Contracts Management Guide - Texas Comptroller of Public Accounts

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• Exemption of Goods or Services of Blind or Visually Impaired Persons xxxiii • Exemption for Certain Libraries and Health Facilities xxxiv • Purchase From Gift or Grant Not Within Commission’s Purchasing Authority xxxv • Certain Other Purchases Not Within Commission’s Purchasing Authority xxxvi • Purchases by Veteran’s Land Board xxxvii • Purchase of Care and Treatment Services by Texas Youth Commission xxxviii • Procurements by Health and Human Services Agencies (does not include common goods and services) xxxix • Health Care Purchasing xl • Certain Purchases by Employees Retirement System of Texas xli • Mental Health and Mental Retardation Community Centers; Assistance Organizations xlii • Purchases by Legislature and Legislative Agencies xliii • Local Government Purchasing Program xliv Even if a statute creates an exception to CPA’s authority to make purchases, the authority to purchase goods or services must be found in another statute before an agency is authorized to purchase. xlv One of the statutory sources for a state agency’s contracting authority is a statutory delegation. Binding Signatures Original signatures by those in authority to contract are the usually accepted norm through which a contract becomes binding. There may be instances where time considerations dictate the need to accept a faxed signature as evidence a respondent accepts the terms of a contract. Additionally, it is possible that an email or a chain of emails that make it clear a party accepts the terms of a contract can be enforceable. Faxed signatures or emails should always be followed up with original signatures. Delegated Purchases By statute, agencies are authorized to purchase goods and services if the cost does not exceed $15,000. Additionally, CPA is authorized to delegate additional purchasing authority. The delegated authority of a state agency to bind the State in contract is primarily defined by dollar amount and subject matter. See Bidding Requirements and Dollar Limits or Thresholds (http://www.window.state.tx.us/procurement/pub/manual/2.11.pdf.) An agency may not use its delegated purchasing authority to purchase: 1. Items provided by a CPA state contract (unless the quantity to be purchased is less than the minimum quantity specified in the CPA contract); 2. Items that are required by statute to be purchased from a particular source; or 3. Items that constitute ‘scheduled items’ designated for purchase by the CPA xlvi 51
Individual state agencies may have statutory purchasing authority that is independent of the authority delegated by CPA; therefore, a thorough examination of each state agency’s statutory purchasing authority is necessary to identify an agency’s purchasing or contracting authority. Legal Elements of a Contract The essential elements necessary to form a binding contract are usually described as: xlvii • An Offer • An Acceptance in strict compliance with the terms of the offer • Legal Purpose/Objective • Mutuality of Obligation – also known as the “meeting of the minds” • Consideration • Competent Parties xlviii Offer An offer is defined as the manifestation of the “willingness to enter into a bargain so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it.” xlix Acceptance Acceptance of an offer can occur in several ways: Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer. l An acceptance must not change the terms of an offer. If it does, the offer is rejected. li A material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party. lii Legal Purpose The objective of the contract must be for a legal purpose. For example, a contract for illegal distribution of drugs is not a binding contract because the purpose for which it exists is not legal. Mutuality of Obligation This element is also known as the “meeting of the minds”. Mutuality of obligation refers to the parties’ mutual understanding and assent to the expression of their agreement. liii The parties must agree to the same thing, in the same sense, at the same time. The determination of a meeting of their minds, and thus offer and acceptance, is based on the objective standard of what the parties said and did and not their subjective state of mind. liv Unexpressed subjective intent is irrelevant. In determining whether mutual assent is present, the court looks to the communications between the parties and to the acts and circumstances surrounding these communications. lv The offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer. lvi Where a meeting of the minds is contested, the determination of the existence of a contract is a question of fact. lvii If the fact finder determines that one party reasonably drew the inference of a promise from the other party’s conduct, that promise will be given effect in law. lviii To be enforceable, the parties must have agreed on the essential terms of the contract. lix However, parties may agree upon some contractual terms, understanding them to be an agreement and leave other contract terms to be made later. lx Full agreement on all contractual terms is the best practice and should be the norm. It is only when an essential term is left open for future negotiation that there is nothing more than an unenforceable agreement to agree. lxi Such an agreement is void as a contract. lxii 52
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STATE OF TEXAS CONTRACT MANAGEMENT
Page 4 and 5: Exhibit C to RFP Template Compensat
Page 6 and 7: THIS GUIDE: • Provides practical
Page 8 and 9: Contract Management Framework Effec
Page 10 and 11: Contract Management: This refers to
Page 12 and 13: Vendor: a business entity or indivi
Page 14 and 15: (2) all direct or indirect pecuniar
Page 16 and 17: een granted portal membership right
Page 18 and 19: A central agency, such as DIR, plan
Page 20 and 21: The level of risk associated with e
Page 22 and 23: • Request for Information (RFI) -
Page 24 and 25: • Open Enrollment Contracts. Pote
Page 26 and 27: TASK SUGGESTED LEAD TIME FROM CONTR
Page 28 and 29: (4) The Guide offers recommendation
Page 30 and 31: Preparing the Solicitation fter an
Page 32 and 33: • Expansion of an existing instal
Page 34 and 35: COMMON TYPES OF PAYMENT Payment Typ
Page 36 and 37: Quantity The solicitation document
Page 38 and 39: HIGH Level of Importance LOW Source
Page 40 and 41: Further discussion on contract moni
Page 42 and 43: The Electronic State Business Daily
Page 44 and 45: Solicitation Submission and Opening
Page 46 and 47: data information system. This contr
Page 48 and 49: A sample agenda for a team briefing
Page 50 and 51: In the first scenario, the top five
Page 52 and 53: The second question, “What will h
Page 56 and 57: Any contract or mutual understandin
Page 58 and 59: Form of the Contract Evidence of an
Page 60 and 61: State Contracting Standards/Oversig
Page 62 and 63: Contract Manager Responsibilities T
Page 64 and 65: � Contract value and complexity;
Page 66 and 67: Consider the effect that the contra
Page 68 and 69: importance of the contract to the c
Page 70 and 71: Below is a sample risk assessment.
Page 72 and 73: If the contract does not provide fo
Page 74 and 75: In order to determine what constitu
Page 76 and 77: 4. Proper dispute resolution is a c
Page 78 and 79: Since you have failed to perform th
Page 80 and 81: Contract Close-Out T he contract cl
Page 82 and 83: Appendix 1 79
Page 84 and 85: esponsibility for ensuring the requ
Page 86 and 87: (d) If Respondent takes any excepti
Page 88 and 89: 4. Exhibit C: Authorized Key Person
Page 90 and 91: LIABILITIES RESULTING FROM THE NEGL
Page 92 and 93: 11.17. Patent, Trademark, Copyright
Page 94 and 95: 11.29. Contracts for Services In ac
Page 96 and 97: Signatures: EXHIBIT A OF CONTRACT N
Page 98 and 99: This Exhibit C is incorporated into
Page 100 and 101: EXHIBIT A to RFP No. ______ HUB SUB
Page 102 and 103: Enter your company’s name here: S
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EXHIBIT B EXECUTION OF PROPOSAL RFP
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authority of the state auditor, und
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Appendix 3 Pre-Solicitation Confere
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Appendix 5 Evaluation Team Guidelin
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Non-voting Members Appendix 6 Evalu
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Vendor Name: Reference Name: Compan
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Appendix 9 Contract Terms Informati
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Consideration/Price Example 1 The c
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Antitrust Contractor represents and
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Contractor Responsibilities Contrac
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Right to Audit Contractor understan
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Termination This contract shall ter
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When a Texas business address shown
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Section 411.1405, are subject to pe
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Email Address of Contact: (3) State
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Training: Experience: Certification
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Evaluation Results Appendix 12 BAFO
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Max Points 30 Vendor Response / Eva
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Ability Rating Issues/Questions COM
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Total Scores: Price Points + Techni
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DATE: TO: [Name of Executive] THROU
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Organization • No structured cont
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Index A Abandonment or Default, 56
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i Black’s Law Dictionary (7 th ed
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“Apparent authority is not enough
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c. Notification of objection to the
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Contracts Management Guide - Texas Comptroller of Public Accounts

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