The University of Texas at Arlington

For more detailed information on the topics below, or any Procurement related issue, you may contact the Strategic Sourcing directly at the emails or phone numbers on the main page.

1. What is a Request For Proposal (RFP) or Request for Qualifications (RFQ) and why do I have to go through this process?

   These processes are dictated by State of Texas statutes such as Texas Government Code 2155 and multiple other House Bills, Board of Regents Rules and Regulations and University of Texas at Arlington Policy. These process are used by all State agencies, not just University of Texas at Arlington. The purpose is to ensure the best overall value to the University, considering both price and non-price criteria, when securing goods and services.

2. Request For Proposal (RFP) Overview

   A Request For Proposal, or RFP, is generally used for larger and more complicated projects where the exact scope or product specifications may not be known in the beginning and the University wants to solicit proposed solutions from a variety of companies. A good example would be when an end-user knows they need a solution to provide “x” (some desired outcome), but there may be multiple products or systems that can achieve the outcome. A scope of work and/or desired results and requirements are developed in conjunction with the key stakeholders and included in the Request For Proposal document. The key stakeholders also use weighted evaluation criteria to then score the proposals once they are received. The criteria are composed of both price and no-price criteria, weighted in order of importance to the key stakeholders with the objective to obtain the best overall value to the university, not necessarily the lowest priced solution.

3. Request For Qualifications (RFQ) Overview

   A Request For Qualifications, or RFQ, is used only for a very specific set of statute-defined services. These are generally licensed professions such as architects, engineers, surveyors, medical professionals, veterinarians, etc…for which the State has dictated that the selection should be based on qualifications rather than price. A general scope of work or services, and the key minimum requirements and desired experience and qualifications are included in the RFQ documents. An evaluation team of key stakeholders then ranks the qualification proposals received and the Strategic Sourcing facilitates a negotiation of rate(s) for the services. If an acceptable rate is achieved, then an agreement is executed with the most highly qualified provider. If an acceptable rate cannot be negotiated, then the team moves to the next most highly qualified provider and this process continues until an acceptable rate is negotiated and an agreement executed.

4. How long does the Request For Proposal (RFP) or Request For Qualification (RFQ) process take?

   There is no set time table and it generally depends on the scope, complexity and value of the project. These drive the duration of each phase of the process. The only legally-mandated time frame is that the University must publically advertise any solicitation exceeding $50,000 for a minimum of two weeks on the State Electronic Business Daily website. The primary steps in the processes are: initial scope/requirement development, advertising of the solicitation, evaluation of the proposals received, negotiations, and contract finalization. The process can take from as little as 8 weeks to as much as 9-12 months depending on the size of the project and the timely involvement of the key stakeholders.

5. Why are some things now being put on "contracts" versus the standard "Purchase Orders" we used to use?

   Purchase Orders (PO’s) will continue to be the most widely used procurement tool for most standard, well-defined procurements. However, anything that now runs through the Strategic Sourcing will be formalized in a contractual agreement. Payments may be made against the contract (per the terms of the contract) using a non-PO voucher referencing the agreement number. The Contract Specialist assigned to the contract will review the invoice to ensure compliance with the terms of the contract and approve for AP. The department must still review and approve to confirm that the goods or services have been received and accepted, or that the payment milestone has been met. Items on PO’s are still paid with a voucher that links to the PO in UT Share. The Strategic Sourcing is not involved in the PO process and you should contact your Buyer with any PO-related issues.

1. Request For Proposal (RFP) Defined

   A Request for Proposal (RFP) is a type of formal solicitation in which the University announces that funding is available for a particular project or program, and requests that companies submit proposals for the project. The RFP document outlines the proposal process and timeline, scope of work and project requirements, contract terms, and provides guidance on how the proposal should be formatted and submitted. An RFP is typically open to a wide range of proposers, creating open competition between companies and ensuring the best overall value is achieved for the University.

   
   

   A Request for Proposal (RFP) is a type of formal solicitation in which the University announces that funding is available for a particular project or program, and requests that companies submit proposals for the project. The RFP document outlines the proposal process and timeline, scope of work and project requirements, contract terms, and provides guidance on how the proposal should be formatted and submitted. An RFP is typically open to a wide range of proposers, creating open competition between companies and ensuring the best overall value is achieved for the University.

2. Confidentiality of RFP Process:

   Each potential respondent in the RFP process is provided with the same information and is subject to the same requirements and deadlines in order to provide the same opportunity to all.

   
   

   To preserve the integrity of this highly controlled process, all who are involved, either directly or indirectly, must keep all aspects of the process and the proposals confidential. In all cases, only the Contract Specialist may communicate with potential respondents and vice versa.

   
   

   On the RFP due date, only the names of the Respondents will be made public. Proposals are not available for review by anyone, other than the evaluation team, until after the award is made.

3. Standard Steps in the RFP Process:

   Prior to starting the process steps outlined below, end using departments should contact the Strategic Sourcing (CMO) if they need help in determining whether their product, project or service is appropriate for the RFP process or could be accomplished with a traditional Invitation for Bid (IFB).

   1. Department submits “RFP Initiation Form”

      In order to initiate the RFP process, the Strategic Sourcing will need:

      • A completed and signed “RFP Initiation Form” explaining the project and funding source
      • On the “Initiation Form” department should provide any known or suggested vendors that may be able to fulfill the project requirements, including contact name, address, phone number and e-mail addresses.
   2. Department and CMO identify Key Stakeholder(s) and Subject Matter Experts (SME’s). Once the key team members have been identified, the CMO will arrange a proposal “kick off meeting” to help establish key roles, responsibilities and timelines to complete the remaining steps in the process.
   3. Key Stakeholder and SME’s define project needs such as, but not limited to:
      • Scope of Work (SOW)
      • Specifications
      • RFP and Project Schedule
      • Deliverables
      • Pricing (or revenue) Structure
      • HUB Subcontracting Opportunities
      • Any project valued (cost or revenue) at $100,000 or more requires the submission of a HUB Subcontracting Plan (HSP) in order to be considered
   4. Create Scoring Criteria and Weights The evaluation criteria used to score proposals should consist of the criteria that reflect the areas of importance to the University in its selection decision. Through the evaluation and scoring of the criteria, the University is able to assess the similarities and differences and the strengths and weaknesses of competing proposals. A well-integrated evaluation scheme provides consistency, discipline, and rationality to the source selection process, as well as a solid set of backup documentation in the event a non-winning vendor requests a de-briefing or protests the award decision.
      
      The Key Stakeholder ultimately decides how to weight each of the evaluation criteria categories (e.g. what percentage of the total score does each category receive in the evaluation scoring). Evaluation criteria must conform to the criteria established in Texas Education Code 51.9335(b). The following criteria must be used, and any weights applied to each category must be disclosed in the RFP document. Additional “sub-criteria”, bullet points, or specific questions/requirements may be added under each, but the following must be used:
      
      
      • The purchase prices
      • The reputation of the vendor and the vendor's goods or services
      • The quality of the vendor's goods or services
      • The extent to which the goods or services meet the institution's needs
      • The vendor's past relationship with the institution
      • The total long-term cost (or value) to the institution for acquiring the vendor's goods or services
      • Any other relevant factor that a private business entity would consider in selecting a vendor.
   5. Finalizing RFP content and posting the RFP The Contract Specialist assigned to the RFP will work with the department to finalize the RFP content. The Contract Specialist will send the RFP to vendors identified by the department, those vendors identified through research, potential “Historically Underutilized Businesses (HUBs)” from the State’s “Centralized Master Bidders List (CMBL)” and, will publicly advertise the RFP on the “Electronic State Business Daily (ESBD)” website for a minimum of 14 calendar days.
   6. Pre-Proposal Meeting A pre-proposal meeting is suggested if the SOW is complicated or if it is necessary for potential proposers to physically see or examine the facilities or any activities related to the goods and/or services in the solicitation.
      • There may be times when, due to the nature of the project, attendance by proposers will be mandatory. In those instances, only proposals from firms who attend the pre-proposal conference will be accepted.
   7. Evaluating the Proposals Once proposals have been received, the HUB Program Coordinator will review the HSP’s submitted. Only proposals accompanied by an acceptable HSP will be evaluated and eligible for award.

      Once acceptable proposals have been identified, the Contract Specialist will arrange a kick-off meeting for the evaluation team and will distribute the following forms and instructions to the Evaluation Team:

      • Non-Conflict of Interest / Non-Disclosure Memo (requires signature)
      • Evaluation Team Instructions
      • Evaluation Briefing Points
      • 
        

        When the Non-Conflict and the Non-Disclosure forms have been signed and returned to the Contract Specialist, the compliant proposals will be distributed to the Evaluation Team Members, along with a scoring and comment sheet.

        NOTE: The pricing will be removed from the proposals before distribution to the Evaluation Team. The evaluation team is to evaluate and score solely based on the technical/operational merits of each proposal. This evaluation cannot be biased by cost/price information. The Strategic Sourcing will evaluate the Cost/Price information and assign scoring points accordingly based on the percentage variation in pricing, with the lowest priced solution that meets the technical/operational requirements receiving 100% of the points in the pricing category. All others will receive a pro-rated amount of points based on their percentage variance from the lowest price acceptable solution. In other words, if there are 30 points weighted for pricing then the lowest priced acceptable solution would receive all 30 points. If the next lowest priced acceptable solution is 10% higher, they would receive 90% of the 30 points or 27 points, and so on for the rest of the proposals.
        
        When the proposal evaluation is complete, the Team will identify finalists and may request the Contract Specialist to invite them to do presentations. If, during the presentations, additional information is gathered that would affect the scoring against the evaluation criteria, the Evaluation Team Members may revise their scoring if so desired, but it is not mandatory. An explanation for the scoring changes must accompany the revised score sheet.
        
        NOTE: If an Evaluation Team Member does not attend a specific presentation or demo, they will not be allowed to revise their scoring for that vendor. A Team Member can only revise scoring for vendors for whose presentation or demo they have attended.
        
        At this time, one or multiple proposers may be invited to submit a Best and Final Offer (BAFO) in an attempt to improve pricing or achieve additional concessions and/or considerations. This is an optional step and does not have to be performed if the Team believes the best overall value and contract position has already been achieved.

4. Awarding and Executing the Contract:

   1. Once the Evaluation Team completes their evaluation, the Contract Specialist will review the documentation to ensure appropriate processes have been followed in consideration of all evaluation criteria and the justification for vendor selection. The Contract Specialist may request additional information, or clarification from the Team if needed.
   2. The Vendor whose Proposal has the highest final score becomes the potential awardee for the contract and the University notifies all vendors (including those not selected) of its decision.
   3. The Contract Specialist will prepare a draft version of the Agreement, including any exceptions requested by the Proposer for review by both the Key Stakeholder and Legal. The Key Stakeholder should review to ensure correctness and completeness of scope, requirements, schedule, deliverables and any other technical/operational/business aspect of the Agreement. Legal will review the entire Agreement, paying particular attention to any exceptions taken to the terms, conditions, and legal aspects.
   4. Once all University parties are in Agreement, the draft Agreement is sent to the proposer for review and input. At this point, it may be necessary to arrange a meeting to negotiate and finalize certain points of the Agreement. Some issues can be resolved easily and quickly, others may take more time and input from multiple parties. Regardless, once all parties are in agreement the University’s Legal representative will stamp the Agreement showing approval and it can then be signed by the appropriate University representative. It is then forwarded to the Proposing firm for their signature (“contract execution”).
   5. The Contract Specialist will then schedule a project kickoff meeting with the end-user/department/key stakeholders to distribute key documents, including checklist which will serve as a guide for the department’s day-to-day administration and monitoring of the contract.

5. Other Considerations:

   1. It is not unusual for it to take from three (3) to six (6) months to achieve contract award and execution. Some projects have been known to take a year or more.
   2. If the contract exceeds $1,000,000 over the life of the contract, the awarded vendor must complete and return a “Form 1295: Disclosure of Interested Parties” prior to contract execution.
   3. In conjunction to Form 1295, “Nepotism Disclosure Forms” must be completed by all Evaluation Team Members for contracts exceeding $1,000,000 over the life of the contract.
   4. Once the Contract Agreement has been executed, vendor must submit “Proof of Insurance” meeting or exceeding the requirements that were identified in the RFP. If workers will be on campus, the vendor must provide a letter, signed by an authorized representative, certifying compliance with the “Criminal Background Checks” requirements detailed in the RFP.

6. Definitions:

   Historically Underutilized Business (HUB) - A for-profit entity that has not exceeded the size standards prescribed by 34 TAC §20.23, and has its principal place of business in Texas, and is at least 51% owned by an Asian Pacific American, Black American, Hispanic American, Native American, American woman and/or Service Disabled Veteran, who reside in Texas and actively participate in the control, operations and management of the entity's affairs. A minority or women-owned business as defined by Gov’t Code, Chapter 2161.

   HUB Subcontracting Plan (HSP) - A Historically Underutilized Business (HUB) Subcontracting Plan is a requirement placed on vendors to encourage their utilization of historically underutilized businesses where subcontracting is practical. Applies to all delegated purchases with an estimated total cost of $100,000 or more where there are subcontracting opportunities for the procurement.

   Key Events Schedule - A plan for performing work or achieving an objective, specifying the order and allotted time for each part, such as:

   • Issue Date of RFP
   • Pre-Proposal Meeting Dates and Times
   • Deadline for Questions and Concerns
   • RFP Submittal Deadline Date and Time

   Key Stakeholder – The person who is responsible for the content of the proposal, establishment of the evaluation criteria and evaluation team, and who is ultimately responsible for the successful completion of the project.

   Pre-Proposal Meeting - The purpose is to clarify any concerns bidders may have with the solicitation documents, scope of work and other details of the requirement. May also serve as an opportunity to conduct a walk-through of specific facilities or job sites if needed.

   Specifications and Scope of Work – a) A detailed description of the requirements for a material, product, or service that includes performance or design criteria necessary to satisfy customer need. b) An accurate, detailed, and concise description of the work to be performed by the contractor.

   University Contact Information (Section 4.10 Notices) – Generally, an address for a Director or above position for notices, consents, approvals, requests or other communications provided for or permitted to be given under any of the provisions of the Contract Agreement. This must be in writing.

This overview is intended to provide end-users and key stakeholders with a high level guide to the key aspects of contract administration and monitoring for the projects they are responsible for. A more detailed resource can be found in the University’s Contract Management Handbook – Chapter 7. Also, please contact the Strategic Sourcing at either 817-272-6148 / procurement@uta.edu (Joe White) or 817-272-2140 / Charles.brooks@uta.edu (Charlie Brooks) for more information or post-contract award assistance.

The goal of contract administration is to ensure the contract is satisfactorily performed and the responsibilities of both parties are properly executed. Effective contract administration minimizes or eliminates problems and potential claims and disputes. In the UT Arlington model, the end-using department or key stakeholder is the day-to-day administrator (monitor) of the contract. The Strategic Sourcing is available for assistance as needed and can also serve as an interface to Legal Counsel should serious contractual issues arise.

Contract Administration

Contract Administrator Responsibilities

1. Planning

   The contract administrator must ensure that he/she thoroughly understands all of the components of the solicitation and contract. Examples of such contract components include:

   • Expected outcome measures – includes staging of deliverables, if applicable. Significant deliverables should be tied to the payment schedule.
   • Costs – The total cost, including any indirect cost allocation of the goods and services to be performed.
   • Contract Performance - When, where, and how the goods and services are to be delivered.
   • Acceptance/Rejection Terms – The agency’s right to inspect and accept or reject the goods and services and the conditions of acceptance or rejection.
   • Contract Dates: The effective date, completion date, renewal terms, and any additional dates necessary to monitor contract performance.
   • Complete addresses – Where correspondence is to be sent, where payments are to made, etc.

   1. Post Award Conference

      A post award conference is a meeting with the contractor and includes all key personnel responsible for administering the contract. The conference is typically held soon after the contract is awarded. It is an orientation for the contractor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The conference also serves as an excellent opportunity to clarify and resolve any potential misunderstandings up front so they do not cause a delay mid-project. Although both the contractor and the agency personnel should already be fully aware of the contract requirements, the post award conference ensures that those involved directly in the contract administration process understand all requirements of contract performance.

      Not every contract requires a formal post award conference, but generally there should be some form of discussion between the contracting parties after award to ensure that all parties agree on the performance requirements and the administrative procedures applicable under the terms of the contract. The post award conference should NOT be used to change the terms of the contract. Any change to the contractual requirements must be handled by the Strategic Sourcing in the form of a written Amendment to the contract.

   2. Monitoring Performance

      Monitoring the performance of the contractor is a key function of proper contract administration. The purpose is to ensure that the contractor is performing all duties in accordance with the contract and for the agency to be aware of and address any developing problems or issues.

      Key areas of contract monitoring include, but may not be limited to:

      • How will you know that the agency is receiving what it paid for?
      • How will you know that the contractor is complying with the terms of the contract?

      Review the statement of work and other contract terms, including contractor compliance requirements. All of these requirements are deliverables that the contractor agreed to when the contract was executed or the purchase order was issued. Design the monitoring program to focus on items that are most important. Generally, this means to focus the monitoring on the outcomes that result from the contract.

      Also, consider the effect that the contract payment methodology has on what needs to be monitored. For example, if payment is based on a firm fixed price (a specific amount of money for a unit of product or service), it is not necessary to verify contractor’s expenses as they are not relevant to this type of contract. Consider buying a box of pencils. The agency knows what they are buying and the cost per pencil. It is irrelevant what the contractor pays for travel or advertising as the agency pays a firm fixed price for the pencils regardless of the contractor’s expenses. Under a firm, fixed price contract, the agency should ensure that:

      • The number of units billed is the same as the number of units received.
      • The quantity and price agree with the contract amounts.
      • The units meet or exceed the contract specifications.

      If an agency receives grant money to pay for a contract, the agency must consider the nature of the relationship with the contractor. Is the relationship a vendor relationship or a sub-recipient relationship? See OMB Circular A-133, Section 210 (http://www.whitehouse.gov/omb/circulars/a133/a133.html) for guidance on relationship determination. If the relationship is that of a sub-recipient, then federal guidelines and cost principles must be followed. The Uniform Grant Management Standards published by the Governor’s Office (http://www.governor.state.tx.us/divisions/stategrants/guidelines/view) will provide guidance as well.

      If the contract is a cost reimbursement contract wherein the agency pays for the contractor’s cost plus a percentage of overhead and profit, the agency needs to consider the following monitoring reviews:

      • Was the item billed really purchased by the contractor?
      • Was the item billed used for the purpose of the contract?
      • Was the item necessary and reasonable for the purpose of the contract?
      • Was the item of the quality and quantity specified in the contract?
      • Was the item duplicated in either overhead or profit?
      • Was the item listed in the contractor’s budget and approved by the agency?

        The agency must review the contract to see how the costs are reimbursed. Many contracts require that all costs must be included in the original budget provided by the contractor and approved by the agency. In some cases, the contract may specify that certain costs such as the purchase of a vehicle or use of a subcontractor require approval by the agency prior to purchase.

      Tailor the monitoring checklist for each contract/contractor. While there will be standard items that the agency will review for all contractors, each contract/contractor should be reviewed for specific monitoring requirements unique to that contract/contractor. In addition, consider the following:

      • The contractor’s past performance (and past performance of similar contractors);
      • The dollar amount and/or complexity of the contract;
      • Factors from previous reviews and monitoring, such as the variance between expected and actual performance;
      • Significant problems with payment requests;
      • Results of monitoring visits completed by other agencies or divisions within the same agency that contract with the same contractor;
      • The length of time since the last monitoring activity; and
      • How experienced the contractor is with the type of work to be performed.

      End user should design a monitoring system that includes criteria and defined follow up actions in the event of any failures or issues on the part of the contractor. The goal of follow up should be to bring the contractor back into compliance with the contract requirements and successfully complete the project. Follow up is essential as the problem will not correct itself simply by identifying it and including it in the monitoring report.

   3. Reporting

      Reporting includes both a contract administrator reporting to executive management and the contractor reporting to the contract administrator. There are generally two (2) categories of reports: status reports and activity reports. Both types of reporting serve useful functions:

      Status Reports – Describe the progress of the work. The content of the status report should be consistent with and track the organizational structure of the statement of work, i.e. phases, segments, deliverables and products. A status report should describe what work is complete and what work is pending and that status should be contrasted against the contract schedule. Only work that has been verified as completed or accepted should be categorized as complete. If there are any unresolved issues that the agency is contractually obligated to resolve, those issues should be included in the status report and a resolution should be requested. If the scope of work has changed during the contract (by written contract amendment), insist that status reports track the original contract schedule, not a revised contract schedule, unless the amendments provides for a revised contract schedule. If status is tracked against a revised schedule, there is a risk that the schedule will continually change and the status report will be rendered meaningless.

      If the contract does not provide for periodic status reports, the agency should ensure that sufficient progress is being made by the contractor. This may be accomplished by requesting a status update from the contractor or a site visit to view the progress.

      Activity Reports - Describe any activity on the project; project activity is not the same as a status report. A project may have a great deal of activity without making substantive progress. On the other hand, activity reporting can be a core feature of contract management. For example, a contractor payment in an outsourcing contract may be based on the number of completed transactions. In this example, activity reporting is critical to contract administration.

2. Payment Approval

   The costs incurred by the contractor should be in accordance with the contract rate schedule. Invoices should be reviewed to ensure that the contractor’s billing coincides with the contract’s progress and/or goods received. This requires that the contractor’s progress be measurable. Cost incurred or invoices submitted, in and of themselves, are insufficient indicators of the contractor’s progress.

   If the agency believes that the requested payment exceeds the contractor’s progress, an explanation should be requested from the contractor prior to approval of the invoice. Payment should be withheld pending agency satisfaction with the contractor’s progress.

   Invoices must be approved by program staff prior to payment. Payments must be made in accordance with the Texas Prompt Payment Law which requires that correct invoices be paid within 30 days from the date the correct invoice was received or the services/goods received, whichever is later. The invoice should be reviewed to ensure:

   • The contractor is billing only for goods or services received by the agency.
   • The goods or services have been accepted with no damage or missing components (not just “received”).
   • The invoice is correct and complies with the terms and conditions of the contract.
   • The total payments do not exceed the contract limits.

   Client services contracts are unique in that acceptance of a good or service is not an indicator that an invoice should be paid. Problems with client services contracts generally surface after invoices are paid. Contract administrators dealing with client services contracts should ensure mechanisms exist to penalize contractors for poor performance and that future payments may be withheld until performance improves.

3. Change Management

   For any change to the contractual requirements, the modification(s) must be documented in writing and follow the proper review and approval process as dictated by State statute and or University policy. In no situation should an end-user give verbal approval to add/change/modify the contractual requirements. The contract administrator should involve the Strategic Sourcing (or the appropriate Buyer if the work is related to a Purchase Order) as soon as it is known that a change to any contractual element is needed.

   Failure to manage and control changes can result in an unintentional modification to the scope of work, extension of the schedule, increase in the contract cost, circumvention of management controls and diminished contractor accountability. An effective change management process includes but is not limited to:

   • • Formal, written approval of all changes prior to the change taking place. Do not verbally authorize the vendor to begin working on a change before formal process is fully analyzed, documented and approved in writing. Failure to do so puts both the contractor and the person making such verbal authorizations at risk.
   • • Evaluation of the impact of each change to the contracting objective, the corresponding deliverable and/or products, the schedule, cost, and increase in agency overhead resulting from the change, impact to work in progress/completed work, standards, and acceptance criteria.
   • • Documentation of all changes, no matter how small and avoids any informal undocumented change process.

   Establish a single point of contact to recommend or authorize any change. Document the change as approved or disapproved. If a change is approved, document the change and the impact to the scope of work through a contract amendment or purchase order change notice, whichever is applicable.

   1. Contract Changes and Contract Scope

      Whether or not a contract may be changed, depends upon certain principles. State law requires a competitive process in most situations. The specific method of competition depends upon the type of goods or services needed. If competed, the resulting contract must be consistent with what was asked for during the competition, usually contained in the solicitation document. Not being consistent can violate the competitive process requirements.

      If a change is needed to a contract, the change has to be within the scope, or range, of what was provided in the solicitation. A significant difference would be a material or substantial change in the scope of services, and would not be allowed because it had not been originally subject to fair competition. To permit such a change would go against the ideas of competition and a fair playing field for all of the vendors.

      For example, if a contract to buy 10 desks is amended to include 300 file cabinets, the change is outside the scope of the contract because vendors did not have the opportunity to compete for the sale of 300 file cabinets. Additional vendors may have competed had they known that file cabinets were being solicited. Such a large quantity of file cabinets could also have had an impact upon which vendors competed. Other vendors may have been interested in bidding on file cabinets that were not interested in bidding on desks.

      In order to determine what constitutes scope changes to advertised specifications, the significant question is whether the changes are material or substantial.

      Material or substantial changes are not measured by the number of changes made to the original specifications. Rather, they are measured by whether the extent of the changes would so substantially alter the original specifications that not re-advertising the revised specifications would deny a procurement opportunity to someone who would have been able to respond to the revised specifications. If much is revised, then those changes will be treated as a new proposal. A new solicitation is needed to ensure compliance with the bidding statutes.

   2. Administrative Changes

      These are changes that are within the scope of the contract and do not affect or alter the rights of the parties. These changes are typically executed via a unilateral amendment. Examples of administrative changes include:

      • Changes in billing instructions or address;
      • Corrections of typographical errors not affecting the substance of the contract;
      • Changes as permitted by the specific contract language.
      • Changes in agency personnel assigned to the contract

   3. Substantive Changes

      These are contractual changes that affect the rights of both parties. Such changes generally require bilateral amendments (agreement by both parties). Examples of substantive changes include:

      • Change in the price of the contract
      • Change in the delivery schedule
      • Change in the quantity
      • Change or nature of deliverables. (i.e. the specifications)
      • Change of key personnel.
      • Change of any terms and conditions.

   4. Constructive Changes

      If a contractor perceives that work beyond the scope of the contract was ordered by the agency, the contractor may claim that the contract was “constructively” changed, and the contractor may be entitled to additional compensation for the changes. Generally, a constructive change will require a bilateral amendment. Constructive changes may occur when agency personnel:

      • Provide suggestions to a contractor;
      • Accelerate the delivery schedule;
      • Direct the work to be performed differently;
      • Change the sequencing of the work;
      • Delay accepting or rejecting deliverables;
      • Delay reviewing invoices and approving payment
      • Interfere with or hiProper dispute resolution is a core skill of successful contract administration. Identification of problems early in the performance period, effectively communicating the issue to the contractor as well as the Strategic Sourcing, and formalizing the process in writing via a cure notice procedure or less formal written procedure is essential. A contract termination is a failure by BOTH parties to a contract. Termination is the last resort and should be avoided if at all possible.

   5. Dispute Resolution

      Dispute resolution is covered by statute under Texas Government Code Chapter 2260 and it covers some of the contract claims against the state. The goal of any dispute resolution process is to resolve all problems before they escalate to the next level. To avoid escalation of problems to the next level and ensure the agency has not exacerbated potential problems, it is imperative that agency personnel respond promptly to all contractor inquiries. Initial steps to be taken are:

      • Identify the problem - many times what may appear to be a problem can be resolved by providing the contractor with information or clarification.
      • Research facts – the agency should obtain all the information regarding the potential problem from all relevant sources, including the project manager and the contractor.
      • Evaluation – the agency should review all of the facts in conjunction with the requirements and terms and conditions of the contract. The agency should then determine the appropriate course of action.

      Proper dispute resolution is a core skill of successful contract administration. Identification of problems early in the performance period, effectively communicating the issue to the contractor as well as the Strategic Sourcing, and formalizing the process in writing via a cure notice procedure or less formal written procedure is essential. A contract termination is a failure by BOTH parties to a contract. Termination is the last resort and should be avoided if at all possible.

   6. Termination

      When a contract is terminated, the parties are relieved from further unperformed obligations in accordance with the agreed terms and conditions. A contract may be terminated under two distinct processes: Termination for Convenience or Termination for Default.

   7. Termination for Convenience

      A termination for convenience, also known as no-fault termination, allows the agency to terminate any contract, in whole or in part, at any time in its sole discretion (generally with a thirty (30) day notice to the contractor), if it is determined that such termination is in the best interest of the agency.

      The agency shall provide the contractor with written notice specifying whether the agency is terminating all or part of the contract. The notice of termination shall give the date of termination. If the contract is being selectively terminated, the agency should specify which part(s) of the contract are being terminated.

      The contractor will generally be paid for allowable costs incurred up to the date of termination. The agency will not be liable for payment to the contractor related to the terminated portion of the work or any work performed or costs incurred after the effective date of termination.

      Upon receipt of any invoice from the contractor for work performed prior to the Notice of Termination, the agency should thoroughly review the invoice to ensure that no excessive costs are included.

      Factors to consider prior to making a termination for default decision include:

      • Has the agency done everything within reason to assist the contractor in curing any default?
      • The provisions of the contract and applicable regulations.
      • The specific contractual failure(s) and the explanation provided for the failures.
      • The urgency of the need for the contracted supplies or services. The agency may need to weigh the respective benefits and/or disadvantages of allowing a delinquent contractor to continue performance or re-soliciting a new contractor.
      • The availability of the supplies or services from other sources and the time required to obtain them (compared to the additional time the current contractor needs to complete the work).
      • Availability of funds and/or resources to re-purchase in the event such costs cannot be recovered from the delinquent contractor. Under a termination for default, the agency is within its rights to demand re- procurement costs from the defaulting contractor. Nevertheless, the contractor may not be financially capable to finance the re-purchase, or such demand may result in protracted legal action.

      If a vendor is terminated for default, the contractor is liable for actual damages and costs incurred by the state unless the contract states otherwise.

   8. Excusable Causes (Force Majeure Events)

      A contract may not be terminated for default when the failure to perform is due to excusable causes. In order to qualify as an excusable cause, the cause must be beyond the control, and without the fault or negligence of the contractor. Such excusable causes include, but are not limited to:

      • Acts of God or of the public enemy (ware)
      • Acts of the Institution
      • Fires
      • Floods
      • Epidemics
      • Strikes (beyond the control of the contractor)
      • Freight embargos
      • Unusually severe weather
        Severe weather, although beyond the contractor’s control, will not generally constitute an excusable delay if it is not considered “unusually severe weather”. For example, a snow storm in Amarillo in February would not be considered unusual, while it would be considered unusual in Austin. On the other hand, a snow storm in Amarillo in June would indeed be unusual.

      If the contractor’s failure to perform is due to the default of a subcontractor, in order to qualify as an excusable cause, the default must arise out of causes beyond the control and without the fault or negligence of both the contractor and the subcontractor. Even if this requirement is met, the cause will not be excusable if the supplies or services to be provided by the subcontractor could have been obtained from other sources in time to meet the contract delivery schedule.

   9. The Contract Administration File

      Keeping one complete master contract administration file is critical. The file will provide a basis for settling claims and disputes should they arise in administrative or court actions. Throughout the life of the contract, the contract administration file should contain such things as:

      • A copy of the current contract and all modifications;
      • A copy of all specifications, drawings or manuals incorporated into the contract by reference;
      • A reference list or a list of prior contracts with this specific vendor (if they offer valuable historical data);
      • The solicitation document, the contractor’s response, evaluation determination, and the notice of award document;
      • A list of contractor submittal requirements;
      • A list of government furnished property or services;
      • A list of all information furnished to the contractor;
      • A copy of the pre-award conference summary, if conducted;
      • A schedule of compliance reviews, internal correspondence, if applicable;
      • A copy of all general correspondence related to the contract;
      • The originals of all contractor data or report submittals;
      • A copy of all routine reports required by the contract such as sales reports, pricing schedules, approval requests, and inspection reports;
      • A copy of all notices to proceed, to stop work, to correct deficiencies, or change orders;
      • A copy of all letters of approval pertaining to such matters as materials, the contractor’s quality control program, prospective employees, and work schedules;
      • The records/minutes of all meetings, both internal and external. Include sign-in sheets and/or agendas;
      • A copy of all contractor invoices, information relative to discount provisions for prompt payment, letters pertaining to contract deductions or fee adjustments;
      • A copy of all backup documentation for contractor payment or progress payment; and copies of any audits.