WHAT IS "CONTRACT ADMINISTRATION"
Responsible contracting is a cornerstone of an efficient and orderly operation of any higher education institution. A contract can take the form of a simple agreement reserving a space for a university department to host a conference at a hotel or it can be dozens of pages of clauses which lead to a three-year project for implementing new technologies.
Whatever form, a contract is basically defined as "an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law." (Black's Law Dictionary, 7th Ed., 1999). Basically, a contract describes an obligation to perform by one or both parties and the consideration received in return. What is being provided in your agreement and what are you asked to give in return?
University policy 3342-5-04 provides that only "the president, a vice president or the board" may contract on behalf of the university. All others must have a specific "Letter of Delegation" granting the authority to contract on behalf of the university. Engaging in an agreement without the proper signatory authority may expose the employee to incur personal liability for the terms of the agreement.
Contract administration is a process by which an organization tracks its contracting process to ensure that: 1) the appropriate terms have been negotiated on behalf of the university and its interests, 2) the contract undergoes legal review, 3) the contract is signed by a university official with the authority to obligate the university, and 4) after execution, a final copy with the signatures of both contracting parties is recorded and retained in a manner that it can be accessed at a later time. Administrative Policy 3342-5-04.1 provides for the specific protocol for contract administration at the University. Any questions regarding this process can be directed to the Office of General Counsel or through email at firstname.lastname@example.org.
APPROVED UNIVERSITY CONTRACT TEMPLATES
- Academic Experience Agreement
- Equipment Loan Agreement (KSU-owned property)
- License Use of Space Agreement (KSU-owned property)
- Mutual Non-Disclosure Agreement
- Photo and Video Release
- Vendor Agreement (On-Campus Use)
Other templates may be approved by the Office of General Counsel on a case-by-case basis. For internal departments/schools/colleges/offices/divisions, please send your request to email@example.com with the heading "Template for Counsel Review" and the office will provide its review. For external parties, do not send agreements directly to firstname.lastname@example.org.
THE ROLE OF THE OFFICE OF GENERAL COUNSEL IN THE CONTRACTING PROCESS
While university stakeholders are responsible for negotiating the substantive terms of their own contractual agreements, the Office of General Counsel is responsible for ensuring the "legal sufficiency" of each agreement. Counsel should be involved in the beginning of the contracting process and by policy must review the contract before it is signed by any university official ("signed" includes those agreements that are online, click-through, or through other electronic signature method). Each contract is reviewed in consideration of, but not limited to, the following contractual principles:
- The execution and delivery of the contract will not result in or constitute any of the following: (i) a default, or an event that, with notice or lapse of time or both, would be a default, breach or violation of the University’s constitution, by-laws, or other organizational documents or any instrument, contract or other agreement to which it is a party or by which it or its property is bound, or (ii) the violation of any law, judgment, order, writ, injunction, or decree affecting it.
- The contract does not agree to indemnify a third-party against damages in a manner not permitted by Ohio law.
- The contract does not subject the state to another jurisdiction by proposing the "choice of law" (jurisdiction, venue, etc.) of another state or foreign country.
The Office of General Counsel does not negotiate substantive terms of the Agreement, and such terms are not considered during the course of review. The "terms of the deal" are the responsibility of the contracting party (department, school, college, office, division, etc.).
The Office of General Counsel has created a sample "Letter of Delegation"which may be used to delegate contracting authority beyond the levels provided for in University Policy 3342-5-04. Please see also the Frequently Asked Questions fact sheet prepared to assist with the delegation of contracting authority.