No. 32179 (Amendment): R926-10. Tollway Development Agreements

DAR File No.: 32179
Filed: 11/26/2008, 02:04
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the rule change is to correct numbering errors found in the rule. The rule also updates and clarifies language in the rule. The reason for the change is to simplify the language of the rule.

Summary of the rule or change:

The statutes referenced in the rule have been updated to reflect the recent code renumbering. Other referenced rules were corrected to fix typographical errors. Other language was removed to prevent redundancy.

State statutory or constitutional authorization for this rule:

Sections 72-2-120, 72-6-118, and 72-6-201

Anticipated cost or savings to:

the state budget:

No cost or savings are anticipated with this rule change. No new requirements were created with this rule change which will impact the state budget.

local governments:

No cost or savings are anticipated for local governments with this rule change. No new requirements were created with this rule change that impact local governments.

small businesses and persons other than businesses:

No cost or savings are anticipated for small businesses with this rule change. No new requirements were created with this rule change that impact small businesses.

Compliance costs for affected persons:

No new requirements were created with this rule change that impact affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule should have no fiscal impact on businesses. John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Program Development
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY UT 84119-5998

Direct questions regarding this rule to:

Maureen Short at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/14/2009

This rule may become effective on:

01/21/2009

Authorized by:

John R. Njord, Executive Director

RULE TEXT

R926. Transportation, Program Development.

R926-10. Tollway Development Agreements.

R926-10-2. Authority.

(1) The provisions of this rule are authorized by the following grants of rulemaking authority and provisions of Utah Codes: Title 63G, Chapter 3; Title 63G, Chapter 6; Title 72, Chapter 2, Section 120; Title 72, Chapter 6, Section 118; and the Public-Private Partnerships for Tollways Act, Utah Code Sections 72-6-201 et seq.

(2) When the Executive Director or designee determines it appropriate and upon approval by the Commission, the Department may enter into tollway development agreements.

 

R926-10-3. Definitions.

Except as otherwise stated in this rule, terms used in this rule are defined in the applicable Statutes. The following additional terms are defined for this rule:

(1) "Commission" means the Utah Transportation Commission, which is created in Utah Code Ann. Section 72-1-301.

(2) "Department" means the Utah Department of Transportation, which is created in Utah Code Ann. Section 72-1-101.

(3) "Executive Director" means the executive director of the Department.

(4) "Proposer" means private entities that submit letters of interest, qualifications, or proposals under these rules for the purposes of entering into a tollway development agreement with the Department, and may include a person or persons, firms, partnerships or companies or any combination or consortium thereof.

(5) "Public-Private Partnership" means an agreement, including but not limited to tollway development agreements, between the Department and one or more public or private entities where there is private sector involvement in [the delivery of transportation projects, including but not limited to, private sector involvement in any or all of the following project phases: ]predevelopment activities, design, construction, reconstruction, financing, acquisition, maintenance or operations. Public private partnership agreements may include reallocations of the traditional risk assignments between the parties to the agreement.

(6) "State" means the State of Utah.

 

R926-10-5. Unsolicited Proposals.

(1) The Department may accept delivery of unsolicited tollway development agreement proposals. An unsolicited proposal shall, at a minimum, provide the information required for tollway development agreement proposals set forth in Utah Code Section 72-6-204. The Department may determine that additional information or other requirements be provided in an unsolicited proposal. Any such additional requirements, along with contact information, will be posted on the Department's website.

(a) Any proposer submitting an unsolicited proposal must provide a minimum of 20 copies or the proposal will not be reviewed.

(b) The unsolicited proposal must state the period during which the proposal will remain valid, which shall be not less than 12 months following delivery.

(2) The Department may appoint an individual or a screening committee, as it deems appropriate, to screen and evaluate unsolicited proposals to determine whether to request competing proposals and qualifications or reject the unsolicited proposal. The review shall be in two stages:

(a) The initial screening shall be a summary review to determine whether the unsolicited proposal generally meets the minimum statutory and regulatory requirements and merits further review. Proposals that do not generally meet the minimum requirements established under statute and these rules or that the Department otherwise determines do not merit further review may be summarily rejected.

(b) The second stage of review shall be a more thorough review and evaluation of the unsolicited proposal for the purpose of allowing the Department to determine whether to issue a request for competing proposals and qualifications.

(3) The Department will consider an unsolicited proposal only if the proposed project is not substantially duplicative of transportation system projects that have been fully funded by the State, the Department, or any other public entity as of the date the proposal is submitted.

(4) The Department shall give priority to unsolicited proposals that address projects identified on the Statewide Transportation Improvement Program or Long-Range Plan and encourages submittal of proposals that would materially advance or accelerate their implementation.

(5) The Department may, in its sole discretion, reject any unsolicited proposal. If the Department elects to issue a request for competing proposals and qualifications, it may modify the project described in the unsolicited proposal. If the Department issues a request for competing proposals, the proposer that submitted the unsolicited proposal will be offered the opportunity to participate in the competition.

(6) The process for soliciting competing proposals and qualifications shall meet all requirements of Utah Code Section 63-56-502.5. The Department may issue a request for qualifications to prequalify potential proposers interested in responding to the solicitation separate from the request for competing proposals, or it may issue a solicitation package that combines the request for proposals and qualifications. The solicitation package shall include the information required under Utah Code Sections 72-6-205(3)(b) and any other information deemed advisable by the Department. The solicitation may request competing proposals, either at a conceptual or detailed level, or it may request proposals for alternative concepts, in which case the Department would review the concepts and determine whether to reject the proposals. [or proceed with a new request for competing proposals. All proposers that respond to a competing proposal, s]Solicitation, whether conceptual or detailed, must address the technical and financial portions of the proposed project.

(7) If the Department elects to issue a request for competing proposals, the Department shall provide public notice of the proposed project according to Section R926-10-4. Any entity that intends to submit a competing proposal shall provide a written letter of intent to the Department not later than 45 calendar days after the Department's publication of notice for competing proposals. Any letters of intent received by the Department after the expiration of the 45-day period shall not be valid and any competing proposal issued by an entity that did not comply with these letter of intent requirements shall not be considered. An entity that submits a letter of intent must submit its competing proposal in the manner specified in the request for competing proposals.

(8) If the Department elects not to issue a request for competing proposals in response to an unsolicited proposal, or if the Department issues a request for competing proposals that make significant modifications to the concepts in the original unsolicited proposal, the Department will notify the proposer that submitted the unsolicited proposal of the rejection or modification and reasons for the rejection or modification. The Department may also post information on the Department website regarding the reasons for rejection or modification.

(9) The Department will assess a screening fee for every unsolicited proposal received and an evaluation fee for every unsolicited proposal that is evaluated. The fees have been set with the intent of substantially covering the costs to the Department for review of the proposal. The unsolicited proposal shall be accompanied by a separate check for each fee, which must be a cashier's, certified, or official check drawn by a federally insured financial institution as follows:

(a) A check in the amount of $10,000 for the initial screening; and

(b) A check for the evaluation fee equal to the lesser of (i) the sum of $20,000 plus .01% of the total estimated cost of design and construction of the project or (ii) $200,000. This check will be returned to the proposer if the proposal is rejected after the initial screening and prior to the more thorough evaluation.

(10) The Department may waive the fee for an unsolicited proposal, in whole or in part, if it determines that its costs have been substantially covered by a portion of the fee or if it is otherwise determined to be reasonable and in the best interests of the State.

(11) If the Department decides to solicit competing proposals, the Department may require each proposer that submits a competing proposal to submit a fee. The amount of the fee will be identified in the solicitation documents and will not exceed the amount of the evaluation fee for the original unsolicited proposal. The proposer that submitted the original unsolicited proposal will be exempt from this fee.

 

R926-10-7. Request for Qualifications (RFQ).

(1) The Department may issue a Request for Qualifications (RFQ) in order to solicit qualification statements from entities wishing to submit proposals for a tollway development agreement project. The RFQ may be required to be submitted prior to or with a conceptual proposal or detailed proposal.

(2) Any RFQ shall require that potential proposers provide the information described in Utah Code Section [63-56-502.5(3)(c);]63G-6-502(4)(c); and any other information the Department, in its sole discretion, required as stated in the RFQ.

(3) The selection committee shall narrow the field of proposers by short-listing the most qualified proposers, not to exceed the maximum number designated in the RFQ.

(4) If only one entity responds to the RFQ or if only one proposer meets the minimum qualification requirements in the RFQ, the Department may negotiate with that single proposer in accordance with section R926-10-10(2).

(5) Engineering and consultant firms who participated in preparation of specifications or other solicitation documents used by the Department for the procurement of a portion, but not all, of the project may participate as proposers or as a member of the proposing entities, upon approval of the Department.

 

R926-10-14. Protests.

(1) Protests prior to notice of intent to award shall be governed by the Utah Code Sections [63-56-801]63G-6-801 and 802 and [63-56-803]63G-6-811.

(2) Upon notice of intent to award, a proposer who would be adversely affected by the selection announced may, within ten calendar days after the date of such notice, submit to the Department a written protest of the selection of the apparent successful proposer.

(3) For purposes of this rule, a protesting proposer is adversely affected by a selection only if the proposer has submitted a responsive competing proposal and is next-in-line for selection. In other words the protesting proposer must demonstrate that all higher-ranked proposers are ineligible for selection because either:

(a) The higher-scoring proposals were not responsive to the requirements stated in the Department's solicitation documents; or

(b) The protesting proposer would have been ranked higher than the other proposers but for Departments (i) material failure to follow the procedures set forth in the RFP and other solicitation documents, (ii) material failure to conform to requirements set forth in these rules or in applicable state statutes, or (iii) abuse of discretion in evaluating and ranking the revised proposals.

(4) A proposer's written protest must state facts and arguments that demonstrate how the selection process was flawed or how selection of the apparent successful proposer constituted an abuse of Department's discretion. If the Department receives no written protest within the ten-day period, then any protesting proposer shall lose any rights or opportunity to advance any claim against the department or state relating to the proposed project.

(5) In response to a proposer's timely filed protest that complies with this rule, the Department will issue a written decision that resolves the issues raised in the protest. In considering a timely protest, the Department may request further information from the protesting proposer and from the apparent successful proposer identified in the Department's notice issued under subsection (2) of this section. The Department will make its written determination available, by mail or by electronic means, to the protesting proposer and to the apparent successful proposer.

(6) The Department shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve the protest.

 

KEY: transportation, highways, public-private partnerships, tolls

Date of Enactment or Last Substantive Amendment: [October 16, 2008]2009

Authorizing, and Implemented or Interpreted Law: 72-1-201; 72-6-118