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