2023 Laws of Puerto Rico › TITLE TWENTY-SEVEN - Public Service (§§ 1 — 2641) › PART V - Regulation of Public Services (§§ 2601 — 2641) › Chapter 91 - Public-Private Partnerships Act (§§ 2601 — 2623) › § 2608 - Procedure for the selection of proponents and award of partnerships

(a) Applicable requirements and conditions for those who wish to be considered as proponents.— Any proponent who wishes to be contracted for a partnership must meet the following requirements and conditions, in addition to such requirements as provided in the request for qualification or in the request for proposals designed for such partnership, which may by no means impair fair competition and the public interest, to wit:
(1) When executing a partnership contract, the proponent shall be a person authorized to do business in the Commonwealth of Puerto Rico.
(2) The proponent shall have available such corporate or equity capital or securities or other financial resources that, in the judgment of the Authority and the Partnership Committee, are necessary for the proper operation of the partnership.
(3) The proponent shall have a good reputation and the managerial, organizational and technical capacities, as well as the experience, to develop and administer the partnership.
(4) The proponent shall certify that neither he or she, and in the case of a juridical person, its directors or officers, and in the case of a private corporation, the bondholders with direct or substantial control over the corporate policy, and in the case of a partnership, its partners, and in the case of natural or juridical persons, any other natural or juridical person that is the alter ego or the passive economic agent thereof, have been formally convicted for acts of corruption, including any of the crimes listed in §§ 928 et seq. of Title 3, whether in Puerto Rico or in any jurisdiction of the United States of America or in any foreign country. Likewise, the proponent shall certify that the latter complies and shall continue to comply at all times with laws which prohibit corruption or regulate crimes against public functions or funds, as may apply to the proponent, whether federal or state statutes, including the Foreign Corrupt Practices Act.
(b) Procedure for selection and award.—
(1) To select proponents to enter into a partnership, the Authority must use, firstly, a procedure for requests for proposals based on qualifications or the best value in proposals or both, and shall be so recorded in the request for proposals. Once the Authority completes the proponent qualification procedures, the Authority shall proceed with the proposal evaluation and selection procedures.
(2) Without this being construed as a limitation to the provisions in clause (1) of this subsection (b), the Authority may negotiate partnership contracts without abiding by the procedures for requests for proposals in the following cases: (A) when there is only one source capable of providing the service required, such as services that require the use of intellectual property, trade secrets or other licenses or rights which only certain persons own or hold exclusively; and (B) when a call to any pre-qualification procedure or any request for proposals conducted pursuant to the provisions of § 2605(b)(1) of this title has been issued and there has been no participation or response, or the proposals submitted have failed substantially to meet the evaluation requirements provided for in the request for proposals, and if, in the judgment of the Authority, issuing a new request for qualification and for proposals would cause such a delay that it would render the possibility of selecting a proponent and executing a partnership contract within the timeframe required, highly unlikely. In the cases mentioned in paragraphs (A) and (B) of this clause, before executing a partnership contract, notice must be given to the Joint Committee on Public-Private Partnerships of the Legislative Assembly, created in this chapter, for the appropriate action.
Without limiting the generality of the provisions of the preceding paragraph of this clause, in the case of small scale projects, the Authority shall also be authorized to receive and consider unsolicited or voluntary proposals. An unsolicited or voluntary proposal shall include, at least: (1) an outline or summary of the proposal; (2) a description of how the proposal satisfies a government need; (3) the particular aspects of the proposal that differentiate it from other proposals or the traditional way of developing the proposed project; (4) the support required from the public sector and the direct and indirect costs of the project, including the cost of capital; (5) the financial viability, including but not limited to, the financial capacity of the proponent, the identified or suggested financing mechanisms, the sources of repayment or income related to the proposed function, service or facility object of the proposal; (6) the commercial aspects of the project; (7) the anticipated benefits for the public sector, including why the proposal is in the public’s best interest; (8) the proposed method for developing the project; and (9) the intellectual property, if any. An unsolicited or voluntary proposal must be accompanied by a non-refundable evaluation fee of five thousand dollars ($5,000) payable to the Authority; Provided, That, to the extent said proposal results in the development of the proposed project, the Board may, in its sole discretion, credit said amounts to any payment required from the Proponent or may return to the Proponent fifty percent (50%) of said amounts if the Proponent is not selected to develop the project.
The Authority shall receive all unsolicited or voluntary proposals and refer them to the Standing Committee on Small Scale Projects. The Standing Committee on Small Scale Projects shall preliminarily evaluate unsolicited or voluntary proposals within a term of sixty (60) days, which term may be extended for an additional sixty (60) days.
Once the evaluation period has concluded, within a term not to exceed ten (10) business days, the Authority shall, acting in accordance with the determination of the Standing Committee on Small Scale Projects, inform the voluntary proponent whether the proposed project is considered as potentially beneficial to the public interest. If the project is considered as potentially beneficial to the public interest, the Authority shall instruct the voluntary proponent to submit, to the extent not already submitted, as much information as may be reasonably obtained regarding the proposed project, to allow the Standing Committee on Small Scale Projects to fully evaluate the qualifications of the voluntary proponent and the technical and economic feasibility of said project, as well as determine whether the project may be successfully implemented. Said additional information may include any technical and economic feasibility studies, environmental studies or information regarding the concept or technology contemplated in the proposal. When considering a voluntary proposal, the Authority and the Standing Committee on Small Scale Projects must observe the confidentiality of any intellectual property, trade secrets, and any exclusive rights, that arise from, or are referred to, in the voluntary proposal. The Standing Committee on Small Scale Projects shall not use the information submitted by or on behalf of the voluntary proponent relating to, or as a part of its voluntary proposal, for purposes other than the evaluation and study of said proposal, unless the proponent consents to other uses. In addition, unless the parties agree otherwise, the Standing Committee on Small Scale Projects shall return to the voluntary proponent the original and the copies of any documents furnished as part of the submitted proposal if said proposal is rejected by the Standing Committee on Small Scale Projects.
If the Standing Committee on Small Scale Projects decides to promote and implement the project received by means of an unsolicited proposal, the Authority may initiate a selection process in accordance with Section 9(b)(i), if: (1) it determines that the project may be completed without using intellectual property, trade secrets or proprietary or exclusive rights or licenses held by the voluntary Proponent, or (2) the proposed technology or concept is not innovative. The voluntary Proponent shall be invited to participate in the competitive selection process initiated, and shall be given advantage or other benefit in the selection process, as stated by the Standing Committee on Small Scale Projects in the request for proposals, in consideration of its development and submittal of the initial voluntary proposal. If the Standing Committee on Small Scale Projects determines that the conditions specified in clauses (1) and (2) of the preceding sentence are not present and/or there are reasons that justify such action, as determined by the Authority’s Board, the Standing Committee on Small Scale Projects shall not be required to carry out a selection process under clause (1) of this subsection, but must gather information to have all the elements necessary to evaluate the voluntary proposal in accordance with subsection (c). In said cases, the Standing Committee on Small Scale Projects shall also informally verify whether other parties are interested in presenting similar or comparable proposals. To such effect, the Authority shall publish on its webpage a description of the essential elements of the voluntary proposal along with a request to other interested parties to submit informal proposals within the timeframe established therein by the Standing Committee on Small Scale Projects, and shall publish a notice in a newspaper of general circulation notifying said publication. If the Committee on Small Scale Projects does not receive additional proposals within the timeframe established in the notice of request for proposals, it may initiate negotiations with the original voluntary proponent directly in accordance with the parameters previously established by the Standing Committee on Small Scale Projects. If the Standing Committee on Small Scale Projects receives proposals as a result of the request referred to in this paragraph, the Authority shall request the voluntary Proponent, as well as those parties that answered the notice and meet the standards and criteria specified in said notice, to submit proposals pursuant to clause (1) of this subsection, subject to any incentive or other benefit granted to the voluntary proponent for its development and submittal of the initial voluntary proposal, in accordance with the parameters established by the Standing Committee on Small Scale Projects.
(3) The details of the procedures for calling, qualifying, evaluating, negotiating with, and selecting proponents and granting partnership contracts shall be established through regulations approved to such effects or under the terms of the request for proposals. These methods and procedures shall be aimed at guaranteeing the participation of the greatest number of potential proponents who comply with the appropriate qualifications as determined by the Authority, as well as at protecting and ensuring equal conditions of all participants in competition. The Authority shall impose requirements such as bonds, letters of credit or similar collateral as a previous requirement for participating in the procedures, with the purpose of ensuring compliance by the proponent with procedural requirements, signing the partnership contract if such proponent should be selected, and all other conditions as may be provided by the Authority by regulation or on the request for proposals. Furthermore, the regulation or the request for proposal shall fix the amount of the bond and the circumstances under which the proponent shall lose such bond. The Authority may also provide on the request for proposals that, based on the proposals received, the Authority may decide to divide the function, service or installation (be it the operation, building or improvement thereof) considered under the procedure to grant the same to two (2) or more proponents, if in its judgment, it should determine that doing so is the best option for the project or to serve the public interest.
Any proponents who submit proposals for partnership contracts shall assume the risk of paying for all expenses relative to the proponent pre-qualification procedure and the preparation and presentation of their proposals, as well as expenses incurred throughout the entire process of discussion and negotiation with the Partnership Committee, including the negotiation stage of any partnership contract, and the Authority shall not be responsible for any such expenses.
(c) Evaluation criteria.— Among the criteria to be included in the regulation or request for proposals adopted by the Authority to carry out the proponent selection procedure and the negotiation with the best proponent(s), without it being construed as a limitation or that the order herein provided determines their importance, are the following:
(1) The reputation, the commercial or financial, technical and professional capacities and the experience of the proponent.
(2) An update of a certification attesting that neither the proponent, and in the case of a juridical person, its directors or officials, and in the case of a private corporation, the bondholders with direct or substantial control over the corporate policy, and in the case of a partnership, its partners, and in the case of natural or juridical persons, any other natural or juridical person that is the alter ego or the passive economic agent thereof, have been formally convicted for acts of corruption, including any of the crimes listed in §§ 928 et seq. of Title 3, whether in Puerto Rico, in any jurisdiction of the United States of America or in any foreign country and under the Foreign Corrupt Practices Act.
(3) In projects with building elements, whether newly built structures or improvements to existing infrastructure, the quality of the proposal submitted by the proponent in connection with, among others, aspects such as design, engineering, and estimated or guaranteed building time and the previous experience of proponents in building similar projects.
(4) The capital which the proponent has pledged for the project, the recovery time, and yield requirements for such capital.
(5) The financing plans of the proponent and the financial capacity thereof to carry out such plans.
(6) The economic and financial feasibility of the project, as well as the results of the environmental studies conducted to determine the feasibility and convenience of a partnership, as established in § 2606(b)(9) of this title.
(7) The fees that the proponent intends to charge and the conditions under which such fees would be adjusted, as well as the projected net income flow, the cost of the capital used by the proponent, the internal rate of return of the project and its net present value.
(8) The income to be received by the partnering government entity or the financial or other kinds of contributions to be made by the partnering government entity under the partnership contract.
(9) The terms of the contract with the partnering government entity that the proponent pledges to accept.
(10) The commitments or the priorities that the contractor is willing to establish in order to hire employees from the partnering government entity affected by the partnership, as well as the risk to be assumed by the contractor.
(11) Any other criterion that, in the judgment of the Authority or the Partnership Committee, is appropriate or necessary to award the partnership contract proposed.
(d) Consortia.— The Authority may allow and indicate in the documents pertaining to requests for qualifications or for proposals that the prospective proponents present their proposals jointly under consortia. The information required from the members of such consortia so as to prove their capabilities to be qualified as required under this chapter or as provided for under the request for qualifications shall be submitted by such consortia describing the identity of the members of the proposing consortia and their joint capabilities, as well as the individual capabilities of each of their members. Except if otherwise provided for in the request for qualifications, no member of a proposing consortium may participate, whether directly or indirectly, in more than one consortium for the same project. Unless otherwise provided, any violation of this provision shall disqualify the consortium and its members individually. When evaluating the qualifications of a consortium, the Authority shall take into account the capabilities of each of the members of such consortium and evaluate whether the combination of capabilities of such members is suitable to comply with all phases of the proposed project. The Authority shall be entitled to condition the selection of certain proponents or consortia to the joining of such proponents or consortia in presenting a joint proposal when, based on the qualifications of individual proponents or consortia, the Authority determines that:
(1) Such action better serves the public interest, or
(2) the evaluation criteria set forth in subsection (c) of this section are better met if such action is taken.
(e) Approval by the Partnership Committee.— The Partnership Committee shall approve such proposal or proposals that, in its discretion, better meet(s) the criteria established by this chapter and by the Authority, pursuant to the applicable regulations or request for proposals, and it shall also determine whether further negotiations are in order or not.
(f) Negotiation of the partnership contract.— After selecting a proposal for a partnership, or as part of the procedures for such selection, the Partnership Committee or any delegate under its supervision shall negotiate the terms and conditions of the Partnership Committee with the proponent or proponents thus selected when in order, insofar as such terms and conditions have not been a part of the requirements specified in the request for proposals upon which such proponents were to base their proposals for submittal. When the Partnership Committee so deems appropriate, more than one proponent may be selected to negotiate the terms and conditions of the partnership contract and to conduct the negotiations concurrently. The delegate or delegates of the Partnership Committee with the authority to negotiate the partnership contract with the proponent or proponents shall be executives from the Authority, the Bank or the partnering government entity appointed by the Partnership Committee for such purposes, provided that the responsibility of approving the terms and conditions of the partnership contract remains exclusively with the Partnership Committee. Likewise, the delegate or delegates may contract experts, advisors or consultants to provide assistance in the selection procedure.
(g) Approval of the partnership contract; preparation of the report.—
(1) Upon completion of the negotiation for the partnership contract, the Partnership Committee shall prepare a report, which shall include the reasons for entering into a partnership, the reasons for selecting the chosen proponent, a description of the procedure followed, including comparisons between the proponent and the partnership contract recommended and other proposals presented, as well as all other information pertinent to the procedure followed and the evaluation conducted.
(2) The report shall be presented for the approval of the Board of Directors of the Authority and the Board of Directors of the partnering government entity or the head of the entity or the Secretary of the Department to which the same is attached, not later than thirty (30) days after completion of the negotiation of the partnership contract. Once such contract is final, a copy of the report shall be filed with the Secretary of the Senate and the Clerk of the House of Representatives. Likewise, this report shall be published over the Internet.
(3) The Board of Directors of the Authority and of the partnering government entity, or in the event there is no Board of Directors, the head of the entity or the Secretary of the Department to which the same is attached, must approve the report and the partnership contract through a resolution if there is a Board of Directors, or through an administrative order in the case of a Secretary or a head of agency. Such resolutions or administrative orders shall contain their agreement to or denial of that which the Partnership Committee has presented and recommended, together with the grounds for such determination. The mere approval of the report and the partnership contract by the government entity and the Board of Directors of the Authority does not confer the right to claim indemnity, refund, or any payment whatsoever on account of expectations arisen in any of its stages, or for expenses incurred during the qualification or proposal presentation procedures.
(4) Upon approval of the report and the partnership contract by both Boards of Directors (or the Secretary or head of agency), the report and the partnership contract shall be submitted to the Governor or the executive officer to whom he delegates for approval. The report submitted for the approval of the Governor or the executive officer to whom he delegates shall include the recommendation of the Bank on the use of funds derived from the partnership contract pursuant to the provisions of § 2616 of this title, if any. The Governor may delegate the power to approve the partnership contract to an executive officer by means of an Executive Order, but shall not delegate the power to approve the use of funds. The Governor or the person to whom he delegates and who shall never be a member of the Board of Directors of the Authority or of the Partnership Committee that intervened in the contract, shall have full discretion to approve the report of the Partnership Committee and the partnership contract. In the case of small scale projects, upon approval of the report and the partnership contract by both Boards of Directors (or the Secretary or head of agency), the contract shall be deemed to be ready to be executed by the parties thereto, unless said contract requires the approval of the Governor, by constitutional mandate, in which case, the process established above for all other partnership contracts shall be followed.
(5) Upon receiving the report from the Partnership Committee and the partnership contract, the Governor or the executive official onto whom he/she delegates shall have thirty (30) days to approve or deny the same in writing; Provided, That if such report and partnership contract are not approved during said term, these shall be deemed to be denied. If the Governor were to approve the partnership contract, the same shall be deemed to have been perfected when the parties, that is, the selected proponent and the partnering government entity, sign such contract.
(6) After the Governor or the executive officer to whom he delegates has approved the partnership contract, or in the case of small scale projects that do not require the approval of the Governor, once the report and the partnership contract are approved by both Boards of Directors (or the Secretary or head of agency), the Authority shall give written notice to all other proponents of the fact that their proposals have not been accepted, shall disclose the identity of the proponent thus selected and indicate to the proponents that they shall have access to the Authority record that pertains to the selection procedure and the award of the partnership contract. The Authority shall make available to the proponents who so request a copy of their official record to be examined at the facilities of the Authority. Proponents that were not selected may request judicial review of said determination, subject to the conditions and procedures provided in § 2619 of this title.
(7) In the event a partnership contract is approved, the same shall be signed at the risk of the contractor by the person onto whom the Board of Directors of the partnering government entity delegates such task, if a public corporation, or the Secretary or head of the partnering government entity on behalf of the Commonwealth, if an agency of instrumentality of the Central Government.
(8) Upon issue of the approval by the Governor or the executive official onto whom he/she delegates, the report prepared by the Partnership Committee shall be filed with the Office of both the Secretary of the Senate and the Clerk of the House of Representatives.
(9) As to the use of funds, if any should be derived from the partnership contract under consideration, the provisions of § 2616 of this title shall be observed.
(h) Judicial review.— The elimination of a petitioner by the Partnership Committee during the procedures governing the requests for qualification and the award of the partnership contract to a proponent shall be subject to the judicial review procedures provided for in § 2619 of this title. The award of a partnership contract to a proponent shall be subject to judicial review only when such contract has been approved by the Governor or the official onto whom he/she delegates.
(i) Confidentiality.— In the course of the procedures for the evaluation and selection of and negotiation with proponents, the confidentiality of the information furnished and generated in connection with such procedures for the evaluation, selection, negotiation and grant of the proposals and the partnership contract shall be governed by the confidentiality criteria established by the Authority. The information regarding such procedures, as well as the information submitted by the proponents, shall be disclosed upon approval of the partnership contract by the Governor or the executive official onto whom he/she delegates, except for such information which constitutes (1) a trade secret, (2) proprietary information or (3) privileged or confidential information of either the proponents who participated or the Authority. In cases in which there is the intent to have any information considered as a trade secret or as privileged information, proponents must identify and mark such information in their proposals as “confidential”, and shall present a request together with the proposal in order for the Partnership Committee to make a determination of confidentiality. Once the Partnership Committee determines that such information meets the criteria of this section, such information shall be deemed to be confidential under the provisions of this chapter and such special laws which protect trade secrets and proprietary, privileged or confidential information, and such information may not be disclosed to other proponents or to third parties, except if otherwise provided in this chapter and other applicable special laws. Such confidential or privileged information of the Authority shall be identified and marked as such by the Authority when received or generated. The report to be prepared by the Partnership Committee and to be submitted to the boards of directors and to the secretaries or heads of partnering government entities concerned, as well as to the Governor and to the Legislature, shall not contain confidential information. If so required, the boards of directors, the secretaries or the heads of the partnering government entities concerned or the Governor, based on the need of evaluating the information to make a determination as to the report and the contract, separate access to such confidential information shall be provided insofar as appropriate measures are taken to protect confidential information and consent is obtained from the party to whom the information belongs.
(j) Publicity.— The Authority shall at least grant public access as provided hereinbelow to the following documents: the study on desirability and convenience in connection with a partnership; the documents generated by the Authority to request qualifications and to request proposals in connection with a partnership; and the report prepared for the Partnership Committee, by publishing the same on their webpage and in a newspaper of general circulation, as per the rules established in this chapter or in the regulation of the Authority, as well as any other document or report as set forth in this chapter. The Authority may publish as provided above any other document that, in its full discretion, it may deem pertinent. The foregoing shall not be interpreted as to impair the rights of citizens to access public information and the Authority shall make such information available for public review. However, the Authority may not publish or disclose information deemed to be confidential under the provisions of subsection (i) of this section or any such information whose publication or disclosure could affect the proponent selection process.
History —June 8, 2009, No. 29, § 9; Dec. 27, 2013, No. 173, § 1; Dec. 19, 2014, No. 237, § 6.