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Sponsored Project Contracting Frequently Asked Questions

Boise State University’s (University) Office of Sponsored Programs (OSP) has a track record of efficiently contracting with diverse entities, such as for-profit, nonprofit, federal, state, foreign, and higher education.  OSP works diligently to negotiate win-win agreements that accomplish the University’s and Sponsors’ objectives.  The following Frequently Asked Questions (FAQs) were developed to help potential Sponsors understand the University’s (1) regulatory environment and (2) mission to educate students and create/disseminate information.

FAQs

Does the University have any standard agreement templates?

Yes, the University has several agreement templates that have been approved by the University’s Office of the General Counsel (OGC).  The terms and conditions of these templates are consistent with Idaho law and the policies/procedures to which the University is subject.  If Sponsors can accept these terms and conditions, the agreement negotiation and signature process occurs very quickly because OSP can enter into these agreements without secondary review from OGC.  Non-exhaustive examples of these agreement templates are available here:

OSP is open to suggestions from potential sponsors about how to revise these templates to work better for the University’s partners.  Please send these suggestions to sponsoredagreements@boisestate.edu.

What type of organization is the University?

The University is a State of Idaho institution of higher education.  This is important because the University is subject to the Idaho Constitution, as well as Idaho statutes, regulations, and policies.

Can the University agree to open-ended indemnity, hold harmless, and similar clauses?

No.  The University cannot agree to open-ended indemnity, hold harmless, or similar clauses (e.g., “be responsible for” or “reimburse another party for”).  Consequently, the University’s standard provisions require each contracting party to be responsible for its own wrongful or negligent acts or omissions.  While not exhaustive, the following provisions, which apply regardless of funding source, should help you better understand the University’s restrictions:

    • Idaho Constitution Article VII, Section 11 prohibits the Idaho legislature from making an expenditure or an appropriation in excess of the tax revenue for that fiscal year.
    • Idaho Code Section 59-1015 prohibits state agencies and officers from entering into agreements that create any expense or liability in excess of an appropriation.  See also Idaho Attorney General Opinions Nos. 19-1 and 82-11.
    • Idaho Code Section 59-1016 provides that any agreement violating the indemnity requirements is void in its entirety (i.e., like it never existed).
    • From a personal standpoint for University employees, Idaho Code Section 59-1017 makes entering into such contracts a criminal misdemeanor and bars the person authorizing the agreement from state employment for four years.

Can the University agree to keep project information confidential?

Subject to some limitations, the University can generally agree to protect Sponsors’ confidential information.  However, it’s important to recognize that the University’s policies, procedures, and information systems, etc., are primarily designed to create and disseminate information.  Publishing research results is a core part of the University’s mission.  In addition, faculty performance, promotion, and tenure, as well as student academic progress, are related to the number and quality of the University’s publications.

The following are common discussion points:

    • Project results must be reasonably available for publication by the University.  If desired, Sponsors are permitted to provide non-binding comments on the University’s proposed publications and presentations. The University won’t publish Sponsors’ confidential information without prior Sponsor approval.
    • The University’s work is always subject to the Idaho Public Records Act (Idaho Code Sections 74-101 to 74-126).  Consequently, confidentiality clauses must always have an exception related to disclosures required by applicable law.  The University can agree to notify Sponsors that disclosure is required by law and provide them with opportunities to limit or condition the disclosure at their own expense.
    • The University cannot agree to accept liability related to non-employee students’ potential breaches of confidentiality.
    • The University generally does not agree to enter into secondary non-disclosure agreements with University employees.
    • The University is self-insured for cyber liability.  As described previously, the University cannot agree to open-ended liability for confidentiality breaches.
    • The University does not agree to protect confidential information in a manner in excess of reasonable care.  Because the University manages certain controlled data that are export controlled or subject to the Health Insurance Portability and Accountability Act, etc. (collectively, Controlled Data), the University generally cannot agree to protect confidential information in the manner that it treats its most restrictive data.  Protecting certain Controlled Data may be exorbitantly expensive for some projects.
    • The University generally needs at least 45 days to remove confidential information from its information systems (e.g., at the end of a project).

Can the University agree to "work for hire" or similar intellectual property clauses?

No.  Generally, the University cannot agree to “work for hire” or similar intellectual property clauses that transfer title to intellectual property generated by the University during sponsored projects.  Instead, the University generally owns intellectual property it creates itself (University IP) and jointly with Sponsors (Joint IP) and licenses them to Sponsors consistent with market research and the specifics of each situation.  The University’s intellectual property approach is governed by the Idaho State Board of Education’s (SBOE) Intellectual Property Policy and Institution Technology Licensing Guidelines, as well as the University’s Intellectual Property Policy, and considers State of Idaho taxpayers’ investments in the University’s employees, facilities, and equipment.

The following are other common discussion points:

    • Agreement terms and conditions must comply with SBOE’s and the University’s intellectual property policies.
    • The University does not own intellectual property created by non-employee students (e.g., part of students’ theses or dissertations) and cannot agree to transfer title or license it to Sponsors.
    • The University does not have intellectual property indemnity insurance and does not conduct intellectual property infringement searches.  Consequently, the University cannot warrant that University IP or Joint IP will not infringe another party’s intellectual property rights.
    • The University generally owns Joint IP (i.e., instead of the University and Sponsors each owning and managing it separately) because this (1) avoids competition between the University and Sponsors and (2) allows the University to grant exclusive licenses to the Sponsors.
    • The University grants Sponsors non-exclusive, non-transferable, perpetual, and royalty-free licenses to University IP and Joint IP for internal research and development purposes to help Sponsors determine (during their rights of first refusal) whether they want to pursue fee-bearing or royalty-bearing licenses for commercial purposes.
    • The University generally cannot agree to a specific license fee amount or royalty percentage until University IP and Joint IP have been developed and their potential values have been determined through market research.  This is to ensure that the University is a good steward of State of Idaho taxpayer investments in the University’s employees, facilities, and equipment.
    • Intellectual property created outside of agreements between the University and Sponsors (Background IP) is owned by the originating party.

Are the University's insurance policies consistent with common commercial coverage?

No.  The University is primarily self-insured with coverages limited by Idaho law and policy.  See, e.g., Idaho Code Sections 6-924 and 72-301; see also Idaho Attorney General Opinion 19-1.  The University generally cannot agree to common commercial coverage amounts (e.g., $1,000,000 per occurrence with a total aggregate of $2,000,000).

The following is a common University insurance clause:

“Each Party represents and warrants it maintains comprehensive general liability insurance and all coverages required by law sufficient for the purpose of carrying out the duties and obligations arising under this Agreement. University shall maintain, at all times applicable hereto, comprehensive liability coverage in such amounts as are prescribed by Idaho Code § 6-924 as amended from time to time, as well as worker’s compensation coverage for its employees as required by Idaho Code § 72-301 as amended from time to time. University’s liability coverage obligations shall be administered by the Administrator of the Division of Insurance Management in the Department of Administration for the State of Idaho, and may be covered, in whole or in part, by the State of Idaho’s Retained Risk Account. University shall cover its liability for worker’s compensation through the State of Idaho’s State Insurance Fund. Upon written request, a Party will furnish the other Party a certificate evidencing the insurance required by this paragraph [paragraph letter/number].”

Does the University warrant its work?

No.  The University is not a commercial vendor.  Instead, most of the work the University performs is research in various stages of maturity.  Consequently, the University expressly disclaims all warranties.

Does the University require termination for convenience clauses in its agreements?

Yes.  The University requires termination for convenience clauses in its agreements.  These clauses may be exercised by either party with approximately 60 days notice.

The University requires these provisions in case a faculty member or other key person leaves the University or is otherwise unable to continue performing the work.  Some research is so specific that the University may not have another faculty member who is available to complete the work.  The notice requirement is to satisfy certain State of Idaho HR requirements.

Do University agreements require Idaho law to apply and Idaho courts to have jurisdiction?

Yes.  As indicated above, the University is a State of Idaho institution of higher education subject to numerous requirements, limitations, and protections prescribed by Idaho law.  Consequently, the University generally requires that Idaho laws govern the interpretation of agreement terms and conditions.  In addition, while the University works diligently to avoid and resolve disputes with Sponsors, the University generally requires that all litigation related to its agreements must be initiated in the State District Court located in Ada County, Idaho.

Does the University invoice Sponsors for indirect costs?

Yes, the University invoices Sponsors for all applicable direct and indirect costs (also known as Facilities and Administrative (F&A) costs).  F&A costs are true costs for facilities, equipment, and personnel incurred by the University to support Organized Research, Instruction, and Other Sponsored Activities.  F&A costs are not profit.  Two informative videos about F&A costs include Understanding the Real Costs of Research and The Chicken Sandwich and F&A: How to Explain F&A to Your Faculty.

SBOE Policy (Section V, Subsection N, Paragraph 3) governs the University’s F&A cost recovery, including the incorporation of the University’s F&A rates that were negotiated with the Federal government.  Sponsors that are not State of Idaho governmental entities should expect to pay the University’s following F&A costs (which are compared to several other regional universities’ on-campus F&A rates):

UniversityOrganized ResearchInstructionOther Sponsored Activity
Boise State University40.5%51%33.5%
Idaho State University42%39.5%33.5%
University of Idaho47.5%58%35% (Public Service)
Brigham Young University50%47.1%N/A
University of Utah52.5%47.5%36.5%
Washington State University53%57.5%36%
University of Washington55.5%53%33.8%
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