Adopt Governance & Contracting
Best Practices
Throughout this Toolkit we note that a large part of filing system modernization involves governance and contracting processes, rather than technological innovation. A court may need to contract with several vendors to implement and support the various components of its filing system.
Your procurement and contracting processes and practices:
- impact your court’s existing and future technology system components
- affect your court’s ability to integrate with other vendors
- determine how flexible your infrastructure is
- determine who bears integration costs, provides customer service, and resolves technology problems (e.g., who fixes bugs, and in what timeframe)
This section of the Toolkit introduces best practices for filing system technology procurement and focuses on two key parts of technology governance. Court administrators and technologists who are experienced technology buyers may find this section fundamental, but they are encouraged to read on for specific recommendations. Others who are not responsible for procurement or who have less experience purchasing technology, like judges, can gain insights in this section about contracting for filing system components.
First, we recommend developing a formalized certification process to use when considering technology providers. The proposed certification would occur during vendor procurement and utilize detailed checklists to:
- ensure the quality of tools offered
- address sustainability issues
- focus on user concerns, like usability and data handling
A transparent certification process also ensures that technology providers have clear notice about and understand what they must focus on in order to become a viable court partner. This certification process would evaluate a vendor’s products, services, and business practices and should not be confused with subsequent technical certifications that electronic filing service providers must obtain to connect to your electronic filing manager.21
Second, this section offers suggestions for incorporating specific contract terms governing responsibility for integration costs into new and existing contracts with vendors. These terms emphasize the importance of both flexibility and maintainability for new tools and your existing filing infrastructure.
There are, of course, many other preferred contractual positions and provisions that courts should be cognizant of when negotiating with technology vendors, including those involving bug resolution and data handling, among others. Those terms and more are discussed in detail in other recommended reports and resources22 that focus on helping courts identify contracting issues and negotiate better digital service contracts.
We mention these useful reports and resources here in passing, and we suggest that courts follow the best practices in those reports and resources. Court administrators and technologists are also encouraged to review other courts’ standard contract terms and efiling technology contracts. For example, the Master Services Agreement between the Texas Courts and Tyler Technologies thoroughly covers what a court should consider in a contract. The California Judicial Council’s Master Agreement with Journal Technologies is also a good model.
Get Involved
Court Modernization Diagnostic Tool
Use this diagnostic tool to help determine where to focus your filing system modernization efforts.
- More “YES” answers mean that your court is further along in modernizing that category. Focus more on recommendations in this Toolkit for categories where you’ve answered “NO.”
| Does your court have a defined certification process for vendors to become an efiling technology provider? | ||
| Is your efiling manager vendor motivated to add new efiling service providers? |
Recommendation 1
Establish a Vendor Certification Process
Vendor procurement and contracting can have a very long-lasting impact on your court’s technology infrastructure. Therefore, a well-established, rigorous vendor certification process is particularly important. This is especially necessary when contracting for an electronic filing manager, the internal backbone of the efiling system.
That vendor’s willingness and ability to connect with other service providers will dictate whether your court can seamlessly integrate with other efiling system components and offer a marketplace of efiling options for court users.
This Toolkit does not propose a specific certification process, but it suggests that courts consider their business requirements, technical policies, and IT department staffing capabilities when creating certification processes and checklists for the various filing system components you will purchase.
It is especially important to have a certification process for user-facing components to ensure that those products and services are easy to find and use. A checklist like the one in Appendix B can be one part of a certification process to ensure alignment with your court’s access to justice mission and goals.
By working together, courts can begin to standardize processes for engaging vendors, which will result in more transparent and smoother procurement and contracting cycles. Courts that have been through successful vendor contracting processes can contribute examples of favorable contract clauses, red flags and sleeper provisions to watch out for, and negotiation tips. Certification checklists should include specific standards, measurements, and tests that vendors have to demonstrate or pass in order to be certified by your court. A good certification process will ensure compliance in several realms, including in three key areas:
User interfaces should be highly intuitive and tested by intended users to ensure they can easily use the product or tool. Ideally, vendors should provide easy connection points for other vendors, reducing the costs of future integration for all parties. See Filing Technology Infrastructure for information about these connection points.
Software bugs in court technology can have profound impacts for users facing potentially life-changing consequences. Vendor contracts should make it clear whose responsibility it is to fix problems and at what cadence.24 Court technology contracts should clearly delineate responsibilities for regular maintenance, software updates, user requests, and future integrations, and should not place undue burden on the courts.25
A robust certification process should include specific user-focused criteria, such as whether a prospective vendor properly handles user data and is transparent about fees and processes.27 This can be partly achieved by ensuring that your court partners with values-aligned vendors (see Filing Partner Ecosystem: Recommendation 2) and your court and electronic filing manager collaborate to host a marketplace of user-facing tools that other vendors can become certified to join without high burdens and costs
One way that courts benefit from certification processes is by gaining insight into potential vendors’ future behavior and incentives, which can illuminate what they will push for in a contract (e.g., less flexibility, exclusivity, etc.). Courts should require that vendors meet their requirements and use certification checklists to negotiate for the best contract positions possible. Courts should also ask existing vendors to demonstrate how their efiling solutions satisfy certification checklists. If a potential or existing vendor has difficulty meeting these requirements, courts should discuss possible options with that vendor, including contract modifications.
Recommendation 2
Allocate Responsibility for Integration Costs
As previously noted, excellent resources for court technology contracting best practices exist elsewhere and are not replicated in this Toolkit. However, one area that courts should be especially aware of while contracting with efiling technology vendors is the allocation of responsibility for future integration costs. This is particularly important when dealing with efiling vendors because several disparate system components, which may be offered by different vendors, must be connected with each other to ensure that your court’s efiling system works optimally.
Integration costs will be lower for standards-based systems, but there will still be work required by technology professionals to align new and existing components. Who pays for those integration costs should be negotiated and clearly addressed in your contracts.
As your court’s filing system infrastructure grows and evolves and as new and innovative products emerge, new vendors will enter your filing partner ecosystem. It’s important to ensure that your infrastructure is able to adapt to new system components in the future without offloading all of the associated costs onto your court. The details of who is responsible for technology system integration costs should be incorporated into all third-party vendor contracts. Courts should also include this item in their vendor certification checklists to ensure that it is discussed and negotiated in the contracting phase.
Typically, efiling technology contracts assign responsibility for future integration costs to either the court or the vendor. Courts should understand which party is responsible for these costs and should determine their capacity to foot the bill in the future before accepting responsibility. They may negotiate this provision so they are not left on the hook as the sole resource for future integration costs. A good contract should also make clear what the vendor’s responsibilities are when new systems want to plug into their technology.
Maturity Model
The Technology Governance Maturity Model lays out moderate, good, better, and advanced stages. Consider where your court’s technology governance processes fall on this model and how it compares with other states that are profile.
MODERATE
Limited or no efiling vendor certification process.
Courts are open to third-party vendors, but there is no clear process for determining when a court will informally or formally partner with a vendor. It is not clear who is responsible for vendor integrations.
GOOD
Basic efiling vendor certification process with integration requirements.
Courts adopt and apply a clear checklist that third-party vendors must satisfy before contracting. Checklist requires vendors to integrate as needed with other court systems.
BETTER
Efiling vendor certification process promotes partner vendors and has low-cost integration requirements.
Partners that satisfy the third-party certification process are promoted or endorsed in some way. Certification process requires partners to provide a low-cost integration method (e.g., an API and some custom development).
ADVANCED
Robust efiling vendor certification process incorporates future-looking integration requirements.
Courts continuously monitor certified and promoted partners to ensure continued compliance. Vendor contracts incorporate integration costs with future court partners. Change management processes ensure compliance with standards updates.
Moderate
Limited or no vendor certification process
Your court may be open to working with third-party technology vendors, but there is no clear, standardized process by which you select, negotiate, contract, and partner with these vendors. You do not have clear terms that you pursue during contracting, and you may only be familiar with one vendor. There is no clear process for what to do when you wish to add a new vendor to your court filing system. It is not clear how much—if at all—your efiling vendor is responsible for maintenance of your existing infrastructure and integrations with new user-facing efiling tools.
Good
Basic vendor certification with integration requirements
Your court has a clearly articulated process that you adhere to when negotiating and contracting with new efiling technology vendors. One of the considerations in that process is that vendors should be willing to integrate with other court systems as needed, although the exact boundaries of the vendor’s responsibility for future integrations are somewhat uncertain.
Better
Promoted vendor certification with low-cost integration
Your court has a clear certification process for negotiating and contracting with new vendors. You use a similarly clear process to endorse and promote new vendors that wish to integrate or have integrated with your court infrastructure. You look for partners that are able to ensure that future integration is low-cost and easy for new vendors, such as by providing open APIs.
State Highlight: Maryland
The Maryland Courts currently promote 11 electronic filing service providers from which court users can choose to efile. Before vendors can be added to the marketplace they must complete both a technical and an administrative certification process. The technical certification is conducted by the electronic filing manager vendor. The administrative certification is through the Administrative Office of the Courts and includes approval of all required procurement and contracting documents.
This is then followed by interactive business case testing (to make sure the technical capabilities are being used to meet the court’s business case scenarios). APIs are used to connect the efiling manager with the 11 efiling service providers, which allow for easy, low-cost integration and maintenance.
ADVANCED
Robust vendor certification with future-looking integration
In addition to having a clear certification process for new vendors, your court also has a continuous monitoring process to confirm existing partners meet and ration costs, ensuring that your court is not required to take these on in their entirety when it comes time to add or expand vendors. Monitoring also ensures that vendors maintain the same standards of usability, maintenance, transparency, and extensibility that they originally promised. A change management process sets expectations and requirements for compliance with the evolution in technology standards.
For example, it should be clearly stated that vendors will comply with updates to ECF and cybersecurity requirements within a specific timeframe or upon notice of specified period of time. The notice timespan may vary based on criticality. Your contracts and partnerships set clear bounds about future integration costs and change management processes.
Impacts of Good Technology Governance
01
Courts are more likely to have high quality, transparent, and sustainable filing systems
Clear assignment of responsibility for the cost of maintenance, upgrades, and new integrations ensures that your court’s technology infrastructure will be sustainable in the future without placing the burden of those costs exclusively on the court. Front-loading discussions about these issues at the procurement and contracting stage ensures courts won’t be surprised by these problems and costs in the future. It also allows courts to set their own terms and potentially reduce future integration costs, e.g., by initially requiring a vendor to offer APIs to easily connect system components.
02
Court users have more options and encounter fewer problems with efiling systems
All court users suffer when courts are locked into contracts that don’t easily facilitate filing system expansion and when vendors take too long—or fail entirely—to respond to problems with their products and tools. Good governance mitigates these problems at the beginning of the procurement and contracting process, before they become larger issues.
Conclusion
It is important to define each party’s roles and responsibilities at the beginning of your engagement with a new vendor, using effective and careful contracting and governance processes. Effective integration of system components is central to a well-performing efiling system, and as such courts must determine up front who is responsible for costs related to system integration.
Formal vendor certification will help ensure good contracts and more transparent vendor relationships. By working together across jurisdictions, courts can begin to standardize procurement and contracting practices, which will streamline and improve those processes across the country.
21 See, e.g., Electronic Filing, TEXAS JUDICIAL BRANCH, https://www.txcourts.gov/jcit/electronic-filing/ (outlining Texas courts’ certification process for technology providers). Texas includes a pre-certification checklist for electronic filing service providers. See Texas Judicial Branch, EFSP Pre-Certification Checklist, https://www.txcourts.gov/media/166701/EFSP-PreCertificationChecklist.pdf.
22 See, e.g., Nat’l Ctr. for State Cts., Contracting Digital Services for Courts (2022), https://www.ncsc.org/__data/assets/pdf_file/0029/76754/Contracting-Digital-Services.pdf; Nat’l Ctr. for State Cts., Tiny Chat 56: Procurement, VIMEO (June 28, 2021, 6:53 AM EST), https://vimeo.com/showcase/8536177/video/568389850.
23 See Jud. Council of Cal., Master Agreement 42-45 (2018) https://www.courts.ca.gov/documents/lpa-Journal-Technologies-Inc-MA-2017-03.pdf (contract provisions describing the vendor’s software development methodology).
24 See id. at 68 (contract provision for error fixes); Nat’l Ctr. for State Cts., supra note 22, at 4, 6 (discussing software bugs in Alameda County and the Department of Corrections that went unaddressed because of bad contracting practices).
25 Nat’l Ctr. for State Cts., supra note 22, at 6
26 See generally Nat’l Ctr. for State Cts., Guiding Principles for Post-Pandemic Court Technology (2020), https://www.ncsc.org/__data/assets/pdf_file/0014/42332/Guiding-Principles-for-Court-Technology.pdf (advocating for similar principles when adopting technology).
27 One example of this would be clear data handling conditions. See id. at 10.
