SECTION 27.2. Definitions

The following words and terms, when used in this subchapter, shall 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) Certification of eligibility status form--A notarized form describing any suspension, voluntary exclusion, ineligibility determination actions by an agency of the federal government, indictment, conviction, or civil judgment involving fraud or official misconduct, each with respect to the proposer or any person associated with the proposer in the capacity of owner, partner, director, officer, principal investor, project director/supervisor, manager, auditor, or a position involving the administration of federal funds, covering the three-year period immediately preceding the date of the qualification statement.

(3) Commission--The Texas Transportation Commission.

(4) Comprehensive development agreement--An agreement with a private entity that, at a minimum, provides for the design and construction, reconstruction, extension, expansion, or improvement of an eligible project and may also provide for the financing, acquisition, maintenance, or operation of an eligible project.

(5) Confidential questionnaire--A prequalification form reflecting detailed financial and experience data.

(6) 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 developer, 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 comprehensive development agreement project.

(7) 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 comprehensive development agreement 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.

(8) 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, planning services, procurement services, traffic and revenue services, project oversight services, financial services (including financial advisory and banking services), and legal services.

(9) 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.

(10) Debarment--Disqualification of a private entity from submitting a qualification submittal or other proposal to the department, as described in §§27.3 - 27.5 of this subchapter, entering into a comprehensive development agreement, or participating as a member of a proposer or developer team.

(11) Department--The Texas Department of Transportation.

(12) Design--Includes planning services, technical assistance, and technical studies provided in support of the environmental review process undertaken with respect to an eligible project, as well as surveys, investigations, the development of reports, studies, plans and specifications, and other professional services provided for an eligible project.

(13) Design-build contract--A comprehensive development agreement that includes the design and construction of a toll project, does not include the financing of a toll project, and may include the acquisition, maintenance, or operation of a toll project.

(14) Developer--A private entity (including any division or affiliate of the entity) that has entered into a comprehensive development agreement with the department.

(15) Eligible project--A project described in Transportation Code, §223.201, and including a:

(A) toll project;

(B) state highway improvement project that includes both tolled and nontolled lanes and that may include nontolled appurtenant facilities;

(C) state highway improvement project in which the private entity has an interest in the project;

(D) state highway improvement project financed wholly or partly with the proceeds of private activity bonds, as defined by Section 141(a), Internal Revenue Code of 1986;

(E) project that combines a toll project and a rail facility as defined in Transportation Code, §91.001;

(F) nontolled state highway improvement project authorized by the Texas Legislature; or

(G) project that combines two or more eligible projects described in Transportation Code, §223.201(f).

(16) Environmental and planning services--Some or all of the following services provided to the department with respect to a comprehensive development agreement project:

(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 impact statements; and

(C) planning associated with the environmental approval, permitting, and clearance process for the project.

(17) Executive director--The executive director of the department or designee not below the level of assistant executive director.

(18) Financial services--Some or all of the following services provided to the department with respect to a comprehensive development agreement project:

(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 comprehensive development agreement project or facility, but excluding underwriters for bonds that are not related to a comprehensive development agreement project.

(19) 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.

(20) Legal services--Some or all of the following services with respect to a comprehensive development agreement project:

(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.

(21) 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, request for competing proposals and 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, developer scope of work/technical provisions, evaluation criteria for a procurement, or other items that would constitute environmental services or procurement services.

(22) Procurement services--Some or all of the following services provided to the department with respect to a comprehensive development agreement project:

(A) development of procurement strategy;

(B) development and preparation of the solicitation documents, developer 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.

(23) Project oversight services--Some or all of the following services provided to the department with respect to a comprehensive development agreement project after award of the comprehensive development agreement:

(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.

(24) Proposal review fee--A fee prescribed by these rules that is required to be tendered with any unsolicited proposal.

(25) 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 development, design, construction, financing, operation, or maintenance of an eligible project under a comprehensive development agreement.

(26) Reprimand--A formal, written warning that documents an act or omission committed by the private entity.

(27) Request for proposals--A request for submittal of a detailed proposal from private entities to acquire, design, develop, finance, construct, reconstruct, extend, expand, maintain, or operate an eligible project.

(28) Request for qualifications--A request for submission by a private entity of a description of that entity's experience, technical competence, and capability to complete an eligible project, and such other information as the department considers relevant or necessary.

(29) Sanction--Debarment, suspension, prohibition against participation in particular procurement opportunities, or reprimand.

(30) Subconsultant--An individual or business entity that performs or performed work on behalf of a consultant as part of the performance of the consultant's work for the department, either directly or through a subconsultant at any level.

(31) Suspension--Immediate, temporary disqualification of a private entity from submitting a qualification submittal or other proposal to the department, as described in §§27.3 - 27.5 of this subchapter, entering into a comprehensive development agreement, or participating as a member of a proposer or developer team. Suspension differs from debarment in that it may take effect prior to and during the hearing process.

(32) Toll project--Has the meaning assigned by Transportation Code, §201.001.

(33) Traffic and revenue services--Some or all of the following services provided to the department with respect to a comprehensive development agreement project:

(A) conducting draft and investment grade traffic and revenue studies, toll elasticity studies, toll feasibility studies, toll pricing studies, or studies or analyses of a similar nature, including peer review studies; and

(B) data mining and preparation of reports, analyses, and projections in connection with the traffic and projected revenues.

Source Note: The provisions of this §27.2 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 September 15, 2011, 36 TexReg 5951; amended to be effective February 20, 2014, 39 TexReg 1000