Who has authority to sign?
Arizona state law gives the Governing Board the authority to enter into contracts on behalf of the District and allows the Board to delegate its authority to the Chancellor per ARS §15-1444 B.4. (The district board may adopt such policies as are deemed necessary and may delegate in writing to the chancellor or president of the district, or their designees, all or any part of its authority to contract under this paragraph.) Any delegation of authority under this paragraph may be rescinded by the district board at any time in whole or in part. Under Governing Board Policy 3.3, the Governing Board has authorized the Chancellor to sign on its behalf or to delegate authority to others. The Chancellor has in turn authorized the Chief Operating Officer, Associate General Counsel Senior, and Director of Purchasing and Auxiliary Services to sign contracts.
The Office of General Counsel is implementing a new contracts management and approval process called Contracts Lifecycle Management (CLM). CLM is currently being used by Chandler-Gilbert Community College, GateWay Community College, Estrella Mountain Community College, Phoenix College, Rio Salado College, Scottsdale Community College, and Glendale Community College. CLM will be deployed in October 2019 at Mesa Community College and Paradise Valley Community College. South Mountain Community College is slated to begin transition in January 2020 followed soon after by the District Office.
This new process allows for delegating some degree of signature authority to the college and streamlining the contracts review and approval process.
Why is signature authority so limited?
The signature authority in the District for contracts has been limited to just three people for a couple of reasons. First, the District isn't legally authorized to make certain types of commitments. Additionally, some other types of commitments require that the contractor agree to do certain things for the protection of the District. For instance, an agreement with an "outsider" (that is, someone not an employee) to teach a class mandates that the District ensure compliance with federal privacy laws regarding students. Limited authority will be given to the colleges using CLM and this limited authority allows for only MCCCD-approved templates and some, low dollar, expenditures to be approved at the college level.
What constitutes a contract?
The term "contract" includes a wide range of things. It encompasses documents that are called something else, like agreements, memoranda of understanding, licenses, leases, rentals, sales of used property, purchases, intergovernmental agreements, grants, educational services agreements, and donations. It also includes proposals the District submits to get contracts.
The key to whether something is a "contract" requiring Legal's signature depends in part on what the document commits the District to do, not on what the document is called. A document may look like it doesn't commit the District to do anything; but, for instance, if it requires the District to hold the other party harmless against certain claims, or limits the other party's damages, that is a legal commitment.
A party may offer to give something free to the District, but the document it wants signed confirming the offer may still require Legal's signature. For instance, a party may offer to provide, at no cost, television news and music videos through monitors placed in student centers. It will usually ask the campus to sign a simple one-page document that doesn't cover much.
But the campus and the District need to be protected from sloppy work and possible injuries that may result from the installation or the presence of the equipment on campus. The District will also want to establish the standards in writing for the type of advertising or programming that is acceptable. The District's Legal Office has form contracts that it can revise to fit each case, and they include the proper protections, including hold harmless clauses and insurance requirements.
How do the colleges determine what needs Legal's signature?
Once all the colleges have been trained on CLM, the list of exceptions will be noted here. Until then, here is some guidance for determining what documents need Legal's review and signature. This is not an exclusive list.
- Agreements under which the District is committed to spend funds.
- Agreements under which the District rents outside facilities at any price, because of the "hold harmless" provisions in them.
- Agreements under which we are legally committed to provide something to someone else, or do something for someone else, whether or not we are paid for doing so.
- Agreements, including "no cost" agreements: that contain "hold harmless" or liability limitation clauses; that contain clauses that conflict with the state's public records law; where student privacy rights under federal law need to be enforced; that involve credit courses; that have tax implications (such as revenue sharing, commercial enterprises); or under which federal funds are being spent.
- Agreements under which we permit someone to do something on our land or install something in our buildings, whether or not the District is paid by that person.
- Legal does not need to sign the District's standard form for the rental of its facilities (Facility Use Agreement) unless the renter disagrees with the "hold harmless" and insurance requirements set forth in the form. The renter will generally show that disagreement by crossing out language on the form, or modifying it.
What needs to take place before a contract will be signed?
If the contract or agreement requires the District to spend money, the following must take place in this order:
- Issuance of a requisition for the funds to be spent. The requisition should indicate that a contract will be entered into to support the expenditure.
- Signing of the contract by the outside party and then forwarding the contract to Legal.
- Appearance of an approved requisition in the fiscal system.
- Signing of the contract by Legal.
- Issuance of a purchase order by the Purchasing Department.
- Contractor may begin work.
Note that a contractor may not begin work until procedures 1-5 are complete. Legal and Purchasing have made special arrangements under unusual circumstances, but those arrangements must take place before the contractor begins work, not after.
Legal's objective is to turn contracts around as fast as possible once we receive them. But if steps 1-3 haven't taken place, the information in the contract isn't complete, or there are provisions that need to be changed, there will be delays.
Contracts submitted for signature after the work is complete cannot be signed; the District's signature cannot legally be retroactive. The contractor will have to submit a claim to be paid.
If you are not spending money under a contract, you should take the following steps:
- Determine whether the situation is one in which the Legal Services Department has an agreement template in place by calling 480-731-8881 (such as certain educational services agreements).
- If no template applies and the outside party has provided an agreement, provide that agreement for review to the Legal Services Department. If not, contact the Legal Services Department about drafting an agreement to fit the circumstances.
- The Legal Services Department will obtain the signature of the outside party on the agreement and, when the agreement is fully signed by both parties, provide a copy to the outside party and the MCCCD representative involved in the agreement, if requested.
Page Updated 08/14/19