| hearing provided in subparagraph
(D)(ii) of this paragraph.
(D) The committee chairman shall give written notice
of the committee's decision on the claim to the department and prime
contractor. The department and prime contractor are presumed to receive
the decision three days after it is sent by United States mail.
(i) If the prime contractor does not object to the
committee's decision, the prime contractor shall file a written statement
with the committee's chairman stating that the prime contractor does
not object. The prime contractor shall file the statement no later
than 20 days after receipt of the committee's decision. The chairman
shall then prepare a document showing the settlement of the claim
including, when required, payment to the prime contractor, and the
prime contractor's release of all claims under the contract. The prime
contractor shall sign it. The executive director may approve the settlement,
or may request the commission to approve the settlement by issuance
of an order. The executive director shall then implement the resolution
of the claim. If contemplated in the committee's decision, the executive
director shall expend funds as specified in the decision. If contemplated
in the committee's decision, the executive director shall order the
prime contractor to make payment to the department.
(ii) If the prime contractor objects to the committee's
decision the prime contractor shall file a petition with the executive
director no later than 20 days after receipt of the committee's decision
requesting an administrative hearing to litigate the claim under the
provisions of §§1.21 et seq. of this title (relating to
Procedures in Contested Cases).
(iii) If the prime contractor fails to file a written
petition under clause (ii) of this subparagraph within 20 days of
receipt of the committee's decision, the prime contractor waives his
right to a contested case hearing. All further litigation of claims
on the project or contract by the prime contractor shall be barred
by the doctrines of issue and claim preclusion. The chairman shall
then prepare an order implementing the resolution of the claim under
the committee's decision, and stating that further litigation on the
claim is prohibited. The executive director shall then issue the order
and implement the resolution of the claim. If contemplated in the
committee's decision, the executive director shall expend funds as
specified in the decision. If contemplated in the committee's decision,
the executive director shall order the prime contractor to make payment
to the department.
(4) Decision after contested case hearing. This paragraph
applies if a contested case hearing has been held on a claim. The
administrative law judge's proposal for decision shall be submitted
to the executive director for adoption. The executive director may
change a finding of fact or conclusion of law made by the administrative
law judge or may vacate or modify an order issued by the administrative
law judge. The executive director shall provide a written statement
containing the reason and legal basis for any change.
(5) This section does not abrogate the department's
authority to enforce in a court of competent jurisdiction a final
department order issued under the section.
(h) Claim forfeiture. A claim against the department
shall be forfeited to the department by any person who corruptly practices
or attempts to practice any fraud against the department in the proof,
statement, establishment, or allowance thereof. In such cases the
department shall specifically find such fraud or attempt and render
judgment of forfeiture. This subsection applies only if there is clear
and convincing evidence that a person knowingly presented a false
claim for the purpose of getting paid for the claim.
(i) Relation of contract claim proceeding and sanction
proceeding.
(1) Except as provided in paragraphs (2) and (3) of
this subsection, the processing of a contract claim under this section
is a separate proceeding.
(2) If a contested issue arises that is relevant both
to a contract claim proceeding and a sanction proceeding concerning
the same contract, the issue shall be resolved in the proceeding that
the executive director refers first for a contested case hearing under
Chapter 1, Subchapter E of this title (relating to Procedures in Contested
Cases). If the issue is decided in the first proceeding that decision
shall apply to and be binding in all subsequent department proceedings.
(3) This paragraph applies to a contract under which
the parties agreed to submit questions which may arise to the decision
of a department engineer. If a dispute under the contract leads to
a contract claim proceeding or sanction proceeding, the engineer's
decision shall be upheld unless it was based on fraud, misconduct,
or such gross mistake as would imply bad faith or failure to exercise
an honest judgment.
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| Source Note: The provisions of this §9.2 adopted to be effective December 7, 2006, 31 TexReg 9749; amended to be effective July 19, 2007, 32 TexReg 4448; amended to be effective September 20, 2012, 37 TexReg 7299; amended to be effective September 19, 2018, 43 TexReg 5996 |
