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Executive Policy 8.200 Executive Policy 8.200Title
Policy on Contracts and Signing Authority
Header
Executive Policy Chapter 8, Business and Finance
Executive Policy 8.200, Policy on Contracts and Signing Authority Effective Date: November 2024 Prior Dates Amended: November 1, 2017, November 1, 2018, November 1, 2019, November 1, 2020, November 2, 2021, November 1, 2022, November 1, 2023, April 5, 2024 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 2025 I. Purpose
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 II. Definitions
“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) Nancy Atmospera-Walch School of Nursing, (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, assistant or associate vice chancellors, or assistant or associate vice provosts. “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 PolicyA. Requirements for All Contracts1. 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. (2) Officers 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. (4) Deans 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 ProcessThe 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 eleven (11) 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. Appendix 4 also includes a template for authorization and consent for disclosure of personal information for students participating in an educational fieldwork or clinical experience under an affiliation agreement. All students participating in an educational fieldwork or clinical experience through the University (including University students participating in an educational fieldwork or clinical experience at a third-party facility and non-University students participating in an educational fieldwork or clinical experience at a University facility) will be required to sign an authorization and consent form. 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 two (2) standard 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. 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) Standard Facilities Use Agreement Template The standard facilities use agreement template should be used when a non-UH user requests to use or rent University facilities for all types of activities other than filming activities, in which case the customized facilities use agreement template for filming should be used (see Section III.B.4.b.(2)). The standard facilities use agreement template consists of (a) a “base” agreement which contains most of the pertinent information for a specified use, and (b) mandatory attachments covering insurance requirements (Attachment 1), general rules and restrictions for the use of University facilities (Attachment 2), requirements for the protection of minors (Attachment 3), and general terms and conditions (Attachment 4). There are three (3) versions of Attachment 4, tailored according to entity type of the prospective user. When using the standard template agreement, the UH Campus must consider use of provisions contained in available attachments, such as additional special conditions, drone use requirements, appropriate waiver and release forms, and requiring a ticketing agreement and/or a guaranty. Types of non-UH Users. There are five (5) types of non-UH users: (a) UH Affiliated Users. Entities officially affiliated with the University (“UH Affiliated Users”), including (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 Hawai‘i Foundation; (v) ʻAhahui Koa Ᾱnuenue; (vi) University Clinical, Education, and Research Associates dba University Health Partners of Hawai‘i; and (vii) Hawai‘i State Cancer Consortium Mandatory Insurance Requirements (Attachment 1). Attachment 1 to the standard facilities use agreement template describes the types of insurance coverage that may be required by a UH Campus in order for a non-UH user to use or rent University facilities on its campus. The UH Campus, in consultation with ORM, as needed, should require the appropriate insurance coverage consistent with the nature and scope of the proposed use. To the extent that any changes are sought to the standard insurance provisions in Attachment 1, approval must be obtained from ORM. Mandatory General Rules and Restrictions (Attachment 2). Attachment 2 to the template relates to the general rules and restrictions for the use of University property, and includes restrictions on damaging landscaping and prohibits certain unsafe and hazardous actions and behaviors. Mandatory Protection of Minors (Attachment 3). Attachment 3 describes requirements for a non-UH user to use a University facility for an event intended for minors, such as appropriate supervision of any minors, certification of their employees, enforcement of the non-UH user’s policies, and the obtaining of insurance in addition to indemnifying the University. Mandatory General Terms and Conditions (Attachment 4). There are three (3) versions of the mandatory general terms and conditions attachment (Attachment 4), tailored for use depending on the nature of the user, with one version for State of Hawai’i government users, a second version for federal government users, and a third version for all other non-UH users (i.e., users falling into categories (a), (c) and (e) above). The primary differences with the State government user general terms and conditions include: (1) replacing the indemnity requirement with the standard State of Hawaiʻi responsibility obligation, (2) allowing the State to satisfy the insurance requirement through its self-insurance program, (3) inserting a modified dispute resolution process that excludes the filing of a court action to resolve disputes and (4) clarifying that user obligations to perform are subject to the State government user obtaining authorized funding to cover such performance. The primary differences with the federal government user general terms and conditions include: (1) replacing the indemnity requirement with a statement on the federal government user’s liability under the United States Federal Tort Claims Act, (2) allowing the federal government user to satisfy the insurance requirement through a Proof of Insurance and Liability of the Government certificate, (3) deleting the requirement that any legal actions relating to the agreements must be filed in the First Circuit Court in Honolulu (given that it is unlikely that the federal government would agree to subject itself to the jurisdiction of Hawaiʻi courts), and (4) an acknowledgement that the federal government user’s obligation to perform, make payments and/or assume liability under the agreement is subject to funds being properly appropriated for such purpose. (2) Facilities Use Agreement for Filming A facilities use agreement for filming has been developed specifically for use when a non-UH user requests to use or rent University facilities to conduct filming activities, on either a commercial or not-for-profit basis. The facilities use agreement for filming is similar to the standard facilities use agreement templates, but includes provisions that grant the user the right to use and distribute photographs, video and sound recordings generated by its filming activities on University facilities under certain conditions. 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 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. Two (2) template participation, waiver and release forms for students participating in an out-of-state or international exchange or study abroad program are found in Appendix 6, one for use by University students participating in an out-of-state or international exchange or study abroad program (outbound students), and the other for students from out-of-state or international institutions who will be participating in an international exchange program at a University campus (inbound students). 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 Article III, Conditions of Service, Paragraph I, Letters of Hire, of the 2021-2025 Unit 7 Agreement. f. Information Technology Purchases In addition to normal procurement procedures, the Office of the Vice President for Information Technology and/or Chief Information Officer (“OVPIT/CIO”) is also 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 meet at least one of the following criteria: (a) exceeds $25,000 in the aggregate, whether it is over a single year or multiple years; or Should any purchase involve the use or exchange of data from the University’s institutional data systems, the Data Governance Process (“DGP”) will supersede this OVPIT Approval for IT Procurement process. 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”). (2) Software/subscriptions between $2,500-$25,000. Purchases of software/subscriptions in this dollar range that do not involve Protected Data (see definition in Section III.B.4.g. below) are not subject to any OVPIT/CIO process. Requesting units should work with their fiscal authorities to modify or remove noncompliant or unfavorable procurement terms. (3) 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 These purchases must be processed through the “Request OVPIT approval for non-compliant terms (shrinkwrap terms) waiver” available at: https://www.hawaii.edu/its/support-tools/. 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. Agreements that require signatures should not be run through the shrink-wrapped software/subscriptions process. Requesting units should work with their fiscal authorities to negotiate terms before signing. g. Data Commitments Involving Software and/or Services The UH System Data Governance Office (“DGO”) reviews 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 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, including cloud-based applications that require integration with any centrally-managed UH information system, such as Banner, Peoplesoft, and the Kuali Financial System are subject to this provision. This includes, without limitation, any type of data activity involving UH information systems. The following table summarizes the types of contracts reviewed by DGO and the signature authorities for those software and service contracts. Other types of agreements are also reviewed by DGO but are outside the scope of this section. For more information, go to https://datagov.intranet.hawaii.edu/dgp/
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 9A (Data Sharing Protections and Requirements for Identified Data) and Appendix 9B (Data Sharing Protections and Requirements for De-Identified Data). The review and approval process in this Section III.B.4.g. should be done concurrently with the OPM and OGC review process (when applicable). 5. Records 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 Agreements Appendix 17 contains the following educational agreement templates that involve the transfer and articulation of credit hours between a University campus and another U.S. institution (“US Affiliate”):
d. Memorandum of Agreement for Sheltered Class The Memorandum of Agreement for Sheltered Class contained in Appendix 18 should be used to formalize an arrangement where a University campus, college, school, department or unit plans, implements and/or delivers a non-credit program for individuals and/or employees of an external agency. e. Authorization and Consent for Disclosure of Personal Information The Authorization and Consent for Disclosure of Personal Information templates contained in Appendix 19 may be used in situations where University students are required to provide personal information to a third-party in connection with such student’s participation or enrollment in a credit or non-credit course or an educational fieldwork or clinical experience at or through the University. There are two Authorization and Consent templates: one for adult students (aged 18 years or older) (Appendix 19A) and one for minor students (aged 17 years or younger) (Appendix 19B). 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 Strategic Development and Partnership (OSDP 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 OSDP 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 ContractsWhen 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. 2. Address. 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. 6. Indemnification. 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). 9. Confidentiality. 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 Contract1. Authority. 2. Notarization. 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
VI. References
VII. Exhibits and Appendices
Approved Signed David Lassner October 31, 2024 Date TopicsContracts; signing authority; official documentsAttachmentsNone |