| (a) Applicability. The department may prequalify a private entity to submit a detailed proposal to provide services under a design-build contract. The department is not required to publish a request for qualifications for a design-build contract, and may enter into a design-build contract based solely on an evaluation of detailed proposals submitted by prequalified private entities in response to a request for proposals. If the department develops a concept for private participation in an eligible design-build project, or proceeds with the further evaluation of an unsolicited proposal for an eligible design-build project, and chooses to prequalify private entities to submit a detailed proposal without publishing a request for qualifications, it will proceed in accordance with the requirements of this section. Each entity comprising a team that intends to submit a detailed proposal must be prequalified or precertified in accordance with the requirements of this section. (b) Prequalification. (1) Audited financial qualification of construction, maintenance, and operations providers. Unless waived under subparagraph (B) of this paragraph, to be eligible to propose on a design-build contract as a provider of construction services, maintenance services, or operations services, a potential proposer must be prequalified in accordance with subparagraph (A) of this paragraph. (A) Requirements. (i) To be prequalified to propose, either individually or as a member of the proposers' team, as a provider of construction, maintenance, or operations services on a design-build contract, a private entity must: (I) submit a completed confidential questionnaire to the department's Construction Division in Austin at any time, but at least 120 days prior to the due date for a response to a request for proposals, in a form prescribed by the department, which shall include certain information concerning the proposer's equipment, experience, and financial condition; (II) have its certified public accountant submit the audited and other financial information required by the current edition of the department's Bulletin Number 2, titled "Contractor's Financial Resources"; (III) demonstrate it has the financial capacity to complete, operate, and maintain, as applicable, a specific project. Factors that will be considered in assessing a proposer's financial capacity include: (-a-) the proposer's current financial strength; (-b-) the proposer's credit quality; (-c-) any claims, litigation, or equivalent current or pending against the proposer; (IV) demonstrate, if it will be the prime provider of construction services under a contract, that it is capable of obtaining payment and performance bonds in the amount of $250 million, or 100% of the construction cost of the project, whichever is less, from a surety rated in the top two categories by two nationally recognized rating agencies or at least A minus (A-) or better and Class VIII or better by A.M. Best and Company, or an alternative form of security in the amount of $250 million, or 100% of the construction cost of the project, whichever is less, in accordance with §27.3 of this subchapter (relating to General Rules for Private Involvement); (V) satisfactorily comply with any technical qualification requirements determined by the department to be necessary for a specific project; and (VI) for the purpose of proposing on federal-aid projects, properly complete the Certification of Eligibility Status form contained in the Confidential Questionnaire. (ii) The department will make its examination and determination based on the information submitted, and advise the potential proposer of its approved design-build contract capacity. Information adverse to the potential proposer contained in the Certification of Eligibility Status form will be reviewed by the department and the Federal Highway Administration, and may result in the proposer being declared ineligible to submit proposals on federal-aid projects. (iii) Satisfactory audited financial information and financial capacity will grant a 36-month period of prequalification from the date of the department's determination. (iv) The department may require current audited information at any time if circumstances develop which are factors that could alter the firm's financial condition, ownership structure, affiliation status, or ability to operate as an on-going concern. The potential proposer must immediately notify the department in writing of any material changes in its financial condition that occur while the department is conducting its examination. (v) The department may grant a 90 day grace period of prequalification, for the purpose of preparing and submitting current audited information prior to the expiration of the 90 day period of prequalification. (B) Waiver. (i) The department will waive the audited financial qualification requirements of subparagraph (A) of this paragraph if the department's estimate is $10,000,000 or less unless the executive director or the director's designee determines that audited financial qualification should be required due to: (I) safety considerations; (II) the complexity of the work; or (III) the potential impact of the work on adjacent property owners. (ii) To be eligible to propose on a design-build contract for which the audited financial qualification requirements have been waived under clause (i) of this subparagraph, a proposer must: (I) submit a proposer's questionnaire, in a form prescribed by the department, which includes certain information concerning a proposer's equipment and experience; (II) submit unaudited and other data as required in the instructions to the proposer's questionnaire; (III) demonstrate it has the financial capacity to complete, operate, and maintain, as applicable, a specific project. Factors that will be considered in assessing a proposer's financial capacity include: (-a-) the proposer's current financial strength; (-b-) the proposer's credit quality; (-c-) any claims, litigation, or equivalent current or pending against the proposer; (IV) demonstrate, if it will be the prime provider of construction services under a contract, it is capable of obtaining payment and performance bonds from a surety rated in the top two categories by two nationally recognized rating agencies or at least A minus (A-) or better and Class VIII or better by A.M. Best and Company, in an amount that is sufficient to ensure the proper performance of any agreement and protects the department and payment bond beneficiaries supplying labor or materials to the proposer or a subcontractor of the proposer, or an alternative form of security in accordance with §27.3 of this subchapter; (V) satisfactorily comply with any technical qualification requirements determined by the department to be necessary on a specific project; and (VI) for a federal-aid project, properly complete the Certification of Eligibility Status form contained in the proposer's questionnaire. Information adverse to the potential proposer contained in the certification will be reviewed by the department and by the Federal Highway Administration, and may result in the proposer being declared ineligible to submit a proposal on a federal-aid project). (iii) The department will make its examination and determination based on the information submitted, and advise the proposer of its approved design-build contract capacity. (I) A proposer with no prior experience in construction, maintenance, or operations, or a negative working capital position (i.e., financial statements indicate that current liabilities exceed current assets), will receive a design-build contract capacity of not less than $1,000,000. (II) An experienced proposer with sufficient working capital and financial capability, as determined by the department, will receive a design-build contract capacity of: (-a-) not less than $10,000,000 for a proposer submitting compiled financial information if the proposer has at least one year experience in construction, maintenance, or operations and has satisfactorily completed at least two projects in these fields; (-b-) not less than $25,000,000 for a proposer submitting compiled financial information if the proposer has at least two years experience in construction, maintenance, or operations and has satisfactorily completed at least four projects in these fields. Those contractors possessing more than two years experience but less than five years experience will be granted at least an additional $5,000,000 in design-build contract capacity for each additional year of experience in construction, maintenance, or operations; and (-c-) over $50,000,000 for a proposer submitting reviewed financial information if the proposer has at least five years of experience in construction, maintenance, or operations and has satisfactorily completed at least four projects in these fields. Cont'd... |
