UC LEGAL DOCUMENTS TRAINING

Transcription

1 UC LEGAL DOCUMENTS TRAINING

2 Background As part of P200 Program and our strategic objectives of improving UC Procurement practices, tools and resources, RFx Standardization project was kicked off in 2013 with focus on legal documents and templates: Phase 1 implemented updated T&Cs and templates for procurement of Goods and Services Phase 2 focused on Services and updates needed to support Goods & Services 11/18/2014 2

3 Desired Outcomes Establish standardized language to be used across UC Provide uniform and comprehensive agreements, regardless of whether SRS is being used Consolidate and streamline forms where appropriate Minimize legal risk Make contract authoring easier for buyers Make our documents more easily understandable by suppliers 11/18/2014 3

4 Contracting in Procurement Process Sourcing Within SRS Create Event Define Requirements REQUIRED: UC T&Cs REQUIRED: Required Supplier Information Optional: Other legal terms/appendices Collect Responses Select Apparent Awardee Negotiate Terms Author Contract Sourcing outside SRS Define Requirements Select Supplier Negotiate Terms Author Contract REQUIRED: UC T&Cs Agreement Optional: Appendices, SOW yes Agreement needed? no REQUIRED: UC T&Cs Purchase Order 11/18/2014 4

5 Inventory of UC Legal Documents Terms & Conditions Agreements Appendices UC Terms & Conditions for Goods & Services UC Terms & Conditions for Services Only Purchasing Independent Consultant Professional Services Cloud Computing Services Software License & Support Lease Purchase HIPAA Business Associate Data Security and Privacy Equipment Lease Equipment Maintenance Federal Funds (Non-Commercial) Statement of Work Others: Supplier Non-Disclosure RFx Evaluation Team Required Supplier Information 11/18/2014 5

6 UC Terms & Conditions T&Cs are baseline document for all UC contracts T&Cs are in PDF format; amendments to be made in applicable agreement NEW: T&Cs for services only developed in response to buyer needs UPDATED: T&Cs for goods and services updated to conform with T&Cs for services except as needed for goods Edited to improve flow and normalize language Provisions in Required Supplier Information that will survive RFP were moved to T&Cs 11/18/2014 6

7 UC Terms & Conditions Goods & Services 1. General 2. Term and Termination 3. Payment, Extra Charges, Taxes 4. Price Decreases 5. Inspection 6. Changes 7. Declared Valuation of Shipments 8. Title 9. Assigned Personnel; Character of Services 10. Warranties 11. Intellectual Property, Copyright and Patents 12. Indemnity 13. Insurance 14. Use of UC Name and Trademarks 15. Federal Acquisition Regulations Commercial Goods and Services 16. Equal Opportunity Affirmative Action 17. Liens 18. Premises where Services are Provided 19. Liability for UC Furnished Property 20. Cooperation 21. Conflict of Interest 22. Audit Requirements 23. Confidentiality 24. UC Whistleblower Policy 25. Environmentally Preferable Products 26. Force Majeure 27. Assignment and Subcontracting 28. No Third-Party Rights 29. Other Applicable Laws 30. Notices 31. Severability 32. Waiver 33. Amendments 34. Governing Law and Venue 35. Survival Clause UC Terms & Conditions Services Only 1. General 2. Term and Termination 3. Payment, Extra Charges, Taxes 4. Assigned Personnel; Character of Services 5. Warranties 6. Intellectual Property, Copyright and Patents 7. Indemnity 8. Insurance 9. Use of UC Name and Trademarks 10. Federal Acquisition Regulations Commercial Goods and Services 11. Equal Opportunity Affirmative Action 12. Liens 13. Premises where Services are provided 14. Liability for UC Furnished Property 15. Cooperation 16. Conflict of Interest 17. Audit Requirements 18. Confidentiality 19. UC Whistleblower Policy 20. Environmentally Preferable Products 21. Force Majeure 22. Assignment and Subcontracting 23. No Third-Party Rights 24. Other Applicable Laws 25. Notices 26. Severability 27. Waiver 28. Amendments 29. Governing Law and Venue 30. Survival Clause 7

8 Key Revisions to T&Cs Indemnity Policy BUS-63 requires supplier to indemnify UC. Old agreement contained duplicate language, which has now been streamlined. IP Previously a source of contention with suppliers, T&Cs now has provisions for work made for hire, and not made for hire. Agreement or PO must designate whether work is made for hire. Term and Termination More balanced between UC and Supplier upon termination Termination for convenience Warranties Consolidated in one section Added warranty that supplier has right to use IP in providing Services Sustainability Environmentally preferable products section added Survival section added 11/18/2014 8

9 Not Substantively Revised, but These are Key UC Protections in T&Cs: Anti-assignment Equal Opportunity Affirmative Action (legally required in all UC contracts; exact language, including bold print) Use of UC names and trademarks Expense reimbursement Insurance minimum limits 11/18/2014 9

10 Changes to Required Supplier Information PDF document, now has only text that relates to RFx event. Contract terms moved to T&Cs: No Substitutions VPAT/ADA Audit Requirements Whistleblower Water and Air Pollution (though RSI requires disclosure of violations in bid) Provisions added or strengthened: Disqualification of bidder Bidder s response needs to note technical and contract exceptions UC may consider additional factors: site visit, past performance, etc. Acceptance Period no longer in RSI. Buyer must specify in RFx. 11/18/

11 Agreements Format and flow of most agreements will be the same. Purchasing Independent Consultant Professional Services Cloud Computing Services Lease-Purchase Software License & Support HIPAA BAA Default agreement for goods and services, other than independent consultants or professional services. Agreement for independent consultant services. See BUS-34, -43 and -77 for additional guidance. Agreement for professional services. See BUS-43 for additional guidance. Agreement for cloud computing services. Not in scope; needs revision. In the process of being revised. Will look different than other agreements. Agreement for software license and support. Not in scope; needs revision. BAA currently may be used stand-alone or essentially as an appendix to other contract docs. 11/18/

12 How to Use Agreements T&Cs as baseline document Purchasing, PSA, or ICA (or specialized) Relevant Appendices Statement of Work Include in the Agreement provisions specific to the type of goods or services being acquired Service-specific or good-specific terms are added here. If increased insurance limits are desired, so specify. If federal contract number is known, specify it. Specify term (if a Master Agreement, term is for Master) Specify whether work for hire is/is not involved. May use as Master Agreement Use in conjunction with one or more Statements of Work For Master Agreements, require updated BAA with each SOW. 11/18/

13 Primary Agreements: Select One Purchasing Agreement (PA) Used for goods only, or goods & services Default agreement for non-specialized purchases Professional Services Agreement (PSA) Mimics PA Required per BUS-43 Use specifically where the service qualifies per definition Risk of not competitively bidding service Follow-on considerations Independent Consultant Agreement (ICA) Mimics PA Required per BUS-34 Use for Independent Consultants See ICA worksheet to determine applicability Follow-on considerations 11/18/

14 Deep Dive on Purchasing Agreement Can be used for Goods or Services, or both Not for professional services or independent consultants. Provisions 1. Statement of Work 2. Term of Agreement/Termination of Statement of Services 3. Purchase Order 4. Invoices and Pricing 5. Notices 6. Intellectual Property, Copyright and Patents 7. Federally Funded Contracts; Grants and Cooperative Agreements 8. Restriction Relating to Consulting Services or Similar Contracts Follow-on Contracts 9. Insurance 10. Service-Specific and/or Goods- Specific Provisions 11. Records about Individuals 12. Amendments to UC Terms and Conditions 13. Incorporated Documents 14. Entire Agreement 11/18/

15 Definition of Professional Services Public Contract Code (PCC) does not require competitive bidding of contracts for professional services (RFP). Competitive bidding may be desirable even if not required. PCC does not define professional services. Definition in BUS-43: Infrequent, technical, and/or unique functions performed by independent contractors whose occupation is the rendering of such services. While not limited to licentiates, the services are considered "professional," and the contract may run to partnerships, firms, or corporations as well as individuals. Examples of professional services include medicine and the medical arts, architectural and engineering services, management and systems consultation, research, and the performing arts. Professional services safe harbors: Services (not the supplier) require a professional license; or Supplier is able to obtain E&O insurance for the services If services are not within a safe harbor, escalate to management. 11/18/

16 Professional Services: Legal Concerns Risk of not competitively bidding if services are not professional Civil and criminal penalties Contract void Reputation risk How to prevent problems with legal prohibition against follow-on work (also applies to ICA) Definition of follow-on work Prevention through scope definition 11/18/

17 Definition of Independent Consultant BUS-34, BUS-43 and BUS-77 define independent consultant Services are advisory in nature Provide recommended course of action or personal expertise End product = transmittal of information and related to UC administration or management There are tax and employment law issues involved in whether to hire a temporary employee, or independent consultant See BUS-77 for guidance on whether to hire person as a temporary employee, and use the pre-hire worksheet 11/18/

18 Deep Dive on Business Associates Agreement (BAA) Obtaining BAA is legally required when supplier will create, receive, maintain or transmit protected health information. Annotated version is available to buyers. Says what terms are legally required and cannot be negotiated. For Master Agreements, require updated BAA with each SOW. If suppliers insist on deleting provisions or not having a BAA, first consult annotated BAA, and if needed, the Privacy Officer. HIPAA BAA was written independently of T&Cs and related agreements. Thus, terminology does not synch with that in the T&Cs. On the Roadmap: BAA as an appendix that better coordinates with T&Cs and other contract documents. 11/18/

19 Appendices Federally Funded UC Data Security & Privacy Only needed for non-commercial goods and services. T&Cs cover commercial goods and services. Use when supplier will have access to protected information (defined in section 2(A) of the Appendix). Includes Payment Card Industry data security standards provisions; PCI DSS Addendum no longer needed. Equipment Lease Use for equipment leases. Not revised. Equipment Maintenance Use for equipment maintenance. Not revised. 11/18/

20 Deep Dive on Federal Acquisition Regulations (FAR) FAR provisions accomplish two goals: Flow down FAR provisions as required by law Provide that Supplier is making certain representations to UC each time it submits an invoice. These provisions will be very helpful when we are audited. For commercial goods and services: the T&Cs include all legallyrequired FAR provisions. No Federal Appendix is required. Having this default term in T&Cs is helpful, as buyer will not always know whether goods and services have federal funding. T&Cs provision is self-limiting. Only applies as applicable. For non-commercial or custom goods and services: use Appendix Federally Funded. Flow-through from grants and cooperative agreements must be customized in agreement. 11/18/

21 Deep Dive on Data Security & Payment Card Industry Standards Data Security Appendix has been UPDATED. Definition of Protected Information is in Appendix section 2(A): Identifies a specific individual and includes: student records protected health information, or individual financial information Appendix incorporates Payment Card Industry Data Security Standards as applicable. Applies to credit card data. Previously this was a separate appendix. Terminology of Appendix Data Security and Privacy are now consistent with T&Cs and other contract documents. 11/18/

22 Overview of Statement of Work (SOW) Template Can be used for Goods and/or Services customizable & inclusive of most commonly used terms Provisions 1. Title and Description of the Scope of Services 2. Term of SOW 3. Key Tasks and Activities, Deliverables and Completion Timeframe 4. UC Obligations 5. Place(s) of Performance 6. Key Personnel 7. Reporting Requirements 8. Assumptions 9. Service Level Agreement 10. Pricing, Compensation and Payment Terms 11. Program Requirements 12. Acceptance Criteria and Testing 13. No Mandatory Use 14. Additional Terms 11/18/

23 Overview of Library of Provisions & Buyer Guide Library of Provisions includes OGCreviewed language that can be used in Agreements or as part of RFx requirements. Also includes sample language. Some key provisions: Prevailing Wages required when services are a public work as defined in the Labor Code. Sustainability where applicable Piggyback UC and CSU Buyer s Guide is organized by category and provides example transactions, pointers for key provisions to be included, and special considerations for various types of services. 11/18/

24 Cautionary Notes regarding Supplier Paper or Terms Don t use supplier paper AND UC s agreements, unless the two are rationalized for conflicting provisions. Watch out for: UC indemnifies Supplier (Standing Order 100.4(dd)(9) problem) Lengthy contract term Lack of UC termination for convenience (cost) Front-loaded Payment Terms Governing law and venue other than California; no federal court Disclaimers Limitations of Liability Alternative Dispute Resolution Force Majeure that excuses performance, within Supplier s control Late fees Provisions allowing assignment 11/18/

25 Key Takeaways Primary Changes Updated UC Terms & Conditions for Goods & Services New UC Terms & Conditions for Services Only New Purchasing Agreement (replaces Strategic Sourcing Agreement) Updated Professional Services Agreement, Independent Consultant Agreement and Statement of Work templates to streamline goods and services purchases Updated Appendix Data Security and Privacy that incorporates PCI Data Security Standard and coordinates with Terms & Conditions Best Practices It is critical for buyers to use new template documents, as they coordinate terms and eliminate ambiguities. Attach UC T&Cs with every RFx event Delete all documents you have saved to your desktop -- please get in the habit of downloading most current docs from website 11/18/

26 Resources & Supporting Materials UCOP Website Forms & Policies Official source for policies and legal documents UCOP Website - Training Page Legal documents training such as Buyer s Guide, webinar recordings Your local Subject Matter Experts (SMEs) Q&A Session (Late January 2015) Submit questions via survey to be distributed following the training /18/

27 Thank you