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Executive Policy 8.200 Executive Policy 8.200
Policy on Contracts and Signing Authority
Executive Policy Chapter 8, Business and Finance
Executive Policy 8.200, Policy on Contracts and Signing Authority
Effective Date: November 2022
Prior Dates Amended: November 1, 2017, November 1, 2018, November 1, 2019, November 1, 2020, November 2, 2021
Responsible Office: Office of the Vice President for Legal Affairs and University General Counsel
Governing Board of Regents Policy RP 8.201, Contracts and Official Documents
Review Date: October 2023
This Policy makes uniform for the University (1) standard contractual provisions that should be in University contracts, (2) the approvals and signing authority required to enter written contracts which the Board of Regents has delegated authority to the President to execute on behalf of the University, and (3) the priority contracts that require additional scrutiny and review. This Policy supersedes any conflicting practice, policy, delegations or guidelines.
This Policy covers all written contracts between the University and non-University entities, including but not limited to county, state, federal, and foreign governments, educational institutions, financial institutions, vendors, contractors, consultants, and non-profit entities. This Policy does not apply to memoranda of understanding or similar agreements that govern internal relationships between University campuses or between colleges, schools, departments, institutes, centers, or other units within a University campus.
Note: Appendices are only available to current University employees and students, and can be accessed at: http://www.hawaii.edu/offices/legal/contractspolicy/appendices
“Contract” means any document intended to set forth an agreement or arrangement between the University and an outside party. A document need not be labeled “contract” to be covered by this Policy. A document labeled “contract,” “agreement,” “memorandum of understanding,” “MOU”, “memorandum of agreement,” “MOA”, “lease,” “license,” “permit,” “letter of intent,” and even a letter, or any other similar written item indicating or implying a legally enforceable document, is deemed a “Contract” under this Policy if it describes an obligation of the University, either to do or not do something or to pay money. A purchase order is considered a Contract as it is intended to govern the obligations between the University and a vendor. A Contract can be in electronic form, as electronic signatures are permitted under certain circumstances and copies of fully executed agreements that are electronically transmitted can be considered legally binding. Any question as to whether a document should be considered a Contract should be referred to the University’s Office of General Counsel (OGC).
“Counterparty” means any person or entity that is a party to a Contract with the University.
“Deans” are defined at UH Mānoa as the Deans of (1) the College of Arts, Languages & Letters, (2) the School of Architecture, (3) the Shidler College of Business, (4) the College of Education, (5) the College of Engineering, (6) Hawaiʻinuiākea School of Hawaiian Knowledge, (7) College of Natural Sciences (8) School of Nursing & Dental Hygiene, (9) the Outreach College, (10) the College of Social Sciences (11) Thompson School of Social Work & Public Health, (12) College of Tropical Agriculture and Human Resources, (13) John A. Burns School of Medicine, (14) William S. Richardson School of Law, (15) Graduate Division, (16) School of Ocean and Earth Science and Technology. As defined in this Policy, the University Librarian is also included in this group as well as the Directors of (1) the UH Cancer Center, (2) Waikiki Aquarium, (3) Lyon Arboretum, (4) Institute for Astronomy, and (5) Athletics. The term “Deans” does not include deans other than those listed above, Center directors, or assistant or associate deans, assistant or associate directors, or assistant or associate vice chancellors.
“Fiscal Administrators” and “Assistant Fiscal Administrators” refer to that group or class of persons who perform the business and fiscal administration functions for a particular University unit and are subject to specified purchasing authority and purchasing dollar limits. The appropriate Vice Chancellor for Administration/Chancellor/UH Mānoa Provost/UH Mānoa Chief Business Officer/Vice President shall approve Fiscal Administrator appointments and requests for delegation of purchasing authority and purchasing dollar limits.
“Officers” mean all persons defined as officers of the University pursuant to Board of Regents Policy RP 2.201.
“Significant Commitment” is an obligation that meets any one of the following criteria:
"Template Agreement(s)" are written form agreements that have been approved by OGC for a specific purpose. Any material changes to a Template Agreement, or using a Template Agreement for other than its specified purpose, requires OGC approval.
“University” includes the University of Hawaiʻi and all of its constituent campuses, colleges, departments, institutes, centers, and units.
III. Executive Policy
A. Requirements for All Contracts
1. Requisite Authority and Delegations of Authority
a. Requisite Authority
Existing board and executive policies and administrative procedures identify proper approval and signing authority for different kinds of contracts. Appendix 1 identifies by category of contract those policies and procedures currently in existence, and who must approve and sign various types of common obligations or contracts (except in cases of unavailability, when any University Officer may sign.) An exception to this exists as to the Community College Chancellors as noted in Section III.A.1.(b)(3) below.
Others may not sign unless they are University Officers or unless they have been delegated authority elsewhere in this Policy or other University board or executive policy or administrative procedure, or in a written document on file with OGC. A listing of the delegations of authority on file with OGC is available to current University employees and students, and can be accessed at: http://www.hawaii.edu/offices/legal/contractspolicy/appendices. The table also identifies the appropriate review and approval process required for each type of Contract before signature. If a Contract does not appear on the table, consult OGC to determine the appropriate review and approval process.
Faculty, staff, students, consultants, and independent contractors do not have authority to sign Contracts that bind the University.
Signing a Contract on behalf of the University is an important responsibility and should be done only by someone with the proper authority and an understanding of the obligations being undertaken. A person who signs a Contract on behalf of the University knowing he/she lacks authority or in reckless disregard of obtaining proper authority, will be in violation of this Policy. In addition, a person who signs without authority in some cases may even be personally liable for the obligations, debts and risks under that Contract, including any payment obligations. The University will not be bound by the terms of a Contract signed by an individual without authority unless the University, through an Officer of the University with authority to commit a sufficient amount of available funding to meet the Contract obligations, subsequently agrees that the University will honor the Contract.
b. Delegation of Authority
(1) The President
The President of the University must be informed in advance about all Significant Commitments, before any Significant Commitment is confirmed. Contracts containing Significant Commitments must be: (a) reviewed and signed by an Officer of the University or as otherwise authorized by the President and (b) reviewed by OGC.
Generally, as noted in Appendix 1, Officers have authority to approve and sign Contracts except those reserved to the President and the Board of Regents. The President also may delegate authority to University employees other than Officers to sign Contracts on behalf of the University. It is expected that Officers and other authorized University signatories will only sign Contracts within their general areas of authority, except in cases of unavailability.
(3) Community College Chancellors
Authority to sign contracts for the community colleges has been delegated to the Vice President for Community Colleges. The Vice President for Community Colleges will delegate as appropriate the signing authority for the community colleges to the community college chancellors. These delegations will be given in the manner specified in subparagraph (7) below, and these delegations supersede the authority given to community college chancellors where “chancellor” is mentioned in Appendix 1.
Deans have authority to approve and sign Contracts that:
This section of the Contracts Policy does not modify nor affect the delegation of signing authority as provided by other Executive Policies with respect to the University’s procurement of goods, services and/or construction.
(5) Fiscal Administrators/Assistant Fiscal Administrators
Generally, as noted in Appendix 1, Fiscal Administrators and Assistant Fiscal Administrators have authority to approve and sign Contracts for procuring goods, services, and construction within the limits of their delegated purchasing authority.
(6) Department Chair, Unit Head, Administrators and Individual Faculty Members
(a) Department Chair/Unit Head. The Department Chair or head of the Unit whose budget will bear an expense does not have authority to sign Contracts by virtue of the budgetary effect alone. Contracts can be signed only by the administrators who are named elsewhere in this Policy or by administrators who have been delegated authority to sign that kind of Contract by a delegation on file with Office of General Counsel. A listing of the delegations of authority on file with OGC is available to current University employees and students, and can be accessed at: http://www.hawaii.edu/offices/legal/contractspolicy/appendices.
(7) Further Delegation
Those who are authorized by policy or procedure to approve and sign Contracts may further delegate their authority, provided that such authority to delegate is described in a policy or procedure other than this EP 8.200. Delegation must be in writing and specifically limited by agreement type and dollar amount. (See Appendix 3 for Sample Delegation Document). A person to whom authority is delegated cannot then further delegate that authority to another, without the written approval of the person who made the original delegation. The person who delegates authority retains responsibility for the actions of the person to whom authority is delegated.
A copy of all delegations, re-delegations, or revocation of delegations of authority to approve and sign Contracts must be kept by the Administration of respective campuses, and if executed at the System level, a copy must be sent to OGC to be effective and honored by the University. A listing of the delegations of authority on file with OGC is available to current University employees and students, and can be accessed at: http://www.hawaii.edu/offices/legal/contractspolicy/appendices.
Copies of delegations that are temporary or personal, e.g., delegation only while delegator is out of the office on travel, do not have to be sent to and acknowledged by OGC to be effective. This includes delegations that are less than 2 months in duration.
2. Due Diligence, Adherence to Policies, and Confirmation of Funding
3. Prohibition Against Conflicts of Interest
4. Requirement of a Written Agreement
B. Contracts Review Process
The Contracts Review Process set forth in this Section III.B. applies to all Contracts that are not already subject to review pursuant to a separate policy or procedure. Examples of Contracts excluded from this Contracts Review Process (shown also in Appendix 1) include the following:
If there are particular aspects of these agreements that involve significant commitments or carry inherent risks, the unit designated as the primary reviewer may seek additional review or guidance.
1. Review By Office of General Counsel
Except for the types of Contracts listed above, OGC review is not required for Contracts involving expenditures (including any renewal or option terms) that do not exceed $25,000, whether it is over a single year or multiple years.
OGC review is not required if a Template Agreement is used for the purpose specified and no substantive deviations or changes are made to the form template. If substantive deviations or changes are proposed, OGC review will be required for those changes only.
In general, OGC review is limited to assessing the legality of each Contract and the terms affecting such assessment. It does not usually include a review and evaluation of the business terms or whether the University should enter into the Contract based on such business terms, with the University signatories remaining ultimately responsible for such decisions. The University unit which desires to enter into the Contract or which is responsible for initiating or implementing the Contract, has the primary responsibility to negotiate and review the overall Contract to make sure that it is in the best business interests of the University and consistent with University policies, including this Policy, to ensure that a risk analysis has been performed and any identified risks mitigated, and to confirm the counterparty business registration and signatory authority.
Contracts can include terms that may seem innocuous or insignificant to the University units, but may be legally important. All personnel are encouraged to consult with the OGC if they have any questions about this Policy, the Contract Review Process, a Contract, and/or the interpretation of any provisions within a Contract.
Use of standard University Contract terms (see Section III.C.) and Template Agreements will expedite Contract execution, including when necessary, OGC review. Contracts under $25,000 do not require OGC's review unless there are specific questions that require legal consultation, and any legal service request seeking OGC review of a Contract under $25,000 should be accompanied by a completed checklist found in Appendix 11. If units identify inconsistencies between the Contract language proposed by counterparties and this Policy, e.g., regarding indemnification, the unit should begin to negotiate with the counterparty to resolve those inconsistencies in the University’s favor to the greatest extent possible, prior to or during OGC's review of the Contract. If the inconsistencies cannot be resolved then units should seek higher campus level authorization for answers to policy questions, appropriate risk tolerance, or business decisions.
2. Early Reviews of Significant Commitments By Administration
3. Review of Insurance Terms
a. Contracts Requiring Proof of Other Party Insurance
The University has standard insurance requirements that generally apply to other entities doing business with the University (see Appendix 2). If the counterparty(ies) cannot or will not meet University’s insurance requirements, consideration should be given to selecting another alternative. Waivers of or changes to the standard insurance requirements must be approved by the office authorized to sign the particular Contract and the University’s Office of Risk Management (ORM), with input from OGC.
b. Contracts Requiring Proof of University Insurance
Contracts often require the University to maintain and show proof of certain types and amounts of insurance coverage. In general, the University does not purchase insurance to cover the University’s performance under the Contracts. The University is considered a “self-insured” entity and certificates to this effect may be obtained from the State of Hawaiʻi’s risk management office. Please consult with ORM with respect to obtaining such certificates.
Some Contracts also require the other party to be named as “additional insured” under University insurance policies. In virtually all situations, naming the counterparty(ies) as additional insured under any University insurance policy will not be feasible or possible. Appendix 2 describes the representations that can be made in a Contract about the University’s insurance coverage, without further review by OGC. Contracts that require the University to provide insurance of different types or specific amounts must be reviewed by ORM, with input from OGC, who may recommend approval by appropriate Officers.
4. Priority Agreements
a. Affiliation/Student Field Experience Agreements
The University enters into numerous affiliation agreements, the purpose of which is to make available to students a broad range of short-term field and clinical experience opportunities.
Appendix 4 contains ten (10) affiliation agreement templates:
If the template agreements are completed without any material changes, they need not be submitted to
OGC for review. Any material changes to the template agreements require OGC review before execution.
b. Facilities Use Agreements
Each campus of the University enters into numerous facilities use agreements granting permission to use or rent University facilities for a broad range of functions. Appendix 5 contains six (6) facilities use agreement templates:
Appendix 13 (Guidelines regarding UH users and Non-UH Users) sets forth guidelines and factors for determining whether a prospective user is a UH user or a non-UH user.
Unless a prospective user is able to show that it is officially affiliated with the University or a State of Hawaiʻi government entity, the non-UH user facilities use agreement templates should be used. UH affiliated users include (i) the Board of Regents or a UH System chartered organization; (ii) registered student, faculty, or staff organizations; (iii) UH Campus chartered organizations; (iv) University of Hawaiʻi Foundation; (v) ʻAhahui Koa Ānuenue; (vi) University Clinical, Education, and Research Associates dba University Health Partners of Hawaiʻi; and (vii) Hawaiʻi State Cancer Consortium. RCUH should use the template for State of Hawaiʻi government users.
Facilities use agreements should be used when the use of University property/facilities by a non-UH user is a one-time, sporadic, occasional, or periodic use, i.e., less than 30 consecutive days or 30 days per fiscal or calendar year. If the contemplated use exceeds these timeframes, use and occupancy agreements, right of entry agreements, leases or other similar rental agreements should be used (see Section III.B.7.). All of these agreements allowing entry onto and/or use and occupancy of University owned, leased, or controlled property are considered real property documents and are covered by Board of Regents Policy RP 10.201. Real property agreements at least require the approval of the Vice President for Budget and Finance or his/her designee, if not the President or the Board, as well as the approval of the Office of the Vice President for Legal Affairs and University General Counsel as to form.
If the template facilities use agreements are completed without any material changes, they need not be submitted to OGC for review prior to execution. Any material changes to the template agreements require OGC review before execution.
(1) Long and Short Form Agreements in General
Both long and short form agreements require consideration of use of appropriate waiver and release forms in connection with the activities or events conducted on University property/facilities. See template facilities use agreements and Section III.B.6.a. (Waiver and Release Forms) below for descriptions and samples of waiver and release forms.
The long form agreement templates should be used when: (a) expected attendance is more than 200 people, (b) the time of use is more than seven (7) days, or (c) the rental or use fee is greater than $5,000. Conversely, the short form agreement templates should be used when: (a) expected attendance is 200 people or fewer, (b) the time of use is (7) seven days or fewer, and (c) the rental or use fee is $5,000 or less.
To the extent that any changes are sought to the standard insurance provisions in any of the long form facilities use agreements, approval must be obtained from ORM.
Both long form facilities use agreements contain: (a) a requirement to obtain pollution liability insurance unless the UH Campus determines that hazardous materials will not be used in connection with the event and (b) optional provisions which specify the conditions under which food and alcohol may be served at the event.
The long form agreement for non-UH users also contain the following optional provisions:
(a) Optional fees/charges. Charge the non-UH user: (1) a percentage of the gross revenues received by the non-UH user for the event, i.e., participation fee, and/or (2) a ticketing fee if the University would like to require the non-UH user to use the University’s ticketing system for the event.
Both short form facilities use agreements contain provisions that the University may elect to include, such as provisions under which: (i) food and alcohol may be served at the event and (ii) standard insurance coverage could be required. In addition, if the UH Campus determines that hazardous materials may or could be used in connection with the event, the University could elect to require the user to comply with certain standard hazardous materials provisions, including obtaining pollution liability insurance.
(2) State of Hawai’i Government Users
The facilities use agreement templates (long and short form) for State of Hawaiʻi government users should be used when the non-UH user is any of the State of Hawaiʻi government entities, including but not limited to, the RCUH, the Department of Education (including individual public schools and/or complexes), the Hawaiʻi Community Development Authority, and the Office of Hawaiian Affairs.
The primary differences with the State government user facilities use agreement template include: (1) replacing the indemnity requirement with the standard State of Hawaiʻi responsibility obligation and (2) allowing the State to satisfy the insurance requirement through its self-insurance program.
c. International Agreements.
The additional review and signing authority requirements set forth in this Section III.B.4.c. applies to all international agreements that are not already reviewed pursuant to a separate policy or procedure, namely (1) those research agreements processed in accordance with EP 12.102, Authority to Sign and Execute Extramural Research and Training Contracts/Grants, Agreements and Contract Assignments and Releases, and (2) agreements with foreign entities for the procurement of goods and/or services that are not reviewed by OPM. In other words, agreements reviewed by the Office of the Vice President for Research and Innovation, the Office of Research Services or OPM do not need to follow this section of the Contracts Policy since those agreements are already subject to review pursuant to a separate policy or procedure.
Because of the unusual compliance and risk issues associated with transactions involving a foreign party, all international agreements under the purview of this Policy section (i) must be reviewed by the appropriate campus and System offices as specified below, (ii) screened by the Office of Export Controls ("OEC") for export control concerns, and (iii) signed on behalf of the University by the President or designee. A copy of the fully executed international agreement must be sent to the Office of the Vice President for Academic Strategy ("OVPAS").
Early Campus Internal Vetting. Each campus must have an internal vetting process for international agreements in which there are early reviews of the draft agreement by the campus Provost and/or Vice Provost (in the case of UH Mānoa) or Chancellor or Vice Chancellor Offices, and other appropriate campus, college and/or department offices as determined by each campus. These reviews must be completed and any issues identified addressed prior to the forwarding of these agreements to the other System Offices for review.
Accreditation. At the earliest stage of discussions concerning an initiative involving a foreign party, the campus must determine how the initiative could impact its U.S. accreditation and whether the initiative will trigger the requirement of notices to or requests for approval from the accrediting body. To ensure all parties involved in the negotiation have realistic expectations about the timing and nature of the collaboration, the campus should be very clear with the foreign party about U.S. accreditation requirements.
Physical Presence. Where a draft agreement requires that an office, other physical presence, or operations will be maintained by or on behalf of the University in other countries, whether by University employees or agents, the draft should be reviewed as early as possible by campus administration, including the UH Mānoa Provost or Chancellor, as applicable, as well as President and appropriate Vice Presidents. OGC must review all international agreements that send UH employees to work in another country as part of their UH work.
Additional contracting terms. When contracting with foreign entities to conduct research or academic programs abroad, the University may require in the agreement that the foreign party make various certifications and representations regarding its compliance with applicable law and regulations, including federal sponsor terms and conditions where applicable, trade controls, and anti-corruption laws.
Participant Waivers. Given the potential risks to personal health and safety associated with out-of-state, international, and overseas travel and residence in another state, territory, or foreign country, consideration should be given to using student participation agreements that include an assumption of risk, consent, waiver, release, and indemnity. A template participation, waiver and release form for University students participating in an out-of-state or international exchange or study abroad program is found in Appendix 6.
UHM Study Abroad Center. At UH Mānoa, any UH Mānoa credit course that is offered abroad must also be reviewed and recommended for approval by the Council on Study Abroad (the policy advisory body of the UHM Study Abroad Center). The Study Abroad Center has been identified as the UH Mānoa unit that specializes in minimizing the risk and liability to the University, e.g., health, safety and security, while delivering academic programs to the University’s students at overseas locations. The Study Abroad Center also provides training to faculty members in health, safety, risk, and liability areas as well as conducts pre-departure cross-cultural training for UHM students.
Individual students or faculty intermittent travel contracts are outside the scope of this Policy.
Appendix 6 contains the following international agreement templates:
If a University template agreement in Appendix 6 is used without any material changes, no further OGC review is required. Any material deviations or changes require OGC review before execution.
d. Minors on Campus
Colleges and schools of each campus of the University host and are part of programs that involve minors. The University as a post-secondary institution is generally geared to working with students aged 18 and older. Thus, special attention needs to be given to arrangements and agreements that involve minors. Thus, these agreements must be reviewed by OVPAS and OGC, and must be signed by the President as the chief executive officer of UH Mānoa , Chancellor of the other 4-year University campuses, or the Vice President for Community Colleges, as applicable, or their respective designees, and the student affairs office of the appropriate campus. The agreements must also comply with Executive Policy EP 2.202, Safety and Protection of Minors, and Administrative Procedure AP 2.202, Background Check Process for University Community Members and Non-UH Volunteers.
In agreements that have minors dually enrolled as students in a University program and a K-12 school, e.g. Early College, there should be provisions that delineate the responsibilities of each institution in the event that the dually enrolled student or employee in the joint program violates either institution’s policies. Appendix 16 contains a recommended sample provision.
(1) Waiver and Release Forms
Consideration should be given to using parental/guardian waiver and release forms in connection with events involving minors. See Section III.B.6.a. (Waiver and Release Forms) below for descriptions and samples of waiver and release forms.
(2) Screening of Employees
Consideration should be given to further screening employees who will possibly work with minors. All University instructors who work directly with State of Hawaiʻi Department of Education (DOE) students through the Early College, Dual Credit, Running Start and other P-20 Programs shall be subject to DOE’s background check procedures.
e. Letters of Hire for Employees
Colleges and schools of each campus of the University issue numerous letters of hire. No other employment contracts are allowed unless they are specifically provided for and in compliance with applicable University policies and procedures.
(1) Offer Letter Templates
The University System Office of Human Resources has developed Offer Letter Templates that can be used and/or adapted to fit most employment situations, found in Appendix 8. The intent is to streamline and expedite the processing of offer letters in part by exempting from further review the use of templates that do not deviate from or change the template terms and are in compliance with the University’s policies on compensation and hiring.
(2) Authority to Approve and Execute Letters of Hire
Any deviations or changes to the Offer Letter Templates and the University’s policies must be reviewed and approved by the appropriate Vice Chancellor, or UH Mānoa Vice Provost, or if at the System, by the Director of the Office of Human Resources. Any Letters of Hire or offer letters that do not conform to the following conditions must be reviewed and approved by the appropriate Vice Chancellor, or UH Mānoa Vice Provost or if at the System, by the Vice President for Administration.
(3) Mandatory Conditions for Letters of Hire
Letters of Hire must comply with the following:
1) Program-only impact. Impact solely the programs and budgets overseen by the issuer of the Letter of Hire;
For UH West Oʻahu, UH Hilo and all Community Colleges, no Start-Up Costs will be included in any Letters of Hire, unless prior approval has been obtained from the (1) Chancellor of UH West Oʻahu for UH West Oʻahu letters; (2) Chancellor of UH Hilo for UH Hilo letters; and (3) Vice President for Community Colleges for any Community College letters.
“Start-up Costs” are costs to the University beyond the normal salary for faculty to help them with their work. These costs can include but are not limited to funds for laboratory supplies, equipment, support staff, facilities, laboratory space, office space, computers and software, travel support and submission and publication fees. Support staff can include administrative/clerical support, students and postdocs.
(4) Conditions for Accepted Letters of Hire
Letters of Hire involving an employee in Bargaining Unit 07 must comply with the Memorandum of Understanding on Letters of Hire / Offer Letters entered into between the University of Hawaiʻi and the University of Hawaiʻi Professional Assembly in January 2017.
f. Information Technology Purchases
The Office of the Vice President for Information Technology and/or Chief Information Officer (“OVPIT/CIO”) is required to review and approve the following types of proposed contracts and transactions, in accordance with the processes described below:
(1) Purchases of electronic equipment, hardware, software, and related services. Proposed contracts (including purchase orders) relating to the purchase of electronic equipment, hardware, software, and related services that either:
(a) Exceeds $25,000 in the aggregate, whether it is over a single year or multiple years; or
Contracts that require the review and approval of OVPIT/CIO as provided above, must be processed through OVPIT/CIO's Procurement Approval Request process available at: https://www.hawaii.edu/its/support-tools/ (select “Request OVPIT approval for IT procurement”).
This OVPIT/CIO process is separate and apart from and in addition to the OPM review process and is consistent with EP 2.210.
Any questions regarding the process or variations from standard contracting practices should be referred to the appropriate unit fiscal administrator, OPM or OGC.
(2) Shrink-wrapped software/subscriptions (less than $2,500). Small purchase transactions (P-card) relating to the purchase of “shrink-wrapped” software and software subscriptions that:
(a) do not exceed $2,500 in the aggregate, whether it is over a single year or multiple years; and
Contracts that require the review and approval of OVPIT/CIO as provided above, must be processed through OVPIT/CIO's Procurement Approval Request process available at: https://www.hawaii.edu/its/support-tools/ (select “Request OVPIT approval for non-compliant terms (shrinkwrap terms) waiver”).
Requesting units are generally required to attempt negotiations with the vendor to modify or remove inconsistent terms prior to submitting a request for the review and approval of OVPIT/CIO.
Larger transactions for the purchase of “shrink-wrapped” software and software subscriptions, including transactions requiring an actual signature by the vendor (which provides an opportunity to modify terms), do not qualify for the OVPIT/CIO review and approval process described above, and must be processed in accordance with Section III.B.4.f.(1) above (Purchases of electronic equipment, hardware, software, and related services), if applicable, the OPM review process, and/or the contract review process described in this Policy. Such requests may be returned for clarification, or denied unless additional rationalization is provided with the request.
g. Data Commitments Involving Software and/or Services
OVPIT/CIO, OVPAS, and/or the UH System Data Governance Office (“UH DGO”) are required to review and approve all proposed contracts for software and/or services from parties outside of the University that involve the collection, management, sharing, exchange, use and/or release of Protected Data (as defined below), regardless of the dollar value of the contract. This review and approval process applies to software and services being purchased for both institutional (academic and administrative) purposes and research projects, regardless of dollar value of the contract. Software to which this Policy applies includes, without limitation, software that is hosted on a UH server or a non-UH server. Services to which this Policy applies includes, without limitation, outsourced institutional functions, education-related studies, and cloud-related services.
“Protected Data” refers to data subject to privacy and/or security considerations, i.e., data that is not public. This includes Restricted, Sensitive, and Regulated data as defined by Executive Policy EP 2.214, Institutional Data Classification Categories and Information Security Guidelines.
Additionally, any contracts for information technology products or services that require integration with any centrally-managed University information system, such as Banner, Peoplesoft, and the Kuali Financial System, and/or transmission over the University’s centrally managed network infrastructure are subject to this provision. This includes, without limitation, any type of data activity touching UH information systems.
The following table summarizes the types of contracts and submission and approval processes.
In approving any of the foregoing contracts, OVPIT and/or UH DGO may require the inclusion of appropriate contractual provisions, including, without limitation, all or a portion of the sample provisions contained in Appendix 9 (UH Data Sharing Protection Provisions).
The review and approval process in this Section III.B.4.g. precedes the OPM review process (when applicable) and the OGC process.
6. Template Agreements
a. Waiver and Release Forms
Appendix 7 contains the following waiver and release templates for use in connection with the types of events and activities described below. These waiver and release forms supersede and replace the waiver and release forms contained in AP 8.400.
b. Mutual Non-Disclosure Agreement
The template Mutual Non-Disclosure Agreement (NDA) contained in Appendix 14 may be used when the University and a third party wish to exchange and protect confidential information to facilitate discussions and negotiations leading to possible collaborative research or other business arrangements, and where neither party pays a fee for the exchange and safeguarding of confidential information. The template includes optional acknowledgments for situations in which University principal investigator(s) and/or students will be provided access to the confidential information governed by an NDA.
If the template NDA is used without any material changes, no further OGC review is required. Any material deviations or changes require OGC review before execution. A complex real property or commercial transaction may require a more involved NDA, and consultation with OGC is encouraged.
c. U.S. Transfer and Articulation Agreement
The Transfer and Articulation Agreement contained in Appendix 17 should be used to formalize an arrangement between a University campus and another U.S. institution (“US Affiliate”) where US Affiliate students who successfully complete specified courses or a prescribed course of study at the US Affiliate will receive credit hours at the University campus and/or may be eligible for acceptance to a bachelor’s degree program at the University campus.
7. Right of Entry and Use and Occupancy Agreement Templates
The following real property agreement templates have been approved by OGC and included in Appendix 15 (Template Property Agreements). The Template Property Agreements are considered forms pre-approved by OGC consistent with the requirements contained in RP 10.201. Therefore, no “approved as to form” signature blocks for OGC are included on the Template Property Agreements.
To the extent that there are any additional conditions or requirements, such conditions may be added as a separate Exhibit C (Special Conditions) to the applicable right of entry agreement or use and occupancy agreement. Such conditions could include designating specific access routes, limiting activities to certain hours, and implementing measures to protect or reduce any specific adverse impacts on facilities, significant campus features, utility systems or adjacent use areas (such as noise, dust, and vandalism and damage). Adding special conditions would require OGC review prior to submission to the Vice President for Budget and Finance/Chief Financial Officer (VPBF) or the Director of the UH System Administrative Services (SAS Director), as appropriate. OGC will insert an OGC approved as to form signature block for such Template Property Agreement.
If a Template Property Agreement is used for its specified purpose without any material changes, no further OGC review is required. Such Template Property Agreement, however, must be signed by either the VPBF or the SAS Director, as such authority has been delegated under Board of Regents Policy RP 10.201.
a. Right of Entry Agreements for Non-Invasive/Investigative Work
This set of templates provides a third party (usually consultants retained by a prospective developer or government entity interested in a specific project) the ability to enter University property to conduct limited non-invasive investigative/due diligence work:
(1) Consultant Non-Invasive Right of Entry Agreement.
b. Use and Occupancy Agreements for Nearby Construction Projects
This second set of templates authorizes a third party (usually a contractor or a government agency) to use and occupy University property to support nearby construction projects. Examples of such uses are to access the project construction area, store construction materials, dry out dredged sludge, and park/stage vehicles and equipment:
(1) Private Party Construction Support Use and Occupancy Agreement.
C. Specific Provisions in Contracts
When preparing contracts involving the University as a party, there are a number of common legal issues that may need to be addressed. To assist you in your review of contract provisions, a contract issue checklist has been prepared and is attached as Appendix 11. The following section also provides guidelines for addressing some of these common legal issues. OGC may always be consulted on issues or concerns beyond the scope of this Policy and these guidelines, or when the third party rejects the University’s standard provisions or its Template Agreements.
1. Proper Party.
3. Identify Responsible Campus/Department/Unit/Administrator.
4. Contract Scope, Deliverables and Deadlines.
a. Consideration. Determine the consideration or items of value being provided by each party, e.g., cash payment for a product/service or a promise to do or refrain from doing an action.
5. Payment Terms.
a. Reimbursement of Expenses. If expense reimbursement is required by the University, the other party should be required to submit documentation, e.g., receipts, acceptable to the University as a precondition to being reimbursed. A ceiling or maximum limit should be established for any expense reimbursement obligation of the University.
7. Subject to Funding.
“Subject to Funding. To the extent that the University is: (1) obligated to perform under this Agreement, (2) obligated to make any payments under this Agreement, or (3) deemed liable under this Agreement, the University’s ability to satisfy such obligations or liabilities, particularly any obligations requiring the payment of any amount of monies, is limited to that which is permitted by law and is subject to the condition that funds are properly appropriated, allotted, or otherwise properly made available for the purpose of satisfying such obligations or liabilities.
This is a standard version of the University Limitations provision, but if a Contract is high risk or there are specific, unique limitations on University obligations that should be identified specifically, please consult with OGC as to whether a more detailed University Limitations provision would be appropriate.
8. Common Beneficial Terms.
a. Indemnity. While the University may not agree to indemnify, defend, or hold harmless a counterparty (except for certain limited circumstances), this should not discourage the University from requiring the counterparty(ies) to indemnify, defend, and hold harmless the University against claims and/or actions arising from the Contract, particularly those attributable to the acts or omissions of the counterparty(ies).
a. Proprietary business information. The University is subject to open records laws. A blanket assertion, without limitation as to time, that all of the other party’s proprietary information submitted is confidential is not acceptable. At a minimum, the other party should be required to clearly mark and designate that portion of the information submitted to the University that the other party deems confidential.
10. Data handling and security.
11. University Representations and Warranties.
12. No Arbitration.
13. Attorneys' Fees.
14. Governing Law and Jurisdiction.
15. Supplemental Terms and Conditions.
16. Force Majeure.
17. Faculty Workload.
18. Contract Modification.
19. Compliance with Laws.
20. Nondiscrimination Provision for Affiliation Agreements.
D. Execution of the Contract
3. Evidence of Authority to Sign.
4. Evidence of Business Registration of the Counterparty.
1Under Hawaiʻi law, no person may obligate the University to commitments beyond that which can be met with authorized funding. See Article VII, Section 5 of the Hawaiʻi State Constitution.↵
2 See Hawaiʻi State Constitution, Art. XIV, “Code of Ethics”; Hawaiʻi Revised Statutes Ch. 84, “Standards of Conduct”.↵
3 See, e.g., EP 12.214, Conflicts of Interest and Commitment; AP 5.504, Procedures for Disclosing and Addressing Conflicts of Interest and Commitment; AP 12.304, Procedures for Disclosing and Addressing Conflicts of Interest Related with Extramurally-Funded Activities.↵
IV. Delegation of Authority
There is no policy-specific delegation of authority.
V. Contact Information
Office of the Vice President for Legal Affairs and University General Counsel (808) 956-2211
VII. Exhibits and Appendices
November 01, 2022
TopicsContracts; signing authority; official documents