Texas Register, Volume 32, Number 39, Pages 6689-6904, September 28, 2007 Page: 6,788
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(m) Negotiation Timetable.
(1) Following receipt of a contractor's notice of claim, the
Committee shall review the contractor's claim(s) and the TDCJ's coun-
terclaim(s), if any, and shall initiate negotiations with the contractor to
resolve the claim(s) and counterclaim(s).
(2) The parties shall begin negotiations within a reasonable
period of time, not to exceed 120 days following the date the TDCJ
receives the contractor's notice of claim.
(3) The parties may conduct negotiations according to an
agreed schedule provided negotiations begin no later than the deadline
set forth in paragraph (2) of this subsection.
(4) Subject to paragraph (5) of this subsection, the parties
shall complete the negotiations required by this subsection as a prereq-
uisite to a contractor's request for contested case hearing no later than
270 days after the TDCJ receives the contractor's notice of claim.
(5) The parties may agree in writing to extend the time for
negotiations on or before the 270th day after the TDCJ receives the
contractor's notice of claim. The agreement shall be signed by repre-
sentatives of the parties with authority to bind each respective party and
shall provide for the extension of the statutory negotiation period until
a certain date. The parties may enter into a series of written extension
agreements that comply with the requirements of this rule.
(6) The contractor may request, in writing, a contested case
hearing before the State Office of Administrative Hearings (SOAH)
pursuant to subsection (q) of this rule after the 270th day after the TDCJ
receives the contractor's notice of claim or the expiration of any exten-
sion agreed to under paragraph (5) of this subsection.
(7) The parties may agree to mediate the dispute at any time
before the 120th day after the TDCJ receives the contractor's notice of
claim or before the expiration of any extension agreed to by the parties
pursuant to paragraph (5) of this subsection. The mediation shall be
governed by subsections (r), (s), (t), (u), (v) and (w) of this rule.
(8) Nothing in this subsection is intended to prevent the
parties from agreeing to commence negotiations earlier than the dead-
lines established in paragraph (2) of this subsection, or from continuing
or resuming negotiations after the contractor requests a contested case
hearing before the SOAH.
(n) Conduct of Negotiation.
(1) A negotiation under this subchapter may be conducted
by any method, technique or procedure authorized under the contract
or agreed upon by the parties, including, without limitation, negotia-
tion in person, by telephone, by correspondence, by video conference
or by any other method which permits the parties to identify respective
positions, discuss respective differences, confer with respective advis-
ers, exchange offers of settlement and settle.
(2) The parties may conduct negotiations with the assis-
tance of one (1) or more neutral third-parties. If the parties choose
to mediate the dispute, the mediation shall be conducted in accordance
with subsections (r), (s), (t), (u), (v) and (w) of this rule. Parties may
choose an assisted negotiation process other than mediation, including,
without limitation, processes such as those described in subsections (x),
(y) and (z) of this rule.
(3) To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange rel-
evant documents that support the respective claims, defenses, counter-
claims or positions.(4) Material submitted pursuant to this subsection and
claimed to be confidential by the contractor shall be handled pursuant
to the requirements of the Public Information Act.
(o) Settlement Agreement.
(1) A settlement agreement may resolve an entire claim or
any designated and severable portion of a claim.
(2) To be enforceable, a settlement agreement shall be in
writing and signed by representatives of the contractor and the TDCJ
who have authority to bind each respective party.
(3) A partial settlement does not waive a party's rights un-
der the Texas Government Code, Chapter 2260 as to the parts of the
claims or counterclaims that are not resolved.
(p) Costs of Negotiation. Unless the parties agree otherwise
in writing, each party shall be responsible for its own costs incurred in
connection with a negotiation, including, without limitation, attorney
fees, consultant fees and expert fees.
(q) Request for Contested Case Hearing.
(1) If a breach of contract claim is not resolved in its
entirety through negotiation, mediation or other assisted negotiation
process in accordance with this rule on or before the 270th day after
the TDCJ receives the notice of claim, or after the expiration of any
extension agreed to by the parties pursuant to subsection (m)(5) of this
rule, the contractor may file a request with the TDCJ for a contested
case hearing before the SOAH.
(2) A request for a contested case hearing shall state the
legal and factual basis for the claim and shall be delivered to the ED
or other officer designated in the contract to receive notice within a
reasonable time after the 270th day or the expiration of any written
extension agreed to pursuant to subsection (m)(5) of this rule.
(3) The TDCJ shall forward the contractor's request for
contested case hearing to the SOAH within a reasonable period of time,
not to exceed 30 days, after receipt of the request.
(4) The parties may agree to submit the case to the SOAH
before the 270th day after the notice of claim is received by the TDCJ
if they have achieved a partial resolution of the claim or if an impasse
has been reached in the negotiations and proceeding to a contested case
hearing would serve the interests of justice.
(r) Mediation Timetable.
(1) The contractor and the TDCJ may agree to mediate the
dispute at any time before the 120th day after the TDCJ receives a
notice of a breach of contract claim, or before the expiration of any
extension agreed to by the parties in writing.
(2) A contractor and the TDCJ may mediate the dispute
even after the case has been referred to the SOAH for a contested case.
The SOAH may also refer a contested case for mediation pursuant to
its own rules and guidelines, whether or not the parties have previously
attempted mediation.
(s) Conduct of Mediation.
(1) The mediation is subject to the provisions of the Gov-
ernmental Dispute Resolution Act, Texas Government Code, Chap-
ter 2009. For purposes of this subchapter, "mediation" is assigned
the meaning set forth in the Texas Civil Practice and Remedies Code,
154.023.
(2) Parties may agree to use mediation as an option to re-
solve a breach of contract claim at the time the parties enter into the
contract and include a contractual provision to do so. The parties may32 TexReg 6788 September 28, 2007 Texas Register
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Texas. Secretary of State. Texas Register, Volume 32, Number 39, Pages 6689-6904, September 28, 2007, periodical, September 28, 2007; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth97416/m1/96/: accessed April 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.