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Frequently Asked Questions

Contracts

Contract Review Process Overview:

Please consult with the Office of General Counsel on any contract, agreement, or other document that may have significant legal implications for the University. A “contract” may include any written agreement, proposal, or other formal instrument which is intended to create a binding legal obligation on the University to pursue a course of action, expend University funds, or other contractual obligation. (See Signature Authority, below, regarding what constitutes a “contract”). The Office of General Counsel can review your contract to evaluate legal risks to the University and provide suggestions for how those risks might be mitigated.

Before sending a contract to OGC:

  • Please review the contract to ensure you are comfortable with the business terms. For example, are the scope of services and price acceptable?
  • If you are purchasing goods or services, please consult with Procurement & Contracting Services (main campus) or Value Analysis & Purchasing (Hospitals & Clinics) to ensure your department has conducted the appropriate procurement process.

After receiving comments and final approval from OGC:

  • Please ensure the contract is sent to the appropriate University official for signature (see Signature Authority, below).
  • Maintain a copy of the executed contract for your department’s records. We also recommend sending a copy to OGC and to any other University department(s) involved in the transaction, for recordkeeping purposes.

  (Last reviewed on Oct. 24, 2017)

The Office of General Counsel aspires to review most contracts within 5–10 business days. However, complex transactions may require additional review time. (Last reviewed on Oct. 24, 2017)

Business Associate Agreements:

If your department is contracting with a vendor who may have access to protected health information (PHI) in the performance of services under the contract, please verify that the vendor has executed a Business Associate Agreement with the University. For more resources about when a Business Associate Agreement is required, please contact the University of Utah Health Information Privacy Office at (801) 587-9241 or http://uofuhealth.utah.edu/privacy-office/business-associates.php(Last reviewed on Oct. 24, 2017)

Confidentiality / Non-Disclosure Agreements (NDAs):

The University of Utah, as a governmental entity of the State of Utah, is subject to the Government Records Access and Management Act, Utah Code §§ 63G-2-101 to -901 (“GRAMA”). Therefore, the University’s ability to maintain information or documents as “confidential” is governed by GRAMA.

Under GRAMA, all University records are presumed to be public unless they fall into a specific category of private, controlled, or protected records. GRAMA requires the University to provide public records in response to a written request. Contracts entered into by the University are generally public records. However, under certain circumstances, a person submitting a document to a governmental entity may assert a claim of confidentiality in relation to that document.  That said, GRAMA is very specific about the types of information that can be claimed as confidential and the method for claiming confidentiality.  Generally, only trade secrets and highly sensitive commercial information may be claimed as confidential.  In addition, the claimant must provide a “concise statement of the reasons supporting the claim of business confidentiality.”  Id. § 63G-2-309(2). A link to a form for submitting confidentiality claims may be found at http://fbs.admin.utah.edu/download/purchasing/Business_Confidentiality_Claim_Form.pdf. In most cases, GRAMA requires a person requesting confidentiality to make the request contemporaneously with providing the record to the University.

If you are negotiating a confidentiality provision within a contract, please see below.

(Last reviewed on Oct. 18, 2017)

Understand what types of information need to be exchanged to facilitate the business discussion or services and be sure the definition of "confidential information" accurately reflects that understanding. The University’s confidentiality obligations should always be subject to other legal and practical considerations, for example, the University's duty to disclose records in compliance with GRAMA (open records law, see above) or whether any third parties will need access to information (e.g., other vendors (system integration), consultants or subcontractors etc.). Also consider, practically, how will "confidential" information be identified? If written, should it be marked confidential? If oral, does it need to be documented? How long does the information need to be protected? What happens to confidential information once the relationship ends? Does it need to be returned or destroyed? Do you need to retain a copy for archival/audit purposes?

In all cases, please contact the Office of General Counsel to review any non-disclosure or confidentiality language. 

(Last reviewed on Oct. 18, 2017)

Contract Termination Provisions:

In most cases where the University is receiving a service, the University should have the flexibility to terminate should circumstances change. Therefore, seek language that allows the University to terminate without cause. In addition, contracts typically allow for termination based on certain trigger events (i.e., termination with cause). Consider whether the trigger events are significant enough to justify termination and whether a cure period (a period of time during which the offending party can regain the confidence of the other party) is appropriate.

Termination will usually require advance written notice. Consider whether the notice periods are sufficient and would allow you to find a suitable replacement before the termination date.

Discuss what will happen to the fees upon termination. If the fees are prepaid for the term, will you seek a partial refund? Consider that length of the contract and the amount of fees. Beware of language that requires payment of fees for the remainder of the original contract term.

Please consult with the Office of General Counsel when negotiating termination language. (Last reviewed on Oct. 18, 2017)

Governing Law:

Yes! Utah law should govern agreements entered into by the University. As a Utah state governmental entity, the University preserves important legal protections when Utah law applies to the contract. For example, the Governmental Immunity Act, Utah Code § 63G-7-101et seq., allows the University to limit its liability with respect to certain claims.  In addition, if the University litigates a claim, it is often more cost efficient for the University to hire local Utah counsel and defend claims in Utah courts, rather than out-of-state.

(Last reviewed on Nov. 6, 2017)

Independent Contractors:

University Policy 3-111 addresses the process for entering into agreements with Independent Contractors.

An individual may be retained as an Independent Contractor only if a determination has been made in accordance with Policy 3-111 that the individual qualifies as an Independent Contractor. A determination of Independent Contractor status must be completed prior to any engagement for services and before payments can be made by completing the Employee/Independent Contractor Classification Checklist, (“the Checklist”). A link to the Checklist may be found here: http://fbs.admin.utah.edu/download/AP/ICChecklist.pdf. The Checklist must be completed by an individual with firsthand knowledge of the nature of the services to be performed. Questions regarding interpretation of the Checklist should be directed to Tax Services.

Except as otherwise exempted from Policy 3-111, all contracts with Independent Contractors must be in a form approved by the Director of Procurement & Contracting Services or the Office of General Counsel. The University’s Independent Contractor Services Agreement (Independent Contractor Services Agreement ) is an approved form of agreement for most consulting and professional services.

Questions about insurance requirements for Independent Contractors should be directed to Risk & Insurance Services.

Finally, when you receive a bill for services provided under an Independent Contractor Services Agreement, please review it carefully to ensure the invoiced services are within the scope of the agreement.

For questions about topics related to Independent Contractors that are not addressed in this FAQ, please consult the Office of General Counsel.

(Last reviewed on Oct. 24, 2017)

Name of Legal Entity:

The University of Utah is a single legal entity, with rare exceptions. All contracts entered into on behalf of University of Utah departments and internal operating units should specify the contracting party’s name as: “the University of Utah, a body politic and corporate of the state of Utah.” For administrative purposes, if you prefer that a contract specify a particular department or operating unit, the party name can go further to specify: “the University of Utah, a body politic and corporate of the state of Utah, on behalf of its [name of department/unit].” Some internal operating units of the University include, but are not limited to:

  • University of Utah Health
  • University of Utah Health Sciences
  • University of Utah Medical Group (“UUMG”)
  • University of Utah Hospitals and Clinics
  • various Schools, Colleges and Academic Departments (e.g., “School of Medicine Department of Surgery” or “College of Engineering”)
  • Huntsman Cancer Institute
  • University of Utah Health Plans

 

Please consult the Office of General Counsel with additional questions about your department’s name.

(Last reviewed on Nov. 6, 2017)

Procurement Code:

University Policy 3-100 outlines the University’s policy for procurement of goods and services. In many cases, the expenditure of University funds in order to purchase goods or services is subject to the Utah Procurement Code, Utah Code §§ 63G-6a-101 to -2407 (“Procurement Code”), which may require a competitive bid process.

If your contract involves the purchase of goods or services, and will obligate the University to spend more than $5000, please consult Procurement & Contracting Services to ensure you follow state law. Please be aware that splitting purchases to keep an amount under $5000 and avoid procurement rules is a criminal offense in Utah.

Questions about Policy 3-100 or the University’s Procurement policies should be directed to Procurement & Contracting Services.

(Last reviewed on Oct. 30, 2017)

Signature Authority:

University Policy 3-004 addresses the process for signing of contracts and other "official documents." Routine documents such as campus orders, limited purchase orders, travel reimbursement, etc. may be signed by a dean, director or department chair. All other contracts must be signed by the cognizant Vice President, the President, or other person delegated that authority by the cognizant University officer.

Certain categories of contracts such as real estate transactions (including leases), financing, and other banking transactions, should be signed by the Vice President for Administrative Services. Other contracts are typically signed by the Vice President with oversight responsibility for the particular project. A listing of examples of official documents by Vice Presidential area is found at R3-004A. (Last reviewed on Dec. 1, 2011)

A memorandum of understanding (MOU) can be a contract! Under University Policy 3-004, an “Official Document” is any “written agreement, proposal, or other formal instrument regarding a course of action, the expenditure of University funds, or other contractual obligation – which is intended to be binding upon the University.” Official Documents include any document that obligates the University, or any of its units, to “act, engage, consent, perform, or pay.” An Official Document may be called a contract, proposal, agreement, statement, memorandum of understanding or agreement (MOU or MOA), license, or other names.

Please follow Policy 3-004 for signature of all Official Documents, and please consult the Office of General Counsel with questions about whether your document is an Official Document.

(Last reviewed on Oct. 18, 2017)

Term Limits:

The University of Utah, as a governmental entity of the State of Utah, is subject to the Utah Procurement Code, Utah Code §§ 63G-6a-101 to -2407 (“Procurement Code”). When the University is purchasing goods or services, the Procurement Code requires that the total term of the contract (including any renewals) may not exceed five (5) years. Therefore, avoid language that allows for automatic renewals beyond five years.

This requirement does not apply to transactions that are not subject to the Procurement Code, so contracts that do not involve the purchase of goods or services may have longer terms.

Please consult with the Office of General Counsel regarding term limits longer than five years.

(Last reviewed on Oct. 24, 2017)

University Taxpayer I.D. Number:

The University has more than one taxpayer ID number. The general number is 87-6000525. Please see the University's Form W-9 at http://fbs.admin.utah.edu/download/Tax/W9.pdf. For other numbers, such as those used for the University's health care operations, please contact University Tax Services in 411 Park Building at (801) 581-3428. (Last reviewed on Oct, 18, 2017)

Vendor Liability:

Yes! Vendor's increasingly attempt to cap their liability for all types of damages under a contract (even when they are at fault) to the purchase price of the product or services. In many instances, a vendor may cause harm to the University or other parties well beyond the cost of the product or services (examples include defective products, negligent services, loss of protected health information or other confidential information, or other causes.) These liability limitations should be avoided or carefully negotiated with assistance from the Office of General Counsel. (Last reviewed on Oct. 18, 2017)

Last Updated: 11/10/17