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Contract Do’s and Don’ts

Henry W. Lavandera

Lynn Cash

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What is a contract?

Generally, a contract is a legally enforceable agreement between two or more persons or entities. Elements of a contract:

1) An offer

2) Acceptance of the offer

3) Consideration (generally consists of money)

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A contract by any other name…or “I didn’t know it was a contract, I thought it was just a…”

Memorandum of Understanding or Agreement Letter of Understanding or Agreement License Lease Sub-agreement

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General principles applying to all contracts:

1) Oral contract

2) Impossibility of performance (Force Majeure)

3) Capacity of a party

4) Amendments

5) Assignments

6) Mutuality

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Who may sign a contract on behalf of USF?

See USF Policy 0-100

The President is the only person authorized by statute and Board of Trustees Regulations to sign a contract on behalf of USF.

The President is also authorized to delegate that authority.

All USF contracts must be submitted to the Office of the General Counsel for review and approval as to form and legality, but generally not as to substantive matters.

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President’s Delegation of Authority

Similar to the law of agency where a principal may authorize his/her agent to act on his/her behalf, e.g., power of attorney.

All delegations must:1) Be in writing2) Be for a specific purpose3) Indicate whether the delegation can be further delegated

NOTE: Most common delegations are for Purchasing and Division of Sponsored Research (DSR).

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In all contracts USF must be referenced as:

The University of South Florida Board of Trustees, a public body corporate [of the State of Florida], or

The University of South Florida Board of Trustees, a public body corporate [of the State of Florida], for its ___________

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Prohibitions & other considerations in USF contracts:

1) USF cannot indemnify or hold harmless the other party due to the limited waiver of sovereign immunity found in Sec. 768.28, Florida Statutes.

2) USF is self insured under Sec. 768.28, Florida Statutes and cannot be required to obtain insurance as a condition of a contract.

3) Jurisdiction and venue. (Usually state or federal court in Tampa)

4) Must be in writing, no oral contracts.

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Prohibitions & other considerations in USF contracts: (cont’d.)

5) Public records. Other party must allow access to all documents. (In sec. 1004.22, F.S. there is an exception for records relating to sponsored research. Information that must be made available is: title & description of research project, name of researcher & amount and source of project funding.)

6) Other party may not assign the contract unless USF approves of the assignment in writing OR without the prior written consent of USF.

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USF Affiliated Entitles Generally Direct Support Organizations under Sec. 1004.28,

Florida Statutes.

Defined as “The University of South Florida ________, a Florida Corporation not for profit and a Direct Support Organization of the University of South Florida pursuant to Sec. 1004.28, Florida Statutes.

Generally the prohibitions listed above as to USF contracts do not apply to DSO contracts.

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