KRS § 45A.077 — KY Code / Title VI / Chapter 45A / Section 45A.077
45A.077 Public-private partnership delivery method of awarding state contracts for capital construction projects
Status: in_force

45A.077 Public-private partnership delivery method of awarding state contracts

for capital construction projects.

(1) A public-private partnership delivery method may be utilized as provided in this

section and administrative regulations promulgated thereunder. State contracts

using this method shall be awarded by competitive negotiation.

(2) A contracting body utilizing a public-private partnership shall continue to be

responsible for oversight of any function that is delegated to or otherwise performed

by a private partner.

(3) On or before December 31, 2016, the secretary of the Finance and Administration

Cabinet shall promulgate administrative regulations setting forth criteria to be used

in determining when a public-private partnership is to be used for a particular

project. The administrative regulations shall reflect the intent of the General

Assembly to promote and encourage the use of public-private partnerships in the

Commonwealth. The secretary shall consult with design-builders, construction

managers, contractors, design professionals including engineers and architects, and

other appropriate professionals during the development of these administrative

regulations.

(4) A request for proposal for a project utilizing a public-private partnership shall

include at a minimum:

(a) The parameters of the proposed public-private partnership agreement;

(b) The duties and responsibilities to be performed by the private partner or

partners;

(c) The methods of oversight to be employed by the contracting body;

(d) The duties and responsibilities that are to be performed by the contracting

body and any other partners to the contract;

(e) The evaluation factors and the relative weight of each to be used in the

scoring of awards;

(f) Plans for financing and operating the qualifying project and the revenues,

service payments, bond financings, and appropriations of public funds needed

for the qualifying project;

(g) Comprehensive documentation of the experience, capabilities, capitalization

and financial condition, and other relevant qualifications of the private entity;

(h) The ability of a private partner or partners to quickly respond to the needs

presented in the request for proposal, and the importance of economic

development opportunities represented by the qualifying project. In evaluating

proposals, preference shall be given to a plan that includes the involvement of

small businesses as subcontractors, to the extent that small businesses can

provide services in a competitive manner, unless any preference interferes

with the qualification for federal or other funds; and

(i) Other information required by the contracting body or the cabinet to evaluate

the proposals submitted by respondents and the overall proposed public-

private partnership.

(5) A private entity desiring to be a private partner shall demonstrate to the satisfaction

of the contracting body or the cabinet that it is capable of performing any duty,

responsibility, or function it may be authorized or directed to perform as part of the

public-private partnership agreement.

(6) When a request for proposal for a project utilizing a public-private partnership is

issued for a capital project, the contracting body shall transmit a copy of the request

for proposal to the Capital Projects and Bond Oversight Committee staff, clearly

identifying to the staff that a public-private partnership is being utilized. The

contracting body shall submit the final contract to the Capital Projects and Bond

Oversight Committee under KRS 45.763 before work may be begun on the project.

(7) A request for proposal or other solicitation may be canceled, or all proposals may

be rejected, if it is determined in writing that the action is taken in the best interest

of the Commonwealth and approved by the purchasing officer.

(8) (a) Beginning July 1, 2024, in the case of any public-private partnership for a

capital project with an aggregate value of twenty-five million dollars

($25,000,000) or more, the project shall be authorized by the General

Assembly, by inclusion in the branch budget bill or by any other means

specified by the General Assembly, explicitly identifying and authorizing the

utilization of a public-private partnership delivery method for the applicable

capital project. The authorization of a capital project required by this

subsection is in addition to any other statutorily required authorization for a

capital project.

(b) The provisions of this subsection shall not apply to any public-private

partnership project made public through a request for proposal or a public

notice of an unsolicited proposal issued prior to July 1, 2024.

(9) Any corporation as described by KRS 45.750(2)(c), or as created under the

Kentucky Revised Statutes as a governmental agency and instrumentality of the

Commonwealth, that manages its capital construction program shall:

(a) Adhere to the administrative regulations promulgated under this section when

utilizing a public-private partnership for financing capital projects;

(b) Report to legislative committees as specified in this section; and

(c) Submit public-private partnership agreements issued by it to the General

Assembly for authorization as provided in subsection (8) of this section.

(10) (a) The governing body of a postsecondary institution that manages its capital

construction program under KRS 164A.580 shall report to the Capital Projects

and Bond Oversight Committee staff as specified in this section.

(b) Any provision of a public-private partnership agreement issued by a

postsecondary institution which provides for a lease by or to the

postsecondary institution shall be valid and enforceable if approved by the

governing board of the institution.

(11) (a) A person or business may submit an unsolicited proposal to a governmental

body, which may receive the unsolicited proposal.

(b) Within ninety (90) days of receiving an unsolicited proposal, a governmental

body may elect to consider further action on the proposal, at which point the

governmental body shall provide public notice of the proposal. Discussion of

the project shall not be deemed a solicitation of the project or its concepts

after public notice is given. The public notice shall:

1. Provide specific information regarding the proposed nature, timing, and

scope of the unsolicited proposal, except that trade secrets, financial

records, or other records of the person or business making the proposal

shall not be posted unless otherwise agreed to by the governmental body

and the person or business; and

2. Provide for a notice period for the submission of competing proposals as

follows:

a. Unsolicited proposals valued below five million dollars

($5,000,000) shall be posted for thirty (30) days;

b. Unsolicited proposals valued between five million dollars

($5,000,000) and twenty-five million dollars ($25,000,000) shall

be posted for sixty (60) days; and

c. Unsolicited proposals valued over twenty-five million dollars

($25,000,000) shall be posted for ninety (90) days.

(c) Upon the end of the notice period provided under paragraph (b)2. of this

subsection, the governmental body may consider the unsolicited proposal and

any competing proposals received. If the governmental body determines it is

in the best interest of the Commonwealth to implement some or all of the

concepts contained within the unsolicited proposal or competing proposals

received by it, the governmental body may begin an open, competitive

procurement process to do so pursuant to this chapter.

(d) An unsolicited proposal shall be deemed rejected if no written response is

received from the governmental body within ninety (90) days of submission,

during which time the governmental body has not taken any action on the

proposal under paragraph (b) of this subsection.