703P - Guidelines Regarding Requests Made Pursuant to the Public-Private Education Facilities and Infrastructure Act of 2002

Table of Contents

  1. Introduction

  2. General Provisions
    1. Proposal Submission
    2. Affected Local Jurisdictions
    3. Proposal Review Fee
    4. Freedom of Information Act
    5. Use of Public Funds
    6. Applicability of Other Laws

  3. Solicited Proposals

  4. Unsolicited Proposals

  5. Initial Conceptual Stage Review and Posting Unsolicited Proposals
    1. Initial Conceptual Stage Review
    2. Posting 

  6. Proposal Presentation and Submission
    1. Format for Submissions at the Conceptual Stage
    2. Format for Submissions at the Detailed Stage
    3. Additional Terms and Conditions on Proposal Submission

  7. Proposal Evaluation and Selection Criteria
    1. Qualifications and Experience
    2. Project Characteristics
    3. Project Financing
    4. Project Benefit and Compatibility
    5. Other Factors

  8. Interim and Comprehensive Agreements
    1. Interim Agreement Terms
    2. Comprehensive Agreement Terms
    3. Notice and Posting Requirements
    4. Disputes, Claims and Other Matters Relating to any Comprehensive Agreement or Interim Agreement

  9. Protests of PPEA Procurement
    1. Coverage
    2. Process and Conditions

  10. Participation of Small and Minority-Owned Business

  11. Governing Provisions


  1. Introduction

    The Public-Private Education Facilities and Infrastructure Act of 2002 (the "PPEA") grants the County School Board of Frederick County, VA (the “School Board"), a responsible public entity as defined in the Act, the authority to create public-private partnerships for the development of a wide range of projects for public use if the School Board determines there is a need for the project and that private involvement may provide the project to the public in a timely or cost effective fashion. Individually negotiated interim or comprehensive agreements between a private entity and the School Board will define the respective rights and obligations of the School Board and the private entity. Although guidance with regard to the application of the PPEA is provided herein, it will be incumbent upon the School Board and all private entities to comply with the provisions of the PPEA as applicable.

    In order for a project to come under the PPEA, it must meet the definition of a "qualifying project." The PPEA contains a broad definition of qualifying project that includes, but is not limited to public buildings and facilities of all types, for example:

    • An education facility, including but not limited to a school building (including any stadium or other facility primarily used for school events), any functionally related and subordinate facility and land to a school building and any depreciable property provided for use in a school facility that is operated as part of the public school system or as an institution of higher education;

    • A building or facility that meets a public purpose and is developed or operated by or for any public entity;

    • Improvements, together with equipment, necessary to enhance public safety and security of buildings to be principally used by a public entity;

    • Utility and telecommunications and other communications infrastructure;

    • A recreational facility;

    • Technology infrastructure and services, including but not limited to telecommunications, automated data processing, word processing and management information systems, and related information, equipment, goods and services;

    • Technology, equipment, or infrastructure designed to deploy wireless broadband services to schools, businesses, or residential aras;

    • Services designed to increase productivity or efficiency through the use of technology or other means;

    • A solid waste management facility that produces electric energy from solid waste; or any improvements necessary or desirable to any unimproved locally- or state- owned real estate.

    The PPEA establishes requirements that the School Board must observe when reviewing and approving proposals received pursuant to the PPEA. In addition, the PPEA specifies the criteria that must be used to select a proposal and the contents of the interim or comprehensive agreement detailing the relationship between the School Board and the private entity.

    The School Board adopted these guidelines effective February 6, 2007, and revised them on September 18, 2018, to implement the PPEA. Therefore, the School Board will follow these guidelines to receive and evaluate any proposal submitted to the School Board under the provisions of the PPEA. The procedures provided in this policy may be amended only by act of the School Board, however, the Division Superintendent of Schools (“Superintendent”) is authorized to the fullest extent permitted by law to implement these guidelines and take action on behalf of the School Board as to any PPEA matter or transaction in any instance when these guidelines make reference to the “School Board.” Moreover, the School Board reserves the right to revise these guidelines at any time to reflect any policy changes or interpretations it may choose to adopt, or to incorporate changes or revisions to the PPEA.

    The Superintendent is authorized to designate a working group to be responsible for evaluating proposals and negotiating an interim or comprehensive agreement pursuant to these guidelines.

    The individual designated to serve as the point of contact for implementation of procedures, to receive proposals submitted under the PPEA and to respond to inquiries regarding the PPEA or this adopted policy shall be designated by the Superintendent. The Superintendent may delegate any power, right, or determination to be made under these guidelines to an Assistant Superintendent for Administration, to the full extent permitted by law.

    In the event that the PPEA is amended in a manner that either conflicts with these guidelines or concerns material matters not addressed by these guidelines, the School Board shall appropriately amend the guidelines. If these guidelines are not amended prior to the effective date of the new law, these guidelines nonetheless shall be interpreted in a manner to conform to the PPEA as amended.

    Because the PPEA is intended to encourage innovative partnerships between responsible public entities and private entities, the School Board will maintain an open dialogue with private entities to discuss the need for infrastructure improvements.

  2. General Provisions

    1. General Outline of Process; Proposal Submission; Stages of Review

      The PPEA contemplates two different types of proposals. A private entity may, on its own initiative, prepare and submit an “unsolicited proposal” for a qualifying project. In the alternative, the School Board may determine that a need exists for a certain type of project and invite interested parties to submit proposals for that project; this is a “solicited proposal”.

      When the School Board receives a proposal, whether solicited or unsolicited, it may reject the proposal immediately, which ends the PPEA process for that proposal without any further steps. If the School Board is interested in examining the possibility of undertaking the projects described in an unsolicited proposal, the PPEA requires it to advertise the proposal in order to permit other private entities to make competing proposals for the same project. Accordingly, for purposes of outlining project delivery steps, a process initiated by an unsolicited proposal will have this additional step at the beginning. After advertising an unsolicited proposal in order to invite competing proposals, the process will continue in the same manner as when the School Board solicits proposals on its own initiative.

      After the receipt and initial acceptance of proposals, the PPEA contemplates a two-step review process. The first step is the “conceptual stage review” and lasts from the time a proposal is first received and accepted for review until the time when conceptual proposals have been evaluated and either the School Board has decided not to proceed further under the PPEA or the School Board has requested a proposer or proposers to submit detailed proposals. The second step is the “detailed stage review” and lasts from the time when the School Board requests submission of detailed proposals until the School Board either decides not to proceed further under the PPEA or has executed a comprehensive agreement with a proposer or proposers for the project. More than one proposal may proceed through the various stages, and the School Board may determine to enter into comprehensive agreements with more than one proposer for various parts of a Qualifying Project.

      The School Board can always discontinue the PPEA process at any time, for any reason or for no reason, and may subsequently choose to use normal Procurement Act procedures or may discontinue consideration of a Qualifying Project entirely.

      The PPEA allows private entities to include innovative financing methods, including the imposition of user fees or service payments, in a proposal. Such financing arrangements may include the issuance of debt instruments, equity or other securities or obligations, including, if applicable, the portion of the tax-exempt private activity bond limitation amount to be allocated annually to the Commonwealth of Virginia pursuant to the Economic Growth and Tax Relief Reconciliation Act of 2001 for the development of education facilities using public-private partnerships, and to provide for carryovers of any unused limitation amount. The PPEA is a flexible development tool that allows the use of innovative financing techniques. Depending on the School Board's authority and the circumstances of each transaction, financing options might include the use of special purpose entities, sale and lease back transactions, enhanced use leasing, property exchanges, development agreements, conduit financing and other methods allowed by law.

      Proposals should be prepared simply and economically, providing a concise description of the proposer's capabilities to complete the proposed qualifying project and the benefits to be derived from the project by the School Board. Project benefits to be considered are those occurring before and during the construction, renovation, expansion or improvement phase and during the life cycle of the project. Proposals also should include a scope of work and a financial plan for the project, containing enough detail to allow an analysis by the School Board of the financial feasibility of the proposed project. The School Board may, at any time, require the proposer to provide additional information, additional copies of prior submissions, and/or clarification as to any submission. The cost analysis of a proposal should not be linked solely to the financing plan, as the School Board may determine to finance the project through other available means.

      Initial proposals should contain specified information about proposer qualifications and experience, project characteristics, project financing, anticipated public support or opposition, or both, and project benefits and compatibility. Detailed stage proposals should contain specified deliverables.

    2. Affected Local Jurisdictions

      The term "affected local jurisdiction" means any city, county or town in which all or a portion of the qualifying project is located. Ordinarily, Frederick County will be an affected local jurisdiction for proposals submitted to the School Board, but other localities could conceivably be affected local jurisdictions depending on the nature of the proposal. Any private entity requesting approval from or submitting a conceptual or detailed proposal to the School Board must provide each affected local jurisdiction with a copy of the private entity's request or proposal by certified mail, express delivery or hand delivery within five (5) business days of initial acceptance of the proposal by the School Board for conceptual stage review. The proposer shall provide to the School Board evidence of the delivery of the proposal to any other affected local jurisdiction within five (5) business days of such delivery. Affected local jurisdictions that are not responsible public entities under the proposed qualifying project shall have 60 days from the receipt of the request or proposal to submit written comments to the School Board and to indicate whether the proposed qualifying project is compatible with the local comprehensive plan; local infrastructure development plans; or capital improvements budget or other government spending plan. Comments received within the 60-day period shall be given consideration by the School Board, and no negative inference shall be drawn from the absence of comment by an affected local jurisdiction. The School Board retains the right to review comments submitted outside the 60-day period if it determines appropriate to do so in its sole discretion. The School Board may begin or continue its evaluation of any such proposal during the 60 day period for the receipt of comments from other affected local jurisdictions.

    3. Proposal Review Fee

      The School Board shall receive an analysis of the proposal from appropriate internal staff or outside advisors or consultants with relevant experience in determining whether to enter into an agreement with the private entity. In regard to unsolicited proposals submitted under the PPEA (both initial proposals and competitive proposals submitted in response to the advertisement of an unsolicited proposal), the School Board will require an initial processing fee of 1.25% of the projected total project cost, with a minimum fee of $2,500 and a maximum fee of $5,000. The proposer must submit this fee with the unsolicited proposal. In the event that the School Board rejects the unsolicited proposal as an initial matter, or rejects as an initial matter a competing proposal submitted in response to the advertisement of an unsolicited proposal, in either case without proceeding to a conceptual stage review of the rejected proposal, the School Board will refund this fee in full. In the event that the School Board selects a proposal for detailed phase review, an additional proposal fee of 1.25% of the projected total project cost, with a minimum fee of $5,000 and a maximum fee of $10,000, is to be paid within 5 days after notice from the School Board that it has selected the proposal for detailed stage review. In each instance, the School Board will refund any portion of fees paid in excess of its direct costs which include, but are not limited to, all staff costs, and outside consultants, financial advisors, engineers and attorney's fees, associated with evaluating the proposal. In the event that the Superintendent determines that either the initial processing fee or the additional detailed stage fee is insufficient to cover all of the direct costs incurred or expected to be incurred by the School Board in reviewing the proposal, the proposer shall pay the additional amount(s) as the Superintendent may specify. Any proposal submitted without payment of the required fee or any failure to pay the additional amount(s) as specified by the Superintendent or designee within 5 days shall result in the proposal not being considered or considered further.

      In connection with solicited proposals, the School Board will determine at the time of the solicitation whether to require payment of the fees described above.

    4. Freedom of Information Act and Confidentiality of Proposals

      1. General applicability of FOIA disclosure provisions.

        Proposal documents submitted by private entities are generally subject to disclosure under the Virginia Freedom of Information Act ("FOIA”), except that § 2.2-3705.6 (11) exempts certain documents from the requirement of public disclosure. FOIA exemptions, however, are discretionary—that is, the School Board is not required to invoke them, and the School Board may elect to release some or all of the documents. The exceptions permit the School Board to withhold from release documents that are:

        1. Trade secrets of the private entity as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.);

        2. Financial records of the private entity that are not generally available to the public through regulatory disclosure or otherwise, including but not limited to, balance sheets and financial statements; or

        3. Other information submitted by a private entity, where if the record or document were made public prior to the execution of an interim or comprehensive agreement the financial interest or bargaining position of the School Board or private entity would be adversely affected.

        As required by law, the School Board will take appropriate action to protect the documents described above, provided that the prerequisites to such protection described in Section (2) below are met.

      2. Prerequisites for protection from mandatory disclosure for certain documents submitted by a private entity.

        Before the School Board is permitted to withhold a document of a private entity from disclosure, the private entity must make a written request to the School Board at the time the documents are submitted earmarking with specificity the documents for which the protection is being sought and a clear statement of the reasons for invoking the protection with reference to one or more of three classes of records listed in Section D.1. The School Board recommends that a proposer submit documents that the proposer requests to be withheld from public disclosure in a separate binder from documents that must be disclosed.

        Upon the receipt of a written request for protection of documents, the School Board, acting through the Superintendent, shall determine whether the documents contain trade secrets; financial records; or other information that would adversely affect the financial interest or bargaining position of the School Board or private entity in accordance with Section D.1. The Superintendent shall make a written determination of the nature and scope of the protection to be afforded by the School Board under this subdivision. If the written determination provides less protection than requested by the private entity, the private entity should be accorded an opportunity to withdraw its proposal. Nothing shall prohibit further negotiations of the documents to be accorded protection from release although what may be protected must be limited to the categories of records identified in Section D. 1.

        Once a written determination has been made, the documents afforded protection under this subdivision shall continue to be protected from disclosure when in the possession of the School Board or any affected local jurisdiction to which such documents are provided.

        Cost estimates relating to a proposed procurement transaction prepared by or for the School Board shall not be open to public inspection.

      3. Protection from mandatory disclosure for certain documents produced by the School Board.

        FOIA permits the School Board to withhold from disclosure certain memoranda, staff evaluations, or other records prepared by or for the School Board / Superintendent for the evaluation and negotiation of proposals, if the disclosure of such records would adversely affect the financial interest or bargaining position of the School Board or private entity and the basis for the determination of adverse affect is documented in writing by the Superintendent or designee.

        Cost estimates relating to a proposed procurement transaction prepared by or for the School Board shall not be open to public inspection.

      4. If a private entity fails to earmark confidential or proprietary information, records or documents for protection from disclosure, such information, records or documents shall be subject to disclosure under FOIA.

      5. The School Board may not withhold from public access:

        1. procurement records other than those subject to the written determination described above;

        2. information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the School Board and the private entity;

        3. information concerning the terms and conditions of any financing arrangement that involves the use of any public funds; or

        4. information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project.

      6. To the extent a court order from a court of competent jurisdiction compels disclosure of a submitted document, or protects that document from disclosure, the School Board will comply with the applicable provisions of the court order.

    5. Use of Public Funds

      Virginia constitutional and statutory requirements and School Board regulations and policies as they apply to appropriation and expenditure of public funds all apply to any interim or comprehensive agreement entered into under the PPEA. Accordingly, the processes and procedural requirements associated with the expenditure or obligation of public funds shall be incorporated into planning for any PPEA project or projects.

    6. Applicability of Other Laws

      Nothing in the PPEA shall affect the duty of the School Board to comply with all other applicable law not in conflict with the PPEA. The applicability of the Virginia Public Procurement Act (the "VPPA") is as set forth in the PPEA.

  3. Solicited Proposals

    The School Board may issue Requests for Proposals (RFPs) or Invitations to Bid (IFBs), inviting proposals from private entities to develop or operate qualifying projects. The form of the request depends on whether the School Board determines to utilize PPEA procedures analogous to competitive sealed bidding or PPEA procedures analogous to competitive negotiations, as described in Section 5(a)(2) below. In most instances, the School Board will use the two-part proposal review process consisting of an initial conceptual stage and a detailed stage. However, the School Board may vary the review process in a given solicitation and will describe any variations in the solicitation. The School Board will set forth in the solicitation the format and supporting information that is required to be submitted, consistent with the provisions of the PPEA.

    The solicitation will specify, but not necessarily be limited to, information and documents that must accompany each proposal and the factors that will be used in evaluating the submitted proposals. The solicitation will be posted in such public areas as are normally used for posting of the School Board's notices, including the School Board's website. Notice will also be published in a newspaper or other publications of general circulation. The solicitation will also contain or incorporate by reference other applicable terms and conditions, including any unique capabilities or qualifications that will be required of the private entities submitting proposals. The School Board may hold information meetings and/or pre-proposal conferences as administration deems appropriate.

  4. Unsolicited Proposals

    The PPEA permits the School Board to receive, evaluate and select for negotiations unsolicited proposals from private entities to develop or operate a Qualifying Project. The School Board may publicize its needs and may encourage interested parties to submit unsolicited proposals subject to the terms and conditions of the PPEA. When such proposals are received without issuance of a solicitation, the proposal shall be treated as an unsolicited proposal.

    Upon receipt of any unsolicited proposal or group of proposals and payment of the required fee(s) by the proposer or proposers, the School Board will determine as a threshold matter whether to accept the unsolicited proposal for publication and conceptual stage consideration. If the School Board determines not to accept the proposal and not proceed to publication and conceptual stage consideration, it will return the proposal, together with all fees and accompanying documentation, to the proposer. In the event that the School Board rejects an unsolicited proposal that purports to develop specific cost savings, it shall specify the basis for the rejection.

    If the School Board chooses to accept an unsolicited proposal for conceptual-phase consideration, it shall post a notice in a public area regularly used by the School Board for posting of public notices for a period of not less than 45 days. The School Board shall also publish the same notice once not less than 45 days prior to deciding whether to proceed further with the proposal in one or more newspapers or periodicals of general circulation in the area to notify any parties that may be interested in submitting competing unsolicited proposals. In addition, the notice may also be advertised in other publications of general circulation, Virginia Business Opportunities and on the Commonwealth's electronic procurement website “eVa.” The notice shall state that the School Board has received and accepted an unsolicited proposal under the PPEA; intends to evaluate the proposal; may negotiate an interim or comprehensive agreement with the proposer based on the proposal; and will accept for simultaneous consideration any competing proposals that comply with the procedures adopted by the School Board and the PPEA. The notice also shall summarize the proposed qualifying project or projects, and identify their proposed locations. Interested parties shall have at least 45 days from the date the notice is first published by the School Board to submit competing unsolicited proposals.

  5. Conceptual Stage Review and Posting Requirements

    1. Conceptual Stage Reviews

      1. Only proposals complying with the requirements of the PPEA that contain sufficient information for a meaningful evaluation and that are provided in an appropriate format will be considered by the School Board for further review at the conceptual stage.

      2. The School Board will determine by written finding at this initial stage of review whether it will proceed using:

        1. Procedures analogous to and consistent with competitive sealed bidding procurement procedures consistent with the VPPA. Under this procedure, the School Board will normally select the proposal for the Qualifying Project from the lowest responsible and responsive proposer, subject generally to the applicable exceptions and provisions of the VPPA and the PPEA; or

        2. Procedures analogous to and consistent with procurement of other than professional services through "competitive negotiation" as the term is defined in § 2.2-4301 of the Code of Virginia. Under these procedures, the School Board need not choose the lowest proposer, but may consider the other factors described in the PPEA and applicable law. The School Board may proceed using competitive negotiation guidelines only if it makes a written determination that doing so is likely to be advantageous to the School Board and the public based upon either (i) the probable scope, complexity or urgency of need; (ii) the risk sharing including guaranteed cost or completion guarantees, added value or debt or equity investments proposed by the private entity; or (iii) increase in funding, dedicated revenue or other economic benefit that would otherwise not be available.

        3. Any proposal for professional services must be considered pursuant to paragraph (b) above.

      3. Once a proposal is accepted for conceptual stage review, the School Board shall retain the services of qualified professionals (including architects, professional engineers, or certified public accountants), not otherwise employed by the School Board, to provide independent analysis regarding the specifics, advantages, disadvantages, and costs of a proposal, unless the School Board determines that such analysis shall be performed, instead, by School Board employees.

        After conducting the conceptual stage review of the original proposal and any accepted and competing proposals submitted during the notice period, the School Board may determine:

        • not to proceed further with any proposal,

        • to proceed to the detailed stage of review with the original proposal,

        • to proceed to the detailed stage with a competing proposal,

        • to proceed to the detailed stage with multiple proposals, or

        • to ask for modifications or amendments to any aspect of the proposal.

        In the event that more than one proposal will be considered in the detailed stage of review, the School Board will consider whether the unsuccessful proposer should be reimbursed for costs incurred in the detailed stage of review, and such reasonable costs may be assessed to the successful proposer in the comprehensive agreement.

      4. Discussions between the School Board and private entities about the need for infrastructure improvements shall not limit the ability of the School Board to determine later to use standard procurement procedures to meet its infrastructure needs. The School Board retains the right to reject any proposal at any time prior to the execution of an interim or comprehensive agreement.

      5. Ownership and Use of Concepts

        1. The School Board shall have the right to develop the project or aspects of it in any manner that the School Board determines in its sole discretion and may incorporate into the project any concept that is included in any proposal submitted to it.

        2. By submitting a proposal, a proposer acknowledges that it is submitting merely a concept which has no monetary or intellectual property value, and disclaims any proprietary or other legal interest in any such concept(s).

    2. Posting

      1. Conceptual proposals, whether solicited or unsolicited, shall be posted by the School Board within 10 working days after acceptance of such proposals as follows:

        The School Board's posting shall be on the School Board's website or by publication in a newspaper of general circulation in the area of a summary of the proposals and the location where copies of the proposals are available for public inspection. Posting may also be on the Department of General Service's web-based electronic procurement program commonly known as "eVA," in the discretion of the Superintendent.

      2. Nothing shall be construed to prohibit the posting of the conceptual proposals by additional means deemed appropriate by the Superintendent so as to provide maximum notice to the public of the opportunity to inspect the proposals.

      3. In addition to the posting requirements, at least one copy of the proposals shall be made available for public inspection in the School Board Office during regular business hours. Trade secrets, financial records, or other records of the private entity excluded from disclosure under the provisions of subdivision 11 of § 2.2-3705.6 shall not be required to be posted, except as otherwise agreed to by the School Board and the private entity. Any inspection of procurement transaction records shall be subject to reasonable restrictions to ensure the security and integrity of the records.

  6. Proposal Preparation and Submission

    1. Format for Submissions at Conceptual Stage

      The School Board will require that proposals at the conceptual stage contain the completed form as found in Policy 703P Appendix, Operations and Finance- PPEA Proposal Submission Certification, an executive summary of the proposal satisfactory for posting and publication to satisfy the requirements of Virginia law, and information, unless expressly waived by the Superintendent or designee, in the following areas: (i) qualifications and experience, (ii) project characteristics, (iii) project financing, (iv) anticipated public support or opposition, or both, (v) project benefit and compatibility and (vi) any additional information as the School Board may reasonably request to comply with the requirements of the PPEA.

      1. Qualification and Experience

        1. Identify the legal structure of the firm or consortium of firms making the proposal.
          Identify the organizational structure for the project, the management approach and how each partner and major subcontractor in the structure fits into the overall team.

        2. Describe the experience of the firm or consortium of firms making the proposal and the key principals involved in the proposed project including experience with projects of comparable size and complexity, and prior experience bringing similar projects to completion on budget and in compliance with design, land use, service and other standards. Describe the length of time in business, business experience, public sector experience and other engagements of the firm or consortium of firms. Include the identity of any firms that will provide design, construction and completion guarantees and warranties and a description of such guarantees and warranties.

        3. Provide the names, street and mailing addresses, as well as email addresses and telephone numbers of all persons within the firm or consortium of firms who will be directly involved in the project or who may be contacted for further information.

        4. Provide a current or most recently audited financial statement of the firm or firms and each partner with an equity interest of twenty percent or greater.

        5. Identify any persons known to the proposer who would be obligated to disqualify themselves from participation in any transaction arising from or in connection to the project pursuant to the Virginia State and Local Government Conflict of Interest Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2.

        6. For each firm or major subcontractor that will perform construction and/or design activities, provide the following information: (1) A sworn certification by an authorized representative of the firm attesting to the fact that the firm is not currently debarred or suspended by any federal, state or local government entity from participating in any public contracting process or project. (2) A statement of any of the following conduct in connection with such firm during the previous three (3) years: (A) bankruptcy filings; (B) liquidated damages; (C) fines, assessments or penalties; (D) judgments or awards in contract disputes; (E) contract defaults or terminations; (F) license revocations, suspension, disciplinary actions; (G) prior debarments or suspensions by a governmental entity; (H) denials of prequalification, findings of nonresponsibility; (I) safety past performance data including fatality; incidents, “Experience Modification Rating,” “Total Recordable Injury Rate,” and “Total Lost Workday Incidence Rate;” (J) violations of any federal, state, or local criminal or civil law; (K) criminal indictments or investigations; and (L) legal claims filed by or against the firm.

      2. Project Characteristics

        1. Provide a description of the project, including the conceptual design. Describe the proposed project in sufficient detail so that type and intent of the project, the location, and the communities that may be affected are clearly identified.

        2. Describe in detail, showing calculations, how the use of the PPEA and these guidelines will yield significant cost savings for the School Board and other financial and quantifiable benefits, showing a comparison to what would be the case using traditional procurement procedures under the terms of the Virginia Public Procurement Act.

        3. Identify and fully describe any work to be performed by the School Board or any other public entity.

        4. Include a list of all federal, state and local permits and approvals required for the project and a schedule for obtaining such permits and approvals.

        5. Identify any anticipated adverse social, economic and environmental impacts of the project. Specify the strategies or actions to mitigate known impacts of the project.

        6. Identify the projected positive social, economic and environmental impacts of the project.

        7. Identify the proposed schedule for the work on the project, including sufficient time for the School Board's review and the estimated time for completion.

        8. Propose allocation of risk and liability for work completed beyond the agreement's completion date, and assurances for timely completion of the project.

        9. State assumptions related to ownership, legal liability, law enforcement and operation of the project and the existence of any restrictions School Board's use of the project.

        10. Provide information relative to phased or partial openings of the project prior to completion of the entire work proposed.

        11. List any other assumptions relied on for the project to be successful.

        12. List any contingencies that must occur for the project to be successful.

      3. Project Financing

        1. Provide a preliminary estimate and estimating methodology of the cost of the work by phase, segment, or both.

        2. Submit a plan for the development, financing and operation of the project showing the anticipated schedule on which funds will be required. Describe the anticipated costs of and proposed sources and uses for such funds including any anticipated debt service costs. The operational plan should include appropriate staffing levels and associated costs. Include supporting due diligence studies, analyses, or reports.

        3. Include a list and discussion of assumptions underlying all major elements of the plan. Assumptions should include all significant fees associated with financing given the recommended financing approach. In addition complete disclosure of interest rate assumptions should be included. Any ongoing operational fees, if applicable, should also be disclosed as well as any assumptions with regard to increases in such fees.

        4. Identify the proposed risk factors and methods for dealing with these factors.

        5. Identify any local, state or federal resources that the proposer contemplates requesting for the project along with an anticipated schedule of resource requirements. Describe the total commitment, if any, expected from governmental sources and the timing of any anticipated commitment. Such disclosure should include any direct or indirect guarantees or pledges of the School Board's revenue stream.

        6. Identify the amounts and the terms and conditions for any revenue sources.

        7. Identify any aspect of the project that could disqualify the project from obtaining tax-exempt financing.

      4. Project Benefit and Compatibility

        1. Identify who will benefit from the project, how they will benefit and how the project will benefit the county, region, or state.

        2. Identify any anticipated public support or opposition, as well as any anticipated government support or opposition, for the project.

        3. Explain the strategy and plans, including the anticipated timelines that will be carried out to involve and inform the general public, business community, and governmental agencies in areas affected by the project.

        4. Describe the anticipated significant benefits to the community and the county, region or state, including anticipated benefits to the economic condition of the public entity and whether the project is critical to attracting or maintaining competitive industries and businesses to the county.

        5. Describe compatibility with the county's comprehensive plan, infrastructure development plans, the capital improvements budget or other government spending plan.

        6. Provide a statement setting forth participation efforts that are intended to be undertaken in connection with this project with regard to the following types of businesses: (i) minority-owned businesses, (ii) woman-owned businesses, and (iii) small businesses.

    2. Format for Submissions at Detailed Stage

      If the School Board decides to proceed to the detailed stage of review with one or more proposals, the private entity must provide the completed form as found in Policy 703P Appendix, Operations and Finance- PPEA Proposal Submission Certification and the following information, unless expressly waived by the Superintendent or designee:

      1. A topographical map (1:2,000 or other appropriate scale) depicting the location of the proposed project;

      2. A list of public utility facilities, if any, that will be crossed by the qualifying project and a statement of the plans of the proposer to accommodate such crossings;

      3. A statement and strategy setting out the plans for securing all necessary property and/or easements or other rights implicated or to be affected or created. The statement must include the names and addresses, if known, of the current owners and the parcel or tax map identification numbers and current zoning and use of the subject properties.

      4. A detailed listing of all firms, along with their relevant experience and abilities, that will provide specific design, construction and completion guarantees and warranties, and a brief description of such guarantees and warranties along with a record of any prior defaults or performance;

      5. A total life-cycle cost including maintenance, specifying methodology and assumptions of the project or projects including major building systems, and the proposed project start date. Include anticipated commitment of all parties; equity, debt, and other financing mechanisms; and a schedule of project revenues and project costs. The life-cycle cost analysis should include, but not be limited to, a detailed analysis of the projected return, rate of return, or both, expected useful life of facility and estimated annual operating expenses.

      6. A detailed discussion of assumptions about user fees or rates, lease payments and other service payments and the methodology and circumstances for changes and usage of the projects over the useful life of the projects.

      7. Identification of any known government support or opposition, or general public support or opposition for the project. Government or public support should be demonstrated through resolution of official bodies, minutes of meetings, letters, or other official communications.

      8. Demonstration of consistency with appropriate county comprehensive plans (including related environmental, land use and facility standards ordinances where applicable) or infrastructure development plans or indication of the steps required for acceptance into such plans.

      9. Explanation of how the proposed project would impact the county's development plans and the development plans of each affected local jurisdiction.

      10. Identification of the executive management and the officers and directors of the firm or firms submitting the proposal. In addition, identification of any known conflicts of interest or other disabilities that may impact the School Board's consideration of the proposal, including the identification of any persons known to the proposer who would be obligated to disqualify themselves from participation in any transaction arising from or in connection to the project pursuant to the Virginia State and Local Government Conflict of Interest Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2.

      11. Additional material and information as the School Board may reasonably request.

    3. Additional Terms and Conditions on Proposal Submission

      1. The following additional terms and conditions apply to submission of any proposals to the School Board pursuant to the PPEA, whether unsolicited, competing unsolicited, or solicited, and by submitting any proposal to the School Board, the private entity submitting the proposal agrees also to them.

      2. Neither these Guidelines, nor any request or solicitation, nor the School Board's receipt or consideration of any proposal shall create any contract, express or implied, any contractual obligation by the School Board to any proposer, or any other obligation by the School Board to any proposer. The School Board makes no promise, express or implied, regarding whether it will enter into a comprehensive agreement with any proposer or regarding the manner in which it will consider proposals. The School Board will only be bound by the terms of any comprehensive agreement(s) or interim agreements into which it enters should it choose to enter into any such agreements.

      3. The School Board will not be responsible for any expenses incurred by a proposer in preparing and submitting a proposal or in engaging in oral presentations, discussions, or negotiations.

      4. Proposers may be required to make an oral presentation or oral presentations of their proposal in Frederick County, Virginia, at their own expense. The Superintendent or designee may request the presence of proposers' representatives from their development, financial, architectural engineering and construction teams at these presentations. The Superintendent or designee will schedule the time and location for these presentations. By submitting its proposal, the proposer agrees to make these representatives reasonably available in Frederick County, Virginia.

      5. The School Board reserves the right of the Superintendent or designee to waive any informality with respect to any proposal submitted.

      6. The School Board reserves the right to accept or reject any and all proposals received, in whole or in part, and to negotiate separately in any manner necessary to serve the best interests of the School Board. Any procurement under these Guidelines may result in multiple awards to multiple offerors.

      7. The School Board reserves the right to reject any and all proposals without explanation.

      8. These provisions of these guidelines shall apply automatically to all PPEA procurements by the School Board.

      9. The School Board will not discriminate against an offeror because of race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment.

      10. By submitting a proposal or signing a comprehensive agreement, the bidder/offeror certifies that such bidder/offeror has not violated any provisions of Federal law, the Code of Virginia, or the Frederick County Code, or any applicable School Board policy or regulation in connection with the submission or negotiation of the proposal or comprehensive agreement. The bidder/offeror certifies that such bid/proposal is made without illegal collusion or fraud and that it has not offered or received any illegal or undisclosed kickbacks or inducements from any other bidder/offeror, supplier, manufacturer or subcontractor in connection with such bid/proposal. The bidder/offeror moreover certifies that it has not conferred on any public employee having official responsibility for the proposal any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value was exchanged. A breach of this certification shall render any associated comprehensive agreement voidable at the election of the School Board, and shall entitle the School Board to damages in addition to any other remedy available at law or in equity.

  7. Proposal Evaluation and Selection Criteria and Procedures

    The School Board will generally consider following items in the evaluation and selection of PPEA proposals. The School Board, however, reserves and retains the right to reject any request or proposal at any time for any reason whatsoever.

    1. Qualifications and Experience

      Factors that may be considered in either stage of the School Board's review to determine whether the proposer possesses the requisite qualifications and experience may include, but are not necessarily limited to:

      1. Experience with similar projects;

      2. Demonstration of ability to perform work;

      3. Leadership structure;

      4. Project Manager's experience;

      5. Management approach;

      6. Financial condition; and

      7. Project ownership.

    2. Project Characteristics

      Factors that may be considered in determining the project characteristics include:

      1. Project definition;

      2. Proposed project schedule;

      3. Operation of the project;

      4. Technology; technical feasibility;

      5. Conformity to laws, regulations, and standards;

      6. Environmental impacts;

      7. Condemnation impacts;

      8. State and local permits; and

      9. Maintenance of the project.

    3. Project Financing

      Factors that may be considered in determining whether the proposed project financing allows adequate access to the necessary capital to finance the project include, but are not necessarily limited to:

      1. Cost and cost benefit to the School Board.

      2. Financing and the impact on the debt or debt burden of the School Board / locality.

      3. Financial plan, including the degree to which the proposer has conducted due diligence investigation and analysis of the proposed financial plan and the results of any such inquiries or studies;

      4. Estimated cost;

      5. Life-cycle cost analysis;

      6. The identity. credit history, past performance of any third party that will provide financing for the project and the nature and timing of their commitment, as applicable; and

      7. Such other items as the School Board deems appropriate.

      In the event that any project is financed through the issuance of obligations that are deemed to be tax-supported debt of the School Board or Frederick County, or if financing such a project may impact the locality's debt rating or financial position, the School Board may select its own finance team, source, and financing vehicle.

    4. Project Benefit and Compatibility

      Factors that may be considered in determining the proposed project's compatibility with the appropriate local or regional comprehensive or development plans include:

      1. Community benefits;

      2. Community support or opposition, or both;

      3. Public involvement strategy;

      4. Compatibility with existing and planned facilities; and

      5. Compatibility with county, regional, and state economic development efforts.

    5. Other Factors

      Other factors that may be considered by the School Board in the evaluation and selection of PPEA proposals include:

      1. The proposed cost of the qualifying project;

      2. The general reputation, industry experience, and financial capacity of the private entity;

      3. The proposed design of the qualifying project;

      4. The eligibility of the project for accelerated documentation, review, and selection:

      5. Local citizen and government comments;

      6. Benefits to the public;

      7. The private entity's plans to employ local contractors and residents; and

      8. Other criteria that the School Board deems appropriate.

  8. Interim and Comprehensive Agreements

    After the conclusion of detailed stage review, the School Board shall determine whether to enter into negotiations for a comprehensive agreement with one or more proposers. Prior to developing or operating the qualifying project, the selected private entity shall enter into a comprehensive agreement with the School Board. Prior to entering a comprehensive agreement an interim agreement may be entered into that permits a private entity to perform compensable activities related to the project. The School Board may designate a working group to be responsible for negotiating any interim or comprehensive agreement. Any interim or comprehensive agreement shall define the rights and obligations of the School Board and the selected proposer with regard to the project.

    1. Interim Agreement Terms

      The scope of an interim agreement may include but is not limited to:

      1. Project planning and development;

      2. Design and engineering;

      3. Environmental analysis and mitigation;

      4. Survey;

      5. Ascertaining the availability of financing for the proposed facility through financial and revenue analysis;

      6. Establish a process and timing of the negotiation of the comprehensive agreement; and

      7. Any other provisions related to any aspect of the development or operation of a qualifying project that the parties may deem appropriate prior to the execution of a comprehensive agreement.

    2. Comprehensive Agreement Terms

      The scope of the comprehensive agreement shall include, as deemed appropriate by the School Board, but not be limited to:

      1. The delivery of maintenance, performance and payment bonds or letters of credit in connection with development and/or operation of the qualifying project in a manner satisfactory to the School Board.

      2. The review of plans and specifications for the qualifying project by the responsible public entity;

      3. The rights of the School Board to inspect and/or terms under which the School Board would receive certified third-party inspections of the qualifying project to ensure compliance with the comprehensive agreement;

      4. The maintenance of a policy or policies of liability insurance or self-insurance reasonably sufficient to insure coverage of the project and the tort liability to the public and employees and to enable the continued operation of the qualifying project;

      5. The monitoring of the practices of the private entity by the School Board to ensure proper maintenance, safety, use and management of the qualifying project;

      6. The terms under which the private entity will reimburse the School Board for services provided;

      7. The policy and procedures that will govern the rights and responsibilities of the School Board and the private entity in the event that the comprehensive agreement is terminated or there is a material default by the private entity including the conditions governing assumption of the duties and responsibilities of the private entity by the School Board and the transfer or purchase of property or other interests of the private entity by the School Board.

      8. The terms under which the private entity will file appropriate financial statements on a periodic basis;

      9. The mechanism by which user fees, lease payments, or service payments, if any, may be established from time to time upon agreement of the parties. Any payments or fees shall be set at a level that is the same for persons using the facility under like conditions and that will not materially discourage use for the qualifying project;

        1. A copy of any service contract shall be filed with the School Board.

        2. A schedule of the current user fees or lease payments shall be made available by the private entity to any member of the public upon request.

        3. Classifications according to reasonable categories for assessment of user fees may be made.

      10. The terms and conditions under which the School Board may contribute financial resources, if any, for the qualifying project;

      11. The terms and conditions under which existing site conditions will he assessed and addressed, including identification of the responsible party for conducting the assessment and taking necessary remedial action;

      12. The terms and conditions under which the School Board will be required to pay money to the private entity and the amount of any such payments for the project.

      13. Other requirements of the PPEA or other applicable law; and

      14. Such other terms and conditions as the School Board may deem appropriate.

        Any changes in the terms of the interim or comprehensive agreement as may be agreed upon by the parties from time to time shall be added to the interim or comprehensive agreement by written amendment.

        The comprehensive agreement may provide for the development or operation of phases or segments of a qualifying project.

    3. Procedures for Approval of Comprehensive Agreement; Notice and Posting Requirements.

      1. No later than 30 days prior to entering into an interim or comprehensive agreement, the School Board shall conduct a public hearing on any proposed comprehensive agreement. Notice of such public hearing shall be published in a newspaper of general circulation in Frederick County, Virginia, at least once a week for two successive weeks, with no less than six (6) days and no more than twenty-one (21) days elapsing between the final publication and the date of the public hearing.

      2. Once the negotiation phase for the development of an interim or a comprehensive agreement is complete and the School Board’s staff believes that the agreement is in substantially final form, the School Board staff shall post the proposed agreement in the following manner:

        1. Posting shall be on the School Board's website or by publication in a newspaper of general circulation in the area in which the contract is to be performed, of a summary of the proposals and the School Board Office where copies of the proposals are available for public inspection. Posting may also be on the Department of General Service's web-based electronic procurement program commonly known as "eVA," in the discretion of the Superintendent.

        2. In addition to the posting requirements, at least one copy of the proposals shall be made available for public inspection. Trade secrets, financial records, or other records of the private entity excluded from disclosure under the provisions of subdivision 11 of $ 2.2-3705.6 shall not be required to be posted, except as otherwise agreed to by the School Board and the private entity.

      3. After the briefing of the School Board regarding the material terms of an interim or comprehensive agreement, the Superintendent shall request that the Frederick County Board of Supervisors take action to approve the proposed interim or comprehensive agreement. Upon receipt of the Board of Supervisors approval, the Superintendent shall request the School Board authorize the final execution of the interim or comprehensive agreement. The scheduling of this action shall be after the required public hearing and any posting requirements have been completed. In authorizing the final execution of an interim or comprehensive agreement, the School Board will also make any factual findings required by law incident to the authorization of the agreement.

      4. Once an interim agreement or a comprehensive agreement has been entered into, the School Board shall make procurement records available for public inspection, upon request, and shall post a copy of the final executed agreement in the same places described in paragraph (2) above.

        1. Such procurement records shall include documents protected from disclosure during the negotiation phase on the basis that the release of such documents would have adversely affect the financial interest or bargaining position of the School Board or private entity in accordance with Section II.D.2.

        2. Such procurement records shall not include (i) trade secrets of the private entity as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.) or (ii) financial records, including balance sheets or financial statements of the private entity that are not generally available to the public through regulatory disclosure or otherwise.

      5. The Superintendent shall file an electronic copy of all final executed interim or comprehensive agreements with the Auditor of Public Accounts within thirty (30) days of the execution of the interim or comprehensive agreement.

    4. Disputes, Claims. and Other Matters Relating to any Comprehensive Agreement or Interim Agreement

      1. The following provisions apply to any disputes, claims or other matters arising under or relating to any comprehensive agreement or interim agreement entered into pursuant to the PPEA by the School Board and any private entity. Disputes, claims and other matters in question between the parties arising under or relating to any comprehensive agreement or any interim agreement shall only be resolved as follows:

      2. The private entity shall give the School Board written notice of any claim for any additional compensation, damages, delay or other relief within ten (10) days of the beginning of the occurrence of the event leading to the claim being made and shall submit the actual claim and any supporting data within thirty (30) days after the occurrence giving rise to the claim. The written notice shall be a document addressed to the School Board that clearly states the private entity's intention to make a claim and the occurrence involved and shall be transmitted in a manner to ensure prompt receipt by the School Board. The claim must be certified under oath as true and correct by a principal of the private entity. The term "occurrence" means the condition encountered in the field or the issue or matter giving rise to the claim and not a later dispute about payment for that condition. Claims of time impacts will be resolved as they occur, and no claims of cumulative impacts or deferral of claimed time impacts will be allowed. Complete satisfaction of this subparagraph is an absolute prerequisite for the private entity to pursue a claim, dispute, or other matter arising under or relating to the agreement. Failure by the private entity to satisfy these provisions shall constitute a waiver by the private entity of the claim, dispute, or other matter for which such failure occurs.

      3. The parties shall first endeavor to resolve any disputes, claims or other matters in question between them through direct negotiations, and if such direct negotiations fail, by non-binding mediation conducted by Juridical Solutions, PLC, with the site of the mediation being Frederick County, Virginia. Should the dispute, claim or other matter in question remain unresolved for the shorter of (i) following negotiation and mediation, or (ii) more than 90 days after mediation is requested by a party, either party may proceed in accordance with subparagraph 4 below. However, nothing in this subparagraph 3 excuses the private entity from compliance with all the provisions of subparagraph 2.

      4. If the procedures of subparagraph 3 have been followed, but, more than 90 days have passed since a party has invoked mediation, and the dispute, claim or other matter in question remains unresolved, then either party may institute and maintain a lawsuit solely in the Circuit Court of the County of Frederick, Virginia, or if the subject or amount in controversy is within their jurisdiction, the General District Court of the County of Frederick, Virginia or the United States District Court for the Western District of Virginia, at Harrisonburg. Each party waives any objection to venue in such courts, and the proposer expressly consents to the personal jurisdiction thereof.

      5. Nothing in subparagraphs 3 and 4 shall prevent a party from seeking temporary injunctive or other temporary equitable relief in the courts described above, if circumstances so warrant.

      6. In the event of any dispute, claim, or other matter in question arising, the private entity shall continue its performance diligently during its pendency as if no dispute, claim or other matter in question had arisen. During the pendency of any claim, dispute or other matter in connection with the payments of moneys, the private entity shall be entitled to receive payments for non-disputed items, subject to any right of set-off by the School Board.

      7. These procedures and the provisions of the comprehensive agreement supersede any right at common law by the private entity for a claim of material breach or for rescission of the agreement.

      8. These procedures shall he deemed automatically incorporated by reference into any agreement entered into by the School Board pursuant to the PPEA.
      9. For purposes of these procedures, the private entity includes its successors, assigns, sureties or others claiming through the private entity.

      10. The Superintendent or designee may further supplement the provisions with the terms and conditions of any agreements.

      11. Nothing in this section or in an interim or comprehensive agreement shall be deemed to be a waiver of any sovereign immunity that the School Board may otherwise possess under applicable law.

  9. Protests of PPEA Procurements

    1. Coverage

      A protest of any PPEA decision may be initiated after the School Board authorizes the execution of a comprehensive agreement. Prior to such authorization, there is no award from which a protest may be made. The following are the exclusive procedures for contesting or challenging (protesting) the terms or conditions of any such authorization by the School Board pursuant to the PPEA For the avoidance of doubt, nonselection of a PPEA proposal (solicited or unsolicited) for further consideration, and the selection of any PPEA proposal for entry into a comprehensive agreement or interim agreement under the PPEA, are matters within the School Board’s absolute discretion and may not be the subject of any protest.

    2. Process and Conditions

      1. Any protest to the execution of a comprehensive agreement must be made in writing and delivered to the Superintendent or designee so it is received by the Superintendent or designee within ten (10) days after the School Board’s approval of the comprehensive agreement. Otherwise, any such protest shall be deemed to be waived.

      2. A protest of a School Board decision to enter into a comprehensive agreement may only be made by an entity which submitted a proposal for the procurement at issue and which was reasonably likely to have its proposal accepted but for the School Board's decision to enter into a comprehensive agreement with a different proposer. Protests shall only be granted if (1) the protester has complied fully with these guidelines and applicable law, and there has been a violation of law, these guidelines, or mandatory terms of the solicitation that clearly prejudiced the protestor in a material way, or (2) a statute requires voiding of the decision.

      3. The Superintendent or designee shall issue a written decision on a protest within 10 days of its receipt.

      4. If the protest is denied, the protester may only appeal the denial or otherwise contest or challenge the procurement by then filing an appeal with one of the courts described in paragraph (D)(4) above and which has jurisdiction, within 30 days of the protestor’s receipt of the Superintendent’s decision. To the fullest extent permitted by law, the decision of the School Board shall be binding and final.

      5. The exclusive relief allowed if a protest is granted is to void the decision being protested. Under no circumstances will any monetary relief be allowed.

      6. Strictly following these procedures shall be a mandatory prerequisite for any challenge of any nature to a decision by the School Board to enter into a comprehensive agreement. A failure to follow all these procedures strictly shall constitute a waiver of any right to challenge a School Board decision.

      7. Nothing in this section shall be deemed to be a waiver of any sovereign immunity that the School Board may otherwise possess under applicable law.

  10. Participation of Small and Minority-Owned Business

    1. The School Board policy is to facilitate participation of all qualified proposers, including small businesses and businesses owned by women and minorities in its procurement transactions.

    2. Persons making proposals to the School Board pursuant to the PPEA should ensure that reasonable efforts are made to facilitate participation of small businesses and businesses owned by women and minorities as part of their proposals. Resort to lists of such businesses available from the Virginia Department of Minority Enterprise is encouraged.

  11. Governing Provisions

    In the event of any conflict between these provisions and the PPEA, the terms of the PPEA shall control.

Legal Reference(s):
Section(s) 56-575.1-56-575.18


Cross Reference(s):
Policy 703P Appendix, Operations and Finance- PPEA Proposal Submission Certification


Adopted: September 18, 2018


Note- These guidelines were originally adopted by the County School Board of Frederick County, Virginia, on February 6, 2007, but not as part School Division Policy.