B. Requests for Proposals
In situations where acceptance of risk, skill, professional judgment, use of new or different technologies and a complex long-term relationship between the local government and the service provider are involved, cost is only one of the many factors that should affect the selection of the private partner. This is recognized for example as courts have generally exempted contracts for "professional services" from the requirements of Section 103. where the procurement involves a combination of professional and non-professional services as well as the acquisition of goods.
Use of the competitive "request for proposals" process as the vehicle for establishing public-private partnerships offers the necessary flexibility in developing the appropriate scope and details of the project. Responses to request for proposals provide an opportunity to identify new solutions, proprietary technologies, or a sharing of risks. Such a process can be open for public scrutiny. It has been used successfully in other areas of public procurement (e.g., Section 120-w of the General Municipal Law), by many state agencies in the procurement of services and in the private sector.
All elements of the privatization should be permitted to be included within one request for proposal process. The municipality should be able to engage in an omnibus process incorporating, as it chooses, the sale or lease of the asset, the provisions for long-term services, the provisions with respect to financing, the provisions with respect to improvements or expansion of the facility over time, the terms of service performance and all other elements. The evaluation of proposals received should take into account the many different criteria contained in the proposals, including the principal's relative qualifications and experience, their commitments to the particular project, their past environmental compliance history, their abilities to provide financial security to the long-term operations of the facility, the relative qualifications of their subcontractors, and the prices at which the asset is proposed to be acquired and/or the services proposed to be provided.
No one of these individual criteria is uniquely important. In different situations, different relationships among these and other criteria will be important. The procurement process under which a local government seeks a privatization or public-private partnership needs to accommodate to the different facts and circumstances each entity will face. After reviewing competitive proposals, negotiation of final contract terms enables the community to obtain the most favorable allocation of project risks, responsibilities and costs.