Feb 16th, 2023

Checklist for Professional Consulting Contracts

Overview and Request For Proposals Process
It is well-established that school districts are not subject to the statutory competitive bidding obligations with respect to the procurement of professional services which typically require specialized skills or expertise and involve relationship of trust and confidence. Instead, local governments and school districts procure professional services through a “request for proposals” or “RFP” process in accordance with their policies and procedures. In this way, the district’s business office has an opportunity to evaluate candidates, their expertise, experience, prior clientele, and other pertinent factors. The RFP documentation will include a consulting agreement setting forth the scope of services, terms, and conditions.

When drafting a consulting contract, the following provisions may be considered and included depending on the type of the procured services.

Confidential Information and Data Privacy & Security
When a consultant receives or has access to the personally identifiable student information or information relating to annual professional performance reviews of teachers or principals, they will be treated as a third-party contractor under New York State Education Law Section 2-d. In such case, the consulting contract should require the consultant to comply with data privacy and security standards set forth in Part 121 of the Commissioner’s Regulations. The contract should also incorporate a data security and privacy plan that needs to be implemented by the consultant.

Intellectual Property
If the end work product implies creation of a publication or inventions resulting from the contractual obligations, a school district should consider inserting intellectual property provisions whereby the district would be able to retain rights in publications, inventions, discoveries, or other intellectual property developed as part of the agreement. For example, such provisions may be relevant in contracts for development of educational programs or a software solution built specifically to address the school needs. Once the school retains intellectual property rights, it may financially benefit from licensing content, software, or other work product.

Independent Contractor Status
The agreement should also specify the independent contractor status of the consultant and their responsibility for federal and state tax obligations and employee-type benefits. The provision is particularly important when a consultant is a self-employed individual or freelancer, and the school may be their sole or main contractor. In such case, the agreement would generally reflect that the consultant retains the ultimate control over the work, business expenses, work hours, or material supplies and equipment.

As a plethora of consulting and professional services is offered on the market, each contract will address legal concerns specific to the type of services procured. If you have any further questions regarding the RFP process or a consulting agreement, we recommend consulting with your attorney.