Scope of Work Issues - University of Texas System

Report
Scope of Work Issues
The University of Texas System
Office of General Counsel
Scott Patterson, Attorney
Scope of Work - Two
Types:

Included in a Solicitation: Request for
Proposal (RFP), Invitation to Bid (ITB),
etc.

Included in a Contract
Importance of
Solicitation Scope of Work
 Limits what may be obtained in the
resulting contract.
 Use catch-all language to mitigate: “. . .
and other related services”.
 Failure to develop a properly defined
Scope of Work may mean the
solicitation will need to be abandoned
and repeated with corrections.
Identifying Products /
Services in a Solicitation
Scope of Work
 Speak to potential vendors and other U.T.
components
 Understand the University’s requirements:
 Document functional requirements.
 Document how University will manage the
contractor.
 Establish minimum standards but encourage
potential contractors to exceed such standards.
Speaking to Contractors
When Developing Solicitation
Scope of Work
 Issue an RFI first to notify vendors of
opportunity.
 Talk to ALL vendors that respond and ask
ALL vendors the SAME QUESTIONS
 Obtaining free technical advice is ok, but
DO NOT ask for assistance in determining:
 the qualifications for a successful bidder, or
 the activities to be performed by the successful
bidder.
Speaking to Contractors
When Developing a
Solicitation Scope of Work
NOTE: If a potential contractor helps the
University develop the specifications or RFP,
then this may constitute a conflict of interest
or unfair advantage (e.g., an “unfair playing
field”) that prevents that contractor from
participating in the contract resulting from the
solicitation. (See Section 2155.004, Texas
Government Code.)
Level of Detail in a
Solicitation Scope of Work
 Too much detail - may limit University’s
options and number of potential vendors.
 Amount of detail - depends on what is
being obtained:
 Consulting services contract – avoid too
much detail, let respondents propose new
ideas and approaches.
 Commodity contract –may need more detail
to ensure compliance with known
requirements. (Typically an ITB, not an
RFP.)
What Should be Included in a
Solicitation Scope of Work?
 Include background information:
 Why are the products/services needed?
 Identify other contracts/activities dependent
on or which affect this RFP (e.g., concessions)
 Identify deadlines contractor must meet.
 Provide information permitting
respondents to identify their costs.
 If replacing an existing contract, identify
all information known by the existing
vendor.
What Should be Included in a
Solicitation Scope of Work?
 Identify any unique requirements that
respondents should know about:
 Custom work
 Conflicts with other equipment/services
Solicitation might need to require
respondents to perform inspections or
otherwise demonstrate their ability to
address such unique requirements.
 Consider if solicitation should require
respondents to keep University information
confidential (e.g., security-related
information.)
What Should be Included in a
Solicitation Scope of Work?
 Require respondent to warrant / verify that
they have all licenses, certifications, etc.
necessary to perform the work.
Example:
 Hardware manufacturer will only warrant its
hardware if it is maintained by a company
certified to do so by that manufacturer.
 Therefore, all respondents to an RFP for
maintenance of such hardware should be
required to warrant and verify that the
respondent is certified to perform maintenance
on that hardware by the hardware manufacturer.
RFP Selection Criteria
 Documented in Section 2.3 of the OGC RFP
Templates for:
 General Non-Consulting Services, and
 Consulting Services
 Establishes the criteria to be considered by
the University in evaluating proposals and
selecting the successful Proposer.
RFP Selection Criteria
Ensure that such criteria address all
information Proposers are required to provide,
as identified in the following sections of the
OGC Form RFPs:
 Section 5, Specifications and Additional
Questions:
 Minimum Requirements (Sec. 5.2)
 Additional Questions (Sec. 5.3)
 Scope of Work (Sec. 5.4).
 Section 6, Pricing and Delivery Schedule
RFP Selection Criteria
Example – Evaluation of Proposed Plan:
 RFP Scope of Work, Section 5.3 states the following:
“Proposer must identify its plan to deliver propane and
propane accessories to the University on an hourly
basis.”
 Therefore, Section 2.3 of the RFP should include
selection criteria based on the Proposer’s plan:
“The criteria to be considered by University in
evaluating proposals and selecting the successful
Proposer, will be those factors listed below:
2.3.1
the quality and reasonableness of
Proposer’s plan to deliver propane and
propane accessories to the University on an
hourly basis.”
RFP Selection Criteria
Also, consider evaluating respondents on their ability to
exceed the RFP’s minimum requirements. Example:
 Section 5.2 of an RFP for Maintenance Services contains
the following minimum requirement:
“5.2.1 Proposer must complete all required
maintenance within 4 hours after receiving the
University’s request for such maintenance.”
 Consider adding the following selection criteria to
Section 2.3 of the RFP :
“The criteria to be considered by University in evaluating
proposals and selecting the successful Proposer, will be
those factors listed below:
2.3.1
Proposer’s demonstrated ability to complete all
required maintenance faster than the minimum
requirement set forth in Section 5.2.1.”
Information Obtained from
Respondents
A solicitation should require each respondent to provide all
necessary information concerning the products/services to
be obtained from that respondent:
 All licenses, warranties, etc. offered by the respondent.
 All third party licenses, warranties, etc. that the
University would obtain via that respondent. (For
example, third-party software licenses.)
 Respondent’s representation/warranty that it will
comply with any specific requirements relating to this
procurement (e.g., legal requirements, grant conditions).
Consider if the solicitation should provide that a
respondent’s failure to make such a
representation/warranty will be considered nonresponsive and eliminate that respondent from further
consideration.
RFP - Predefined Contract
Terms and Conditions
Consider if the RFP should “predefine” the
contract terms and conditions that each
Proposer must agree to in order to enter into a
contract with the University.
Some provisions to consider “predefining”:
 Termination
 Payment/invoicing/reimbursable expenses
 Warranties/representations the Proposer
must make
RFP - Predefined Contract
Terms and Conditions
Benefit: Such “predefinition” of contract terms
and conditions may permit the University to
expedite post-award contract negotiations.
Place such predefined terms and conditions in
RFP specifications (Sections 5 and 6) or include
in an attachment to the RFP (Appendix Two).
However, ensure that all “predefined” contract
terms and conditions identified in the RFP are
consistent.
Consulting Services Contract
RFPs
Consider: Are Proposers being asked to
study or advise the University? If yes,
then the RFP may be for a consulting
services contract.
If obtaining consulting services is the
primary objective of the RFP, the
procurement must be performed in
accordance with Texas statutory
requirements and UT Business Procedure
Memoranda (BPM) 43.
Consulting Services Contract
RFPs
Procurement of a “Major” Consulting
Services Contract requires:
 A finding of fact that the services are
necessary.
 Provision of notice and information to the
Legislative Budget Board and the Governor’s
Office of Budget and Planning.
 Publication of an invitation for offers of
consulting services in the Texas Register.
 Approval by Executive Vice Chancellor for
Academic Affairs / Health Affairs.
Consulting Services Contract
RFPs
Risk – If Texas statutory requirements for
a major consulting services contract are
not complied with:
 that contract may be void, and
 payment may be prohibited under that
contract.
Contract Scope of Work
A Scope of Work included in a contract is
used:

to define specific tasks to be completed
and payments to be made, and

to enforce the parties’ agreement.
Contract Scope of Work
and Contract Enforcement
 Such use arises in everyday contract
management as well as in litigation.
 Keep in mind the potential contract
“audience”:






Contract administrator
Contractor
Management
Attorneys
Judges
Juries
Contract Scope of Work
Creation
 Create single Contract Scope of Work from
RFP Scope of Work & contractor’s
response.
 Clarify industry-specific or technical
language (e.g., buzz words, acronyms)
 Make it absolutely clear what contractor is
supposed to provide or perform.
 Avoid passive voice.
 Avoid language permitting addition of
products or services to the contract
University-Provided
Products/Services
 Identify in the main body of the contract,
not in the Scope of Work.
 State that the University is only obligated
to provide the products/services identified
in the contract.
 Avoid putting the cost of such
products/services in the contract –
otherwise, contractor may claim that they
were supposed to provide (and be paid
for) such products/services.
Organization of Contract
Scope of Work
 Document work in phases.
 Document work chronologically /
sequentially.
 Identify dependencies / timing issues.
 Identify milestones – tie to contract
payments.
Contract Scope of Work
Enforceability Suggestions
 Include a schedule with specific deadlines.
 Avoid creating documents (specifications,
schedules, etc.) after contract start.
 Include written acceptance procedures for
all deliverables/documents.
 Document a payment schedule that is tied
to specific, documented University
acceptances.
 Avoid “deemed” or “implicit” University
acceptance of contractor’s performance.
Contract Scope of Work
Enforceability Suggestions
 Identify what will cause the University to
reject Contractor’s products/services.
 Avoid making payments in advance.
 Minimize any “progress payments.”
 Attempt to retain a percentage of the
contractor’s total fee until after (1) the
University has made final acceptance of all
contractor products/services, or (2) the
warranties on the contractor
products/services expire.
Contract Scope of Work
Termination Options
 Standard – each party can terminate entire
contract for the other party’s default.
 However, consider if the University should
retain a Contractor product even if:
 University terminates for the contractor’s
default?
 the contractor terminates for University’s
default?
 Does the University need flexibility to
make partial acceptances of some, but not
all, of contractor’s products/services?
Contract Scope of Work
Special Considerations
 Consulting services contracts – use “catchall”
language to avoid amending contract (such an
amendment would require re-compliance with
Texas statutory requirements & BPM 43.)
 Outsourcing/Vending contracts – provide
sufficient transition time from existing
contractor to new contractor.
 Software development contracts – try to
develop all software specifications and
requirements before signing the contract.

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