SECTION 800.452. Definitions

The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:

(1) Claim--A demand for damages by the contractor based upon the Agency's alleged breach of the contract.

(2) Contract--A written contract between the Agency and a contractor by the terms of which the contractor agrees either:

(A) to provide goods or services, by sale or lease, to or for the Agency; or

(B) to perform a project as defined by Texas Government Code, §2166.001.

(3) Contractor--Independent contractor who has entered into a contract directly with the Agency. The term does not include:

(A) The contractor's subcontractor, officer, employee, agent or other person furnishing goods or services to a contractor;

(B) An employee of the Agency; or

(C) A student at an institution of higher education.

(4) Counterclaim--A demand by the Agency based upon the contractor's claim.

(5) Event--An act or omission or a series of acts or omissions giving rise to a claim, including but not limited to the following:

(A) for goods or services:

(i) the failure of the Agency to timely pay for goods and services;

(ii) the failure to pay the balance due and owing on the contract price, including orders for additional work, after deducting any amount owed the Agency for work not performed under the contract or in substantial compliance with the contract terms;

(iii) the suspension, cancellation, or termination of the contract;

(iv) final rejection of the goods or services tendered by the contractor, in whole or in part;

(v) repudiation of the entire contract prior to or at the outset of performance by the contractor; or

(vi) withholding liquidated damages from final payment to the contractor.

(B) for a project:

(i) the failure to timely pay the unpaid balance of the contract price following final acceptance of the project;

(ii) the failure to make timely progress payments required by the contract;

(iii) the failure to pay the balance due and owing on the contract price, including orders for additional work, after deducting any amount owed the Agency for work not performed under the contract or in substantial compliance with the contract terms;

(iv) the failure to grant time extensions to which the contractor is entitled under the terms of the contract;

(v) the failure to compensate the contractor for occurrences for which the contract provides a remedy;

(vi) suspension, cancellation or termination of the contract;

(vii) rejection by the Agency, in whole or in part, of the "work," as defined by the contract, tendered by the contractor;

(viii) repudiation of the entire contract prior to or at the outset of performance by the contractor;

(ix) withholding liquidated damages from final payment to the contractor; or

(x) refusal, in whole or in part, of a written request made by the contractor in strict accordance with the contract to adjust the contract price, the contract time, or the scope of work.

(6) Goods--Supplies, materials or equipment.

(7) Mediation--A consensual process in which an impartial third party, the mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them.

(8) Negotiation--A consensual bargaining process in which the parties attempt to resolve a claim and counterclaim.

(9) Parties--The contractor and the Agency that have entered into a contract in connection with which a claim of breach of contract has been filed under this chapter.

(10) Project--As defined in Texas Government Code §2166.001, a building construction project that is financed wholly or partly by a specific appropriation, bond issue or federal money, including the construction of:

(A) a building, structure, or appurtenant facility or utility, including the acquisition and installation of original equipment and original furnishing; and

(B) an addition to, or alteration, modification, rehabilitation, or repair of an existing building, structure, or appurtenant facility or utility.

(11) Services--The furnishing of skilled or unskilled labor or consulting or professional work, or a combination thereof, excluding the labor of an employee of the Agency.

Source Note: The provisions of this §800.452 adopted to be effective August 23, 2000, 25 TexReg 8063