| (a) Solicited and unsolicited proposals. 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 proposals issued by the department,
as well as unsolicited proposals received by the department.
(b) Reservation of rights. The department reserves
all rights available to it by law in administering these rules, 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, whether solicited or unsolicited, at any time;
(3) terminate evaluation of any and all qualifications
submittals or proposals, whether solicited or unsolicited, at any
time;
(4) issue a request for qualifications relating to
a project described in an unsolicited proposal after the rejection
or termination of the evaluation of the proposal and any competing
proposals;
(5) suspend, discontinue, or terminate comprehensive
development agreement negotiations with any proposer at any time prior
to the actual authorized execution of such agreement by all parties;
(6) negotiate with a proposer without being bound by
any provision in its proposal, whether solicited or unsolicited;
(7) negotiate with a proposer to include aspects of
unsuccessful proposals for that project in the comprehensive development
agreement;
(8) request or obtain additional information about
any proposal from any source;
(9) modify, issue addenda to, or cancel any request
for qualifications or request for proposals;
(10) 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;
(11) revise, supplement, or make substitutions for
all or any part of these rules; or
(12) retain or return all or any portion of the fees
required to be paid by proposers under this subchapter, as provided
in subsection (h) of this section.
(c) Costs incurred by proposers. Except as provided
in §27.4(f) of this subchapter (relating to Solicited 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
solicited or unsolicited 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 these rules 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, except as provided
by Transportation Code, §223.204, subject to the Public Information
Act, Government Code, Chapter 552. Proposers should familiarize themselves
with the provisions of Transportation Code, §223.204 and 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. If the department
receives a request for public disclosure of all or any portion of
a proposal, the department will notify the applicable proposer of
the request and inform such 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 proposal. The proposer's
designation shall not be dispositive of the trade secret, proprietary,
or exempted nature of the information so designated.
(h) Proposal review fee. A nonnegotiable proposal review
fee shall be required for any unsolicited proposal submitted under
this subchapter and applied by the department to offset the cost of
processing and reviewing the proposal. An unsolicited proposal for
a project in the department's unified transportation program must
be accompanied by a proposal review fee of $5,000. An unsolicited
proposal for a project that is not in the department's unified transportation
program must be accompanied by a proposal review fee of $10,000. The
executive director may approve a proposal review fee for a particular
project in a lower amount. In approving a lower fee, the executive
director shall consider the complexity of the project. Failure to
submit the required proposal review fee shall bar the department's
consideration of the applicable proposal. All fees shall be submitted
in the form of a cashier's check made payable to the department. A
proposal review fee that is submitted with a proposal for a project
that is not an eligible project, or that the department is not otherwise
legally authorized to accept shall be returned to the proposer. All
other proposal review fees are nonrefundable.
(i) 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.
(j) Project studies. Studies that the department deems
necessary as to route designation, civil engineering, traffic and
revenue, 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 comprehensive development
agreement or in any separate contract for consultant services. Unless
otherwise provided in the request for proposals, the department will
favor proposals in which the costs for studies will be advanced by
the private entity, particularly if the advance is at the private
entity's risk. The department may elect to pay, in whole or in part,
the costs for such studies in its sole discretion. The department
may require that the financial plan for each proposal provide for
reimbursement of all related expenses incurred by the department,
as well as any department study funds utilized in connection with
the project.
(k) 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 comprehensive development
agreement or in any separate contract for consultant services.
(l) Proposer's work on environmental review of eligible
project. The department may solicit proposals or accept unsolicited
proposals in which the proposer is responsible for providing assistance
in the environmental review and clearance of an eligible project,
including the preparation of environmental impact assessments and
analyses and 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
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