SMU Research

Research Contract Management

Introduction

SMU’s goal for Research Contracts is to facilitate legally enforceable agreements that meet the business needs of the University.  All agreements must meet the legal principles set forth by SMU's Office of Legal Affairs.

What is a Contract?

A binding contract exists when each of the following elements is present:

  1. an offer;
  2. an acceptance in strict compliance with the terms of the offer;
  3. a meeting of the minds;
  4. a communication that each party has consented to the agreement's terms; and
  5. execution and delivery of the contract with an intent that it be mutual and binding.

In addition, a contract must be supported by consideration. “Consideration” refers to an item of value. Consideration may be monetary or non-monetary. For example, consideration may consist of a payment from SMU to a vendor in exchange for performance by the vendor, or an exchange of performance obligations undertaken by each party.

The Director of Contracts and Technology Management and the Contract Management Specialist (CMS) review all Research related contracts and Grants that include specific terms and conditions.

The areas of "Interest" in Contract Review consist of:

Types of Agreements handled in the Office of Research and Graduate Studies are:

Sponsored Research Agreement (SRA) a contract between the University and a non-federal Sponsor for the purposes of Funding and conducting Research at the University during a specific defined timeframe. With a SRA 1)The terms negotiable (by varying degrees), 2)Project typically benefits the Sponsor, 3) Sponsor exercises some direction or control, 4) Deliverables and time frame are specified, and 5) the agreement can be modified or amended. Southern Methodist University’s primary mission, stated in the Articles of Incorporation, is “support of an educational undertaking”. A Sponsored Research Agreement must not compromise SMU’s fundamental commitment to its mission. As a result, SMU cannot agree to certain provisions that typically appear in a Contract for Services Agreement undertaken by a for-profit company. A SRA can be Fixed Price or Cost-Reimbursable.

Fixed Price Cost-Reimbursable
  • A price that is not subject to adjustment.
  • Places upon the contractor maximum risk and full responsibility for all costs.
  • It provides maximum incentive for the contractor to control costs and perform effectively.
  • University retains unexpended balance.
  • Provides for payment of allowable incurred costs, to the extent prescribed in the contract.
  • Places the least cost and performance risk on the contractor.
  • University only invoices for costs actually incurred.

Subaward / Subcontract

Under 2 CFR §200.92, Subaward (also referred to as subgrant if the prime Award is a Grant, subcontract if the prime Award is a Contract, or subagreement) means a formal, secondary agreement between the University and a qualified organization for the performance of a substantive portion of the program funded under an Award. There is often considerable confusion at the Proposal stage whether to treat a collaborator included in the SMU Budget as a Subcontractor, Contractor (Vendor), or Consultant. Please discuss this issue with your Grant Management Specialist (GMS). IDC rates apply only to the first $25,000 of a Subcontract, but applied to the total cost of goods and services provided by Contractors and Consultants. An incorrect determination may negatively affect the available dollars upon receipt of an Award. Additionally, Subcontractors that are not included in an original proposed Budget often require prior approval of the Sponsor before the project is awarded, which will delay the release of the Subcontract. 2 CFR §200.330, has identified the characteristics in the chart below to help determine if an participating organization is a subcontractor or vendor.

Subcontractor Vendor
  • Performs a substantive portion of the proposed Statement of Work incorporated into the Prime Contract.
  • Has responsibility for internal programmatic decision-making and design.
  • Is responsible for assisting the Pass-Through Entity (PTE) in meeting the goals of the project.
  • Is responsible for adhering to applicable Federal programmatic compliance requirements.
  • Retains Intellectual Property and Copyright to the work produced by the Subcontractor’s personnel.
  • Provides similar goods and services to multiple customers as part of their routine business operations.
  • Competes for customers with other like providers.
  • Does not retain Intellectual Property or Copyright to the deliverables
  • Cost Sharing is not required of a Conractor.
  • Joint authorship of publications and Intellectual Property rights are not sought by a Contractor.
  • The general terms of the Prime Contract do not flow down to the Contractor.

Sponsored Project Subaward and Subrecipient Monitoring

Contract Management Specialist (CMS) Role:
  1. The CMS will negotiate or draft the agreement according to documents received from GMS, Principal Investigator (PI) / Project Director (PD), Department, or Sponsor/Agency.
  2. The CMS will send agreement to third party for review and execution.
  3. If the third party is required to have insurance, the CMS will request the Certificate of Insurance (COI) during Step 2.
  4. After the CMS receives the partially executed agreement, the CMS will route for internal signatures via DocuSign.
Subrecipient Monitoring and Risk Assessment

A risk assessment is performed prior to the issuance of a Subaward or amendment to a Subaward. The purpose of the assessment is to evaluate each Subrecipient’s risk of noncompliance with Federal statutes, regulations, and the terms and conditions of the Subaward. Each Subrecipient is given an overall risk rating of Low to High. For purposes of determining the appropriate Subrecipient monitoring, the CMS will complete the Risk Assessment Questionnaire (RAQ) or the Continuation Assessment (CAT).

If deemed necessary, after review of the risk assessment, entities falling into the high range based on a list of factors outlined in the RAQ, may be required to provide additional technical and/or financial reporting throughout the course of the project period. Examples of High Risk Factors are:

If the Subrecipient issues cannot be resolved, the Associate Vice President of Integrity and Operations will evaluate if further actions such as; withholding payments, performing an audit or site visit, and termination of the Subaward is warranted.

Closeout of Subrecipient Awards - See Award Closeout

A Consultant is an expert who has a special field of expertise or skill. The Consultant provides professional or expert opinion, advice or services regarding information or materials in his or her field of knowledge or training to assist others in making decisions or in performing tasks. Independent contractors/external Consultants perform a service or complete a specific task without supervision or control by SMU. A Consultant may be an individual or a commercial entity and is a type of Contractor. Additional characteristics of a Consultant:

  • A Consultant’s deliverable may be intermittent throughout the project, is clearly defined, and similar other work is performed by that Consultant commercially on a routine basis.
  • A Consultant’s deliverables do not ordinarily generate patentable or copyrightable results of an original or substantive nature.
  • A Consultant is not subject to the compliance requirements of the Prime Contract.
  • A Consultant’s fee is based on an hourly or daily rate which is provided and explained in a Consultant rate proposal.
  • A Consultant’s services are on a “work for hire” basis and all Intellectual Property or copyrightable rights are assigned to SMU by the Consultant.
  • A Consulting Firm is a commercial entity whose regular business activity is to provide services similar to those proposed under the current project.

Process to Request Payment for Consultant or Contract for Services Agreement

PI / PD and Department Role
  1. Complete Independent Contractor Determination (ICD) process with Tax Compliance Office.
  2. After the Tax Compliance Office has reviewed and approved the ICD, PI / PD / Department will send ICD documents, approval, and the Contracts Intake Form to the GMS.
Grant Management Specialist Role
  • GMS will review the Budget and Award to make sure this is an allowable and allocable cost to the Sponsored Project.
  • GMS will forward the documents received by the PI / PD / Department to Contract Management Specialist (CMS).
Contract Management Specialist Role
  • CMS will draft the agreement according to documents received from PI / PD / Department and the approved Budget provided by the GMS.
  • The CMS will send agreement to third party for review and execution.
  • If the third party is required to have insurance, the CMS will request the Certificate of Insurance (COI) during Step 2.
  • After the CMS receives the partially executed agreement, the CMS will route for internal signatures via DocuSign with a copy to the GMS, PI / PD / Department and GCA Accountant.
After Execution of Agreement
  1. PI / PD / Department will complete the Purchase Requisition online via Financials.SMU.edu. The purchase requisition routes to GCA for review. GCA reviews the requisition to ensure allowability of costs, adequate Budget, etc., then the requisition will route to Purchasing.
  2. Purchasing will create a PO (for internal purposes only) for this request and attach the fully executed agreement.
  3. The CMS will send the fully executed agreement to the Consultant/contractor.
  4. Per the invoicing instructions stated in the agreement, the Consultant/contractor will invoice SMU for payment.
  5. The Consultant/ contractor should send their invoices to invoices@smu.edu.
  6. Accounts Payable will review and route the invoices via DocuSign to the PI / PD and the GCA accountant for approval and signatures.
  7. Once approved Accounts Payable will send payment to Consultant/contractor.

Non-Disclosure Agreement (NDA), also known as a Confidentiality agreement, Confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement, is a legally enforceable agreement used when organizations exchange Confidential and proprietary information with another party. This type of agreement outlines Confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to by third parties. An NDA creates a Confidential relationship between the parties to protect any type of Confidential and proprietary information. As such, an NDA protects non-public business information. NDAs can be mutual, meaning both parties are restricted in their use of the materials provided, or they can restrict the use of material by a single party.

When negotiating NDAs, SMU must consider whether the PI / PD conduct Research without compromise. Will other scholars be able to verify and/or replicate the Research results? Will the PI / PD and students involved with the project be free to publish their results? Are there any adverse financial implications for the University?

A Material Transfer Agreement (MTA) is a contract that governs the transfer of materials between institutions for use in Research. It governs the transfer of tangible Research materials between two organizations, when the recipient intends to use it for his or her own Research purposes. The MTA defines the rights of the provider and the recipient with respect to the materials and any derivatives. Biological materials, such as reagents, cell lines, plasmids, and vectors, are the most frequently transferred materials, but MTAs may also be used for other types of materials, such as chemical compounds and even some types of software. MTAs are important because they specify the rights, obligations, and restrictions of both the providing and receiving parties with respect to issues such as:

  • Ownership of materials and modifications or derivatives of the materials made by the recipient.
  • Limits on the recipient’s use of the materials and related liability.
  • Restrictions on the recipient’s ability to transfer the material, modifications, and derivatives to third parties.
  • Rights to inventions resulting from the use of the materials.
  • Rights to publish Research obtained through the use of the materials.
  • Reporting and Confidentiality obligations.

If a Researcher needs to ship material from SMU, they should contact the Director of Contracts and Technology Management before shipping their material. For additional information on Material Transfer Agreements see the Technology Management section of this handbook.

A Data Share Agreement is a formal contract that documents what data will be shared and how that data can be used. A Data Share Agreement can protect the agency providing the data; ensuring that the data will not be misused. It also prevents miscommunication on the part of the provider of the data and the agency receiving the data by making certain that any questions about data use are discussed.