(a) For any rail facility acquired or constructed by the department, the department may contract with a public or private entity to operate the facility or lease it.
(b) Except as provided in this section, the department will use a competitive process to select the operator or lessee. For the selection of a rail operator, the department will select the lowest responsible bidder that complies with the department's criteria. For the selection of a lessee, the department will select the bidder whose proposal offers the apparent best value to the department. The department will publish a notice in the Texas Register and in a newspaper of general circulation in the area in which the rail facility is located, requesting proposals to operate or to lease the facility. In evaluating proposals submitted in response to a request under this subsection, the department will select the bidder considering the:
  (1) qualifications and capability of the proposer to operate the rail facility;
  (2) proposer's experience in constructing and maintaining rail facilities;
  (3) financial capability of the proposer to operate and maintain the rail facility;
  (4) relative effectiveness of the proposer's management team and staff;
  (5) extent to which the proposal minimizes the department's financial obligations in acquiring or maintaining the rail facility;
  (6) if within the scope of the published proposal, proposer's plan for maintaining and improving equipment, trackwork, and right of way, including the planned schedule for carrying out the maintenance and improvements and planned funding sources; and
  (7) if within the scope of the published proposal, proposer's planned operating rules and procedures for servicing markets served by the rail facility, including plans and proposed schedules for improving service and adding additional markets.
(c) The department will rank all proposals submitted in response to a request under subsection (b) of this section using the criteria set out in the request for proposals. The criteria will, at a minimum, include the factors listed in subsection (b) of this section. The department will negotiate an agreement with the highest ranked proposer.
(d) If an agreement satisfactory to the department cannot be negotiated with the proposer, the department will formally end negotiations with that proposer. The department may reject all proposals or proceed to the next highest ranked proposal and attempt to negotiate an agreement with that proposer.
(e) The executive director will submit to the commission a summary of the final terms of the agreement. The commission may authorize the executive director to execute the agreement if it finds that the agreement is in the best interest of the state and furthers state, regional, and local transportation plans, programs, policies, and goals.
(f) The department may enter into the following contracts without engaging in a competitive process:
  (1) a contract for rail operator services for 90 days or less, if the department first contacts at least three responsible operators;
  (2) a contract with a public entity; or
  (3) a lease of railroad track that connects to only one railroad line.

Source Note: The provisions of this §7.13 adopted to be effective April 1, 2011, 36 TexReg 1690