Business Service Contracts: Processes and Procedures (AM 541)

Business Contracts Office Staff Robert L. Dickens Director of Business Contracts Kelli Morrison Contracts Administrative Associate II Richard A. Wollney Jr., J.D. Contracts Manager Anthony Sanchez, J.D. Contracts Specialist II Frank Grijalva, MBA Michael Butler, J.D.

Agenda Definition of a Contract Signature Authority Types of University Contracts Specific Contracts for the Business Contracts Office Clickwrap Agreements Routing Agreements with Employees After-the-Facts Timelines

What is a Contract? Contract Law 101 Determining the Initial Step

What is a Contract? A contract is an agreement between two parties that creates an obligation to perform (or not perform) a particular duty. A legally enforceable contract requires: 1. An Offer (I’ll mow your lawn this weekend, if you pay me $30) 2. An Acceptance (You’ve got a deal) 3. Consideration (The value received and given – the money and the lawn mowed) Statute of Frauds Contracts, in many instances, do not have to be in writing to be legally binding. However, a rule known as the Statute of Frauds requires that some contracts must be written to be valid. Under Texas law, contracts involving the sale of real estate, contracts concerning the sale of goods worth more than $500, contracts that cannot be performed within one year, contracts to pay off someone else's debts, and marriage contracts must be in writing.

Establishing Offer and Acceptance: “A Meeting of the Minds” A legally recognized offer and an acceptance creates a “meeting of the minds’, or mutual assent, between the parties. Mutual Assent requires the presence of the following factors: 1. Both parties must exhibit a “contractual intent” [words spoken in jest or frustration will lack the requisite intent]; 2. The terms of the offer must be clear and definite; 3. The acceptance must be clearly communicated. Counter offer = new offer; acceptance cannot be ambiguous

The Requirement for Clear and Definite Terms Required Clarity: For terms to be legally valid, a reasonable person must be capable of readily understanding them. Four primary areas in determining definite terms: 1. the parties; 2. time for performance (term or service schedule); 3. the price; and 4. the subject matter or scope of service. Bids and RFPs: A formal offer?

Consideration: The Importance of the “Bargained Exchange.” Consideration must be mutual. Both parties must receive something of value. Involvement of money is not required. Contracts vs. Gifts Point 2: Note that the degree of value not generally a legal issue We’ll print your graduate catalogs if you let us advertise in it. If accepted, its this a valid contractual arrangement? Does the name matter? Agreement vs. contract?

Executing the Contract Who can Sign?

Signature Authority President-Delegated Authority: 1. V.P. for Business Affairs 2. Director of Business Contracts (up to $100k) 3. Business Contracts Manager (Up to $15K) 4. V.P. for Research (See Below) All financial and non-financial Sponsored Project and Research contracts along with certain Sponsored Research accounts are negotiated/signed by the Office of Sponsored Project Administration (OSPA). Standard Business Agreement Template Agreements funded by Sponsored Research accounts are signed by the appropriate Research Service Center Director.

Types of Contracts UTSA

Types of University Contracts Museum/Exhibit Agreements Participant/Speaker Agreement Procurement Contracts; Vendor Services Service Agreements (for individuals not organized as a business) Sponsored Research Contracts and Sponsored Projects Click Wrap Agreements Study Abroad Agreements Affiliation & International Program Agreements Athletic-Specific, or Student-Specific Contracts (non- procurement in nature). Entertainer/Artist Agreement Interagency Cooperation Agreements (IAC) & Inter-Local Agreements

Specific Contracts for the Business Contracts Office

Service Agreement Services Agreement Used for services from individuals or other entities not formally organized as a business. Small dollar: Total Value not to exceed $15,000 (including reimbursable expenses) After the Fact Purchases (More detail to follow) Details of Service Agreement (Critical Nature of Exhibits)

Participant/Speaker/Evaluator Agreements Exempt Agreements Used for speakers, lecturers, evaluator, or to provide compensation to individuals participating in formal University events. Used to contract with individuals or other entities not formally organized as a business. Small dollar: Total Value not to exceed $15,000 (including reimbursable expenses) Details of Participant/Speaker/Evaluator Agreement Explain process on non-payment requests

Departmental Direct Expense Participation Form Departmental Direct Expense Participant Form For large number of Participants For DIRECT Expenses only Participants must be U.S. Citizen Submit form to Disbursements

Entertainer, Artist, or Promoter Agreement Exempt Agreements Used for artists, entertainers, or performers. Used to contract with both individuals and companies. Exempt from Competitive Procurement: Value can exceed $15,000. Details of Entertainer/Artist Agreement.

Interagency & Interlocal Agreements Exempt Agreements Used for contracts with other State of Texas Government entities Interagency: Contracts with other State agencies Interlocal: Contracts with Texas municipal, county, and local government entities (also includes political subdivisions of the State, such as school districts). Exempt from Competitive Procurement: Value can exceed $15,000 (with certain exceptions).

Affiliation/Educational Experience Agreements Educational Experience Affiliation Agreements Used to establish student internships. No exchange of funds. Changes to Standard Template Requires UT System Approval. Requires both Affiliation and Accompanying Program Agreement. Send Information Form to vendor

Clickwrap Agreements

Clickwrap Defined Sample clause: A clickwrap agreement is a standard form agreement that is displayed on a website. The user must indicate assent to the agreement by clicking on an icon which indicates acceptance of the terms of the agreement before access will be granted to the software, data, or other digital content. Sample clause: By clicking the acceptance button or installing or using the . . . software, the individual or entity licensing the product (“licensee”) is consenting to be bound by and is becoming a party to this agreement. If licensee does not agree to all of the terms of this agreement, the button indicating non-acceptance must be selected, and licensee must not install or use the software. ACCEPT TERMS CANCEL

How to Process Similar to a signed agreement, a Clickwrap agreement will be binding on the University and can only be properly accepted by those individuals with President-delegated authority to bind the University to a contractual commitment. ALL Clickwrap Agreement requests should be forwarded to the Business Contracts Office for review. The Business Contracts Office will assist in securing the appropriate authorization for acceptance of a Clickwrap agreement and document it with the required offices.

ROUTING

Routing of Affiliation & Program Agreements Routing Forms Affiliation & Program Routing Form Exclusive to Affiliation and Program Agreements

Routing of Service, Participant/Speaker, Entertainer, & Interagency Agreements Routing Forms Non-Sponsored Research Accounts vs. Sponsored Research Accounts VP for Student Affairs: Routing

Additional Agreement Routing Routing Forms U.S. Entity vs. Non-U.S. Entity Procurement related agreements (The Business Contracts Office will route the agreement on the Department’s behalf)

Agreements with Employees Handbook of Operating Procedures 4.31 Conflicts of Interest Policy Self-dealing/Transactions with Employees – Section H Requires President’s Approval Cost less than from any other known source

After the Fact

After-the-Fact on a PO What is an After-the-Fact? Services or Goods Secured Prior to an Executed Contract. Disbursements will NOT pay After-the-Facts on a PO. Requires Service Agreement (Routed as Described Above).

Time Lines:

General Time Lines Standard Template Agreements with all routing secured are typically signed within 3 business days upon receipt by the Business Contracts Office. Location for drop-off of agreements: Business Contacts Office located is at the Central Receiving Building on West Main Campus Delays Resulting from Improper Routing. Agreements with Substantive Modifications need to reviewed by the Business Contracts Office.

What have we discussed … Definition of a Contract Signature Authority Types of University Contracts Specific Contracts for the Business Contracts Office Clickwrap Agreements Routing Agreements with Employees After-the-Facts Timelines

Questions

Contacts and References Kelli Morrison Contracts Administrative Associate II 458-4065 Richard A. Wollney Jr. Contracts Manager, Business Contracts Office 458-4069 Anthony Sanchez Contracts Specialist II, Business Contracts Office 458-4680 Frank Grijalva 458-4975 Michael Butler 458-4899 Jessica C. Fernandez, J.D. Interim Director of Contracts & Industry Agreements 458-8575