(a) Solicited and unsolicited proposals. 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.
(b) Reservation of rights. 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) withdraw a request for qualifications or a request for proposals at any time, and issue a new request;
  (2) reject any and all qualifications submittals or proposals, whether solicited or unsolicited, at any time;
  (3) terminate evaluation of any and all qualifications submittals or proposals, whether solicited or unsolicited, at any time;
  (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) 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) negotiate with a proposer without being bound by any provision in its proposal, whether solicited or unsolicited;
  (7) negotiate with a proposer to include aspects of unsuccessful proposals for that project in the comprehensive development agreement;
  (8) request or obtain additional information about any proposal from any source;
  (9) modify, issue addenda to, or cancel any request for qualifications or request for proposals;
  (10) waive deficiencies in a qualifications submittal or proposal, accept and review a non-conforming qualifications submittal or proposal, or permit clarifications or supplements to a qualifications submittal or proposal;
  (11) revise, supplement, or make substitutions for all or any part of these rules; or
  (12) retain or return all or any portion of the fees required to be paid by proposers under this subchapter, as provided in subsection (h) of this section.
(c) Costs incurred by proposers. Except as provided in §27.4(f) of this subchapter (relating to Solicited Proposals), 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.
(d) Department information. 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 expressly specified in the request for qualifications or request for proposals. Proposers may not rely upon any oral responses to inquiries.
(e) Procedure for communications. If a proposer has a question or request for clarification regarding these rules or any request for qualifications or request for proposals issued by the department, the proposer shall submit the question or request for clarification in writing to the person responsible for receiving those submissions, as designated in the request for qualifications or request for proposals, and the department will provide the responses in writing. The proposer shall also comply with any other provisions in the request for qualifications or request for proposals regulating communications.
(f) Compliance with rules. In submitting any proposal, the proposer shall be deemed to have unconditionally and irrevocably consented and agreed to the foregoing provisions and all other provisions of this subchapter.
(g) Proposer information submitted to department. All qualifications submittals or proposals submitted to the department become the property of the department and may be, except as provided by Transportation Code, §223.204, subject to the Public Information Act, Government Code, Chapter 552. Proposers should familiarize themselves with the provisions of Transportation Code, §223.204 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. The proposer's designation shall not be dispositive of the trade secret, proprietary, or exempted nature of the information so designated.
(h) Proposal review fee. A nonnegotiable proposal review fee shall be required for any unsolicited proposal submitted under this subchapter and applied by the department to offset the cost of processing and reviewing the proposal. An unsolicited proposal for a project in the department's unified transportation program must be accompanied by a proposal review fee of $5,000. An unsolicited proposal for a project that is not in the department's unified transportation program must be accompanied by a proposal review fee of $10,000. The executive director may approve a proposal review fee for a particular project in a lower amount. In approving a lower fee, the executive director shall consider the complexity of the project. Failure to submit the required proposal review fee 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. A proposal review fee that is submitted with a proposal for a project that is not an eligible project, or that the department is not otherwise legally authorized to accept shall be returned to the proposer. All other proposal review fees are nonrefundable.
(i) Sufficiency of proposal. 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.
(j) Project studies. 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, the department will favor proposals in which the costs for studies will be advanced by the private entity, particularly if the advance is at the private entity's risk. The department may elect to pay, in whole or in part, the costs for such studies in its sole discretion. The department may require that the financial plan for each proposal provide for reimbursement of all related expenses incurred by the department, as well as any department study funds utilized in connection with the project.
(k) Proposer's additional responsibilities. 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.
(l) Proposer's work on environmental review of eligible project. 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 an eligible 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 Cont'd...