VIII. Contract Basics - FAQs
What is the purpose of this Guide?
This Guide is intended to inform university employees on the appropriate procedures for creating, reviewing, and signing university contracts. The failure to follow this guidance may result in a contract binding the university to unfavorable terms. Once a contract is signed, the university’s options for addressing difficult or unfavorable terms in the contract are limited. In addition, if an employee signs a contract without authority, that person could be held personally responsible for the contractual obligations.
What is a contract?
A “contract” is any agreement (whether in writing or oral) between the university (on behalf of any of its offices, divisions, schools, departments, etc.) and one or more external parties (usually these are contractors of goods or services or entities with which the university seeks to affiliate) that is intended to create an obligation. There must be an exchange of something of value between the parties or an obligation to take some affirmative action, such as to pay money, perform services, or provide goods. Occasionally, a contract obligates a party not to do something, such as not to disclose information. A contract may also bind a party even if the party is receiving something of value at no charge, such as a license, data use agreement or a release from liability.
A document need not be called a “contract” to be considered a legally binding instrument. A “contract” may be called an “agreement,” “terms and conditions,” “purchase order,” “letter agreement,” “subcontract,” “sub-award,” "”sub-grant,” “memorandum of understanding,” “letter of intent,” “letter of understanding,” or “waiver.” It is also possible that the document may not even have a specific title.
For a list of common types of contracts, go to Section IX “Common Types of Contract Documents”, which is the next section of this Guide.
Where do contracts come from?
Many contract documents originate from an outside party seeking a business relationship or affiliation with the university. Sometimes the university seeks out a business relationship or an affiliation and has a template created by the university that is ready to be used. Occasionally, a completely new contract needs to be created to fit a particular purpose. OGC will assist with drafting new contracts.
Should a contract be in writing?
Yes, a contract should be in writing. A well-drafted contract will protect the university’s interest and reduce the possibility of misunderstandings between the university and the other party. It can also manage expected costs and allocate risks. At a minimum, a contract should always contain the fundamental information necessary to understand the intent of the parties. Such basic information includes the names of the parties, the responsibilities and obligations of each party, the duration of the contract, the terms of payment (if any), the procedures necessary to terminate, and signature lines for execution of the contract by authorized representatives of each of the parties.
Verbal Agreements: Can I just “shake on it”?
Verbal agreements (a statement of commitment by a university employee who has or appears to have authority to bind the institution) should be avoided. Although a verbal contract may in certain instances be valid and enforceable, a written contract will help define expectations and prevent misunderstandings.
What about an agreement by Email Exchange?
Along the same lines, when engaging in e-mail communications regarding a proposed arrangement, individuals should be careful to avoid language that could be read as an immediate commitment. Whether communicating orally or via email, university employees should be clear with the other party that the communications are only negotiations and any resulting agreement between the parties is dependent on the execution of a written contract that satisfies the university’s contracting requirements.
Do I have authority to sign a contract and bind the university? Who can sign a contract (or an agreement, memorandum of understanding or other document that will bind the university to obligations or commitments)?
No employee of the university, including officers, faculty, and staff, is authorized to bind the university unless he or she has been delegated authority to do so. Such authorization must be evidenced in writing. Neither students nor student organizations have authority to bind the student organization or the university. In order to determine which individuals have authority to bind the university, please refer to the university's Signing of Contracts and Agreements Policy.
Appended to that Policy is a table of the university’s authorized signature delegations. Further information on signature authority can be found in this Guide under Section VII “Signature Authority”. Questions concerning the Policy and signature authority may be addressed to OGC.
Do “click-through” contracts need to be reviewed? How are they “clicked” by an authorized signatory of the university?
Yes, online click-through (or “click-wrap”) contracts should be properly reviewed prior to acceptance. A click-through contract is a form of agreement mostly found on the internet, where the end-user manifests acceptance of the terms and conditions of the contract by clicking an “ok” or “agree” button. Often the terms and conditions of the contract are available through a web link. Prior to accepting the contract terms and conditions send the link or a scan of the complete terms and conditions of the click-through contract to OGC, via [email protected] OGC will review the contract and follow-up with the responsible university office regarding the proper procedure for approving (“signing”) the contract. If the contract is for an item that is related to information technology or software, then GW Information Technology must also be consulted. The responsible university office is required to keep copies of all click-through contracts on file.
What is an electronic signature? Is it OK to use one? What about a copy of a signature?
An electronic signature can be one of many things – an image of a handwritten signature, a symbol, a voice print – anything used to identify the author of an electronic message or signatory of an electronic document. Many forms of electronic signatures are vulnerable to copying, tampering, and forgery.
A digital signature is a secure form of an electronic signature that can be thought of as an equivalent of a handwritten notarized signature. A digital signature is created with software that uses technology that binds a signature to a document and provides proof of signatory and is designed to resist tampering or alteration.
Currently, the university uses certain forms of electronic signatures, including digital signatures, for internal forms between departments.
Except in specific circumstances related to contract documents in the Office of Research, the university does not endorse the use of electronic signatures with external parties because of vulnerabilities. This does not, however, include a prohibition of scanned copies of manually signed contracts. Although the use of an image of a signature is discouraged (i.e., copy and pasting an image or picture of a signature into a document), it is permissible to keep a signed scanned copy of a contract. In this situation, an entire document is printed out, signed by hand, and then scanned or copied for distribution purposes.
Who do I contact for help with contracts?
Finance Directors should be able to answer your questions or point you in the right direction. The Procurement Department is responsible for most purchases of goods and services and may also be helpful, and the Office of Sponsored Projects Administration in the Office of the Vice President of Research is responsible for research proposals and agreements. Additionally, there are a number of other departments that handle common university transactions, which may be able to provide assistance. A list of those common transactions and the responsible departments can be found in this Guide under Section IV “Contracts Originating Through Other Offices (Where Procurement is Not Initially Involved)”. You also may contact OGC for assistance by emailing the contracts email at [email protected].
How do I process contracts related to sponsored research?
The Office of the Vice President for Research’s Office of Sponsored Projects Administration (SPA) is responsible for the handling of research proposals, as well as the preparation, interpretation, negotiation, and execution of agreements on behalf of the university, for projects funded by federal and state agencies, foundations, and other public and private sources. The SPA also drafts, negotiates, and executes awards and sub-awards for collaborative research. The processing of research related contracts and sub-awards are jointly coordinated by the SPA and the Procurement Department. If you are a recipient of a sponsored research grant or contract, please contact your sponsored projects manager for further guidance. Each school and Gelman Library has a sponsored projects manager; please consult the GW Research Directory to find your contact. If you seek information concerning contracts related to sponsored projects, you should reach out to the GW Office of Sponsored Projects Administration.
Are there any university approved standard contracts that I can use?
The Office of General Counsel, working with various offices, has created standard contract templates to address certain routine contractual transactions. These contract templates are generally prepared for certain user groups that have demonstrated a recurrent need and are limited to use by that group. If you think you have a need for a standard contract template, please contact OGC for assistance by emailing the contracts email at [email protected]
My contract is for IT products and services and may involve data storage/processing, or integrations, connections or access to GW computer systems. What do I need to do to make sure the products or services are OK to use?
If your contract is for any IT products or services (software, hardware, SaaS, Cloud, Web-based) or third-party data management or processing, GW Information Security requires a vendor security assessment. Assessments can be requested via the Vendor Security Assessment Request. Additionally, the Privacy Office may need to review the data processing terms, particularly if the product or service includes data management outside of the U.S. If determined to be necessary by GW IT, the Privacy Office and OGC, an addendum containing additional contractual terms related to data protection and security may be added to the contract with the vendor (e.g. GW Confidential Information Addendum or the GW Data Protection Addendum).
I have heard that the university is committed to making all digital and web content accessible and usable for everyone, what sort of products and services would be subject to an accessibility review?
If your contract is related to purchase of digital content, covers a service or capability to develop digital content or is an application or capability to display or deliver digital content to users through installed computer application, through mobile devices and mobile apps or through web based applications and services, the content must be equally accessible to individuals with disabilities. The university has committed to making all digital and web-based content accessible to all by employing principals of universal design and striving to adhere to the Web Content Accessibility Guidelines (WCAG) version 2.1, Level AA. As part of the review, the vendor should be asked to provide a Voluntary Product Accessibility Template (VPAT) (a document which evaluates how accessible a particular product is according to the Section 508 Standards) or other commensurate proof of meeting the WCAG standards. A non-compliant vendor may be required to remediate any nonconforming products or deliverables or replaced with a compliant vendor.
I have been using a form contract for many years that has worked well for me. May I continue to use it?
If your form contract has been reviewed by the Office of General Counsel within the past year, it may still be acceptable. However, please consult with OGC before proceeding. The Office of General Counsel will review the form contract and let you know whether any changes or updates may be required.
What is the proper name to use for the university in a contract? Can my school or division be a party to a contract?
All contracts should be in the full legal corporate name of the university (i.e., not the name of the school or division). That name is:
The George Washington University
If you find that identifying the responsible school or division is necessary, the contracting party may be identified as “the George Washington University on behalf of its School of ________” A contract should never be made in the name of just a school, office, division or department; the full legal corporate name of the university should always be used when first representing the institution.
A contractor sent me a statement of work instead of a contract. What should I do?
You should ask the contractor if the university has a signed master agreement with the contractor. If so, also ask for the name of the contractor’s primary contact for that master agreement. You should then send the statement of work, the name of the primary contact (if provided), and any other information you have to the Office of General Counsel by sending an email to [email protected] The Office of General Counsel will review the statement of work and assist in making sure that it is processed correctly.
Are there special requirements pertaining to international contracts?
Yes. The Office of International Programs must be involved when the other signing party is based outside of the United States. Additionally, under the following circumstances, agreements may need to be reviewed by International Programs, so find out prior to submitting for approval: (1) When there is activity occurring outside of the United States (other than research) and (2) If the agreement involves an international entity. Contact information for their office can be found in this Guide under Section IV “Contracts Originating through Other Offices (Where Procurement is Not Initially Involved)”.
What if my international contract is not in English when received; how can the university review it, if it is in the foreign language?
In order to understand the terms with which the parties are expected to comply in a contract that is not in English, the responsible university office must obtain a translation certified by a professional translator prior to submitting the contract for review through the appropriate review process (see Section V, Contract Review and Approval Process). The responsible university office can obtain professional translations of documents through the Procurement Department. Alternatively, the responsible university office may also ask the foreign contractor to provide a certified English translation by a professional translator.
What if my international contract is negotiated in English, but the foreign party wants the university to sign the final contract in English and in a foreign language?
In some cases, a foreign contractor will agree to sign only an English version of a contract. In other cases, the university and the foreign contractor will agree to sign versions of the contract in more than one language. In such cases, the responsible university office should include the English translation of the contract certified by a professional translator, along with the contract in the foreign language as appropriate, for final signature. A responsible university office may ask the foreign contractor to provide a certified English translation or may request a translation through the Procurement Department. Note that the university does not require that a contract be signed in a foreign language but is willing to do so, provided that a certified English translation is also presented for final signature.
Are there special contract requirements regarding the use of the university’s name and trademarks?
The George Washington University Name, Logo, Seal, and Color Usage Policy provides guidance on the proper use of GW’s name and trade or wordmarks. University offices must adhere to this Policy and can seek guidance from Marketing and Creative Services in the Division of External Relations, when questions arise.
When a third party requests use of a GW logo, a written contract between the university and the third party must be created. The university office initiating that contract is responsible for verifying the legitimacy of the third party’s use of the university’s name and marks. They are also responsible for monitoring the permitted use to ensure that it does not exceed the allowed scope of the permission granted as outlined in the university guidelines. In addition, the Division of External Relations should review and approve the contract before it is signed. Additional information on this process can be found in this Guide under Section VI “Step-By-Step Instructions: Contract Review and Approval Process with the Office of General Counsel”.
What is “indemnification”?
Generally speaking, an indemnification clause requires that one party take on the obligation to pay the other in the event of a loss or damage. Indemnity is the act of making someone “whole” (equal to what they have lost) or protecting them from identified losses.
Depending on the subject matter of the contract, different types of indemnification clauses might be appropriate based on the types of loss or damage could possibly be incurred under the circumstances. Indemnifications often are related to insurance requirements or insurance coverage and thus should generally be reviewed by Risk Management and Insurance. For more information on when and how to contact the Risk Management office, see this Guide under Step 2 “Collateral Review of the Contract” within Section VI “Step-By-Step Instructions: Contract Review and Approval Process with the Office of General Counsel”.
Where can I learn more about insurance obligations and the university’s insurance requirements?
The Office of Risk Management and Insurance maintains the university’s standard insurance and indemnification requirements. Insurance is required to be addressed in most contracts with university contractors to ensure that there are funds to cover identified losses to the university (such as bodily injury, property damage, or liability exposure) caused by an act or failure to act on the part of the contractor. The types of insurance and limits required are tailored to particular activities, and take into account the severity of the potential loss and not just the value of the contract.
Risk Management has prepared the Contract Insurance Matrix, available on their website. It sets forth the university’s standard insurance requirements for certain types of transactions and services. Notwithstanding the foregoing, Risk Management should always be consulted regarding specific insurance requirements. Risk Management’s review and approval of indemnification and insurance clauses is often required as part of the contract review process which is explained in this Guide under Step 2 “Collateral Review of the Contract” within Section VI “Step-By- Step Instructions: Contract Review and Approval Process with the Office of General Counsel”.
For any questions regarding indemnifications and insurance, please contact Risk Management at [email protected].
What is a worker classification form?
The worker classification form is a questionnaire concerning the work to be performed by an individual in the U.S. for the university. A separate international engagement request form is used for work to be performed by an individual overseas. If the university's relationship with the individual satisfies the Internal Revenue Service's and related common law standards for independent contractor status, the services may be contracted by using an independent contractor agreement. University offices that engage individuals to provide services must submit the required documentation for determination of each contractor's status before any services are performed or payment requests are processed. This process is managed by the GW Tax Department. More information about worker classification can be found on the Tax Department website.
Effective 2017, the Worker Classification form is no longer used for work to be conducted outside the U.S. Departments wishing to engage workers to perform services overseas must follow the process outlined on Human Resources Management & Development's website for International Hires and Placements.
A contractor has requested proof of the university’s sales tax exempt status, where do I get this?
The university has been granted an exemption from sales tax on qualifying purchases for our educational operations in the District of Columbia and from the states listed on the Tax Department website. Each state determines which goods and/or services are eligible for exemption from taxation. Be sure to determine whether the transaction is exempt from taxation or contact the Tax Department for guidance.
Sales tax exemption certificates must be presented to contractors at the time of purchase and often contractors will request proof of exemption from tax when negotiating contract terms. The Tax Department can be reached at [email protected] or at (571) 553-8313.
A contractor has requested a Form W-9 from the university. What is the Form W-9, and how do I obtain a copy?
The Form W-9 is the Internal Revenue Service form used to provide the university’s taxpayer identification number (TIN). The Form W-9 can be found at the Tax Department website.
What if a problem arises after a contract is signed?
If a responsible university office enters into a contract on behalf of the university, it is the office’s duty to ensure that the university fulfills the obligations under the contract. In addition, in the event that the other party fails to fulfill its contractual obligations to the university or if other problems arise, it is the responsible university office’s duty to bring this to the attention of the appropriate university officials, including the Office of General Counsel, to ensure that the university’s rights are enforced. If any questions or concerns arise regarding the performance of a contact or the enforcement of the university’s rights, please contact OGC by emailing [email protected]
A registered student organization wants to enter into a contract. What do we do?
The Division for Student Affairs has established policies and procedures to comply with the university's contracting requirements. They also have available standard form contracts which can be used in connection with events that student organizations may want to organize. Thus, student organizations should contact the Division for Student Affairs at (202) 994-6555 if they want to enter into a contract. Failure by students or student groups to follow the policies and procedures established by the university with respect to contracting by student organizations may constitute a violation of the Student Code of Conduct and that could result in a disciplinary action against the individual or group found to have violated such policy or procedure.
If I am purchasing a good or service with a P-Card and a contract is part of the transaction, does it need to be reviewed? Who signs it?
Any time you engage with a contractor and the contractor requires a contract to be signed (regardless of how the financial obligations will be met), the contract must go through the appropriate review process (see Section V, Contract Review and Approval Process) and be signed by an authorized GW signatory. Once a contract has been reviewed and signed by both parties, the payment to the contractor can be made through an online requisition with Procurement or by P-Card. If by P-Card, both the invoice and a properly executed copy of the contract are required as supporting documentation when submitting an expense report through the P-Card Expense Reporting process.