Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 5.
FINANCE
Subchapter D. PAYMENT OF FEES FOR DEPARTMENT GOODS AND SERVICES
43 TAC §5.43, §5.44
The Texas Department of Transportation adopts amendments
to §5.43 and §5.44, concerning the payment of fees for department
goods and services. The amendments are adopted without changes to the text
as proposed by publication in the December 29, 2000, issue of the Texas Register
(25 TexReg 12926), and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Transportation Code, §201.208 authorizes the commission to adopt rules
regarding the method of payment of a fee for any goods sold or services provided
by the department or for the administration of any department program. Pursuant
to that authority, the commission has adopted §§5.41-5.44 to include
a requirement that a person paying a fee by credit card also pay a $1.00 service
charge.
Section 23.27 of the department's rules prescribes requirements for the
sale of travel promotional materials by the department through
Texas Highways
, including requirements relating to payments. Section
23.27 does not require the payment of a service charge for a credit card payment.
Fees for subscriptions to
Texas Highways
and
single issues of
Texas Highways
also do not
include a service charge, and are processed directly by the magazine. Payments
by check or money order are made payable to Texas Highways, instead of the
department. Payments by credit card may be for a lesser or greater amount
than the minimum and maximum amounts prescribed by §5.43.
The cost of
Texas Highways
and products
sold through
Texas Highways
are publicized
to readers and customers through
Texas Highways
and other methods. Charging an additional service charge to customers will
increase the publicized price of those products and the magazine, which may
result in an adverse impact on sales and revenues.
Section 5.43 is amended to clarify the requirements for payments for subscriptions
to and single issues of
Texas Highways
. The
amendments specify that minimum and maximum charges for payments by credit
card do not apply, nor is there a requirement for a $1.00 service charge if
paying by credit card. Payments by check or money order for subscriptions
to or single issues of the magazine are payable to Texas Highways.
Section 5.44 is amended to specify that the requirements of Subchapter
D of Chapter 5 (§§5.41-5.44) do not apply to the payment of fees
for products sold through
Texas Highways
.
That section is also restructured to improve its readability.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
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, more specifically, Transportation Code, §201.208, which authorizes
the commission to adopt rules regarding the method of payment of a fee for
any goods sold or services provided by the department.
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 February 23, 2001.
TRD-200101119
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: March 15, 2001
Proposal publication date: December 29, 2000
For further information, please call: (512) 463-8630
Subchapter C. CONTRACTING FOR ARCHITECTURAL, ENGINEERING, AND SURVEYING SERVICES
43 TAC §§9.31, 9.33-9.38, 9.41-9.43
The Texas Department of Transportation adopts amendments
to §§9.31, 9.33-9.38, and 9.41-9.43, concerning contracting for
architectural, engineering, and surveying services. The amendments are adopted
without changes to the text as proposed by publication in the December 29,
2000, issue of the
Texas Register
(25 TexReg
12927), and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The amendments are needed to streamline procedures for selection, negotiation,
management, and evaluation of contracts with architects, engineers, and surveyors.
Accordingly, §§9.31, 9.33-9.38, and 9.41-9.43 are amended for readability
and substance.
An amendment to §9.31 adds a definition for "Interview and Contract
Guide."
Amendments to §9.33(a) require that initial notices advertising the
contract include the selection criteria used by department selection committees
to reduce the long list to the short list.
Amendments to §9.33(b) revise letter of interest requirements by limiting
its length to no fewer than three pages and no more than five pages plus attachments.
The Consultants Review Committee (CRC) chair or his designee may authorize
a variance from this restriction, and the notice must specify the number of
pages. The CRC chair may designate approval authority to a staff member having
a title of office director or higher. Attachments are to be used only to provide
precertification information. The contents of the letter of interest are revised
to eliminate the team capabilities information and to require information
addressing selection criteria as well as the name and contact information
for provider references.
Amendments to §9.34 address how the short list is determined. The
composition of a Consultant Selection Team (CST) is revised to allow a managing
officer to designate at least one other (instead of only one) department employee.
Amendments to this section also allow a CST to compile a long list of providers
based upon letters of interest meeting precertification requirements of §9.33.
The CST then determines the short list of providers by evaluating each letter
of interest on the long list using the advertised evaluation criteria. Amended
evaluation criteria include project understanding and approach; the project
manager's experience with similar projects; major work categories' task leaders'
experience with similar projects; and other criteria approved by the CRC chair
or designee not below an office director title. Criteria using past performance,
team capabilities, and general project-related experience have been eliminated.
Amendments to §9.34(f) enhance readability of instructions for individual
and multiple contract selections.
Section 9.34(g) is amended to instruct the department to furnish an Interview
and Contract Guide to short-listed firms along with any additional required
information and the deadline for submission.
In addition to enhancing readability, amendments to §9.35 provide
guidance on the use of an interview in place of a proposal. The amendments
give contract managers flexibility to proceed with written proposals or interviews
or both. If a written proposal will be required, the managing office will
give an RFP to the short list of providers. The RFP will specify if interviews
will also be conducted and include the interview format and requirements.
Proposal evaluation criteria are revised to allow a CST to use performance
scores from other department contracts or references from department or other
sources if interviews are not required. This amendment also eliminates "unique
or innovative methods of approaching the proposed work" as an evaluation criterion.
Section 9.36 is amended to introduce the required use of an Interview and
Contract Guide when interviews are used instead of written proposals. This
guide describes the interview format and the content and subject matter of
any required presentation. The contract scope of services is described and
other contract documents identified. The CST is authorized to evaluate the
provider as a whole rather than just the interview. Evaluation criteria are
revised to allow a CST to use performance scores from other department contracts
or references from department or other sources and to consider responses to
interview questions. "Unique or innovative methods of approaching the proposed
work" is no longer an evaluation criterion.
Section 9.37 is amended to allow the CRC chair rather than the committee
to approve a 10-day extension of the negotiation process. It is also amended
to allow the CRC chair rather than the executive director or deputy executive
director to approve a unique negotiating schedule for multiple contract selections.
The stipulation that large corridor development projects be the sole requirement
for unique negotiating status is deleted.
Section 9.37(g)(3) is amended to address situations where the department
cannot negotiate a satisfactory contract with the selected provider within
the allotted time period. The amendment enhances readability and allows managing
officers involved in a single contract selection to end unsuccessful negotiations
with the selected provider and to begin negotiations with the next highest
ranked provider through the third highest ranked provider. If a contract still
cannot be negotiated, the contract will be canceled subject to readvertisement.
Managing officers involved in multiple contract selections will begin negotiations
with the next highest provider within the acceptable range of scores as required
by §9.39. If a contract cannot be negotiated with any of the providers
included in the acceptable range of scores, the contract will be canceled,
subject to readvertisement.
Section 9.38 is revised for readability and to authorize the CRC chair,
rather than the committee, to authorize a subprovider to perform a higher
percentage of work than the prime provider. Instead of being the person requesting
the contract, the department's project manager is identified as being designated
by the managing officer.
Amendments also revise the provider performance evaluation requirements
of §9.38(g). The original section is amended in its entirety to allow
the department to document a prime provider's demonstrated competence and
qualifications through required and optional performance evaluations of the
project manager as well as the firm. The project manager will be evaluated
in the categories of management, innovation, quality, and timeliness. The
firm will be evaluated in the categories of cost administration and the firm's
expertise. Evaluation of a subprovider's performance is optional but may be
conducted upon completion of work by the subprovider, exemplary performance,
if it is delaying progress or completion of the work, or if work is not being
performed in accordance with the terms of the contract.
Section 9.41 is revised to eliminate the annual renewal of provider and
subprovider precertification and to allow providers and subproviders to report
changes 45 days after the change occurs.
Section 9.42 is revised to clarify that a provider/subprovider may submit
information for administrative qualification before or after selection but
before contract execution. The 8th floor location of the Audit Office is deleted
in light of a pending move and because it is not critical to the address.
The amendment also specifies that the time period covered by an overhead rate
audit can include the 18 months prior to selection rather than the most recently
completed fiscal year. The amendment further specifies that the department
will consider current salary ranges as well as salaries by classification.
Section 9.43 is revised to add subsurface utility engineering to the work
categories in the precertification process.
COMMENTS
The Design Division received two comments on the proposed amendment to
Chapter 9, Subchapter C. Neither comment will require a change in the language
of the proposed amendment.
Comment: Mr. Steve Stagner, Executive Director of the Consulting Engineers
Council of Texas, indicated support of the amendments and commended TxDOT
for taking steps to streamline the precertification selection process, improve
the consistency in the letter of interest, provide greater subjectivity in
the shortlisting process, and modify the use and function of the consultant
contract database.
Response: No TxDOT response required.
Comment: The City of Amarillo expressed concern that TxDOT's ability to
select providers with proven ability to provide the best, most expeditious,
and cost effective service might be adversely affected by striking all references
to consideration of past performance scores in the consultant contract database.
The City of Amarillo further stated that using past performance scores for
previous TxDOT or other entities' work is a way to determine if the prime
provider has adequately met project requirements for the past three years.
Providers that don't receive good performance scores should be dropped from
consideration for new work for a period of time or until they demonstrate
an ability to provide a high level of service.
Response: The department does agree with the city regarding the importance
of using past performance scores as a selection criterion in order to select
the best, most expeditious, and cost effective services. However, TxDOT disagrees
with the city's comment that the proposed rule strikes all references to consideration
of past performance scores in the consultant contract database. The proposed
amendment to §9.34(d)(1) will eliminate the use of past performance scores
in the TxDOT consultant contract database as an evaluation criteria of a provider's
letter of interest, but TxDOT will use past performance scores in the evaluation
of short list provider proposals (amendment to §9.35(e)(4)) or interviews
(amendment to §9.36(d)(5)).
Regarding the city's recommendation to drop non-performing firms for a
period of time, the department does not want to limit competition at this
stage and wants to maximize the number of firms competing for work. The department
is confident that the selection procedure will identify the most competent
and qualified firm.
TxDOT will continue to use past performance as an evaluation criterion
to select qualified and competent firms. The department will not be adversely
affected by the amendments.
STATUTORY AUTHORITY
The amendment is 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 more specifically, Government Code, Chapter 2254, Subchapter A, which
sets forth requirements governing the procurement of professional services.
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 February 23, 2001.
TRD-200101121
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: March 15, 2001
Proposal publication date: December 29, 2000
For further information, please call: (512) 463-8630
Subchapter C. UTILITY ACCOMMODATION
Chapter 9.
CONTRACT MANAGEMENT
Chapter 21.
RIGHT OF WAY