TITLE 43.TRANSPORTATION

Part 9. NORTH TEXAS TOLLWAY AUTHORITY

Chapter 201. PROCUREMENT OF GOODS AND SERVICES AND PROPERTY DISPOSITION

The North Texas Tollway Authority (Authority or NTTA) proposes new §§201.1 - 201.13; 201.20 - 201.25 and 201.30 rules, concerning its policy regarding procurement and disposition of goods. These sections provide a statement of general policy and procedures; identify conflicts of interest; provide a summary of procurement options; note when board approval is required; note encouragement of disadvantaged business participation; provide procedures for emergency procurement; outline procedures for electronic bidding; outline the confidentiality of bid or proposal information; list the standard implied contract provisions; note the Authority's authority to interrupt, delay or cancel procurement; provide information as to nonresident bidders and prior employees; provide procedures for bid protests; and define words and terms used in the sections. The policy also includes appendices regarding construction and maintenance contracts; professional services; general goods and services; participation in state and cooperative purchasing programs and intergovernmental agreements; and consulting services and disposition of salvage or surplus property.

FISCAL NOTE

Jerry Hiebert, the executive director, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications for the state or units of local government as a result of enforcing or administering the sections.

PUBLIC BENEFIT

Mr. Hiebert has also determined that for each year of the first five years the sections are in effect, the public benefit of enforcing or administering the new sections will be that the Authority's procurement shall be based solely on economic and business merit in order to best promote the interests of the citizens served by the Authority. These sections as proposed should have no adverse affect on small businesses, or possible economic cost to persons who are required to comply with the sections.

SUBMITTAL OF COMMENTS

Comments may be submitted in writing to Jerry Hiebert, Executive Director, North Texas Tollway Authority, 5900 W. Plano Parkway, Suite 100, Plano, Texas 75093. The deadline for receipt of comments is 5:00 p.m. on July 19, 2004.

Subchapter A. PROCUREMENTS AND DISPOSITIONS

43 TAC §§201.1 - 201.13

STATUTORY AUTHORITY

The new sections are proposed under Transportation Code, Title 6, Subtitle G, Chapter 366, §366.033(j), which authorizes the NTTA to adopt written procedures governing its procurement of goods and services that are consistent with general laws applicable to the Authority.

CROSS REFERENCE TO STATUTE

Transportation Code, §366.033, Transportation Code, §366.184, Transportation Code, §366.185, Local Government Code, Chapter 271, Local Government Code, Chapter 272, Government Code, Chapter 791, Government Code, Chapter 2252, and Government Code, Chapter 2258.

§201.1.Purpose, Organization and Applicability of this Policy; Procedures; Conflicts.

(a) Pursuant to Texas Transportation Code, §366.033(j), the Authority must adopt written procedures governing its procurement of goods and services that are consistent with general laws applicable to the Authority. This policy and the procedures referenced below are adopted for that purpose.

(b) This policy is organized in two (2) basic parts: §201.1 through §201.13 of Subchapter A, which are applicable to all of the Authority's procurements and dispositions covered by this policy, and Appendices A through F of Subchapter B, which relate to the Authority's award of certain types of contracts, procurement of certain types of goods and services, and disposition of certain types of property. Definitions of terms used throughout this policy and in the procedures are contained in Subchapter C.

(c) The board authorizes the executive director to adopt a separate set of internal procedures to assist in the implementation of this policy. To the extent of any conflict between this policy and the procedures, the former shall control. Further, the Authority may implement an administrative code, administrative resolutions, administrative policy, or similar document pertaining to the procurement or disposition of property. To the extent of any conflict between this policy or the procedures and any such code, resolutions, policy, or similar document, the policy and the procedures shall control.

(d) This policy does not apply to:

(1) the acquisition or disposition of any interest in real property or

(2) the procurement or other provisions of any agreement with a public or private entity pursuant to Texas Transportation Code, §366.302. "Agreements to Construct, Maintain, and Operate Turnpike Projects".

§201.2.Summary of Procurement Options.

(a) Contracts for the construction or maintenance of a turnpike project shall be let by competitive bidding as provided in Appendix A.

(b) Professional services shall be procured pursuant to the Professional Services Procurement Act as provided in Appendix B.

(c) The Authority may procure general goods and services costing, or anticipated to cost, no more than twenty-five thousand dollars ($25,000.00) by any method and on any terms as the executive director determines to be in the best interest of the Authority. General goods and services costing, or anticipated to cost, more than twenty-five thousand dollars ($25,000.00) shall be procured using competitive bidding, competitive sealed proposals, or a proprietary purchase as provided in Appendix C. General goods and services also may be procured pursuant to the catalog purchasing procedure or other program established by the commission to provide purchasing services for governmental entities, through a cooperative purchasing program with governmental entities or through an interlocal agreement with TxDOT or other governmental entity as provided in Appendix D.

(d) The Authority may procure consulting services costing, or anticipated to cost, no more than fifty thousand dollars ($50,000.00) by any method and on any terms as the executive director determines to be in the best interest of the Authority. Consulting services costing or anticipated to cost more than fifty thousand dollars ($50,000.00) shall be procured by the Authority's issuance of an RFQ or pursuant to a single-source contract as provided in Appendix E.

§201.3.Required Board Approval, Generally.

Except as otherwise provided in this policy with respect to certain emergency procurements, every procurement governed by this policy, whether made through contract awards, contract change orders, contract supplements, purchase orders, or otherwise that costs or is anticipated to cost more than three hundred thousand dollars ($300,000.00) shall require the approval of or ratification by the board, evidenced by a resolution adopted by the board. A procurement may not be divided into smaller contracts, purchases, or lots to avoid any dollar limits prescribed in this policy.

§201.4.Conflict of Interest; Contact with the Authority.

(a) A member of the board, an employee or agent of the Authority shall not:

(1) contract with the Authority or be directly or indirectly interested in a contract with the Authority or the sale of property to the Authority;

(2) accept or solicit any gift, favor or service that might reasonably tend to influence that board member, employee or agent in the making of procurement decisions or that the board member, employee or agent knows or should have known is being offered with the intent to influence the board member's, employee's or agent's making of procurement decisions; or

(3) accept other compensation that could reasonably be expected to impair the board member's, employee's or agent's independence of judgment in the making of procurement decisions.

(b) No bidder, offeror or respondent shall offer any interest, gift, favor, service or compensation described in the preceding sentence, and any such offer may disqualify the bidder, offeror or respondent from consideration for the applicable procurement.

(c) A bidder, offeror or respondent shall be required to complete a conflict of interest disclosure statement disclosing any business or familial relationships with board members, employees or agents of the Authority. Such relationship may disqualify the bidder, offeror or respondent from consideration for the applicable procurement.

(d) Once a bidder, offeror or respondent has submitted a bid, proposal or response, it shall refrain from contacting any member of the staff, board, or consultants of the Authority regarding that procurement or disposition, except in accordance with the bid documents, RFP or RFQ. If the bidder, offeror or respondent has an existing contract with the Authority or other business, communications between that party and the Authority's staff, board and consultants shall be limited to that which is necessary to service or implement the existing contract or other business. The failure of a bidder, offeror or respondent to comply with this section may disqualify it from consideration for the applicable procurement.

§201.5.Disadvantaged Business Participation; Compliance with Policy.

Disadvantaged businesses will be encouraged to participate in the procurement process through the implementation of the BOPP. Specific BOPP requirements, if any, applicable to a particular procurement shall be described in the bid documents, RFP, or RFQ for that procurement.

§201.6.Emergency Procurements, Generally.

(a) Except for the procurement of construction or maintenance services, the Authority may employ any alternate procedure compliant with this section for the expedited award of a contract necessary to procure or provide goods or services to meet emergency conditions in which essential corrective or preventive action would be unreasonably hampered or delayed by compliance with the requirements otherwise applicable under this policy. Types of work which may qualify for emergency contracts include, but are not limited to, the restoration of the Authority's technology-based systems or other equipment necessary to prevent unreasonable loss of toll revenue or interference with the Authority's operations. The Authority may utilize such alternate procedure both if it is procuring goods and services to meet emergency conditions affecting its own operations or is procuring and providing such goods and services to meet emergency conditions affecting a third party's operations in accordance with the Authority's contractual obligations to that party.

(b) Before a contract is awarded under this section, the executive director, the deputy executive director or other administrator authorized under the CEMP or BCP must certify in writing the facts and nature of the emergency giving rise to the alternative procedure. The Authority shall make such efforts to assure a fair and competitive price for the applicable goods or services as the executive director, deputy executive director or other authorized administrator deems reasonable under the circumstances.

(c) If any such emergency procurement of goods and services costs, or is anticipated to cost, more than three hundred thousand dollars ($300,000.00), the executive director will provide each member of the board written notification of the emergency condition and the award on or before the next regular meeting of the board.

(d) The Authority's alternative criteria for the emergency procurement of construction or maintenance services are set forth in Appendix A.

§201.7.Electronic Bidding.

(a) The Authority may receive bids, proposals or responses through electronic transmission in a manner and format described in the procedures or otherwise designated by the Authority. Any bidder seeking to submit an electronic bid, proposal or response must do so via a network and/or software approved by the Authority. Under no circumstances shall the Authority be required to modify its network or software to receive an electronic bid or proposal.

(b) Any electronic submittal system must ensure the identification, security, and confidentiality of bids, proposals or responses, and that the electronic bids, proposals or responses remain effectively unopened until the time designated for the opening. Notwithstanding any other provision of this policy, an electronic bid, proposal or response is not required to be sealed.

(c) The Authority may accept the electronic submittal of signatures and verification of a bid guaranty check by a financial institution.

§201.8.Confidentiality of Information in Bids or Proposals.

(a) All bids, proposals, or responses shall be open for public inspection after the contract is awarded, unless indicated by the bid, proposal or response that the documents contain trade secrets, proprietary information and/or confidential information.

(b) To the extent permitted by law, information designated as and constituting a trade secret or proprietary and/or confidential information is not open for public inspection, and shall be opened in a manner that avoids disclosure of the contents to competing bidders, offerors or respondents.

(c) If a bid, proposal or response indicates that it contains trade secrets, proprietary information or confidential information, the Authority will notify the bidder, offeror or respondent of any request from the public for inspection of the bid, proposal or response in accordance with the Texas Public Information Act and similar "open records" laws. The bidder, offeror or respondent shall be responsible for asserting to the Attorney General or other reviewing authority or court any right to prevent disclosure of the documents to the public. The Authority may elect to seek approval of the Attorney General for the non-disclosure of the trade secret or confidential and/or proprietary information.

§201.9.Standard, Implied Contract Provisions.

(a) Unless otherwise expressly stated in the bid documents, RFP or RFQ, the following provisions shall apply to every procurement or disposition undertaken pursuant to this policy.

(b) The Authority is a tax-exempt entity under the Texas Tax Code. §151.309. All payments to be made by the Authority under any contract shall be deemed inclusive of federal, state, or other taxes, if any, however designated, levied or based. The contractor, provider, vendor or consultant shall be responsible for the payment of all federal, state, local, and other taxes, impositions and assessments imposed in connection with the contract.

(c) No payment by the Authority shall relieve the contractor, provider, vendor or consultant of its obligation to deliver timely the services, products or other deliverables required under a contract. If after approving or paying for any service, product or other deliverable, the Authority determines that said service, product or deliverable does not satisfy the requirements of the contract, the Authority may reject same and, if the contractor, provider, vendor or consultant fails to correct or cure same within a reasonable period of time and at no additional cost to the Authority, the contractor, provider, vendor or consultant shall return any compensation received therefor. The Authority shall have the right to set off any amounts owed by the contractor, provider, vendor or consultant pursuant to the terms of the contract.

(d) Any contractor, provider, vendor or consultant of the Authority shall be deemed to be and shall operate entirely as an independent contractor in the delivery of goods or the performance of services rendered under a contract.

(e) All records, memoranda, logs, recommendations, reports, and other data and materials generated or compiled by or on behalf of any contractor, provider, vendor or consultant in connection with any goods, services, or other work provided to the Authority, together with all materials and data furnished to it by the Authority, shall at all times be and remain as follows:

(1) the property of the Authority,

(2) free from, and not subject to, any restriction or limitation on their further use by or on behalf of the Authority, and

(3) subject to immediate delivery to the Authority upon its written request.

(f) The contractor, provider, vendor or consultant shall not sublet, assign, or transfer any part of any work or obligations under a contract without the prior written approval of the Authority. Responsibility for sublet, assigned or transferred work shall remain with the contractor, provider, vendor or consultant.

(g) Each contractor, provider, vendor or consultant shall comply with all federal, state, and local laws, statutes, ordinances, rules, regulations, codes and with the orders and decrees of any courts or administrative bodies or tribunals in any matter affecting its performance under a contract with the Authority.

(h) The contractor, provider, vendor or consultant shall not commence any work or obligations unless and until a written notice to proceed or similar instruction is issued. Any work undertaken, goods furnished or expenses incurred by the contractor, provider, vendor or consultant prior to the issuance of the notice to proceed or similar instruction is issued shall be at its sole risk. Without limiting the foregoing, no contractor, provider, vendor or consultant shall commence any activities within or in the vicinity of turnpike or other traffic lanes without fully satisfying the insurance requirements in the contract. After issuance of the notice to proceed or similar instruction, the contractor, provider, vendor or consultant shall promptly begin work pursuant to the provisions of the contract and shall continuously prosecute same with such diligence as will enable it to comply with any timetable or term set forth therein. Time is of the essence with respect to the performance and completion of all services, and the delivery of all goods, to be furnished to the Authority.

§201.10.Interruption, Delay, or Cancellation of Procurement.

At the sole discretion of the Authority, a process to solicit bids, proposals or responses may be interrupted, postponed, delayed or cancelled at any time without liability to the Authority. At the sole discretion of the Authority, the need for requested work under a procurement may be reevaluated or postponed, delayed or cancelled at any time without liability to the Authority. The Authority may determine to terminate a procurement process or make any adjustments to the bid documents, RFP, or RFQ that the Authority deems necessary and in its best interest.

§201.11.Nonresident Bidders.

In accordance with Texas Government Code, Chapter 2252, Subchapter A, the Authority will not award a contract to a nonresident bidder, offeror or respondent unless the nonresident underbids the lowest responsible bid, offer, proposal or response submitted by a responsible resident bidder, offeror or respondent by an amount that is not less than the amount by which a resident bidder, offeror or respondent would be required to underbid the nonresident to obtain a comparable contract in the state in which the nonresident's principal place of business is located. By executing a contract with the Authority, any successful bidder, offeror or respondent shall be deemed to have represented to the Authority that the foregoing requirement has been satisfied.

§201.12.Prior Employees.

Except as otherwise provided by state or federal law, nothing shall prohibit the Authority from procuring professional, general or consulting services from an individual who has previously been employed by the Authority or by any other political subdivision of the state or by any state agency; provided, that if a prospective provider has been employed by the Authority, another political subdivision or a state agency at any time during the two (2) years preceding the making of an offer to provide services to the Authority, the prospective provider shall disclose in writing to the Authority the nature of his or her previous employment with the Authority, other political subdivision or state agency; the date such employment was terminated; and his or her annual rate of compensation for the employment at the time of termination.

§201.13.Bid Protests.

(a) All protests relating to: advertising of bid notices, RFPs or RFQs; alleged improprieties or ambiguities in bid documents, RFPs or RFQs; deadlines; openings of bids, proposals or responses; contract awards; and all other procurement-related procedures and actions must be made in writing and submitted to the executive director within five (5) days of the applicable contract award. Each protest must include the following:

(1) the name and address of the protester, and the contractor, provider, vendor or consultant it represents, if different;

(2) the identification number, reference number, or other identifying criteria specified in the bid documents, RFP or RFQ to identify the procurement in question;

(3) a statement of the grounds for protest; and

(4) all documentation supporting the protest.

(b) A decision and response to the protest will be prepared by the executive director within a reasonable time after receipt of a properly prepared written protest that is timely submitted in accordance with this policy.

(c) Appeals of responses and decisions regarding protests must be made to the board in writing, and must be filed with the secretary of the Authority, with a copy provided to the executive director, within ten (10) days after the issuance of a response and decision regarding the original protest. Written appeals shall include all information contained in the original written protest, as well as any newly discovered documentation supporting the protest that was not reasonably available to the protester when the original protest was filed. The decision of the board regarding an appeal shall be final.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2004.

TRD-200403691

Marcelle S. Jones

General Counsel

North Texas Tollway Authority

Earliest possible date of adoption: July 18, 2004

For further information, please call: (214) 461-2043


Subchapter B. APPENDICES

43 TAC §§201.20 - 201.25

STATUTORY AUTHORITY

The new sections are proposed under Transportation Code, Title 6, Subtitle G, Chapter 366, §366.033(j), which authorizes the NTTA to adopt written procedures governing its procurement of goods and services that are consistent with general laws applicable to the Authority.

CROSS REFERENCE TO STATUTE

Transportation Code, §366.033, Transportation Code, §366.184, Transportation Code, §366.185, Local Government Code, Chapter 271, Local Government Code, Chapter 272, Government Code, Chapter 791, Government Code, Chapter 2252, and Government Code, Chapter 2258.

§201.20.Appendix A. Construction and Maintenance Contracts.

(a) Competitive Bidding. A contract requiring the expenditure of public funds for the construction or maintenance of a turnpike project must be let by competitive bidding in which the contract is awarded to the lowest responsible bidder that complies with the Authority's criteria for such contract.

(b) Qualification of Bidders. Unless otherwise provided in the bid documents, a potential bidder must be qualified to bid on construction and maintenance contracts of the Authority. With respect to contracts requiring qualification, unless the Authority elects, in its sole discretion, to separately qualify bidders on a construction or maintenance project, only bidders qualified by TxDOT to bid on TxDOT's construction or maintenance contracts (including, however, if expressly permitted under the applicable bid documents, bidders qualified to bid on so-called "waived projects" through the use of TxDOT's "Bidder's Questionnaire" form) will be deemed qualified by the Authority to bid on the Authority's construction or maintenance contracts. At its election, the Authority may waive this subsection (b) with respect to bidders on any construction or maintenance contracts, including any building contract.

(c) Notice of Contract Letting. The Authority shall determine the content and method of advertising for all notices of contract letting. If any newspaper advertisement is used, the notice must appear in the officially designated newspaper of the Authority, in addition to the other newspapers used, if any.

(d) Issuance of Bid Documents. Except as otherwise provided in this policy, the Authority will issue bid documents for a construction or maintenance contract upon request and only after proper notice has been given regarding the contract letting. If otherwise required by law, a request for bid documents for a federal-aid project must be submitted in writing and must include a statement in a form prescribed by the Authority certifying whether the bidder is currently disqualified by an agency of the federal government as a participant in programs and activities involving federal financial and non-financial assistance and benefits. A request for bid documents for any other construction or maintenance contract may be made orally or in writing. Unless otherwise prohibited under this policy, the Authority will, upon receipt of a request, issue bid documents for a construction or maintenance contract as follows:

(1) upon the Authority's receipt of payment for the bid documents, if applicable;

(2) to a bidder qualified by TxDOT, if the estimated cost of the project is within that bidder's available bidding capacity as determined by TxDOT;

(3) to a bidder qualified by the Authority, if the estimated cost of the project is within that bidder's available bidding capacity as determined by the Authority; and

(4) to a bidder who has substantially complied with the Authority's requirements for qualification, if any, as determined by the Authority.

(e) Withholding Bid Documents. The Authority will not issue bid documents for a construction or maintenance contract if:

(1) the bidder is suspended or debarred from contracting with TxDOT or the Authority;

(2) the bidder is prohibited from rebidding a specific project because of default under a previously awarded bid;

(3) the bidder has not fulfilled the requirements for qualification under this policy, if any, unless the bidder has substantially complied with the requirements for qualification, as determined by the Authority;

(4) the bidder is disqualified by an agency of the federal government as a participant in programs and activities involving federal assistance and benefits, and the contract is for a federal-aid project; or

(5) the bidder or its subsidiary or affiliate has received compensation from the Authority to participate in the preparation of the plans or specifications on which the bid or contract is based.

(f) Completion and Submission of Bid Documents.

(1) At the option of the Authority, an optional or mandatory pre-bid conference may be held before opening bids to allow potential bidders to seek clarification regarding the procurement and/or the bid documents or for any other purpose the Authority deems appropriate. Alternatively, the Authority may permit bidders to submit written requests for clarification. A bidder that fails to attend a mandatory pre-bid conference may be disqualified from submitting its bid or proposal.

(2) Except for bids submitted electronically, bidders shall complete all information requested in the bid documents by typing, printing by computer printer, or printing in ink. The bidder shall submit a unit price, expressed in numerals, for each item for which a bid is requested (including zero dollars and zero cents, if appropriate), except in the case of a regular item that has an alternate bid item. In such case, prices must be submitted for the base bid and/or with the set of items of one or more of the alternates. Unit prices shown on acceptable computer printouts will be the official unit prices used to tabulate the official total bid amount and used in the contract if awarded.

(3) Except for bids submitted electronically, each set of bid documents shall be executed in ink in the complete and correct name of the bidder making the bid and shall be signed by the person or persons authorized to bind the bidder.

(4) If required by the bid documents, the bidder must submit a bid guaranty with the bid. The bid guaranty shall be in the amount specified in the bid documents, shall be payable to the Authority, and shall be in the form of a cashier's check, money order or teller's check drawn by or on a state or national bank, savings and loan association, or a state or federally chartered credit union (collectively referred to as "bank") and payable at or through a branch of the issuing bank located in a county of the Authority. The form of the instrument must be identified on the instrument's face. The Authority will not accept cash, credit cards, personal checks or certified checks or other types of money orders. Failure to submit the required bid guaranty in the form set forth in this subsection shall disqualify a bidder from bidding on the project described in the bid documents.

(5) A bidder may submit a bid bond, in lieu of providing the guaranty required in Appendix A, subsection (f)(4). The bid bond shall be on the form and in the amount specified by and acceptable to the Authority. A bid bond will only be accepted from a surety company authorized to execute a bond under and in accordance with state law. The bond must bear the impressed seal of the surety company and the name of the bidder, and be signed by the bidder and an authorized representative of the surety company. Powers of attorney must be attached to the bid bond. The bid bond amount required by the Authority must be within the surety company's authorized bonding limit. The Authority may require a greater amount for a bid bond in order to compensate for increased administrative costs associated with bid bonds.

(6) A bid on a federal-aid project shall include, in a form prescribed by the Authority, a certification of eligibility status. The certification shall describe any suspension, debarment, voluntary exclusion, or ineligibility determination actions by an agency of the federal government, and any indictment, conviction, or civil judgment involving fraud or official misconduct, each with respect to the bidder or any person associated therewith in the capacity of owner, partner, director, officer, principal investor, project director/supervisor, manager, auditor, or a position involving the administration of federal funds; such certification shall cover the three-year period immediately preceding the date of the bid. Information adverse to the bidder as contained in the certification will be reviewed by the Authority and by the Federal Highway Administration, and may result in rejection of the bid and disqualification of the bidder.

(7) The bidder shall place each completed set of bid documents in a sealed envelope which shall be clearly marked "Bid Documents for (name of the project or service)". When submitted by mail, this envelope shall be placed in another envelope which shall be sealed and addressed as indicated in the notice. Bids must be received at the location designated in the notice on or before the hour, as established by the official clock of the Authority, and date set for the receipt. The official clock at the administrative office of the Authority shall serve as the official determinant of the hour for which the bid shall be submitted and whether a bid is deemed timely or late.

(g) Revision of Bid by Bidder. Unless submitted electronically, a bidder may change a bid price before it is submitted to the Authority by changing the price and initialing the revision in ink. A bidder may change a bid price after it is submitted to the Authority by requesting return of the bid in writing prior to the expiration of the time for receipt of bids. The request must be made by a person authorized to bind the bidder. The Authority will not accept a request by telephone, telegraph or electronic mail, but will accept a properly signed facsimile request. The revised bid must be resubmitted prior to the time specified for the close of the receipt of bids to be considered.

(h) Withdrawal of Bid. A bidder may withdraw a bid by submitting a request in writing before the time and date of the bid opening. The request must be made by a person authorized to bind the bidder. Except for an electronic bid, which may be withdrawn in accordance with the electronic withdrawal procedures, if any, provided for that bid, the Authority will not accept telephone, telegraph or electronic mail requests, but will accept a properly signed facsimile request.

(i) Acceptance, Rejection, and Reading of Bids. Bids will be opened and read at a public meeting held at the time, date and place designated in the notice, as may have been extended by direction of the executive director or the director of the department issuing the bid documents. The Authority will not accept, and will not read, a bid if:

(1) the bid is submitted by an unqualified bidder;

(2) the bid is in a form other than the official bid documents issued to the bidder;

(3) the form and content of the bid do not comply with the requirements of the bid documents and/or subsection Appendix A, subsection (f);

(4) the bid or, if required, the federal-aid project certification is not signed;

(5) the bid was received after the time specified in the notice, as may have been extended, or at some location other than as specified in the notice;

(6) the bid guaranty, if required, does not comply with subsection Appendix A, subsection (f);

(7) the contract provides for the payment of state funds and any individual or entity owning at least twenty-five percent (25%) of the bidder is more than thirty (30) days delinquent in providing child support under a court order or a written repayment agreement;

(8) the bidder was not authorized to be issued bid documents under this policy;

(9) the bid did not otherwise conform with the requirements of this policy; or

(10) more than one bid involves to a material degree a bidder under the same or different names, as determined by the Authority.

(11) Further, the Authority may elect to disqualify a bidder if the bidder did not attend a specified mandatory pre-bid conference.

(j) Tabulation of Bids. Except for lump sum building contracts bid items, the official total bid amount for each bidder will be determined by multiplying the unit bid price written in for each item by the respective quantity and totaling those amounts. Bid entries such as "no dollars and no cents" or "zero dollars and zero cents" will be interpreted to be one-tenth of a cent ($.001) and will be entered in the bid tabulation as $.001. Any entry less than $.001 will be interpreted and entered as $.001. If a bidder submits both a completed set of bid documents and a properly completed computer printout of unit bid prices, the Authority will use the computer printout to determine the total bid amount of the bid. If the computer printout is incomplete, the Authority will use the completed bid documents to determine the total bid amount of the bid. If a bidder submits multiple computer printouts reflecting different totals, each printout will be tabulated, and the Authority will use the lowest tabulation. If a unit bid price is illegible, the Authority will make a documented determination of the unit bid price for tabulation purposes. If a unit bid price has been entered for both the regular bid and a corresponding alternate bid, the Authority will select the bid that, in its judgment, provides the best value to the Authority, unless otherwise provided in the bid documents.

(k) Award of Contract. Except as otherwise provided in this Appendix A, if the Authority does not reject all bids, it will award the contract to the lowest responsible bidder. In determining the lowest responsible bidder, in addition to price the Authority shall consider:

(1) the bidder's ability, capacity and skill to perform the contract or provide the service required;

(2) the bidder's ability to perform the contract or provide the service promptly, or in the time required, without delay or interference;

(3) the bidder's character, responsibility, integrity, reputation and experience;

(4) the quality of performance by the bidder of previous contracts or services;

(5) the bidder's previous and existing compliance with laws relating to the contract or service; and

(6) the sufficiency of the bidder's financial resources and ability to perform the contract or provide the service.

(l) Rejection of Bids. The Authority may reject for any reason any and all bids opened, read and tabulated under this policy. It will reject all bids if there is reason to believe collusion may have existed among the bidders. The Authority may reject all bids if the lowest responsible bid is higher than the Authority's estimate and the Authority determines that re-advertising the project for bids may result in a significantly decreased lowest responsible bid or that the work should be done by the Authority.

(m) Contract Execution; Submission of Ancillary Items.

(1) Within the time limit specified by the Authority, the successful bidder must execute and deliver the contract to the Authority, together with all information required by the Authority relating to the participation of Disadvantaged Businesses to be used to determine compliance with the BOPP or as otherwise specified in the bid documents and the contract.

(2) After the Authority sends written notification of its acceptance of the successful bidder's compliance with the BOPP, the successful bidder must furnish to the Authority within the time limit specified by the Authority:

(A) a performance bond and a payment bond, if required, as provided in Texas Government Code, Chapter 2253, with powers of attorney attached, each in the full amount of the contract price, executed by a surety company or surety companies authorized to execute surety bonds under and in accordance with state law; and

(B) a certificate of insurance on form ACORD-28, or such other form as indicated by the Authority, showing coverages in accordance with contract requirements; provided, however, that the Authority may permit a successful bidder on a construction contract to postpone delivery of the certificate of insurance until prior to the date the bidder begins work as specified in the Authority's order to begin work.

(n) Unbalanced Bids. The Authority will examine the unit bid prices of the apparent lowest responsible bid for reasonable conformance with the Authority's estimated prices. The Authority will evaluate, and may reject, a bid with extreme variations from the Authority's estimate, or where obvious unbalancing of unit prices has occurred.

(o) Bid Guaranty. Not later than seven (7) days after bids are opened, the Authority will mail the bid guaranty of all bidders to the address specified on each bidder's bid documents, except that the Authority will retain the bid guaranty of the apparent lowest responsible bidder, second-lowest responsible bidder and third-lowest responsible bidder until after the contract has been awarded, executed and bonded, and all other provisions of Appendix A, subsection (m) have been satisfied. If the successful bidder (including a second-lowest responsible bidder or third-lowest responsible bidder that ultimately becomes the successful bidder due to a superior bidder's failure to comply with this policy or to execute a contract with the Authority) does not comply with Appendix A, subsection (m), the bid guaranty will become the property of the Authority, not as a penalty but as liquidated damages; each bidder by submitting its bid acknowledges and agrees that the actual amount of damages the Authority will suffer as a result of the successful bidder's failure to comply with Appendix A, subsection (m) is difficult or impossible to determine, and that the bid guaranty is a fair and reasonable estimate of those damages. A bidder that forfeits a bid guaranty will not be considered in future bids for the same work unless there has been a substantial change in the design of the project subsequent to the forfeiture of the bid guaranty.

(p) Escrowed Bid Documents.

(1) The Authority may require the successful bidder and its subcontractors to submit copies of all information, whether in documentary or electronic form, that is generated or utilized in the preparation of a bid to be held in escrow, and may condition the award of the contract upon its receipt of the escrowed bid documents. The purpose of the escrowed bid documents is to assist in the settlement or determination of any disputes, claims, change orders or price adjustments. By executing the contract, the bidder shall warrant that the escrowed bid documents constitute all of the information used in preparation of its bid, offer or proposal, and that no other bid preparation information will be utilized in resolving disputes or for any other purpose in connection with the contract.

(2) The Authority shall indicate in its bid documents the time, place and manner in which the escrowed bid documents are to be submitted. Information contained in the escrowed bid documents shall not alter or modify the contract, nor be considered a part of the contract.

(3) The escrowed bid documents shall be submitted in a sealed container clearly marked on the outside with the bidder's name, date of submittal, project name, contract number, and the words "Escrowed Bid Documents." Certification shall accompany the submission of the escrowed bid documents and must be signed by an individual authorized to execute the bid. The bidder also shall deliver a lockable fireproof cabinet of sufficient size to contain the escrowed bid documents. The bidder shall retain custody of the cabinet key(s).

(4) The Authority will maintain the escrowed bid documents in a safe physical condition; however, the escrowed bid documents are, and shall remain, the property of the bidder. Any portion of the escrowed bid documents that the bidder believes comprises trade secrets or other proprietary or confidential information should be clearly marked as such by the bidder.

(5) Before the award of the contract to the apparent lowest responsible bidder and the execution of the contract by the parties, the escrowed bid documents will be examined and inventoried by representatives of the Authority and the bidder. To ensure that the escrowed bid documents are authentic, legible and complete, the bidder's representative must be knowledgeable in how the bid was prepared. The Authority's review of the escrowed bid documents shall not constitute approval of the bidder's proposed methods, estimating assumptions or prices, contract interpretations or any other matters contained in the escrowed bid documents. If the Authority determines that any information required to be included in the escrowed bid documents is not contained in the bidder's original submittal of escrowed bid documents, the bidder shall promptly supply all missing documentation prior to award and execution of the contract. The bidder's failure to comply with this requirement within the time specified by the Authority may cause the bidder's proposal to be rejected and its bid guaranty to be forfeited. Material errors or discrepancies in the escrowed bid documents may cause the bidder's bid, offer or proposal to be rejected and may result in the forfeiture of the bidder's bid guaranty.

(6) The escrowed bid documents shall be examined by both the Authority and the bidder, at any time deemed necessary by either the Authority or the bidder, to assist in the settlement of disputes, claims and other matters with the contractor, and, if determined to be appropriate by the Authority, in its consideration of price adjustments and change orders. Examination of the escrowed bid documents is subject to the following conditions:

(A) Prior to examination, the Authority and the bidder shall each designate in writing to the other party the representatives who are authorized to examine the escrowed bid documents. No other person(s) shall have access to the escrowed bid documents, except as required by law or under the rules or orders of any legal proceeding.

(B) Examination of the escrowed bid documents will take place only in the presence of duly designated representatives of both the Authority and the bidder.

(C) Examination of the escrowed bid documents will be for the sole purpose of obtaining information concerning the bases for the contractor's bid amounts. It will not obligate the Authority to modify or amend any provision of the contract, including provisions pertaining to price adjustments, change orders or completion deadlines.

(7) If the contractor wishes to subcontract any portion of the work after the contract award, the Authority may require the bidder to submit escrowed bid documents from the subcontractor before the subcontract is approved.

(8) The escrowed bid documents will be returned to the bidder, along with the lockable fireproof cabinet provided by the bidder, within ninety (90) days after the Authority determines that all work has been satisfactorily performed. If any dispute regarding any matters related to the contract or the work exists or is threatened on such date, the escrowed bid documents may be retained at the Authority's office until final settlement of all matters relating to the contract.

(q) Progress Payments; Retainage and Liquated Damages.

(1) In addition to other provisions required by the Authority, construction and maintenance contracts may provide for the Authority to make progress payments, which may be reduced by retainage, as work progresses and is approved by the Authority.

(2) If a retainage is required, it shall be in the amount of five percent (5.0%) of the contract price until the entire work has been completed and accepted. In the Authority's sole discretion, the retainage may be released proportionally to completion of the work. Unless the Authority agrees otherwise in writing, retainage shall not bear interest or be segregated from other funds held by the Authority.

(3) Without limiting the Authority's right to require any other contract provisions, the Authority, at its sole discretion, may elect to require that a liquidated damages provision be made a part of any contract.

(r) Alternative Criteria for Emergency Awards.

(1) The Authority may employ alternative criteria for the expedited award of any contract for construction or maintenance services to meet emergency conditions in which essential corrective or preventive action would be unreasonably hampered or delayed by compliance with the criteria otherwise applicable under this Appendix A. Types of work which may qualify for emergency contracts include, but are not limited to: emergency repair or reconstruction of streets, roads, highways, buildings, facilities, bridges, toll collection systems and other Authority property; clearing debris or deposits from the roadway or in drainage courses within the right-of-way; removal of hazardous materials; restoration of stream channels outside the right-of-way; temporary traffic operations; and mowing to eliminate safety hazards.

(2) Before a contract is awarded under this subsection, the executive director, the deputy executive director or other administrator designated by either of them must certify in writing the facts and nature of the emergency giving rise to the alternative criteria.

(3) After an emergency is certified, the Authority shall take measures necessary to identify and locate an available contractor that is able to provide the required construction or maintenance service. Consistent with and contingent upon the nature of the emergency, the Authority may contact by telephone, letter, facsimile, the internet or any other means one or more contractors qualified to perform the services to obtain a bid. The Authority will inform the prospective bidder(s) of the nature of the emergency and the construction or maintenance services sought, time constraints and bonding and insurance requirements, if any. The information shall be sufficient to allow the prospective bidder to prepare a basic work plan and cost estimate.

(4) If the Authority determines that the magnitude and extremity of the emergency require instantaneous action by the contractor in order to alleviate an immediate and substantial detrimental impact on the Authority's or third parties' health, safety, or property and the executive director, the deputy executive director or designated administrator has so noted in the certification of the emergency, the executive director, the deputy executive director or designated administrator may authorize a contractor to begin work prior to executing a contract and receiving proof of bonding and insurance.

(5) With respect to any such emergency award requiring approval or ratification of the board, the executive director, the deputy executive director or designated administrator will provide each member of the board written notification of the emergency condition and the award on or before the next meeting of the board at which the matter can be legally scheduled for action, and seek ratification of the procurement or contract award at said meeting.

(s) Change Orders and Supplemental Agreements. Subsequent to the issuance of a notice to proceed under a construction or maintenance contract, the executive director is authorized to approve any change order or supplemental agreement to the contract in an amount of no more than three hundred thousand dollars ($300,000.00), provided adequate funds are budgeted and available for the project for which the contract was let or are available from approved contingencies for that project. If either

(1) the change order or supplemental agreement exceeds three hundred thousand dollars ($300,000.00), or

(2) adequate funds are not budgeted and available or contained in approved project contingencies, either

(A) the change order or supplemental agreement shall require the approval or ratification of the board, evidenced by a resolution adopted by the board, or

(B) the services which are the subject of the change order or supplemental agreement shall be separately procured in accordance with this policy.

§201.21.Appendix B. Professional Services.

(a) Professional Services Procurement Act. The Authority shall procure all professional services governed by the Professional Services Procurement Act in accordance with the requirements of the Act. If due to the subsequent amendment of the Professional Services Procurement Act or for any other reason any provision of this Appendix or of this policy conflicts with the Act, the latter shall control.

(b) Selection Criteria. The Authority shall not select a provider of professional services or a group or association of providers, or award a contract for professional services on the basis of competitive bids submitted for the contract or for the services, but shall make the selection and award on the basis of demonstrated competence and qualifications to perform the services for a fair and reasonable price.

(c) Professional Fees. The professional fees under the contract must comply with the recommended practices and fees prescribed by the Act, if any, and may not exceed any maximum provided by law.

(d) Request for Qualifications. Each RFQ prepared by the Authority shall describe the professional services required by the Authority and invite prospective providers to submit their qualifications to provide such services, as specified in the RFQ.

(e) Notice of RFQs.

(1) Notice of the issuance of an RFQ shall contain such information as the Authority determines is relevant to the procurement. The date specified in the RFQ as the deadline for submission of responses may be extended if the executive director determines that the extension is in the best interest of the Authority. All responses, including those received before an extension is made, must be opened at the same time.

(2) Notice of the issuance of an RFQ shall be given in the manner determined by the Authority.

(f) Opening and Filing of Responses; Public Inspection. The Authority shall avoid disclosing the contents of each response to an RFQ on opening the response and during negotiations with competing respondents. The Authority shall file each response and, subject to the Authority's document retention policy, such filed responses shall be open for public inspection after a contract is awarded, unless those materials contain information that is excepted from disclosure.

(g) Selection and Contract Negotiations For Certain Professional Services. In procuring architectural, engineering or land surveying services, the Authority shall:

(1) first select the most highly qualified provider of those services on the basis of demonstrated competence and qualifications; and

(2) then attempt to negotiate with that respondent a contract at a fair and reasonable price.

(3) If a satisfactory contract cannot be negotiated with the most highly qualified provider of the foregoing professional services, the Authority shall:

(A) formally end negotiations with that respondent,

(B) select the next most highly qualified provider, and

(C) attempt to negotiate a contract with that respondent at a fair and reasonable price.

(4) The Authority shall continue the foregoing process to select and negotiate with respondents until a contract is entered into, provided the Authority shall have no obligation to submit a contract to the next highest-ranked provider if the Authority determines that none of the remaining responses is acceptable or otherwise elects to terminate the procurement.

(h) Selection and Contract Negotiations for Other Professional Services. In procuring professional services other than architectural, engineering or land surveying services, the Authority may use any procurement method consistent with the Professional Services Procurement Act and the provisions of this Appendix B.

(i) Mixed Contracts. This Appendix B applies to a contract that involves professional services together with goods or other services otherwise subject to competitive bid requirements, if the primary objective of the contract is the acquisition of professional services.

(j) Evergreen Program. The Authority may issue an RFQ to pre-qualify a pool of individuals, entities or combinations of individuals or entities to provide professional services for the Authority. The RFQ shall specify: the types of services required; the pre-qualification requirements, including, but not limited to, years of experience, size of firm, financial capacity and areas of specialty; manner under which the pre-qualified firm will be selected to perform a specific service; and the term of the pre-qualification. Pre-qualification is for the sole purpose of assisting the Authority in the efficient procurement of services and expedited completion of projects. No member of the Evergreen Program shall have an expectation or right to a contract award.

(k) Change Orders, Supplement Agreements, and Amendments. Subsequent to the issuance of a notice to proceed or other authorization to begin work under a contract for professional services, the executive director is authorized to approve any change order, supplemental agreement or amendment to the contract in an amount of no more than the lesser of thirty percent (30%) of the original contract amount or three hundred thousand dollars ($300,000.00), provided adequate funds are budgeted and available for the contract or are available from approved contingencies for that contract. If either

(1) the change order, supplemental agreement or amendment exceeds the lesser of thirty percent (30%) of the original contract amount or three hundred thousand dollars ($300,000.00) or

(2) adequate funds are not budgeted and available or contained in approved contract contingencies, either

(A) the change order, supplemental agreement or amendment shall require the approval or ratification of the board, evidenced by a resolution adopted by the board, or

(B) the services which are the subject of the change order, supplemental agreement or amendment shall be separately procured in accordance with this policy.

§201.22.Appendix C. General Goods and Services.

(a) Purchase Threshold Amounts. The Authority may procure general goods and services costing twenty-five thousand dollars ($25,000.00) or less by such method and on such terms as the executive director determines to be in the best interest of the Authority. General goods and services costing more than twenty-five thousand dollars ($25,000.00) shall be procured using competitive bidding, competitive sealed proposals or a proprietary purchase as provided in this Appendix.

(b) Competitive Bidding Procedures.

(1) Competitive bidding for general goods and services shall be conducted using substantially the same procedures specified for the competitive bidding of construction and maintenance contracts, except that:

(A) with respect to a particular procurement, the executive director may waive the qualification requirements for all prospective bidders;

(B) the executive director may waive the submission of payment or performance bonds (or both) and/or insurance certificates by the successful bidder;

(C) with respect to the procurements estimated to be more than one hundred thousand dollars ($100,000.00), in addition to newspaper advertisement of the procurement as set forth in this policy or the procedures, the Authority may solicit bids by direct mail, telephone, the internet or any other means; with respect to procurements estimated to be one hundred thousand dollars ($100,000.00) or less, the Authority may solicit bids by any of the foregoing methods, which may, but need not, include newspaper advertising; and

(D) a purchase may be proposed on a lump-sum or unit price basis; if the Authority chooses to use unit pricing in its notice, the information furnished to bidder must specify the approximate quantities estimated on the best available information, but the compensation paid the successful bidder must be based on the actual quantities purchased.

(2) Contracts for general goods and services procured using competitive bidding shall be awarded to the lowest responsible bidder based on the same criteria used in awarding construction and maintenance contacts, together with the following additional criteria:

(A) the quality and availability of the goods or services to be provided and their adaptability to the Authority's needs and uses; and

(B) the bidder's ability to provide, in a timely manner, future maintenance, repair parts and service for goods being purchased, if applicable.

(c) Competitive Sealed Proposals.

(1) The Authority may solicit offers for the provision of general goods and services by issuing an RFP. Each RFP shall contain the following information:

(A) the Authority's specifications for the goods or services to be procured;

(B) an estimate of the various quantities and kinds of goods and services to be furnished;

(C) a schedule of items for which unit prices are requested;

(D) the time within which the contract is to be performed;

(E) any special provisions and special specifications; and

(F) the applicable requirements under the BOPP or other policies relating to Disadvantaged Businesses.

(2) The Authority shall give public notice of an RFP in the manner provided for requests for competitive bids for general goods and services.

(3) At the option of the Authority, an optional or mandatory pre-proposal conference may be held before opening proposals to allow potential offerors to seek clarification regarding the procurement and/or the bid documents or for any other purposes the Authority deems appropriate. Alternatively, potential offerors may submit written requests for clarification. A potential offeror that fails to attend a mandatory pre-proposal conference may be disqualified from submitting its proposal.

(4) The Authority shall avoid disclosing the contents of each proposal upon opening the proposal and during negotiations with competing offerors. The Authority shall file each proposal and, subject to the Authority's document retention policy, after a contract is awarded, such filed proposals shall be open for public inspection unless those materials contain information that is excepted from disclosure as an open record.

(5) After receiving a proposal but before making an award, the Authority may permit an offeror to revise its proposal to obtain the best final offer. The Authority may discuss acceptable or potentially acceptable proposals with offerors to assess an offeror's ability to meet the solicitation requirements. The Authority shall avoid disclosing information derived from proposals submitted from competing offerors.

(6) The Authority shall refuse all proposals if none of those submitted is acceptable or for any other reason.

(7) The Authority shall submit a contract to the offeror (the "first-choice candidate") whose proposal is the most advantageous to the Authority, considering price and the evaluation factors in the RFP. The terms of the contract shall incorporate the terms set forth in the RFP and the proposal submitted by the first-choice candidate, but if the proposal conflicts with the RFP, the RFP shall control unless the Authority elects otherwise. If the Authority and the first-choice candidate cannot agree on the terms of a contract, the Authority may elect not to contract with the first-choice candidate, and at the exclusive option of the Authority, may submit a contract to the offeror ("second-choice candidate") whose proposal is the next most favorable to the Authority. If agreement is not reached with the second-choice candidate, the process may be continued with other offerors in like manner, but the Authority shall have no obligation to submit a contract to the next highest-ranked offeror if the Authority determines at any time during the process that none of the remaining proposals is acceptable or otherwise elects to terminate the procurement.

(d) Proprietary Purchases.

(1) If the executive director finds that the Authority's requirements for the procurement of a general good or service describe a product or service that is proprietary to one vendor and do not permit an equivalent product or service to be supplied, the Authority may solicit a bid for the general good or service solely from the proprietary vendor, without using the competitive bidding or competitive proposal procedures. For any procurement costing, or anticipated to cost, more than twenty-five thousand dollars ($25,000.00), the executive director shall notify the board in the manner determined by the executive director. For any procurement costing, or anticipated to cost, more than three hundred thousand dollars ($300,000.00), the executive director shall justify in writing the Authority's requirements and shall submit the written justification to the board. The written justification must

(A) explain the need for the particular good or service that is proprietary to the vendor;

(B) explain why competing goods or services from other vendors (if any) are not satisfactory; and

(C) provide other information requested by the board.

(2) As otherwise provided in this policy, any such procurement costing, or anticipated to cost, more than three hundred thousand dollars ($300,000.00) shall require the approval of or ratification by the board, evidenced by a resolution adopted by the board.

(3) Goods or services may be acquired by proprietary purchase if they constitute

(A) goods or services available from only one source because of patents, copyrights, secret processes or natural monopolies,

(B) films, manuscripts or books, or

(C) captive replacement parts or components for equipment.

(4) Subsequent purchases from a proprietary purchase vendor of the same good or service, including replacement parts or components, will not require a separate or additional justification from the executive director that the good or service is proprietary to that vendor.

(5) The Authority may acquire by proprietary purchase those goods and services, including replacement parts or components for equipment, that are necessary to ensure the compatible integration of the Authority's technology-based equipment, computer network or software system.

(e) Other Goods and Services.

(1) The Authority may procure or pay for

(A) electricity, gas, water and other utility services,

(B) professional dues, membership fees, subscriptions and similar charges,

(C) application, permitting, licensing and other regulatory fees and charges, and

(D) other goods and services generally available at a set, non-negotiable price or otherwise not susceptible to competitive pricing upon the terms determined by the executive director, the deputy executive director or other administrator designated by either of them.

(2) The executive director, deputy executive director or designated administrator also may authorize, and determine the terms for, the procurement of goods sold at

(A) an auction by a state-licensed auctioneer or

(B) a going-out-of-business sale held in compliance with the Texas Business and Commerce Code, Chapter 17, Subchapter F.

(3) As otherwise provided in this policy, any such procurement costing or anticipated to cost more than three hundred thousand dollars ($300,000.00) shall require the approval of or ratification by the board, evidenced by a resolution adopted by the board.

(f) Extension of Quantities or Services.

(1) The executive director is authorized to extend quantities or services or similarly amend a contract for general goods and services up to an amount equal to three hundred thousand dollars ($300,000.00) in each instance, provided adequate funds are budgeted and available for the procurement of the applicable goods and services. If either

(A) the effect of the amendment exceeds three hundred thousand dollars ($300,000.00) or

(B) adequate funds are not budgeted and available, either

(i) the amendment shall require the approval or ratification of the board, evidenced by a resolution adopted by the board, or

(ii) the goods and services which are the subject of the amendment shall be separately procured in accordance with this policy.

(2) Nothing provided in this Appendix C, subsection (f), shall limit the ability of the Authority to procure general goods and services costing, or anticipated to cost, no more than twenty-five thousand dollars ($25,000.00) by any method and on any terms as determined by the executive director as otherwise provided in this policy, including by change order, supplemental agreement, or similar extension of quantities or services or amendment.

§201.23.Appendix D. Participation in State and Cooperative Purchasing Programs; Intergovernmental Agreements.

(a) Voluntary Commission Program. Pursuant to and in accordance with Texas Government Code, § 2155.204 and Local Government Code, Chapter 271, Subchapter D, the Authority may request the Texas Building and Procurement Commission to allow the Authority to participate on a voluntary basis in the program established by the Commission by which the Commission performs purchasing services for governmental entities.

(b) Catalog Purchase of Automated Information Systems. Pursuant to and in accordance with the Government Code, § 2157.067, the Authority may utilize the catalogue purchasing procedure established by the Commission with respect to the purchase of automated information systems.

(c) Cooperative Purchases. Pursuant to and in accordance with the Local Government Code, Chapter 271, Subchapter F, the Authority may participate in one or more cooperative purchasing programs with governmental entities or governmental cooperative programs.

(d) Interlocal Agreements with TxDOT. Subject to any limitations imposed by general law, the Authority may enter into interlocal agreements with TxDOT or with one or more other governmental entities to procure goods and services from TxDOT or those entities.

(e) Exempted Purchases. Purchases made through the Commission (including, without limitation, catalog purchases), a cooperative program or by interlocal agreement shall be deemed to have satisfied the procurement requirements of this policy and shall be exempted from the procurement requirements contained in this policy.

§201.24.Appendix E. Consulting Services.

(a) Contracting for Consulting Services. The Authority may contract for consulting services if the executive director reasonably determines that the Authority cannot adequately perform the services with its own personnel.

(b) Selection Criteria. The Authority shall base its selection on demonstrated competence, knowledge and qualifications, and on the reasonableness of the proposed fee for the services.

(c) Contract Amounts. The Authority may procure consulting services costing, or anticipated to cost, no more than fifty thousand dollars ($50,000.00) by such method and on such terms as the executive director determines to be in the best interests of the Authority. Consulting services costing, or anticipated to cost, more than fifty thousand dollars ($50,000.00) shall be procured by the Authority's issuance of an RFQ or RFP, except as provided in Appendix E, subsection (h), for single-source contracts.

(d) Request for Qualifications or Proposal. Each RFQ or RFP prepared by the Authority shall describe the services required by the Authority and invite prospective consultants to submit their qualifications and/or proposal to provide such services, as specified in the request documents.

(e) Notice.

(1) Notice of the issuance of an RFQ or RFP shall contain such information as the Authority determines is relevant to the procurement. The date specified in the RFQ of RFP as the deadline for submission of responses may be extended if the executive director determines that the extension is in the best interest of the Authority. All responses, including those received before an extension is made, must be opened at the same time.

(2) Notice of the issuance of an RFQ or RFP shall be given in the manner determined by the Authority.

(f) Opening and Filing of Responses; Public Inspection. The Authority shall avoid disclosing the contents of each response to an RFQ or RFP on opening the response and during negotiations with competing respondents. The Authority shall file each response and, subject to the Authority's document retention policy, such filed responses shall be open for public inspection after a contract is awarded, unless those materials contain information that is excepted from disclosure.

(g) Contract Negotiations. The Authority shall submit a contract to the respondent (the "first-choice candidate") whose response best satisfies the Authority's selection criteria. If the Authority and the first-choice candidate cannot agree on the terms of a contract, the Authority may terminate negotiations with the first-choice candidate, and, at the exclusive option of the Authority, the Authority may enter into contract negotiations with the respondent ("second-choice candidate") whose response is the next most favorable to the Authority. If agreement is not reached with the second-choice candidate, the process may be continued with other respondents in like manner, but the Authority shall have no obligation to submit a contract to the next highest-ranked respondent if the Authority determines that none of the remaining responses is acceptable or otherwise elects to terminate the procurement.

(h) Single-Source Contracts. If the executive director determines that only one prospective consultant possesses the demonstrated competence, knowledge and qualifications to provide the services required by the Authority at a reasonable fee and within the time limitations required by the Authority, consulting services from that consultant may be procured without issuing an RFQ or RFP. For any such procurement estimated to be more than fifty thousand dollars ($50,000.00), the executive director shall justify in writing the basis for classifying the consultant as a single-source and shall submit the written justification to the board. The justification shall be submitted for board consideration prior to contracting with the consultant if the anticipated cost of the services exceeds three hundred thousand dollars ($300,000.00). If the anticipated cost of services is more than fifty thousand dollars ($50,000.00) but less than three-hundred thousand dollars ($300,000.00), the executive director may enter into a contract for the services and shall submit the justification to the board at its next regularly scheduled board meeting.

(i) Evergreen Program. The Authority may issue an RFQ to pre-qualify a pool of individuals, entities, or combinations of individuals or entities to provide consulting services for the Authority. The RFQ shall specify: the types of services required; the pre-qualification requirements, including, but not limited to, years of experience, size of firm, financial capacity, and areas of specialty; manner under which the pre-qualified firm will be selected to perform a specific service; and the term of the pre-qualification. Pre-qualification is for the sole purpose of assisting the Authority in the efficient procurement of services and expedited completion of projects. No member of the Evergreen Program shall have an expectation or right to a contract award.

(j) Mixed Contracts. This Appendix E applies to a contract that involves consulting services together with goods or other services otherwise subject to competitive bid requirements, if the primary objective of the contract is the acquisition of consulting services.

(k) Change Orders, Supplemental Agreements, and Amendments. Subsequent to the issuance of a notice to proceed or other authorization to begin work under a contract for consulting services, the executive director is authorized to approve any change order, supplemental agreement or amendment to the contract in an amount of not more than the lesser of thirty percent (30%) of the original contract amount or three hundred thousand dollars ($300,000.00), provided adequate funds are budgeted and available for the contract or are available from approved contingencies for that contract. If either

(1) the change order, supplemental agreement or amendment exceeds the lesser of thirty percent (30%) of the original contract amount or three hundred thousand dollars ($300,000.00) or

(2) adequate funds are not budgeted and available or contained in approved contract contingencies, either

(A) the change order, supplemental agreement or amendment shall require the approval or ratification of the board, evidenced by a resolution adopted by the board, or

(B) the services which are the subject of the change order, supplemental agreement or amendment shall be separately procured in accordance with this policy.

(3) Nothing in this Appendix E, subsection (k) shall limit the ability of the Authority to procure consulting services costing, or anticipated to cost, no more than fifty thousand dollars ($50,000.00) by any method and on any terms as determined by the Executive director as otherwise provided in this policy, including by change order, supplemental agreement or amendment.

§201.25.Appendix F. Disposition of Salvage or Surplus Property.

(a) Sale by Bid or Auction. The Authority may periodically sell the Authority's salvage or surplus property by competitive bid or auction. Salvage or surplus property may be offered as individual items or in lots at the Authority's sole discretion.

(b) Trade-In for New Property. Notwithstanding Appendix F, subsection (a), the Authority may offer salvage or surplus property as a trade-in for property of the same general type if the executive director considers that action to be in the best interest of the Authority.

(c) Heavy Equipment. If the salvage or surplus property is earth-moving, material-handling, road maintenance, construction or similar equipment, the Authority may exercise a repurchase option in a contract in disposing of such types of property. The repurchase price of equipment contained in a previously accepted purchase contract is considered a bid under subsection Appendix F, subsection (a).

(d) Sale to State, Counties, etc. Notwithstanding subsection Appendix F, subsection (a), competitive bidding or an auction is not necessary if the purchaser is the state, or a county, municipality or other political subdivision of the state, or an agency or department of the state of the United States. The Authority may accept an offer made by any of the foregoing governmental entities before offering the salvage or surplus property for sale at auction or by competitive bidding.

(e) Failure to Attract Bids. If the Authority undertakes to sell property under Appendix F, subsection (a), and is unable to do so because no bids are made for the property, the executive director may order such property to be destroyed or otherwise disposed of as worthless. Alternatively, the Executive director may cause the Authority to dispose of such property by donating it to a civic, educational or charitable organization located in the state or elsewhere in the United States.

(f) Terms of Sale. Unless otherwise expressly provided in the sale or disposition documents, all salvage or surplus property sold or otherwise disposed of by the Authority shall be conveyed on an "AS IS, WHERE IS" basis. The location, frequency, payment terms, inspection rights and all other terms of sale shall be determined by the Authority in its sole discretion.

(g) Rejection of Offers. The Authority or its designated representative conducting a sale of salvage or surplus property may reject any offer to purchase such property if the executive director or the Authority's designated representative finds the rejection to be in the best interests of the Authority.

(h) Public Notices of Sale. The Authority shall publish the address and telephone number from which prospective purchasers may request information concerning an upcoming sale in at least one issue of the officially designated newspaper of the Authority, or any other newspaper of general circulation in each county of the Authority, and the Authority may, but shall not be required to, provide additional notices of a sale by direct mail, telephone, facsimile, the internet or any other means.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2004.

TRD-200403692

Marcelle S. Jones

General Counsel

North Texas Tollway Authority

Earliest possible date of adoption: July 18, 2004

For further information, please call: (214) 461-2043


Subchapter C. DEFINITIONS

43 TAC §201.30

STATUTORY AUTHORITY

The new sections are proposed under Transportation Code, Title 6, Subtitle G, Chapter 366, §366.033(j), which authorizes the NTTA to adopt written procedures governing its procurement of goods and services that are consistent with general laws applicable to the Authority.

CROSS REFERENCE TO STATUTE

Transportation Code, §366.033, Transportation Code, §366.184, Transportation Code, §366.185, Local Government Code, Chapter 271, Local Government Code, Chapter 272, Government Code, Chapter 791, Government Code, Chapter 2252, and Government Code, Chapter 2258.

§201.30.Definitions.

As used in this policy and the procedures, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise.

(1) Administrator--The executive director, deputy executive director, assistant executive director, comptroller, chief accountant, and such other positions designated by the executive director, including any director of one of the Authority's several departments.

(2) Available bidding capacity--Bidding capacity less uncompleted work under a construction or maintenance contract.

(3) Authority--The North Texas Tollway Authority.

(4) BCP--The Business Continuity Plan of the Authority.

(5) Bid or quote--The response to a request for the pricing of products, goods, or services, including construction and maintenance services (but other than consulting services or professional services) that the Authority proposes to procure.

(6) Bid documents--Forms promulgated by the Authority which the bidder completes and submits to the Authority to document the bidder's bid on a contract to be let by the Authority. Bid documents include forms furnished to and completed by the Authority to procure goods and services.

(7) Bid guaranty--The security (which may be a bid bond) designated in the bid documents for a construction or maintenance contract to be furnished by the bidder as a guaranty that the bidder will enter into a contract if awarded the work.

(8) Bidder--An individual, entity, or combination of individuals or entities submitting a bid or offer to provide any goods or services, including construction or maintenance services.

(9) Bidding capacity--The maximum dollar value of a construction or maintenance contract that may be awarded to a contractor at any given time, as determined by the Authority.

(10) Board--The Board of Directors of the Authority.

(11) BOPP--The Business Opportunity Program and Policy of the Authority.

(12) Building contract--A contract for the construction or maintenance of one or more buildings, toll plazas, or appurtenant facilities for the Authority.

(13) CEMP--The Comprehensive Emergency Management Plan of the Authority.

(14) Commission--The Texas Building and Procurement Commission.

(15) Competitive bidding--A procurement process under which a contract is awarded to the lowest responsible bidder that complies with the Authority's criteria for such contract.

(16) Competitive sealed proposals--A procurement method in which offers are solicited and a selection is made using criteria in addition to cost, although reasonableness of cost is a selection criterion.

(17) Construction or maintenance contract--A contract for the construction, reconstruction, maintenance or repair of a turnpike project or any portion thereof.

(18) Consulting service--The service of advising or preparing studies or analyses for the Authority under a contract that does not involve the traditional relationship of employer and employee. Consulting services do not include professional services as defined in this policy.

(19) Contract--A written or oral agreement by which the Authority procures goods and services or disposes of property, including, without limitation, a purchase order.

(20) Counties of the Authority--Counties that are members of the Authority.

(21) Deputy executive director--The deputy executive director of the Authority.

(22) Disadvantaged Businesses--Minority-owned, woman-owned or small-business enterprises as defined in the BOPP.

(23) Emergency--Any situation or condition affecting a turnpike project or any other operations of the Authority resulting from a natural or man-made cause, which poses an imminent threat to life, the property of the Authority or the traveling public or which substantially disrupts or may disrupt the safe and efficient flow of traffic and commerce or which has caused unforeseen damage to machinery, equipment or other property that would substantially interfere with or prohibit the collection of tolls in accordance with the Authority's bonding obligations and requirements. A situation or condition similarly affecting the operations of a third party which are subject to a contract with the Authority to provide goods and services shall likewise constitute an emergency.

(24) Escrowed bid documents--Information, whether in documentary or electronic form, that is generated or utilized by the bidder in the preparation of a bid, offer or proposal and is preserved for possible inspection by the Authority following the award of a contract.

(25) Evergreen program--A procurement process by which the Authority pre-qualifies a pool of individuals, entities or combinations of individuals and entities to provide certain professional or consulting services.

(26) Executive director--The executive director of the Authority.

(27) Federal-aid project--A contract funded in whole or in part with funds provided by the government of the United States or any department thereof.

(28) First-choice candidate--The top-ranked offeror or respondent considering the evaluation factors and criteria in an RFP or RFQ.

(29) General goods and services--Goods, services, equipment, personal property and any other items procured by the Authority that are not procured under a construction or maintenance contract and that are neither consulting services nor professional services.

(30) Lowest responsible bidder--A bidder who submits a bid or offer to provide the requested goods and services at a cost that is lower than all other bids or offers received from responsible bidders and which meets other requirements of the Authority. In determining the lowest responsible bidder, the Authority may consider:

(A) the purchase price;

(B) the reputation of the bidder and of the bidder's goods or services;

(C) the quality of the bidder's goods or services;

(D) the extent to which the goods or services meet the Authority's needs;

(E) the bidder's past relationship with the Authority;

(F) the bidder's compliance with the BOPP and with other goals and policies of, or binding on, the Authority, if any, regarding the participation by Disadvantaged Businesses;

(G) the total long-term cost to the Authority to acquire the bidder's goods or services; and

(H) any relevant criteria specifically listed in the bid documents.

(31) Materially unbalanced bid--A bid on a construction or maintenance contract that generates a reasonable doubt that award to the bidder submitting a mathematically unbalanced bid will result in the lowest ultimate cost to the Authority.

(32) Mathematically unbalanced bid--A bid on a construction or maintenance contract containing lump sum or unit bid items that do not reflect reasonable actual costs plus a reasonable proportionate share of the bidder's anticipated profit, overhead costs and other indirect costs.

(33) Offeror--An individual, entity, or combination of individuals or entities submitting a proposal in response to an RFP to provide general goods and services.

(34) Officially designated newspaper of the Authority--A general circulation newspaper published in one or more counties of the Authority that is designated as the official newspaper of the Authority from time to time by the board.

(35) Policy--This Policy Regarding Procurement of Goods and Services and Disposition of Property by the North Texas Tollway Authority.

(36) Procedures--The Procedures Regarding Procurement of Goods and Services and Disposition of Property by the North Texas Tollway Authority adopted as an internal guide, and as a supplement to the policy, for use by the Authority's staff.

(37) Professional services--Services that political subdivisions of this State must procure pursuant to the Professional Services Procurement Act.

(38) Professional Services Procurement Act--Texas Government Code, Chapter 2254, Subchapter A, as amended from time to time.

(39) Proposal--An offeror's response to an RFP.

(40) Proprietary purchase--A contract with a vendor for a general good or service that is proprietary to that single vendor.

(41) Response--A respondent's response to an RFQ.

(42) Respondent--An individual, entity, or combination of individuals or entities submitting a response to an RFQ to provide professional or consulting services.

(43) RFP--A request for proposals issued for the provision of general goods and services by competitive sealed proposals.

(44) RFQ--A request for qualifications issued for the provision of professional or consulting services.

(45) Salvage property--Personal property (including, without limitation, supplies, equipment and vehicles), other than items routinely discarded as waste, that through use, time or accident is so damaged, used, consumed or outmoded that it has little or no value to the Authority.

(46) Second-choice candidate--The second-ranked offeror or respondent considering the evaluation factors and criteria in an RFP or RFQ.

(47) Single-source contract--A contract with a consultant uniquely qualified to provide the services required by the Authority at a reasonable fee and within the time limitations required by the Authority.

(48) Surplus property--Personal property (including, without limitation, supplies, equipment and vehicles) that is not currently needed by the Authority and is not required for the Authority's foreseeable needs. The term includes used or new property that retains some usefulness for the purpose for which it was intended or for another purpose.

(49) Turnpike project--A facility of any number of lanes, with or without grade separations, owned or operated by the Authority, and any improvement, extension, or expansion to that highway, including those improvements described in Texas Transportation Code, §366.003(11).

(50) TxDOT--Texas Department of Public Transportation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2004.

TRD-200403693

Marcelle S. Jones

General Counsel

North Texas Tollway Authority

Earliest possible date of adoption: July 18, 2004

For further information, please call: (214) 461-2043