(a) Request for qualifications-notice. If authorized by the commission to issue a request for qualifications for a highway project, the department will set forth the basic criteria for qualifications, experience, technical competence and ability to develop the project, and such other information as the department considers relevant or necessary in the request for qualifications. The department will publish notice advertising the issuance of the request for qualifications in the             Texas Register            and will post the notice and the request for qualifications on the department's Internet website. The department may also elect to furnish the request for qualifications to businesses in the private sector that the department otherwise believes might be interested and qualified to participate in the project that is the subject of the request for qualifications.     
      (b) Request for qualifications-content. At its sole option, the department may elect to furnish conceptual designs, fundamental details, technical studies and reports or detailed plans of the proposed project in the request for qualifications, and may request conceptual approaches to bringing the project to fruition. A request for qualifications must include:      
        (1) information regarding the proposed project's location, scope, and limits;       
        (2) information regarding funding that may be available for the project;       
        (3) criteria that will be used to evaluate the qualifications submittals;       
        (4) the relative weight to be given to the criteria;       
        (5) the deadline by which qualifications submittals must be received by the department; and       
        (6) any other information the department considers relevant or necessary.       
      (c) Request for qualifications-evaluation. The department, after evaluating the qualification submittals received in response to a request for qualifications, will identify and approve a "short-list" that is composed of those entities that are considered most qualified to submit detailed proposals for a proposed project. In evaluating the qualification submittals, the department will consider the results of performance evaluations conducted by the department under §9.152 of this subchapter (relating to General Rules for Design-Build Contracts) and §27.3 of this title (relating to General Rules for Private Involvement) determined by the department to be relevant to the project, the results of other performance evaluations determined by the department to be relevant to the project, and other objective evaluation criteria that the department considers relevant to the project, including a proposer's qualifications, experience, technical competence, and ability to develop the project, and that may include the private entity's financial condition, management stability, staffing, and organizational structure. The department may interview entities responding to a request for qualifications. The department shall short-list at least two private entities to submit proposals, but may not short-list more private entities than the number of private entities designated in the request for qualifications if a maximum number is designated. The department shall advise each entity providing a qualifications submittal whether it is on the short-list of qualified entities.     
      (d) Requests for proposals. If authorized by the commission, the department will issue a request for proposals from all private entities qualified for the short-list, consisting of the submission of detailed documentation regarding the project. A request for proposals must include:      
        (1) information on the overall project goals;       
        (2) publicly available cost estimates for the design-build portion of the project;       
        (3) materials specifications;       
        (4) special material requirements;       
        (5) a schematic design approximately 30 percent complete;       
        (6) known utilities;       
        (7) quality assurance and quality control requirements;       
        (8) the location of relevant structures;       
        (9) notice of any rules or goals adopted by the department relating to awarding contracts to disadvantaged business enterprises or small business enterprises;       
        (10) available geotechnical or other information related to the project;       
        (11) the status of any environmental review of the project;       
        (12) detailed instructions for preparing the technical proposal, including a description of the form and level of completeness of drawings expected;       
        (13) the relative weighting of the technical and cost proposals and the formula by which the proposals will be evaluated and ranked, which must allocate at least 70 percent of weighting to the cost proposal;       
        (14) the criteria to be used in evaluating the technical proposals, and the relative weighting of those criteria;       
        (15) the proposed form of design-build contract; and       
        (16) any other information the department considers relevant or necessary.       
      (e) Request for proposals-submittal requirements. The request for proposals must require the submission of a sealed technical proposal and a separate sealed cost proposal no later than the 180th day after the issuance of the request for proposals, and that provide information relating to:      
        (1) the feasibility of developing the project as proposed;       
        (2) the proposed solutions to anticipated problems;       
        (3) the ability of the proposer to meet schedules;       
        (4) the engineering design proposed;       
        (5) the cost of delivering the project;       
        (6) if maintenance of the project is required, pricing for the maintenance work for each maintenance term;       
        (7) the estimated number of days required to complete the project; and       
        (8) any other information requested by the department.       
      (f) Requests for proposals-payment for work product. The request for proposals shall stipulate an amount of money, as authorized under Transportation Code, §223.249, that the department will pay to an unsuccessful proposer that submits a proposal that is responsive to the requirements of the request for proposals. The commission shall approve the amount of the payment to be stipulated in the request for proposals, which must be a minimum of twenty-five hundredths of one percent of the contract amount. The request for proposals shall provide for the payment of a partial amount in the event the procurement is terminated. In determining the amount of the payment, the commission shall consider:      
        (1) the effect of a payment on the department's ability to attract meaningful proposals and to generate competition;       
        (2) the work product expected to be included in the proposal and the anticipated value of that work product; and       
        (3) the costs anticipated to be incurred by a private entity in preparing a proposal.       
      (g) Request for proposals-evaluation. The proposals will be evaluated by the department based on the results of performance evaluations conducted by the department under §9.152 of this subchapter and §27.3 of this title determined by the department to be relevant to the project, the results of other performance evaluations determined by the department to be relevant to the project, and other objective evaluation criteria the department deems appropriate for the project, including those criteria deemed appropriate by the department to maximize the overall performance of the 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. The department shall first open, evaluate, and score each responsive technical proposal, and shall subsequently open, evaluate, and score the cost proposals from proposers that submitted a responsive technical proposal and assign points on the basis of the weighting specified in the request for proposals.     
      (h) Apparent best value proposal. Based on the evaluation using the evaluation criteria described under subsection (g) 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 subchapter, in accordance with the formula provided in the request for proposals. The department may select the private entity whose proposal offers the apparent best value to the department.     
      (i) Selection of entity. The department shall 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 design-build contract 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 design-build contract, and satisfaction of such 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.     
      (j) Negotiations with selected entity. If authorized by the commission, the department will attempt to negotiate a design-build contract with the apparent best value proposer. If a design-build contract 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 and in writing 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 a design-build contract with that entity in accordance with this paragraph.       
     Source Note:        The provisions of this §9.153 adopted to be effective March 15, 2012, 37 TexReg 1780; amended to be effective July 19, 2012, 37 TexReg 5334; amended to be effective September 14, 2016, 41 TexReg 7134