Part I.
Texas Department of Transportation
Chapter 2.
Environmental Policy
Subchapter B. Memoranda of Understanding with Natural Resource Agencies
43 TAC §2.22
The Texas Department of Transportation proposes the repeal
of §2.22 and simultaneously proposes new §2.22, concerning Memorandum
of Understanding with the Texas Parks and Wildlife Department.
EXPLANATION OF PROPOSED REPEAL AND NEW SECTION
Transportation Code §201.607, requires the Texas Department of Transportation
(TxDOT) to adopt a Memorandum of Understanding (MOU) with each state agency
that has responsibilities for the protection of the natural environment, the
preservation of the natural environment, or for the preservation of historic
or archeological resources. Section 201.607 also requires TxDOT to adopt the
memoranda and all revisions by rule and to periodically evaluate and revise
the memoranda. In order to meet the legislative intent and to ensure that
natural environmental resources are given full consideration in accomplishing
TxDOT's activities, TxDOT has evaluated the memorandum adopted in 1992 and
finds it necessary to propose the repeal of §2.22 and to simultaneously
propose the adoption of new §2.22 in a revised form. New §2.22 describes
procedures providing for Texas Parks and Wildlife Department (TPWD) review
of TxDOT projects that have the potential to affect natural resources within
the jurisdiction of TPWD.
New §2.22 describes the purpose of the section, including implementing
provisions of Texas Transportation Code, §201.607, and the rules for
coordination of state-assisted transportation projects, Title 43, Texas Administrative
Code, §§2.40-2.51, which underline the need for and importance of
comprehensive environmental coordination for all transportation projects.
Section 2.22 also provides definitions for words and terms used in the MOU.
Subsection (a) explains the purpose of the MOU, including a statement of
TxDOT policy regarding the identification of environmental impacts of TxDOT
projects; the basis for project decisions; public input; and the use of a
systematic interdisciplinary approach in project development. The MOU provides
a formal mechanism by which TPWD may review TxDOT projects. This review will
promote the mutually beneficial sharing of information between TxDOT and TPWD,
which will assist TxDOT in making environmentally sound decisions.
Subsection (b) provides definitions for this section.
Subsection (c) outlines the responsibilities of the department and TPWD.
The department's responsibilities include planning and designing safe, efficient,
effective and environmentally sound transportation facilities, while avoiding,
minimizing, or compensating, where practicable, for anticipated environmental
impacts; the timely and efficient construction of transportation facilities;
and the ongoing maintenance of transportation facilities. As a state natural
resource protection agency, TPWD's responsibilities include protecting the
state's fish and wildlife resources; providing recommendations for protection
of fish and wildlife resources to agencies that construct developmental projects;
providing information on fish and wildlife resources to agencies or organizations
that make decisions affecting those resources; and maintaining a listing of
endangered and threatened species and providing these listings to agencies
that make decisions affecting those species.
Subsection (d) contains a new provision for early project development that
provides a process for early contact with TPWD to identify potential impacts
to natural resources caused by proposed transportation projects; contains
a revised set of criteria under which transportation projects will be coordinated
with TPWD; provides for the review of biological and natural resource information
contained in the environmental documentation by a qualified biologist prior
to coordination with TPWD; contains a new provision for an interagency team
(TPWD and TxDOT) that will develop procedures and methodologies for providing
habitat characterizations and impact descriptions to be included in environmental
documentation, and which will also develop criteria for the appropriateness,
planning and implementation of mutually agreed upon mitigation needs; provides
for an amended TPWD review time of environmental documentation by decreasing
the time from 50 days to 45 days; provides TxDOT the authority to determine
final disposition of transportation projects; provides for continuing coordination
between TxDOT and TPWD through the construction period of a transportation
project if needed; reiterates that additional coordination with TPWD will
occur if unforeseen impacts to endangered or threatened species or their habitat
occur; provides an opportunity for TPWD to review TxDOT statewide maintenance
programs; and specifies that information provided by TPWD will include species
of concern in a project area, suggested mitigation measures, and recommendations
for the protection of natural resources under the jurisdiction of TPWD.
Subsection (e) contains a revised section concerning special provisions
relating to information exchange between TPWD and TxDOT as it relates to the
maintenance and enhancement of a computer-based information system detailing
threatened and endangered species. This subsection also provides for the development
of a protocol for the transfer, use, distribution and security of information
relating to the location of endangered and threatened species and habitats
of concern.
Subsection (f) provides for the review and revision of the MOU, at a minimum,
every fifth year beginning January 1, 2002, and that TxDOT and TPWD will adopt
by rule the MOU and all revisions to the MOU.
FISCAL NOTE
Frank J. Smith, Director, Finance Division, has determined that, for the
first five-year period the new section is in effect, there will be no fiscal
implications for state or local governments as a result of enforcing or administering
the new section. There are no anticipated economic costs for persons required
to comply with the sections as proposed.
Dianna F. Noble, P.E., Director, Environmental Affairs Division, has certified
that there will not be significant impacts on local economies or overall employment
as a result of enforcing or administering the repealed and new section.
PUBLIC BENEFIT
Ms. Noble has also determined that, for each year of the first five years
the new section is in effect, the public benefit anticipated as a result of
enforcing the section, consistent with TxDOT's mission, will be an increased
effectiveness in how TxDOT's transportation projects provide for the safe,
effective, efficient movement of people and goods in an environmentally sensitive
manner, as a result of increased coordination and communication between the
department and TPWD. Implementation of this MOU will also ensure that the
state's natural resources are preserved to the fullest extent possible, enhanced
where practicable, and will ensure comprehensive environmental coordination
for all transportation projects in a manner consistent with federal and state
laws, regulations and guidelines. There will be no effect on small businesses.
PUBLIC HEARING
Pursuant to the Administrative Procedure Act, Government Code, Chapter
2001, TxDOT and TPWD will conduct a joint public hearing to receive comments
concerning the proposed new chapter. The public hearing will be held at 10:00
a.m. on Friday, January 22, 1999, in the first floor hearing room of the Dewitt
C. Greer State Highway Building, 125 East 11th Street, Austin, Texas and will
be conducted in accordance with the procedures specified in 43 TAC §1.5.
Those desiring to make comments or presentations may register starting at
9:30 a.m. Any interested persons may appear and offer comments, either orally
or in writing; however, questioning of those making presentations will be
reserved exclusively to the presiding officer as may be necessary to ensure
a complete record. While any person with pertinent comments will be granted
an opportunity to present them during the course of the hearing, the presiding
officer reserves the right to restrict testimony in terms of time and repetitive
content. Organizations, associations, or groups are encouraged to present
their commonly held views and identical or similar comments through a representative
member when possible. Comments on the proposed text should include appropriate
citations to sections, subsections, paragraphs, etc., for proper reference.
Any suggestions or requests for alternative language or other revisions to
the proposed text should be submitted in written form. Presentations must
remain pertinent to the issues being discussed. A person may not assign a
portion of his or her time to another speaker. A person who disrupts a public
hearing must leave the hearing room if ordered to do so by the presiding officer.
Persons with disabilities who plan to attend this meeting and who may need
auxiliary aids or services such as interpreters for persons who are deaf or
hearing impaired, readers, large print or Braille, are requested to contact
Eloise Lundgren, Director, Public Information Office, 125 East 11th Street,
Austin, Texas, 78701-2483, 512/463-8588 at least two working days prior to
the hearing so that appropriate services can be provided.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeal and new section may be submitted
to Dianna F. Noble, P.E., Director of Environmental Affairs, 125 East 11th
Street, Austin, Texas, 78701-2483. The deadline for receipt of comments will
be 5:00 p.m. on February 1, 1999.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
This rulemaking action has been determined to be subject to the Coastal
Management Program (CMP) in accordance with the Coastal Coordination Act of
1991, as amended (Texas Natural Resources Code, §33.201 et. seq.) and
the rules of the Coastal Coordination Council (31 TAC Chapters 501-506). As
required by 31 TAC §505.22(a), this rulemaking action must be consistent
with all applicable CMP policies.
This action has been reviewed for consistency, and it has been determined
that this rulemaking is consistent with the applicable CMP goals and policies.
The primary CMP policy applicable to this rulemaking action is the policy
that transportation projects be located at sites that, to the greatest extent
practicable, avoid and otherwise minimize the potential for adverse effects
to coastal natural resource areas from construction and maintenance of roads,
bridges, causeways, and other development associated with the project. This
rulemaking action provides a means for identifying the environmental impacts
of department transportation projects on natural resources, including threatened
and endangered species and habitat, for coordination of these projects with
the relevant state resource agency, and for inclusion of these investigations
and coordination in the environmental documentation for each project. All
of these purposes will provide a mechanism for avoiding, minimizing, or compensating,
where practicable, for the adverse effects of department projects on coastal
natural resource areas that serve as habitat, on coastal preserves, and on
threatened and endangered species. For these same reasons, the rulemaking
action is consistent with the CMP goal of protecting, preserving, restoring,
and enhancing the diversity, quality, quantity, functions, and values of coastal
natural resource areas. Interested persons are requested to submit comments
on the consistency of the proposed rules with the CMP.
(Editor's note: The text of the following section proposed
for repeal will not be published. The section may be examined in the offices
of the Texas Department of Transportation or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §201.607, which requires
that the department adopt memoranda of understanding with each agency that
has responsibility for the protection of the natural environment, the preservation
of the natural environment, or for the preservation of historic or archeological
resources, and that these memoranda and all revisions be adopted as rules.
No statutes, articles, or codes are affected by this proposed repeal.
§2.22.Memorandum of Understanding with the Texas Department of Parks and Wildlife.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
December 21, 1998.
TRD-9818480
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: January 31, 1999
For further information, please call: (512) 463-8630
STATUTORY AUTHORITY
The new section is proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §201.607, which requires
that the department adopt memoranda of understanding with each agency that
has responsibility for the protection of the natural environment, the preservation
of the natural environment, or for the preservation of historic or archeological
resources, and that these memoranda and all revisions be adopted as rules.
No statutes, articles, or codes are affected by this proposed new section.
§2.22.Memorandum of Understanding with the Texas Parks and Wildlife Department.
(a)
Purpose.
(1)
It is the policy of the Texas Department of Transportation
(TxDOT) to:
(A)
investigate fully the environmental impacts of TxDOT transportation
projects, coordinate these projects with applicable state and federal agencies,
and reflect these investigations and coordinations in the environmental documentation
for each project;
(B)
base project decisions on a balanced consideration of the
need for a safe, efficient, economical, and environmentally sound transportation
system;
(C)
receive input from the public through the public involvement
process; and
(D)
utilize a systematic interdisciplinary approach as an essential
part of the development process for transportation projects.
(2)
In order to pursue this policy, TxDOT and the
Texas Parks and Wildlife Department (TPWD) have agreed to develop this Memorandum
of Understanding (MOU) that will supersede the MOU which became effective
on October 15, 1992.
(3)
Transportation Code, §201.607, directs TxDOT
to adopt memoranda of understanding with appropriate environmental resource
agencies, including TPWD.
(4)
The rules for coordination of state-assisted transportation
projects found in §§2.40-2.51, of this title (relating to Environmental
Review and Public Involvement for Transportation Projects), underline the
need for and importance of comprehensive environmental coordination for all
transportation projects.
(5)
It is the purpose of this MOU to provide a formal
mechanism by which the TPWD may review TxDOT transportation projects, including
those that have the potential to affect natural resources within facilities
owned or managed by TPWD. This review will promote the mutually beneficial
sharing of information between TxDOT and TPWD, which will assist TxDOT in
making environmentally sound decisions.
(b)
Definitions. The following words and terms, when used in
this section shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Construction--Activities which involve the building of
transportation facilities on a new location, or the expansion, rehabilitation,
or reconstruction of an existing facility.
(2)
Early project development--The phase of project development
that includes, but is not limited to, project planning, field surveys, database
searches, in-house coordination, initial resource agency coordination, and
scoping, if necessary prior to selection of alternatives.
(3)
Environmental document--A decision-making document
which incorporates the results of environmental studies, coordination and
consultation efforts, and engineering elements. Types of documents include
categorical exclusions, environmental assessments, and environmental impact
statements.
(4)
Habitat--Areas of intrinsic biological resource value,
the disturbance of which would not require: a U.S. Army Corps of Engineers
permit; a U.S. Coast Guard permit; coordination under the Endangered Species
Act, Fish and Wildlife Coordination Act, or the Migratory Bird Treaty Act.
(5)
Maintenance--Activities which involve the repair or
preservation of an existing facility to prevent that facility's degradation
to an unsafe or irreparable state, or which involve the treatment of an existing
facility or its environs to meet acceptable standards of operations or aesthetic
quality. Such activities generally do not require the acquisition of additional
right of way.
(6)
Maintenance programs--A collection of maintenance
activities performed singularly or collectively on the state highway system.
The following categories have been established as maintenance programs: bridge
maintenance; customer service; debris and spills; drainage; ferry maintenance;
maintenance enhancement; pavement maintenance; roadside appurtenances; traffic
pavement markings; and vegetation management.
(7)
Memorandum of Understanding (MOU)--A formal document
which outlines the relationship between agencies or parties, including the
responsibilities and jurisdiction of each party.
(8)
Mitigation--A means of addressing adverse impacts
to the natural environment including, in general order of preference, avoidance,
minimization, and compensation, the commitment for which will be included
in the environmental document wherever the need is mutually agreed upon by
TxDOT and TPWD, including detailed plans where practicable.
(9)
National Environmental Policy Act of 1969 (NEPA)--The
basic national charter for protection of the environment which establishes
policy, sets goals, and provides means for carrying out the policies. NEPA
is binding upon federal agencies, including the Federal Highway Administration,
and is usually followed as an environmental guideline by state and local agencies.
In this document, NEPA includes the Act itself, its subsequent amendments,
and implementing regulations.
(10)
Project development--The planning process of a transportation
project which includes early project development, environmental studies including
the development of the appropriate environmental documentation, public involvement,
engineering design, and right of way acquisition.
(11)
Public involvement--An important, ongoing phase of
the project planning process which encourages and solicits public input and
seeks to provide the public the opportunity to become fully informed regarding
project development.
(12)
Right of way--The land provided for a transportation
facility, for example, the roadway itself (including shoulders), and areas
between the roadway and adjacent properties (including drainage facilities).
(13)
Transportation projects--All surface transportation
projects designed, constructed, and maintained by TxDOT, excluding toll projects.
(c)
Responsibilities.
(1)
Texas Department of Transportation. The responsibilities
of TxDOT pertain primarily to:
(A)
planning and designing safe, efficient, effective, and
environmentally sound transportation facilities, while avoiding, minimizing,
or compensating for anticipated environmental impacts to the fullest extent
practicable;
(B)
timely and efficient construction of transportation facilities
in a manner consistent with approved plans or agreements that TxDOT has executed
regarding the protection of the natural environment to provide safe, efficient,
and environmentally sound transportation facilities for the traveling public;
(C)
the ongoing maintenance of these facilities to provide
safe, efficient, and environmentally sound transportation facilities for the
traveling public, and dedication to the protection of natural resources within
the jurisdiction of TxDOT; and
(D)
as directed by House Bill 1359, 74th Legislature, 1995
which amended House Bill 9, 72nd Legislature, 1991, the construction, repair,
and maintenance of roads in and adjacent to state parks, state fish hatcheries,
state wildlife management areas, and support facilities for parks, fish hatcheries,
and wildlife management areas. (These items have been implemented under a
separate memorandum of agreement between TxDOT and TPWD dated September 1,
1998.)
(2)
Texas Parks and Wildlife Department.
(A)
The responsibilities of TPWD relate primarily to its functions
as a natural resource agency, including its resource protection functions,
designated by Parks and Wildlife Code, Chapters 67, 68, 88, and §12.001
and §12.0011, and include:
(i)
acting as the state agency with primary responsibility
to protect the state's fish and wildlife resources;
(ii)
providing recommendations that will promote fish and wildlife
resources to local, state, and federal agencies that approve, permit, license,
or construct developmental projects;
(iii)
providing information on fish and wildlife resources
to any local, state, or federal agencies or private organizations that make
decisions affecting those resources; and
(iv)
maintaining a listing of endangered and threatened species
and providing these listings to local, state, and federal agencies that make
decisions affecting those species.
(B)
TPWD will identify and appoint appropriate staff to coordinate
with TxDOT staff on transportation projects and to review project-specific
information and documentation.
(d)
Provisions. For the purpose of this MOU, the activities
of TxDOT are divided into the following categories.
(1)
Early project development. TxDOT may coordinate the potential
impacts with TPWD Wildlife Habitat Assessment Program staff or the appropriate
selected regional staff. TPWD will provide a list of regional director contacts
for district use. TPWD staff may provide information concerning the occurrence
of unique or important wildlife travel or activity areas, sensitive habitats,
important vegetative communities or ecosystems, suitability of habitat for
threatened or endangered species, or other natural resource information that
could identify potential undesirable impacts and associated planning constraints
before completion of a project design, and selection of a preferred project
alternative. The level of information provided by TPWD will be consistent
with protocol established to protect confidentiality of site-specific data
collected on private lands pursuant to Parks and Wildlife Code, §12.0251
and §12.103. TxDOT will provide project specific information, as available,
to TPWD regional contacts. Following appropriate early coordination that may
involve TPWD regional staff, TxDOT may solicit written concurrence from TPWD
of a proposed project's potential impacts and mitigation during early project
development. However, initially, written concurrence must be coordinated through
the Wildlife Habitat Assessment Program of TPWD. Eventually, projects successfully
coordinated with TPWD regional staff during early project development may
not require additional coordination with TPWD as required under paragraph
(2) of this subsection, as determined by mutual agreement between TPWD and
TxDOT.
(2)
Project development. Upon completion of TxDOT's preliminary
project review, a copy of the environmental documentation shall be furnished
to TPWD for all projects meeting the criteria for coordination unless previously
documented as shown in paragraph (1) of this subsection. Coordination will
be conducted for projects that:
(A)
involve more than 1.0 acre (0.4 hectares) of new right
of way within floodplains or creek drainages in rural or undeveloped urban
areas;
(B)
require channel modifications to streams, rivers, or water
bodies;
(C)
involve a channel realignment involving the creation of
new drainage ways or other excavation impacting more than 1.0 acre (0.4 hectares)
of mature woody vegetation;
(D)
require any excavation (scraping, clearing, or other surface
disturbance) of the existing channel outside of TxDOT's existing right of
way or of the channel inside TxDOT's existing right of way which is not routinely
maintained and exhibits native vegetation;
(E)
might affect mature woody vegetation, dense mature brush,
including any significant remnant native vegetation (e.g., undisturbed native
prairie or bottomland hardwood, etc.);
(F)
are within the range and in suitable habitat of any state
or federally listed threatened or endangered species;
(G)
involve mitigation plans, or otherwise involve proposals
to redress project impacts on fish, wildlife, or plant resources;
(H)
have previous environmental documentation but where three
years have passed without major action(s) (i.e., final design, acquisition
of right of way, approval of plans, specifications, or estimates) and the
project has not been reviewed by TPWD, but meets the above listed criteria;
or
(I)
have previous environmental documentation but where three
years have passed with major action(s) and the project may or may not have
been reviewed by TPWD, but meets the above listed criteria.
(3)
Elements of documentation. The level of environmental
documentation prepared and provided to TPWD will be of sufficient detail to
allow determination of the kinds of vegetation communities that will be affected
and areal extent of vegetation impacted. The biological and natural resource
information contained in the environmental documentation will be interpreted
and verified by a qualified biologist prior to coordination with TPWD. When
available, environmental documentation may be supported by aerial photography
or on-ground photography taken by a hand-held camera.
(4)
Interagency team. An interagency team consisting of
staff from both TxDOT and TPWD will be established within 60 days from the
signature date of this MOU.
(A)
This team will:
(i)
develop procedures and methodologies for providing habitat
characterizations and impact descriptions, and develop supporting information
for the environmental documentation; and
(ii)
establish criteria for the appropriateness, planning,
and implementation of compensatory mitigation when TxDOT has identified a
need, or when TxDOT and TPWD mutually have identified the need, for compensation
(Because mitigation planning or implementation may be completed after the
contract for the project is awarded, no project shall be delayed pending mitigation.).
(B)
In addition, TxDOT has the final decision on the implementation
of a given mitigation plan. However, if TxDOT determines that mitigation is
not feasible, an explanation of why it will not be undertaken shall be provided
to TPWD.
(5)
Review period. TPWD shall have a period of 45
days from the date of the transmittal letter to review project environmental
documentation. Any comments submitted by TPWD shall be considered by TxDOT
in making project decisions. If additional information is requested by TPWD
it shall be provided by TxDOT, if such information is available or reasonably
can be obtained. In such case, TPWD shall have an additional 30 days from
the date of TxDOT's second transmittal letter that will accompany the additional
information forwarded to TPWD to review documentation.
(6)
Final disposition of projects. TxDOT reserves the
right to determine the final disposition of proposed transportation projects,
based on a considered analysis of TPWD comments and practical alternatives
as they relate to TxDOT's responsibilities as described in this document.
(7)
Ongoing coordination. When necessary, construction
activities coordination between TxDOT and TPWD shall continue through the
construction phase to provide for the protection of natural resources. Mitigation
proposals agreed upon by TxDOT and TPWD relating to construction activities
will be included in the project construction plans.
(8)
Unforeseen protected species impacts. In the event
that unforeseen impacts to endangered or threatened species or their habitat
under TPWD jurisdiction are identified after construction has commenced, TxDOT
will coordinate with TPWD regarding such resources.
(9)
Maintenance program review. TPWD will be provided
the opportunity to review TxDOT maintenance programs prior to implementation
of each program or plan. TPWD will be provided an opportunity to comment and
make suggested revisions to the programs, and TxDOT will give consideration
to these suggested revisions. If TxDOT does not fully implement the revisions
suggested by TPWD, TxDOT will provide a written explanation to TPWD.
(10)
TPWD document commentary. Comments received by TxDOT
from TPWD in the coordination process shall, when applicable, include:
(A)
guidance as to what species may be present within the project
area that may require special considerations in terms of those species and
their habitat;
(B)
suggested mitigation measures; and
(C)
recommendations for protection of natural resources under
TPWD jurisdiction, as defined in Parks and Wildlife Code, §12.001 and
§12.0011.
(e)
Special provisions relating to information exchange.
(1)
TxDOT and TPWD shall cooperate in the maintenance and enhancement
of a computer-based information system detailing the distribution of species
listed as threatened or endangered (including state and federal listings),
or those which are of concern and are being considered for listing.
(2)
TxDOT and TPWD shall cooperate to develop a protocol
addressing the transfer of the computer-based information on locations of
protected species and/or habitats of concern, the use and distribution of
this information, and the security of the information. The level of information
provided by TPWD will be consistent with protocol established to protect confidentiality
of site specific data collected on private lands pursuant to Parks and Wildlife
Code, §12.0251 and §12.103.
(f)
Review of MOU. This MOU shall be reviewed and updated,
at a minimum, every fifth year beginning January 1, 2002, and TxDOT and TPWD
by rule shall adopt the MOU and all revisions to the MOU.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
December 21, 1998.
TRD-9818479
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: January 31, 1999
For further information, please call: (512) 463-8630
Subchapter C. Contracting for Architectural, Engineering, and Surveying Services
43 TAC §§9.30, 9.31, 9.33-9.39, 9.41, 9.43
The Texas Department of Transportation proposes amendments
to §§9.30, 9.31, 9.33-9.39, 9.41, and 9.43, concerning contracting
for architectural, engineering, and surveying services.
EXPLANATION OF PROPOSED AMENDMENTS
The proposed amendments to these sections are necessary to shorten the
selection process and clarify several work category requirements.
The amendments to §9.30 cross-reference changes to §9.33(b)(3)
which clarify that prime providers and subproviders must be precertified unless
they will be performing work that is shown to be less than 5.0% of any individual
work category of the contract, or the work category is not listed in this
subchapter.
Section 9.31 is amended to clarify existing terms, reflect the reorganization
of the department, and add the definition for "department project manager."
Section 9.33 is amended by expanding the information that a prime provider
must furnish with the letter of interest. In order to expedite and shorten
the selection process, it is necessary to amend §9.33 to allow the department
to decide that a written proposal will not be required when additional information
is not necessary. In that case, only an interview will be held, therefore,
necessitating that more information be included with the letter of interest.
The amendments also provide that if the work category is not listed in this
subchapter, the notice will list the type of work needed and its minimum qualifications.
The amendments no longer require a provider or subprovider to be precertified
in a work category if the work performed is less than 5.0% of the contract.
This change will expand the number of firms that may be used for small amounts
of work. The amendments allow the department to waive the precertification
requirement for a contract that is anticipated to be less than $250,000 if
the department determines that precertification is not necessary. The notice
will identify whether the precertification will be waived. If the department
waives the precertification requirement, then a provider or subprovider that
is not precertified must submit an attachment with the Letter of Interest
(LOI) describing how the firm meets the minimum requirements or how it possesses
the knowledge and skill to perform the work in those categories so that the
department will have the necessary evaluation information. If the firm is
precertified, it must submit a LOI, but is not required to submit an attachment
describing its qualifications in precertified categories.
The amendments to §9.34 authorize the Consultant Selection Team (CST)
to consider past department performance scores or references from other entities
that are not contained in the database including the ability of the prime
provider to meet deadlines over the past three years. This will encourage
new firms to do business with the department and will also indicate whether
a firm is able to meet deadlines. The section is revised to state that the
prime provider must provide "similar" instead of "special" project related
information because the word "similar" is more specific and relevant. Subsection
(e) is amended to show that scores for the short list will be determined using
relative importance factors for the criteria. The department will notify a
firm whether it is selected for the short list. The Request for Proposal (RFP)
packet will be distributed at the short list meeting. If there is no meeting,
the department will mail the packets to the providers.
The amendments to §9.35 clarify when the RFP packet will be mailed
and allow the department the option of requiring a written proposal. The short
list meeting, if held, will include an explanation of the interview format
and requirements. If no short list meeting will be held, the RFP packet will
include the interview format and requirements. The amendments eliminate the
advertisement of the minimum and preferred proposal qualifications and interview
qualifications from the RFP to allow the provider to inform the department
of its qualifications and experience. However, the minimum and preferred qualifications
will be prepared prior to the release of the RFP packet. The proposal evaluation
criteria will also include other Consultants Review Committee (CRC) approved
criteria listed in the RFP. Scores for the short list will be determined using
relative importance factors for the criteria.
The amendments to §9.36 eliminate the mandatory interview. The CST
will have the option of also interviewing the providers on the short list
for additional information when a written proposal is required. If a written
proposal is not required, then an interview will be conducted. The CST may
allow a provider team to make a written presentation. The CST may require
a provider team to answer a predetermined written set of questions. The interview
evaluation criteria will also include other CRC-approved criteria listed in
the RFP. Scores for the interview will be determined using relative importance
factors for the criteria.
The amendments to §9.37 revise the basis of final selection to accommodate
the new choice between a proposal or an interview. Since there may not be
an interview, the selection method for tie-breaking needed to be revised.
The first tie breaker will be the score for the experience of the project
manager and the project team. The second tie breaker will be the score for
ability to meet the proposed project schedule. If there is still a tie, the
provider will be chosen by random selection. The selected provider shall furnish
evidence of compliance with the assigned DBE/HUB goal or evidence of a good
faith effort. Failure to do so will be considered non-responsive. The amendments
allow the executive director instead of the deputy executive director to designate
a responsible individual for the procedural review and to accept a written
complaint. The deputy executive director would be included as a possible designee.
In order to expedite the selection procedure, the amendments change the signing
date of the contract from 35 to 30 days, and shorten the two negotiating extensions
from 30 working days to 10 working days. To ensure that the department hires
a qualified provider, if the negotiations end with the first provider, the
department will negotiate only through the third ranked highest provider.
If a contract is not awarded within the appropriate time frame, the contract
will be canceled.
The amendments to §9.38 revise the references to the business opportunity
rules to correlate with changes being made to their section numbers. The amendments
allow the CRC to authorize a prime provider to perform less than 30% of the
contracted work with its own work force if the work is so specialized that
the prime provider cannot perform it. The amendments move the responsibility
of managing the contract from the district engineers and division or office
directors to the department project manager, because the district engineers
do not have the time to manage every contract. In order for the department
to obtain a more comprehensive evaluation and encourage new ways to solve
problems, the prime provider will be evaluated on innovation and firm expertise
in addition to management, cost administration, quality, and timeliness. Currently,
the department evaluates performance in contracts that are longer than 18
months. The amendments allow the department to evaluate performance in all
contracts, regardless of duration, so that assessment of the quality of work
may be used in the selection of later projects.
The amendments to §9.39 remove the two year limitation from multiple
contracts in order to expand the use of these contracts in longer projects.
This section provides that instead of providers being chosen on a random basis,
providers will be chosen in the order of ranking in the evaluation process.
Selecting by rank will more accurately utilize the scores from the selection
process. The amendments clarify that the multiple contracts are to be used
for similar types of projects to reduce the cost of advertisement. The amendments
also add indefinite delivery contracts which may be used for an individual
contract or multiple contracts. The indefinite delivery contracts are for
contracts with defined scope of work. The typical type of work will be described
in the notice. The initial work order shall not exceed $500,000 per contract.
The total of the contract initial work authorization shall not exceed $2,000,000.
The indefinite delivery contract may not be longer than two years.
The amendments to §9.41 require precertification unless the anticipated
work in an individual category is less than 5.0% of the contract, or the department
has waived the precertification requirements for a contract that is anticipated
to be less than $250,000. The amendments clarify that a prime provider or
subprovider may be precertified in a technical category if the firm has current
employees possessing the skills and experience to meet the requirements. These
amendments clarify the wording of the current section to state that a prime
provider or subprovider is not precertified based on the firm's experience.
As before, an individual employee's precertification will transfer with the
employee if the employee leaves the firm and joins another firm. The employee
will not then have to submit a new application. The department will review
a prime provider or subprovider to evaluate whether the support, equipment,
and other resources necessary to do the work are provided to the employee.
A written complaint may be sent to the executive director or designee, instead
of the deputy executive director. To allow the providers and the department
extra time to apply for and process the renewals, the renewal time has been
extended from 60 to 90 days prior to the renewal date.
The amendments to §9.43 clarify that the experience used to meet requirements
may be either prior to or after licensure and clarify some of the wording
in the section. The minimum requirements of categories 1.1.1, 1.2.1, 1.3.1,
and 1.4.1 have been broadened to allow planners as well as professional engineers
to be certified if they possess the requisite skills and knowledge. Category
2.6.1 has been clarified to state that it includes the determination of the
potential presence or absence of a protected species or important habitat.
The minimum requirements of categories 2.6.1, 2.6.2, 2.6.3, 2.8.1, 2.10.1,
and 2.14.1 have been broadened because they were too restrictive and prevented
precertification of individuals who were highly qualified under federal law
but not under state law. The requirements under category 2.13.1 were very
general, so additional wording has been added for clarification. The minimum
requirements for categories 5.1.1, 5.2.1, 5.3.1., 5.4.1, 10.5.1, and 11.2.1
require that the structural bridge design experience must be after licensure
as a professional engineer to protect the safety of the traveling public.
The requirements in category 6.1.1 and 6.2.1 have been revised to reflect
the requirements of the American Association of State Highway Transportation
Officials. In order to allow more firms the opportunity to compete, the category
10.4.1 has been divided into the three specific categories of 10.4.1, 10.4.2,
and 10.4.3. The description of work category 15.2.1 has been broadened to
include gathering survey data, cross-sections, and topography during design
or construction.
FISCAL NOTE
Frank J. Smith, Director, Finance Division, has determined that for the
first five-year period the amendments are in effect, there will be no fiscal
implications for state or local governments as a result of enforcing or administering
the amendments, except that the state may realize a decrease in paperwork
due to the option of requiring a written proposal or interview. There are
no anticipated economic costs for persons required to comply with the sections
as proposed, except that some providers may realize a decrease in cost from
reduced paperwork and travel. The decrease in costs for state and providers
cannot be determined because the department cannot predict how many projects
will no longer require both an interview or written proposal.
Robert L. Wilson, Director, Design Division, has certified that there will
be no significant impact on local economies or overall employment as a result
of enforcing or administering the sections.
PUBLIC BENEFIT
Mr. Wilson has determined that for each year of the first five years the
sections are in effect, the public benefit anticipated as a result of the
amendments will be to expedite the time required between the publication of
notice and the execution of a contract with a provider, to reduce unnecessary
paperwork, and to ensure the competence and capabilities of providers. There
will be no effect on small businesses.
PUBLIC HEARING
Pursuant to the Administrative Procedure Act, Government Code, Chapter
2001, the Texas Department of Transportation will conduct a public hearing
to receive comments concerning the proposed amendments. The public hearing
will be held at 9:00 a.m. on January 14, 1999, in the first floor hearing
room of the Dewitt C. Greer State Highway Building, 125 East 11th Street,
Austin, Texas and will be conducted in accordance with the procedures specified
in 43 TAC §1.5. Those desiring to make comments or presentations may
register starting at 8:30 a.m. Any interested persons may appear and offer
comments, either orally or in writing; however, questioning of those making
presentations will be reserved exclusively to the presiding officer as may
be necessary to ensure a complete record. While any person with pertinent
comments will be granted an opportunity to present them during the course
of the hearing, the presiding officer reserves the right to restrict testimony
in terms of time and repetitive content. Organizations, associations, or groups
are encouraged to present their commonly held views and identical or similar
comments through a representative member when possible. Comments on the proposed
text should include appropriate citations to sections, subsections, paragraphs,
etc. for proper reference. Any suggestions or requests for alternative language
or other revisions to the proposed text should be submitted in written form.
Presentations must remain pertinent to the issues being discussed. A person
may not assign a portion of his or her time to another speaker. A person who
disrupts a public hearing must leave the hearing room if ordered to do so
by the presiding officer. Persons with disabilities who plan to attend this
meeting and who may need auxiliary aids or services such as interpreters for
persons who are deaf or hearing impaired, readers, large print or Braille,
are requested to contact Eloise Lundgren, Director, Public Information Office,
125 East 11th Street, Austin, Texas 78701-2483, (512)463-8588 at least two
working days prior to the hearing so that appropriate services can be provided.
SUBMITTAL OF COMMENTS
Written comments on the proposal may be submitted to Mr. Robert L. Wilson,
Director, Design Division, Texas Department of Transportation, 125 East 11th
Street, Austin, Texas 78701. The deadline for receipt of written comments
is 5:00 p.m. on February 1, 1999.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation;
and Government Code, Chapter 2254, Subchapter A, the Professional Services
Procurement Act, which sets forth requirements for selection and contracting
of professional services providers.
No statutes, articles, or codes are affected by the proposed amendments.
§9.30.Purpose.
This subchapter establishes standard procedures for selection and contract
management of architectural, professional engineering, and land surveying
service providers in accordance with Government Code, Chapter 2254, Subchapter
A, the Professional Services Procurement Act and Transportation Code, §223.041.
This subchapter only applies to a contract which requires a professional engineer,
registered architect, or registered professional land surveyor.
Prime
providers and subproviders shall
[
§9.31.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
AASHTO--American Association of State Highway and Transportation
Officials.
(2)
Administrative qualification--A department process
conducted to determine if a prime provider or subprovider meets the requirements
of 23 Code of Federal Regulations (CFR) 172.5(c) concerning the administration
of engineering and design related service contracts.
(3)
Available personnel--The total number of personnel
employed by the provider proposed to be used on the advertised contract.
(4)
Business opportunity programs
section of the
Construction Division (CSTB)
[
(5)
CCIS--Consultant Certification Information System.
(6)
Close out--The actions required to close out or complete
the contract, including receipt and acceptance of deliverables, resolution
of audit findings, receipt of outside approvals if applicable, resolution
of other contract-related issues, and issuance of final payment.
(7)
Constructability--The ability of a project to be accurately
constructed from information presented in plans and specifications.
(8)
Construction engineering--The interpretation of plans
and specifications and formulation of engineering decisions during the period
that the project is under construction.
(9)
Construction inspection--Inspection of construction
methods and materials [
(10)
Construction management--Construction engineering
performed by the professional engineer in responsible charge of the construction
project to direct the contractor concerning changes, additions, or deletions
to the project.
(11)
Consultants review committee (CRC)--The department
committee that oversees the provider review process.
(12)
Consultant selection team (CST)--The department's
managing office team that selects the long list and short list and evaluates
proposals and interviews.
(13)
Disadvantaged business enterprise (DBE)--As defined
in 49 CFR §23.62, a small business concern, certified by
CSTB
[
(14)
DBE/HUB goal participation--The percentage goal of
participation by DBE/HUB providers determined by the percentage of work performed
by the DBE/HUB providers.
(15)
DBE/HUB special provision--A special provision to
the provider contract that identifies good faith effort, and the procedure
to demonstrate that good faith effort was attempted if the DBE/HUB goal could
not be fulfilled.
(16)
Debarment certification--A certification that the
provider and its principals are not debarred from participation and not under
consideration for debarment anywhere, and are eligible to perform the contract.
(17)
Department--The Texas Department of Transportation.
(18)
Department project manager--The
department employee designated in the contract as the official contact for
all correspondence between the department and the provider.
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(36)
[
(37)
[
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
[
(45)
[
(46)
[
§9.33.Notice and Letter of Interest.
(a)
Notice.
(1)
Electronic notice. Not less than 21 days before the letter
of interest due date, the department will post on an electronic bulletin board
a notice identifying [
(A)
the
proposed contract or RFP number;
(B)-(C)
(No change.)
(D)
the
general description of the project and work
to be done;
(E)
the
[
(F)
if the work type is not listed as a category
in §9.43 of this title (relating to Qualification Requirements by Work
Group), the type of work needed and its minimum requirements; and
(G)
whether the department has waived the
precertification requirement of §9.41 of this title (relating to Precertification)
when the total contract fee for professional services is anticipated to be
less than $250,000 on an individual contract.
(2)
Newspaper notice. Not less than 21 days before
the letter of interest due date, the department will publish
a notice
in a local newspaper within the
geographical area of the
district
, division, or special office
in which the work will be
performed [
(A)
the
proposed contract or RFP number;
(B)
the
general description of the project and work
to be done;
(C)
the
due date for providers to send letters of
interest to the department;
(D)
the
contact person; [
(E)
the
location of the electronic bulletin board
that contains more information
;
(F)
if the work category is not listed in
§9.43 of this title (relating to Qualification Requirements by Work Group);
the type of work needed and its minimum qualifications; and
(G)
whether the department has waived the
precertification requirement of §9.41 of this title (relating to Precertification)
when the total contract fee for professional services is anticipated to be
less than $250,000 on an individual contract.
(3)
(No change.)
(b)
Letter of interest
(LOI)
.
(1)-(2)
(No change.)
(3)
To be considered:
(A)
a prime provider or a subprovider
that will be performing
work in any individual work category which is 5.0% or more of the contract
must be precertified by the deadline for receiving the letter of interest
in accordance with §9.41 of this title (relating to Precertification)
unless the work category is not listed in §9.43 of this title (relating
to Qualification Requirements by Work Group); [
(B)
a prime provider or subprovider must demonstrate
in an attachment to the LOI how it meets the minimum qualifications for work
that does not fall within any work category outlined in §9.43 (The attachment
may be in addition to the maximum pages allowed for the LOI.);
(C)
if the work in any individual work category
as shown in the notice is less than 5.0% of the contract, a provider or subprovider
that is not precertified must demonstrate in an attachment to the LOI how
it meets the minimum requirements or how it possesses the knowledge and skill
to perform the work in those categories (The attachment may be in addition
to the maximum pages allowed for the LOI.);
(D)
if the total contract fee for professional
services is anticipated to be less than $250,000 on an individual contract
and the department has waived the precertification requirement of §9.41
of this title (relating to Precertification), then a provider or subprovider
that:
(i)
is not precertified must submit an attachment with the
LOI which describes how the firm meets the minimum requirements or how it
possesses the knowledge and skill to perform the work in those categories
(The attachment may be in addition to the maximum pages allowed for the LOI.);
or
(ii)
is precertified must submit a LOI, but is not required
to submit an attachment describing its qualifications in precertified categories
(If the firm proposes to do work in categories in which it is not been precertified,
then it must submit an attachment describing how the firm meets the minimum
requirements or how it possesses the knowledge and skill to perform the work
in those categories); and
(E)
[
(4)
The letter of interest shall include;
(A)
the contract
or RFP
number;
(B)-(C)
(No change.)
[(D)
similar project related experience;]
(D)
[
(E)
[
(F)
[
§9.34.Determination of the Short List.
(a)-(b)
(No change.)
(c)
Criteria. The CST will consider the following criteria
in its review of all interested providers:
(1)
past performance scores contained in the database for contracts
completed for the department
or
[
(2)
(No change.)
(3)
similar
[
(4)
other CRC approved criteria listed in the notice
[
(d)
Score. The CST will assign a RIF weight
to each criterion. The RIF total for all criteria will equal 100. Each criterion
will be scored separately on a 0-10 point scale with 10 considered the best
qualified. The maximum possible score that a CST member may give is 1000 points.
(e)
[
(f)
[
§9.35.Short List Meeting, Proposals, and Evaluation.
(a)
Short list meeting. The managing office may require, or
offer the opportunity to conduct, a short list meeting
which will include
an explanation of the interview format and requirements
. The
RFP
packet
[
(b)
Request for proposals. The RFP
packet
will include:
(1)
instructions for
:
(A)
written
proposal preparation[
(B)
submittal
of the packet
[
(2)-(5)
(No change.)
[(6)
minimum and preferred proposal qualifications;]
[(7)
minimum and preferred interview
qualifications;]
(6)
[
(7)
[
(8)
[
(9)
[
(10)
the interview format and requirements
if no short list meeting will be held.
(c)
Proposal format.
When a
[
(d)
Receipt of proposals. A proposal must be received by the
date, time, and place specified in the RFP
packet
. The department
will not accept a proposal by electronic facsimile.
(e)
Proposal evaluation criteria. The CST will evaluate proposals
based on the following criteria:
(1)-(2)
(No change.)
(3)
ability to meet the project schedule; [
(4)
unique or innovative methods of approaching the proposed
work that may save time or money, or result in a better quality product
; and
(5)
other CRC approved criteria listed
in the RFP.
(f)
Proposal evaluation scale. The CST will assign
a RIF
weight to each criterion. The RIF total for all criteria will equal 100. Each
criterion will be scored separately on a 0-10 point scale with 10 considered
the best qualified. The maximum possible score that a CST member may give
is 1000 points
[
[(1)
0=does not meet minimum qualifications;]
[(2)
1=meets minimum qualifications;]
[(3)
2=meets minimum qualifications and
at least half of the preferred qualifications; and]
[(4)
3=meets minimum qualifications and
meets or exceeds all preferred qualifications].
§9.36.Interviews and Evaluation.
(a)
Interviews. The CST
may
[
(b)
Interview structure. The interview allows the providers
to demonstrate their understanding of the project and knowledge of applicable
rules, regulations, codes, and special information to be gathered.
The
CST may allow a provider team to make a presentation with written material
for the CST to reference in evaluating the interview. The CST may require
a provider team to answer a predetermined written set of questions in the
interview.
(c)
Evaluation criteria. The CST will consider the following
criteria in its evaluation of the provider's interview:
(1)-(3)
(No change.)
(4)
unique or innovative methods of approaching the proposed
work that may save time or money, or result in a better quality product; [
(5)
responses to interview questions
; and
(6)
other CRC approved criteria listed
in the RFP.
(d)
Interview evaluation
[
[(1)
0=does not meet minimum qualifications;]
[(2)
1=meets minimum qualifications;]
[(3)
2=meets minimum qualifications and
at least half of the preferred qualifications; and]
[(4)
3=meets minimum qualifications and
meets or exceeds all preferred qualifications].
§9.37.Selection.
(a)
Basis of final selection.
(1)
If a proposal and interview are both required, the final
selection will be made by using the CST proposal score for 30% of the total
score and the interview score for 70% of the total score.
(2)
If an interview is not required, the final selection
will be made by using the written proposal score.
(3)
If a written proposal is not required, the final selection
will be made by using the interview score.
[(a)
Evaluation criteria. The CRC will establish
weighting factors for each evaluation criterion. In its evaluation of the
provider, the CST will consider:]
[(1)
the CST proposal score, which comprises 30% of the total
score; and]
[(2)
the CST interview score, which comprises 70% of the
total score.]
(b)
Tie scores. In the event of a tie, the managing officer
will break the tie using the following method.
[(1)
The first tie breaker will be the CST
interview score.]
(1)
[
(2)
[
(3)
If there is still a tie, the provider
will be chosen by random selection.
(c)
DBE/HUB Goals. The selected provider shall
furnish evidence of compliance with the assigned DBE/HUB goal or evidence,
acceptable to the department, of a good faith effort to meet the assigned
goal. Failure to do so shall be reason to consider the proposal non-responsive,
and the department will select the next highest scored provider meeting these
requirements.
(d)
[
(e)
[
(f)
[
(1)
prepare a letter to notify the provider selected for contract
negotiation
and arrange a meeting to begin contract negotiations
;
(2)
prepare a letter to each of the [
[(3)
set up a meeting with the selected
provider to begin contract negotiations; and]
(3)
[
(g)
[
(1)
Selected provider. The department will enter into negotiations
with the selected provider. The provider shall submit the information required
for the contract, including a work outline, work schedule, and cost proposal.
If the information is not submitted to the department prior to selection,
the provider shall meet requirements for administrative qualification in accordance
with §9.42 of this title (relating to Administrative Qualification) to
determine the fairness and reasonableness of the contract price. State funded
architectural contracts are based on percentage of construction cost as provided
in the General Appropriations Act. Pursuant to 23
CFR
[
(2)
Contract execution. The provider shall sign the contract
within
30
[
(3)
Selection of alternative providers. If the department
is unable to execute a satisfactory contract containing a fair and reasonable
price within the allotted time period with the selected provider, negotiations
shall formally end with that provider and negotiations shall, upon written
approval of the managing officer, begin with the provider ranked next
highest
. Negotiations shall be undertaken in this sequence
through
the third highest ranked provider. If a contract is not awarded to any of
the three highest ranked providers within the time frame specified in this
section, the contract will be canceled
[
(4)
(No Change.)
(h)
[
§9.38.Contract Management.
(a)
DBE/HUB participation.
(1)
DBE/HUB program goals may be satisfied by the prime provider.
DBE/HUB participation opportunities are more specifically addressed in
subchapter D
[
(2)
(No change.)
(b)
Subcontracts.
(1)
A prime provider shall perform at least 30% of the contracted
work with its own work force. No subprovider may perform a higher percentage
of the work than the prime provider
, unless approved by the CRC when
the work is so specialized that the prime provider cannot perform at least
30% of the work
.
(2)-(4)
(No change.)
(c)
Operations.
(1)
Management responsibility. The
department's project
manager who requested
[
(2)-(4)
(No change.)
(5)
Payment on provider contracts. Payment for eligible
costs will be made within 30 days after receiving a correct invoice. Payment
may be withheld pending verification of satisfactory work performed. To receive
payment for services, the provider shall submit to the department project
manager:
(A)-(B)
(No change.)
(C)
a DBE/HUB report (The
CSTB
[
(6)
(No change.)
(d)-(f)
(No change.)
(g)
Provider performance evaluations.
(1)
The
[
(2)
The department will evaluate a prime provider, using
a numerical score, in the categories of management, cost administration, quality,
innovation, firm expertise,
and timeliness. The prime provider will
also receive an overall contract evaluation in each of the evaluation categories.
(3)-(5)
(No change.)
§9.39.Selection Types.
The department will perform
four
[
(1)
(No change.)
(2)
Multiple contract selection. More than one contract[
(A)
If more prime providers fall within the specified range
than the anticipated number of contracts, prime providers will be selected
in order of ranking in the evaluation process
[
(B)
(No change.)
(3)
Indefinite delivery contract
selection. This contract may be for an individual contract or for multiple
contracts. The typical type of work will be described in the notice. The initial
work authorizations for this contract shall not exceed $500,000 each. The
total of the contract initial work authorizations shall not exceed $2,000,000.
The contract duration, in which initial work authorizations may be issued,
may not be longer than two years.
(4)
[
§9.41.Precertification.
(a)
Eligibility. To be eligible to perform work in the categories
described in §9.43 of this title (relating to Qualification Requirements
by Work Group), a prime provider and a subprovider must be precertified in
accordance with this section
unless:
(1)
the anticipated work in a individual work
category is 5.0% or less of the contract; or
(2)
the department has waived the precertification
requirements for a contract that is less than $250,000.
(b)-(c)
(No change)
(d)
Precertification deadline.
When precertification is
required as described in subsection (a) of this section, prime
[
(e)
(No change.)
(f)
Technical precertification.
(1)
A prime provider or subprovider may be
precertified in a technical category if the firm has current employees possessing
the skills and experience to meet the requirements. A prime provider or subprovider
is not precertified based on the firm's experience.
(2)
A precertification will transfer
with the employee if the employee leaves the firm.
(3)
The department will review a prime
provider or subprovider to evaluate whether the support, equipment, and other
resources necessary to do the work are provided to the employee.
[
(4)
A prime provider or subprovider with one
employee who meets the appropriate requirements of multiple
technical
categories may be precertified in those categories.
When required,
prime
[
(5)
The department will not precertify joint
ventures. [
(g)
Precertification review.
(1)
A prime provider or subprovider
[
(2)
If
the submittal is incomplete, a prime provider
or subprovider will be
requested to submit additional information for
review
.
[
(3)
(No change.)
(h)
Annual renewal. Prime providers and subproviders will be
assigned an annual renewal date by the department. Prime providers and subproviders
must apply for renewal of precertification between
90
[
(i)
Appeal. A prime provider or subprovider may appeal denial
of precertification by submitting additional information within 30 days of
receipt of written notification of denial to the CRC in Austin. This information
shall justify why the prime provider or subprovider meets the requirements
for precertification. The CRC will review the information and make a determination
regarding precertification. A provider may file a written complaint regarding
selection for precertification with the [
§9.43.Qualification Requirements by Work Group.
(a)
Requirements.
(1)
(No change.)
(2)
Experience.
The experience used to meet requirements
may be either prior to or after licensure unless otherwise stated in a specific
category.
For the purpose of experience for precertification, the professional
provider may be licensed to practice in any state for which that experience
is recognized by the:
(A)-(C)
(No change.)
(3)
(No change.)
(b)
Work Categories.
(1)
Group 1-transportation systems planning.
(A)
Category 1.1.1-policy planning. This category includes
the investigation and development of transportation planning and strategies
to meet current or future needs at the state or local level. The firm must
employ [
(i)
(No change.)
(ii)
[
(B)
Category 1.2.1-systems planning. This category includes
development of state or local transportation plans to create complete integrated
systems to support movement of people and goods. The firm must employ [
(i)
(No change.)
(ii)
[
(C)
Category 1.3.1-subarea/corridor planning. This category
includes the study of the feasibility of all modes of transportation corridors
at the state or local level to determine the cost effectiveness of the various
alternatives to meet specific goals and may include actual route location
as a final product. The firm must employ [
(i)
(No change.)
(ii)
[
(D)
Category 1.4.1-land planning/engineering. This category
includes planning and engineering in support of assessing the impacts that
proposed transportation improvements may have on public and private property.
The firm must employ [
(i)
(No change.)
(ii)
[
(E)
Category 1.5.1-feasibility studies. This category includes
investigation of programs or specific projects to determine if they are cost
effective and meet the
department's
desired goals. The firm must
employ [
(i)
(No change.)
(ii)
completed
[
(F)
Category 1.6.1-major investment studies. This category
includes the investigation of modal and financing alternatives for major transportation
projects at the state or local level. The firm must employ [
(i)-(ii)
(No change.)
(2)
Group 2-environmental studies.
(A)
Category 2.1.1-traffic noise analysis. This category includes
the performance of a traffic noise analysis for a roadway project. The firm
must employ one person with:
(i)
(No change.)
(ii)
demonstrated
[
(B)
Category 2.2.1-air quality analysis. This category includes
the performance of an air quality analysis for a roadway project. The firm
must employ one person with:
(i)
(No change.)
(ii)
demonstrated
[
(C)-(D)
(No change.)
(E)
Category 2.5.1-water pollution abatement plan. This category
includes geologic field assessment and the preparation of pollution abatement
plans as
they relate
[
(i)-(ii)
(No change.)
(F)
Category 2.6-protected species coordination. This category
includes the following types of biological
issues and
coordination.
(i)
Category 2.6.1-protected species determination
(habitat)
. This category involves the determination of the
potential
presence or absence of a protected species
or important habitat
.
The firm must employ one person with knowledge of
currently protected
species and/or habitats, and a demonstrated ability to perform basic inventory
work sufficient to comply with FHWA National Environmental Protection Act
(NEPA) requirements
[
(ii)
Category 2.6.2-
impact evaluation
[
(iii)
Category 2.6.3-biological surveys.
This category
requires demonstration of ability to conduct biological resource field studies.
The firm must employ one person
:
(I)
with
demonstrated ability to survey the
project site and classify the vegetation community, list animal species associated
with that community, and identify special habitat features within the community;
(II)
who has required state and federal permits;
and
(III)
with experience in appropriate survey
protocols for specific protected species
[
(G)
Category 2.7.1-§4(f) (Title 23, United States Code
of Federal Regulations, §771.135) and/or §6(f) (Title 49, United
States Code, §303) evaluations. This category includes §4(f) evaluations,
identified in the Department of Transportation Act of 1966, which are conducted
when right of way is acquired from publicly owned parks, recreation areas,
wildlife or waterfowl refuges, or historic sites, and §6(f)
evaluations
which
apply
[
(i)-(iii)
(No change.)
(H)
Category 2.8.1-surveys, research and documentation of historic
buildings, structures, and objects. This category includes surveys, research,
and documentation efforts carried out in accordance with the Secretary of
the Interior's Standards and Guidelines for Archeology and Historic Preservation
(Volume 48 of the Federal Register, 44716) to comply with §106 (Title
16, United States Code, §470f) of the National Historic Preservation
Act of 1966, as amended, and other state and federal historic preservation
related laws and regulations. Associated activities include: delineation of
the area of potential effects for projects with the potential to affect historic
properties; field surveys and photographic and written documentation on historic
properties located within a project's area of potential effects; development
of historic contexts that provide an organizational and thematic format for
evaluating historic properties;
determination
[
(i)
a master's degree in architectural history, historic preservation
or a closely-related field, with course work in American architectural history
and a minimum of one year of direct experience performing surveys, research
or documentation of historic buildings, structures, and objects; [
(ii)
a bachelor's degree in architectural history, historic
preservation or a closely-related field, with course work in American architectural
history and a minimum of two years of direct experience performing surveys,
research or documentation of historic buildings, structures, and objects
; or
(iii)
a minimum of ten years of direct experience
performing surveys, research, or documentation of historic buildings, structures,
and objects, including scholarly publications and presentations at professional
meetings.
(I)
Category 2.9.1-historic architecture. This category includes
architectural work to ensure compliance with
the
Secretary of the
Interior's Standards for Historic Preservation projects (Volume 48 of the
Federal Register, 44716). Associated activities include detailed investigations
of historic structures, preparation of historic structure research reports,
preparation of plans and specifications for historic preservations projects,
development of management plans for individual properties, and preparation
of measured drawings for affected historic properties. The firm must employ
a registered architect:
(i)
(No change.)
(ii)
with a minimum of one year of full-time experience managing
historic preservation projects and completion of
a minimum of
[
(J)
Category 2.10.1-
archeological
[
(i)
with a master's degree in
archeology
[
(ii)
who has a minimum of one year of supervised field and
analytic experience in
archeology
[
(iii)
who is a professional
archeologist
[
(iv)
who has
served as principal or co-principal investigator
on
[
(v)
(No change.)
(K)
Category 2.11.1-historical and archival research. This
category includes historical and archival research on historic properties
or historic archeological sites, the development of research designs to guide
historical research efforts, and the development of historic contexts to provide
an organizational and thematic format for further research and evaluation
of historic properties and historic
archeological
[
(i)
a master's degree in history or a closely related field
with a minimum of one year of full-time experience in historical research,
writing, teaching, or other
demonstrated
[
(ii)
a bachelor's degree in history or a closely related field
with a minimum of two years of full-time experience in research, writing,
teaching, interpretation, or other
demonstrated
[
(L)
Category 2.12.1-socio-economic and environmental justice
analyses. This category includes: analyzing U.S. Census data for the affected
area; identifying changes in land use, land values, and the local tax base;
identifying impacts to the business environment to include relocations, construction
period impacts, accessibility issues, and effects to employees and customers;
estimating the number and type of residential relocations; identifying the
availability of comparable replacement housing in accordance with the Uniform
Relocation Assistance and Real Property Acquisitions Policies Act of 1970;
identifying impacts to community cohesion and the effects to public facilities
and services; and identifying and addressing disproportionately high and adverse
health and environmental impacts to minority populations and low-income populations
in accordance with Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-income Populations (February 11, 1994).
The firm must employ one person with:
(i)
a bachelor's degree in sociology, economics, urban planning,
engineering, or a related field
described in this category
;
(ii)-(iii)
(No change.)
(M)
Category 2.13.1-hazardous materials
initial site
assessment. This category includes
the performance of an initial site
assessment to identify known or possible hazardous materials and determine
the potential for encountering them during project development. The assessment
shall be in general accordance with the American Society for Testing and Materials
Environmental Site Assessment standard practices,
[
(i)
a minimum of one year of experience [
(ii)
working knowledge of pertinent federal, state and
local environmental laws and regulations, ASTM standard practices for environmental
site assessments, and hazardous material assessments/investigations
[
(N)
Category 2.14.1-environmental document preparation. This
category includes the preparation of environmental documents for transportation
projects as identified in §2.43(c), (d) and (e) of this title (relating
to Highway Construction Projects - State Funds). The firm must employ one
person:
(i)
with a bachelor's degree or equivalent experience in environmental
studies, urban planning, civil or environmental engineering, or a related
field
, and with knowledge of pertinent federal, state, and local environmental
regulations
;
(ii)
in responsible charge of the review and
preparation of, and/or participation in any management that developed five
or more moderate to large projects which were approved as environmental assessment-FONSI;
or
(iii)
in responsible charge of the review
and preparation of, and/or participation in any management that developed
10 or more small to moderate projects which were approved as environmental
assessment-FONSI; or
(iv)
in responsible charge of the review and
preparation of, and/or participation in any management that developed one
project which was approved as an environmental impact statement
[(ii)
in responsible charge of the preparation
of environmental documents for a minimum of two transportation projects through
the issuance of the FONSI;]
[(iii)
with participation in the preparation
of and management of environmental documents for a minimum of one environmental
impact statement through the Record of Decision; and]
[(iv)
with knowledge of pertinent federal,
state, and local environmental regulations].
(3)
Group 3-schematic development. The firm
must employ sufficient production staff to perform the work described in the
following categories.
(A)
Category 3.1.1-route studies & schematic design - minor
roadways. This category includes the preliminary alignment and layout of minor
roadways as described in Category 4.1.1. The firm must employ [
(i)-(ii)
(No change.)
(B)
Category 3.2.1-route studies & schematic design-major
roadways. This category includes the preliminary alignment and layout of major
roadways as described in Category 4.2.1. The firm must employ [
(i)-(ii)
(No change.)
(C)
Category 3.3.1-route studies & schematic design-complex
highways. This category includes the preliminary alignment and layout of complex
highways as described in Category 4.3.1. The firm must employ [
(i)-(ii)
(No change.)
(D)
Category 3.4.1-minor bridge layouts. This category includes
the preliminary alignment and layout of minor bridges as described in Category
5.1.1. The firm must employ [
(i)-(ii)
(No change.)
(E)
Category 3.5.1-major bridge layouts. This category includes
the preliminary alignment and layout of major bridges as described in Category
5.2.1. The firm must employ [
(i)-(ii)
(No change.)
(F)
Category 3.6.1-multi-level interchange and exotic bridge
layout. This category includes the preliminary alignment and layout of multi-level
interchanges as described in Category 5.3.1 and 5.4.1. The firm must employ
[
(i)-(ii)
(No change.)
(4)
Group 4-roadway design. The firm must employ
sufficient production staff to perform the work described in the following
categories.
(A)
Category 4.1.1-minor roadway design. This category includes
the design of small urban and rural roadways involving repair, resurfacing,
and rehabilitation that do not include major reconstruction, and urban and
rural roadways that involve substantial capacity improvements [
(B)
Category 4.2.1-major roadway design. This category includes
design of urban and rural roadways that involve major reconstruction or substantial
capacity improvements through a developed area. Associated activities include
utility relocation plans, stormwater permits, maintenance of traffic plans,
and traffic engineering applications. The firm must employ [
(C)
Category 4.3.1-complex highway design. This category includes
the design of expressways, limited access facilities, diamond interchanges,
freeways, and new roadway and reconstruction work on complex projects including
complex geometrics. Associated activities include substantial drainage evaluation
and design features, traffic engineering applications, utility relocation
plans, and maintenance of traffic plans. The firm must employ [
(D)
Category 4.4.1-major freeway interchanges and direct connectors.
The firm must employ [
(5)
Group 5-bridge design. The firm must employ sufficient
production staff to perform the work described in the following categories.
(A)
Category 5.1.1-minor bridge design. This category includes
the design of conventional, non-complex bridges, bridge replacements, simple
bridge widening, railroad overpasses, non-standard retaining walls, and pedestrian
bridges. The firm must employ [
(B)
Category 5.2.1-major bridge design. This category includes
the design of bridges with complex geometry, complexity of design, spans less
than 350 feet, non-conventional substructures, substructures requiring ship
impact design, design of dolphins for bridge pier protection, railroad underpasses,
complex bridge widening, steel truss spans, and concrete arch bridges. The
firm must employ [
(C)
Category 5.3.1-multi-level interchange design. This category
includes design of bridges with three levels or more. The firm must employ
[
(D)
Category 5.4.1-exotic bridge design. This category includes
the design of bridges with spans greater than 350 feet, suspension bridges,
cable-stayed bridges, precast, post-tensioned segmental bridges, bridges requiring
unique analytical methods, and movable bridges. The firm must employ [
(6)
Group 6-bridge inspection. The firm must employ
sufficient National Highway Institute (NHI) trained bridge inspectors and
other technical personnel as required to perform inspection of bridges included
in this category.
(A)
Category 6.1.1-routine bridge inspection. This category
includes the inspection of on-system and off-system bridges, inspection and
load rating for culverts, prestressed beam bridges, cast-in-place concrete
bridges, steel girder bridges, steel truss bridges, and timber bridges. The
firm must employ:
(i)
a project manager who is a registered professional
engineer, is qualified for registration as a professional engineer under the
laws of a state, or has a minimum of 10 years experience in
[
(ii)
a [
(B)
Category 6.2.1-complex bridge inspection. This category
includes the inspection of on-system and off-system bridges, inspection and
load rating for precast segmental structures, steel arch structures, cable
stayed structures, fracture critical inspections, and movable bridges. The
firm must employ:
(i)
[
(ii)
a person
[
(7)
Group 7-traffic engineering and operations
studies.
(A)
Category 7.1.1-traffic engineering studies. This category
is defined as the study of the traffic operations of a roadway. Associated
activities include preparation of or performance of traffic counts, signal
warrants, collision diagrams, travel time and delay, capacity and level of
service analysis, intersection analysis, signing, and pavement marking. The
firm must employ [
(B)
Category 7.2.1-highway-rail grade crossing studies. This
category includes the study of the operations of highway-rail grade crossings.
Associated activities include preparation of or performance of corridor analysis,
diagnostic inspections to determine appropriate type and location of active
warning devices, advance warning signs and pavement markings, and other geometric
or operational improvements. The firm must employ [
(C)
Category 7.3.1-traffic signal timing. This category includes
analysis, development, and implementation of timing for traffic signals. Associated
activities include data collection, intersection analysis, computerized timing
programs (development of phase intervals and sequence), and timing implementation.
A firm must employ:
(i)
[
(ii)
(No change.)
(D)
Category 7.4.1-traffic control systems analysis, design
and implementation. This category includes the use of electrical engineering,
electronics engineering, computer science and traffic engineering to analyze,
design, and implement real-time traffic control systems. The firm must employ:
(i)
[
(ii)
(No change.)
(E)
Category 7.5.1 - Intelligent Transportation System. This
category includes conducting ITS planning studies. Associated activities include
the study of transportation systems, identification of ITS applications to
mitigate transportation problems, development of short term and long term
ITS implementation plans, and assessment of the impact of ITS projects on
the transportation system. The firm must employ:
(i)
[
(ii)
(No change.)
(8)
Group 8-traffic operations design.
(A)
Category 8.1.1-signing, pavement marking and channelization.
This category includes the design and preparation of plans for signing, pavement
marking, and channelization. The firm must employ [
(B)
Category 8.2.1-illumination. This category includes the
design and preparation of plans for continuous roadway lighting, safety lighting,
underpass lighting, tunnel lighting, and high mast lighting. The firm must
employ [
(i)
[
(ii)
(No change.)
(C)
Category 8.3.1-signalization. This category includes the
design and preparation of plans for traffic signalization. The firm must employ
[
(D)
Category 8.4.1-ITS control systems analysis, design, and
implementation. This category of work includes the use of transportation engineering,
electronics engineering, and computer science to analyze, design and implement
transportation control systems. Associated activities include system performance
and cost analysis, system hardware and software design, communication system
design, development of management plans, supervision of system installation
and operation, system testing and debugging, preparation of system documentation,
and the training of operations personnel. The firm must employ:
(i)
[
(ii)
(No change.)
(E)
Category 8.5.1-highway-rail grade crossings. This category
includes the design and preparation of plans for active warning devices, advance
warning signs, pavement markings, and other geometric or operational improvements
at highway-rail crossings. The firm must employ [
(9)
Group 9-bicycle and pedestrian facilities. Category
9.1.1-bicycle and pedestrian facility development includes the design of bicycle
and pedestrian facilities. The firm must employ:
(A)
[
(B)
(No change.)
(10)
Group 10-hydraulic design and analysis.
(A)
Category 10.1.1-hydrologic studies. This category includes
rainfall, runoff determination, reservoir routing, and channel routing. The
firm must employ [
(B)
Category 10.2.1-basic hydraulic design. This category includes
storm drain systems, culverts, sedimentation filtration systems, and detention/retention
ponds. The firm must employ [
(C)
Category 10.3.1-complex hydraulic design. This category
includes hydraulic design of bridges over waterways, flood plain analysis,
and channel modifications. The firm must employ [
(D)
Category 10.4.1-
pump stations-hydraulics
[
[(i)
[(ii)
a minimum of one professional engineer
with proficiency in electrical engineering and with a minimum of two years
experience in pump system switching and pump configurations; and]
[(iii)
sufficient support staff for producing
electrical and structural details].
(E)
Category 10.4.2-pump stations-electrical.
This category includes the design of pump motor control centers, controls,
generators, and large distribution equipment stations for conveyance of storm
water. The firm must employ one professional engineer with a minimum of five
years experience in the design of large motor control centers and generating
equipment, the National Electrical Code, and control systems.
(F)
Category 10.4.3-pump stations-structures.
This category includes the structural design of walls, roofs, foundations,
and wells of pump stations for conveyance of storm water. The firm must employ
one professional engineer with a minimum of two years of structural pump stations
design experience.
(G)
[
(11)
Group 11-construction management. The firm must
employ sufficient technical personnel with construction engineering inspection
experience to staff projects under this category of work.
(A)
Category 11.1.1-roadway construction management and inspection.
This category includes the performance of construction management duties for
all categories of roadways and highways, and minor bridges as described in
Category 5.1.1. The firm must employ [
(B)
Category 11.2.1-major bridge construction, management,
and inspection. This category includes the performance of construction management
duties for major bridges, multi-level interchanges, and exotic bridges as
described in Category 5.2.1. The firm must employ one professional engineer
with a minimum of two years demonstrated major bridge construction experience
, after licensure as a professional engineer
.
(12)
Group 12-materials inspection and testing.
(A)
Category 12.1-material testing. The firm must have available
in-house equipment and employ qualified, certified staff necessary to perform
the work specified in this category.
(i)
Category 12.1.1-asphaltic concrete. This category includes
testing of asphaltic concrete material. The firm must employ [
(ii)
Category 12.1.2-portland cement concrete. This category
includes testing of portland cement concrete. The firm must employ [
(B)
Category 12.2.1-plant inspection and testing. This category
includes inspection of the following types of facilities and inspection of
materials and finished products within these facilities: fabrication plants,
mines and quarries, mills, refineries, processors, and producers. The firm
must employ:
(i)
[
(ii)
(No change.)
(13)
Group 14-geotechnical services.
(A)
Category 14.1.1-soil exploration. This category includes
acquisition and reporting of subsurface material to be used for the planning,
design, construction, and performance of transportation facilities. The field
classification of materials and acquisition of soil and rock samples is also
included. The firm must:
(i)
employ [
(ii)
(No change.)
(B)
Category 14.2.1-geotechnical testing. This category includes
sampling and conducting tests on soil and rock according to the department's
approved procedures for the purpose of classifying materials and/or identifying
their physical properties. The firm must:
(i)
employ [
(ii)
(No change.)
(C)
Category 14.3.1-transportation foundation studies. This
category includes producing reports which contain selection of the type and
depth of foundation for bridges, retaining walls, signs, and other types of
transportation foundations. Working with bearing capacity, predicted settlement,
stabilization, and construction on soft ground will be required. The firm
must employ [
(D)
Category 14.4.1-building foundation studies. This category
includes producing reports which contain selection of the type and depth of
foundation for buildings. Working with bearing capacity, predicted settlement,
stabilization and construction on soft ground will be required. The firm must
employ [
(14)
Group 15-surveying and mapping.
(A)
Category 15.1-right of way surveys. This category includes
the performance of on the ground surveys and preparation of parcel maps, legal
descriptions, and right of way maps. The firm must employ [
(i)
(No change.)
(ii)
Category 15.1.2-parcel
plats
[
(iii)-(iv)
(No change.)
(B)
Category 15.2.1-design
and construction
survey.
This category includes performance of surveys associated with the
gathering
of survey data for topography, cross-sections, and other related work in order
to design a project, or during
layout and staking of projects for construction.
The firm must:
(i)
employ [
(ii)-(iii)
(No change.)
(C)
(No change.)
(D)
Category 15.4.1 - horizontal and vertical control for aerial
mapping. This category involves the establishment of the horizontal and vertical
control for aerial mapping. The firm must:
(i)
employ [
(ii)-(iii)
(No change.)
(E)
Category 15.5.1-state land surveying. This category includes
the performance of land surveying associated with "the location or relocation
of original land grant boundaries and corners; the calculation of area and
the preparation of field note descriptions of both surveyed and unsurveyed
land or any land in which the state or the public free school fund has an
interest; the preparation of maps showing such survey results; and the field
notes and/or maps of which are to be filed in the General Land Office," as
quoted in the Surveyors Act. The firm must employ [
(15)
Group 16-architecture. The firm must employ
sufficient project management and technical staff to provide services normally
associated with this type of work.
(A)
Category 16.1.1-architecture-buildings. This category includes
architectural services for buildings. The firm must employ [
(B)
Category 16.1.2-architecture-other structures. This category
includes architectural services for structures other than buildings. The firm
must employ [
(16)
Group 18-miscellaneous. Category 18.1.1-value
engineering. This category includes the study of transportation related projects
or selected processes by multidisciplined teams to determine the most cost
effective use of resources to accomplish the given functions. The firm must
employ:
(A)
[
(i)
is a certified value specialist with experience in the
value engineering process and team leadership related to transportation projects
as evidenced by having conducted
a minimum of
[
(ii)
has taught
a minimum of
two transportation
related value engineering classes in the last five years; and
(iii)
(No change.)
(B)
(No change.)
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of the Secretary of State, on
December 21, 1998.
TRD-9818481
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: January 31, 1999
For further information, please call: (512) 463-8630
43 TAC §§9.80-9.88
The Texas Department of Transportation proposes new §§9.80-9.88,
concerning contracts for scientific services. Proposed new Subchapter F outlines
the procedures for selection of scientific and technical experts to provide
scientific services including environmental and cultural studies, analyses,
and document preparation required by state or federal law for transportation
projects within the authority or jurisdiction of the department.
EXPLANATION OF PROPOSED RULES
In order to obtain the highest quality scientific services in an efficient
and effective manner, Transportation Code, Chapter 223, Subchapter D, provides
that the department may follow a procedure using competitive sealed proposals
to procure the services of archeologists, biologists, geologists, historians
or other technical experts to conduct environmental and cultural assessments
for transportation projects within the authority or jurisdiction of the department.
To procure services under new §§9.80-9.88, the department must first
determine that competitive sealed bidding or informal competitive bidding
is not practical or is disadvantageous to the state. The department shall
solicit proposals by a request for proposals following the same notice procedures
it uses in procuring services under Government Code, Chapter 2254, Subchapter
A. Transportation Code, Chapter 223, Subchapter D, provides that the department
may adopt rules for the implementation of this subchapter. This new subchapter
is necessary to comply with Transportation Code, Chapter 223, Subchapter D,
which authorized the department to use competitive sealed proposals to procure
the services of archeologists, biologists, geologists, historians or other
technical experts to conduct environmental and cultural assessments.
New §9.80 explains the purpose of the new subchapter, which establishes
standard procedures for selection of technical experts to provide scientific
services including environmental and cultural studies, analyses, and document
preparation required by state or federal law for a transportation project
within the authority or jurisdiction of the department. The selection process
has been developed in order that the department may obtain scientific services
in the most appropriate and efficient manner and to provide for an open and
fair method of selection, resulting in obtaining the best possible services
for the state.
New §9.81 provides definitions of words and terms used in the subchapter.
New §9.82 states that the department will use competitive sealed proposals
to procure scientific services including but not limited to those of an archeologist,
biologist, geologist, historian, architectural historian, or other technical
expert to conduct environmental or cultural studies, analyses, and document
preparation required by state or federal law for a transportation project
within the authority or jurisdiction of the department.
In order that information concerning scientific services shall be available
to potential providers to the maximum extent possible, new §9.83 provides
for an electronic notice and a newspaper notice to be posted and published
not less than 10 days before the letter of interest is due and specifies the
contents of the electronic and newspaper notices. The section also establishes
that the department will publish a quarterly statewide list of projected contracts
for scientific services and will provide upon request or make available on
the department's Web site, a copy of the list to community, business, and
professional organizations for dissemination to their membership. The section
provides that the technical expert shall notify the department of his or her
interest in submitting a proposal no later than the deadline published in
the notice. The department will accept a letter of interest by electronic
facsimile.
New §9.83 also states that the department shall send each technical
expert submitting a letter of interest a copy of the Request for proposal
(RFP) packet including the requirements for a responsive proposal and mandatory
provider qualifications, which are the qualifications the technical expert
must demonstrate he or she meets in order for the proposal to be considered
responsive. The section also provides for a proposal meeting, to be held at
the discretion of the department, which will provide an opportunity for the
technical expert to seek clarification of questions concerning the contract.
If the meeting is mandatory, the department will not accept proposals from
technical experts not represented at the meeting.
New §9.84 describes: the proposal format; receiving proposals; opening
proposals; and non-responsive proposals. The proposal will be limited to the
contents specified in the RFP packet plus the offeror's price for the required
technical services. Proposals must be received by the date, time and place
specified in the RFP packet and proposals submitted by electronic facsimile
will not be accepted. The department will open proposals and conduct evaluations
in confidence. There will be no disclosure of contents to competing offerors
during the negotiation process. After the contract is awarded, all proposals
shall be open for public inspection except as provided in Government Code,
Chapter 552. A proposal which does not include all the requirements set forth
in the RFP will be rejected as non-responsive and will not be considered further.
In order to insure an open and fair method of selection, which would result
in obtaining the best possible services for the state, new §9.85 provides
that the department will evaluate responsive proposals based on: professional
qualifications of technical experts; experience of the firm and the technical
experts; technical or scientific merits of the proposal including unique or
innovative methods for performing the work, if applicable; ability to commit
personnel, time, and other resources to the project; demonstrated understanding
of the scope of services to be provided, including which type of work will
be provided by a sub-provider, if any; demonstrated understanding of applicable
rules, regulations, policies, and other requirements associated with the environmental
or cultural studies, analyses, or document preparation to be performed; ability
to meet department scheduling requirements; and reasonableness of fee. The
department will assign a numerical weighting value to each evaluation criterion
and score the criterion based upon a scale of 0 to 10 points per criterion
with 10 points being the best qualified. The department will evaluate each
responsive proposal using an individual proposal evaluation matrix.
New §9.86 provides for discussions for best and final offer. When
it is determined to be in the best interests of the state, the department
may elect to include discussions for responsive offerors' best and final offer
prior to selection. Discussions for best and final offer will occur following
completion of the steps outlined in §§9.82-9.85 of this title. Provision
is made for the department to give each responsive offeror an equal opportunity
to discuss and revise his or her proposal after all responsive proposals have
been evaluated. The department will not disclose any information derived from
proposals submitted by competing offerors during these discussions. Discussions
will include identification of any portion of the responsive proposal not
meeting minimum qualifications or meeting only minimum qualifications, in
order to assess an offeror's ability to meet the RFP requirements. Discussions
may include reasonableness of fee. Offerors whose responsive proposals do
not meet minimum qualifications or who only meet minimum qualifications shall
be given the opportunity to demonstrate an understanding of the project and
provided with an opportunity to remedy the proposal's deficiencies. The department
will permit any offeror to revise his or her proposal in order to obtain the
best and final offer. After completing discussions with offerors, the department
will send written notification to each offeror to submit a best and final
offer. The proposals will be reevaluated using the criteria in §9.85(a)
of this subchapter. The evaluation will be made in writing and shall include
the individual proposal evaluation matrix as specified in §9.85(c).
New §9.87 provides that the department shall perform three types of
contract selection: individual contract selection with one contract resulting
from the contract notice; multiple contract selection with more than one contract
resulting from the contract notice; and indefinite delivery contract selection,
with selection of one or multiple providers to perform work, as authorized
by the department, under a general scope of services. Under the indefinite
delivery contract option, the contract shall specify the contract period and
a maximum contract amount, not to exceed $500,000.00. Services shall be authorized
by individual work orders, on an as needed basis, and all work orders shall
be issued within two years of the effective date of the contract
New §9.88 provides that the department shall make the award to the
technical expert submitting the highest-ranked proposal and shall notify the
other offerors of the selection. For multiple awardees under a single RFP,
the department shall make awards to the highest ranked offerors. If the department
finds that none of the proposals is acceptable, the department will reject
all proposals.
FISCAL NOTE
Frank J. Smith, Director, Finance Division, has determined that for the
first five-year period the new sections are in effect, there will be no fiscal
implications for state or local governments as a result of enforcing or administering
the new sections, except that the state may realize a decrease in paperwork
and time needed to obtain the services. The economic costs for persons required
to comply with the sections as proposed cannot be estimated due to the variability
in the types of services provided for, except that some providers may realize
a decrease in costs from reduced paperwork and increased flexibility in competing
for contracts to provide these services. The decrease in costs for the state
and providers cannot be determined because the department cannot predict how
many projects can be accommodated by the provisions of these sections.
Dianna F. Noble, P.E., Director, Environmental Affairs Division, has certified
that there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the new sections.
PUBLIC BENEFIT
Consistent with the department's commitment to provide environmentally
sensitive transportation systems, Ms. Noble has also determined that for each
year of the first five years the section is in effect the public benefit anticipated
as a result of enforcing or administering the new section will be increased
effectiveness and efficiency in obtaining scientific and technical services
needed for environmental and cultural studies, analyses and document preparation
necessary to provide for comprehensive environmental consideration and coordination
for all transportation projects in a manner consistent with federal and state
laws, regulations and guidelines. The department will realize cost savings
and other benefits of competition by procuring scientific and technical services
for assessments and studies performed under these rules and will realize a
savings of both time and money in the performance of environmental studies
required for transportation projects. There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed new sections may be submitted to Dianna
F. Noble, P.E., Director, Environmental Affairs Division, 125 East 11th Street,
Austin, Texas, 78701-2483. The deadline for receipt of comments will be 5:00
p.m. on February 1, 1999.
STATUTORY AUTHORITY
The new sections are proposed under Transportation Code, §2001.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and Transportation Code, Chapter 223, Subchapter D, which authorized the department
to adopt rules governing the selection of scientific and technical experts.
No statutes, articles, or codes are affected by these proposed new sections.
§9.80.Purpose.
Transportation Code, Chapter 223, Subchapter D, provides that the department
may follow a procedure using competitive sealed proposals to procure the services
of technical experts including archeologists, biologists, geologists, historians,
or other technical experts to conduct environmental and cultural assessments
for transportation projects within the authority or jurisdiction of the department.
This subchapter, which implements Chapter 223, Subchapter D of the Transportation
Code, establishes standard procedures for selection of technical experts to
provide scientific services including environmental and cultural studies,
analyses, and document preparation.
§9.81.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Competitive sealed proposals--A procurement method in which
offers are solicited from a number of sources, and selection is made using
criteria other than cost, although reasonableness of cost is a selection criterion.
(2)
Department--The Texas Department of Transportation.
(3)
Indefinite delivery contract--A contract that contains
a general scope of services, maximum contract amount, and contract termination
date in which contract rates are negotiated prior to contract execution, and
work is authorized as needed.
(4)
Mandatory provider qualifications--Those qualifications
listed in the request for proposals that the technical expert must demonstrate
it meets in order for the proposal to be considered responsive.
(5)
Provider--The technical expert awarded a department
provider contract.
(6)
Request for proposals (RFP)--A request for submittal
of a technical proposal that demonstrates competence and qualifications of
the technical expert to perform the requested services and shows an understanding
of the specific project.
(7)
Subprovider--A provider proposing to perform work
through a contractual agreement with the provider.
(8)
Technical expert--An archeologist, biologist, geologist,
historian, architectural historian, or other non-engineering expert in a natural,
social, or environmental science qualified to conduct an environmental or
cultural study required by state or federal law for a transportation project.
This definition includes a firm or institution employing one or more technical
experts.
§9.82.Use of Technical Experts.
The department may use competitive sealed proposals to procure scientific
services including those of an archeologist, biologist, geologist, historian,
architectural historian, or other technical expert to conduct environmental
or cultural studies, analyses, and document preparation required by state
or federal law for a transportation project within the authority or jurisdiction
of the department.
§9.83.Notice and Letter of Interest.
(a)
Notice. When the department elects to use competitive sealed
proposals to procure scientific services, notice will be given as follows.
(1)
Electronic and newspaper notice. Not less than 10 days
before the letter of interest due date, the department will post a notice
on an electronic bulletin board and publish a notice in selected newspapers.
The notice will contain the:
(A)
proposed contract or RFP number;
(B)
type of selection in accordance with §9.87(a) of this
title (relating to Selection Types);
(C)
general description of the project and work to be done;
(D)
due date for providers to send letters of interest to the
department;
(E)
contact person; and
(F)
location of the electronic bulletin board that contains
more information.
(2)
Organizations. The department will publish a
quarterly statewide list of projected contracts for scientific services and
will provide upon request, or make available on the department's Web site,
a copy of the list to community, business, and professional organizations
for dissemination to their membership.
(b)
Letter of interest.
(1)
The technical expert shall send a letter of interest to
the department notifying the department of the provider's interest in the
contract. This letter of interest must be received by the department no later
than the deadline published in the notice.
(2)
The department will accept a letter of interest by
electronic facsimile.
(c)
Requests for proposals. The department will send each technical
expert submitting a letter of interest a copy of the RFP packet. The RFP packet
will include:
(1)
the requirements for a responsive proposal including:
(A)
date, time, and location for submittal of the proposal;
(B)
an outline of the required proposal format and content;
and
(C)
mandatory provider qualifications.
(2)
scope of services to be provided by the department;
(3)
scope of services to be provided by the technical
expert;
(4)
proposed contract duration;
(5)
proposed method of payment;
(6)
any constraints directly relating to the performance
of the contract, if applicable;
(7)
description of the evaluation criteria including numerical
weighting values of evaluation criteria and minimum and preferred qualifications;
(8)
a copy of the evaluation matrices;
(9)
type of contract selection;
(10)
a copy of the proposed contract, with all attachments;
and
(11)
any special contract requirements.
(d)
Proposal meeting. The meeting may be either mandatory or
optional at the discretion of the department. If the meeting is mandatory,
the department will only accept proposals from technical experts represented
at the meeting. Every technical expert submitting a letter of interest will
be notified of the date and time of the proposal meeting, if one is to be
held. The proposal meeting provides an opportunity for the technical expert
to seek clarification of questions concerning the contract.
§9.84.Proposals.
(a)
Proposal format. The proposal shall be limited to the contents
specified in the RFP packet plus the offeror's price for the required technical
services.
(b)
Receiving proposals. All proposals must be received by
the date, time, and location specified in the RFP packet. Proposals will not
be accepted by electronic facsimile.
(c)
Opening proposals. The department will open proposals and
conduct evaluations in confidence, and there will be no disclosure of contents
to competing offerors during the negotiation process. After the contract is
awarded, all proposals shall be open for public inspection except as provided
in Government Code, Chapter 552.
(d)
Non-responsive proposals. A proposal which does not include
all the requirements set forth in the RFP will be rejected as non-responsive
and will not be considered further.
§9.85.Evaluation.
(a)
Evaluation criteria. The department will evaluate responsive
proposals based on the following criteria:
(1)
professional qualifications of technical experts;
(2)
experience of the firm and the technical experts;
(3)
technical or scientific merits of the proposal, including
unique or innovative methods for performing the work, if applicable;
(4)
ability to commit personnel, time, and other resources
to the project (technical experts cannot be removed from association with
the contract without prior consent by the department);
(5)
demonstrated understanding of the scope of services
to be provided, including identifying which type of work will be performed
by a subprovider, if any;
(6)
demonstrated understanding of applicable rules, regulations,
policies, and other requirements associated with the environmental or cultural
studies, analyses, or document preparation to be performed;
(7)
ability to meet department scheduling requirements;
and
(8)
reasonableness of fee.
(b)
Evaluation scale. The department will assign a numerical
weighting value to each evaluation criterion and then score each criterion
based upon a scale of 0 to 10 points per criterion with 10 points being the
best qualified.
(c)
Evaluation matrix. The department will evaluate each responsive
proposal using an individual proposal evaluation matrix.
§9.86.Discussions For Best and Final Offer.
(a)
When it is determined to be in the best interests of the
state, the department may elect to include discussions for responsive offerors'
best and final offer prior to selection. Discussions for best and final offer
will occur following completion of the steps in §§9.82-9.85 of this
subchapter, relating to contracts for scientific services.
(b)
If the department elects to conduct discussions as provided
in subsection (a) of this section, each responsive offeror shall be given
an equal opportunity to discuss and revise his or her proposal. The department
will not disclose any information derived from proposals submitted by competing
offerors during these discussions. Discussions will include identification
of any portion of the responsive proposal not meeting minimum qualifications
or meeting only minimum qualifications in order to assess an offeror's ability
to meet the RFP requirements, and an opportunity for the offeror to demonstrate
an understanding of the project and remedy the proposal's deficiencies. Discussions
may include reasonableness of fee.
(c)
After completing discussions with offerors, the department
will send written notification to each offeror to submit a best and final
offer. The proposals will be reevaluated using the criteria in §9.85(a)
of this title (relating to Evaluation). The evaluation shall be made in writing
and shall include the individual proposal evaluation matrix as specified in
§9.85(c) of this title.
§9.87.Selection.
The department will perform three types of contract selections.
(1)
Individual contract selection. One contract will result
from the contract notice.
(2)
Multiple contract selection. More than one contract,
of similar work types and estimated amounts not to exceed $500,000 per contract,
will result from the contract notice. The notice will indicate the number
and type of contracts to result from the advertisement.
(3)
Indefinite delivery contract selection. This contract
selection may be for award of contracts to single or multiple providers to
perform work under a general scope of services. The typical type of work will
be described in the contract notice. Specific services shall be authorized
by individual work orders on an as-needed basis. The maximum contract amount
shall be specified and shall not exceed $500,000 per contract. The contract
period shall be specified. All work orders under an indefinite delivery contract
shall be issued within two years of the effective date of the contract.
§9.88.Award.
(a)
The department will make the award to the technical expert
submitting the highest-ranked proposal and will notify the other offerors
of the selection. For multiple awardees under a single RFP, the department
will make awards to the highest ranked offerors.
(b)
If the department finds that none of the proposals are
acceptable, the department will reject all proposals.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
December 21, 1998.
TRD-9818482
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: January 31, 1999
For further information, please call: (512) 463-8630
Subchapter B. Texas Turnpike Authority
The Texas Department of Transportation proposes the repeal of §§27.20-27.26,
and new §§27.11-27.20, concerning projects of the Texas Turnpike
Authority Division.
EXPLANATION OF PROPOSED REPEALS AND NEW SECTIONS
Senate Bill 370, 75th Legislature, 1997, amended Transportation Code, Chapters
361 and 362 to abolish the former Texas Turnpike Authority and to create the
Texas Turnpike Authority Division within the Texas Department of Transportation,
and to impose additional requirements relating to commission approval of activities
of the authority. Transportation Code, Chapters 361 and 362 require the approval
of the Texas Transportation Commission or the department for certain activities
of the Texas Turnpike Authority Division, or for certain phases of the development
of turnpike projects constructed, maintained, and operated by the Texas Turnpike
Authority Division. Existing §§27.20-27.26 are proposed for repeal
because they are no longer necessary due to the proposed adoption of the re-enacted
subject matter in an amended form in new §§27.11-27.17.
Section 27.20 is being replaced with new §27.11, which describes the
purpose of the subchapter, which is to define the policies and procedures
governing commission and department approval or disapproval of certain phases
of the development of turnpike projects constructed, maintained, and operated
by the authority.
Section 27.21 is being replaced with new §27.12, which provides definitions
for words and terms used in this subchapter.
Section 27.22 and §27.23 are being replaced with new §27.13 and
§27.14, which remain unchanged from the existing rules except for the
renumbering of the sections.
Section 27.24 is being replaced with new §27.15, which is being changed
to clarify that the commission will consider the existing criteria in deciding
whether to approve a project.
Section 27.25 is being replaced with new §27.16, which is being changed
to clarify that, pursuant to Transportation Code, §361.282, the authority
may lease, sell, or otherwise convey all or any portion of a turnpike project,
and to clarify that the commission must find the existing factors are present
in order to approve the lease, sale, or conveyance of a project.
To comply with amendments to Transportation Code, §362.0041, and to
reflect that, as the authority acts for the department in constructing, maintaining,
and operating turnpike projects on the state highway system, no removal of
a segment of the state highway system is made, existing §27.26 is proposed
for repeal and is being replaced with new §27.17, which removes the requirement
that the authority reimburse the department for the cost of a highway transferred
to the authority. This section also removes the requirement that the governor
approve the transfer of an existing segment of a free state highway to the
authority for development as a toll facility.
New §27.17 also clarifies that, in order to approve the conversion
of a highway to a turnpike project, the commission must conclude that the
project is projected to be capable of generating revenue from tolls at rates
to be set by the authority sufficient to satisfy project related debt and
maintenance and operating expenses allocable to the project, and that the
conversion will have beneficial effects on regional mobility.
To implement Transportation Code, §361.135, allow for the expeditious
completion of turnpike projects, and provide for adequate mobility on toll
facilities and the safety of the traveling public, new §27.18 prescribes
requirements for commission concurrence in the acquisition of real property
by the board of directors of the authority through the use of condemnation.
The power of condemnation may be used by the board of directors if: (1) the
authority and the owner of the property cannot agree on a reasonable price
for the property; or (2) the owner is legally incapacitated, absent, unknown,
or unable to convey title.
In order for the commission to concur in the board's proposal to condemn
real property, the written determination must show that the property is: (1)
necessary or appropriate to construct or to efficiently operate a turnpike
project; (2) necessary to restore public or private property that is damaged
or destroyed; (3) necessary for access, approach, and interchange roads; or
(4) necessary to otherwise carry out Transportation Code, Chapter 361.
Transportation Code, §361.189 requires commission approval of the
authority's proposed use of surplus revenue of a turnpike project to pay the
costs of another turnpike project. To implement that section, ensure that
the commission has the information necessary to make an informed decision
concerning approval, provide for the most efficient use of toll revenues,
and protect the viability of existing and proposed turnpike projects, and
the state's fiscal interests, new §27.19 prescribes requirements for
the commission's approval of the authority's proposed use of surplus revenue.
New §27.19 requires the authority to submit a written request for
approval to the executive director, accompanied by a summary of the expected
impact of the proposed use or surplus revenues on the turnpike project from
which the revenues are derived, a summary of the potential financial viability
of the turnpike projects for which the surplus revenues are to be expended,
and evidence of local support for the proposed project. These same factors
will be considered by the commission when deciding whether to approve an authority
proposal.
To implement the requirements of §361.189, ensure the authority can
maximize the use of revenues generated by turnpike projects throughout the
state, provide for the most efficient use of toll revenues, and protect the
viability of existing and proposed turnpike projects, and the state's fiscal
interests, surplus revenues must be used to pay the costs of another turnpike
project, the use of the surplus revenues must be consistent with Chapter 361,
must not violate, impair, or be inconsistent with any bond resolution, trust
agreement, or indenture governing the use of those surplus revenues, and must
be in the best interest of the state.
Transportation Code, §361.331 provides that the authority may, if
approved by the commission, pool two or more turnpike projects wholly or partly
located within the boundaries of a metropolitan planning organization after
conducting a public hearing. To implement that section, ensure that the authority
has the ability to maximize resources available to it, provide for the most
efficient use of funding for turnpike projects, ensure the viability of existing
and proposed turnpike projects, and provide for the expeditious development
of public highways, new §27.20 prescribes requirements for the commission's
approval of a proposed pooling of turnpike projects.
New §27.20 specifies that in order to approve a request to pool projects,
the commission must find that the required public hearing has been conducted,
pooling will not have a material adverse effect on the development of any
of the pooled projects, pooling of the projects is consistent with the purposes
of Chapter 361, and the proposed pooling is in the best interest of the state.
In considering a request, the commission will consider whether pooling will
help to expedite the development and construction of a public highway.
FISCAL NOTE
Frank J. Smith, Director, Finance Division, has determined that for the
first five-year period the repeals and new sections are in effect, there will
not be any fiscal implications for state or local governments as a result
of enforcing or administering the repeals and new sections. There are no anticipated
economic costs for persons required to comply with the sections as proposed.
Alvin R. Luedecke, Jr., P.E., Director, Transportation Planning and Programming
Division, has certified that there will be no significant impact on local
economies or overall employment as a result of enforcing or administering
the repeals and new sections.
PUBLIC BENEFIT
Mr. Luedecke has also determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
or administering the repeals and new sections will be to provide for the expeditious
development of state highway system projects, thereby maximizing the use of
scarce state highway funds and the safety of the traveling public. There will
be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeals and new sections may be submitted
to Alvin R. Luedecke, Jr., P.E., Director, Transportation Planning and Programming
Division, 125 East 11th Street, Austin, Texas, 78701-2483. The deadline for
receipt of comments will be 5:00 p.m. on February 1, 1999.
Chapter 9.
Contract Management
Subproviders may
] be precertified
for contracts which require architectural, engineering, or surveying services
, except as described in §9.33(b)(3) of this title (relating to Notice
and Letter of Interest)
.
office (BOP)
]--The
department
section
[
chief administrating office for DBEs and HUBs which
]
that
certifies
DBEs and administers the DBE and HUB programs
[
that a DBE meets the criteria to be a DBE
].
used
] by inspectors who report directly
to the
department's project manager
[
professional engineer
in responsible charge of the project under construction
].
BOP
], which is 51% owned by one or more minorities, women, or
others that can prove social and economic disadvantages, or in the case of
a publicly owned business, at least 51% of the stock is owned by one or more
minorities, women, or others that can prove social and economic disadvantages,
and whose management and daily business operations are controlled by one or
more such individuals.
(18)
] FHWA--The Federal Highway
Administration.
(19)
] FONSI--Finding of No
Significant Impact.
(20)
] Good faith effort--A
provider must demonstrate to the department's satisfaction, that sufficient
effort on its part was made to obtain DBE/HUB participation. Good faith effort
is identified in the DBE/HUB Special Provision to the contract.
(21)
] Graduate engineer--An
individual who meets the educational requirements for registration as provided
in the Texas Engineering Practice Act.
(22)
] Historically underutilized
business (HUB)--Any business so certified by the General Services Commission.
(23)
] IESNA--The Illuminating
Engineering Society of North America.
(24)
] Indefinite delivery
contract--A contract that contains a general scope of services, maximum contract
amount, and contract termination date in which contract rates are negotiated
prior to contract execution and work is authorized as needed.
(25)
] ITS--Intelligent Transportation
System.
(26)
] Long list--The list
of qualified providers submitting a letter of interest for a contract.
(27)
] Lower tier debarment
certification (form 1734)--A debarment certification form that is completed
by subproviders or other lower tier participants.
(28)
] Lower tier participant--A
subprovider or other participant in the contract, other than the state, that
is not the prime provider.
(29)
] Managing office--The
division, [
special
] office, or district with the responsibility
for awarding and managing the contract.
(30)
] Managing officer--The
division director, [
special
] office director, or district engineer
of the managing office.
(31)
] Overhead guidelines--Instructions
prepared by the department's Audit Office to assist the provider in administrative
qualification.
(32)
] Prime provider--The
provider awarded a department provider contract.
(33)
] Professional engineer--An
individual licensed to practice engineering in the
state or states that
he or she performs professional services
[
State of Texas
].
(34)
] Professional services
provider (provider)--An individual or entity that provides engineering, architectural,
or surveying services.
(35)
] Project specific contract--A
contract that contains a specific scope of services, maximum contract amount,
and contract termination date and authorizes the provider to perform the entire
scope of work.
(36)
] Registered architect--An
individual licensed to practice architecture in the
state or states that
he or she performs professional services
[
State of Texas
].
(37)
] Registered professional
land surveyor--An individual licensed to perform land surveying in the
state or states that he or she performs professional services
[
State of Texas
].
(38)
] Request for proposal
(RFP)--A request for submittal of a technical proposal from a provider that
demonstrates competence and qualifications to perform the requested services,
and shows an understanding of the specific contract.
(39)
] Relative importance
factor (RIF)--The
numerical
weight of each evaluation criterion
as it relates to a particular contract.
(40)
] Short List--The list
of providers [
selected
] from the long list
, selected
by the CTS
, that best meet the requirements indicated by the letter of
interest
[
for further consideration on a department contract
].
(41)
] Short list meeting--A
meeting held with the providers on the short list to answer questions regarding
the contract and distribute the RFP prior to submittal of proposals or interviews.
(42)
] Small business concern--A
small business as defined in the Small Business Act, codified in 15 United
States Code §632, and relevant regulations.
(43)
] Subprovider--A provider
proposing to perform work through a contractual agreement with the prime provider.
(44)
] Team--The provider
and all proposed subproviders who will be working on a particular contract.
(45)
] Technical precertification--A
review process conducted by the department to determine if a prime provider
or subprovider meets the technical requirements to perform work identified
in a work category.
the
]:
a
] due date for providers to
send letters of interest to the department; [
and
]
a notice
]. If the newspaper fails to print the notice,
the department will consider the notice posted. The notice will contain [
the
]:
and
]
and
]
(B)
] the proposed team must demonstrate
that they have a professional engineer, architect, or surveyor registered
in Texas who will sign and/or seal the work to be performed on the contract.
(E)
] evidence of compliance with
the assigned DBE/HUB goal through the prime provider or subproviders identified
on the team, or a written commitment to make a good faith effort to meet the
assigned goal;
(F)
]
similar
project
related experience
that is not already included in the
[
performed
since
] precertification
database
; and
(G)
] other pertinent information
addressed in the notice.
and
] references from
other entities
including the ability of the prime provider to meet deadlines
over the past three years
;
special
] project related
experience identified in the letter of interest
or
[
and
]
contained in the database; and
evidence of compliance with the assigned DBE/HUB goal through
the team identified in the letter of interest or a written commitment to make
a good faith effort to meet the assigned goal if selected
].
(d)
] Contract selection. The CST
will prepare a short list containing a minimum of three of the most highly
qualified providers
for further consideration on an individual contract
selection, unless
[
(provided that no
] fewer than three qualified
providers submitted a letter of interest[
) for further consideration
on an individual contract selection
]. For multiple contract selections,
the short list shall contain a minimum number of providers equal to the desired
number of contracts plus three
for further consideration on multiple
contract selections, unless fewer than three qualified providers submitted
a letter of interest
[
providers, provided that no fewer than this
number of qualified providers submitted a letter of interest
].
(e)
] Notification. The department
will notify
a firm
[
all firms
] submitting a letter of
interest that
it was or was
[
were
] not selected for
the short list.
If a firm is selected for the short list, the department
will either notify it that a meeting will be held, or if a meeting is not
held, the department will provide a RFP information packet.
RFPs
] will be furnished by the department to providers
on the short list
either
prior to
or at
the short list
meeting [
for use in preparation for proposal submittal or interview
].
If a short list meeting is held, the department will not accept proposals
from or conduct interviews with providers that did not have a representative
at the short list meeting. [
If a short list meeting is not held, the
managing office will mail the RFP packet to the members on the short list.
]
;
]
and/or interview process;
and
and
interview
];
(8)
] a debarment certification
form;
(9)
] a lower tier debarment
certification form;
(10)
] a lobbying certification/disclosure
form; [
and
]
(11)
] any special contract
requirements
; and
A
] written
proposal is required
, the
[
. The
] proposal shall be
limited to the specific length and information outlined in the RFP
packet.
and
]
a numerical value to each evaluation criteria based
upon scale of 0 to 3 points per criterion
]
will
] conduct
interviews with the providers on the short list
if a written proposal
is required. If a written proposal is not required, then an interview will
be conducted
. The CST may elect to perform telephone interviews. In
order for a member of the CST to score a provider, the member must be present
for all interviews. The prime provider's project manager is required to be
present for the interview. Lack of attendance by the project manager may be
reason to consider the provider nonresponsive, and dropped from further consideration.
and
]
Evaluation
]
scale.
The CST will assign a RIF weight to each criterion. The RIF total
for all criteria will equal 100. Each criterion will be scored separately
on a 0-10 point scale with 10 considered the best qualified. The maximum possible
score that a CST member may give is 1000 points.
[
The CST will
prepare a numerical interview evaluation matrix to evaluate the interview
based upon the following scale of 0 to 3 points:
]
(2)
] The
first
[
second
] tie breaker, if needed, will be the [
interview
]
score for the experience of the project manager and the project team.
(3)
] The
second
[
third
] tie breaker, if needed, will be the [
interview
]
score for ability to meet the proposed project schedule.
(c)
]
Selection summary
[
Summary
]. The CST will prepare a contract evaluation summary containing
the scores of the prime providers on the short list, for consideration by
the managing officer.
(d)
] Submittal of selection. The
managing officer will submit the contract evaluation summary, evaluation documentation,
certification that the procedures provided by this subchapter were used and
recommendation for selection to the CRC for review. [
After review, CRC
will advise the deputy executive director, or designee, if approved procedures
were followed in the selection.
] If the procedural review is acceptable,
the [
deputy
] executive director
or his or her designee
will concur with the selection.
(e)
] Notification. The department
will:
remaining short
list of
] providers
remaining on the short list that were
not selected, naming the
provider that was
[
one or ones
]
selected;
and
(4)
] publish the short list
and
the provider
[
providers
] selected for
a contract
[
contracts
] on an electronic bulletin board.
(f)
] Negotiations.
C.F.R.
] §172.9, federally funded contracts are not based on percentage
of construction cost.
35
] working days from the date of notification
to the provider. The CRC may grant a
10 working
[
30-working
] days extension.
Upon request from the managing officer, the
[
The deputy
] executive director may authorize
one
[
an
] additional extension, for a period not to exceed
10 working
[
30
] days. An extension must be authorized before the expiration
of the negotiation period or previous extension.
until a contract is awarded
or canceled
].
(g)
] Appeal. A provider may file
a written complaint concerning the selection process with the [
deputy
] executive director or his or her designee.
§§9.50-9.61
] of this title (relating
to Business Opportunity Programs).
managing officer requesting
] the provider
contract will manage the contract.
BOP
]
may require proof of DBE/HUB use, including submittal of canceled checks that
are properly identified by department project number or contract number).
If the contract duration is greater
than 18 months, the
] department project manager will evaluate the prime
provider's or subprovider's performance upon completion of a phase, upon exemplary
performance, on an interim basis, and on completion of the contract. The interim
basis evaluation will occur at least once every 12 months, or when the managing
office determines that the work is behind schedule or not being performed
according to the contract. An evaluation of constructability will be performed
on an interim basis at least every 12 months and upon completion of the construction
contract, if applicable.
three
] types
of contract selections.
,
] of similar work types [
and estimated amounts not to exceed $500,000
per contract,
] will result from the contract notice. [
The duration
of the contract may not be for longer than two years.
] The notice will
indicate the number and type of contracts to result from the advertisement,
and specify a range of scores for prime providers that will be considered
[
equally
] qualified to perform the work.
on a random basis
].
(3)
] Emergency Selection.
If the executive director of the department or his or her designee certifies
in writing that there is good cause to believe that an emergency situation
exists, including
safety
hazards [
to safety
] and imminent
expiration of a contract on an incomplete project, he or she will authorize
the CST to select a provider on an emergency basis.
Prime
] providers and subproviders must be precertified in the technical
categories by the deadline for receipt of the letter of interest to be eligible
for selection. The department will not delay the consultant selection process
or contract execution for a prime provider or subprovider that has not been
precertified.
Prime providers and subproviders may be precertified in multiple technical
categories.
]
Prime
] providers
and subproviders
must
be precertified in the categories of work they will be performing
; however,
a provider or subprovider is
[
, and are
] not required to
be precertified in every category of work involved in the contract,
unless it will be performing all of the work.
For a specific contract, prime providers may propose to use
subproviders precertified in the other identified categories to supplement
their own qualifications by indicating this in the letter of interest.
]
Prime
providers and subproviders
] will be precertified within 60 days of receipt
of
complete and accurate information for
the submittal or notified
in writing within the same time period that they did not meet the requirements
for precertification or that additional submittals will be required for review.
,
]
The
[
the
] prime provider
or subprovider shall submit such information within 30 days of receipt of
the department's request for such information. If the information is not provided
within 30 days after receipt of the request, the application for precertification
will be processed with the information available. The department will make
a determination on precertification status within 60 days of receipt of the
additional information.
60
] and 30 days prior to their annual renewal date. The precertification
of a prime provider or subprovider that fails to submit an application for
renewal at least 30 days prior to its annual renewal date will expire and
the prime provider or subprovider will be ineligible to submit a letter of
interest for new contracts until it is precertified.
deputy
] executive director
or his or her designee.
a minimum of
]:
one professional engineer with proficiency in civil
engineering and
] one planner with training and experience in areas directly
related to policy planning.
a minimum of
]:
one professional engineer with proficiency in civil
engineering and
] one planner with training and experience in areas directly
related to systems planning.
a minimum of
]:
one professional engineer with proficiency in civil
engineering and
] one planner with training and experience in areas directly
related to subarea/corridor planning.
a minimum of
]:
one professional engineer with proficiency in civil
engineering and
] one planner with training and experience in comprehensive
planning or areas directly related to assessing impacts to private property.
a minimum of
] one professional engineer
who has
[
with
]:
completion of
] a minimum
of two feasibility studies.
a minimum
of
]:
demonstration of
]
experience in use/application of Traffic Noise Guidelines, traffic noise modeling
software, and appropriate sound measuring equipment through the accurate completion
of a traffic noise analysis for a minimum of two highway projects at the FONSI
level or above.
demonstration of
]
experience in use/application of air quality guidelines and air quality modeling
software through the accurate completion of an air quality analysis for a
minimum of two highway projects at the FONSI level or above.
it relates
] to the Edwards Aquifer
Rules. The firm must employ one person with:
the Federal Endangered Species Act, who possesses
the required state and federal permits, experience in determining the presence
or absence of a protected species, and informal consultation experience and
coordination with the U.S. Fish and Wildlife Service
].
biological
] assessments. This category
requires demonstrated ability to use
habitat and species determination and biological survey data to analyze impacts
to biological resources
[
includes the preparation of biological
assessments
]. The firm must employ one person with
demonstrated
ability to prepare a biological impact analysis for NEPA documentation or
to support the Federal Endangered Species Act (ESA) Section 7 consultations,
including the preparation of a biological assessment, or ESA Section 10.a.
permit applications
[
a bachelor's degree in the natural sciences
or a related field, working knowledge of the Federal Endangered Species Act,
experience including preparation of biological assessments and formal consultation,
experience in negotiating with people and resource agencies, and working knowledge
of federal, state, and local regulations
].
a bachelor's degree in
the natural sciences or a related field and working knowledge of federal,
state, and local regulations, and/or one person with knowledge in habitat
recognition, including direct field experience with or as a recognized expert
for the species/habitat of concern, and working knowledge of federal, state,
and local regulations
].
applies
] when federal land and water
conservation funds are used for improvements to the site. The firm must employ
one person:
determinations
] of National Register eligibility for identified historic properties;
preparation of historic documentation on affected properties in accordance
with the documentation requirements of the Historic American Buildings Survey
and the Historic American Engineering Record; evaluation of the effect of
projects on significant properties; and the development of management and
preservation plans for historic properties. The firm must employ one person
with experience working with the Secretary of the Interior's Standards and
Guidelines for Archeology and Historic Preservation (Volume 48 of the Federal
Register, 44716), 36 CFR Part 800, and documentation requirements of the Historic
American Buildings Survey and Historic American Engineering Record and:
or
]
at least
] one year of graduate study in preservation architecture.
archaeological
] surveys, documentation, excavations, testing reports and data recovery
plans. This category includes: reconnaissance or intensive archeological surveys
performed in accordance with the criteria listed in the Secretary of the Interior's
Standards and Guidelines for Archeology and Historic Preservation (1982),
Reports Relating to Archeological Permits in the Rules of Practice and Procedure
for the Antiquities Code of Texas, and performance standards as outlined in
the Council of Texas Archaeologists (CTA) Guidelines; documentation of operations
that use archeological techniques to obtain and record evidence of human activity
or behavior important in history or prehistory; testing and preparation of
testing reports to describe the results of work following the investigation
and evaluation of archeological sites and/or other historic properties; and
data recovery plans that address appropriate strategies and methodologies
for excavation and data recovery. The firm must employ a principal investigator:
archaeology
], anthropology, or closely-related field, who has a minimum
of one year of full-time professional experience or equivalent specialized
training in
archeological
[
archaeological
] research
or administration;
archaeology
];
archaeologist
] who meets the standards of a principal or co-principal
investigator, as defined by state standards, with a minimum of one year of
full-time professional experience at a supervisory level in
archeological
[
archaeological
] resources;
successfully completed
] a minimum of five
archeological
[
archaeological
] projects, of equivalent scope
that
were successfully completed under the jurisdiction of the National Historical
Preservation Act, the Antiquities Code of Texas, or an equivalent law in another
state
[
, under state permit
]; and
archaeological
] sites. The firm must employ one person with:
demonstrable
]
professional historical activity and archival research and documentation;
or
demonstrable
] professional activity with an academic institution, historical organization
or agency, museum, or other professional institution, and a minimum of one
year of experience managing historical and archival research.
environmental
site assessments performed in accordance with protocol established in
]
ASTM 1528 and ASTM 1527
, or satisfy due diligence and appropriate inquiry
requirements under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA). The appropriate level of inquiry for assessing
existing and previous land use, regulatory databases (list search) and files,
site visit and/or field surveys, and interviews shall be made with consideration
of project design and right of way requirements. This category also includes
the determination of whether additional research or investigation is necessary
during subsequent stages of project development
[
, and may also
include provision of intrusive sampling of soil and groundwater, typically
referred to as a Phase II site assessment
]. The firm must employ one
person with:
in hazardous
materials assessment;
]
performing Phase I environmental site assessments/hazardous
material assessments
; and
the necessary equipment and expertise to perform ASTM 1528 Transaction
Screen and ASTM 1527 Phase I Site Assessments
].
a minimum
of
] one professional engineer with
a minimum of
three years
experience in:
a minimum
of
] one professional engineer with
a minimum of
three years
experience in:
a minimum
of
] one professional engineer with
a minimum of
:
a minimum of
] one professional engineer
with
a minimum of
three years experience in:
a minimum of
] one professional engineer
with
a minimum of
:
a minimum of
] one professional engineer with
a minimum of
:
through
a previously undeveloped area
]. Associated activities include utility
relocation and miscellaneous minor design services. The firm must employ [
a minimum of
] one professional engineer with
a minimum of
three years of roadway design experience on two projects.
a minimum
of
] one professional engineer with
a minimum of
three years
of roadway design experience on two separate projects.
a minimum
of
] one professional engineer with
a minimum of
four years
experience in complex highway design on two separate projects.
a minimum of
] one professional engineer with
a minimum of
five years experience in design of a minimum of two separate
projects involving major freeway interchanges and direct connectors.
a minimum of
] one professional engineer
with a minimum of two years structural bridge design experience
after
licensure as a professional engineer
.
a minimum of
] one professional engineer with
a minimum of five years of structural bridge design experience
after
licensure as a professional engineer
.
a minimum of
] one professional engineer with a minimum of seven
years of structural bridge design experience in multi-level interchanges
after licensure as a professional engineer
.
a minimum of
] one professional engineer with a minimum of seven years
of structural bridge design experience in exotic bridge design
after
licensure as a professional engineer
.
a
minimum of one professional engineer, to serve as project manager, with six
years of
] bridge inspection
assignments in a responsible capacity
[
or design experience appropriate to this category,
] and
[
who
] has completed the comprehensive NHI training course "Safety
Inspection of In-service Bridges;" and
graduate engineer or a professional engineer to
serve as the inspection
] team leader who has
the qualifications
specified for the project manager in subdivision (i) of this subparagraph,
or
a minimum of five years of experience in bridge inspection
assignments in a responsible capacity
[
or design experience appropriate
to this category,
] and has completed the comprehensive NHI training
course "Safety Inspection of In-service Bridges
,
" or is currently
certified as a Level III or IV Bridge Safety Inspector under the National
Institute
[
Society of Professional Engineer's program for National
] for Certification in Engineering Technologies
(NICET)
[
(The project manager may serve as inspection team leader, if only one team
is required)
].
a minimum of
] one professional engineer, to
serve as project manager, with
a minimum of
seven years of bridge
inspection or design experience, including one year of inspection or design
of bridges included in this category, and who has completed the comprehensive
NHI training course "Safety Inspection of In-service Bridges;" and
a graduate engineer or a professional
engineer
] to serve as the inspection team leader who has a minimum of
six years of experience in bridge inspection or design, including one year
of inspection or design of bridges included in this category, and who has
completed the comprehensive NHI training course "Safety Inspection of In-service
Bridges" [
or current certification as a Level III or IV Bridge Safety
Inspector under the National Society of Professional Engineer's program for
National Certification in Engineering Technologies (The project manager may
serve as inspection team leader, if only one team is required)
].
a minimum of
] one professional engineer with
demonstrated experience performing traffic engineering studies.
a minimum of
]
one professional engineer with demonstrated experience performing highway-rail
grade crossing studies.
a minimum of
] one professional engineer with
demonstrated experience in traffic signal timing and the application and interpretation
of traffic flow and signal timing models; and
a minimum of
] one professional engineer with
experience in activities associated with traffic control systems; and
a minimum of
] one professional engineer with
a background in transportation engineering and experience in activities associated
with the development of ITS; and
a minimum of
]
one professional engineer with
a minimum of
two years experience
in this category.
a minimum of
] one professional engineer
with
:
with
]
a minimum of
two years experience
in design and production of illumination plans meeting IESNA and AASHTO guidelines;
and
a minimum of
] one professional engineer with
a minimum of
two years experience in the design and production of traffic signalization.
a minimum of
] one professional engineer, with
a background in electrical engineering, system engineering, or software engineering,
with
a minimum of
two years experience in either the design and
production of ITS plans or the operation of ITS; and
a minimum of
]
one professional engineer with
a minimum of
two years experience
in this category.
a minimum of
] one professional engineer with
a minimum of
one year [
of
] experience in the design of bicycle
and pedestrian facilities, and with knowledge of drainage design; and
a minimum of
] one professional engineer with
a minimum of two years experience in analysis of complex watersheds.
a minimum of
] one professional engineer
with a minimum of two years experience in hydrologic analysis, hydraulic design,
and storm water quality evaluation.
a minimum of
]
one professional engineer with a minimum of two years experience in river
geomorphology, sediment transport and scour analysis, flood plain analysis,
river training techniques, and federal and state regulations and permit compliance.
pump stations
]. This category includes the design of pump stations for
conveyance of storm waters. The firm must employ[
;
]
a minimum
] of one professional engineer
with a minimum of two years experience in hydrologic analysis and storm drain
and pump station design[
;
]
(E)
] Category 10.5.1-bridge scour
evaluations and analysis. This category includes hydrologic analysis, channel
and bridge hydraulic analysis and sediment transport modeling for evaluating
the potential for scour of bridges. The firm must employ [
a minimum of
] one professional engineer with a minimum of two years experience
, after licensure as a professional engineer,
in river geomorphology,
sediment transport and scour analysis, and flood plain analysis.
a minimum of
] one professional
engineer with a minimum of two years of responsible charge experience as a
project engineer on roadway and bridge construction projects.
a minimum
of
] one professional engineer with
a minimum of
three years
of experience in testing roadway construction materials and a minimum of one
person with the proper Hot Mix Asphalt Specialist Certification (Level 1A
minimum).
a minimum of
] one professional engineer with
a minimum of
three years of experience in testing roadway and bridge construction materials,
and [
a minimum of
] one person with the proper concrete certification
(ACI certification Grade 1).
a minimum of
] one professional engineer with
a minimum of
three years of responsible experience in inspection and
testing bridge and roadway construction materials; and
a minimum of
] one professional engineer
with
a minimum of
[
at least
] one year demonstrated experience
in the activities normally associated with the category under consideration;
and
a minimum of
] one professional engineer
with
a minimum of
[
at least
] one year demonstrated experience
in the activities normally associated with the category under consideration;
and
a minimum of
] one professional engineer with
a minimum of
[
at least
] three years demonstrated experience
in the activities normally associated with this category.
a minimum of
] one professional engineer with
a minimum
of
[
at least
] three years demonstrated experience in the
activities normally associated with this category.
a minimum
of
] one registered professional land surveyor and two technical personnel,
all with demonstrated experience in the applicable category of work and the
following subcategories:
maps
];
a minimum of
] one registered professional
land surveyor with a minimum of one year experience in roadway construction
staking;
a minimum of
] one registered professional
land surveyor;
a minimum of
]
one
registered professional
[
licensed state
] land surveyor
with demonstrated experience in state land surveying as defined in the category
description.
a minimum
of
] one registered architect with
a minimum of
two years
experience in the areas identified.
a minimum of
] one registered architect with
a minimum of
two years experience in the areas identified.
a minimum of
] one professional engineer who:
at least
]
five transportation related value engineering studies, including one freeway
project exceeding $20 million initial estimated cost;
Subchapter F. Contracts for Scientific Services
Chapter 27.
Toll Projects