1. (a) If the department develops a concept for private participation in a turnpike project, it will solicit participation in accordance with the requirements of this section.
2. (b) The department will set forth the basic criteria for professional expertise, financial capability, and end-product expectations in a request for qualifications and will publish it at a minimum in the Texas Register and in one or more newspapers of general circulation in this state. The department may also elect to furnish the request for qualifications to businesses in the private sector that the department otherwise believes might be interested and qualified to participate in the turnpike project which is the subject of the request for qualifications.
3. (c) At its sole option, the department may elect to furnish conceptual designs, fundamental details, or detailed plans of the proposed project in the request for qualifications.
4. (d) The request for qualifications may request one or more conceptual approaches to bring the turnpike project to fruition. The request for qualifications shall request a proposed financial plan for the project that includes projected project costs and proposed sources of funds.
5. (e) The department, after evaluating the submissions received in response to a request for qualifications, will identify those entities that will be considered qualified to submit detailed proposals for a proposed project. In evaluating the submissions, the department will consider each entity's financial condition, management stability, technological capability, experience, staffing, organizational structure, project commitment, and such other qualities that the department considers relevant to the successful completion of the project. The request for qualifications will include the criteria used to evaluate the submissions and the relative weight given to the criteria. The department shall advise each entity providing a submission whether it is on the "short-list" of qualified entities.

6. (f) The department will issue a request for proposals from all private entities qualified for the short-list, consisting of the submission of detailed documentation regarding the turnpike project. The request for proposals may require the submission of additional information relating to:

   1. (1) the proposer's qualifications and demonstrated technical competence;
   2. (2) the feasibility of developing the project as proposed;
   3. (3) detailed engineering or architectural designs;
   4. (4) the proposer's ability to meet schedules;
   5. (5) a detailed financial plan, including costing methodology; or
   6. (6) any other information the department considers relevant or necessary.
7. (g) If the department solicits proposals in which an entity affiliated with the private developer will act as the department's environmental consultant for the proposed project, the request for proposals may require the submission of a consolidated joint proposal from the private developer and the environmental consultant or subcontractor that results in a comprehensive development agreement and separate contract for environmental services.
8. (h) The proposals will be evaluated by the department as to their feasibility (including the reasonableness of the financial plan), realistic time frame, assumptions (including those related to ownership, legal liability, law enforcement and operation of the project), forecasts, financial exposure and benefit to the department, compatibility with other planned or existing transportation facilities, likelihood of obtaining necessary approvals and other support, cost and pricing, toll rates and projected usage, scheduling, environmental impact, manpower availability, use of technology, governmental liaison, and project coordination, with attention to efficiency, quality of finished product and such other criteria, including conformity with department policies, guidelines and standards, as may be deemed appropriate by the department to maximize the overall performance of the project and the resulting benefits to the state. Specific evaluation criteria and requests for pertinent information will be set forth in the request for proposals.
9. (i) Based on the evaluation and the evaluation criteria described under subsection (h) of this section, the department will rank all proposals that are complete, responsive to the request for proposals, and in conformance with the requirements of this subchapter, and may select the private entity whose proposal offers the apparent best value to the department. If the request for proposals provides for a consolidated joint proposal to be submitted for a separate environmental consultant contract as well as the comprehensive development agreement, the request for proposals shall specify how the two parts of the proposal will be evaluated in making the overall best value determination. The proposers will be notified in writing of the department's rankings. The department shall also make the rankings available to the public.
10. (j) Final selection of any proposal will be dependent, in part, on the adequacy of the financial plan presented in that proposal. The department will review the adequacy of the financial plan presented in the proposal and determine if it is based on reasonable financial assumptions.

11. (k) Only if a proposal is determined to be financially feasible and to provide a reasonable basis for further development of the proposal will the department then attempt to negotiate a comprehensive development agreement with that party to construct, maintain, repair, or operate the turnpike project and (if included in the request for proposals) an environmental consultant contract. The Attorney General or the Attorney General's designated representative will be included in the negotiations with the proposer. If a comprehensive development agreement satisfactory to the department cannot be negotiated with that proposer, the department will formally end negotiations with that proposer and, in its sole discretion, either:

    1. (1) reject all proposals;
    2. (2) terminate or suspend the evaluation of all proposals;
    3. (3) cancel the request for proposals;
    4. (4) modify the request for proposals and begin again the submission of proposals; or
    5. (5) proceed to the next most highly ranked proposal and attempt to negotiate a comprehensive development agreement with that party in accordance with this paragraph.
12. (l) If an environmental consultant contract satisfactory to the department cannot be negotiated with the selected consultant, the department may elect to terminate negotiations and proceed with the negotiation of the comprehensive development agreement only.
13. (m) If during the course of negotiations with the highest ranking proposer it appears that the proposal will not provide the department with the overall best value, the department may enter into negotiations with the proposer submitting the next highest ranking proposal.
14. (n) The request for proposals shall, as authorized under Transportation Code, §361.3022(m) and other applicable law, stipulate the amount of money the department will pay to an unsuccessful proposer that submits a detailed proposal that is responsive to the requirements of the request for proposals.

Source Note:The provisions of this §27.4 adopted to be effective July 18, 2002, 27 TexReg 6377; amended to be effective September 18, 2003, 28 TexReg 8005.