40 TAC §§106.55 - 106.60
The Texas Rehabilitation Commission (TRC) proposes a new
Subchapter F, §§106.55-106.60, concerning resolution of certain
contract claims against the state--negotiation of claim.
The new sections are proposed to implement the provisions of the Government
Code, Chapter 2260.
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the sections are in effect,
there will be no fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be the enforcement of new rules regarding resolution of
certain contract claims against the state. There will be no effect on small
businesses. There is no anticipated economic cost to persons who are required
to comply with the sections as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
The new sections are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.55. Claim for Breach of Contract; Notice.
(a)
In accordance with Government Code, Chapter 2260, Subchapter
B, a contractor may make a claim against the commission for breach of a contract
between the commission and the contractor. The commission may assert a counterclaim
against the contractor.
(b)
A contractor must provide written notice to the commission
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)
The commission must assert, in a writing delivered to
the contractor, any counterclaim not later than the 90th day after the date
of notice under this subsection. If the commission does not comply with this
subsection it waives the right to assert the counterclaim.
§106.56. Negotiation.
(a)
The Associate Commissioner for buyer Support Services
shall examine the claim and any counterclaim and negotiate with the contractor
in an effort to resolve them. Except as provided by subsection (b) of this
section, 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)
The commission is entitled to delay the beginning of negotiation
until after the 180th day after the date of the event giving rise to the claim.
§106.57. Partial Resolution of Claim.
(a)
If the negotiation under §106.56 of this title (relating
to Negotiation) 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.
§106.58. Payment of Claim from Appropriated funds.
The commission 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.
§106.59.Incomplete Resolution.
If a claim is not entirely resolved under §106.56 of this title
(relating to Negotiation) on or before the 270th day after the date the claim
is filed with the commission, unless the parties agree in writing to an extension
of time, the contractor may file a request for a hearing under Government
Code, Chapter 2260, Subchapter C.
§106.60. Mediation.
(a)
Before the 270th day after the date the claim is filed
with the commission and before the expiration of any extension of time under §106.59
of this title (relating to Incomplete Resolution), the parties may agree to
mediate the claim made under this subchapter.
(b)
Participation in mediation shall be voluntary on the part
of the commission and the contractor.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
December 27, 1999.
TRD-9909040
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Earliest possible date of adoption: February 6, 2000
For further information, please call: (512) 424-4050