SECTION 27.5. Unsolicited Proposals

(a) Applicability. Private entities may submit unsolicited proposals to the department requesting participation in an eligible project. Unsolicited proposals that comply with the requirements of this section shall be processed in accordance with the requirements of this section.

(b) Proposal contents. A proposal requesting department participation in a proposed project shall be filed with the department and must include the following information:

(1) the limits, scope, and location of the proposed project, including, where applicable and available, project length, project termini, number of lanes and lane miles, number and type of structures, and preliminary right-of-way requirements;

(2) all proposed interconnections with other transportation facilities and improvements to those facilities that will be necessary if the project is developed;

(3) if available, a conceptual project design and preliminary geotechnical information;

(4) information describing how the project will be consistent with the Statewide Transportation Plan and, if appropriate, with the metropolitan transportation plan developed by the metropolitan planning organization;

(5) the results expected from project implementation, including anticipated financial performance and improvement to mobility and capacity, and the critical factors for the project's success;

(6) all studies previously completed by the proposer concerning the project;

(7) information concerning the experience, expertise, technical competence, and qualifications of the proposer and of each member of the proposer's management team and of other key employees, consultants, and subcontractors, including the name, address, and professional designation of each member of the proposer's management team and of other key employees, consultants, and subcontractors, the capability of the proposer to undertake the proposed project, and information responsive to the evaluation criteria listed in §27.4(d) of this subchapter;

(8) a specific description of the level and nature of participation sought from the department, including technical support and financial participation, and the desired schedule for that participation;

(9) to the extent then available, information relevant to the department's performance of its environmental review responsibilities under §27.3(l) and (m) of this subchapter;

(10) a description of potential social, economic, and environmental impacts and potentially competing facilities, including the potential impacts of competing facilities on the proposed project;

(11) other information of probable interest to the department; and

(12) the proposal review fee required by §27.3(h) of this subchapter.

(c) Preliminary evaluation of unsolicited proposal. Any proposal properly filed with the department in accordance with subsection (b) of this section and accompanied by the proper proposal review fee will be reviewed by the department. The department may meet with the proposer as necessary to clarify the proposal, or may issue requests for clarification. Based on that review and any clarification, the department will determine whether to further evaluate its requested participation in the applicable project. If the department determines that further evaluation of the proposal is warranted, a recommendation will be made to the commission to issue a request for competing proposals and qualifications. That recommendation shall be based on whether the proposed project:

(1) enhances the state transportation network, based on the project's:

(A) compatibility with existing and planned transportation facilities;

(B) furtherance of state, regional, and local transportation plans, programs, policies, and goals; and

(C) consistency with system planning objectives and priorities and projects under development;

(2) is ready to proceed to procurement, based on project constraints and characteristics, financial resources designated or available for the proposed project, the status of environmental approvals, project acceptability, and whether meaningful competition can be generated;

(3) includes or is likely to foster design or other innovation; and

(4) such other criteria as the department deems relevant.

(d) Approval to request competing proposals and qualifications. If the recommendation is that the department further evaluate the proposal and its requested participation in the applicable project, and the commission approves that recommendation, the department will publish notice of that decision and provide an opportunity for the submission of competing proposals and qualifications as provided in this section. The department will publish a notice in the Texas Register and in one or more newspapers of general circulation in this state. The notice will state that the department has received an unsolicited proposal under these rules, that it intends to evaluate the proposal, that it may negotiate a comprehensive development agreement with the proposer based on the proposal, and that it will accept for simultaneous consideration any competing proposals and qualifications that the department receives in accordance with these rules within 45 days of the initial publication of the notice in the Texas Register, or such additional time as authorized by commission order. In determining whether to authorize additional time for submission of competing proposals and qualifications, the commission will consider the complexity of the proposed project. The notice will summarize the proposed project, and identify its proposed location and any proposed interconnections with other transportation facilities. The request for competing proposals and qualifications will specify the criteria that will be used to evaluate the proposals, and the relative weight given to the criteria. The department may provide traffic counts, forecasts, conceptual designs, and other available technical studies, reports, and data either in the request for competing proposals and qualifications or upon request of any entity responding to the request. The department may also elect to furnish the request for competing proposals and 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 competing proposals and qualifications.

(e) Submission of revised proposal by original proposer. The private entity submitting the original unsolicited proposal shall be required to submit a proposal and qualification submittal in response to the request for competing proposals and qualifications. A proposal and qualification submittal submitted by that entity and any other entity in response to a request must contain the information required by subsection (b) of this section and any other information required in the request for competing proposals and qualifications.

(f) Exclusive procedure to consider competing proposals and qualifications submittals. Failure by a prospective proposer to submit a competing proposal and qualification submittal within the 45-day period or such additional time as authorized by the commission, shall preclude the proposal and qualification submittal from consideration by the department unless and until the department terminates consideration of, or negotiations on, the original unsolicited proposal, as supplemented in response to the request for competing proposals and qualifications, and any and all competing proposals and qualification submittals received within that time period. The department shall not be obligated to grant requests to extend the time period to submit competing proposals and qualification submittals. The receipt of one or more competing unsolicited proposals during that period will not trigger the posting or publication of a new notice or the commencement of any new time period.

(g) Noncompeting proposals. If the department receives proposals that have certain characteristics in common with the original unsolicited proposal, yet differ in other material respects, the department reserves the right, in its sole discretion, to treat such a proposal as either a competing proposal and qualification submittal or a noncompeting proposal. Because of the consequences to a proposer of failing to submit a competing proposal and qualification submittal within the 45-day period, or such additional time as authorized by the commission, prospective proposers are strongly urged to monitor the department's notices of unsolicited proposals received, and be prepared to submit within that time period if they perceive that a proposal they are considering or are preparing bears certain similarities to, or has characteristics in common with, an unsolicited proposal which is the subject of a notice. A proposal that is deemed to be noncompeting will be evaluated as a new unsolicited proposal in accordance with this section.

(h) Evaluation of proposals - competing proposals and qualification submittals. Upon the expiration of the 45-day period, or such additional time as authorized by the commission, the department will subject the revised proposal submitted by the original proposer, together with any and all properly submitted competing proposals and qualification submittals, to the following evaluation process. If one or more properly submitted competing proposals and qualification submittals are received, the department shall review the proposals and qualification submittals utilizing the evaluation criteria set forth in §27.4(d) of this subchapter and the request for competing proposals and qualifications, and the information specified in subsection (b) of this section. The department will identify and approve a short-list that is composed of those proposers that are considered most qualified to submit detailed proposals for the proposed project, and the process will proceed in the manner described in §27.4(e) - (l) of this subchapter.

(i) Evaluation of proposals - no competing proposals and qualification submittals. If no properly submitted competing proposal and qualification submittal is received, the department will evaluate the revised proposal submitted by the original proposer, proceeding, to the extent applicable, in the manner described in §27.4(h) - (l) of this subchapter.

Source Note: The provisions of this §27.5 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