shall be provided;

(4) proposals shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation and a register of proposals shall be prepared by the department and shall be open for public inspection after contract award; and

(5)(A) The request for proposals shall state the relative importance of price and other factors and subfactors, if any.

(B) Each request for proposals for design-build-operate-maintain and design-build-finance-operate-maintain:

(i) shall state the relative importance of: (1) demonstrated compliance with the design requirements; (2) offeror qualifications; (3) financial capacity; (4) project schedule; (5) elimination of existing public debt with respect to the transportation facility; (6) lowest user charges or price over the term of the design-build-operate-maintain and design-build-finance-operate-maintain contract; and (7) other factors, if any;

(ii) shall, if the contract price is estimated to exceed $10,000,000, if the contract period of operations and maintenance is 5 years or longer or if circumstances established by the department require each offeror to identify an independent peer reviewer whose competence and qualifications to provide such services shall be an additional evaluation factor in the award of the contract; and

(iii) shall not include, as an evaluation factor in the award of the contract, the amount, if any, paid by a contractor to the department for procurement using design-build-operate-maintain and design-build-finance-operate-maintain.

(6) As provided in the request for proposals and under regulations issued by the department, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.

(7) Award shall be made to the responsible offeror whose proposal conforms to the solicitation and is determined in writing to be the most advantageous to the acquiring agency, taking into consideration the price and the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis upon which the award is made. Written notice of the award of a contract to the successful offeror shall be promptly provided to all offerors.

(8) The department may provide debriefings that furnish the basis for the source selection decision and contract award.

(c)(1) A private entity may request a review, prior to submission of a solicited proposal, by the department of information that the private entity has identified as confidential or proprietary to determine whether such information is subject to disclosure under section 10 of chapter 66 or clause Twenty-sixth of section 7 of chapter 4.

(2) The department shall take appropriate action to protect confidential or proprietary information that a private entity provides as part of a solicited proposal and that is exempt from disclosure under said section 10 of chapter 66 and said clause Twenty-sixth of said section 7 of said chapter 4.