| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the award of compensatory damages caused by certain |
|
|
delays under governmental construction contracts. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Subchapter Z, Chapter 2252, Government Code, is |
|
|
amended by adding Section 2252.909 to read as follows: |
|
|
Sec. 2252.909. COMPENSATORY DAMAGES CAUSED BY GOVERNMENTAL |
|
|
DELAYS IN CONSTRUCTION CONTRACTS. (a) In this section: |
|
|
(1) "Compensatory damages" means the costs actually |
|
|
incurred by a contractor as a result of delay in the schedule that |
|
|
could not be reasonably mitigated by the contractor. The term does |
|
|
not include: |
|
|
(A) special damages; |
|
|
(B) consequential damages; |
|
|
(C) home office overhead, except overhead costs |
|
|
for labor as defined in the applicable construction contract; |
|
|
(D) profit or markup on indirect costs; |
|
|
(E) the costs of performing additional work that |
|
|
are separately agreed to by the governmental entity and contractor |
|
|
in a construction contract; or |
|
|
(F) indirect costs not related to the project in |
|
|
the applicable construction contract. |
|
|
(2) "Contractor" means a person engaged in the |
|
|
business of developing, constructing, fabricating, repairing, |
|
|
altering, or remodeling improvements to real property. |
|
|
(3) "Governmental entity" means: |
|
|
(A) the state; |
|
|
(B) a municipality, county, public school |
|
|
district, or special-purpose district or authority; |
|
|
(C) a district, county, or justice of the peace |
|
|
court; |
|
|
(D) a board, commission, department, office, or |
|
|
other agency in the executive branch of state government, including |
|
|
an institution of higher education as defined by Section 61.003, |
|
|
Education Code; |
|
|
(E) the legislature or a legislative agency; or |
|
|
(F) the Supreme Court of Texas, the Texas Court |
|
|
of Criminal Appeals, a court of appeals, or the State Bar of Texas |
|
|
or another judicial agency having statewide jurisdiction. |
|
|
(b) A provision of a construction contract between a |
|
|
governmental entity and a contractor may not prohibit the award of |
|
|
compensatory damages to the contractor for a delay to the extent |
|
|
that the delay is caused solely by the governmental entity or by a |
|
|
party for which the governmental entity is responsible. |
|
|
(c) This section does not restrict, limit, or prohibit the |
|
|
inclusion of a contract provision in a construction contract |
|
|
prescribing requirements or conditions that must be met by a |
|
|
contractor to seek recovery of compensatory damages, including |
|
|
requirements or conditions relating to notice, justification, or a |
|
|
duty to mitigate or for demonstrating or proving the actual cost or |
|
|
schedule impact of a delay. |
|
|
(d) This section may not be waived. A purported waiver of |
|
|
this section in violation of this subsection is void. |
|
|
(e) This section does not apply to a construction contract |
|
|
for: |
|
|
(1) services related to recovery or relief from a |
|
|
natural disaster involving the repair or renovation of a residence; |
|
|
or |
|
|
(2) the construction or repair of a critical |
|
|
infrastructure facility, as that term is defined by Section 59.001, |
|
|
Business & Commerce Code, owned or operated by the governmental |
|
|
entity or any building, structure, improvement, appurtenance, or |
|
|
other facility owned by the governmental entity that is necessary |
|
|
to the operation of and directly related to the critical |
|
|
infrastructure facility. |
|
|
SECTION 2. Section 2252.909, Government Code, as added by |
|
|
this Act, applies only to a construction contract entered into on or |
|
|
after the effective date of this Act. |
|
|
SECTION 3. This Act takes effect September 1, 2023. |