TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 9. CONTRACT AND GRANT MANAGEMENT

SUBCHAPTER B. CONTRACTS FOR HIGHWAY PROJECTS

The Texas Department of Transportation (department) adopts amendments to §§9.12 - 9.15 and §9.17, relating to Contracts for Highway Projects. The amendments to §§9.12 - 9.15 are adopted without changes to the proposed text as published in the February 13, 2026, issue of the Texas Register (51 TexReg 878) and will not be republished. The amendments to §9.17 are adopted with changes to the proposed text as published in the February 13, 2026, issue of the Texas Register (51 TexReg 878) and will be republished.

EXPLANATION OF ADOPTED AMENDMENTS

The purpose of this rulemaking is to clarify the rules of the Texas Transportation Commission (commission) concerning qualification of bidders, submittal and acceptance of bids, and award of contracts for highway projects administered by the department.

Amendments to §9.12, Qualification of Bidders, clarify that the "date of the financial statement" for the beginning of the 12-month period of prequalification refers to the "balance sheet date" to eliminate confusion. The amendments also clarify that only independent certified public accountancy firms may provide attest services, in accordance with Texas Occupations Code, §901.451. For bidders qualifying under the Confidential Questionnaire, the rules currently grant a three-month grace period to allow bidders to prepare and submit updated financial information for the coming year's qualification. A longer grace period may be needed when a submittal is dependent on the completion of a parent company's financial information. The amendments extend the grace period to four months for all qualification levels, including qualification under the Confidential Questionnaire.

Amendments to §9.13, Notice of Letting and Issuance of Proposal Forms, standardize references to "the electronic bidding system" for clarity and consistency.

Amendments to §9.14, Submittal of Bid, clarify that, consistent with paper bid bonds, electronic bid bonds must be issued by authorized sureties, include the surety's seal, and be dated on or before the date of bid opening. The amendments also standardize references to "the electronic bidding system" for clarity and consistency.

Amendments to §9.15, Acceptance of Bids, allow a bid to be considered nonresponsive if the department discovers a discrepancy prior to contract award. Before recommending award of a contract, the department verifies information certified by the bidder. Currently, the department may consider a bid nonresponsive if the bidder fails to acknowledge a certification; however, there is no recourse short of rejecting all bids if the department discovers a discrepancy with a certification prior to award of the contract. The amendments allow the department to consider a bid to be nonresponsive in such a situation.

Amendments to §9.17, Award of Contract, authorize the department to delay its notification of contract award pending the resolution of railroad access agreements, third-party financial clearances, or other conditions that are not in the best interest of the state to address the situations in which there are requirements that restrict the department from proceeding immediately with contract execution.

COMMENTS

The department posted the rules for comment in the February 13, 2026, issue of the Texas Register and received comments through March 15, 2026. The department received one comment.

The Associated General Contractors of Texas proposed a slight modification to language in §9.17(k) regarding the department's practice of delaying the release of contracts pending resolution of a railroad agreement, third party funding or concurrence, and other conditions in the best interest of the state. The department has modified the proposed language to replace the phrase "the department will delay notification" with "the department may delay notification" to support the practice of allowing a conditional release of the contract with restrictions of work areas.

STATUTORY AUTHORITY

The amendments are adopted 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, §223.004, which authorizes the commission to adopt rules to prescribe conditions under which a bid may be rejected by the department and Transportation Code, §223.014, which requires the commission to adopt rules relating to a bid guaranty.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, Chapter 223, Subchapter A.

§9.17. Award of Contract.

(a) The commission may reject any and all bids opened, read, and tabulated under §9.15 and §9.16 of this subchapter (relating to Acceptance of Bids and Tabulation of Bids, respectively). It will reject all bids if:

(1) there is reason to believe collusion may have existed among the bidders;

(2) the lowest bid is higher than the department's estimate and the commission determines that re-advertising the project for bids may result in a significantly lower low bid;

(3) the lowest bid is higher than the department's estimate and the commission determines that the work should be done by department forces; or

(4) the lowest bid is determined to contain a bid error that meets the notification requirements contained in §9.16(e)(1) of this subchapter and satisfies the criteria contained in §9.16(e)(2) of this subchapter.

(b) Except as provided in subsection (c), (d), (e), or (f) of this section, if the commission does not reject all bids, it will award the contract to the lowest bidder.

(c) In accordance with Government Code, Chapter 2252, Subchapter A, the commission will not award a contract to a nonresident bidder unless the nonresident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the greater of:

(1) the amount by which a resident bidder would be required to underbid the nonresident bidder to obtain a comparable contract in the state in which:

(A) the nonresident's principal place of business is located; or

(B) the nonresident is a resident manufacturer; or

(2) the amount by which a resident bidder would be required to underbid the nonresident bidder to obtain a comparable contract in the state in which a majority of the manufacturing related to the contract will be performed.

(d) For a maintenance contract for a building or a segment of the state highway system involving a bid amount of less than $300,000, if the lowest bidder withdraws its bid after bid opening, the executive director may recommend to the commission that the contract be awarded to the second lowest bidder.

(1) For purposes of this subsection, the term "withdrawal" includes written withdrawal of a bid after bid opening, failure to provide the required insurance or bonds, or failure to execute the contract.

(2) The executive director may recommend award of the contract to the second lowest bidder if he or she, in writing, determines that the second lowest bidder is willing to perform the work at the unit bid prices of the lowest bidder; and

(A) the unit bid prices of the lowest bidder are reasonable, and delaying award of the contract may result in significantly higher unit bid prices;

(B) there is a specific need to expedite completion of the project to protect the health or safety of the traveling public; or

(3) The commission may accept the withdrawal of the lowest bid after bid opening if it concurs with the executive director's determinations.

(4) If the commission awards a contract to the second lowest bidder and the department successfully enters into a contract with the second lowest bidder, the department will return the lowest bidder's bid guaranty upon execution of that contract.

(e) If the lowest bidder is not a preferred bidder and the contract will not use federal funds, the department, in accordance with Transportation Code, Chapter 223, Subchapter B, will award the contract to the lowest-bidding preferred bidder if that bidder's bid does not exceed the amount equal to 105% of the lowest bid. For purposes of this subsection, "preferred bidder" means a bidder whose principal place of business is in this state or a state that borders this state and that does not give a preference similar to Transportation Code, §223.050.

(f) When additional information is required to make a final decision, the commission may defer the award or rejection of the contract until the next regularly scheduled commission meeting.

(g) Contracts with an engineer's estimate of less than $1 million may be awarded or rejected by the executive director under the same conditions and limitations as provided in subsections (a) - (c) of this section.

(h) The commission may rescind the award of any contract prior to contract execution upon a determination that it is in the best interest of the state. The executive director may rescind the award of a contract awarded under subsection (g) of this section prior to contract execution upon a determination that it is in the best interest of the state. If a contract is rescinded under this subsection, the bid guaranty will be returned to the bidder, but no compensation will be paid to the bidder as a result of the rescission.

(i) For a contract with a DBE goal, all bidders must submit the DBE information required by §9.227 of this chapter (relating to Information from Bidders) within five calendar days after the date that the bids are opened.

(j) Prior to contract award, all low bidders must be participating or provide documentation of participation in the DHS E-Verify system within five calendar days after the date that the bids are opened.

(k) Upon the award or rejection of a contract by the commission, the department will provide the low bidder written notification of the award or rejection. When applicable, the department may delay notification of the award of a contract pending resolution of:

(1) an access agreement between the department and a railroad,

(2) an agreement between the department and a third party participating with funding or concurrence, or

(3) other conditions that are not in the best interest of the state.

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 April 30, 2026.

TRD-202601851

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Effective date: May 20, 2026

Proposal publication date: February 13, 2026

For further information, please call: (512) 416-2560

CHAPTER 28. OVERSIZE AND OVERWEIGHT VEHICLES AND LOADS

SUBCHAPTER B. HIGHWAY CROSSINGS BY OVERSIZE AND OVERWEIGHT VEHICLES AND LOADS

43 TAC §28.11, §28.12

The Texas Department of Transportation (department) adopts amendments to §28.11, Surety Bond, and §28.12, Preparation of Contract. The amendments to §28.11 and §28.12 are adopted without changes to the proposed text as published in the February 13, 2026 issue of the Texas Register (51 TexReg 885) and will not be republished.

EXPLANATION OF ADOPTED AMENDMENTS

During the 89th Legislative Session, the legislature passed Senate Bill (S.B.) 995, which removed the requirement that the surety bond for a contract authorizing an oversize or overweight vehicle to cross a road or highway be approved by the Comptroller of Public Accounts and the Attorney General's Office.

Amendments to §28.11, Surety Bond, remove the requirement that the state treasurer and the attorney general approve the surety bond and provide that the bonds must be approved by the department to align the rule with the statute. Additional changes are made to clarify the requirements of the section; those changes do not change the substance of the section.

Amendments to §28.12, Preparation of Contract, modify subsection (e) by removing the requirement that the surety bond be approved by the attorney general and the comptroller of public accounts to align the rule with the statute and eliminating language that is redundant of that in §28.11.

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, and more specifically, Transportation Code, §623.051, which requires the commission to adopt rules relating to the forms and procedures to be used for contracts for crossing roads.

The authority for the adopted amendments is provided by S.B. 995, 89th Regular Session, 2025. The primary author and the primary sponsor of that bill are Sen. Robert Nichols and Rep. Dennis Paul, respectively.