FACULTY OF ENGINEERING & COMPUTING

Contract Management

User: Davis D Parakal SID : 3357394 Module : Contract Management Module Leader : Owen Richards

Contract Management

Table of content SL NO 1 2 3 4 5 6 7 8 9
Invitation to tender(ITT) Draft copy

Page 3 4 5 6 6 7 8 10 11

Elements of a Valid contract Invitation to tender ITT Letter of Intent Evaluation of tender Supply of goods and services- act 1982 Breach of contract and Implications IT / Software legal issues Conclusion

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Invitation to tender (ITT) Draft copy

To: [tenderers Name]

ITT No: 145752 Date: 27-05-2011

Dear Sirs

Subject: INVITATION TO TENDER FOR SOFTWARE & HARDWARE SYSTEM FOR CUSTOMER CARE DEPARTMENT 1. 2. You are invited to submit a tender for the supply of voice customer care system (document2) The following documents are attached to this invitation and provide details of the requirement: The technical specification Standard terms and conditions of contract Condition on software licensing and data protection Instructions to tenderers You are required to complete and return the following items: Price and delivery schedule A formal declaration of your offer Statement of non-collusion Detailed report on software & hardware maintenance and version upgrades In addition to your proposals, the tender must also include: an executive summary outlining your approach to the requirement an outline of your organisation's history; its corporate structure; and the range of services it provides the names, role, experience and qualifications of those who will be involved in providing the service previous experience in providing services in this area The Department expects its suppliers to be familiar with, and to carry out their contractual responsibilities in the spirit of this guidance. Copies of this publication can be obtained from the Office of Government Commerce website: www.ogc.gov.uk.

3.

4.

Your Faithfully, Davis D Parakal Project manager [Company name]

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Elements of a valid contract

1. Intention/ Legal Purpose/ objective 2. Offer and acceptance 3. Consideration 4. Legal documentation - agreement A valid contract not exists by simply creating some documents and an agreement between two parties. There must be a defined objective or intention to reach the contract in between these two parties. Also the purpose of the contact should be evaluated under the common law and verify the legality of the business. For example the contact made between two parties to do a business on illegal drugs is not a valid contact since the purpose of that business not supporting the illegal system around it. Here, the law is more likely to recognise that a contract was entered into. An offer is a definite promise to be bound, provided the terms of the offer are accepted. This means that there must be acceptance of precisely what has been offered. In other words an offer is defined as the manifestation of the willingness to enter into a bargain so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it. Acceptance of an offer can occur in several ways: Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer. Acceptance occurs when the party answering the offer agrees to the offer by way of a statement or an act. An acceptance must not change the terms of an offer. If it does, the offer is rejected. A material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party Consideration is the price paid for the promise of the other party. There must be a benefit value exchanged between the parties who being involved in the contract. It can be in terms of money or can be in terms of business opportunities. So long as consideration exists, the court will not question its adequacy, provided that it is of some value. For example, the promise to pay a peppercorn in return for the lease of a house would be good consideration. Of course, the consideration must not be illegal or impossible to perform. To complete the contract between the parties there should be documentation which defines the term and condition that made up in the negotiation between the offeror and accepter. This must me a legally enforced documented when the contract break or breach, these terms and conditions are taken into court and taken into first preference in the court.

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In our case of software and hardware system, the same elements play the key role in the contract. The offer will be building a system with software and hardware with serve a customer care operation in the organization. The supplier will be benefited with the money for developing the system whereas offered organization brings a new business platform in their daily operations. Offer will have to specify the technical requirement they needed and it can be finalized after the negotiation with the supplier. The rules and regulation to build the four elements, the contract these parties should consider the law in software development and licensing. This report will discuss this matter in the coming sections.

Invitation to tender ITT

The ITT is an invitation sent to a shortlist of bidders to make a formal and detailed offer to supply the services or goods required. It is important that the ITT contains all the information and detail needed to enable a bidder to compile a fully formed tender for the requirement. It should contain a proper dates section - it is important that the contracting authority designs a proper and robust procurement process timetable which properly factors in the time needed for clarifications and evaluation. The main factors and subjects to be discussed in an invitation to tender are mentioned below. Project Goals and Objectives Purpose of this Invitation to Tender Form of Tenders Procurement Timetable Organisation Background Technical Environment & Key Requirements Detailed Functional Requirements Cost Information Required Proof of Supplier's sound Financial and Company Standing Implementation Requirements Instructions to Suppliers

In the case of software development service the invitation should contain detailed functional requirement. The common issue among software development contract is lacking the details of technical and functional requirement. If the functional objective is clear in the invitation then the technical requirements and structure can be finalized with supplier before final contract. The special needs and conditions should also be mentioned in the ITT; for example if they are looking for a particular company in the hardware specification then the brand name should be mentioned clearly in the ITT. In the case of software development testing is an important factor in the devolvement. The conditions for beta and alpha testing should also be mentioned in the ITT.

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Letter of Intent
From the term itself this explain its purpose, this document describes what the parties intent to do. Usually this has a very low validity in the court. But very recently the Court has held that letters of intent can be legally binding in place of a formal contract. In considering the application of the letter of intent in any pre-contract negotiations, you must ensure that the letter is drafted very carefully and that, should it become legally binding. The Court will in particular take into consideration the normal contractual provisions, offer and acceptance, consideration, certainty of terms and whether or not there was any intention to create legal relations. In some special cases like, if two or more companies want to work together on a new piece of software, they will usually write a letter of intent. This is an outline of how their agreement might eventually be structured. The key points to be included in letter of content are ,ownership of the final software products, confidentiality, provisions, joint responsibility of the partners for marketing and advertising the products, revenue splitting etc..

Evaluation of tenders
Key Principles of Evaluation Fairness: All tender or quote evaluations must be undertaken in a fair manner. This means each bid deserves equal treatment and assessment and scores should be applied consistently. Confidentiality: All bids during a tender process are confidential and should not be discussed with any person not involved in the evaluation process. Security: All bid documentation must be stored securely during the evaluation period. Hard copies should not be removed from Council premises or left on desks overnight. Any electronic versions should be transferred using secure encryption methods. Evaluation criteria: Bids can only be assessed against the criteria issued in the invitation. Any criteria not included in the invitation cannot be considered or scored at evaluation stage. Scores cannot be awarded or withheld based on the structure of the bid and how easy it is to assess. Bid content Bids can only be assessed based on what information is provided with the submission. Assumptions should not be made regarding proposals and prior knowledge of any bidder cannot be taken into account. At Tender stage (or open stage 2) only the proposal can be evaluated not the company.

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Scoring: All bids must be scored based on their performance against a set scoring model which must be included in the invitation document. Bids should not be compared with others to determine scores Below is an example of how bidders scores are calculated (Good Practice Guides, 2010)

(Good Practice Guides, 2010)

Supply of goods and services- act 1982

An Act to amend the law with respect to the terms to be implied in certain contracts for the transfer of the property in goods, in certain contracts for the hire of goods and in certain contracts for the supply of a service; and for connected purposes For the purposes of this section an excepted contract means any of the following: (a) A contract of sale of goods; (B) A hire-purchase agreement; (d) A transfer or agreement to transfer which is made by deed and for which there is no consideration other than the presumed consideration imported by the deed; (e) A contract intended to operate by way of mortgage, pledge, charge or other security The Supply of Goods and Services Act 1982 requires a supplier of a service acting in the course of business in England, Wales and Northern Ireland to carry out that service with reasonable care and skill and, unless agreed to the contrary, within a reasonable time and make no more than a

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reasonable charge. When the service has been paid for, the buyer has certain legal rights laid out in the supply of Goods and service act 1982. This act covers the roles that are carried out by the seller to service. This law says briefly: 1-If a supplier of a service breaches the conditions of a contract (for example by failing to carry the consumer has a choice either to affirm the contract and claim compensation from the trader for his failure to carry out what was agreed or rescind (cancel) the contract. 2-If the supplier does not carry out the work with reasonable care and skill the law treats the matter as a breach of contract and the consumer can seek redress. 3-If no agreement has been made with the supplier about completion of the work, or about the charge to be made, then if it is not completed within a reasonable time or the price is unreasonable, this is also treated as breach of contract and the consumer may be entitled to compensation. 4-Any goods supplied in the course of the service must be as described, of satisfactory quality and fit for their purpose 5-A supplier of a service who has broken a contract may also be liable for any consequential loss which is suffered by the consumer. 6-A claim can be pursued though the courts for up to six years providing it can be shown that the problem was due to the work not being carried out properly or the goods or materials used not being of satisfactory quality. In the case of some softwares it comes under the supply of goods. For example if we are buying antivirus software from the shop, it will be considered as a Supply of good. And in the case of banking data centres will be considered as the supply of service. There are special laws applicable for software development. We are discussing those in our next section.

Breach of contract and Implications

A violation of a contract by either failing to perform ones own contractual obligations or by interfering with another partys performance of their obligations. The main types of breach of contract will be minor, material, fundamental, and anticipatory. Minor breaches can be, for example, a builder who

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substitutes his own type of materials for specified materials. The substituted materials may work just as well as the specified but it can still be seen as a minor breach of contract. A material breach can be a breach that has serious consequences on the outcome of the contract. A fundamental breach would be one so serious that the contract has to be terminated. An anticipatory breach is one where one of the parties makes it known that they will not be carrying out agreed work, and the consequences can be termination of the contract and damages being sought in court The most frequent remedy for breach of contract is damages. Damages are available provided that they are proved. If a contract includes a provision that, on a breach of contract, damages of a certain amount or calculable at a certain rate will be payable, the courts will normally accept the relevant figure as a measure of damages. Such clauses are called liquidated damages clauses. Un-liquidated damages are evaluated with legal enforcement. If the contract dispute reaches the court then court will evaluate the reach of damage and valuate the compensation or damage. Damages claims are also able to be made under copyright legislation. For instance, additional damages, which are damages over and above the usual measure, may be awarded on a discretionary basis where some benefit has been obtained by the infringer, or there has been a blatant disregard for the rights' owners legal entitlements.

Data Protection Act 1998 Since April 2010 the Data Commissioner has had the power to impose a fine of up to 500,000 on a data controller who seriously breaches the data protection principles, if the contravention was of a kind likely to cause substantial damage or substantial distress. The contravention must either have been deliberate or the data controller must have known or ought to have known that there was a risk that a contravention would occur and failed to take reasonable steps to prevent it. In a SaaS agreement the customer is the data controller and primarily liable for breaches of the Data Protection Act, however under the terms of the SaaS agreement the supplier will invariably be liable for compensating a customer for any supplier breaches (and those of its agents and sub-contractors, i.e. the data centre, outsourced backup service provider, storage facility) of the Data Protection Act.

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IT / Software legal issues

People are usually so focussed on the price and functionality issues when procuring software, hardware or IT services that they ignore the legal issues that are key to risk management and continuity of service.

Transfer of Intellectual Property Rights (IPR) If the software is being developed or customised, I IPR document should be made for the business. You will additionally need to verify that the party purporting to assign the rights to you is the actual owner. Flexibility Software licences are prescriptive. Customer only allowed doing what they expressly permit under the supplier condition. The customer has to make clause in the agreement to reuse the software or resell it. E.g. an outsource can use it on your behalf and that you can transfer the licence to a third party. Service Level Agreement (SLA) Nowadays, software is often providing as a service. There are many modalities including Software as a Service (SAAS), Cloud Computing and ASP. Each of these will depend on the internet as a backbone. The internet is subject to glitches. To protect, customer will need to agree an SLA which provides the appropriate guarantees in terms of uptime, backups, and disaster recovery and business continuity and may provide service credits in the event of breach. IPR Indemnity If a third party alleges that the software that has been provided is actually wholly or partly theirs, customer may well face a large claim for unlicensed use or copyright infringement. Furthermore, may be precluded from making any further use of the software. With this in mind, client needs to ensure that the contract contains a comprehensive IPR indemnity from the provider. Liability Most standard software licences and development contracts contain draconian exclusions and limitations of liability. This may mean that even if the provider is in breach of the contract, recourse is very limited. These clauses need to be negotiated carefully so that client not left in the proverbial lurch. Source Code Escrow

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Client need to secure access to the source code of the software if the developer goes bust or fails to maintain it properly. To protect the position, demand that the source code be put in escrow with an independent third party.

Conclusion
The report discussed about contract management and some important terms in contact management. It is evident from the studies that a contract is not only an agreement written between two parties, it should have a proper purpose, consideration and legal enforcements. The offer and acceptance are two main key fundamentals in contract. The offer can be in a form of ITT and we have seen the sample format and its characteristics in a brief. When we invite a tender the evaluation process of the tender and contact should be defined. This can be in terms of cost, time, quality or scope. When we come into software development and its contract some added features like licensing and IPR also comes under the contract. The next important concept we came across is breach of contracts and types of damages used for resolving the issues. Data protection acts are always keep high priority in software and hardware contracts. Finally the report the general terms in the IT contracts also discussed in the end of the report.

References & Bibliography

Mckendrick, E. (2005) 2nd ed. Contract Law Text, Cases and Materials. Oxford: New York Paul Dobson, (2000), sale of goods and consumer credit, six editions. Furmston,M (2000). Sales and supply of goods. 3th ed. London. UK: Cavendish publishing Ltd. p9
Edwin peel, the law of contract, 2008 (12th edn, Sweet & Maxwell 2007)

The Office of Government Commerce, 2010 available , Website , Available online: http://www.ogc.gov.uk/Introduction_to_Procurement_contract_management.asp Local Government Improvement and Development , Invitation to tender, website, Available online: http://www.idea.gov.uk/idk/core/page.do?pageId=9308263 Procurement Portal , website, Available online: http://www.procurementportal.com/invitationtotender/ The Procurement Toolkit Good Practice Guides Version Date: October 2010 , Available online: http://www.wakefield.gov.uk/NR/rdonlyres/F275C524-0302-477A-BE8EDFDD688B80A3/0/06_Guide_to_tender_evaluation.pdf Legislation laws, Available online: http://www.legislation.gov.uk/ukpga/1982/29/contents

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Bodle Law, website, available online: http://www.bodlelaw.com/it-law

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