Contracts Management Guide - Texas Comptroller of Public Accounts

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Form of the Contract Evidence of an agreement or a contract can be documented in different formats, including but not limited to a “fourcorner contract”, a purchase order, or an exchange of correspondence. The term “four-corner” contract is used to describe a single document that includes all of the terms and conditions within the four-corners of a single document. Purchase orders can also be considered a contract. The contractor delivers an offer, in a form requested by the agency, and the agency indicates acceptance of the offer by issuing a purchase order. The documents that comprise the offer and acceptance are the evidence of the agreement. Each of the forms of contracts described herein has advantages and disadvantages. The determination of which format is appropriate should be based on an assessment of the risks involving contract construction or interpretation. A ‘four-corner’ contract offers the greatest opportunity to avoid conflicting provisions, because all of the provisions are contained in one document. Contract management is sometimes easier when all of the provisions regarding the duties, obligations and responsibilities of each party can be logically organized and easily found. On the other hand, ‘four-corner’ contracts require more time to plan and prepare. Notwithstanding the additional time requirement in a major or complex transaction, a ‘four-corner’ contract is the best format to clearly document an agreement. A purchase order uses a layered approach, i.e., the purchase order usually relies on a number of documents that in combination, comprise the contract. An agency may publish a solicitation document that includes product specifications, contractor qualifications and other terms and conditions. The contractor’s response may condition the offer on terms and conditions that are different from or in conflict with the solicitation document. When the agency uses a purchase order, the contractor’s terms and conditions should not become the basis of the agreement. lxxiii Despite the potential for conflicting or additional terms, when used properly, a purchase order is quick, efficient and rarely has problems. When using a purchase order as evidence of a contract, an agency should insure the inclusion of terms the agency wants rather than blindly accepting terms the contractor proposes. All final terms and conditions that vary from either the offer or the acceptance must be contained in a written document signed by both parties. Contract Terms During the development of the formal contract, devote careful attention to the details. There are certain clauses that are essential and some that should be included in all contracts. See Appendix 9 for examples of contract terms. Please consult with your agency’s legal counsel regarding any questions related to the applicability of contract terms because some agencies have additional statutory requirements regarding contracting. Essential Clauses and provisions that should be included: � Introduction � Dispute Resolution � Scope of Work � Contractor Responsibilities � Term of Contract � Indemnification/Damage Claims � Consideration/Price � Abandonment or Default � Specifications � Right to Audit � Funding Out Clause � Force Majeure � Antitrust � Ownership/Intellectual Property, including Rights to Data, Documents and Computer Software 55
� Payment � Independent Contractor � Affirmation Clauses � Termination � Technology Access Clause � Buy Texas Other clauses are recommended for contract inclusion depending on contract specifics. Recommended Clauses include: � Notice � Order Precedence � Patents and Copyrights � Assignment � Insurance � Propriety Information � Confidential Information (Essential for Client Services Contracts) � Substitutions � Taxes � Public Disclosure � Security/Parking Access � Smoking Policy � Drug Free Workplace Policy Federally Funded Contracts Federal grants have specific contract requirements which are outlined in the Uniform Requirements for Grants and Cooperative Agreements to State and Local Governments, (OMB Circular 102). Agencies are encouraged to ask federal agencies administering the particular grant programs to identify essential and mandatory clauses used in the State’s sub-recipient agreements. Also see the Uniform Grant Management Standards published by the Governor’s Office. http://www.governor.state.tx.us/divisions/stategrants/guidelines/view 56
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STATE OF TEXAS CONTRACT MANAGEMENT
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Exhibit C to RFP Template Compensat
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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 54 and 55: • Exemption of Goods or Services
Page 56 and 57: Any contract or mutual understandin
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
Page 104 and 105: EXHIBIT B EXECUTION OF PROPOSAL RFP
Page 106 and 107: 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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