Private entities may submit unsolicited proposals to the department requesting participation in a turnpike project to be constructed pursuant to the Turnpike Act. Unsolicited proposals shall be designated by the proposer as a "Detailed Proposal" or a "Conceptual Proposal," and shall be processed in accordance with the requirements of this section.

1. (1) Detailed Proposals.

   1. (A) A detailed proposal requesting department participation in a proposed turnpike project shall be filed with the department and must include the following information:

      1. (i) the name, address, and professional designation of each member of the proposer's management team and of other key employees or consultants;
      2. (ii) the description, scope, and location of the project;
      3. (iii) the results expected from project implementation and the critical factors for the project's success;
      4. (iv) all studies previously completed concerning the project;
      5. (v) a general conceptual plan which includes, at a minimum, all proposed interconnections with other transportation facilities and information responsive to the evaluation criteria listed in §27.4(4) of this subchapter;
      6. (vi) complete information concerning the experience, expertise, and qualifications of the proposer and of each member of the proposer's management team and of other key employees or consultants, including information responsive to the evaluation criteria listed in §27.4(5) of this subchapter;
      7. (vii) a description of all federal, state, and local permits and approvals, together with documentation of support by appropriate public entities required for the project, and a schedule and methodology for obtaining permits, approvals, and support;
      8. (viii) a detailed financial plan, including that information necessary for the department to determine the adequacy and feasibility of the financial plan under §27.4(7) of this subchapter;
      9. (ix) a specific description of the level and nature of participation sought from the department;
      10. (x) information necessary for the department to carry out its environmental review responsibilities under §27.3(h) and (i) of this subchapter;
      11. (xi) a listing of anticipated opponents and a description of potential social, economic, and environmental impacts, and potentially competing facilities and proposers;
      12. (xii) other information of probable interest to the department; and
      13. (xiii) the proposal review fee of $20,000 in the form prescribed by §27.3 of this subchapter.

   2. (B) Any detailed proposal properly filed with the department in accordance with subparagraph (A) of this paragraph and accompanied by the proper proposal review fee will be reviewed by the department. Based on that review, an initial recommendation will be made to the commission as to whether the department should further evaluate its requested participation in the applicable turnpike project. That recommendation shall be based on whether the proposed project:

      1. (i) is compatible with existing and planned transportation facilities; and
      2. (ii) furthers state, regional, and local transportation plans, programs, policies, and goals, as well as the proposal's responsiveness to such other evaluation criteria as the department deems relevant.
   3. (C) If the initial recommendation is that the department further evaluate its requested participation in the applicable turnpike project and the commission approves that recommendation, the department will publish notice of that decision and provide an opportunity for the submission of competing proposals as provided in this section. The department will publish a notice in the Texas Register and in one or more newspapers of general circulation in this state. The notice will state that the department has received an unsolicited proposal under these rules and the Turnpike Act, that it intends to evaluate the proposal, that it may negotiate an exclusive development agreement with the proposer based on the proposal, and that it will accept for simultaneous consideration any competing proposals that the department receives in accordance with these rules within 45 days of the initial publication of the notice in the Texas Register, or such additional time as authorized by commission order. In determining whether to authorize additional time for submission of competing proposals, the commission will consider the complexity of the proposed project. The notice will summarize the proposed turnpike project, identify its proposed location and interconnections with other transportation facilities, and provide a conceptual design. The department also may provide traffic counts, forecasts, and other available data either in the notice or upon request of any party responding to the notice.
   4. (D) Failure by a prospective proposer to submit a competing proposal, together with the proper proposal review fee, within the 45-day period or such additional time as authorized by the commission, shall preclude the proposal from consideration by the department unless and until the department terminates consideration of, or negotiations on, the original unsolicited proposal and any and all competing proposals received within that time period. The department will not grant requests to extend the time period to submit competing proposals; and the receipt of one or more competing proposals during that period will not trigger the posting or publication of a new notice or the commencement of any new time period.
   5. (E) The department recognizes that it may receive proposals that have certain characteristics in common with the original unsolicited proposal, yet differ in other material respects. In those cases, the department reserves the right, in its sole discretion, to treat such a proposal as either a competing proposal or a noncompeting proposal. Because of the consequences to a proposer of failing to submit a proposal that the department could later deem a competing proposal within the 45-day period, or such additional time as authorized by the commission, prospective proposers are strongly urged to monitor the department's notices of unsolicited proposals received, and be prepared to submit within that time period if they perceive that a proposal they are considering or are preparing bears certain similarities to, or has characteristics in common with, an unsolicited proposal which is the subject of a notice.

   6. (F) Upon the expiration of the 45-day period, or such additional time as authorized by the commission, the department will subject the original unsolicited proposal, together with any and all properly submitted competing proposals, to the following single-phase evaluation and selection process. If one or more properly submitted competing proposals are received, the department shall review and rank the proposals, together with the original unsolicited proposal, utilizing the evaluation criteria set forth in §27.4(4) and (5) of this subchapter and the information specified in subparagraph (A) of this paragraph. The proposers will be notified of the department's rankings, and the process will proceed in the manner described in §27.4(7) and (8) of this subchapter including, without limitation, the participation of the Attorney General or the Attorney General's designated representative in the negotiation of an exclusive development agreement.

      1. (i) If no properly submitted competing proposal is received, the department will attempt to negotiate an exclusive development agreement for the project described in the original unsolicited proposal with the proposer submitting that proposal.
      2. (ii) The Attorney General or the Attorney General's designated representative will be included in the negotiation with the proposer. If an exclusive development agreement satisfactory to the department cannot be negotiated with that proposer, the department shall formally end the evaluation of the original unsolicited proposal and all negotiations with the proposer submitting that proposal.
2. (2) Conceptual Proposals. A conceptual proposal requesting department participation in a proposed turnpike project must be filed with the department and be accompanied by a $5,000 proposal review fee. At a minimum, a conceptual proposal must include a general description of the turnpike project, anticipated costs associated with the project, the expected level of department participation, and a designated contact for the proposer. Conceptual proposals shall be reviewed by the department. Based on that review, an initial recommendation will be made to the commission as to whether the department should request that the proposer submit a follow-up proposal containing the information described in paragraph (1)(A) of this section. If the recommendation is that the department request that the proposer submit a follow-up proposal and the commission approves that recommendation, the department shall notify the proposer in writing of the request. The proposer shall have 45 days from the date of receipt of the request, or such additional time as authorized by commission order, in which to submit the follow-up proposal, which must be accompanied by a proposal review fee in the amount of $15,000. In determining whether to authorize additional time for the submission of the follow-up proposal, the commission will consider the complexity of the proposed project. Once received, the follow-up proposal shall be considered as a detailed proposal and shall be processed in accordance with the procedures set forth in paragraph (1)(B) - (F) of this section.

Source Note:The provisions of this §27.5 adopted to be effective July 18, 2002, 27 TexReg 6377.