SPEaR Good Practice Guidelines 2008: Research and evaluation contracting

Applying the Principle of Respect to research and evaluation contracting

To ensure the research process involving contracting is respectful, officials should:

Ensure that initial scoping includes officials with research experience and contractor selection experience
Use the scoping phase to identify clear project aims and desired product, gather any existing relevant material, and identify key stakeholders including future unspecified stakeholders and their likely level of involvement through the stages of the project.

The Scoping stage is the phase in the process whereby someone (usually the Research Manager, but if not, then the Project Manager asks and attempts to answer: What is already known on this topic? (own agency e.g. files, other staff, library search), other similar agencies. What are the gaps in knowledge? (analysis, any strategies) Is research or evaluation necessary? What are the client requirements? This may involve several clarification meetings and various iterations, and may result in decisions to proceed with other forms of information provision. What are the people resources available (in-house and/or external) and budget (for in-house and/or external). What is the timeline? Are the resources adequate and are increased resources necessary? What is negotiable?
Consult with experienced research colleagues about the feasibility of the proposed work including timing, budget and criteria for selecting the contractor.

A Request for Proposal or Expressions of interest should contain a list of the selection criteria. This enables potential providers to assess whether they will proceed to submit and also assisted with transparency and fairness. Criteria are sometimes weighted.
Be aware of your agency requirements (and those of other similar agencies) and international guidelines or procedures for determining when open competition must be applied and when preferred provider or closed contracting could be more appropriate. Consult with your agency legal section and refer to the Guidelines cited in the Introduction.

For example, there is usually a $ level which activates increasingly formal processes. These $ levels seem to vary between agencies as do internal procedures. There are particular requirements for contracts over $100,000.

See the Mandatory Rules for Procurement by Departments from The Ministry of Economic Development which was endorsed by Cabinet 18/04/06 and applies to contracts over $100,000.

Ensure that the tender notifications (whether EOI/RFI or RFP) contains the necessary information for prospective tenders to respond. This will cover information on the project objective, background, outline of work sought, timelines and contact details for further information with the level of detail appropriate to the process stage. (An RFP would contain more information). The budget can be signalled and the criteria to be used in selection made available. It should also include clear rules about how the agency will deal with late tenders and non-conforming tenders 9i.e. whether these will be received and on what basis). A fair and transparent process should be evident.

Where the co-operation of another agency or group is required for the project (i.e. their service will be evaluated, access to their records may be necessary), this should be signalled in the RFP. The Agency proposing the project should be prepared to assist the researcher/evaluator to obtain needed permissions/access, if that has not already been obtained. (Note Ethics processes are addressed in the Ethics section of these Guidelines and are usually undertaken after contracting formalities)
University based researchers will need to comply with their agency policy on overhead recovery in submitting a budget as part of their proposal. Research Funds such as those operated by FRST, Marsden, TEC and HRC have funds and formula for full overhead recovery. Contract budgets with other crown agencies seldom include full overhead provision. Some provision for overheads directly associated with the contract whether undertaken by a private sector contractor or a university based contractor is usual

Rather than have a category line in an EOI/RFI or RFP called overheads it is better to list out categories such as people costs operational costs, equipment usage/rental, support staff, premises, office supplies, skills/knowledge maintenance. Private sector contractors often include such overheads in their hourly rate. Such variation can make for difficulties in comparing budgets from various tender respondents. You can standardise the categories and reasonable expect tender respondents to follow those categories. adding explanatory budget notes where appropriate. While budgets are negotiable, negotiators should bear in mind that lowest cost does not always mean highest value.

Vote: Research, Science and Technology funding agencies (FRST, HRC, RSNZ/Marsden) and the Tertiary Education Commission Research operate a full cost funding model. Government agencies generally do not operate a full cost-funding model and therefore query overheads if presented as a budget line in an RFP response. It is wise to be clear at the EOI and RFP stages about budget categories and how overheads should be addressed, to ensure all responders (whether private sector or tertiary sector based) can respond on an equitable basis.

Full-cost funding of (university) research is necessary because partial funding could result in:

cross subsidies to or from Vote RS and T and Vote Education; and

uncertain long-term viability of the research providers.

Departments are encouraged to follow these (full cost funding) principles in their own contracting with research providers in the tertiary education sector (Letter - CE MoRST to CEs of government agencies, 21 Feb 2003)

Central government agencies are a significant contractor of social science research. with researchers and evaluators in the tertiary and in the private sector. Marginal cost funding approaches therefore have long run social science capability implications.

Be aware of the range of ways in which aspects such as intellectual property rights (sole or shared), access to agency information, data saving and sharing, publication rights (sole or joint) are able to be dealt with in research contracts while meeting legal and policy requirements

Most agencies will have a standard contract template. Matters of copyright, future use and intellectual property should be discussed at the onset of the project and clearly identified in the contract. Not doing so can result in costly and unnecessary disputes. The Crown has copyright in work that it engages or employs a person to do: s26 Copyrights Act 1994. The contract should reiterate a full Crown copyright. The contract should address whether the copyright will be held jointly with another party (which is often sought by university based researchers), whether the author is authorised to have limited use (including under licence) of the work, commercial use of the work and future modifications of the work. The contract should also address other intellectual property created during the process, for example ownership of the raw data (often vested with the researcher) or any novel data collection methods developed in the course of the study (such as a computer programme). The contract should address the authors moral rights (as defined in the Copyright Act). The authors moral right to be identified as the author of the work does not apply to Crown copyright work unless the author is previously identified on published copies of the work: s 97 Copyright Act. A no surprises approach to any publications and presentations is sometimes also negotiated in a contract.

Be aware that until a contract is actually signed, the relationship may appear to be a voluntary one between the parties with no penalties for walk away. However, legal obligations in the form of a preliminary contract can be created in the absence of a final contract and may arise from the procurement process.
Some agencies include an explicit statement in the RFP that the RFP does not constitute a contractual arrangement However, despite clear disclaimers, pre-contract activity can create what is called a process or preliminary contract. It is wise to ensure legal advice at all stages of the contracting process.
Should work be needed prior to the formal contract signing, a short form contract can be used. Legal advice should be sought.
Be aware that when an agreement is formalised in a contract, this becomes a legal document. All parties to a contract have expectations, rights and responsibilities. Contract variations should be developed through negotiation and formalised in accordance with procedures set out in the original contract
The contract should define the rights and responsibilities of the parties, the service expectations and roles, the reporting and payment stages, process for formalizing any variations, a dispute resolution process and the ability for the procurer to terminate the contract in the event of an appropriation not being made, government policy change or non-performance
Respect the time and effort of contractors by including an indicative Budget,

Tenders should include an indicative budget. Research can be as long as a piece of string, and best practice methods are likely to cost more, so it is important to indicate to potential contractors where the budget range/cap sits. Some agencies may have internal procedures which differ from this approach. Such procedures may advantage the best guesser rather than research of utility allowing a reasonable timeframe for proposal development and including any particular skill sets desired, in the RFP.

Ensure that a realistic amount of time is available for potential contractors to prepare responses to RFPs. This means providing additional time if the RFP is issued around major holiday periods such as December/January, Easter and school holidays.

Once tendered and a preferred contractor is notified of the agencys intent to contract with it, the project should not be withdrawn without having regard to legal advice. Payment of fair compensation to the notified contractor may be required