On October 15, the Ontario Government announced a new program for unsolicited proposals (USPs) for infrastructure projects. The purpose of the program is to allow private sector entities to approach the province with innovative ideas to improve public infrastructure and related services. Similar initiatives have been implemented in Nova Scotia, Toronto, the United Kingdom, the United States, and Australia.
The program is open to USPs for various infrastructure projects including transit, healthcare, energy, law enforcement and corrections, housing, and digital infrastructure. The province is focused on approving infrastructure projects that will provide the greatest benefit to Ontarians, are financially and technically feasible, align with government priorities, and provide the greatest value for money. The program does not limit the project size, asset class, delivery model, or type of proposal that may be submitted.
All organizations, businesses, and individuals are eligible to submit USPs through an online portal. At this stage the Ministry of Infrastructure, and any other relevant ministry or agency, will determine whether the USP merits further evaluation. The Ministry will assess the USP with reference to the following criteria:
- The USP must not relate to an existing procurement;
- The USP must demonstrate a clear value or benefit for the people of Ontario;
- The USP must relate to the development or improvement of an infrastructure asset;
- The USP must align with government priorities;
- The USP must reasonably demonstrate commercial, financial and technical viability; and
- If government funding is required, the USP must demonstrate value for money with respect to the government's investment.
The USP should also identify what the government will need to provide to facilitate the USP as well as demonstrate an acceptable and optimal sharing of costs and risks between the government and the entity.
In the event the first stage is passed, second stage involves an assessment of the commercial, financial, and technical elements of the USP. The detailed proposals will be evaluated by Infrastructure Ontario, a Crown agency under the oversight of the Ministry. Entities who move onto the second stage are expected to attend meetings to discuss their USPs.
The second stage involves the consideration of the following criteria:
- A comparative value assessment based on the merit of the USP in comparison to other options;
- The uniqueness of the USP; and
- The capacity and capability of entity submitting the USP.
Procurement and Transaction
If the Ministry elects to proceed with a USP, it will likely design a procurement for delivering the project. Procurements will be conducted pursuant to the OPS Procurement Directive and Realty Directive.
The OPS Procurement Directive as well as free trade agreements outline specific instances in which a government may forego a competitive procurement and contract directly with an entity. The government has indicated that it is its intention to contract directly with an entity only if the unique character of the USP is such that it cannot be delivered through a competitive procurement.