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K-State Today

May 5, 2016

PreAward Services agreement glossary provides pathways to collaboration

By Sarah Hancock

Last week's 10 things to know about PreAward Services helped faculty learn about the office that facilitates more than 5,000 RSCAD agreements and proposals a year. So what kind of agreements are important to RSCAD? Knowing the six standard agreement types and how they're used will expedite your next sponsored research project by greatly reducing the extended transaction time that occurs when a proposed project activity is not properly matched with the appropriate agreement. 

1. Memorandum of Agreement: This is a standard written agreement for research done by K-State faculty, staff, and students, but it can be used for outreach, too. Some universities call this a sponsored research agreement. The Memorandum of Agreement is the most commonly used agreement. It protects the intellectual property, faculty generate during the research process.

2. Testing and Evaluation Services Agreement: This is a nuts-and-bolts agreement in which the sponsor generally indicates exactly what K-State researchers will do; in other words, the sponsor produces the testing protocol. These agreements are extremely important in building trust with new partners and can lead to future research and development projects. Faculty should know several things about these agreements.

• These agreements are used primarily when K-State has the necessary specialized expertise or equipment to provide a specific service that involves the testing or evaluation of a sponsor's existing intellectual property and such services are not generally available in the commercial marketplace.

• Testing agreement terms and conditions don't protect K-State-developed intellectual property such as patentable inventions, as such are not anticipated in an activity that doesn't require original, creative research on the part of the faculty member. If a faculty member or student provides technical expertise, such as research and development, outside the testing specific scope of work and the work completed under the change in scope results in an invention, the sponsor would normally expect ownership of the invention, so ensuring that the scope of work only describes a testing and/or evaluation protocol and not deviating from the scope of work stipulated by the agreement are very important.

• Considering student contributions to these projects is important because, unlike research projects, the sponsor owns the test results; therefore, these are not well suited for graduate student theses or dissertation projects.

• K-State always retains ownership of its testing methods and procedures and the right to publish, which is in line with its exempt purpose, and often enters into testing activities as part of its educational mission of training students and developing new models for testing, confirming or replicating scientific advancements.

Note that the main difference between the first two agreements is the inclusion of appropriate intellectual property terms when faculty members are engaging in the inventive process, or developing something that could be patented and protected. This central difference underscores the importance of thinking about the type of activity before choosing and finalizing the agreement.

3. Master Agreement for Research and Service Projects: This agreement takes intellectual property terms from agreements 1 and 2 and combines them into one agreement that stipulates standard contract terms for both research and service — testing and evaluation — projects. Many sponsors find this type of agreement appealing because it contemplates a holistic approach to multiple forms of collaboration while reducing the transaction time to implement specific projects. If a master agreement is in place, negotiation of each project isn't necessary; instead, researchers fill out a task order. This arrangement is ideal for sponsors with whom K-State has an established relationship.

PreAward Services has negotiated 30 of these agreements with a wide range of regular, trusted and collaborative sponsors, including some state agencies, all of which have appreciated the efficiency of transactions and the substantial reduction in transaction time to implement projects.

4. Modification of Agreement: This agreement is used to change or modify existing contract terms already negotiated in an ongoing project agreement such as altering the time period or adding more funding or work.

5. Confidentiality Agreement: Also known as Confidential Disclosure Agreements, Non-Disclosure Agreements, Proprietary Information Agreements, or Secrecy Agreements, some companies require these "zero-dollar" agreements before discussing desired research or services. Researchers do not need this type of agreement if they are already negotiating one of the agreements in numbers 1, 2, or 3 of this list, because those agreements include appropriate confidentiality language.

6. Material Transfer Agreement — outgoing material: This is a written agreement for the exchange of research materials. K-State is a signatory to the Uniform Biological Material Transfer Agreement, so most transfers to other public research institutions require only an implementing letter. Researchers who exchange material without an Material Transfer Agreement risk losing the chain of custody and rights to intellectual property or incurring liability. Specialized Material Transfer Agreements are available for wheat, sorghum, and soybean breeders.

The K-State Research Foundation also is involved with Confidentiality Agreements and Material Transfer Agreements on patented or patentable items tied to a commercialization effort. If a researcher is transferring material to an academic colleague for noncommercial purposes, the K-State Research Foundation does not need to be involved, but if material is going to a company, the foundation often plays a role to help facilitate commercial licensing terms as applicable.

PreAward Services requires a transmittal sheet covering pertinent transaction details such as necessary compliance protocols, and an export controls review for every agreement. All agreements are available on the PreAward Services website.