Last week, the Texas Supreme Court ruled that a claim made by a consulting firm against the DFW Airport was barred by governmental immunity. In a unanimous opinion (Dallas/Fort Worth International Airport Board. v Vizant Technologies, Case No. 18-0059), the court found that the agreement to negotiate in good faith was not enforceable, and even if it was, the damages claimed would not be recoverable under Chapter 271.
Vizant Technologies entered into a contract with the staff of the DFW Airport for an evaluation of the airport's credit card authorization system. Under the agreement, Vizant was to be paid a percentage of all the money it saved DFW, subject to a strict cap of $50,000. If the amount to be recovered under the contract exceeded $50,000, the staff agreed to use "good faith efforts" to negotiate a different contract. (The agreement was structured this way because DFW Airport Board policies required Board approval for contracts that were valued over $50,000.)
The Supreme Court ruled that agreements to negotiate, even if in "good faith," were not enforceable in Texas. And, even were the Supreme Court to reconsider that precedent, the agreement here would not be under the immunity waiver of Chapter 271 because the measure of damages for failing to reach an agreement would necessarily be "consequential," and Chapter 271 specifically denies recovery of consequential damages.
The case can be found at http://www.txcourts.gov/media/1444083/180059.pdf.