PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 9. CONTRACT MANAGEMENT
SUBCHAPTER A. GENERAL
The Texas Department of Transportation (department) adopts amendments to §9.3, Protest of Department Purchases under the State Purchasing and General Services Act. The amendments to §9.3 are adopted with changes to the proposed text as published in the March 14, 2008, issue of the Texas Register (33 TexReg 2272).
EXPLANATION OF ADOPTED AMENDMENTS
House Bill 3560, 80th Legislature, 2007, adopted Government Code, §2155.0011, which transferred state purchasing duties from the Texas Building and Procurement Commission to the comptroller. Government Code, §2155.076 requires state agency protest rules to be consistent with protest rules adopted by the comptroller.
Amendments to §9.3, Protest of Department Purchases under the State Purchasing and General Services Act, update agency titles and statutory references to reflect the transfer of state purchasing responsibilities to the comptroller. Changes to the definitions, the deadline for filing a protest and an appeal, and document retention requirements are made to make the rules consistent with the rules adopted by the comptroller's office. Various minor grammatical amendments have also been made to clarify the existing provisions of this section. For consistency, "chairman" has been changed to "chair" in §9.3(g)(5).
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Government Code, §2155.076 which requires the department to adopt rules concerning protest of purchase.
CROSS REFERENCE TO STATUTE
Government Code, §2155.076.
§9.3.Protest of Department Purchases under the State Purchasing and General Services Act.
(a) Purpose. The purpose of this section is to provide a procedure for vendors to protest purchases made by the department. Purchases made by the Texas Procurement and Support Services division of the Comptroller of Public Accounts office on behalf of the department are addressed in 34 TAC Chapter 20.
(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Act--Government Code, Chapters 2151-2177, the State Purchasing and General Services Act.
(2) Commission--The Texas Transportation Commission.
(3) Department--The Texas Department of Transportation.
(4) Director of general services--The director of the general services division of the department.
(5) Director of purchasing--The director of purchasing in the general services division of the department.
(6) District engineer--The chief administrative officer in charge of a district of the department.
(7) Division--An organizational unit in the department's Austin headquarters.
(8) Executive director--The executive director of the department.
(9) Interested party--A vendor that has submitted a bid, proposal, or other expression of interest for the purchase involved.
(10) Purchase--A procurement action for commodities or non-professional services under the Act.
(c) Filing of protest.
(1) An actual or prospective bidder or offeror who is aggrieved in connection with the solicitation, evaluation, or award of a purchase may file a written protest. The protest must be addressed to the attention of the district engineer in whose district the action is being or was processed, or to the director of purchasing for purchases made on behalf of a division, but sent to the office of the director of general services. The protest must be received in the office of the director of general services within 10 working days after such aggrieved person knows, or should have known, of the action.
(2) The protest must be sworn and contain:
(A) the provision of or rule adopted under the Act that the action is alleged to have violated;
(B) a specific description of the alleged violation;
(C) a precise statement of the relevant facts;
(D) the issue to be resolved;
(E) argument and authorities in support of the protest; and
(F) a statement that copies of the protest have been mailed or delivered to other identifiable interested parties.
(d) Suspension of award. If a protest or appeal of a protest has been filed, then the department will not proceed with the solicitation or the award of the purchase until the executive director or his or her designee, not below the level of division director, consults with the director of general services and the appropriate district engineer or the director of purchasing, and makes a written determination that the award of the purchase should be made without delay to protect substantial interests of the department.
(e) Informal resolution. The district engineer or the director of purchasing may informally resolve the dispute, including:
(1) soliciting written responses to the protest from other interested parties; and
(2) resolving the dispute by mutual agreement.
(f) Written determination. If the protest is not resolved by agreement, the district engineer or the director of purchasing will issue a written determination to the protesting party and interested parties which sets forth the reason of the determination. The district engineer or the director of purchasing may determine that:
(1) no violation has occurred; or
(2) a violation has occurred and it is necessary to take remedial action which may include:
(A) declaring the purchase void;
(B) reversing the award; and
(C) re-advertising the purchase using revised specifications.
(g) Appeal.
(1) An interested party may appeal the determination to the executive director. The written appeal must be received in the executive director's office no later than 10 working days after the date of the determination. The appeal is limited to a review of the determination.
(2) The appealing party must mail or deliver copies of the appeal to the determining district engineer or the director of purchasing and other interested parties with an affidavit that such copies have been provided.
(3) The general counsel shall review the protest, the determination, the appeal, and prepare a written opinion with recommendation to the executive director.
(4) The executive director may:
(A) issue a final written determination; or
(B) refer the matter to the commission for its consideration at a regularly scheduled open meeting.
(5) The commission may consider oral presentations and written documents presented by the department and interested parties. The chair shall set the order and the amount of time allowed for presentation. The commission's determination of the appeal shall be adopted by minute order and reflected in the minutes of the meeting.
(6) The decision of the commission or executive director shall be final.
(h) Filing deadline. Unless the commission determines that the appealing party has demonstrated good cause for delay or that a protest or appeal raises issues significant to procurement practices or procedures, a protest or appeal that is not filed timely will not be considered.
(i) Document retention. The department shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the retention schedule of the department.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 30, 2008.
TRD-200802814
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: June 19, 2008
Proposal publication date: March 14, 2008
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts amendments to §9.38, Contract Management. The amendments to §9.38 are adopted without changes to the proposed text as published in the March 14, 2008, issue of the Texas Register (33 TexReg 2273) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Senate Bill 924, 80th Legislature, 2007, amended Government Code, Chapter 2252, Subchapter Z, relating to rules and policies adopted by state agencies regarding engineering or architectural errors or omissions. The legislative amendments require that all state agency rules and policies that address errors and omissions contain certain specified provisions. Because the required provisions are more appropriate for a policy than for administrative rules, the department has adopted an internal policy document that contains the required provisions. In addition, standard contract provisions adequately address errors and omissions recovery. Therefore, subsection (f), dealing with errors and omissions, is not necessary and is being deleted.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
Government Code, §2252.904.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 30, 2008.
TRD-200802813
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: June 19, 2008
Proposal publication date: March 14, 2008
For further information, please call: (512) 463-8683
SUBCHAPTER G. INFORMATION LOGO SIGN AND TOURIST-ORIENTED DIRECTIONAL SIGN PROGRAM
43 TAC §§25.401, 25.405, 25.406, 25.408
The Texas Department of Transportation (department) adopts amendment to §25.401, Definitions; §25.405, Commercial Establishment Eligibility; §25.406, Major Shopping Area Eligibility; and §25.408, TOD Sign Program Operation, all concerning the Information Logo Sign and Tourist-Oriented Directional Sign Program. The amendments to §§25.401, 25.405, 25.406, and 25.408 are adopted without changes to the proposed text as published in the March 14, 2008, issue of the Texas Register (33 TexReg 2275) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Under Transportation Code, Chapter 391, the department is responsible for managing several sign programs designed to provide motorists with information. The programs are Specific Information Logo Signs (Logo), Major Shopping Area Guide Signs (MSAG), and Tourist-Oriented Directional Signs (TOD).
House Bill 3441, 80th Legislature, Regular Session, 2007, amended Transportation Code, §391.092 to authorize the Texas Transportation Commission (commission) to establish by rule what constitutes an eligible highway for location of Logo and MSAG signs. The statute requires that any rule adopted by the commission must be in compliance with federal law, regulations, and guidelines.
House Bill 3441 also removed the statutory definition of a major shopping area and authorized the department to determine by rule what type of retail establishment will qualify for a sign under the program. The rule must comply with federal regulations and guidelines for the sign program. The MSAG urban highway restriction was also removed from the statute allowing the department to authorize signs on any eligible highway.
The amendments are designed to implement the provisions of House Bill 3441 as well as make other minor clarifications to the existing eligibility requirements.
Amendments to §25.401, Definitions, change the definition for the term "eligible highway" as used in relation to the Information Logo Sign Program. House Bill 3441 repealed the statutory definition for eligible highway allowing the commission to set the definition by rule. This amendment removes the restrictive language regarding population and a 65 mile per hour speed limit from the definition and will allow Logo signs on any controlled access highway. Federal guidelines require the use of the signs to be limited to areas where adequate sign spacing can be achieved. The department currently allows the placement of a Logo sign on a controlled access highway under the variance program. The amendment will streamline the department's operation by removing the need for a variance request procedure and review. Due to the current policy, the department does not anticipate an increase in the number of installed Logo signs.
Amendments to §25.405, Commercial Establishment Eligibility, clarify the requirements for participation in the Specific Information Logo Sign Program.
Section 25.405(b)(2)(B) requires a food establishment prepare the food on site. The department has determined that this is too restrictive and does not reflect how some food establishments are currently operating. The department currently allows an exception to this requirement by variance. Because of the variance program, the department does not anticipate any increase in the total number of Logo signs installed under the program due to this amendment.
The requirements for eligibility for a lodging establishment under §25.405(b)(3)(B) are amended to clarify that the establishment must have 10 guest rooms with adequate sleeping accommodations. The current language only requires that the business have 10 rooms. This change will reinforce the need for participating lodging establishments to be of sufficient size and quality to accommodate the needs of the traveling public.
Amendments to §25.405(b)(4) add that camping sites have sanitary facilities for recreational vehicles to be eligible for a camping facility Logo sign. This change is needed to comply with the requirements of Transportation Code, §391.093(e)(3). The amendments also require the facility be able to accommodate all types of recreational vehicles, travel trailers, campers, and tents. This change clarifies that a Logo sign is only available to a camp facility that accommodates all types of camping.
Amendments to §25.406, Major Shopping Area Eligibility, change the criteria to qualify for a Major Shopping Area Guide sign. House Bill 3441 deleted the specific statutory definition of major shopping area; therefore, the commission can now establish new criteria to meet the recent trends in the development of retail facilities. When the program was originally implemented, enclosed shopping malls were the typical major shopping areas. However, today many shopping areas are smaller in total size, are not totally enclosed, and consist of separate buildings of a unified theme. The changes in §25.406(a) allow signs for these new types of major shopping areas. The amendments require that there be at least 10 retail establishments, with a combined building area of at least 650,000 square feet, located within close proximity to one another, and that there be at least two anchor stores that have a combined minimum of 150,000 square feet of building area. The amendments to §25.406(a) also require that the architectural design of the buildings must be consistent and that the retail establishments must be planned, developed, and managed as a single property. These requirements have been developed through the existing variance program. The department believes that these minimum requirements will ensure that the areas eligible for an MSAG sign are major shopping areas and not neighborhood retail centers. The department currently allows shopping areas meeting these minimum requirements to obtain an MSAG sign under the variance program. Incorporating this current practice into the program rules will allow the department to streamline our internal process to operate the program. Due to the current policy, the department does not anticipate that the change in the rule will increase the number of MSAG signs.
Section 25.406(a) is also amended to remove the term "urban" from the section to comply with the changes in House Bill 3441.
Amendments to §25.408, TOD Sign Program Operation, clarify the existing requirements for a participating commercial tourist-oriented enterprise. The amendment changes the language of §25.408(a)(2)(C)(i) so that an entity is required to provide, not produce, a service or product of interest to the tourist community. The language regarding the amount of time that the entity must be opened is changed to clarify that the entity must be open five days and that one of those five days must be either Saturday or Sunday. Section 25.408(a)(2)(C)(i) is also amended to replace the requirement that the entity be an independent enterprise with the requirement that it be a tourist destination or an accommodation to clarify that to qualify for participation the entity must be of interest to tourists.
COMMENTS
Comments on the proposed amendments were received from the City of Houston. The commenter does not support the proposed amendments.
Comment: The commenter requested that the department allow the City of Houston to continue to regulate off-premise signs in the city's jurisdiction through local ordinances. The City of Houston has off-premise sign restrictions through an existing city code and the commenter feels that the choice to introduce new off-premise sign structures should remain with the local municipality.
Response: The department disagrees with the commenter. The proposed rules govern the administration of the Texas Specific Information Logo Sign Program and the Tourist-Oriented Directional Sign Program. These signs are considered traffic control devices by state and federal laws and do not constitute "off-premise" signing.
Off-premise signing is defined in 43 TAC §21.411 as "A sign displaying advertising copy that pertains to a business, person, organization, activity, event, place, service, or product not principally located or primarily manufactured or sold on the premises on which the sign is located." Off-premise signing cannot be located in the highway right-of-way.
While the Specific Information Logo Signs and Tourist-Oriented Directional Signs allow a form of advertisement for certain types of businesses within state highway right-of-way, these signs are viewed as motorist service signing and are recognized as an official traffic control device. Unlike off-premise advertising signs, the signs under this rule are allowed only on state highway right-of-way. Importantly, Tourist-Oriented Directional Signs are not allowed within urban areas of 5,000 persons or more, which precludes installation of those signs within the City of Houston. There is nothing in the proposed rules that impacts the ability of the City of Houston to regulate off-premise signing, such as outdoor advertising billboards.
STATUTORY AUTHORITY
The amendments are adopted 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 more specifically Transportation Code, §391.092 and §391.0935, which provides the commission with the authority to establish rules regarding the Specific Information Logo Sign Program and Tourist-Oriented Directional Sign Program.
CROSS REFERENCE TO STATUTE
Transportation Code, §391.001 and Transportation Code, Chapter 391, Subchapter D.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 30, 2008.
TRD-200802812
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: June 19, 2008
Proposal publication date: March 14, 2008
For further information, please call: (512) 463-8683