(a) Purpose. Transportation Code, §228.052 authorizes the department to enter into an agreement with one or more persons to provide, on terms approved by the department, personnel, equipment, systems, facilities, and services necessary to operate a toll project or system. This section prescribes the requirements for soliciting proposals for a contract to provide an operational concession to a private entity. Except as provided by this section and §27.84 of this subchapter (relating to No-Cost Contracts for Services to Support the Operation of Department Toll Projects), the department may use any of its applicable procurement processes to procure personnel, equipment, systems, facilities, or services necessary to operate a toll project or system.     
      (b) Procurement process. A contract that provides an operational concession to the private entity shall be procured using the two-step procurement process set out in subsections (c)-(i) of this section.     
      (c) Request for qualifications. The department will set forth the basic criteria for professional experience, technical competence, and other information the department considers relevant or necessary in a request for qualifications, and will publish it, at a minimum, in one or more newspapers of general circulation in this state. The department may elect to furnish fundamental details or technical studies and reports relating to the toll project in the request for qualifications.     
      (d) Request for qualifications - evaluation. 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 the toll project. In evaluating the submissions, the department will consider qualities that the department considers relevant to the project, which may include the private entity's financial condition, management stability, technical capability, experience, staffing, and organizational structure. The request for qualifications will include the criteria used to evaluate the submissions and the relative weight given to the criteria. The department will advise each entity providing a submission whether or not it is on the "short-list" of qualified entities.     
      (e) Request for proposals. The department will issue a request for proposals consisting of the submission of detailed documentation regarding the project. The request for proposals may require the submission of additional information relating to:      
        (1) the proposer's qualifications and demonstrated technical competence;       
        (2) the feasibility of operating the toll project as proposed;       
        (3) the proposer's ability to meet schedules;       
        (4) a detailed financial plan, if applicable, including costing methodology, cost proposals, and project financing approach; or       
        (5) any other information the department considers relevant or necessary.       
      (f) Detailed proposal evaluation criteria. The proposals will be evaluated by the department based on those evaluation criteria the department deems appropriate for the toll project, which may include the reasonableness of any financial plan submitted by a proposer, the reasonableness of the project schedule, reasonableness of assumptions (including those related to legal liability, law enforcement, and operation and maintenance 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 toll 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.     
      (g) Apparent best value proposal. Based on the evaluation and the evaluation criteria described under subsection (f) of this section and set forth in the request for proposals, the department will rank all proposals that are complete, responsive to the request for proposals, and in conformance with the requirements of this section, and may select the private entity whose proposal offers the apparent best value to the department.     
      (h) Selection of entity. The department will submit a recommendation to the commission regarding approval of the proposal determined to provide the apparent best value to the department. The commission may approve or disapprove the recommendation, and if approved, will award the agreement to the apparent best value proposer. Award may be subject to the successful completion of negotiations, any necessary federal action, execution by the executive director of the agreement, and satisfaction of other conditions that are identified in the request for proposals or by the commission. The proposers will be notified in writing of the department's rankings. The department shall also make the rankings available to the public.     
      (i) Negotiations with selected entity. If authorized by the commission, the department will attempt to negotiate an agreement with the apparent best value proposer to operate the project. If an agreement satisfactory to the department cannot be negotiated with that proposer, or if, in the course of negotiations, it appears that the proposal will not provide the department with the overall best value, the department will formally end negotiations with that proposer and, in its sole discretion, either:      
        (1) reject all proposals;       
        (2) modify the request for proposals and begin again the submission of proposals; or       
        (3) proceed to the next most highly ranked proposal and attempt to negotiate an agreement with that entity in accordance with this subsection.       
     Source Note:        The provisions of this §27.83 adopted to be effective March 16, 2006, 31 TexReg 1729; amended to be effective September 14, 2016, 41 TexReg 7136; amended to be effective July 18, 2018, 43 TexReg 4764