TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 9. CONTRACT AND GRANT MANAGEMENT

SUBCHAPTER A. GENERAL

43 TAC §9.3

The Texas Department of Transportation (department) proposes amendments to §9.3, Protest of Department Purchases under the State Purchasing and General Services Act.

EXPLANATION OF PROPOSED AMENDMENTS

The department previously adopted §9.3 to provide a procedure for vendors to protest purchases made by the department. Revisions to this section are necessary to reflect organizational changes and to change the division name of the Comptroller of Public Accounts procurement function.

Amendments to §9.3 update the title of the department employee responsible for the receipt and processing of protests related to the applicable purchases. All references to Chief of Procurement and Field Support Operations are removed throughout the section and are replaced with Chief Administrative Officer. The amendments also correct the name of a division in the comptroller's office from the Comptroller of Public Accounts Texas Procurement and Support Services Division to the Statewide Procurement Division.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined that for each of the first five years in which the amendments as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments.

Mr. Glenn Hagler, Director, Procurement Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT AND COST

Mr. Hagler has also determined that for each year of the first five years in which the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be accuracy of the rules of the department. There are no anticipated economic costs for persons required to comply with the sections as proposed. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §9.3 may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "Name Changes in Purchase Protest Provisions." The deadline for receipt of comments is 5:00 p.m. on January 2, 2017. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Government Code, §2155.076, which provides the department with the authority to develop rules for protest procedures associated with the State Purchasing and General Services Act.

CROSS REFERENCE TO STATUTE

Government Code, §2155.076 and Transportation Code, §201.101.

§9.3.Protest of Department Purchases under the State Purchasing and General Services Act.

(a) Purpose. The purpose of this section is to provide a procedure for vendors to protest purchases made by the department. Purchases made by the Statewide Procurement Division [Texas Procurement and Support Services division] of the Comptroller of Public Accounts office on behalf of the department are addressed in 34 TAC Chapter 20.

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Government Code, Chapters 2151-2177, the State Purchasing and General Services Act.

(2) Commission--The Texas Transportation Commission.

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

(4) Chief Administrative Officer [of Procurement and Field Support Operations]--The Chief Administrative Officer [of Procurement and Field Support Operations] of the department.

(5) Statewide Procurement Director--The director of statewide procurement in the procurement division of the department, or other individual as designated by the Chief Administrative Officer [of Procurement and Field Support Operations].

(6) Division--An organizational unit in the department's Austin headquarters.

(7) Executive director--The executive director of the department.

(8) Interested party--A vendor that has submitted a bid, proposal, or other expression of interest for the purchase involved.

(9) Purchase--A procurement action for commodities or non-professional services under the Act.

(c) Filing of protest.

(1) An actual or prospective bidder or offeror who is aggrieved in connection with the solicitation, evaluation, or award of a purchase may file a written protest. The protest must be received in the office of the Chief Administrative Officer [of Procurement and Field Support Operations] within 10 working days after such aggrieved person knows, or should have known, of the action.

(2) The protest must be sworn and contain:

(A) the provision of or rule adopted under the Act that the action is alleged to have violated;

(B) a specific description of the alleged violation;

(C) a precise statement of the relevant facts;

(D) the issue to be resolved;

(E) argument and authorities in support of the protest; and

(F) a statement that copies of the protest have been mailed or delivered to other identifiable interested parties.

(d) Suspension of award. If a protest or appeal of a protest has been filed, then the department will not proceed with the solicitation or the award of the purchase until the executive director or his or her designee, not below the level of division director, consults with the Chief Administrative Officer [of Procurement and Field Support Operations] and makes a written determination that the award of the purchase should be made without delay to protect substantial interests of the department.

(e) Informal resolution. The Statewide Procurement Director may informally resolve the dispute, including:

(1) soliciting written responses to the protest from other interested parties; and

(2) resolving the dispute by mutual agreement.

(f) Written determination. If the protest is not resolved by agreement, the Statewide Procurement Director will issue a written determination to the protesting party and interested parties which sets forth the reason for the determination. The Statewide Procurement Director may determine that:

(1) no violation has occurred; or

(2) a violation has occurred and it is necessary to take remedial action which may include:

(A) declaring the purchase void;

(B) reversing the award; and

(C) re-advertising the purchase using revised specifications.

(g) Appeal.

(1) An interested party may appeal the determination to the executive director. The written appeal must be received in the executive director's office no later than 10 working days after the date of the determination. The appeal is limited to a review of the determination.

(2) The appealing party must mail or deliver copies of the appeal to the Statewide Procurement Director and other interested parties with an affidavit that such copies have been provided.

(3) The general counsel shall review the protest, the determination, and the appeal, and prepare a written opinion with recommendation to the executive director.

(4) The executive director may:

(A) issue a final written determination; or

(B) refer the matter to the commission for its consideration at a regularly scheduled open meeting.

(5) The commission may consider oral presentations and written documents presented by the department and interested parties. The chair shall set the order and the amount of time allowed for presentation. The commission's determination of the appeal shall be adopted by minute order and reflected in the minutes of the meeting.

(6) The decision of the commission or executive director shall be final.

(h) Filing deadline. Unless the commission determines that the appealing party has demonstrated good cause for delay or that a protest or appeal raises issues significant to procurement practices or procedures, a protest or appeal that is not filed timely will not be considered.

(i) Document retention. The department shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the retention schedule of the department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 17, 2016.

TRD-201605893

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2017

For further information, please call: (512) 463-8630


CHAPTER 26. REGIONAL MOBILITY AUTHORITIES

SUBCHAPTER B. CREATION OF A REGIONAL MOBILITY AUTHORITY

43 TAC §26.15

The Texas Department of Transportation (department) proposes amendments to §26.15, concerning the creation of a regional mobility authority.

EXPLANATION OF PROPOSED AMENDMENTS

Government Code, §2001.039, requires a state agency to review each of its rules every four years or more frequently and, as the result of the review, to decide whether to readopt, amend, or repeal the rule. In the course of reviewing 43 TAC Chapter 26, the department determined that need for the rules in Chapter 26 continues to exist and that they reflect the procedures and processes currently being used, but the department identified a non-substantive change that needs to be made to correct an error in the rules.

Amendments to §26.15, Creation, correct the rule citation in Subsection (b) of the section. Subsection (b) refers to §26.11(6). The correct citation is §26.11(a)(6) and the amendment makes that change.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined that for each of the first five years in which the amendments as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments.

Mr. Peter Smith, Director of the Transportation Planning and Programing Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT AND COST

Mr. Smith has also determined that for each year of the first five years in which the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be accuracy of the rules of the commission. There are no anticipated economic costs for persons required to comply with the sections as proposed. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §26.15 may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "RMA creation rules." The deadline for receipt of comments is 5:00 p.m. on January 2, 2017. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §370.038, which authorizes the commission to adopt rules governing the creation of a regional mobility authority.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 370, Subchapter B.

§26.15.Creation.

(a) The petitioner shall create an RMA authorized under §26.14 of this subchapter by resolution of each county. Each resolution shall appoint directors consistent with the provisions of §26.14(a)(2) of this subchapter.

(b) Additional directors. The petitioner shall provide for the appointment of any additional members described in §26.11(a)(6) [§26.11(6)] of this subchapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 17, 2016.

TRD-201605894

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2017

For further information, please call: (512) 463-8630


CHAPTER 30. AVIATION

SUBCHAPTER C. AVIATION FACILITIES DEVELOPMENT AND FINANCIAL ASSISTANCE RULES

43 TAC §§30.203 - 30.205, 30.214

The Texas Department of Transportation (department) proposes amendments to §§30.203 - 30.205, and 30.214 concerning aviation facilities development and financial assistance rules.

EXPLANATION OF PROPOSED AMENDMENTS

Government Code, §2001.039 requires a state agency to review each of its rules every four years or more frequently and, as the result of the review, to decide whether to readopt, amend, or repeal the rule. In the course of reviewing 43 TAC Chapter 30, the department determined that need for the rules in Chapter 30 continue to exist and that they reflect the procedures and processes currently being used, but the department identified several non-substantive changes that need to be made to correct errors in the rules.

The Texas Legislature codified former Article 46c-1 et seq., Revised Statutes, as Transportation Code, Chapter 21, and in doing so, deleted the short title assigned to those former articles. The amendments change the statutory references in the rules from the specified provisions of Revised Statutes to the appropriate provisions of Chapter 21.

Amendments to §30.203, Definitions, delete the definitions of "Act" and "agent." Because the term "Act" is used only in §30.205, rather than updating the statutory reference in the definition, the amendments delete the defined term and provide the appropriate statutory reference in §30.205, as described below. The definition of "agent" does not define the term, but rather lists the purposes for which the department may act as an agent for a governmental agency that receives financial aid under the Texas Aviation Facilities Development Program. The amendments delete the definition as unnecessary and redundant of the operative provisions of the rules.

Finally, amendments to the definition of "Aviation Advisory Committee" in §30.203 provide a reference to Transportation Code, §21.003, which specifies the composition of and qualifications for the committee, and delete the description of the committee, as unnecessary.

Amendments to §30.204, Facilities Development Program, update the references to the statutes that provide the specified duties of the Texas Transportation Commission (commission) and department relating to the program.

Amendments to §30.205, Eligibility for Financial Assistance, replace "the Act" with a reference to Transportation Code, Chapter 21, Subchapter C, which provides the requirements for and conditions of financial assistance for aviation facility development.

Amendments to §30.214, Grant and Loan Agreement Payments, update the reference to Article 46d-1 et seq., Revised Statutes, as Transportation Code, §22.054.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined that for each of the first five years in which the amendments as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments.

Mr. David Fulton, Director of the Aviation Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT AND COST

Mr. Fulton has also determined that for each year of the first five years in which the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be accuracy of the rules of the commission. There are no anticipated economic costs for persons required to comply with the sections as proposed. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §§30.203, 30.204, 30.205, and 30.214 may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "aviation facilities rules." The deadline for receipt of comments is 5:00 p.m. on January 2, 2017. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 21, Subchapter C.

§30.203.Definitions.

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

[(1) Act--The Texas Aeronautics Act, Texas Civil Statutes, Article 46c-1 et seq.]

[(2) Agent--The department for the purpose of applying for, receiving, and disbursing federal funds for the benefit of general aviation airports. Also, when so designated by the sponsor for the purpose of contracting for and supervising the planning, acquisition, development, construction, improvement, maintenance, equipment, or operation of an airport or air navigation facility.]

(1) [(3)] Airport--An area of land that is designated for the landing and takeoff of aircraft.

(2) [(4)] Airport hazard--Any structure, flora, or use of land which obstructs the airspace required for the flight of aircraft in landing or takeoff at any airport or is otherwise hazardous to such landing or takeoff of aircraft. For further definition, see the Local Government Code, §§241.001 et seq.

(3) [(5)] Airport Project Participation Agreement--An intergovernmental agreement between the department and the sponsor which grants financial assistance.

(4) [(6)] Aviation Advisory Committee--The committee [commission] appointed under Transportation Code, §21.003 [committee consisting of six members to advise the commission and department on aviation matters].

(5) [(7)] Aviation Facilities Capital Improvement Program (CIP)--A multi-year capital improvement program, prepared by the division and approved by the commission which identifies projects to be considered for financial assistance.

(6) [(8)] Commission--The Texas Transportation Commission.

(7) [(9)] Department--The Texas Department of Transportation.

(8) [(10)] Director--The director of the Aviation Division of the Texas Department of Transportation.

(9) [(11)] Division--The aviation division of the Texas Department of Transportation.

(10) [(12)] Emergency--A situation or condition at a general aviation airport which requires immediate attention due to an existing unsafe condition. The condition should be of sufficient concern to require the filing of a Notice to Airman with the Federal Aviation Administration under FAA Order 7930.2E until the safety concern has been resolved.

(11) [(13)] Executive director--The executive director of the Texas Department of Transportation.

(12) [(14)] Grant--An offer of financial assistance of state and/or federal funds to improve, repair, upgrade, or add to an airport included in the Texas Airport System Plan. A grant with federal funds requires a match of 10% from state and/or local funds. A grant with state funds must be matched with at least 10% local funds.

(13) [(15)] Hazard zoning--Zoning pursuant to the provisions of the Local Government Code, §§241.001 et seq., for the purpose of protecting the aerial approaches to an airport.

(14) [(16)] Intergovernmental Agreement--A formal written agreement between the sponsor and the division, specifying the duties and obligations of the department and the sponsor, and the terms and conditions of a grant of state and/or financial assistance. The department issues two aviation intergovernmental agreements titled Airport Project Participation Agreement and Loan Agreement.

(15) [(17)] Letter of Intent--The sponsor's formal commitment to proceed with an airport improvement project, signed by the chief elected official, including a description and cost estimate of the project, and accompanied by a resolution adopted by the sponsor's governing body indicating the sponsor's willingness to participate in the local share of project costs.

(16) [(18)] Letter of interest--A preliminary statement submitted by a sponsor to indicate the sponsor's desire to be included in the program and to provide a basis for programming available funds.

(17) [(19)] Loan--An intergovernmental agreement between the department and a sponsor which provides state financial assistance to be repaid to the department at a specific interest rate and over a specific time period.

(18) [(20)] Local funds--Cash, in-kind contributions, or force account work remitted by a local airport sponsor as its share of project costs for an airport development project.

(19) [(21)] Program--The Texas Aviation Facilities Development Program, which includes the administration of federal Airport Improvement Program grants to general aviation airports, and state grants and loans.

(20) [(22)] Project--Design and construction of improvements to, or planning of an airport or air navigational facility as part of the program.

(21) [(23)] Sponsor--Any eligible state agency or governmental entity seeking state or federal aid under the program.

(22) [(24)] Staff--Employees of the aviation division of the Texas Department of Transportation.

§30.204.Facilities Development Program.

(a) As required by Transportation Code, §§21.106, 21.107, and 21.109 [Texas Civil Statutes, Article 46c-6, Subdivision 10], the staff, with aviation advisory committee advice, shall prepare and present for the commission's adoption:

(1) an Aviation Facilities Development Program, namely, the Texas Airport System Plan (TASP), identifying the aviation facilities requirements, locations, timing, eligibility for funding, and the investment necessary for a statewide airport system that, for the least practicable cost, will provide for the state's air transportation needs;

(2) a method for determining priorities among locations and projects eligible to receive financial assistance; and

(3) annually, a multi-year CIP identifying projects to be considered for financial assistance.

(b) The division will periodically review the programs and priorities required by subsection (a)(1) - (3) of this section to determine the need for their revision. The multi-year CIP shall be the basis for allocation of financial assistance.

§30.205.Eligibility for Financial Assistance.

(a) Political subdivisions. Any city, town, county, community, or other governmental entity in the State of Texas is eligible to be included in the Texas Airport System Plan for financial assistance. Eligibility for federal financial assistance shall be as determined by the Federal Aviation Administration.

(b) State agencies. Texas state agencies with governing boards authorized to operate airports are also eligible for state financial aid under the program. Eligibility for federal financial assistance shall be as determined by the Federal Aviation Administration.

(c) Texas Airport System Plan airports. Only projects at airports included in the Texas Airport System Plan, as adopted and amended by the commission, shall be eligible for state financial assistance under Transportation Code, Chapter 21, Subchapter C [the Act].

(d) Hazard zoning. No project may be considered for a grant or loan where the sponsor has not adopted and enforced airport hazard zoning for the airport in a form acceptable to the division. Upon showing of good cause, the director may recommend to the commission approval of a project, contingent upon the sponsor's adoption of acceptable hazard zoning.

§30.214.Grant and Loan Agreement Payments.

(a) Grant payments made under APPA's in which the department is not named as the sponsor's agent, and loan payments, may be authorized upon application to the department. Such payments will be in proportion to the amount of the project satisfactorily completed at the time of the payment application. No more than 90% of the total loan or grant will be paid prior to the completion of the project and enactment of airport hazard zoning. The last 10% of the loan or grant amount will be paid only after the staff has inspected and approved the completed project. No loan or grant payment will be made until:

(1) creation by the sponsor of a special airport fund as required by Transportation Code, §22.054[the Municipal Airports Act, Texas Civil Statutes, Article 46d-1 et seq.], into which all revenues derived from all airport operations are to be deposited, and approval by the department of the sponsor's resolution or order creating the fund; and

(2) passage of an airport hazard zoning ordinance/order approved by the department.

(b) For loan agreements, proof is made to the department of property damage insurance for the project, naming the Texas Department of Transportation Loan Fund as beneficiary in the total amount of the loan, both principal and interest.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 17, 2016.

TRD-201605895

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2017

For further information, please call: (512) 463-8630