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Contract Review Process

Rationale

The contract review process should not be undertaken lightly. It is a rational analysis that forecasts contract risks, measures the feasibility and enforceability of the contract, and clarifies contract-related facts. Most importantly it attempts to balance operational wants and needs, opportunities for WHOI, and counterbalancing risks and exposures. The WHOI OGC can and does provide counsel and guidance to staff and the contracts WHOI enters to further their work, but a key feature in contracts is the objectives the parties want to accomplish, what obligations each party is willing to undertake, and the risks each is willing to accept. Those are questions that the OGC cannot answer alone, but needs to partner with the staff to accomplish as part of this contracts review process.

Authority

The WHOI Board grants only certain individuals at WHOI authority to execute contractual agreements on behalf of WHOI (Contract Authority). That authority is called Authority to Execute Contractual Agreements and is issued and updated by Board vote from time to time. If a person is not on this list, that person may not sign any contract, Memorandum of Understanding (MOU), partnership or other type of agreement that binds WHOI in any way. Like other agreements, Non-Disclosure and Confidentiality Agreements do not bind the Institution unless they are signed, or assented to in writing, by an individual who is specifically authorized by the WHOI Board of Trustees to bind WHOI. The Principal Investigator, Scientific Staff, or Technical Staff member, is not authorized to sign such documents on behalf of WHOI. Any contract executed in any fashion that deviates from this process may be deemed invalid. Failure to comply with the policy could be considered Employee Misconduct that could result in employee written warnings and/or discipline up to and including employment termination.

Scope

The activities of WHOI employees and departments may require contracting with various educational institutions, outside agencies, vendors, and other third parties, and these written agreements may require review, internal discussion, and negotiation before signing consistent with WHOI’s grant of contractual authority.  This contract review policy does not replace processes required by Procurement, the Grant and Contract Services Office, Marine Operations, Office of Technology Transfer, or other administrative offices. However, any contracts, other than those involving sponsored funding of basic or applied research, that have a fee, expense, or liability exposure greater than $250,000, regardless of whether WHOI is providing or receiving the service or goods, should be sent to the OGC for comment and review. In addition, review of contracts by OGC may be requested for assistance in understanding or establishing terms and liabilities, drafting language, concerns associated with performance or financial risks, and the creation of an agreement for a particular situation. Although OGC review might not be requested for a specific agreement, only one of the persons granted Authority to Execute Contractual Agreements is permitted to sign that agreement.

Contract Review Process

OGC commits to serving the community needs. As such, if this Contract Review Process is followed, we commit to an initial response in 24 hours and a substantive initial review within five business days. Contracts that require approval by a Vice President may require additional time for review.

Requesting Review of Contracts and Agreements

  • Requests for review should not be sent directly to any one lawyer at WHOI, but should follow the instructions below so the request can be recorded, tracked and followed. Sending a request without following this process will likely lead to it being missed in an inbox, delayed, or sent to the wrong person. Do not send an initial request to the General Counsel directly.
  • Confirm early in the proposal process what contracts will be required and which party will be providing the initial form of contract. If WHOI’s counterparty will be responsible for providing the initial form of contract, (i) obtain the form of the contract as soon as possible so that a review process can begin at the earliest time and (ii) confirm whether revisions will be considered/accepted. If the counterparty is not providing the initial form, the OGC will, as noted above, “create the agreement” usually by providing the appropriate agreement template.
  • If the proposal/project involves WHOI purchases of supplies or services from vendors, consult at the outset with WHOI procurement
  • Any contracts, other than as noted those involving sponsored basic or applied research, that have a fee, expense, or liability exposure greater than $250,000, regardless of whether WHOI is providing or receiving the service or goods, should be sent to the OGC for comment and review only – not for approval and/or execution.
  • Any request for OGC review should first be reviewed by one of the following: A Supervisor, Department Chair, Director or Vice President to initially assess risks, necessity of OGC review, and measures the Project or Department has considered to mitigate risks. Submission information for review should include:
    • Names of relevant WHOI contacts on the proposal/ project.
    • Summary of the need and of the project.
    • Financial commitments related to the proposal/project made by the funder or by WHOI.
    • Specific issues or deal points to be addressed in the Contract.
    • Ability for WHOI to perform the obligations under the agreement.
    • Risks to WHOI if WHOI fails to perform.
    • Risks to WHOI if the other party fails to perform.
    • Does the Contract deviate from standard WHOI templates, and if so, why.
    • Will any party to the Contract expose WHOI to a reputational risk.
    • Intellectual property explanations and expectations.
  • Intake forms can be sent to Diane McCarthy for processing: dmccarthy@whoi.edu  x2502.

Additional Steps in the Process

  • After OGC’s initial response, the submitting party will likely need to meet or have a call with the reviewing attorney to review the intake form, the project, risks and needs to facilitate meaningful comment, assist in negotiation of terms, and complete the contract. Generally, exchanges of revised versions of an agreement during negotiations should be conducted in written form and may be conducted by a senior project level individual. Should the need for discussion during negotiations arise – usually by conference call – OGC should be informed and an appropriate course of action will be determined.
  • The Authority to Execute Contracts grants signing authority to the Vice President, Director, or other supervisor who oversees the area in which the staff member is employed (i.e., marine operations contracts should be executed by the Vice President of Marine Facilities and Operations. A Contract involving a PI in any Science Department should be executed by the Deputy Director and Vice President for Research).
  • All Contracts that require approval by a Vice President should be submitted to the responsible Vice President and the OGC at least three weeks before execution – even if the Contract is in draft form.
  • Requests for legal review for non-contract questions should be submitted to the OGC two weeks before execution when possible.
REQUEST FOR LEGAL REVIEW