The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:
  (1) Board--Texas Water Development Board.
  (2) Executive administrator--The executive administrator of the Texas Water Development Board.
  (3) Claim--An assertion by a contractor that the board has breached a contract.
  (4) Contract--A written agreement between the board and a contractor by the terms of which the contractor agrees either to:
    (A) provide goods or services, by sale or lease, to or for the board; or
    (B) perform a project as defined by Texas Government Code, §2166.001.
  (5) Contractor--An independent contractor who has entered into a contract directly with the board. The term does not include:
    (A) the contractor's subcontractors, officers, employees, agents, or other persons furnishing goods or services to the contractor;
    (B) an employee of the board; or
    (C) a student at an institution of higher education.
  (6) Counterclaim--An assertion by the board that:
    (A) a contractor has breached a contract; or
    (B) justifies the actions taken by the board that are the subject of a contractor's claim.
  (7) Damages--The total amount of money recoverable on a claim for breach of contract after deducting any amount owed the board for work not performed under the contract or not in substantial compliance with the contract's terms. Damages do not include:
    (A) consequential or similar damages;
    (B) exemplary damages;
    (C) damages based on an unjust enrichment theory;
    (D) attorney's fees except attorney's fees may be recoverable if:
      (i) the claim is for breach of a written contract for (I) engineering, architectural, or construction services, (II) material related to the services described in the preceding Paragraph (1); and
      (ii) the amount in controversy is less than $250,000, excluding penalties, costs, expenses, prejudgment interest, and attorney's fees; or
    (E) home office overhead.
  (8) Day--A calendar day.
  (9) Event--An act or omission, or a series of acts or omissions, giving rise to a claim or counterclaim.
  (10) Goods--Supplies, materials, or equipment.
  (11) Parties--The board and the contractor who entered into the contract that is alleged to have been breached.
  (12) 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.
  (13) 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 board.
  (14) Unit of state government--The state or an agency, department, commission, bureau, board, office, council, court, or other entity that is in any branch of state government and that is created by the constitution or a statute of this state, including a university system or institution of higher education. The term does not include a county, municipality, court of a county or municipality, special purpose district, or other political subdivision of this state.

Source Note: The provisions of this §380.3 adopted to be effective April 11, 2001, 26 TexReg 2746; amended to be effective April 26, 2023, 48 TexReg 2137