Scope of Guideline
The scope of this guideline is to provide government entities with items for consideration in the preparation of information technology related contracts by providing the necessary management tools in the form of authorities and responsibilities, change management, invoking remedies, problem detection and resolutions and acceptance and validation of deliverables.
These guidelines are to be used in conjunction with the manuals prepared by the North Dakota Office of the Attorney General and the OMB Risk Management Division:
- Contract Drafting and Review Manual published by the Office of the Attorney General
- Risk Management Manual along with Guidelines on Managing Contractual Risk published by the OMB Risk Management Division
This guide is not intended to provide a complete contract format but identify specific issues to be addressed in the development of a contractual agreement. The contracting entity's Office of the Attorney General legal counsel should review all contracts.
How to Use This Guideline
The following are specific contract clauses which should be considered in the development of an IT contract. Each IT contract is a unique contract in itself; however, each of the following must be evaluated for inclusion to ensure the full delivery of the contract on time, within the contracted cost and with a minimum of misunderstandings or disputes.
Agencies should understand their proposed contract relationship and draft to meet those requirements. Agencies should use the Technology Contract template found on OMB's State Procurement Templates webpage. For IT purchases over $500,000 that are required to follow N.D.C.C. 54-35-15.2(10), an agency shall use the Technology Contract template as the basis for their contract and any changes to the template must be reviewed by the agency, ITD and OMB in consultation with the Office of the Attorney General.
An agency generated contract using the Technology Contract template, while strongly recommended, is not always required. In some instances, such as license and maintenance agreements, a vendor's standard contract may be used. Provisions of a vendor contract that do not comply with state requirements must be amended. These agreements are typically included as attachments to the template contract. Consult with your agency Attorney General counsel for review and recommended amendments to vendor contracts.
State and Vendor Responsibilities
Roles and responsibilities of all parties of the contract should be clearly defined. Ensure all aspects of the contract performance and delivery requirements are specifically identified and assigned to the proper parties. IT contracts may involve more than one vendor and several state personnel making it extremely important to identify and assign the contract responsibilities. Do not make assumptions. Clarify and incorporate all requirements in the contract.
- Identify the vendor's project manager.
- Vendor shall develop a complete systems design document.
- Vendor shall provide named resources to perform specific functions if determined critical to success.
- Vendor shall manage and control all subcontractors or activities.
- Vendor shall provide system support as outlined in the agreement.
- Identify the state’s project manager.
- What are the support requirements of the state’s personnel?
- System testing and user acceptance testing as outlined in the agreement.
- Training requirements.
Compliance with State Standards
All IT contracts should include a clause requiring all products and services provided by the contract vendor comply with state information technology standards. These standards are located on the ITD Standards and Guidelines webpage. Please note that the Security Standards are not publicly accessible outside of the state firewall, but may be provided to a contracted vendor upon request for purposes of fulfilling their contractual obligations.
What are the deliverables - products, services, and tasks required of the contract vendor? When and how often shall management reports and work completion schedules be required?
The product(s) of the contract must be clearly identified as the contract deliverables and/or milestones. The deliverables provide the means and tools to determine the stages of the contract and contract status.
This section of the contract should explain the testing and acceptance procedures as completely as possible. Criteria establishing the process of accepting products or services and identifying the process to be used in the testing of the products and services is necessary to ensure the State of North Dakota is receiving what it is paying for. Identifying the specific procedures to be followed in the testing mode ensures uniform compliance with the intent and purpose of the contract.
Examples of Deliverables:
- Project Plan
- System design document
- System configuration
- System documentation
- Hardware requirements with delivery dates and installation responsibilities
- Software development and delivery
- Training manual and training sessions
- Successful conversion of software and data
- Monthly contract status reports.
Products of the Contract
All work product, equipment, or materials created under the contract should normally be considered the property of the State of North Dakota. Upon completion of the contract all such product, equipment or material should be turned over to the state. However, each contract is unique and product ownership will need to be evaluated on a case-by-case basis. The development of the contract product may require the contractor to use a copyrighted product or the state may be purchasing a Commercial Off-The-Shelf (COTS) product or Software as a Service (Saas). In such cases assignment of the product to the state may not be possible. All contracts should be reviewed with the Office of the Attorney General to determine and verify legal ownership of the contract product.
Terms and Termination
Contracts must be for a specifically stated term. Every contract must have a start date and completion date. It is not good business practice to have an open-ended contract with no deliverables and no completion date.
Normally government funds may not be committed beyond the current biennium. A contract may contain an option allowing the state to extend the contract for another biennium should funding be available. If funding is not available the contract should contain a clause allowing cancellation of the contract without penalty. The contract must also allow for termination, without penalty, should federal or state law changes prohibit the state from completing the contract. Also if contractor licensing or certification is not obtained or renewed as required under federal or state law, the contract should allow for termination without penalty.
See the Office of the Attorney General's Contract Drafting and Reviewing Manual for additional information.
Payment and Payment Conditions
What is to be paid? When to make payments? How much is to be paid? What must be provided to authorize payment?
Payments should be contingent on the receipt of specific contract deliverables. A contract consisting of several payments should include a payment schedule identifying the specific deliverables and the documentation required when requesting payment. To minimize questions regarding payment, it is suggested to include a statement regarding the process time of payment requests. Any additional costs/services may be only allowed if approved as provided under the contract modification and amendment clause.
Advance Payment - There are times when contract payments may be made prior to the receipt of goods or services. This is not a good business practice and is strongly discouraged. When advance payment arrangements are necessary, adequate safeguards need to be included in the contract. In all cases, prior to signing such contracts, the state’s legal counsel should review them. When including advance payment clauses, it is extremely important such payment provisions be reviewed thoroughly to ensure all legal requirements regarding such payment conditions are included and to ensure such provision are allowable.
Open-ended or hourly contracts are not a recommended business practice unless they contain a guaranteed maximum or a not to exceed amount. (To ensure the successful completion of this type of contract requires stronger oversight procedures, which may include more frequent status reports.) Payments that cannot be readily calculated under an agreed contract payment structure may quickly lead to large unanticipated contract expense which may exceed the state’s budgetary limitations. The total contract cost should be identified in the contract, and in the event of an hourly payment clause, the agreed-upon hourly rates shall be listed.
The standard for Project Management for Large Information Technology Projects (STD009-05) requires a project management plan for all projects meeting the definition of a large project. This plan is to provide for the effective management of the project thereby assuring the successful completion of the project on time and within budget. As assurance to the successful completion of a contract, the state shall assign a primary project manager and the vendor shall assign a sub-project manager in all contracts associated with a large IT project. It is the state project manager's responsibility to monitor and control the contract, develop the project plan, monitor the project schedule and budget, manage project staffing, ensure that quality controls are in place, and manage associated risks. These responsibilities should be clearly outlined in the contract.
A contract should include a clause regarding the process for submitting and approving contract amendments. This section should identify to whom such amendments are to be submitted, the procedure for submitting the amendments, and the approval process.
Software to be provided by the contract, be it proprietary or public, should be identified in the contract or included as an attachment to the contract. The contract should also clearly state the scope of the state's right to use the software.
The contract vendor should also verify its status as a licensee of its supplier(s) of software and products furnished under the contract and that they are authorized to grant licenses or sublicenses for the use of such products.
Maintenance/Support and Warranty Period
The contract should clearly state the manner of maintenance/support to be provided by the vendor. The contract should identify the individual(s) to be contacted for service or repair of hardware and/or applications and the agreed upon acceptable response time. It should also identify the level of maintenance/support to be provided, and the billing structure for the services.
The notification process for the resolution of errors, deficiencies or defects, including the method of notification to the vendor, acceptable response time and state’s recourse if the vendor action does not correct the problem or it is not acceptable, must be described in the contract. (Ex: Notification of application errors shall be submitted in writing to the contract vendor project manager. The contract vendor will respond within 10 days with the recommended correction, at which time the contract vendor and the state will review the suggested change for approval.)
The contract vendor should warrant that all equipment, software and computer systems installed meet the contract specifications. Should such product(s) not perform as warranted, the contract should specify the vendor responsibility and state’s recourse. All expressed or implied warranties should be clearly stated in the contract. Depending on the nature of the contracted product, the period for which the product is to be warranted against defect must be stated in the contract or in an attachment.
The contract should describe the responsibilities of the contracting parties regarding the development of user manuals, technical services support manual for state staff as well as other system or application documentation.
- What manuals are necessary and what detail?
- Who is responsible for the preparation of the documentation or manual?
- When must they be completed?
- In what format will they be delivered?
The contract vendor should provide all hardware systems documentation providing information as to the nature and specification of all hardware required by the contract.
All training needs should be described in the contract. The nature and extent of training, the location of training, the training timeframe and the cost of training to be provided by the contract vendor or subcontractor.
Indemnification and Insurance
The State of North Dakota and its employees are to be held harmless on third party claims based on the vicarious liability of the State. For IT contracts involving intellectual property, there should also be an indemnification provision protecting the State against claims for intellectual property infringement. A sample indemnification provision is provided in the Technology Contract template for contracts that include IT professional services requiring special intellectual ability to perform the contracted services, some of which will be performed on-site. If the contract does not include this type of professional services, consult with the OMB Risk Management Division for appropriate indemnification language.
The indemnification/hold harmless clause is important, but by and of itself, it does not guarantee the contractor is able to pay claims. It is, therefore, important to require proof of insurance coverage thus ensuring the contractor is capable of paying such claims.
Agencies should also be aware that the State cannot agree to indemnify the contractor. There are options for warranty language that may be used which could result in a breach of contract claim by the contractor against the State, but the State cannot indemnify a contractor against third party claims. An agency shall consult with its assigned legal counsel if any warranty language is required by the contractor.
Section 5 of OMB Risk Management Division's Risk Management Manual provides clarification on the need and purpose of indemnification and insurance clauses. The information contained in this manual will assist agencies in the evaluation of the contract insurance risks and in determining what type of an indemnification clause (limited or intermediate) should be included in the contract. See the Office of the Attorney General's Contract Drafting and Reviewing Manual for additional information on indemnification, hold harmless and insurance clauses.
Liquidated Damages/Contract Completion
The effects of a failure to deliver the contracted product(s) or service(s) shall be evaluated and identified. Should this failure to deliver on time affect the state’s capacity to perform its business function, a liquidated damage clause as permitted by N.D.C.C. Section 9-08-04 shall be included. This clause will establish the method for computing the reimbursement to the state for costs incurred due to the failed delivery of the contracted product(s) or service(s).
Recommended language for liquidated damages is provided in the Technolgy Contract template. Consult with your agency Attorney General counsel for additional guidance on liquidated damages provisions.
See the Office of the Attorney General's Contract Drafting and Review Manual for additional information regarding liquidated damages provisions.
A contract is not considered fully executed until signed by the authorized representatives. It must be signed and dated by authorized representatives of the contracting parties. The authorized state signatory is to be the elected or appointed entity director or a designated representative. The title or position of each of the signing parties should be listed below the signature line. If an oversight/controlling committee or board controls the entity, the contract approval process should be reviewed to verify the appropriate approval authority. No work should be performed or a payment made until the contract is fully executed. For more information regarding the contracting parties see the Attorney General's Contract Drafting and Review Manual.
Agencies should review the general contract clause samples in the Attorney' General contract manual. This section provides suggested text that may be incorporated in the agency contracts. The appendix in back of the manual includes a contract checklist that may be used together with these guidelines to ensure an effective contractual relationship.
Agencies may email ITDProcurement@nd.gov for questions regarding these guidelines or for general IT procurement assistance. Contact the Service Desk to speak to a member of the IT procurement staff.