contract risk assessment roadmap presentation

8/10/2019 Contract Risk Assessment Roadmap Presentation

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Contract

Risk AssessmentRoad Map12/1/2004


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Where Does Risk Assessment,

Insurance, Bonding and

Indemnification Fit in the Contracting

Process?

At the inception of an idea, your agencyshould perform a risk assessment of theactivity.


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Use The Contract Documents

As Your First Tools

A Request for Information (RFI) can be veryuseful in determining the amounts ofinsurance your targeted contractors carry

and how much the coverage costs them. An Invitation to Bid (ITB) and a Request for

Proposal (RFP) are commonly used in thebidding process.

At the beginning of the process, use theRisk Assessment to decide types andamounts of Insurance and Bonding thatshould be built into the bid document.


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Dont Forget About History!

Has your agency, oversight

agency, or peers procuredthis type of service orproduct before?

Review solicitation orcontract files.

Review past practice.

Ask the old timers. Create your own

historical referencematerial for future use.


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Call Your Agency Area Experts

Who Are the Agency Area Experts?

Your Manager Program staff and managers


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What is the

specificactivity?


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What is Your

Agencys Appetitefor Risk?


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What is a Risk Appetite? Risk appetite is the degree of

uncertainty an agency is willing toaccept to reach its goals.

Risk appetite is a key factor in

evaluating strategic options. Risk Assessment helps

management consider riskappetite when setting goals thatalign with overall agency strategy,and managing risks related to thatstrategy.


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Work with your agencys management to

decide:

What is your agencys risktolerance?

How much or what are you

willing to risk to accomplishthe mission or activity?

How much can your agencyafford to lose in any oneoccurrence or in theaggregate?


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What Does YourAgency Do?(Mission, Goals,

Objectives)


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Does the activity

fit the Agencymission, goals,

objectives?


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NoIf the answer =

Take to management

for consideration

Management decides yes = Move on

Management decides no = Stop


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If the answer = Yes

What could go wrong?Who could be harmed?

Make a list - write it down.

These are your loss exposures.(See Risk Identification & Evaluation)


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What is Risk?

The danger or probability of loss.


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Loss ExposurePossibility of financial lossas

the result of a particular perilstriking a thing of value.


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Components of a Loss Exposure

The type ofvalueexposedto loss.

The peril that causes the loss.

The extent of the potential

financial consequencesof thatloss.


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Values Exposed to Loss

People

Property

Freedom from Liability(Alleged Wrongdoing)


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Perils Causing Loss

Natural Perils:

Human Perils:

Economic Perils:


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Potential

Financial Consequences

Make sure that you dont give away the farm!


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THINK ABOUTWHAT CAN GO

Wrong!


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Why is this important?

An un recognized loss exposu recannot, except by chance, be

effectively managed.State of Oregon


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Methods Of

Identifying Exposures: Previous contracts of similar type and their

outcomes.

Standardized surveys/questionnaires

Financial statements Records and files

Loss Reports/Claims

Flowcharts

Personal inspections

Experts


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What questions should we ask?


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What is the scope of the

contracted service or activity?

What is the overall serviceor activity?

What functions arenecessary to deliver oraccomplish this service oractivity?

When and where will theservice or activity takeplace(s)?


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Who will be performing the service or

activity? Will the contractor interact with

others, i.e., public, staff, etc?

Will there be any hazardousmaterials involved?


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What are the potential loss

exposures or risks associatedwith the contracted service or

activity?


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What could happen?

What could go wrong? Who could beharmed?

Could there be bodily injury,property damage or otherliability exposures causedby this service or activity?

Is there any impact on

workload? Could therebe any damage to oursystems?


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Remember..

Consider the values exposed toloss: People, Property, Freedom from

Liability. Consider the perils that could

cause loss: Natural, Human,

Economic.


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Rate the Risks of Loss and

Weigh the Value of

Opportunities


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Rate the severity of the risk of

each potential loss exposure.How bad can each loss be?

What could it cost?


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Rating Severity Description (Risk)

1 Insignificant No injuries; low financial loss

2 Minor First aide treatment; minor financial loss

3 Moderate Injuries; loss of operations; moderate financial loss

4 Major Extensive injuries; loss of operations; major financial loss

5 Critical Death; major loss of operations; huge financial loss

Rating the Severity of Loss Exposures


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What is the likelihood that

each of these potential lossexposures will happen?

Rating the Likelihood of Occurrence


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Rating the Likelihood of Occurrence

Rating Descriptor Likelihood

(Probability)

Description

1 Rare 110% May occur only in exceptional

circumstances

2 Unlikely 11

25% Could occur at some time

3 Possible 2675% Might occur at some time

4 Likely 7690% Will probably occur in most

circumstances

5 Almost

Certain

91100% Is expected to occur in most

circumstances


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INSIGNIFICANT MINOR MODERATE MAJOR CRITICAL

ALMOST

CERTAIN

M H E E E

LIKELY M M H E E

POSSIBLE L M H E E

UNLIKELY L L M H E

RARE L L M H H

Determine the risk rating/level of risk

for each potential loss exposure.

Severity

L

ikelihood


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Risk Rating (RR) = Level Of Risk

E = Extreme Risk- involve seniormanagement immediately, emergencysituation, consider not doing the activity.

H = High Risk- management attention

required for business and policy decisions,risk control, insurance types and limits, etc.

M = Moderate Risk- management should bekept informed of risk control, insurance types

and limits, etc. L = Low Risk- manage by routine

procedures, insurance types and limits couldbe flexible.


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Now That You Have Rated The

Risks Of Loss.Think About The Value Of

OPPORTUNITIES


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EXPLOITING OPPORTUNITIES

What opportunities will be missed if theactivity is not done?

What is the upside and downside ofthese opportunities?

By considering the full range of potentialeventsrather than just risksthe riskassessment process ensures that

management can identify and takeadvantage of positive events quicklyand efficiently.


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Weighing the Value of Opportunities

Rating Value Description (Opportunity)

1 Insignificant Minor budgetary, funding, or resource gain; Little

or no gain in public and/or client relations.

2 Minor Low budgetary, funding, or resource gain; Some

gain in public and/or client relations.

3 Moderate Moderate budgetary, funding, or resource gain;

Adequate public and/or client relations.

4 Major Major budgetary, funding, or resource gain; Goodpublic and/or client relations.

5 Critical Huge budgetary, funding, or resource gain;

Excellent public and/or client relations.


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If RR = E or H

Is theActivity

Necessary?

If the Answer = No

ManagementBusiness Decision

No = StopManagement Decides

Yes = Move On


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Statutory Immunities:Research Statutes

No = Move on to Loss

Prevention/Risk

Control Measures

Do any

immunities

apply to theactivity?


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Statutory Immunities

If the Answer is: Yes

What are the

limitations and/or exclusions?

Do you have alegal opinion

on statutoryimmunities?

No = Managementbusiness decision

on legal opinion

Yes = Move on to LossPrevention/Risk Control

Measures


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Loss Prevention/

Risk Control Measures

See Risk Control Methods and Measures


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Avoidthe risk altogether.

Preventthe frequency of loss.

Reducethe severity or cost of loss.

Segregate to prevent one event

from causing loss to the whole. Contractually transferthe risk.

What are Loss Prevention/

Risk Control Methods?


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Avoid Exposure

Entirely eliminatesany possibility of

loss. It isachieved either byabandoning ornever undertaking

an activity or anasset.


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Loss Prevention

Reduces the frequency or number oflosses.


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Loss Reduction

Lowers the severity or cost of a loss.


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Segregate Your LossesArrange your agencys activities and assets to

prevent one event from causing loss to the

whole.

- two methods -


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Separation

Separate activities and assets amongseveral locations.


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Duplication

Provide a duplicate or stand by for use incase assets or activities suffer a loss.


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Contractual Transfer of Risk

GOAL:

To insure that a contractor is

responsible for claims arising outof his or her acts, and has someway to pay for these losses.


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Principle #1

Contractually transfer the risk to thecontractor.

Indemnity is only as good as the assetsor insurance coverage backing it up.

Ask for appropriate insurance and

bonds to cover the risk.


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Principle #3


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Principle #3 Dont rely on insurance or bonds to

cover all of the risks associated

with your contract. Many times outcome based

statements of work, contract

administration, and supervision arefar better risk control measures toprotect the states interests thaninsurance or bonds.

Insurance and bonds should bethought of as the safety net thatcatches us when everything else

goes wrong.

Develop Risk Control Measures


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Develop Risk Control Measures

Specific to the Situation

Personal protective equipment.

Housekeeping, repair, and maintenance.

Inspections.

Tools and equipment.

Policies, procedures, and process.Supervision.

Contract Management and Administration.


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Which

measures

best fit the

mission,activity, and

RR?


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How can themeasures be

implemented

? Who will

implement?


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Who will beresponsible

for making

sure the

measures

are

followed?


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Who will beresponsible

for ongoing

monitoring?

Did you


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Did you

choose

Contractual

Transfer?

Yes = Move on to select

appropriate Contractual

Transfer - ContractClauses

No = Go toStates Self Insurance or

Commercial Insurance


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Contractual Transfer

Contract Clauses

Independent Contractor

Indemnity/Hold Harmless

Insurance and Bonds

Warranties


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Will you

use a

contract?

Will you

use atemplate?

Will you

require

insuranc

e or

bonds?

No = How will the state be protected?

Re-evaluate the situation. Figure

out how the state will be protected.

Talk to management.

Yes = Move on to Contractual Transfer


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Independent Contractor

We use the Independent ContractorClause to support our assertion thatthe contractor is not our agent.


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What Does Indemnify

Mean in a Contract?It is an agreement to pay orreimburse another party for losses

you are legally obligated to pay.

I d it /H ld H l


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Indemnity/Hold Harmless

A method of contractually transferring therisk.

States that the contractor or serviceprovider will not hold us responsible for

any claims arising out of their negligentacts and that the contractor will payassociated claim costs.

Provides the state with claims protection.Most effective when used in conjunctionwith the appropriate insurance clauses.


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How do you contractually

transfer risk to a contractor?


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Four Steps

(1) Do a risk assessment.

(2) Determine the necessary actions for thecontractual transfer of risk, such as the

use of appropriate contract templates,contract language, insurance, bonds andrisk control measures.

(3) Review each contract.

(4) Follow-up to insure compliance with theinsurance and bonding requirements.

Step 1: Risk Assessment


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Step 1: Risk Assessment

(1) What is the scope of the contracted service oractivity?

(2) What are the potential loss exposures or risks?What can go wrong? Who can be harmed?

(3) What is the likelihood that each of thesepotential loss exposures will happen?

4) Rate the severity of each potential lossexposure. How bad can it be? Whatcould it cost?

5) Determine the risk rating for eachpotential loss exposure.

Step 2: Determine the


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Step 2: Determine the

necessary actions for the

contractual transfer of risk Use of standardized contract

templates.

Use of appropriate contractlanguage including indemnificationclauses and other non-insurancerisk transfer.

Use of appropriate insurance, bondsand coverage limits.

Use of appropriate risk controlmeasures.

C A t


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Coverage Assessment

What kind and

how muchinsurance or

bonds?(See Insurance

CoverageAssessment)


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Examples of Common Types of

Insurance and Bonds


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U b ll P li i


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Umbrella Policies

Provide excess coverage overanother underlying liability policy.

Many times provides broadercoverage than the primary(underlying) liability policy.


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Excess Liability

Pays after the primary (underlying)liability policy limits have been

exhausted.May not be as broad as primary

(underlying) liability policy.


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Aircraft Liability

Insurance covering liability and bodilyinjury to others arising out of the

operation of an airplane.


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When Do You Need To Require

Aircraft Liability Coverage?

When the contractor is using an

airplane to provide the service. If the contractor will carry

passengers, the contractor will also

need to have a per seat limit forbodily injury to passengers.


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Automobile Liability

Insurance that provides coveragefor third party bodily injury or

property damage arising out of theuse of an insured vehicle.



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Automobile Liability Insurance

Coverage? When the contractor needs to

use an automobile to provide

the services.

Usually, Personal Automobile

Liability insurance coverage is notsufficient to cover a contractorsbusiness operations.

What Does


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What Does

General Liability Insurance

Really Cover?

General Liability Insurance


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y

Myths

Insurance covers theindemnification provided in thecontract.

FALSE

General Liability insurance willcover your entity if the contractorswork is done negligently.

FALSE

There is contractual liabilitycoverage in a General Liabilitypolicy.

MOSTLY FALSE


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Commercial General Liability

(CGL)Insurance covering Third Party:

Bodily injury.

Property damage.

Limited Contractual liability.

Products and completed operations.May also cover personal and

advertising injury liability.


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CGL Policy Definitions

Bodily Injury: The injury of physicaltissue by an outside force, bodily harm,sickness, or disease.

Personal Injury: Libel, slander, falsearrest, and invasion of privacy.


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CGL Policy Definitions(Continued)

Products & Completed Operations:Insurance covering the contractor for

damage or injury to third partiesresulting from something the contractormade, repaired, or installed. Thedamage to third partiesresulting fromthe service would be covered not thecontractors actual product.

CGL Policy Definitions


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CGL Policy Definitions(Continued)

Contractual Liability: A portion ofCommercial General Liability coverage thatallows limitedcoverage for liability

assumed under the contract. The coverageallowed by Contractual Liability includes:

Liability assumed under an insuredcontract.

Liability that the insured would have inthe absence of the contract oragreement.


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Current Case Law


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Current Case Law

Id. at 479. A tort claim, where there is a

contract between parties, may only proceedwhere there is some kind of obligation owedby one party to the other beyond the duties

that the contract imposes. Id. at 477. Examples of such relationships

are those between lawyers and clients,doctors and patients, or trustees andbeneficiaries. The court has called thesespecial relationships.

Jones v. Emerald Pacific Homes, 188 Or App 471, id at 477 & 479

Special Relationships


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Special Relationships

Only Exist When:

One party has relinquished control overthe subject matter of the relationship tothe other party; and

Has placed its potential monetaryliability in the others hands.


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CRIME COVERAGE

Employee Dishonesty, Third


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Employee Dishonesty, Third

Party Fidelity and (when

applicable) Money andSecurities

Insurance covering loss to money,securities, and other property (otherthan money) caused directly by

employee dishonesty.

Wh D Y N d T R i


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Employee DishonestyCoverage?

When the contractor is handling money,

securities, other valuable property, ordata.

Third Party Fidelity Bond


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Third Party Fidelity Bond

If the Employee Dishonesty coverage isnot specifically endorsed to include aThird Party Fidelity/Crime Bond, in mostcases, it will not be comprehensive

enough to provide coverage for a claimfor theft by your contractor or theiremployees that results in a loss for youragency.


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Professional Liability or

Errors and Omissions

Coverage


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Who Should Have Professional


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Liability or Errors and Omissions

Coverage?Licensed and accredited specialists suchas:

Doctors or medical practitioners.

Engineers.

Information technology specialists(computer programmers, etc).

And non-licensed professionals suchas interpreters, recorders, testingfacilities, and research laboratories.

Wh t D P f i l Li bilit


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What Does Professional Liability

or Errors and Omissions Cover?

Pays the financial loss of the state,when the covered person fails toperform their professional duty.

The coverage is specific to the nature ofthe profession.

Covers malpractice, misconduct,

negligence, errors, omissions, orincompetence in the performance of acovered act.


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Garage and Garagekeepers

Legal Liability Coverage

Garage Liability Coverage


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Garage Liability Coverage

Covers garage operators for liability,

medical payments, and automobilephysical damage arising out of theoperations of auto dealers, service

stations, auto repair shops, and parkinglots.

Includes General Liability coverage for

garage operations.

Garagekeepers Legal Liability


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Garagekeepers Legal Liability

Coverage

Coverage for autos left for service,repair, storage, or Safekeeping.

The limits of coverage should behigh enough to cover the total valueof any autos left for safekeeping

(yours and others) at any time.

Workers Compensation


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Workers Compensation

Insurance covering employee injuries,disability or death.

The policy protects the employer from

being sued by the employee for injuries.Oregon law requires all employers,unless exempt, provide this coveragefor all subject employees working in

Oregon.

When Should I Ask Questions


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When Should I Ask Questions

About Oregon Specific

Workers Compensation?

When the contractor has one ormore employees performingservices under the contract inOregon.


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Will you require


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y qAdditionalInsured andother clauses?

No

Re-evaluate the situation. Figure

out how the state will be protected.

Talk to management.

Additional Insured


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Additional Insured

Protects the state when named in an

action that is not its responsibility orfault.

Ensures that the contractor or serviceproviders insurance company would

expend funds to have the states name

removed.

The state benefits by not having to use

its assets for litigation purposes.


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What Document(s) are


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What Document(s) are

Acceptable to Verify Insurance

Coverage?

Certificate of Insurance.

Letter from corporation stating they areself-insured. This should be accompaniedby a financial statement, unless you arecertain about the entitys financial stability.

Letter from bank stating the amount held inreserves to pay claims and lawsuits.


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What Do We Look For onthe Certificate of Insurance?

Make sure the coverage and policy limits


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match the contract requirements.

Look at the policy effective date and expirationdates to make sure they coincide with thecontract term. If not, request anothercertificate several months before the policy

expires.The State of Oregon or your agency is named

as the certificate holder and additional insured.

What do the comments in the description

section say? Contact the agent with anyquestions.

Is there an SIR (self-insured retention) listed?

Certificates of Insurance


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Certificates of Insurance

Did We Get What We Asked For?

Notice of Cancellation


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Notice of Cancellation

or Change

Requires the contractor or serviceproviders insurance company to

notify us if:There is a possibility of the policy

limits being exhausted.

The policy is cancelled or non-renewed.


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Certificate(s) of Insurance

Requires the contractor to prove to thestate that it has met the insurance

requirements of the contract.One way to prove this request is by

submitting a Certificate of Insurance

stating the coverage and policy limits.

Tail Coverage


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g

Can be purchased to extend theperiod of time a claim can bereported for a claims made policy.

Can be purchased on claims madebasis.

What Does Claims Made or


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What Does Claims Made or

Occurrence Mean?

Insurance policies are written on aclaims made or occurrence

basis. These terms address claimsreporting time periods.


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A Claims Madepolicy covers allclaims reported and filed during

the policy period.


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An Occurrencepolicy covers allclaims arising out of incidents

occurring during the policy

period, regardless of whether ornot the policy is still in effect atthe time that the claim is made.

What Does SIR Mean?


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Stands for Self-Insured Retention.

Works like a deductible.

If you see this on a Certificate of Insurance,it means the contractor will perform all the

functions normally undertaken by aninsurance company for claims within theSIR.

Any losses must exceed the SIR amountbefore the insurance company will handlethe claim.


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Who Should We Call With


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Questions About

Certificates of Insurance?

The Contractor;

The Agent that issuedthe Certificate; or

The insurance company

that is listed on theCertificate.


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Bonds?


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Bonds?

Bonds are different from insurance.A bond is a simple guarantee. If there is a loss, the bonding

company (Surety) will pay but willseek full reimbursement from thecontractor.

Premium is based on thecontractors loss experience,

assets, and finances.


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What Are The Typical Kinds ofBonds Used in Contracts?

Bid B d


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Bid Bond

Provides financial assurance that thebid is submitted in good faith and that

the contractor intends to enter into thecontract at the bid price and if stated inthe bid, provide the requiredperformance and payment bonds.

P f B d


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Performance Bond

Protects the state from financialloss should the contractor fail to

perform the contract in accordancewith contract terms and conditions.

Payment Bond


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Payment Bond

(Labor & Materials Bond)

Guarantees that the contractor will paycertain subcontractors, laborers and

material suppliers associated with theproject.

M i t B d


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Maintenance Bond

Protects the state against defects inworkmanship or materials (usually

for two years) after the contractorhas completed the work.

Additi l B d I f ti


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Additional Bond Information

Bond terms are usually 1224months.

The bond amount requesteddepends on the risk of the contract.

In most cases, bonds cost about1% of the contract amount.

How Much Insurance Should


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Be Required?

Use the risk rating to set

i d b di li it


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insurance and bonding limits.

INSIGNIFICANT MINOR MODERATE MAJOR CRITICAL

ALMOST

CERTAIN

M H E E E

LIKELY M M H E E

POSSIBLE L M H E E

UNLIKELY L L M H E

RARE L L M H H

Lik

elihood

Severity


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E = Extreme Risk:

First, consider not doingthe activity.

If you must, you will needto decide how much apotential loss could cost?

In general, risks at thislevel warrant more than $1million in coverage.

H = High Risk:

C ld t ti l l t i


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Could a potential loss cost in

excess of $1 million? If so, askfor more coverage.

Make sure your assessmentconsiders all costs of potential

losses. Risk Management would not

recommend limits of less than

$1 million for High rated risks.

M = Moderate Risk:


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Standard limit of insuranceis $1 million.

Assessment shouldconsider all costs of

potential losses. If assessment reveals

potential loss in excess of$1 million, your risk mayactually be high (see H forHigh Risk.)

L = Low Risk: If risk is minimal this is the area where


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If risk is minimal, this is the area wherecoverage and limits may potentially be flexible.

Standard limit is still $1 million.

In the case of minimal risks, the agency couldmake a business decision to lower the limits of

coverage. Risk Management would not generally

recommend insurance limits of less than$500,000.

If the risk assessment reveals onlyminute risk, agency could make abusiness decision to waive coverage.

For More Details on

Insurance Types and Limits


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Insurance Types and Limits

See Smart Contracting Toolkit at:

http://www.oregon.gov/DAS/SSD/

Risk/SmartContractingToolkit.sht

ml

Dont Forget!
http://www.oregon.gov/DAS/SSD/Risk/SmartContractingToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/SmartContractingToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/SmartContractingToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/SmartContractingToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/SmartContractingToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/SmartContractingToolkit.shtml


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Don t Forget!

About all of the other non-insuranceways to manage risks. Rememberthat insurance should be the safetynet when everything else goeswrong.

Contractual Transfer of Risk

Fi l St


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Final StepsStep 3:

Review each contract to insure thatclauses are up-to-date and the languageis appropriate.

Step 4:

Insure that you collect and reviewCertificates of Insurance. Keep a

tracking system to insure that coveragesdo not expire.

The States Self Insurance or


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The States Self-Insurance or

Commercial Insurance


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Evaluation of State Self-Insurance orCommercial Insurance Coverage


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Which kind

of coverage

and what

are thelimits?

What are the

exclusions

and

coveragerequirements

?Does the

agency meet

the coverage

requirements?

For Self-

Insurance

Coverage, seethe State of

Oregon Self-

Insurance

Handbook

For

Commercial

Insurance,Contact

Andrea

Peters in

Risk Mgmt

If Your Agency:

Has no statutory immunity for the activity


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Has no statutory immunity for the activity.

Has not decided to use loss prevention/riskcontrol measures to minimize or mitigatethe risks.

Has not contractually transferred theliabilities associated with the activity toanother party.

Does not have self-insurance coverage forthe activity.

Has not purchased commercial insurancecoverage for the activity.

How will the agency pay for losses resulting

from the activity?

The Point?


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Knowing the risks associated with youragencys operations that should bekeeping you awake at night.

This insight provides your agency with theability to plan for proactive lossprevention actions rather than just

reactive loss reduction reactions.

Risk Assessment is Not

Rocket Science


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Rocket Science

At times, people tell us that theRisk Assessment Road Mapprocess is too simple..

Our Answer . . .

If Risk Assessment is so

simple, why arent you doingthem?

One More Tool

Ri k A t i j t t l


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Risk Assessment is just one more tool

to enhance your agencys businessdecision-making tool box.

This tool also gives your agency

a method of documenting therationale for your businessdecisions.

Risk Assessment Roadmap Toolkit:http://www.oregon.gov/DAS/SSD/Risk/RiskAsse

ssmentRoadmapToolkit.shtml
http://www.oregon.gov/DAS/SSD/Risk/RiskAssessmentRoadmapToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/RiskAssessmentRoadmapToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/RiskAssessmentRoadmapToolkit.shtmlhttp://www.oregon.gov/DAS/SSD/Risk/RiskAssessmentRoadmapToolkit.shtml


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Future

Expectat ions

Your Goal


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Your Goal


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The End


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The End