INTRODUCTION

UNSOLICITED PROPOSALS

BRINGING STRUCTURE AND DISCIPLINE TO THE PROCESS

DEFINITIONS

PROCESSING OF AN UNSOLICITED PROPOSAL

RECOMMENDATIONS AND DECISION MAKING

CONTACTS
 
 

A. SUBMISSION OF AN UNSOLICITED PROPOSAL

B. PROPOSAL FORMAT

INTRODUCTION
 

The following information discusses how the Commonwealth Competition Council will address unsolicited proposals received under the authority of the Virginia Government Competition Act of 1995, Code of Virginia Chapter 45, § 9-346, "Unsolicited Proposals."

The Code states that "The Governor or the General Assembly may direct any state agency to perform a public/private performance analysis covering any commercial activity for which the [Commonwealth Competition] Council has received a qualifying unsolicited proposal from a private entity which is consistent with the Council's purposes and duties as provided in § 9-342. The provisions of this section shall not apply to transportation-related projects initiated pursuant to Chapter 22 (§56-556, et seq.) of Title 56."

As defined by the Virginia Government Competition Act of 1995, commercial activity means performing services or providing goods that can normally be obtained from private enterprise.

The Commonwealth Competition Council is committed to:

• ensuring that Virginia government requirements are fulfilled through an open and fair process that provides the highest possible value to the citizens of Virginia;

 
• ensuring that all proponents have a reasonable opportunity to participate in government business opportunities;

 
• encouraging economic development;

 
• encouraging Virginia businesses to be highly competitive and responsive to changing market demands; and

 
• maintaining accountability to the public for procurement decisions.

The Commonwealth Competition Council encourages Virginia State government officials to adopt new innovative and competitive ways of doing business as provided in §9-342. In an effort to avoid the limitations of previous methods, Virginia government has adopted new approaches in the fast changing information age. These methods have proven most useful in encouraging more dynamic and flexible solution-oriented procurements to be undertaken.

This document provides a workable means for private entities with a unique and innovative idea or problem-solving assessment to present their idea to the Commonwealth Competition Council and to receive consideration of their proposal. In an effort to address this issue, the Commonwealth Competition Council encourages the presentation of unsolicited proposals by private sector proponents to participate as partners in the creation of new and innovative responses to the ongoing challenges faced in the government business environment. This guide provides the process to support proponents in that activity.

UNSOLICITED PROPOSALS
 

The unsolicited proposal is expected to:

• provide a means for proponents to identify and solve problems or conditions faced by Virginia government;

 
• allow proponents to present valuable and unique innovations for consideration;

 
• offer a forum where ideas of significant technical, economic, or social merit may be presented without the proponent losing proprietary interest in them.

• a way to justify sole source contracts or avoid the competitive process;

 
• a subsidy or grant vehicle;

 
• a method for the pirating of ideas or methodologies for Virginia government use;

 
• a mechanism to totally transfer the risk of government responsibilities to the private sector.

• satisfy a need of Virginia government;

 
• be fair, open and accountable;

 
• be evaluated by objective parties and be able to satisfy an independent review;

 
• demonstrate that Virginia government will receive the best possible value;

• respect the intellectual proprietary rights of the proponent to the extent allowed by law.

 
• encourage truly innovative and unique proposals.

BRINGING STRUCTURE AND DISCIPLINE TO THE PROCESS
 

Virginia agencies and private sector proponents alike have indicated to Virginia government that a structured process and consistent set of rules for considering unsolicited proposals are required. This guide addresses these issues by providing the necessary instructions and general guidance to assist proponents in the preparation of an unsolicited proposal and to assist agencies in the assessment of proposals.

It is recognized that in the interest of fairness and accountability, the process outlined here is rigorous and demanding. It requires that proponents put a great deal of thought and effort into the development and preparation of a proposal. It also places a responsibility on Virginia government to be diligent in the evaluation of any proposal. As such, some costs may be incurred on the part of the proponent as well as the government. All parties should therefore be very careful not to underestimate these implications when considering the unsolicited proposal process. It is understood that each participant will absorb their own costs in the preparation and evaluation of unsolicited proposals.

It should also be recognized that the Commonwealth Competition Council reserves the right to make a recommendation to the Governor or the General Assembly to consider a qualifying unsolicited proposal or not recommend any unsolicited proposal at its sole discretion. The Commonwealth will not be required to perform comprehensive evaluations of unsolicited proposals which do not satisfy the qualifying requirements of the preliminary review process.
 

Unsolicited Proposals May be Considered

Within the provisions of §9-342 of the Code of Virginia, unsolicited proposals are one of the means by which Virginia government and the Commonwealth Competition Council may encourage and consider innovative or unique methods or approaches from sources outside the government. This can aid in the delivery of efficient government services, reduction of costs and debt, promotion of desirable technological development, or contribution to the general economic development and well-being of Virginia citizens.
 

Freedom of Information Act

Prior to the approval, an unsolicited proposal will be considered the property of the proponent and will only be made available for examination by those persons directly involved in the review and evaluation of the proposal.

Once approved for evaluation, unsolicited proposals submitted to the Commonwealth become the property of the Commonwealth and are subject to the Virginia Freedom of Information Act. If a contract is entered into with the Commonwealth, the proponent thereby agrees to public disclosure of the contents of their unsolicited proposal. Any information in the unsolicited proposal the proponent considers to be proprietary should be marked as required by the Virginia Public Procurement Act, and will be subject to appropriate consideration as defined within the Virginia Freedom of Information Act.

Proponents disclosing any trade secrets or proprietary information as part of an unsolicited proposal should be aware that the Virginia Freedom of Information Act will apply unless the proponent invokes the protections of §11-52 of the Code of Virginia. Section 11-52 (D) requires such invocation to be made, in writing, prior to or upon submission of the data sought to be protected.

Should the State decide at any point to discontinue consideration of an unsolicited proposal, it will, at the request of the proponent, return or destroy all copies of the proposal in its possession. The State will, however, retain copies of its evaluation reviews and assessments to be able to respond to future general public inquiries or information requests.

The following sections outline the definitions, guidelines, and processing of an unsolicited proposal.

APPENDICES A and B detail the requirements and format of an unsolicited proposal.

DEFINITIONS
 
 

What is a Qualifying Unsolicited Proposal?
 

It is a written proposal submitted to the Commonwealth Competition Council for the purpose of offering goods or services to Virginia government for which the proposal is not in response to a formal or informal request from Virginia government. To be considered a qualifying unsolicited proposal by the Commonwealth Competition Council, it must:

• potentially satisfy a governmental need or problem;

 
• be innovative and unique;

 
• be independently originated and developed by the proponent;

 
• be prepared without government assistance;

 
• include sufficient detail so that the government can determine if evaluation and support is worthwhile, and whether the proposed work could benefit the agency's program delivery/research activity, or support other public service considerations;

• not be principally for the purchase or contracting of routine goods and services.

What is an Unqualified Unsolicited Proposal?
 

Advertising materials, contributions, and technical correspondence as defined below are not considered qualified unsolicited proposals.
 

• Advertising/Promotional Material

 

• Contributions

 

• Technical correspondence

 

PROCESSING OF AN UNSOLICITED PROPOSAL
 
 

The consideration of an unsolicited proposal under the provisions of § 9-346 of the Code of Virginia involves a number of steps:
 

• Commonwealth Competition Council review/recommendation or rejection;

 
• Commonwealth Competition Council recommendation to the Governor or General Assembly;

 
• Governor or General Assembly directs agency to evaluate proposal;

 
• Review by the affected agency or multi-agency evaluation team;

 
• Recommendation by affected agency evaluation team;

 
• Action by the affected agency.

Commonwealth Competition Council review/recommendation
 

When the Commonwealth Competition Council receives an unsolicited proposal, it will be reviewed to determine if it is of sufficient interest to justify a recommendation to the Governor or the General Assembly for more formal consideration. During this initial review, the Council will examine the unsolicited proposal to satisfy itself that the proposal:
 

• is unique;

 
• addresses a significant problem, issue or need;

 
• has sufficient merit to warrant further consideration.

 

• the goods and services are readily available from another source;

 
• it resembles a current or upcoming competitive procurement that has been or will be formally requested;

 
• it does not demonstrate a particularly innovative approach, or concept, or is not deemed to be of sufficient value to the Commonwealth;

 
• it is beyond the financial means of the affected agency;

 
• a similar proposal has been evaluated by the agency during the current fiscal year.

 

If the Governor or the General Assembly directs the agency to evaluate the proposal, the Commonwealth Competition Council will assist the affected agency in the evaluation of the proposal.
 

While no specific response time can be identified for each phase of evaluation, the Council will provide regular status reports to the proponent. As proponents may appreciate, complex proposal offerings will require some time to be assessed. Every effort will be made to complete the evaluation process as expeditiously as possible.
 

As part of the initial review, the Council will determine if they wish to recommend a detailed consideration of the proposal or if it should be discontinued at that point. If discontinued, the Council will advise the proponent to that effect and will give the reasons for that decision. The Council retains the final authority to make recommendations to the Governor and the General Assembly pursuant to §9-346 of the Code of Virginia.
 

If the Commonwealth decides at any point to discontinue consideration of an unsolicited proposal it will, at request of the proponent, return or destroy all copies of the proposal in its possession. The Commonwealth will, however, retain copies of its evaluation reviews and assessments to be able to respond to future general public inquiries or information requests. Evaluation review and assessment materials made available for public review through the Virginia Freedom of Information Act will not include any materials deemed to be proprietary in nature, in accordance with State law.
 

Proponents should be aware that any donation made to the Council under §9-345 (B) of the Code of Virginia will eliminate consideration of that entity for awards made as the result of a Council recommendation. Section 9-345 (B) states that "No entity which has made a gift, grant or donation to the Council shall be eligible for a contract award which results from action of a Council recommendation."
 

Comprehensive Review by Affected Agency
 

Upon receipt of an unsolicited proposal from the Commonwealth Competition Council through direction of the Governor or the General Assembly, the affected agency(ies) will undertake a review using at a minimum the "Public/Private Performance Analysis" and the "COMPETE" program. The formation of a specific evaluation team is recommended. This group may be made up of representatives from:
 

• the agency personnel having technical knowledge of the proposed area;

 
• the Department of Planning and Budget;

 
• the facility that may be involved;

 
• the Division of Purchases and Supply;

 
• the Commonwealth Competition Council;

 
• other expertise as necessary.

 

• unique and innovative methods, approaches, or concepts demonstrated;

 
• issues, needs and problems not previously identified;

 
• overall scientific, technical, economic, or social merits;

 
• economic and regional development potential;

 
• departmental and government-wide service delivery impacts;

 
• fiscal and budgetary implications;

 
• legislative and regulatory implications;

 
• proponent's capabilities, related experience, facilities, techniques, or unique combinations of these factors;

 
• qualifications, capabilities, and experience of the team and key personnel proposed;

 
• degree of interest and support by the affected agency;

 
• ability and willingness of agency to fund and manage the proposed initiative as needed.

 

It should be noted that budget allocations are not set aside for the funding of unsolicited proposals, and that to succeed, unsolicited proposals must compete with other program and government priorities. For this reason, proponents are cautioned to expect that, notwithstanding the acknowledged utility and potential associated with their proposal, it is entirely possible that projects will not proceed due to budgetary considerations.

RECOMMENDATIONS AND DECISION-MAKING
 
 

A favorable overall evaluation of an unsolicited proposal by the affected agency's evaluation team does not, in itself, justify or imply the intention to award a contract without providing for a full and open competition as required by the Virginia Public Procurement Act. Specific guidance is contained in the Code of Virginia, Chapter 7, Title 11, and such rules and regulations as the Department of General Services, Division of Purchases and Supply, may prescribe.
 

In addition to failure to satisfy the criteria outlined above, the affected agency evaluation team will recommend against the acceptance of an unsolicited proposal when:
 

• the goods and services are readily available from another source;

 
• it resembles a current or upcoming competitive procurement that has been or will be formally requested;

 
• it does not demonstrate an innovative and unique approach or concept, or is not deemed to be of sufficient value to the Commonwealth of Virginia;

 
• it is beyond the financial means of the affected agency.

 

When the affected agency evaluation team has completed its assessment of the unsolicited proposal, it shall submit a report and recommendation to the head of the affected agency. If the agency accepts the unsolicited proposal, it will prepare an advertised Request for Proposals (RFP) or Invitation for Bids (IFB) to provide for a full and open competition under the Virginia Public Procurement Act. The affected agency will also notify the Commonwealth Competition Council of its decision.
 

Notification to Proponent
 

For those proposals making it to the final stages of evaluation and approval, the affected agency will advise the proponent regarding the outcome of the decision-making process and to the degree possible, the reasons for the decision reached, as soon as possible after a decision has been made.
 

CONTACTS
 
 

Suggestions or questions regarding the Commonwealth Competition Council's Guide to the Submission & Evaluation of Unsolicited Proposals may be directed to the Council at:
 
 

Unsolicited proposals are to be endorsed by an official of the proponent organization authorized to sign for and commit the organization. Normally the unsolicited proposal will be submitted to the Commonwealth Competition Council in accordance with § 9-346 of the Code of Virginia. The Commonwealth Competition Council will conduct the initial review process for the proposal.
 

It is the responsibility of the proponent to prepare a clear and persuasive case in support of their proposal. The project or program requirements' discussion is central to the demonstration of a credible proposal. While the contents are specific to each proposal and will vary according to circumstances, each unsolicited proposal should include the following information:
 

• description of the need, problem or condition for which a solution or innovation is being proposed;

 
• knowledgeable background information relating to the problem;

 
• the role that the proposal's concept will play in support of the agency's operations (how the proponent expects that his/her products and services will assist the Agency);

 
• description of the traits that make the proposal innovative and unique and/or attractive relative to other options;

 
• fiscal, budgetary, economic development and social implications;

 
• legislative and regulatory implications;

 
• technical background information relevant to the proposal;

 
• known constraints and risks (e.g., location, environment, cost management issues, security arrangements, etc.);

 
• proponent's unique capabilities, related experience, facilities, techniques, etc.;

 
• qualifications, capabilities, and experience of the team and key personnel;

 
• business relationship expected (contractual expectations, conditions, safeguards, provisions, scheduling, means for identifying/dealing with scope changes etc.).

To simplify preparation and evaluation, the unsolicited proposal should be written and presented according to the following general format:
 

• Proponent Profile

 
• Agency/Situation Overview

 
• Objectives and Outcomes

 
• Basic Requirements and Project Approach

 
• Detailed Technical Requirements

 
• Project Scope and Time Frames

 
• Constraints and Project Controls

 
• Deliverables and Work Plan

 
• Agency Responsibilities

 
• Reporting and Project Management

 
• Special Considerations (including government-wide service and economic development considerations)

 
• Pricing and Benefit/Risk Sharing

 
• Proposed Contractual Terms

 

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