CONTRACTING IN INDIANA: ERRORS & OMISSIONS Kevin C. McDowell Deputy Attorney General Advisory & ADR Services

2 Numbers People Watch Contracts Reviewed Rejected Percentage , % , % , % , %

COMMON ERRORS FROM 7/01/2010 TO 6/30/11: 86 Contracts Exhibits/Attachments2124 %(20% in 09/10) Signature Error1922 %(17%) Boilerplate Error1214 %(14%) Miscellaneous1012 %( 1%) Payment Error 7 8 %(16%) Expired Contract 6 7 %( 0%) Term Error 5 6 %(10%) Reference Error 5 6 %( 1%) Contractor’s Name 2 2 %( 4%) Consideration Error 1 1 %( 1 %) 3

ATTACHMENTS Referenced in Contract But Not Attached. Attached but NOT Referenced In Contract. Extraneous Documents Attached That May (Or May Not) Be Intended As Attachments. Mixing “Exhibit” and “Attachment” In Same Contract. Burying Exhibit/Attachment References in Other Exhibits/Attachments. Pages Missing From Exhibit/Attachment. 4

BETTER PRACTICES o Number Exhibits and Attachments. o Use Consistent Nomenclature. o BOLD FACE or UNDERLINE References to Exhibits/Attachments in Contract. o Leave Off Extraneous Documents or Separate By Use of Pink Sheet. o Avoid Burying References To Additional Exhibits/Attachments In Primary or Main Exhibits/Attachments. 5

SIGNATURE ERRORS Original Ink Signatures (Photocopies, Faxes, Signature Stamps Are Not Permitted). Signed By Contractor or Grantee, or By One With Authority to Sign for Contractor or Grantee. If Signature Authority is Not Apparent, A Document Should Be Attached Indicating Person Signing Has Signature Authority On Behalf of Contractor/Grantee. 6

SOMETHING MUST BE DONE ABOUT I.O.T. !!! I.O.T. Must Be Addressed In Some Fashion In Every Contract:  I.O.T. Signature;  I.O.T. Signature Block Appropriately Marked “Not Applicable” (N/A);  I.O.T. Signature Block Has Been Appropriately Removed; or  I.O.T. Delegation of Authority Letter Has Been Attached. 7

TEMPLATES & BOILERPLATES Use The Current Templates and Boilerplates. Former Versions Will Not Contain All The Required Recitals. 8

$$$$$$$$$$$$$$$$$$$ $. Written Monetary Figure Must Match Numerical Representation. $. Monetary Figures Must Add Up. $. How The Monetary Figure Was Determined Must Be Ascertainable (Where Necessary). $. Contract Should Indicate Amount Not To Be Exceeded. 9

TERMS Duration of Contract Must be Stated Clearly and Be Ascertainable. Calculating the Effective Date from the Last State Agency Signature Rather Than From Date O.A.G. Approves As To Form & Legality is Strongly Discouraged. *Contract is Not Effective Until O.A.G. Approves; *Using Last Agency Signature Typically Reduces Time Frame for Completion of Work by Contractor. 10

LEAP YEAR 2012 Is A Leap Year. If a Contract Slated to Expire on February 28, 2011, Has Been Renewed for “One Year” From that Date, O.A.G. Has Determined That “One Year” Will Be To February 29, If An Actual Date Has Been Indicated, The Actual Date Will Be Used. If A Contract Has Been Renewed For “One Year” To February 29, 2012, and Renewed Again for “One Year,” The Expiration Date Will Be February 28,

THERE IS NO ZOMBIE CLAUSE A Contract that has Expired Cannot Be Amended or Renewed. An Amendment or Renewal Must Be Signed by the Contractor Before the Original Agreement Expires. If the Original Contract Expires Before It Is Signed By the Contractor, You Will Need A New Contract. 12

THE EDS FORM Although Not Part of the Contract, the EDS Form Is An Indication of Agency Intent. There Can Be Problems: o Renewal Language Appears in the Contract but EDS Form Indicates There Isn’t To Be Any Such Language (Vice Versa). o Term on EDS Form Inconsistent With Term in Contract. o EDS # On Form Does Not Match EDS # On Contract. o Funds Allocated In Contract Are Inconsistent with EDS Form. o Former EDS Form Not Included With Contract to be Renewed or Amended. 13

MISCELLANY Form Approval. Consider Form Approval Where There will Be A Substantial Number of Similar Contracts Being Executed In A Given Program Year. Pre-Review. Consider Pre- Review by D.O.A. and O.A.G., Especially Where, During the Negotiation Process, It Appears Significant Modifications May Occur to the Templates or Boilerplate Provisions. 14

MISCELLANY (Cont.) Statement of Work (S.O.W.). Be More Careful in Crafting S.O.W. Payment Method, Progress Milestones, Benchmarks, and Similar Matters Need to be Detailed. S.O.W. Has Increasingly Become More Generally Stated, Which Creates Risks. RFP As Exhibit/Attachment. Where the RFP Will Be An Attachment or Exhibit to a Contract, Pull Out Irrelevant Material. Multiple Signatures. When Multiple Signatures Are Requested, Please Clearly Indicate Where Such Multiple Signatures Are to Be Affixed. 15

EX LIBRIS ALICE RUSH CONTRACTS Notify D.O.A., S.B.A., and O.A.G. of This Request. O.A.G. Should Be Contacted at Unless There Are Extenuating Circumstances, O.A.G. Has 24 Hours To Review A Rush Contract. 16

NEED INFO ON A CONTRACT? When Contacting O.A.G.’s Contract Administrator (That Means “Alice”) to Locate A Contract or Find Out Its Status, Provide the EDS Number. We Do No Track Contracts by Vendor, Agency, or $$. We Track By the EDS Number. 17