Contract Commons: Online Legal Support for Education Technology Acquisitions

1. Contract Commons:Online Legal Support for Education Technology Acquisitions New York Law School Marcey Grigsby Smita Gulivindala Natalie Porto Brian Robinson

2. Presentation Outline • The Problem • Our Assignment • Our Client • Our Five-Step Approach • Contract Commons Strategy • Next Steps

3. The Problem • Schools (and vendors) lack access to the technology contracts that reflect actual business needs and requirements. • Without legal and strategic assistance in the technology acquisition process, public education cannot acquire the best technology to support educational reform.

4. The public school technology procurement and contracting process faces numerous challenges due to a lack of: • Knowledge about how contract terms relate to business realities. • Useful contract models or alternatives to vendor-drafted contracts. • Legal and strategic advice when drafting technology contracts. • Access to resources about consultants and vendors that exist to help identify technology needs. • Understanding of open source options. • Ways to connect with others facing similar challenges. • Time to address these challenges.

5. Why Does This Matter?Enabling Education Reform • Education reform depends on having good technology. • With appropriate technology, public education institutions can better serve their communities. • Better informed decision-making produces licenses with terms that support school district’s needs and creates more productive vendor relationships. • Effective contracts can improve upon the quality, reliability and performance of technology by: • creating more specific and attainable goals. • focusing negotiations on critical issues early, to prevent project failure during implementations.

6. Our Assignment • Contribute to education reform through the use of technology by developing a strategy • for an online system that offers legal and strategic assistance to school districts during the • technology acquisition process

7. Our Client: The Stupski Foundation • A non-profit organization that works directly with public school districts, providing human, financial, and technology resources to support the districts in implementing education reform strategies • The Foundation’s Open Educational Data Systems Initiative, directed by Stephen Midgley, aims to promote education reform by • integrating educational systems • helping educators make better purchasing decisions • creating an environment where educators make better use of data to help students • bringing strategies of openness to bear to improve the use, acquisition and design of technology for education

8. Our Five-Step Approach • Target Audience Brainstorming • Process Brainstorming • Interviews • Contract Analysis • Designing the Contract Commons System

9. Step One:Target Audience Brainstorming • What audiences could benefit from this resource? • What are the needs and interests of these audiences? • How could Contract Commons benefit each audience? • Which audience(s) do we want to support?

10. We identified six potential target audiences Contract negotiator > School district rep or administrator; negotiates contract with software vendor Vendor sales rep > Software vendor’s sales rep; negotiates with school on behalf of vendor Attorney > School district’s inside or outside counsel; legal review of contract Technology user > School district personnel; will use the software/technology upon installation Policymaker > School board member or state/local educational policymaker; sets policies that require software or technology solutions Consultant/CIO > Educational consultant or school CIO responsible for identifying software/tech solutions in support of policies and initiatives

11. We developed a hypothesis about their needs and wants • Example: Contract Negotiators’ Needs and Wants • Assistance in creating a complete contract, ready for execution • Education about contents of contracts they negotiate • Legal and business considerations for various provisions • Learn about possible legal implications of business terms • Relative priority of provisions for purpose of negotiating • Help in selecting provisions, deciding what to include • Contracts library • Full model, sample contracts • Dialogue and community • With other contract negotiators, school districts, vendors, etc. • Education about negotiating strategies and tactics • Vendor information, feedback, reviews • Confer “preferred” or “certified” vendor status on those who engage positively

12. We identified the potential benefits for each audience Example: Benefits for Contract Negotiators • More informed decisionmaking, better contracts • Creates a better foundation for the vendor-school district relationship • Obtain favorable terms for school district • Ability to gain a better negotiating position • Opportunity to create incentives for vendors to positively engage in negotiations

13. Step Two: Process Brainstorming We identified four primary processes that would support the target audiences • Contract Drafting Bucket > model contracts accompanied by a library of annotated clauses • Negotiation Know-How > repository of educational tools, checklists, tips, to-do lists, blog, translation engine, memo library • Dialogue and Community > using the web to connect the people involved to build a community through the use of wikis, blogs, and/or discussion boards • Vendor and Technology Information > rating which vendors are best at providing which solutions

14. Step Three: Target Audience Interviews • We interviewed six school district participants in the technology acquisition process • What are the needs of the target audience of school administrators? • What technology needs do they have regarding choosing a solution? • What legal needs do they have regarding negotiating a solution? • What business needs do they have regarding implementing a solution? • What process do schools currently follow in making technology purchases? • What are the steps of the negotiation process? • Who is involved in what steps? Who are the stakeholders? • Current business process consequences and possible solutions • Policy change benefits • What parts of the contract are most important?

15. “I need to learn what the elements of a good technology contract are so I can recognize if these provisions are in the contract and make sure they get added if they aren’t.” -- Manager, Research & Assessment, California school district of 45,000 children • “Vendor-provided agreements are one-sided and too restrictive. And we lack the resources to negotiate the terms to our favor.” • -- Information Technology Director, Small School District, California “If I’d had a good model contract, I could have stood alone better and handled the negotiations on my own.” -- Director of Educational Services in Tennessee “We knew we needed our reports to print out in the color-coding to which we had all become accustomed, but we didn’t think to put it in the contract. Once the deal was inked, the vendor could not or would not modify the software to produce the color-coded reports.” • -- Chief Academic Officer, Northern California School District

16. Step Four: Contract Analysis • We gathered best of breed software/technology acquisition agreements and analyzed them provision-by-provision • Model contracts and examples of real public education software licenses • What problems are school districts having in drafting contracts? • Then we reviewed our analysis with an experienced attorney • We produced a Collaborative Development of Taxonomy Document (using Writely) • Substance - legal taxonomy • Model contract provisions • Business explanations of what legal terms mean • Drafting advice

17. Step Five: Designing the System • Site map • Overall schema • Content • Education • Communication Forum • Clause Library • Model Documents • Wizard • User Experience • How users can quickly and efficiently navigate the site • Page layout and design • How the content and functionality can be presented to the user

18. The Contract Commons StrategyPresented at theConsortium for School Networking Conference (CoSN) in Washington, D.C. on March 6, 2006

19. The Goal of Contract Commons • Support the effective use of software and technology in public education. • Help vendors and districts to clearly define their needs up front. • Build a community to learn about the content and process of contract negotiations. • Connect the legal and public school education communities.

20. Acquire a System Contract Basics Reading the Contract Making the Deal Choose a System Define Project Define Needs Identify Options Choose a Solution Implement a System Drafting Policies Budgeting and Planning Working as a Team What is Contract Commons? An online system to assist school district personnel, vendors and their lawyers in negotiating and drafting technology and software agreements.

21. Design PhilosophyBuilding an open community for knowledge sharing • Create a collaborative system to leverage the wisdom of the educational community • Connect vendors, educators, lawyers and procurement officials • Enable members of the community to share content • Provide resources on closed and open source

22. Contract Commons: What Will it Do? • Legalese “Translation” • Legal terms and contract provisions explained in a library of clauses • Model Contracts Library • Best of breed technology contracts with annotations provided by top legal and technology professionals • Clearinghouse • Vendor, legal and business information to help choose, acquire or implement a system • Community Resources • Resources provided by the community to help choose, acquire or implement a system • Dialogue and Forum • Connecting members of the community to discuss technology acquisition experiences

23. Choosing a System • Advice to Keep in Mind When Deciding Whether to Buy or Build or How to Identify the Right Vendors and their Products • Take an exhaustive inventory of data sources, survey user needs and goals, and choose whether to implement a data system using local staff or contracted help. • Get input from potential users and survey their needs. • Communicate with others that use the same vendor, hardware or software product. • Systems should be accessible from anywhere. • Make sure you accurately calculate the cost of a product, including maintenance and fees.

27. Acquiring a System • Advice to Keep in Mind When Negotiating and Contracting: • Far more than a statement of legal rights, a contract memorializes the business deal. • Define what you want to do with a technology, in detail, before you sign a contract and review those goals with users, constituents and vendor. • Spread your payments out over time and tie the payments to project deliverables. • Detail desired milestones and deliverables in your contract. • Know the conditions for ending the relationship and terminating the contract. • No matter what anyone says to the contrary, your agreement with a vendor is always negotiable.

28. Have you ever seen a nightmare clauselike this in your contract? 8. LIMITED WARRANTY. The following warranty is supplied with respect to Licensed Product provided to Customer hereunder: 8.1 Conformity to Specifications. Vendor cannot assure that the performance of Licensed Product will be uninterrupted or error-free, or that all Licensed Product problems will be corrected, despite Vendor’s reasonable efforts to do so. Vendor does, however, warrant for a period of twelve (12) months after the original shipment of Licensed Product hereunder that: (a) such Licensed Product (other than Custom Programs supplied by Vendor pursuant to Vendor’s Services Policies), as originally delivered under this Agreement, will substantially conform to the applicable description and specifications contained in the Documentation delivered with such Licensed Product; and (b) Custom Programs supplied by Vendor pursuant to Vendor’s Services Policies will substantially conform to the specifications set forth in the applicable Statement of Work pursuant to Vendor’s Services Policies. The foregoing warranty shall not apply to Licensed Product that has been modified, damaged or used in a manner that does not conform to the instructions and specifications contained in the Documentation for such Licensed Product. In the event that Licensed Product does not meet the requirements of this warranty, Customer shall be responsible to so notify Vendor in writing during the warranty period and provide Vendor with sufficient detail to allow Vendor to reproduce the problem. After receiving such notification, Vendor will undertake to correct the problem by programming corrections, reasonable “work-around” solutions and/or Documentation corrections. If Vendor is unable to correct the problem after a reasonable opportunity, Vendor will refund the license fees paid for such Licensed Product and Customer’s license to use such Licensed Product will terminate. The foregoing states the complete and entire remedies that Customer has under this warranty. Vendor shall have no responsibility for any warranty claims made outside of the warranty period.

29. Implementing a System • Advice to Keep in Mind When Implementing a Technology System • Assign a project manager to the project who will maintain a project roadmap and up-to-date project status documents. • Develop and communicate a clear messages about the project for your users and other stakeholders so they understand what it is, why it’s useful, how they can be involved. • Integrate your new training plans with work that’s already going on in the school district. • Order equipment and materials with plenty of lead time. • Work out username and password policies and systems early.

30. Contract Commons and Implementing a System

31. Feedback & Response • IT Directors, Superintendents • Importance to schools • Willingness to use system • Willingness to share experiences and information • Usefulness of the features

32. Next Steps • Future ownership of the Initiative • Ways to involve the legal community