| (a) Purpose. This section concerns processing and resolution
of a claim under Transportation Code, §201.112 that arises under
a comprehensive development agreement (CDA) or design-build contract.
(b) Applicability.
(1) The executive director may enter into a CDA or
design-build contract containing a claim procedure and provisions
authorized by this section. When a claim arises under a CDA or design-build
contract containing a claim procedure authorized by this section,
the requirements of this section apply, §9.2 of this subchapter
(relating to Contract Claim Procedure) does not apply, and the parties
shall follow the claim procedure contained in the CDA or design-build
contract and shall be bound by the outcome of the claim procedure.
If a CDA or design-build contract does not contain a claim procedure
authorized by this section, either by express reference to this section
or by inclusion of provisions required or permitted by this section,
then a claim under the agreement shall be processed and resolved under §9.2
of this subchapter.
(2) The claim procedure and provisions authorized by
this section may be applied to claims that arise under the CDA or
design-build contract, related agreements that collectively constitute
a CDA or design-build contract, or other agreements entered into with
or for the benefit of the department in connection with the CDA or
design-build contract. A CDA or design-build contract shall identify
the related agreements and any other agreements to which the claim
procedure and provisions apply.
(3) This section and §9.2 of this subchapter do
not affect or impede the department's or the developer's or design-build
contractor's rights to seek judicial relief in connection with the
following types of actions or proceedings, and the claim procedures
and provisions in this section or in §9.2 of this subchapter
do not apply to such actions:
(A) equitable relief that the department is permitted
to seek to the extent allowed by law;
(B) mandamus action that a developer or design-build
contractor is permitted to bring against the department or the executive
director under Government Code, §22.002(c);
(C) mandamus relief sought by a developer under Transportation
Code, §223.208(e) (relating to termination compensation and related
security obligations); or
(D) other matters or disputes expressly excluded from
the dispute resolution procedures authorized by this section, as specified
in the CDA or design-build contract or other related agreement between
the department and the developer or design-build contractor that is
part of the CDA or design-build contract.
(c) Definitions. The following words and terms, when
used in this chapter, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Claim--A claim for compensation, or other dispute,
disagreement, or controversy concerning respective rights, obligations,
and remedies under the CDA or design-build contract, or under related
agreements that collectively constitute a CDA or design-build contract
or other agreements entered into with or for the benefit of the department
in connection with the CDA or design-build contract, including any
alleged breach or failure to perform.
(2) Comprehensive development agreement (CDA)--An agreement
with a developer that, at a minimum, provides for the design and construction,
reconstruction, extension, expansion, or improvement of a project
described in Transportation Code, §223.201(a), and may also provide
for the financing, acquisition, maintenance, or operation of such
a project. A CDA is also authorized under Transportation Code, §91.054
(rail facilities). A CDA includes related agreements that collectively
constitute a CDA or other agreements entered into with or for the
benefit of the department in connection with the CDA.
(3) Department--The Texas Department of Transportation.
(4) Design-build contract--An agreement with a design-build
contractor for a highway project with estimated total project costs
of $500 million or more that includes both design and construction
services for the construction, expansion, extension, related capital
maintenance, rehabilitation, alteration, or repair of the highway
project.
(5) Design-build contractor--A partnership, corporation,
or other legal entity or team that enters into a design-build contract
with the department.
(6) Developer--The private entity or entities that
enter into a CDA with the department.
(7) Disputes board--A group of one or more individuals
appointed under the terms of a CDA or design-build contract to fairly
and impartially consider and decide a claim between the department
and a developer or design-build contractor.
(8) Disputes board error--One or more of the following
actions:
(A) a disputes board acted beyond the limits of its
authority established under subsection (b)(3) of this section;
(B) a disputes board failed, in any material respect,
to properly follow or apply the procedure for handling, hearing and
deciding a claim established under the CDA or design-build contract
and the failure prejudiced the rights of a party;
(C) a disputes board decision was procured by, or there
was evident partiality by a disputes board member due to a conflict
of interest (which may be defined in the CDA or design-build contract),
misconduct (which may be defined in the CDA or design-build contract),
corruption, or fraud; or
(D) any other error that the parties agree may be the
subject of a contested case hearing, as set out in the CDA or design-build
contract.
(9) Executive director--The executive director of the
Texas Department of Transportation.
(10) Party--The department, or a developer or design-build
contractor who has entered into a CDA or design-build contract with
the department. The department and the developer or design-build contractor
are together referred to as the "parties."
(11) SOAH--State Office of Administrative Hearings.
(d) Mandatory requirements. A CDA or design-build contract
that authorizes the use of a claim procedure authorized by this section
shall include (or incorporate by reference) provisions substantially
consistent with the provisions in this subsection, but such provisions
need not apply to claims excluded from the claim procedure under subsection
(b)(3) of this section.
(1) A claim under the CDA or design-build contract
that is not resolved by the informal dispute resolution process set
forth in the CDA or design-build contract shall be referred to a disputes
board for rendering of a disputes board decision on the claim.
(2) The processing of a claim shall include a mandatory
informal dispute resolution process, such as mediation, and a mandatory
dispute resolution procedure using a disputes board.
(3) The party making a claim shall include in its notice
of the claim a certification by an authorized or designated representative
to the effect that:
(A) the claim is made in good faith;
(B) to the current knowledge of the party, except as
to matters stated in the notice of claim as being unknown or subject
to discovery, the supporting data is reasonably believed by the party
to be accurate and complete, and the description of the claim contained
in the certification accurately reflects the amount of money or other
right, remedy, or relief to which the party asserting the claim reasonably
believes it is entitled; and
(C) the representative is duly authorized to execute
and deliver the certificate on behalf of the party.
(4) The certification required under paragraph (3)
of this subsection, if defective, shall not deprive a disputes board
of jurisdiction over the claim. Prior to the entry by the disputes
board of a final decision on the claim, the disputes board shall require
a defective certification to be corrected.
(e) Permissive requirements. A CDA or design-build
contract that provides for a claim procedure authorized by this section
may include (or incorporate by reference) any or all of the provisions
in this subsection, or provisions substantially consistent with them,
and other terms and conditions regarding claim resolution that are
not contrary to the mandatory requirements of this section.
(1) The executive director shall adopt the decision
of a disputes board as a ministerial act, subject to a party's right
to request a contested case hearing in accordance with the terms of
the CDA or design-build contract as to whether disputes board error
occurred.
(2) A decision by a disputes board, upon completion
of the procedure required in Transportation Code, §201.112, this
section, and in the CDA or design-build contract, is final, conclusive,
binding upon, and enforceable against the parties, subject to any
appeals allowed by the CDA or design-build contract or this section.
(3) A disputes board, upon issuing a decision on a
claim, is authorized to direct that an award be paid from the proceeds
of any trust or other pool of project funds that the CDA or design-build
contract provides shall be available for payment of such claims.
(4) The executive director's discretion or actions
in connection with the resolution of a claim are limited or may be
purely ministerial in certain circumstances, including:
(A) adoption of the disputes board's decision absent
disputes board error;
(B) referral of a disputes board decision to SOAH to
determine whether disputes board error occurred; and
(C) issuance of a final order based on the SOAH administrative
law judge's proposal for decision.
(5) Certain claims may be categorized and treated by
the parties as expedited claims, and informal resolution procedures
shall be expedited for such claims.
(6) Certain claims may be categorized and treated by
the parties as small claims, and informal resolution procedures shall
be expedited for such claims.
(7) The parties may execute a related disputes board
agreement, or similar agreement, which shall be part of the CDA or
design-build contract and which may govern all aspects of the creation
of and procedures to be followed by a disputes board.
(8) The evidence presented to a SOAH administrative
law judge in a hearing regarding a claim, and to the Travis County
District Court in any appeal, may include: the disputes board's written
findings of fact, conclusions of law, and decision; any written dissenting
findings, recommendation, or opinions of a disputes board member;
all submissions to the disputes board by the parties; and an independent
engineer's written evaluations, opinions, findings, reports, recommendations,
objections, decisions, certifications, or other determinations, if
any, delivered to the parties pursuant to the CDA or design-build
contract and related to the claim under consideration.
(9) Certain decisions, orders, or determinations of
the executive director may be deemed to have been issued as of a certain
date, or after a prescribed number of days, and setting out the parameters
of the deemed decision, order, or determination.
(10) The parties are authorized and required to comply
with all or certain categories of interim orders of the disputes board,
including discovery and procedural orders.
(11) Except as agreed to by the parties in writing,
a disputes board shall have no power to alter or modify any terms
or provisions of the CDA or design-build contract, or to render any
award that, by its terms or effects, would alter or modify any term
or provision of the CDA or design-build contract. Notwithstanding
the prior sentence, a disputes board decision that contains error
in interpretation or application of a term or provision of the CDA
or design-build contract but does not otherwise purport to alter or
modify terms or provisions of the CDA or design-build contract may
not be appealed on grounds of such error; and such error does not
deprive the disputes board of power or authority over the claim.
(12) A developer's claim for termination compensation,
or to enforce the department's security obligations that secure payment
of termination compensation, is not to be resolved under any dispute
resolution procedure in the CDA. Rather, a developer may exercise
its rights under Transportation Code, §223.208(e) (relating to
Terms of Private Participation) by seeking mandamus against the department.
(13) At all times during the processing of a contract
claim, the developer or design-build contractor and its subcontractors
shall continue with the performance of the work and their obligations,
including any disputed work or obligations, diligently and without
delay, in accordance with the CDA or design-build contract, except
to the extent enjoined by order of a court or otherwise ordered or
approved by the department in its sole discretion.
(f) Pass-through claim. A CDA or design-build contract
may provide that a developer or design-build contractor who is a party
to a CDA or design-build contract with the department may make a claim
on behalf of a subcontractor. In order to make such a claim the developer
or design-build contractor must be liable to the subcontractor on
the claim.
(g) Mandatory requirements concerning disputes board.
A CDA or design-build contract that authorizes the use of a disputes
board shall include (or incorporate by reference) provisions substantially
consistent with the provisions in this subsection.
Cont'd... |
