The State's inability to accept unsolicited proposals may result in a critical project falling by the wayside if only one firm is interested in pursuing it. The requirement to engage in competition might also delay emergency projects. The inability to accept unsolicited proposals has not been a problem to date, but, commenters suggest, likely will be a problem in the future, as new laws enable innovative infrastructure delivery. Under current lawthe following steps are necessary if no competing proposals are received: (1) receive proposal; (2) consider whether to proceed; (3) issue request for competing proposals; (4) if no other responses are received, drop the procurement or seek special approval to proceed with negotiations with the proposer; (5) solicit and receive a detailed proposal from the proposer, (6) negotiate terms and conditions acceptable to DOT, and (7) award.
A suggested change was proposed that would allow State DOTs to accept unsolicited proposals as permitted by State law. The following steps would be followed if no competing proposals are received: (1) receive proposal; (2) consider whether to proceed; (3) issue request for competing proposals; (4) if only one response is received, proceed with analysis to determine whether it is in the public interest to proceed; (5) solicit and receive a detailed proposal from the proposer, (6) negotiate terms and conditions acceptable to DOT, and (7) award.
In the view of the State DOT, the private sector will be discouraged from submitting proposals if they know that the agency will be allowed to proceed only if a second proposer can be found. Faced with a myriad of business opportunities to choose from, contractors will consider many different factors in deciding whether to participate in a competition for a particular project. The factors considered in making the decision to provide an unsolicited proposal will include the level of effort involved in preparing the initial proposal and participating in a competition, the likelihood of success, and the level of potential profits if successful. Public-private partnerships require a higher level of effort than other types of projects, thus decreasing the likelihood that a contractor will participate. In order to encourage the likelihood that such proposals will be submitted, it is advisable to establish a procedure that ensures the proposers that their ideas will not die an untimely death merely because no other proposers are interested in competing.
In addition, the unsolicited proposal process encourages the private sector to evaluate projects "in the works" and propose options that can greatly accelerate project delivery. The proposed change will make it more likely that proposals will be made.