(a) Applicability. A claim shall satisfy the requirements
in paragraphs (1) - (3) of this subsection.
(1) The claim is under a contract entered into and
administered by the department, acting in its own capacity or as an
agent of a local government, under one of the following statutes:
(A) Transportation Code, §22.018 (concerning the
designation of the department as agent in contracting and supervising
for aviation projects);
(B) Transportation Code, §391.091 (concerning
erection and maintenance of specific information logo, major area
shopping guide, and major agricultural interest signs);
(C) Transportation Code, Chapter 223 (concerning bids
and contracts for highway projects), subject to the provisions of
subsection (c) of this section; or
(D) Government Code, Chapter 2254, Subchapters A and
B (concerning professional or consulting services).
(2) The claim is for compensation, or for a time extension,
or any other remedy.
(3) The claim is brought by a prime contractor.
(b) Pass-through claim; claim and counter claim.
(1) A prime contractor may make a claim on behalf of
a subcontractor only if the prime contractor is liable to the subcontractor
on the claim.
(2) Only a prime contractor may submit a claim to begin
a claim proceeding under this section. After a claim proceeding has
begun the department may make a counter claim.
(3) This section does not abrogate the department's
authority to file a claim in a court of competent jurisdiction. The
procedure for the department to file a claim in a court of competent
jurisdiction, including the deadline to file a claim, is set by other
law.
(c) Claim concerning comprehensive development agreement
or certain design-build contracts. A claim under a comprehensive development
agreement (CDA) entered into under Transportation Code, Chapter 223,
Subchapter E, or under a design-build contract, as defined in §9.6
of this subchapter (relating to Contract Claim Procedure for Comprehensive
Development Agreements and Certain Design-Build Contracts), may be
processed under this section if the parties agree to do so in the
CDA or design-build contract, or if the CDA or design-build contract
does not specify otherwise. However, if the CDA or design-build contract
specifies that a claim procedure authorized by §9.6 of this subchapter
applies, then any claim arising under the CDA, or design-build contract
shall be processed and resolved in accordance with the claim procedure
authorized by §9.6 of this subchapter and not by this section.
(d) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise, except that when used in subsection
(c) of this section, the terms claim, comprehensive development agreement,
CDA, and design-build contract shall have the meanings given such
terms stated in §9.6 of this subchapter.
(1) Claim--A claim for compensation, for a time extension,
or for any other remedy arising from a dispute, disagreement, or controversy
concerning respective rights and obligations under the contract.
(2) Commission--The Texas Transportation Commission.
(3) Committee--The Contract Claim Committee.
(4) Department--The Texas Department of Transportation.
(5) Department office--The department district, division,
or office responsible for the administration of the contract.
(6) Department office director--The chief administrative
officer of the responsible department office; the officer shall be
a district engineer, division director, or office director.
(7) District--One of the 25 districts of the department.
(8) Executive director--The executive director of the
Texas Department of Transportation.
(9) Prime contractor--An individual, partnership, corporation,
or other business entity that is a party to a written contract with
the state of Texas which is entered into and administered by the department
under Transportation Code, §22.018, §391.091, Chapter 223,
or Government Code, Chapter 2254, Subchapters A and B.
(10) Project--The portion of a contract that can be
separated into a distinct facility or work unit from the other work
in the contract.
(e) Contract claim committee. The executive director
or the director's designee shall name the members and chair of a committee
or committees to serve at the executive director's or designee's pleasure.
The chair may add members to the committee, including one or more
district engineers who will be assigned to the committee on a rotating
basis, with a preference, if possible, for district engineers of districts
that do not have a current contractual relationship with the prime
contractor involved in a contract claim.
(f) Negotiated resolution. To every extent possible,
disputes between a prime contractor and the department's project engineer
should be resolved during the course of the contract.
(g) Procedure.
(1) Exclusive procedure. Except as provided in subsection
(c) of this section, a prime contractor shall file a claim under the
procedure in this subsection. A claim filed by the prime contractor
must be considered first by the committee before the claim is considered
in a contested case hearing.
(2) Filing claim.
(A) The prime contractor shall file a claim after completion
of the contract or when required for orderly performance of the contract.
For a claim resulting from the enforcement of a warranty, a prime
contractor shall file the claim no later than one year after expiration
of the warranty period. For all other types of claims, a prime contractor
shall file the claim no later than one year after the earlier of the
date that the department sends to the contractor notice:
(i) that the contractor is in default;
(ii) that the department terminates the contract; or
(iii) notice of final acceptance of the project that
is the subject of the contract.
(B) To file a claim, a prime contractor shall file
a contract claim request and a detailed report that provides the basis
for the claim. The detailed report shall include relevant facts of
the claim, cost or other data supporting the claim, a description
of any additional compensation requested, and documents supporting
the claim. For a request for additional compensation, the prime contractor
may not use a method, however denominated, by which the amount requested
is determined by subtracting the contractor's bid prices from the
contractor's actual performance costs. The prime contractor shall
file the claim with the department's construction division, the department
engineer under whose administration the contract was or is being performed,
or the committee.
(C) A claim filed by a prime contractor shall include
a certification as follows: I certify that the claim is made in good
faith; that the supporting data are accurate and complete to the best
of my knowledge and belief; that the amount requested accurately reflects
the contract adjustment for which the contractor believes the department
is liable; and that I am duly authorized to certify the claim on behalf
of the contractor.
(D) A defective certification shall not deprive the
department of jurisdiction over the claim. Prior to the entry by the
department of a final decision on the claim the department shall require
a defective certification to be corrected.
(E) The construction division or department engineer
shall forward the contract claim request and detailed report to the
committee.
(F) The deadline for the department to file a counter
claim is 45 days before the committee holds an informal meeting under
paragraph (3) of this subsection.
(3) Evaluation of claim by the committee.
(A) The committee's responsibility is to gather information,
study the relevant issues, and meet informally with the prime contractor
if requested. The committee shall attempt to resolve the claim.
(B) The committee shall secure detailed reports and
recommendations from the responsible department office and may confer
with any other department office deemed appropriate by the committee.
The committee shall give the prime contractor the opportunity to submit
a responsive report and recommendation concerning a counter claim
filed by the department.
(C) If the department disputes the prime contractor's
claim, the committee shall afford the prime contractor an opportunity
for a meeting to informally discuss the disputed matters and to provide
the prime contractor an opportunity to present relevant information
and respond to information the committee has received from the department
office. The committee chair, in the chair's sole discretion, may reschedule
a meeting. Proceedings before the committee are an attempt to mutually
resolve a claim without litigation and are not admissible for any
purpose in a formal administrative hearing Cont'd... |