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National Contract Management Association (NCMA) Slide 1 of 4. Formed in 1959 to foster the professional growth and educational advancement of its members Headquarters in Ashburn, Virginia www.ncmahq.org Chapters 149 Chapters in USA and 12 Foreign Countries - PowerPoint PPT Presentation
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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)
National Contract Management Association (NCMA)Slide 2 of 4
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
National Contract Management Association (NCMA)Slide 3 of 4
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
National Contract Management Association (NCMA)Slide 4 of 4
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
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Fundamentals of Contract ManagementBest Practices
Overview – Best Practices Research
Research Objectives
Research Findings – Questionnaire
Research Findings – Document Review
Contract Variable Information
Incidence of Contract Provisions in Terms and Conditions
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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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
Fundamentals of Contract ManagementBest Practices
Word that Most Compels a Contractor to Perform Tasks
[Definition of “shall” in ABA 2000 Model Procurement Code is “Shall denotes the imperative.”]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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What word most compels a contractor to perform tasks?
States Local Agencies Response
6 1 Shall
1 0 Must
5 3 Shall and Must
0 1 Shall, Must and Will
Fundamentals of Contract ManagementBest Practices
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
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At what dollar threshold are sole source justifications required?
States Local Agencies Response
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
Fundamentals of Contract ManagementBest Practices
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
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Fundamentals of Contract ManagementBest Practices
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
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Fundamentals of Contract ManagementBest Practices
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. ]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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.]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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.]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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.”]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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.]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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.]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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.]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
21
Fundamentals of Contract ManagementBest Practices
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]
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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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
Fundamentals of Contract ManagementBest Practices
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
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%
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
Incidence of Inclusion of Provisions in Contract Terms & Conditions
No Title of ProvisionIncidence
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%
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
Incidence of Inclusion of Provisions in Contract Terms & Conditions
No Title of ProvisionIncidence
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%
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
Incidence of Inclusion of Provisions in Contract Terms & Conditions
No Title of ProvisionIncidence
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%
Capitol City Chapter of CAPPONorthern California Chapter of NIGPOctober 9, 2009
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Fundamentals of Contract ManagementBest Practices
Incidence of Inclusion of Provisions in Contract Terms & Conditions
No Title of ProvisionIncidence
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%