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) › § 2605 - Authority—Faculty and powers

(a) General powers.— The Authority is hereby conferred, and shall hold and may exercise, all rights and powers as necessary or convenient to meet its purposes, including but not limited to the following:
(1) To have perpetual succession as a corporation.
(2) To adopt, alter, and use a corporate seal of which judicial notice shall be taken.
(3) To formulate, adopt, amend and repeal bylaws for the management of its corporate affairs, as well as standards, rules, and regulations as necessary or pertinent to carry out and discharge its functions, powers, and duties.
(4) To be the owner in fee simple of all its properties.
(5) To assess the nature and need of all its expenses and the manner in which these are to be incurred, authorized and paid for, taking into consideration any provision of law that regulates public fund spending and adopt rules on the use and disbursement of its funds and be subject to the intervention of the Office of the Comptroller of Puerto Rico.
(6) To collect fees for the services it shall render as part of the process of establishing partnerships, including fees charged to partnering government entities or voluntary proponents, as provided in § 2608 of this title, to defray the development of the project, and to prospective proponents for their participation in any qualification or award process, or in both; Provided, That, at the discretion of the Board, service fees shall be established: (A) on a percentage basis, which may range from point five percent (0.5%) to three percent (3%) of the total estimated cost of the project, in the aggregate; or (B) on a reimbursement basis of the costs incurred by the Authority in relation to the project, including costs incurred in project consultants and direct administrative costs related to the project, plus, a fixed charge ranging from five percent (5%) to fifteen percent (15%) on the costs incurred in project consultants, to be established depending on the complexity of the project. These service fees shall be payable to the Authority whether or not the project is completed; Provided, That, should the project process be canceled before the completion thereof, the service fee collected based on the total estimated cost of the project in the aggregate shall be adjusted according to the percentage of project completion as of the cancellation date;
(7) To sue and be sued under its own name, to file complaints and defend itself before all courts of justice and administrative bodies, and to participate in commercial arbitration proceedings.
(8) To negotiate and execute with any person, including any federal or Commonwealth government agency, any kind of contract, including, without it being understood as a limitation, administrative grant contracts and any kind of partnership contract pursuant to the provisions of this chapter, as well as all instruments and agreements as are necessary and convenient to exercise the powers and discharge the functions conferred onto the Authority under this chapter, and agreements with the Bank and other government entities in connection with Authority expenses, fees for services rendered, and refunds as pertinent, to be entered into by and between the former and the latter in connection with the procedures to establish partnerships. Likewise, the Authority may take money on loan from the Bank to cover its operating expenses and to accomplish the purposes of this chapter. To those ends, the Bank is hereby authorized to grant a revolving credit line of up to a maximum of twenty million dollars ($20,000,000), for which the source of repayment shall be the funds received on account of services rendered and fees imposed by the Authority. Furthermore, it is hereby provided a Special Appropriation from the General Expense Budget for Fiscal Year 2014-2015 in the amount of one million dollars ($1,000,000), and a Special Appropriation from the General Expense Budget for Fiscal Year 2015-2016 in the amount of two million dollars ($2,000,000) to enable the Authority to establish a special and separate fund to defray costs related to the evaluation and establishment of partnerships through small scale projects. Future service fees collected by the Authority from small scale projects shall be deposited exclusively in said special fund to be available for such purposes; thus, the appropriation of additional funds from the Central Government shall not be necessary.
(9) To execute contracts for professional, expert or consulting services to assist the Authority in the discharge of its responsibilities, including but not limited to the evaluation of materials to qualify prospective proponents, the evaluation of proposals, and the reviews of partnership contract.
(10) To acquire any property by any legal means, including but not limited to purchase agreements, inheritance, bequeathal or donation, and to hold, conserve, use, and exploit any property as deemed necessary or convenient to carry out the purposes of the Authority.
(11) To assign usufruct, lease, encumber and otherwise dispose of, except through sale, exchange or assignment, any property of the Authority when deemed appropriate, necessary, incidental or convenient in connection with its activities.
(12) To appoint, transfer, and remove such officials, agents or employees, including executive employees, and confer such authorities, impose such duties and fix, change and pay such compensation as the Authority shall determine; Provided, That the Authority shall strive to hire personnel mostly from partnering government entities, the Bank or the Infrastructure Financing Authority, whether the personnel is detailed or permanently transferred.
(13) To obtain insurance against losses in such amounts and with properly licensed insurers as it may deem desirable, which insurance could include, without it being construed as a limitation, insurance against civil liability for directors, officers, agents, and employees.
(14) The Board shall be entitled to examine any information [a] documents presented in the course of the desirability and convenience study preparation process and the procedures governing proponent qualification and requests for and evaluation of proposals. In turn, the Board may require additional information concerning the persons requesting to be qualified, proponents, requests and proposals, insofar as the information thus required is not covered under any privilege granted by the laws of the Commonwealth of Puerto Rico.
(15) To exercise such other corporate powers as these are not incompatible with those set forth herein conferred to corporations by the laws of Puerto Rico, and exercise all such powers inside and outside of Puerto Rico.
(16) To take all actions or measures as necessary or convenient to discharge the powers conferred under this chapter or any other act of the Legislature of Puerto Rico or the United States Congress.
(b) Specific powers.— The Authority is hereby designated as the sole government entity authorized and responsible for implementing the public policy on partnerships as set forth in this chapter and for determining the functions, services or facilities for which such partnerships are to be established. In recognizing the limitation as to investment resources, the Authority shall establish priorities in the development of projects, in order for partnership contracts to address infrastructure needs or services that hold priority for the Commonwealth, according to the public policy set forth in this chapter and not necessarily as dictated by investment profitability criteria. Once the Authority decides to establish a partnership, the partnering government entity and the Bank shall be bound to provide such technical, expert, financial, and human resource assistance as the Authority may need and as these entities are able to provide to ensure the successful establishment of such partnership. In addition to the general powers conferred under subsection (a) of this section, the Authority is hereby authorized to:
(1) Evaluate and select the government entities, functions, services, and facilities for partnerships, conduct analysis as well as studies on the feasibility, desirability and convenience of the project as necessary to determine whether it is advisable to carry out the project and establish such partnership.
(2) Create and approve a regulation or regulations to regulate procedures leading to the establishment of partnerships, which shall include the criteria to be used and the procedures to be followed in order to (A) identify the functions, services or facilities for which a partnership is to be established, (B) call candidates to participate in procedures to establish partnerships and to publish a notice in connection with the commencement of such procedures in a newspaper of general circulation or over the Internet, (C) evaluate proposals and proponents and select the best proposal and the best proponent, (D) negotiate partnership contracts, (E) grant proponents who so request, after a determination by the Authority subject to judicial review under § 2619 of this title, access to the official records of the Authority in connection with such determination during the period in which proponents may request a judicial review of the decision issued by the Authority, and (F) supervise, together with partnering government entities, the partnerships after the partnership contracts have been approved and signed. Such regulation or regulations shall be open to comments from the general public. The Authority shall notify the place and time or the webpage on which the draft for the regulation shall be available through a notice published for three (3) days in two (2) newspapers of general circulation. The public shall have ten (10) days from the last day of publication to submit their written comments to the Authority. After such comments have been received and having had the benefit of evaluating the same and determine which comments are pertinent to incorporate or review the draft for the regulation according to the comments received, the final regulation shall be approved by the Board of Directors of the Authority and take effect immediately after such approval or on the date determined by the Board. The final regulation shall be filed with the Department of State and the Legislative Library within thirty (30) days following its approval.
(3) Evaluate the terms and conditions of each partnership contract and make recommendations in connection therewith to the Board of Directors of the partnering government entity, or, in the event that the partnering government entity does not have a Board of Directors, to the head of the entity or to the Secretary of the Department to which such partnering government entity is attached.
(4) Contract with any person, including experts, technical experts, advisors and consultants, in order to prepare a study on desirability and convenience, and provide any other kind of goods or services as necessary to advise the Authority regarding all aspects or elements of each partnership.
(5) Enter into direct contracts with third parties, pro se or on behalf of partnering government entities, in connection with transitional or provisional services, including but not limited to services provided upon completion of the term of the partnership contract, whose temporary, provisional or transitional services may include but are not limited to (A) providing provisional or transitional services or functions until the time a partnership contract is executed, (B) take over operations after a breach by the contractor or (C) providing services relative to environmental remediation or to the seizure or removal of facilities. The Authority or the partnering government entity shall, without limiting the foregoing, also be entitled to render the contract ineffective, to take over from the contractor and to carry out directly or contract a third party on an provisional or temporary basis to develop, operate, maintain, and administer a facility or to provide a service or discharge a function if the Authority determines in its reasonable discretion that the contractor’s ongoing performance of such tasks poses a risk to the public health and safety or to the environment.
(c) Ownership and tenure.— The Authority shall not have the power to transfer ownership of public goods to private entities or persons. Any facility developed by a contractor, whose ownership or tenure remains under its control for the duration of the partnership contract, shall be transferred to the government entity not later than at the end of the term of such contract or upon its termination or rescindment.
(d) Location consultations, permits, and endorsements.— A partnership established pursuant to the provisions of this chapter shall meet all applicable requirements as to location consultations, permits, and endorsements, as established under the laws of the Commonwealth of Puerto Rico. In order to ensure the expeditious and prompt observance of these requirements, for each partnership, the Governor or the person on whom he/she delegates shall establish an interagency committee composed of all government entities with jurisdiction to evaluate location consultations and to issue permits and endorsements in connection with a partnership. This Committee shall cease functions once all the location consultations, permits and endorsements necessary to carry out a partnership contract have been addressed.
Selected proponents shall be responsible for procuring and obtaining the location consultation and the permits and endorsements necessary to carry out a partnership, while assuming any risk in case they fail to obtain the authorized location consultation or the permits or endorsements required.
History —June 8, 2009, No. 29, § 6; Dec. 19, 2014, No. 237, § 3.