University Contracts (Policy 6030)
University Policy 6030
Last Revision Date
Vice President and Chief Financial Officer, (208) 426-1200
Office of the General Counsel, (208) 426-1203
Scope and Audience
This policy applies to all personnel involved in negotiating, executing, and administering University Contracts and to all University Contracts.
- Idaho Constitution, Article VIII, Sections 1‑2
- Idaho Constitution Article VII, Section 10, 11 and 13
- Idaho Code Title 29, Chapter 1
- Idaho Code Title 59, Chapter 10
- State Board of Education Policies V.I and J.III.3
- All University policies relating to the subject matter of a University contract
1. Policy Purpose
To define the general parameters through which a University Contract may be created, the general requirements for University review and approval of a University Contract, and establishes who in the University is authorized to execute University Contracts.
2. Policy Statement
Any writing, document, agreement or understanding between two or more parties that is intended to create or memorialize obligations or liabilities on the part of the University or any of its Units is a University Contract for purposes of this policy, regardless of the title of such writing, document or agreement. All University Contracts must be approved by the Office of the General Counsel prior to execution or otherwise binding the University to such contract, unless expressly exempt from review by this Policy. University Contracts may only be executed by an authorized University official with delegated signature authority from the CFO for University Contracts within the scope of the official’s signature authority. This policy applies regardless of financial commitment – whether the Contract is an expense Contract (the University is paying money), revenue Contract (the University is receiving money) or a zero dollar Contract (no money is exchanged but there are other obligations).
The office of the Vice President and Chief Financial Officer of Boise State University.
Any legally enforceable agreement between two or more parties, whether written or oral.
3.3 Contract Value
For purposes of this policy, Contract Value is determined based on the cumulative total dollar value of the University Contract over the entire term. For example, assume the University hires Ms. Smith to consult on a project. The University agrees to pay Ms. Smith $7,500 annually for certain consulting services and the Contract term starts August 1, 2016 and terminates July 31, 2019. The total value of the Contract would be $7,500 times three (three years), or $22,500. Revenue Contracts and expense Contracts are treated the same for purposes of this policy. Although the University strongly disfavors Contracts that auto-renew indefinitely, in the event a University Contract renews indefinitely, such Contracts are treated as having an “indeterminate” value and must in all cases be routed through OGC and executed by the CFO.
3.4 Execute or Sign
For purposes of this policy, the term “execute” or “sign” as related to a University Contract means to act with regard to a University Contract with the intent to legally bind the University. Actions may include but are not limited to signing a written document, by hand or electronically, submitting a purchase order, clicking online terms or accepting or purchasing a product subject to online terms, accepting products that contain “shrinkwrap” terms or engaging in any other process logically associated with a University Contract with the intent to sign or symbolize acceptance of the record or in any manner which may bind the University or any of its Units to the University Contract.
Boise State University Office of the General Counsel.
Boise State University Office of Sponsored Programs.
The Office of the Idaho State Board of Education.
An external entity that provides funding for a Sponsored Project, or as otherwise defined in University Policy 5030 (Office of Sponsored Programs).
3.9 Sponsored Project
A grant, contract, cooperative agreement, sub grant, subcontract, sub-recipient agreement, master agreement, task order, consortium agreement, purchase order, or memorandum of understanding (hereafter collectively referred to as a “sponsored project”) that formalizes the transfer of money or property from a sponsor in exchange for specified activities (e.g., research and development, instruction, public services etc.), and may require specific deliverables such as detailed financial and/or technical reporting by the recipient. Performance is usually to be accomplished within a specified time frame, with payment subject to revocation. It may include provisions related to intellectual property and publication rights. The University’s Office of Sponsored Programs in the Division of Research and Economic Development is responsible for accepting and administering Sponsored Projects.
A department, office, division, college or other component of the University.
3.11 University Contract
A Contract between two or more parties, one of which is the University (or any of its Units), which obligates the University in any manner or is otherwise intended to have a legal effect. This excludes internal agreements between one or more Units of the University that do not involve any external entity. A document is a University Contract regardless of the title of the document. For example, a University Contract may be titled a memorandum of understanding, license, affiliation agreement, quote, purchase order, scope of work, “clickwrap” or “shrinkwrap” agreement, end user license agreement, user agreement, services agreement, lease, purchase agreement, letter of understanding, “terms and conditions” referenced in a purchase order or quote, among other things.
4. Purpose of University Contracts
a. All University Contracts must be consistent with the overall mission of the University and any Units of the University that may be implicated. Any Special Procedures required (see Section 7.4) must be completed and documented prior to execution.
b. All University Contracts must comply with all applicable policies of Boise State University, the Idaho State Board of Education, the State of Idaho, as well as applicable state and federal laws and regulations.
c. All University Contracts must be in furtherance of an authorized public purpose and cannot be used to promote private or personal interests of an individual. Any University funds expended or committed in a University Contract must serve a public purpose and the University must receive adequate consideration. University Contracts may not primarily subsidize or benefit a private entity or private individual.
d. All University Contracts involving the award of a Sponsored Project shall be routed directly to OSP. OSP is the University office responsible for reviewing, negotiating, coordinating, and accepting University Contracts received from Sponsors (Sponsored Projects). OSP will be the party responsible for administering such University Contracts and fulfilling applicable requirements of this Policy.
e. All University Contracts involving expenditure of monies provided by a Sponsor, involving federal financial assistance, or otherwise involving or implementing a Sponsored Project shall be routed directly to Purchasing, utilizing the procedure set forth on the Purchasing website for Sponsored Project Purchases.
5. Form of University Contracts
Oral contracts and informal agreements via e-mail, verbal or other means are prohibited. Although a contract may be formed and binding on the University even if not in a formal executed writing, all University Contracts should be reduced to a writing and conform to this policy.
6. Execution of University Contracts
6.1 Signature Authority Required
For purpose of this policy, signature authority refers to the authority to execute a contract on behalf of the University. Only a University official with delegated signature authority may execute a University Contract. See Section 8, “Delegation of Signature Authority.” Executing a University Contract without authority may render the entire agreement void, may subject the signer to personal liability for any obligations to the other party(ies), and may result in disciplinary action, up to and including termination. It is the signer’s obligation to ensure compliance with this Policy prior to executing a University Contract.
6.2 Execution by Unit
If the Contract Value is within a Unit’s signature authority, the individual(s) within the Unit with the appropriate level of designated signature authority may execute the University Contract. It is the responsibility of the Unit to ensure the original documents (or counterparts) have been executed by all parties and that a record of the final, executed copy is retained for the University’s records, in accordance with the University Policy 1020 (University Records, Archives and Publications).
6.3 Execution by CFO
All University Contracts with a Contract Value outside a Unit’s signature authority must be executed by the CFO, or in the CFO’s absence by her/his formal designee, and require legal approval prior to signature. The approved University Contract will be sent by OGC to the CFO for signature. This includes University Contracts with an “indeterminate” Contract Value, including those that cannot be calculated based on the information provided in the University Contract or may be based on a percentage or variable amount.
6.4 Types of Signatures Accepted
Handwritten signatures are encouraged. However, the use of electronic signatures and electronic records of University Contracts may be permitted with approval of OGC. OGC shall approve the use of electronic signatures on University Contracts to the fullest extent permitted by law where such signatures operate as legally binding and equivalent to handwritten signatures and where appropriate security procedures can be demonstrated to properly authenticate the signature. Further information regarding currently accepted electronic signatures is available on the OGC website or by contacting OGC. For purpose of this policy, any type of signature accepted hereunder shall be deemed and referred to herein as a “signature.”
7. Approval Requirements
Unless exempt in accordance with Section 7.3, all University Contracts must be submitted for review and approval by OGC prior to execution or other acceptance of the University Contract. Special Procedure Contracts (see Section 7.4) are subject to the additional procedures that must be satisfied prior to execution. Approval of the SBOE may be required in accordance with applicable SBOE policies. Approval by SBOE will be requested by the CFO when required.
7.1 Contract Routing and OGC Approval
All University Contracts that are required to be approved by OGC must be submitted using the Contract Routing Form (the “Routing Form”) and in accordance with the checklists and instructions posted on the OGC website. . The Routing Form provides contact information, next steps in routing process, and assures the proper and timely routing of University Contracts through the signature approval process. Prior to submission, the Unit should review the University Contract to make sure the University Contract is consistent with the business deal the Unit has agreed to (e.g., payment terms are as agreed, performance metrics, timing of performance, scope of work is accurate, etc.), this Policy, and that any Special Procedures required are completed or in progress. Concerns may be addressed by the Unit prior to submission or noted to OGC for review and negotiation. The Routing Form must be completed in full and executed by a Unit level manager (e.g., Dean, Associate Dean, Director, Assistant Director, Associate Director, Business Manager, Manager, Associate Manager, Assistant Manager, Senior Manager, VP, or Associate VP) to approve submission to OGC.
7.2 OGC Approval Requirements
The following types of University Contracts require approval by OGC regardless of Contract Value.
a. All University Contracts not otherwise subject to an express exemption under this Policy.
b. Affiliation agreements, collaborative agreements, community and institutional partnerships, internship agreements, and clinical placements that are not on a University-Approved Form.
c. Contracts involving intellectual property rights of the University. See University Policy 1090 (Intellectual Property), for more information, including Contracts involving publication.
d. Contracts for banking services, financial services, student debit cards, and collection of indebtedness.
e. Contracts with terms or provisions regarding tuition waivers (See SBOE Policy V.T. Fee Waivers), discounts, or involving admission, matriculations of students, international programs, scholarships, or financial aid.
f. Air charter Contracts.
g. Athletic Contracts, including sponsorship agreements not reserved for third parties (i.e. Bronco Sports Properties) and broadcast rights agreements, but excluding game or “contest” agreements.
h. Contracts involving research/testing on human or animal subjects, or the purchase or use of controlled substances or any Contracts involving the purchase or use of genetic material.
i. Any Contract involving unusually high risk or exposure for the University, contemplating a unique obligation on the part of the University, or involving important health or safety issues.
j. Contracts on a University Approved Form with requested changes or with a Contract Value that exceeds the Unit’s signature authority.
7.3 Exemptions from OGC Approval
7.3.1 Contracts under $10,000 ($9,999.99 or less)
A Unit may review and process University Contracts with a dollar value below $10,000 without OGC review or approval, subject to the following conditions:
- Signers and designated Contract administrators must attend a mandatory training and secure approval from the CFO and OGC prior to executing University Contracts without legal approval. All University Contracts should be negotiated in accordance with the Contract Handbook provided by OGC and this Policy.
- In all cases, University Contracts may only be executed by an individual with delegated signature authority and the signer is ultimately responsible for ensuring the University Contract complies with this policy, any other applicable University policies, state and federal laws and any applicable Sponsor requirements (e.g., Sponsored Projects).
7.3.2 Contracts Using University-Approved Forms
The following University-Approved Forms do not require legal review if (a) no changes have been made to the form other than filling in blanks such as dollar amounts, term, and details regarding the business arrangement of the parties and (b) the Contract Value (throughout the entire term of the contract) is within a Unit’s signature authority. If a University-Approved Form is available, the approved form should be used instead of a vendor or third party form. The following are considered Approved University Forms:
- Contract for Services, available through the OGC website.
- Local Engagement Agreement, available through the OGC website.
- Other templates that may be listed and available through the OGC website, subject to any usage restrictions placed on their use and provided on the OGC website.
- Templates drafted by OGC and approved for a Unit’s use in particular circumstances (e.g., Affiliation Agreements, Facility Use Agreements) but such forms may only be used by the Unit for which they are approved and for the purposes for which they are approved. Unit Templates must be reviewed by OGC every five years.
7.3.3 Additional Unit-level Exemptions from Legal Review
On request by a Unit, OGC may grant additional exemptions from legal review (for example, hotel Contracts or bus charter Contracts). Such exemptions will be granted at the discretion of OGC on a case-by-case basis, subject to approval of the CFO, and documented by the CFO and OGC in a memorandum outlining the exemption.
7.4 Special Procedure Contracts
Certain types of University Contracts are subject to additional University procedures or approvals regardless of Contract Value. These University Contracts must comply with the special procedures identified on the OGC Website under “Special Procedure Contracts” prior to execution.
8. Delegation of Signature Authority
This section defines the proper delegation of authority for University officials to execute University Contracts. The proper delegation of authority to execute University Contracts is required to minimize and/or mitigate financial, legal and related risks and to ensure that appropriate fiscal and management controls are in place for the benefit of the entire University.
8.2 SBOE Assignment of Authority
The University has a centralized system of signature authority. Under SBOE Governing Policies and Procedures Section V Subsection D, authority to enter into revenue or non-revenue Contracts is assigned to the Bursar (CFO). The Bursar is responsible for appropriate reporting of Contracts to the President and the SBOE.
8.3 CFO Delegation
University Officials cannot execute or otherwise bind the University to University Contracts, regardless of Contract Value, without the express written approval of the CFO. The CFO may authorize limited delegation of signature authority to University officials (e.g., Deans, Provost, Vice Presidents, Executive Directors, and Directors) deemed to have the requisite knowledge, judgment and operational need to exercise such authority. Authority may be revoked at any time for any reason, in the sole discretion of the CFO.
- Any delegation of authority by the CFO must be expressly made in writing and is not automatic.
- Sub-Delegation Permitted. The CFO may, in their discretion, grant limited authority for the further delegation (sub-delegation) by Deans, Provost, Vice Presidents, Executive Directors, and Directors to positions with sufficient managerial authority, such as a Department Chair or Business Manager or equivalent. All sub-delegation requests must be made to the CFO in writing. Approval of such requests is at the sole discretion of the CFO. A sub-delegatee’s signature authority may not be broader than the delegator’s signature authority.
8.4 Authority to Positions
University officials may not obligate Unit facilities, programs, or services over which they do not have authority. All delegations shall be based on an individual’s position within the University at the time of the delegation. The authority associated with an appointment may not be exercised by an individual prior or subsequent to the effective dates of employment and/or appointment. When there is turnover in a position, the new individual holding the position must seek authority to be granted signature authority through the CFO in writing.
8.5 Delegate Responsibility
The person to whom authority is delegated has the responsibility to ensure commitment and adherence to SBOE and University policies, as well as programmatic and/or University objectives or requirements; verify the availability of funds for anticipated budgetary commitments; obtain legal and/or risk management review where required; monitor the Contract development process to facilitate prompt Contract resolution; secure all necessary signatures; and oversee proper performance of all Contract commitments.
8.6 Unauthorized Commitments or Agreements
Individuals do not have the authority to execute or otherwise bind the University to University Contracts unless there is a valid delegation or subdelegation of authority from the Office of the CFO in writing. Any University Contract executed without properly delegated authority is null and void when executed. If you are associated with the University and execute a University Contract without authority, you may be held personally responsible for the Contract; you may face legal actions against you individually; and, you may be subject to the full range of disciplinary actions by the University, up to and including termination of employment.
8.7 Procedure for Proper Delegation of Authority
a. All delegations of signatory authority must be in writing on the letterhead of the Office of the CFO and annually reviewed.
b. Delegations relate to positions, not to individuals. The authority associated with an appointment may not be exercised by an individual prior or subsequent to the effective dates of employment and/or appointment.
c. The delegation must include the Contract or types of Contracts the delegate is authorized to execute and may also include any applicable limitations on the scope of the delegated authority. A delegating individual may revoke or modify the authority of the delegate following consultation with their supervisor, OGC and/or the CFO.
d. Required Training
- Anyone for whom signature authority has been requested must complete signature authority training through OGC. Signature authority is not deemed effective until the training session has been completed.
- Anyone who has been delegated signature authority must complete “refresher” training every three years in order to maintain signature authority delegate status. Failure to complete the training or refresher training may result in termination of signature authority.
e. A copy of the new or renewed official delegation must be transmitted by the CFO Office within three (3) business days to OGC and University Financial Services.
f. All delegations of authority governed by this policy are deemed to be valid for a period of no more than ten (10) years unless otherwise specified; or delegation is terminated due to position turnover or disciplinary action; or delegation is terminated by the delegator (in consultation with their supervisor, OGC and/or CFO Office, as appropriate). Upon the ordinary expiration of this authority, the appropriate individual must seek continued or additional authority in writing.
g. As a matter of sound governance, any senior administrative leadership change (to include an interim/acting leadership appointment) should precipitate a review by new leadership of all existing delegations of authority under its Unit to determine whether existing delegations of authority should continue in force under the new leadership.
9. Contract Routing Form
a. All Contracts that are required to be reviewed by OGC must be submitted using the Contract Routing Form (the “Routing Form”). The Routing Form is available from OGC and can be submitted online from the OGC website at: http://generalcounsel.boisestate.edu/. The Routing Form provides contact information, next steps in routing process, and assures the proper and timely routing of University Contracts through the signature approval process. The Routing Form must be completed in full and signed by a Unit level manager (e.g., Dean, Associate Dean, Director, Assistant Director, Associate Director, Business Manager, Manager, Associate Manager, Assistant Manager, Senior Manager, VP, or Associate VP). Instructions for completing the Routing Form are available on the OGC website.
b. All University Contracts submitted to OGC must comply with the following:
(i.) The requesting Unit shall review the OGC checklist located on the OGC website prior to submitting the Contract for review.
(ii.) The requesting Unit must complete the Routing Form and include the proposed agreement and any attachments or explanations to assist in the legal review.
(iii.) Each Unit shall designate a primary contact for initiation, negotiation, and administration of the University Contract.
c. The Unit is ultimately responsible for tracking and performing the University Contract. Before submitting a University Contract for legal review, the Unit should: (a) read the Contract in its entirety; (b) determine that the terms of the proposed Contract conform to the Unit’s expectations and are satisfactory and (c) confirm that funds are available for payment, if applicable. If the terms of the Contract are not satisfactory, the Unit should inform OGC of its concerns so that OGC can assist the Unit in negotiating the applicable terms.
10. Execution of University Contracts
Upon completion of legal review, OGC will notify the Unit and provide additional guidance regarding execution of the Contract. The approved University Contract and Routing Form will be returned to the requesting Unit or forwarded for signature to the CFO or the appropriate University official for additional approval. The Unit is ultimately responsible for carrying out the terms of the Contract and monitoring compliance with the University Contract after execution.
10.1 Contract Value
a. For purposes of this policy, Contract Value is determined based on the cumulative total dollar value of the Contract over the entire term (including optional renewal terms). For example, assume the University hires Ms. Smith to consult on a project. The University agrees to pay Ms. Smith $7,500 annually for certain consulting services and the Contract term starts August 1, 2016 and terminates July 31, 2019. The total value of the Contract would be $7,500 times three (three years), or $22,500.
b. Revenue Contracts and expense Contracts are treated the same for purposes of this policy. Similarly, the Contract provided for a one-year term with two optional one-year renewals, the Contract Value would be $22,500, counting all three years at the outset. Although the University strongly disfavors Contracts that auto-renew indefinitely, in the event a University Contract renews indefinitely, such Contracts are treated as having an “indeterminate” value and must in all cases be routed through OGC and signed by the CFO.
10.2 Execution by Unit
If the Contract Value is within a Unit’s signature authority, the individual(s) within the Unit with the appropriate level of designated signature authority may execute the Contract. It is the responsibility of the Unit to ensure the original documents (or counterparts that contain facsimile signatures or scanned PDF copies of original signatures) have been executed by all parties and that a record of the final, executed copy is retained for the University’s records, in accordance with the University Policy 1020 (University Records, Archives, and Publications).
10.3 Execution by CFO or Applicable University Official
If the Contract Value is above a Department’s signature authority, the Contract will be signed by the CFO, or in the CFO’s absence, by her/his formal designee. Contracts with an indeterminate or variable amount can only be signed by the CFO her/his formal designee. This includes Contracts that cannot be calculated based on the information provided in the Contract and may be based on a percentage or variable amount. For example, if the University paid Ms. Smith $150 per hour for the term of her Contract, that would be considered indeterminate because the final Contract Value is unknown.
10.4 Approval by Idaho State Board of Education
If the Contract Value is between $500,000 and $1,000,000, approval of the State Board of Education Executive Director is required prior to signature. If the Contract Value is $1,000,000 or more, approval by the State Board of Education is required prior to signature. Notwithstanding the foregoing, certain Department of Research and Economic Development personnel can sign Contracts for Sponsored Projects for unlimited amounts. Approval will be requested by the CFO.
11. Legal Considerations: University Contracts Terms Requiring Special Consideration
There are certain University Contract provisions that are prohibited by State law (“Prohibited Provisions”). Entering into any Contract with Prohibited Provisions may render the Contract void, may subject the signer to personal civil and/or criminal liability, and may result in disciplinary action, up to and including termination. There are additional University Contract provisions that are discouraged and permitted only in limited circumstances because the provisions are discouraged by State or University policy and /.or subject the University to unforeseen costs and risks (“Non-preferred Provisions”). On the other hand, there are certain University Contract provisions that, with very few exceptions, should be included in every Contract the University enters into (“Preferred Provisions”) because the provisions are necessitated by laws or policies applicable to the University. Please consult OGC for additional information on such provisions.
11.1 Prohibited Provisions
The University does not have authority to bind the University or the State of Idaho to any of the following terms. If a University Contract contains a Prohibited Provision, the term, and in some instances, the entire contract, shall be void pursuant to Section 67‑9213, Idaho Code.
11.2 Terms Incurring Liability in Excess of Appropriation/Indemnification
The University cannot incur any indebtedness or liability beyond the term of the current Fiscal Year. In particular, the University cannot agree to “indemnify” or “hold harmless” the other party to a University Contract. Unless specifically authorized by the Idaho Legislature, terms requiring the University to indemnify another party are subject to the provisions of Idaho Code 59‑1015, Idaho Code, and require an appropriation by the Idaho Legislature. Indemnification provisions not specifically authorized by the legislature or subject to appropriation are be void pursuant to Section 67‑0213, Idaho Code, and Section 59‑1016, Idaho Code.
11.3 Sovereign Immunity and Insurance
Terms waiving the sovereign immunity of the University (State of Idaho) in any manner are prohibited. The State of Idaho, including the University, has waived its sovereign immunity for torts as described in the Idaho Tort Claims Act, Idaho Code title 6 chapter 9. The University is limited to insurance coverage provided through the State of Idaho, which is generally limited to $500,000.
The University is subject to Idaho Public Records laws, which require disclosure of certain records maintained by the University, with some limited exceptions. The University cannot agree to a confidentiality requirement that does not provide an exception for circumstances where disclosure is required by law.
13. Non-preferred Provisions
13.1 Governing Law, Jurisdiction, and Venue outside Idaho
The University, as State entity, is subject to Idaho law and cannot vary the legal provisions governing the University by contract. The 11th amendment to the United States Constitution provides limitations on the jurisdiction of federal courts over claims against the State of Idaho. Idaho Code Section 29-110 provides that contract terms prohibiting a party from enforcing its rights in Idaho courts is void. IDAPA 38.05.01.112, approved by the Idaho Legislature in 2015, provides that terms subjecting the State of Idaho to the jurisdiction of the courts of other states are void.
Idaho Code Section 29-110 provides that any term of a contract subjecting a party to arbitration conducted outside the State of Idaho is void. The University typically does not agree to arbitrate disputes; mediation is a preferred method of seeking to resolve disputes without suit.
13.3 Waiver of Jury Trial
The University will not consent to a waiver of jury trial.
13.4 Contractual Limitation on Actions
Idaho Code Section 29-110 provides that any term limiting the time to enforce a party’s rights under a contract to a time shorter that provided in Idaho law is void.
13.5 Limitations on Liability
As a public entity representing Idahoans, requests to limit the liability of a contractor are discouraged and may be authorized only in limited circumstances.
14. Preferred Provisions
There are certain provisions that should be included in every University Contract, including termination for fiscal necessity for any contract with any University obligations or liabilities beyond the current Fiscal Year. Please contact OGC for additional information.
14.1 Termination for Fiscal Necessity
Idaho Constitution Article VII, Section 11 prohibits an expenditure in excess of a legislative appropriation. Idaho Code Section 59-1015 prohibits Idaho agencies and officers from entering into contracts that create any expense or liability in excess of an appropriation. Idaho Code Section 59-1016 provides that any such contract is void. IDAPA 38.05.01.112, approved by the Idaho Legislature in 2015, contains the same provisions. An appropriation can be reduced under Idaho law through “give backs” and “hold backs” issued by the executive branch. When the University enters into a contract, it must contain the term allowing for termination for fiscal necessity to comply with these provisions. Variation of this term cannot be offered.
15. Additional Terms
Additional terms may be required based on the nature of the University Contract. Please contact OGC for further guidance or refer to the “Boise State University Supplemental Terms.”
Contract Routing Form
17. Related Information
Signature Requirements on University Contracts
February 1999; October 2007; September 2013; February 2017; March 2020