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Professional/Consulting Services Agreement (State Agency)

This contract may be used for presenters, consultants, professional services, etc.   Professional services include those individuals listed in the Government Code, Subchapter A, Section 2254.002(2)(a)(accounting, architecture, landscape architecture, land surveying, medicine, optometry, professional engineering, real estate appraising, and professional nursing).  All other professional services not defined by this Act fall under the category of consulting services.  To determine whether an individual should be hired as a consultant or an employee, answer the questions in the IRS 20 Questions test.  In contracting under the Professional Services Procurement Act using funds appropriated under the General Appropriations Act, a state agency may require the contractor to indemnify or hold harmless the state from claims and liabilities resulting from the negligent errors, omissions, or acts of the contractor or persons employed by the contractor, but they may not require the contractor to indemnify or hold harmless the agency for damages resulting from the negligent acts of the agency or its employees.  If the nature of the work meets the consultant criteria and is under $25,000.00, you may proceed to utilize this contract with appropriate modifications and submit the procurement as detailed in the Purchasing and Inventory Memorandum dated September 16, 1998.   Consultant service contracts over $25,000.00 (individual contracts for that amount and cumulative amount of recurrent contracts with same individual for same or similar services) are considered "major consulting contracts" and have specific requirements. Please consult the Major Consulting Contract Services Procedure page for detailed instructions regarding how to initiate a major consulting services contract.

Limitations on Contracts with Previous Employees.   (General Appropriations Act, Sec. 52)  None of the funds appropriated by the General Appropriations Act, may be used to enter into a contract for consulting or professional services or into an employment contract with any individual who has been previously employed by the department or agency within the past twelve months.  For the purpose of this section, the term "employment contract" shall include a personal services contract regardless of whether the performance of such a contract involves the traditional relationship of employer and employee.  Non-appropriated funds could be used in these instances.  If the consultant has previously worked for the University, a cover memo should be attached to the contract for approval and signature routing which contains the following information: 1) the job the consultant previously held while employed by the University; 2) the consultant's salary while employed by the University; 3) the consultant's dates of employment with the University; 4) the source of the funds to be used in paying the contract.

If the consultant or professional is employed with a state agency or TRS eligible institution, you must  determine whether retirement should be paid.   You must also determine whether it is appropriate, under state law, for an honorarium to be paid to that consultant or professional who is employed by a state agency. The following links will helpful in making those determinations:  Ethics Advisory Opinion No. 173, Texas Constitution Article 16 Section 40, TRS Compensation Rules, Chapter 25 Section 25.21(d).  To avoid duplication of payment and auditor inquiries, please remind the consultant or professional employed by a state agency that caution needs to be used regarding taking vacation or other leave time from the other agency for the period of time they are performing the service for the University.  Also, duplication of reimbursement for travel expenses should be avoided.

Disclosure Requirements .  Section 2254.032 of the Texas Government Code requires officers and employees who have any financial interest in an offer to provide consulting services to the University to report that interest to the President no later than the tenth day after the date that the offer is submitted.  University personnel must also report any individual related to them within the second degree by consanguinity or affinity (as determined by Section 573 of the Government Code) who has an interest in any consulting offer made to the University.

Contracts Including Intellectual Property Issues . Intellectual property issues  include web pages, software, works of art and/or other creative works. 

Add the following clause to any contract involving the creation of intellectual property or copyrightable works such as web pages, software or other computer programming, written works, etc. (for artistic works, see the other specific clauses below which are to be added):

This agreement shall constitute a "work for hire" under U.S. Copyright law.  Ownership of the work shall belong to the University.  The work may be edited at any time within the University's discretion.
Add the following clauses to any contracts involving the specific creation of artistic works:
This agreement shall constitute a "work for hire" under U.S. Copyright law.  Ownership of the work shall belong to the University.

If the Work is one to which the provisions of 17 U.S.C. 106A apply, the Author hereby waives and appoints University to assert on the Author's behalf the Author's moral rights or any equivalent rights regarding the form or extent of any alteration to the Work (including, without limitation, removal or destruction) or the making of any derivative works based on the Work, including, without limitation, photographs, drawings or other visual reproductions of the Work, in any medium, for University purposes.

Contracts With Individuals From Other Countries .  When contracting with individuals who are not citizens of the U.S., the following clause should be added:

Contractor will be responsible for obtaining visas and other necessary travel documents.

Forms:

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