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These kinds of communication mechanisms acknowledge the importance of
the application and the long-term nature of the parties’ relationship and artic-
ulate the expectations of the parties.
The maintenance plan should also address how and where information
about problem resolution will be retained. While it is an acceptable practice
for the vendor to program a workaround or develop a patch, a repository is
needed for information about how problems were solved. This information is
valuable and may be needed to test the impact on interrelated systems or
deposit into the escrow.
In addition, the parties need to express how they will determine if the main-
tenance requirements are met and what the ramifications will be if the main-
tenance requirements are not met. Oftentimes, a required period of availability
and level of performance is contractually defined. It is beyond the scope of this
chapter to discuss the various ways of defining periods of availability and per-
formance metrics used in AFIS technology. While relatively easy to state, the
devil is in the details. Substantial effort and time must be invested in develop-
ing a methodology acceptable to both parties in terms of costs to implement
and results. If maintenance or performance requirements are not met, the
resulting contract will often provide a financial consequence, such as a credit
or refund. Care must be taken to ensure that the resulting clause meets the
legal requirements as a disincentive, and is not construed as an unenforceable
penalty. Legal counsel can provide assistance in this area.
Another topic to consider is how the credit or refund is given or expended.
If the period of availability and level of performance are not met, the vendor
may agree to provide the government with a credit reflective of the lost System
value or the value not received under maintenance, or some other agreed-upon
figure. The vendor may have legitimate concerns regarding cash flow and how
different transactions are recorded. Similarly, the government may have
requirements imposed on the receipt of funds that should be considered when
shaping the agreement. For example, there may be a requirement that any cash
refunds received by a state governmental agency must be deposited for the
benefit of the state, and not made directly available for expenditure by that spe-
cific agency. It is highly likely the specific agency would want to structure any
credit or refund so it gains the benefit. This is another topic for which advice
must be sought from the finance or business office.
With respect to software maintenance, it is important to specify and under-
stand what is and is not included within the scope of the maintenance. While
software maintenance generally includes bug fixes and software upgrades, it
generally does not include new releases or versions. The RFP may also distin-
guish between types of software upgrades, establishing different requirements