School Contracts with Vendors, Construction Companies, & Architects: Issues, Traps, Pitfalls & More

In the final installment of this series our focus is on school contract issues, traps and pitfalls — as well as contracting methods, issues and practices.

The entire series highlights the information Kirk Strang presented in April at the WASDA New Superintendents Academy. Part 1 covers legal capacity to contract, negotiations, & contracting requirements in Wisconsin. Part 2 focuses on school contracts and contract clauses.

Let’s dive into Part 3 …

Issues, Traps, and Pitfalls

FACTORS & SITUATIONS TO AVOID

1. Dependence on the vendor's "form" or "standard" contract.
   1. Representations and sales pitches to the effect that "everyone is using the same contract”
   2. Pitches to board members or administrators
   3. Resolving ambiguity against the drafting party
   4. The vendor’s standard contract and the vendor’s legal interests
2. Board policies that determine procedures for contracting, directly or indirectly.
3. Advance payment or other schedules for payment set forth separately from goods and services obligations.
4. Damages and reasonable opportunity to cure.
5. Lack of regulation of administrative support fees, methods, and/or standards.
   1. Performance standards and requirements
   2. Capacity to recover fees or secure refunds
   3. Vendor or service provider expenses
6. Intellectual property.
   1. Licensing
   2. Confidentiality and reasonable limitations

Contracting Methods, Issues, and Practices

1. The school attorney’s role (business partner in contracting, adversary in breach).
2. The “standard contract” and the use of an addendum.
3. Considering the contractor’s point of view.
4. School board policy and school board review.
5. Retention of infrastructure and other challenges to “keeping the ship afloat.” The school district should never be in a position where terminating a relationship with a vendor will compromise operations more than incidentally.
6. Use of RFP’s and bidding.
7. Relationship to board members’ terms of office.

This series covers many aspects of school contracts, and at first glance it might all seem unmanageable. That said, a thorough check list of dos and don’ts — or even better, a succinct, well-organized school contracts handbook can go a long way in making contracting with vendors, construction companies, and architects more efficient and successful. In addition, ensuring that school district team members understand who is — and who is not — authorized to negotiate with vendors can also avoid headaches down the road.

Additional articles that may be of interest:

• CESA 10 Superintendent Meeting Legal Update, Part 2: The Unwritten Rules, Politics, and Stray Thoughts Concerning Expulsion
• Student Speech & Expression, Part 1: Basic Principles, Seminal Case Law & Building Your Defense