Contracts & Forms

Depending on the complexity of the services or goods sought by the contract, it may be necessary to seek competition via a "Request for Proposals" (RFP). This document is created by the issuing department (with the assistance of the Office of State Funded Purchasing & Contracts, if necessary) and sets forth specifications, terms, and conditions that the University requires of any contractor interested in providing the requested goods and/or services. An RFP is typically issued for large dollar amount contracts, very technical purchases (such as computer or scientific equipment), or contracts that span a number of years.

In any situation in which it is necessary to enter into a contract, please contact the Office of State Funded Purchasing and Contracts as soon as possible for procedural information.

Departments planning to retain the services of a contractor may use standard consultant or service contracts developed by the Counsels Office of the State University and approved by the State Attorney General and the State Comptroller. Copies and samples of these standard contracts may be obtained from the Office of State Funded Purchasing and Contracts.

In accordance with SUNY Procurement Policy, Item 7553, contracts and agreements entered into by the University may be signed ONLY by the University President, the Vice President for Finance and Business, or the Associate Vice President for Finance and Business and Controller. Any other University employee who signs a contractor agreement may be held personally responsible for its performance (payment, liability, etc.).

All contracts, license forms, and agreements must be submitted to the Office of State Funded Purchasing and Contracts. After review by the Contract Officer, they are forwarded to the appropriate signatory and returned to the department or contractor, as required.

Contracts are initiated after the formal procurement process has been completed. Expenditure contracts with a value of under $75,000 and revenue contracts of less than $10,000 may be approved and signed by one of the three authorized campus signatories noted above. Contracts that exceed these respective amounts must be approved by the campus signatory and by the Offices of the State Attorney General and the State Comptroller. Departments should anticipate the time required for obtaining these approvals (approximately 8 to 12 weeks) and keep in mind that the University can assume no responsibility for the terms of a contract without the comptroller's approval. Under no circumstances should work be authorized under a contract until the contract has been approved and signed by all appropriate parties.

• SUNY Document Number 7553: Purchasing and Contracts

• SUNY Document Number 7554: Construction Contracting

• SUNY Document Number 7555: Construction Related Consultant Contracting Procedures

New York State Executive Law and Estate Power and Trusts Law require, with certain exemptions that Not for Profit organizations maintain a current Charities Registration Filing. To this end, when a department indicates their desire to enter into a legal binding agreement with a Not-for-Profit it is necessary for the Office of Purchasing and Contracts to certify that the Not-for-Profit organization is current with all applicable filing requirements. The New York State Attorney General's Office certifies to the Not-for-Profits respective registration status.

An agreement between the University and a Not-for-Profit may not be executed unless the Attorney General's Office certifies to the Office of Purchasing and Contracts that the Not-for-Profit's registration is in order.

Information regarding this process and all of the necessary forms can be found at the Attorney General's website.

If you have specific questions relating to the registration, please contact the Office of the Attorney General at [email protected] or by calling their main number at 212-416-8401. If you would like to direct questions to the Office of Purchasing and Contracts, please call 518-437-4579.

An Expenditure contract is an agreement between the University and a vendor for compensation in exchange for services or commodities. Any dollar value may require an expenditure contract. All contracts should outline the following critical information: Who are the parties to the contract?; What is the purpose of the contract?; When are the conditions expected to be met?; Where will the work take place?; Why is the University engaged with this vendor?; How much does the University expect to pay as a result of the contract and how will it be paid to the Vendor?

All contracts, license forms, and agreements must be submitted to the Office of Purchasing and Contracts. After review by the Contract Officer, the documents are forwarded to the appropriate signatory and returned to the department or contractor, as required. In accordance with SUNY Document Number 7553: Purchasing and Contracts, contracts and agreements entered into by the University may be signed only by the University President, the Vice President for Finance and Business, or the Associate Vice President for Finance and Business and Controller. Any other University employee who signs a contractor agreement may be held personally responsible for its performance (payment, liability, etc.).

Contracts are initiated after the procurement process has been completed. Under no circumstances should work be authorized under a contract until the contract has been approved and signed by all appropriate parties.

• Exhibit A (021114): Standard Contract Clauses - State University of New York

• Exhibit A - 1 (011413): Affirmative Action Clauses - State University of New York

• Exhibit S: Security, Non-Disclosure and Confidentiality

• Notary Form

Generally speaking, a Consultant is an individual who, under written agreement, approved and executed by the authorized executive of the University in advance of the commencement of an obligation, performs a service(s) to a particular department or unit. Service(s) provided are typically task oriented, specific in nature and of a limited, short duration. Remuneration for the accomplishment of the service(s) is typically established as a set fee, not an hourly rate and may not exceed levels established by SUNY and/or New York State. All agreements must be supported by proper documentation regarding selection criteria, description of services, payment schedule and reasonableness of price before the University official will execute the agreement.

Remuneration for Non-Resident Aliens, pursuant to regulations issued by the NYS Office of the State Comptroller, for purposes of reporting and withholding taxes from personal service payments must be made via the University's payroll system and may not be paid as a consultant. Please contact the Office of Human Resources for assistance.

Lecturers, guest speakers and performing artists providing services up to $2,500 may be paid through the honoraria process. The Accounting Office processes honoraria.

On a limited basis a department may need to secure the services of an individual who is either a State or Research Foundation employee. In those circumstances, the University cannot enter into a direct contract with that individual. Instead such cases are handled as "Extra Service" and must be processed through the Office of Human Resources or RFHR. If approved, the individual's payment will be received in the form of a paycheck for the extra service work performed. Please contact the Office of Human Resources or RFHRl for detailed information.

Policies regarding Independent Contractors have been established to ensure that:

• Payments for services performed by individuals are classified correctly according to Internal Revenue Services (IRS) guidelines.

• Services have been obtained in accordance with University procurement rules and guidelines.

• There is no conflict of interest.

This procedure is not intended to be used to circumvent employment practices and/or recruiting requirements. Efforts should be taken, in the first instance, on the part of the account manager, to ensure proper classification of the individual when contemplating securing the service(s). Penalties may be assessed by the Internal Revenue Service (IRS), NYS Department of Labor, or NYS Worker's Compensation Board if the person is misclassified as an Consultant instead of an employee.

Remuneration for service(s) performed must be either to an employee or a Consultant. The University, as an employer, must adhere to applicable State and Federal laws. Under Federal law, it is illegal to knowingly classify an employee as a Consultant in order to avoid Affirmative Action recruitment efforts, immigration restrictions, and/or payment of taxes, fees, insurance premiums, fringe benefit/overhead charges, or to circumvent compliance with any other applicable or statutory employment regulation. It is the policy of the University at Albany to fully comply with all laws, rules and regulations regarding employment and consultant classifications.

The department representative should consult with a Purchasing Agent prior to making a contractual or financial obligation to an individual.

After a discussion with a Purchasing Agent the department will be required to submit the following items:
 

1. Justification Memo

   1. Detailing the scope of work the individual will perform and why these services will be of a consultant nature and not that of employment.

   2. Detailing the individual selection process and what practices were used to secure the individual to provide the services.

   3. Establishing reasonableness of price. Solid tangible evidence is necessary to satisfy this requirement.
       

2. State Funded Purchasing Requisition

   1. Include account authorized signature

   2. Provide sufficient funds for the current year
       

3. W-9 Taxpayer Identification Number and Certificate
    

4. Internal Revenue Services Classification Determination
    

5. Consultant for Non-State Employee Contract

   1. Contracts executed with original signature with Exhibit A (021114): Standard Contract Clauses - State University of New York and Exhibit S: Security, Non-Disclosure and Confidentiality, as well as Exhibit Z: HIPAA Business Associate Requirements when applicable

   2. Original signed Notary Certification (one each per contract)
       

6. Consultant Disclosure

   1. Form A
       

7. Procurement Lobby Act ($15,000 or greater)

   1. Report of Contact Under Procurement Lobbying (Faculty and Staff)

   2. Procurement Lobbying Act Compliance (Vendor)
       

The entire package should be submitted to the Office of Purchasing and Contracts. Once received, an acknowledgement from the Office will be sent to the end-user and a Purchasing Agent will be assigned the transaction.

The integrity of the University's financial stewardship and internal controls has been rewarded with a limited amount of flexibility in its execution of expenditure related transactions. All New York State Finance Laws, SUNY Policies and Procedures and IRS Laws apply. To the extent allowed under such law, the Office of Purchasing and Contracts will work with the department to meet their need. At the very minimum, transactions over $10,000 require full disclosure through the NYS Department of Economic Development in advance of a contractual obligation. Also, multiple transactions to the same individual within a twelve month period require special approvals and public posting. It is extremely important that you have a discussion with a Purchasing Agent in advance of your commitment.

Occasionally departments contract for specific services with contractors who are also State employees. In these cases, the University cannot enter into a direct contract with that contractor/employee. Such cases are handled as "Extra Service" and must be processed through the University Office of Human Resources. In this circumstance, the State employee (even if they are not a University employee) receives payment in the form of a regular paycheck for the extra service work performed.

Occasionally departments contract for specific services with State agencies. These services are usually defined and agreed to in a Memorandum of Understanding (MOU). The MOU sets forth many of the same elements as a contract (for example, services to be provided, payments to be rendered, performance timetables, etc.). Memorandums of Understanding can only be entered into between State Agencies. The most notable difference is the exchange of compensation which can be handled by a journal transfer.

You must include a budget with your MOU document.

• Sample Budget
• The Revenue Generating MOU and Contracts form must be completed when submitting an MOU.
• MOU Processes

Revenue contracts are created when the University will receive monetary compensation for providing a service to a company or municipality. The contract would be based on a detailed proposal outlying the services requested deliverables, time frames and payment schedule. A justification will be required to substantiate the dollar value of the contract. These contracts require the signature of the Dean in addition to that of the University Controller. Revenue contracts with a value of $25,000 or more over the life of the contract will require prior approval of the Attorney General and State Comptroller of the State of New York. Proposals must be in agreement with State and SUNY contract terms.

You must include a budget with your Revenue Contract.

• The Revenue Generating MOU and Contracts form must be completed when submitting a revenue contract.
• Exhibit A (021114): Standard Contract Clauses - State University of New York
• Exhibit S: Security, Non-Disclosure and Confidentiality
• Notary Form

Data use agreements describe how data will be used and establishes who is permitted to receive or use the data. Often times a Principal Investigator, Faculty, Staff, or Student may have a need to request permission to access data as part of their educational or research requirements/needs.

A Data Use Agreement must be reviewed by the staff of the Office of Purchasing and Contracts and executed by the authorized University official, whether there is a cost for the data or not, prior to any commitment to the organization holding the data. The agreement must note as to whether it is between the University at Albany, SUNY or the Research Foundation of the State University of New York as different terms and conditions may apply.

If the Institutional Review Board (IRB) due to human subject content or any other requirement regulates the data use, the IRB approval must be acquired before the Data Use Agreement is processed. If there is a charge associated with the data use a Purchase Requisition must accompany the agreement to the Purchasing Office.

Once the terms and conditions of the Agreement have been reviewed and further negotiated by the Office of Purchasing and Contracts, it will be returned to the requester to secure the signatures of each of the required signatory's (data owner, Principle Investigator, campus IT security, faculty advisor, etc.). It should them be returned to the Office of Purchasing and Contracts for final execution by the University official.

Questions regarding IRB procedures should be directed to the Office of Regulatory Research Compliance at 518-442-9050.

Prior to submitting a contract to the Office of State Funded Purchasing and Contracts for review and approval, contractors should sign the contract document. Depending on the dollar amount of the contract, three to five contracts with original signatures may be required. Please call the Office of State Funded Purchasing and Contracts for additional information.

For most contracts, contractor signatures must be acknowledged by a Notary Public. In addition, all contracts must incorporate New York State standard contract clauses.

• Notary Form

New York State standard contract clauses:

• Exhibit A (021114): Standard Contract Clauses - State University of New York

• Exhibit A - 1 (011413): Affirmative Action Clauses - State University of New York

• Exhibit S: Security, Non-Disclosure and Confidentiality

If you are unable to view either or both of the above exhibits, please contact the Purchasing and Contracts Office for a hard copy.

Along with the contractor's signed copies of the contract, the following documentation should be submitted to the Office of State Funded Purchasing and Contracts:

1. A requisition in the amount of the money to be encumbered for the current fiscal year, noting a valid University account number.

2. Justification for the use of a consultant, which specifies why University staff cannot provide the consulting services, why this particular consultant is able to provide the services, and the qualifications of the consultant. In addition a statement justifying the reasonableness of price will be required.

Any waivers which may be required by your department and/or division. In addition, if a contract is a sole source, a written statement to document the choice of vendor must be submitted. This explanation should detail why the vendor is uniquely qualified to provide the goods or service and provide proof that the cost is reasonable. If the value of the contract exceeds $20,000 the sole source statement is forwarded by the Office of State Funded Purchasing and Contracts to the State Comptroller for approval. The contract cannot be awarded until the sole source receives Comptroller approval.

Contracts may be amended for any variety of reasons, but most typically to extend dates, increase or decrease costs, or change services. Changes to a contract or agreement must follow the same process as the original contract (i.e. signatures and Office of the State Comptroller approval if the original was processed through that office). Please contact the Office of State Funded Purchasing and Contracts for instructions regarding contract amendments.

The State University has a policy for the use of University-controlled facilities by non-commercial organizations whose use is consistent with University purposes and is not in conflict with normal operations of the campus. Please contact the supervisor of the particular area in order to obtain specific instructions.

The procedure requires that the University issue a Revocable Permit authorizing the organization to use University facilities in accordance with campus policies and procedures.

The Facilities Use procedures are identified as SUNY item 008 and can be viewed in its entirety at the following links:

• Use of Facilities by Non-Commercial Organizations
• Use of University Facilities by Emerging Technology Enterprises
• Use of University Facilities by Commercial Enterprises

For complete guidelines, please visit the Office of the Controller's website.

• Revocable Permit Applications

Please visit the U.S. Bureau of Labor Statistics.

Chapter 10 of the Laws of 2006 amends the New York State Finance Law sections 8, 22 and 163 as well as Civil Service Law section 97 by requiring State contractors to report certain employment information to state agencies. As a result of these changes in law, State Contractors are required to disclose, by employment category, the number of persons employed to provide services under the contract, the number of hours worked and the amount paid to the contractor by the State as compensation for work performed by these employees. This includes information on any person working under any subcontracts with a State contractor.

Chapter 10 of the Laws of 2006 expands the definition of contracts for consulting services to include any contract entered into by a State agency for analysis, evaluation, research, training, data processing, computer programming, engineering, environmental, health, and mental health services, accounting, auditing, paralegal, legal, or similar services.

Chapter 10 also mandates that a vendor must report on the employment information as detailed above each year the contract is in effect. Form B "Contractor's Annual Employment Report" must be used for the annual reporting requirement and is due by May 15 of each calendar year. Form B must be submitted each year the contract is in effect and will capture historical information detailing actual employment data for the most recently concluded State fiscal year (April 1 - March 31).

Form A and Form B should be completed for contracts for consulting services in accordance with the following:

Scope of Contract: a general classification of the single category that best fits the predominate nature of the services provided under the contract.

Employment Category: the specific occupation(s), as listed in the O*NET occupational classification system, which best describe the employees providing services under the contract. (Note: To find a list of occupations, access the O*NET database.)

Number of Employees: the total number of employees in the employment category employed to provide services under the contract during the Report Period, including part time employees and employees of subcontractors.

Number of hours (to be) worked: for Form A, the total number of hours to be worked, and for Form B, the total number of hours worked during the Report Period by the employees in the employment category.

Amount Payable under the Contract: the total amount payable or paid by the State to the State contractor under the contract, for work by the employees in the employment category, for services provided during the Report Period.

Form A must be completed and returned to the University with your bid package.

Form B must be completed and submitted to:

NYS Office of the State Comptroller
Bureau of Contracts
110 State Street, 11th Floor
Albany, New York 12236
Attn: Consultant Reporting
By fax: (518) 474-8030 or (518) 473-8808

NYS Department of Civil Service
Alfred E. Smith Office Building
Albany, New York 12239

University at Albany
1400 Washington Avenue
MSC 302
Albany, New York 12222
Attn: Purchasing & Contracts
By fax: (518) 437-4571

Pursuant to the NYS Office of the State Comptroller (OSC) mandates for United States vendors and non-United States vendors, it is the responsibility of the University to collect certain documents from each vendor which the University does business with. The documentation submitted by the vendor is dependent upon the location of the vendor's organization/incorporation and on the type of procurement (goods versus services). The documentation is to be submitted to the Purchasing Agent prior to entering into a contract or issuance of a purchase order.

The following lists the items that are to be provided based on the location of the vendor's organization/incorporation:

United States vendor: If the vendor is a United States vendor they must submit a Form W-9 with a United States Taxpayer Identification Number.

Non-United States vendor:

1. If the non-United States vendor has a physical presence, which can include having an office or store in the United States or performing a service within the United States, they must provide:

   1. United States Taxpayer Identification Number;

      1. An executed OSC Foreign Vendor Registration Request form with a United States Taxpayer Identification Number; and

      2. One of the following forms:

         1. The appropriate IRS Form W-8, listed below, with a United States Taxpayer Identification Number; or

         2. IRS Form 8233, see below, with a United States Taxpayer Identification Number.

   2. If the non-United States vendor is providing a service, defined as a performance of a task or tasks which may include a material good or a quantity of material commodities, and which is subject to of any purchase or exchange, they must provide:

      1. United States Taxpayer Identification Number;

         1. An executed OSC Foreign Vendor Registration Request form with a United States Taxpayer Identification Number; and

         2. One of the following forms:

            1. The appropriate IRS Form W-8, listed below, with a United States Taxpayer Identification Number; or

            2. IRS Form 8233, see below, with a United States Taxpayer Identification Number.

   3. If the non-United States vendor has no physical presence in the United States and is not providing a service, they must provide:

      1. An executed OSC Foreign Vendor Registration Request form; and

      2. The appropriate Form W-8, listed below.

The University will need to receive a State ID from the OSC prior to entering into a contract or purchase order with a non-United States vendor has no physical presence in the United States and are not providing a service.

A Form W-8 is an IRS form that grants a foreigner an exemption from certain U.S. information return reporting and backup withholding regulations. The nature of the income drives which of four IRS Forms W-8 is to be submitted. The Form W-8s are as follows:

• IRS Form W-8BEN: Beneficial owner solely claiming foreign status or treaty benefits.

• IRS Form W-8ECI: A person claiming that income is effectively connected with the conduct of a trade or business in the United States.

• IRS Form W-8ECI or IRS Form W-8IMY: A foreign partnership, a foreign simple trust, or a foreign grantor trust.

• IRS Form W-8ECI or IRS Form W-8EXP: A foreign government, international organization, foreign central bank of issue, foreign tax exempt organization, foreign private foundation, or government of a U.S. possession that received effectively connected income or that is claiming the applicability of IRS section(s) 115(2), 501(c), 892, 895, or 1443 (b).

• IRS Form W-8IMY: A person acting as an intermediary.

A Form 8233 is to be completed if the foreign vendor is one of the following:

• The beneficial owner of income received for independent personal services performed in the United States. The vendor shall claim a tax treaty withholding exemption for part or all of the income and/or claim the daily personal exemption amount.

• The beneficial owner of income received for dependent personal services performed in the United States. The vendor shall claim a tax treaty withholding exemption for part or all of the income.

If a vendor does not have a United States Taxpayer Identification Number, the vendor will need to send a completed Form W-7 to the Internal Revenue Service at one of the following addresses:

By Mail:
Internal Revenue Service
ITIN Operation
P.O. Box 149342
Austin, TX 78714-9342

Private Delivery Service (DHL, FedEx, UPS, etc.):
Internal Revenue Service
ITIN Operation
Mail Stop 6090-AUSC
3651 S. Interregional, Hwy. 35
Austin, TX 78741-0000

In addition, a vendor can apply in person for a United States Taxpayer Identification Number through the Internal Revenue Service Acceptance Agent Program.

It may take up to 6 weeks for the Internal Revenue Service to grant a United States Taxpayer Identification Number.

Once executed, the documents can be e-mailed to [email protected], faxed to 518-437-4571, or mailed to The University at Albany, Office of Purchasing and Contracts, 1400 Washington Avenue, MSC 302, Albany, NY 12222.