The amendments are adopted 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.

§9.33.Notice and Letter of Interest.

Notice.

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:

the proposed contract or RFP number;

work category codes;

type of selection in accordance with §9.39 of this title (relating to Selection Types);

the general description of the project and work to be done;

the due date for providers to send letters of interest to the department;

qualification information if the work type is not listed as a category in §9.43 of this title (relating to Qualification Requirements by Work Group); and

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.

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 office in which the work will be performed. If the newspaper fails to print the notice, the department will consider the notice posted. The notice will contain:

the proposed contract or RFP number;

the general description of the project and work to be done;

the due date for providers to send letters of interest to the department;

the contact person;

the location of the electronic bulletin board that contains more information;

the type of work needed and its minimum qualifications, if the work category is not listed in §9.43 of this title (relating to Qualification Requirements by Work Group); and

the department's determination as to whether to waive 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.

Organizations. The department will publish quarterly a statewide list of projected contracts for consulting engineering, architectural, and surveying services and will provide upon request, or make available on the department's Web site, a copy of each list to community, business, and professional organizations for dissemination to their membership.

Letter of interest (LOI).

The provider shall send a letter of interest to the department notifying the department of the provider's interest in the contract not later than the deadline published in the notice.

The letter of interest will be limited in length to three pages, unless stated otherwise in the notice. The department will accept a letter of interest by electronic facsimile.

To be considered:

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);

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.);

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 specified in §9.43(b) of this title (relating to Qualification Requirements by Work Group) 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.);

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:

is not precertified must submit an attachment with the LOI which describes how the firm meets the minimum requirements specified in §9.43(b) of this title (relating to Qualification Requirements by Work Group) 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

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.

The letter of interest shall include;

the contract or RFP number;

an organizational chart containing:

names of the prime provider's and any subprovider's key personnel proposed for the team and their contract responsibilities by work category; and

(ii)

the prime provider's project manager (who may not be changed during the selection and the award process);

team capabilities;

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;

other pertinent information addressed in the notice.

§9.35.Short List Meeting, Proposals, and Evaluation.

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 will be furnished by the department to providers on the short list either prior to or at the short list meeting. 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.

Request for proposals. The RFP packet will include:

instructions for a :

written proposal preparation and/or the interview process; and

submittal of the RFP packet;

detailed scope of services to be provided by the department;

detailed scope of services to be provided by the provider;

proposed contract duration;

proposed method of payment;

a debarment certification form;

(7)

a lower tier debarment certification form;

(8)

a lobbying certification/disclosure form;

(9)

any special contract requirements; and

(10)

the interview format and requirements if no short list meeting will be held.

Proposal format. When a written proposal is required, the proposal shall be limited to the specific length and information outlined in the RFP packet.

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:

understanding of scope of services;

experience of the project manager and project team;

ability to meet the project schedule;

unique or innovative methods of approaching the proposed work that may save time or money, or result in a better quality product; and

other CRC approved criteria listed in the RFP packet.

(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.

§9.36.Interviews and Evaluation.

Interviews. The CST may 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.

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.

Evaluation criteria. The CST will consider the following criteria in its evaluation of the provider's interview:

understanding of the scope of services;

experience of the project manager and project team;

ability to meet the proposed contract schedule;

unique or innovative methods of approaching the proposed work that may save time or money, or result in a better quality product;

responses to interview questions; and

other CRC approved criteria listed in the RFP packet.

Interview 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.

§9.37.Selection.

Basis of final selection.

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.

If an interview is not required, the final selection will be made by using the written proposal score.

If a written proposal is not required, the final selection will be made by using the interview score.

Tie scores. In the event of a tie, the managing officer will break the tie using the following method.

The first tie breaker, if needed, will be the score for the experience of the project manager and the project team.

The second tie breaker, if needed, 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.

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 nonresponsive, and the department will select the next highest scored provider meeting these requirements.

Selection 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.

(e)

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. If the procedural review is acceptable, the executive director or his or her designee will concur with the selection.

(f)

Notification. The department will:

prepare a letter to notify the provider selected for contract negotiation and arrange a meeting to begin contract negotiations;

prepare a letter to each of the providers remaining on the short list that were not selected, naming the provider that was selected; and

publish the short list and the provider selected for a contract on an electronic bulletin board.

(g)

Negotiations.

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 §172.9, federally funded contracts are not based on percentage of construction cost.

Contract execution. The provider shall sign the contract within 30 working days from the date of notification to the provider. The CRC may grant a 10 working days extension. Upon request from the managing officer, the executive director may authorize one additional extension, for a period not to exceed 10 working days. An extension must be authorized before the expiration of the negotiation period or previous extension.

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. If the project is canceled, it may be readvertised.

DBE/HUB goal documentation. The selected provider shall provide written documentation that the provider has met the specified DBE/HUB goal or made a good faith effort to meet the goal in accordance with §9.38(a) of this title (relating to Contract Management), §9.40 of this title (relating to DBE/HUB Goals), and §9.55 of this title (relating to Good Faith Effort). If the provider does not submit such documentation, the department will cease negotiation with the provider and enter into negotiation with the next provider in the order of preference for this contract. Evidence of good faith effort shall be submitted to the managing officer, through the department's project manager, for review and acceptance.

(h)

Appeal. A provider may file a written complaint concerning the selection process with the executive director or his or her designee.

§9.39.Selection Types.

The department will perform four types of contract selections.

Individual contract selection. One contract will result from the contract notice.

Multiple contract selection. More than one contract of similar work types will result from the contract notice. 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 qualified to perform the work.

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.

If the anticipated number of contracts is greater than the number of prime providers that fall within the specified range, then each prime provider will be selected for one contract on a random basis for the excess contracts. Each of the remaining contracts will be randomly awarded to the prime providers who fall within the specific range until all providers have two contracts or all contracts have been awarded. If there is still an excess of contracts, then the process repeats.

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 work authorizations for this contract shall not exceed $500,000 each. The total of the contract 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.

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 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.

§9.41.Precertification.

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:

the anticipated work in an individual work category is less than 5.0% of the contract; or

the department has waived the precertification requirements for a contract that is less than $250,000.

Application.

Registered architects, professional engineers, and registered professional surveyors or their related subproviders who desire to be precertified by the department to perform work on architectural, engineering, or surveying contracts shall submit a completed precertification questionnaire to the CRC for review and determination of precertification status.

A questionnaire, in a form prescribed by the department, or a precertification information packet may be obtained by contacting the Texas Department of Transportation, Design Division - Consultant Review Committee, 125 East 11th Street, Austin, Texas 78701-2483.

The questionnaire will include information concerning the experience of the prime provider or subprovider.

The precertification information packet will include:

a copy of the questionnaire;

instructions regarding the format and length restrictions for data to be submitted;

the requirements for precertification in each category as described in §9.43 of this title (relating to Qualification Requirements by Work Group);

copies of the department's standard contracts, with attachments;

instructions for administrative qualification; and

department overhead guidelines.

The submittal date for review deadlines as described in subsection (g) of this section shall be the date the precertification questionnaire is received by the CRC.

The precertification of a prime provider or subprovider by the department does not guarantee that work will be awarded to that prime provider or subprovider.

Instructions. The department will publish instructions concerning submittal of information for precertification annually in the Texas Register and daily on an electronic bulletin board.

Precertification deadline. When precertification is required as described in subsection (a) of this section, 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.

(e)

CCIS. The department will maintain the CCIS containing qualification information submitted in the precertification questionnaire by the prime provider or subprovider.

(f)

Technical precertification.

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.

A precertification will transfer with the employee if the employee leaves the firm.

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 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 providers and subproviders must be precertified in the categories of work they will be performing; however, a provider or subprovider is not required to be precertified in every category of work involved in the contract, unless it will be performing all of the work.

The department will not precertify joint ventures.

(g)

Precertification review.

A prime provider or subprovider 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.

If the submittal is incomplete, a prime provider or subprovider will be requested to submit additional information for review. 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.

The department will consider the following factors in reviewing the precertification questionnaires as specified in §9.43 of this title (relating to Qualification Requirements by Work Group):

current license or registration;

personal experience and training; and

other requirements of §9.43 of this title (relating to Qualification Requirements by Work Group).

(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 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.

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 executive director or his or her designee.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 1, 1999.

TRD-9901225

Proposal publication date: January 1, 1999

For further information, please call: (512) 463-8630

Subchapter D. Business Opportunity Programs

43 TAC §§9.51, 9.56, 9.58, 9.59

The Texas Department of Transportation adopts the amendments to §§9.51, 9.56, and 9.58, repeal of §§9.59-9.61, and new §9.59, concerning business opportunity programs. The amendments to §§9.51, 9.56, and 9.58, the repeal of §§9.59-9.61, and new §9.59 are adopted without changes to the proposed text as published in the December 11, 1998 issue of the Texas Register (23 TexReg 12636), and will not be republished.

EXPLANATION OF AMENDMENTS, REPEAL, AND NEW SECTION

The amendments, repeal, and new section streamline the procedure for complaints, investigation, resolution, and appeal concerning the business opportunity program, including sanctions. Under the current sections, a bidder or proposer complaint is made to the Deputy Executive Director of Administrative Services (DED). The DED or designee sends a response to the complainant. A program administration complaint, including discrimination, is sent to the DED who tries to resolve it. Bidder/proposer and program complaints may ask for an investigation by the Civil Rights Division. After the investigation, the DED makes a final determination. An appeal of a final determination or sanction may be made to the business appeals committee. The business appeals committee then makes a determination.

The adopted sections streamline the procedure from a three-step process to a two-step process and eliminate the business appeals committee. The process would authorize the Business Opportunity Section of the Construction Division (CSTB) to investigate because CSTB is the section most knowledgeable about the business opportunity programs. The director of the Construction Division will make the initial decision since that director is in charge of the programs. The director's decision can then be appealed to the executive director or designee.

The sections remove the ability of vendors to protest purchases using this procedure because it is no longer necessary. Vendors may now contest purchases pursuant to §9.3 in accordance with Government Code, §2155.076, the State Purchasing and General Services Act, which is consistent with the General Services Commission's rules found in 1 TAC Chapter 111. In addition, it removes the protest procedure for contract awards. This procedure has not been utilized and eliminating it will reduce bureaucracy. The federal appeal procedures have not changed.

The amendments to §9.51 number the definitions to conform with Texas Register form. The definition for "business appeal committee" has been deleted to correspond with the elimination of the committee and with the repeal of §9.60. Changes, additions, and deletions of other definitions reflect the reorganization of the department.

The amendments to §9.56 and §9.58 reflect the reorganization of the Business Opportunity Office as part of the Construction Division (CST), include revised cross-references as a result of the repeal and new section, and clarify some of the provisions. New §9.59 establishes a procedure for an aggrieved person to file a complaint concerning the business opportunity programs.

An aggrieved person or firm may file a complaint concerning a violation of the business opportunity programs, including a discrimination claim, with the department. A complaint may be filed on behalf of another person or any specific class of individuals.

The complaint must be made to the director within 90 calendar days of the alleged discrimination or violation. CSTB will review the complaint notify the complainant whether an investigation is necessary. If the complaint is made against the Construction Division or a section of the Construction Division, then the executive director will appoint another division or office to review and investigate the complaint.

If the finding confirms the complaint, the department will meet with the complainant and respondent to discuss a conciliation agreement. If a conciliation agreement is reached, the department will monitor it to completion. If no conciliation agreement is reached, the director will make a decision regarding corrective action needed and monitor the corrective action, if any.

A final determination or a department sanction may be appealed to the executive director or designee within 10 days after receiving notice of final determination or sanction. The executive director or designee will consider an appeal if the appealing party identifies: new information or witnesses that, if considered, might have changed the outcome; harmful procedural error by the department which could have led to a different conclusion; or a finding contrary to the evidence, department policy, or law. The executive director or designee will: review the sanction or determination; consult with witnesses and review evidence, if necessary; and review the appealing party's written rebuttal.

COMMENTS

No comments were received on the proposed amendments, repeals, and new section.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 1, 1999.

TRD-9901223

Proposal publication date: December 11, 1998

For further information, please call: (512) 463-8630

43 TAC §§9.59-9.61

The repealed sections are adopted 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 1, 1999.

TRD-9901224

Proposal publication date: December 11, 1998

For further information, please call: (512) 463-8630

Subchapter F. Contracts for Scientific Services

43 TAC §§9.80-9.88

The Texas Department of Transportation adopts new §§9.80-9.88, concerning contracts for scientific services. Sections 9.80-9.88 are adopted without changes to the proposed text as published in the January 1, 1999, issue of the Texas Register (24 TexReg 116) and will not be republished.

EXPLANATION OF ADOPTED RULE

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. 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 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 through §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.

RESPONSE TO COMMENTS

A written comment was received from the Consulting Engineers Council of Texas (CECT) and is responded to as follows. The CECT did not indicate whether it was in favor of or against the proposed new sections.

Comment: The CECT asked for clarification as to whether the selection of services for environmental and cultural studies would apply if consultants are being selected for highway planning and design services.

Response: The existing precertification and selection process found in 43 TAC, Chapter 9, Subchapter C governs the selection of environmental and cultural studies if consultants are being selected as part of a contract for services of a professional engineer, registered architect, or registered professional land surveyor. New §§9.80-9.88 apply only when the department procures scientific services separately and independently from 43 TAC, Chapter 9, Subchapter C. New §§9.80-9.88 will not be changed because 43 TAC, Chapter 9, Subchapter C states that the scientific services are included in that subchapter if the selection involves a professional engineer, registered architect, or registered professional land surveyor.

The new sections are adopted 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 1, 1999.

TRD-9901222

Proposal publication date: January 1, 1999

For further information, please call: (512) 463-8630

Chapter 11. Design

Subchapter E. Statewide Transportation Enhancement Program

43 TAC §§11.200-11.205

The Texas Department of Transportation adopts amendments to §§11.200-11.205, concerning the Statewide Transportation Enhancement Program. Sections 11.201, 11.203, and 11.204 are adopted with changes to the proposed text as published in the November 13, 1998, issue of the Texas Register (23 TexReg 11597). Sections 11.200, 11.202, and 11.205 are adopted without changes and will not be republished.

EXPLANATION OF ADOPTED AMENDMENTS

The amended sections are necessary to update and clarify the applicable rules implementing the state and federal laws and regulations concerning the Statewide Transportation Enhancement Program.

Section 11.200 is amended to remove the reference to the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). The word intermodal has been deleted when referring to surface transportation systems. The commission will allocate funds to the department for use on the state highway system for transportation enhancement activities that provide a safe, effective, and efficient movement of people and goods. This allocation will provide funding for enhancement projects that are identified for statewide benefit and are typically types of projects which are not nominated by local public authorities. The commission will also make funds available in a statewide competitive program that enhance the surface transportation system and facilities within the state for the benefit of the users of those systems.

Section 11.201 is amended to add and revise definitions to reflect changes to subsequent sections. The transportation enhancement program activities have been amended to include four new program activities as approved by the new federal surface transportation authorization bill, Transportation Equity Act for the 21st Century (TEA 21).

Section 11.202 is amended to simplify and clarify project eligibility. Projects will be deemed eligible for consideration if the proposed activity has a direct relation of function or impact to the surface transportation system. This is consistent with the provisions of TEA 21 which require that enhancement projects must have a relationship to the surface transportation system to be considered eligible for funding. At least 50% of the project's eligible activities identified in the project description and budget of the nomination form must be deemed eligible for federal reimbursement. This is necessary to insure that adequate funding is made available to complete the project's eligible work items. Projects must be available for public use for a period of not less than 10 years. This is necessary to insure that the projects are available for public enjoyment since public funding is provided. Subsection (b) has been deleted and moved to §11.205, Project Administration, with modifications.

Section 11.203 is amended to simplify nomination requirements. The chart in subsection (b)(1) is revised to provide that projects located in a single metropolitan area do not have to be nominated by a Metropolitan Planning Organization (MPO). Amending this requirement allows public agencies that are located within a single metropolitan area to nominate a project directly with the department. Included in the amendment is clarification regarding real property acquisition and commitment from the property owner that indicates the property will be purchased at fair market value. Including this document will establish that the seller understands the requirements of federal regulations involving the purchase of property. To assure current information is included in the nomination form, evidence of public support from all the governing bodies of any public authority that has jurisdiction within the project area must be included in the nomination application. This is necessary to insure that the project is supported by all governmental entities that have appropriate jurisdiction within the project area. Historic preservation projects must have documentary evidence from the Texas Historical Commission and be currently listed in the National Register of Historic Places. The Texas Historical Commission is the state agency responsible for documenting historic places in Texas.

Section 11.204 is amended to clarify project selection. Subsection (a)(3) has been deleted and moved to §11.205, subsection (c), Project Administration. The name of the Texas Department of Commerce is amended to reflect the new name, Texas Department of Economic Development. The Transportation Enhancement Project Evaluation Committee (TEPEC) will consider and discuss projects as they relate to the surface transportation system and will evaluate the function and impact of each project. This is consistent with the TEA 21 requirements that projects must have a relationship to the surface transportation system. The Texas Transportation Commission will consider for funding eligible projects that provide safe, effective, and efficient movement of people and goods. Incorporating the department's mission statement is fundamental in all programs under the department's responsibility. Funds approved by the commission will be a fixed amount. By allocating a fixed amount for each project, the commission will insure that a greater number of projects will be funded. The nominating entity may seek additional funds in subsequent program calls.

Section 11.205 is amended to streamline and manage projects. New subsection (c) explains the procedures of project elimination when a municipality or county oppose a project. Subsection (h) is amended to clarify the types of allowable in-kind contributions in accordance with Title 23, United States Code, §323, that can be used to meet the local funding match. A local agreement must be executed prior to incurring any reimbursable costs. To insure funding, a local agreement is required in accordance with federal and state regulations. Projects must be limited to a logical unit of work and developed in accordance with the administrative rules and the nomination form approved by the commission. Any changes in the scope of work established in the nomination form, as approved by the commission, must have the advanced written approval from the executive director. Significant increases in the scope of the project must have the advanced approval of the commission. Advanced approval is required to insure the project scope which was approved by the commission is properly implemented. To comply with federal requirements, the department may seek reimbursement of the expended funds from the nominating entity if the entity does not complete the project. To provide clarification and streamline the project administration, the executive director may eliminate a project from the program if the nominating entity fails to satisfy any requirements of the program, implementation of the project would involve significant deviation from the activities as proposed in the nomination form, the nominating entity withdraws from participation in the project, the project is not implemented within three years or less from the date of inclusion in the STIP, a local agreement has not been executed within one year after the project is selected by the commission, and upon determination that federal funds may be lost. Establishing criteria is necessary to insure that the nominating entity is aware when a project can be eliminated from the program.

RESPONSE TO COMMMENTS

On December 7, 1998, a public hearing was held to receive comments, views, and/or testimony concerning the proposed amendments. Additionally, oral comments were received at the December 17, 1998, regular meeting of the Texas Transportation Commission during the open comment period. Written comments to the proposed amendments were also submitted. The following groups and/or organizations provided comments in favor of the amendments: The Texas Motor Transportation Association and Texas Bicycle Coalition.

The following individuals, groups and/or organizations indicated that they were partly in favor of the amendments and partly against the amendments: Webb County Historical Commission; Crockett County Historical Commission; Concho County Historic Commission; North Central Texas Council of Governments; Arnold Oliver; Grady McWhiney Research Foundation; Daniel E. Fox; State Representative Tony Goolsby, Texas House of Representatives, District 102; City of Austin; Austin Metro Trails and Greenways; and the Austin Transportation Study (MPO).

The following individuals, groups and/or organizations indicated that they were against the amendments: Hillsboro Chamber of Commerce; City of Electra; City of Breckenridge; Ambrosio Villarreal, Jr.; City of Elgin; Webb County Heritage Foundation; Dr. Mavis Ann Bryant; Teresia Wims; City of Abilene; Abilene Preservation League; City of Duncanville; Historic Tyler, Inc.; Marcel Quimby, FAIA; Preservation Dallas; Hyde Park Neighborhood Association; Gregg County Historical Commission; Caprock Cultural Association; National Trust for Historic Preservation; Shirley W. Caldwell; Julie Young; Georgetown Heritage Society; Texas Society of Architects; Greater Houston Preservation Alliance; City of Denton; Elisabet Ney Museum; Ray Barnhart; City of Grapevine; Carman E. Rodriguez; El Paso Community Foundation; Albany Chamber of Commerce; Mission Trail Oversight Committee; San Antonio Conservation Society; Beverly W. Sarver; Council of Texas Archeologists; Nancy McCoy, AIA; Regnier, Valdez & Associates; Bud and Annie Melton; Transportation Policy Council for the Houston-Galveston Transportation Management Area; The Williams Company, AIA; Presidio La Bahia; Texas Parks and Wildlife Department; Cooke County; State Representative Joe C. Pickett, Texas House of Representatives, District 79; City of Socorro; State Senator Eliot Shapleigh, Texas Senate, District 29; United States Congressman Martin Frost, U. S. House of Representatives; City of Laredo; City of Marshall; United States Congressman Silvestre Reyes, U. S. House of Representatives, District 16; Historic Fort Worth; Joe B. Reuss; Community Preservation Foundation; Trans Texas Alliance; Travis County; The Trust for Public Land; Texas Historic Commission; Kate Singleton; Hays County Historical Commission; Beth Jones; Eugene Smith; Preservation Texas; and Ron Emrich.

Comment: Under the provisions of §11.200, the Texas Transportation Commission may allocate funds to the department for use on the state highway system for transportation enhancement activities that provide a safe, effective, and efficient movement of people and goods. Several commenters addressed concerns that incorporating this provision would place limitations on the types of transportation enhancement projects that would be funded.

Response: The amended rules provide a means for the Texas Transportation Commission (commission) to make funding available to the department for eligible projects on the state highway system in accordance with its mission statement. Enhancement projects not on the state highway system that are funded under the statewide competitive program are not required to provide a safe, effective, and efficient movement of people and goods, but must enhance the surface transportation systems and facilities within the state for the benefit of the users of those systems. Projects in all transportation enhancement categories will be considered for selection by the commission.

Comment: A number of the commenters were against the allocation of funds for department projects, as provided in §11.200, and the resulting reduction of funds that would be available for public competition. The majority requested that either a limit be placed on the amount of funding that the commission could allocate to the department or that the department submit it's projects through the statewide nomination process. Concern was also expressed that federal funds are not leveraged with "local matching funds" when allocated to the department's projects.

Response: The proposed amendment offers the maximum flexibility for the department to develop transportation enhancement projects within the state highway system. The department will be responsible for funding the non-federal participating match with state funds for projects approved under this process. The 80% federal funding will allow the state to make its funds go further.

Comment: Section 11.200 provides in part that, "The commission will make funds available in a statewide competitive program that enhances the surface transportation systems and facilities within the state for the benefit of the users of those systems." One commenter requested that the word "enjoyment" remain in the existing provision and not be replaced with the word "benefit."

Response: While it is desired that users enjoy the enhancements to the transportation system, it is the department's opinion that the use of "benefit" is more applicable to the activities available under the program.

Comment: Several comments were made that §11.201(1) should retain "project planning and design", as well as, "environmental mitigation and studies" in the definition of allowable cost.

Response: Project planning and design are both eligible costs that are considered as part of the development of plans, specifications, and estimates. Environmental mitigation includes studies, surveys, and assessments that may be required in order to develop a project. It is not the intent of the department to remove these items as allowable costs.

Comment: Concerning §11.201(10) and (11), several commenters requested that the definitions of "function" and "impact" be revised and the phrase "significant impact" be clarified. One commenter stated the definition should include "existing or planned" transportation system, instead of "existing" transportation system.

Response: The definitions of function and impact have been revised for clarification; however, the definitions do not include the addition of "planned" transportation systems. The department does not advocate building projects on speculation. Transportation enhancement projects are intended to enhance systems that are either already built, or are in the process of being built. The word "significant" has been removed in the revised definition of impact and replaced with the word "beneficial" to more specifically correspond with the purpose of the program.

Comment: Concerning §11.201(29), which provides for the definition of "State," one commenter asked how a political subdivision could be a state.

Response: The definition does not raise a political subdivision to the same level as the state. The expanded definition is used for ease of reference only.

Comment: Concerning: §11.201(32), one commenter requested that the word "intermodal" not be removed from the definition of the transportation system.

Response: The term "intermodal" has been deleted when referring to the surface transportation systems. This is consistent with the definition established in the Transportation Equity Act of the 21st Century (TEA 21). The surface transportation system is intended to include all facilities that contribute to the transportation of people and goods, including airports and support facilities; bicycle and pedestrian facilities; highways, county roads and city streets (including bridges); facilities for public transportation, to include ferries, buses and light rail transit; and railroad corridors, including high-speed rail corridors and rail corridors banked for future service.

Comment: Two commenters stated that in §11.201(36), the definition of "Transportation enhancement activities" should incorporate the word "enhance" instead of the word "related" when referring to the transportation enhancement activities.

Response: The Transportation Equity Act of the 21st Century (TEA 21) specifically states that transportation activities must relate to the surface transportation system. Since the Enhancement Program is funded under TEA 21, the department desires to be consistent with that language.

Comment: Several commenters objected to the deletion of proximity as an eligibility criterion in sections §11.202(a)(1) and §11.204.

Response: In accordance with applicable guidance on eligibility, the Federal Highway Administration (FHWA) has stressed that candidate projects must have a direct relationship to transportation. In the case of non-transportation historic properties, the concept of direct relationship has been very widely interpreted. The FHWA and the department believe that the legislative intent requires a substantial transportation relationship in order for an undertaking to be considered eligible. In the past, many non-transportation historic projects were determined eligible by proximity only. Since these projects are funded with transportation tax dollars and through federal legislation, the department has determined it is desirable and consistent that projects show a stronger relationship to transportation than just proximity to the system. Projects will be deemed eligible for consideration if the proposed activity has a direct function or impact to the surface transportation system. This is consistent with the provisions of TEA 21 which require that transportation enhancement projects have a relationship to the surface transportation system to be considered eligible for funding, while providing equitable eligibility for all candidate projects. While other projects of many types may be a desirable community project, and certainly of community benefit, the department does not believe that all such projects are intended to be funded by this program. Rather the department will consider projects that clearly enhance transportation.

Comment: Two commenters requested that the program allow for up to 100% federal funding rather than the minimum required 80/20 match, as provided in §11.202(a)(3).

Response: TEA 21 sets the amount of federal reimbursement for all categories of federal funding. Federal funding regulations provide for 80% of the total program funds for transportation enhancement activities to be reimbursed. To fund one project at 100% would cause other projects to be funded for less than 80%. In order to maintain equitable program funding, the department has determined that no project should receive a higher percentage of funding at the expense of other projects.

Comment: One commenter requested that the phrase "reconstruction, restoration, and rehabilitation" remain in §11.202(a)(4).

Response: Removal of these specified activities in this section does not mean that these activities cannot be performed, if appropriate for a selected project. The section allows for the construction and enhancement of a facility. This phrase encompasses whatever type of work would be necessary for the development of a facility, including reconstruction, rehabilitation, or restoration.

Comment: One comment was received that requested property acquisition by eminent domain.

Response: Section 11.202(c) provides that projects which require the acquisition of property through the exercise of eminent domain are not eligible for participation in the program. The department believes it is in the best interest of the public not to allow governmental authorities to use the right of eminent domain for enhancement projects. The commission does not want to place a burden and hardship on those property owners who could be affected by a property taking through condemnation.

Comments: Under §11.203(b)(1), three commenters expressed concern that projects do not have to be nominated through Metropolitan Planning Organizations (MPO's).

Response: Project nominators must commit to the project's development, implementation, construction, maintenance, management, and financing. In the past, many MPOs have had reservations nominating projects since they must commit to the financing of the project. Section 11.203(c)(1)(M) states, "For any enhancement activity that would be implemented within a metropolitan area, a letter from the MPO stating that should funding for the candidate project be made available, the MPO will include the candidate project in the TIP for that area if the candidate project has not been included." Therefore, an MPO is required to evaluate and approve a proposed project with activities in its area, regardless of the nominating entity. If they desire, MPOs may also submit a written statement to the department of the relative priority ranking assigned by them to candidate projects.

Comment: Numerous comments were received requesting that §11.203(c)(1)(N) allow for the use of state or local standards in determining the significance of historic properties, instead of the National Register of Historic Places established by the Department of the Interior of the United States.

Response: Program standards, requiring projects that include historic properties to either be in or eligible for listing in the National Register of Historic Places, were established in consultation with the Texas Historical Commission. State and local designations vary greatly and in some areas are non-existent. In order to maintain program consistency and quality, the department has determined it is most beneficial to have federally funded enhancement projects adhere to national standards, specifically the National Register of Historic Places.

Comment: Concerning §11.204(b)(1)(B), several commenters requested that the phrase "potential benefit" not be removed from project screening and eligibility.

Response: The analysis of the project's potential benefit is not being removed from project screening. The potential benefit of each eligible candidate project will be evaluated by the Transportation Enhancement Project Evaluation Committee in accordance with §11.204(b)(A).

Comment: Many commenters expressed concern over narrowing the requirements under which historical preservation activities may qualify. Additionally, one commenter requested that the department add historic preservation education as an eligible category.

Response: Historical preservation activities will not be held to any different requirements than any other category or type of project and have not been eliminated from the program. However, in order to insure that projects demonstrate a relationship to the surface transportation system, certain criteria have been amended. The department has determined it is necessary that projects demonstrate a relationship to surface transportation, either by function or impact. TEA 21 established the 12 categories under which federally funded enhancement projects may qualify. The department did not create categories under the transportation enhancement program. They are set by federal law.

Comment: One comment was made that cultural resource-type projects, such as historic preservation, rehabilitation of historic transportation facilities, and archeological projects should be evaluated by their past, present, and future use.

Response: These factors are considered in project nominations. Information is required as to how the facility is currently being used, and its intended use, as referenced in §11.202. Section 11.203(c)(1)(N) provides that any project involving historic properties must include current documentation from the Texas Historical Commission stating whether the property is listed in or eligible for listing in the National Register of Historic Places. Comment: Two commenters suggested that the department create a "sub-allocation" of transportation enhancement funds for each Transportation Management Area (TMA).

Response: Transportation enhancements are funded through the Surface Transportation Program (STP) created by TEA 21. In creating that program, Congress specifically exempted the funds set aside for transportation enhancements from the requirements for geographic distribution of other STP funds either to major metropolitan areas or to other areas of the state. This language would appear to negate any suggestion of a legislative intent to require geographic sub-allocation. The department believes that sub-allocations would impair implementation of a statewide strategic vision and direction. Sub-allocation would unduly constrain the programming process and hinder the commission's ability to respond to the state's high priority needs identified through the transportation planning process. In addition, the department believes that sub-allocation of these funds could frustrate the flexibility provisions of TEA 21. Requiring a minimum share of funds to be spent in every geographic area of the state, in every category of enhancement activities, or on projects of every size could result in funding unneeded or less beneficial projects while needed and more beneficial projects in other areas go unfunded.

Comment: One commenter requested that funding also be allowed for recreational bike trails.

Response: TEA 21 requires that transportation enhancement projects have a direct relationship to the surface transportation system. Projects for pedestrians and bicyclists must be transportation related, and may have recreational value, but shall not be freestanding recreational projects unrelated to the transportation system.

Comment: Several commenters requested that the rules be available for an open comment period again, with a greater time given to the comment period and greater opportunities for participation.

Response: Chapter 2001, of the Texas Government Code, describes the manner in which proposed rules are to be published, hearings held, and deadlines for public comments. In accordance with Chapter 2001, the proposed rules were published in the Texas Register on November 13, 1998. A public hearing was held on December 7, 1998, to allow for the public to provide the commission with comments. Oral comments were also made at the December 17, 1998, Texas Transportation Commission's regular monthly meeting. The original deadline for written comments was December 15, 1998. Due to numerous people requesting additional time to comment on the rules, the department extended the deadline for submission of written comments until December 30, 1998. In order to finalize the rule amendments and expedite implementation of the program, no additional public hearings or extension of the written comment period will be afforded.

Comment: One commenter indicated a concern that projects would be limited to "on-system roadways."

Response: Projects are not limited to "on-system roadways." The department's rules permit funding for the full range of permissible transportation enhancement activities defined in federal law. The rules will permit the department to fund projects within all 12 eligible categories of transportation enhancement activities. The precise limits imposed by federal and state law must be determined through a review of each specific project proposal. Assuming other eligibility requirements are met, however, whether a proposed activity is on or immediately adjacent to the state highway system is not necessarily controlling.

Comments: One commenter suggested that projects should be selected locally with greater emphasis placed on transportation, such as the STP, Urban Street Program, or MPO selections. Another commenter suggested that provisions should be added for citizen/public participation in the project evaluation and selection process.

Response: The principles that have guided the structure of the evaluation committee thus far have been to: encourage participation of experts in the various areas covered by the enhancement program; maintain a small committee to simplify operation and encourage effectiveness; and ensure that the operation of the evaluation committee supports the enhancement program's statewide perspective.

The department believes that the six agencies represented on the TEPEC collectively provide the expertise necessary to effectively evaluate the various areas included within the 12 categories of transportation enhancement activities. As representatives of state agencies, they can maintain the statewide focus necessary to ensure a strategic vision and direction for the Statewide Transportation Enhancement Program.

TEPEC does not select projects for funding and was never intended as the vehicle for public participation in the selection process. Selection of projects lies with the commission. State agency representatives are appropriate to evaluate the statewide benefits of candidate projects consistent with the strategic vision and direction set for the program by the commission. Adding representatives of large and small cities would not improve the ability of TEPEC to evaluate the statewide benefits of proposed projects.

Public participation in the process of selecting transportation enhancement projects has been and will be provided at several points throughout the metropolitan and statewide long-range planning processes. The public will have the opportunity to be involved during the development of public and local official's support for project proposals, at the meeting of the Texas Transportation Commission at which projects are selected for funding, and the development of the Metropolitan Transportation Improvement Programs and the Statewide Transportation Improvement Program. Local officials are encouraged to describe and evaluate the local benefits of local projects in the nomination process. Information concerning these benefits should be included in the nomination package.

Comment: One commenter requested that the rules not be changed from the 1995 version.

Response: Changes to the rules are necessary due to new federal laws and regulations included in the Transportation Equity Act for the 21st Century (TEA 21) and to focus the program on its purpose to enhance transportation.

Comment: Two commenters expressed concerns that some of the transportation enhancement activities provided under the transportation enhancement program may violate constitutional limitations on the use of funds dedicated to certain purposes under Article 8, §7-a and §7-b, of the Texas Constitution.

Response: Sections 11.204(a)(1) and 11.204(c)(1)(B)(iv) require that only those projects that are eligible under state law be selected. The department intends to select projects in accordance with these provisions of the Texas Constitution.

In addition to the changes previously outlined for §11.201, Definitions, the definition of "jurisdiction" has been changed. The word "not" is being deleted before the phrase "including a city's extraterritorial jurisdiction." This expands the definition to include a city's extraterritorial jurisdiction within its jurisdiction which a city has for certain types of projects. This was an oversight at the proposed stage and is corrected to conform to the amended provisions of §11.205(c) which states "Jurisdiction for the purposes of support or opposition to a candidate project does extend to a municipality's extraterritorial jurisdiction."

The definition of "In-kind contributions" is revised for grammatical reasons.

Section 11.203(b)(3) is revised for clarity in referencing enhancement projects rather than Surface Transportation Program projects.

Section 11.204(b) is revised to conform with Texas Register format requirements.

The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation.

§11.201.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

Allowable costs - Necessary project expenditures incurred after federal and state authorization to proceed and otherwise eligible for reimbursement under applicable statutes and regulations. In appropriate projects, allowable costs may include costs of plans, specifications and estimates, environmental mitigation, acquisition of land or other real property, construction, construction management, administrative expenses, and interpretation or other activities to enhance the appreciation of scenic, historic, natural, or cultural resources. Expenditures for routine operation and maintenance are not allowable costs.

Appropriate local officials - Principal elected officials of general purpose local governments.

Candidate project - A project recommended to the department by a nominating entity for the commission's consideration for inclusion in the Program.

Commission - Texas Transportation Commission.

Department - Texas Department of Transportation.

District office - A headquarters office for one of the department's geographical districts into which the state is divided.

(7)

Executive director - The executive director of the Texas Department of Transportation or his or her designee not below the level of assistant executive director.

(8)

Federal funds - Financial assistance provided by the Federal Highway Administration for project development.

(9)

FHWA - Federal Highway Administration.

(10)

Function - The candidate project serves a purpose relating to the existing transportation system.

(11)

Impact - Substantiates the relation to the surface transportation system in that the candidate project creates a beneficial effect on the existing transportation system.

(12)

In-kind contributions - That portion of allowable costs of a project contributed by other governmental entities or private parties consisting of donations of cash, real property, materials, or contribution of services.

(13)

Jurisdiction - For a city, the area within the incorporated city limits, including a city's extraterritorial jurisdiction. For a county, any area within the boundaries of the county, excluding incorporated areas. For a state agency, any area within which its prescribed authority may be exercised.

(14)

Local agreement - An agreement between the nominating entity and the department which includes a commitment for the required local funding, describes the total scope and course of project activities, and outlines the responsibilities and duties of the participants.

(15)

Local funding match - Monies or authorized in-kind contributions provided by the nominating entity to participate in costs associated with project development.

(16)

Local transit operator - A public entity providing public transportation within a given region.

(17)

Metropolitan area - That area included within the boundaries determined pursuant to Title 23, United States Code, §134(c), and/or §8(c) of the Federal Transit Act (49 USC App. §1608(c)).

(18)

Metropolitan transportation plan - The plan required by Title 23, United States Code, §134(g), and/or §8(g) of the Federal Transit Act (49 USC App. §1608(g)).

(19)

Metropolitan planning organization (MPO) - That entity designated by the governor in accordance with 1 TAC §§5.51-5.57 concerning Metropolitan Planning Organizations as responsible, together with the state, for carrying out the provisions of Title 23, United States Code, §134, and/or §8 of the Federal Transit Act (49 USC App. §1608). MPOs are generally composed of local elected officials, the administrators of the area's major transportation systems, state officials, transit officials, and other interested parties.

(20)

Nominating entity - The state agency, agency of the state, MPO, councils of governments, city, county, or local transit operator which nominates a particular candidate project for consideration by the department, exercises jurisdiction over the geographic area in which that project is located, and commits to the project's development, implementation, construction, maintenance, management, and financing.

(21)

Operational income - Net income received by the owner of a facility constructed or enhanced using funds received through the Program after deducting the costs incident to the generation of that income. The term includes, but is not limited to, income from fees for services performed, use or rental of real or personal property, or sale of commodities. Taxes, license fees, fines, royalties, and other such revenues received by the facility owner or paid within the facility are not considered income.

(22)

Program - The Statewide Transportation Enhancement Program.

(23)

Project - An undertaking to develop, implement, or construct a particular transportation enhancement at a specific location or locations, or, if the context so implies, the particular enhancement so developed, implemented, or constructed.

(24)

Project area - The location in which project activities will take place.

(25)

Public authority - A state agency, city, or county.

(26)

Reimbursable costs - Allowable costs that have been incurred by the department or the nominating entity which are eligible for federal participation and which have been approved by the commission.

(27)

Selected project - A project which the commission has elected to include in the Program.

(28)

Sponsor - One or more individuals, partnerships, associations, private corporations, or public authorities recommending a particular project and committed to its development, and implementation.

(29)

State - The State of Texas or any of its political subdivisions.

(30)

State highway system - As defined in Texas Transportation Code §221.001, that system of highways in the state included in a comprehensive plan prepared by the department's executive director under the direction and with the approval of the commission.

(31)

Statewide Transportation Improvement Program (STIP) - The formal program document required by Title 23, United States Code, §135(f), which is necessary to receive federal reimbursement for projects.

(32)

Surface transportation system - An interconnected transportation network for moving people and goods using various combinations of transportation modes.

(33)

TEPEC - Transportation Enhancement Project Evaluation Committee.

(34)

Transportation - Pertaining to the movement of people between their places of residence, employment, commerce, education, recreation, and entertainment; or of goods between places of manufacture, storage, sale, maintenance, repair, salvage, and disposition.

(35)

Transportation Improvement Program (TIP) - The transportation program required by Title 23, United States Code, §134(h), and/or §8(h) of the Federal Transit Act (49 USC App. §1608(h)), cooperatively developed with metropolitan planning organizations which include improvement projects proposed for federal funding in accordance with the criteria set forth in federal law and federal regulations.

(36)

Transportation enhancement activities - Those activities so defined in §101(a) of Title 23, United States Code, including any of the following, if such activities relate to the surface transportation system:

provision of facilities for pedestrians and bicycles;

provision of safety and education activities for pedestrians and bicycles;

acquisition of scenic easements and scenic or historic sites;

scenic or historic highway programs (including providing tourist and welcome center facilities);

landscaping and other scenic beautification;

historic preservation;

rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals);

(H)

preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails);

(I)

control and removal of outdoor advertising;

(J)

archaeological planning and research;

(K)

environmental mitigation to address water pollution due to highway runoff or reduce vehicle-caused wildlife mortality while maintaining habitat connectivity; and

(L)

establishment of transportation museums.

§11.203.Project Nomination.

Call for nominations. The department will call for nominations of candidate projects by publication in the Texas Register. The department will also provide notice of the call for candidate projects to all Metropolitan Planning Organizations (MPOs), all councils of governments (COGs), and all local transit operators in the state.

Who may nominate.

The department will receive and consider for funding only candidate project nominations from specific nominating entities, depending on the location of the candidate project, as outlined in the following chart:

Figure: 43 TAC §11.203(b)(1)

Activities in multiple jurisdictions should be segmented into separate candidate projects whenever practical.

When the nominating entity for a candidate project is not itself the MPO, city, or county designated by Title 23, United States Code, §134 or §135, to select enhancement projects in any area in which activities would take place, the nominating entity must provide documentary evidence that the MPO, city, or county designated by §134 or §135, to select such projects in that area has authorized it to nominate the project.

How to nominate a project.

To nominate a candidate project, the eligible nominating entity must file its nomination, in the form prescribed by the department, with the district engineer of the district office responsible for the area in which the proposed enhancement would be implemented. The nomination form for a single project in multiple jurisdictions may be filed with the district engineer of the district office responsible for any of the areas in which the proposed enhancement would be implemented. The nomination shall consist of information necessary for project evaluation, and shall include to the maximum extent practicable:

a clear and concise description of the proposed enhancement (The description must detail all work to be performed as part of the candidate project, the relationship between the proposed enhancement and the surface transportation system, any real property or easements required, any special land uses planned, and any relationships between the candidate project and any other work anticipated, planned, presently under way, or previously completed);

an implementation plan for the candidate project, including both a schedule of project activities and an itemized budget (The schedule of activities must indicate any circumstances known to the nominating entity that are likely to affect commencement of work on the candidate project or the time required to complete it, including environmental and historic issues. The budget must describe all proposed local financing of allowable project costs and be accompanied by documentary evidence of the commitment of the nominating entity to pay those costs and of their ability to do so. If federal funds will be used for the locally provided share of project costs, a copy of the statutory or regulatory authority for that use must be attached. The budget shall indicate that an appropriate amount has been included to cover design, plans, specifications and estimates, environmental mitigation, construction, construction management, real property acquisition, department administrative expenses, and other costs associated with development and implementation);

a map delineating the location or locations of the candidate project (The map should show project limits, highlight any areas of major work, and show all existing or proposed transportation facilities and associated real property);

photographs of the existing project site;

a site plan of the proposed construction and illustrations of the proposed work (If the candidate project is proposing restoration or rehabilitation work for a historic property, the site plan must include current and proposed floor plans for the property; the floor plan must indicate the proposed function to be served by each room);

if real property is to be acquired, a written commitment from the current real property owner must be provided and a description of how it is to be acquired (through purchase or donation), including estimated current fair market value and proposed funding arrangements (Fair market value of real property shall be established as of the date the purchase becomes effective or when equitable title to the real property vests in the public authority, whichever is earlier.);

if construction is proposed, a description of how it would be accomplished, including estimated cost;

(H)

a description of all expected benefits from the proposed enhancement, particularly those benefits pertaining to the surface transportation system (The description must include expected use of any facilities involved, and must compare current and projected demand for use of those facilities);

(I)

appropriate documentary evidence of community involvement in development of the proposed enhancement and public support for it (At a minimum, evidence submitted must include a description of any opportunities for public participation, including public meetings, that were included in the process of selecting candidate projects by the nominating entity and a resolution or other official document from all of the governing bodies of any public authority with jurisdiction over the area in which the project would be implemented. The supporting document should state the governing body's support for the implementation of the proposed project, its recommendation that it be considered for funding, and (when appropriate) its commitment to provide a share of allowable project costs. For activities in metropolitan areas, one of these documents must be from the governing body of the MPO for that area);

(J)

a plan covering the operation and maintenance of the facility created by or benefiting from the enhancement (The plan will identify all parties responsible for operation and maintenance, estimate the annual cost to operate and maintain the facility, describe the source of those funds, identify all expected operational income from the facility, and describe the intended use of that income);

(K)

documentary evidence that the environmental consequences of the proposed enhancement have been fully considered, and that the proposed enhancement will comply with all applicable local, state, and federal environmental laws, regulations, and requirements (The evidence required should include sufficient facts to allow the department to determine the necessity for environmental studies according to §§2.40-2.51 of this title (relating to Environmental Review and Public Involvement for Transportation Projects));

(L)

a written statement showing that the proposed enhancement is consistent with any long-range transportation plans for that area in which it would be implemented;

(M)

for any enhancement activity that would be implemented within a metropolitan area, a letter from the MPO stating that, should funding for the candidate project be made available, the MPO will include the candidate project in the TIP for that area if the candidate project has not yet been included; and

(N)

for projects proposing the acquisition, restoration, or rehabilitation of historic sites or properties, documentary evidence from the Texas Historical Commission that the property or site is currently listed in or eligible for listing in the National Register of Historic Places.

Complete nomination packages must be received by the department no later than the specified deadline published in the Texas Register.

Nominating entities proposing candidate projects calling for work in multiple metropolitan areas, cities, or counties must provide copies of the nomination documents to affected local public officials.

A nominating entity may submit a written statement of the relative priority ranking assigned by the nominating entity to that candidate project among all candidate projects nominated by that entity for consideration in response to the current call for project nominations.

All candidate project nomination packages become the property of the department. Nomination packages will be returned to the nominating entity only in cases where the nominating entity requests the return in writing after the completion of the project selection process for the current call for nominations.

§11.204.Selection of Projects for Funding.

Eligibility and technical screening.

The department will review each candidate project to determine eligibility for funding according to federal and state law and to determine that each candidate project will meet technical standards established by applicable law and accepted professional practice. In determining eligibility, the department will coordinate with FHWA. In determining technical sufficiency, the department will coordinate with appropriate state and federal agencies. Eligible candidate projects, together with the results of the technical review, will be submitted to the TEPEC as described in subsection (b)(1) of this section for evaluation of potential benefits.

The department will by certified mail, return receipt requested, notify the nominating entity of each ineligible activity proposed. This notification will include a statement explaining the proposed activities' ineligibility. A request for reconsideration of a finding of ineligibility may be initiated only by a letter from the nominating entity to the executive director setting forth reasons in support of a finding of eligibility. The letter requesting reconsideration must be received by the department no later than 15 days after the nominating entity received the department's notification, as established by the return receipt. The determination of the executive director in response to the request for reconsideration will be final.

Evaluation of project benefits.

The potential benefit of each eligible candidate project will be evaluated by an advisory committee, to be known as Transportation Enhancement Project Evaluation Committee (TEPEC). The members of TEPEC shall be:

the executive director of the department, or designee, who shall chair the committee;

the State Land Commissioner, or designee; and

the executive director, or designee, of each of the following state agencies: the Texas Department of Economic Development; the Texas Historical Commission; the Texas Parks and Wildlife Department; and the Texas Natural Resource Conservation Commission.

The TEPEC will meet at the call of the chair to consider and discuss the relationship to the surface transportation system and potential benefit of eligible candidate projects. After discussing the candidate projects, the committee will evaluate the function and impact of each project based on the quality of the project, the geographic scope of the project's benefits, and the project's transportation enhancement value. The TEPEC will prepare recommendations as to which projects are suitable for funding and provide these recommendations to the department.

The TEPEC will serve to advise the department of the benefit of candidate projects only and its decisions will in no way be binding on the ability of the commission to select from among all eligible candidate projects those projects approved for funding.

Selection.

The department will recommend for consideration by the commission a program of candidate projects. To assist the commission in its decisions concerning selection and funding, the department will, in addition to department staff recommendations, provide to the commission:

the list of all eligible candidate projects and any comments and recommendations from the TEPEC;

any other comments relevant to consideration of any candidate project for funding, including:

evidence of support and opposition for the candidate project;

any policy matters;

(ii)

(iii)

evidence of the commitment from the nominating entity to provide more than the minimum required non-federal share of allowable project costs and their ability to do so;

(iv)

an evaluation of proposed projects indicating the extent to which each project will meet accepted standards as established by applicable law and by accepted professional practice;

(v)

the views, comments, and certifications of an MPO or a governing body of a city or county; and

(vi)

all other project specific information as appropriate.

The commission will select from among all eligible candidate projects those projects, if any, approved for funding. In selecting an eligible candidate project for funding, the commission will consider:

all information provided under paragraph (1)(A) and (B) of this subsection;

the potential benefit to the state of the candidate project; and

contribution of candidate projects to the safe, effective, and efficient movement of people and goods.

In evaluating the potential benefit to the state of the candidate project, the commission will consider, but is not bound by, recommendations and comments from the TEPEC.

The commission will, by written order, designate the selected projects and specify the rationale for selection.

The funds approved by the commission are a fixed amount. The nominating entity may seek additional funds through this program in subsequent program calls.

Candidate projects which are not selected must be resubmitted to receive consideration during subsequent program calls.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 1, 1999.

TRD-9901221

Richard D. Monroe

Proposal publication date: November 13, 1998

For further information, please call: (512) 463-8630

Chapter 27. Toll Projects

Subchapter B. Texas Turnpike Authority

The Texas Department of Transportation adopts the repeal of §§27.20-27.26, and new §§27.11-27.20, concerning projects of the Texas Turnpike Authority Division. Repealed §§27.20-27.26 and new §§27.11-27.20 are adopted without changes to the proposed text as published in the January 1, 1999, issue of the Texas Register (24 TexReg 120) and will not be republished.

EXPLANATION OF ADOPTED 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 being repealed because they are no longer necessary due to the 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.

Sections 27.22-27.23 are being replaced with new §§27.13-27.14, 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.

COMMENTS

No comments were received on the proposed repeals or new sections.

43 TAC §§27.11-27.20

The new sections are adopted 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 1, 1999.

TRD-9901219

Richard D. Monroe