Upload
katelyn-oneal
View
224
Download
5
Tags:
Embed Size (px)
Citation preview
Statement of Workfor
Personal Services Contracts
Oregon Department of TransportationProcurement Office
April 17, 2012
Slide 1
Introductions
• Your name
• Where you work
• What types of projects you manage
Slide 2
Training Outline
• General info about Statement of Work
• Overview of development and review process
• Contract writing style
• Guidelines for developing a Statement of Work
• Resources
Slide 3
General Information about Statement of Work
Slide 4
Trade Services
Personal Services
ODOT procures a variety of things
Goods
Personal Services
A&E Related Services
Non-A&E
Types of Personal Services
Slide 6
A&E
Scope of Work Statement of Work (SOW)
Slide 7
What’s the difference?
Scope of Work
• An idea or concept
• A range of services and deliverables
• Defines the parameters of what could be included
Statement of Work
• A document
• Heart of the contract; explains “the deal”
• Specifies details about the commitments:– To provide Services– To prepare Deliverables– To solve a problem
Slide 8
Why is this important to know?
Slide 9
RFPScope of Work
Project Specific Contract
Amd
Slide 10
RFP Scope of Work
PA Scope of Work
WOCScope of Work
WOC
Amd
Amd
Slide 11
Amending a Contract(when under DAS authority)
To amend a contract: • Must be within Scope of Work• Either stated as an “Anticipated Amendment”
or within limits for “Unanticipated Amendment”
Contract with SOW
Amd 1 with SOW
Amd 2 with SOW
Unanticipated Amendments
• Cumulative amount of unanticipated amendments cannot exceed 20% of original contract amount.
• If exceeds 20% of original contract amount, must meet criteria in OAR 125-246-0560 and be approved in writing by ODOT’s Designated Procurement Office or DAS’ Chief Procurement Officer.
Amendments
Contract• Anticipated Amendments
– Development
– Implementation
– Training
– Increase Term
– Increase NTE Amount
• Unanticipated Amendments
“Anticipated Amendments” identified in the Contract
Amendments
Contract• Anticipated Amendments
– Development
– Implementation
– Training
– Increase Term
– Increase NTE Amount
• Unanticipated Amendments
Amendment #1• Add SOW for Development• Increase Term • Increase NTE Amount
Amendment #2• Add a subconsultant
to Contract
Where to include a SOW
Project Specific Contract
Request for Proposal
ODOT
RFP
CONTRACT
Slide 17
Menu of Services
Statement of WorkRequest for Proposal
Price AgreementWork Order Contracts
Work Order Contract
Slide 18
Statement of Work can also be used in…
• Intergovernmental Agreements
• Direct Appointment Contracts
• Sole Source Contracts
• Amendments
Slide 19
Believe it or not…
Even though you’ve used the same consultant on similar projects in the past and “they know what they are doing”, it is still important to have a well written Statement of Work that clearly explains the deal.
Slide 20
Write for all Potential Audiences• Consultants
• Oregon Dept of Transportation
• Dept of Administrative Services
• Department of Justice
• Secretary of State
• Politicians
• Court
• Public Slide 21
Legal Sufficiency
• Requirements per OAR 137-045-0015
• Applies to RFP, Contracts, and Amendments
• Do not fragment services into separate contracts to avoid requirements
• Must be legally sufficient regardless of contract amount
Slide 22
DOJ Video
Legal Sufficiency Review
Slide 23
Well-written Statement of Work
• Meets legal sufficiency requirements
• Clearly assigns obligations and responsibilities
• Clearly describes requirements and expectations
• Defines deliverables and delivery schedule
Slide 24
Well-written Statement of Work
• Identifies acceptance criteria
• Minimizes risk of interpretation errors
• Ties deliverables to consultant payments
• Enough detail to adequately administer it to a success outcome
• Withstands changes in staffingSlide 25
Statement of Work Development Process
OPOOPO DOJDOJ
SOWSOW
Slide 26
Cast of Characters
• Contract Administrator (often Project Manager)
• Price Agreement Administrator
• Subject-matter experts
• Project stakeholders
• ODOT Procurement Office
• Dept of Administrative Services (DAS/SPO)
• Department of Justice attorneys
• Federal Highway Administration or Federal Transit Administration
• Consultant Slide 27
Consultant’s Contributions• Prior to Consultant Selection
– Request for Proposal, however Consultant ineligible to compete for contract
• After Consultant Selection
– Project Specific Contract
– Work Order Contract
– Direct Appointment Contract
– Sole Source Contract
– Amendments Slide 28
Contract Administrator
DOJ
PA Administrator
Stakeholders
Subject-Matter Experts
Developing the RFP or Contract
ODOT Procurement Office
Consultant
When over $150,000
Slide 29
Contract Administrator
DOJ
PA Administrator
Stakeholders
Subject-Matter Experts
RFP and Contracts for IT
ODOT Procurement Office
Consultant
When over $150,000
Slide 30
IT Procurement & Asset Management
Contract Writing Style
Slide 31
“One should aim not at being possible to understand, but at being impossible to misunderstand.”
~ Marcus Fabius Quintilian
Write Clearly and Concisely
• Clear language
• Clear authority
• Well Organized
• Plain Language
Slide 33
Clear Language
• Avoid ambiguous language
• Consistent use of defined terms
• Define abbreviations and acronyms
Slide 34
Avoid Ambiguous Language
• Ambiguous language are words or phrases with more than one interpretation.
• Words or phrases such as:
we
they
our
assist
help
work with
acceptable
reasonable
best efforts
Industry standardsSlide 35
Avoid Ambiguous Language
Ambiguous:We shall attend the Technical Advisory Committee meeting to present the draft survey findings.
Slide 36
Avoid Ambiguous Language
Ambiguous:We shall attend the Technical Advisory Committee meeting to present the draft survey findings.
Instead of using “they”, “we” or “our”… assign responsibilities to either Consultant or Agency.
Revised:Consultant shall attend the Technical Advisory Committee meeting to present the draft survey findings.
Slide 37
Avoid Ambiguous Language
Ambiguous:Consultant shall assist ODOT with stakeholder interviews.
Slide 38
Avoid Ambiguous Language
Ambiguous:Consultant shall assist ODOT with stakeholder interviews.
Instead of using “assist” or “help”… define the activities that consultant shall do to “assist” or “help” ODOT.
Revised:Consultant shall develop a questionnaire. Consultant shall conduct and fully document 15 face-to-face interviews with Project Stakeholders identified by Agency.
Slide 39
Avoid Ambiguous LanguageAmbiguous:
Consultant shall work with ODOT staff to present results of Noise Study to the Noise Review Board.
Slide 40
Avoid Ambiguous LanguageAmbiguous:
Consultant shall work with ODOT staff to present results of Noise Study to the Noise Review Board.
Instead of using “work with”… specify activities consultant shall do to “work with” ODOT.
Revised:Consultant shall prepare presentation material that summarizes Noise Study results. Consultant shall print copies of presentation material for public distribution. Slide 41
Avoid Ambiguous LanguageAmbiguous:
Consultant shall revise the Draft Memo into an acceptable Final Memo.
Slide 42
Avoid Ambiguous LanguageAmbiguous:
Consultant shall revise the Draft Memo into an acceptable Final Memo.
Instead of using “acceptable”… specify requirements or standards that must be met to be “acceptable”.
Revised:Consultant shall revise the Draft Memo to prepare a Final Memo that incorporates Agency’s edits and comments.
Slide 43
Avoid Ambiguous LanguageAmbiguous:
Consultant shall use their best efforts to obtain 50% survey response rate.
Slide 44
Avoid Ambiguous LanguageAmbiguous:
Consultant shall use their best efforts to obtain 50% survey response rate.
Instead of using “reasonable” or “best efforts”…describe the level of detail or amount of effort required to comply with “reasonable” or “best efforts”.
Revised:Consultant shall send initial survey to target businesses. If less than 50% response received in two weeks, Consultant shall send the same survey to the businesses who did not respond to the initial survey.
Slide 45
Avoid Ambiguous LanguageAmbiguous:
Final Plans must comply with industry standards for culvert design.
Slide 46
Avoid Ambiguous LanguageAmbiguous:
Final Plans must comply with industry standards for culvert design.
Instead of using “industry standards”… determine if there are written standards and incorporate them by reference.
Revised:Final Plans must comply with FHWA Highway Design Standards (HDS) 5: Hydraulic Design of Highway Culverts.
Slide 47
Consistent Terminology
• Use the same term consistently throughout the document
• Use the same terms as defined in the Contract or Agreement
– “Consultant” or “Contractor”
– “Agency” or “ODOT”
– “City”, “County” or other defined term
– “Project”Slide 48
Consistent Terminology
• Using multiple terms for the same thing is a common error which can lead to problems:
Implementation Project Status ReportProject Status Report
Status Report
Interchange Area Management PlanArea Management Plan
the PlanSlide 49
Consistent Terminology
Abbreviations & Acronyms
• Shortening long phrases can make the Statement of Work easier to read and helps with consistency
– Commercial Off the Shelf Training (COTS Training)
– Interchange Area Management Plan (IAMP)
– Memorandum of Traffic Study Findings (Technical Memo #1) Slide 50
What does this acronym mean?
PR
Define all acronyms used in your Statement of Work
Slide 51
Consistent Terminology
Abbreviations & Acronyms
• Use abbreviations or acronyms for phrases that occurs multiple times.
• Don’t use abbreviation or acronym for phrase that only occurs once or twice; instead spell it out each time.
Slide 52
Abbreviations & Acronyms
First occurrence in the body of the SOW:
• Spell out the phase followed by the abbreviation or acronym within parenthesis.
– Consultant shall prepare a Field Management Plan (Memo #2) that describes in detail the procedure for…
– Agency may initiate Oregon Highway Plan (OHP) policy amendments to ensure…
Slide 53
Defining Acronyms
Subsequent occurrences in the SOW:
• Use just the abbreviation or acronym
– Memo #2 must include three performance measures for each …
– Review and provide comments on draft OHP policy amendment #…
Slide 54
Abbreviations & Acronyms
• Can also define abbreviations and acronyms in a list or table for easy reference
List of Acronyms
ACT – Area Commission on Transportation
FHWA – Federal Highway Administration
DAS – Department of Administrative Services
OHP – Oregon Highway Plan
PR – Preliminary Report
TAC – Technical Advisory CommitteeSlide 55
Write Clearly and Concisely
Clear language
• Clear authority
• Well Organized
• Plain Language
Slide 56
Clear Authority
• Write in active voice
• Assign responsibility
• It’s ODOT’s contract
Slide 57
Active Voice Sentence Structure
Subject → Action → Object
Consultant shall revise Tech Memo #1.
Slide 58
Active Voice Sentence Structure
Subject → Action → Object
Consultant shall revise Tech Memo #1.
Actor → Action → Receiver (Result)
Slide 77
Passive VoiceSentence Structure
Tech Memo #1 will be revised.Object → Action
Who will revise Tech Memo #1?
Slide 78
When you properly assign responsibility,
that automatically sets up the sentence to be in active voice.
Another Example
Passive voice:
A GAP Analysis Report will be prepared. Object → Action
Active voice:
Consultant shall prepare a GAP Analysis Report.
Subject → Action → Object
Assign Responsibility
• Clearly assign responsibility for each activity:
Consultant shall… (Required)
Consultant may… (Optional)
Agency will…. (Required, but with wiggle room)
Tech Memo #1 must… (Required)
Slide 79
Responsibilities and Level of Effort
• Define task responsibilities for both parties; ODOT and Consultant
• When using Fixed Price compensation, define level of effort that is agreed-to between ODOT and Consultant for the task, activity or deliverable.
It’s ODOT’s Contract!
• ODOT has the burden of responsibility to clearly ask for what we expect.
• If the contract doesn’t clearly represent what ODOT expects:
– Deliverables may not meet ODOT’s needs.
– May have to amend the contract and pay more to have Consultant redo deliverables.
– Hard to justify additional costs for existing work. Slide 80
If it goes to Court?
• If it’s not in the contract, it can’t be enforced.
• Courts tend to favor the Consultant if there is an ambiguous Statement of Work and the Consultant’s interpretation is reasonable.
Slide 81
Write Clearly and Concisely
Clear language
Clear authority
• Well Organized
• Plain Language
Slide 82
Organization
• Shorten overlong sentences
• Use numbered or bulleted lists
• Arrange in logical order
• Use headings
• Proper grammar and punctuation
Slide 83
Shorten Overlong Sentences• Break into several short sentences, or
convert to a numbered outline or bulleted list, such as:
Consultant shall:
1.1 Attend Project Team Meeting.
1.2 Present options with outline of advantages and disadvantages of each option.
1.3 Present Consultant’s recommendation for the best option.
Slide 84
Organize the Statement of Work
• Use headings to organize SOW into sections
A. Project Description and Overview of Services
B. Acronyms and Definitions
C. Standards and General Requirements
D. Review, Comment and Schedule Overview
E. Format Requirements
F. Tasks, Deliverables and ScheduleSlide 85
Organize the Statement of Work
• Number and name each task and subtask
• Organize tasks and activities within tasks in logical order; – Grouped– Sequential – Chronological
• Either include deliverables and due dates with appropriate task or in separate table.
Slide 86
Number Task & SubtasksExample
Task 1 –Pedestrian and Bicycle Arterial Crossings
1.1 Consultant shall prepare a Professional Literature Review Report (Literature Report). Literature Report must include:
• Pedestrian Safety Plan• Recommendations regarding threshold distance
Deliverables:
Literature Report must be submitted to Agency in electronic format no later than May 5, 2010.
Slide 87
Grammar and Punctuation
• Use “spell check”; but don’t rely on it.
• Have someone else proofread.
• After multiple revisions, re-read the whole document.
• Check resources for grammar and punctuation guidelines.
Slide 88
Grammar and Punctuation
For assistance with correct grammar and punctuation, check online resources such as:
– The Blue Book of Grammar and Punctuationhttp://www.grammarbook.com/english_rules.asp
– Grammarly Handbookhttp://www.grammarly.com/handbook/
Slide 89
Clear Language
Clear Authority
Well Organized
Slide 90
Write Clearly and Concisely
Clear language
Clear authority
Well Organized
• Plain Language
Slide 91
Plain Language
• ORS 183.750 requires all state agencies to prepare public communications in language that is as clear and simple as possible.
– Required for written documents produced for purposes of communicating with public
• Chapter 142 Oregon Laws 2007
– HB 2702: an Act relating to written documents
Plain Language
• Preliminary Plan for Implementing Plain Language (HB 2702)
– “Written document” not well defined; Agencies should assume it covers all written materials, including those presented on agency Web pages.
– HB 2702 specifies additional standards for written documents
Plain Language Standards
• A document meets the “plain language” standard if it, whenever possible:
– Uses everyday words that convey meanings clearly and directly;
– Uses the present tense and the active voice;
– Uses short, simple sentences;
Plain Language Standards(continued)
– Defines only those words that cannot be properly explained or qualified in the text;
– Uses type of a readable size; and
– Uses layout and spacing that separates the paragraphs and sections of the document from each other.
Guidelines for Developing a Statement of Work
Slide 80
Basic Components of a Statement of Work
• Contact Information
• Scope of Work, Background and Purpose
• Definitions and Acronyms
• Tasks and Deliverables
• Schedule of deliverable due dates
• Standards for acceptance Slide 81
Tasks
• Tasks may include activities that occur:
– Ongoing basis (Project Management)
– Repetitively (Meetings)
– Concurrently
– Sequentially or Chronologically
– Contingency Tasks
Slide 82
Contingency Tasks
• Anticipated tasks that may not be needed
• Quicker than amending the contract
• Issue Notice to Proceed for task when needed
• Helps control costs
Slide 83
Deliverables
• Deliverables validate the work requirements have been met
– Interim drafts to evaluate progress
• Deliverables should be:
– Tangible
– Measurable
– Often some form of documentation
Slide 84
Determining Deliverables
1. What are the objectives of the task?
2. What deliverables would best indicate the objectives were met?
------------------- SAMPLES-----------------------
– Attend a meeting to share information
– Design a section of roadwaySlide 85
Schedule• Deliverable Due Dates
– Target dates vs. mandatory dates– Specific dates– Number of days to complete deliverables
• Where to put Deliverable Due Dates– Due dates with tasks– Table of deliverables and due dates– Tracked on Gantt chart
Schedule (continued)
• Milestone Dates– Final Study and Recommendations– Design– Development– Implementation
• Completion Date vs. Expiration Date
Strategies for SOW Development
• Work with project stakeholders and subject-matter experts
• Brainstorm or mind map the project needs and requirements
• Develop contract administration strategy, including change management procedure
• Think high level, then work down to details
Slide 88
– What is the overall objective of the project? • Scope of Work
– What specific services are required? • Required Tasks, Anticipated Amendments,
Contingency Tasks
– What specific outcomes are needed? • Deliverables
– What standards of acceptance must be met? • Performance and acceptability standards
High Level; work down to Details
Slide 89
– Which party is responsible for task or activity?• ODOT or Consultant (or other stakeholder)
– What levels of expertise required? • Project Team / Key Person requirements
– What is the required completion date? • Schedule: Deliverable and Milestone due dates
High Level; work down to Details(continued)
Slide 90
Define “Done”
• Define clear outcomes for the contract
• How will you know when the contract is complete?
• What will you have when the contract is done?
Slide 91
Statement of Work Options
• Decide what best meets project needs
– Performance-based; focuses on outcome• Deliverables-based• Recurring Services• Service Level Agreement (SLA)
– Phased approach
– SOW with multiple stakeholders (i.e. TGM Model)
– Other customized approachesSlide 92
First Draft of Statement of Work
• Use template
– Generic Outline
– Geo-environmental Standardized Scopes of Work
• Borrow (not copy) language from other contracts
Slide 93
Using Statement of Work Templates
Slide 94
Where to Find SOW Templates
• ODOT Procurement Office– Intranet “Forms and Documents”
– Internet “Personal and Professional Services”
• Sample Statement of Work in Price Agreement
• Highway Division, Technical Services Branch – Intranet: Geo-environmental “Standardized
Scopes of Work” Slide 95
Standard SOW Outline Template
• Yellow highlights– guidance or instructions on how to complete
template
• Blue highlights – optional language, revise as needed
Slide 96
Throughout SOW Development
• As you progress through development of the Statement of Work
– Revise template or “borrowed” language to fit your project
– Revise to fit your contract
– Assess risk
Slide 97
Risk
“The danger or probability of loss.”
• Loss to ODOT or the public of…
– money
– time
– safety
– credibility or integrity
Risk Assessment
• When developing and reviewing the SOW, consider:
– What could go wrong?
– Likelihood it will go wrong?
– How much harm?
– How to avoid or mitigate?
– How much will ODOT accept?
Assessing Risk
• How is risk different when ODOT develops SOW compared to when consultant develops SOW?
• Is risk to ODOT always higher when consultant develops the SOW?
• What must you do?
– Complete thorough risk assessment.
– Negotiate and revise SOW as needed. Slide 100
Mitigating Risk
• Contract language
– Terms and Conditions
– Insurance and bond requirements
– Well written Statement of Work
• Contract management
– Selection of well qualified consultant
– Effective administration of the contractSlide 101
Mitigating Risk in the SOW
• Statement of Work
– Clear and concise language
– Assignment of responsibilities
– Deliverable schedules
– Require “drafts” as deliverables
– Reference acceptance standards
Slide 102
Legal or Business?
• Legal requirement or Business decision
– ODOT must comply with legal requirements.
– Compliance with grant requirements, if applicable.
– If not a legal, policy or grant requirement, it’s likely a business decision.
– Business decisions may be heavily influenced by standard business practices. Slide 103
Business Decision…
• Who has the authority to accept the risk?
• Options may include “Go” or “No Go” to accept or mitigate the risk, or to cancel the project
• Document the decision and justification for accepting risk
Slide 104
Higher Risk = Higher CostsFind a healthy balance
Protecting ODOT and the public
Insurance costs; Relationships; Politics; Laws;
Regulations; Project budget; Work done
Slide 105
ScenarioODOT management has allocated resources to start delivery of a new project.
The department does not have enough staff to complete all the required services for the project.
The department cannot hire more staff, so they decide to outsource some of the work to consultants.
Slide 106
Legal Requirements
Can ODOT use a Personal Services Contract to hire temporary staff?
NO!Personal Services Contracts can only be used to
contract with Independent Contractors
Slide 107
Legal Requirements
• OAR 731-146-0025 states the Statement of Work must not result in an employee relationship with contractor.
• ORS 240.309 governs how to obtain temporary employees.
Slide 108
ORS 240.990 Penalties
• Penalties for willfully violating requirements of ORS 240.309:
– Criminal misdemeanor offense
– Fine of up to $500 or imprisonment for up to one year, or both
– Any person convicted is ineligible for position in state service for period of 5 years
These are penalties to you!!Slide 109
Damages to ODOT
• If contractor is determined to be employee, ODOT is responsible for:
– Claims for employee benefits
– Income taxes, plus penalties for late withholdings
– Negligent activities contractor has does that harms others
– Violations of collective bargaining agreements
Slide 110
Independent Contractor
• Independent Contractor vs. Employee
• Factors to consider
– Nature and degree of control by ODOT
– Services as integral part of ODOT business
– Duration of contract
– Can contractor make profit or suffer loss
– Business practices to provide services for more customers than just ODOT
Slide 111
Risk Assessments
For info and assistance with conducting risk assessments and mitigating risk, contact your OPO Procurement Specialist.
OPO can access additional resources:
– ODOT Risk Management
– DAS Risk Management
– Department of Justice
Slide 112
ActivityJones Planning, Inc.
• Assess level of risk to ODOT
• Strategize how risk might be managed in the Statement of Work:
– Avoided
– Mitigated
– Transferred to the Consultant
Slide 113
Additional Resources
• OPO Intranet
– Procurement Manual Section MChapter 1 – Statement of Work Writing GuideChapter 2 – Guide for A&E Personal ServicesChapter 3 – Guide for Non-A&E Personal Services
– Forms
– Procurement-related training
– DOJ Video
– Staff contact information
Additional Resources
• OPO or Contract Administrator– SOW templates, when available– Samples of SOW for similar projects
Training Summary
Scope of Work vs. Statement of Work
When to use Statement of Work
Legal Sufficiency Requirements
Development and Review Process
Writing StyleClear Language
Clear Authority
Well Organized
Plain Language Slide 97
Training Summary (continued)
Tasks, Deliverables and Schedule
Strategies for Development Start High Level; Work Down to Details
Define “Done”
Using Templates
Assessing and Mitigating Risk
Independent Contractor Requirements
Slide 98
Any Questions???
Thank you for your participation!
A training evaluation survey will be emailed to you soon. We’d appreciate your feedback
Have a great afternoon!!
Slide 99