43 Tex. Admin. Code § 9.151

Current through Reg. 49, No. 49; December 6, 2024

Section 9.151 - Definitions

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Affiliate--An entity that directly or indirectly controls, is controlled by, or is under common control with a private entity.

(2) Commission--The Texas Transportation Commission.

(3) Conflict of interest--A circumstance arising out of the existing or past activities, business interests, contractual relationships, or organizational structure of a consultant, proposer, or design-build contractor, where:

(A) the private entity is or may be unable to give impartial assistance or advice to the department;

(B) the private entity's objectivity in performing the scope of work sought by the department is or might be otherwise impaired;

(C) the private entity has an unfair competitive advantage;

(D) the private entity's performance of services on behalf of the department provides or may provide an unfair competitive advantage to a third party; or

(E) there is a reasonable perception or appearance of impropriety or unfair competitive advantage benefiting the private entity or a third party as a result of the private entity's participation in a design-build project.

(4) Consultant--An individual or business entity, including any division or affiliate of the entity, retained by the department to provide consultant services in connection with a design-build project. The term includes an individual or business entity providing or that has provided services under contract to a consultant, either directly or through a subconsultant, at any level.

(5) Consultant services--All services provided to the department by an independent contractor under a best value or qualifications based procurement method, including architectural and engineering services, right-of-way acquisition services, environmental services, procurement services, traffic and revenue services, project oversight services, financial services including financial advisory and banking services, and legal services.

(6) Control--The possession, directly or indirectly, of the power to cause the direction of the management of the entity, whether through voting securities, by contract, family relationship, or otherwise.

(7) Department--The Texas Department of Transportation.

(8) Design--Includes planning services, technical assistance, and technical studies provided in support of the environmental review process undertaken with respect to a highway project, as well as surveys, investigations, the development of reports, studies, plans and specifications, and other professional services provided for a highway project.

(9) Design-build contract--An agreement that includes both design and construction services for the construction, expansion, extension, rehabilitation, alteration, or repair of a highway project, and that may include the maintenance of a highway project.

(10) Design-build contractor--A partnership, corporation, or other legal entity or team that includes at a minimum an engineering firm and a construction contractor qualified to engage in the construction of highway projects in Texas.

(11) Design-build program--The department's program for the procurement, implementation, and administration of design-build contracts under this subchapter.

(12) Environmental services--Some or all of the following services provided to the department with respect to a project developed under a design-build contract:

(A) the study and evaluation of alternatives and potential environmental impacts of the proposed project;

(B) preparation of environmental analysis and impact documents relating to the project, including facility and corridor analyses and draft and final environmental assessments and environmental impact statements; and

(C) planning associated with the environmental approval, permitting, and clearance process for the project.

(13) Executive director--The executive director of the department or designee not below the level of a person in a senior leadership position who reports directly to the executive director.

(14) Financial services--Some or all of the following services provided to the department with respect to a project developed under a design-build contract:

(A) acting in the capacity of financial advisor to the department by providing advice on finance-related issues, including development of short-term or long-term finance strategy and plans of finance for individual projects or on an ongoing basis;

(B) identifying and pursuing sources of funds; and

(C) acting as underwriter, either lead or co-lead for a revenue bond issuance on a project or facility, but excluding underwriters for bonds that are not related to a project developed under a design-build contract.

(15) Gift or benefit--Anything reasonably regarded as pecuniary gain or pecuniary advantage, including any benefit or favor to another person in whose welfare the beneficiary has a direct and substantial interest, regardless of whether the donor is reimbursed. The term includes, but is not limited to, cash, loans, meals, lodging, services, tickets, door prizes, free entry to entertainment or sporting events, transportation, or hunting or fishing trips.

(16) Highway project--A single highway facility between two defined points in a corridor, or two or more contiguous highway facilities.

(17) Legal services--Some or all of the following services with respect to a project developed under a design-build contract:

(A) providing advice on legal issues and strategies relating to project environmental approvals, planning, procurement, financing, contract administration, risk management, and disputes, claims, or litigation; and

(B) reviewing, drafting, and negotiating procurement documents, project contracts, and other documents.

(18) Preliminary engineering and architectural services--Preparation of preliminary design and architectural documents and reports, utility and right-of-way mapping, and provision of similar technical documents that will be incorporated by others into a request for qualifications or request for proposals, but not including the evaluation or selection of alignments in connection with the development of environmental documents, assistance with development of the solicitation documents, design-build contractor scope of work/technical provisions, evaluation criteria for a procurement, or other items that would constitute environmental services or procurement services.

(19) Procurement services--Some or all of the following services provided to the department with respect to a project developed under a design-build contract:

(A) development of procurement strategy;

(B) development and preparation of the solicitation documents, design-build contractor scope of work/technical provisions, or contract documents;

(C) implementation and administration of the solicitation;

(D) preparation or implementation of any evaluation criteria, process, or procedures;

(E) evaluation of proposer submissions (e.g., qualification submittals and proposals);

(F) negotiation of the contract; and

(G) any other activities determined by the department as related to a procurement.

(20) Project oversight services--Some or all of the following services provided to the department with respect to a project developed under a design-build contract after award of the contract:

(A) design review;

(B) construction oversight and inspection;

(C) quality control and quality assurance;

(D) project management and overview;

(E) contract administration;

(F) claims management;

(G) public relations and community outreach;

(H) right of way acquisition services; and

(I) appraisal, legal description, condemnation package, and utility assembly review.

(21) Proposer--A private entity, including any division or affiliate of the entity, that has submitted a statement of qualifications, proposal, or other submission in order to participate in an ongoing procurement for the design, construction, expansion, extension, related maintenance, rehabilitation, alteration, or repair of a project developed under a design-build contract.

(22) Request for proposals--A request for submittal of a detailed proposal from private entities to design, develop, construct, expand, extend, provide maintenance, rehabilitate, alter, or repair a highway project.

(23) Request for qualifications--A request for submission by a private entity of a description of that entity's experience, technical competence and ability to develop a highway project, and such other information as the department considers relevant or necessary.

(24) Subconsultant--An individual or business entity that performs or performed work on behalf of a consultant as part of the performance of the consultant's work for the department, either directly or through a subconsultant at any level.

(25) Traffic and revenue services--Some or all of the following services provided to the department with respect to a project developed under a design-build contract:

(A) conducting draft and investment grade traffic and revenue studies, toll elasticity studies, toll feasibility studies, toll pricing studies, or studies or analyses of a similar nature, including peer review studies; and

(B) data mining and preparation of reports, analyses, and projections in connection with the traffic and projected revenues.

43 Tex. Admin. Code § 9.151

The provisions of this §9.151 adopted to be effective March 15, 2012, 37 TexReg 1780; Amended by Texas Register, Volume 41, Number 37, September 9, 2016, TexReg 7134, eff. 9/14/2016