Arkansas Code of 1987 (2023) › Title 22 - PUBLIC PROPERTY (§§ 22-1-101 — 22-10-505) › Chapter 10 - PARTNERSHIP FOR PUBLIC FACILITIES AND INFRASTRUCTURE ACT (§§ 22-10-101 — 22-10-505) › Subchapter 5 - ADMINISTRATION (§§ 22-10-501 — 22-10-505) › Section 22-10-503 - Rules

(a)
The Department of Transformation and Shared Services and the Arkansas Development Finance Authority shall jointly promulgate rules to administer this chapter, including without limitation rules regarding:
(1)
Criteria for selecting a qualifying project;
(2)
Guidelines for a public entity operating under this chapter;
(3)
Guidelines for monitoring and reporting on qualifying projects;
(4)
Timeline for selecting a qualified respondent;
(5)
Guidelines for negotiating a comprehensive agreement;
(6)
Guidelines for the accelerated selection of a qualified respondent and the review and approval of a qualifying project that the Governor determines to be a priority and that is funded, in whole or in part, by dedicated revenues;
(7)
Guidelines for selecting a qualifying project, including without limitation:
(A)
Reasonable criteria for selecting and scoring among competing proposals;
(B)
Financial review and analysis procedures for financial and technical advisors or consultants that include without limitation:
(i)
A cost-benefit analysis;
(ii)
A value-for-money analysis, which shall include without limitation a:
(a)
Qualitative assessment;
(b)
Quantitative assessment;
(c)
Business case analysis; and
(d)
Comparison of the net present value of the total, risk-adjusted costs of delivering a qualifying project under this chapter and through procurement methods outside of this chapter;
(iii)
An assessment of the opportunity cost;
(iv)
An analysis of the lifecycle costs, including without limitation the design and construction costs, operating costs, and maintenance and upgrade costs; and
(v)
Consideration of the results of relevant studies and analyses related to the proposed qualifying project;
(C)
Procedures for considering the nonfinancial benefits of a proposed qualifying project;
(D)
Suggested timelines for selecting proposals and negotiating an interim agreement or a comprehensive agreement;
(E)
Criteria for allowing the responsible public entity to accelerate the selection, review, and documentation timelines for proposals involving a qualifying project that the responsible public entity considers to be a priority;
(F)
Procedures to:
(i)
Determine the adequacy of the information released when seeking proposals under this chapter; and
(ii)
Allow the responsible public entity to release more detailed information when seeking proposals if the responsible public entity determines that the release of additional information is necessary to encourage competition;
(G)
Criteria, key decision points, and approvals that are required to ensure that the responsible public entity considers the extent of competition before selecting proposals and negotiating an interim agreement or a comprehensive agreement;
(H)
Criteria for establishing and determining any fees that the responsible public entity elects to charge under §
22-10-202
;
(I)
Procedures for posting and publishing the public notice of a responsible public entity's request for proposals, including without limitation:
(i)
Specific information and documentation to be released regarding the nature, timing, and scope of the qualifying project;
(ii)
(a)
A reasonable time period as determined by the responsible public entity to encourage competition and public-private partnerships in accordance with the purpose of this chapter.
(b)
However, the time period established under subdivision (a)(7)(I)(ii)
(a)
of this section shall not be less than forty-five (45) days, during which time the responsible public entity shall accept the submission of proposals for the qualifying project under this chapter; and
(iii)
A process for posting the notice required under this subdivision (a)(7)(I) on the responsible public entity's official website and otherwise publishing the notice; and
(J)
The maximum term of a comprehensive agreement for each type of qualifying project for which the responsible public entity intends to request proposals or invite bids from private entities;
(8)
A responsible public entity's interaction with affected local jurisdictions and other public entities, including without limitation:
(A)
Considerations and guidelines for establishing and determining the delivery of a request for proposals or an invitation for bids by the responsible public entity to each affected local jurisdiction and public entity that has complementary authority with respect to a qualifying project;
(B)
The method of identifying affected local jurisdictions and public entities that have complementary authority with respect to a qualifying project; and
(C)
The time period during which an affected local jurisdiction and a public entity other than the responsible public entity may:
(i)
Submit written comments regarding the proposed qualifying project to the responsible public entity; and
(ii)
Indicate whether the proposed qualifying project is compatible with local plans and budgets;
(9)
Considerations and guidelines for establishing and determining the mandatory and optional elements of a proposal by a private entity under this chapter, including without limitation:
(A)
A project description, including without limitation:
(i)
The location of the qualifying project; and
(ii)
The specific or conceptual design of the proposed facility, building, infrastructure, or improvement or a conceptual plan for the provision of services or technology infrastructure;
(B)
A feasibility statement that includes without limitation:
(i)
The method by which the private entity proposes to secure any necessary property interests required for the qualifying project;
(ii)
A list of all permits and approvals required for the qualifying project from local, state, and federal agencies; and
(iii)
A list of public utility facilities, if any, that will be crossed by the qualifying project and a statement of how the private entity will accommodate the crossings;
(C)
A schedule for the initiation and completion of the qualifying project, including without limitation:
(i)
The proposed responsibilities of the responsible public entity and the private entity;
(ii)
A timeline of the activities to be performed by the responsible public entity and the private entity; and
(iii)
A proposed schedule for obtaining the permits required under subdivision (a)(9)(B)(ii) of this section;
(D)
A plan for financing the qualifying project, including without limitation:
(i)
The sources of the private entity's funds;
(ii)
Any dedicated revenue source or proposed debt or equity investment on behalf of the private entity;
(iii)
A description of any user fees, lease payments, and other service payments to be paid over the term of the interim agreement or the comprehensive agreement; and
(iv)
The methodology and circumstances for modifying any user fees, lease payments, and other service payments;
(E)
A business case statement that includes a basic description of the indirect and direct benefits that the private entity can provide in delivering the qualifying project, including without limitation relevant cost, quality, and time frame data;
(F)
The names and addresses of the persons who may be contacted for further information concerning the request; and
(G)
Any additional material and information that the responsible public entity reasonably requests;
(10)
Considerations and guidelines with respect to the preliminary, mandatory, and optional requirements of an interim agreement and a comprehensive agreement, including without limitation the:
(A)
Engagement of:
(i)
An attorney;
(ii)
A certified public accountant;
(iii)
A financial or economics professional; and
(iv)
A consultant or other professional with specialized expertise that is relevant to the proposed qualifying project;
(B)
(i)
Delivery of one (1) or more written evaluations or assessments analyzing financial, legal, or other considerations that should be evaluated by the public entity, including without limitation an assessment of the costs of the qualifying project, the financial viability of the qualifying project, and all other financial and operating assumptions related to the qualifying project.
(ii)
If municipal financing is a component of the interim agreement, the responsible public entity shall obtain a written evaluation of the proposed qualifying project from a municipal advisor registered with the United States Securities and Exchange Commission and the Municipal Securities Rulemaking Board;
(C)
Fees and expenses and the responsibility for paying the fees and expenses associated with engaging an attorney, certified public accountant, financial or economics professional, or other consultant; and
(D)
Negotiation and creation of additional contracts for services and materials, including without limitation revenue contracts, construction contracts, management contracts, services contracts, and other agreements related to the qualifying project;
(11)
Considerations and guidelines with respect to the preliminary, mandatory, and optional terms and conditions of an interim agreement, including without limitation:
(A)
Criteria for determining when the private entity is permitted to commence activities and perform tasks related to the qualifying project for which the private entity shall be compensated, including without limitation:
(i)
Project planning and development;
(ii)
Design and engineering;
(iii)
Environmental analysis and mitigation;
(iv)
Surveying; and
(v)
Ascertaining the availability of financing for the proposed qualifying project and the ownership of any work product developed;
(B)
Criteria for establishing the process and timing of the negotiation of the comprehensive agreement;
(C)
The process for amending, extending, or supplementing an interim agreement; and
(D)
Other provisions and criteria related to the development of a proposed qualifying project;
(12)
Considerations and guidelines with respect to the preliminary, mandatory, and optional terms and conditions of a comprehensive agreement, including without limitation:
(A)
A thorough description of the duties of the responsible public entity and the qualified respondent in relation to the development and operation of the qualifying project;
(B)
Dates and schedules for the completion of the qualifying project, including any available extensions or renewals of the qualifying project;
(C)
A pro forma analysis or budget under which the qualifying project shall be developed, financed, constructed, operated, and maintained;
(D)
The source of all revenues derived from the operation and maintenance of the qualifying project and any process for modifying the revenues during the term of the comprehensive agreement;
(E)
Financing and funding sources for the qualifying project and any contractual provisions related to the financing and funding sources for the qualifying project;
(F)
A copy of each contract related to the development of the qualifying project;
(G)
Reimbursements to be paid to the responsible public entity for services provided by the qualified respondent, if any;
(H)
A process for the review of plans and specifications for the qualifying project by the responsible public entity and the engineering and architectural consultants of the responsible public entity, if any;
(I)
A process for the periodic and final inspection of the qualifying project by the responsible public entity or its designee to ensure that the qualified respondent's development activities comply with the comprehensive agreement;
(J)
For the components of the qualifying project that involve construction, provisions for the:
(i)
Delivery of maintenance, payment, and performance bonds in the amounts that may be specified by the responsible public entity in the comprehensive agreement; and
(ii)
Posting and delivery of all other bonds, letters of credit, or other forms of security acceptable to the responsible public entity in connection with the development of the qualifying project;
(K)
Submission to the responsible public entity by the qualified respondent of proof of workers' compensation, property, casualty, general liability, and other policies of insurance related to the development and operation of the qualifying project in the amounts and subject to the terms that may be specified by the responsible public entity in the comprehensive agreement;
(L)
A process for the responsible public entity's monitoring of the practices of the qualified respondent to ensure that the qualifying project is properly developed, constructed, operated, and maintained;
(M)
The filing by the qualified respondent of appropriate financial statements with the responsible public entity related to the operations of the qualifying project within the timeframes established in the comprehensive agreement;
(N)
Policies and procedures governing the rights and responsibilities of the responsible public entity and the qualified respondent if the comprehensive agreement is terminated according to the terms of the comprehensive agreement or as the result of a default under the terms of the comprehensive agreement; and
(O)
The process for amending, extending, or supplementing the terms of the comprehensive agreement; and
(13)
Guidelines for using the value-for-money analysis as a determinative factor in selecting a qualifying project.
(b)
The Department of Transformation and Shared Services and the Arkansas Development Finance Authority may jointly promulgate rules that establish procurement guidelines and requirements that vary depending on the type of qualifying project.
Amended by Act 2021, No. 480,§ 3, eff. 7/28/2021.
Amended by Act 2021, No. 480,§ 2, eff. 7/28/2021.
Amended by Act 2019, No. 910,§ 6249, eff. 7/1/2019.
Amended by Act 2019, No. 910,§ 6248, eff. 7/1/2019.
Added by Act 2017, No. 813,§ 1, eff. 8/1/2017.