78R7382 AJA-F
By: Wentworth S.B. No. 986
A BILL TO BE ENTITLED
AN ACT
relating to alternative dispute resolution of certain contract
claims against the state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 2260.003(a) and (c), Government Code,
are amended to read as follows:
(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 an amount equal to the
sum of:
(1) the balance due and owing on the contract price;
[and]
(2) the amount or fair market value of orders or
requests for additional work made by a unit of state government to
the extent that the orders or requests for additional work were
actually performed; and
(3) any delay or labor-related expense incurred by the
contractor as a result of an action of or a failure to act by the
unit of state government or a party acting under the supervision or
control of the unit of state government.
(c) Any award of damages under this chapter may not include:
(1) [consequential or similar damages;
[(2)] exemplary damages;
(2) [(3)] any damages based on an unjust enrichment
theory;
[(4) attorney's fees;] or
(3) [(5)] home office overhead.
SECTION 2. Section 2260.005, Government Code, is amended to
read as follows:
Sec. 2260.005. EXCLUSIVE PROCEDURE. Subject to Section
2260.007, the procedures contained in this chapter are exclusive
and required prerequisites to suit in accordance with Chapter 107,
Civil Practice and Remedies Code. This chapter does not prevent a
contractor sued by a unit of state government from asserting a
counterclaim or right of offset against the unit of state
government in the court in which the unit of state government files
the suit.
SECTION 3. Section 2260.051(d), Government Code, is amended
to read as follows:
(d) A unit of state government must assert, in a writing
delivered to the contractor, any counterclaim not later than the
30th [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.
SECTION 4. Section 2260.052(a), Government Code, is amended
to read as follows:
(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. The [Except as provided by
Subsection (b), the] negotiation must begin not later than the 60th
day after the earliest [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.
SECTION 5. Section 2260.056(a), Government Code, is amended
to read as follows:
(a) Before the 90th [270th] day after the date the claim is
filed with the unit of state government and before the expiration of
any extension of time under Section 2260.055, the parties may agree
to mediate a claim made under this chapter.
SECTION 6. Section 2260.104(e), Government Code, is amended
to read as follows:
(e) In a contested case hearing under this subchapter:
(1) the decision may not be appealed except for abuse
of discretion; and
(2) the state agency may not change the finding of fact
or conclusion of law, nor vacate or modify an order as provided in
Section 2001.058(e).
SECTION 7. Section 2260.105(a), Government Code, is amended
to read as follows:
(a) The unit of state government shall pay the amount of the
claim or part of the claim, including the reasonable cost of
attorney's fees incurred in bringing the claim, if[:
[(1)] 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[; and
[(2) the total amount of damages, after taking into
account any counterclaim, is less than $250,000].
SECTION 8. Section 2260.1055(a), Government Code, is
amended to read as follows:
(a) If, after a hearing, the administrative law judge
determines that a claim involves damages and attorney's fees
totaling [of $250,000 or] more than the unit of state government has
available from money appropriated to it for the payment of contract
claims and for payment of the contract that is the subject of the
claim, the administrative law judge shall issue a written report
containing the administrative law judge's findings and
recommendations to the legislature.
SECTION 9. Sections 2260.052(b) and 2260.104(f),
Government Code, are repealed.
SECTION 10. The changes in law made by this Act apply only
to claims involving a breach of a contract entered into by a unit of
state government on or after the effective date of this Act. A
claim involving a breach of a contract entered into by a unit of
state government before the effective date of this Act is governed
by the law in effect immediately before that date, and that law is
continued in effect for that purpose.
SECTION 11. This Act takes effect September 1, 2003.