43 TAC §§201.20 - 201.25
STATUTORY AUTHORITY
The new sections are proposed under Transportation Code, Title 6, Subtitle
G, Chapter 366, §366.033(j), which authorizes the NTTA to adopt written
procedures governing its procurement of goods and services that are consistent
with general laws applicable to the Authority.
CROSS REFERENCE TO STATUTE
Transportation Code, §366.033, Transportation Code, §366.184,
Transportation Code, §366.185, Local Government Code, Chapter 271, Local
Government Code, Chapter 272, Government Code, Chapter 791, Government Code,
Chapter 2252, and Government Code, Chapter 2258.
§201.20.Appendix A. Construction and Maintenance Contracts.
(a)
Competitive Bidding. A contract requiring the expenditure
of public funds for the construction or maintenance of a turnpike project
must be let by competitive bidding in which the contract is awarded to the
lowest responsible bidder that complies with the Authority's criteria for
such contract.
(b)
Qualification of Bidders. Unless otherwise provided in
the bid documents, a potential bidder must be qualified to bid on construction
and maintenance contracts of the Authority. With respect to contracts requiring
qualification, unless the Authority elects, in its sole discretion, to separately
qualify bidders on a construction or maintenance project, only bidders qualified
by TxDOT to bid on TxDOT's construction or maintenance contracts (including,
however, if expressly permitted under the applicable bid documents, bidders
qualified to bid on so-called "waived projects" through the use of TxDOT's
"Bidder's Questionnaire" form) will be deemed qualified by the Authority to
bid on the Authority's construction or maintenance contracts. At its election,
the Authority may waive this subsection (b) with respect to bidders on any
construction or maintenance contracts, including any building contract.
(c)
Notice of Contract Letting. The Authority shall determine
the content and method of advertising for all notices of contract letting.
If any newspaper advertisement is used, the notice must appear in the officially
designated newspaper of the Authority, in addition to the other newspapers
used, if any.
(d)
Issuance of Bid Documents. Except as otherwise provided
in this policy, the Authority will issue bid documents for a construction
or maintenance contract upon request and only after proper notice has been
given regarding the contract letting. If otherwise required by law, a request
for bid documents for a federal-aid project must be submitted in writing and
must include a statement in a form prescribed by the Authority certifying
whether the bidder is currently disqualified by an agency of the federal government
as a participant in programs and activities involving federal financial and
non-financial assistance and benefits. A request for bid documents for any
other construction or maintenance contract may be made orally or in writing.
Unless otherwise prohibited under this policy, the Authority will, upon receipt
of a request, issue bid documents for a construction or maintenance contract
as follows:
(1)
upon the Authority's receipt of payment for the bid documents,
if applicable;
(2)
to a bidder qualified by TxDOT, if the estimated cost of
the project is within that bidder's available bidding capacity as determined
by TxDOT;
(3)
to a bidder qualified by the Authority, if the estimated
cost of the project is within that bidder's available bidding capacity as
determined by the Authority; and
(4)
to a bidder who has substantially complied with the Authority's
requirements for qualification, if any, as determined by the Authority.
(e)
Withholding Bid Documents. The Authority will not issue
bid documents for a construction or maintenance contract if:
(1)
the bidder is suspended or debarred from contracting with
TxDOT or the Authority;
(2)
the bidder is prohibited from rebidding a specific project
because of default under a previously awarded bid;
(3)
the bidder has not fulfilled the requirements for qualification
under this policy, if any, unless the bidder has substantially complied with
the requirements for qualification, as determined by the Authority;
(4)
the bidder 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; or
(5)
the bidder or its subsidiary or affiliate has received
compensation from the Authority to participate in the preparation of the plans
or specifications on which the bid or contract is based.
(f)
Completion and Submission of Bid Documents.
(1)
At the option of the Authority, an optional or mandatory
pre-bid conference may be held before opening bids to allow potential bidders
to seek clarification regarding the procurement and/or the bid documents or
for any other purpose the Authority deems appropriate. Alternatively, the
Authority may permit bidders to submit written requests for clarification.
A bidder that fails to attend a mandatory pre-bid conference may be disqualified
from submitting its bid or proposal.
(2)
Except for bids submitted electronically, bidders shall
complete all information requested in the bid documents by typing, printing
by computer printer, or printing in ink. The bidder shall submit a unit price,
expressed in numerals, for each item for which a bid is requested (including
zero dollars and zero cents, if appropriate), except in the case of a regular
item that has an alternate bid item. In such case, prices must be submitted
for the base bid and/or with the set of items of one or more of the alternates.
Unit prices shown on acceptable computer printouts will be the official unit
prices used to tabulate the official total bid amount and used in the contract
if awarded.
(3)
Except for bids submitted electronically, each set of bid
documents shall be executed in ink in the complete and correct name of the
bidder making the bid and shall be signed by the person or persons authorized
to bind the bidder.
(4)
If required by the bid documents, the bidder must submit
a bid guaranty with the bid. The bid guaranty shall be in the amount specified
in the bid documents, shall be payable to the Authority, and shall be 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 "bank") and payable at
or through a branch of the issuing bank located in a county of the Authority.
The form of the instrument must be identified on the instrument's face. The
Authority will not accept cash, credit cards, personal checks or certified
checks or other types of money orders. Failure to submit the required bid
guaranty in the form set forth in this subsection shall disqualify a bidder
from bidding on the project described in the bid documents.
(5)
A bidder may submit a bid bond, in lieu of providing the
guaranty required in Appendix A, subsection (f)(4). The bid bond shall be
on the form and in the amount specified by and acceptable to the Authority.
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 Authority
must be within the surety company's authorized bonding limit. The Authority
may require a greater amount for a bid bond in order to compensate for increased
administrative costs associated with bid bonds.
(6)
A bid on a federal-aid project shall include, in a form
prescribed by the Authority, a certification of eligibility status. The certification
shall describe any suspension, debarment, voluntary exclusion, or ineligibility
determination actions by an agency of the federal government, and any indictment,
conviction, or civil judgment involving fraud or official misconduct, each
with respect to the bidder or any person associated therewith in the capacity
of owner, partner, director, officer, principal investor, project director/supervisor,
manager, auditor, or a position involving the administration of federal funds;
such certification shall cover the three-year period immediately preceding
the date of the bid. Information adverse to the bidder as contained in the
certification will be reviewed by the Authority and by the Federal Highway
Administration, and may result in rejection of the bid and disqualification
of the bidder.
(7)
The bidder shall place each completed set of bid documents
in a sealed envelope which shall be clearly marked "Bid Documents for (name
of the project or service)". 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 at the location designated in the notice
on or before the hour, as established by the official clock of the Authority,
and date set for the receipt. The official clock at the administrative office
of the Authority shall serve as the official determinant of the hour for which
the bid shall be submitted and whether a bid is deemed timely or late.
(g)
Revision of Bid by Bidder. Unless submitted electronically,
a bidder may change a bid price before it is submitted to the Authority by
changing the price and initialing the revision in ink. A bidder may change
a bid price after it is submitted to the Authority by requesting return of
the bid in writing prior to the expiration of the time for receipt of bids.
The request must be made by a person authorized to bind the bidder. The Authority
will not accept a request by telephone, telegraph or electronic mail, but
will accept a properly signed facsimile request. The revised bid must be resubmitted
prior to the time specified for the close of the receipt of bids to be considered.
(h)
Withdrawal of Bid. A bidder may withdraw a bid by submitting
a request in writing before the time and date of the bid opening. The request
must be made by a person authorized to bind the bidder. Except for an electronic
bid, which may be withdrawn in accordance with the electronic withdrawal procedures,
if any, provided for that bid, the Authority will not accept telephone, telegraph
or electronic mail requests, but will accept a properly signed facsimile request.
(i)
Acceptance, Rejection, and Reading of Bids. Bids will be
opened and read at a public meeting held at the time, date and place designated
in the notice, as may have been extended by direction of the executive director
or the director of the department issuing the bid documents. The Authority
will not accept, and will not read, a bid if:
(1)
the bid is submitted by an unqualified bidder;
(2)
the bid is in a form other than the official bid documents
issued to the bidder;
(3)
the form and content of the bid do not comply with the
requirements of the bid documents and/or subsection Appendix A, subsection
(f);
(4)
the bid or, if required, the federal-aid project certification
is not signed;
(5)
the bid was received after the time specified in the notice,
as may have been extended, or at some location other than as specified in
the notice;
(6)
the bid guaranty, if required, does not comply with subsection
Appendix A, subsection (f);
(7)
the contract provides for the payment of state funds and
any individual or entity owning at least twenty-five percent (25%) of the
bidder is more than thirty (30) days delinquent in providing child support
under a court order or a written repayment agreement;
(8)
the bidder was not authorized to be issued bid documents
under this policy;
(9)
the bid did not otherwise conform with the requirements
of this policy; or
(10)
more than one bid involves to a material degree a bidder
under the same or different names, as determined by the Authority.
(11)
Further, the Authority may elect to disqualify a bidder
if the bidder did not attend a specified mandatory pre-bid conference.
(j)
Tabulation of Bids. Except for lump sum building contracts
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. Bid entries such as "no dollars and no
cents" or "zero dollars and zero cents" will be interpreted to be one-tenth
of a cent ($.001) and will be entered in the bid tabulation as $.001. Any
entry less than $.001 will be interpreted and entered as $.001. If a bidder
submits both a completed set of bid documents and a properly completed computer
printout of unit bid prices, the Authority will use the computer printout
to determine the total bid amount of the bid. If the computer printout is
incomplete, the Authority will use the completed bid documents to determine
the total bid amount of the bid. If a bidder submits multiple computer printouts
reflecting different totals, each printout will be tabulated, and the Authority
will use the lowest tabulation. If a unit bid price is illegible, the Authority
will make a documented determination of the unit bid price for tabulation
purposes. If a unit bid price has been entered for both the regular bid and
a corresponding alternate bid, the Authority will select the bid that, in
its judgment, provides the best value to the Authority, unless otherwise provided
in the bid documents.
(k)
Award of Contract. Except as otherwise provided in this
Appendix A, if the Authority does not reject all bids, it will award the contract
to the lowest responsible bidder. In determining the lowest responsible bidder,
in addition to price the Authority shall consider:
(1)
the bidder's ability, capacity and skill to perform the
contract or provide the service required;
(2)
the bidder's ability to perform the contract or provide
the service promptly, or in the time required, without delay or interference;
(3)
the bidder's character, responsibility, integrity, reputation
and experience;
(4)
the quality of performance by the bidder of previous contracts
or services;
(5)
the bidder's previous and existing compliance with laws
relating to the contract or service; and
(6)
the sufficiency of the bidder's financial resources and
ability to perform the contract or provide the service.
(l)
Rejection of Bids. The Authority may reject for any reason
any and all bids opened, read and tabulated under this policy. It will reject
all bids if there is reason to believe collusion may have existed among the
bidders. The Authority may reject all bids if the lowest responsible bid is
higher than the Authority's estimate and the Authority determines that re-advertising
the project for bids may result in a significantly decreased lowest responsible
bid or that the work should be done by the Authority.
(m)
Contract Execution; Submission of Ancillary Items.
(1)
Within the time limit specified by the Authority, the successful
bidder must execute and deliver the contract to the Authority, together with
all information required by the Authority relating to the participation of
Disadvantaged Businesses to be used to determine compliance with the BOPP
or as otherwise specified in the bid documents and the contract.
(2)
After the Authority sends written notification of its acceptance
of the successful bidder's compliance with the BOPP, the successful bidder
must furnish to the Authority within the time limit specified by the Authority:
(A)
a performance bond and a payment bond, if required, as
provided in Texas Government Code, Chapter 2253, with powers of attorney 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; and
(B)
a certificate of insurance on form ACORD-28, or such other
form as indicated by the Authority, showing coverages in accordance with contract
requirements; provided, however, that the Authority may permit a successful
bidder on a construction contract to postpone delivery of the certificate
of insurance until prior to the date the bidder begins work as specified in
the Authority's order to begin work.
(n)
Unbalanced Bids. The Authority will examine the unit bid
prices of the apparent lowest responsible bid for reasonable conformance with
the Authority's estimated prices. The Authority will evaluate, and may reject,
a bid with extreme variations from the Authority's estimate, or where obvious
unbalancing of unit prices has occurred.
(o)
Bid Guaranty. Not later than seven (7) days after bids
are opened, the Authority will mail the bid guaranty of all bidders to the
address specified on each bidder's bid documents, except that the Authority
will retain the bid guaranty of the apparent lowest responsible bidder, second-lowest
responsible bidder and third-lowest responsible bidder until after the contract
has been awarded, executed and bonded, and all other provisions of Appendix
A, subsection (m) have been satisfied. If the successful bidder (including
a second-lowest responsible bidder or third-lowest responsible bidder that
ultimately becomes the successful bidder due to a superior bidder's failure
to comply with this policy or to execute a contract with the Authority) does
not comply with Appendix A, subsection (m), the bid guaranty will become the
property of the Authority, not as a penalty but as liquidated damages; each
bidder by submitting its bid acknowledges and agrees that the actual amount
of damages the Authority will suffer as a result of the successful bidder's
failure to comply with Appendix A, subsection (m) is difficult or impossible
to determine, and that the bid guaranty is a fair and reasonable estimate
of those damages. A bidder that forfeits a bid guaranty will not be considered
in future bids for the same work unless there has been a substantial change
in the design of the project subsequent to the forfeiture of the bid guaranty.
(p)
Escrowed Bid Documents.
(1)
The Authority may require the successful bidder and its
subcontractors to submit copies of all information, whether in documentary
or electronic form, that is generated or utilized in the preparation of a
bid to be held in escrow, and may condition the award of the contract upon
its receipt of the escrowed bid documents. The purpose of the escrowed bid
documents is to assist in the settlement or determination of any disputes,
claims, change orders or price adjustments. By executing the contract, the
bidder shall warrant that the escrowed bid documents constitute all of the
information used in preparation of its bid, offer or proposal, and that no
other bid preparation information will be utilized in resolving disputes or
for any other purpose in connection with the contract.
(2)
The Authority shall indicate in its bid documents the time,
place and manner in which the escrowed bid documents are to be submitted.
Information contained in the escrowed bid documents shall not alter or modify
the contract, nor be considered a part of the contract.
(3)
The escrowed bid documents shall be submitted in a sealed
container clearly marked on the outside with the bidder's name, date of submittal,
project name, contract number, and the words "Escrowed Bid Documents." Certification
shall accompany the submission of the escrowed bid documents and must be signed
by an individual authorized to execute the bid. The bidder also shall deliver
a lockable fireproof cabinet of sufficient size to contain the escrowed bid
documents. The bidder shall retain custody of the cabinet key(s).
(4)
The Authority will maintain the escrowed bid documents
in a safe physical condition; however, the escrowed bid documents are, and
shall remain, the property of the bidder. Any portion of the escrowed bid
documents that the bidder believes comprises trade secrets or other proprietary
or confidential information should be clearly marked as such by the bidder.
(5)
Before the award of the contract to the apparent lowest
responsible bidder and the execution of the contract by the parties, the escrowed
bid documents will be examined and inventoried by representatives of the Authority
and the bidder. To ensure that the escrowed bid documents are authentic, legible
and complete, the bidder's representative must be knowledgeable in how the
bid was prepared. The Authority's review of the escrowed bid documents shall
not constitute approval of the bidder's proposed methods, estimating assumptions
or prices, contract interpretations or any other matters contained in the
escrowed bid documents. If the Authority determines that any information required
to be included in the escrowed bid documents is not contained in the bidder's
original submittal of escrowed bid documents, the bidder shall promptly supply
all missing documentation prior to award and execution of the contract. The
bidder's failure to comply with this requirement within the time specified
by the Authority may cause the bidder's proposal to be rejected and its bid
guaranty to be forfeited. Material errors or discrepancies in the escrowed
bid documents may cause the bidder's bid, offer or proposal to be rejected
and may result in the forfeiture of the bidder's bid guaranty.
(6)
The escrowed bid documents shall be examined by both the
Authority and the bidder, at any time deemed necessary by either the Authority
or the bidder, to assist in the settlement of disputes, claims and other matters
with the contractor, and, if determined to be appropriate by the Authority,
in its consideration of price adjustments and change orders. Examination of
the escrowed bid documents is subject to the following conditions:
(A)
Prior to examination, the Authority and the bidder shall
each designate in writing to the other party the representatives who are authorized
to examine the escrowed bid documents. No other person(s) shall have access
to the escrowed bid documents, except as required by law or under the rules
or orders of any legal proceeding.
(B)
Examination of the escrowed bid documents will take place
only in the presence of duly designated representatives of both the Authority
and the bidder.
(C)
Examination of the escrowed bid documents will be for the
sole purpose of obtaining information concerning the bases for the contractor's
bid amounts. It will not obligate the Authority to modify or amend any provision
of the contract, including provisions pertaining to price adjustments, change
orders or completion deadlines.
(7)
If the contractor wishes to subcontract any portion of
the work after the contract award, the Authority may require the bidder to
submit escrowed bid documents from the subcontractor before the subcontract
is approved.
(8)
The escrowed bid documents will be returned to the bidder,
along with the lockable fireproof cabinet provided by the bidder, within ninety
(90) days after the Authority determines that all work has been satisfactorily
performed. If any dispute regarding any matters related to the contract or
the work exists or is threatened on such date, the escrowed bid documents
may be retained at the Authority's office until final settlement of all matters
relating to the contract.
(q)
Progress Payments; Retainage and Liquated Damages.
(1)
In addition to other provisions required by the Authority,
construction and maintenance contracts may provide for the Authority to make
progress payments, which may be reduced by retainage, as work progresses and
is approved by the Authority.
(2)
If a retainage is required, it shall be in the amount of
five percent (5.0%) of the contract price until the entire work has been completed
and accepted. In the Authority's sole discretion, the retainage may be released
proportionally to completion of the work. Unless the Authority agrees otherwise
in writing, retainage shall not bear interest or be segregated from other
funds held by the Authority.
(3)
Without limiting the Authority's right to require any other
contract provisions, the Authority, at its sole discretion, may elect to require
that a liquidated damages provision be made a part of any contract.
(r)
Alternative Criteria for Emergency Awards.
(1)
The Authority may employ alternative criteria for the expedited
award of any contract for construction or maintenance services to meet emergency
conditions in which essential corrective or preventive action would be unreasonably
hampered or delayed by compliance with the criteria otherwise applicable under
this Appendix A. Types of work which may qualify for emergency contracts include,
but are not limited to: emergency repair or reconstruction of streets, roads,
highways, buildings, facilities, bridges, toll collection systems and other
Authority property; clearing debris or deposits from the roadway or in drainage
courses within the right-of-way; removal of hazardous materials; restoration
of stream channels outside the right-of-way; temporary traffic operations;
and mowing to eliminate safety hazards.
(2)
Before a contract is awarded under this subsection, the
executive director, the deputy executive director or other administrator designated
by either of them must certify in writing the facts and nature of the emergency
giving rise to the alternative criteria.
(3)
After an emergency is certified, the Authority shall take
measures necessary to identify and locate an available contractor that is
able to provide the required construction or maintenance service. Consistent
with and contingent upon the nature of the emergency, the Authority may contact
by telephone, letter, facsimile, the internet or any other means one or more
contractors qualified to perform the services to obtain a bid. The Authority
will inform the prospective bidder(s) of the nature of the emergency and the
construction or maintenance services sought, time constraints and bonding
and insurance requirements, if any. The information shall be sufficient to
allow the prospective bidder to prepare a basic work plan and cost estimate.
(4)
If the Authority determines that the magnitude and extremity
of the emergency require instantaneous action by the contractor in order to
alleviate an immediate and substantial detrimental impact on the Authority's
or third parties' health, safety, or property and the executive director,
the deputy executive director or designated administrator has so noted in
the certification of the emergency, the executive director, the deputy executive
director or designated administrator may authorize a contractor to begin work
prior to executing a contract and receiving proof of bonding and insurance.
(5)
With respect to any such emergency award requiring approval
or ratification of the board, the executive director, the deputy executive
director or designated administrator will provide each member of the board
written notification of the emergency condition and the award on or before
the next meeting of the board at which the matter can be legally scheduled
for action, and seek ratification of the procurement or contract award at
said meeting.
(s)
Change Orders and Supplemental Agreements. Subsequent to
the issuance of a notice to proceed under a construction or maintenance contract,
the executive director is authorized to approve any change order or supplemental
agreement to the contract in an amount of no more than three hundred thousand
dollars ($300,000.00), provided adequate funds are budgeted and available
for the project for which the contract was let or are available from approved
contingencies for that project. If either
(1)
the change order or supplemental agreement exceeds three
hundred thousand dollars ($300,000.00), or
(2)
adequate funds are not budgeted and available or contained
in approved project contingencies, either
(A)
the change order or supplemental agreement shall require
the approval or ratification of the board, evidenced by a resolution adopted
by the board, or
(B)
the services which are the subject of the change order
or supplemental agreement shall be separately procured in accordance with
this policy.
§201.21.Appendix B. Professional Services.
(a)
Professional Services Procurement Act. The Authority shall
procure all professional services governed by the Professional Services Procurement
Act in accordance with the requirements of the Act. If due to the subsequent
amendment of the Professional Services Procurement Act or for any other reason
any provision of this Appendix or of this policy conflicts with the Act, the
latter shall control.
(b)
Selection Criteria. The Authority shall not select a provider
of professional services or a group or association of providers, or award
a contract for professional services on the basis of competitive bids submitted
for the contract or for the services, but shall make the selection and award
on the basis of demonstrated competence and qualifications to perform the
services for a fair and reasonable price.
(c)
Professional Fees. The professional fees under the contract
must comply with the recommended practices and fees prescribed by the Act,
if any, and may not exceed any maximum provided by law.
(d)
Request for Qualifications. Each RFQ prepared by the Authority
shall describe the professional services required by the Authority and invite
prospective providers to submit their qualifications to provide such services,
as specified in the RFQ.
(e)
Notice of RFQs.
(1)
Notice of the issuance of an RFQ shall contain such information
as the Authority determines is relevant to the procurement. The date specified
in the RFQ as the deadline for submission of responses may be extended if
the executive director determines that the extension is in the best interest
of the Authority. All responses, including those received before an extension
is made, must be opened at the same time.
(2)
Notice of the issuance of an RFQ shall be given in the
manner determined by the Authority.
(f)
Opening and Filing of Responses; Public Inspection. The
Authority shall avoid disclosing the contents of each response to an RFQ on
opening the response and during negotiations with competing respondents. The
Authority shall file each response and, subject to the Authority's document
retention policy, such filed responses shall be open for public inspection
after a contract is awarded, unless those materials contain information that
is excepted from disclosure.
(g)
Selection and Contract Negotiations For Certain Professional
Services. In procuring architectural, engineering or land surveying services,
the Authority shall:
(1)
first select the most highly qualified provider of those
services on the basis of demonstrated competence and qualifications; and
(2)
then attempt to negotiate with that respondent a contract
at a fair and reasonable price.
(3)
If a satisfactory contract cannot be negotiated with the
most highly qualified provider of the foregoing professional services, the
Authority shall:
(A)
formally end negotiations with that respondent,
(B)
select the next most highly qualified provider, and
(C)
attempt to negotiate a contract with that respondent at
a fair and reasonable price.
(4)
The Authority shall continue the foregoing process to select
and negotiate with respondents until a contract is entered into, provided
the Authority shall have no obligation to submit a contract to the next highest-ranked
provider if the Authority determines that none of the remaining responses
is acceptable or otherwise elects to terminate the procurement.
(h)
Selection and Contract Negotiations for Other Professional
Services. In procuring professional services other than architectural, engineering
or land surveying services, the Authority may use any procurement method consistent
with the Professional Services Procurement Act and the provisions of this
Appendix B.
(i)
Mixed Contracts. This Appendix B applies to a contract
that involves professional services together with goods or other services
otherwise subject to competitive bid requirements, if the primary objective
of the contract is the acquisition of professional services.
(j)
Evergreen Program. The Authority may issue an RFQ to pre-qualify
a pool of individuals, entities or combinations of individuals or entities
to provide professional services for the Authority. The RFQ shall specify:
the types of services required; the pre-qualification requirements, including,
but not limited to, years of experience, size of firm, financial capacity
and areas of specialty; manner under which the pre-qualified firm will be
selected to perform a specific service; and the term of the pre-qualification.
Pre-qualification is for the sole purpose of assisting the Authority in the
efficient procurement of services and expedited completion of projects. No
member of the Evergreen Program shall have an expectation or right to a contract
award.
(k)
Change Orders, Supplement Agreements, and Amendments. Subsequent
to the issuance of a notice to proceed or other authorization to begin work
under a contract for professional services, the executive director is authorized
to approve any change order, supplemental agreement or amendment to the contract
in an amount of no more than the lesser of thirty percent (30%) of the original
contract amount or three hundred thousand dollars ($300,000.00), provided
adequate funds are budgeted and available for the contract or are available
from approved contingencies for that contract. If either
(1)
the change order, supplemental agreement or amendment exceeds
the lesser of thirty percent (30%) of the original contract amount or three
hundred thousand dollars ($300,000.00) or
(2)
adequate funds are not budgeted and available or contained
in approved contract contingencies, either
(A)
the change order, supplemental agreement or amendment shall
require the approval or ratification of the board, evidenced by a resolution
adopted by the board, or
(B)
the services which are the subject of the change order,
supplemental agreement or amendment shall be separately procured in accordance
with this policy.
§201.22.Appendix C. General Goods and Services.
(a)
Purchase Threshold Amounts. The Authority may procure general
goods and services costing twenty-five thousand dollars ($25,000.00) or less
by such method and on such terms as the executive director determines to be
in the best interest of the Authority. General goods and services costing
more than twenty-five thousand dollars ($25,000.00) shall be procured using
competitive bidding, competitive sealed proposals or a proprietary purchase
as provided in this Appendix.
(b)
Competitive Bidding Procedures.
(1)
Competitive bidding for general goods and services shall
be conducted using substantially the same procedures specified for the competitive
bidding of construction and maintenance contracts, except that:
(A)
with respect to a particular procurement, the executive
director may waive the qualification requirements for all prospective bidders;
(B)
the executive director may waive the submission of payment
or performance bonds (or both) and/or insurance certificates by the successful
bidder;
(C)
with respect to the procurements estimated to be more than
one hundred thousand dollars ($100,000.00), in addition to newspaper advertisement
of the procurement as set forth in this policy or the procedures, the Authority
may solicit bids by direct mail, telephone, the internet or any other means;
with respect to procurements estimated to be one hundred thousand dollars
($100,000.00) or less, the Authority may solicit bids by any of the foregoing
methods, which may, but need not, include newspaper advertising; and
(D)
a purchase may be proposed on a lump-sum or unit price
basis; if the Authority chooses to use unit pricing in its notice, the information
furnished to bidder must specify the approximate quantities estimated on the
best available information, but the compensation paid the successful bidder
must be based on the actual quantities purchased.
(2)
Contracts for general goods and services procured using
competitive bidding shall be awarded to the lowest responsible bidder based
on the same criteria used in awarding construction and maintenance contacts,
together with the following additional criteria:
(A)
the quality and availability of the goods or services to
be provided and their adaptability to the Authority's needs and uses; and
(B)
the bidder's ability to provide, in a timely manner, future
maintenance, repair parts and service for goods being purchased, if applicable.
(c)
Competitive Sealed Proposals.
(1)
The Authority may solicit offers for the provision of general
goods and services by issuing an RFP. Each RFP shall contain the following
information:
(A)
the Authority's specifications for the goods or services
to be procured;
(B)
an estimate of the various quantities and kinds of goods
and services to be furnished;
(C)
a schedule of items for which unit prices are requested;
(D)
the time within which the contract is to be performed;
(E)
any special provisions and special specifications; and
(F)
the applicable requirements under the BOPP or other policies
relating to Disadvantaged Businesses.
(2)
The Authority shall give public notice of an RFP in the
manner provided for requests for competitive bids for general goods and services.
(3)
At the option of the Authority, an optional or mandatory
pre-proposal conference may be held before opening proposals to allow potential
offerors to seek clarification regarding the procurement and/or the bid documents
or for any other purposes the Authority deems appropriate. Alternatively,
potential offerors may submit written requests for clarification. A potential
offeror that fails to attend a mandatory pre-proposal conference may be disqualified
from submitting its proposal.
(4)
The Authority shall avoid disclosing the contents of each
proposal upon opening the proposal and during negotiations with competing
offerors. The Authority shall file each proposal and, subject to the Authority's
document retention policy, after a contract is awarded, such filed proposals
shall be open for public inspection unless those materials contain information
that is excepted from disclosure as an open record.
(5)
After receiving a proposal but before making an award,
the Authority may permit an offeror to revise its proposal to obtain the best
final offer. The Authority may discuss acceptable or potentially acceptable
proposals with offerors to assess an offeror's ability to meet the solicitation
requirements. The Authority shall avoid disclosing information derived from
proposals submitted from competing offerors.
(6)
The Authority shall refuse all proposals if none of those
submitted is acceptable or for any other reason.
(7)
The Authority shall submit a contract to the offeror (the
"first-choice candidate") whose proposal is the most advantageous to the Authority,
considering price and the evaluation factors in the RFP. The terms of the
contract shall incorporate the terms set forth in the RFP and the proposal
submitted by the first-choice candidate, but if the proposal conflicts with
the RFP, the RFP shall control unless the Authority elects otherwise. If the
Authority and the first-choice candidate cannot agree on the terms of a contract,
the Authority may elect not to contract with the first-choice candidate, and
at the exclusive option of the Authority, may submit a contract to the offeror
("second-choice candidate") whose proposal is the next most favorable to the
Authority. If agreement is not reached with the second-choice candidate, the
process may be continued with other offerors in like manner, but the Authority
shall have no obligation to submit a contract to the next highest-ranked offeror
if the Authority determines at any time during the process that none of the
remaining proposals is acceptable or otherwise elects to terminate the procurement.
(d)
Proprietary Purchases.
(1)
If the executive director finds that the Authority's requirements
for the procurement of a general good or service describe a product or service
that is proprietary to one vendor and do not permit an equivalent product
or service to be supplied, the Authority may solicit a bid for the general
good or service solely from the proprietary vendor, without using the competitive
bidding or competitive proposal procedures. For any procurement costing, or
anticipated to cost, more than twenty-five thousand dollars ($25,000.00),
the executive director shall notify the board in the manner determined by
the executive director. For any procurement costing, or anticipated to cost,
more than three hundred thousand dollars ($300,000.00), the executive director
shall justify in writing the Authority's requirements and shall submit the
written justification to the board. The written justification must
(A)
explain the need for the particular good or service that
is proprietary to the vendor;
(B)
explain why competing goods or services from other vendors
(if any) are not satisfactory; and
(C)
provide other information requested by the board.
(2)
As otherwise provided in this policy, any such procurement
costing, or anticipated to cost, more than three hundred thousand dollars
($300,000.00) shall require the approval of or ratification by the board,
evidenced by a resolution adopted by the board.
(3)
Goods or services may be acquired by proprietary purchase
if they constitute
(A)
goods or services available from only one source because
of patents, copyrights, secret processes or natural monopolies,
(B)
films, manuscripts or books, or
(C)
captive replacement parts or components for equipment.
(4)
Subsequent purchases from a proprietary purchase vendor
of the same good or service, including replacement parts or components, will
not require a separate or additional justification from the executive director
that the good or service is proprietary to that vendor.
(5)
The Authority may acquire by proprietary purchase those
goods and services, including replacement parts or components for equipment,
that are necessary to ensure the compatible integration of the Authority's
technology-based equipment, computer network or software system.
(e)
Other Goods and Services.
(1)
The Authority may procure or pay for
(A)
electricity, gas, water and other utility services,
(B)
professional dues, membership fees, subscriptions and similar
charges,
(C)
application, permitting, licensing and other regulatory
fees and charges, and
(D)
other goods and services generally available at a set,
non-negotiable price or otherwise not susceptible to competitive pricing upon
the terms determined by the executive director, the deputy executive director
or other administrator designated by either of them.
(2)
The executive director, deputy executive director or designated
administrator also may authorize, and determine the terms for, the procurement
of goods sold at
(A)
an auction by a state-licensed auctioneer or
(B)
a going-out-of-business sale held in compliance with the
Texas Business and Commerce Code, Chapter 17, Subchapter F.
(3)
As otherwise provided in this policy, any such procurement
costing or anticipated to cost more than three hundred thousand dollars ($300,000.00)
shall require the approval of or ratification by the board, evidenced by a
resolution adopted by the board.
(f)
Extension of Quantities or Services.
(1)
The executive director is authorized to extend quantities
or services or similarly amend a contract for general goods and services up
to an amount equal to three hundred thousand dollars ($300,000.00) in each
instance, provided adequate funds are budgeted and available for the procurement
of the applicable goods and services. If either
(A)
the effect of the amendment exceeds three hundred thousand
dollars ($300,000.00) or
(B)
adequate funds are not budgeted and available, either
(i)
the amendment shall require the approval or ratification
of the board, evidenced by a resolution adopted by the board, or
(ii)
the goods and services which are the subject of the amendment
shall be separately procured in accordance with this policy.
(2)
Nothing provided in this Appendix C, subsection (f), shall
limit the ability of the Authority to procure general goods and services costing,
or anticipated to cost, no more than twenty-five thousand dollars ($25,000.00)
by any method and on any terms as determined by the executive director as
otherwise provided in this policy, including by change order, supplemental
agreement, or similar extension of quantities or services or amendment.
§201.23.Appendix D. Participation in State and Cooperative Purchasing Programs; Intergovernmental Agreements.
(a)
Voluntary Commission Program. Pursuant to and in accordance
with Texas Government Code, § 2155.204 and Local Government Code, Chapter
271, Subchapter D, the Authority may request the Texas Building and Procurement
Commission to allow the Authority to participate on a voluntary basis in the
program established by the Commission by which the Commission performs purchasing
services for governmental entities.
(b)
Catalog Purchase of Automated Information Systems. Pursuant
to and in accordance with the Government Code, § 2157.067, the Authority
may utilize the catalogue purchasing procedure established by the Commission
with respect to the purchase of automated information systems.
(c)
Cooperative Purchases. Pursuant to and in accordance with
the Local Government Code, Chapter 271, Subchapter F, the Authority may participate
in one or more cooperative purchasing programs with governmental entities
or governmental cooperative programs.
(d)
Interlocal Agreements with TxDOT. Subject to any limitations
imposed by general law, the Authority may enter into interlocal agreements
with TxDOT or with one or more other governmental entities to procure goods
and services from TxDOT or those entities.
(e)
Exempted Purchases. Purchases made through the Commission
(including, without limitation, catalog purchases), a cooperative program
or by interlocal agreement shall be deemed to have satisfied the procurement
requirements of this policy and shall be exempted from the procurement requirements
contained in this policy.
§201.24.Appendix E. Consulting Services.
(a)
Contracting for Consulting Services. The Authority may
contract for consulting services if the executive director reasonably determines
that the Authority cannot adequately perform the services with its own personnel.
(b)
Selection Criteria. The Authority shall base its selection
on demonstrated competence, knowledge and qualifications, and on the reasonableness
of the proposed fee for the services.
(c)
Contract Amounts. The Authority may procure consulting
services costing, or anticipated to cost, no more than fifty thousand dollars
($50,000.00) by such method and on such terms as the executive director determines
to be in the best interests of the Authority. Consulting services costing,
or anticipated to cost, more than fifty thousand dollars ($50,000.00) shall
be procured by the Authority's issuance of an RFQ or RFP, except as provided
in Appendix E, subsection (h), for single-source contracts.
(d)
Request for Qualifications or Proposal. Each RFQ or RFP
prepared by the Authority shall describe the services required by the Authority
and invite prospective consultants to submit their qualifications and/or proposal
to provide such services, as specified in the request documents.
(e)
Notice.
(1)
Notice of the issuance of an RFQ or RFP shall contain such
information as the Authority determines is relevant to the procurement. The
date specified in the RFQ of RFP as the deadline for submission of responses
may be extended if the executive director determines that the extension is
in the best interest of the Authority. All responses, including those received
before an extension is made, must be opened at the same time.
(2)
Notice of the issuance of an RFQ or RFP shall be given
in the manner determined by the Authority.
(f)
Opening and Filing of Responses; Public Inspection. The
Authority shall avoid disclosing the contents of each response to an RFQ or
RFP on opening the response and during negotiations with competing respondents.
The Authority shall file each response and, subject to the Authority's document
retention policy, such filed responses shall be open for public inspection
after a contract is awarded, unless those materials contain information that
is excepted from disclosure.
(g)
Contract Negotiations. The Authority shall submit a contract
to the respondent (the "first-choice candidate") whose response best satisfies
the Authority's selection criteria. If the Authority and the first-choice
candidate cannot agree on the terms of a contract, the Authority may terminate
negotiations with the first-choice candidate, and, at the exclusive option
of the Authority, the Authority may enter into contract negotiations with
the respondent ("second-choice candidate") whose response is the next most
favorable to the Authority. If agreement is not reached with the second-choice
candidate, the process may be continued with other respondents in like manner,
but the Authority shall have no obligation to submit a contract to the next
highest-ranked respondent if the Authority determines that none of the remaining
responses is acceptable or otherwise elects to terminate the procurement.
(h)
Single-Source Contracts. If the executive director determines
that only one prospective consultant possesses the demonstrated competence,
knowledge and qualifications to provide the services required by the Authority
at a reasonable fee and within the time limitations required by the Authority,
consulting services from that consultant may be procured without issuing an
RFQ or RFP. For any such procurement estimated to be more than fifty thousand
dollars ($50,000.00), the executive director shall justify in writing the
basis for classifying the consultant as a single-source and shall submit the
written justification to the board. The justification shall be submitted for
board consideration prior to contracting with the consultant if the anticipated
cost of the services exceeds three hundred thousand dollars ($300,000.00).
If the anticipated cost of services is more than fifty thousand dollars ($50,000.00)
but less than three-hundred thousand dollars ($300,000.00), the executive
director may enter into a contract for the services and shall submit the justification
to the board at its next regularly scheduled board meeting.
(i)
Evergreen Program. The Authority may issue an RFQ to pre-qualify
a pool of individuals, entities, or combinations of individuals or entities
to provide consulting services for the Authority. The RFQ shall specify: the
types of services required; the pre-qualification requirements, including,
but not limited to, years of experience, size of firm, financial capacity,
and areas of specialty; manner under which the pre-qualified firm will be
selected to perform a specific service; and the term of the pre-qualification.
Pre-qualification is for the sole purpose of assisting the Authority in the
efficient procurement of services and expedited completion of projects. No
member of the Evergreen Program shall have an expectation or right to a contract
award.
(j)
Mixed Contracts. This Appendix E applies to a contract
that involves consulting services together with goods or other services otherwise
subject to competitive bid requirements, if the primary objective of the contract
is the acquisition of consulting services.
(k)
Change Orders, Supplemental Agreements, and Amendments.
Subsequent to the issuance of a notice to proceed or other authorization to
begin work under a contract for consulting services, the executive director
is authorized to approve any change order, supplemental agreement or amendment
to the contract in an amount of not more than the lesser of thirty percent
(30%) of the original contract amount or three hundred thousand dollars ($300,000.00),
provided adequate funds are budgeted and available for the contract or are
available from approved contingencies for that contract. If either
(1)
the change order, supplemental agreement or amendment exceeds
the lesser of thirty percent (30%) of the original contract amount or three
hundred thousand dollars ($300,000.00) or
(2)
adequate funds are not budgeted and available or contained
in approved contract contingencies, either
(A)
the change order, supplemental agreement or amendment shall
require the approval or ratification of the board, evidenced by a resolution
adopted by the board, or
(B)
the services which are the subject of the change order,
supplemental agreement or amendment shall be separately procured in accordance
with this policy.
(3)
Nothing in this Appendix E, subsection (k) shall limit
the ability of the Authority to procure consulting services costing, or anticipated
to cost, no more than fifty thousand dollars ($50,000.00) by any method and
on any terms as determined by the Executive director as otherwise provided
in this policy, including by change order, supplemental agreement or amendment.
§201.25.Appendix F. Disposition of Salvage or Surplus Property.
(a)
Sale by Bid or Auction. The Authority may periodically
sell the Authority's salvage or surplus property by competitive bid or auction.
Salvage or surplus property may be offered as individual items or in lots
at the Authority's sole discretion.
(b)
Trade-In for New Property. Notwithstanding Appendix F,
subsection (a), the Authority may offer salvage or surplus property as a trade-in
for property of the same general type if the executive director considers
that action to be in the best interest of the Authority.
(c)
Heavy Equipment. If the salvage or surplus property is
earth-moving, material-handling, road maintenance, construction or similar
equipment, the Authority may exercise a repurchase option in a contract in
disposing of such types of property. The repurchase price of equipment contained
in a previously accepted purchase contract is considered a bid under subsection
Appendix F, subsection (a).
(d)
Sale to State, Counties, etc. Notwithstanding subsection
Appendix F, subsection (a), competitive bidding or an auction is not necessary
if the purchaser is the state, or a county, municipality or other political
subdivision of the state, or an agency or department of the state of the United
States. The Authority may accept an offer made by any of the foregoing governmental
entities before offering the salvage or surplus property for sale at auction
or by competitive bidding.
(e)
Failure to Attract Bids. If the Authority undertakes to
sell property under Appendix F, subsection (a), and is unable to do so because
no bids are made for the property, the executive director may order such property
to be destroyed or otherwise disposed of as worthless. Alternatively, the
Executive director may cause the Authority to dispose of such property by
donating it to a civic, educational or charitable organization located in
the state or elsewhere in the United States.
(f)
Terms of Sale. Unless otherwise expressly provided in the
sale or disposition documents, all salvage or surplus property sold or otherwise
disposed of by the Authority shall be conveyed on an "AS IS, WHERE IS" basis.
The location, frequency, payment terms, inspection rights and all other terms
of sale shall be determined by the Authority in its sole discretion.
(g)
Rejection of Offers. The Authority or its designated representative
conducting a sale of salvage or surplus property may reject any offer to purchase
such property if the executive director or the Authority's designated representative
finds the rejection to be in the best interests of the Authority.
(h)
Public Notices of Sale. The Authority shall publish the
address and telephone number from which prospective purchasers may request
information concerning an upcoming sale in at least one issue of the officially
designated newspaper of the Authority, or any other newspaper of general circulation
in each county of the Authority, and the Authority may, but shall not be required
to, provide additional notices of a sale by direct mail, telephone, facsimile,
the internet or any other means.
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 June 4, 2004.
TRD-200403692
Marcelle S. Jones
General Counsel
North Texas Tollway Authority
Earliest possible date of adoption: July 18, 2004
For further information, please call: (214) 461-2043
Subchapter C. DEFINITIONS
43 TAC §201.30
STATUTORY AUTHORITY
The new sections are proposed under Transportation Code, Title 6, Subtitle
G, Chapter 366, §366.033(j), which authorizes the NTTA to adopt written
procedures governing its procurement of goods and services that are consistent
with general laws applicable to the Authority.
CROSS REFERENCE TO STATUTE
Transportation Code, §366.033, Transportation Code, §366.184,
Transportation Code, §366.185, Local Government Code, Chapter 271, Local
Government Code, Chapter 272, Government Code, Chapter 791, Government Code,
Chapter 2252, and Government Code, Chapter 2258.
§201.30.Definitions.
As used in this policy and the procedures, the following words and
terms shall have the following meanings, unless the context clearly indicates
otherwise.
(1)
Administrator--The executive director, deputy executive
director, assistant executive director, comptroller, chief accountant, and
such other positions designated by the executive director, including any director
of one of the Authority's several departments.
(2)
Available bidding capacity--Bidding capacity less uncompleted
work under a construction or maintenance contract.
(3)
Authority--The North Texas Tollway Authority.
(4)
BCP--The Business Continuity Plan of the Authority.
(5)
Bid or quote--The response to a request for the pricing
of products, goods, or services, including construction and maintenance services
(but other than consulting services or professional services) that the Authority
proposes to procure.
(6)
Bid documents--Forms promulgated by the Authority which
the bidder completes and submits to the Authority to document the bidder's
bid on a contract to be let by the Authority. Bid documents include forms
furnished to and completed by the Authority to procure goods and services.
(7)
Bid guaranty--The security (which may be a bid bond) designated
in the bid documents for a construction or maintenance contract to be furnished
by the bidder as a guaranty that the bidder will enter into a contract if
awarded the work.
(8)
Bidder--An individual, entity, or combination of individuals
or entities submitting a bid or offer to provide any goods or services, including
construction or maintenance services.
(9)
Bidding capacity--The maximum dollar value of a construction
or maintenance contract that may be awarded to a contractor at any given time,
as determined by the Authority.
(10)
Board--The Board of Directors of the Authority.
(11)
BOPP--The Business Opportunity Program and Policy of the
Authority.
(12)
Building contract--A contract for the construction or
maintenance of one or more buildings, toll plazas, or appurtenant facilities
for the Authority.
(13)
CEMP--The Comprehensive Emergency Management Plan of the
Authority.
(14)
Commission--The Texas Building and Procurement Commission.
(15)
Competitive bidding--A procurement process under which
a contract is awarded to the lowest responsible bidder that complies with
the Authority's criteria for such contract.
(16)
Competitive sealed proposals--A procurement method in
which offers are solicited and a selection is made using criteria in addition
to cost, although reasonableness of cost is a selection criterion.
(17)
Construction or maintenance contract--A contract for the
construction, reconstruction, maintenance or repair of a turnpike project
or any portion thereof.
(18)
Consulting service--The service of advising or preparing
studies or analyses for the Authority under a contract that does not involve
the traditional relationship of employer and employee. Consulting services
do not include professional services as defined in this policy.
(19)
Contract--A written or oral agreement by which the Authority
procures goods and services or disposes of property, including, without limitation,
a purchase order.
(20)
Counties of the Authority--Counties that are members of
the Authority.
(21)
Deputy executive director--The deputy executive director
of the Authority.
(22)
Disadvantaged Businesses--Minority-owned, woman-owned
or small-business enterprises as defined in the BOPP.
(23)
Emergency--Any situation or condition affecting a turnpike
project or any other operations of the Authority resulting from a natural
or man-made cause, which poses an imminent threat to life, the property of
the Authority or the traveling public or which substantially disrupts or may
disrupt the safe and efficient flow of traffic and commerce or which has caused
unforeseen damage to machinery, equipment or other property that would substantially
interfere with or prohibit the collection of tolls in accordance with the
Authority's bonding obligations and requirements. A situation or condition
similarly affecting the operations of a third party which are subject to a
contract with the Authority to provide goods and services shall likewise constitute
an emergency.
(24)
Escrowed bid documents--Information, whether in documentary
or electronic form, that is generated or utilized by the bidder in the preparation
of a bid, offer or proposal and is preserved for possible inspection by the
Authority following the award of a contract.
(25)
Evergreen program--A procurement process by which the
Authority pre-qualifies a pool of individuals, entities or combinations of
individuals and entities to provide certain professional or consulting services.
(26)
Executive director--The executive director of the Authority.
(27)
Federal-aid project--A contract funded in whole or in
part with funds provided by the government of the United States or any department
thereof.
(28)
First-choice candidate--The top-ranked offeror or respondent
considering the evaluation factors and criteria in an RFP or RFQ.
(29)
General goods and services--Goods, services, equipment,
personal property and any other items procured by the Authority that are not
procured under a construction or maintenance contract and that are neither
consulting services nor professional services.
(30)
Lowest responsible bidder--A bidder who submits a bid
or offer to provide the requested goods and services at a cost that is lower
than all other bids or offers received from responsible bidders and which
meets other requirements of the Authority. In determining the lowest responsible
bidder, the Authority may consider:
(A)
the purchase price;
(B)
the reputation of the bidder and of the bidder's goods
or services;
(C)
the quality of the bidder's goods or services;
(D)
the extent to which the goods or services meet the Authority's
needs;
(E)
the bidder's past relationship with the Authority;
(F)
the bidder's compliance with the BOPP and with other goals
and policies of, or binding on, the Authority, if any, regarding the participation
by Disadvantaged Businesses;
(G)
the total long-term cost to the Authority to acquire the
bidder's goods or services; and
(H)
any relevant criteria specifically listed in the bid documents.
(31)
Materially unbalanced bid--A bid on a construction or
maintenance contract that generates a reasonable doubt that award to the bidder
submitting a mathematically unbalanced bid will result in the lowest ultimate
cost to the Authority.
(32)
Mathematically unbalanced bid--A bid on a construction
or maintenance contract 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.
(33)
Offeror--An individual, entity, or combination of individuals
or entities submitting a proposal in response to an RFP to provide general
goods and services.
(34)
Officially designated newspaper of the Authority--A general
circulation newspaper published in one or more counties of the Authority that
is designated as the official newspaper of the Authority from time to time
by the board.
(35)
Policy--This Policy Regarding Procurement of Goods and
Services and Disposition of Property by the North Texas Tollway Authority.
(36)
Procedures--The Procedures Regarding Procurement of Goods
and Services and Disposition of Property by the North Texas Tollway Authority
adopted as an internal guide, and as a supplement to the policy, for use by
the Authority's staff.
(37)
Professional services--Services that political subdivisions
of this State must procure pursuant to the Professional Services Procurement
Act.
(38)
Professional Services Procurement Act--Texas Government
Code, Chapter 2254, Subchapter A, as amended from time to time.
(39)
Proposal--An offeror's response to an RFP.
(40)
Proprietary purchase--A contract with a vendor for a general
good or service that is proprietary to that single vendor.
(41)
Response--A respondent's response to an RFQ.
(42)
Respondent--An individual, entity, or combination of individuals
or entities submitting a response to an RFQ to provide professional or consulting
services.
(43)
RFP--A request for proposals issued for the provision
of general goods and services by competitive sealed proposals.
(44)
RFQ--A request for qualifications issued for the provision
of professional or consulting services.
(45)
Salvage property--Personal property (including, without
limitation, supplies, equipment and vehicles), other than items routinely
discarded as waste, that through use, time or accident is so damaged, used,
consumed or outmoded that it has little or no value to the Authority.
(46)
Second-choice candidate--The second-ranked offeror or
respondent considering the evaluation factors and criteria in an RFP or RFQ.
(47)
Single-source contract--A contract with a consultant uniquely
qualified to provide the services required by the Authority at a reasonable
fee and within the time limitations required by the Authority.
(48)
Surplus property--Personal property (including, without
limitation, supplies, equipment and vehicles) that is not currently needed
by the Authority and is not required for the Authority's foreseeable needs.
The term includes used or new property that retains some usefulness for the
purpose for which it was intended or for another purpose.
(49)
Turnpike project--A facility of any number of lanes, with
or without grade separations, owned or operated by the Authority, and any
improvement, extension, or expansion to that highway, including those improvements
described in Texas Transportation Code, §366.003(11).
(50)
TxDOT--Texas Department of Public Transportation.
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 June 4, 2004.
TRD-200403693
Marcelle S. Jones
General Counsel
North Texas Tollway Authority
Earliest possible date of adoption: July 18, 2004
For further information, please call: (214) 461-2043