| (n) Additional matters. Any matter not specifically
addressed in this subchapter that pertains to the construction, expansion,
extension, related maintenance, rehabilitation, alteration, or repair
of a highway project pursuant to this subchapter, shall be deemed
to be within the primary purview of the commission, and all decisions
pertaining thereto, whether or not addressed in this subchapter, shall
be as determined by the commission, subject to the provisions of applicable
law.
(o) Performance and payment security. The department
shall require a private entity entering into a design-build contract
to provide a performance and payment bond or an alternative form of
security, or a combination of bonds and other forms of security, in
an amount equal to the cost of constructing the project, unless the
department determines that it is impracticable for a private entity
to provide security in that amount, in which case the department will
set the amount of security. The security will be in the amount that,
in the department's sole determination, is sufficient to ensure the
proper performance of the agreement, and to protect the department
and payment bond beneficiaries supplying labor or materials to the
private entity or a subcontractor of the private entity. Bonds and
alternate forms of security shall be in the form and contain the provisions
required in the request for proposals or the design-build contract,
with such changes or modifications as the department determines to
be in the best interest of the state. In addition to, or in lieu of,
performance and payment bonds, the department may require:
(1) a cashier's check drawn on a federally insured
financial institution, and drawn to the order of the department;
(2) United States bonds or notes, accompanied by a
duly executed power of attorney and agreement authorizing the collection
or sale of the bonds or notes in the event of the default of the private
entity or a subcontractor of the private entity, or such other act
or event that, under the terms of the design-build contract, would
allow the department to draw upon or access that security;
(3) an irrevocable letter of credit issued or confirmed
by a financial institution to the benefit of the department, meeting
the credit rating and other requirements prescribed by the department,
and providing coverage for a period of at least one year following
final acceptance of the project or, if there is a warranty period,
at least one year following completion of the warranty period;
(4) an irrevocable letter signed by a guarantor meeting
the net worth or other financial requirements prescribed in the request
for proposals or design-build contract, and which guarantees, to the
extent required under the request for proposals or design-build contract,
the full and prompt payment and performance when due of the private
entity's obligations under the design-build contract; or
(5) any other form of security deemed suitable by the
department.
(p) Performance evaluations. The department will evaluate
the performance of a private entity that enters into a design-build
contract, and will evaluate the performance of the private entity's
major team members, consultants, and subcontractors, in accordance
with the requirements of this subsection. Evaluations will be conducted
annually at twelve month intervals during the term of the design-build
contract, upon termination of the design-build contract, and when
the department determines that work is materially behind schedule
or not being performed according to the requirements of the design-build
contract. Optional evaluations may be conducted as provided in the
design-build contract. Acts or omissions that are the subject of a
good faith dispute will not be considered. After a performance evaluation
is conducted, and for at least 30 days before the evaluation becomes
final and is used by the department, the department will provide for
review and comment a copy of the performance evaluation report to
the entity being evaluated and, if that entity is a consultant or
subcontractor, to the entity that entered into the design-build contract.
The department will consider and take into account any submitted comments
before the department finalizes the performance evaluation report.
The results of performance evaluations will be provided to the entity
that was evaluated and may be used in the evaluation of qualifications
submittals and proposals submitted under §9.153 of this subchapter
and §27.4 of this title (relating to Solicited Proposals) by
proposers that include the major team members, consultants, and subcontractors
evaluated.
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