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Office of General Counsel Policies & Guidelines

Policy Number: 
1:02:03:20
Policy/Guideline Area: 
Governance, Organization, and General Policies
Applicable Divisions: 
TCATs, Community Colleges, System Office, Board Members
Purpose: 

The purpose of this policy is to establish ethical standards for members of the Tennessee Board of Regents.

Policy/Guideline: 
  1. Preamble
    1. Public Trust
      1. The Tennessee Board of Regents is charged by statute with governance of the state universities, community colleges, and Tennessee colleges of applied technology in the state university and community college system. The state universities are subject to the authority of a local governing board of trustees, referred to as a state university board.
      2. To ensure effectiveness, the Regents must adhere to the strictest of ethical standards.
    2. Time Commitment
      1. In undertaking the duties of the office, a Regent shall make the necessary commitment of time and diligence to carry out the Regent’s public governance responsibilities.
      2. A Regent must regularly attend and actively participate in board and committee meetings and special assignments.
    3. Regent Authority
      1. Individual members of the Board enjoy equal rights with all other members:
        1. The right to vote,
        2. The right to participate fully in all considerations before the Board,
        3. The right to enter motions and to submit recommendations, and
        4. All rights and privileges afforded the Board by law and regulation when sitting in deliberative session.
      2. As individuals, when not participating in meetings of the Board or any of its duly constituted committees, members enjoy the same rights and privileges of any citizen of the State of Tennessee as pertains to the governance, control, and management of institutions under the Board.
      3. As individuals, members shall not speak for the Board unless so specifically authorized by the Board. 
    4. Regent Responsibilities
      1. When participating in meetings of the Board or its duly constituted committees, members are responsible for the entire System.
      2. They are responsible for representing the entire System without regard for any congressional district or area of the State or for any individual institution within the State.
      3. Members are enjoined from espousing the cause of any one institution over the interests of others or the System as a whole. 
  2.  Code of Ethics Policy
    1. Conflict of Interest
      1. A conflict of interest occurs when the personal interests, financial or otherwise, of a Regent actually or potentially diverge from the Regent’s obligations as a Board member.
        1. It is a conflict of interest for any person or any company with whom such person is an officer, a director, or an equity owner of greater than 1% interest to bid on any contract for products or services for a governmental entity if such person or a relative (spouse, parent, sibling, child) is a member of the board having responsibility for letting or approving such contract. 
        2. Each Regent will abide by the Board’s Conflicts of Interest Policy 1:02:03:10 as amended from time to time.
        3. A Regent shall not use the authority, title, or prestige of the office to solicit or otherwise obtain a private financial, social, or political benefit for the Regent or any other person which would be inconsistent with the public interest.
        4. A Regent shall abstain from any deliberations or vote on a matter which the Regent identifies as a conflict of interest.
    2. Gifts and Expenses
      1. No Regent shall accept or receive, directly or indirectly, from any person, firm, or corporation to whom any contract for the purchase of materials, goods, supplies, equipment or services for the Board or its member institutions may be awarded any money or anything of value or any promise, obligation, or contract for future awards or employment. 
      2. Regents serve without compensation. However, they are entitled to receive reimbursement for expenses incurred while representing the Board in their official capacity. 
    3. Financial Disclosure
      1. Each Regent shall, upon appointment to office and annually each January thereafter, file the financial interest disclosure form in Policy 1:02:03:10 with the Secretary of the Board of Regents.
  3.  Compliance
    1. Disclosure Requirements
      1. Persons who believe that a conflict of interest may exist either personally or with respect to another person covered by the ethics policy shall make a written disclosure of the facts and circumstances surrounding the situation.
      2. For members of the Board, disclosure should be made to the General Counsel (TBR Policy 1:02:03:10, Section VII)
    2. Review of Disclosures
      1. Disclosures made under Section II by or about a member of the Board of Regents shall be evaluated by the Board or a duly appointed committee thereof. A member of the Board making a self-disclosure shall not be entitled to vote regarding the disposition of the disclosure. (TBR Policy 1:02:03:10, Section X)
    3. Hearing
      1. An appointed Board member accused of a material violation of this Code of Ethics is entitled to a due process contested case hearing in accordance with T.C.A. § 49-8-204(c).
    4. Removal
      1. Upon a finding in a contested case hearing that an appointed Board member materially violated the Code of Ethics, the appointed Board member may be removed from the Board by a two-thirds (2/3) vote of the Board membership. (T.C.A. § 49-8-204 (b))
Sources: 

Authority

T.C.A. §§ 12-3-106; 49-8-101 et seq.; 49-8-203 et.seq.

History

TBR Board Meeting, December 5, 2003.

Policy Number: 
1:02:03:10
Policy/Guideline Area: 
Governance, Organization, and General Policies
Applicable Divisions: 
TCATs, Community Colleges, System Office, Board Members
Purpose: 

This policy is intended to define the general principles which should guide the actions of members of the Board and of employees; offer illustrations of activities which potentially constitute a conflict of interest; make Board members and employees aware of disclosure requirements related to conflicts of interest; describe the process by which those disclosures shall be evaluated and decisions rendered; and describe the appeals process regarding such decisions.

Definitions: 
  • Conflict of interest - occurs when the personal interests, financial or otherwise, of a person who owes a duty to the Tennessee Board of Regents and its constituent Institutions (Regents and all employees) actually or potentially diverge with the person’s professional obligations to and the best interests of the TBR and its Institutions.

  • Conflict of commitment - occurs when the personal or other non-work related activities of an employee of the TBR and its constituent Institutions impair the ability of that employee to meet their commitments of time and energy to the TBR and its Institutions.

  • Family member - includes the spouse and children (both dependent and non-dependent) of a person covered by this policy.

  • Immediate family – for purposes of Section VI.A.1.b.(2)(c), means spouse, dependent children or stepchildren, or relatives related by blood or marriage.

Policy/Guideline: 
  1. Objectives of the Conflicts of Interest Policy
    1. Members of the Tennessee Board of Regents and all employees of the TBR and its constituent Institutions all serve the interests of the State of Tennessee and its citizens, and have a duty to avoid activities and situations which, either actually or potentially, put personal interests before the professional obligations which they owe to the State and its citizens.
  2. Pertinent Federal Regulations, State Laws, and TBR Policies
    1. The following lists are intended to indicate sources of information which may provide additional guidance regarding conflict of interest situations.
    2. This policy is intended to be consistent with all pertinent Federal and State laws, regulations, and policies, as well as with other TBR policies.
    3. To the extent that conflicts arise, Federal and State laws, regulations, and policies shall take precedence.
    4. The lists are not intended to be exhaustive and additional laws, regulations, and policies may be implicated in a given conflict of interest situation.
      1. Federal Regulations
        1. The National Science Foundation (NSF) and the Department of Health and Human Services (HHS), acting through the Public Health Service (PHS) (which includes the National Institutes of Health (NIH)), have promulgated policies and regulations regarding conflicts of interest and disclosure of financial interests by investigators who receive funding from these Federal agencies.
        2. The NSF policy regarding researcher conflicts of interest is contained in Section 510 of NSF Publication 95-26, the Grant Policy Manual. The PHS regulations, upon which the NSF policy is modeled, are contained in the Code of Federal Regulations at 42 CFR 50.601 et seq. and 45 CFR 94.1 et seq.
        3. Other Federal agencies (e.g., the Veterans’ Administration or the Food and Drug Administration) may require as a condition to a contract, disclosure and management of conflicts of interest (see, for example, Veterans’ Administration Acquisition Regulation 852.209-70).
      2. Tennessee State Law
        1. Various statutes contained in the Tennessee Code Annotated (T.C.A.) are pertinent to the issue of conflicts of interest within the TBR System, including:
          1. T.C.A. § 8-50-501, Disclosure statements of conflict of interests by certain public officials
          2. T.C.A. § 12-2-208, Purchase by officer unlawful – penalty for violation
          3. T.C.A. § 12-2-415, State surplus property disposition regulation
          4. T.C.A. § 12-2-416, Violation of § 12-2-415
          5. T.C.A. § 12-2-417, State employee violation – punishment
          6. T.C.A. § 12-4-106, Prohibition against receiving rebates, gifts, money or anything of value -- Conflict of interest
          7. T.C.A. § 12-4-101, Personal interest of officers prohibited
          8. T.C.A. § 12-4-102, Penalty for unlawful interest
          9. T.C.A. § 12-4-103, Bidding by state employees prohibited
          10. T.C.A. § 12-4-104, Penalty for unlawful transactions
          11. T.C.A. § 49-8-203(d), Powers and duties (of the Board of Regents)
        2. It is significant to note that violation of some of these statutes may lead to criminal penalties (e.g., violation of T.C.A. § 12-4-103 is a Class E felony).
      3. TBR Policies
        1. The following TBR policies and guideline deal with issues which implicate conflict of interest situations:
          1. TBR Policy 4:02:10:00, Purchasing Policy and Procedures
          2. TBR Policy 4:02:20:00, Disposal of Surplus Personal Property
          3. TBR Policy 5:01:05:00, Outside Employment
          4. TBR Policy 5:01:06:00, Intellectual Property
          5. TBR Guideline P:090, Nepotism
  3. Supplementary Institutional Policies and Regulations
    1. As each Institution may deem necessary and appropriate, TBR Institutions are authorized to develop additional Institution-specific policies, regulations, and procedures relating to conflicts of interest and conflicts of commitment, provided such policies and regulations are consistent with Federal and State law and with this and other policies of the Tennessee Board of Regents.
  4. Applicability
    1. This policy shall apply to all persons serving as members of the Board of Regents and to all persons employed (either as full-time, part-time or temporary employees) by the Tennessee Board of Regents and its constituent Institutions.
  5. General Principles
    1. It is the policy of the Tennessee Board of Regents that employees should avoid external commitments which significantly interfere with the employee’s duties to the TBR and its constituent Institutions (conflicts of commitment). See also TBR Policy 5:01:05:00, Outside Employment. Disclosures of conflicts of commitment shall be made as required under Policy 5:01:05:00 and evaluated as indicated in that policy.
    2. It is the further policy of the Tennessee Board of Regents that both Regents and employees should avoid situations where the self-interests of the Regent or employee diverge from the best interests of the TBR and its Institutions (conflict of interest).
    3. The mere existence of either a potential or actual conflict of interest does not mean that such conflict must necessarily be eliminated.
      1. Where the potential detriment to the TBR and its Institutions is at most minor and inconsequential, and the conflict does not indicate violation of Federal or State law, regulation, or policy, those persons charged with evaluating disclosures should allow the activity to proceed without interference.
      2. For those situations which do not implicate Federal or State law, regulation or policy, the standard by which it should be determined whether a conflict of interest should be managed, reduced, or eliminated is whether that conflict would appear to a reasonable person to call into question the integrity or judgment of the affected Regent or employee.
  6. Situations and Activities Creating a Conflict of Interest
    1. In the following situations and activities, there is at least the appearance, and possibly the actuality, of an employee allowing his or her personal interests, and not the best interests of the TBR and its constituent Institutions, to affect that employee’s judgments. This list is illustrative, and not exhaustive.
      1. Self-dealing
        1. Situations in which a Regent or employee can appear to influence or actually influence an Institutionally-related decision from which that person or a member of that person’s family stands to realize a personal financial benefit is self-dealing, and a conflict of interest.
        2. Examples of self-dealing activities are numerous, and include those listed below.
          1. Purchase of State-owned property by an employee absent fair and open bidding.
            1. It is unlawful for any state employee to purchase surplus state-owned property absent a fair and open bidding process (see T.C.A. § 12-2-208 and T.C.A. § 12-2-417).
            2. Such purchases are also prohibited under TBR Policy 4:02:20:00.
          2. Institutional purchases from businesses in which an employee or family member has a financial interest.
            1. T.C.A. § 12-4-103 declares that it is unlawful for any state official or employee to “bid on, sell, or offer for sale, any merchandise, equipment or material, or similar commodity, to the state of Tennessee” or “to have any interest in the selling of the same to the state” during that person’s term of employment and for six months thereafter.
            2. Disclosure of any such transaction by an employee or member of the employee’s family or by a business in which an employee or member of the employee’s family has any significant (more than 4%) ownership interest or for which an employee or employee family member serves as an officer is required by this policy.
            3. T.C.A. § 12-4-106(b)(2013) declares that it is a conflict of interest for any person or any company with whom such person is an officer, a director, or an equity owner of greater than 1% interest to bid on any public contract for products or services for a governmental entity if such person or "immediate family" of such person is a member of a board or commission having responsibility for letting or approving such contract.
            4. For purposes of this section only, "immediate family" means spouse,dependent children or stepchildren, or relatives related by blood or marriage.
          3. Use of Educational Materials from Which a Faculty Member Derives Financial Benefit in That faculty Member’s Teaching Activities.
            1. Any faculty member who wishes to use in his or her teaching activities educational materials (e.g. a textbook) which he or she has authored, or in which he or she otherwise stands to benefit financially from such use, a conflict of interest disclosure shall be made per Section VII of this policy.
            2. Whether the use of such materials shall be permitted shall be evaluated either under the terms of Institutional policy, or in the absence of such policy, by the Review Committee established under Section X of this policy.
            3. Such evaluation shall include consideration of suitable substitute materials and ensure that the needs of students are best served by use of the materials in which the faculty member has an interest.
          4. Acceptance of Gifts, Gratuities, or Favors
            1. Gifts. No employee shall knowingly solicit or accept, directly, or indirectly, on behalf of himself or herself or any member of the employee’s household, for personal use or consumption any gift, including but not limited to any gratuity, service, favor, food, entertainment, lodging, transportation, loan, loan guarantee or any other thing of monetary value, from any person or entity that:
              1. Has, or is seeking to obtain, contractual or other business or financial relations with the institution in which the individual is employed; or
              2. Has interests that may be substantially affected by the performance or nonperformance of the employee.
          5. Exceptions
            1. The prohibition on accepting gifts in Section (4)(a) above, does not apply to:
              1. A gift given by a member of the employee’s immediate family, or by an individual, if the gift is given for a non-business purpose and is motivated by a close personal friendship and not by the position of the employee;
              2. Informational materials in the form of books, articles, periodicals, other written materials, audiotapes, videotapes, or other forms of communication.
              3. Sample merchandise, promotional items, and appreciation tokens, if they are routinely given to customers, suppliers or potential customers or suppliers in the ordinary course of business, including items distributed at tradeshows and professional meetings where vendors display and promote their services and products;
              4. Food, refreshments, foodstuffs, entertainment, or beverages provided as part of a meal or other event, including tradeshows and professional meetings, if the value of such items does not exceed fifty dollars ($50.00) per occasion; provided further, that the value of a gift made pursuant to this subsection may not be reduced below the monetary limit by dividing the cost of the gift among two or more persons or entities identified in Section VI.A.1.b.(4).
              5. There may be circumstances where refusal or reimbursement of a gift (such as a lunch or dinner) may be awkward and contrary to the larger interests of the institution. In such circumstances, the employee is to use his or her best judgment, and disclose the gift including a description, estimated value, the person or entity providing the gift, and any explanation necessary within fourteen (14) days to their immediate supervisor;
              6. Food, refreshments, meals, foodstuffs, entertainment, beverages or intrastate travel expenses that are provided in connection with an event where the employee is a speaker or part of a panel discussion at a scheduled meeting of an established or recognized membership organization which has regular meetings;
              7. Participation in institution or foundation fundraising and public relations activities, i.e. golf tournaments and banquets, where persons or entities identified in Section VI.A.1.b.(4) provide sponsorships; and
              8. Loans from established financial institutions made in the ordinary course of business on usual and customary terms, so long as there are no guarantees or collateral provided by any person described in Section VI.A.1.b.(4)
      2. Inappropriate use of students or support staff
        1. Employees shall ensure that the activities of students or support staff are not exploited for the benefit of any external activity of the faculty member.
        2. Prior to assigning any such non-Institutionally related task (which is more than incidental or de minimus in nature) to a student or member of the support staff, an employee shall disclose such proposed activities and obtain approval.
      3. Inappropriate use of State owned resources
        1. Employees may not make significant use of State owned facilities, equipment, materials or other resources, not otherwise available to the public, in the course of activities which are not related to the Institution and which are intended for personal benefit, without prior disclosure and approval.
      4. Failure to disclose intellectual property
        1. TBR Policy 5:01:06:00 governs the rights and responsibilities which persons affiliated with the TBR and its Institutions have regarding intellectual property developed during the term of their affiliation with the TBR.
        2. Among the responsibilities enumerated in the policy is that of disclosure of inventions and those copyrightable works which may be reasonably expected to have commercial value which they have jointly or solely developed or created during their affiliation with the TBR and its Institutions.
  7. General Disclosure Requirements
    1. Persons to whom this policy applies who believe that a conflict of interest may exist either personally or with respect to another person covered by this policy shall make a written disclosure of the facts and circumstances surrounding the situation.
    2. No particular format is required, but the disclosure should adequately describe the pertinent facts and circumstances.
    3. For members of the Board, disclosure shall be made to the General Counsel.
    4. Employees of the System Office shall make disclosure to either their immediate supervisor or to the General Counsel.
    5. At the colleges, disclosures shall be submitted to the employee’s immediate supervisor or other person designated by the President to receive such disclosures.
    6. Disclosures made by a President r shall be submitted online to the Tennessee Ethics Commission.
  8. Special Disclosure Requirements for Researchers Applying For or Receiving NSF or PHS Funding
    1. Under the policies and regulations indicated under Section 2.1 herein, investigators seeking funding from either the National Science Foundation or the Public Health Service are required to disclose to the investigator’s employer all significant financial interests of the investigator;
      1. That would reasonably appear to be affected by the research or educational activities funded or proposed for funding by the NSF or PHS; or
      2. In entities whose financial interests would reasonably appear to be affected by such activities.
        1. Such disclosures must be submitted prior to the time the proposal is submitted to the Federal agency.
        2. Further, such disclosures must be updated during the period of the award; either annually or as new reportable financial interests arise.
        3. The Institution is responsible for eliminating or managing such conflicts prior to receipt of the award.
        4. To facilitate such disclosures, the accompanying disclosure form (Exhibit 1) is available.
      3. Each Institution is responsible for determining if a grant, services, or other contract with Federal agencies other than the Public Health Service or the National Science Foundation requires disclosure and / or management of conflicts of interest, and for ensuring that any such requirements are met.
      4. Disclosure of financial interests made pursuant to this Section VIII notwithstanding, such disclosure does not eliminate the responsibility for making disclosures under Section VII, when specific conflict of interest situations arise.
  9. Special Disclosure Requirements for Regents and Certain TBR Employees
    1. Members of the Board of Regents, the Chancellor of the TBR, members of the senior staff of the TBR System Office (all Vice Chancellors and the General Counsel), the Presidents of all TBR institutions, coaches, assistant coaches and employees of athletic departments who are exempt from the provisions of the Fair Labor Standards Act are required to file a financial disclosure form within one month of their initial appointment and annually thereafter in January.
    2. Disclosure of financial interests made pursuant to this Section IX notwithstanding, such disclosure does not eliminate the responsibility for making disclosures under Section VII, when specific conflict of interest situations arise.
      1. Members of the Board of Regents shall make their disclosure using a form as indicated in (Exhibit 2) submitted to the TBR Office of General Counsel.
      2. The Chancellor of the Tennessee Board of Regents system and the President of each college by the Tennessee Board of Regents are required by Tenn. Code Ann. § 8-50-501(a)(15) to file an online Statement of Disclosure of Interests Form with the Tennessee Ethics Commission at https://apps.tn.gov/conflict/, Form ss-8005 (State Officials). For the Chancellor and the Presidents this Statement of Disclosure will meet the requirements of this Policy.
      3. Senior staff at the TBR System Office are required to complete a Statement of Disclosure of Interest Form. That disclosure shall be made using the Tennessee Ethics Commission Form ss-8005 (Exhibit 3) and accompanying instructions and submitted to the TBR Office of General Counsel.
      4. Coaches, assistant coaches, exempt employees of the athletic department and other institutional personnel required to complete a disclosure form shall also use the Tennessee Ethics Commission Form ss-8005, Statement of Disclosure of Interest Form and accompanying instructions. The form shall be submitted to the institution’s Human Resource Officer or other person designated by the institution’s President.
  10.  Review of Disclosures
    1. Disclosures made under Section VII of this policy by a member of the Board of Regents, the Chancellor, or by a President shall be evaluated by the Board or a duly appointed committee thereof. A member of the Board making a disclosure shall not be entitled to vote regarding disposition of the disclosure.
    2. Disclosures made under Section VII of this policy by a person employed by the TBR System Office shall be evaluated by a committee composed of the General Counsel, the Vice Chancellor for External Affairs, and the Vice Chancellor for Business and Finance. If the disclosure is made by one of those three persons, that person shall not be entitled to vote regarding disposition of the disclosure.
    3. Each TBR Institution shall establish at least one Review Committee comprised of no fewer than three persons to receive and evaluate disclosures generated under Sections VII and VIII herein by employees of the Universities, Community Colleges, and Colleges of Applied Technology. Policies and procedures regarding such matters as selection of members, duration of membership, frequency of meetings, etc. shall be adopted by each Institution.
      1. A template Institutional policy is included herein as (Exhibit 4).
      2. An Institution which fails to explicitly adopt a policy shall be expected to follow the terms of the template policy.
      3. Following evaluation of the disclosure, the Committee shall render a decision regarding the issue(s) presented by the disclosure.
      4. Any disclosure which indicates an actual violation of law shall be forwarded to the President of the Institution along with the Committee’s findings.
    4. Persons potentially committing a conflict of interest violation under consideration by a conflict of interest review Committee shall receive notice of the Committee’s evaluation, and be given an opportunity to appear before that Committee.
  11.  Sanctions
    1. Failure to observe restrictions imposed as a result of review of a conflict of interest disclosure or a knowing failure to disclose a conflict of interest may result in disciplinary proceedings under TBR and Institutional policy.
  12. Appeals
    1. Decisions made by the Board of Regents may not be appealed.
    2. Decisions made by the Central Office Review Committee may be appealed to the Chancellor. Decisions of the Chancellor shall be final and binding.
    3. Decisions made by an Institutional Review Committee may be appealed to the President of the Institution. Decisions of the President shall be final and binding.
Sources: 

Authority

T.C.A. § 49-8-203; All State and Federal statutes, codes, and/or rules referenced in this policy.

History

TBR Meeting March 20, 1992; TBR Meeting December 11, 1992; TBR Meeting June 11, 1998; TBR Meeting June 28, 2002; TBR Meeting September 26, 2003; TBR Meeting June 11, 2004; TBR Meeting September 25, 2008; August 20, 2014; ministerial revisions -Changed reference from T.C.A. 12-3-106 to 12-4-106 and made corrections to definitions changing relative to immediate family and corresponding different definitions to comply with change in statutes of 2013. 

Policy Number: 
G-140
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
TCATs, Community Colleges
Purpose: 

This guideline describes a system for campus-based approval and numbering of publications of community colleges, and colleges of applied technology as required by T.C.A. § 12-7-106 et seq., and rules of the Higher Education Publications Committee. The cited authorities set forth criteria against which each campus will review the appropriateness of each publication, require that descriptive information be maintained in a central location and provide for affixing an identifying number to each covered publication.

Definitions: 
  • Publications - is defined as any printed matter which is produced for general distribution outside the campus.
Policy/Guideline: 
  1. Covered Publications
    1. Examples of publications which require a publication number are:
      1. Undergraduate and graduate catalogs;
      2. Admissions applications (unless part of a catalog);
      3. Housing applications;
      4. Financial aid applications;
      5. Brochures, posters, calendars, pamphlets, fliers, programs, etc., promoting cultural or athletic events;
      6. Alumni and development solicitation materials;
      7. Seminar and workshop registration forms, brochures;
      8. Research project reports (if generally distributed);
      9. Agricultural brochures, pamphlets, etc.;
      10. Treasurer's reports and other "outside" financial reports;
      11. Campus telephone directories;
      12. Employee benefits booklets, posters, etc.’
      13. Purchasing requests for bids;
      14. Purchase order forms;
      15. Employment applications;
      16. Placement forms;
      17. Athletic ticket applications.
    2. Other publications which must have a publication number, but usually are not produced for general public distribution:
      1. Campus, college and department newsletters;
      2. Faculty and student handbooks;
      3. Employee training manuals.
    3. Certain printed materials which are intended solely for internal use may be excluded from the requirement that a publication number be affixed, e.g.:
      1. Work processing forms for internal use, e.g., work orders, requisitions, transfer vouchers, voucher authorizations, vehicle requests, personnel action forms and similar documents;
      2. Research project reports not generally distributed;
      3. Research survey instruments, classroom test instruments Instructional material (even if sold at campus bookstore);
      4. Personnel and fiscal policy manuals;
      5. Grade reports;
      6. Tickets for athletic and cultural events;
      7. Student newspapers and yearbooks;
      8. Meal tickets;
      9. Traffic citations.
  2. Campus Review of Publication Requests
    1. Each President shall designate a person or committee to review and approve publications by the following criteria specified in the rules of the Higher Education Publications Committee:
      1. All publications should be justified and be within funding abilities of a campus or unit. Criteria for review of publications should include, but not be limited to, the most economical method for producing the publications consistent with the goals and projected audiences of the publications. Other criteria to be considered should include number of copies needed to meet the publication's goals and to reach its projected audience; type of paper to be selected; use of photographs and color; typography; method of printing; page size; and method of typesetting.
      2. When considering requests for approval of new publications or when reviewing existing publications, the person or persons responsible for such review and approval should continually consider alternatives to existing or traditional methods of printing and distribution so as to achieve maximum economics while maintaining the integrity of the publications. Participating campuses should inform the person or persons responsible for review and approval of publications about available technical assistance for writing specifications for bids, when taking bids is appropriate, and when publications are being printed off the campus. Consideration should be given to the most economical method of distributing publications.
      3. All publications must comply with state and federal laws and regulations.
      4. All publications should be produced on the campus when economically feasible.
      5. All publications approved for off-campus printing must comply with system and institutional purchasing procedures.
      6. No publication citing or reproducing a rule issued under the Uniform Administrative Procedures Act shall be approved prior to receiving written assurance from the Secretary of State that the rule is in effect. (Such requests shall be coordinated through the SBR Office of General Counsel.)
      7. One-time approval of a periodic publication is permissible if subsequent issues conform substantially to the original approved design.
  3. Recording of Information
    1. Pertinent information on institutional publications must be recorded in one location for each campus and must be maintained on a continuous basis for submitting to the Higher Education Publications Committee on call.
    2. When such reports are requested, each President shall submit a letter certifying that each report listed in the report has been found justified under the campus procedure.
    3. As specified in statutes, each institution shall maintain centrally the following information on each approved publication:
      1. Name of publication;
      2. Department producing publication;
      3. Purpose and brief description of publication's contents;
      4. Number of copies authorized to be printed;
      5. A general list of distribution;
      6. Estimated cost of printing and distribution;
      7. Name and address of private printer;
      8. Publication number assigned.
  4. Numbering of Publications
    1. Each publication whose approval is required under this guideline shall have a discrete identifying number assigned which shall be affixed adjacent to the identification of the institution.
      1. For example, the system being used at the Board office includes a number "SBR AA-001-89," indicating a publication of Academic Affairs which is the first of calendar year 1989 for the Board office.
  5. Private Printing
    1. Any publication not printed at facilities operated by the state or a public higher education institution shall include the printer's name and address and the number of copies printed.
  6. Distribution
    1. No automatic distribution of reports or publications shall be made, except as specified for public reports in T.C.A. § 12-6-118, unless so provided in other statutes or policies of the Board or requested by the recipient.
  7. Procedures
    1. All campuses shall have written procedures for approving publications.
Sources: 

Authority

T.C.A. § 49-8-203; All statutes, rules, and regulations referenced in this procedure.

History

February 14, 1989 Presidents Meeting.

This guideline reiterates practices already in effect, as reflected in the statutes and rules cited and in Board staff memoranda to the Presidents dated June 9, 1982, and October 4, 1988.

Policy Number: 
G-130
Topics Outline: 
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
TCATs, Community Colleges, System Office
Purpose: 

This guideline advises the Tennessee Board of Regents (TBR) System Office and its constituent institutions, as recipients of federal funds, of the obligation under Title VI of the Civil Rights Act of 1964 to take reasonable steps to provide meaningful access to persons with Limited English Proficiency (LEP).

Definitions: 

Definitions are part of the body of the Guideline.

Policy/Guideline: 
  1. Access
    1. The Department of Justice defines persons with LEP as "those individuals who have a limited ability to read, write, speak or understand English." Because English is not the primary language of these individuals, they may have a limited ability to function in a setting where English is the primary language spoken, such as a TBR institution.
    2. TBR and its institutions may encounter LEP persons in the form of international students, faculty, staff and other individuals seeking services and access to programs.
    3. There are specific TBR policies and guidelines that deal with the ability to read, write, speak or understand English, including:
      1. Policy 2:03:00:00 "Admissions" - provides the basic English requirement for entering students.
      2. Guideline A-100 "Learning Support" - outlines learning support opportunities to assist students in reading and writing.
      3. Policy 2:08:30:00 "Admission and Delivery of Services to International Students and for the Employment and Delivery of Services to International Faculty and Academic Staff at TBR Institutions" - provides requirements related to English proficiency and the provision of professionally staffed ESL programs if the institution admits students not meeting those requirements.
    4. The provisions below apply to other situations involving persons with LEP.
      1. TBR System Office and campus staff will post services available to LEP persons in highly visible areas and also provide trained personnel to provide meaningful services and access to programs for these persons.
      2. TBR System Office and campus staff will promptly identify the language and communication needs of the LEP person who makes himself or herself known to the institution.
      3. TBR system Office and campus staff will then have options to address the LEP person's needs.
        1. These options may include but are not limited to:
          1. Using language identification cards (or "I speak cards") or posters to determine the language;
          2. Maintaining an accurate and current list showing the name, language, phone number and hours of availability of a staff interpreter, if applicable;
          3. Contacting the appropriate staff member to interpret, in the event that an interpreter is needed and/or if an employee who speaks the needed language is available and is qualified to interpret;
          4. If necessary, obtaining an outside interpreter if a staff interpreter is not available or does not speak the needed language.
    5. When translation of vital documents is needed, the appropriate Title VI Coordinator will submit documents for translation into frequently-encountered languages to the responsible staff person or interpreter. Documents being submitted for translation must be in final, approved form.
    6. TBR Title VI Coordinators will regularly assess the efficacy of these procedures, including but not limited to mechanisms for securing interpreter services, equipment used for the delivery of language assistance, complaints filed by LEP persons, and feedback from the public and community organizations.
    7. Individuals who believe they have not been provided reasonable access to LEP services may file a complaint with the appropriate Title VI Officer within 180 days after the last incident of denial.
Sources: 

Authority

T.C.A. § 49-8-203; Civil Rights Act of 1964, as amended.

History

New Guideline approved, Presidents Meeting November 7, 2012.  

Policy Number: 
G-120
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
TCATs, Community Colleges, System Office
Purpose: 

The purpose of this guideline is to establish the operational guidelines for compliance with Office of Civil Rights guidelines as well as Title VI and Title IX and Section 504 at institutions governed by the Tennessee Board of Regents.

Policy/Guideline: 
  1. Introductory Information
    1. This Method of Administration (MOA) for Compliance with Office of Civil Rights Guidelines, Title VI, Title IX, and Section 504 as applied to the Tennessee Colleges of Applied Technology and TBR Community Colleges offering vocational technical education was developed in 1985 in accordance with federal laws and regulations.
  2. Organization to Meet Civil Rights Responsibilities
    1. Organization of Compliance Program
      1. Administrative Unit Directing Compliance Program
        1. The Division of Policy and Strategy, Office of Student Success, Tennessee Board of Regents, will be responsible for implementing and directing the compliance program. The division personnel will utilize resources of other divisions and agencies as the MOA dictates.
      2. Compliance Director
        1. TBR Director of Student Initiatives, Tennessee Board of Regents 1 Bridgestone Park Nashville, TN 37214
      3. Line of authority of Compliance Director
        1. Chancellor, Tennessee Board of Regents
        2. Vice Chancellor for Student Success Tennessee Board of Regents
          1. The line of authority represented above is a direct line from the Compliance Director to the agency administering the MOA to the governing body for postsecondary vocational technical education in Tennessee.
      4. Organizational Plan
        1. Review of internal policies and procedures
          1. TBR Senior Staff members review policy matters relating to their respective areas and facilitate further review by the appropriate Sub-Councils of institutional representatives.
          2. Following review of the various sub- councils, policy matters are then transmitted to the Presidents' Council.
          3. If approved by the Presidents' Council and the Chancellor, policy additions or revisions are transmitted to the Tennessee Board of Regents for approval.
        2. Development of a Civil Rights Compliance Program
          1. The Compliance Director will coordinate activities of appropriate TBR staff and institutional personnel to ensure an effective civil rights compliance program is in place for all postsecondary vocational technical education in Tennessee.
        3. Development of technical assistance activities
          1. The Vice Chancellor for Student Success will work with appropriate members of TBR System Staff to provide technical assistance to all institutions offering postsecondary vocational technical education in Tennessee.
        4. Coordination of three components
          1. The Compliance Director will coordinate the selection of staff to provide the above-mentioned functions.
    2. Personnel Assigned to Implement the Compliance Program
      1. Vice Chancellor Student Success, Tennessee Board of Regents 1 Bridgestone Park Nashville, Tennessee 37214 (615) 366-3948
      2. Special Assistant to the Chancellor, Tennessee Board of Regents 1 Bridgestone Park Nashville, Tennessee 37214 (615) 366-4473
      3. Director Student Initiatives, Tennessee Board of Regents 1 Bridgestone Park Nashville, Tennessee 37214 (615) 365-3929
      4. General Counsel, Tennessee Board of Regents 1 Bridgestone Park Nashville, Tennessee 37214 (615) 366-4438
      5. Vice Chancellor Business and Finance, Tennessee Board of Regents 1 Bridgestone Park Nashville, Tennessee 37214 (615) 366-4413
      6. Vice Chancellor Academic Affairs, Tennessee Board of Regents 1 Bridgestone Park Nashville, Tennessee 37214 (615) 366-4406
      7. Executive Director of Facilities Development, Tennessee Board of Regents 1 Bridgestone Park Nashville, Tennessee 37214 (615) 366-4432
  3. Review of State Policies and Programs
    1. Conduct of State Policy Review
      1. Internal Operations of State Agency
        1. The Vice Chancellor for Business and Finance will be responsible for the review of the Policies and Guidelines of the TBR which govern employment for all personnel in the system to ensure their compliance with Presidential Executive Order 11246, as amended.
        2. The Compliance Director will be responsible for the review of state operated programs to assure that policies and procedures do not discriminate against target populations as to race, color, national origin, sex, and handicap.
          1. The Legal Counsel for the TBR will assist in the review.
        3. Results of the review will be reported in the annual report according to the guidelines outlined in Part V of the MOA.
      2. Formulas for Distribution
        1. Each year, the Vice Chancellor for Student Success will be responsible for the review of the five year plan, annual plan, appropriate state records and laws which outline the formulas for distribution of federal and state funds.
        2. The formulas will be reviewed to assure that identified factors, computation of factors, and importance (weighting) assigned to factors utilized in funding formulas do not discriminate against target populations.
        3. All formulas used to distribute federal and state funds to any institution will be reviewed annually for discriminatory factors.
        4. The Legal Counsel and Vice Chancellor for Business and Finance for the TBR will assist in the review of funding formulas.
        5. The formulas reviewed will affect funding to institutions for the following programs:
          1. Tennessee Colleges of Applied Technology
          2. Community colleges
        6. Results of the review will be reported in the annual report according to the guidelines outlined in Part V of the MOA.
      3. Requirements for Admission and Administration
        1. The Tennessee Board of Regents will review the establishment of requirements for admission to and the administration of vocational education programs to assure that discriminatory factors do not exist and to assure compliance with Title VI, Title IX, and Section 504 of the Rehabilitation Act.
        2. The Vice Chancellors for Student Success and Academic Affairs will take responsibility for such reviews.
      4. Competitive Grants
        1. Each year, the Vice Chancellor for Student Success and Vice Chancellor for Academic Affairs will review criteria utilized for awarding competitive grants to assure that no factors are included which discriminate against target populations.
        2. Methods of disseminating information, providing technical assistance, and awarding competitive grants will be reviewed for discriminatory factors.
        3. The Legal Counsel for the Tennessee Board of Regents will assist in the review of the policies and procedures.
        4. Results of the review will be reported in the annual report according to guidelines outlined in Part V of the MOA.
      5. Approval of Action by Local Entities
        1. Actions initiated by local entities, including community colleges, and colleges of applied technology, are reviewed by members of the TBR System Office Staff to ensure that local entities do not discriminate against target populations.
        2. The Legal Counsel of the TBR will assist in the review.
        3. Results will be reported in the annual report according to guidelines outlined in Part V of the MOA.
      6. State Operated Institutions
        1. Each year, the Vice Chancellors for Student Success and Academic Affairs will be responsible for the review of the policies and guidelines for colleges of applied technology and community colleges to assure that policies and procedures do not discriminate against target populations and that the same are in compliance with Sections IV - IX of the OCR guidelines.
        2. The Director of Student Initiatives and Legal Counsel of the TBR will assist in the review.
        3. Results will be reported in the annual report according to guidelines outlined in Part V of the MOA.
    2. Method of Review for State Policies and Procedures
      1. The staff member assigned responsibility for each review will examine each policy and guideline in relation to the OCR guidelines and Title VI, Title IX and Section 504 of the Rehabilitation Act and develop any recommendations for change.
      2. The Compliance Director shall coordinate the review of all state policies and be responsible for preparing the annual report to be submitted July 1 each year.
    3. State Policy Review Schedule
      1. The schedule for policy review will begin on September 1 annually and the annual report will be submitted on July 1.
      2. The report will identify any significant changes in policies or guidelines that could affect civil rights compliance.
    4. Review of State Institutions
      1. The Tennessee Board of Regents operates 27 Tennessee Colleges of Applied Technology and 13 Community Colleges which are state institutions.
      2. These state institutions will comprise a pool of sub recipients which will follow the procedures and schedule outlined in Part IV.
      3. The Compliance Director will be responsible for assigning staff to conduct the reviews. Staff from institutions will participate in reviews of institutions other than their own.
      4. If a state operated institution is found to be in non-compliance, the TBR will assume the responsibility to assure voluntary compliance.
      5. Results of the reviews will be reported in the annual report according to guidelines outlined in Part V of the MOA.
  4. Ensuring Compliance by Sub-recipients
    1. Statement of Objectives
      1. To implement a systematic agency level review procedure to ensure that all institutions are reviewed within a five year period in order to identify possible discrimination through periodic review of available state and local data.
      2. To design a system for conducting on-site reviews for at least 11% of the systems in the agency level review pool.
      3. To develop an on-going technical assistance program for institutions to assist in preventing and eliminating discriminatory policies and procedures.
      4. To develop a process for voluntary compliance by institutions found to be in non- compliance.
    2. Identification of Possible Institutional Violations through Agency Level Reviews
      1. Agency level reviews or desk audits will be conducted by the Office of Student Success, Tennessee Board of Regents.
        1. Annually, at least 11% of the sub recipient pool will be scheduled for an agency level review.
        2. The Divisions of Academic Affairs and the Division of Facilities Management will assist with the audits.
      2. The TBR will schedule reviews to reach, at the earliest possible date, those institutions most likely to have compliance problems.
      3. Beginning with a pool of all sub recipients, the following will be omitted:
        1. Those previously reviewed (if any) in the five year cycle;
        2. Those that are subjects of pending litigation in Federal or State Courts because of alleged discrimination on the basis of race, color, national origin, sex, or handicap; and
        3. Those that are subjects of pending or recent investigations or enforcement proceedings by OCR.
      4. From those remaining in the pool, the Compliance Program Director will select at least 11% of the total number of institutions using the following factors to determine which are most in need of immediate review:
        1. Knowledge of an institution's practices that raise potential civil rights compliance problems;
        2. Reports of possible non-compliance obtained from complaints filed by parents, students, civil rights groups or others;
        3. Reports from State Civil Rights Agencies or State Advisory Committees that raise questions about potential civil rights compliance problems; and
        4. information or reports on institutions from OCR that indicate possible compliance problems.
      5. Conducting the reviews
        1. The Tennessee Board of Regents Staff will conduct agency level reviews of institutions using data and documents already available in its system office.
        2. Following are documents and data to be examined in the review:
          1. VEDS enrollment data.
          2. Annual program evaluation reports.
          3. Annual accountability reports.
          4. Annual appropriations requests.
          5. Capital Outlay requests.
          6. Quarterly enrollment reports.
          7. Annual analysis of faculty salaries by sex and race.
          8. Annual affirmative action reports.
          9. Annual budget analysis detailing promotions and salary distribution.
          10. Request for new programs.
          11. Five year plan data, and annual update.
          12. Job Training Coordination Plan and update.
          13. Information derived from complaints or reports from consumer groups, public agencies, parents, or students.
          14. Letters of findings issued by OCR.
          15. EEO complaints.
          16. Audit reports.
        3. The agency level review will use the following information as indicators of compliance:
          1. Enrollment ratios comparable to target populations in the service area.
          2. Constant or positive enrollment trend among target populations.
          3. Positive trend in employment of target populations.
          4. Positive trends in data related to graduates or completers among target populations.
          5. Positive trends in opportunities available to target populations in activities and programs of the institution.
          6. The per-student appropriation of Federal and State funds with respect to the number of minority students in vocational education programs.
          7. Participation of race, color, national origin (including student of limited English skills), sex, and handicap in apprentice-related programs.
      6. Notification of Institutions
        1. At the commencement of the agency level review, the Vice Chancellor for Student Success will send a letter to each institution that will undergo an agency level review at least 30 days prior to the start of the review.
          1. The letter will outline the purpose of the review, the areas to be reviewed and the date for completion of the review.
          2. The letter will also ask the institution to cooperate by supplying any information not in possession of the TBR.
        2. Following completion of all agency level reviews and a determination of which institutions will be scheduled for on-site reviews, the Vice Chancellor for Student Success will notify each institution of one of the following courses of action:
          1. That although the agency level review revealed no apparent problems, the institution will, nevertheless, be the subject of an on-site review; or
          2. That the agency level review revealed some possible violations (to be listed), and that these specific problem areas, as well as a general review of the institution's operations, will be the subject of an on-site review.
      7. Timetable for Agency Level Review
        1. July: Selection of institutions to be reviewed and notification sent to President.July-August: Information gathered and file prepared on each institution being reviewed.
        2. September: Analysis of information as to compliance.
        3. November: Letters of notification issued indicating results of agency level reviews.
    3. Identification of Institutional Violations through On-Site Reviews
      1. Number of Reviews per Year
        1. An on-site review will be conducted for a minimum of 11% of the institutions in each of the agency level review pools.
        2. The agency level review criteria will assign institutions points according to an indicated degree of possible non-compliance.
        3. After ranking all institutions by point totals, the sub recipients chosen for an on- site review will be those which receive the lowest point total.
        4. Letters of notification will include any areas of concern and offer technical assistance even if the institution is not chosen for an on-site review.
      2. Selection of Institutions for On-Site Review
        1. All institutions having indicators of compliance problems during the agency level review will be targeted for on-site review.
        2. Agency level findings that will trigger an on-site review include:
          1. Enrollment Ratios - The enrollments of target populations at an institution will be compared to the identified target populations to be served from the service area. This comparison should determine positive or negative ratios of overall service.
          2. Enrollment Trends - Enrollment changes for target populations from 1980-85 will be considered. A positive or negative trend for a particular program area should be determined.
          3. Feeder School Ratios - Concentrations of target populations sent from a feeder high school in relation to available populations at that school will be examined. A positive or negative availability rate will be determined.
          4. Employment Trends - A review of changes in employment of target populations will be made by comparing 1980-85 staffing ratios. A positive or negative trend for employment will be determined.
          5. Planning Reports - A review of the data in the five year strategic plan and annual updates which indicates that an institution is not meeting criteria for serving target populations.
        3. If the number of institutions selected for on-site reviews does not equal at least 11% of those selected for agency level reviews, the balance will be selected randomly from the pool of those reviewed at the agency level in that year.
      3. Conducting the Review
        1. The on-site review is designed to further examine the indicators of possible non- compliance and verify indicators of compliance from the agency level review and to consider factors beyond the data examined to determine compliance or non- compliance.
        2. The data utilized in the agency level review only indicate possible non- compliance by an institution.
        3. The on-site review will be designed to investigate related factors in order to determine compliance or non-compliance.
        4. Examples of areas of further investigation for each criterion are outlined below:
          1. Investigation Criteria Problem Areas;
          2. Enrollment ratios;
          3. Disproportionate Methods of enrollments and registration;
          4. Recruitment procedures;
          5. Enrollment trends;
          6. Decreasing enrollments;
          7. Changes in target populations;
          8. Registration procedures;
          9. Changes in school admission policy;
          10. Feeder School Ratios;
          11. Exclusion of target populations methods of recruitment and registration;
          12. Employment Trends;
          13. Reduction in target population employed;
          14. Employment policies and procedures;
          15. Recruitment and position announcement policies;
          16. Planning Analysis and Reports;
          17. Any signal of non-compliance;
          18. Recommendations for changing institutional procedures.
      4. Problem areas not addressed in the agency level review
        1. Depending on the data indicating possible non-compliance, the Compliance Program Director and staff assigned for the on-site review will determine areas of inquiry for the on-site review.
        2. The following indicators are examples of areas of inquiry for the on-site review.
          1. Discriminatory faculty assignments;
          2. Failure to provide handicapped student access to programs;
          3. Procedures for faculty selection;
          4. Procedures used for notifying the public of the sub recipient’s nondiscriminatory policies and practices;
          5. Numerical limitations for admission of students to vocational education programs;
          6. Apprentice or other institution limitations for enrollment;
          7. Criteria for admission to vocational education programs where admission depends on, for example, past academic performance, record of disciplinary infractions, counselors' approval, faculty recommendations, interest inventories, high school diplomas, or standardized tests;
          8. Relationships with unions or other agencies providing training;
          9. Special provisions or programs for handicapped students or other special needs students;
          10. Relationship of programs for special needs students to total vocational programs;
          11. Programs of financial assistance for students;
          12. Guidance and counseling procedures and activities;
          13. Written policies and procedures for recruitment and enrollment;
          14. Placement procedures and opportunities;
          15. All agency level review findings of compliance will be verified.
      5. Timetable
        1. November: Notification of on-site review
        2. February - April: On-site reviews conducted and institution notified of results
        3. May - June: Voluntary compliance plans due.
    4. Use of Technical Assistance as a Means of Preventing Civil Rights Violations
      1. A technical assistance program will assist in preventing and detecting discrimination and seeking corrective action.
        1. The assistance will be provided by the Tennessee Board of Regents Staff to all levels of postsecondary vocational instruction within the TBR system.
        2. The Compliance Program Director will coordinate requests for technical assistance.
        3. The program will be designed to provide institutions assistance in the following areas:
          1. Content and purpose of OCR guidelines.
          2. Components and purpose of MOA.
          3. Data and information requested by institutions relative to discriminatory practices and corrective options.
          4. Information and guidelines to assist in achieving compliance.
      2. Institutions will be notified of the availability of assistance through correspondence, presentations at meetings, and on an individual basis.
        1. The frequency of notification will vary but will occur at least once a year when notification of approval for funding is sent.
        2. Technical assistance will be offered as visits from TBR specialists, written information being provided, programs at sub-council or presidents' meetings, training sessions, and questions answered on an individual basis.
      3. Technical assistance will be available to all institutions chosen for an agency level review. Institutions found to be in non-compliance as a result of an on-site review will be offered technical assistance with the development of a voluntary compliance plan.
      4. The following staff of the Tennessee Board of Regents will be responsible for technical assistance activities:
        1. Vice Chancellor for Student Success,
        2. Director of Student Initiatives,
        3. Special Assistant to the Chancellor,
        4. Legal Counsel; Tennessee Board of Regents,
        5. Vice Chancellor for Business and Finance,
        6. Vice Chancellor for Academic Affairs,
        7. Executive Director of Facilities Management
    5. Obtaining Voluntary Compliance
      1. Development of the Voluntary Compliance Plan
        1. Institutions found to be in violation of the guidelines as a result of an on-site review must agree to take steps to eliminate the violations.
        2. The Compliance Program Director will determine if the violations are major or minor and the institutions will comply as follows:
          1. Minor Violations - The Compliance Program Director will have an informal discussion with the institution as to corrective action. The institution may be found to be in compliance by submitting a letter describing corrective action to the Compliance Program Director.
          2. Major Violations - Institutions found to have major violations must submit a voluntary compliance plan describing actions to be taken to eliminate violations and a timeframe for completion. The plan will assume the format of an audit report (findings, recommendations, system reply) and will be submitted to the Compliance Program Director within 60 days of the on-site compliance review notification of findings. The discussions between institutions and Compliance Program Director will be formal and may involve other staff as deemed necessary. The Compliance Program Director will be responsible for assigning appropriate personnel for technical assistance.
          3. Follow-up of Violations - One year after an institution has agreed to remedy violations, the Compliance Program Director will assign the necessary staff to monitor the progress of the institution. Each violation identified in the voluntary compliance plan will be reviewed for progress in meeting desired outcomes. Specifically, indicators identified in Part IV: B.3.b. will be targeted for review.
      2. Notification to OCR
        1. The Compliance Program Director will notify the OCR regional office if the following conditions are in existence:
          1. An institution is not in compliance and fails to take corrective action;
          2. The institution fails to submit a voluntary compliance plan (notification of OCR will occur no later than 90 days after on-site review);
          3. The institution submits a plan that is inadequate but is working in good faith with the TBR to remedy deficiencies (notification of OCR will occur no later than 120 days after TBR issued on-site compliance review of findings)
        2. In all cases of notification of OCR, the Compliance Director will describe the efforts made by the Tennessee Board of Regents to secure voluntary compliance.
  5. Annual Civil Rights Compliance Report
    1. A report will be submitted by the Tennessee Board of Regents every other July 1 to the U.S. Office of Education, Office of Civil Rights.
      1. Compliance Organization and Staff
        1. Any changes in present personnel as to authority or responsibility.
        2. Any changes in organization or personnel.
      2. State Policy Review
        1. Findings of state policy review.
        2. Action taken by the Tennessee Board of Regents to amend and correct any policies or procedures found to have discriminatory effects.
      3. Review of State Operated Institutions and Programs
        1. Identification of state operated institutions having agency level review.
        2. Findings of review of institutions and list of institutions receiving on-site reviews.
        3. Copy of voluntary compliance plans for each institution involved.
        4. Action taken by the Tennessee Board of Regents to correct any problems identified.
      4. Technical Assistance
        1. List of institutions requesting technical assistance.
        2. Summary of other technical assistance.
      5. Institutions Referred to OCR
        1. List of institutions referred to OCR for failure to achieve voluntary compliance.
        2. Any response from OCR.
      6. Monitoring Activities
        1. Outline of activities by the Tennessee Board of Regents to monitor corrective action taken by institutions.
        2. Any correspondence with OCR as a result of monitoring activities.

 

 

Sources: 

Authority

Title VI; Title IX, Section 504; Title II of the ADA 

History

June 28, 1985, Tennessee Board of Regents Meeting; May 19, 2009 Presidents Meeting; November 14, 2017Presidents Meeting.

Policy Number: 
G-090
Topics Outline: 
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
TCATs, Community Colleges, System Office
Purpose: 

The following guidelines set forth considerations for the printing and use of letterhead stationery for all units of the Tennessee Board of Regents System. They are in accordance with the general rules and regulations of the Higher Education Publications Committee.

Policy/Guideline: 
  1. General Statement
    1. Each institution shall develop implementing procedures consistent with these guidelines. Exceptions to the guidelines are subject to prior approval by the Chancellor.
    2. Each president shall designate an individual, office, or committee to approve the printing and purchase of all letterhead stationery bearing the name of the institution and be responsible for enforcement of the institution's guidelines.
    3. Different types of letterhead on each campus shall be kept to a minimum.
    4. The following shall apply to all stationery printed or purchased with institutional funds:
      1. Letterhead
        1. All letterhead shall be printed on 8 1/2" x 11" or smaller standard size, 20 or 24-pound white or colored paper with a bond, wove or laid finish, No. 4 grade, with or without watermark, with 25% or less cotton fiber.
        2. All letterhead shall be printed with no more than a three color ink logo.
        3. The institution name shall appear at the top or bottom of the page.
        4. Names of offices or individual titles, addresses, and phone numbers may be printed on letterhead; however, no individual names may be printed on letterhead.
        5. All letterhead shall be offset printed, whether by the institution, the State, or commercial printer, without benefit of any engraving, thermograph printing, or any form of raised letter printing.
      2. Envelopes
        1. All stationery envelopes shall be printed with no more than three color ink on 24-pound white or colored wove or laid paper, in standard sizes, with the name and address of the institution printed in the upper left corner in accordance with postal regulations.
    5. As an alternative to letterhead stationery, less expensive inter-office memoranda should be used for on-campus or informal correspondence. 
Sources: 

Authority

T.C.A. § 49-8-203

History

November 8, 1982 SBR Presidents Meeting. Revised July 1, 1984.  Revised November 8, 2006 Presidents’ Meeting.

Policy Number: 
G-080
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
TCATs, Community Colleges, System Office
Purpose: 

The following guideline implements the Tennessee Board of Standards policy on membership dues and subscriptions paid for from State funds. Campus libraries are exempt from the guideline in its entirety.

Definitions: 
  • Membership Dues or Subscriptions - are any expenditure from state funds by an institution which entitle subscription of material or membership, associate membership, or participation in activities of an organization.
  • Organization - is a group (public or private), association, or society whose purpose is to promote common interests and share information.
  • Publication directly related to the mission - means a publication without which the mission of the institution would be impossible or difficult to perform.
Policy/Guideline: 
  1. General Statement
    1. Each president is responsible for enforcement of the provisions below. This responsibility may, at the president's discretion, be delegated to other employees of the institution.
  2. Approval
    1. Each institution shall develop, make known, and enforce a process for approval of memberships and subscriptions.
      1. The president or designee(s) shall approve all memberships and subscriptions except as provided below.
  3. Criteria
    1. An institution may be a member of an organization or maintain subscriptions if the membership or subscription is directly related to the goals and mission of the institution.
    2. An institution may not pay the membership dues or subscription of an individual.
      1. An exception may be granted in instances where an organization does not permit institutional membership or where an individual membership (in the name of an institutional representative) is less expensive than an institutional membership.
      2. However, memberships necessary to maintain or enhance an employee's professional status (e.g. American Institute of Certified Public Accountants or Bar membership dues) should be considered the responsibility of the employee and the association dues considered a personal expense.
    3. Duplicate memberships and subscriptions should be evaluated with the intention of eliminating unneeded duplicate membership/subscription per institution.
    4. Where membership dues are included as part or all of the expense of an organization meeting for which the institution pays the expense of an employee to attend, the appropriate expenses shall be considered membership dues under these guidelines and should be subject to the established membership approval process.
    5. Faculty and staff membership in civic organizations is encouraged; however, state funds may not be used to pay for memberships.
    6. No institution may subscribe to political publications for other than instructional purposes.
    7. An institution may subscribe to newspapers within its service area for public information and instructional-related purposes.
    8. Newspaper clipping services must be approved by the president or designee.
      1. The need for the service shall be clearly set forth in writing.
      2. The written justification should address the following points:
        1. The type of clipping service requested. (For example, all statewide daily newspapers.)
        2. The use of information provided by the service.
          1. Who the clippings are circulated to in the institution.
          2. How the clippings benefit the institution.
      3. A statement that the clipping service is the most economical means of fulfilling the institution's need
  4. Exceptions
    1. Exceptions to these guidelines may be approved by the Chancellor. 
Sources: 

Authority

T.C.A. § 49-8-203

History

May 25, 1982 SBR presidents meeting. Revised July 1, 1984; Presidents Meeting February 13, 2002; Presidents Meeting August 19, 2003; May 12, 2009 presidents meeting.

Policy Number: 
G-075
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
TCATs, Community Colleges, System Office, Board Members
Purpose: 

This guideline is issued to aid Tennessee Board of Regents (“TBR”) System in the implementation of a Litigation Hold Notice Procedure to comply with the Federal Rules of Civil Procedure provisions regarding preservation of Electronically Stored Information.

Definitions: 
  • Electronically Stored Information (“ESI”) - refers to all forms of electronic data and documents including, but not limited to, metadata, electronic mail, word processing documents, calendars, voice messages, videos, digital photographs, information in personal digital assistants (PDA) in any location where data may be stored.
  • Litigation Hold Procedure – is a process whereby an institution, when sued in federal court or when reasonably anticipating federal litigation, issues a litigation hold notice communication suspending the normal operation of paper and electronic document destruction policies for particular records that are relevant to the federal litigation.
  • Litigation Hold Notice Letter – is the communication that is distributed to preserve information and prevent or suspend destruction of paper documents and electronic data that must be retained during a litigation hold (attached as Exhibit 1). 
  • Records Coordinator - refers to the individual at an institution who has been appointed by the President to serve as the institution’s Records Coordinator/Official. The Records Coordinator has the authority and responsibility to dispose of paper and electronic documents in accordance with approved records disposition authorizations under TBR Policy 1:12:01:00 Records Retention and Disposal of Records. Prior to the destruction of any records, the Records Coordinator must determine if the action should be delayed due to audit or federal litigation hold requirements.
  • Evidence - refers to  hard copy and electronic / digital recordings, videotapes, writings, material objects, photographs, drawings, diagrams, testimony, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
Policy/Guideline: 
  1. Introduction
    1. Federal law requires parties to a lawsuit pending in federal court to preserve electronic data and documents pertaining to the lawsuit in conformance with the Federal Rules of Civil Procedure. There is a legal duty to preserve evidence (e.g., documents and things), including electronic documents, when the institution has notice that the evidence is relevant to pending federal litigation.
    2. This guideline explains that TBR Institutions must develop a comprehensive written Federal Litigation Hold Notice Procedure (“Litigation Hold Procedure”) to retain Electronically Stored Evidence (“ESI”) evidence that is relevant to a federal lawsuit as required by the Federal Rules of Civil Procedure.
      1. An institution’s Litigation Hold Procedure must include the components described in this guideline pursuant to which the institution intends to preserve and retain all evidence, including ESI that is relevant to pending federal litigation in order to avoid penalties for non-compliance with the Federal Rules of Civil Procedure.
    3. The penalties for non-compliance with the federal law regarding electronic evidence retention in federal litigation are severe and potentially costly. The consequences for an institution could include, but are not limited to:
      1. Monetary sanctions;
      2. Payment of the opposing party’s attorneys’ fees and costs;
      3. Preclusion of the institution’s evidence at trial;
      4. Dismissal of the institution’s claims and counterclaims; and
      5. Default judgments against the institution.
    4. Each institution is solely responsible for payment of any monetary sanctions issued by the court resulting from the institution’s non-compliance with electronic record retention requirements as required by federal law hence the importance of an institutional litigation hold procedure.
  2. Litigation Hold Application
    1. The Litigation Hold Procedure shall apply to any evidence, paper or electronic documents and data or things, maintained by an institution that is relevant to a federal lawsuit.
      1. Such evidence shall be preserved and retained by the institution pursuant to the provisions of the Litigation Hold Notice until the conclusion of both the litigation and the requisite time period after the litigation as outlined in TBR Policy 1:12:01:00 Records Retention and Disposal of Records.
      2. Notwithstanding the records retention and disposition schedule outlined in TBR policy, upon issuance of a Litigation Hold Notice, institutions must suspend routine purging, overwriting, re-using, deleting, or any other destruction of electronic information relevant to a federal law dispute, including electronic information wherever it is stored.
      3. This includes, but is not limited to, electronic information at an institution work station, on a laptop, in a personal digital assistant, on a CD-rom, at an employee’s home, etc.
      4. The retention requirement includes all forms of attorney-client privileged and non-attorney-client privileged electronic documents.
        1. In the context of federal litigation, although all information must be preserved, no data will be disclosed to the opposing party without first being reviewed to determine legal necessity, relevance, and privilege.
        2. Privileged documents (e.g., attorney-client communications) will not be disclosed to the opposing party.
    2. The same preservation requirement exists for paper documents such that institutions must suspend routine or intentional destruction of paper documents that are relevant evidence in a federal lawsuit as outlined in a Litigation Hold Notice.
  3. Purpose of a Litigation Hold Notice
    1. There will be instances in which an institution must implement a Litigation Hold Notice that requires the retention of certain paper and electronic records for an indefinite period of time due to pending federal litigation.
    2. A Litigation Hold Procedure is the process whereby an institution, when sued in federal court, sends a Litigation Hold Notice suspending the normal operation of document destruction policies for particular records that are relevant to the federal litigation.
    3. Notwithstanding the applicable records retention schedule, documents that are subject to a particular Litigation Hold Notice must be retained until the hold is removed.
    4. The Records Coordinator, or a designee, at an institution is responsible for implementing the Litigation Hold Procedure upon notice of the need for a Litigation Hold Notice to preserve relevant ESI and paper documents.
    5. Identifying instances in which a Litigation Hold Notice is required and its subsequent implementation requires collaboration of multiple individuals at the institution, including the institution’s Legal Counsel.
    6. The Litigation Hold Notice Procedure that results in the issuance of a Litigation Hold Notice Letter is outlined in this section. The implementation of an institutional Litigation Hold Notice requires adherence to the procedure outlined in this guideline or an alternative process established at an institution that includes the components of the procedure outlined in this guideline.
  4. Institution’s Notification of Federal Litigation
    1. Responsible Party: All Employees
      1. All employees have an affirmative duty to inform the institution’s Records Coordinator when they receive official notification of federal litigation against the institution.
    2. Official Notice Federal Litigation
      1. Employees are considered to be in receipt of official notice of federal litigation when they receive a complaint, summons, and/or other official documents related to a federal lawsuit.
    3. Employee’s Notification of Federal Litigation to Records Coordinator
      1. Responsible Party: All Employees
        1. Based on the factors outlined in Section IV. B. of this guideline, employees who have official notice of federal litigation against the institution must inform the institution’s Records Coordinator, in writing, of the matter within two (2) business days of their receipt of notification.
    4. Records Coordinator’s Issuance of Litigation Hold Notice Letter
      1. Responsible Party: Records Coordinator
        1. In consultation with and under the direction of Legal Counsel, the institution’s Records Coordinator, or designee, will issue an Official Litigation Hold Notice Letter regarding the matter to the appropriate individuals within five (5) business days of receipt of notification of pending federal litigation.
        2. The Litigation Hold Notice Letter must state the categories of electronic and paper documents, including ESI, that must be retained until further notice and that electronic information must be preserved in its original electronic form, so that all information contained within it, whether visible or not, is also available for inspection.
          1. It is not sufficient to retain only a paper copy of ESI. A Model Litigation Hold Notice Letter is attached to this guideline as Exhibit 1.
          2. Institutions must consult with Legal Counsel prior to issuing a Litigation Hold Notice Letter.
    5. Employees’ Compliance with the Litigation Hold Notice Letter
      1. Responsible Party: Employee recipients of the litigation hold notice
        1. In response to an official Litigation Hold Notice Letter issued by the institution’s Records Coordinator, or designee, all individuals who receive the notice must compile paper and electronic documents and data (including e-mails, voicemails, videos, etc.) as instructed in the notice letter.
        2. Electronic records must be retained in the original electronic format (e.g., burned to disk/CD, saved in a secure folder on the system server that is not subjected to unannounced deletion, etc.).
        3. It is not sufficient to print paper copies of electronic records as they must be maintained in their original electronic format.
        4. It is the responsibility of individuals to whom the litigation hold notice is issued to retain all records that are responsive to the notice until they receive written notification indicating otherwise.
  5. Assessment of the Litigations Hold Notice
    1. The Records Coordinator, in conjunction with the appropriate administrators and Legal Counsel, shall assess the effectiveness of the institution’s Litigation Hold Notice Procedure on a periodic basis, as deemed necessary by the institution.
    2. The Records Coordinator shall make certain that necessary revisions to the Litigation Hold Notice Procedure are made at the time of the review to address any changes in the institutional organization that may affect the implementation and effectiveness of the Procedure.
  6. Publication of the Litigation Hold Notice Procedure
    1. To promote uniform compliance with the Litigation Hold Procedures by all personnel employed by an institution and to achieve TBR institutions’ duty to preserve and retain relevant paper and electronic evidence in federal litigation, institutions shall, at a minimum, display and distribute its Litigation Hold Notice Procedure, or this Guideline in the absence of an institutional Procedure in accordance with the standard distribution methods.
    2. The institution’s current Litigation Hold Notice Procedure or, in the absence of an institutional procedure, this Guideline, shall be available upon request for review and copy at all times during normal business hours. 
Sources: 

Authority

T.C.A. § 49-8-203; Federal Rules of Civil Procedure

History

Source: Approved at Presidents Meeting, November 6, 2007.

Policy Number: 
G-040
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
Community Colleges
Purpose: 

The purpose of this guideline is to establish the operational guidelines for expenditures on system-owned residencies furnished to TBR Presidents at institutions governed by the Tennessee Board of Regents.

Policy/Guideline: 
  1. Expenditure Guidelines
    1. The Board of Regents and the institutions under its control furnish to the presidents system-owned residencies in recognition of the role these staff members must play in official entertainment and other official functions in these residencies.
    2. Expenditures are required to furnish, maintain, repair, renovate, and operate these residencies. The following guidelines apply to expenditures on these residencies by the respective institutions for their presidents:
      1. The institution will pay all utility bills for these residencies.
      2. The institution will pay for necessary repairs and maintenance to keep these buildings in an acceptable state of repair and operation.
      3. The institutions will finance any major renovations and expansions of these buildings, subject to their being approved by the Chancellor.
      4. The institutions will purchase and replace furniture and furnishings used in public and/or official entertainment areas in these residencies. Staff members will provide furniture used in private or family areas. Carpets or rugs and wall and window coverings will be purchased through normal institutional purchasing procedures and will be in a cost range in keeping with the quality of the residencies and for long wear and service.
      5. Staff members occupying these residencies will be expected to purchase any furniture or furnishings which are for their own personal convenience and may take them when they or their heirs leave the residency.
      6. The Board and institutions will provide the necessary grounds keeping and custodial personnel to maintain the grounds and residencies at an acceptable level of cleanliness and attractiveness along with required cleaning and grounds keeping supplies and equipment.
      7. Staff members occupying these residencies are expected to use appropriate judgment and discretion in the expenditures of money for operation, maintenance, repairs, and furnishings.
Sources: 

Authority

T.C.A. § 49-8-203

History

Approved by Chairman of SBR Committee on Finance and Business Operations, September 1, 1975; Presidents’ Meeting February 13, 2002.

Policy Number: 
G-030
Policy/Guideline Area: 
General Guidelines
Applicable Divisions: 
TCATs, Community Colleges, System Office
Purpose: 

The purpose of this guideline is to establish the criteria and processes for contracts as applied to the Institutions governed by the Tennessee Board of Regents. It is not intended to cover all of the Tennessee Board of Regents policies and guidelines or all possible issues that may arise while reviewing contracts; rather, it is intended to give you a general guideline for how to address contract issues. You are responsible for complying with all other relevant policies. This Guideline is subject to regular update, revision and improvement.

Policy/Guideline: 
  1. General Contract Provisions Applicable to All Contracts
    1. Each Institution is a public institution of higher education within the State University and Community College System established by T.C.A. § 49-8-101. As such, it possesses certain rights and privileges and is subject to certain limitations and restrictions. As an instrumentality of the State of Tennessee, each Institution has sovereign immunity under Article I, Section 17 of the Tennessee Constitution and the Eleventh Amendment to the Constitution of the United States. Only the Tennessee General Assembly has the authority to waive sovereign immunity; no official within the State University and Community College System has this authority. An Institution has limited contracting authority and can agree only to contract terms that are consistent with Tennessee law. A free un-annotated version of the Tennessee Code may be found at http://www.lexisnexis.com/hottopics/michie 
      1. Purpose of a Written Contract
        1. The purpose of a written contract is to embody the complete agreement in writing. The title of a document is irrelevant. Whether the document is called an agreement, contract, memorandum of agreement, memorandum of understanding, purchase order, or other similar name, it is subject to the requirements of this Guideline. No relevant terms should be left to an unwritten understanding or verbal agreement between the parties. The document should clearly identify all parties and be explicit in setting forth the rights and duties of each party.
      2. Approval/Authority
        1. The authority to approve contracts is delineated in TBR Policy 1-03-02-10 (Approvals).
      3. Negotiation
        1. Generally, it is the Institution’s responsibility to negotiate with the other party to bring an agreement into conformity with this Guideline and to determine that the terms are acceptable to the contractor before the agreement is sent to the System Office for approval.
        2. The System Office Department of Purchasing and Contracts and the Office of General Counsel are available for assistance in negotiating modifications with the contractor when the Institution has been unable to secure agreement of the contractor.
      4. Required Contract Provisions
        1. Form Contracts
          1. Whenever possible, one of the form contracts in the Exhibit Section should be utilized in order to assure that an agreement conforms to the requirements of TBR policy and this Guideline.
        2. Vendor Generated Contracts
          1. If necessary to use a vendor generated contract, these provisions should be included when applicable.
        3. Purpose/Duties/Scope
          1. Every contract must contain language regarding its purpose and the duties of the parties.
        4. Term of Agreement
          1. A contract shall be entered into for a period of time sufficient to adequately accomplish the Institution’s objectives.
          2. Expenditure contract terms shall not exceed a total term of sixty (60) months. Revenue contracts shall not exceed a total of one hundred and twenty (120) months. Any exceptions may be submitted to the System Office for consideration and approval prior to contracting activities with the contracting party.
          3. Expenditure and revenue agreements must provide a beginning and ending date or must include clear language as to how these dates will be determined.
          4. Contracts executed or proposed to be executed for periods of time of more than twelve (12) months:
            1. should contain a provision giving the Institution the right of cancellation for convenience; (See T. C. A. § 12-3-305(c)(1))
            2. shall contain a provision giving the Institution the right of cancellation at the end of any fiscal year without notice, in the event that funds to support the contract become unavailable.(See T. C. A. § 12-3-305(c)(2))
          5. A contract may provide for automatic renewal if it:
            1. requires no expenditure of state funds; or
            2. contains language that allows for cancellation at the end of any fiscal year for lack of funding
          6. In the event of automatic renewal, the maximum term of the contract is subject to Section d. above.
        5. Payments
          1. Contracts requiring payments for goods or services, or the purchase order/order form/statement of work issued pursuant to such Contracts, must include specific rates and prices for the goods or services being procured as well as any payment conditions.
          2. Payments are to be made only upon the submittal of an invoice by the contractor after the goods are received or the services performed; however, advance payments may be made under the following types of contracts:
            1. Licensing
            2. Preventive maintenance/service
            3. Subscriptions
            4. Memberships
            5. In other instances, only if approved in accordance with TBR Policy 1-03-02-10 (Approvals).
          3. All contracts shall contain a provision that the Contractor’s performance shall be subject to monitoring and evaluation by the Institution and/or other appropriate parties.
          4. If the Contractor is not a US citizen, or Permanent U. S. resident, payment of any portion of the contract from any source will not be made until the Contractor has provided proof of tax status to the Institution. The payment is contingent upon Contractor’s eligibility for payment and tax status and the contract should specify that appropriate withholding may be deducted from the Contractor’s payment.
        6. Maximum Liability
          1. Contracts requiring payment(s) by the Institution must specify the maximum dollar amount or must include clear language on how expenditures will be tracked (i.e. purchase orders against master terms, order forms, etc.) that may be paid under the contract.
        7. Conflict of Interest
          1. Contracts should contain the following provision:
            1. The Contractor warrants that no part of the total Contract Amount shall be paid directly or indirectly to an employee or official of the State of Tennessee as wages, compensation, or gifts in exchange for acting as an officer, agent, employee, subcontractor, or consultant to the Contractor in connection with any work contemplated or performed relative to this Contract.
              ​The Contractor acknowledges, understands, and agrees that this Contract shall be null and void if the Contractor is, or within the past six months has been, an employee of the State of Tennessee or if the Contractor is an entity in which a controlling interest is held by an individual who is, or within the past six months has been, an employee of the State of Tennessee.
              1. This provision is not applicable and should be omitted from agreements between TBR Institutions or between a TBR Institution and another state entity.
        8. Non-discrimination
          1. Contracts should contain the following provision or a similar provision in which the parties agree not to discriminate.
            1. Non-discrimination. The Contractor shall abide by all applicable Federal and State law pertaining to discrimination and hereby agrees, warrants, and assures that no person shall be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination in the performance of this Contract or in the employment practices of the Contractor on the grounds of classifications protected by Federal or State law.
        9. Audit and Documentation
          1. Except as noted in b and c below, the following provision must be included in contracts which require any payment to be made by the Institution:
            1. “The Contractor shall maintain documentation for all charges against the Institution under this Contract. The books, records, and documents of the Contractor, insofar as they relate to work performed or money received under this Contract, shall be maintained for a period of three (3) full years from the date of the final payment and shall be subject to audit at any reasonable time and upon reasonable notice by the Institution, the Comptroller of the Treasury, or their duly appointed representatives. Any financial statements required by this Contract shall be prepared in accordance with generally accepted accounting principles.” (Reference T.C.A Code 12-3-602(c))
          2. See Section V herein on Grant Contracts for audit language for grants.
          3. The audit clause is not required for a one time, fixed payment contract.
        10. Payment for Travel, Meals, Lodging
          1. If a contractor is to be paid/reimbursed for travel, meals or lodging, such payment shall be in the amount of actual cost/per diem, and shall be expressly subject to the limits and provisions of TBR Policy 4:03:03:00 (General Travel).
        11. Governing Law
          1. Contracts shall contain a provision that the contract is to be governed by and construed in accordance with the laws of the State of Tennessee. The contract may be silent as to the governing law if the other party will not accept the governing law of the State of Tennessee.
        12. Sales and Use Tax
          1. The following provision shall be included in all contracts for the acquisition of goods or services:
            1. Sales and Use Tax
              1. “The Contractor shall be registered with or have received an exemption from the Department of Revenue for the collection of Tennessee sales and use tax. This registration requirement is a material requirement of this Contract. The Contractor shall comply, and shall require any subcontractor to comply, with all laws and regulations governing the remittance of sales and use taxes on the sale of goods and services made by the Contractor, or the Contractor’s subcontractor.”
        13. Debarment
          1. The following provision shall be included in all contracts for the acquisition of goods or services:
            1. Debarment and Suspension. The Contractor certifies, to the best of its knowledge and belief, that it and its principals:
              1. are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal or State department or agency;
              2. have not within a three (3) year period preceding this Contract been convicted of, or had a civil judgment rendered against them from commission of fraud, or a criminal offense in connection with, obtaining attempting to obtain, or performing a public (Federal, State, or Local) transaction or grant under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property;
              3. are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or Local) with commission of any of the offenses listed in section (ii) of this certification; and
              4. have not within a three (3) year period preceding this Contract had one or more public transactions (Federal, State, or Local) terminated for cause or default.
        14. Illegal Immigrants
          1. The following provision shall be used in all contracts for the acquisition of goods or services:
            1. “T.C.A. § 12-3-309 prohibits State entities from contracting to acquire goods or services from any person who knowingly utilizes the service of illegal immigrants in the performance of the contract and by signing this Contract, the Contactor attests, certifies, warrants, and assures that the Contractor shall not knowingly utilize the services of illegal immigrants in the performance of the Contract and will not knowingly utilize the services of any subcontractor, if permitted under the Contract, who will utilize the services of illegal immigrants in the performance of the Contract. (For contracts that require Fiscal Review Committee approval, the original language with the signed Attestation Form incorporated as an Attachment to the Agreement must be used)
        15. Data Privacy and Security
          1. For contracts in which the Contractor will have access to Institutional student or customer data and will be maintaining the   Institution’s data on the Contractor’s computer network or servers, the following clause should be included in the contract:
            1. “Data Privacy. “Personal Information” means information provided to Contractor by or at the direction of Institution, or to which access was provided to Contractor by or at the direction of Institution, in the course of Contractor’s performance under this Agreement that:
              1. identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or
              2. can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued  identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to  security questions and other personal identifiers.
                Contractor represents and warrants that its collection, access, use, storage, disposal and disclosure of Personal Information complies with all applicable federal and state privacy and data protection laws, including without limitation, the Gramm-Leach-Bliley Act (“GLBA”); the Health Information Portability and Accountability Act (“HIPAA”);the Family Educational Rights and Privacy Act (“FERPA”) of 1974 (20 U.S.C.1232g), the FTC’s Red Flag Rules and any applicable federal or state laws, as amended ,together with regulations promulgated thereunder.
                Some Personal Information provided by Institution to Contractor is subject to FERPA. Contractor acknowledges that its improper disclosure or re-disclosure of Personal Information covered by FERPA may, under certain circumstances, result in Contractor’s exclusion from eligibility to contract with Customer for at least five (5) years and agrees to become a “school official” as defined in the applicable Federal Regulations for the purposes of this Agreement.
            2. Data Security. Contractor represents and warrants that Contractor will maintain compliance with the SSAE16 standard, and shall undertake any audits and risk assessments Contractor deems necessary to maintain compliance with SSAE16.
            3. Incident Response. “Security Incident” means any reasonably suspected breach of information security, unauthorized access to any system, server or database, or any other unauthorized access, use, or disclosure of Personal Information or Highly-Sensitive Personal Information occurring on systems under Contractor’s control.  Contractor shall: (a) provide Institution with the name and contact information for an employee of Contractor who shall serve as Customer’s primary security contact and shall be available to assist Customer twenty-four (24) hours per day, seven (7) days per week as a contact in resolving obligations associated with a Security Incident; (b) notify Institution of a Security Incident as soon as practicable, but no later than forty eight (48) hours after Contractor becomes aware of it, except where disclosure is prohibited by law; and (c) notify Institution of any such Security Incident as follows: (insert applicable IT or other staff contact information specific to the Institution here)
              1. Contact:
              2. Contact Email:
              3. Contact Phone:
                and
              4. a copy by e-mail to Contractor’s primary business contact at the Institution.
            4. ​Contractor shall use best efforts to immediately mitigate or resolve any Security Incident, at Contractor’s expense and in accordance with applicable privacy rights, laws, regulations and standards. Contractor shall reimburse Institution for actual costs incurred by Institution in responding to, and mitigating damages caused by, any Security Incident, including all costs of notice and/or remediation incurred under all applicable laws as a result of the Security Incident.
            5. Return of Personal Information. At any time during the term of this Agreement, at the Institution’s written request or upon the termination or expiration of this Agreement, Contractor shall return to the Institution all copies, whether in written, electronic or other form or media, of Confidential, Highly-Sensitive, or Personal Information in its possession, or at Customer’s direction, securely dispose of all such copies.”
        16. Gramm Leach Bliley Act (GLBA) Language
          1. If the contract does not require the Data Privacy and Security Clause found in Section 15 above, a contract in which the Contractor provides a service requiring the Contractor to have access to an Institution’s customers’ non-public financial information for the purpose of providing a financial product or service, such as a student loan, must include the following clause:
            1. “Throughout the term of this Agreement, Contractor shall implement an Information Security Program (‘the Program’) and maintain ‘appropriate safeguards,’ as required by 16 C.F.R. § 314, for all ‘customer information,’ (as that term is defined in 16 C.F.R § 314.2(b)) obtained by or provided to Contractor pursuant to this Agreement. Contractor shall promptly notify the Institution, in writing, of each instance of:
              1. unauthorized access to or use of that nonpublic financial customer information that could result in substantial harm or inconvenience to a customer of the Institution: or
              2. unauthorized disclosure, misuse, alteration, destruction or other compromise of that nonpublic financial customer information.
                Contractor shall forever defend and hold Institution harmless from all claims, liabilities, damages, or judgments involving a third party, including Institution’s costs and attorney fees, which arise as a result of Contractor’s failure to meet any of its obligations under this provision.
                Contractor shall further agree to reimburse the Institution for its direct damages (e.g., costs to reconstruct lost or altered information) resulting from any security breach, loss, or alteration of nonpublic financial customer information caused by the Contractor or its subcontractors or agents.
                Contractor grants Institution the right to conduct on-site audits, as deemed necessary by the Institution, of the Contractor’s Program to ensure the integrity of the Contractor’s safeguarding of the Institution’s customers’ nonpublic financial information.
                Institution retains the right to unilaterally terminate the Agreement, without prior notice, if Contractor has allowed a material breach of the Program in violation of its obligations under the Gramm-Leach-Bliley Act, if Contractor has lost or materially altered nonpublic financial customer information, or if the Institution reasonably determines that Contractor’s Program is inadequate. Within thirty (30) days of the termination or expiration of this Agreement, Contractor shall, at the election of Institution, either:
              3. return to the Institution all records, electronic or otherwise, in its or its agent’s possession that contain such nonpublic financial customer information; or
              4. destroy (and shall cause each of its agents to destroy) all records, electronic or otherwise, in its or its agent’s possession that contain such nonpublic financial customer information all such records and shall deliver to the Institution a written certification of the destruction.
        17. Red Flags Language
          1. The Federal Trade Commission rules concerning the prevention of identity theft (16 CFR Part 681 – Identity Theft Rules) require that Institutions monitor the activities of its contractors performing activities in connection with one or more covered accounts. Covered accounts are those that a creditor offers or maintains, primarily for personal, family or household purposes such as credit card accounts. The activities of the contractor can include such activities as opening or managing accounts, billing, providing customer service or collecting debts. In these situations, the contractor must apply the same standards as the Institution would if the Institution were performing those tasks.
          2. Pursuant to TBR Policy 4:01:05:60 (Identity Theft Prevention), Institutions must require, by contract, that the contractor either:
            1. Have policies and procedures in place to comply with the Rule; or
            2. Review the Institutional policy and report any red flags to the Program Administrator.
          3. The following language should be included in contracts as described in subsection a. above wherein the contractor will be performing any of the listed services:
            1. “Red Flags and Identity Theft. The Service Provider shall have policies and procedures in place to detect relevant Red Flags that may arise in the performance of the Service Provider's activities under the Agreement, or review the Institution's Red Flags identity theft program and report any Red Flags to Institution.”
          4. If the contractor maintains its own identity theft prevention program consistent with the guidance of the Red Flag Rules and validated by due diligence by the Institution’s Program Administrator (see TBR Policy 4:01:05:60 (Identity Theft Prevention)), the contractor shall have met the requirements of the first paragraph of this Section.
        18. FERPA Language
          1. If the contract will involve sharing student educational records with the contractor, the contract must contain a clause requiring the contractor to comply with the Family Educational Rights and Privacy Act (FERPA).If the contract does not require the Data Privacy and Security Clause found in Section 15 above, the following clauses, or one substantially similar to them, should be included in the contract:
            1. The parties acknowledge that students’ education records are protected by the Family Educational Rights and Privacy Act (FERPA), and that Contractor will be considered a "School Official" (as that term is used in FERPA and its implementing regulations) and will comply with FERPA. Student education records will only be used for the purposes of carrying out this agreement.  Student permission must be obtained before releasing specific data to anyone other than University and Contractor employees who have a legitimate educational purpose.
              OR
            2. Because the Contractor is performing an institutional service or function that has been outsourced by the Institution and for which the Institution would otherwise use its employees and is under the direct control of the Institution with respect to the use of the education records, as defined by FERPA, the Contractor recognizes it is subject to all FERPA requirements governing the use and re-disclosure of personally identifiable information from education records, including without limitation the requirements of 34 CFR §99.33(a). Furthermore, the Contractor may not disclose or re-disclose personally identifiable information unless the Institution has first authorized in writing such disclosure or re-disclosure; will not use any personally identifiable information acquired from the Institution for any purpose other than performing the service or function that is the subject of this Agreement; and agrees to return to the Institution (or, if not feasible, to destroy) education records in whatever form or medium that the Contractor received such records from or created them on behalf of the Institution.
        19. Click-Wrap Agreements
          1. Contracts which may require individual Institutional users to accept online terms and conditions should contain the following clause:
            1. Click-Wrap Agreements. The Contractor agrees that click-wrap or click -through agreements shall not be binding upon the Institution. No employee has the actual or apparent authority to enter into click-wrap or click -through agreements on behalf of the Institution without the approval of the Institution’s Procurement and/or Contracts Office. No employee has the authority to modify, amend, or supplement this Agreement through a click-wrap or click -through agreement. This Agreement can only be modified, amended, or supplemented under these terms through a written amendment in accordance with the Institution’s and TBR’s procedures, policies, and guidelines.
        20. Contractor Commitment to Diversity
          1. The Governor’s Office of Diversity Business Enterprises requires all contracts contain the following clause:
            1. Contractor Commitment to Diversity. The Contractor shall assist the Institution in monitoring the Contractor’s performance of this commitment by providing, as requested, a quarterly report of participation in the performance of this Contract by small business enterprises and businesses owned by minorities, women, and Tennessee service-disabled veterans. Such reports shall be provided to the Institution in form and substance as required by Institution.
        21. Service and Software Accessibility Standards
          1. If the contract will require either that employees or students of the Institution access the Contractor’s software or website, the contract should contain the following clause:
            1. “The Contractor warrants and represents that the service and software, including any updates, provided to the Institution will meet the accessibility standards set forth in WCAG 2.0 AA (also known as ISO standard, ISO/IEC 40500:2012), EPub 3 and Section 508 of the Vocational Rehabilitation Act. To the extent that the Products fail to meet the WCAG 2.0 AA, EPub 3 and Section 508 standards, the Contractor will provide Institution with a fully completed Accessibility Statement and Conformance and Remediation forms (Attachment 6.11 & 6.12). The Contractor shall indemnify and hold the Institution harmless in the event of claims arising from inaccessibility related to the Contractor’s products/services.”
        22. Iran Divestment Act
          1. Contracts with a value greater than $1000.00 should contain the following:
            1. The requirements of T.C.A. § 12-12-101 et.seq., addressing contracting with persons with investment activities in Iran, shall be a material provision of this Contract. The Contractor agrees, under penalty of perjury, that to the best of its knowledge and belief that it is not on the list created pursuant to T.C.A. § 12-12-106.
      5. Impermissible Provisions
        1. The provisions listed under this section are not to be included in any contract:
          1. Clauses that are similar to those identified below as an Example may be replaced by the alternative language (as indicated in italics) without consulting with Institutional or TBR legal counsel, as long as it is used exactly as it is written below. If the contractor will not accept the proposed alternative, or if the proposed alternative does not suit the Institution’s needs, please consult with Institutional or TBR legal counsel regarding other possible alternatives.
            1. Provisions requiring the Institution to pay taxes.
              1. As State agencies, TBR institutions are not liable for the payment of Tennessee property tax or sales or use taxes.  (T.C.A. §§ 67-5-203 and 67-6-322.)  As there are a great many other taxes (federal, foreign, other states) that may come into play, the preferred language would be to limit the school’s liability for taxes to those “required by law”.
                EXAMPLE:
                Taxes. It is the Customer’s responsibility to pay all taxes or other government charges relating to the Services, transfer, use, ownership, service, or possession of any equipment relating to this Agreement.
                ALTERNATIVE:
                Taxes. To the extent required by law, it is the Customer’s responsibility to pay all taxes or other government charges relating to the Services, transfer, use, ownership, service, or possession of any equipment relating to this Agreement.
            2.  Provisions requiring the Institution to pay punitive damages or costs of litigation other than court costs (T.C.A. § 9-8-307(d)).
              1. The extent to which the state can be held liable for contract damages is strictly defined by statute. T.C.A. § 9-8-307(d) provides that the state shall be liable for actual damages only. It prohibits the payment of attorneys’ fees and litigation expenses, punitive damages and penalties.
                EXAMPLE:
                Institution shall promptly reimburse Contractor for any and all of Contractor’s costs and expenses including, without limitation, court costs and attorneys’ fees in connection with Contractor's collection of Institution’s obligations, including interest thereon at the rate of eighteen percent (18%) per annum.
                ALTERNATIVE:
                The best alternative is to delete the language, but if the Contractor objects to deleting it, substitute the following:
                Any and all monetary claims against the State of Tennessee, its officers, agents, and employees in performing any responsibility specifically required under the terms of this Agreement shall be submitted to the Board of Claims or the Claims Commission of the State of Tennessee and shall be limited as provided in T.C.A.§ 9-8-307.
            3. Provisions for the payment of travel/per diem expenses in excess of maximum limitations set forth in TBR Policy 4:03:03:00 (General Travel Policies and Procedures).
              1. Contracts must provide that any reimbursable travel expenses be in compliance with TBR policy.
                EXAMPLE:
                Reimbursable Expenses. Client agrees to reimburse Contractor for the following travel expenses incurred by Contractor in its performance of services: (a) air travel, not to exceed the coach class rate; (b) auto rentals; (c) lodging and miscellaneous expenses, such as parking, taxi fares, fuel; and (d) a per diem rate for meals, as published and updated by the U.S. General Services Administration. Further, Contractor shall provide itemized receipts for all travel-related expenses. The Institution will not reimburse Contractor for any travel-related expenses that lack an itemized receipt.
                ALTERNATIVE:
                Reimbursable Expenses. Client agrees to reimburse Contractor for the following travel expenses incurred by Contractor in its performance of services: (a) air travel, not to exceed the coach class rate; (b) auto rentals; (c) lodging and miscellaneous expenses, such as parking, taxi fares, fuel; and (d) a per diem rate for meals. Reimbursement for all travel-related expenses will be in accordance with The Tennessee Board of Regents travel policies. Further, Contractor shall provide itemized receipts for all travel-related expenses. The Institution will not reimburse Contractor for any travel-related expenses that lack an itemized receipt.
            4. Provisions designating the governing law of a state other than Tennessee or consenting to jurisdiction in courts outside Tennessee.
              1. Such a provision would be considered a waiver of sovereign immunity, which we have no legal authority to do. If the other party won’t agree to Tennessee State law, the only alternative is to delete the language entirely and let the contract remain silent as to which law governs.
                EXAMPLE:
                11.8 Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
                ALTERNATIVE:
                11.8 Governing Law. Deleted
            5. Provisions requiring the Institution to make deposits or payments before goods are received or services are performed; provided, however, for those circumstances specified in Section I. 4. e.(2) above, such provisions may be acceptable.
            6. Provisions requiring the Institution to purchase or obtain liability, property or other insurance or a performance bond.
              1. The State of Tennessee self-insures its exposures in general liability, automobile liability, professional malpractice and workers' compensation. The State's self-insurance program insures all liability created under Title 9, Chapter 8 of the Tennessee Code Annotated, for all State departments, agencies and institutions, including State institutions of higher education.
                EXAMPLE:
                Insurance: During the term of this Agreement and except as otherwise provided by applicable law, Institution will maintain a Commercial Liability Insurance policy in such amounts as are customary and reasonable in the jurisdiction of the location of the Test Center. Notwithstanding the foregoing, Operator shall make commercially reasonable efforts to obtain a policy with a combined limit of US$1,000,000.00 for each occurrence.
                ALTERNATIVE:
                The State of Tennessee is self-insured and does not carry or maintain commercial general liability insurance or medical, professional or hospital liability insurance. Any and all claims against the State of Tennessee, including the Institution or its employees, shall be heard and determined by the Tennessee Claims Commission in the manner prescribed by law. Damages recoverable against the Institution shall be expressly limited to claims paid by the Claims Commission pursuant to T.C.A. Section 9-8-301 et seq.
            7. Provisions requiring the Institution to insure, guarantee, or indemnify or hold harmless any party from claims which may arise out of the agreement or be brought by third parties.
              1. Institutions are subject to the direction of the Tennessee Attorney General pursuant to Article VI, Section 5 of the Tenn. Constitution and T.C.A. § 8-6-301. The Attorney General, in Tenn. Op. Atty. Gen. No. 78-71, 1978 WL 27014 (Tenn. A.G.) directed that such clauses be deleted. As such, the only alternative is to delete the language entirely.
                ALTERNATIVE:
                Neither party shall be responsible for personal injury or property damage or other loss except that resulting from its own negligence or the negligence of its employees or others for whom the party is legally responsible. Any and all claims against the state shall be submitted to the Tennessee Board of Claims or the Tennessee Claims Commission.”
            8. Provisions requiring the Institution to obtain or pay for outside labor of persons not employed by the Institution (for example, union stage-hands, teamsters, etc.) are prohibited unless such cost is included as part of the total contract price.
            9. Provisions requiring the Institution to consent to binding arbitration by a third party for claims arising out of or relating to the agreement.
              1. Only the Attorney General can enter into a settlement agreement that is binding upon the State. (See T.C.A. §§ 8-6-301 and 20-13-103.) The preferred method of handling such provisions would be to delete them. If the contractor will not agree to delete the provision entirely, the Institution may substitute the alternative language provided below.
                EXAMPLE:
                Conflict Resolution. Except with respect to controversies or claims regarding either party’s Confidential Information or proprietary rights under this Agreement, any controversy or claim arises in connection with any provision of this Agreement shall be settled by arbitration administered by the American Arbitration Association. Notwithstanding the foregoing, nothing in this Section 15.3 will be construed to limit either party’s rights under Sections 9 and 15.7.
                ALTERNATIVE:
                Conflict Resolution. Except with respect to controversies or claims regarding either party’s Confidential Information or proprietary rights under this Agreement, in the event any controversy or claim arises in connection with any provision of this Agreement, the parties shall try to settle their differences amicably between themselves by referring the disputed matter to their respective designated representatives for discussion and resolution. Either party may initiate such informal dispute resolution by sending written notice of the dispute to the other party, and if such representatives are unable to resolve such dispute within thirty (30) days of initiating such negotiations, either party may seek the remedies available to such party under law. Notwithstanding the foregoing, nothing in this Section 15.3 will be construed to limit either party’s rights under Sections 9 and 15.7. The provisions of this section are subject to the requirements of T.C.A, §8-6-301 and T.C.A. § 20-13-103.
            10. Provisions passing risk of loss or title to the Institution before delivery and/or installation of products unless vendor provides shipment protection in the Institution's interest.
            11. Provisions allowing a contractor to enter Institution's premises without notice to remove equipment or product upon alleged default by Institution.
            12. Provisions requiring the Institution to pay late charges, finance charges or interest in excess of that provided under the Tennessee Prompt Pay Act (T.C.A. § 12-4-701 et seq.).
            13. Provisions permitting the vendor to take a secured interest in personal property under the agreement.
            14. Provisions providing for a limitation of time in which the Institution may bring suit. (T.C.A. § 28-1-113).
              1. The contractor may try to limit the time within which the state may bring suit under the contract. Limiting the time within which the State may bring suit is an impermissible waiver of sovereignty; only the legislature can say how and when the State shall sue or be sued. Pursuant to T.C.A. § 28-1-113, statutes of limitation, which limit the time in which a party has to file a legal action, do not apply to actions brought by the state of Tennessee. There is no alternative for this clause. It must be deleted.
            15. Provisions requiring confidentiality and nondisclosure that potentially violate the Tennessee law regarding public records. (T.C.A. Title 10, Chapter 7).
              1. Records cannot be kept confidential if an Institution is required by law to disclose them. T.C.A. § 10-7-504(7) provides that all proposals, evaluations and related records pertaining to personal, professional and consultant contracts are open for public inspection once the evaluation by the State is complete. T.C.A. § 12-3-510 provides that procurement records shall be open for inspection by the public during the Institution’s regular office hours.
                EXAMPLE:
                11.  CONFIDENTIALITY
                11.1 Nondisclosure and Nonuse. Each party will keep the other party’s Confidential Information confidential. Specifically, each party receiving Confidential Information agrees not to disclose such Confidential Information except to those directors, officers, employees and agents of such party (i) whose duties justify their need to know such information and (ii) who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information. Each party acknowledges that it has all requisite authority under applicable laws to provide the other party with access to Confidential Information. Each party receiving Confidential Information further agrees that it will not use such Confidential Information except for the purposes set forth in this Agreement. Each party receiving Confidential Information shall treat such information as strictly confidential, and shall use the same care to prevent disclosure of such information as such party uses with respect to its own confidential and proprietary information, provided that in any case it shall not use less than the care a reasonable person would use under similar circumstances.
                11.2 Notice. The receiving party will promptly notify the disclosing party in the event the receiving party learns of any unauthorized possession, use or disclosure of the Confidential Information and will provide such cooperation as the disclosing party may reasonably request, at the disclosing party’s expense, in any litigation against any third parties to protect the disclosing party’s rights with respect to the Confidential Information.
                11.3 Terms of Agreement. Except as otherwise provided by law, neither party shall disclose the terms of the Agreement to any third party; provided, however, that either party may disclose the terms of this Agreement to its professional advisers, or to any potential investor or acquirer of a substantial part of such party’s business (whether by merger, sale of assets, sale of stock or otherwise), provided that such third party is bound by a written agreement or legal duty on terms at least as strict as those set out in this Section 11 to keep such terms confidential.
                11.4 Exceptions to Confidential Treatment. Notwithstanding the foregoing, the preceding provisions of this Section 11 will not apply to information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party may disclose Confidential Information to the limited extent necessary: (a) to comply with the order of a court of competent jurisdiction or other governmental body having authority over such party, provided that the party making the disclosure pursuant to the order will first have given notice to the other party and made a reasonable effort to obtain a protective order; (b) to comply with applicable law or regulation requiring such disclosure; or (c) to make such court filings as may be required to establish a party’s rights under this Agreement. Further, if the Company is required by applicable law, legal process or government action to produce information, files, documents or personnel as witnesses with respect to these TOS or the Services provided to you by the Company, you shall reimburse the Company for any professional time and expenses including reasonable external or internal legal costs incurred to respond to the request, unless the Company is a party to the proceeding or the subject of the investigation.
                ALTERNATIVE:
                11.  CONFIDENTIALITY
                11.1 Nondisclosure and Nonuse. Each party will keep the other party’s Confidential Information confidential. Specifically, each party receiving Confidential Information agrees not to disclose such Confidential Information except to those directors, officers, employees and agents of such party (i) whose duties justify their need to know such information and (ii) who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information. Each party acknowledges that it has all requisite authority under applicable laws to provide the other party with access to Confidential Information. Each party receiving Confidential Information further agrees that it will not use such Confidential Information except for the purposes set forth in this Agreement. Each party receiving Confidential Information shall treat such information as strictly confidential, and shall use the same care to prevent disclosure of such information as such party uses with respect to its own confidential and proprietary information, provided that in any case it shall not use less than the care a reasonable person would use under similar circumstances.
                11.2 Notice. The receiving party will promptly notify the disclosing party in the event the receiving party learns of any unauthorized possession, use or disclosure of the Confidential Information and will provide such cooperation as the disclosing party may reasonably request in any litigation against any third parties to protect the disclosing party’s rights with respect to the Confidential Information. (Original 11.3 was deleted entirely and 11.4 renumbered)
                11.3 Exceptions to Confidential Treatment. Notwithstanding the foregoing, the preceding provisions of this Section 11 are subject to the requirements of T.C.A. Title 10, Chapter 7 and any other provisions of law pertaining to disclosure of state records. Further, the preceding provisions will not apply to information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party may disclose Confidential Information to the limited extent necessary: (a) to comply with the order of a court of competent jurisdiction or other governmental body having authority over such party
            16. “Belt and suspenders” provision
              1. Whenever an agreement includes several uses of the phrase “to the extent permitted by law” or some version thereof, the best practice is to add the following language at the end of the contract, as a separate numbered paragraph.
                ___(Institution)_____ is a public institution of higher learning. As an entity of the State of Tennessee, under the Constitution and laws of the State of Tennessee it possesses certain rights and privileges, is subject to certain limitations and restrictions, and only has such authority as is granted to it under the Constitution and laws of the State of Tennessee. Notwithstanding any other provision to the contrary, nothing in this Agreement is intended to be, nor shall it be construed to be, a waiver of the sovereign immunity of the State of Tennessee or a prospective waiver or restriction of any of the rights, remedies, claims and privileges of the State of Tennessee. Moreover, notwithstanding the generality or specificity of any provision herein, the provisions of this Agreement as they pertain to ____(Institution)_____are enforceable only to the extent authorized by the Constitution and laws of the State of Tennessee.
            17. Limitation of Liability
              1. Except as provided in paragraphs (c) and (d) below, pursuant to T.C.A. §§ 12-3-701 and 12-3-1210 an Institution shall not agree to limitation the liability of a contractor for less than two (2) times the maximum liability, estimated liability or maximum revenue of the contract unless the Chancellor, or the Chancellor’s designee, determines and approves, that:
                1. Allowing the limitation of liability is necessary to prevent harm to the Institution from failing to obtain the goods or services sought, or from obtaining the goods or services at a higher price if the Chancellor refused to allow a limitation of liability as long as all respondents are offered the same opportunity as provided in the solicitation;
                2. The limitations and any alternative contract language are commercially reasonable in light of the risks to the Institution created by the type of goods or services purchased and the purposes for which they will be used.
              2. Except as provided in paragraphs (c) and (d) below, pursuant to T.C.A. §§ 12-3-701 and 12-3-1210 an Institution shall not agree to limit the liability of any contractor for claims for infringement of intellectual property rights, intentional torts, criminal acts, fraudulent conduct or acts or omissions that result in personal injuries or death.
              3. Institutions may purchase software for use restricted solely to academic teaching or research upon terms that limit the contractor's liability or warranties less than two (2) times the value of the contract; provided, that in no event, shall the liability of the contractor be limited for intentional torts, criminal acts or fraudulent conduct; and
              4. Institutions may acquire software or services, materials, supplies and equipment free or at nominal cost upon terms that limit the contractor's liability or warranties less than two (2) times the value of the contract; provided, that in no event, shall the liability of the contractor be limited for intentional torts, criminal acts or fraudulent conduct.
              5. Examples of limitation of liability clauses that may be proposed by a vendor and the necessary revisions thereto are shown below:
                EXAMPLE:
                12.2 Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY OR ITS LICENSORS BE LIABLE TO YOU OR ANY OF YOUR AUTHORIZED USERS FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR ASP SERVICES, WHETHER OR NOT THE COMPANY WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE; (B) ANY LOSS OR CORRUPTION OF DATA; OR (C) ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES). IN NO EVENT SHALL THE COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, EXCEED THE AMOUNT OF FEES PAID BY YOU UNDER THIS AGREEMENT FOR THE PARTICULAR SOFTWARE, AND/OR ASP SERVICE WITH RESPECT TO WHICH THE RELEVANT CLAIM AROSE DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES THE COMPANY'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
                ALTERNATIVE:
                12.2 Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY OR ITS LICENSORS BE LIABLE TO YOU OR ANY OF YOUR AUTHORIZED USERS FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR ASP SERVICES, WHETHER OR NOT THE COMPANY WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE; (B) ANY LOSS OR CORRUPTION OF DATA; OR (C) ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES). IN NO EVENT SHALL THE COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, EXCEED THE AMOUNT OF TWO (2) TIMES THE FEES PAYABLE BY YOU UNDER THIS AGREEMENT THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES THE COMPANY'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THIS LIMITATION OF LIABILITY APPLY TO CLAIMS FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, INTENTIONAL TORTS, CRIMINAL ACTS, FRAUDULENT CONDUCT OR ACTS OR OMISSIONS THAT RESULT IN PERSONAL INJURIES OR DEATH.
                EXAMPLE:
                12.1 Disclaimer of Warranty.  EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN ANY ATTACHED ORDER FORM(S): (A) THE SOFTWARE AND ALL PORTIONS THEREOF, AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND/OR QUIET ENJOYMENT; (B) NEITHER THE COMPANY NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE OR ASP SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE OR ASP SERVICES WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE OR ASP SERVICES WILL BE CORRECTED, OR THAT THE SOFTWARE OR ASP SERVICES IS COMPATIBLE WITH ANY PARTICULAR COMPUTER SYSTEM OR SOFTWARE; AND (C) THE COMPANY AND ITS LICENSORS MAKE NO GUARANTEE OF ACCESS TO OR OF ACCURACY OF THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SOFTWARE OR ASP SERVICES. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT THE ASP SERVICES AND/OR THE SOFTWARE ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS (INCLUDING, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, SURGICAL OR MEDICAL FACILITIES, LIFE SUPPORT OR WEAPONS SYSTEMS) AND THAT THE COMPANY SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY OR CONDITION OF FITNESS FOR SUCH PURPOSES.
                ALTERNATIVE:
                12.1 Disclaimer of Warranty. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN ANY ATTACHED ORDER FORM(S): (A) THE SOFTWARE AND ALL PORTIONS THEREOF, AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND/OR QUIET ENJOYMENT; (B) NEITHER THE COMPANY NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE OR ASP SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE OR ASP SERVICES WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE OR ASP SERVICES WILL BE CORRECTED, OR THAT THE SOFTWARE OR ASP SERVICES IS COMPATIBLE WITH ANY PARTICULAR COMPUTER SYSTEM OR SOFTWARE; AND (C) THE COMPANY AND ITS LICENSORS MAKE NO GUARANTEE OF ACCESS TO OR OF ACCURACY OF THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SOFTWARE OR ASP SERVICES. HOWEVER, IN NO EVENT SHALL THE COMPANY’S LIABILITY BE LESS THAN TWO (2) TIMES THE FEES PAYABLE BY YOU UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT THE ASP SERVICES AND/OR THE SOFTWARE ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS (INCLUDING, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, SURGICAL OR MEDICAL FACILITIES, LIFE SUPPORT OR WEAPONS SYSTEMS) AND THAT THE COMPANY SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY OR CONDITION OF FITNESS FOR SUCH PURPOSES. IN NO EVENT SHALL THIS LIMITATION OF LIABILITY APPLY TO CLAIMS FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, INTENTIONAL TORTS, CRIMINAL ACTS, FRAUDULENT CONDUCT OR ACTS OR OMISSIONS THAT RESULT IN PERSONAL INJURIES OR DEATH.
      6. Contract Documents
        1. All relevant documents containing information pertinent to the transaction, or additional terms or conditions not included within the body of the contract should be incorporated by reference, with the order of interpretation clearly set forth.
        2. If the contract is a result of a competitive process pursuant to TBR Policy 4:02:10:00 (Purchasing Policy), it should contain a clause in substantially the following form:
          1. Contract Documents. This Contract consists of the following documents:
            1. This Contract document, its attachments and amendments/addenda, the latest of which having priority;
            2. The Request for Quotation/Request for Proposal/Invitation to Bid number and its associated amendments; and
            3. The Contractor’s Bid dated (add date), including any clarifications and addenda thereof, the latest of which having priority.
              1. In the event of a discrepancy or ambiguity regarding the Contractor’s duties, responsibilities, and performance under this Contract, these documents shall govern in the order of precedence detailed above.
        3. Amendments and addenda to existing contracts shall clearly state the additions, deletions and/or modifications to the contract including whether the new terms are in substitution of, or in addition to, the terms expressed in the original contract.
      7. Fiscal Review
        1. Agreements must be processed in compliance with applicable legislative fiscal review requirements, as may be amended from time to time.  See Section 16 of the Purchasing Guideline, B-120.
      8. Electronic Signatures
        1. For contracts not requiring System Office approval and for which the other party is agreeable to the use of electronic signatures, Institutions may use electronic signatures as permitted under the Institution’s rules and procedures which have been adopted pursuant to Guideline B-095.
      9. Contract Procedures and Routing Requirements
        1. All necessary signature approval lines, including that for the TBR, should be prepared by the Institution.
          1. If the party with whom the institution is contracting is a corporation, its name must be stated in the contract exactly as it appears in its charter or as listed with the Tennessee Secretary of State’s office. The person signing on behalf of the corporation must have legal authority to do so, and his/her title/position should be shown on the signature page.
          2. If the other party is a state agency, the contract must include appropriate signature line(s) for the agency’s Commissioner, or official(s) of equivalent rank, or their designee.
          3. The President/Director or his or her designee must sign all Institution contracts that do not require System Office approval.
          4. The President/Director or his or her designee must sign all Institution contracts required to be submitted to the System Office. If the President/Director or designee’s signature has been omitted from contracts prepared and delivered to the System Office, such contracts may be returned to the Institution.
          5. When approval by the Chancellor is not required, that signature blank should be marked "not applicable" or should be deleted.
        2. A completed Contract Summary Sheet as well as all relevant attachments must accompany all agreements or amendments submitted to the System Office for review. Contract Summary Sheets must be signed by an Institution official verifying compliance with all applicable policies and guidelines. If applicable, a Justification of Non-competitive Purchase Form must be completed and submitted along with the Contract Summary Sheet.
        3. For Contracts that require TBR System Office approval, Institutions should prepare the contract as desired/required by the parties, the Contract Routing Form and Contract Summary Sheet and transmit to the System Office, along with all required supporting documentation.   The System Office shall initiate all contract approvals/signatures via DocuSign or other electronic delivery system.
        4. Agreements containing blank spaces or omitting required contract provisions will be returned to the Institution for correction and must be resubmitted to the System Office for approval.
        5. All contracts required to be submitted to the System Office should be submitted prior to the beginning of the contract's original term or renewal. A contract cannot be extended or amended after the original term has expired.
        6. Amendments forwarded to the System Office for approval must be accompanied by a copy of the original agreement and any prior amendment or addendum.
        7. All contracts from the colleges of applied technology which require System Office approval shall be first submitted to the Office of the Vice Chancellor for Tennessee Colleges of Applied Technology.
        8. Institutions are responsible for monitoring the Title VI compliance of sub-recipients of federal funds.
        9. Sufficient documentation (may be in electronic format) must be maintained as evidence of compliance with all TBR/Institution policies, guidelines and procedures applicable to the actions taken. Such documentation shall be retained for the time period specified in TBR Guideline G-070.
      10. Contract Monitoring
        1. Monitoring. All service contracts shall contain a provision that states that the contractor’s activities shall be subject to monitoring by the Institution and/or state officials. These contract types include, but are not limited to:
          1. Personal Service
          2. Professional Service
          3. Software Related Agreements
          4. Grants, including subcontracts
          5. Memorandums of Understanding
        2. Monitoring Plan. Institutions shall maintain a monitoring plan (See Exhibit 1) for all service contracts to ensure the following:
          1. Contract performance in terms of progress and compliance with contract provisions;
          2. Communication with Contractor to ensure maximum performance and intended results;
          3. Financial obligations of the Institution do not exceed the contract pricing;
          4. Deliverables are received;
          5. Appropriate approval and remittance of payments for acceptable work are in accordance with contract provisions and applicable law;
          6. Maintenance of records for each contract that documents activities such as procurement, management, and sub-recipient monitoring, if applicable; and
          7. Evaluation of contract results in terms of the achievement of organizational objectives
      11. Contract Manual
        1. Each Institution shall maintain a written contracts manual, which may be in electronic format, setting forth any procedures of the Institution in addition to or necessary to comply with the procedures outlined in this Guideline. These procedures shall outline the institution’s process for routing and execution of agreements not requiring System Office approval.
      12. Conflicts of Interest
        1. Pursuant to T.C.A. § 12-4-103 it is unlawful for any state official or employee to “bid on, sell, or offer for sale, any merchandise, equipment or material, or similar commodity, to the state of Tennessee” or “to have any interest in the selling of the same to the state” during that person’s term of employment and for six months thereafter. Institutions are not allowed to contract with an individual who is, or within the past six months has been, a state employee in violation of the statute.
        2. An individual shall be deemed a state employee until such time as all compensation and terminal leave has been paid.
        3. Institutions shall not knowingly enter into contracts with a company or corporation which would constitute a violation of TBR Policy 1:02:03:10 (Conflict of Interest)
  2. Contracts of Adhesion
    1. In order for a contract to be considered an adhesion contract all the following criteria must be met:
      1. The proposed contract must be a standard form contract or license;
      2. It is offered to the Institution on a ‘take it or leave it’ basis;
      3. The Institution has no realistic opportunity to negotiate different terms; and
      4. The desired product or service cannot be obtained except by agreeing to the form contract.
    2. The procedures necessary to enter into a contract of adhesion are:
      1. The initiating department must route the contract through the Institutional procurement and/or contracts office. The Institution must document the following:
        1. The Institution’s attempts to negotiate needed changes in the contract and the vendor’s refusal to agree to any changes (i.e., despite the fact they were given statutory language that governs certain situations or that contradicts contract language);
        2. The need for the item or service(s);
        3. The fact that the vendor is the sole source (or that all vendors require the impermissible language).
      2. Approval for contracts of adhesion shall be as follows:
        1. The Institutional procurement and/or contracts office may approve contracts of adhesion up to not greater than $5,000 annually if an appropriate risk assessment has been performed. (See Exhibit 2 for a sample risk assessment form.)
        2. The President or President’s designee may approve contracts of adhesion greater than $5,000 annually but less than $25,000 in total. Presidents or the President’s designee may, after consultation with Institution or TBR Legal Counsel as appropriate, approve contracts of adhesion which have a value of less than $25,000.
        3. Except as stated above, the Chancellor or the Chancellor’s designee will approve contracts of adhesion which have a value of $25,000 or more annually.
      3. A letter stating that the institution regards the agreement as a contract of adhesion shall be sent with the executed contract when it is sent to the Contractor. A copy of the letter shall be maintained in the Institution’s records. (See Exhibit 3 for sample letter.)
      4. The purchasing officer, contract officer, or other designated official at each Institution must maintain a record of all software and other acquisitions over $5,000, and those under $5,000 requiring signature, contracts of adhesion entered into pursuant to this manual and supply the record, upon request, to the TBR System Office.
      5. In appropriate instances, the President or President’s designee, or the Chancellor or Chancellor’s designee, as applicable, may approve a contract as a contract of adhesion when the vendor has agreed to some change(s), but the contract still contains impermissible language; documentation as required above must be maintained.
  3. Form Contracts
    1. DESCRIPTION LAST UPDATED
      Clinical Affiliation/Field Experience Agreement  
      Pro Forma Agreement  
      Grant Agreement  
      Agreement for Workshop/Seminar  
      Agreement for Workshop/Seminar Participation  
      Dual Services Agreement  
      Facilities Use Agreement  
      Mutual Use Agreement  
      Transient Use Agreement  
      Tenant Use Agreement  
      Invention Disclosure Form  
      Copyrightable Works Disclosure Form  
      Intellectual Property Agreement  
      Employee Work for Hire Agreement  
      Copyright License Agreement  
      Partial Assignment of Copyright Ownership Agreement  
      Joint Ownership of Copyright Agreement  
      Intellectual Property/Research Agreement  
      Banking Agreement  
      Non-Credit Instruction Agreement (up to $50,000)  
      Non-Credit Instruction Agreement ($50,000 and over)  

       

  4. Clinical Affiliation/Field Experience Contracts - A Clinical affiliation agreement is an agreement between an Institution and another entity (Affiliate) for the provision of practical clinical experience to the Institution’s students.
    1. General Rules
      1. Generally, these agreements do not provide for monetary compensation to either the Institution, Affiliate or student.
      2. Health Records and Insurance
        1. The Institution may provide health records of students and faculty upon request by the Affiliate. The Institution must give students/faculty prior written notice when they will be required by the Affiliate to obtain and provide health records in order to participate in clinical experience. Each student will be required to execute proper release forms for FERPA purposes.
        2. The Affiliate may require written evidence of professional liability insurance coverage for students and faculty participating in the experience.
        3. The Institution shall notify students of Affiliate’s requirement(s) regarding professional liability insurance, the minimum amount of coverage that is required by the Affiliate. The Institution may notify the student of available options to obtain such coverage.
      3. Criminal Background Checks and/or Drug Screening
        1. If criminal background checks and/or drug screening of students are required by the Affiliate, the Institution shall notify students of this requirement prior to enrollment in the program or as soon as the requirement is known.
        2. The Institution shall inform students that the check and/or screen must be completed prior to the student’s initial clinical placement.
        3. Each student is responsible for making timely arrangements for a background check and/or drug screening and paying all costs associated with such checks/screens.
        4. If criminal background checks and/or drug screenings are required for Institutional faculty or staff, the Institution shall arrange for the background check/drug screens, pay all costs associated with such checks, and provide the results to the Affiliate.
        5. At a minimum, the Affiliate shall be responsible for setting the eligibility standards for clinical participation at its facility, and if there is any question as to whether the standard has been met, to evaluate the results of the background check/drug screen to determine if the student or faculty /staff member shall be allowed to participate at its facility. The Institution shall take steps to ensure that any individual not clearly meeting the Affiliate’s eligibility standards does not participate in the clinical program at the Affiliate’s facility.
        6. A Clinical Affiliation Agreement which requires background checks should also include a provision that if an Institutional faculty/staff member or student is also an employee of Affiliate, the Affiliate will allow the faculty/staff member or student to participate in its clinical program without undergoing an additional background check.
        7. Recognizing that students enrolled in certain programs at the Institution will potentially participate in multiple clinical placements at multiple facilities, clinical agreements should include a provision that the Affiliate will accept the results of the background check done prior to the student’s initial clinical placement if the student maintains continuous enrollment in the institution’s program and the background check agency maintains the results of the background check.
        8. Institutions shall inform students or faculty/staff members excluded from clinical placement on the basis of a criminal background check/drug screen of any review or appeal process available pursuant to the Fair Credit Reporting Act or any other law or policy.
      4. Health Insurance Portability and Accountability Act of 1996 (HIPAA) Compliance
        1. Although HIPAA language is included in the form contract, this language may be omitted upon the request of the Affiliate.
        2. For purposes of HIPAA, students are trainees and are, by definition, considered to be the “workforce” of the Affiliate (at the same time, it should be noted that students are employees of neither the Institution nor the Affiliate). Therefore, entering into business associate agreements is not permitted.
      5. Agreements which comply with this guideline and do not deviate substantially from the form template or which have been reviewed and approved by the Institution’s Contracts Department or TBR System Office, do not require further System Office approval. Agreements previously approved by the System Office may be renewed without System Office approval if no changes are made.
      6. Institutions are encouraged to seek terms of longer than one year for clinical affiliation agreements.
    2. Clinical Affiliation Forms
      1. ​Exhibit 4 - Clinical Affiliation Agreement
      2. Exhibit 5 – Student Records Release Form
  5. Pro Forma Contract - This Section details the instructions on how to complete the Pro Forma Contract where the Contractor is providing a good/service to the Institution which will usually continue for some specified length of time.
    1. General Rules
      1. The description of the goods/services should be detailed enough to enable a party unfamiliar with the subject matter to determine exactly what good(s)/service(s) the Contractor will be providing/performing for the Institution.
      2. In most cases, the description of services should provide qualitative and quantitative measures. For example, a custodial services contract might provide for the Contractor to provide the cleaning solutions, that a facility’s floors to be mopped on a nightly basis and stripped and waxed on a biannual basis.
      3. This type of Agreement must not create an employer/employee relationship. An individual must meet all of the following conditions to be classified as an independent contractor:
        1. The Institution controls only the results of the work, not how it gets done.
        2. The individual assumes a business risk (assumes all expenses for personnel, equipment and materials) as a result of this association with the Institution.
        3. The individual is responsible for paying and reporting applicable self-employment tax.
        4. The individual is free to complete the assigned task without control or direction from the Institution.
        5. The individual’s association with the Institution normally ceases upon completion of a specified project.
        6. The individual is free to work for other entities.
        7. The individual has declared himself/herself to be an independent contractor when providing similar services to the general public.
      4. In appropriate cases, the Institution should require the contractor to demonstrate proof of appropriate forms of insurance, and/or to provide a performance bond.
      5. When appropriate, language regarding intellectual property rights should be included in a contract. (See TBR Policy 5:01:06:00, Financial Exigency.)
      6. All contracts for legal services which are subject to T.C.A. §§ 8-6-106 and 8-6-301 must originate in the Office of General Counsel prior to any action being taken to retain any legal or legally related services;
      7. Contracts for services required to be approved by the State Building Commission must be coordinated with the Office for Facilities Development;
      8. State law prohibits an Institution from either establishing a vending or food services operations contract for new or existing facilities or from performing such services itself, without first notifying the Division of Blind Services for the State of Tennessee. (T.C.A. §§ 49-8-118 & 71-4-503)
      9. Exhibit 6 Pro Forma Contract - This contract may be used to procure goods or services as the need dictates. It is included in the approved RFP format as the pro forma contract and should be used in the following instances:
        1. For personal service contracts that result from an RFP process;
        2. For personal service contracts which require System Office approval;
        3. For personal service contracts which require Fiscal Review approval; and
        4. For all other contracts, in which the Institution’s procurement and/or contracts office determines this form is appropriate.
      10. A Purchase Order may be used to procure goods or, in limited circumstances, services (Refer to Section 3.a.(2)(b) of Purchasing Guideline B-120,  Classification and Operation of Auxiliary Enterprises, for services applicability).
  6. Grant Agreements
    1. General Rules
      1. The President or designee of an Institution is authorized to approve applications for grants from agencies or organizations; provided that, when matching funds or services in lieu of funds are required by the Institution, no application shall be made unless the operating budget provides the funds and/or resources necessary for the project.
      2. The President is further authorized to accept the award of a grant and enter into agreements confirming grants, provided that agreements confirming the award of grants shall be subject to the requirements of this guideline.
      3. The following procedures shall govern expenditures for personal, professional or consulting services pursuant to grant contracts:
        1. Procedures
          1. The Institution shall negotiate when possible to ensure that payments are appropriate to support the activity contemplated.
          2. A written budget and work program shall be prepared and included in the grant agreement.
        2. Contracts Representing Grants.
          1. Grant contracts not involving federal money must include the following provision:
            1. "The contractor shall cause to be performed, in accordance with auditing standards prescribed by the Comptroller of the Treasury of the State of Tennessee, an audit of all its program(s) funded by this contract; provided, however, that any contract for such audit shall be subject to prior approval of the Comptroller of the Treasury of the State of Tennessee, and must be submitted on the standard contract to audit accounts' form published by the Comptroller of the Treasury. The audit may include and be combined with an audit of other programs of the contractor, and the existence of more than one contract between the contractor and any agency of the State of Tennessee shall not necessitate more than one (1) audit of the contractor's programs to be performed every two years."
          2. Grant contracts involving Federal money must include the following provision:
            1. “The Grantee shall prepare and submit, within nine (9) months after the close of the reporting period, an annual report of its activities funded under this grant to the commissioner or head of the granting agency, the Tennessee Comptroller of the Treasury, and the Commissioner of Finance and Administration. The annual report for any Grantee that receives $300,000.00 or more in aggregate federal and/or state funding for all its programs shall include audited financial statements. All books of account and financial records shall be subject to annual audit by the Tennessee Comptroller of the Treasury or the Comptroller's duly appointed representative. When an audit is required, the Grantee may, with the prior approval of the Comptroller, engage a licensed independent public accountant to perform the audit. The audit contract between the Grantee and the licensed independent public accountant shall be on a contract form prescribed by the Tennessee Comptroller of the Treasury. Any such audit shall be performed in accordance with generally accepted auditing standards, the provisions of OMB Circular A-133, if applicable, and the Audit Manual for Governmental Units and Recipients of Grant Funds published by the Tennessee Comptroller of the Treasury. The Grantee shall be responsible for reimbursement of the cost of the audit prepared by the Tennessee Comptroller of the Treasury, and payment of fees for the audit prepared by the licensed independent public accountant. Payment of the audit fees of the licensed independent public accountant by the Grantee shall be subject to the provisions relating to such fees contained in the prescribed contract form noted above. Copies of such audits shall be provided to the State Granting Department, the Tennessee Comptroller of the Treasury, the Department of Finance and Administration, and shall be made available to the public.”
        3. Grant Contracts
          1. Procurement by grantee--grant contracts which provide for reimbursement for the cost of procuring goods, materials, supplies, equipment or services shall contain the following provision:
            1. “If the terms of this contract allow reimbursement for the cost of procuring goods, materials, supplies, equipment or services, such procurement shall be made on a competitive basis (including the use of competitive bidding procedures), when practicable.”
        4. Federally Funded Grant Contracts
          1. Procurement by contractor--when a grant contract provides that the contractor may make purchases and be reimbursed for its cost with funds derived wholly or partially from federal sources, the following clause or one of substantially the same effect should be included:
            1. "Reimbursement for the cost of procuring goods, materials or services shall be subject to the contractor's compliance with applicable federal procurement requirements."
        5. Federally Funded Contracts
          1. Compliance with federal regulations--if federal funds are used to support the contract, the following clause must be included:
            1. "The contractor shall comply with all applicable federal regulations in the performance of duties under this contract."
  7. Dual Services Agreements
    1. Scope
      1. This section applies to agreements whereby an Institution/state agency is procuring the services of a full-time employee of another Institution/state agency.
    2. General Rules
      1. Job priorities/Rate of Compensation
        1. Tennessee Board of Regents policy requires that full-time employees of an Institution must devote their full working time to their position; therefore, any agreement which diminishes an employee's availability for the performance of his/her duties will not be approved, except as provided herein.
        2. In general, the services performed pursuant to a dual services agreement are to be of an infrequent or short term nature. (See TBR Policy 5:01:05:00, Outside Employment and Extra Compensation).
        3. The rate of payment under a dual services agreement must not exceed the rate the procuring institution/agency normally pays for such services, shall conform to the Fair Labor Standards Act and be coordinated with the employee’s primary Human Resource and/or Payroll Department.
        4. Dual service agreements must avoid conflicts of interest.
      2. Payment.
        1. Any payment for employee services shall be between the Institution and the state agency or other Institution. An Institution may not pay an employee of another Institution or State Agency directly for services of any nature.
        2. Payment shall only be made after performance of services is completed and upon receipt of invoice from the vendor institution.
      3. Approvals.  Dual services agreements require the written approval of:
        1. An authorized official of the state agency/Institution procuring the services (Procuring Party) and the Institution whose employee is to provide the service (Vendor Party).
        2. The System Office when:
          1. TBR is a party to the agreement, or
          2. the agreement does not conform to this guideline; or
          3. the Chancellor’s approval is otherwise required pursuant to applicable approval policy(ies).
        3. If compensation exceeds $1,500 to any state agency employee (not including TBR or UT institutions), the Department of Finance and Administration must approve the agreement.
      4. Blanket Dual Services Agreements.
        1. If a Procuring Party contracts for the services of multiple employees of a Vendor Party, one blanket dual service agreement may be processed that includes the names and rates of compensation for each employee.
    3. Form Agreement
      1. The form agreement below contains all required elements; however, as a minimum, every agreement must contain the following:
        1. A brief description of the services being provided;
        2. The name of the employee providing the services;
        3. The rate and means of compensation, including when payment will be made and to what address invoices are to be sent.
        4. A provision that an invoice from the vendor party is required prior to payment to an Institution for services rendered by its employee.
          1. ​Exhibit 7 - Sample Dual Services Agreement
            1. Source and Authority: TBR Policy No. 5:01:05:00 (Outside Employment and Extra Compensation); Section 36 of Chapter 732 of the Public Acts of l976, and the rules of the Department of Finance and Administration.
  8. Agreements for Short-term Access to and Use of Campus Property and Facilities
    1. Scope
      1. This section deals with agreements for short-term use of campus facilities for activities which include, but are not limited to, those for musical performances, speakers, conventions, exhibits, etc. where control of the Institutional space is being retained by the Institution.
      2. This Section does not apply to leases of property for residential use and/or commercial leases of property. Real property and lease agreements are covered by separate procedures found in TBR Guidelines B-025 (Acquisition & Disposal of Real Property) and B-026 (Lease Procedures and Guidelines).
    2. General Rules
      1. All use of campus facilities and agreements providing for such use must comply fully with TBR Policy No. 1:03:02:50 (Access to and Use of Campus Property and Facilities).
      2. Agreements which deviate from the standard agreements included as Exhibits to this manual must be submitted to the System Office or the Institution’s Legal Office for approval.
      3. In the event that an affiliated or non-affiliated group wishes to perform or sponsor a performance of copyrighted musical compositions, the following provisions must be included in the contract:
        1. The Contractor certifies that Contractor has obtained all necessary copyright and royalty licenses from ASCAP, BMI, SESAC, any other performing rights organization or the copyright owner for the performance(s) presented under the terms of this agreement.
        2. The Contractor agrees to indemnify, hold harmless, and defend the Institution and the State of Tennessee from and against any and all claims, demands or suits which may be brought for copyright infringement allegedly arising in the course of the performance(s) presented under the terms of this agreement. Such indemnification shall extend to both criminal and civil actions and shall include any loss, damage, penalty, court costs or attorneys' fees incurred by the Institution.
        3. The Institution/State shall promptly notify the Contractor of any such claim brought against the state. The settlement or compromise of any claim brought against the state shall be subject to the approval of the appropriate state officials, as required by T.C.A. § 20-13-103.
    3. Form Use of Facilities Contracts
      1. Typical form contracts for use of TBR or non-TBR facilities include:
        1. Transient Use Agreements
        2. Provides short-term, continuing, non-exclusive use of facilities, such as evening use of high school space as a teaching extension site for a semester.
        3. Can be for TBR use of non-TBR facilities, or non-TBR use of TBR facilities.
      2. Mutual Use Agreements
        1. Provides short-term, continuing, non-exclusive mutual use of both parties’ facilities.
        2. Between two TBR Institutions or one TBR Institution and a non-TBR entity.
        3. Mutual use of each other’s facilities may be substituted for financial compensation.
          1. Exhibit 8 - Facilities Use Agreement Long Form
          2. Exhibit 9 - Mutual Use Agreement - Involving a Tennessee Board of Regents Institution
          3. Exhibit 10 - Transient Use Agreement - Involving a Tennessee Board of Regents Institution
          4. Exhibit 11 - Tenant Use Agreement - Between Two Tennessee Board of Regents Institutions
          5. Exhibit 12 - Mutual or Transient Use - Terms and Conditions for an Agreement Involving a Tennessee Board of Regents Institution
          6. Exhibit 13 - Tenant Use - Terms and Conditions for an Agreement between Two Tennessee Board of Regents Institutions
          7. Exhibit 14 - Instructions - for filling out Use Agreements
  9. Contracts for Hardware, Software and Related Services
    1. Scope
      1. This section applies to contracts for hardware, software and related services.
    2. General Rules
      1. The legal right to use software is typically obtained in the form of a license agreement, which is usually provided by the vendor during the procurement process.
      2. It is the responsibility of the Institution to negotiate changes in all vendor provided agreements, or incorporate vendor terms in a TBR template agreement, so that such agreements comply with this Guideline.
      3. If vendor does not provide an agreement, the attached standard agreement may be used for software licenses and, with appropriate adaptation, for related equipment purchases.
      4. Piloting/Testing of Hardware, Software or Related services
        1. Agreements authorizing the Institution to conduct experimentation or testing of hardware, software or related services should follow the appropriate approval process.
        2. Although the initial cost to the Institution may be minimal, full consideration of the cost to continue use such product/service shall be evaluated up front with no guarantee for the Institution to continue to license. Use of the product/service, beyond the initial pilot period, must follow the appropriate policies and guidelines, and the execution of a pilot process does not warrant a non-competitive justification for continued use of the product/service.
        3. These agreements shall not contain a renewal option and must contain a provision that at the end of the pilot term the appropriate procurement process shall be followed.
    3. Form Contracts
      1. Exhibit 15 - Sample Software License Agreement
  10. Intellectual Property Agreements
    1. Scope
      1. TBR Policy 5:01:06:00, Intellectual Property, sets out the approved procedures governing TBR intellectual property issues.
      2. In addition, resource information and approved form/sample agreements are provided at the TBR web site in the General Counsel section.
    2. Form Contracts
      1. Form/Sample contracts provided in the General Counsel section of the TBR website can be found here:
        1. Exhibit 16 - Invention Disclosure Form
        2. Exhibit 17 - Copyrightable Works Disclosure Form
        3. Exhibit 18 - Intellectual Property Agreement
        4. Exhibit 19 - Employee Work for Hire Agreement
        5. Exhibit 20 - Copyright License Agreement
        6. Exhibit 21 - Joint Ownership of Copyright Agreement
    3. Form Research Agreement
      1. Exhibit 22 - Sample Intellectual Property/Research Agreement (Source: TBR Policy 5:01:06:00 (Intellectual Property))
  11. Banking and Related Financial Services Agreements
    1. Scope
      1. This section deals with agreements for the deposit and investment of all funds, regardless of source, which are received by an Institution. Agreements of this nature shall be in conformance with TBR Policy 4:01:01:10 (Deposit & Investment of Funds).
    2. Form Contract
      1. Exhibit 23 - Sample Banking Agreement
  12. Non-credit Instruction Agreement
    1. Scope
      1. This section is applicable to revenue-generating agreements whereby an Institution provides non-credit instruction/training for business and industry.
    2. General Rules
      1. The Institution is responsible for the administration of fees, charges, and refunds in accordance with TBR Guideline B-060 (Fees, Charges, Refunds, and Fee Adjustments).
    3. Essential Contents of the Agreement
      1. The form agreements at the end of this section contain all required elements; however, a few elements are described below:
        1. The program title name, a brief description of the program, Continuing education Units (CEUs) awarded, if applicable, the name of the instructor, if applicable, conducting the course, and the dates, times, and location of the course.
        2. The minimum and maximum number of participants and the program fee that will be invoiced to company.
        3. Other provisions should be specific to include such elements as deliverables by the Institution including textbooks, instructional materials, CEU records/transcripts for participants, and/or certificates awarded, etc.
        4. Specific requirements of the company should be included such as safety and security of Institutional equipment, additional fee assessments outside of the instructional costs, documents/information necessary for instruction, etc.
    4. Form Contracts
      1. Exhibit 24 - Sample Non-Credit Instruction Agreement up to $50,000
      2. Exhibit 25 - Sample Non-Credit Instruction Agreement above $50,000
  13. Academic Agreements
    1. Articulation/transfer, dual credit and dual enrollment agreements should be developed in compliance with instructions or guidance from the System Office, Office of Academic Affairs.
  14. Workshop Agreements
    1. This section provides sample contracts which may be used for two purposes.
      1. The first sample agreement may be used when the institution contracts with a service provider to provide a workshop or seminar and the payment to the service provider will not exceed $5,000.00.
      2. The second sample agreement may be used when the institution contracts with an individual to make a payment to that individual for attending a specific workshop or seminar (for example, a grant may provide for such payments to be made out of grant funds).
    2. These forms are provided for use ONLY as described above and may be used instead of the personal services agreement or Pro Forma, for the specified purposes, or the personal services agreement form or Pro Forma agreement may be used for these purposes.
    3. Form Contracts
      1. Exhibit 26 - Sample Contract for Workshop/Seminar up to $5,000
      2. Exhibit 27 - Sample Workshop/Seminar Participation Agreement
  15. Exceptions
    1. Any exceptions to the procedures outlined in this Guideline shall be subject to the approval of the Chancellor or designee and shall be requested in writing by the President or Director or his/her designee. Exceptions shall be made on a case-by-case basis. If an exception is made, a written determination signed by the Chancellor or designee shall be included in the contract file.
Sources: 

Authority

T.C.A. § 49-8-203; All Federal and State statutes, codes, rules, and regulations referred to in this policy

History

November 12, 1985, Presidents' Meeting; August 15, 1989, Presidents' Meeting; November 8, 1995, Presidents' Meeting; May 14, 1996 Presidents' Meeting; November 12, 1996, Presidents' Meeting; August 5, 1997 Presidents' Meeting, November 5, 1997 Presidents' Meeting; February 17, 1998 Presidents' Meeting & March 27, 1998 Board Meeting; November 4, 1998 Presidents' Meeting, November 7, 2001 Presidents Meeting. August 16, 2005 Presidents’ Meeting, August 16, 2006 Presidents’ Meeting; May 15, 2007 Presidents’ Meeting, February 12, 2008 Presidents’ Meeting; Presidents Meeting, November 5, 2008; Presidents Meeting, February 17, 2009; Presidents Meeting, August 11, 2009; Presidents Meeting August 17, 2010. Revisions to exhibits: 2/14 & 7/14. Revised at Presidents Meeting, August 16, 2016.

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