1. (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. (1) reject any and all proposals, whether solicited or unsolicited, at any time;
   2. (2) terminate evaluation of any and all proposals, whether solicited or unsolicited, at any time;
   3. (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. (4) negotiate with a proposer without being bound by any provision in its proposal, whether solicited or unsolicited;
   5. (5) request or obtain additional information about any proposal, whether solicited or unsolicited;
   6. (6) modify, issue addenda to, or cancel any RFP;
   7. (7) revise, supplement, or make substitutions for all or any part of these rules; or
   8. (8) retain or return all or any portion of the fees required to be paid by proposers under this subchapter.
2. (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.
3. (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.
4. (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.
5. (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.
6. (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.
7. (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.

8. (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. (1) shall determine the scope of work necessary and adequate to conduct and complete the environmental review and documentation;
   2. (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. (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. (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. (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. (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.
9. (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.
10. (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.
11. (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.

Source Note:The provisions of this §27.3 adopted to be effective July 18, 2002, 27 TexReg 6377.