| (B) be delivered by hand, certified mail return receipt
requested, or other verifiable delivery service to the contractor
or representative of the contractor who signed the notice of breach
of contract claim; and
(C) state in detail:
(i) the nature of the counterclaim;
(ii) a description of damages or offsets sought, including
the amount and method used to calculate those damages or offsets;
and
(iii) the legal theory supporting the counterclaim.
(3) In addition to the mandatory contents of the notice
of counterclaim required by paragraph (2) of this subsection, the
TDCJ may submit supporting documentation or other tangible evidence
to facilitate the contractor's evaluation of the TDCJ's counterclaim.
(4) The notice of counterclaim shall be delivered to
the contractor no later than 60 days after the TDCJ's receipt of the
contractor's notice of claim.
(5) Nothing herein precludes the TDCJ from initiating
a lawsuit for damages against the contractor in a court of competent
jurisdiction.
(h) Contract Disputes.
(1) To every extent possible, a dispute with a contractor
should be resolved during the course of the contract. However, after
completion of a contract, or when required for orderly performance
prior to completion, if a resolution of a contractor's dispute has
not been reached by the appropriate TDCJ division, the contractor
should file a Notice of Breach of Contract Claim with the director
of Contracts and Procurement per the requirements in subsection (f)
of this section.
(2) The executive director shall name the members and
chairman of a Contract Dispute Committee (the committee), which will
serve at the executive director's request. It shall be the responsibility
of the committee to gather information, study relevant facts and documentation,
meet with contractors and, if requested, to resolve any disputes between
a TDCJ division and the contractor, as set forth by the claim.
(3) The committee shall secure detailed reports and
recommendations from the appropriate TDCJ division and may confer
with TDCJ personnel, other persons, and outside entities that it deems
appropriate.
(4) The committee shall then afford the contractor
an opportunity for a meeting or hearing to discuss the claim and to
provide the contractor an opportunity to present additional relevant
information and respond to information the committee has received
from the appropriate TDCJ division.
(5) The committee chairman shall give written notice
of the committee's proposed disposition of the claim to the contractor
and the appropriate TDCJ division. If that disposition is acceptable,
the contractor shall advise the committee chairman in writing within
20 days of the date such notice is received, and the committee chairman
shall forward the agreed disposition to the executive director for
a final and binding order on the claim. If the contractor or TDCJ
division is dissatisfied with the proposal of the committee, either
party may appeal to the executive director.
(i) Appeal to the Executive Director.
(1) An aggrieved contractor or TDCJ division may file
a written appeal of the committee's decision to the executive director
within 20 days of the receipt of the committee's decision. The contractor's
appeal shall be submitted in writing and signed by the contractor
or the contractor's authorized representative and delivered by hand,
certified mail return receipt requested, or other verifiable delivery
service to the TDCJ Executive Director, P.O. Box 99, Huntsville, Texas
77342. The TDCJ division's appeal shall be in writing and signed by
the appropriate division director. The executive director or designee
may uphold, reverse, or modify the decision of the committee.
(2) The executive director or designee shall give written
notice of the disposition of the claim to the contractor and the appropriate
TDCJ division. If that disposition is acceptable to the contractor,
the contractor shall advise the executive director, in writing, within
20 days of the date such notice is received. The TDCJ division shall
have no right to object to the disposition of the claim or dispute
made by the executive director or designee.
(j) Appeal to the TBCJ with Respect to Certain Contracts.
A contractor who operates or manages a secure correctional facility
of the TDCJ may appeal to the TBCJ for final determination, within
20 days of the executive director's decision, any imposed sanction
under the contract. The appeal shall be submitted in writing and signed
by the contractor or the contractor's authorized representative and
delivered by hand, certified mail return receipt requested, or other
verifiable delivery service to the TBCJ, P.O. Box 13084, Austin, Texas
78711.
(k) Request for Voluntary Disclosure of Additional
Information.
(1) Upon the filing of a claim or counterclaim, each
party may request to review and copy information in the possession,
custody, or control of the other party that pertains to the contract
claimed to have been breached, including, without limitation:
(A) accounting records;
(B) correspondence between the TDCJ and outside consultants
it used when preparing its bid solicitation or any part thereof or
in administering the contract, and correspondence between the contractor
and its subcontractors, material men, and vendors;
(C) schedules;
(D) the parties' internal memoranda; and
(E) documents created by the contractor in preparing
its offer to the TDCJ and documents created by the TDCJ in analyzing
the offers it received in response to a solicitation.
(2) This subsection applies to all information in the
parties' possession regardless of the manner in which it is recorded,
including, without limitation, paper and electronic media.
(3) The contractor and the TDCJ may seek additional
information directly from third-parties, including, without limitation,
the TDCJ's third-party consultants and the contractor's subcontractors.
(4) Nothing in this subsection requires any party to
disclose any information or any matter that is privileged under Texas
law.
(5) Requests submitted pursuant to this subsection
for material claimed to be confidential by the contractor shall be
handled pursuant to the requirements of the Public
Information Act.
(l) Duty to Negotiate. The parties shall negotiate
in accordance with the timetable set forth in subsection (m) of this
section to resolve all claims and counterclaims. No party is obligated
to settle with the other party as a result of the negotiation.
(m) Negotiation Timetable.
(1) Following receipt of a contractor's notice of claim,
the committee shall review the contractor's claim(s) and the TDCJ's
counterclaim(s), if any, and shall initiate negotiations with the
contractor to resolve the claim(s) and counterclaim(s).
(2) The parties shall begin negotiations within a reasonable
period of time, not to exceed 120 days following the date the TDCJ
receives the contractor's notice of claim.
(3) The parties may conduct negotiations according
to an agreed schedule provided negotiations begin no later than the
deadline set forth in paragraph (2) of this subsection.
(4) Subject to paragraph (5) of this subsection, the
parties shall complete the negotiations required by this subsection
as a prerequisite to a contractor's request for contested case hearing
no later than 270 days after the TDCJ receives the contractor's notice
of claim.
(5) The parties may agree in writing to extend the
time for negotiations on or before the 270th day after the TDCJ receives
the contractor's notice of claim. The agreement shall be signed by
representatives of the parties with authority to bind each respective
party and shall provide for the extension of the statutory negotiation
period until a certain date. The parties may enter into a series of
written extension agreements that comply with the requirements of
this section.
(6) The contractor may request, in writing, a contested
case hearing before the State Office of Administrative Hearings (SOAH)
pursuant to subsection (q) of this section after the 270th day after
the TDCJ receives the contractor's notice of claim or the expiration
of any extension agreed to under paragraph (5) of this subsection.
(7) The parties may agree to mediate the dispute at
any time before the 120th day after the TDCJ receives the contractor's
notice of claim or before the expiration of any extension agreed to
by the parties pursuant to paragraph (5) of this subsection. The mediation
shall be governed by subsections (r), (s), (t), (u), (v), and (w)
of this section.
Cont'd... |
