Management of Contracts and Memoranda of Understanding (MOUs) - Governing Policy

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Management of Contracts and Memoranda of Understanding (MOUs) - Governing Policy

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Management of Contracts and Memoranda of Understanding (MOUs) - Governing Policy

 

1. Purpose of policy

This policy addresses the administration of University agreements, such as Contracts and Memoranda of Understanding (MOUs). The University is committed to ensuring that agreements are entered into by appropriately delegated officers following due consideration of risks, benefits, other relevant requirements and accountabilities, and alignment with the University’s strategic aims. This policy deals with both legally binding Contracts and Deeds, and with Memoranda of Understanding which are formal or strategic agreements but do not bind the University in a strict legal sense.

2. Policy scope and application

2.1 This policy applies to all staff and members of University decision-making or advisory bodies, including the University Council and its Committees.

2.2 Agreements entered into on behalf of the University must be administered in a way which:

  • delivers clear benefits without incurring undue risks
  • incorporates probity, accountability, efficiency and effectiveness into their management
  • is consistent with legislation, University policies and procedures and other compliance obligations
  • is consistent with the Queensland Procurement Policy requirements and objectives, such as the advancement of government priorities, probity and achieving value for money and
  • complies with corporate governance structures.

3. Definitions

Please refer to the University’s Glossary of Terms for policies and procedures. Terms and definitions identified below are specific to these procedures and are critical to its effectiveness:

Agreement refers to both Contracts and MOUs.

Contract means an agreement between parties intended to have legal significance and involving the transfer of consideration (that is, value – financial or some other type of benefit - flowing from the beneficiary of the transaction). Contracts generally articulate business relationships for the acquisition or supply of goods or services, for the exploitation or transfer of intellectual property rights (eg. licences) or for the provision of funding.

Some contracts will require reference to other University policies and procedures including:

  • contracting capital works and related projects (for instance USC Delegations - Governing Policy, FMPM Procedure 711 – Purchase Requisitions, Orders, Specifications and Contracts)
  • provision of commercial research or consultancies (for instance Intellectual Property Policy; USC Delegations - Governing Policy, FMPM Procedure 621 – Commercial Revenue)
  • appointment of consultants (for instance USC Delegations - Governing Policy, FMPM Procedure 713 – Engaging and Managing Consultants and Contractors)
  • Intellectual property agreements.

Deed means a form of legally binding agreement that requires a high degree of formality for its creation. Execution of an agreement as a deed may occur under seal or by signing and delivery by a duly authorised signatory and ensures that the specified terms and conditions are legally enforceable, even in the absence of consideration. If the University Seal is required to be used for execution purposes it must be used and affixed to a deed in accordance with the University’s Policy on the Use of the University Seal.

Memorandum of Understanding (MOU) means a document that is intended to formalise the terms of a relationship, arrangement or understanding between the University and another party, but is not intended to be legally binding on either party. An MOU possesses moral force only, and is generally a formal, mutually agreed but diplomatic document, setting out principles, strategies and mechanisms for dealing with the common issues of the relationship. It may lead to the development of separate contracts with legal intent.

MOUs are less complex and detailed than a contract, and are limited to expressing the party’s interest in pursuing a collaboration which may lead to the development of separate contracts with legal intent. MOUs are not to be used when there is a transfer of consideration.

4. Risk Management

4.1 The University considers the integration of risk management throughout all levels of the organisation as fundamental to achieving the University’s strategic and operational objectives, as outlined in the University’s Enterprise Risk Management and Resilience – Governing Policy. Consequently, an analysis of risks and benefits must be undertaken prior to entering into an agreement, and it is the responsibility of the relevant Cost Centre Manager or financial delegate, authorised to sign the agreement, to ensure that risk management issues have been addressed. Continuous monitoring of risk during performance or over the life of the Agreement should also be undertaken and this is the responsibility of the designated Agreement Manager, as outlined Section 5 below.

4.2 Risk is also reduced significantly when an agreement contains standard terms and conditions to ensure all relevant matters are addressed, to aid interpretation and the relevant advising cost centres are consulted. Standard resources are outlined section 5 (Use of standard University agreements and consultation with advising Cost Centres) of the Management of Contracts and Memoranda of Understanding – Procedures.

4.3 Legal advice must be sought where so recommended by the advising cost centre as outlined in section 6 (Legal Advice) of the Management of Contracts and Memoranda of Understanding – Procedures.

5. Role and Responsibilities of the Agreement Manager

5.1 The delegate authorising the agreement will appoint an Agreement Manager who will normally be a University officer having expertise and/or responsibility for administration of the terms of the contract or MOU, including financial administration.

5.2 With respect to University Consultancies, External Research Grants and OLT Grants the specific roles and responsibilities of the Agreement Manager are provided in the Procedures relating to this policy.

5.3 It is the Agreement Manager’s responsibility to ensure that contracts or MOUs are monitored and/or reported on as appropriate in cooperation with the Advising Cost Centre.

5.4 Further detail is provided in section 7 (Roles and Responsibilities of the Agreement Manager) of the Management of Contracts and Memoranda of Understanding – Procedures.

6. Authority to Sign Agreements on behalf the University

6.1 The University Council has delegated authority to enter into agreements on behalf of the University to the Vice-Chancellor and President. In line with the University Governance Framework – Governing Policy, the Vice-Chancellor and President will ensure that Council is advised of any significant risks or issues relating to a contract or MOU.

6.2 The following schedule outlines the appropriate delegation for signing agreements, contracts, deeds and MOU’s:

Table One: Authority to Sign Agreements

Type of Agreement / Document Delegated to
- All Agreements with International higher education providers - Agreements involving the delivery of USC services off-shore - All coursework delivery arrangement agreements with third parties Vice-Chancellor and President
- Deeds, contracts and agreements required to be signed under seal Chancellor Deputy Chancellor Vice-Chancellor and President Any Deputy Vice-Chancellor, Chief Operating Officer, or Pro Vice-Chancellor
- Authorise learning and teaching grants Deputy Vice-Chancellor (Academic)
- Memoranda of Understanding (MOUs) Vice-Chancellor and President Deputy Vice-Chancellor (Academic)
- University contracted consultancies and relevant outside work agreements up to value $500,000 Chief Operating Officer
- University contracted consultancies and relevant outside work agreements up to value $300,000 Chief Financial Officer
- Contracted research up to value $500,000 - All external research grants up to value $500,000 - Authorise commercialisation of intellectual property agreements up to value $500,000 Deputy Vice-Chancellor (Research and Innovation)
- Contracted research up to value $300,000 - All external research grants up to value $300,000 Director, Office of Research
- Sign all software licence agreements Director, Information Technology Services
- Sign customs clearance authorities Chief Finance Officer
- WIL Placement Partner Agreement (standard USC template only) Head of School
- All other WIL Placement Partner Agreements Head of School and Executive Dean
- WIL Student Placement Agreement Head of School (or their nominee)
- Sign all other agreement or contracts on behalf of the University Vice-Chancellor and President
- Sign all other agreement or contracts on behalf of the University up to the limit specified in their financial delegation for Expenditure within Budget. For full details see the MyUSC>Working at USC>Finance and Purchasing>Schedules>USC Financial Management Schedule of Sub-Delegations Any Deputy Vice-Chancellor, Chief Operating Officer, Pro Vice-Chancellor, Chief Financial Officer, Executive Dean, or Director (in accordance with the University’s definition of Cost Centre Manager)

* all monetary values referred to in this document are exclusive of in-kind contributions and other non-cash items.

7. Records

The Agreement Manager is responsible for ensuring appropriate records are maintained in accordance with the University’s records management system and associated Information Management Framework – Governing Policy and Section 9. Records Management of Management of Contracts and Memoranda of Understanding - Procedures.

END

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