national contract management association (ncma) slide 1 of 4

National Contract Management Association (NCMA)Slide 1 of 4

Formed in 1959 to foster the professional growth and educational advancement of its membersHeadquarters in Ashburn, Virginia www.ncmahq.orgChapters

149 Chapters in USA and 12 Foreign CountriesLocal Chapter is the Sacramento Gold Rush Chapter

MembersAbout 18,000 MembersGovernment Agency Contract ProfessionalsGovernment Contract ProfessionalsCommercial Contract Professionals

Certification ProgramsCertified Professional Contracts Manager (CPCM)Certified Commercial Contracts Manager (CCCM)Certified Federal Contracts Manager (CFCM)

http://www.ncmahq.org/


PublicationsContract Management (Monthly Magazine)Journal of Contract Management (Quarterly Research Oriented)NCMA Published, Distributed, and Recommended Books

Training Opportunities/MaterialsWorld CongressAerospace and Defense Contract Management ConferenceAudio SeminarsE-CoursesNational Education SeminarsCertification Training Materials19 Education Partners

Career OpportunitiesPost Job OpeningsFind a Job


Chapter AwardsWalter R. Graalman Award

Member AwardsFellow AwardAlbert Berger Outstanding Chapter Leadership AwardAlvis D. Keen Honorary Life Member AwardArthur G. Muller Annual Volunteer AwardBlanche Witte Memorial Foundation Annual AwardCharles A. Dana Distinguished Service AwardCharles Delaney Memorial Annual AwardExcellence in Contracts ProfessionalismHerbert Roback Memorial AwardJames E. Cravens Membership AwardNational Achievement AwardNational Education AwardNCMA – ESI International Global Contracting AwardOutstanding Fellow AwardW. Gregor Macfarlan Excellence in Contract Management Research

and Writing


Upcoming Seminar by NCMA Sacramento Gold Rush ChapterNovember 12, 2009 – 8:30 AM to 5:00 PMDeadline for Early Bird Registration October 10, 2009Title: “Service Contracting for State and Local Government”Delta King Hotel, 1000 Front Street, Old Sacramento, CaliforniaCourse Outline

Advance Contract Planning through Contract Administration (See Flyer for Details)Proposal Evaluation ExerciseNegotiation Exercise

Registration Fee IncludesFull-Day SeminarBook “Contracting for Services in State and Local Government Agencies”Compact Disk with Best Practices RFP & Contract + Other Contract Management ToolsBreakfastLunch8 Continuing Education Hours

The Northern California Chapter of NIGPand the

Capitol City Chapter of CAPPO

Sixth Annual Cooperative ConferenceOctober 9, 2009

Fundamentals of Contract ManagementBest Practices

William Sims Curry, CPCM, Fellowwww.WSC-Consulting.com

A State of California Certified SB/MB/DVBE

Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009

5


Overview – Best Practices Research

Research Objectives

Research Findings – Questionnaire

Research Findings – Document Review

Contract Variable Information

Incidence of Contract Provisions in Terms and Conditions


6


Research Project Objectives

Determine Service Contracting Best Practices in States and Local Government Agencies to:

Prepare RFP & Service Contract Templates for Use by all State & Local Government Agencies

Include Discussion of Best Practices in “Contracting for Services in State and Local Government Agencies” and “Government Contracting: Promises and Perils.”

Prepare CD Accompanying Book to Provide MS Word Version of RFP, Service Contract & Other Contract Management Tools


7


Fifty States, Fifty Cities and Fifty Counties were Invited to Participate in the Research Project

Participating AgenciesSTATES

California Connecticut Hawaii IowaKentucky Maryland Massachusetts New YorkNorth Carolina Ohio Pennsylvania Rhode IslandSouth Dakota Texas Utah WashingtonWest Virginia

LOCAL AGENCIES

City of Des Moines, IA City/Borough of Juneau, AKCity of Montgomery, AL Maricopa County, AZOklahoma County, OK City of Richmond, VA


8


Cost-Plus-A-Percentage-of-Cost Contracts not Permitted

Footnote: Cost-Plus-a-Percentage-of-Cost (CPPC) contracts are not permitted by numerous states nor in federal government contracting, because it has been determined that this contract type may provide an incentive for contractors to maximize reimbursable expenditures to increase their profit. [ABA 2000 Model Procurement Code Discourages Use of CPPC Contracts]


9

Are Cost-Plus-a-Percentage-of-Cost Contracts Permitted?

States Local Agencies Response

3 1 Yes

1 0 Yes, but not used

1 0 Yes, but rare

6 4 No

1 0 Don’t know

0 1 No Response


Word that Most Compels a Contractor to Perform Tasks

[Definition of “shall” in ABA 2000 Model Procurement Code is “Shall denotes the imperative.”]


10

What word most compels a contractor to perform tasks?


6 1 Shall

1 0 Must

5 3 Shall and Must

0 1 Shall, Must and Will


Threshold where Sole Source Justifications are Required

[ABA 2000 Model Procurement Code indicates that sole source should require written determination by an agency official that there is only one source.]Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009

11

At what dollar threshold are sole source justifications required?


0 1 No dollar amount, but sole source must be proven

1 1 $1,000

2 0 $2,500

3 1 $3,000 to $3,100

3 2 $5,000

0 1 $10,000

2 0 $50,000

1 0 $62,600


Identification of a Website in RFPs

Fifty-nine percent (59%) of the RFPs identified a website for either:

General Information About the Agency & Contracting Program

Announcement of Active Solicitations

Information on Registration as a Prospective Contractor

Posing Contractor Questions Regarding Active Solicitations and Agency Responses

[The National Purchasing Institute’s (NPI’s) criteria for the 2008 Achievement of Excellence in Procurement (AEP) award includes the availability of an Internet home page with a link to purchasing activities, on-line registration of prospective contractors, distribution of solicitations via the Internet and electronic commerce.]Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009

12


Use of a Website to Manage Pre-Proposal Communications

Thirty-two Percent (32%) of the RFPs Identified a Website to Manage Pre-Proposal Communications. In the Majority of Cases, Pre-Proposal Communications are Managed by:

Questions from Prospective Contractors may be Posed Solely via Email

Questions Posed via Telephone or in Face-to-Face Meetings are not Acceptable

Date for Receipt of Questions is No-Later-Than One Week Prior to RFP Due Date

Agency Posts Contractor Questions and Agency Responses on Website

[The original 1979 American Bar Association (ABA) Model Procurement Code for State and Local Governments includes eleven basic principles that have been preserved. There is now a 2000 Model Procurement Code for State and Local Governments. The fifth basic principle from the 1979 code is “Equal Treatment of Bidders/Offerors.” Posting questions regarding solicitations and agency responses to a website for all to see while prohibiting alternative methods for posing questions is an excellent practice that promotes equal treatment of prospective contractors.]Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009

13


No Preference Given to Local Contractors

Eighteen Percent (18%) of the RFPs Indicated that a Preference would be given to Local Contractors.

Thirty-six Percent (36%) of the RFPs Indicated Socioeconomic Preferences Other than for Local Contractors.

[The Code of Federal Regulations (CFR) states in 28 CFR, PART 35, STATE AND LOCAL ASSISTANCE, Part 35.936.2, Grantee procurement systems; State or local law, subpart (C) Preference, states, State or local laws, ordinances, regulations or procedures which effectively give local or in-State bidders or proposers preference over other bidders or proposers shall not be employed in evaluating bids or proposals for subagreements under a grant. Similar prohibitions are also included in CFR Subpart 35.938-4, Formal advertising. ]


14


Reference to Contractors in the RFP and Contract Solely as “Contractor” or “Prospective Contractor”

Eighteen Percent (18%) of the RFPs referred to Contractors as “Contractor” or “Prospective Contractor.” The other RFPs and Contracts Referred to Contractors as “Vendors” or some other Term.

Fourteen Percent(14%) of the RFPs referred to Contractors as “Offerors.”

[Virtually all the contracts submitted in support of the research project identified the contractor by company name and address in the preamble of the contract, and then indicated that the contractor will subsequently be referred to as “Contractor.”. However, oftentimes the contractors are subsequently referred to in the contract as “vendors. A lesser reason for not referring to contractors as vendors is that the term “vendor” is more appropriate for companies that sell food products from vending machines, at sporting events, or from good carts.]


15


Use Weighted Proposal Evaluation Criteria

Forty-five Percent (45%) of the RFPs Identified Proposal Evaluation Criteria that were Weighted to Cause Greater Importance to Certain Criteria During the Proposal Evaluation Process.

[The ABA 2000 Model Procurement Code for State and Local Governments includes §3-203(5), Evaluation Factors, that states that the RFP “shall state the relative importance of price and other factors and subfactors.” The only known way to reflect the “relative importance” of the various evaluation factors would be some scheme to assign weights to each of the criteria.]


16


Price Stated as One Criterion for Evaluation of Proposals

Thirty-six Percent (36%) of the RFPs Identified Price as an Evaluation Criterion in the Proposal Evaluation Process.

[The ABA 2000 Model Procurement Code for State and Local Governments includes §3-203(7), Award, that states award shall be made on the basis of “price and the evaluation factors set forth in the Request for Proposals.”]


17


Specification of the Format and Page Limits for Contractor Prepared Proposals

Seventy-three Percent (73%) of the RFPs Specified the Format and Five Percent (5%) Set Page Limits for Proposals Submitted in Response to the RFP.

[There is no known statutory requirement or organizational

recommendation for specifying the format for proposals; however, the benefits of homogeneous proposals are:Greatly Simplifies the Process for Evaluating ProposalsFacilitates Equal Treatment of Contractors]


18


Model Contract Included in RFPs

Seventy-seven Percent (77%) of the RFPs Included a Model Contract and Fourteen Percent (14%) of the RFPs Included the Agency’s Terms and Conditions.

[The nearly universal practice of including a model contract in solicitations supports designation of this practice as a best practice. This practice discourages contractors from proposing their own contract format. The solicitation should also have a statement to the effect that the Agency intends to award a contract substantially in the format of the attached Model Contract.]


19


Statement in RFP that Proposals will be Opened in Confidence

Thirty-two Percent (32%) of the RFPs Stated that the Proposals would be Opened in Confidence. Thirty-six Percent (36%) Announced Public Openings, but Nine Percent of those RFPs Said that Pricing would be Treated Confidentially.

[The ABA’s 2000 Model Procurement Code for State and Local Governments §3-203(4), Receipt of Proposals, states that proposals are to be opened so as to avoid disclosure of contents & made available for public disclosure following contract award.]


20


Late Proposals Accepted if in the Best Interests of the Agency

None (0%) of the RFPs Specifically Permitted Acceptance of Late Proposals. However, Nine Percent (9%) of the RFPs Did Not Exclude the Possibility of Accepting Late Proposals.

[Bids in Response to an IFB Must be Opened Publicly. Therefore, it is Unreasonable to Consider Acceptance of Late Bids. However, Proposals in Response to an RFP are Opened in Confidence. Therefore, Acceptance of Late Proposals is not Unreasonable. California Public Contract Code §10344 Prohibits State Agencies from Accepting Late Proposals.]


21


One-Page Contract Format with Incorporated Attachments

Twenty-three Percent (23%) of the Service Contracts were in a One-Page Format with Incorporated Attachments.

[There are no known statutes or organizations that require or encourage use of a one-page contract format; however, the advantages of the format make it worthy of consideration. Advantages of the one-page format are:Reduces contract error rateReduces probability of unauthorized contract changesSimplifies preparation of contract documentIncreases confidence for official reviewing or executing the contract]


22

23

VARIABLE INFORMATION TABLE

Contract Number

Contract Term Begins Contract Term Ends

Agency Department FOB Point

Terms Basis for Price [√ One Below]

Price Fixed Price Monthly Price Hourly Rate

Contractor Contact Information Agency Contact Information

Contractor Project Manager

Street Address Street Address

City/State/ZIP City/State/ZIP

Telephone Telephone

Email Email




24


Incidence of Inclusion of Provisions in Contract Terms & Conditions

No Title of ProvisionIncidence

Number Percent

1 Term 21 100%

2 Termination for Default 19 90%

3 Force Majeure 9 43%

4 Liquidated Damages 2 10%

5 Termination for Convenience 17 81%

6 Termination Transition 2 10%

7 Contractor Reimbursement 21 100%

8 Payment Terms 21 100%

9 Set-Off 5 24%

10 Agency Project Manager 7 33%


25




Number Percent

11 Key Personnel 3 14%

12 Independent Contractor 13 62%

13a Confidentiality 10 48%

13b Ownership 10 48%

14 Indemnification 18 86%

15 Insurance 13 62%

16 Amendments 18 86%

17 Waiver of Rights 7 33%

18 Compliance with Laws 14 67%

19 Americans with Disabilities Act 3 14%


26




Number Percent

20 Health Insurance Portability and Accountability Act 1 5%

21 Nondiscrimination 17 81%

22 Drug Free Workplace 5 24%

23 Workers’ Compensation 13 62%

24 Contactor’s Standard of Care 10 48%

25 Care of Property 3 14%

26 Advertising 4 19%

27 Performance Evaluation 1 5%

28 Inspection of Work and Project Site 2 10%

29 Applicable Law and Forum 18 86%


27




Number Percent

30 Successors and Assigns 16 76%

31 Subcontracting 17 81%

32 Unallowable Costs 1 5%

33a Audit & Employee Interviews 15 71%

33b Document Retention 16 76%

34 Remedies not Exclusive 3 14%

35 Conflict of Interest 13 62%

36 Contractor Integrity 7 33%

37 Political Contribution Disclosure 5 24%

38 Assignment of Antitrust Claims 3 14%


28




Number Percent

39 Payment of Taxes 9 43%

40 Officials not to Prosper 6 29%

41 Copyrights 7 33%

42 Budget Contingency 12 57%

43 Counterparts 3 14%

44 Severability 11 52%

45 Notices 7 33%

46 Titles, Headings or Captions 4 19%

47a Entire Agreement 9 43%

47b Survival of Provisions beyond the Contract Term 7 33%

national contract management association (ncma) slide 1 of 4

Documents