| (a) Applicability. The rules in this subchapter address
the manner by which the department intends to evaluate submissions
received from private entities in response to requests for qualifications
and requests for proposals issued by the department.
(b) Reservation of rights. The department reserves
all rights available to it by law in administering this subchapter,
including without limitation the right in its sole discretion to:
(1) withdraw a request for qualifications or a request
for proposals at any time, and issue a new request;
(2) reject any and all qualifications submittals or
proposals at any time;
(3) terminate evaluation of any and all qualifications
submittals or proposals at any time;
(4) suspend, discontinue, or terminate negotiations
with any proposer at any time prior to the actual authorized execution
of a design-build contract by all parties;
(5) negotiate with a proposer without being bound by
any provision in its proposal;
(6) negotiate with a proposer to include aspects of
unsuccessful proposals for that project in the design-build contract;
(7) request or obtain additional information about
any proposal from any source;
(8) modify, issue addenda to, or cancel any request
for qualifications or request for proposals;
(9) waive deficiencies in a qualifications submittal
or proposal, accept and review a non-conforming qualifications submittal
or proposal, or permit clarifications or supplements to a qualifications
submittal or proposal; or
(10) revise, supplement, or make substitutions for
all or any part of this subchapter.
(c) Costs incurred by proposers. Except as provided
in §9.153(f) of this subchapter (relating to Solicitation of
Proposals), under no circumstances will the state, the department,
or any of their agents, representatives, consultants, directors, officers,
or employees be liable for, or otherwise obligated to reimburse, the
costs incurred by proposers, whether or not selected for negotiations,
in developing proposals or in negotiating agreements.
(d) Department information. Any and all information
the department makes available to proposers shall be as a convenience
to the proposer and without representation or warranty of any kind
except as may be expressly specified in the request for qualifications
or request for proposals. Proposers may not rely upon any oral responses
to inquiries.
(e) Procedure for communications. If a proposer has
a question or request for clarification regarding this subchapter
or any request for qualifications or request for proposals issued
by the department, the proposer shall submit the question or request
for clarification in writing to the person responsible for receiving
those submissions, as designated in the request for qualifications
or request for proposals, and the department will provide the responses
in writing. The proposer shall also comply with any other provisions
in the request for qualifications or request for proposals regulating
communications.
(f) Compliance with rules. In submitting any proposal,
the proposer shall be deemed to have unconditionally and irrevocably
consented and agreed to the foregoing provisions and all other provisions
of this subchapter.
(g) Proposer information submitted to department. All
qualifications submittals or proposals submitted to the department
become the property of the department and may be subject to the Public
Information Act, Government Code, Chapter 552. Proposers should familiarize
themselves with the provisions of the Public Information Act. In no
event shall the state, the department, or any of their agents, representatives,
consultants, directors, officers, or employees be liable to a proposer
for the disclosure of all or a portion of a proposal submitted under
this subchapter. Except as otherwise expressly specified in the request
for qualifications or request for proposals, if the department receives
a request for public disclosure of all or any portion of a qualifications
submittal or proposal, the department will notify the applicable proposer
of the request and inform that proposer that it has an opportunity
to assert, in writing, a claimed exception under the Public Information
Act or other applicable law within the time period specified in the
department's notice and allowed under the Public Information Act.
If a proposer has special concerns about information it desires to
make available to the department, but which it believes constitutes
a trade secret, proprietary information or other information excepted
from disclosure, the proposer should specifically and conspicuously
designate that information as such in its qualifications submittal
or proposal. The proposer's designation shall not be dispositive of
the trade secret, proprietary, or exempted nature of the information
so designated.
(h) Sufficiency of proposal. All proposals, whether
solicited or unsolicited, should be as thorough and detailed as possible
so that the department may properly evaluate the potential feasibility
of the proposed project as well as the capabilities of the proposer
and its team members to provide the proposed services and complete
the proposed project.
(i) Project studies. Studies that the department deems
necessary as to route designation, civil engineering, environmental
compliance, and any other matters will be assigned, conducted, and
paid for as negotiated between the department and the successful proposer
and set forth in the design-build contract.
(j) Proposer's additional responsibilities. The department,
in its sole discretion, may authorize the successful proposer to seek
licensing, permitting, approvals, and participation required from
other governmental entities and private parties, subject to such oversight
and review by the department as specified in the design-build contract.
(k) Proposer's work on environmental review of eligible
project. The department may solicit proposals in which the proposer
is responsible for providing assistance in the environmental review
and clearance of an eligible project, including the provision of technical
assistance and technical studies to the department or its environmental
consultant relating to the environmental review and clearance of the
proposed project. The environmental review and the documentation of
that review shall at all times be conducted as directed by the department
and subject to the oversight of the department, and shall comply with
all requirements of state and federal law, applicable federal regulations,
and the National Environmental Policy Act (42 U.S.C. §4321 et
seq.), if applicable, including but not limited to the study of alternatives
to the proposed project and any proposed alignments, procedural requirements,
and the completion of any and all environmental documents required
to be completed by the department and any federal agency acting as
a lead agency. The department:
(1) shall determine the scope of work to be performed
by the private entity or its consultants or subcontractors;
(2) shall specify the level of design and other information
to be provided by the private entity or its consultants or subcontractors;
and
(3) shall independently review any studies and conclusions
reached by the private entity or its consultants or subcontractors
before their inclusion in an environmental document.
(l) Effect of environmental requirements on design-build
contract. Completion of the environmental review, including obtaining
approvals required under the National Environmental Policy Act, is
required before the private entity may be authorized to conduct and
complete the final design and start construction of a project. Additionally,
all applicable state and federal environmental permits and approvals
must be obtained before the private entity may start construction
of the portion of a project requiring the permit or approval. Unless
and until that occurs, the department is not bound to any further
development of the project. The department, and any federal agency
acting as a lead agency, may select an alternative other than the
one in the proposed project, including the "no-build" alternative.
A design-build contract shall provide that the agreement will be modified
as necessary to address requirements in the final environmental documents,
and shall provide that the agreement may be terminated if the "no-build"
alternative is selected or if another alternative is selected that
is incompatible with the requirements of the agreement.
(m) Public meetings and hearings. All public meetings
or hearings required to be held under applicable law or regulation
will be directed and overseen by the department, with participation
by such other parties as it deems appropriate.
Cont'd... |
