Missouri Register Volume 43 Number 2, January 16, 2018

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by  Missouri Secretary of State, Administrative Rules Division

Volume 43, Number 2
Pages 35–118
January 16, 2018
S A L U S P O P U L I S U P R E M A L E X E S T O
“The welfare of the people shall be the supreme law.”
J o h n R . A s h c r o ft
Secretary of State
M I S S O U R I
R E G I S T E R
The Missouri Register is an official publication of the state of Missouri, under the authority granted to
the secretary of state by sections 536.015 and 536.033, RSMo 2016. Reproduction of rules is allowed;
however, no reproduction shall bear the name Missouri Register or “official” without the express per-
mission of the secretary of state.
The Missouri Register is published semi-monthly by
S S
ECRETARY OF TATE
John R. Ashcroft
Administrative Rules Division
James C. Kirkpatrick State Information Center
600 W. Main
Jefferson City, MO 65101
[phone]
EDITOR-IN-CHIEF
CURTISW. TREAT
·
MANAGING EDITOR
AMANDAMCKAY
·
EDITOR
VONNE KILBOURN
·
ASSOCIATE EDITOR
MARTYSPANN
·
PUBLICATION SPECIALIST
JACQUELINE D. WHITE
·
ADMINISTRATIVEAIDE
ALISHADUDENHOEFFER
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MISSOURI REGISTER
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Jefferson City, MO 65102
The Missouri Register and Code of State Regulations (CSR) are available on the Internet. The Register address is
www.sos.mo.gov/adrules/moreg/moreg and the CSR is www.sos.mo.gov/adrules/csr/csr. These websites contain rulemakings and regu-
lations as they appear in the paper copies of the Registers and CSR. The Administrative Rules Division may be contacted by email at
[email protected].
The secretary of state’s office makes every effort to provide program accessibility to all citizens without regard to disability. If you desire
this publication in alternate form because of a disability, please contact the Division of Administrative Rules, PO Box 1767, Jefferson City,
MO 65102, [phone]. Hearing impaired citizens should contact the director through Missouri relay, [phone].
M R
ISSOURI EGISTER
January 16, 2018 Vol. 43 No. 2 Pages 35–118
II TT II ::
NN HHIISS SSSSUUEE
PROPOSED RULES SOURCE GUIDES
Department of Transportation RULE CHANGES SINCE UPDATE . . . . . . . . . . . . . . . . .101
Missouri Highways and Transportation Commission . . . . . .39 EMERGENCY RULES IN EFFECT . . . . . . . . . . . . . . . .107
Department of Public Safety EXECUTIVE ORDERS . . . . . . . . . . . . . . . . . . . . . . . . .109
Missouri Gaming Commission . . . . . . . . . . . . . . . . . . . .48 REGISTER INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
Department of Insurance, Financial Institutions
and Professional Registration
State Board of Registration for the Healing Arts . . . . . . . . .83
State Board of Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .85
ORDERS OF RULEMAKING
Department of Conservation
Conservation Commission . . . . . . . . . . . . . . . . . . . . . . .89
Department of Social Services
MO HealthNet Division . . . . . . . . . . . . . . . . . . . . . . . .92
Department of Health and Senior Services
Division of Regulation and Licensure . . . . . . . . . . . . . . .92
IN ADDITIONS
Department of Conservation
Conservation Commission . . . . . . . . . . . . . . . . . . . . . . .93
Department of Health and Senior Services
Missouri Health Facilities Review Committee . . . . . . . . . .93
DISSOLUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . .94
Register Register Code Code
Filing Deadlines Publication Date Publication Date Effective Date
September 1, 2017 October 2, 2017 October 31, 2017 November 30, 2017
September 15, 2017 October 16, 2017 October 31, 2017 November 30, 2017
October 2, 2017 November 1, 2017 November 30, 2017 December 30, 2017
October 16, 2017 November 15, 2017 November 30, 2017 December 30, 2017
November 1, 2017 December 1, 2017 December 31, 2017 January 30, 2018
November 15, 2017 December 15, 2017 December 31, 2017 January 30, 2018
December 1, 2017 January 2, 2018 January 29, 2018 February 28, 2018
December 15, 2017 January 16, 2018 January 29, 2018 February 28, 2018
January 2, 2018 February 1, 2018 February 28, 2018 March 30, 2018
January 16, 2018 February 15, 2018 February 28, 2018 March 30, 2018
February 1, 2018 March 1, 2018 March 31, 2018 April 30, 2018
February 15, 2018 March 15, 2018 March 31, 2018 April 30, 2018
March 1, 2018 April 2, 2018 April 30, 2018 May 30, 2018
March 15, 2018 April 16, 2018 April 30, 2018 May 30, 2018
April 2, 2018 May 1, 2018 May 31, 2018 June 30, 2018
April 16, 2018 May 15, 2018 May 31, 2018 June 30, 2018
May 1, 2018 June 1, 2018 June 30, 2018 July 30, 2018
May 15, 2018 June 15, 2018 June 30, 2018 July 30, 2018
Documents will be accepted for filing on all regular workdays from 8:00 a.m. until 5:00 p.m. We encourage early filings to facilitate the timely publication of the
Missouri Register. Orders of Rulemaking appearing in the Missouri Registerwill be published in the Code of State Regulations and become effective as listed in the
chart above. Advance notice of large volume filings will facilitate their timely publication. We reserve the right to change the scheduledue to special circumstances.
Please check the latest publication to verify that no changes have been made in this schedule.To review the entire year’s schedule, please check out the website at
www.sos.mo.gov/adrules/pubsched.
HOW TO CITE RULES AND RSMO
RULES
The rules are codified in the Code of State Regulations in this system–
Title Division Chapter Rule
3 CSR 10- 4 .115
Department Code of Agency General area Specific area
State Division regulated regulated
Regulations
and should be cited in this manner: 3 CSR 10-4.115.
Each department of state government is assigned a title. Each agency or division in the department is assigned a division
number. The agency then groups its rules into general subject matter areas called chapters and specific areas called rules.
Within a rule, the first breakdown is called a section and is designated as (1). Subsection is (A) with further breakdown
into paragraphs 1., subparagraphs A., parts (I), subparts (a), items I. and subitems a.
The rule is properly cited by using the full citation, for example, 3 CSR 10-4.115 NOT Rule 10-4.115.
Citations of RSMo are to the Missouri Revised Statutes as of the date indicated.
Code and Register on the Internet
The Code of State Regulations and Missouri Register are available on the Internet.
The Code address is www.sos.mo.gov/adrules/csr/csr
The Register address is www.sos.mo.gov/adrules/moreg/moreg
These websites contain rulemakings and regulations as they appear in the Code and Registers.
Proposed Rules
January 16, 2018 MISSOURI
Vol. 43, No. 2 REGISTER
inition of a design-build contract, corrects the state statutes under
Under this heading will appear the text of proposed rules which transportation development districts are organized, and deletes
and changes. The notice of proposed rulemaking is unnecessary restrictive wording.
required to contain an explanation of any new rule or any
change in an existing rule and the reasons therefor. This is set PUBLISHER’S NOTE:The secretary of state has determined that the
out in the Purpose section with each rule. Also required is a publication of the entire text of the material which is incorporated by
citation to the legal authority to make rules. This appears fol- reference as a portion of this rule would be unduly cumbersome or
lowing the text of the rule, after the word “Authority.” expensive. This material as incorporated by reference in this rule
Entirely new rules are printed without any special symbol- shall be maintained by the agency at its headquarters and shall be
ogy under the heading of proposed rule. If an existing made available to the public for inspection and copying at no more
rule is to be amended or rescinded, it will have a heading of than the actual cost of reproduction. This note applies only to the ref-
proposed amendment or proposed rescission. Rules which erence material. The entire text of the rule is printed here.
are proposed to be amended will have new matter printed in
boldface type and matter to be deleted placed in brackets. (1) Unless otherwise specified, in addition to the definitions provided
An important function of the Missouri Registeris to solicit for in this rule, the definitions in Title 23, United States Code
and encourage public participation in the rulemaking (U.S.C.) section101(a) are applicable to this chapter whether or not
process. The law provides that for every proposed rule, specifically restated, or revised herein, and in their unrevised form
amendment, or rescission there must be a notice that anyone to the extent not in conflict with this chapter. Title 23 U.S.C. section
may comment on the proposed action. This comment may 101(a) is incorporated by reference into and made a part of this
take different forms. rule as published by the United States Superintendent of
If an agency is required by statute to hold a public hearing Documents, 732 N Capitol Street NW, Washington, D.C. 20402-
0001, website: http://bookstore.gpo.gov on January 1, 2012. This
before making any new rules, then a Notice of Public
rule does not incorporate any subsequent amendments or addi-
Hearing will appear following the text of the rule. Hearing
tions to the United States Codein 23 U.S.C. 101(a).
dates must be at least thirty (30) days after publication of the
notice in the Missouri Register. If no hearing is planned or
(10) Construction means the supervising, inspecting, actual building,
required, the agency must give a Notice to Submit
and incurrence of all costs incidental to the construction or reconstruc-
Comments. This allows anyone to file statements in support
tion of a highway, including bond costs and other costs relating to the
of or in opposition to the proposed action with the agency
issuance of bonds whether in accordance with 23 U.S.C. section 122
within a specified time, no less than thirty (30) days after pub-
or other debt financing instruments and costs incurred by the state in
lication of the notice in the Missouri Register.
performing project related audits that directly benefit the state highway
An agency may hold a public hearing on a rule even
program. Title 23 U.S.C. section 122 is incorporated by reference
though not required by law to hold one. If an agency
into and made a part of this rule as published by the United States
allows comments to be received following the hearing date, Superintendent of Documents, 732 N Capitol Street NW,
the close of comments date will be used as the beginning day Washington, D.C. 20402-0001, website: http://bookstore.gpo.gov
in the ninety- (90-) day-count necessary for the filing of the on January 1, 2012. This rule does not incorporate any subsequent
order of rulemaking. amendments or additions to the United States Code in 23 U.S.C.
If an agency decides to hold a public hearing after planning 122.Such term includes:
not to, it must withdraw the earlier notice and file a new
notice of proposed rulemaking and schedule a hearing for a (13) Design means any design activities and includes the prepara-
date not less than thirty (30) days from the date of publication tion of construction plans and detailed specifications for the per-
of the new notice. formance of construction work.
[(13)](14) Design-build contract means [an agreement that pro-
Proposed Amendment Text Reminder: vides for design and construction of improvements by a con-
Boldface text indicates new matter. tractor or private developer.]a single contract that provides for
[Bracketed text indicates matter being deleted.] design and construction, including any related services and mate-
rials, of a state highway project by a contractor or private devel-
Title 7—DEPARTMENT OF TRANSPORTATION oper. The term encompasses alternative project delivery methods
Division 10—Missouri Highways and Transportation including design-build, design-build-operate-maintain, design-
Commission build-operate, design-build-maintain, design-build-finance,
Chapter 24—Design-Build Project Contracts design-build-finance-operate-maintain, engineer-procure-con-
struct, and other contracts that include services in addition to
PROPOSED AMENDMENT design and construction.
7 CSR 10-24.010 Definitions. The Missouri Highways and [(14)](15) Design-builder means an individual, corporation, part-
Transportation Commission is amending sections (1), (10), (13), nership, joint venture, limited liability company, limited liability
(17), (20), (23), (27), (31), (33), and (45), adding a new section partnership, or other entity making a proposal to be contractually
(13), renumbering sections (13) through (23), deleting sections (24) responsible to perform, or which is performing, the project design
and (32), and renumbering sections (33) through (47). and construction under a design-build contract.
PURPOSE: This amendment updates and corrects the proper incor- [(15)](16) Disadvantaged business enterprise (DBE) means a for-
poration of federal statutes and the National ITS Architecture consis- profit small business concern—
tent with section 536.031.4, RSMo, adds a definition for design activ- (A) That is at least fifty-one percent (51%) owned by one (1) or
ities relating to design-build contracts, deletes unnecessary defini- more individuals who are both socially and economically disadvan-
tions for non-qualified project and qualified project, expands the def- taged or, in the case of a corporation or other business entity, in
39
January 16, 2018
Page 40
Proposed Rules Vol. 43, No. 2
which fifty-one percent (51%) of the stock or shares are owned by vide the [required]design and construction services set forth in the
one (1) or more socially and economically disadvantaged individuals; request for proposal.
and
(B) Whose management and daily business operations are con- (31) Project agreement means the formal instrument to be executed by
trolled by one (1) or more of those socially and economically disad- the commission and the secretary [as required by]under23 U.S.C.
vantaged individuals who own the disadvantaged business enterprise. section 106. Title 23 U.S.C. section 106 is incorporated by refer-
ence into and made a part of this rule as published by the United
[(16)](17) Discussions mean written or oral exchanges that take States Superintendent of Documents, 732 N Capitol Street NW,
place after the establishment of the competitive range with the intent Washington, D.C. 20402-0001, website: http://bookstore.gpo.gov
of allowing the proposers to revise their proposals. on January 1, 2012. This rule does not incorporate any subsequent
amendments or additions to the United States Code in 23 U.S.C.
[(17)](18) Division [a]Administrator means the [d]Division 106.
[a]Administrator, Missouri Division of the Federal Highway
Administration, United States Department of Transportation (FHWA). [(32) Qualified project means any design-build project with a
total estimated cost greater than fifty (50) million dollars or
[(18)](19)Fixed price/best design means a form of best value selec- an intelligent transportation system project greater than five
tion in which contract price is established by the contracting agency (5) million dollars as described in 23 U.S.C. 112(b)(3)(C).]
and stated in the Request for Proposals document. Design solutions
and other qualitative factors are evaluated and rated, with award [(33)](32) Request for Proposal (RFP) means a document that
going to the firm offering the best qualitative proposal for the estab- describes the procurement process, forms the basis for the final pro-
lished price. posals and may potentially become an element in the contract. In any
design-build contract, whether involving state or federal funds, [the
[(19)](20)Highway includes: contracting agency shall require that each entity submitting
(A) Aroad, street, and parkway; a request for qualifications provide]a detailed DBE participation
(B) A right-of-way, bridge, railroad-highway crossing, tunnel, plan[. The plan shall] is to be included in each proposer’s
drainage structure, sign, guardrail, and protective structure, in con- request for qualifications that provides information describing the
nection with a highway; and experience of the [entity] proposer in meeting DBE participation
(C) Aportion of any interstate bridge or tunnel and the approaches goals, how the [entity will]proposerintends tomeet the DBE goal
thereto, the cost of which is assumed by the commission. for the design-build project and such other qualifications that the
commission considers to be in the best interest of the state.
[(20)](21) Intelligent Transportation System (ITS) services means
services which provide for the acquisition of technologies or systems [(34)](33) Request for Qualification (RFQ) means a document
of technologies (e.g., computer hardware or software, traffic control issued by the contracting agency describing the project in enough
devices, communications link, fare payment system, automatic vehi- detail to let potential proposers determine if they wish to compete
cle location system, etc.) that provide or contribute to the provision and forms the basis for requesting qualifications submissions from
of one (1) or more ITS user services as defined in the National ITS which the most highly qualified proposers can be identified.
Architecture. National ITS Architecture is incorporated by refer-
ence into and made a part of this rule as published by the United
[(35)](34) Secretary means the Secretary of Transportation of the
States Department of Transportation Office of the Assistant
United States Department of Transportation.
Secretary for Research and Technology, 1200 New Jersey Ave.,
SE, Washington, D.C. 20590, website: http://its.dot.gov
[(36)](35)Short listing means the narrowing of the field of offerors
December, 2014. This rule does not incorporate any subsequent
through the selection of the most qualified proposers who have
amendments or additions to the National ITS Architecture.
responded to an RFQ.
[(21)](22) Interstate system means the Dwight D. Eisenhower
[(37)](36) Solicitation means a public notification of a contracting
National System of Interstate and Defense Highways described in 23
agency’s need for information, qualifications, or proposals related to
U.S.C. section 103(c).
identified services.
[(22)](23) Modified design-build means a variation of design-build
[(38)](37) Standard design-build means a procurement process in
in which the contracting agency furnishes offerors with partially
which the first phase consists of short listing (based on qualifications
complete plans. The design-builders role is generally limited to the
submitted in response to an RFQ) and the second phase consists of
completion of the design and construction of the project.
the submission of price and technical proposals in response to an
RFP.
[(23)](24) National Highway System (NHS) means the federal-aid
highway system described in 23 U.S.C. section 103(b). Title 23
U.S.C. section 103(b) is incorporated by reference into and made [(39)](38) State means the state of Missouri, MoDOT, or commis-
a part of this rule as published by the United States sion.
Superintendent of Documents, 732 N Capitol Street NW,
Washington, D.C. 20402-0001, website: http://bookstore.gpo.gov [(40)](39)State funds means funds raised under the authority of the
on January 1, 2012. This rule does not incorporate any subsequent state or any political or other subdivision thereof, and made available
amendments or additions to the United States Code in 23 U.S.C. for expenditure under direct control of the commission or MoDOT.
103(b).
[(41)](40) Stipend means a monetary amount paid to unsuccessful
[(24) Non-qualified project means a design-build project that proposers.
does not meet the definition of a qualified project in 23
U.S.C. 112(b)(3)(C).] [(42)](41) Technical proposal means that portion of a design-build
proposal that contains design solutions and other qualitative factors
(27) Price proposal means the price submitted by the offeror to pro- that are provided in response to the RFP document.
January 16, 2018
Vol. 43, No. 2 Missouri Register Page 41
[(43)](42)Tradeoff means an analysis technique involving a compar- States Code(U.S.C.),by use of state funds, by use of funds of local
ison of price and non-price factors to determine the best value when public agencies or counties, or any combination of fund sources.
considering the selection of other than the lowest priced proposal. [This chapter satisfies the requirement of 227.107, RSMo
Supp. 2004. The contracting procedures of this chapter
[(44)](43)Transportation corporation means any transportation cor- apply to all design-build projects undertaken by the commis-
poration organized under sections 238.300 to 238.367, RSMo. sion.]All acquisitions under these rules [shall be]arecompetitive
acquisitions.
[(45)](44) Transportation development district means a transporta-
tion development district organized under sections 238.200 to (3) [The commission is neither requiring nor promoting the
[238.275]238.280, RSMo. use of the design-build contracting method.]The design-build
contracting technique is optional and its use by the commission is
[(46)](45)Weakness means a flaw in the proposal that increases the limited by federal and statelaw.
risk of unsuccessful contract performance. A significant weakness in
the proposal is a flaw that appreciably increases the risk of unsuc- (4) Relations of the National Environmental Protection Act (NEPA)
cessful contract performance. review process to the design-build procurement process.
(B) A commission Request for Proposal (RFP) [will not be
[(47)](46) Weighted criteria process means a form of best value released prior to the conclusion of the NEPA process. The
NEPA review process is concluded with either a Categorical
selection in which maximum point values are pre-established for
Exclusion (CE) classification, an approved Finding of No
qualitative and price components, and award is based upon high total
Significant Impact (FONSI), or an approved Record of
points earned by the proposers.
Decision (ROD) as defined in 23 CFR 771.113(a).] may be
issued prior to the conclusion of the NEPA process as long as the
AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and
RFP informs proposers of the general status of the NEPA process
227.107, RSMo [Supp. 2004] 2016. Original rule filed Aug. 15,
and that no commitment will be made as to any alternative under
2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017.
evaluation in the NEPA process, including the no-build alternative
as defined in Title 23, Code of Federal Regulations(CFR) 636.109.
PUBLIC COST: This proposed amendment will not cost state agen-
Title 23, CFR, section 636.109 is incorporated by reference into
cies or political subdivisions more than five hundred dollars ($500)
and made a part of this rule as published by the United States
in the aggregate.
Superintendent of Documents, 732 N Capitol Street NW,
Washington, D.C. 20402-0001, website: http://bookstore.gpo.gov
PRIVATE COST: This proposed amendment will not cost private enti-
on January 1, 2012. This rule does not incorporate any subsequent
ties more than five hundred dollars ($500) in the aggregate.
amendments or additions to the Code of Federal Regulationsin 23
CFR 636.109.
NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in
(C) [A commission RFP must address how]The environmen-
support of or in opposition to this proposed amendment with the
tal commitments and mitigation measures identified during the
Missouri Highways and Transportation Commission, Pamela J.
NEPA process are included in the commission’s RFP for the
Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box
design-built project, including how such commitments and miti-
270, Jefferson City, MO 65102 or [email protected]. To
gation measures will be implemented.
be considered, comments must be received within thirty (30) days after
publication of this notice in theMissouri Register. No public hearing AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and
is scheduled. 227.107, RSMo [Supp. 2004] 2016. Original rule filed Aug. 15,
2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017.
Title 7—DEPARTMENT OF TRANSPORTATION
PUBLIC COST: This proposed amendment will not cost state agen-
Division 10—Missouri Highways and Transportation
cies or political subdivisions more than five hundred dollars ($500)
Commission in the aggregate.
Chapter 24—Design-Build Project Contracts
PRIVATE COST: This proposed amendment will not cost private enti-
PROPOSED AMENDMENT ties more than five hundred dollars ($500) in the aggregate.
7 CSR 10-24.020 General. The Missouri Highways and NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in
Transportation Commission is amending sections (1), (3), and (4). support of or in opposition to this proposed amendment with the
Missouri Highways and Transportation Commission, Pamela J.
PURPOSE: This amendment clarifies the National Environmental Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box
Protection Act (NEPA) process as it pertains to the design-build pro- 270, Jefferson City, MO 65102 or [email protected]. To
curement process, deletes unnecessary redundant language and be considered, comments must be received within thirty (30) days after
restrictive wording publication of this notice in theMissouri Register. No public hearing
is scheduled.
PUBLISHER’S NOTE: The secretary of state has determined that
the publication of the entire text of the material which is incorporated
by reference as a portion of this rule would be unduly cumbersome Title 7—DEPARTMENT OF TRANSPORTATION
or expensive. This material as incorporated by reference in this rule Division 10—Missouri Highways and Transportation
shall be maintained by the agency at its headquarters and shall be Commission
made available to the public for inspection and copying at no more Chapter 24—Design-Build Project Contracts
than the actual cost of reproduction. This note applies only to the ref-
erence material. The entire text of the rule is printed here. PROPOSED AMENDMENT
(1) This chapter describes the commission’s policies and procedures 7 CSR 10-24.030 Procedures for Solicitations and Receipt of Pro-
for approving design-build projects financed under Title 23, United posals. The Missouri Highways and Transportation Commission is
January 16, 2018
Page 42
Proposed Rules Vol. 43, No. 2
amending sections (1) through (4). PRIVATE COST: This proposed amendment will not cost private enti-
ties more than five hundred dollars ($500) in the aggregate.
PURPOSE: This amendment incorporates federal statutes and
deletes unnecessary and restrictive language. NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in
support of or in opposition to this proposed amendment with the
PUBLISHER’S NOTE:The secretary of state has determined that the Missouri Highways and Transportation Commission, Pamela J.
publication of the entire text of the material which is incorporated by Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box
reference as a portion of this rule would be unduly cumbersome or 270, Jefferson City, MO 65102 or [email protected]. To
expensive. This material as incorporated by reference in this rule be considered, comments must be received within thirty (30) days after
shall be maintained by the agency at its headquarters and shall be publication of this notice in theMissouri Register. No public hearing
made available to the public for inspection and copying at no more is scheduled.
than the actual cost of reproduction. This note applies only to the ref-
erence material. The entire text of the rule is printed here.
Title 7—DEPARTMENT OF TRANSPORTATION
Division 10—Missouri Highways and Transportation
(1) [The commission will give public notice of a Request for
Commission
Qualifications in at least two (2) public newspapers that are
Chapter 24—Design-Build Project Contracts
distributed wholly or in part in this state and at least one (1)
construction industry trade publication that is distributed
PROPOSED AMENDMENT
nationally.] In addition to the public notice set forth in section
227.107.18, RSMo, the commission may use additional procedures
deemed appropriate for the solicitation and receipt of proposals and 7 CSR 10-24.050 Types of Projects in Which Design-Build Con-
information,including the following: tracting May Be Used. The Missouri Highways and Transportation
Commission is amending the purpose statement and section (1), and
deleting sections (2) through (5).
(2) All responses to the [Request for Qualifications]RFQwill be
evaluated by the pre-qualification review/short listing team[. This
PURPOSE: This amendment is to bring us in compliance with cur-
team will be], which is comprised of the following Missouri
rent federal guidance.
Department of Transportation (MoDOT) staff or their designated
representative: chief engineer, chief financial [and administrative]
PURPOSE: This rule provides for the types of projects in which
officer,[controller, director of program delivery,]assistant chief
design-build method may beused [in determining a project “qual-
engineer,financial services director,one (1) or more district engi-
ified” and how it applies to Intelligent Transportation System
neer(s), project manager for the given project, state construction and
(ITS) projects].
materials engineer, state bridge engineer, and the state design engi-
neer. An external partner(s) may be asked to act as an observer to the
(1) Subject to the provisions of 227.107, RSMo [Supp. 2004], the
pre-qualification/short listing process.
design-build contracting technique may be used for any [qualified or
nonqualified]project which the commission deems to be appropri-
(3) Use of Oral Presentations During the Procurement Process.
ate on the basis of project delivery time, cost, construction schedule,
(A) Oral presentations as a substitute for portions of a written pro-
and/or quality.
posal may be used in streamlining the source selection process. Oral
presentations may occur at any time in the acquisition process[, how-
[(2) The use of the term “qualified project” does not limit the
ever, the commission must]and comply with any appropriate fed-
use of design-build contracting by the commission. It merely
eral [and state] procurement integrity standards contained in 23
determines the Federal Highway Administration’s (FHWA’s)
CFR 636.111. Title 23 CFR section 636.111 is incorporated by ref-
procedures for approval. The division administrator may
erence into and made a part of this rule as published by the United
approve the design-build method for a “qualified project”
States Superintendent of Documents, 732 N Capitol Street NW,
which meets the requirements of this chapter.
Washington, D.C. 20402-0001, website: http://bookstore.gpo.gov
on January 1, 2012. This rule does not incorporate any subsequent
(3) The FHWA division administrator may also approve other
amendments or additions to the Code of Federal Regulationsin 23
design-build projects (which do not meet the “qualified pro-
CFR 636.111.
jects” definition) by using Special Experimental Projects No.
14 (SEP-14), “Innovative Contracting Practices,” provided
(4) Restrictions on a proposer’s team changes after the proposer’s the project meets the requirements of this chapter. Projects
response to an RFQ where the proposer’s qualifications are a major that do not meet the requirements of this chapter, (either
factor in the selection of the successful design-builder, such as team “qualified or nonqualified” projects) must be submitted to
member switching (adding or switching team members), is discour- the FHWA for conceptual approval.
aged after submission of response to an RFQ. However, the commis-
sion may use its discretion in reviewing team changes or team (4) As a consequence of these differences in FHWA proce-
enhancement requests on a case-by-case basis. Any specific project dures, Missouri Department of Transportation (MoDOT) pro-
rules related to changes in team members or changes in personnel cedures will vary to comply with FHWA procedures.
within teams will be explicitly stated in a project solicitation.
(5) For the purpose of this chapter, a federal-aid ITS design-
AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and build project meets the criteria of a “qualified project” if:
227.107, RSMo [Supp. 2004]2016. Emergency rule filed Oct. 17, (A) A majority of the scope of services provides ITS ser-
2005, effective Oct. 27, 2005, expired April 25, 2006. Original rule vices (at least fifty percent (50%) of the scope of work is
filed Aug. 15, 2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, related to ITS services); and
2017. (B) The estimated contract value exceeds five (5) million
dollars.]
PUBLIC COST: This proposed amendment will not cost state agen-
cies or political subdivisions more than five hundred dollars ($500) AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and
in the aggregate. 227.107, RSMo [Supp. 2004] 2016. Original rule filed Aug. 15,
January 16, 2018
Vol. 43, No. 2 Missouri Register Page 43
2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017. (3) Information exchange with industry at an early project stage will
occur if it will facilitate understanding of the capabilities of potential
PUBLIC COST: This proposed amendment will not cost state agen- proposers[. However, any] and such exchange of information
cies or political subdivisions more than five hundred dollars ($500) [must be]can be madeconsistent with state procurement integrity
in the aggregate. requirements. Information exchanges may take place with potential
proposers, end users, acquisition and supporting personnel, and oth-
PRIVATE COST: This proposed amendment will not cost private enti- ers involved in the conduct or outcome of the acquisition.
ties more than five hundred dollars ($500) in the aggregate.
(4) The purpose of exchanging information is to improve the under-
NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in standing of the commission requirements for the design-build pro-
support of or in opposition to this proposed amendment with the jectand industry capabilities, thereby allowing potential proposers to
Missouri Highways and Transportation Commission, Pamela J. judge whether or how they can satisfy those requirements, and
Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box enhancing the commission’s ability to obtain quality supplies and
270, Jefferson City, MO 65102 or [email protected]. To services, including construction, at reasonable prices, and increase
be considered, comments must be received within thirty (30) days after efficiency in proposal preparation, proposal evaluation, negotiation,
publication of this notice in theMissouri Register. No public hearing and contract award.
is scheduled.
(6) RFIs may be used when the commission does not intend to award
a contract, but wants to obtain price, delivery, other market informa-
Title 7—DEPARTMENT OF TRANSPORTATION
tion, or capabilities for planning purposes. Responses to these
Division 10—Missouri Highways and Transportation
notices are not offers and cannot be accepted to form a binding con-
Commission
tract. [There is no required format for an RFI.]
Chapter 24—Design-Build Project Contracts
AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and
PROPOSED AMENDMENT
227.107, RSMo [Supp. 2004] 2016. Original rule filed Aug. 15,
2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017.
7 CSR 10-24.060 Stipends. The Missouri Highways and
Transportation Commission is amending section (2).
PUBLIC COST: This proposed amendment will not cost state agen-
cies or political subdivisions more than five hundred dollars ($500)
PURPOSE: This amendment removes unnecessary restrictive lan-
in the aggregate.
guage.
PRIVATE COST: This proposed amendment will not cost private enti-
(2) On federal-aid projects stipends are eligible for federal-aid par-
ties more than five hundred dollars ($500) in the aggregate.
ticipation. Proposers will cooperate in providing such records and
complying with such process [as required for the commission]in
NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in
order for the commissionto obtain federal participation.
support of or in opposition to this proposed amendment with the
Missouri Highways and Transportation Commission, Pamela J.
AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and
Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box
227.107, RSMo [Supp. 2004] 2016. Original rule filed Aug. 15,
270, Jefferson City, MO 65102 or [email protected]. To
2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017.
be considered, comments must be received within thirty (30) days after
publication of this notice in the Missouri Register. No public hearing
PUBLIC COST: This proposed amendment will not cost state agen-
is scheduled.
cies or political subdivisions more than five hundred dollars ($500)
in the aggregate.
Title 7—DEPARTMENT OF TRANSPORTATION
PRIVATE COST: This proposed amendment will not cost private enti-
Division 10—Missouri Highways and Transportation
ties more than five hundred dollars ($500) in the aggregate.
Commission
Chapter 24—Design-Build Project Contracts
NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in
support of or in opposition to this proposed amendment with the
PROPOSED AMENDMENT
Missouri Highways and Transportation Commission, Pamela J.
Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box
270, Jefferson City, MO 65102 or [email protected]. To 7 CSR 10-24.080 Organizational Conflicts of Interest. The
be considered, comments must be received within thirty (30) days after Missouri Highways and Transportation Commission is deleting sec-
publication of this notice in theMissouri Register. No public hearing tion (2) and is amending subsection (1)(B) and section (3).
is scheduled.
PURPOSE: This amendment updates and corrects the proper incor-
poration of federal statutes and removes unnecessary restrictive lan-
Title 7—DEPARTMENT OF TRANSPORTATION guage.
Division 10—Missouri Highways and Transportation
Commission PUBLISHER’S NOTE:The secretary of state has determined that the
Chapter 24—Design-Build Project Contracts publication of the entire text of the material which is incorporated by
reference as a portion of this rule would be unduly cumbersome or
PROPOSED AMENDMENT expensive. This material as incorporated by reference in this rule
shall be maintained by the agency at its headquarters and shall be
7 CSR 10-24.070 Risk Allocation. The Missouri Highways and made available to the public for inspection and copying at no more
Transportation Commission is amending sections (3), (4), and (6). than the actual cost of reproduction. This note applies only to the ref-
erence material. The entire text of the rule is printed here.
PURPOSE: This amendment removes unnecessary restrictive lan-
guage. (1) State statutes, regulations, or policies concerning organizational
January 16, 2018
Page 44
Proposed Rules Vol. 43, No. 2
conflict of interest will be specified or referenced in the design-build 270, Jefferson City, MO 65102 or [email protected]. To
Request for Qualification (RFQ) or Request for Proposal (RFP) doc- be considered, comments must be received within thirty (30) days after
ument as well as any contract for engineering services, inspection,or publication of this notice in theMissouri Register. No public hearing
technical support in the administration of the design-build contract. is scheduled.
All design-build solicitations will address the following situations as
appropriate:
(B) All solicitations for design-build contracts, including related Title 7—DEPARTMENT OF TRANSPORTATION
contracts for inspection, administration, or auditing services, must Division 10—Missouri Highways and Transportation
include anorganizational conflicts of interestprovision which: Commission
1. Directs proposers attention to this section; Chapter 24—Design-Build Project Contracts
2. States the nature of the potential conflict as seen by the com-
mission; PROPOSED AMENDMENT
3. States the nature of the proposed restraint or restrictions, and
duration, upon future contracting activities, if appropriate; 7 CSR 10-24.100 Selection Procedures and Award Criteria. The
4. Depending on the nature of the acquisition, states whether or Missouri Highways and Transportation Commission is amending sec-
not the terms of any proposed clause and the application of this sec- tions (1), (4), and (5).
tion to the contract are subject to negotiation; and
5. [Requires proposers to provide]Specifies theinformation PURPOSE: This amendment removes unnecessary restrictive lan-
concerning potential organizational conflicts of interest apparent guage.
successful proposers shall includein their proposals. [The appar-
ent successful proposers must disclose all relevant facts (1) The commission will use a two-(2-)[-]phase selection procedure
concerning any past, present or currently planned interests for all design-build projects. If it is determined by the commission
that may present an organizational conflict of interest. Such that the design-build procedure is not appropriate for a given project,
firms must state how their interests, or those of their chief based on the criteria in 7 CSR 10-24.130,the modified design-build
executives, directors, key project personnel, or any proposed contracting method may be utilized.
consultant, contractor or subcontractor may result, or could
be viewed as, an organizational conflict of interest.] The (4) Commission will base the source selection decision on a compar-
information may be in the form of a disclosure statement or a certi- ative assessment of proposals against all selection criteria in the
fication. solicitation. Commission may use reports and analyses prepared by
others, however, the source selection decision [shall]represents the
[(2) The organizational conflict of interest provisions in this commission’s independent judgment.
section provide minimum standards for the commission to
identify, mitigate or eliminate apparent or actual organiza- (5) The source selection decision will be documented, and the doc-
tional conflicts of interest. To the extent that state developed umentation will include the rationale for any business judgments and
organizational conflict of interest standards are less stringent tradeoffs made or relied on, including benefits associated with addi-
than those contained in any applicable federal statute, regu- tional costs. Although the rationale for the selection decision [must
lation or policy, the latter standards prevail.] be] is documented, that documentation need not quantify the trade-
offs that led to the decision.
[(3)](2)State laws and procedures governing improper business prac-
tices and personal conflicts of interest will apply to the commission AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and
selection team members. [In the absence of such state provi- 227.107, RSMo [Supp. 2004] 2016. Original rule filed Aug. 15,
sions] In design-build projects funded with federal-aid highway 2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017.
funds, the requirements of Title 48, Code of Federal Regulations
(CFR)Part 3, Improper Business Practices and Personal Conflicts of PUBLIC COST: This proposed amendment will not cost state agen-
Interest, will apply to selection team members. Title 48 CFR cies or political subdivisions more than five hundred dollars ($500)
Chapter 3, Subchapter A, Part 303, Improper Business Practices in the aggregate.
and Personal Conflicts of Interest, is incorporated by reference
into and made a part of this rule as published by the United PRIVATE COST: This proposed amendment will not cost private enti-
States Superintendent of Documents, 732 N Capitol Street NW, ties more than five hundred dollars ($500) in the aggregate.
Washington, D.C. 20402-0001, website: http://bookstore.gpo.gov
on January 1, 2012. This rule does not incorporate any subse- NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in
quent amendments or additions to the Code of Federal support of or in opposition to this proposed amendment with the
Regulationsin 48 CFR Chapter 3, Subchapter A, Part 303. Missouri Highways and Transportation Commission, Pamela J.
Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box
AUTHORITY: sections 226.020, [RSMo 2000 and] 226.030, and 270, Jefferson City, MO 65102 or [email protected]. To
227.107, RSMo [Supp. 2004] 2016. Original rule filed Aug. 15, be considered, comments must be received within thirty (30) days after
2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017. publication of this notice in theMissouri Register. No public hearing
is scheduled.
PUBLIC COST: This proposed amendment will not cost state agen-
cies or political subdivisions more than five hundred dollars ($500)
in the aggregate. Title 7—DEPARTMENT OF TRANSPORTATION
Division 10—Missouri Highways and Transportation
PRIVATE COST: This proposed amendment will not cost private enti- Commission
ties more than five hundred dollars ($500) in the aggregate. Chapter 24—Design-Build Project Contracts
NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in PROPOSED AMENDMENT
support of or in opposition to this proposed amendment with the
Missouri Highways and Transportation Commission, Pamela J. 7 CSR 10-24.110 Solicitation Procedures for Competitive
Harlan, Secretary to the Commission, 105 W. Capitol Avenue, PO Box Proposals.The Missouri Highways and Transportation Commission