| (a) Purpose. In accordance with Texas Government Code
Chapter 2260, the purpose of this rule is to establish procedures
for the Texas Juvenile Justice Department (TJJD) and its contractors
to engage in negotiation and/or mediation procedures to resolve certain
disputes involving claims of breach of a written contract. These procedures
are not intended to replace the process to resolve any disagreement
concerning the contract in the ordinary course of contract administration
under less formal procedures specified in the parties' contract.
(b) Applicability.
(1) This rule applies to TJJD and its contractors,
as defined in Texas Government Code §2260.001.
(2) This rule does not apply to:
(A) a claim for personal injury or wrongful death arising
from a breach of contract;
(B) an action of TJJD for which a contractor is entitled
to a specific remedy pursuant to state or federal constitution or
statute;
(C) a contract action proposed or taken by TJJD for
which a contractor receiving Medicaid funds under that contract is
entitled by state statute or rule to a hearing conducted in accordance
with Texas Government Code Chapter 2001;
(D) a contract that is solely and entirely funded by
federal grant monies other than for a project defined in Texas Government
Code §2166.001;
(E) a contract between TJJD and the federal government
or its agencies, another state, or another nation;
(F) a contract between TJJD and another unit of state
government;
(G) a contract between TJJD and a local governmental
body or a political subdivision of another state;
(H) a claim from a contractor's subcontractor, officer,
employee, agent, or other persons furnishing goods or services to
a contractor;
(I) a contract within the exclusive jurisdiction of
state or local regulatory bodies; or
(J) a contract within the exclusive jurisdiction of
federal courts or regulatory bodies.
(c) Sovereign Immunity.
(1) To the extent allowed by law, this rule does not
waive TJJD's sovereign immunity to suit or liability.
(2) The procedures contained in this rule are exclusive
and required prerequisites to suit under Texas Civil Practice and
Remedies Code Chapter 107, and Texas Government Code Chapter 2260.
(d) Contract Claims.
(1) Notice of Claim of Breach of Contract.
(A) A contractor asserting a claim for breach of contract
under Texas Government Code Chapter 2260 must file notice of the claim
as provided by this subsection.
(B) The notice of claim must:
(i) be submitted no later than 180 days after the date
of the event that the contractor asserts as the basis of the claim;
(ii) be delivered by hand, certified mail return receipt
requested, or other verifiable delivery service to the individual
stated in the contract or to the executive director if no individual
is identified;
(iii) state in detail:
(I) the nature of the alleged breach of contract, including
the date of the event that the contractor asserts as the basis of
the claim and each contractual provision allegedly breached;
(II) a description of damages that resulted from the
alleged breach, including the amount and method used to calculate
those damages; and
(III) the legal theory of recovery, i.e., breach of
contract, including the causal relationship between the alleged breach
and the damages claimed;
(iv) provide supporting documentation or other tangible
evidence to facilitate TJJD's evaluation of the claim; and
(v) be signed by the contractor or the contractor's
authorized representative.
(2) Counterclaim by TJJD.
(A) In order to assert a counterclaim, TJJD must file
notice of the counterclaim not later than 60 days after the date of
the contractor's notice of claim.
(B) The notice of counterclaim must:
(i) be submitted in writing;
(ii) be delivered by hand, certified mail return receipt
requested, or other verifiable delivery service to the contractor
or representative of the contractor;
(iii) state in detail:
(I) the nature of the counterclaim;
(II) a description of damages or offsets sought, including
the amount and method used to calculate those damages or offsets;
and
(III) the legal theory supporting the counterclaim
recovery, i.e., breach of contract, including the causal relationship
between the alleged breach and the damages claimed;
(iv) provide supporting documentation or other tangible
evidence to facilitate the contractor's evaluation of TJJD's counterclaim;
and
(v) be signed by the executive director or his/her
designee.
(C) Nothing in this rule precludes TJJD from initiating
a lawsuit for damages against the contractor in a court of competent
jurisdiction.
(e) Negotiation.
(1) The parties may conduct negotiations of claims
and counterclaims within a reasonable period of time as long as the
negotiations start prior to the 120th day following the date TJJD
receives the contractor's notice of claim.
(2) The parties must complete the negotiations as provided
by this rule as a prerequisite to a contractor's request for contested
case hearing no later than 270 days after TJJD receives the contractor's
notice of claim unless the parties agree in writing to extend the
time for negotiations.
(3) The parties may conduct negotiations with the assistance
of one or more neutral third parties.
(4) To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange
relevant documents that support their respective claims, defenses,
counterclaims, or positions.
(5) Material submitted pursuant to this subsection
and claimed to be confidential by the contractor are handled pursuant
to the requirements of the Public Information Act.
(6) The agreement may resolve an entire claim or counterclaim
or any designated and severable portion of a claim.
(7) The agreement must be in writing and signed by
representatives of the contractor and TJJD who have authority to bind
each respective party.
(8) A partial settlement does not waive a party's rights
under Texas Government Code Chapter 2260 to proceed on the parts of
the claims or counterclaims that are not resolved.
(9) Unless the parties agree otherwise, each party
is responsible for its own costs incurred in connection with a negotiation,
including, without limitation, the costs of attorney's fees, consultant's
fees, and expert's fees.
(f) Mediation.
(1) The parties may agree to mediate the dispute at
any time before the 120th day after TJJD receives the contractor's
notice of claim or before the expiration of any written extension
agreed to by the parties.
(2) The parties may mediate the dispute even after
the case has been referred to the State Office of Administrative Hearings
(SOAH) for a contested case. 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.
(3) The mediation is subject to the provisions of the
Governmental Dispute Resolution Act, Texas Government Code Chapter
2009. For purposes of this rule, mediation is assigned the meaning
set forth in the Texas Civil Practice and Remedies Code §154.023.
(4) To facilitate a meaningful opportunity for settlement,
the parties must, to the extent possible, select representatives who
are knowledgeable about the dispute and:
(A) who are in a position to reach agreement; or
(B) who can credibly recommend approval of an agreement.
(5) Sources of mediators include governmental officers
or employees who are qualified as mediators under Texas Civil Practice
and Remedies Code §154.052, private mediators, SOAH, the Center
for Public Policy Dispute Resolution at the University of Texas School
of Law, an alternative dispute resolution system created under Texas
Civil Practice and Remedies Code Chapter 152, or another state or
federal agency or through a pooling agreement with several state agencies.
(6) The confidentiality of a final settlement agreement
to which TJJD is a signatory that is reached as a result of the mediation
is governed by Texas Government Code Chapter 552.
Cont'd... |
