Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 2.
ENVIRONMENTAL POLICY
Subchapter D. PUBLIC PARTICIPATION PROGRAMS
43 TAC §2.62, §2.65
The Texas Department of Transportation proposes amendments
to §2.62 and §2.65, concerning the Landscape Cost Sharing Program.
EXPLANATION OF PROPOSED AMENDMENTS
The amendments are necessary to expand participation in the landscape cost
sharing program that is available to eligible private and business entities.
Currently, in order to participate, a private business or civic organization
may share in the cost of the landscape project through the local government.
The amendments authorize these entities to participate directly with the department
in the cost, materials, and labor of the landscaping.
Amendments to §2.62 define the word "donation" and revise various
terms to improve the readability of the rules and accomplish the purpose of
this rulemaking.
The amendments to §2.65: (1) authorize a private business or civic
organization to participate either as a donor through the local government
or as a non-governmental donor providing a donation directly to the department
if the business or organization is located in the county or county adjacent
to the county in which the project is located; (2) extend the program's requirements
to the private business or civic organization donor, and remove the requirement
that the project must be coordinated through a local government; (3) provide
that more expensive or extra signage may, if approved by the department, be
included in the project at the expense of the donor or local government; and
(4) provide that the department will process a donation received directly
from a private entity or civic organization in accordance with the department's
rules governing the acceptance of donations.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the amendments are in effect, there will be a reduction in
costs to state and local governments as a result of enforcing or administering
the amendments. Private or civic participation in the program will reduce
or be in addition to the landscape expenditures made by the state and local
governments. The estimated reduction in costs cannot be determined with any
specificity because it depends on the number, size, location, type, and number
of projects participated in by the private business or civic organizations.
No person is required to participate in the program; however, for persons
who choose to participate in the program, there may be anticipated costs.
These expenses cannot be determined because they depend upon the size, type,
and location of the project.
Kenneth Bohuslav, P.E., Director, Design Division, has certified that there
will be no significant impact on local economies or overall employment as
a result of enforcing or administering the amendments.
PUBLIC BENEFIT
Mr. Bohuslav has also determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing or administering the amendments will be to enhance the aesthetic
landscaping of the department's transportation system by allowing private
and business entities to provide donations directly to the department. There
will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments to the sections may be submitted
to Kenneth Bohuslav, P.E., Director of the Design Division, 125 East 11th
Street, Austin, Texas 78701-2483. The deadline for receipt of comments is
5:00 p.m. on May 13, 2002.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §203.002, which authorizes
the department to lay out, construct, maintain, and operate a modern state
highway system.
No statutes, articles, or codes are affected by the proposed amendments.
§2.62.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1) - (10)
(No change.)
(11)
Donation--A contribution of anything
of value given to the department.
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
§2.65.Landscape Cost Sharing Program.
(a)
(No change.)
(b)
Participation.
(1)
Eligible entities
[
[
(A)
as a donor through the local government
[
(B)
as a non-governmental donor by providing
donations directly to the department if the donor is located in the county
or a county adjacent to the county in which the project site is located.
(2)
Compliance with other rules. The department
will process a donation under paragraph (1)(B) of this subsection in accordance
with the requirements of Chapter 1, Subchapter G of this title (relating to
Donations). If a provision of this section conflicts with a provision of Chapter
1, Subchapter G of this title, this section will prevail.
(3)
Sign.
The
local government or
donor will receive recognition of the donation by the erection, at
the project site, of a sign announcing participation by the donor in the Program.
[(B)
A private business or civic organization
is eligible to participate in the Program as a donor if the business or civic
organization is located in the county or a county adjacent to the county in
which the project site is located.]
(c)
Application.
(1)
A local government
or donor that
[
(2)
The application shall be in the form prescribed by the
department and shall at a minimum include:
(A)
the date of application;
(B)
the name, telephone number, and complete mailing address
of the local government
or donor
;
(C)
the highway section the local government
or donor
is interested in developing;
(D)
the project concept plan, containing sketches, drawings,
estimates, specifications, and descriptive text as may be required by the
department to evaluate the project under required general, site, and design
considerations, to determine the proposed design intent, and to estimate the
amount of department participation; and
(E)
a statement, chart, or spreadsheet based on the project
concept plan, which illustrates the recommended responsibilities of the department
and the local government and, if applicable, the donor (this statement, chart,
or spreadsheet shall contain fully itemized cost figures for each portion
of the project as may be required for the department to evaluate the recommended
fair-market values for acceptable material and services proposed [
(d)
Conditions. In order to participate in the Program, each
project must meet the department's approval under general, site, and design
considerations.
(1)
General considerations. Normally, work on state highway
right-of-way will be performed by state forces or by contractors selected
and administered by the department. An exception will be granted to allow
a
local
government or donor
[
(A)
A local government
or donor
may participate
in the joint beautification of the existing state highway system subject to
the following restrictions.
(i)
If the project is determined by the department to be a
highway-landscaping project, the department will evaluate accepting labor,
equipment, materials, design services, and cash as the [
(ii)
If the project is determined by the department to be a
pedestrian landscaping project, the department's participation will be limited
to furnishing materials only for [
[(iii)
It shall be the local government's
responsibility to secure and coordinate labor, equipment, materials, design
services, and cash if the project is initiated by a donor.]
(B)
Unless waived by the department
,
projects shall
exceed $25,000 if constructed by the department.
(C)
The cost of any previous work by the local government
or donor
shall not be included as a portion of the contribution toward
the project.
(D)
For a project to be evaluated by the department for work
under the Program, the minimum value of acceptable non-cash contributions
plus cash contributions by the local government
or donor
must equal
or exceed $2,500.
(E)
If the department is to provide material [
(F)
If the department is to provide for the construction of
any portion of the project, applicable statutes, rules, and procedures relating
to scheduling, processing, and administering a highway improvement project
through the department's highway letting process will apply.
[(G)
Projects must be coordinated by the local
government, although numerous entities may be supporting the local government's
efforts.]
(2)
Site considerations. For sites [
(A)
not be scheduled for future construction as defined within
the department's current unified transportation plan which would conflict
with the activities proposed on the project;
(B)
contain sufficient right-of-way to reasonably permit planting
and landscaping operations without conflicting with safety, geometric, and
maintenance considerations;
(C)
not contain overhead or underground utilities, driveways,
pavement, sidewalks, or highway system fixtures including traffic signage
or signalization which will conflict with the planting or landscaping operations
proposed under the project; and
(D)
not obstruct or interfere with existing drainage conditions
along the site.
(3)
Design considerations. For sites [
(A)
The project design, as shown on the project concept plan,
must be acceptable to the department.
(B)
Unless otherwise approved by the department, the project
design may not include the following design elements:
(i)
plant material or fixtures which, in the opinion of the
department, require an intensive level of continued establishment and maintenance
in order to assure the effectiveness and function within the design;
(ii)
flagpoles or pennant poles;
(iii)
fountains or water features; and
(iv)
statuary, sculpture, or other art objects.
(C)
The following items, if considered by the department as
an acceptable element of the project design plan, may not be included as a
contribution cost, and will not be furnished or installed by the department:
(i)
benches and pedestrian seating;
(ii)
pedestrian or historic lighting or illumination systems;
and
(iii)
trash or refuse receptacles.
(D)
The local government
or donor
must fully illustrate
the recommended division of responsibilities as necessary for the department
to evaluate the proposed manner of project implementation, establishment,
and maintenance if applicable. The illustration of recommended project responsibilities
shall at a minimum include:
(i)
preparing the project design plan, provided that the cost
of providing the project design plan for a pedestrian landscaping project
shall be the sole responsibility of the local government
or donor
,
and shall not be included as a portion of
its
[
(ii)
furnishing and installing required material; and
(iii)
performing project establishment and maintenance, if
required, provided that the cost of performing project establishment and maintenance
on a pedestrian landscaping project shall be the sole responsibility of the
local government
or donor
and shall not be included as a portion
of
its
[
(E)
The local government
or donor
must fully itemize
and document the proposed cash and non-cash contribution available to support
the project. This itemization and documentation shall include at a minimum
the following items:
(i)
amount of cash to be provided to the department;
(ii)
non-cash value of each individual item of material to
be furnished by the local government
or donor
;
(iii)
cost of each individual item or material to be furnished
by the department;
(iv)
non-cash value of labor and equipment necessary to install
each individual item of material if performed by the local government
or donor
;
(v)
cost of installing each individual item of material if
performed by the department; and
(vi)
non-cash value of the project design plan if furnished
by the local government
or donor
, provided the maximum acceptable
non-cash value of furnishing the project design plan, based upon the selected
project cost, including project establishment and maintenance for highway
landscaping projects and excluding project establishment and maintenance for
pedestrian landscaping projects, shall not exceed 8.5% for projects up to
and including $200,000, and 7.5% for projects greater than $200,000.
(e)
Amount of departmental participation.
(1)
Highway landscaping projects within the existing city limits
of a city. The department, after approving the project under general, site,
and design considerations, will participate in up to 50% of the total cost
of the project including project establishment and maintenance, and preparation
of the project design plan.
(2)
Pedestrian landscaping within the existing city limits
of a city. The department, after approving the project under general, site,
and design considerations, will participate by furnishing material only up
to but not exceeding 50% of the total cost of project development, excluding
project establishment and maintenance and the preparation of the project design
plan.
(3)
Highway landscaping projects outside the existing city
limits of a city. The department, after approving the project under general,
site, and design considerations, will participate in up to 50% of the total
project development, establishment, maintenance and design cost.
(4)
Pedestrian landscaping projects outside existing city limits.
Unless otherwise approved, the department will not participate in the cost
of these projects under the Program.
(f)
Agreement.
(1)
If the proposed project as submitted under subsection
(c)
[
(2)
The agreement shall be in the form prescribed by the department
and shall at a minimum include the following terms.
(A)
The project design plan, when furnished by the local government,
shall consist of plans, sketches, drawings, notes, estimates, and specifications
as required by the department.
(B)
Any changes to the agreement shall be enacted by written
amendment.
(C)
The
parties
[
(D)
The
[
(E)
Violation or breach of contract terms [
(F)
The local government
or donor
and its contractors,
if any, shall to the extent provided by law, furnish certificates of insurance,
guarantees of self insurance if appropriate, and indemnification as may be
prescribed by the department.
(G)
The local government
or donor
shall provide,
erect, and maintain to the satisfaction of the department any barricades,
signs, and traffic handling devices necessary to protect the safety of the
travelling public while performing any work on the project.
(H)
The department's employees shall not accept any benefits,
gifts, or other favors [
(3)
The agreement shall include the funding arrangement and
payment schedule [
(g)
General limiting conditions and eligibility. Because of
administrative, legislative, and financial constraints, the Program shall
be subject to the following terms.
(1)
The department will consider such factors as width of right-of-way,
geometrics, congestion, sight-distance, and maintenance requirements in determining
the acceptability and/or amount of departmental participation in any proposed
project.
(2)
Signage for the Program shall be four feet by four feet
and shall be the least expensive and most effective for each situation.
Exceptions to the standard signage must be approved by the department to ensure
the safety of the traveling public. All costs associated with non-standard
signage shall be paid by the local government or donor and shall not be included
as a portion of its contribution toward the project.
(3)
Work under the Program shall not be combined with any other
landscape-related programs sponsored by the department.
(4)
If any actions are determined to be contrary to any legislative
restrictions or any restrictions on the use of appropriated funds for political
activities, the department shall have the right to take any and all necessary
remedial actions, including, but not limited to, the removal of the signs
displaying the local governmental entity's or donor's name.
(h)
Modification/termination of agreement. The agreement as
cited in subsection (f) of this section may be modified in any manner at the
sole discretion of the department.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201963
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
Subchapter A. GENERAL
43 TAC §9.4
The Texas Department of Transportation proposes the amendment
of §9.4, concerning Civil Rights-Title VI Compliance.
EXPLANATION OF PROPOSED AMENDMENT
Title VI of the Civil Rights Act of 1964, as amended by the Civil Rights
Restoration Act of 1987, codified at 42 USC Section 2000d, and the Federal
Aid Highway Act of 1968, codified at 23 USC Section 140, require the department
to ensure that entities receiving federal funds from the department comply
with the non-discrimination requirements of the Act. The department is also
required to ensure that public or private entities that perform federally
assisted contracts have implemented an equal employment opportunity program
that meets federal requirements. The proposed change specifies how the department
meets these requirements.
The proposed revision clarifies the role that the department performs in
ensuring that contractors and other recipients of federal funds satisfy their
Title VI obligations.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the amendments are in effect, there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
amended sections. There are no anticipated economic costs for persons required
to comply with the amendments as proposed.
Jana Nava, Director, Office of Civil Rights, has certified that there will
be no significant impact on local economies or overall employment as a result
of enforcing or administering the amendments.
PUBLIC BENEFIT
Ms. Nava has also determined that for each year of the first five years
the amendments are in effect, the public benefit anticipated as a result of
enforcing or administering the amendments will be to provide clarification
regarding the obligations to contractors and other recipients of federal funds
with regards to Title VI compliance. There will be no adverse economic effect
on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Richard
Monroe, General Counsel, 125 East 11th Street, Austin, Texas 78701-2483. The
deadline for receipt of comments is 5:00 p.m. on May 13, 2002.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by the proposed amendments.
§9.4.Civil Rights--Title VI Compliance.
The department will monitor the operations of
recipients and subrecipients
of federal funds from the department to ensure compliance with department
policy implementing
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201964
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
The Texas Department of Transportation proposes the repeal of §§9.6-9.8
and simultaneously proposes new §§9.100-9.110, concerning contractor
sanctions.
EXPLANATION OF PROPOSED REPEALS AND NEW SECTIONS
The Texas Department of Transportation's contractor sanction rules set
forth the circumstances under which contractors may be sanctioned and the
procedures that must be followed.
Section 9.6, governing debarment of contractors, was adopted in April 1982.
Section 9.7, governing suspension of contractors, was adopted in August 1982.
Section 9.8, governing supplemental procedures for debarment and suspension,
was adopted in November 1982. Sections 29.21 to 29.26, governing the imposition
of sanctions on maintenance contractors, were adopted in 1998. These various
provisions, adopted at different times, contain provisions that overlap and
duplicate each other unnecessarily. As a result, the existing rules are both
long and confusing.
The repeals and new sections are proposed for several reasons. First, the
revisions integrate rules that are now scattered in several chapters into
a single set of rules applicable to all highway improvement contractors. Second,
the proposed rules are reorganized and rewritten to be clearer, shorter, and
easier to understand. The proposed rules are almost half as long as the former
rules. Third, the proposed rules permit contractors to be sanctioned if they
fail to honor a bid guaranty or if the commission rejects bids twice in three
years for contractor error; these provisions are intended to address recurring
and potential problems for which there is now no adequate remedy.
The following table identifies the source for each new subsection.
Figure: 43 TAC Chapter 9 - Preamble
Except as noted, the revisions are nonsubstantive in nature.
In §9.101(4) the concept of a business affiliate, now incorporated
in the definition of contractor, is drawn primarily from the definition of
affiliate in §29.22(1). It has been expanded with additional examples
of facts that may be relevant in a particular case.
In §9.101(8) the definition of sanction is expanded to include the
suspension of a contractor. This change is part of the effort to consolidate
the rules into a single set of procedural requirements that will be easier
for contractors to understand and for the department to administer.
Section 9.101(11) differentiates suspension from debarment. Former §9.6
and §9.7 contain identical definitions for the two concepts. The rules
now clarify that suspension is temporary and immediate, while debarment may
be for a longer period, but can only be imposed after a full hearing.
Section 9.102(b) now includes a sentence to make clear that if a contractor
does not receive a copy of the sanction rules, that will not be a defense
to an alleged violation of the rules.
Section 9.104(d) provides the commission with maximum flexibility in assessing
sanctions to guard against unfairness. In every case the commission will have
the authority to impose a sanction that is less severe in duration or kind
than the maximum sanction authorized.
The former rules give contractors the right to petition the commission
at any time for a reduction or modification of a sanction. This provision
is eliminated to prevent a contractor from filing repetitive petitions.
The former rules provide for suspension if a contractor is indicted on
a charge of a bidding crime or is named as a defendant in a state antitrust
case. These provisions are eliminated to avoid imposing a sanction based solely
on an allegation of wrongdoing by another entity.
Section 9.107 creates a new ground for debarment, the failure to execute
a contract after a bid is awarded and to honor a bid guaranty. This violation
is created to address the serious and recurring problem of bidders who repeatedly
refuse to execute contracts after winning bids. No violation will be found
if a bid guaranty is honored. In addition, under §9.104(b) all mitigating
factors will be considered before a sanction is imposed. In particular, payments
by the contractor or by any other entity to cover the department's costs will
be considered in mitigation of any sanction. As with all sanctions, the commission
may choose to impose a sanction that is less severe than the maximum permitted.
Section 9.108 creates a new ground for debarment, the repeated rejection
of a contractor's bids because of contractor errors. This violation is created
to ensure that contractors do not submit bids with significant errors that
could and should have been discovered before the bid was submitted. Under §9.104(b)
all mitigating factors will be considered before a sanction is imposed, and
the commission may choose to impose a sanction that is less severe than the
maximum permitted.
Section 9.109 restates the former rule that a contractor must notify the
commission if it is debarred elsewhere or convicted of a bidding crime. The
former rule, however, did not have a sanction associated with a violation
of this requirement. The sanction is set in §9.109(b) at a maximum debarment
of 12 months. Because a sanction may be imposed for a violation of this provision,
its coverage is limited to debarment by another state or by an agency of the
federal government.
Section 9.110 governs performance defaults by contractors. The former rules
apply this violation to maintenance contracts, but not to other highway improvement
contracts. The proposed rule would apply the same standards to all highway
improvement contracts to address the recurring problem of major defaults by
highway improvement contractors. As with all other violations, the commission
will consider all relevant circumstances regarding mitigation before imposing
any sanction and may impose a sanction that is less severe than the maximum
provided by the rules.
The former maintenance rules provided that sanctions would not be imposed
for a default that is beyond the control of the contractor. This provision,
while expressing the intent of the department, might encourage litigation
inappropriately. The question of fault is better considered along with all
other mitigating circumstances.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the repeals and new sections are in effect, there will be
no fiscal implications for state or local governments as a result of enforcing
or administering the repeals and new sections. There are no anticipated economic
costs for persons required to comply with the sections as proposed.
Thomas Bohuslav, P.E., Director, Construction Division, has certified that
there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the repeals and new sections.
PUBLIC BENEFIT
Mr. Bohuslav has also determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing or administering the repeals and new sections will be to further
the department's mission to provide an efficient and fair process of administering
contractor sanctions. There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeals and new sections may be submitted
to Thomas Bohuslav, P.E., Director, Construction Division, 125 East 11th Street,
Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m.
on May 13, 2002.
Subchapter A. GENERAL
43 TAC §§9.6 - 9.8
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in the offices
of the Texas Department of Transportation or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by the proposed repeals.
§9.6.Procedure for Debarment of a Contractor.
§9.7.Procedure for Suspension of a Contractor.
§9.8.Supplemental Procedures for Suspension or Debarment of a Contractor.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201965
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
43 TAC §§9.100 - 9.110
STATUTORY AUTHORITY
The new sections are proposed under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by the proposed new sections.
§9.100.Purpose.
It is the policy of the Texas Transportation Commission to protect
the health, welfare, and safety of the traveling public and the state's substantial
investment in its system of state highways. This requires procedures to ensure
that only responsible contractors are eligible to bid on, enter, and subcontract
under highway improvement contracts and that those contracts are fully performed
in an efficient and timely manner.
§9.101.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Bidding capacity - An amount calculated in accordance with §9.12
of this chapter (relating to Qualification of Bidders).
(2)
Bidding crime - An act prohibited by state or federal law,
committed in any jurisdiction, and involving fraud, conspiracy, collusion,
perjury, or material misrepresentation with respect to a public contract.
(3)
Commission - The Texas Transportation Commission.
(4)
Contractor - An entity that is eligible to bid on a highway
improvement contract or that functions or seeks to function as a subcontractor
under a highway improvement contract or as a supplier of materials or equipment
to be used in the construction or maintenance of a part of the state highway
system. The term includes an affiliated entity, which is an entity so closely
associated with another entity that the two entities will be treated as a
single entity. Affiliation may be found when one entity has the power to control
another entity, directly or indirectly; when a third party has the power to
control two or more other entities, directly or indirectly; when the owner
of one entity is a spouse or immediate family member of the owner of the other
entity; or when two entities have been so closely allied through an established
course of dealings (such as loans, joint ventures, common ownership, common
board members, common management, or joint advertising) that the public would
reasonably perceive the two entities as under common control.
(5)
Debarment - Disqualification of a contractor from bidding
on or entering into a highway improvement contract, from participating as
a subcontractor under a highway improvement contract, and from participating
as a supplier of materials or equipment to be used in the construction or
maintenance of a part of the state highway system.
(6)
Executive director - The executive director of the Texas
Department of Transportation or the director's designee not below the level
of assistant executive director.
(7)
Highway improvement contract - A contract entered under
Transportation Code, Chapter 223, Subchapter A, or under Transportation Code,
Chapter 361, for the construction, reconstruction, or maintenance of a segment
of the state highway system, or for the construction or maintenance of a building
or appurtenant facility.
(8)
Maintenance contract - A highway improvement contract for
maintenance work on a segment of the state highway system.
(9)
Sanction - Debarment, suspension, or reduction in bidding
capacity.
(10)
Subcontractor - An entity to which a prime contractor
sublets or proposes to sublet a portion of a highway improvement contract.
(11)
Suspension - Immediate, temporary disqualification of
a contractor from bidding on or entering into a highway improvement contract,
from participating as a subcontractor under a highway improvement contract,
and from participating as a supplier of materials or equipment to be used
in the construction or maintenance of a part of the state highway system.
Suspension differs from debarment because it may take effect prior to and
during a hearing.
§9.102.Procedure.
(a)
Role of executive director. The executive director will
exercise all powers conferred on the commission in this subchapter with regard
to violations relating to specific maintenance contracts and sanction that
are limited to maintenance contracts.
(b)
Notification of rules. A copy of this subchapter will be
sent to each prequalified contractor. Failure to comply with this subsection
does not affect the applicability of this subchapter.
(c)
Notice of sanctions. The commission will notify a contractor
of a sanction by certified mail within five days of the decision to impose
the sanction. The notice will give the general reasons for the sanction, summarize
the facts and circumstances underlying the sanction, identify the effective
date and period of the sanction, and state that the contractor may petition
for a hearing within 10 days after receiving notice of the sanction. Except
as provided in §9.103 of this subchapter, a sanction is effective on
the date specified in the notice.
(d)
Contractual obligations unaffected. The imposition of sanctions
does not affect a contractor's contractual obligations or limit the commission's
contractual remedies.
(e)
Agreed modification of procedure. The procedure for considering
a sanction may be modified by agreement of the executive director and the
contractor.
(f)
Responsibility for acts of others. The conduct of an individual
or entity acting on behalf of a contractor may be imputed to the contractor.
§9.103.Opportunity for Hearing.
(a)
Availability of hearing. A contractor will be given the
opportunity for a hearing after receiving notice of a sanction. A contractor
may petition for a hearing as provided in §1.21 et seq. of this title
(relating to Procedures in Contested Cases). The petition must be filed within
10 days after the contractor receives notice of the sanction.
(b)
Stay of sanctions pending hearing. A sanction, except a
suspension, is automatically stayed from the date a petition for hearing is
filed until a final order is entered. On entry of a final order imposing the
sanction or dismissing the hearing, the full term of the sanction shall be
reinstated as if it were first imposed on the date of the final order unless
the commission specifically orders that a lesser sanction be imposed.
§9.104.Application of Sanctions.
(a)
Consecutive sanctions. In the case of multiple violations
of department contracts by the same contractor arising out of separate occurrences,
the commission may impose multiple sanctions consecutively and in any order.
(b)
Consideration of all circumstances. The existence of grounds
for imposing a sanction does not mandate that a contractor be sanctioned.
The seriousness of a contractor's acts or omissions and any mitigating circumstances
must be considered before sanctions are imposed.
(c)
Mitigating circumstances. The commission will consider
mitigating circumstances in deciding whether to impose sanctions. Mitigating
circumstances may include:
(1)
the contractor's culpability;
(2)
whether, in light of all facts and circumstances, a lengthy
debarment is necessary to protect the interest of the state;
(3)
restitution paid by the contractor or a third party for
damages suffered by a governmental entity as a result of the contractor's
actions;
(4)
cooperation by the contractor with a governmental entity
in the investigation of bidding crimes, including the provision of a full
and complete account of the contractor's involvement; and
(5)
the contractor's disassociation from individuals and firms
that have been involved in a bidding crime.
(d)
Imposition of lesser sanctions. A lesser sanction may be
imposed instead of the maximum sanction permitted. Debarment may be ordered
for a shorter time, bidding capacity may be reduced by a lesser percentage,
or a reduction in bidding capacity of any amount may be ordered instead of
debarment for any length of time.
(e)
Commission discretion. In the public interest the commission
may reduce, eliminate, or modify sanctions at any time.
§9.105.Suspension.
(a)
Grounds. The commission may immediately suspend a contractor
without a prior hearing if the contractor is notified of debarment under §9.106
of this subchapter.
(b)
Duration. A suspension will terminate when a final order
is entered after a hearing or when ordered by the commission.
§9.106.Bidding Crimes, Fraud, and Related Conduct.
(a)
Grounds. The commission may sanction a contractor for the
following reasons:
(1)
conviction of a bidding crime, a plea of guilty or nolo
contendere to a charge of a bidding crime, or a public admission to a bidding
crime, whether made by the contractor or by an individual or entity that acted
on behalf of the contractor;
(2)
conviction of the contractor for an offense indicating
a lack of moral or ethical integrity, such as bribery or payment of kickbacks
or secret rebates to agents of a governmental entity, if the offense reflects
on the business practices of the contractor;
(3)
commission of acts indicating a lack of moral or ethical
integrity and reflecting on the business practices of the contractor, if the
commission has probable cause to believe that the acts have been committed;
or
(4)
disqualification of the contractor by a state or by an
agency of the federal government for any of the reasons listed in this section.
(b)
Sanctions.
(1)
The appropriate sanction under this section is debarment
for no more than 36 months from the date debarment becomes effective, except
as provided in paragraphs (2) and (3) of this subsection.
(2)
Debarment under subsection (a)(4) of this section may be
for no more than the period of debarment established by the state or federal
agency on whose actions the debarment is based.
(3)
In a debarment proceeding against a contractor previously
debarred, the commission may order debarment of that contractor for an indefinite
period or for a specific term of any length.
§9.107.Failure To Honor Bid Guaranty.
(a)
Grounds. The commission may sanction a contractor if the
contractor fails to execute a highway improvement contract after a bid is
awarded and fails to honor a bid guaranty submitted under §9.14(d) of
this title (relating to Submittal of Proposal).
(b)
Sanctions.
(1)
For a first violation, the commission may debar the contractor
for no more than 12 months.
(2)
For a second violation within two years of the first violation,
the commission may debar the contractor for no more than 36 months.
§9.108.Failure To Execute Contract.
(a)
Grounds. The commission may sanction a contractor if the
commission rejects a bid by the contractor twice within a three-year period
because of contractor error.
(b)
Sanctions. For a violation of this section, the commission
may debar a contractor for no more than 12 months.
§9.109.Notice of Debarment in Other Jurisdictions.
(a)
Grounds. The commission may sanction a contractor if the
contractor fails to notify the executive director promptly that the contractor
was convicted of a bidding crime or debarred for any reason by a state or
by an agency of the federal government.
(b)
Sanctions. For a violation of this section, the commission
may debar a contractor for no more than 12 months.
§9.110.Performance Default.
(a)
Grounds. The commission may sanction a contractor if the
contractor is declared in default on a highway improvement contract.
(b)
Sanctions.
(1)
For a first default, the commission may impose a 50% reduction
in the contractor's bidding capacity for no more than 12 months.
(2)
For a second default within five years of the first default,
the commission may debar the contractor for no more than 12 months. After
the debarment period, the commission may impose a 50% reduction in the contractor's
bidding capacity for no more than 12 months.
(3)
For a third default within five years of the second default,
the commission may debar the contractor for no more than 36 months. After
the debarment period, the commission may impose a 50% reduction in the contractor's
bidding capacity for no more than 12 months.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 29, 2002.
TRD-200201967
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
43 TAC §§9.10, 9.11, 9.13, 9.14, 9.16 - 9.18
The Texas Department of Transportation proposes amendments
to §§9.10, 9.11, 9.13, 9.14, 9.16-9.18, concerning highway improvement
contracts.
EXPLANATION OF PROPOSED AMENDMENTS
Transportation Code, Chapter 223, Subchapter A, prescribes the method by
which the Texas Department of Transportation receives competitive bids for
the improvement of highways that are a part of the state highway system. Pursuant
to this authority, the commission has previously adopted §§9.10-9.20
to specify the process by which the department will award state highway improvement
contracts.
Section 9.10 is amended to provide that this subchapter applies to contracts
entered under Transportation Code, §361.231, concerning turnpike projects.
Transportation Code, §361.231 generally requires a contract for the construction
and maintenance of a turnpike project to be awarded under the same terms as
a non-tolled state highway improvement contract awarded under Transportation
Code, Chapter 223, Subchapter A. Senate Bill 342, 77th Legislature, 2001,
abolished the Board of Directors (board) of the Texas Turnpike Authority Division
(TTA) of the department. This abolishment allows for the more complete consolidation
of TTA with the department. The board had previously adopted rules governing
the award of contracts for the construction and maintenance of turnpike projects
(Chapter 53, Subchapter A). The Chapter 53 rules are similar to the department's
rules except that the department's rules are more up-to-date. By separate
rulemaking action, the department is proposing the repeal of the board's Chapter
53 rules.
Section 9.11 is amended to add the definition of "bid error." The term
is used in amendments described in subsequent sections. The definitions of
"building contract," "construction contract," and "maintenance contract" are
amended to include contracts entered under Transportation Code, §361.231,
concerning turnpike projects.
Section 9.13(e)(1)(B)(vi) is added to provide that a bidder having previously
submitted a bid containing an error that resulted in the rejection of the
bid by the commission is prohibited from receiving a proposal and rebidding
on the project once rescheduled. This additional reason for the non-issuance
of a proposal is necessary to protect the integrity of the competitive bid
process and provide disincentive for repeated contractor bid errors.
Section 9.14(d)(2) is amended to require that a bid bond submitted as a
proposal guaranty must include the name of the bidder in addition to bearing
the impressed seal of the surety company and including signatures of the bidder
and authorized representative of the surety company. This additional bid bond
form requirement is necessary to document the parties associated with the
obligations attendant to the bond.
Provisions previously located at §9.18(b)(2) concerning the return
of the proposal guaranty to bidders other than the apparent low bidder have
been moved to new §9.16(d). This subsection is further amended to clarify
that only check or money order proposal guaranties will be returned while
bid bonds will be retained by the department. Section 9.18(b)(1) is similarly
amended to remove redundant references to the apparent low bidder and contract
award. These revisions provide clarification and better chronological perspective
of events as the return of the bid guaranty check or money order to unsuccessful
bidders occurs prior to contract award.
Section 9.16 is further amended with the addition of a new subsection (e)
to address situations in which a bidder asks to withdraw its bid due to a
bid error. This new subsection provides that the commission will consider
alleged bid errors for the apparent low bidder where certain notification
requirements and criteria are satisfied. In order to be considered, the apparent
low bidder must submit written notification of an alleged bid error to the
department within five business days after the date proposals were opened.
A bid error will be determined to exist if the alleged error relates to a
material item of work, is a significant portion of the total bid, occurred
despite the contractor's exercise of ordinary care in bid preparation, and
will not have a significant impact on the cost and safety to the public due
to delay in project completion.
These revisions are necessary to allow the commission to address those
situations in which it would be inequitable to award a contract to a bidder
who has submitted an erroneous bid.
In order to be consistent with the department's delegation of authority
with regard to awarding contracts, §9.16(e)(3) is added to provide that
the executive director or the director's designee may make the determination
of the existence of a bidding error for those projects estimated to involve
less than $300,000.
Section 9.17(a)(5) is added to provide that the commission will reject
all bids if the low bid is determined to contain a bid error meeting the criteria
previously listed.
Section 9.17(e) is added to provide the commission the authority to defer
the award or rejection of a contract to the next regularly scheduled commission
meeting in those instances where additional information is needed for award
or rejection determination. This provision will ensure that the commission
has enough information to give the decision to award or reject adequate consideration.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for each of
the first five-years the amended sections are in effect, there will be no
fiscal implications for state or local governments as a result of enforcing
or administering the amended sections. There are no anticipated economic costs
for persons required to comply with the sections as proposed.
Thomas Bohuslav, P.E., Director, Construction Division, has certified that
there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the amended sections.
PUBLIC BENEFIT
Mr. Bohuslav has also determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing or administering the amendments will be to further the department's
mission to provide an efficient and fair process for awarding state highway
improvement contracts. There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Thomas
Bohuslav, P.E., Director, Construction Division, 125 East 11th Street, Austin,
Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on May
13, 2002.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §§223.001-223.013, which
require the Texas Department of Transportation to competitively bid state
highway improvement contracts.
No statutes, articles, or codes are affected by the proposed amendments.
§9.10.Purpose.
The sections under this subchapter prescribe the policies and procedures
governing bidder qualification, bidding, award, and execution of a contract
entered under Transportation Code, Chapter 223, Subchapters A-C
or Transportation
Code, §361.231
.
§9.11.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Alternate bid item - A bid item identified by the department
as an acceptable substitute for a regular bid item.
(2)
Available bidding capacity - Bidding capacity less uncompleted
work under contract.
(3)
Bidder - An individual, partnership, limited liability
company, corporation or any combination submitting a proposal.
(4)
Bid error - a mathematical
mistake by the prime contractor in the unit bid price entered in the proposal.
(5)
[
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
§9.13.Notice of Letting and Issuance of Proposals.
(a)
Notice to bidders. A person may apply to have his or her
name placed on a mailing list to receive the Notice to Contractors for a fee
of $65 per year to cover costs of mailing the notices.
(b)
Fee exemption. The following entities are not required
to pay the notice subscription fee:
(1)
qualified bidders approved under §9.12 of this title
(relating to Qualification of Bidders);
(2)
other state agencies;
(3)
other state departments of transportation;
(4)
disadvantaged business enterprises and historically underutilized
businesses;
(5)
offices of the federal government; and
(6)
organizations performing work under supportive service
contracts awarded by the commission.
(c)
Advertising. Contracts will be advertised in accordance
with Transportation Code, §223.002, Government Code,
§2155.083(h)(1)
[
(d)
Proposal form.
(1)
Proposal form content. A proposal form will include:
(A)
the location and description of the proposed work;
(B)
an approximate estimate of the various quantities and kinds
of work to be performed or materials to be furnished;
(C)
a schedule of items for which unit prices are requested;
(D)
the time within which the work is to be completed; and
(E)
the special provisions and special specifications.
(2)
Form of request. A request for a proposal form on a highway
improvement contract may be made orally or in writing.
(e)
Issuance of proposal form.
(1)
Construction and maintenance contracts.
(A)
Issuance. Except where prohibited under subparagraph (B)
of this paragraph, the department will, upon receipt of a request, issue a
proposal form for a construction or maintenance contract as follows:
(i)
for a project on which audited financial prequalification
is not waived, only to a prequalified bidder, and only if the estimated cost
of the project is within that bidder's available bidding capacity; and
(ii)
for a project on which audited financial qualification
is waived under §9.12(a)(2) of this title, only if the estimated cost
of the project is within that bidder's available bidding capacity.
(B)
Non-issuance. Except as provided in subparagraph (C) of
this paragraph, the department will not issue a proposal form requested by
a bidder for a construction or maintenance contract if at the time of the
request the bidder:
(i)
is disqualified by an agency of the federal government
as a participant in programs and activities involving federal assistance and
benefits, and the contract is for a federal-aid project;
(ii)
is suspended or debarred by order of the commission;
(iii)
is prohibited from rebidding a specific project because
of default of the first awarded contract;
(iv)
has not fulfilled the requirements for qualification under §9.12
of this title; [
(v)
is prohibited from rebidding that project as a result of
having previously submitted a mathematically and materially unbalanced bid
resulting in the rejection of the bid by the commission
; or
(vi)
is prohibited from rebidding
that project as a result of having submitted a bid containing an error resulting
in the rejection of bids by the commission.
(C)
Exception. The department may issue a proposal under a
temporary approval to a bidder who would be ineligible under subparagraph
(B)(iv) of this paragraph if the bidder has substantially complied with the
requirements of §9.12 of this title.
(2)
Building contracts.
(A)
Issuance. Except as provided in subparagraph (B) of this
paragraph, the department will issue, upon request, a proposal form to a bidder
having complied with §9.12(b) of this title.
(B)
Non-issuance. The department will not issue a proposal
form requested by a bidder for a building contract if, at the time of the
request, the bidder:
(i)
is disqualified by an agency of the federal government
as a participant in programs and activities involving federal assistance and
benefits and the contract is a federal-aid project;
(ii)
is suspended or debarred by order of the commission; or
(iii)
is prohibited from bidding that project because of default
of the first awarded contract.
(3)
All contracts. The department will not issue a proposal
form for a highway improvement contract to a bidder if the bidder or a subsidiary
or affiliate of the bidder has received compensation from the department to
participate in the preparation of the plans or specifications on which the
bid or contract is based.
§9.14.Submittal of Proposal.
(a)
Delivery. The bidder shall place each completed proposal
form in a sealed envelope marked to show its contents. When submitted by mail,
this envelope shall be placed in another envelope which shall be sealed and
addressed as indicated in the notice. Bids must be received on or before the
hour and date set for the receipt and opening of bids and must be in the hands
of the department letting official by that time.
(b)
Proposal content. The bidder shall submit the proposal
on the form furnished by the department and in compliance with the following
requirements.
(1)
Except as provided in paragraph (2) of this subsection
and subsection (c) of this section, the blank spaces for each item as required
in the proposal form shall be filled in by writing in words in ink.
(2)
The bidder shall submit a unit price for each item for
which a bid is requested (including a zero if appropriate), except in the
case of a regular bid item that has an alternate bid item. In such case, prices
must be submitted for the base bid or with the set of items of one or more
of the alternates.
(3)
The proposal shall be executed with ink in the complete
and correct name of the bidder making the proposal and be signed by the person
or persons authorized to bind the bidder.
(4)
Except in the case of regular bid item that has an alternate
bid item, unit prices shall be stated in dollars and/or cents for each bid
item listed in the proposal.
(c)
Computer printouts.
(1)
In lieu of writing in words in ink, a bidder may submit
an original computer printout sheet bearing the authorized signature for the
bidder. The unit prices shown on acceptable printouts will be the official
unit prices used to tabulate the official total bid amount and used in the
contract if awarded by the commission.
(2)
Computer printouts are not acceptable on building contracts.
(d)
Proposal guaranty. A bidder must submit a proposal guaranty
with the proposal form.
(1)
Except as provided in paragraph (2) of this subsection,
the proposal guaranty must be in the amount specified by the proposal form,
made payable to the order of the commission, and in the form of a cashier's
check, money order, or teller's check drawn by or on a state or national bank,
savings and loan association, or a state or federally chartered credit union
(collectively referred to as a "bank"). The check must be payable at or through
the institution issuing the instrument, or must be drawn by a bank on a bank,
or by a bank and payable at or through a bank. The form of the instrument
must be identified on the instrument's face.
(2)
A bidder may submit a bid bond, in lieu of providing the
guaranty required in paragraph (1) of this subsection. The bid bond shall
be on the form and in the amount specified by the department. A bid bond will
only be accepted from a surety company authorized to execute a bond under
and in accordance with state law. The bond must bear the impressed seal of
the surety company
and the name of the bidder,
and be signed by
the bidder and an authorized representative of the surety company. Powers
of attorney must be attached to the bid bond. The bid bond amount required
by the department must be within the surety company's authorized bonding limit.
(3)
The department will not accept as a proposal guaranty:
(A)
personal checks or certified checks;
(B)
other types of money orders; or
(C)
checks or money orders more than 90 days old.
(4)
The commission will establish by order proposal guaranty
and bid bond amounts. The commission may require a greater amount for a bid
bond in order to compensate for increased administrative costs associated
with bid bonds.
§9.16.Tabulation of Bids.
(a)
Official bid amount. Except for lump sum building contract
bid items, the official total bid amount for each bidder will be determined
by multiplying the unit bid price written in for each item by the respective
quantity and totaling those amounts.
(b)
Department interpretations.
(1)
Proposals where unit bid prices have been left blank will
be considered by the department to be incomplete and nonresponsive. If a proposal
has a regular and a corresponding alternate bid item or group of items, the
proposal will not be considered to be incomplete if either the regular bid
item, or group of items, or the alternate bid item, or group of items, has
a unit bid price entered. If both a regular bid item, or group of items, and
a corresponding alternate bid item, or group of items, are left blank, the
bid will be considered to be incomplete and nonresponsive (A bidder who elects
to bid on a bid item group corresponding to a regular or alternate bid item,
or group of items, must include unit bid prices for each bid item contained
in the bid item group).
(2)
Proposal entries such as no dollars and no cents, zero
dollars and zero cents, or numerical entries of $0.00 will be interpreted
to be one-tenth of a cent ($.001) and will be entered in the bid tabulation
as $.001, except as provided in paragraph (6) of this subsection. Any entry
extended to more than three decimal places will be rounded to the nearest
tenth of a cent and entered as such. (For rounding purposes contained in this
subsection, entries of five-hundredths of a cent or more will be rounded up
to the next highest tenth of a cent, while entries of four-hundredths of a
cent or less will be rounded down to the next lowest tenth of a cent).
(3)
If a bidder submits both a completed proposal form and
a properly completed computer printout, the department will use the computer
printout to determine the total bid amount of the proposal. If the computer
printout is incomplete, the department will use the completed proposal form
to determine the total bid amount of the proposal.
(4)
If a bidder submits two computer printouts reflecting different
totals, both printouts will be tabulated, and the department will use the
lowest tabulation.
(5)
If a unit bid price is illegible, the department will make
a documented determination of the unit bid price for tabulation purposes.
(6)
If a unit bid price has been entered for both the regular
bid item, or group of items, and a corresponding alternate bid item, or group
of items, the department will determine the option that results in the lowest
total cost to the state and tabulate as such, except as provided in subparagraphs
(A) and (B) of this paragraph. If both the regular and alternate bids result
in the same cost to the state the department will select the regular bid item
or items.
(A)
If both a regular bid item or a group of items, and a corresponding
alternate bid item or group of items, have an entry such as no dollars and
no cents, zero dollars and zero cents, or numerical entries of $0.00, the
department will make two calculations using one-tenth of a cent ($.001) for
each item as described in subparagraph (2) of this subsection. The department
will determine the option that results in the lowest total cost to the state
and tabulate as such. If both the regular and alternate bids result in the
same cost to the state the department will select the regular bid item or
items.
(B)
If a unit bid price greater than zero has been entered
for either a regular bid or corresponding alternate bid item, or a group of
items, and an entry of no dollars and no cents, zero dollars and zero cents,
or a numerical entry of $0.00 has been entered for the other corresponding
item, or group of items, the department will use the unit bid price that is
greater than zero for bid tabulation.
(c)
Tie bids. In the event the official bid amount for two
or more bidders is equal and those bids are the lowest submitted, each tie
bidder will be given an opportunity to withdraw its bid. If two or more tie
bidders decline to withdraw their bids, the low bidder will be determined
by a coin toss. If all tie bidders request to withdraw their bids, no withdrawals
will be allowed and the low bidder will be determined by a coin toss.
(d)
Proposal guaranty. Not later
than 72 hours after bids are opened, the department will mail the check or
money order proposal guaranty of each bidder except the apparent low bidder
to the address specified on the return bidder's check form included in the
proposal. Bid bonds will not be returned.
(e)
Bid errors. The commission
will consider a bid error that meets the notification requirements contained
in paragraph (1) of this subsection and satisfies the criteria contained in
paragraph (2) of this subsection in the award of a contract.
(1)
The apparent low bidder must submit written
notification of an alleged bid error to the department's Construction Division
within five business days after the date proposals are opened for the project.
The notification must identify the items of work involved and must include
bid documentation, such as quotes received, calculations made, or other related
documentation used in bid preparation, that substantiates the alleged error.
Once the notification is submitted to the department, it may not be revised
or supplemented unless additional information is requested by the department.
(2)
The commission will consider the following criteria
in determining whether a bid error exists:
(A)
the alleged bid error relates to a material
item of work contained in the bid;
(B)
the alleged bid error is a significant portion
of the total bid as compared to the intended bid contained in the documentation
submitted by the contractor in accordance with paragraph (1) of this subsection,
and other contractor bids;
(C)
the alleged bid error occurred despite the contractor's
exercise of ordinary care in preparing its bid; and
(D)
delay in the completion of the project will
not have a significant impact on the cost to and safety of the public.
(3)
When the engineer's estimate on a project is
less than $300,000, the executive director or the director's designee may
determine whether a bid error exists, under the same conditions and criteria
as provided in paragraphs (1) and (2) of this subsection.
§9.17.Award of Contract.
(a)
The commission may reject any and all bids opened, read,
and tabulated under §9.15 and §9.16 of this title (relating to Acceptance,
Rejection, and Reading of Proposals, and Tabulation of Bids). It will reject
all bids if:
(1)
there is reason to believe collusion may have existed among
the bidders;
(2)
the
lowest
[
(3)
the lowest bid is higher than the department's estimate
and the commission determines that re-advertising the project for bids may
result in a significantly lower low bid; [
(4)
the lowest bid is higher than the department's estimate
and the commission determines that the work should be done by department forces
; or
(5)
the lowest bid is determined
to contain a bid error that meets the notification requirements contained
in §9.16(e)(1) of this subchapter and satisfies the criteria contained
in §9.16(e)(2).
(b)
Except as provided in subsection (c)
,
[
(c)
In accordance with the Government Code, Chapter 2252, Subchapter
A, the commission will not award a contract to a nonresident bidder unless
the nonresident underbids the lowest bid submitted by a responsible resident
bidder by an amount that is not less than the amount by which a resident bidder
would be required to underbid the nonresident bidder to obtain a comparable
contract in the state in which the nonresident's principal place of business
is located.
(d)
For a maintenance contract involving a bid amount of less
than $100,000, if the lowest bidder withdraws its bid after bid opening, the
executive director may recommend to the commission that the contract be awarded
to the second lowest bidder.
(1)
For purposes of this subsection, the term "withdrawal"
includes written withdrawal of a bid after bid opening, failure to provide
the required insurance or bonds, or failure to execute the contract.
(2)
The executive director may recommend award of the contract
to the second lowest bidder if he or she, in writing, determines that the
second lowest bidder is willing to perform the work at the unit bid prices
of the lowest bidder; and
(A)
the unit bid prices of the lowest bidder are reasonable,
and delaying award of the contract may result in significantly higher unit
bid prices;
(B)
there is a specific need to expedite completion of the
project to protect the health or safety of the traveling public, or
(C)
delaying award of the contract would jeopardize the structural
integrity of the highway system.
(3)
The commission may accept the withdrawal of the lowest
bid after bid opening if it concurs with the executive director's determinations.
(4)
If the commission awards a contract to the second lowest
bidder and the department successfully enters into a contract with the second
lowest bidder, the department will return the lowest bidder's proposal guaranty
upon execution of that contract. The lowest bidder may be considered in default
and will be subject to debarment under
§9.100, et seq. of this chapter.
[
(e)
When additional information
is required to make a final decision, the commission may defer the award or
rejection of the contract, with the agreement of the apparent low bidder,
until the next regularly scheduled commission meeting.
(f)
[
§9.18.After Contract Award.
(a)
Contract execution.
(1)
Except as provided in paragraphs (2) and (3) of this subsection,
within 15 days after written notification of award of a contract, the successful
bidder must execute and furnish to the department the contract with:
(A)
a performance bond and a payment bond, if required and
as required by the Government Code, Chapter 2253, with powers of attorneys
attached, each in the full amount of the contract price, executed by a surety
company or surety companies authorized to execute surety bonds under and in
accordance with state law (Department interpretations made in accordance with §9.16(b)(2)
of this chapter (relating to Tabulation of Bids) will be used to determine
the contract amount for providing a performance bond and payment bond, if
required, and as required by the Government Code, Chapter 2253.);
(B)
a certificate of insurance showing coverages in accordance
with contract requirements;
(C)
when required, written evidence of current good standing
from the Comptroller of Public Accounts; and
(D)
a list of all quoting subcontractors and suppliers.
(2)
A successful bidder on a routine maintenance contract will
be required to provide the certificate of insurance prior to the date the
contractor begins work as specified in the department's order to begin work.
(3)
Within the time specified in the contract, the successful
bidder on a construction contract containing a DBE or SBE goal, who is not
a DBE or SBE, must submit all the information required by the department in
accordance with §9.53(e) of this title (relating to Disadvantaged Business
Enterprise (DBE) Program) and §9.55(c) of this title (relating to Small
Business Enterprise (SBE) Program). The successful bidder must comply with
paragraph (1) of this subsection within 15 days after written notification
of acceptance by the department of the successful bidder's documentation to
achieve the DBE or SBE goal.
(b)
Proposal guaranty.
[
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201966
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
43 TAC §9.120
The Texas Department of Transportation (TxDOT) proposes new §9.120,
concerning contract claims arising from turnpike projects.
EXPLANATION OF PROPOSED NEW SECTION
Transportation Code, §201.112 (TxDOT statute) governs the resolution
of claims arising from certain TxDOT contracts. The TxDOT statute applies
to aviation contracts, non-tolled state highway improvement contracts, and
contracts for professional and consulting services. Transportation Code, Chapter
361 authorizes TxDOT to develop, maintain, and operate turnpike projects.
Except for contracts for professional and consulting services, the TxDOT statute
does not apply to contracts entered under Chapter 361.
Government Code, Chapter 2260 (state statute), also governs the resolution
of contract claims against the state. The state statute does not apply to
contracts subject to the TxDOT statute. The state statute does apply to TxDOT
turnpike contracts, other than contracts for professional and consulting services.
The Texas Transportation Commission previously adopted a rule, codified
at 43 TAC §9.1, implementing the state statute. The rule applies to TxDOT
purchase contracts, including purchases relating to turnpike projects.
The former Board of Directors of the Texas Turnpike Authority Division
of TxDOT previously adopted a rule governing turnpike contract claims. This
rule, codified at 43 TAC §53.50, was adopted prior to the enactment of
the state statute and was modeled after TxDOT's claim procedures under TxDOT's
statute. The board was recently abolished and the division was more fully
consolidated with TxDOT.
By separate action, the commission is proposing the repeal of §53.50.
New §9.120 will provide a contract claim resolution process that is consistent
with the requirements of the state statute, yet takes advantage of TxDOT's
successful contract claim procedure under the TxDOT statute.
Subsection (a) states the scope and purpose of the new section. The new
section applies to a contract claim arising from a contract that related to
a turnpike project and that was entered solely under Transportation Code,
Chapter 361. This section, however, does not apply to the following types
of contracts. Contracts for professional and consulting services relating
to turnpike projects will be subject to the TxDOT statute and 43 TAC §9.2,
concerning contract claim procedures. All department contracts entered under
the State Purchasing and General Services Act, Government Code, Title 10,
Subtitle D, will be subject to 43 TAC §9.1.
Subsection (b) defines words and terms used in the section.
Subsection (c) requires a claimant to submit a notice of claim within 180
days after the occurrence of the events giving rise to the claim. This requirement
is consistent with the state statute. To allow TxDOT to respond to the claim
expeditiously, the subsection requires the claimant to submit certain information
relating to the claim.
Subsection (d), consistent with the state statute, provides that the negotiating
office will provide the claimant with notice of any counterclaims within 90
days after receiving the notice of claim.
Subsection (e) provides, consistent with the state statute, that negotiations
will begin the latest of: 60 days after the contract was terminated; 60 days
after the completion date in the original contract; 60 days after the notice
of claim was submitted; or 180 days after the event giving rise to the claim.
The subsection describes the process of informal negotiation. The process
is designed to expedite claim resolution.
Subsection (f) provides that the claimant and the negotiating officer may
agree to mediate the claim at any time within 270 days after the notice of
claim is submitted. To allow the department and the mediator to take advantage
of an existing successful claims program, both parties may agree to have mediation
conducted by TxDOT's Contract Claim Committee under 43 TAC §9.2. In the
alternative, the claimant may request appointment of a third-party mediator.
All costs for the services of a third-party mediator shall be borne solely
by the claimant.
Subsection (g) authorizes the parties to agree to partial resolution of
a claim.
Subsection (h) provides that, within 250 days after the filing of the claim,
the negotiating officer will make a final offer to the claimant. The claimant
must respond within 20 days. These deadlines enable TxDOT to meet deadlines
established by the state statute.
Subsection (i) authorizes the claimant to request an administrative hearing
as provided by the state statute.
Subsection (j) provides that all proceedings, offers, or communications
made in connection with negotiations or mediation are part of the attempt
to resolve a claim without litigation. They may not be disclosed by either
party in any subsequent proceeding relating to the contract. This provision
is intended to facilitate the informal resolution of claims under the process
set out by the rule.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the new section is in effect, there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
new section. There are no anticipated economic costs for persons required
to comply with the section as proposed.
Phillip E. Russell, P.E., Director, Texas Turnpike Authority Division,
has certified that there will be no significant impact on local economies
or overall employment as a result of enforcing or administering the new section.
PUBLIC BENEFIT
Mr. Russell has also determined that for each year of the first five years
the section is in effect, the public benefit anticipated as a result of enforcing
or administering the new section will be to further the department's mission
to provide an efficient and fair process of administering contractor claims.
There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed section may be submitted to Phillip E.
Russell, P.E., Director, Texas Turnpike Authority Division, 125 East 11th
Street, Austin, Texas 78701-2483. The deadline for receipt of comments is
5:00 p.m. on May 13, 2002.
STATUTORY AUTHORITY
The new section is proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of TxDOT, and Government Code, §2260.052,
which requires each unit of state government with rulemaking authority to
develop rules governing the negotiation and mediation of a claim subject to
Government Code, Chapter 2260.
No statutes, articles, or codes are affected by the proposed new section.
§9.120.Contract Claims Under Transportation Code, Chapter 361.
(a)
Scope and purpose. This section applies to a contract claim
arising from a contract that relates to a turnpike or toll road project and
that is entered solely under Transportation Code, Chapter 361. These contract
claims are subject to the dispute resolution procedures established in Government
Code, Chapter 2260. This section does not apply to a contract claim that is
governed by any other mechanism for dispute resolution, including Transportation
Code, §201.112, Government Code, Chapter 2254, and Government Code, Title
10, Subtitle D.
(b)
Definitions.
(1)
Claimant - An independent contractor that has entered into
a contract under Transportation Code, Chapter 361, directly with the Texas
Department of Transportation. The term does not include a subcontractor, employee,
or supplier of a claimant or of the Texas Department of Transportation.
(2)
Negotiating officer - The executive director of the Texas
Department of Transportation, the executive director's designee not below
the level of district engineer, division director, or office director, or
the person identified as the negotiating officer in a contract.
(c)
Notice of claim. In the event of a contract dispute, a
claimant may submit a notice of claim within 180 days after the occurrence
of the events giving rise to the claim. The notice must be submitted to the
negotiating officer in writing, must be signed by the claimant or the claimant's
representative, and must contain:
(1)
a detailed statement of the nature of the alleged breach
of contract, including the identification of each contractual provision said
to have been violated, the date of the alleged violation, and the manner in
which the violation occurred;
(2)
the exact amount sought in damages and the method used
to calculate damages; and
(3)
each legal theory under which recovery is sought.
(d)
Counterclaims. The negotiating officer will provide the
claimant with notice of any counterclaims within 90 days after receiving the
notice of claim.
(e)
Negotiations.
(1)
Commencement. Negotiations will begin when the negotiating
officer responds to the notice of claim. This will occur before the latest
of:
(A)
60 days after the contract was terminated;
(B)
60 days after the completion date in the original contract;
(C)
60 days after the notice of claim was submitted; or
(D)
180 days after the event giving rise to the claim.
(2)
Nature of negotiations. Negotiations may be conducted in
person, by telephone, by email, or in writing. Both parties will negotiate
in good faith, but neither party is required to reach a settlement through
negotiations.
(f)
Mediation. The claimant and the negotiating officer may
agree to mediate the claim at any time within 270 days after the notice of
claim is submitted.
(1)
Mediation may be conducted by the Contract Claim Committee
under §9.2 of this title (relating to Contract Claims).
(2)
The claimant may request appointment of a third-party mediator
qualified under Civil Practice and Remedies Code, §154.052. All costs
for the services of a third-party mediator shall be borne solely by the claimant.
(g)
Partial resolution of claim. The parties may agree to resolve
fewer than all issues presented by the notice of claim. A partial resolution
must be in writing and signed by both the claimant and the negotiating officer.
A partial resolution is conclusive with respect to the issues identified as
resolved.
(h)
Final offer. Within 250 days after the filing of the claim,
the negotiating officer will make a final offer to the claimant. The claimant
must respond within 20 days. Any response other than unqualified acceptance
will be considered a rejection.
(i)
Request for hearing.
(1)
Unless the parties agree to mediation or agree in writing
to an extension of time, the claimant's right to a hearing accrues when the
claimant rejects the negotiating officer's final offer, when the claimant
receives a proposed disposition from the Contract Claim Committee, when either
party terminates a third-party mediation, or 270 days after the filing of
the claim, whichever occurs first.
(2)
The claimant may petition for a hearing within 20 days
after the right to an administrative hearing accrues. The hearing will be
conducted under §1.21 et seq. of this title (relating to Procedures in
Contested Cases). The petition must include the notice of claim and any partial
resolution.
(j)
Admissibility. All proceedings, offers, or communications
made in connection with negotiations or mediation are part of the attempt
to resolve a contract claim without litigation. They may not be disclosed
by either party in any subsequent proceeding relating to the contract.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201968
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
Subchapter E. STATEWIDE TRANSPORTATION ENHANCEMENT PROGRAM
43 TAC §11.200
The Texas Department of Transportation proposes amendments
to §11.200, purpose, concerning the Statewide Transportation Enhancement
Program.
EXPLANATION OF PROPOSED AMENDMENTS
The Statewide Transportation Enhancement Program provides funds for a variety
of transportation enhancement activities. The commission proposes to permit
transportation enhancement funds to be allocated to activities that qualify
for the Safe Routes to School Program in accordance with §25.500 et seq.
of this title (concerning the Safe Routes to School Program). This allocation
of funding is consistent with the purposes of the enhancement program.
FISCAL NOTE
Mr. James Bass, Director, Finance Division, has determined that for the
first five-year period the amended section is in effect, there will be no
fiscal implications to state or local government as a result of enforcing
or administering the amended section. There are no anticipated economic costs
to persons required to comply with the amended section as proposed.
Carlos A. Lopez, P.E., Director, Traffic Operations Division, has certified
that there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the amendments.
PUBLIC BENEFIT
Mr. Lopez has also determined that for each year of the first five years
the section is in effect, the public benefit anticipated as a result of enforcing
or administering the amendment will be to permit funding of the Safe Routes
to School Program through the Statewide Transportation Enhancement Program
for the purpose of improving pedestrian and bicycle safety in and around school
areas. There will be no adverse economic effect on small businesses.
PUBLIC HEARING
Pursuant to the Administrative Procedure Act, Government Code, Chapter
2001, the Texas Department of Transportation will conduct a public hearing
to receive comments concerning the proposed rules. The public hearing will
be held at 9:00 a.m. on April 30, 2002, in the first floor hearing room of
the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin,
Texas and will be conducted in accordance with the procedures specified in
43 TAC §1.5. Those desiring to make comments or presentations may register
starting at 8:30 a.m.. Any interested persons may appear and offer comments,
either orally or in writing; however, questioning of those making presentations
will be reserved exclusively to the presiding officer as may be necessary
to ensure a complete record. While any person with pertinent comments will
be granted an opportunity to present them during the course of the hearing,
the presiding officer reserves the right to restrict testimony in terms of
time and repetitive content. Organizations, associations, or groups are encouraged
to present their commonly held views and identical or similar comments through
a representative member when possible. Comments on the proposed text should
include appropriate citations to sections, subsections, paragraphs, etc. for
proper reference. Any suggestions or requests for alternative language or
other revisions to the proposed text should be submitted in written form.
Presentations must remain pertinent to the issues being discussed. A person
may not assign a portion of his or her time to another speaker. Persons with
disabilities who plan to attend this meeting and who may need auxiliary aids
or services such as interpreters for persons who are deaf or hearing impaired,
readers, large print or Braille, are requested to contact Randall Dillard,
Director, Public Information Office, 125 East 11th Street, Austin, Texas 78701-2483,
512/463-8588 at least two working days prior to the hearing so that appropriate
services can be provided.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Carlos
A. Lopez, P.E., Director, Traffic Operations Division, 125 East 11th Street,
Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m.
on May 13, 2002.
STATUTORY AUTHORITY
The amended section is proposed under Transportation Code, §201.101,
which authorizes the Texas Transportation Commission to promulgate rules for
the conduct of the work of the Texas Department of Transportation, and more
specifically, Transportation Code, §201.614, as added by House Bill 2204,
77th Legislature, 2001, which requires the department to adopt rules to implement
the Safe Routes to School Program.
No statutes, articles, or codes are affected by the proposed amendments.
§11.200.Purpose.
Title 23, United States Code, §133(d)(2) and §160(e)(2),
require that 10% of certain funds apportioned to a state pursuant to Title
23, United States Code, §104(b)(3), be used for transportation enhancement
activities, as defined. The 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.
The commission will also 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.
The commission may
also allocate funds under the Safe Routes to Schools Program in accordance
with §25.500 et seq. of this title (relating to the Safe Routes to School
Program) to improve bicycle and pedestrian safety around school areas.
The sections under this subchapter prescribe the policies and procedures for
the implementation of the program.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201969
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
Subchapter I. SAFE ROUTES TO SCHOOL PROGRAM
43 TAC §§25.500 - 25.503, 25.504
The Texas Department of Transportation proposes amendments
to §§25.500-25.503, and proposes new §25.504 concerning the
Safe Routes to School Program.
EXPLANATION OF PROPOSED AMENDMENTS
House Bill 2204, 77th Legislature, 2001, added Transportation Code, §201.614,
which directs the Texas Department of Transportation to establish the Safe
Routes to School Program (SRS). The overall purpose of this program is to
improve safety in and around school areas.
The department is developing rules in two steps for the implementation
of HB 2204. The first step became effective on December 5, 2001, and describes
eligible project types and the application submittal process. The second round
of rulemaking, as contained in this action, focuses on the factors the department
will consider in evaluating SRS applications.
House Bill 2204 also allows, but does not require, the department to use
federal Hazard Elimination Program funds from the United States Department
of Transportation for SRS projects. During the development of the SRS program,
the department determined that it would be extremely difficult for candidate
SRS projects to compete for federal Hazard Elimination Program funds. For
this reason, the commission is proposing to remove references to the Hazard
Elimination Program in existing §§25.500-25.503. Instead, the commission
is simultaneously proposing an amendment to existing §11.200 that will
allow SRS projects to receive funds under the Statewide Transportation Enhancement
Program.
Section 25.500 is amended to insert language that has been moved from §25.502
and to remove the reference to funding SRS projects through the Hazard Elimination
Program. The revision also deletes the reference to "federal safety construction
funds" and will instead reference "state and federal funds." As noted above,
reliance on federal Hazard Elimination Program funds would make it extremely
difficult to obtain funding for SRS projects. This revision will broaden the
potential funding sources for the SRS program.
Section 25.501 is amended to add a definition for division and to delete
the definition for the Hazard Elimination Program.
Section 25.502(a) is amended to remove language that fits more properly
in §25.500 because it relates to the purpose of the program. Section
25.502(f) is added to ensure that an SRS project does not interfere or disrupt
any planned improvements or existing infrastructure on the state highway system.
This provision will ensure that any proposed SRS projects will be consistent
with existing department plans for improvements on the state highway system.
Nonsubstantive changes are made to §25.502 to improve clarity and readability.
Section 25.503(c)(4) is amended to incorporate a reference to the Safe
Routes to School Program Guidelines. These guidelines will be made available
with SRS project application and will provide the information necessary for
applicants to successfully complete an SRS project submission. The reference
to the Traffic Operations Division is generalized to allow for the possibility
of future changes in the names or structures of the department's divisions
and to give the department greater administrative flexibility in managing
the program.
EXPLANATION OF PROPOSED NEW SECTION
Section 25.504 is added to describe how candidate SRS projects will be
evaluated and selected.
New §25.504(a) provides that department staff will review each application
for completeness and compliance with the requirements contained in existing §25.502
before the application will be eligible for full evaluation.
New §25.504(b) creates an SRS evaluation panel that will be appointed
by the department's executive director and made up of agency staff with a
variety of types of relevant expertise.
New §25.504(c)(1) describes the selection criteria that will be used
to evaluate SRS projects. These criteria include those factors that the department
is required to consider by HB 2204. In addition, the department will consider
the detailed construction costs of each project during the selection process.
This will ensure that selected SRS projects are as cost-effective as possible.
Finally, the department will consider compliance with design criteria. This
criterion will be included in the SRS application material and will allow
the department to ensure that projects are built according to appropriate
and applicable design standards that will be specified by the responsible
division.
New §25.504(c)(2) provides that the department will give additional
consideration to applications that link to a comprehensive traffic safety
plan and that have secured additional resources or funding for the candidate
project. These provisions are included to encourage selection of SRS projects
that are developed within the framework of existing pedestrian and bicycle
safety efforts. This new paragraph will also ensure that the most cost-beneficial
projects are selected.
New §25.504(c)(3) permits the department to consider other factors
as necessary to promote the bicycle and pedestrian safety of children in and
around school areas. This paragraph will allow the department to modify the
SRS program application and guidelines to include relevant criteria necessary
to develop successful and effective SRS projects.
New §25.504(d) provides that the commission will approve SRS projects.
This approval will be based on the panel evaluations, the availability of
funding, the safety of the traveling public, and the safety of children in
and around school areas.
New §25.504(e) requires the department to notify those submitting
applications of the status of those applications after the commission has
made project selections. This subsection also requires approved SRS projects
to comply with design, plan preparation, and letting requirements established
by the responsible division. This provision will ensure that SRS projects
meet all applicable standards for project design, that plans are prepared
in a format that the department will be able to effectively review, and that
projects are let to contract in accordance with state and federal laws and
regulations.
New §25.504(f) clarifies that approved funds for successful SRS projects
are a fixed amount. Any cost overruns are the sole responsibility of the applicant.
This provision is included to ensure that SRS applications are fairly evaluated
on submitted project costs and that the department may effectively manage
the SRS program in a fiscally responsible manner.
FISCAL NOTE
Mr. James Bass, Director, Finance Division, has determined that for the
first five-year period the amendments and new section are in effect, there
will be minimal fiscal implications to state or local government as a result
of enforcing or administering the amended and new sections. Management of
the Safe Routes to School Program will be performed using existing department
staff. Local governments will have to complete a project application; however,
participation in the SRS program is voluntary. In addition, costs to complete
an application should be minimal especially if completed by a local government's
existing staff. There are no anticipated economic costs to persons required
to comply with the amended and new sections as proposed.
Carlos A. Lopez, P.E., Director, Traffic Operations Division, has certified
that there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the proposed amendments and new
section.
PUBLIC BENEFIT
Mr. Lopez has also determined that for each year of the first five years
the amendments and new section are in effect, the public benefit anticipated
as a result of enforcing or administering the amendments and new section will
be to allow political subdivisions to submit projects under the Safe Routes
to School Program to improve pedestrian and bicycle safety in and around school
areas. There will be no adverse economic effect on small businesses.
PUBLIC HEARING
Pursuant to the Administrative Procedure Act, Government Code, Chapter
2001, the Texas Department of Transportation will conduct a public hearing
to receive comments concerning the proposed rules. The public hearing will
be held at 9:00 a.m. on April 30, 2002, in the first floor hearing room of
the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin,
Texas and will be conducted in accordance with the procedures specified in
43 TAC §1.5. Those desiring to make comments or presentations may register
starting at 8:30 a.m.. Any interested persons may appear and offer comments,
either orally or in writing; however, questioning of those making presentations
will be reserved exclusively to the presiding officer as may be necessary
to ensure a complete record. While any person with pertinent comments will
be granted an opportunity to present them during the course of the hearing,
the presiding officer reserves the right to restrict testimony in terms of
time and repetitive content. Organizations, associations, or groups are encouraged
to present their commonly held views and identical or similar comments through
a representative member when possible. Comments on the proposed text should
include appropriate citations to sections, subsections, paragraphs, etc. for
proper reference. Any suggestions or requests for alternative language or
other revisions to the proposed text should be submitted in written form.
Presentations must remain pertinent to the issues being discussed. A person
may not assign a portion of his or her time to another speaker. Persons with
disabilities who plan to attend this meeting and who may need auxiliary aids
or services such as interpreters for persons who are deaf or hearing impaired,
readers, large print or Braille, are requested to contact Randall Dillard,
Director, Public Information Office, 125 East 11th Street, Austin, Texas 78701-2483,
512/463-8588 at least two working days prior to the hearing so that appropriate
services can be provided.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments and new section may be submitted
to Carlos A. Lopez, P.E., Director, Traffic Operations Division, 125 East
11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments
is 5:00 p.m. on May 13, 2002.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
authorizes the Texas Transportation Commission to promulgate rules for the
conduct of the work of the Texas Department of Transportation, and more specifically,
Transportation Code, §201.614 as added by House Bill 2204, 77th Legislature,
2001, which requires the department to adopt rules to implement the Safe Routes
to School Program.
No statutes, articles, or codes are affected by the proposed amendments.
§25.500.Purpose.
Transportation Code, §201.614 directs the Texas Department of
Transportation to establish the Safe Routes to School Program. The overall
purpose of this program is to
enhance
[
§25.501.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Commission - The Texas Transportation Commission.
(2)
Department - The Texas Department of Transportation.
(3)
District - One of 25 geographical areas, managed by a district
engineer, in which the department conducts its primary work activities.
(4)
Division - An organizational
unit in the department's Austin headquarters.
(5)
[
[
(6)
On-system road - A road or highway that is a portion of
the designated state highway system.
(7)
Off-system road - A road or highway open to the public
that is not part of the designated state highway system, such as a county
road or city street.
(8)
Public property - Property owned by a state, city, or county.
(9)
Political subdivision - A municipality or county within
the State of Texas.
(10)
Program - The Safe Routes to School Program.
(11)
School - A public or private elementary, intermediate,
middle, junior high, or high school.
(12)
State highway system - The system of highways in the state
included in a comprehensive plan prepared by the executive director with the
approval of the commission, in accordance with Transportation Code, §201.103.
§25.502.Project Eligibility.
(a)
Eligible applicants.
[
(b)
Types of projects. Projects eligible to receive funding
under this program include the following [
(1)
sidewalk improvements such as new sidewalks, widened sidewalks,
sidewalk gap closures, sidewalk repairs, curb cuts for ramps, and the construction
of curbs and gutters;
(2)
pedestrian/bicycle crossing improvements such as new or
upgraded traffic signals, crosswalks, median refuges, pavement markings, traffic
signs, pedestrian
or
[
(3)
on-street bicycle facilities such as new or upgraded
bicycle
[
(4)
traffic diversion improvements including improved pick-up/drop-off
areas, separation of pedestrians and bicycles from vehicular traffic adjacent
to school facilities, and traffic diversion away from school zones or designated
routes to a school;
(5)
off-street bicycle and pedestrian facilities including
exclusive multi-use bicycle
or
[
(6)
traffic calming measures for off-system roads such as roundabouts,
traffic circles, curb extensions at intersections that reduce curb-to-curb
roadway travel widths, center islands, full and half-street closures, and
other speed reduction techniques.
(c)
Project location.
(1)
Eligible projects may be located on or off the designated
state highway system; however, candidate projects must be located on public
property.
(2)
Eligible projects must be located within a two-mile radius
of a school.
(d)
Required local contribution. Political subdivisions awarded
funding under this program must provide a local contribution
toward
[
(e)
Eligible project boundaries.
(1)
Except as provided in paragraph (2) of this subsection,
each project application must be in connection with a single school campus.
(2)
Applications covering multiple school sites will be accepted
for projects in which:
(A)
similar improvements are being made at each school site;
and
(B)
the school sites contained in the application are located
within a two-mile radius of each other.
(3)
One master project application for an entire school district
covering multiple school sites and multiple categories of improvements will
not be accepted.
(f)
Projects proposed on the state
highway system. Any proposed project under this program on the state highway
system will not be eligible if the district finds that the project interferes
or disrupts any planned improvements or existing infrastructure.
§25.503.Project Application.
(a)
Call for applications. The department will call for applications
for Safe Routes to School projects by publication in the Texas Register. This
notice will contain information on the application, application content, and
submission deadlines. The department will also consider alternative means
of publication of the program announcement as necessary to reach interested
local jurisdictions and interested parties.
(b)
Who may apply. The department will accept and consider
candidate projects from political subdivisions.
(c)
How to submit a project.
(1)
In order to submit a proposed project, an eligible political
subdivision must submit its application to the district engineer of the district
[
(2)
The application must be completed and returned to the appropriate
district within the required deadlines as described in the project call for
applications notification.
(3)
The candidate project must utilize the application form
prescribed by the department for this purpose.
(4)
Copies of the application form
and the Safe Routes
to School Program Guidelines
will be available at each department district
[
§25.504.Project Evaluation and Selection.
(a)
Project evaluation. The responsible division will review
each program application for completeness and compliance with project eligibility
requirements described in §25.502 of this subchapter. Applications that
do not comply with these requirements or that are not received by the published
deadline will not be evaluated.
(b)
Project evaluation panel. The executive director will appoint
a project evaluation panel of department staff with expertise in bicycle safety,
pedestrian safety, roadway safety, roadway design, or traffic engineering
to evaluate the proposals submitted statewide.
(c)
Selection criteria.
(1)
Safe Routes to School applications meeting all requirements
included in §25.502 will be evaluated based on the following selection
criteria:
(A)
identification of current and potential walking and bicycling
routes to school;
(B)
the demonstrated need of the applicant;
(C)
identification of safety hazards;
(D)
the potential of the proposal to reduce child injuries
and fatalities;
(E)
the potential of the proposal to encourage walking and
bicycling among students;
(F)
support for the project by the community and interested
parties;
(G)
identification of detailed construction costs; and
(H)
compliance with design criteria established by the responsible
division.
(2)
Additional consideration will be given to applications
that demonstrate a link to a comprehensive traffic safety plan and have secured
additional funding or other resources to extend the beneficial effect of the
proposed project.
(3)
Additional consideration will also be given to other factors
relating to the proposed project deemed necessary to promote pedestrian and
bicycle safety of children in and around school areas.
(d)
Commission approval. Approval by the commission will be
based on the panel evaluations, funding availability, the safety of the traveling
public, and safety in and around school areas.
(e)
Approved projects. After approval by the commission, the
department will notify applicants of the project selection status. Approved
projects must comply with design, plan preparation, and letting requirements
established by the director of the responsible division.
(f)
Project overruns. Approved program funds are a fixed amount.
Project applicants will be responsible for all cost overruns.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201970
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
Subchapter A. POLICY, RULES, AND PROCEDURES FOR PRIVATE INVOLVEMENT IN DEPARTMENT TURNPIKE PROJECTS
43 TAC §§27.1 - 27.5
The Texas Department of Transportation proposes new §§27.1-27.5,
concerning policy, rules, and procedures for private involvement in department
turnpike projects.
EXPLANATION OF PROPOSED NEW SECTIONS
Senate Bill 342, 77th Legislature, 2001, abolished the Board of Directors
(board) of the Texas Turnpike Authority Division (TTA) of the Texas Department
of Transportation (department), subject to approval by the voters of Senate
Joint Resolution 16. The voters approved Senate Joint Resolution 16 on November
6, 2001. Senate Bill 342 added Transportation Code, §361.005, providing
that the powers and duties of the board are transferred to the Texas Transportation
Commission (commission), and that a reference in law to the board is a reference
to the commission. Senate Bill 342 further provided that rules of the board
continue in effect as rules of the commission.
The commission promulgates rules governing the operations of the department,
codified in Title 43, Part 1 (Chapters 1-31). The TTA board was responsible
for promulgating rules governing the operations of TTA, codified in Title
43, Part 2 (Chapters 50-54). With the abolishment of the board, TTA will be
more completely consolidated with the department, and the commission will
be responsible for promulgating rules governing the operations of TTA.
Transportation Code, §361.042 requires the commission to adopt rules
for the regulation of its affairs and the conduct of its business under Transportation
Code, Chapter 361, including Subchapter I of Chapter 361 (§§361.301-361.308),
which authorizes the department to enter into agreements with private entities
to construct, maintain, repair, operate, extend, or expand a turnpike project
of the department. Transportation Code, §361.306 requires the commission
to adopt rules, procedures, and guidelines governing negotiations with private
participants in department turnpike projects to promote fairness, obtain private
participants in turnpike projects, and promote confidence among those participants.
The TTA board previously adopted rules in Chapter 54 to provide policies,
rules, and procedures for private involvement in TTA projects pursuant to
Transportation Code, Chapter 361, Subchapter I. Those rules are being simultaneously
proposed for repeal in connection with the proposed adoption of those rules
in a revised form in this action. New §§27.1-27.5 differs from the
Chapter 54 rules proposed for repeal by reflecting the abolishment of the
board and consolidation of TTA into the department as a result of Senate Bill
342, adding provisions prescribing how a private entity may perform the environmental
review of a turnpike project, prescribing the time in which private entities
may submit competing proposals and follow-up proposals for the development
of a turnpike project, deleting the requirement for a financial feasibility
certificate, and making other changes necessary to improve grammar and readability.
New §27.1 describes the policy of the department with respect to encouraging
and obtaining private participation in department turnpike projects.
New §27.2 defines words and terms used in new §§27.1-27.5.
The definition of turnpike project conforms to the revised definition in Chapter
361.
New §27.3 prescribes general rules for private involvement. In order
to comply with the requirements of Council on Environmental Quality regulations
implementing the requirements of the National Environmental Policy Act (42
U.S.C. §4321 et seq.), and to prevent actual or apparent conflicts of
interest held by consultants or subcontractors performing the environmental
review of a turnpike project, §27.3 prescribes requirements relating
to the department's solicitation or acceptance of proposals in which the proposer
is responsible for the environmental review and clearance of the proposed
project.
New §27.4 describes how the department will solicit private participation
in a department turnpike project. Section 27.4 provides that the department
will publish a request for proposals in the Texas Register and one or more
newspapers of general circulation in the State of Texas. In order to facilitate
the department's development of turnpike projects through private participation, §27.4
provides that the department will perform a financial analysis of the adequacy
and feasibility of the top ranked proposal's financial plan in order to determine
if it is financially feasible and provides a reasonable basis for further
development of the proposal. Adequacy of the financial plan is a condition
of final selection of the proposal and the negotiation of a development agreement.
New §27.5 describes how the department will accept and process unsolicited
proposals for private participation in a department turnpike project. Section
27.5 prescribes information that must be included in a proposal, including
information necessary for the department to determine the adequacy and feasibility
of the financial plan in accordance with the provisions of §27.4, and
to carry out its environmental review responsibilities under §27.3 (when
the private entity is responsible for the environmental review and clearance
of a turnpike project). In order to comply with the direction in Transportation
Code, §361.306 to obtain private participants in turnpike projects, §27.5
provides that, if the commission approves the further evaluation of an unsolicited
proposal and the acceptance of competing proposals, the commission may extend
the time period for receipt of competing proposals based on the complexity
of the project. For the same reason, the commission may extend the time period
for the receipt of a follow-up detailed proposal after receipt of a conceptual
proposal.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for each year
of the first five years the new sections are in effect, there will be no fiscal
implications for state or local governments as a result of enforcing or administering
the new sections. There are no anticipated economic costs for persons required
to comply with the sections as proposed.
Phillip E. Russell, P.E., Director, Texas Turnpike Authority Division has
certified that there will be no significant impact on local economies or overall
employment as a result of enforcing or administering the new sections.
PUBLIC BENEFIT
Mr. Russell has also determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing or administering the new sections will be to clarify and streamline
the process for promoting private involvement in department turnpike projects
and to facilitate agreements with private participants in department turnpike
projects. There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the new sections may be submitted to Phillip E. Russell,
P.E., Director, Texas Turnpike Authority Division, 125 East 11th Street, Austin,
Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on May
13, 2002.
STATUTORY AUTHORITY
The new sections are proposed under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and Transportation Code, Section 361.042, which requires the commission to
adopt rules for the regulation of its affairs and the conduct of its business
under Transportation Code, Chapter 361.
No statutes, articles, or codes are affected by the proposed new sections.
§27.1.Statement of Policy.
(a)
It is the policy of the department to consider the feasibility
of private involvement in every turnpike project it undertakes. The objectives
of this policy are to:
(1)
expand the scope of turnpike projects studied;
(2)
accelerate the construction and completion of turnpike
projects;
(3)
reduce the overall costs of a turnpike project; and
(4)
maximize the benefits of turnpike project facilities.
(b)
To encourage private participation, the department may
issue requests for proposals (RFPs) from private entities to acquire, design,
finance, construct, maintain, operate, extend or expand turnpike projects
pursuant to the provisions of the Turnpike Act. The department will also accept
unsolicited proposals from private entities at any time, and will evaluate
those proposals in accordance with these rules and the Turnpike Act. The department
will consider the extent to which private involvement in existing and future
turnpike projects of the department is practicable and beneficial, and will
analyze whether department participation is practicable and beneficial with
respect to projects proposed by responsible private parties. The department
may formulate selection criteria for its use in considering the private entities
with which the department may contract to undertake responsibilities for its
projects, as well as for evaluation of projects suggested to the department
as suitable for private participation.
(c)
These rules apply to private involvement in the acquisition,
development, construction, improvement, extension, expansion or operation
of all or substantially all of a turnpike project or of multiple turnpike
projects. These rules are not intended to limit or otherwise apply to the
department's procurement of goods and services in the ordinary course of its
operations, for which the department may seek private participation in accordance
with the Turnpike Act and other applicable laws, rules, and policies.
§27.2.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Commission--The Texas Transportation Commission.
(2)
Conceptual proposal--An unsolicited proposal requesting
department participation in a turnpike project that generally describes the
project, anticipated costs associated with the project, and the expected level
of department participation.
(3)
Department--The Texas Department of Transportation.
(4)
Detailed proposal--An unsolicited proposal requesting department
participation in a turnpike project that contains the information described
in §27.5(1) of this subchapter.
(5)
Proposal review fee--A fee prescribed by these rules that
must be tendered with any solicited or unsolicited proposal submitted pursuant
to this subchapter.
(6)
Request for proposals (RFP)--A detailed request for submittal
of a proposal from private entities to acquire, design, finance, construct,
maintain, operate, extend or expand turnpike projects pursuant to the Turnpike
Act.
(7)
Turnpike Act--Transportation Code, Chapter 361.001 et seq.
(8)
Turnpike project--A toll highway constructed, maintained
or operated under Transportation Code, Chapter 361 as part of the state highway
system and any improvement, extension or expansion to the highway, including:
(A)
a facility to relieve traffic congestion and promote safety;
(B)
a bridge, tunnel, overpass, underpass, interchange, entrance
plaza, approach, toll house, service road, ramp, or service station;
(C)
an administration, storage, or other building the department
considers necessary to operate the project;
(D)
property rights, easements and interests the department
acquires to construct or operate the project;
(E)
a parking area or structure, rest stop, park, and any other
improvement or amenity the department considers necessary, useful, or beneficial
for the operation of a turnpike project; and
(F)
a toll-free facility that is appurtenant to and necessary
for the efficient operation of a turnpike project, including a service road,
access road, ramp, interchange, bridge, or tunnel.
§27.3.General Rules for Private Involvement.
(a)
The rules in this subchapter address the manner by which
the department intends to evaluate proposals received from private entities
in response to requests for proposals (RFPs) issued by the department, as
well as unsolicited proposals received by the department. The department reserves
all rights available to it by law in administering these rules, including
without limitation the right in its sole discretion to:
(1)
reject any and all proposals, whether solicited or unsolicited,
at any time;
(2)
terminate evaluation of any and all proposals, whether
solicited or unsolicited, at any time;
(3)
suspend, discontinue, or terminate exclusive development
agreement negotiations with any proposer at any time prior to the actual authorized
execution of such agreement by all parties;
(4)
negotiate with a proposer without being bound by any provision
in its proposal, whether solicited or unsolicited;
(5)
request or obtain additional information about any proposal,
whether solicited or unsolicited;
(6)
modify, issue addenda to, or cancel any RFP;
(7)
revise, supplement, or make substitutions for all or any
part of these rules; or
(8)
retain or return all or any portion of the fees required
to be paid by proposers under this subchapter.
(b)
Under no circumstances will the state, the department,
or any of their agents, representatives, consultants, directors, officers
or employees be liable for, or otherwise obligated to reimburse, the costs
incurred by proposers, whether or not selected for negotiations, in developing
solicited or unsolicited proposals or in negotiating agreements. Any and all
information the department makes available to proposers shall be as a convenience
to the proposer and without representation or warranty of any kind. Proposers
may not rely upon any oral responses to inquiries. If a proposer has a question
regarding these rules or any RFP issued by the department, the proposer must
submit the question in writing to the person responsible for receiving all
proposals and the department will provide the answers in writing. In submitting
any proposal, whether solicited or unsolicited, the proposer shall be deemed
to have unconditionally and irrevocably consented and agreed to the foregoing
provisions and all other provisions of these rules.
(c)
All proposals, whether solicited or unsolicited, submitted
to the department become the property of the department and are subject to
the Public Information Act, Government Code, Chapter 552. Proposers should
familiarize themselves with the provisions of that act. In no event shall
the state, the department, or any of their agents, representatives, consultants,
directors, officers, or employees be liable to a proposer for the disclosure
of all or a portion of a proposal submitted under this subchapter. If the
department receives a request for public disclosure of all or any portion
of a proposal, the department will use reasonable efforts to notify the applicable
proposer of the request and give such proposer an opportunity to assert, in
writing, a claimed exception under the Public Information Act or other applicable
law within the time period specified in the department's notice and allowed
under the Public Information Act. Provided that the department receives the
proposer's written assertions for the exception of identified materials within
the time period specified in the department's notice, the department will
forward those assertions to the Office of the Attorney General with the department's
request for a determination of the matter. If a proposer has special concerns
about information it desires to make available to the department, but which
it believes constitutes a trade secret, proprietary information or other information
excepted from disclosure, the proposer should specifically and conspicuously
designate that information as such in its proposal.
(d)
A nonrefundable and nonnegotiable proposal review fee may
be required for any proposal submitted under this subchapter, whether solicited
or unsolicited. The proposal review fee shall be applied by the department
to offset the cost of processing and reviewing the applicable proposals. With
respect to a proposal submitted in response to an RFP issued by the department,
the proposal review fee, if any, shall be the amount specified in the RFP.
Any unsolicited proposal must be accompanied by a proposal review fee of $20,000,
except as provided in §27.5(2) of this subchapter. The proposal review
fee for any proposal submitted during the period described in §27.5(1)(D)
of this subchapter shall be $20,000, unless otherwise expressly provided in
the department's notice described in that section. Failure to submit the required
proposal review fee, if any, shall bar the department's consideration of the
applicable proposal. All fees shall be submitted in the form of a cashier's
check made payable to the department.
(e)
All proposals, whether solicited or unsolicited, should
be as thorough and detailed as possible so that the department may properly
evaluate the potential feasibility of the proposed project as well as the
proposer's capabilities to complete the proposed project.
(f)
Studies that the department deems necessary as to route
designation, civil engineering, traffic and revenue, environmental compliance,
and any other matters will be assigned, conducted, and paid for as negotiated
between the department and the successful proposer and set forth in the exclusive
development agreement. Unless otherwise provided in the RFP issued with respect
to a solicited proposal, the department will favor proposals, whether solicited
or unsolicited, in which the costs for studies will be advanced by the proposer.
The department reserves the right to discharge, in whole or in part, the costs
for such studies in its sole discretion and pursuant to the Turnpike Act.
The department may require that the financial plan for each proposal, whether
solicited or unsolicited, provide for reimbursement of all related expenses
incurred by the department, as well as any department study funds utilized,
in connection with the project.
(g)
The department, in its sole discretion, may authorize the
successful proposer to seek licensing, permitting, approvals, and participation
required from other governmental entities and private parties, subject to
such oversight and review by the department as specified in the exclusive
development agreement.
(h)
The department may solicit proposals or accept unsolicited
proposals in which the proposer is responsible for the environmental review
and clearance of the proposed project. The environmental review and the documentation
of that review shall comply with all requirements of state and federal law,
applicable federal regulations, and the National Environmental Policy Act
(42 U.S.C. §4321 et seq.), if applicable, including but not limited to
the study of alternatives to the proposed project and any proposed alignments,
procedural requirements, and the completion of any and all environmental documents
required to be completed by the department and any federal agency acting as
a lead agency. The department and any federal agency acting as a lead agency:
(1)
shall determine the scope of work necessary and adequate
to conduct and complete the environmental review and documentation;
(2)
may require the department to contract directly with the
consultant or subcontractor that will perform the environmental review if
necessary to comply with applicable law;
(3)
shall require the consultant or subcontractor selected
to perform the environmental review to report directly to the department and
remain under the ultimate direction of the department;
(4)
shall require the consultant or subcontractor selected
to perform the environmental review to execute a disclosure statement approved
by the department certifying that the consultant or subcontractor has no financial
or other conflicting interest in the outcome of the environmental review and
approval process or the proposed project;
(5)
shall specify the level of design and information to be
developed by the consultant or subcontractor selected to perform the environmental
review and to supervise the gathering, analysis, and presentation of this
information; and
(6)
shall review, modify, and approve all statements, analyses,
and conclusions included in any environmental documents prepared by the consultant
or subcontractor selected to perform the environmental review.
(i)
Completion of the environmental review and obtaining all
applicable state and federal environmental permits and approvals is required
before the private developer may be authorized to conduct and complete the
final design and construction of a project. Unless and until that occurs,
the department is not bound to any further development of the project. The
department and any federal agency acting as a lead agency may select an alternative
other than the one in the proposed project, including but not limited to the
"no-build" alternative.
(j)
All public meetings or hearings required to be held pursuant
to applicable law or regulation will be directed and overseen by the department,
with participation by such other parties as it deems appropriate.
(k)
Any matter not specifically addressed in this subchapter
which pertains to the acquisition, design, financing, construction, maintenance,
operation, extension or expansion of a turnpike project pursuant to this subchapter
shall be deemed to be within the primary purview of the commission, and all
decisions pertaining thereto, whether or not addressed in this subchapter,
shall be as determined by the commission, subject to the provisions of the
Turnpike Act and other applicable law.
§27.4.Solicited Proposals.
If the department develops a concept for private participation in a
turnpike project, it will solicit participation in accordance with the requirements
of this section:
(1)
The department will set forth the basic criteria for professional
expertise, financial capability, and end-product expectations in a request
for proposal (RFP) and will publish it at a minimum in the Texas Register
and in one or more newspapers of general circulation in this state. The department
may also elect to furnish the RFP to businesses in the private sector that
the department otherwise believes might be interested and qualified to participate
in the turnpike project which is the subject of the RFP.
(2)
At its sole option, the department may elect to furnish
conceptual designs, fundamental details, or detailed plans of the proposed
project in the RFP. The RFP may request one or more conceptual approaches
to bring the turnpike project to fruition.
(3)
The department may elect for the RFP to require that solicited
proposals be submitted and evaluated according to a two-phase process. In
that case, the first phase will require that a conceptual proposal be submitted
for prequalification or "conceptual" review; the second phase then will consist
of the submission from all or a "short-list" of the original proposers of
detailed documentation regarding the turnpike project. The RFP may require
that a portion of the total proposal review fee (as specified in the RFP)
be tendered with the submittal in each phase of a two-phase process. Alternatively,
the RFP may provide for a single-phase submission and evaluation process.
The determination of whether to utilize a two-phase or a single-phase procedure
shall be based on the relative complexity of the turnpike project which is
the subject of the RFP, as determined in the sole discretion of the department.
(4)
The proposals will be evaluated by the department as to
their feasibility (including the reasonableness of the financial plan), realistic
time frame, assumptions (including those related to ownership, legal liability,
law enforcement and operation of the project), forecasts, financial exposure
and benefit to the department, compatibility with other planned or existing
transportation facilities, likelihood of obtaining necessary approvals and
other support, cost and pricing, toll rates and projected usage, scheduling,
environmental impact, manpower availability, use of technology, governmental
liaison, and project coordination, with attention to efficiency, quality of
finished product and such other criteria, including conformity with department
policies, guidelines and standards, as may be deemed appropriate by the department
to maximize the overall performance of the project and the resulting benefits
to the state. Specific evaluation criteria and requests for pertinent information
will be set forth in the RFP.
(5)
In accordance with the terms of the RFP, each proposer
will be evaluated to determine its financial condition, management stability,
technological capability, experience, staffing, organizational structure,
project commitment, and such other qualities that the department considers
relevant to the successful completion of the project.
(6)
Based on the evaluation described under paragraphs (4)
and (5) of this section, the department will rank all proposals that are complete,
responsive to the RFP, and in conformance with the requirements of this subchapter.
The proposers will be notified in writing of the department's rankings.
(7)
Final selection of any proposal will be dependent, in part,
on the adequacy of the financial plan presented in that proposal. The department
will review the adequacy of the financial plan presented in the proposal and
determine if it is based on reasonable financial assumptions.
(8)
Only if a proposal is determined to be financially feasible
and to provide a reasonable basis for further development of the proposal
will the department then attempt to negotiate an exclusive development agreement
with that party to construct, maintain, repair, operate, extend or expand
the turnpike project. The Attorney General or the Attorney General's designated
representative will be included in the negotiations with the proposer. If
an exclusive development agreement satisfactory to the department cannot be
negotiated with that proposer, the department will formally end negotiations
with that proposer and, in its sole discretion, either:
(A)
reject all proposals;
(B)
terminate or suspend the evaluation of all proposals;
(C)
cancel the RFP;
(D)
modify the RFP and recommence the submission of proposals;
or
(E)
proceed to the next most highly ranked proposal and attempt
to negotiate an exclusive development agreement with that party in accordance
with this paragraph.
§27.5.Unsolicited Proposals.
Private entities may submit unsolicited proposals to the department
requesting participation in a turnpike project to be constructed pursuant
to the Turnpike Act. Unsolicited proposals shall be designated by the proposer
as a "Detailed Proposal" or a "Conceptual Proposal," and shall be processed
in accordance with the requirements of this section.
(1)
Detailed Proposals.
(A)
A detailed proposal requesting department participation
in a proposed turnpike project shall be filed with the department and must
include the following information:
(i)
the name, address, and professional designation of each
member of the proposer's management team and of other key employees or consultants;
(ii)
the description, scope, and location of the project;
(iii)
the results expected from project implementation and
the critical factors for the project's success;
(iv)
all studies previously completed concerning the project;
(v)
a general conceptual plan which includes, at a minimum,
all proposed interconnections with other transportation facilities and information
responsive to the evaluation criteria listed in §27.4(4) of this subchapter;
(vi)
complete information concerning the experience, expertise,
and qualifications of the proposer and of each member of the proposer's management
team and of other key employees or consultants, including information responsive
to the evaluation criteria listed in §27.4(5) of this subchapter;
(vii)
a description of all federal, state, and local permits
and approvals, together with documentation of support by appropriate public
entities required for the project, and a schedule and methodology for obtaining
permits, approvals, and support;
(viii)
a detailed financial plan, including that information
necessary for the department to determine the adequacy and feasibility of
the financial plan under §27.4(7) of this subchapter;
(ix)
a specific description of the level and nature of participation
sought from the department;
(x)
information necessary for the department to carry out its
environmental review responsibilities under §27.3(h) and (i) of this
subchapter;
(xi)
a listing of anticipated opponents and a description of
potential social, economic, and environmental impacts, and potentially competing
facilities and proposers;
(xii)
other information of probable interest to the department;
and
(xiii)
the proposal review fee of $20,000 in the form prescribed
by §27.3 of this subchapter.
(B)
Any detailed proposal properly filed with the department
in accordance with subparagraph (A) of this paragraph and accompanied by the
proper proposal review fee will be reviewed by the department. Based on that
review, an initial recommendation will be made to the commission as to whether
the department should further evaluate its requested participation in the
applicable turnpike project. That recommendation shall be based on whether
the proposed project:
(i)
is compatible with existing and planned transportation
facilities; and
(ii)
furthers state, regional, and local transportation plans,
programs, policies, and goals, as well as the proposal's responsiveness to
such other evaluation criteria as the department deems relevant.
(C)
If the initial recommendation is that the department further
evaluate its requested participation in the applicable turnpike project and
the commission approves that recommendation, the department will publish notice
of that decision and provide an opportunity for the submission of competing
proposals as provided in this section. The department will publish a notice
in the Texas Register and in one or more newspapers of general circulation
in this state. The notice will state that the department has received an unsolicited
proposal under these rules and the Turnpike Act, that it intends to evaluate
the proposal, that it may negotiate an exclusive development agreement with
the proposer based on the proposal, and that it will accept for simultaneous
consideration any competing proposals that the department receives in accordance
with these rules within 45 days of the initial publication of the notice in
the Texas Register, or such additional time as authorized by commission order.
In determining whether to authorize additional time for submission of competing
proposals, the commission will consider the complexity of the proposed project.
The notice will summarize the proposed turnpike project, identify its proposed
location and interconnections with other transportation facilities, and provide
a conceptual design. The department also may provide traffic counts, forecasts,
and other available data either in the notice or upon request of any party
responding to the notice.
(D)
Failure by a prospective proposer to submit a competing
proposal, together with the proper proposal review fee, within the 45-day
period or such additional time as authorized by the commission, shall preclude
the proposal from consideration by the department unless and until the department
terminates consideration of, or negotiations on, the original unsolicited
proposal and any and all competing proposals received within that time period.
The department will not grant requests to extend the time period to submit
competing proposals; and the receipt of one or more competing proposals during
that period will not trigger the posting or publication of a new notice or
the commencement of any new time period.
(E)
The department recognizes that it may receive proposals
that have certain characteristics in common with the original unsolicited
proposal, yet differ in other material respects. In those cases, the department
reserves the right, in its sole discretion, to treat such a proposal as either
a competing proposal or a noncompeting proposal. Because of the consequences
to a proposer of failing to submit a proposal that the department could later
deem a competing proposal within the 45-day period, or such additional time
as authorized by the commission, prospective proposers are strongly urged
to monitor the department's notices of unsolicited proposals received, and
be prepared to submit within that time period if they perceive that a proposal
they are considering or are preparing bears certain similarities to, or has
characteristics in common with, an unsolicited proposal which is the subject
of a notice.
(F)
Upon the expiration of the 45-day period, or such additional
time as authorized by the commission, the department will subject the original
unsolicited proposal, together with any and all properly submitted competing
proposals, to the following single-phase evaluation and selection process.
If one or more properly submitted competing proposals are received, the department
shall review and rank the proposals, together with the original unsolicited
proposal, utilizing the evaluation criteria set forth in §27.4(4) and
(5) of this subchapter and the information specified in subparagraph (A) of
this paragraph. The proposers will be notified of the department's rankings,
and the process will proceed in the manner described in §27.4(7) and
(8) of this subchapter including, without limitation, the participation of
the Attorney General or the Attorney General's designated representative in
the negotiation of an exclusive development agreement.
(i)
If no properly submitted competing proposal is received,
the department will attempt to negotiate an exclusive development agreement
for the project described in the original unsolicited proposal with the proposer
submitting that proposal.
(ii)
The Attorney General or the Attorney General's designated
representative will be included in the negotiation with the proposer. If an
exclusive development agreement satisfactory to the department cannot be negotiated
with that proposer, the department shall formally end the evaluation of the
original unsolicited proposal and all negotiations with the proposer submitting
that proposal.
(2)
Conceptual Proposals. A conceptual proposal requesting
department participation in a proposed turnpike project must be filed with
the department and be accompanied by a $5,000 proposal review fee. At a minimum,
a conceptual proposal must include a general description of the turnpike project,
anticipated costs associated with the project, the expected level of department
participation, and a designated contact for the proposer. Conceptual proposals
shall be reviewed by the department. Based on that review, an initial recommendation
will be made to the commission as to whether the department should request
that the proposer submit a follow-up proposal containing the information described
in paragraph (1)(A) of this section. If the recommendation is that the department
request that the proposer submit a follow-up proposal and the commission approves
that recommendation, the department shall notify the proposer in writing of
the request. The proposer shall have 45 days from the date of receipt of the
request, or such additional time as authorized by commission order, in which
to submit the follow-up proposal, which must be accompanied by a proposal
review fee in the amount of $15,000. In determining whether to authorize additional
time for the submission of the follow-up proposal, the commission will consider
the complexity of the proposed project. Once received, the follow-up proposal
shall be considered as a detailed proposal and shall be processed in accordance
with the procedures set forth in paragraph (1)(B)-(F) of this section.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201971
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
Subchapter B. SANCTION OF MAINTENANCE CONTRACTORS
43 TAC §§29.21 - 29.26
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in the offices
of the Texas Department of Transportation or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Transportation proposes the repeal
of §§29.21-29.26, concerning sanction of maintenance contractors.
EXPLANATION OF PROPOSED REPEALS
Sections 29.21 to 29.26, governing the imposition of sanctions on maintenance
contractors, were adopted in 1998. These provisions overlap with and duplicate
provisions in §§9.6-9.8 of this title, concerning procedures for
debarment and suspension of contractors. As a result, the existing rules are
both long and confusing.
The commission proposes the repeal of §§29.21-29.26 along with
the simultaneous proposal of the repeal of §§9.6-9.8 and the adoption
of new §§9.100-9.110. The repeals and new sections are proposed
for several reasons. First, the revisions integrate rules that are now scattered
in several chapters into a single set of rules applicable to all highway improvement
contractors. Second, the proposed rules are reorganized and rewritten to be
clearer, shorter, and easier to understand. The proposed rules are almost
half as long as the former rules. Third, the proposed rules permit contractors
to be sanctioned if they fail to execute a contract after winning a bid; this
is intended to address a recurring problem for which there is now no adequate
remedy.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the repeals are in effect, there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
repeals. There are no anticipated economic costs for persons required to comply
with the sections as proposed.
Thomas Bohuslav, P.E., Director, Construction Division, has certified that
there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the repeals.
PUBLIC BENEFIT
Mr. Bohuslav has also determined that for each year of the first five years
the repeals are in effect, the public benefit anticipated as a result of enforcing
or administering the repeals and new sections will be to further the department's
mission to provide an efficient and fair process of administering contractor
sanctions. There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeals may be submitted to Thomas Bohuslav,
P.E., Director, Construction Division, 125 East 11th Street, Austin, Texas
78701-2483. The deadline for receipt of comments is 5:00 p.m. on May 13, 2002.
STATUTORY AUTHORITY
The repeals are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by the proposed repeals.
§29.21.Purpose.
§29.22.Definitions.
§29.23.Reasons for Sanctions.
§29.24.Notice and Appeal.
§29.25.Effective Date of Sanction.
§29.26.Imposition of Sanctions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201972
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
Chapter 53.
CONTRACTING AND PROCUREMENT PROCEDURES
The Texas Department of Transportation proposes the repeal of §§53.1-53.12,
concerning turnpike project improvement contracts, and §§53.50-53.54,
concerning contract disputes and debarment.
EXPLANATION OF PROPOSED REPEALS
Senate Bill 342, 77th Legislature, 2001, abolished the Board of Directors
(board) of the Texas Turnpike Authority Division (TTA) of the Texas Department
of Transportation (department), subject to approval by the voters of Senate
Joint Resolution 16. The voters approved SJR 16 on November 6, 2001. Senate
Bill 342 further provided that rules of the board continue in effect as rules
of the Texas Transportation Commission (commission).
The commission promulgates rules governing the operations of the department,
codified in Title 43, Part 1 (Chapters 1-31). The TTA board was responsible
for promulgating rules governing the operations of TTA, codified in Title
43, Part 2 (Chapters 50-54). With the abolishment of the board, TTA will be
more completely consolidated with the department, and the commission will
be responsible for promulgating rules governing the operations of TTA.
Sections 53.1-53.12 prescribe the policies and procedures governing bidder
qualification, bidding, award, and execution of contracts entered under Transportation
Code, §361.231, for the improvement of a turnpike project. With the abolishment
of the board, these rules are no longer needed since the department has rules
found at §§9.10-9.20 that govern bidder qualification, bidding,
award, and execution of non-tolled state highway improvement projects. The
Chapter 9 rules and the TTA Chapter 53 rules are very similar; however, the
Chapter 9 rules are more up to date and comprehensive. By separate commission
action, Chapter 9, Subchapter B, concerning Highway Improvement Contracts,
is being amended to state that the subchapter applies to turnpike improvement
projects in addition to non-tolled state highway improvements.
Sections 53.50-53.54 provide: (1) a contract claim procedure for contracts
entered under Transportation Code, Chapter 361, relating to the TTA; (2) an
equal employment opportunity policy applicable to TTA contractors and subcontractors;
and (3) procedures for the debarment and suspension of certain TTA contractors
and subcontractors.
By separate action, the commission is proposing new §9.120 governing
contract claims arising from toll road projects. New §9.120 will reflect
the requirements of Government Code, Chapter 2260, concerning certain contract
claims against the state. Chapter 2260 was enacted by the legislature subsequent
to the adoption of §53.50. New §9.120 will replace existing §53.50.
With the abolishment of the board, §53.51, equal employment opportunity,
is no longer necessary. Section 9.4, civil rights - Title VI compliance, which
is also being amended by separate action, will apply to TTA contracts.
By separate action, the commission is proposing new §§9.100-9.110
concerning contractor sanctions. These new rules will govern, among other
things, the debarment and suspension of TTA contractors and subcontractors.
Therefore, §§53.52-53.54 will no longer be necessary.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for each of
the first five-years the repeals are in effect, there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
repeals. There are no anticipated economic costs for persons required to comply
with the repeals as proposed.
Phillip E. Russell, P.E., Director, Turnpike Authority Division, has certified
that there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the repeals.
PUBLIC BENEFIT
Mr. Russell has also determined that for each year of the first five years
the repeals are in effect, the public benefit anticipated as a result of enforcing
or administering the repeals will be the removal of duplicative and unnecessary
rules. There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeals may be submitted to Phillip E.
Russell, P.E., Director, Turnpike Authority Division, 125 East 11th Street,
Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m.
on May 13, 2002.
Subchapter A. TURNPIKE PROJECT IMPROVEMENT CONTRACTS
43 TAC §§53.1 - 53.12
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Turnpike Authority Division of the Texas Department of Transportation
or in the Texas Register office, Room 245, James Earl Rudder Building, 1019
Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Transportation Code, §201.101, which
provides the commission with the authority to establish rules for the conduct
of the work of the department, and Transportation Code, Section 361.042, which
requires the commission to adopt rules for the regulation of its affairs and
the conduct of its business under Transportation Code, Chapter 361.
No statutes, articles, or codes are affected by the proposed repeals.
§53.1.Purpose.
§53.2.Definitions.
§53.3.Qualification of Bidders and Registration of Subcontractors.
§53.4.Notice of Letting and Issuance of Proposals.
§53.5.Submittal of Proposal.
§53.6.Acceptance, Rejection and Reading of Proposals.
§53.7.Tabulation of Bids.
§53.8.Award of Contract.
§53.9.After Contract Award.
§53.10.Emergency Contract Procedures.
§53.11.Partial Payments.
§53.12.Compliance with DBE/HUB Requirements.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201973
Richard D. Monroe
General Counsel
Texas Turnpike Authority Division of the Texas Department of Transportation
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 463-8630
43 TAC §§53.50 - 53.54
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Turnpike Authority Division of the Texas Department of Transportation
or in the Texas Register office, Room 245, James Earl Rudder Building, 1019
Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Transportation Code, §201.101, which
provides the commission with the authority to establish rules for the conduct
of the work of the department, and Transportation Code, Section 361.042, which
requires the commission to adopt rules for the regulation of its affairs and
the conduct of its business under Transportation Code, Chapter 361.
No statutes, articles, or codes are affected by the proposed repeals.
§53.50.Contract Claim Procedure.
§53.51.Equal Employment Opportunity.
§53.52.Procedure for Debarment of a Contractor.
§53.53.Procedure for Suspension of a Contractor.
§53.54.Supplemental Procedures for Suspension or Debarment of a Contractor.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 29, 2002.
TRD-200201974
Richard D. Monroe
General Counsel
Texas Turnpike Authority Division of the Texas Department of Transportation
Earliest possible of adoption: May 12, 2002
For further information, please call: (512) 463-8630
Subchapter A. POLICY, RULES AND PROCEDURES FOR PRIVATE INVOLVEMENT IN AUTHORITY PROJECTS
(11)
] Donor--The private business
or civic organization which adopts a safety rest area under the Adopt-an-Area
Program or donates funds or services [
to a local government
] for
the purpose of participating in the Landscape Cost Sharing or Adopt-a-Freeway
Programs.
(12)
] Family member--Any spouse,
sibling, parent, stepparent, grandparent, child, stepchild, aunt, uncle or
cousin.
(13)
] Group--An entity that adopts
a section of state highway right of way or an airport.
(14)
] Highway landscaping--A project
design intent which attempts to provide primarily for the installation of
native, naturalized, or adapted plant material within the project limits.
(15)
] Local government--A city
or county.
(16)
] Non-cash contributions--The
agreed value of labor, equipment, material, or design services furnished by
a local government
or
[
, and the agreed value of material
and design services furnished by the
] donor in support of the project.
(17)
] Pedestrian landscaping--A
project design intent which requires the installation of elements oriented
primarily to pedestrian usage, including, but not limited to, parking, curbs,
sidewalks, pavers, ramps for the disabled, cycling or jogging trails, benches,
trash receptacles, or illumination.
(18)
] Project concept plan--The
preliminary sketches, drawings, details, estimates, and specifications required
by the department to illustrate the type of project development and establishment
proposed [
by the local government
], and as required for the department
to determine if the proposed project is a highway landscaping project or a
pedestrian landscaping project.
(19)
] Project design plan--The
final drawings, details, specifications, and estimates[
, whether furnished
by or through the local government or the department
] as may be required
by the department to fully control the work to be performed on the project.
(20)
] Project development--The
initial construction and installation of the landscape items in accordance
with the project design plan.
(21)
] Project establishment--The
landscape maintenance activities required to ensure the viability, upkeep,
and continued effectiveness of the project.
(22)
] Project maintenance--The
activities performed as determined by the program agreement to ensure the
establishment, upkeep, and continued effectiveness of the project.
(23)
] Safety rest area--A roadside
park, equipped with restroom facilities, intended to improve highway safety
by providing a location for motorists to rest and recover from highway travel,
such term to include a safety rest area adjacent to travel information centers.
(24)
] Sponsor--A local government
or other public entity that owns or operates an airport.
Local government
].
A local government
or a private business or civic organization
[
, upon approval of the district engineer,
] may share in the cost of
the development, establishment, and maintenance of the landscaping of a segment
of the state highway system
upon approval of the district engineer
.
A private business or civic organization is eligible to participate:
(2)
Donor.
]
An eligible private business or civic organization may participate in the
Program as a donor
] by providing to the local government [
cash
or non-cash
] donations in an amount equal to not less than 25% of the
local government's share of the project cost
; or
[
.
]
entity
which
] desires to participate or to continue to participate in the Program
shall submit an application to the district engineer of the district in which
the
project site
[
adopted section
] is located.
by
the local government
]).
governments
] to perform
work on state highway right-of-way when approved by the district engineer.
local government's
] contribution toward the proposed project.
the local government's
] installation.
to the local
government
] for the project, applicable statutes, rules, and procedures
relating to the purchase of materials using state funds will apply.
proposed by the local
government
] to be approved by the department, the following site conditions
must be met. The site must:
as proposed by the
local government
] to be approved by the department, the following design
considerations must be met.
the local government's
] contribution toward the project;
the local government's
] contribution toward
the project.
(d)
] of this section is approved by the department,
the local government
or donor
shall enter into a written agreement
with the department providing participation in the Program. The agreement
becomes effective when finally executed by the department and shall terminate
upon satisfactory completion of the work as stipulated within the agreement.
Work on any phase of the project may not begin until the agreement is fully
executed by both parties.
department and the local government
] shall not assign or otherwise transfer
their
[
its
] obligations under this agreement except with prior written consent
of the other party.
If prepared by the local government,
the
] project design plan shall be subject to the review and satisfactory
approval by the department prior to a departmental bid opening.
by the local
government
] shall be grounds for termination of the agreement by the
department. In the event of disputes as to [
the party's
] obligations
under the agreement, the department's decision shall otherwise be final and
binding.
from the local government or donor under the
agreement
].
as agreed upon by the department and the local government
].
Chapter 9.
CONTRACT MANAGEMENT
contractors, subcontractors, consultants,
and universities with which it may have contracts or agreements to ensure
that departmental policy with respect to employment practices of the contracting
agencies are in compliance with
] Title VI of the Civil Rights Act
of 1964 and its amendments
.
The department will also monitor the
operations of all public and private entities with federally assisted contracts
with the department to ensure that each entity
[
It will also determine
if the contracting agency
] has implemented
equal employment opportunity
requirements
[
an acceptable Equal Employment Opportunity Program
].
Chapter 9.
CONTRACT MANAGEMENT
Subchapter G. CONTRACTOR SANCTIONS
Subchapter B. HIGHWAY IMPROVEMENT CONTRACTS
(4)
] Bidding capacity - The maximum
dollar value a contractor may have under contract at any given time.
(5)
] Building contract - A contract
entered under Transportation Code, Chapter 223, Subchapter A
, or Transportation
Code, §361.231,
for the construction or maintenance of a department
building or appurtenant facilities.
(6)
] Certification of Eligibility
Status form - A notarized form describing any suspension, voluntary exclusion,
ineligibility determination actions by an agency of the federal government,
indictment, conviction, or civil judgment involving fraud, official misconduct,
each with respect to the bidder or any person associated with the bidder in
the capacity of owner, partner, director, officer, principal investor, project
director/supervisor, manager, auditor, or a position involving the administration
of federal funds, covering the three-year period immediately preceding the
date of the qualification statement.
(7)
] Commission - The Texas Transportation
Commission.
(8)
] Confidential Questionnaire
- A prequalification form reflecting detailed financial and experience data.
(9)
] Construction contract - A
contract entered under Transportation Code, Chapter 223, Subchapter A,
or Transportation Code, §361.231,
for the construction or reconstruction
of a segment of the state highway system.
(10)
] Department - The Texas Department
of Transportation.
(11)
] Deputy executive director
- Any second tier manager appointed by the executive director.
(12)
] Disadvantaged business enterprise
(DBE) - As defined in Title 49 Code of Federal Regulations (CFR) §26.5,
a for-profit small business concern, certified by the department, that is
at least 51% owned by one or more individuals who are both socially and economically
disadvantaged, or in the case of a corporation, in which 51% of the stock
is owned by one or more such individuals, and whose management and daily business
operations are controlled by one or more of the socially and economically
disadvantaged individuals who own it.
(13)
] District engineer - The chief
executive officer in each of the designated district offices of the department.
(14)
] Emergency - Any situation
or condition of a designated state highway, resulting from a natural or man-made
cause, that poses an imminent threat to life or property of the traveling
public or which substantially disrupts or may disrupt the orderly flow of
traffic and commerce.
(15)
] Executive director - The
executive director of the Texas Department of Transportation.
(16)
] Highway improvement contract
- A construction, maintenance, or building contract.
(17)
] Historically underutilized
business (HUB) - A corporation, sole proprietorship, partnership, or joint
venture formed for the purpose of making a profit, certified by the General
Services Commission in accordance with Government Code, Chapter 2161.
(18)
] Maintenance contract - A
contract entered under Transportation Code, Chapter 223, Subchapter A,
or Transportation Code, §361.231,
for the maintenance of a segment
of the state highway system.
(19)
] Materially unbalanced bid
- A bid which generates a reasonable doubt that award to the bidder submitting
a mathematically unbalanced bid will result in the lowest ultimate cost to
the state.
(20)
] Mathematically unbalanced
bid - A bid containing lump sum or unit bid items that do not reflect reasonable
actual costs plus a reasonable proportionate share of the bidder's anticipated
profit, overhead costs, and other indirect costs.
(21)
] Preventive maintenance contract
- Contracts let through the construction contracting procedure to preserve
and prevent further deterioration of the roadways and rights of way, with
all its components.
(22)
] Proposal - The offer of the
bidder, made out on the prescribed form, giving bid prices for performing
the work described in the plans and specifications.
(23)
] Proposal guaranty - The security
designated in the proposal and furnished by the bidder as a guaranty that
the bidder will enter into a contract if awarded the work.
(24)
] Regular bid item - A bid
item contained in a proposal and not designated as an alternate bid item.
(25)
] Routine maintenance contract
- Contracts let through the routine maintenance contracting procedure to preserve
and repair roadways and rights of way, with all its components, to its designed
or accepted configuration.
§2155.074(h)(1)
], and Title 23, Code of Federal Regulations, §635.112(b).
or
]
low
] bid is determined
to be both mathematically and materially unbalanced;
or
]
or
] (d)
, or (e)
of this section, if the commission does
not reject all bids, it will award the contract to the lowest bidder.
§29.21, et seq.
]
(e)
] Contracts with an engineer's
estimate of less than $300,000 may be awarded or rejected by the executive
director or the director's designee under the same conditions and limitations
as provided in subsections (a)-(c) of this section.
(1)
]
[
Apparent low bidder.
] The department
will retain the proposal guaranty of the successful bidder until after the
contract has been [
awarded,
] executed[
,
] and bonded.
If the successful bidder does not comply with subsection (a) of this section,
the proposal guaranty will become the property of the state, not as a penalty
but as liquidated damages; provided, however, the department may, based on
documentation submitted by the contractor, grant a 15-day extension to comply
with the requirements under subsection (a)(3) of this section. A bidder who
forfeits a proposal guaranty will not be considered in future proposals for
the same work unless there has been a substantial change in the design of
the project subsequent to the forfeiture of the proposal guaranty.
(2)
Other bidders. Not later than
72 hours after bids are opened, the department will mail the proposal guaranty
of all bidders except the apparent low bidder to the address specified on
each bidder's return bidder's check form included in the proposal.]
Subchapter H. CONTRACT CLAIMS ARISING FROM TOLL ROAD PROJECTS
Chapter 11.
DESIGN
Chapter 25.
TRAFFIC OPERATIONS
improve
] safety
in and around school areas
through a construction program designed to
improve the bicycle and pedestrian safety of school age children
. [
Candidate projects for the Safe Routes to School Program may be awarded funding
received by the department under the Federal Hazard Elimination Program (23
U.S.C. §152).
] The Safe Routes to School Program is a competitive
construction program funded through
state and federal
[
safety
construction
] funds and local contributions. The sections under this
subchapter prescribe the policies and procedures for the implementation of
the program.
(4)
] Executive director - The executive
director of the Texas Department of Transportation or his or her designee.
(5)
HES - The federal Hazard Elimination
Program established under 23 U.S.C. §152.]
Project eligibility.
The Safe Routes to School Program is a construction program designed to improve
the bicycle and pedestrian safety of school age children.
] Projects
may be submitted
only
by political subdivisions [
as defined
in this subchapter
].
categories or improvements
]:
and/or
] bicycle over-crossings
and under-crossings, flashing beacons, traffic signal phasing extensions,
bicycle sensitive actuation devices, pedestrian activated signal upgrades,
and sight distance improvements;
bike
] lanes,
widened
[
widening
]
outside lanes
or
[
and/or
] roadway shoulders, geometric
improvements, turning lanes, channelization and roadway realignment, traffic
signs, and pavement markings;
and/or
] pedestrian trails
and pathways; and
towards
] the total cost of the project when the project is located
on municipal or county
right of way
[
right-of-way
].
This requirement is consistent with regulations governing federal funds.
office
] responsible for the area in which the proposed improvement
will be constructed.
office
] as well as from the
responsible division
[
Traffic Operations Division
] in Austin.
Chapter 27.
TOLL PROJECTS
Chapter 29.
MAINTENANCE
Part 2.
TEXAS TURNPIKE AUTHORITY DIVISION OF THE TEXAS DEPARTMENT OF TRANSPORTATION
Subchapter C. CONTRACT DISPUTES AND DEBARMENT
Chapter 54.
PRIVATE INVOLVEMENT IN TTA PROJECTS