The following words and terms, when used in this subchapter,
have the following meanings, unless the context clearly indicates
otherwise.
(1) Affiliate--An entity that directly or indirectly
controls, is controlled by, or is under common control with a private
entity.
(2) Commission--The Texas Transportation Commission.
(3) Conflict of interest--A circumstance arising out
of the existing or past activities, business interests, contractual
relationships, or organizational structure of a consultant, proposer,
or design-build contractor, where:
(A) the private entity is or may be unable to give
impartial assistance or advice to the department;
(B) the private entity's objectivity in performing
the scope of work sought by the department is or might be otherwise
impaired;
(C) the private entity has an unfair competitive advantage;
(D) the private entity's performance of services on
behalf of the department provides or may provide an unfair competitive
advantage to a third party; or
(E) there is a reasonable perception or appearance
of impropriety or unfair competitive advantage benefiting the private
entity or a third party as a result of the private entity's participation
in a design-build project.
(4) Consultant--An individual or business entity, including
any division or affiliate of the entity, retained by the department
to provide consultant services in connection with a design-build project.
The term includes an individual or business entity providing or that
has provided services under contract to a consultant, either directly
or through a subconsultant, at any level.
(5) Consultant services--All services provided to the
department by an independent contractor under a best value or qualifications
based procurement method, including architectural and engineering
services, right-of-way acquisition services, environmental services,
procurement services, traffic and revenue services, project oversight
services, financial services including financial advisory and banking
services, and legal services.
(6) Control--The possession, directly or indirectly,
of the power to cause the direction of the management of the entity,
whether through voting securities, by contract, family relationship,
or otherwise.
(7) Department--The Texas Department of Transportation.
(8) Design--Includes planning services, technical assistance,
and technical studies provided in support of the environmental review
process undertaken with respect to a highway project, as well as surveys,
investigations, the development of reports, studies, plans and specifications,
and other professional services provided for a highway project.
(9) Design-build contract--An agreement that includes
both design and construction services for the construction, expansion,
extension, rehabilitation, alteration, or repair of a highway project,
and that may include the maintenance of a highway project.
(10) Design-build contractor--A partnership, corporation,
or other legal entity or team that includes at a minimum an engineering
firm and a construction contractor qualified to engage in the construction
of highway projects in Texas.
(11) Design-build program--The department's program
for the procurement, implementation, and administration of design-build
contracts under this subchapter.
(12) Environmental services--Some or all of the following
services provided to the department with respect to a project developed
under a design-build contract:
(A) the study and evaluation of alternatives and potential
environmental impacts of the proposed project;
(B) preparation of environmental analysis and impact
documents relating to the project, including facility and corridor
analyses and draft and final environmental assessments and environmental
impact statements; and
(C) planning associated with the environmental approval,
permitting, and clearance process for the project.
(13) Executive director--The executive director of
the department or designee not below the level of a person in a senior
leadership position who reports directly to the executive director.
(14) Financial services--Some or all of the following
services provided to the department with respect to a project developed
under a design-build contract:
(A) acting in the capacity of financial advisor to
the department by providing advice on finance-related issues, including
development of short-term or long-term finance strategy and plans
of finance for individual projects or on an ongoing basis;
(B) identifying and pursuing sources of funds; and
(C) acting as underwriter, either lead or co-lead for
a revenue bond issuance on a project or facility, but excluding underwriters
for bonds that are not related to a project developed under a design-build
contract.
(15) Gift or benefit--Anything reasonably regarded
as pecuniary gain or pecuniary advantage, including any benefit or
favor to another person in whose welfare the beneficiary has a direct
and substantial interest, regardless of whether the donor is reimbursed.
The term includes, but is not limited to, cash, loans, meals, lodging,
services, tickets, door prizes, free entry to entertainment or sporting
events, transportation, or hunting or fishing trips.
(16) Highway project--A single highway facility between
two defined points in a corridor, or two or more contiguous highway
facilities.
(17) Legal services--Some or all of the following services
with respect to a project developed under a design-build contract:
(A) providing advice on legal issues and strategies
relating to project environmental approvals, planning, procurement,
financing, contract administration, risk management, and disputes,
claims, or litigation; and
(B) reviewing, drafting, and negotiating procurement
documents, project contracts, and other documents.
(18) Preliminary engineering and architectural services--Preparation
of preliminary design and architectural documents and reports, utility
and right-of-way mapping, and provision of similar technical documents
that will be incorporated by others into a request for qualifications
or request for proposals, but not including the evaluation or selection
of alignments in connection with the development of environmental
documents, assistance with development of the solicitation documents,
design-build contractor scope of work/technical provisions, evaluation
criteria for a procurement, or other items that would constitute environmental
services or procurement services.
(19) Procurement services--Some or all of the following
services provided to the department with respect to a project developed
under a design-build contract:
(A) development of procurement strategy;
(B) development and preparation of the solicitation
documents, design-build contractor scope of work/technical provisions,
or contract documents;
(C) implementation and administration of the solicitation;
(D) preparation or implementation of any evaluation
criteria, process, or procedures;
(E) evaluation of proposer submissions (e.g., qualification
submittals and proposals);
(F) negotiation of the contract; and
(G) any other activities determined by the department
as related to a procurement.
(20) Project oversight services--Some or all of the
following services provided to the department with respect to a project
developed under a design-build contract after award of the contract:
(A) design review;
(B) construction oversight and inspection;
(C) quality control and quality assurance;
(D) project management and overview;
(E) contract administration;
(F) claims management;
(G) public relations and community outreach;
(H) right of way acquisition services; and
(I) appraisal, legal description, condemnation package,
and utility assembly review.
(21) Proposer--A private entity, including any division
or affiliate of the entity, that has submitted a statement of qualifications,
proposal, or other submission in order to participate in an ongoing
procurement for the design, construction, expansion, extension, related
maintenance, rehabilitation, alteration, or repair of a project developed
under a design-build contract.
(22) Request for proposals--A request for submittal
of a detailed proposal from private entities to design, develop, construct,
expand, extend, provide maintenance, rehabilitate, alter, or repair
a highway project.
Cont'd... |