Amend CSSB 629 by striking all below the enacting clause and
substituting:
SECTION 1. Subtitle F, Title 10, Government Code, is amended
by adding Chapter 2260 to read as follows:
CHAPTER 2260. RESOLUTION OF CERTAIN CONTRACT CLAIMS
AGAINST THE STATE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2260.001. DEFINITIONS. In this chapter:
(1) "Contract" means a written contract between a unit
of state government and a contractor for:
(A) goods;
(B) services; or
(C) a project as defined by Section 2166.001.
(2) "Contractor" means an independent contractor who
has entered into a contract directly with a unit of state
government. The term does not include:
(A) a contractor's subcontractor, officer,
employee, agent, or other person furnishing goods or services to a
contractor;
(B) an employee of a unit of state government;
or
(C) a student at an institution of higher
education.
(3) "Institution of higher education" has the meaning
assigned by Section 61.003, Education Code.
(4) "Unit of state government" means the state or an
agency, department, commission, bureau, board, office, council,
court, or other entity that is in any branch of state government
and that is created by the constitution or a statute of this state,
including a university system or institution of higher education.
The term does not include a county, municipality, court of a county
or municipality, special purpose district, or other political
subdivision of this state. The term does not include the Texas
Department of Transportation.
Sec. 2260.002. APPLICABILITY. This chapter does not apply to
a claim for personal injury or wrongful death arising from the
breach of a contract.
Sec. 2260.003. DAMAGES. (a) The total amount of money
recoverable on a claim for breach of contract under this chapter
may not, after deducting the amount specified in Subsection (b),
exceed the balance due and owing on the contract price, including
orders for additional work.
(b) Any amount owed the unit of state government for work
not performed under a contract or in substantial compliance with
its terms shall be deducted from the amount in Subsection (a).
Sec. 2260.004. REQUIRED CONTRACT PROVISION. (a) Each unit
of state government that enters into a contract to which this
chapter applies shall include as a term of the contract a provision
stating that the dispute resolution process used by the unit of
state government under this chapter must be used to attempt to
resolve a dispute arising under the contract.
(b) The attorney general shall provide assistance to a unit
of state government in developing the contract provision required
by this section.
Sec. 2260.005. EXCLUSIVE PROCEDURE. The procedures contained
in this chapter are exclusive and required prerequisites to suit in
accordance with Chapter 107, Civil Practice and Remedies Code.
Sec. 2260.006. SOVEREIGN IMMUNITY. This chapter does not
waive sovereign immunity to suit or liability.
Sections 2260.007-2260.050 reserved for expansion
SUBCHAPTER B. NEGOTIATION OF CLAIM
Sec. 2260.051. CLAIM FOR BREACH OF CONTRACT; NOTICE. (a) A
contractor may make a claim against a unit of state government for
breach of a contract between the unit of state government and the
contractor. The unit of state government may assert a counterclaim
against the contractor.
(b) A contractor must provide written notice to the unit of
state government of a claim for breach of contract not later than
the 180th day after the date of the event giving rise to the claim.
(c) The notice must state with particularity:
(1) the nature of the alleged breach;
(2) the amount the contractor seeks as damages; and
(3) the legal theory of recovery.
(d) A unit of state government must assert, in a writing
delivered to the contractor, any counterclaim not later than the
90th day after the date of notice under Subsection (b). A unit of
state government that does not comply with this subsection waives
the right to assert the counterclaim.
Sec. 2260.052. NEGOTIATION. (a) The chief administrative
officer or, if designated in the contract, another officer of the
unit of state government shall examine the claim and any
counterclaim and negotiate with the contractor in an effort to
resolve them. Except as provided by Subsection (b), the negotiation
must begin not later than the 60th day after the later of:
(1) the date of termination of the contract;
(2) the completion date in the original contract; or
(3) the date the claim is received.
(b) A unit of state government against which a claim is
filed is entitled to delay the beginning of negotiation until after
the 180th day after the date of the event giving rise to the claim.
(c) Each unit of state government with rulemaking authority
shall develop rules to govern the negotiation of a claim under this
section. If a unit of state government does not have rulemaking
authority, that unit shall follow the rules adopted by the attorney
general.
Sec. 2260.053. PARTIAL RESOLUTION OF CLAIM. (a) If the
negotiation under Section 2260.052 results in the resolution of
some disputed issues by agreement or in a settlement, the parties
shall reduce the agreement or settlement to writing and each party
shall sign the agreement or settlement.
(b) A partial settlement or resolution of a claim does not
waive a party's rights under this chapter as to the parts of the
claim that are not resolved.
Sec. 2260.054. PAYMENT OF CLAIM FROM APPROPRIATED FUNDS. A
unit of state government may pay a claim resolved in accordance
with this subchapter only from money appropriated to it for payment
of contract claims or for payment of the contract that is the
subject of the claim. If money previously appropriated for payment
of contract claims or payment of the contract is insufficient to
pay the claim or settlement, the balance of the claim may be paid
only from money appropriated by the legislature for payment of the
claim.
Sec. 2260.055. INCOMPLETE RESOLUTION. If a claim is not
entirely resolved under Section 2260.052 on or before the 270th day
after the date the claim is filed with the unit of state
government, unless the parties agree in writing to an extension of
time, the contractor may file a request for a hearing under
Subchapter C.
Sections 2260.056-2260.100 reserved for expansion
SUBCHAPTER C. CONTESTED CASE HEARING
Sec. 2260.101. DEFINITION. In this subchapter, "office"
means the State Office of Administrative Hearings.
Sec. 2260.102. REQUEST FOR HEARING. (a) If a contractor is
not satisfied with the results of negotiation with a unit of state
government under Section 2260.052, the contractor may file a
request for a hearing with the unit of state government.
(b) The request must:
(1) state the factual and legal basis for the claim;
and
(2) request that the claim be referred to the State
Office of Administrative Hearings for a contested case hearing.
(c) On receipt of a request under Subsection (a), the unit
of state government shall refer the claim to the State Office of
Administrative Hearings for a contested case hearing under Chapter
2001, Government Code, as to the issues raised in the request.
Sec. 2260.103. HEARING FEE. (a) The chief administrative
law judge of the office may set a fee for a hearing before the
office under this subchapter.
(b) The chief administrative law judge of the office shall
set the fee in an amount that:
(1) is not less than $250; and
(2) allows the office to recover all or a substantial
part of its costs in holding hearings.
(c) The chief administrative law judge of the office by rule
may establish a graduated fee scale, increasing the fee in relation
to the amount in controversy.
(d) The office may:
(1) assess the fee against the party who does not
prevail in the hearing; or
(2) apportion the fee against the parties in an
equitable manner.
Sec. 2260.104. HEARING. (a) An administrative law judge of
the office shall conduct a hearing in accordance with the
procedures adopted by the chief administrative law judge of the
office.
(b) Within a reasonable time after the conclusion of the
hearing, the administrative law judge shall issue a written
decision containing the administrative law judge's findings and
recommendations.
(c) The administrative law judge shall base the decision on
the pleadings filed with the office and the evidence received.
(d) The decision must include:
(1) the findings of fact and conclusions of law on
which the administrative law judge's decision is based; and
(2) a summary of the evidence.
Sec. 2260.105. PAYMENT OF CLAIM. (a) The unit of state
government shall pay the amount of the claim or part of the claim
if the administrative law judge finds, by a preponderance of the
evidence, that under the laws of this state the claim or part of
the claim is valid.
(b) A unit of state government shall pay a claim under this
subchapter from money appropriated to it for payment of contract
claims or for payment of the contract that is the subject of the
claim. If money previously appropriated for payment of contract
claims or payment of the contract is insufficient to pay the claim,
the balance of the claim may be paid only from money appropriated
by the legislature for payment of the claim.
Sec. 2260.106. PREJUDGMENT INTEREST. Chapter 304, Finance
Code, applies to a judgment awarded to a claimant under this
chapter, except that the applicable rate of interest may not exceed
six percent.
Sec. 2260.107. EXECUTION ON STATE PROPERTY NOT AUTHORIZED.
This chapter does not authorize execution on property owned by the
state or a unit of state government.
SECTION 2. This Act takes effect September 1, 1999.
SECTION 3. (a) This Act applies only to a claim pending or
arising on or after the effective date of this Act, without regard
to whether the contract was entered into before, on, or after that
date.
(b) Notwithstanding Section 2260.051(b), Government Code, as
added by this Act, a claimant must provide written notice to the
unit of state government for a claim pending before the effective
date of this Act not later than the 180th day after that date.
SECTION 4. The importance of this legislation and the
crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the
constitutional rule requiring bills to be read on three several
days in each house be suspended, and this rule is hereby
suspended.