(a) The department will evaluate proposals based on the criteria that the department considers appropriate for the project. The criteria may include the comparative value of estimated emissions reductions generated by the proposed transportation facility, the revenue potential to the state, the current viability of proposed technology, the financial viability of the proposer, or other factors that the department reasonably determines are relevant for the project.
(b) Based on the evaluation criteria described under subsection (a) 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.
(c) The department may select one or more entities whose proposals offer the apparent best value to the department, or may reject all proposals.
(d) The department will submit a recommendation to the commission regarding approval of the proposal or proposals determined to provide the apparent best value to the department. The commission may disapprove the recommendation or the commission may approve the recommendation, if it finds that:
  (1) one or more alternative transportation facilities for moving freight are available that have lower emissions than emissions produced for the movement of the same amount of freight an equivalent distance by truck;
  (2) part of the right of way of, the airspace above, or the underground space below a highway that is part of the state highway system will not be needed for a highway purpose during the term of the lease and is suitable for the identified mode of moving freight;
  (3) the use of the right of way, airspace, or underground space for the identified mode of moving freight would not be inconsistent with applicable highway use; and
  (4) the lease of the property described in paragraph (2) of this subsection would be economically beneficial to the department, taking into account the receipt of lease payments and the reduced maintenance costs on the state highway system.
(e) The department's execution of the agreement is subject to the successful completion of negotiations, any necessary federal action, and satisfaction of such other conditions that are identified in the request for proposals or by the commission.

Source Note: The provisions of this §21.305 adopted to be effective January 6, 2011, 35 TexReg 11959