(a) Applicability. If the department develops a concept
for private participation in an eligible project, it will solicit
participation in accordance with the requirements of this section.
(b) Request for qualifications - notice. If authorized
by the commission to issue a request for qualifications for an eligible
project, the department will set forth the basic criteria for professional
experience, technical competence, and capability to complete a proposed
project, and such other information as the department considers relevant
or necessary in the request for qualifications. The department will
publish notice advertising the issuance of the request for qualifications
in the Texas Register and will post
the notice and the request for qualifications on the department's
Internet website. The department may also elect to furnish the request
for qualifications to businesses in the private sector that the department
otherwise believes might be interested and qualified to participate
in the project which is the subject of the request for qualifications.
(c) Request for qualifications - content. At its sole
option, the department may elect to furnish conceptual designs, fundamental
details, technical studies and reports or detailed plans of the proposed
project in the request for qualifications. The request for qualifications
may request one or more conceptual approaches to bring the project
to fruition.
(d) Request for qualifications - evaluation. The department,
after evaluating the qualification submittals received in response
to a request for qualifications, will identify and approve a "short-list"
that is composed of those entities that are considered most qualified
to submit detailed proposals for a proposed project. In evaluating
the qualification submittals, the department will consider the results
of performance evaluations conducted by the department under §27.3
of this subchapter (relating to General Rules for Private Involvement)
and §9.152 of this title (relating to General Rules for Design-Build
Contracts) determined by the department to be relevant to the project,
the results of other performance evaluations determined by the department
to be relevant to the project, and other objective evaluation criteria
that the department considers relevant to the project, which may include
the private entity's financial condition, management stability, technical
capability, experience, staffing, and organizational structure. The
request for qualifications will include the criteria used to evaluate
the qualification submittals and the relative weight given to the
criteria. The department shall advise each entity providing a qualification
submittal whether it is on the short-list of qualified entities.
(e) Requests for proposals. If authorized by the commission,
the department will issue a request for proposals from all private
entities qualified for the short-list, consisting of the submission
of detailed documentation regarding the project. The request for proposals
will require the submission of a proposed price breakdown if required
by §27.10 of this subchapter, and may require the submission
of additional information relating to:
(1) the proposer's qualifications and demonstrated
technical competence;
(2) the feasibility of developing the project as proposed;
(3) detailed engineering or architectural designs;
(4) the proposer's ability to meet schedules;
(5) a detailed financial plan, including costing methodology,
cost proposals, and project financing approach; or
(6) any other information the department considers
relevant or necessary.
(f) Requests for proposals - payment for work product.
The request for proposals may stipulate an amount of money, as authorized
under Transportation Code, §223.203(m), that the department will
pay to an unsuccessful proposer that submits a detailed proposal that
is responsive to the requirements of the request for proposals. The
commission shall approve the amount of the payment to be stipulated
in the request for proposals. In determining whether to approve a
payment, the commission shall consider:
(1) the effect of a payment on the department's ability
to attract meaningful proposals and to generate competition;
(2) the work product expected to be included in the
proposal and the anticipated value of that work product; and
(3) the costs anticipated to be incurred by a private
entity in preparing a proposal.
(g) Joint proposal by private entity and environmental
consultant. If the department solicits proposals in which an entity
affiliated with the proposing private entity will act as the department's
environmental consultant for an eligible project, the request for
proposals may require the submission of a consolidated joint proposal
from the private entity and the environmental consultant or subcontractor
that results in a comprehensive development agreement and separate
contract for environmental services.
(h) Detailed proposal evaluation criteria. The proposals
will be evaluated by the department based on the results of performance
evaluations conducted by the department under §27.3 of this subchapter
and §9.152 of this title determined by the department to be relevant
to the project, the results of other performance evaluations determined
by the department to be relevant to the project, the proposed price
breakdown included in the proposal if required by §27.10 of this
subchapter, and other objective evaluation criteria the department
deems appropriate for the project, which may include the reasonableness
of any financial plan submitted by a proposer, the reasonableness
of the project schedule, reasonableness of assumptions (including
those related to ownership, legal liability, law enforcement, and
operation and maintenance of the project), forecasts, financial exposure
and benefit to the department, compatibility with other planned or
existing transportation facilities, likelihood of obtaining necessary
approvals and other support, cost and pricing, toll rates and projected
usage, scheduling, environmental impact, manpower availability, use
of technology, governmental liaison, and project coordination, with
attention to efficiency, quality of finished product and such other
criteria, including conformity with department policies, guidelines
and standards, as may be deemed appropriate by the department to maximize
the overall performance of the project and the resulting benefits
to the state. Specific evaluation criteria and requests for pertinent
information will be set forth in the request for proposals.
(i) Apparent best value proposal. Based on the evaluation
and the evaluation criteria described under subsection (h) of this
section and set forth in the request for proposals, the department
will rank all proposals that are complete, responsive to the request
for proposals, and in conformance with the requirements of this subchapter,
and may select the private entity whose proposal offers the apparent
best value to the department. If the request for proposals provides
for a consolidated joint proposal to be submitted for a separate environmental
consultant contract as well as the comprehensive development agreement,
the request for proposals shall specify how the two parts of the proposal
will be evaluated in making the overall best value determination.
(j) Selection of entity. The department shall submit
a recommendation to the commission regarding approval of the proposal
determined to provide the apparent best value to the department. The
commission may approve or disapprove the recommendation, and if approved,
will award the comprehensive development agreement to the apparent
best value proposer. Award may be subject to the successful completion
of negotiations, any necessary federal action, execution by the executive
director of the comprehensive development agreement, and satisfaction
of such other conditions that are identified in the request for proposals
or by the commission. The proposers will be notified in writing of
the department's rankings. The department shall also make the rankings
available to the public.
(k) Negotiations with selected entity. If authorized
by the commission, the department will attempt to negotiate a comprehensive
development agreement with the apparent best value proposer to design,
develop, construct, finance, reconstruct, extend, expand, maintain,
or operate the project and (if included in the request for proposals)
an environmental consultant contract. If a comprehensive development
agreement satisfactory to the department cannot be negotiated with
that proposer, or if, in the course of negotiations, it appears that
the proposal will not provide the department with the overall best
value, the department will formally end negotiations with that proposer
and, in its sole discretion, either:
(1) reject all proposals;
(2) modify the request for proposals and begin again
the submission of proposals; or
(3) proceed to the next most highly ranked proposal
and attempt to negotiate a comprehensive development agreement with
that entity in accordance with this paragraph.
(l) Negotiations with environmental consultant. If
an environmental consultant contract satisfactory to the department
cannot be negotiated with the selected consultant, the department
may elect to terminate negotiations and proceed with the negotiation
of the comprehensive development agreement only.
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Source Note: The provisions of this §27.4 adopted to be effective July 18, 2002, 27 TexReg 6377; amended to be effective September 18, 2003, 28 TexReg 8005; amended to be effective January 5, 2006, 30 TexReg 9000; amended to be effective May 17, 2007, 32 TexReg 2670; amended to be effective December 6, 2007, 32 TexReg 8859; amended to be effective July 19, 2012, 37 TexReg 5339; amended to be effective February 20, 2014, 39 TexReg 1000 |