Award Negotiation

Terms and conditions are detailed in the award or agreement that funds a project or is incorporated in the document by reference. Sponsors regularly have their terms and conditions available on the internet or included in the funding opportunity.

These requirements can affect both financial and programmatic aspects of the project. Terms and conditions can include the frequency of technical reporting, allowable costs, and prior approval requirements. Therefore, it is important that Departmental Administrators, as well as the PD/PIs, are familiar with all the obligations that are included with accepting sponsored funding.

The Federal Research Terms and Conditions (RTC) are used by select agencies for Institutes of Higher Education (IHEs) and non-profit organizations. These clarify regulations specifically for Federal financial assistance programs (grants and cooperative agreements) provided for research and research-related projects. Awards issued under the RTC directly reference the terms and conditions and incorporate them by reference. These terms and conditions do not negate Federal-wide policies or Agency-specific requirements.

The RTC has recently been updated to incorporate additional information and supplements from Uniform Guidance (2 CFR §200) specifically for organizations like Universities. Current participating agencies include:

• Environmental Protection Agency (EPA)
• Federal Aviation Administration (FAA)
• National Aeronautics and Space Administration (NASA)
• National Institutes of Health (NIH)
• National Science Foundation (NSF)
• US Department of Agriculture (USDA)
• US Department of Commerce
• US Department of Energy
• US Department of Homeland Security

Contracts issued by Federal agencies use the Federal Acquisition Regulations (FAR) as their method of providing recipient institutions with terms and conditions. Individual clauses from the FAR are applied to contracts based on the activities being acquired, the type of institution providing the acquisition, and the Federal laws and regulations that apply to the activities in the contract.

The period of performance is the time between the start and end date of the project. It is the period during which the University is allowed to incur costs to complete the work required by the scope of work for the project. It is important to be aware of these time limits to properly manage the scientific progress of the project and compliantly expense funds.

Programmatic reporting is the mandatory accounting for the technical and scientific progress of the project. It is important to be aware of the schedule of reporting requirements to confirm that they can be met. If these will constitute a hardship on the programmatic staff, it is important to attempt to mitigate the issues through negotiations.

Many sponsors have rules around budgeting and expenditures using their funds. Knowing how and when funds can be spent is vital to compliant project management. All individuals involved with a project should be aware of the sponsor’s budgetary restrictions.

Sponsors prohibit certain activities unless the University requests permission in advance of the action. Project changes such as carryover, certain types of rebudgeting no-cost extensions, and types of personnel changes must be reported and approved by the sponsor before the University can proceed. All requests must be routed through your department’s Sponsored Project Specialist (SPS). It is important that those involved with a project are aware of the mandatory approvals before making any changes to the project.

Sponsors regularly mandate how the University accounts for project expenditures. It can include a reporting schedule as well as the format of the reports. Attention to the schedule is important because the University must be able to meet the requirements. If the requirements are not within the University’s abilities, OSP will negotiate the reporting terms and conditions.

Sponsors may impose requirements surrounding research subjects in addition to those in place at the University. It is important for the PD/PI and project staff to be aware of these terms and conditions so that they can take the steps needed for approval and reporting when working with research subjects.

Much of the University’s mission relates to its activities as an educational institution and the accessibility of knowledge. Publication restrictions limit the rights of researchers from publishing the results of their work. It may negatively affect the University in two ways:

• Work conducted under publication restrictions may adversely affect student activities. Publication restrictions are not just limited to published articles but also to student dissertations
• Dissemination of findings into the public sphere provides the University protection under Export Control regulations. The University functions under the Fundamental Research Exclusion. It exempts the University from certain export requirements because the work done is ordinarily published and shared within the scientific community. By conducting research under a publication restriction, the agreement puts the University’s Export Control exemptions in jeopardy.

The interests of the University are to be protected. Most sponsors will allow the University to retain the rights to copyrights and intellectual property related to and developed by sponsored projects. However, some sponsors may want to retain them instead. It may result in researchers not being able to develop their results further or incorporate their work in later research. OSP will attempt negotiations to achieve favorable intellectual property rights for both the University and researcher. Any instance where the sponsor will not provide full rights to the researcher in exchange for licensing of any inventions will be addressed with the PD/PI before accepting the agreement.

Governing Law is a clause in an agreement that specifies the agreement will be subject to the law of a particular jurisdiction. Sponsors regularly include Governing Law clauses that require the Agreement to

be subject to the laws of a given state other than North Carolina. As a state entity, the North Carolina attorney general represents the University. OSP cannot accept contract language that may limit the statutory power of the attorney general. The University may only agree to govern law and jurisdiction in the State of North Carolina or must remain silent.

Indemnification provisions allow the parties to allocate the risk of carrying out the obligations outlined in the contract. Generally, the party better suited to minimize or understand the risk is the party that should be responsible for the financial implications associated with that risk. The University is held to the NC Tort Claims Act, which limits the amount of indemnification that can be provided to other parties. OSP is required to ensure we do not contractually agree to levels of indemnity above those provided under the NC Tort Claims Act.

It is important to protect the University’s right to its name, logo, and other trademarks relating to its identity. Occasionally, agreements will not specify that a party must obtain permission to use the University’s name. UNCW needs to have the right to review and approve any use of its name by another entity. This allows the University to maintain its copyrights and prevent unauthorized use of its branding.

Assignment determines whether activities or obligations conducted under an agreement can be transferred to another party. Some agreements include terms that allow a sponsor to reassign responsibilities partially or completely to another entity with minimal notice and at their discretion. Having the project be subject to reassignment is a disadvantage to both the University and the researchers. It is important to negotiate assignment terms that require mutual consent by both parties and notice.