34 Tex. Admin. Code § 1.362

Current through Reg. 49, No. 43; October 25, 2024

Section 1.362 - Definitions

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

(1) Agency--The Office of the Comptroller of Public Accounts.

(2) Claim--A written demand for damages by the contractor that is based upon the agency's alleged breach of the contract.

(3) Comptroller--Comptroller of Public Accounts, the elected official.

(4) Contract--A written contract between the agency and a contractor, under the terms of which the contractor agrees to either:

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

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

(5) 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 who furnishes goods or services to the contractor;

(B) an employee of the agency; or

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

(6) Counterclaim--A demand by the agency that is based upon the contractor's claim.

(7) Day--A calendar day. If an act is required to occur on a Saturday, Sunday, or holiday, then the next working day that is not one of these days is counted as the required day for the purpose of this act.

(8) Event--An act or omission, or a series of acts or omissions, that gives rise to a claim. The following list contains illustrative examples of events, subject to the specific terms of the contract:

(A) Examples of events in the context of a contract for goods or services:

(i) the failure of the agency to timely pay for the goods or services;

(ii) the failure of the agency to pay the balance due and owing on the contract price, including amounts that arose from orders for additional work, after deduction of any amount that is owed to the agency for work that has not been performed under the contract or in substantial compliance with the contract terms;

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

(iv) final rejection wholly or partly of the goods or services that the contractor has tendered;

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

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

(B) Examples of events in the context of a project:

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

(ii) the failure of the agency to make timely progress payments as required under the contract;

(iii) the failure of the agency to pay the balance that is due and owing on the contract price, including amounts that arose from orders for additional work, after deduction of any amount that is owed the agency for work that has not been 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, wholly or partly, of the "work," as defined under the contract, that the contractor has tendered;

(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;

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

(C) The lists in subparagraphs (A) and (B) of this paragraph should not be considered exhaustive, but are merely illustrative in nature.

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

(10) Parties--The contractor that has entered into a contract with the agency, in connection with which a claim of breach of contract has been filed under this subchapter.

(11) Project--A building construction project as defined under Government Code, § 2166.001, 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.

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

34 Tex. Admin. Code § 1.362

The provisions of this §1.362 adopted to be effective November 29, 2001, 26 TexReg 9631