Information Technology Division Executive Office for Administration and Finance Making the Statement of Work Work For You Stephanie Zierten Deputy General Counsel, ITD Legal

Agenda What it is? Getting the Deal Done Major Terms Info Expo - March 11, 2013

What is a contract? “ An agreement  between two or more parties  creating obligations  that are enforceable or otherwise recognizable at law.” “The writing that sets for such an agreement”  Source: Black's Law Dictionary, 7 th Ed. Makes a private body of law between the parties A meeting of the minds “Is is the official language”  vendor’s attorney to vendor’s salesperson during a conference call Info Expo - March 11, 2013

What is in baked into the SOW/MSA? Bidder's Response to RFQ Std. Forms: Comm T&C’s Std. Contract Form, etc. Bidder's Response to RFR Request for Quotes (if relevant) Request for Response SOW/MSA Info Expo - March 11, 2013

General Sequence 1.RFQ/RFR issued 2.Bidders respond 3.PMT reviewed 4.Apparent Successful Bidder Identified 5.SOW/MSA Negotiations 6.SOW/MSA Finalized 7.SOW/MSA Executed 8.The (Real) Work Begins Info Expo - March 11, 2013

We picked the winning bidder, why can’t we just issue the PO? The goal of the SOW/MSA: 1.Accurate => correctly expresses the deal 2.Complete => all possibilities have been addressed. 3.Exact => the deal is not vague nor ambiguous 4.Tough => Able to withstand hostile, critical review (e.g. vendor, judge, or jury) Info Expo - March 11, 2013

The Negotiation Team Commonwealth: Agency business staff (PM, Business Owner, SMEs) Agency counsel ITD’s PMO Project Advisor ITD attorney (depending on $$ value) Vendor: Vendor’s business staff (PM, Business Owner) Vendor’s counsel Info Expo - March 11, 2013

8 What’s Negotiable? The gaps – The gaps between the RFR or RFQ and the bidder’s response (including all docs submitted by bidder). Horse Trading – If the bidder’s response promised a deliverable, can’t give it up unless the agency receives something of equivalent value that is consistent with RFR or RFQ in return – Can always add to the pie through negotiations, just can’t make it smaller. – If bidder overpromised in the response, that’s the bidder’s problem. Info Expo - March 11, 2013

9 The Drafting Process Discussions with vendor, agree to issues Business Owner Identify Gaps in Bid Contact Bidder, Negotiate Gaps Legal identifies other gaps drafts, updates SOW/MSA Business Owner Reviews Agency and Vendor Execute SOW/MSA Business Owner. Legal Review Changes Bidder Changes Draft? Draft? Bidder Reviews Any Changes? Send Terms to Legal yes Info Expo - March 11, 2013 yes no

10 How long does this typically take? $ Amt$1,000- $25,000 $25,000- $250,000 $250,00 0-$1M 1M-5M5M-15M$15M on up Est. SOW Neg (start to finish) 3-5 days1-4 weeks2-7 weeks3-10 weeks5-26 weeks26 weeks to 1 year Dependencies  Clarity of the business deal as shown by: Request for Responses or Request for Quotes Bidder’s Response  Internal business staff availability for negotiations  Bidder’s responsiveness and participation in negotiation (responding to issues, turning around drafts)  Connection to other agreements (e.g. cannot finish the SOW without the software license).  Relative priority of project (as determined by mgmt)  Queue of projects in legal (see: “Contract Tracking”) Info Expo - March 11, 2013

11 Major Terms Overview and Effective Date Single Point of Contact (who’s on first) Acceptance or Rejection Process; Delays Project Management – Project Managers/Project Plan – Project Plan – Issue Resolution – Changes/Amendments – Key Personnel – Equipment – Related Project Knowledge Additional Terms: e.g. Warranties, Intellectual Property (IP) -- (the terms the attorneys dicker over) Vendor Tasks and Deliverables: the terms the business folks dicker over Payment Terms Term and Termination Info Expo - March 11, 2013

12 Risk Shifting Terms Project Phases – e.g. One SOW/MSA with multiple Task Orders – Agency may terminate at end of each phase with no penalty Pilots – Require vendor to pilot process before full out implementation Holdbacks – Agency holds back a % of each Deliverable until entire phase completed. Liquidated Damages – Various types of breach result in immediate financial penalty to vendor. Warranties – Work performed according to professional or industry standards. – Holdback tied to completion of warranty period Info Expo - March 11, 2013

13 Amendments and Change Orders Include material changes to terms: – Changes in scope – Contractual terms (including deliverables, milestones etc.) – Financial implications (even when no impact apparent) – Expiration date (changes in Fiscal Year) Info Expo - March 11, 2013

14 Contact Information ITD Legal – General Counsel: Linda Hamel (617) – Deputy General Counsel: Stephanie Zierten (617) – Assistant General Counsel: Greg Smith (617) – Legal Practice Manager: Michelle Burwell (617) Info Expo - March 11, 2013