CONTRACT MANAGEMENT at William & Mary

1. CONTRACT MANAGEMENTatWilliam & Mary 04/17/14

2. SIGNATURE AUTHORITY • Board of Visitors By-Laws delegates signature authority for all transactions to the President and specific areas to the Provost, Vice President for Administration and Vice President for Finance. They have authority to sub-delegate. • Sub-delegations may include contract type and dollar limits as defined by the individual delegating. • All sub-delegations are subject to review and approval by the President, Provost, Vice President for Administration or Vice President for Finance.

3. Specific delegations from the Board of Visitors • The President has the authority to conduct the business of the university and, as such, has the authority to sign any contract, unless reserved to the Board of Visitors. • The Provost holds the principal signature authority for: • sponsored projects (grants and contracts) • employment contracts and letters of intent • articulation agreements • intellectual property rights • student or faculty exchange agreements • financial aid agreements • any other contracts or agreements necessary to carry out and support the operations of the College, with the exception of matters reserved by the Board of Visitors and those matters delegated to the Vice President for Finance and the Vice President for Administration

4. Specific delegations from the Board of Visitors • The Vice President for Finance holds the principal signature authority for: • the transfer, conversion, endorsement, sale, purchase, assignment, conveyance and delivery of any and all shares of stocks, bonds, debentures, notes, and subscriptions warrants, cash or equivalent assets, and evidence of indebtedness. • the purchase of real estate and other property or other securities or assets now or hereafter standing in the name of or owned by the BOV or bearing any similar designation indicating ownership by the College. The sale of real property requires the approval of the Board of Visitors. • agreements that set terms for acceptance of gifts • any other contracts or agreements necessary to carry out and support the operations of the College, with the exception of matters reserved by the Board of Visitors and those matters delegated to the Provost and the Vice President for Administration

5. Specific delegations from the Board of Visitors • The Vice President for Administration holds the principal signature authority for : • agreements for the purchase or rental of services, supplies and equipment, including software and hardware • construction and professional services • nondisclosure or confidentiality agreements • real estate and property leases or rental agreements • capital leases • easements • equipment leases or (fixed asset) rental agreements • student room contracts • licensing and trademark agreements • any other contracts or agreements necessary to carry out and support the operations of the College, with the exception of matters reserved by the Board of Visitors and those matters delegated to the Provost and the Vice President for Finance

6. AREAS OF RESPONSIBLITY • Procurement-goods, equipment and/or services • Contracts over $5000 total spend must be processed through procurement office • Contracts under $5000 delegated authority must follow contracting and signatory authority policies. • Office of Sponsored Programs (OSP)-sponsored funding (grants), external funding and research collaborations • Technology Transfer Office –NDAs and data transfer • Office of Administration- Property Leases • University Counsel-allothers

7. With authority comes responsibility! • By signing a contract you are obligating the university to any and all terms of the agreement • Internal consequences-you are accountable for acting in the best interest of the university including the financial considerations • External consequences-your official capacity makes you a formal representative of the university to the business community Thus……. • Contracting and Signature Authority Policy • To sign a contract an employee must have written delegation to do so. • Delegation is granted to specific position & individual and • Training is required to receive and retain authority

8. DEFINITION OF A CONTRACT • A university contract is any agreement between the university, or any of its subunits (such as the Mason School of Business or the Department of Physics), and a third party that involves a commitment on the part of the university regardless of the source of funds. An agreement is a document that has legal effect, regardless of whether it is called a “contract.” • A contract may involve a commitment of university funds, facilities, employees, or other resources, and/or the use of the university’s name. It may be a commitment for the university to give up a right it otherwise may have.

9. LEGAL ELEMENTS OF A CONTRACT • OFFER An offer is a proposal to do a thing or pay an amount anticipating acceptance or a counter-offer. • ACCEPTANCE is active or inactive demonstration of acceptance of the offer. • MUTUAL CONSIDERATION exists when each party to a contract gives up something of legal value.

10. LEGAL ELEMENTS OF A CONTRACT cont. • IN WRITING? • To be enforceable, certain contracts must be in writing • Contracts for the sale of goods over $500 • Contracts for the sale of real property • Contracts that cannot be completed in one year • Promises to answer for or discharge the debts of another • COLLEGE practice demands all contracts are in writing BUT • Courts can and do enforce contracts that are not in writing • A written contract is presumed to contain all the terms of the contract.

11. LEGAL ELEMENTS OF A CONTRACT cont. • A contract by any other name……… • If there has been an offer and acceptance, mutual consideration and it is in writing, it is a binding agreement. • College examples of contracts are called • Agreement • Memorandum of Understanding • License • Statement Of Intent • Covenant • Lease • Understanding • Arrangement

12. WHAT SHOULD A CONTRACT INCLUDE? • Anything and everything that matters! • Clearly and completely lay out expectations • Who • What • When • Where • Why • How • How much • What If • Says who

13. WHO-THE PARTIES • The College of William and Mary in Virginia • That is the legal name of the College • Various Schools, Departments, Offices Centers are not legal entities and thus do not possess the authority to contract. • The other party’s legal name • Individual • Sole proprietorship • Partnership • Limited Liability Partnership (L.L.P.) or Company (L.L.C.) • Corporation • Governmental entity State Corporation Commission: www.scc.virginia.gov

14. WHAT-THE RIGHTS AND DUTIES • This is the heart of the contract-what the parties will do • Clear-who is supposed to do what • Complete • Everything that matters • Everything that should or should not happen • Think about what is not in the contract but should be • If it is not in the contract, it can not be enforced.

15. WHEN-DURATION AND DEADLINES • Clarity of College’s expectation of timing • Window of performance or • Deadline or • Specified date If meeting a deadline is critical, the contract should specify “Time is of the essence.”

16. WHERE THE PERFORMANCE TAKES PLACE • Be specific • Include enough detail that there is no misunderstanding of where the activity takes place

17. WHY-BACKGROUND OR PURPOSE • Not always necessary to include • Often used to define the objective • Goal • Purpose • Context

18. HOW-THE METHOD OF PERFORMANCE • Expectation of how work is performed • If nothing is mentioned, contractor can do as they please and the College cannot compel otherwise • Can also be in terms of prohibiting a certain type of activity without specifying how work is done

19. HOW MUCH-AMOUNT AND TERMS • Amount • Fixed cost • Term • Cap • Manner • Hourly • Job • Time and materials • Timing-standard Commonwealth terms are Net 30 upon completion and receipt of invoice in Accounts Payable • Down payments and/or deposits are normally unacceptable.

20. What if-Performance and Termination • Termination clause necessary • Nonperformance or substandard work • How to deal with external factors such as weather • Ability to terminate contract with notice • Define procedure and obligations • Typical termination clause • Written notice • Opportunity to cure • Right to terminate

21. Says Who-Signatures • For the College-Those who have signatory authority! Unauthorized individuals who sign contractual agreements on behalf of The College may be held personally liable for those contracts. • For the contractor- must be someone with authority to bind the contractor to the terms and conditions of the contract.

22. Form Contracts • College form contracts • Independent Contractor/Consultant • Hotel addendum • Standard addendum • Speakers • Entertainment http://www.wm.edu/offices/procurement/forms/index.php • Contractor form contracts • Prefer not to use but if they insist require college addendum

23. REQUIRED CLAUSES The required clauses protect the College • Entire agreement-number the pages • Sovereign Immunity • Modification • Applicable Law and Choice of Forum-Virginia • Force Majeure • Remedies • Collection and Attorneys fees

24. PROHIBITED CLAUSES • Indemnification/Hold Harmless • Insurance-insured by Commonwealth • Arbitration • Confidentiality-subject to FOIA • Liquidated Damages/lost profits • Limited Liability • Modification without our written approval Complete list in Contracting Guidebook

25. Contract AdministrationInitial Steps • Read the contract! • ID critical clauses, Terms and Conditions • ID team members and responsibilities

26. Contract AdministrationAction Plan • Identify deliverables • Quality, quantity, price, place, time • Understand responsibility for deliverables • W&M’s and the contractor’s • Assign actions to meet deliverables • Track the frequency of the actions needed • Daily, weekly, quarterly, etc.

27. Contract AdministrationAdministrator’s Responsibilities • Coordinate contract start up • Inspect and evaluate progress • Coach by pointing out noncompliance • Start documentation process • Note needed contract improvements • Request contract changes through Procurement Services • Initiate remedial action if necessary • Excludes changes to contract provisions • Excludes terminating a contract • Excludes supervising contractor’s personnel

28. Contract AdministrationProcurement Services Responsibilities • Contracts executed by Procurement • Answer questions • Mediate problems • Modify contract terms • Renew contracts • Terminate contracts • Contracts executed under delegated signatory authority • Answer questions • Mediate problems • Assist with modifying contract terms and renewing or terminating contracts

29. Contract AdministrationCommon Pitfalls • Do not assume that: • Previous contractor left at required performance level • Contractor knows procurement laws or policies • Contractors will police themselves • Contractor will remember or even understand all the contractual terms • Contractor shares our culture

30. KEY TAKEAWAYS • If the parties intend the agreement to be binding, and not merely a promise that need not be kept, it is a contract. • A written delegation of authority is required to sign a contract. • As an agency of the Commonwealth, W&M is subject to the laws of the Commonwealth. • If it is not written in the contract, it probably is not enforceable. • The details matter. • When in doubt – ask the Procurement Office or University Counsel first. It saves time and trouble.