| (1) A disputes board is not a supervisory, advisory,
or facilitating body and has no role other than as expressly described
in the CDA or design-build contract, including, if applicable, any
disputes board agreement.
(2) A disputes board member shall not have a financial
interest in the CDA or design-build contract, in any contract or the
facility that is the subject of the CDA or design-build contract,
or in the outcome of any claim decided under the CDA or design-build
contract, except for payments to that member for services on the disputes
board. Any person appointed as a disputes board member shall disclose
to the parties any circumstances likely to give rise to justifiable
doubt as to such disputes board member's impartiality or independence,
including any bias or any financial or personal interest in the result
of the dispute resolution or any past or present relationship with
the parties or their representatives, or developer's subcontractors
and affiliates.
(3) The scope of a SOAH contested case hearing on an
appeal of a disputes board decision is limited solely to whether disputes
board error occurred.
(h) Punitive damages. A disputes board shall have no
power or jurisdiction to award punitive damages.
(i) Permissive requirements concerning disputes board.
A CDA or design-build contract that authorizes the use of a disputes
board 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 the disputes board
that are not contrary to the specific requirements of this section.
(1) Each party shall endeavor to have a standing list
of candidates from which to select a disputes board member. The CDA
or design-build contract may specify the qualifications to be a board
member, the procedure by which a party nominates a person to the list
of candidates, and the method by which the other party may review
and object to a proposed candidate. All disputes board members are
chosen from the list of candidates of the department or of the developer
or design-build contractor.
(2) A disputes board conducts its proceedings in accordance
with procedural rules specified in the CDA or design-build contract.
The disputes board may allow for discovery similar to that allowed
under the Texas Rules of Civil Procedure, and the admission of evidence
conforming to the Texas Rules of Evidence, but may allow for exceptions
to or deviations from such requirements and rules.
(3) The parties may jointly modify the procedure applicable
to the disputes board's proceedings, under the provisions of the CDA
or design-build contract.
(4) During the period that a disputes board member
is serving on a disputes board, neither party may communicate ex parte
with that member. A party may not communicate ex parte with a person
on its list of candidates to be a disputes board member regarding
the substance of a dispute.
(5) Each party is responsible for paying one-half the
costs of all facilities, fees, support services costs, and other expenses
of a disputes board.
(6) A disputes board does not have the authority to
order that one party compensate the other party for attorney's fees
and expenses.
(j) Permissive requirements on a contested case hearing.
A CDA or design-build contract that authorizes the use of a contract
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 a contested case hearing that are not contrary
to the specific requirements of this section.
(1) The executive director's referral of a developer's
request to SOAH for a contested case hearing as to whether a decision
by a disputes board was affected by disputes board error is a purely
ministerial act.
(2) If a determination is made after a contested case
hearing that disputes board error occurred, the dispute shall be remanded
to a disputes board for further consideration, except that if the
error is lack of authority to hear the claim, the decision of the
disputes board shall be vacated.
(3) The executive director's issuance of a final order
following a contested case hearing is a purely ministerial act, and
that if by inaction the executive director does not issue a final
order within the time frame established by the CDA or design-build
contract, then a final order in a form recommended by the administrative
law judge shall be deemed to be automatically issued.
(4) As allowed by Government Code, §2001.144 and §2001.145,
an order issued by the executive director after a contested case hearing
is final on the date issued and no motion for rehearing is required
to appeal the final order.
(5) An executive director's order remanding a dispute
to a disputes board, or an executive director's order implementing
a disputes board decision following a contested case hearing before
SOAH, are subject to judicial review under Government Code, Chapter
2001, under the substantial evidence rule. Review is limited to whether
disputes board error occurred.
(k) Other department rules on a contested case hearing.
(1) The parties may agree in the CDA or design-build
contract to adopt, modify or not follow procedural provisions, deadlines,
evidentiary rules, and any other matters set out in Chapter 1, Subchapter
E of this title (relating to Procedures in Contested Cases).
(2) In the event of any conflict or difference between
the procedures set out in this section or a CDA or design-build contract,
and in Chapter 1, Subchapter E, of this title, the procedures in this
section or the CDA or design-build contract shall govern with respect
to any proceeding before SOAH.
(3) In the event of an appeal to SOAH of a disputes
board decision:
(A) the department shall present a copy of this section
to SOAH as a written statement of applicable rules or policies, under
Government Code, §2001.058(c); and
(B) the parties shall request that the administrative
law judge modify and supplement SOAH contested case procedures as
necessary or appropriate, and consider this section, consistent with
1 TAC §155.3 (relating to Application and Construction of this
Chapter).
(C) the parties shall provide the administrative law
judge with a stipulation that the substantive provisions, scope of
review, and procedural provisions of this section and the CDA or design-build
contract shall apply to and govern the contested case proceeding before
SOAH, consistent with 1 TAC §155.417 (relating to Stipulations).
(l) Mandamus relief. Nothing in this section shall
restrict a developer's or design-build contractor's rights to seek
mandamus relief pursuant to Government Code, §22.002(c) if the
executive director fails to perform one or more of the ministerial
acts set out in this section and included in the CDA or design-build
contract as a ministerial act, or any other act specified in the CDA
or design-build contract as a ministerial act.
(m) Confidential information.
(1) The parties may agree that, with respect to the
mandatory informal dispute resolution process required under subsection
(d)(2) of this section, communications between the parties to resolve
a dispute, and all documents and other written materials furnished
to a party or exchanged between the parties during any such informal
resolution procedure, shall be considered confidential and not subject
to disclosure by either party.
(2) The parties may agree that with respect to a proceeding
before the disputes board, an administrative hearing before an administrative
law judge, or a judicial proceeding in court, either or both parties
may request a protective order to prohibit disclosure to third persons
of information that the party believes is a trade secret, proprietary,
or otherwise entitled to confidentiality under applicable law.
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