§ 43-1-1203. Unsolicited and Comparable Proposals

1. The department may consider, evaluate, and accept an unsolicited proposal for a public-private initiative only if the proposal complies with all of the requirements of this section.
2. The department may consider an unsolicited proposal only if the proposal:
   1. Is innovative and unique;
   2. Is independently originated and developed by the proposer;
   3. Is prepared without department supervision;
   4. Is not an advance proposal for a known department requirement that can be acquired by competitive methods unless:
      1. The department has not established a timetable for satisfying the known requirement in either the state plan, as such term is defined in section 43-1-1102 (7), or the statewide transportation improvement program that is the short-range element of the state plan; or
      2. The proposal is likely to significantly shorten a timetable for satisfying the known requirement established in the state plan or the statewide transportation improvement program; and
   5. Includes sufficient detail and information for the department to evaluate the proposal in an objective and timely manner and to determine if the proposal benefits the department.

   (2.5) Paragraphs (b) and (c) of subsection (2) of this section shall not be deemed to prohibit the department from encouraging the submission of unsolicited proposals that are well-developed and consistent with the department’s general policy priorities by providing written or oral information to any person regarding the policy priorities or the requirements and procedures for submitting an unsolicited proposal.

3. If the unsolicited proposal does not comply with the requirements of subsection (2) of this section, the department shall return the proposal without further action. If the unsolicited proposal complies with all the requirements of subsection (2) of this section, the department may further evaluate the proposal pursuant to this section.
4. The department shall base its evaluation of the unsolicited proposal on the following factors:
   1. Unique and innovative methods, approaches, or concepts demonstrated by the proposal;
   2. Scientific, technical, or socioeconomic merits of the proposal;
   3. Potential contribution of the proposal to the department’s mission;
   4. Capabilities, related experience, facilities, or techniques of the proposer or unique combinations of these qualities that are integral factors for achieving the proposal objectives;
   5. Qualifications, capabilities, and experience of the proposed principal investigator, team leader, or key personnel who are critical in achieving the proposal objectives; and
   6. Any other factors appropriate to a particular proposal.
5. The department may accept an unsolicited proposal only if:
   1. The unsolicited proposal receives a favorable evaluation; and
   2. The department makes a written determination based on facts and circumstances that the unsolicited proposal is an acceptable basis for an agreement to obtain services either without competition or after the actions are taken pursuant to subsection (6) of this section, as applicable.
6. If the unsolicited proposal requires the department to spend public moneys in an amount that is reasonably expected to exceed fifty thousand dollars in the aggregate for any fiscal year, including an unsolicited proposal for a public project as defined in section 24-92-102 (8), C.R.S., the department shall take the following actions, except as otherwise provided in subsection (7) of this section, before accepting the unsolicited proposal:
   1. Provide public notice that the department will consider comparable proposals. The notice shall:
      1. Be given at least fourteen days prior to the date set forth therein for the opening of proposals, pursuant to rules. Such notice may include publication in a newspaper of general circulation at least fourteen days prior to considering comparable proposals.
      2. Be provided to any person or entity that expresses, in writing to the department, an interest in a public-private initiative that is similar in nature and scope to the unsolicited proposal;
      3. Outline the general nature and scope of the unsolicited proposal, including the location of the transportation system project, the work to be performed on the project, and the terms of any private contributions offered and public benefits requested concerning the project;
      4. Request information to determine if the proposer of a comparable proposal has the necessary experience and qualifications to perform the public-private initiative; and
      5. Specify the address to and the date by which the comparable proposals must be submitted, allowing a reasonable time to prepare and submit the proposals;
   2. Determine, in its discretion, if any submitted proposal is comparable in nature and scope to the unsolicited proposal and warrants further evaluation;
   3. Evaluate each comparable proposal, taking relevant factors into consideration; and
   4. Conduct good faith discussions and, if necessary, negotiations concerning each comparable proposal.
7. The actions required by subsection (6) of this section do not apply to an unsolicited research proposal if the department reasonably determines that the actions would improperly disclose either the originality of the research or proprietary information associated with the research proposal.
8. The department may accept a comparable proposal submitted pursuant to subsection (6) of this section if the department determines that the comparable proposal is the most advantageous to the state in comparison to an unsolicited proposal or other submitted proposals.
9. If the unsolicited proposal is accepted or if a comparable proposal is accepted pursuant to subsection (8) of this section, the department shall use the proposal as the basis for negotiation of an agreement.
10. The department’s procurement officer or the procurement officer’s designee has the authority to make the determinations and take the actions required by this section.

Source: L. 95: Entire part added, p. 257, § 2, effective April 17. L. 2001: (2)(d) amended and (2.5) added, p. 1085, § 1, effective August 8.