PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 9. CONTRACT AND GRANT MANAGEMENT
The Texas Department of Transportation (department) adopts the amendments to §§9.2, 9.15, 9.17, 9.23, and 9.24, relating to Contracts and Grant Management. The amendments to §§9.2, 9.15, 9.17, 9.23, and 9.24 are adopted without changes to the proposed text as published in the October 11, 2024, issue of the Texas Register (49 TexReg 8364) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The purpose of this rulemaking is to clarify the rules of the Texas Transportation Commission (commission) concerning the requirements for submitting certain claims for contracts entered into and administered by the Texas Department of Transportation (department).
Amendments to §9.2, Contract Claim Procedure, in subsection (g)(2)(B), prohibit the use of any type of total cost method when making a claim for additional compensation. This prohibition ensures that claims for additional compensation are based on verifiable direct costs attributable to specific changes and impacts. Additional amendments allow the committee chair to waive the meeting requirement if the department does not dispute the contractor's claim because such a meeting is unnecessary and to specify that rescheduling of meetings is at the committee chair's discretion, which will prevent unnecessary delay. The term "chairman" is also replaced with "chair" to align with the language used in 43 TAC §1.1, Texas Transportation Commission. The amendments also correct the reference in subsection (a)(1)(C) to the title of Transportation Code, Chapter 223.
Amendments to §9.15, Acceptance of Bids, clarify in subsection (e) that the department evaluates only the apparent low bid to determine whether the bid is unbalanced and provide that the department may determine that the apparent low bid is nonresponsive if the evaluation shows that the apparent low bid is both mathematically and materially unbalanced. This change provides for efficiency in the selection of bids for awarding contracts.
Amendments to §9.17, Award of Contract, delete the requirement of subsection (a)(2) that the commission reject all bids for a project if the lowest bid is determined to be both mathematically and materially unbalanced. This requirement is unnecessary because under language added to §9.15, a determination that a low bid is mathematically and materially unbalanced may result in the bid being considered nonresponsive.
Amendments to §9.23, Evaluation and Monitoring of Contract Performance, clarify that an interim evaluation must be completed as needed and on each anniversary date of when work began under the contract, if the project extends for longer than one year. These changes will assist in clearing ambiguity that could potentially result in inconsistent application of this requirement.
Amendments to §9.24, Performance Review Committee and Actions, replace the term "chairman" with "chair" to align with the language used in 43 TAC §1.1, Texas Transportation Commission.
COMMENTS
The department received comments from the Associated General Contractors of Texas (AGC) regarding the proposed amendments to §§9.15 and 9.17. The AGC stated their support for determining an apparent low bid nonresponsive if it is both mathematically and materially unbalanced and proceeding to the next lowest responsive bidder, but they expressed four points of concern.
Comment: Clarity is needed regarding whether a tertiary, and further down, bidders are eligible to receive an award when both the lowest and the second lowest bidder, etc., submits an unbalanced bid.
Response: Yes, the lowest responsive bid can be considered for award regardless of how many nonresponsive bids are received. However, the lowest responsive bid will be evaluated for award but may ultimately be rejected for the causes remaining in §9.17 or in the best interest of the State.
Comment: Allowing a bidder to rebid the project if the department decides to not award to the subsequent low bidder will remove inhibitions for mathematically and materially unbalancing bids, as there will be no risk to said bidder.
Response: If a bidder unbalances its bid, it risks its bid being determined nonresponsive and removed from consideration. While the department does not plan to restrict contractors from bidding if the project is relet, there remains another risk to deter bidders from unbalancing bids: if the department rejects all bids on the project, bidders removed for unbalancing will be tracked, and if the department has rejected two projects due to the bidder's error within a 36-month period, the bidder will be referred to the Performance Review Committee for consideration of remedial action under existing language in §9.24.
Comment: In cases where a quantity error was documented during the pre-bid Q&A process, the error was not corrected by addendum, and the low bidder is determined to be mathematically and materially unbalanced, the low bidder should not be subject to mathematically and materially unbalanced decisions, and rejection of all bids should be based on "an error in the plans."
Response: The department anticipates that in the majority of cases described, the original low bidder would be determined nonresponsive, and the new apparent low bidder would be awarded, assuming it met all requirements. If not, and the quantity error was materially significant, the department would consider the presence of a pre-bid question indicating the error, and it is likely that all bids would instead be rejected in the best interest of the state.
Comment: In any of these responsiveness or award decisions, the rules should include an allowance of time for due process for a bidder to present their case. This will require deferral by the Texas Transportation Commission, at least one month.
Response: This is addressed by existing language in §9.7 relating to protest of contract practices or procedures. The department notifies the bidder when its bid is determined nonresponsive and the reason for the determination. The bidder then has six days to submit a written protest to the department's executive director. Depending on the date of the determination, the department may recommend deferring the award decision to the following month.
SUBCHAPTER A. GENERAL
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.112, which allows the commission by rule to establish procedures for the informal resolution of a claim arising out of a contract under the statutes set forth in that section, and Transportation Code, §223.004, which authorizes the commission to adopt rules to prescribe conditions under which a bid may be rejected by the department.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, §§22.018 and 391.091, and Chapter 223 and Government Code, Chapter 2254, Subchapters A and B.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 17, 2024.
TRD-202406065
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: January 6, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 463-3164
43 TAC §§9.15, 9.17, 9.23, 9.24
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.112, which allows the commission by rule to establish procedures for the informal resolution of a claim arising out of a contract under the statutes set forth in that section, and Transportation Code, §223.004, which authorizes the commission to adopt rules to prescribe conditions under which a bid may be rejected by the department.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, §§22.018 and 391.091, and Chapter 223 and Government Code, Chapter 2254, Subchapters A and B.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 17, 2024.
TRD-202406066
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: January 6, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 463-3164
The Texas Department of Transportation (department) adopts amendments to §9.152 and §9.153 concerning Design Build Contracts. The amendments to §9.152 and §9.153 are adopted without changes to the proposed text as published in the October 11, 2024 issue of the Texas Register (49 TexReg 8370) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
House Bill 2830, 86th Legislature, 2019, amended Transportation Code, Chapter 223, Subchapter F, which authorizes the department to enter into a design-build contract for a highway project, and prescribes the procurement process to be followed by the department for a design-build contract.
House Bill 2830 revised the limitation on the number of design-build contracts that may be entered into by the department to no more than six contracts each fiscal biennium, and amended Transportation Code, §223.246(a), to require a request for proposals for a design-build project to include a design, rather than a schematic design, that is approximately 30 percent complete.
Amendments to §9.152, General Rules for Design-Build Contracts, clarify that the department's reserved rights in administering a procurement for a design-build project includes the right to suspend the procurement. Because of project delays or for other reasons, the department may need to suspend the procurement for a design-build project.
Transportation Code, §223.246(a)(5), previously required a request for proposals to include a schematic design that is approximately 30 percent complete. In general, a schematic design that is 100% complete is comparable to a design that is approximately 30 percent complete.
Amendments to §9.153, Solicitation of Proposals, implement the changes made by House Bill 2830 by providing that a request for proposals must include a design that is approximately 30 percent complete. This change provides the department with the flexibility to develop a project with enough detail to aid the procurement process, cost estimation, and understanding of contractor and department risk.
Transportation Code, §223.249, provides that in a request for proposals, the department shall provide for the payment of a partial stipend in the event that a procurement is terminated before the execution of a design-build contract. As the Texas Constitution generally prohibits grants of public funds, payment of stipends to proposers without receiving work product in exchange would raise constitutional issues. The amendments to §9.153(f) clarify that, if a procurement is terminated, a partial payment will be paid to an unsuccessful proposer that submits a proposal responsive to the requirements of the request for proposals. The partial payment would be made in exchange for the work product in the proposal. The amendments allow the department to request that a proposer submit to the department work product that was developed by the proposer for a project if the procurement for the project is terminated before receipt of proposals. A partial payment for that work product may be made if the department determines that the requested work product was developed in accordance with the requirements of the request for proposals and can be used by the department in the performance of its functions. In all cases, the amount of the payment to a proposer will not exceed the value of the work product to the department, as determined by the department.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, Chapter 223, Subchapter F.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 17, 2024.
TRD-202406068
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: January 6, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 463-3164
SUBCHAPTER A. GENERAL
43 TAC §13.8The Texas Department of Transportation (department) adopts the repeal of §13.8, relating to Testing Asphalt. The repeal of §13.8 is adopted without changes to the proposed text as published in the October 11, 2024, issue of the Texas Register (49 TexReg 8375) and will not be republished.
EXPLANATION OF ADOPTED REPEAL
During the periodic rule review, the department determined that the procedure set out in §13.8 is obsolete. The rule was adopted in 1991 to encourage asphalt binder suppliers to provide products that consistently comply with the department's specifications. Over the years, the department's Asphalt Binder Quality Program has been continually strengthened to ensure that the quality of asphalt binder products used on the department's projects meets the department's specifications. The program preemptively ensures consistency by requiring suppliers to share their data and updates with the department, enforces compliance through suspension or disqualifications, and ensures transparency. This approach more effectively encourages suppliers to comply with department's specifications than the approach provided by §13.8.
Section §13.8, Testing Asphalt, is repealed.
COMMENTS
No comments on the proposed repeal were received.
STATUTORY AUTHORITY
The repeal is adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
N/A
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 17, 2024.
TRD-202406070
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: January 6, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 463-3164
SUBCHAPTER B. UTILITY ADJUSTMENT, RELOCATION, OR REMOVAL
The Texas Department of Transportation (department) adopts the amendments to §21.25 concerning State Participation in the Relocation of Certain Publicly-Owned Utility Facilities. The amendments to §21.25 are adopted without changes to the proposed text as published in the October 11, 2024, issue of the Texas Register (49 TexReg 8376) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENT
S.B. 2601, Texas Legislature, 88th Regular Session, 2023, amended Transportation Code, §203.092(a-4), to add water supply or sewer service corporations organized and operating under Water Code, Chapter 67, to the entities that are authorized to apply for financial assistance for the relocation of utility facilities if the relocation is required for improvements of the highway system.
Amendments to §21.25, State Participation in the Relocation of Certain Publicly-Owned Utility Facilities, add language to allow a water supply or sewer service corporation organized and operating under Water Code, Chapter 67, to qualify for the department's program for reimbursing certain costs of the relocation of utility facilities required for a state highway project.
COMMENTS
No comments on the proposed amendment were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §203.095, which requires the commission to adopt rules relating the relocation of utility facilities.
The authority for the adopted amendments was provided by S.B. 2601, 88th Regular Session, 2023. The primary author and the primary sponsor of that bill are Sen. Juan Hinojosa and Rep. Terry Canales, respectively.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, §203.092.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 17, 2024.
TRD-202406072
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: January 6, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 463-3164