SECTION 27.4. Solicited Proposals

(a) Applicability. If the department develops a concept for private participation in an eligible project, it will solicit participation in accordance with the requirements of this section.

(b) Request for qualifications - notice. If authorized by the commission to issue a request for qualifications for an eligible project, the department will set forth the basic criteria for professional experience, technical competence, and capability to complete a proposed project, and such other information as the department considers relevant or necessary in the request for qualifications. The department will publish notice advertising the issuance of the request for qualifications in the Texas Register and will post the notice and the request for qualifications on the department's Internet website. The department may also elect to furnish the request for qualifications to businesses in the private sector that the department otherwise believes might be interested and qualified to participate in the project which is the subject of the request for qualifications.

(c) Request for qualifications - content. At its sole option, the department may elect to furnish conceptual designs, fundamental details, technical studies and reports or detailed plans of the proposed project in the request for qualifications. The request for qualifications may request one or more conceptual approaches to bring the project to fruition.

(d) Request for qualifications - evaluation. The department, after evaluating the qualification submittals received in response to a request for qualifications, will identify and approve a "short-list" that is composed of those entities that are considered most qualified to submit detailed proposals for a proposed project. In evaluating the qualification submittals, the department will consider the results of performance evaluations conducted by the department under §27.3 of this subchapter (relating to General Rules for Private Involvement) and §9.152 of this title (relating to General Rules for Design-Build Contracts) determined by the department to be relevant to the project, the results of other performance evaluations determined by the department to be relevant to the project, and other objective evaluation criteria that the department considers relevant to the project, which may include the private entity's financial condition, management stability, technical capability, experience, staffing, and organizational structure. The request for qualifications will include the criteria used to evaluate the qualification submittals and the relative weight given to the criteria. The department shall advise each entity providing a qualification submittal whether it is on the short-list of qualified entities.

(e) Requests for proposals. If authorized by the commission, the department will issue a request for proposals from all private entities qualified for the short-list, consisting of the submission of detailed documentation regarding the project. The request for proposals will require the submission of a proposed price breakdown if required by §27.10 of this subchapter, and may require the submission of additional information relating to:

(1) the proposer's qualifications and demonstrated technical competence;

(2) the feasibility of developing the project as proposed;

(3) detailed engineering or architectural designs;

(4) the proposer's ability to meet schedules;

(5) a detailed financial plan, including costing methodology, cost proposals, and project financing approach; or

(6) any other information the department considers relevant or necessary.

(f) Requests for proposals - payment for work product. The request for proposals may stipulate an amount of money, as authorized under Transportation Code, §223.203(m), that the department will pay to an unsuccessful proposer that submits a detailed proposal that is responsive to the requirements of the request for proposals. The commission shall approve the amount of the payment to be stipulated in the request for proposals. In determining whether to approve a payment, the commission shall consider:

(1) the effect of a payment on the department's ability to attract meaningful proposals and to generate competition;

(2) the work product expected to be included in the proposal and the anticipated value of that work product; and

(3) the costs anticipated to be incurred by a private entity in preparing a proposal.

(g) Joint proposal by private entity and environmental consultant. If the department solicits proposals in which an entity affiliated with the proposing private entity will act as the department's environmental consultant for an eligible project, the request for proposals may require the submission of a consolidated joint proposal from the private entity and the environmental consultant or subcontractor that results in a comprehensive development agreement and separate contract for environmental services.

(h) Detailed proposal evaluation criteria. The proposals will be evaluated by the department based on the results of performance evaluations conducted by the department under §27.3 of this subchapter and §9.152 of this title determined by the department to be relevant to the project, the results of other performance evaluations determined by the department to be relevant to the project, the proposed price breakdown included in the proposal if required by §27.10 of this subchapter, and other objective evaluation criteria the department deems appropriate for the project, which may include the reasonableness of any financial plan submitted by a proposer, the reasonableness of the project schedule, reasonableness of assumptions (including those related to ownership, legal liability, law enforcement, and operation and maintenance of the project), forecasts, financial exposure and benefit to the department, compatibility with other planned or existing transportation facilities, likelihood of obtaining necessary approvals and other support, cost and pricing, toll rates and projected usage, scheduling, environmental impact, manpower availability, use of technology, governmental liaison, and project coordination, with attention to efficiency, quality of finished product and such other criteria, including conformity with department policies, guidelines and standards, as may be deemed appropriate by the department to maximize the overall performance of the project and the resulting benefits to the state. Specific evaluation criteria and requests for pertinent information will be set forth in the request for proposals.

(i) Apparent best value proposal. Based on the evaluation and the evaluation criteria described under subsection (h) of this section and set forth in the request for proposals, the department will rank all proposals that are complete, responsive to the request for proposals, and in conformance with the requirements of this subchapter, and may select the private entity whose proposal offers the apparent best value to the department. If the request for proposals provides for a consolidated joint proposal to be submitted for a separate environmental consultant contract as well as the comprehensive development agreement, the request for proposals shall specify how the two parts of the proposal will be evaluated in making the overall best value determination.

(j) Selection of entity. The department shall submit a recommendation to the commission regarding approval of the proposal determined to provide the apparent best value to the department. The commission may approve or disapprove the recommendation, and if approved, will award the comprehensive development agreement to the apparent best value proposer. Award may be subject to the successful completion of negotiations, any necessary federal action, execution by the executive director of the comprehensive development agreement, and satisfaction of such other conditions that are identified in the request for proposals or by the commission. The proposers will be notified in writing of the department's rankings. The department shall also make the rankings available to the public.

(k) Negotiations with selected entity. If authorized by the commission, the department will attempt to negotiate a comprehensive development agreement with the apparent best value proposer to design, develop, construct, finance, reconstruct, extend, expand, maintain, or operate the project and (if included in the request for proposals) an environmental consultant contract. If a comprehensive development agreement satisfactory to the department cannot be negotiated with that proposer, or if, in the course of negotiations, it appears that the proposal will not provide the department with the overall best value, the department will formally end negotiations with that proposer and, in its sole discretion, either:

(1) reject all proposals;

(2) modify the request for proposals and begin again the submission of proposals; or

(3) proceed to the next most highly ranked proposal and attempt to negotiate a comprehensive development agreement with that entity in accordance with this paragraph.

(l) Negotiations with environmental consultant. If an environmental consultant contract satisfactory to the department cannot be negotiated with the selected consultant, the department may elect to terminate negotiations and proceed with the negotiation of the comprehensive development agreement only.

Source Note: The provisions of this §27.4 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 December 6, 2007, 32 TexReg 8859; amended to be effective July 19, 2012, 37 TexReg 5339; amended to be effective February 20, 2014, 39 TexReg 1000