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House Bill 2321

CONTRACTS - SPECIAL HOUSE BILL 2321 (1997) APPROVAL/SIGNATURE AND NOTICE REQUIREMENTS

The following revised requirements became effective July 1, 1998, and will continue until otherwise advised.

In addition to the in-house requirement of contracts being signed by an official University of Oregon contract officer (or their authorized designee), there is now a requirement for prior review/signature Approval  from the Attorney General's office on certain contracts, and an Attorney General "notice" requirement on others. Implementation of this new process is the result of the passage of House Bill 2321 during the 1997 legislative session.

       DEPARTMENT OF JUSTICE (DOJ) APPROVAL/SIGNATURE REQUIREMENTS:

    Subject to the stated types and dollar thresholds (which applies to the aggregate of payments over the life of the contract, including all extensions and renewals), BEFORE any signatures obtained, send entire contract, whether income or expense-related, (and copies) to Randy Geller at UO Legal Counsel Office. He will review and send to DOJ.

     

  1. Personal/Professional Service Contracts (regardless of format, i.e., whether you use the preprinted PSC Form CO-190 or it is a more formal "text" contract). Pre-printed form PSC's will be submitted via Purchasing and Contracting Services, and "text" PSC's will be submitted via the Business Affairs Contract Administration Coordinator.

     

    1. In excess of $75,000 using current OUS (formerly OSSHE) standard language, send:

  1. PPSC Form C-190.

  2. Statement of work.

  1. In excess of $75,000 using current OUS standard language, WITH minor modifications, send:

    1. PPSC Form C-190.

    2. Statement of work.

    3. Modifications, indicating modifications.

    Note: This includes "reverse personal service contracts" in which the UO is paid for services provided by our employees to third parties.

  1. Architecture and Engineering Contracts in excess of $75,000. Facilities Services and Office of the Vice President for Finance and Administration handles/will handle these.

  2. Information Technology Contracts in excess of $75,000.These include all hardware, software, data processing services, office automation services, and telecommunication services. NOTE: If these (usually confined to software) deal with "Intellectual property", and requires us to share or release ownership of OUR work/development, the State Board Director of Legal Services must also approve - regardless of contract value.

     

  3. Athletic media agreements such as broadcast rights are considered "telecommunications" contracts under the statute, and as such must be reviewed/approved by the DOJ if they exceed $75,000.

  1. On UO-generated contract form, send whole contract (and copies), identifying which terms are from standard contract terms.
  2. On contractor-generated contract form, send whole contract (and copies).
  1. Construction and "Public Works" contracts in excess of $100,000. Facilities Services and Office of the Vice President for Finance and Administration handles/will handle these.

  2. Other public contracts in excess of $100,000, which include the following. Unless otherwise noted, DOJ approval will be via the Business Affairs Contract Administration Manager.

  1. Purchase of trade services (even if sole source).

  2. Purchase of goods (even if sole source).

  3. Purchase of real property; however, Chris Mahoney/Melinda Grier memo of 8/4/97 indicates this pertains to (4 and 5 also)

  4. Sale of real property

  5. Transfer of rights in real property

  6. Land sale contracts.

  7. Leases of real property which fall within the "exceeding $100,000, WILL require AG review/approval.

  8. Leases of personal property.

  9. Sale of personal property.

  10. Transfer of rights in personal property

  11. Intergovernmental contracts a) between UO and a unit of local (Oregon) government, i.e., city, county, school districts, political subdivisions; however, if it is also a Personal Service Contract, then the $75,000 limit applies instead.

  12. Intergovernmental contracts between UO and Federal government; however, if it is also a Personal Service Contract, then the $75,000 limit applies instead; and "grants" are EXEMPT.

  13. Athletic contest agreements and agreements with non-league teams exceeding $100,000 must be reviewed/approved.

  14. Contracts wherein UO agrees to contract exclusively with certain sponsors (i.e., Nike, Coca Cola, etc.)

  15. Purchase Orders in excess of $100,000, that are issued without any preceding contract. Would need to send P.O. and terms/conditions. PCS Issue

    1. Purchase Orders issued under a Binding Price Agreement do not need to be separately reviewed by the DOJ if:
      • The Binding Price Agreement and the form P.O. to be used were approved for legal sufficiency by DOJ.
      • The P.O. incorporates by reference the Binding Price Agreement.
      • The Binding Price Agreement and the resulting P.O. have a means of identifying specific goods or services, the time of performance or delivery, the place of performance or delivery, the form of performance or delivery, and the quantity.
      • The Binding Price Agreement includes the clause set out in OAR 137-045-0050(11)(b).

    2. Note however that Non-Binding Agreements (i.e., Boise Cascade and the UO Price Agreements/Purchase Agreements) is not a contract because the UO is not obligated to buy any specific amount of services or number of items. All it does is set out prices, terms and conditions "IF" UO decides to buy anything. Only when the UO issues a P.O. to buy XXX number of XXX at $XXX is a contract created, and thus subject as above.

  16. Cooperative Purchasing Agreements. PCS Issue

  17. Price Agreements. PCS Issue

  18. Contracts with Qualified Rehab Facilities (QRF's) PCS Issue

  19. Purchases from private, federal funding sources. Chaffins Issue

  20. Overseas purchases (contracts with "private" contractors in other countries), unless the following exemptions would apply.

  21. Research contracts from any source. Note: Wendy Robinson of the DOJ is attempting to get an exemption for all research contracts (international and interstate).

  22. Intellectual property contracts, i.e., license and royalty agreements.

  23. Bill of Sale which is not part of another Public Contract.

When submitting these for signature/approval:

    1. If UO-generated contract form, send contract (and copies), identifying which terms are standard contract terms.

    2. If contractor-generated contract form, send whole contract (and copies).

    Note: The above includes "amendments" which take the contract over the subject $75,000 or $100,000. IF the DOJ did not review/approve the original contract, and the amendment qualifies for the DOJ review/approval, a copy of the original contract will need to be submitted with the amendment.

     

    Note: These rules apply to the amount of the contract for the "life of the contract," and there is no annualization involved. So be very aware of "extensions", "amendments", "service/goods at cost increases during life of contract", etc.

     

    EXEMPTED from the DOJ review/signature approval are the following classes of contracts:

  1. Agency Contract Administration (actions taken by UO which do not change any of the terms of the contract or the price or scope of work under the contract).

  2. Change Orders for Pubic Improvement Contracts, as long as the Change Order (or public improvement contract amendment) does not exceed 10% of the total amount of the original un-amended contract. This exemption does not include the first change order under a CMGC contract that determines the guaranteed maximum price.

  3. Amendments to Public Contracts, i.e., P.O.'s, Personal/Professional Service Contracts, and other formal contracts (as opposed to Public Improvement Contracts). DOJ Business Transactions has been interpreting this exemption very strictly, i.e., if the amendment adds additional services that were not contemplated in the original contract, the amendment must be approved for legal sufficiency by DOJ, even if the change in consideration is less than 10%. With this in mind, amendments may be exempted, as long as:

    1. The original Public Contract was approved for legal sufficiency by DOJ.

    2. The aggregate increase in consideration to be paid or decrease in consideration to be received is less than 10% of the total amount of the original unamended Public Contract.

    3. The only change is to: payments in accordance with b) above; technical specifications; time of delivery; place of delivery, form of delivery; quantity; or manufacturer.

  4. Grants in general are not exempt from DOJ review; however, the following types of grants are exempt. This would cover federal student aid awards. (Reminder: IF it is interstate or international, it WILL require Attorney General approval, regardless of whether it is a grant and regardless of the amount.):

    1. Federal Cooperative Agreements in which UO receives federal money and the federal agency will be substantially involved in carrying out the program or activity with UO.

    2. Federal Grants where UO is the grantee and where UO has a Grants coordinator.

    3. Federal Pass Through Grants where UO is the grantee and passes some or all of the money on to another entity and the UO does not add any terms and conditions except those necessary to properly administer the grant and the subgrant agreement contains the clause set out in OAR 137-045-0050(7)(b). Effectively it is impossible to get a public university to agree to this clause because it is an indemnity clause.

    Gary Chaffins will oversee those which do NOT qualify.

    1. Purchase Orders issued under a Variable Delivery Contract that has been reviewed by DOJ. A Variable Delivery Contract is a contract which sets out in the contract the total amount of goods or services that UO will buy under the contract, i.e.,, $XXX of services or 25,000 widgets over time via P.O.'s or work orders. UO is contractually obligated to buy the amount of services or number of goods set out in the contract. It is a Variable Delivery Contract because it is a complete contract that specifies what is being bought, when, for what cost and has all other contract terms. An example would be a contract in which UO agrees to buy 1,000 desks; 300 on Oct. 1; 300 on Dec. 1; and 400 on March 1. P.O.'s would be issued for each of the three orders. Purchasing and Contracting Services can assist you as to a determination of this particular exemption.

    2. Employment agreements entered into pursuant to collective bargaining agreements or notices of appointment, i.e., if a coach is appointed pursuant to a notice of appointment, even if the contact exceeds $100,000, it does not require DOJ review; however, if there is a separate employment contract that exceeds $100,000, DOJ review is required.

    3. Faculty/student exchange agreements.

    4. Agreements to pay dues or membership fees.

    5. Interagency contracts between UO and another State of Oregon agency, including the Legislature, the courts, and their officers and committees.

    6. Deeds (although OSSHE/AG prepares/signs these anyway).

    7. UCC filing.

    8. Bill of sale which is part of another Public Contract would be considered Agency Contract Administration, exempt from DOJ approval; however, if the Bill of Sale is standing alone, and the value exceeds $100,000, it would require DOJ review.

    9. OUS (formerly OSSHE) wide contracts (Chancellor's Office will handle these).

    10. Purchase Order of Commercial Products. A Purchase Order issued pursuant to a public contract for the purchase of off-the-shelf goods or goods which, in accordance with standard industry practice, are purchased by specification of features from a list of features offered by the manufacturer is exempt, if such purchases are made pursuant to a State purchase order or contract form.

    11. Public contracts drafted or reviewed by Special Assistant Attorney Generals. There are two designees at the University (Melinda Grier - Legal Counsel to the President and Benjamin Rawlins - State Board Director of Legal Services), and any reviews by these two designees will be accomplished through the Business Office Contracts Manager.

    12. Bonds and Certificates of Participation if the public contract for or related to a bond or certificate of participation is issued or authorized by the Oregon State Treasurer, and bond counsel appointed in accordance with ORS 228.523 has issued an authorized opinion for the benefit or use of the bond or certificate purchasers with respect to the enforceability of the bond or certificate of participation obligations.

    13. Emergency contracts. These are contracts that are otherwise subject to review/signature approval, which (a) could not have been reasonably foreseen by the director or designee; (b) create a substantial risk of loss of funds, or loss or damage to property, or threat to the public health or safety; (c) require prompt establishment in order to preserve public safety, public funds or property, or the uninterrupted provision of government services in less than 5 business days after the date the director/designee learns of the risks. They are exempt "provided that the term of the contract does NOT exceed 30 days." See footnote.

    14. Certain investments agreements related to the purchase, sale, lease or loan of investments therein executed by or on behalf of the state or state administered trust funds or its title holding corporations by private investment managers with legally and contractually delegated discretion to make investment decision on behalf of the state or state administered trust funds.

    15. Shrink-Wrap licenses for commercially available software.

    16. Gifts and donations UNLESS there are stipulations or conditions attached which by dollar amount would require AG review/signature.

    Note: Emergency contracts. To the extent practicable, the contract should be submitted to Attorney General (through Purchasing and Contracting Services for P.O.'s or Personal/Professional Service Contracts, and through the Business Office Contracts Manager for all other formal contracts), as soon as possible prior to entering into the emergency contract. We would need to provide the Attorney General with: (a) written findings that describe the emergency; and (b) a copy of the executed emergency contract. If we intend to require the contractor to continue work beyond the term of the emergency contract (beyond 30 days), we must provide the emergency contract as amended, or a new contract, to the Attorney General for legal sufficiency review, unless otherwise exempted, not later than 10 business days before the emergency contract expires.

    The follow categories of contracts require Attorney General review/signature approval regardless of contract format or amount:

     

  1. International contracts. Contracts with foreign governments (including public universities and public agencies). Private individuals and private agencies NOT subject.

  1. Interstate contracts. Contracts between the UO and an agency or political subdivision (state, city, county, school district, etc.) of another state.

  2. Contracts with private entities in other states are NOT interstate contracts, and as such are subject to the $75,000 or $100,000 review/approval process, unless otherwise exempted.

  3. Contracts for the provision of any "legal" services.

  4.  

    ATTORNEY GENERAL APPROVAL REQUIRED PRIOR TO ADVERTISING ON FORMAL SOLICITATIONS:

    BEFORE any advertising, the AG's office must approve Invitations to Bid and Requests for Proposals for any contracts which will exceed the applicable $75,000 or $100,000 set forth above. This will be done via the Business Affairs Contracts Manager.

     

    IF we let an ITB or RFP, believing that the amount will be less than $100,000, and after solicitation find it will result in more - when we send the contract for review, we will need to include an explanation as to why the ITB/RFP was not sent for review prior to advertising.

     

    Prepared by:

    Vicki Wanner

    Rev. 7/09/2003

For more information, contact the Business Affairs Office Contracts Manager at (541)-346-3149 or Email:  EKOEHLER@UOREGON.EDU
 

 

Updated May 22, 2009