Contract Management Handbook - UTRGV

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The University of Texas Rio Grande ValleyContractManagementHandbookPage 1 of 51Contract Management Handbook

Table of ContentsI.Purpose. 5II. Definitions . 6III. Acronyms . 9IV. Planning . 10V. Contract Management Team. 11a.Contract Risk Management .11VI. Communications Plan . 13VII. Planning for Contract Content. 13a.Needs Assessment .13b.Well Formed Procurement Objectives and Purpose .13c.Technique.14d.Research .14e.Business Model .14f.Cost Estimates .15g.Technology Contracts .15h.1.Project Management Practices .152.Texas Project Delivery Framework .163.Special Procurement Considerations for Technology Contracts .16Exempt from Contract Advisory Team .19VIII. Information Security; Access to Electronic and Information Resources . 19IX. Record Retention. 19X. Contract Formation . 19XI. Approach to Contract Formation . 19XII. Legal Elements of a Contract . 20a.Offer .20b.Acceptance .20c.Legal Purpose .20d.Mutuality of Obligation .20e.Certainty of Subject Matter .21f.Competent Parties .21XIII. Drafting the Contract. 22XIV. Planning for Contract Preparation . 22XV. Form of the Contract . 231.“Four-corner” Contracts .232.Purchase Orders .23XVI. Contract Terms . 23Page 2 of 51Contract Management Handbook

XVII.State Contracting Standards/Oversight . 25a.Enhanced Transparency .25b.Enhanced Management .25c.Enhanced Monitoring .25d.Enhanced Reporting .26XVIII.Authority to Sign Contracts . 26a.Actual Authority, not Apparent Authority .26b.Authority to Sign Contracts .271.Primary and Secondary Delegates .272.OGC Contract Review Procedures.283.Verification of Delegated Authority .28XIX. Required Check of Vendor Hold Status . 28XX. Execution of University Contracts . 29XXI. Contract Administration . 29a.Communication .29b.Familiarity with Contracting Principles .29c.Central Contract Repository .29d.Master Contract Administration File .30e.Risk Management .311.Assessment of Contract Risk .312.Risk Factors, Weights and Rating .31f.Contract Specialist Responsibilities .32g.Designating the Contract Administrator .32XXII.Performance Monitoring . 33a.Monitoring Program .33b.Determining What to Monitor .34c.Monitoring Tools .351.Site Visit.352.Desk Review .373.Expenditure Document Review .38d.Use of Contract Monitoring Findings .38e.Monitoring by Third Parties .38XXIII.Contract Reporting Obligations . 39a.Status Reports .39b.Activity Reports .39c.Vendor Performance Reports .39XXIV.a.Invoices and Payments. 39Invoices .39Page 3 of 51Contract Management Handbook

b.Payments.40c.UTRGV Contracts providing Services to Third Parties .40d.Withholding Payment .40XXV.Change Management Process . 41a.Impact of Substantial Changes to Solicited Scope of Work .41b.Administrative Changes .42c.Substantive Changes .42d.Constructive Changes.43XXVI.Dispute Resolution Process . 43XXVII.Termination. 44a.Termination for Convenience .441.Notice .442.Final Payment .44b.Termination for Cause .451.Potential for Damages .452.Cure Notice.453.Notice of Termination .46c.XXVIII.Force Majeure or Other Excusable Causes for Failure to Perform .47Contract Close-Out. 47APPENDIX 1 Sample Contract Terms . 49APPENDIX 2 Sample Contract Monitoring Worksheet . 50APPENDIX 3 Sample Contract Close-Out Checklist. 51Page 4 of 51Contract Management Handbook

I.PurposeThe purpose of this Contract Management Handbook (Handbook) is to guide contract managers,purchasing personnel and other administrators at The University of Texas Rio Grande Valley(“UTRGV” or “University”) through the contract management processes.This Handbook does not govern real estate transaction contracts (even if the transaction is a leaseunder which UTRGV provides services in exchange for compensation), sponsorship agreementsunder which UTRGV receives compensation in exchange for recognition of the sponsor, or sponsoredresearch contracts or other intellectual property agreements where UTRGV conveys an interest inintellectual property. Construction contracts are governed by separate statutory requirements andare also not addressed in this Handbook. However, this Handbook may provide helpful informationuseful in connection with contracts not expressly governed by the Handbook.For purposes of this Handbook, contract management includes the coordination and administrationof four core processes: Planning;Procurement of goods or services (including complying with HUB laws and policies);Contract Formation (including scope of work, specification of contract price or rate andother relevant terms and conditions) andContract Administration.The nature and level of risk associated with each of these contract management elements varydepending on the type of contract and the business relationship between the UTRGV andcontractor. It is the responsibility of the Executive Vice President for Finance and Administration ordesignee of UTRGV to assign responsibilities, assure appropriate training and oversight, and monitorthe processes.Fully implemented contract management requires coordinating and administering the four coreprocesses. However, contract management also involves coordination of a variety of distinctdisciplines and roles, including: Executive Management;Project Management;Planning;Program Staff (subject matter experts and monitors);Contractor Interaction;Purchasers;Accounting and Budget;Legal;Audit; andQuality Control/Assurance.The contract manager or lead for the contract management team assigned to any particular contractis responsible for assuring that all necessary and appropriate disciplines are engaged and their workwith respect to the contract coordinated to assure compliance with this Handbook, includingmeeting legal contract requirements. Various types of contracts are subject to different statutorystandards, practices, processes, and strategies for successful implementation. The suggestions,comments, techniques, examples and recommendations included in this Handbook are notappropriate for every type of contract.Page 5 of 51Contract Management Handbook

This Handbook: Summarizes certain mandatory statutory, regulatory and policy compliance requirementsrelated to UTRGV contracting activities that are evidenced by Handbook references to theapplicable statute, regulation, or policy. Provides practical suggestions and best practices related to UTRGV contracting activities whichare encouraged but not mandatory. Taking into consideration the complexity of the contracton which UTRGV is working, UTRGV should exercise reasonable business judgment whenapplying practical suggestions and best practices. Recognizing that the needs of UTRGV andthe requirements of each contract are different, the information in this Handbook is intendedto be applied flexibly, not mechanically. This Handbook provides a framework for makingcontracting decisions that are in the best interest of UTRGV. Describes the duties of the contract management team, including how to solicit and select acontractor, develop and negotiate a contract, and monitor contractor and subcontractorperformance. Supplements (but does not replace) Applicable Laws and University Rules. Discusses many general legal principles; however, these general principles include manyexceptions. This Handbook is not intended to be a manual on the law of contracts or constitutelegal advice. Contract managers should consult with UTRGV’s Office of Legal Affairs with regardto any legal questions that arise with respect to contracts. Includes model contract provisions and indicates whether each provision is essential orrecommended. Addresses the permitted extent of contract changes that may be made before a newcompetitive solicitation may be needed.This Handbook does not constitute specific legal advice on any particular issue that may arise. Feelfree to consult with appropriate legal advisors as necessary.II.DefinitionsAmendment: Written addition or change to a contract, including modifications, renewals andextensions.Applicable Laws: All applicable federal, state or local, laws, statutes, regulations, ordinances andorders.Assignment: Transfer of contractual rights from one party to another party.Biennium: The two (2) year period in which the Texas Legislature appropriates funds. The bienniumbegins on September 1st of odd numbered years.Board of Regents: The Board of Regents of The University of Texas System.Bond: Note or other form of evidence of obligation issued in temporary or definitive form, includinga note issued in anticipation of the issuance of a bond and renewal note.Page 6 of 51Contract Management Handbook

Business Entity: An entity (other than a governmental entity or state agency) through whichbusiness is conducted with UTRGV, regardless of whether the entity is a for-profit or nonprofitentity.Certificate of Filing: The disclosure acknowledgement issued by the Texas Ethics Commission tothe filing Business Entity.Consultant: A person that provides or proposes to provide a consulting service.Consulting Service: Practice of studying or advising a state agency under a contract that does notinvolve the traditional employer/employee relationship (ref. Texas Government Code, §2254.021Definitions).Contract: An agreement (including a purchase order) where a contractor provides goods/servicesto UTRGV and UTRGV pays for such goods/services in accordance with the established price, termsand conditions, as well as an agreement under which a contractor is given an opportunity toconduct a business enterprise on UTRGV’s premises in exchange for compensation to UTRGV (i.e.,auxiliary enterprise contracts).Contract Administration: This generally refers to the processes that occur after a contract is signedand is explained in detail in Chapter 4.Contract Administrator: A person who is employed by UTRGV and oversees a particular contract.Contract Advisory Team: The team created to assist state agencies in improving contractmanagement practices (ref. Texas Government Code, Chapter 2262 Statewide ContractManagement, Subchapter C Contract Advisory Team).Contract Management: The entire contracting process from planning through contractadministration, including contract closeout.Contract Manager: A person who is employed by UTRGV and has significant contract managementduties for UTRGV.Contractor (or Vendor): A business entity or individual that has a contract to providegoods/services to UTRGV.Deliverable: A unit or increment of work required by a contract, including such items as goods,services, reports, or documents.Handbook: The University of Texas Rio Grande Valley Contract Management Handbook.Historically Underutilized Business (HUB): A minority-owned, woman-owned or certain disabledveteran-owned businesses as defined by Texas Government Code, Title 10, Subtitle D, Chapter2161. b/).Institutions of Higher Education: Institutions of higher education as defined by Texas EducationCode, §61.003(8).Institution: UT System and the institutions comprising UT System as listed in Regents’ Rule 40601.Negotiations: A consensual bargaining process in which the parties attempt to reach agreementPage 7 of 51Contract Management Handbook

on a disputed or potentially disputed matter. In a contractual sense, negotiation means the“dealings conducted between two or more parties for the purpose of reaching an understanding.”Payment Bond: A bond executed in connection with a contract which secures the paymentrequirements of contractor.Performance Bond: A surety bond that provides assurance of a contractor’s performance of acertain contract. The amount for the performance bond is based on the value of the contract.Professional Services: Services directly related to professional practices as defined by theProfessional Services Procurement Act (Texas Government Code, §2254.002). These includeservices within the scope of the practice of: accounting; architecture; optometry; medicine; landsurveying; and professional engineering. Services provided by professionals outside the scope oftheir profession (for example, management consulting services provided by accounting firms) arenot considered professional services. Contracted services provided by professionals that fall outsidetheir scope of practice are governed by the Best Value Statutes applicable to the purchase ofgoods/services.Regents’ Rules: The Rules and Regulations of the Board of Regents of The University of TexasSystem.Renewal: Extension of the term of an existing contract for an additional time period in accordancewith the terms and conditions of the original or amended contract.Respondent: An entity submitting a proposal in response to a solicitation. The term includesanyone acting on behalf of the individual or other entity that submits a proposal, such as agents,employees and representatives (see Proposer).Responsible: A respondent that is capable of fully performing and delivering goods/services inaccordance with the contract requirements. UTRGV may include past performance, financialcapabilities and business management as criteria for determining if a respondent is capable ofsatisfying the contract requirements.Scope of Work (SOW): An accurate, complete, detailed, and concise description of the work to beperformed by the contractor.Service: The furnishing of skilled or unskilled labor by a contractor which may not include thedelivery of a tangible end product. In some cases, services and goods may be combined (such asfilm processing). In these instances, UTRGV should determine whether labor or goods is theprimary factor. In the case of film processing, the labor to process the film is the primary factor,therefore film processing is considered a service.Sole Source: (see Exclusive Acquisition)Solicitation: A document requesting submittal of bids, proposals, quotes or qualifications forgoods/services in accordance with the advertised specifications.Specification: Any description of the physical or functional characteristics or of the nature ofgoods/services to be purchased. It may include a description of any requirements for inspecting,testing, or preparing goods/services for delivery.State: The State of Texas.Page 8 of 51Contract Management Handbook

State Agency: An agency of the State of Texas as defined in Texas Government Code, §2056.001(excluding Institutions).Statute: A law enacted by a legislature.Sub-recipient: A non-federal entity that expends federal awards received from a pass-throughentity to carry out a federal program, but does not include an individual that is a beneficiary ofsuch a program. A sub-recipient may also be a recipient of other federal awards directly from afederal awarding agency.Surety: A person or entity providing a bond to a contractor to indemnify UTRGV against all directand consequential damages suffered by failure of contractor to perform the contract and to payall lawful claims of subcontractors, materials vendors and laborers as applicable.University Rules: The Regents’ Rules at http://www.utsystem.edu/board-of-regents/rules; thepolicies of UT System at brary; and rules,regulations and policies of UTRGV.UTRGV or University: The University of Texas Rio Grande Valley.UT System: The University of Texas System.Vendor (or Contractor): A business entity or individual that has a contract to providegoods/services to UTRGV.III.AcronymsCPA:State of Texas Comptroller of Public AccountsDIR:State of Texas Department of Information ResourcesEIR:Electronic and Information ResourcesHSP:HUB Subcontracting PlanHUB:Historically Underutilized BusinessIFB:Best Value Invitation for Bid (also known as Invitation to Bid or ITB)IHE:Institution of Higher EducationIR:Information ResourcesLBB:Texas Legislative Budget BoardOGC:The University of Texas System Office of General CounselSAO:State of Texas Auditor’s OfficeSOW: Scope of WorkPage 9 of 51Contract Management Handbook

IV.TAC:Texas Administrative CodeTPSS:Texas Procurement and Support Services Division of CPAPlanningThe first step in contract management is planning. Planning is crucial to the successful outcomeof any procurement. With proper planning, UTRGV is more likely to successfully achievecontracting objectives. Planning assists in determining and documenting need, preparing theSOW, choosing the appropriate procurement type, soliciting for responses, negotiating the termsof the responses, drafting the contract, administrating and overseeing the contract, andmonitoring the contractor. If the procurement cannot be handled simply through thedevelopment of a straightforward IFB and purchase order, these steps can be complex and thereare many opportunities for error to be introduced into the process. Proper planning will reduceor eliminate the risk of error.During the planning phase, each of the following elements of contract management will actManagementContract Formation/Rate/Price EstablishmentPlan – Identify contracting objectives and contracting strategy.Procurement – Fairly and objectively select the most qualified contractor(s).Contract Formation/Rate/Price Establishment – Ensure the contract contains provisions thathold contractor(s) accountable for producing desired results, including all relevant terms and conditionsas well as establishing processes that are cost-effective and aligned with the cost of providing thegoods/services.Contract Oversight – Monitor and enforce the terms of the contract.The level of risk associated with each of these elements varies depending on the type of businessrelationship between UTRGV and the contractor. For example, the nature and extent of contractmonitoring will vary considerably between fee for service and cost reimbursement types ofrelationships.Contract planning includes several preliminary steps, including development of a contractmanagement team, developing a communication plan, determining the procurement method,developing the specifications and SOW for the goods/services, assessing contracting risk anddeveloping a cost estimate.Page 10 of 51Contract Management Handbook

V.Contract Management TeamFor purchases requiring competitive procurement, each contract management initiative shouldinclude an executive sponsor, a contract manager, purchasing office staff, HUB office staff andprogram staff to assist in the contract management process.The extent and degree of executive sponsorship and participation should be directly related tothe level of risk associated with the procurement. For some contracts, written approval of theexecutive sponsor should be obtained.The contract manager should be experienced with the proposed type and size of contract.Certified purchasers will be familiar with this Handbook, even though the purchaser may not bethe designated contract manager. Purchasing personnel will review all procurements above thecompetitive threshold to ensure that Applicable Laws and University Rules relating toprocurement processes are followed and that the procurement method is appropriate.The HUB office will review contracts that may exceed 100,000 in value to ensure compliancewith HUB laws and regulations.The program staff will provide input as to the technical requirements and serve as the subjectmatter

management practices (ref. Texas Government Code, Chapter 2262 Statewide Contract Management, Subchapter C Contract Advisory Team). Contract Management: The entire contracting process from planning through contract administration, including contract closeout. Contract Manager: A person who is employed by UTRGV and has significant contract .

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