| (a) Purpose. Government Code, Chapter 2260, provides
a resolution process for certain contract claims against the state.
This section governs the filing, negotiation, and mediation of such
a claim.
(b) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Claim--A claim for breach of a contract between
a vendor and the department.
(2) Contract--A written contract, other than a contract
specified in §9.2(a)(1) of this subchapter (relating to Contract
Claim Procedure), between the department and a vendor for goods or
services.
(3) Department--The Texas Department of Transportation.
(4) Director of contract services--The director of
the department's Contract Services Office.
(5) Executive director--The executive director of the
department or the director's designee.
(6) Vendor--An individual, partnership, corporation,
or other entity that is a party to a contract with the department.
(c) Filing of claim. A vendor may file a notice of
claim with the director of contract services within 180 days after
the date of the event giving rise to the claim. The claim must contain
the:
(1) nature of the alleged breach;
(2) amount the vendor seeks as damages; and
(3) legal theory of recovery.
(d) Negotiation.
(1) The executive director will begin negotiations
with the vendor to resolve the claim. The negotiations will begin
no later than the 120th day after the date the claim is received.
(2) The negotiation may be written or oral. The executive
director may afford the vendor an opportunity for a meeting to informally
discuss the disputed matters and provide the vendor an opportunity
to present relevant information.
(e) Mediation.
(1) The department and the vendor may agree to nonbinding
mediation. The department will agree to mediation if the executive
director determines that the mediation may speed resolution of the
claim or otherwise benefit the department.
(2) The executive director will appoint a department
employee as mediator. The employee must not have had any previous
involvement or participation in the administration of the contract
or the resolution of the claim.
(3) If the vendor objects to the appointment of a department
employee as mediator, the department will select and hire a private
mediator from outside the department. The costs for the services of
a private mediator will be apportioned equally between the department
and the vendor.
(4) The role of a mediator is limited to assisting
the parties in attempting to reach an agreed resolution of the issues.
(f) Final offer.
(1) The executive director will make a final offer
to the vendor within 90 days of beginning negotiations.
(2) If the disposition is acceptable to the vendor,
the vendor shall advise the director of contract services in writing
within 20 days of the date of the final offer. The department will
forward an agreed disposition involving payment to the vendor for
a final and binding order on the claim.
(g) Contested case hearing. If the vendor is dissatisfied
with the final offer, or if the claim is not resolved before the 90th
day after negotiations begin, the vendor may petition the executive
director for an administrative hearing to litigate the unresolved
issues in the claim under the provisions of §1.21 et seq. of
this title (relating to Procedures in Contested Case).
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| Source Note: The provisions of this §9.1 adopted to be effective July 23, 2000, 25 TexReg 6804; amended to be effective December 8, 2005, 30 TexReg 8180; amended to be effective November 15, 2012, 37 TexReg 8977 |
