HomeMy WebLinkAbout2020-05-07; Clean Energy Alliance JPA; ; Clean Energy Alliance Board Policy Regarding Handling of Unsolicited ProposalsClean Energy Alliance
JOINT POWERS AUTHORITY
Staff Report
DATE: May 7, 2020
TO: Clean Energy Alliance Board of Directors
FROM: Barbara Boswell, Interim Chief Executive Officer
ITEM 2: Clean Energy Alliance Board Policy Regarding Handling of Unsolicited Proposals
RECOMMENDATION:
Provide direction regarding development of an Unsolicited Proposal Policy.
BACKGROUND AND DISCUSSION:
The Clean Energy Alliance (CEA} Joint Powers Authority Agreement identifies the goal of
providing innovative energy programs, projects and services to its customers. Typically, these
programs, projects and services would be sourced through solicitation processes such as
Request for Proposal or Request for Qualifications. However, there may be instances where
public or private sector entities or individuals have an innovative project or idea that they
desire to propose to the Board outside of the normal solicitation processes.
An Unsolicited Proposal Policy establishes procedures and practices regarding how unsolicited
proposals would be submitted and how they would be handled once submitted. Attachment A
is a sample Unsolicited Proposal Policy from SAN DAG.
Staff is seeking direction regarding development of an Unsolicited Proposal Policy.
FISCAL IMPACT
There is no fiscal impact associated with this item.
ATTACHMENTS:
Attachment A-SAN DAG Unsolicited Proposal Policy
May 7, 2020 Item #2 Page 1 of 7
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Attachment A
Board Policy
No.:040
Unsolicited Proposals and Partnership Requests
SANDAG normally develops its own requirements, solicits proposals or bids, and contracts with entities
whose proposals or bids are deemed most advantageous to SAN DAG, however, the Board of Directors
recognizes the valuable, innovative ideas or sources of revenue that educational and nonprofit institutions,
private sector entities, and individuals may bring to propose relevant projects or partnerships that they believe
are within the purview of SANDAG and will help meet SANDAG goals. This policy outlines how SANDAG
staff will process unsolicited proposals to contract with SAN DAG as a consultant or contractor, and
partnership requests seeking to work with SANDAG in a public private partnership (P3) or other similar
arrangement.
Scope of Policy
1.1 This policy is intended to provide high-level policy considerations and procedures to guide
SAN DAG management decisions when responding to unsolicited proposals and partnership
requests (unsolicited offers). The Board of Directors hereby delegates authority to the
Executive Director to create written procedures and to contract with parties submitting unsolicited
proposals or partnership requests consistent with the requirements of this policy and Board Policy
No. 017: Delegation of Authority.
1.2 An "unsolicited proposal" is defined as a written proposal to perform a proposed task or effort,
initiated and submitted to SAN DAG by a prospective consultant or contractor without a
solicitation from SANDAG, with the objective of obtaining a contract award from SANDAG. The
unsolicited proposal is the formal means by which business proposals are brought to the attention
of SAN DAG, submitted in the hope that the SAN DAG will contract with the offeror for goods or
services.
1.3 An "unsolicited partnership request" is a written request that SANDAG participate in a P3 or
other partnership arrangement. Unlike a consultant or contractor arrangement, a partnership
request calls for the requesting partner(s) to assume responsibility and financial liability for
performing all or a significant number of functions in connection with a project. In transferring
responsibility and risk for multiple project elements to the partner, SANDAG would reduce its
controls and risks regarding the project. Additionally, the partner would receive the opportunity
to earn a financial return or other benefits commensurate with the risks it would assume.
1.4 An "offeror" is the term used in this policy to refer to entities or persons submitting an
unsolicited offer, which may be in the form of an unsolicited proposal or partnership request.
1.5 The following types of correspondence will not be considered under this policy: (1) written
inquiries regarding SANDAG interest in research and/or development areas, (2) proposal
explorations, (3) technical inquiries, (4) research descriptions, (5) offers to sell commercial off-the-
shelf equipment or software, (6) a proposal that overlaps with the scope of work in a pending
competitive procurement, and (7) proposals or requests that would require SAN DAG to act
outside SAN DAG authority, inconsistently with applicable laws, or outside the purview of the
agency.
Attachment A
May 7, 2020 Item #2 Page 2 of 7
2 Role of SANDAG Staff
2.1 Offerors may engage in preliminary discussions with SANDAG staff to gauge SANDAG interest in
a potential unsolicited proposal or partnership request. Both SANDAG and offeror staff,
however, must exercise caution to ensure that these preliminary communications do not lead to
inadvertent collaboration on the development of a work statement that would subsequently be
incorporated in an unsolicited offer. This would potentially invalidate the unsolicited nature of
the offer or disqualify it from being considered due to concerns about unfair competition.
Discussions between a potential offeror and SANDAG staff other than SANDAG Contracts and
Procurement Division (CPD) staff should be limited to preliminary discussions of general concepts
only. Discussions with non-CPD staff should be used solely to gauge SANDAG potential interest
and determine whether the unsolicited offer would be of interest to SANDAG. If a potential
offeror wishes to pursue the proposal or request after preliminary discussions, SANDAG staff
should refer the offeror to this Board Policy and the CPD.
2.2 In cooperation with the Office of General Counsel, the CPD is responsible for: (1) establishing
contracting policies and procedures consistent with Board Policies and applicable laws that are
needed to address matters unique to unsolicited proposals and partnerships; (2) processing
solicitations and proposals; and (3) processing unsolicited offers. The CPD will endeavor to
ensure prompt and impartial evaluation in all of its function areas.
3 Preparation and Submission of Proposals
3.1 All unsolicited offers submitted for SANDAG consideration should be addressed to:
Contracts and Procurement Division
Attention: Unsolicited Offers
SANDAG
401 B Street, Suite 800
San Diego, CA 92101
unsolicitedoffers@SANDAG.org
An unsolicited offer submitted directly to anyone other than CPD personnel cannot be acted
upon officially until it is submitted to the CPD. If an offer is not sent by email, five copies of each
offer must be delivered to SAN DAG, one of which must be a manually signed original.
Unsolicited offers should be prepared in conformance with this policy and any written
procedures developed under the authority of the Executive Director. Offerors may submit their
proposals or requests in their own format as long as the required data are provided. Email
submissions may be made to the email address above, provided a single, manually signed hard
copy is mailed concurrently. All electronic submissions must be in PDF and OCR format.
3.2 An unsolicited offer must meet all of the following requirements in order to be eligible for formal
evaluation: (1) it must be in writing; (2) contain a novel, innovative, or otherwise meritorious
concept, application, approach, or method; (3) be independently originated and developed by
the offeror; (4) be prepared without SANDAG staff supervision or direct SANDAG staff
assistance: and (5) present the proposed work or project in sufficient detail to allow a
determination to be made that SANDAG support could be worthwhile and the proposed work
could enhance, benefit, and provide valuable input to SANDAG mission or responsibilities.
3.3 The following information must be included in unsolicited offers:
3.3.1 Name(s) and address(es) of entity(ies) or persons submitting the offer.
3.3.2 Type(s) of organization(s) (for profit, nonprofit, educational, small business, other)
submitting the offer.
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Attachment A
Item #2 Page 3 of 7
3.3.3 In the case of participation of other key entities or persons not participating as an
offeror, provide identifying information for such entities or persons.
3.3.4 Names and telephone numbers of the offeror's technical and business personnel whom
SANDAG may contact for evaluation and negotiation purposes.
3.3.5 Identification of whether the offer is intended to be an unsolicited proposal or
unsolicited partnership request.
3.3.6 Identification of any proprietary data that the offeror intends to be used by the agency
only for evaluation purposes. (See Section 3.4 for instructions).
3.3.7 Names of any other Federal, State, local agencies, or other parties receiving the offer.
3.3.8 Date of submission of the offer.
3.3.9 A signature of a responsible official authorized to contractually obligate the offeror.
3.3.10 Technical information, including a concise title and an abstract (approximately
200 words) of the proposed effort or partnership.
3.3.11 A reasonably complete discussion stating the objectives of the project or partnership,
method of approach, the nature and extent of the anticipated results, and the manner
in which the project or partnership will help support the SANDAG mission.
3.3.12 The names and brief background information of the offeror's key personnel who would
be involved.
3.3.13 The type of support, if any, the offeror requests of SANDAG; e.g., financial, facilities,
real property rights, equipment, materials, profit sharing, or personnel resources.
3.3.14 A cost estimate for the proposed contract award, or estimated amount of investment
from offeror and amount, if any, sought from SANDAG. The estimate must be
sufficiently detailed, by element of cost, for meaningful evaluation by SANDAG and
include subcontractors, partners, or any potential private equity contribution the offeror
would provide. Offeror also must provide its estimate of the projected total net value or
cost of the proposal or partnership to SANDAG and offeror over the life of the program,
project, or service.
3.3.15 Period of time for which the offer is valid (minimum of three months).
3.3.16 Proposed schedule.
3.3.17 A statement, if applicable, regarding proposed cost or revenue sharing.
3.3.18 Identification of any organizational conflicts or financial conflicts of interest with
SANDAG, its member agencies, or the members of the Board of Directors.
3.3.19 A brief description of the offeror's organization and previous relevant work or
experience.
3.3.20 A statement demonstrating the financial ability of the offeror to perform the project or
venture.
3.4 Proprietary Data
Whenever possible, an offeror should submit a proposal without restrictions on the use of
technical data provided. All offers shall be public records. The offeror must state whether or not
the proposal contains proprietary information that constitutes a trade secret pursuant to
California Civil Code section 3426.1. If an unsolicited offer includes trade secret data that the
offeror does not want disclosed for any purpose other than evaluation of the offer, the title page
shall be marked with the following legend:
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Attachment A
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USE AND DISCLOSURE OF DA TA
The trade secret information in this offer shall not be duplicated, used, or disclosed in whole or
in part for any purpose other than to evaluate the offer; provided, that if a contract or
partnership agreement is executed with offeror as a result of or in connection with submission of
this data, SANDAG shall have the right to duplicate, use, or disclose the data to the extent
provided in the contract. This restriction does not limit SANDA G's right to use information
contained in the data if it is obtainable from another source without restriction. The data
subjected to this restriction are contained in Page(s) [insert page numbers} of the offer.
The offeror also shall mark each restricted page with the following legend:
Use or disclosure of data in sections or paragraphs [insert section or paragraph numbers} on this
page is trade secret and is therefore subject to the restriction on the title page of this offer.
An unsolicited offer will be returned to the offeror if it is marked with a different legend than that provided
in paragraph (a) above. The offeror will be informed that the offer cannot be considered because it is
impracticable for SAN DAG to comply with the offeror's requirements. The offeror shall also be informed,
however, that the offer will be considered if it is resubmitted with the legend provided above.
4 Evaluation of Proposals
4.1 Preliminary Review. Prior to making a Comprehensive Evaluation of a document submitted as an
unsolicited offer, the CPD will determine that the document contains sufficient information to
enable meaningful evaluation. The CPD will notify the potentially interested SANDAG
Department Director(s) and coordinate a preliminary review of the offer. If the Department
Director(s) in his/her/their sole discretion, deems the offer in SANDAG's best interest to further
evaluate, the CPD will notify the offeror. If the document lacks information required by this
policy or other procedures promulgated by SANDAG the offeror will be notified and given the
opportunity to submit the needed information. The Comprehensive Evaluation cannot begin
until the needed information is received and one or more Department Directors has authorized
the expenditure of the funds within SANDAG's approved budget to conduct a Comprehensive
Evaluation. If it is determined that the submission does not meet the criteria for Comprehensive
Evaluation as an unsolicited offer, a reply will be sent to the offeror, indicating the reason(s) for
not considering it. SANDAG will endeavor to notify an offeror whether or not its offer will
progress to a Comprehensive Evaluation within 60 days of receipt of the offer. Offerors shall
have neither vested rights in this decision, nor ability to protest a decision by SAN DAG not to
conduct a Comprehensive Evaluation.
4.2 Comprehensive Evaluation. Upon acceptance of an unsolicited offer for Comprehensive
Evaluation, CPD will convene a panel of CPD staff and experts to perform an independent
evaluation. The decision as to whether favorable action will be taken on the offer will be based
upon an assessment by the panel of the potential contribution of the proposed project or
partnership arrangement to the objectives of SANDAG and whether the risk and cost to
SAN DAG can be justified under the circumstances. SAN DAG staff or consultants will conduct
cost, economic or market analyses to evaluate the current and future market conditions and
determine whether the project or partnership arrangement is viable and in the best interest of
SAN DAG. The offeror will need to be available to the evaluation team to answer questions and
provide additional information without charge to SANDAG. An offeror must establish it and/or
its team or partners have sufficient technical experience and readiness to proceed.
4.3 Privacy Impacts. SANDAG may determine that an offer involving exchange of data raises public
privacy concerns that require further assessment. SAN DAG may require a privacy impact
assessment to occur prior to fully evaluating an offer.
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Attachment A
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4.4 If it is determined to be in the best interest of SANDAG, other local, state, or Federal agencies
may be approached to share in the evaluation and consideration of the offer.
4.5 When the Comprehensive Evaluation has been completed, CPD will inform the offeror of the
results of the evaluation. If SANDAG determines the offer is viable and worthy of pursuit in its
sole discretion, it will evaluate whether to utilize Section 5 or 6 of this policy as the next step in
the process.
4.6 Normally, unsolicited offers are not returned after completion of the evaluation. They are
retained in a secure location for a period of time and then destroyed after two years. If the
offeror wishes the offer to be returned, a statement to that effect should be clearly made in the
submission.
5 Determinations Regarding Competitive Process
5.1 SAN DAG will determine in its sole discretion whether competition exists from other potential
offerors.
5.2 If SAN DAG determines competition may exist, the CPD shall publicly notice the unsolicited offer on
its website and in any other locations directed by SANDAG management, and allow for other
offerors to submit an abbreviated competing proposal within 30 days for consideration by
SAN DAG. The public notice shall include the evaluation criteria that SANDAG will use to evaluate
competing offers.
6 Determinations Regarding Whether a Sole Source Contract is Appropriate
6.1 SAN DAG will utilize written procedures to evaluate whether a contract award or partnership
agreement can be justified without a competitive process. Such procedures shall be consistent
with SAN DAG sole source justification procedures and will be dependent upon the sources of
funding SANDAG would use and the circumstances of each offer.
6.2 The offeror may claim, or it may appear from an offer, that no other entity or person could offer
the same product, service, or partnership arrangement. In the case of software, technology or
other intellectual property, it may appear that only the offeror can perform. These circumstances
alone, however, will not justify a sole source contract. The concept will be evaluated on its own
merit, including analysis of revenue producing potential and opportunities for cost recovery for
the applicable project or program. In many cases, the offeror will have competitors that could
offer SANDAG similar solutions, but with different options, functionality, costs or risks. A
competitive process should be used to select the consultant, contractor or partner, unless
SANDAG staff determines that the proposed concept itself is proprietary, or the proposal
concerns a specific piece of real property with unique attributes essential to SANDAG's interests
to which the offeror has exclusive ownership and/or negotiating authority.
6.3 The essential consideration in whether or not to accept an unsolicited offer without competition
(i.e., to engage in contract negotiations on a sole source basis) is whether or not the offer is
presenting a proprietary/trade secret concept or real property interest that is itself essential to
contract performance. If an offeror is merely presenting a rationale for doing certain work that
could be done by others if given the chance to compete, then there is no permissible basis to
authorize a sole source. In the case of a proprietary software product that is being offered to
achieve a certain goal, SANDAG could not, for example, release proprietary programming codes
in a competitive solicitation. Staff should, however, if it deems the proposal one it recommends
pursuing, compete the contract award in terms of describing what the mission or goal is in order
to see what other firms might offer in terms of software solutions. In other words, staff cannot
assume that the product being offered in the unsolicited proposal is the only, or best, product
available to meet the objectives of the agency.
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Attachment A
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7 Partnership Requests that Include Joint Development Proposals
Offers including proposed joint use and development on SAN DAG-developed and/or owned property will
be evaluated using the following additional criteria:
7 .1 Whether the project will negatively impact present or future public transportation facilities.
7.2 Whether the project is consistent with regional and local community policies and plans.
7.3 Whether the project demonstrates a fiscal benefit to SANDAG or a public transportation
operator.
7.4 Whether the project provides economic development potential to SANDAG and/or the
community.
7.5 Whether the project increases accessibility to public transportation.
7.6 Whether the project addresses community needs for housing, employment, services, or
recreational facilities.
8 Board of Directors Participation
8.1 As set forth in Board Policy No. 017: Delegation of Authority, the Executive Director and his/her
delegates may enter into agreements not currently incorporated in the budget and make other
modifications to the budget in an amount up to $300,000 per transaction so long as the overall
budget remains in balance. If, in order to act upon an offer, a modification of more than
$300,000 would be necessary, such action shall be brought to the Executive Committee if under
$500,000 or to the Board of Directors for amounts in excess of $500,000 as prescribed by Board
Policy No. 001 Allocation of Responsibilities.
8.2 For all offers that progress to the Comprehensive Evaluation Stage, the Executive Director will report
actions taken to the Board in summary written form at the next regular meeting of the Board.
9 SANDAG Liability
9.1 This policy and the procedures it describes do not commit SANDAG to evaluate an offer within a
certain period of time, execute a contract, or to expend any public funds. SANDAG has no
obligation to reimburse an offeror for any costs it incurs in preparing or submitting an offer or in
providing information to SANDAG as it evaluates an offer.
9.2 All unsolicited offers submitted to SAN DAG become the property of SANDAG and public records
and, as such, may be subject to public review and use by SANDAG. Documents protected by law
from public disclosure will not be disclosed by SANDAG if clearly marked as described in
Section 3.4 of this policy. Trade secrets may be marked as confidential only to the extent they meet
the requirements of California Civil Code section 3426.1 (d). Only information claimed to be a trade
secret at the time of submittal to SANDAG and marked as required in this policy will be treated as
a trade secret. To the extent that an entire offer is marked as confidential or a trade secret, such
designations will not be effective, and the offer will be rejected. To the extent that an offeror
marks any information as either confidential or a trade secret, the offeror thereby agrees to defend
and indemnify SAN DAG in the event that SANDAG's non-disclosure is challenged in any legal
action. Please see SANDAG Board Policy No. 015: Records Management Policy for information
regarding the treatment of documents designated as confidential by SANDAG.
9.3 Offerors who wish to release information regarding evaluation, selection, or contract awards
information in a press release or its promotional materials prior to the time a public
announcement is made by SANDAG must receive prior written approval from SANDAG.
Adopted: June 28, 2019
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Attachment A
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