By: Leach, Guillen, Martinez H.B. No. 2265
(Senate Sponsor - Hughes)
(In the Senate - Received from the House May 8, 2023;
May 9, 2023, read first time and referred to Committee on Business &
Commerce; May 23, 2023, reported favorably by the following vote:
Yeas 9, Nays 1; May 23, 2023, sent to printer.)
Click here to see the committee vote
COMMITTEE VOTE
YeaNayAbsentPNV
SchwertnerX
KingX
BirdwellX
CampbellX
CreightonX
JohnsonX
KolkhorstX
MenéndezX
MiddletonX
NicholsX
ZaffiriniX
A BILL TO BE ENTITLED
AN ACT
relating to the award of compensatory damages caused by certain
delays under governmental construction contracts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter Z, Chapter 2252, Government Code, is
amended by adding Section 2252.909 to read as follows:
Sec. 2252.909. COMPENSATORY DAMAGES CAUSED BY GOVERNMENTAL
DELAYS IN CONSTRUCTION CONTRACTS. (a) In this section:
(1) "Compensatory damages" means the costs actually
incurred by a contractor as a result of delay in the schedule that
could not be reasonably mitigated by the contractor. The term does
not include:
(A) special damages;
(B) consequential damages;
(C) home office overhead, except overhead costs
for labor as defined in the applicable construction contract;
(D) profit or markup on indirect costs;
(E) the costs of performing additional work that
are separately agreed to by the governmental entity and contractor
in a construction contract; or
(F) indirect costs not related to the project in
the applicable construction contract.
(2) "Contractor" means a person engaged in the
business of developing, constructing, fabricating, repairing,
altering, or remodeling improvements to real property.
(3) "Governmental entity" means:
(A) the state;
(B) a municipality, county, public school
district, or special-purpose district or authority;
(C) a district, county, or justice of the peace
court;
(D) a board, commission, department, office, or
other agency in the executive branch of state government, including
an institution of higher education as defined by Section 61.003,
Education Code;
(E) the legislature or a legislative agency; or
(F) the Supreme Court of Texas, the Texas Court
of Criminal Appeals, a court of appeals, or the State Bar of Texas
or another judicial agency having statewide jurisdiction.
(b) A provision of a construction contract between a
governmental entity and a contractor may not prohibit the award of
compensatory damages to the contractor for a delay to the extent
that the delay is caused solely by the governmental entity or by a
party for which the governmental entity is responsible.
(c) This section does not restrict, limit, or prohibit the
inclusion of a contract provision in a construction contract
prescribing requirements or conditions that must be met by a
contractor to seek recovery of compensatory damages, including
requirements or conditions relating to notice, justification, or a
duty to mitigate or for demonstrating or proving the actual cost or
schedule impact of a delay.
(d) This section may not be waived. A purported waiver of
this section in violation of this subsection is void.
(e) This section does not apply to a construction contract
for:
(1) services related to recovery or relief from a
natural disaster involving the repair or renovation of a residence;
or
(2) the construction or repair of a critical
infrastructure facility, as that term is defined by Section 59.001,
Business & Commerce Code, owned or operated by the governmental
entity or any building, structure, improvement, appurtenance, or
other facility owned by the governmental entity that is necessary
to the operation of and directly related to the critical
infrastructure facility.
SECTION 2. Section 2252.909, Government Code, as added by
this Act, applies only to a construction contract entered into on or
after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2023.
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