A&E PROCUREMENTA Brief Overview

FORMS & DOCUMENTS

PROCUREMENT TYPES

TIMELINES

INVOICING

TRAINING REQ’S

Contracts andAgreements

Write what you want, because you’ll get what you write.

Overview & Objectives • Identify Roles and Responsibilities

• Sourcing Methods• Documents That Are Required• Focus: Statement of Work• Procurement Timelines• Special Topics: Negotiations• Special Topics: Contractual Remedies

Learning Objectives

Roles & Responsibilities

Acronyms: NTP – Notice to Proceed RON – Record of NegotiationsBOC – Breakdown of Costs

4

Sourcing Methods

• Formal Selection• Direct Appointment • Small Purchase Process• Mini-Solicitation from a Price Agreement• Amendments

Procurement Types

SourcingMethods ODOT Rules

Small Purchase: Estimated fee is not expected to exceed $250,000; similar in nature to an intermediate procurement

process. [OAR 731-148-0205]

Noncompetitive [for example, emergencies]Direct Appointment Procedure:

Estimated Fee Not to exceed $100,000 [OAR 731-148-0200]

Note: Can not be utilized with FAHP funding

Formal Selection Procedure: Estimated fee is expected to exceed $250,000

[OAR 731-148-0220]

Competitive Negotiations (comparable to OAR 731-148-0220

Formal Selection Procedure)

Code of Federal Regulations (CFR)

Procurement Thresholds

6

Small Purchase: Estimated fee is not expected to exceed $250,000. Rule created

to satisfy CFR Requirements for FAHP funded projects under $250,000.00

[OAR 731-148-0205]

Sourcing Methods

All Procurement Types (Except Direct Appointment and Small Purchase)

• Typical Advertisement: 14 to 30 days• Estimated dollar amount might require DOJ Review of

solicitation and contract• Requires evaluation committee (minimum of three)• Protests• Negotiations

RequiredDocumentation

• Internal Estimate• Risk Assessment• SOW• RON – after• BOC – after award• Profit Fee – after award

Acronyms: SOW – Statement of WorkRON – Record of NegotiationsBOC – Breakdown of Costs

Required Documentation

Documents to be Collected by OPO

• Tax Identification Number Form (TIN Form)• Responsibility Inquiry• Insurance • Contract Verification Form (if required)• Direct Award Certification (if required)• Other Project Related Documents

Statements Of Work

What is Currently (Often) Used

• Old ODOT Personal Services Contracts (PSKs)• Current ODOT PSKs• Old Local Agency PSKs• Current Local Agency PSKs• New Templates

Statements Of Work

What is Available

• ODOT Statement of Work Library• Compilation of SOWs from across the agency and disciplines• Disciplines update these and send them to OPO to be posted

• Be sure to follow the Statement of Work writing guide and Statement of Work outline template if creating your own new SOW.

**NOTE** Not all SOWs have not been reviewed by OPO for conformance with the SOW Writing Guide. These are provided as a resource from our business partners.

Statements Of Work

Current Templates

• Geo-Environmental SOWs:• Air Quality, • Archaeology, • Biological Services, • Erosion Control, • Geo Related Services, • Hazardous Materials, • Historic Resources, • NEPA, • Noise, • Roadside Development, • Water Quality, • Wetlands and Waterways

Statements Of Work

Current Templates

• Cost Risk Assessment• Project Risk Management• Survey• Value Engineering Study• Full Service SOW• Local Agency Project Templates

• Project Management, Survey, Environmental, Public Involvement, Utility Coordination, Geotechnical & Pavement, Hydraulics, Traffic Engineering, Railroad Coordination, Roadway Design, Bridge Design, Local Permits, Design Acceptance Package (DAP), Right of Way, PS&E, Bid & Award Assistance

• Contract Administration & Construction Engineering

ProcurementTimelines

Solicitations and Agreements

Procurement Timelines

Contracts and Amendments

Special Topics:Negotiations

ODOT Negotiation PhilosophyAs stewards of public funds, we negotiate our contracts to ensure we pay a fair and reasonable price while obtaining the best value and quality of services available. This philosophy embodies an expected business practice for all contracting efforts, ensuring the most efficient use of funds and resources, and remains a core work responsibility for all employees.

Overall

A thorough statement of work (SOW) and mutual understandingof the objectives, requirements and pertinent technical criteria is the basis for ODOT and the consultant, negotiating a fair and reasonable price, successful performance, and fair and effective administration of the Contract.

Special Topics:Negotiations

What do we negotiate?

• Scope, schedule, budget• Level of effort/hours• Deliverables, tasks, products, services activities• Objectives, outcomes, methods, approach and results• Contingency triggers• Assumptions, risk transfer• QA/QC• Roles and responsibilities, expectations• Staff resources, skill/class level, key staff• Compensation method, compensation items like travel costs,

overhead profit (when applicable)• Delivery options, alternatives, flexibility• Anything else that would provide or improve the best value

Special Topics:Negotiations

Recommended Process

1. Assemble a negotiation team.2. Prepare a draft statement of work.3. Review and revise statement of work with selected consultant.4. Prepare ODOT's detailed internal cost estimate prior to receipt of

Consultant estimate (use of a Breakdown of Costs template is preferred).

5. Compare ODOT's internal cost estimate with Consultant's cost proposal and identify areas of significant differences.

6. Identify items to be negotiated and prepare negotiation objectives.7. Negotiate items with selected consultant; document decisions

made.8. Send final agreed-to documents to the ODOT Procurement Office,

including the final negotiated statement of work, ODOT's internal cost estimate, Consultant's initial cost proposal, final agreed-to breakdown of costs, and the Record of Negotiations form.

Special Topics: Contract Remedies

Remedies

1. Notice of Breach2. Notice of Default / Notice to Cure3. Corrective Work4. Withholding/Retainage5. Payment Reduction6. Dispute Resolution7. Errors & Omissions Claims Process8. Termination

Special Topics: Contract Remedies

Remedies

1. Notice of BreachWhen a party of the contract does not deliver upon their contractual obligations under the agreed-to terms and conditions of the contract. This states what has happened or is happening, identifies the section of the contract violated, restates the expectation of the contract, and a date of when the breach needs to be cured.

2. Notice of Default / Notice to CureThis states similar language to a Notice of Breach, however it also adds that the consultant is actually in default of the contract, that the consultant must cure the default within the specified timeline, and if the consultant doesn’t cure the default – the Agency may or will terminate the contract for cause.

Special Topics: Contract Remedies

Remedies

3. Corrective WorkIf Agency, using reasonable discretion, determines that the Services or associated deliverables, or both, are unacceptable, Agency shall notify Consultant in writing of the deficiency. Within 7 calendar days (unless a different timeframe is agreed to by the Parties) of receipt of the deficiency notification Consultant shall respond to Agency outlining how the deficiency shall be corrected. Consultant shall correct any deficiencies in the Services and deliverables to Agency’s satisfaction without further compensation.

4. Withholding/RetainageAgency reserves the right to initiate, at any time during the Contract, withholding of payment equal to 5% of the amount of each invoice submitted to Agency under the Contract.

Special Topics: Contract Remedies

Remedies

5. Payment ReductionAgency, or its duly authorized agents, may audit Consultant’s fiscal records, including certified payroll and overhead records at any time. If Agency finds previously undisclosed inaccurate or improper costs have been invoiced and paid, Agency will notify Consultant and seek clarification. Agency, in its sole discretion, may reduce the payment for Services by withholding the inaccurate or improper amounts from any future payment to Consultant, may withhold the inaccurate or improper amounts from final payment to Consultant, or may use any other means to seek recovery of already paid but improperly calculated amounts

Special Topics: Contract Remedies

Remedies

6. Dispute ResolutionIn the event of a dispute between the Parties regarding any aspect of the Contract or performance under the Contract, the Parties agree to attempt in good faith to resolve any such dispute through direct communications and negotiations. In the event good faith efforts do not resolve the dispute, the Parties agree to make a good faith effort to determine if mediation might resolve any such dispute.

Special Topics: Contract Remedies

Remedies

7. Errors & Omissions Claims (typically Exhibit I)The goals of the E&O claims process are to:• Identify E&O issues and associated costs early• Require timely notification to the Consultant of problem issues• Establish a requirement to work together to correct, mitigate, or

minimize the effects on the construction project’s quality, schedule and budget and

• To identify associated costs when the standard of care has not been met and provide resolution of responsibility for “Premium” Costs incurred.

The process is focused on resolving issues at the lowest possible administrative levels in a spirit of collaboration. If the Agency CA cannot reach resolution with the Consultant regarding E&O issues, however, the Agency CA may request a standard of care determination from the Chief Engineer.

Special Topics: Contract Remedies

Remedies

8. Termination

a. Termination by Mutual Consent. The Contract may be terminated at any time, in whole or in part, by mutual written consent of the Parties.

b. Agency's Right to Terminate for Convenience. Agency may, at its sole discretion, terminate the Contract, in whole or in part, upon 30 calendar days prior written notice to Consultant.

c. Agency's Right to Terminate for Cause. Agency may terminate the Contract, in whole or in part, immediately upon written notice to Consultant or at such later date as Agency may establish in such notice, upon the occurrence of any of the following events:

Special Topics: Contract Remedies

Remedies

8. Terminationc. Agency's Right to Terminate for Cause events:(i) Agency fails to receive appropriation or funding;(ii) Federal, State or local laws are modified or interpreted in such

a way that either the Services under the Contract are prohibited or Agency is prohibited from paying for Services;

(iii) Consultant no longer holds any license or certificate that is required to perform the Services;

(iv) Consultant has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State;

(v) Consultant commits any material breach or default of any covenant, warranty, obligation, certification or agreement under the Contract, and fails to perform the Services under the Contract within the time specified and is not cured within 14 calendar days after Agency's notice to Consultant – or later.

ResourcesODOT Procurement Office Intranet

• Price Agreement List

• A&E Full-Service PAs (for ODOT and LPA projects)

• TLUP – Transportation Land Use Planning PAs

• PSK Request Form

• SOW Templates

• Contract Administration

• Negotiations

• Billing Rates

• Standards, Policies & Procedures

• Risk Management

Conclusion

+ Well Managed Selection Process

+ Well Written Contract

+ Good Contract Administration

Contributes to a Successful Contract

The success of the contract

contributesto the success of project.