| (8) Nothing in this subsection is intended to prevent
the parties from agreeing to commence negotiations earlier than the
deadlines established in paragraph (2) of this subsection, or from
continuing or resuming negotiations after the contractor requests
a contested case hearing before the SOAH.
(n) Conduct of Negotiation.
(1) A negotiation under this subchapter may be conducted
by any method, technique, or procedure authorized under the contract
or agreed upon by the parties, including, without limitation, negotiation
in person, by telephone, by correspondence, by video conference, or
by any other method which permits the parties to identify respective
positions, discuss respective differences, confer with respective
advisers, exchange offers of settlement, and settle.
(2) The parties may conduct negotiations with the assistance
of one or more neutral third-parties. If the parties choose to mediate
the dispute, the mediation shall be conducted in accordance with subsections
(r), (s), (t), (u), (v), and (w) of this section. Parties may choose
an assisted negotiation process other than mediation, including, without
limitation, processes such as those described in subsections (x),
(y), and (z) of this section.
(3) To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange
relevant documents that support the respective claims, defenses, counterclaims,
or positions.
(4) Material submitted pursuant to this subsection
and claimed to be confidential by the contractor shall be handled
pursuant to the requirements of the Public
Information Act.
(o) Settlement Agreement.
(1) A settlement agreement may resolve an entire claim
or any designated and severable portion of a claim.
(2) To be enforceable, a settlement agreement shall
be in writing and signed by representatives of the contractor and
the TDCJ who have authority to bind each respective party.
(3) A partial settlement does not waive a party's rights
under Texas Government Code Chapter 2260 as to the parts of the claims
or counterclaims that are not resolved.
(p) Costs of Negotiation. Unless the parties agree
otherwise in writing, each party shall be responsible for its own
costs incurred in connection with a negotiation, including, without
limitation, attorney fees, consultant fees, and expert fees.
(q) Request for Contested Case Hearing.
(1) If a breach of contract claim is not resolved in
its entirety through negotiation, mediation, or other assisted negotiation
process in accordance with this section on or before the 270th day
after the TDCJ receives the notice of claim, or after the expiration
of any extension agreed to by the parties pursuant to subsection (m)(5)
of this section, the contractor may file a request with the TDCJ for
a contested case hearing before the SOAH.
(2) A request for a contested case hearing shall state
the legal and factual basis for the claim and shall be delivered to
the executive director or other officer designated in the contract
to receive notice within a reasonable time after the 270th day or
the expiration of any written extension agreed to pursuant to subsection
(m)(5) of this section.
(3) The TDCJ shall forward the contractor's request
for contested case hearing to the SOAH within a reasonable period
of time, not to exceed 30 days, after receipt of the request.
(4) The parties may agree to submit the case to the
SOAH before the 270th day after the notice of claim is received by
the TDCJ if they have achieved a partial resolution of the claim or
if an impasse has been reached in the negotiations and proceeding
to a contested case hearing would serve the interests of justice.
(r) Mediation Timetable.
(1) The contractor and the TDCJ may agree to mediate
the dispute at any time before the 120th day after the TDCJ receives
a notice of a breach of contract claim, or before the expiration of
any extension agreed to by the parties in writing.
(2) A contractor and the TDCJ may mediate the dispute
even after the case has been referred to the SOAH for a contested
case. The SOAH may also refer a contested case for mediation pursuant
to its own rules and guidelines, whether or not the parties have previously
attempted mediation.
(s) Conduct of Mediation.
(1) The mediation is subject to the provisions of the Governmental Dispute Resolution Act, Texas
Government Code Chapter 2009. For purposes of this subchapter, "mediation"
is assigned the meaning set forth in Texas Civil Practice and Remedies
Code §154.023.
(2) Parties may agree to use mediation as an option
to resolve a breach of contract claim at the time the parties enter
into the contract and include a contractual provision to do so. The
parties may mediate a breach of contract claim even absent a contractual
provision to do so if both parties agree.
(3) In selecting a mediator, the parties should use
the qualifications set forth in subsection (t) of this section. The
mediator shall be acceptable to both parties.
(t) Qualification and Immunity of the Mediator.
(1) The mediator shall possess the qualifications required
under Texas Civil Practice and Remedies Code §154.052, be subject
to the standards and duties prescribed by Texas Civil Practice and
Remedies Code §154.053 and have the qualified immunity prescribed
by Texas Civil Practice and Remedies Code §154.055, if applicable.
(2) The parties should decide whether, and to what
extent, knowledge of the subject matter and experience in mediation
would be advisable for the mediator.
(3) The parties should obtain from the prospective
mediator the ethical standards that shall govern the mediation.
(u) Confidentiality of Mediation and Final Mediated
Settlement Agreement.
(1) A mediation conducted under this section is confidential
in accordance with Texas Government Code §2009.054.
(2) The confidentiality of a final settlement agreement
to which the TDCJ is a signatory that is reached as a result of the
mediation is governed by Texas Government Code Chapter 552.
(v) Costs of Mediation. Unless the contractor and the
TDCJ agree otherwise in writing, each party shall be responsible for
its own costs incurred in connection with the mediation, including
costs of document reproduction for documents requested by such party,
attorney fees, consultant fees or expert fees. The costs of the mediation
process itself shall be divided equally between the parties.
(w) Mediated Settlement Agreement. Any settlement agreement
reached during the mediation shall be signed by the representatives
of the contractor and the TDCJ and describe any procedures required
to be followed by the parties in connection with final approval of
the agreement.
(x) Final Settlement Agreement.
(1) A final settlement agreement reached through mediation
that resolves an entire claim or any designated and severable portion
of a claim, shall be in writing and signed by representatives of the
contractor and the TDCJ who have authority to bind each respective
party.
(2) If the settlement agreement does not resolve all
issues raised by the claim and counterclaim, the agreement shall identify
the issues that are not resolved.
(3) A partial settlement does not waive a party's rights
under Texas Government Code Chapter 2260 as to the parts of the claim
that are not resolved.
(y) Assisted Negotiation Processes. Parties to a contract
dispute under Texas Government Code Chapter 2260 may agree, either
contractually or when a dispute arises, to use assisted negotiation
processes (alternative dispute resolution) in addition to negotiation
and mediation to resolve the dispute.
(z) Factors Supporting the Use of Assisted Negotiation
Processes. The following factors may help the parties decide whether
one or more assisted negotiation processes could help resolve the
dispute:
(1) the parties recognize the benefits of an agreed
resolution of the dispute;
(2) the expense of proceeding to contested case hearing
at the SOAH is substantial and might outweigh any potential recovery;
(3) the parties want an expedited resolution;
(4) the ultimate outcome is uncertain;
(5) there exists factual or technical complexity or
uncertainty that would benefit from the expertise of a third-party
expert for technical assistance or fact-finding;
(6) the parties are having substantial difficulty communicating
effectively;
(7) a mediator third-party could facilitate the parties'
realistic evaluation of the respective cases;
(8) there is an on-going relationship that exists between
the parties;
(9) the parties want to retain control over the outcome;
Cont'd... |
