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.