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
Other templates may be approved by the Office of General Counsel on a case-by-case basis. For internal departments/schools/colleges, 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, all agreements must first be sent to the program director of the academic program through which the student is enrolled in. 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 should review the contract before it is signed by any university official. 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, college, 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.
Guidance for certain contracting processes
The University processes thousands of contracts a semester. Departments must plan ahead to ensure that contracts are not rushed nor contemplated at the last minute! Emergencies will happen. However a "last minute" contract may need revisions and such revisions may take time to negotiate which could mean missed deadlines for the department.
The following list is not meant to be comprehensive but provide for increased collaboration with some of the most frequent types of contracts engaged in by university departments.
- Affiliation Agreements: Unless otherwise agreed by the parties, whenever possible, all Affiliation Agreements should first be reviewed for legal sufficiency by the Office of General Counsel (except in cases where the department is using an approved university-created or approved agreement template) by submitting the Word Document (preferred) or PDF by email to Associate Counsel Michael Pfahl at email@example.com. The Office will review and provide a response within 10 days to requesting party. Once approved by the Office of General Counsel, the agreement should be forwarded (either by the department or by the Counsel's Office, whichever is negotiating the changes) to the Office of the Provost, Regional Campus Administration, c/o Patricia S. Schiffhauer-Perlberg at firstname.lastname@example.org with the heading "Affiliation Agreement" in the subject line. Once received, that office will coordinate the necessary signatures and approvals for executing the document. Once executed by both parties, please provide a final copy to the Office of General Counsel c/o Stephanie Jones at email@example.com.
- Articulation Agreements: Where possible, as a first step, all Articulation Agreements should use the approved Kent State University format provided on this site. All agreements should be sent directly to the Office of Alternative Credit and Articulation Agreements, c/o Ted McKown at firstname.lastname@example.org with the heading "Articulation Agreement" in the subject line. Once received, the office will coordinate the necessary signatures and approvals for executing the document.
- Service contracts: A "service" contract is one where the department will engage in a written agreement to provide payment for a service (consultant agreements, vendor agreements, etc.). All service contracts (from $50 to $5,000) are still contracts and should be reviewed before execution for legally sufficiency by the Office of General Counsel. If you are uncertain who in the office to work with, please send the contract to email@example.com and one of the legal representatives will contact you.
- Agreements with Foreign Universities or Partners: Because of the multinational and jurisdictional law considerations, these agreements should be processed in strict adherence with University Policy 3342-5-18 "regarding establishing relationships with universities and educational institutions abroad." For more information on how to initiate these agreements, please contact Sarah J. Malcolm, International Partnerships Manager, at firstname.lastname@example.org or by calling 330-672-8655.