1. (a) The rules in this subchapter address the manner by which the department intends to evaluate submissions received from private entities in response to requests for qualifications and proposals 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) withdraw a request for qualifications or a request for proposals at any time, and issue a new request;
   2. (2) reject any and all proposals, whether solicited or unsolicited, at any time;
   3. (3) terminate evaluation of any and all proposals, whether solicited or unsolicited, at any time;
   4. (4) issue a request for qualifications relating to a project described in an unsolicited proposal after the rejection or termination of the evaluation of the proposal and any competing proposals;
   5. (5) suspend, discontinue, or terminate comprehensive development agreement negotiations with any proposer at any time prior to the actual authorized execution of such agreement by all parties;
   6. (6) negotiate with a proposer without being bound by any provision in its proposal, whether solicited or unsolicited;
   7. (7) request or obtain additional information about any proposal, whether solicited or unsolicited;
   8. (8) modify, issue addenda to, or cancel any request for qualifications or request for proposals;
   9. (9) revise, supplement, or make substitutions for all or any part of these rules; or
   10. (10) retain or return all or any portion of the fees required to be paid by proposers under this subchapter.
2. (b) Except as provided in §27.4(n) of this subchapter, 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 except as may be specified in the request for qualifications or request for proposals. Proposers may not rely upon any oral responses to inquiries. If a proposer has a question regarding these rules or any request for qualifications or request for proposals issued by the department, the proposer must submit the question in writing to the person responsible for receiving all submissions 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 may be, except as provided by Transportation Code, §361.3023, subject to the Public Information Act, Government Code, Chapter 552. Proposers should familiarize themselves with the provisions of Transportation Code, §361.3023 and the Public Information 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 notify the applicable proposer of the request and inform such proposer that it has 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. 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 unsolicited proposal submitted under this subchapter or for any proposal submitted under §27.5(d) of this subchapter. The proposal review fee shall be applied by the department to offset the cost of processing and reviewing the applicable proposals. Any unsolicited proposal must be accompanied by a proposal review fee of $20,000. The proposal review fee for any proposal submitted during the period described in §27.5(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 capabilities of the proposer and its team members to provide the proposed services and 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 comprehensive development agreement or in any separate contract for consultant services. Unless otherwise provided in the request for proposals 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 private developer. 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 comprehensive development agreement or in any separate contract for consultant services.

8. (h) The department may solicit proposals or accept unsolicited proposals in which the proposer is responsible for providing assistance in the environmental review and clearance of the proposed project, including the preparation of environmental impact assessments and analyses and the provision of technical assistance and technical studies to the department or its environmental consultant relating to the environmental review and clearance of the proposed project. The environmental review and the documentation of that review shall at all times be conducted as directed by the department and subject to the oversight of the department, and 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:

   1. (1) shall determine the scope of work to be performed by the private developer or its consultant or subcontractor;
   2. (2) shall specify the level of design, alternatives to be reviewed, impacts to consider, and other information to be provided by the private developer or its consultant or subcontractor; and
   3. (3) shall independently review any studies and conclusions reached by the private developer or its consultant or subcontractor before their inclusion in an environmental document.
9. (i) Completion of the environmental review is required before the private developer may be authorized to conduct and complete the final design and start construction of a project. Additionally, all applicable state and federal environmental permits and approvals must be obtained before the private developer may start 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. A comprehensive development agreement shall provide that the agreement will be modified as necessary to address requirements in the final environmental documents, and shall provide that the agreement may be terminated if the "no-build" alternative is selected or if another alternative is selected that is incompatible with the requirements of the agreement.
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, or operation 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.

12. (l) As provided in the Turnpike Act, the department shall require a private developer entering into a comprehensive development agreement to provide a performance or payment bond or an alternative form of security in an amount sufficient to ensure the proper performance of the agreement, and to protect the department and payment bond beneficiaries supplying labor or materials to the private developer or a subcontractor of the private developer. Bonds and alternate forms of security shall be in the form and contain the provisions required in the request for proposals or the comprehensive development agreement. In addition to, or in lieu of, performance and payment bonds, the department may require:

    1. (1) a cashier's check drawn on a federally insured financial institution, and drawn to the order of the department;
    2. (2) United States bonds or notes, accompanied by a duly executed power of attorney and agreement authorizing the collection or sale of the bonds or notes in the event of the default of the private developer or a subcontractor of the private developer;
    3. (3) an irrevocable letter of credit issued or confirmed by a financial institution meeting the credit rating and other requirements prescribed by the department, and providing coverage for a period of at least one year following final acceptance of the project and completion of any warranty period; or
    4. (4) an irrevocable letter signed by a guarantor meeting the net worth or other financial requirements prescribed in the request for proposals or comprehensive development agreement, and which guarantees the full and prompt payment and performance when due of the private developer's obligations under the comprehensive development agreement and other documents and agreements executed by the private developer in connection with the comprehensive development agreement.

Source Note:The provisions of this §27.3 adopted to be effective July 18, 2002, 27 TexReg 6377; amended to be effective September 18, 2003, 28 TexReg 8005; amended to be effective August 19, 2004, 29 TexReg 7998.