BARUCH COLLEGE of THE CITY UNVERSITY OF NEW YORK

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1 BARUCH COLLEGE of THE CITY UNVERSITY OF NEW YORK CONTRACTS POLICY AND PROCESS FOR TAX LEVY, DESIGNATED FUNDS GROUP, 1 and INCOME FUND REIMBURSABLE ACCOUNTS ISSUING AUTHORITY: Office of the President RESPONSIBLE OFFICERS: Offices of the Vice President of Administration and Finance and Legal Counsel DATE ISSUED: January 25, 2013 I. PURPOSE OF POLICY: The purpose of this policy is to ensure that Baruch College can enter expeditiously into business arrangements that advance its mission and the missions of its constituent units while protecting its interests and complying with regulations of the City University of New York and New York State. This policy also recognizes the importance of vesting authority to the greatest extent possible with managers operating at the level of the various business decisions being made. The goal is to create an environment that explicitly recognizes the need for the College s several units to engage, routinely, in contracts and other agreements to achieve their College-approved strategic goals and to foster a sense of ownership among managers of those units so that they feel not only empowered to pursue contracts that serve the interests of the College but assume the responsibility for making sound judgments about the commitments they propose and accountability for the consequences. This policy: (1) outlines the procedures to process contracts; and (2) identifies the offices and/or persons with the authority to execute contracts involving tax levy, designated funds group, and income fund reimbursement for Baruch College of the City University of New York 2. II. TO WHOM THIS POLICY APPLIES: This policy applies to all members of the Baruch College community who at one time or another, may become involved in the negotiation and/or processing of contracts, including administrators, staff, and faculty. III. POLICY DEFINITIONS: Baruch College A senior college that is a constituent part of the City University of New York public university system. City University of New York (CUNY) - The nation's leading urban public university system serving approximately 24 colleges and institutions in New York City. CUNY Office of the General Counsel (OGC) Provides legal assistance and advice to the Board of Trustees, the University s central administration, and its constituent colleges. 1 Includes Executive Education Programs. 2 This policy does not apply to Baruch s College Fund, College Association, Early Learning Center, or Auxiliary Enterprises. Any contracts funded by these entities must have these entities - not Baruch College and CUNY - as a party to the agreement. Revised: July 29,

2 Contract As used in this policy and process, a contract is a document between two or more parties that legally binds the parties to: (1) perform a service; or (2) adhere to the terms of a sale, purchase, employment, or lease or rental of property, equipment, or other goods and items. Expense Contract A document evidencing an agreement to purchase a service, property, goods or equipment. Revenue Contract - A document evidencing an agreement to provide a service or sell property or equipment in exchange for compensation to the College. Goods A tangible physical product, other than real estate and investment instruments (such as securities). For example, manufactured items (i.e., office supplies), clothing, computers, and furniture are considered goods. Ownership of goods is transferred in a transaction. Service An intangible product where ownership is not transferred from one person to another for compensation. For example, a haircut is an intangible service. Services are rendered and consumed at the same time and inseparable from the person who delivers the service. License Permission to use something or do something that could not have been accomplished legally without the permission. Examples include copyright and patent licenses and use of property. Copyright- Copyright is a form of protection provided to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of a copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies of the copyrighted work, to perform the copyrighted work publicly, and to display the copyrighted work publicly. 3 Patent The grant of a right to exclude others from making, selling, or using a specific invention during a specific time period. Personal Services Contract This is usually an agreement between one party and another party whose talents are unusual, special, or unique and cannot be performed exactly the same by another. Examples include the talents of an artist, actor, writer, or professional services, such as make-up artists or stylists. A personal services contract is another form of an expense contract. Honorarium - An honorarium is a payment made to a person, other than a Baruch College employee or CUNY employee, for his or her services in a volunteer capacity or for services for which fees are not traditionally required. If Baruch College is paying an honorarium to a State employee, then New York State Ethics Rules apply. 4 3 For further guidance on intellectual property issues at Baruch College/CUNY, please refer to CUNY s Intellectual Property Policy located at 4 Please contact Baruch s Ethics Officer at (646) or the Joint Commission on Public Ethics at Revised: July 29,

3 Memorandum of Understanding ( MOU ) As used at CUNY, a Memorandum of Understanding is a written record of a service transaction between a CUNY College and a federal, state, or city entity regarding affiliations or projects. Independent Consultant/Contractor Generally, in an independent consultant/contractor relationship, the person hiring the consultant/contractor does not control what will be done and how it will be done (the manner, means and results). While there is no set of factors that determines whether an independent consultant/contractor relationship exists, the extent of control over the performance and outcome of the work to be performed is often crucial to determining the existence of an independent consultant/contractor relationship. 5 Deeds A written instrument that conveys an interest or transfers ownership of an item or property. Gift A voluntary transfer of property or interest for which no value is received (or is expected to be received) in return. Tax Levy Accounts Accounts funded by New York State taxpayer funds. Designated Fund Group Funds remitted to Baruch that are not from New York State taxpayer funds. These funds are generally funded by academic fees, program fees, facility rentals, and fees for services. Income Fund Reimbursable- Funding from self-support Baruch College programs (i.e., Continuing and Professional Studies) administered through New York State. Baruch College Office of Procurement Services - This office is responsible for processing the requests for the expenditure of resources for goods and services in accordance with regulations mandated by the State of New York and CUNY and consistent with the highest standards of ethical and responsible business practices. 5 According to the New York State Department of Labor, indicators of control may include: determining when, where and how services will be performed providing facilities, equipment, tools and supplies directly supervising the services stipulating the hours of work requiring exclusive services setting the rate of pay requiring attendance at meetings and/or training sessions requiring oral or written reports reserving the right to review and approve the work product evaluating job performance requiring prior permission for absences reserving the right to terminate the services Revised: July 29,

4 Purchase Requisition or Request A document notifying the Office of Procurement Services of items to order, the quantity, and time frame in which the items are needed. The Requisition or Requests are routed to the appropriate personnel for approval and accounting. A Purchase Requisition or Request is not a Purchase Order and cannot be used to purchase goods or services and cannot be used to authorize payment for any transaction. Purchase Order A contractual document issued by an organization s finance officer or other authorized individual for the procurement of goods or services. Although a Purchase Order is a contract, it often needs a scope of work attached if a service is to be performed. A Purchase Order includes the vendor s name and address, item description, quantity, cost per item, shipping terms, total costs, and data for State use. The Purchase Order must include standard CUNY terms and conditions and incorporate NYS Appendix A and only may be issued by the Baruch College Office of Procurement Services. Blanket Purchase Order The Baruch College Office of Procurement Services may conduct a procurement process for a specific good or service under State and CUNY rules and regulations and then issue a blanket purchase order for up to a specific amount for a specific period of time resulting from that procurement process. Purchase Requisitions or Requests must still be submitted so that purchases can be made by the Purchasing Department. The advantage of a Blanket Purchasing Order is that the procurement process does not have to be initiated each time a purchase is made for the amount and within the period originally approved for the selected vendor or service provider. Appendix A A State-issued document that contains standard clauses required for all New York State contracts, including all contracts and purchase orders where Baruch/CUNY is a party. Data remanence This is the residual data that remains in a word document after attempts to delete, remove, or erase the data. IV. CONTRACT POLICY: Because a contract is a legally binding agreement that may result in adverse consequences when breached, CUNY policy vests only in specified persons the authority to execute a contract on behalf of Baruch College and CUNY. This policy affirms these CUNYmandated roles, and insists that only persons identified as responsible agents in the contracting process may formally execute contracts. But it also recognizes the imperative of fostering responsibility and ownership of the weighty implications of entering into any agreement with any contractor, vendor or other supplier and a constituent unit of the College and the importance of trusting the business judgment of Directors, Deans Vice Presidents and other organizational leaders to make sound decisions on behalf of their units. For that reason, the signatories designated in this policy will make every effort to consult as needed with those closest to the business to be conducted under the proposed contract and to complete their review expeditiously, consistent with the timelines germane to the activity(ies) undertaken. This policy does not supersede existing procurement policy. The procurement process provides a familiar and well-tested means of entering into arrangements for certain goods and services. Revised: July 29,

5 All expense contracts covered by this policy must go through the procurement process with a purchase requisition and a purchase order. Unit managers must comply with the procurement process, which generally requires a selection process, reasonable pricing, and a justification for the selection. Please contact the Baruch College Office of Procurement Services for guidance. All verbal contracts or agreements must be reduced to writing. Furthermore, all contracts must be processed within the manner prescribed herein. Failure to following the policy and process stated herein may result in adverse consequences for CUNY and may lead to disciplinary action. V. CONTRACT FORMS: Only contract forms that have been distributed by the responsible officers listed above and approved by CUNY s Office of the General Counsel and/or Baruch College s Office of Legal Counsel may be used for agreements. Contracts or other documents presented by vendors or independent contractors are not to be accepted or signed. In instances where a form document is not available for a particular transaction, please contact the Baruch Office of Legal Counsel. CUNY-approved forms are not to be revised without the approval of CUNY s Office of General Counsel. In situations where a form has not been created and a contract must be newly drafted, please contact the Baruch College Office of Legal Counsel with the following information: 1. Name and corporate office address of vendor/contractor/service provider/client; 2. Employer Identification Number (EIN) number; 3. Term of contract (beginning and end date); 4. Summary of transaction (i.e., service to be provided, etc.); 5. If an expense contract, source of funding (i.e., DFG, etc.); and 6. Amount of funds to be received or expended as a result of the transaction. The CUNY Office of the General Counsel requires all contracts: (1) that are not on CUNY preapproved templates; or (2) are on CUNY pre-approved templates but have to be altered to accommodate the transaction, to be reviewed and approved by the CUNY Office of General Counsel as to form, regardless of the amount. 6 VI. CONTRACT PROCESS: The following work flows should be followed to process contracts in an efficient and expeditious manner: A. Independent Contractor Agreements; Expense Contracts; and Revenue Contracts involving the sale of Baruch College property or equipment 6 Please refer to Footnote 2. Revised: July 29,

6 All proposed: (1) independent contractor agreements; (2) expense contracts; and (3) revenue contracts involving the sale of Baruch College property or equipment must be submitted to the Baruch College Office of Procurement Service for processing with a Purchase Requisition. Purchasing will handle all steps involved in processing the contracts, including obtaining execution of the contracts from the proper signatories. In some cases, a scope of work attached to a Purchase Order may be sufficient if the transaction involves the purchase of goods. B. Revenue Contracts All proposed revenue contracts must be submitted to the Baruch College Office of Legal Counsel and the Vice President for Finance and Administration for review and to ensure that the contract is executed by the proper signatory. Revenue contracts on templates that have not been previously approval as to form from the CUNY Office of General Counsel must be submitted to that office for review and approval. C. Memorandums of Understanding This form of agreement is to be used only for agreements with a federal, state, or city entity involving affiliations, collaborations, or projects. The workflow for processing Memorandums of Understanding ( MOU ) is as follows: This form of agreement is to be used only for agreements with a federal, state, or city entity involving research funding or projects. The workflow for processing Memorandums of Understanding ( MOU ) is as follows: (1) The Program Director, Coordinator, Administrator, or their designees should clearly state the scope of the work to be performed. (2) All proposed MOUs must be sent in draft form simultaneously to the Baruch s Office of Legal Counsel, Baruch s Vice President for Finance and Administration, and the attorney in CUNY s Office of the General Counsel who is responsible for reviewing MOUs. Include with the proposed MOU the name and contact information of the person at the entity who prepared the draft and/or will be negotiating the MOU with Baruch/CUNY Office of the General Counsel. (3) An approved MOU will be signed by the CUNY General Counsel and the sent back to the Program Director, Coordinator, or Administrator for transmittal to the federal, state, or city entity for signature. (4) All proposed MOUs must follow this process even when no funds are being exchanged. 7 7 The CUNY Research Foundation has its own process and should not be confused with the process outlined in this policy. The Research Foundation has its own set of attorneys who review contracts. Please refer to for more information. Revised: July 29,

7 D. Software and Hardware Licenses, Information Services, Internet Services; and Computer Equipment Contracts All proposed licenses and contracts as referenced in the heading must be submitted to the Baruch College Chief Information Officer for review regarding Baruch s technological needs, technological support capability, and compatibility with current technological and electronic systems. Once the proposed license or contract has been reviewed and approved by the Chief information Officer, the proposed license and/or contract must be submitted to Purchasing with a purchase requisition for processing. E. Licenses to Use College Facilities Baruch Conference Center: All licenses to use the Baruch College Conference Center are negotiated by the Vice President for Finance and Administration or the Vice President s designee, reviewed by the Baruch College Office Legal Counsel and executed by the Vice President for Finance and Administration No other officer or employee is permitted to enter into any license agreements involving the Conference Center. Baruch Performing Arts Center: All licenses to use Baruch s Performing Arts Center are negotiated by the Vice President for Finance and Administration or the Vice President s designee, reviewed by the Baruch College Office of Legal Counsel, and executed by the Vice President for Finance and Administration. No other officer or employee is permitted to enter into any license agreements involving the Performing Arts Center. Film/Television Location Licenses: All licenses to use Baruch facilities for motion pictures or television purposes are negotiated by the Vice President for Finance and Administration or the Vice President s designee, reviewed by the Baruch College Office of Legal Counsel, and executed by the Vice President for Finance and Administration. No other officer or employee is permitted to enter into any license agreements involving the location use of Baruch s facilities. Other Facilities: All licenses to use any Baruch facility for purposes not mentioned in this section are negotiated and executed the Vice President for Finance and Administration or the Vice President s designee, with review by the Baruch College Office of Legal Counsel. No other officer or employee is permitted to enter into any license agreements involving Baruch facilities. Revised: July 29,

8 Where possible, the designee for the Vice President for Finance and Administration will be named from the office principally responsible for the management of the facility in question, consistent with the College s policy on space utilization. 8 F. Trademark, Copyright, and Patent Licenses All trademark matters concerning the licensing of Baruch and/or CUNY merchandise must be handled by the designated attorney at CUNY s Office of the General Counsel. Any proposed agreements to use copyrighted work must be prepared on the CUNYapproved form and sent to the Baruch s Office of Legal Counsel t for review. If the available form does not seem appropriate for a particular situation, please contact the Baruch Office Legal Counsel. Patent matters should be brought to CUNY s Technology Commercialization Office. G. Consent to Use Likeness or Image The likeness, image, biography, or name of any individual should not be used by Baruch College without the individual s consent. Please use the form annexed hereto. Please contact the Baruch College Office of Legal Counsel prior to modifying the form or if you have any questions regarding the completion of the form. H. Honorarium The Honorarium Agreement and the invoices for honorarium payments that are $2,000 or less are to be submitted to the Vice President for Finance and Administration for approval signatures and forwarded to the Controller s Office for Processing. Any intended honorarium payments of more than $2,000 must be approved by the Vice President for Finance and Administration prior to entering into an agreement. Any questions regarding the appropriateness of an honorarium payment should be addressed to Baruch s Legal Counsel, who is also the Baruch College Ethics Officer. I. Deed of Gifts Any proposed agreements involving monetary gifts or the donation of property are handled by the Vice President for College Advancement. Any agreement involving non-monetary gifts to the Library are negotiated by the Baruch College Chief Librarian. 8 The Space Policy is pending as of the issuance of this policy. Revised: July 29,

9 VII. SIGNATORIES: The signatories for all contracts, including gift agreements, are as follows: 1. All contracts that are valued over $100,000 must be executed by the General Counsel of CUNY. 2. All contracts that are valued between $100,000 and $20,000 must be executed by the Baruch College President or Vice President for Finance and Administration. 3. All contracts that are valued under $20,000 may be executed by either Baruch s Vice President for Finance and Administration, or the Baruch College Purchasing Director. 4. All contracts with no monetary value must be executed by the Vice President for Finance and Administration. 5. All sub-contracts that fall under New York State contracts that were negotiated and approved by the New York State Office of General Services must be approved and executed by the Purchasing Director. Please note that contracts for the same transaction cannot be divided into contracts for smaller amounts to evade the signatory requirements set forth above or New York State procurement rules. 9 Such evasion may create legal risks for Baruch and CUNY and could subject Baruch and CUNY to State sanctions. VIII. NUMBER OF COPIES OF CONTRACTS TO BE EXECUTED AND THE REPOSITORY FOR ORIGINAL CONTRACTS: A. Generally 1. Two contracts with original signatures should be signed. One contract with original signatures is retained by the outside party to the agreement and the other contract with original signatures is retained by Baruch College. All contracts are to be transmitted externally to the vendor for signature by PDF or hard copy to prevent the inadvertent transmission of data remanence (see Policy Definitions in Section III). Such remanence, which can be recovered with the proper software, may contain proprietary or privileged information. 2. All expense contracts with original signatures will be retained by the Office of Procurement Services and all revenue contracts with original signatures will be retained by the Baruch College Office of Legal Counsel. Copies may be retained locally in accordance with the record retention policy described below in Section IX. 9 For example, an order for Baruch memorabilia worth $100,000 to be distributed to freshman during orientation week cannot be subdivided into ten contracts of $10,000 each to avoid New York State bidding requirements. Revised: July 29,

10 3. Baruch s schools, departments, and units must retain a copy of any contract executed on their behalf. B. Exceptions 1. The vendor retains the original Purchase Order. Baruch retains all copies. 2. The Baruch Conferencing Center and the Baruch Performing Arts Center maintain rental contracts with original signatures. IX. RECORD RETENTION: CUNY mandates that legal agreements are to be retained for six (6) years (plus the current year) after expiration or termination, or six years (plus the current year) after final payment under contract, whichever is longer. Please consult the CUNY Record Retention Policy and Schedule at or the Baruch College Records Retention Officer at (646) for further guidance. X. DISCLAIMER: This policy and process do not form an agreement of any kind. It is for internal purposes only and may be altered, modified, or rescinded at the discretion of Baruch College and/or the City University of New York. Revised: July 29,