By: Cain S.B. No. 1786
A BILL TO BE ENTITLED
AN ACT
1-1 relating to project contract claims against a unit of state
1-2 government.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 5, Civil Practice and Remedies Code, is
1-5 amended by adding Chapter 111 to read as follows:
1-6 CHAPTER 111. CONTRACT CLAIMS AGAINST THE STATE
1-7 Sec. 111.001. DEFINITIONS. In this chapter:
1-8 (1) "Unit of state government" means the state or an
1-9 agency, department, commission, bureau, board, office, council,
1-10 court, or other entity that is in any branch of state government
1-11 and that is created by the constitution or a statute of this state,
1-12 including a university system or institution of higher education as
1-13 defined by Section 61.003, Education Code. The term does not
1-14 include a county, municipality, court of a county or municipality,
1-15 special-purpose district, or other political subdivision of this
1-16 state and does not include the Texas Department of Transportation.
1-17 (2) "Project contract" means a contract between a unit
1-18 of state government and a contractor for a project as the term
1-19 "project" is defined in Section 2166.001(4), Government Code.
1-20 (3) "Contractor" means an individual, partnership,
1-21 corporation, limited liability company or partnership, or other
1-22 business entity that is a party to a written contract with a unit
1-23 of state government for a project which was entered into after
2-1 competitive bidding.
2-2 Sec. 111.002. CLAIMS. (a) A contractor may make a claim
2-3 against a unit of state government for breach of a project
2-4 contract.
2-5 (b) A claim may be made by filing a petition with the chief
2-6 administrative officer or another officer of the unit of state
2-7 government if designated in the contract. The petition shall
2-8 contain a concise statement of the facts relied on by the
2-9 contractor, the relief or remedy desired, and a copy of the project
2-10 contract and other contract documents which pertain to the claim
2-11 and must be sworn to by the contractor or the contractor's
2-12 representative or attorney.
2-13 (c) The chief administrative officer or another officer of
2-14 the unit of state government, if designated in the contract, shall
2-15 examine the claim and negotiate in good faith with the contractor
2-16 in an effort to resolve the claim. If there is no resolution of
2-17 the claim within 30 days after receipt of the claim, the parties
2-18 shall proceed to mediation with an independent mediator selected by
2-19 the parties. The mediation shall be completed within the ensuing
2-20 30 days. If the mediation does not produce agreement as to the
2-21 claim, the chief administrative officer or another officer of the
2-22 unit of state government, if designated in the contract, shall
2-23 respond to the claim, providing the factual and legal basis for the
2-24 position of the unit of state government as to the claim within 90
2-25 days after receipt of the claim.
3-1 (d) If the contractor is not satisfied with the response to
3-2 the claim by the unit of state government, the contractor may file
3-3 an appeal with the unit of state government. The appeal shall set
3-4 forth the factual and legal basis for the claim and request that
3-5 the claim be referred to the State Office of Administrative
3-6 Hearings for a contested case hearing.
3-7 (e) The unit of state government shall refer the claim to
3-8 the State Office of Administrative Hearings for a contested case
3-9 hearing pursuant to Chapter 2003, Government Code, as to the issues
3-10 raised in the appeal.
3-11 (f) If the proposal for decision issued by the
3-12 administrative law judge at the State Office of Administrative
3-13 Hearings makes an award of some portion of the claim, the proposal
3-14 for decision shall be forwarded to the speaker of the house and
3-15 lieutenant governor as a recommendation for an appropriation to pay
3-16 the amount of the award in the next appropriation to the unit of
3-17 state government.
3-18 Sec. 111.003. AWARDS. (a) An award based on a claim made
3-19 under this chapter may not exceed the total value of the
3-20 consideration the contractor was to receive under the contract.
3-21 (b) An award may not be made for consequential or similar
3-22 damages or for exemplary or punitive damages.
3-23 (c) Article 1.05, Title 79, Revised Statutes (Article
3-24 5069-1.05, Vernon's Texas Civil Statutes), applies to an award
3-25 under this chapter.
4-1 (d) A contractor must make any claim under the project
4-2 contract not later than 90 days after the project contract is
4-3 completed.
4-4 SECTION 2. This Act takes effect September 1, 1997.
4-5 SECTION 3. (a) This Act applies only to a suit based on a
4-6 project contract entered into by a unit of state government on or
4-7 after the effective date of this Act. A suit based on a project
4-8 contract entered into before the effective date of this Act is
4-9 governed by the law as it existed immediately before the effective
4-10 date of this Act, and that law is continued in effect for that
4-11 purpose.
4-12 (b) For purposes of this section, a project contract is
4-13 entered into after the effective date of this Act if it is executed
4-14 or renewed after the effective date of this Act.
4-15 SECTION 4. The importance of this legislation and the
4-16 crowded condition of the calendars in both houses create an
4-17 emergency and an imperative public necessity that the
4-18 constitutional rule requiring bills to be read on three several
4-19 days in each house be suspended, and this rule is hereby suspended.