| (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.
(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.
Cont'd... |
