Research-related Agreements with Non-Federal Sponsors

1. Research-related Agreements with Non-Federal Sponsors Steve Michaels, Associate Director Office of Sponsored Programs

2. What’s your role? Advise the MIT person in your DLC who requests that an agreement be drafted/negotiated/signed: • Which MIT office should be contacted? • For agreements handled by OSP: • Whom to contact initially? • OSP’s Contract Administrator for your DLC. • What information will OSP need to act? • What is OSP’s general process for drafting, negotiating and signing sponsored agreements and other research-support agreements?

3. What you’ll learn • What types of non-federal organizations sponsor programs at MIT? • What MIT offices draft and negotiate agreements with these sponsors, and for which purposes? • What kinds of agreements does OSP negotiate with non-federal sponsors? • What does OSP need to develop these agreements? • What issues does most frequently need negotiation? • How does the negotiation process start? • (Appendices-A. what does the negotiation process look like? B. Some FY11 negotiation statistics)

4. What types of non-federal organizations sponsor programs at MIT? • Industry: for-profit • Industry trade associations: not-for-profit but representing for-profit members • Sometimes with government money mixed in or flowed down • Foundations: not-for-profit • Foreign governments and their agencies • Sometimes flowed through other non-profit research institutions • State and local governments and their agencies • Sometimes with federal government money mixed in or flowed down • Public-private partnerships

5. What MIT offices draft and negotiate agreements with these sponsors, and for which purposes?

6. What MIT offices draft and negotiate agreements with these sponsors, and for which purposes? OSP • Office of Sponsored Programs • Recording Secretary’s Office • Technology Licensing Office • Office of General Counsel • Office of Major Agreements RSO TLO OGC OMA

7. These offices cooperate on many agreements, but one should always take the lead. OSP RSO TLO OMA OGC

8. So which office do I contact to review or draft an agreement? You need to identify the purpose of the agreement!

9. ASK: What does the other party want to do?

10. If the other party wants to: • Explore whether to collaborate on a research project with MIT and/or plan a research collaboration • Team with MIT to submit a proposal in response to an RFP • Sponsor, support or collaborate in MIT research (and/or education and outreach) activities • With or without $$$ • Support fellowships for students, post-docs • Loan equipment or provide data and information to MIT for use in MIT research • Make its facilities available for research use by MIT OSP

11. If the other party wants MIT to: • Procure (purchase, rent, lease or acquire) property, equipment, software, data bases, facilities, or real estate • Notify Procurement. • Make MIT facilities available for the party’s business use • Develop and/or deliver educational courses and materials • unless funded by a standard Foundation grant or agreement, in which case OSP is responsible. • Send MIT students or employees to work for it (secondment, internships)* *except LGO and ChE Practice School>>>OSP OGC

12. If the other party wants to: • Make a gift to MIT • If the gift is significant, notify Resource Development, too. The Recording Secretary will review all gift offers and agreements to determine whether the offer can be classified and acknowledged as a gift. If a gift letter/contract contains restrictions that benefit the donor or prevent the transfer from being a gift, RSO will discuss it with OSP and/or OGC to determine how to respond to the “donor” • Example problems: IP restrictions, accounting for use of funds, requirement to use for a specific research project, unique reports to the donor not available to the public… RSO

13. If the other party wants to: • License MIT technology • inventions, data bases, software • License MIT’s name or trademarks • Provide proprietary materials to MIT for our use • Obtain materials developed by MIT for its use • Send a visiting researcher to participate in MIT research under the MIT Visiting Researcher Policy* TLO *TLO manages IPIAs. If the visitor will not sign a standard IPIA, contact OSP for guidance.

14. If the other party wants to • Engage MIT in a large-scale collaboration that: • Is international and/or multi-institutional in scope • Will involve commitment by multiple departments or at school or Institute level • Will support multiple types of activities (research, education, personnel and student exchange) • Seeks to use MIT’s “brand” The Office of Major Agreements will help notify MIT leadership, and will assemble and coordinate a team to help develop the proposal and negotiate the agreement. OMA

15. Questions?

16. What kinds of agreements does OSP negotiate? For planning research collaborations • Non-disclosure agreements (NDAs, CDAs and PIAs) • One way (to MIT), two-way, multi-party • Teaming agreements • For submitting federal proposals with an industrial or other university partner/lead • Letters of intent (LOI) and Memoranda of Understanding (MOU) • To memorialize a plan to develop a research collaboration (more on these later)

17. What kinds of agreements does OSP negotiate? For sponsoring research and related activities (outreach, proposal selection, seminars, fellowships, etc.) • Sponsored research agreements ($$) • Fellowship agreements ($$) • Alliance agreements (multiple projects) ($$) • Research project plans, amendments, modifications of SRAs, Master RAs, GTAs ($$) • Master research agreements (multiple projects) (no $$) • General Terms Agreements (multiple projects) (no $$)

18. What kinds of agreements does OSP negotiate? To collaborate on existing research projects with other institutions and organizations (no $$) • Collaboration agreements • Visiting scientist agreements

19. What kinds of agreements does OSP negotiate? To assist MIT research (no $$) • Equipment loans to MIT (Equipment Use Agreements= EUAs) • No acquisition of the equipment • No IP terms • Confidential data acquisition and use in MIT research (Data Use Agreements=DUAs) • Use of third-party facilities for MIT research (Facilities Use Agreements=FUAs) *Remember: Materials Transfer Agreements are handled by TLO

20. What kinds of agreements does OSP negotiate? Subawardsto other research organizations under prime research awards managed by MIT ($$) Managed by OSP’s Research Subawards Team

21. Problematic agreement types-MOUs and LOIs What makes them problematic? • They are usually requested when planning a collaboration, but before MIT is ready to commit. • Are they binding or not? unclear! • How will they be used? • Might the other party use MIT’s name for publicity or to raise $$? • Is there a real benefit to MIT to negotiate an MOU or LOI? • Why negotiate an agreement to negotiate an agreement? • Is this a waste of time? It can delay the real deal! VPR has asked OSP and OGC not to negotiate MOUs and LOIs unless really necessary, so we may need to seek permission

22. Problematic agreement types-unfunded Master and General Terms Agreements What makes them problematic: • Intent: to pre-negotiate ALL terms for any FUTURE research collaborations—but: • No $$ committed • No PI or DLC owns the agreement—it gets forgotten • Company doesn’t have to use the agreement if it wants other terms for a specific project—it gets “forgotten” • At negotiation time, neither side knows what activities MIT will do, so we can’t easily determine risks to resolve differences during negotiation • Take a LONG time to negotiate, so delay starting the first projects

23. Problematic agreement types-unfunded Master and General Terms Agreements So, if a sponsor asks to negotiate a Master Agreement • Will the sponsor commit $$ up front to fund first projects and pay for administration of the extra proposal selection and award administration activities needed to ensure the agreement is used correctly and repeatedly? • Will a PI/DLC/Office “own” the agreement and agree to administer projects under it? i.e., can we convert the Master Agreement into a funded Alliance Agreement?

24. Questions about Agreement Types?

25. How does the drafting/negotiation process start?

26. Negotiation Process: Receiving the request and obtaining the necessary information PI’s request Sponsor’s Request Proposal OSP Contract Administrator No No Enough Info? Yes See Appendix A for the rest of the process! A

27. When does OSP need a proposal? • When MIT will commit to conduct specific activities or provide specific deliverables in the contract. • When the sponsor or collaborator will commit to conduct specific activities or provide specific deliverables in the contract. • When the proposal SOW will be an integral part of the agreement • When the proposal budget will determine the payment schedule For SRAs, Fellowships, NCCs, Visiting Scientist Agreements

28. Why does OSP need a proposal? The terms of the agreement are designed to enable the SPECIFIC planned activities that MIT and the sponsor/collaborator will undertake. • Without knowing what MIT will do, • OSP will not know how we can protect MIT’s outcomes and manage MIT’s risks. • The sponsor will not be able to anticipate how MIT’s terms will serve its interests, and often will ask for terms that are much more difficult for MIT to accept. • We can only discuss generalities • We can not complete the negotiation.

29. How long do OSP’s negotiations take?(mean duration, calendar days) 73 days total 15 days in OSP32 days at sponsor

30. How long do OSP’s funded agreement negotiations take?(mean duration, calendar days) Where the PI can help! Where you can help!

31. About Non-Disclosure Agreements (NDAs) and Data Use Agreements (DUAs) NDAs and DUAs have a distinct, separate process • Only MIT employees (not students, preferably PIs) can request NDAs or DUAs • OGC, TLO and OSP draft and negotiate NDAs for different purposes • For research: OSP • For procurement, education, Institute business: OGC • For licensing: TLO • Only OSP drafts and negotiates DUAs • MIT requestor must complete NDA Questionnaire, currently downloadable from OSP web site, Forms page. (http://osp.mit.edu/sites/osp/files/u9/nda_questionnaire_word_version_jun-10.doc)

32. Improving the NDA/DUA Request Process Under development a new central MIT NDA/DUA web site (launch in July, 2011) • MIT’s Policy on Confidentiality Agreements • Instructions for requesting an NDA/DUA • New online NDA Questionnaire that will send each completed questionnaire directly to OSP’s Assistant Contract Specialist • OSP will process or forward the request to the right office (OGC or TLO) if not for a research purpose

33. How long do NDAs/DUAs take to negotiate? Mean= 30 days! Please ask the PI to submit a request allowing enough time before he/she needs the NDA/DUA in place!!!!

34. What you’ve learned today • The types of non-federal organizations that sponsor programs at MIT. • The MIT offices that draft and negotiate agreements with these sponsors and the purposes for these agreements. • The kinds of agreements OSP negotiates with non-federal sponsors? • What OSP needs to develop these agreements. • What issues most frequently need negotiation. • How the negotiation process starts. • See Appendices for more FY11 negotiation statistics

35. Supporting Information OSP Web Site http://osp.mit.edu/ Industrial Collaborations and Agreements • Sponsored Research Agreements with Non-Federal Sponsors • Gifts • Development of Educational Programs and Curriculum Materials • Exchange of Proprietary Information or Materials between MIT and Outside Organizations • Licenses and Permissions to Use MIT Intellectual Property • Loan or Acquisition of Equipment or Software • Agreements Governing MIT Students Working at Non-MIT Locations • Visitors Working at MIT • Use of Facilities Grant & Contract Administration FOR INDUSTRY SPONSORSHow to develop a successful research collaboration with MITLearn More • Benefits of Working with MIT • Elements of an Effective Research Project • Aligning Interests for Mutual Benefit • Relationship Model • Intellectual Property • Trade Secrets and Confidential Information • Academic Publishing

36. Appendix AThe OSP Negotiation Process for Sponsored ($$$) Agreements

37. Negotiation Process: Choosing the agreement once OSP has enough information A Key CA=OSP’s Contract Administrator for your DLC CS=OSP’s Contract Specialist engaged by the CA Sponsor’s Agreement (from page 26) Decide Agmt Type CA reviews Use a template? Can we use it? No Yes CA drafts No Yes CA gives to DLC to send to Sponsor CS drafts B C

38. Negotiation Process: Negotiating the Terms Changes needed? MIT agreement returned by Sponsor C B MIT’s Agreement Sponsor’s Agreement No Yes Can CA resolve all issues? CA negotiates and updates PI/DLC Yes No Key CA=OSP’s Contract Administrator for your DLC CS=OSP’s Contract Specialist engaged by the CA OGC=General Counsel TLO=Tech Licensing Off. OGC TLO PI/DLC CS negotiates and updates PI/DLC Ready to sign

39. Negotiation Process: Executing the Agreement Negotiator sends executable copy to sponsor Sponsor signs and returns to CA CA sets up and distributes Notice of Award PI/DLC accept award terms by signing NOA CA secures MIT’s signature and returns copy of agrmt to Sponsor Key CA=OSP’s Contract Administrator for your DLC CA activates Award

40. Appendix BOSP Negotiation Statistics-FY11

41. How many agreements does OSP’s Non-federal Agreements Team negotiate in a year?

42. What do we spend time negotiating? 50% on these 50% on the rest.