Historically, the process of submitting a proposal for external funding focused more on developing a responsive scope of work and a budget to support it, collecting supplementary documents required by the sponsor, and ensuring the entire package followed the instructions in the solicitation. Reviewing terms and conditions, and negotiating them with the sponsor, has typically been part of the award setup process.
Recently, the Division of Research Administration (DRA) has reported that more sponsors require the university—and increasingly, the individual—to agree to terms and conditions at the time of proposal submission. While this has become common practice among industry sponsors, now some federal sponsors, like the Department of Defense and the Department of Energy, have begun to join them.
Such terms and conditions often expose the individual to liability, including administrative, civil, and/or criminal penalties, and loss of intellectual property.
Examples include:
- From Sony (and similar to language used by Amazon, Meta, Google, and others): “Your proposal is not confidential or proprietary. By clicking the acceptance box at the end of these terms, you agree to grant Sony all rights to anything that you share with Sony in your proposal. We may or may not use your proposal in a product or service. … If you do not agree to give us these rights, do not agree to or accept the terms below, and do not submit your proposal.”
- From the Department of Energy: “I certify that the information contained in this certification form is accurate and complete. I understand false statements, misrepresentations, half-truths, or omissions may result in civil and/or criminal penalties, including under 18 U.S.C. §§ 1001 and 287.”
- From any sponsors (e.g., National Science Foundation, National Institutes of Health) using SciENcv: “When the individual signs the certification on behalf of themselves, they are certifying that the information is current, accurate, and complete. This includes, but is not limited to, information related to domestic and foreign appointments and positions. Misrepresentations and/or omissions may be subject to prosecution and liability pursuant to, but not limited to, 18 U.S.C. §§ 287, 1001, 1031 and 31 U.S.C. §§ 3729-3733 and 3802.”
How should you respond to this trend?
- Review carefully. It is increasingly important for you to read the entire solicitation, as well as the fine print of any terms and conditions that you are required to sign or certify on your own behalf, and build your awareness of language that may expose you to liability or loss of your intellectual property.
- Seek guidance. Reach out to DRA if you are planning to submit a proposal and you see potentially problematic language in the solicitation or in terms and conditions you are asked to sign or certify. Associate deans for research and senior colleagues can also provide useful, complementary perspectives.
- Take ownership. You are ultimately responsible for the contents of your own application and anything you sign or certify on your own behalf. Be aware of the pros and cons of choosing to move forward with a submission that requires you to sign or otherwise agree to terms and conditions that may not be in your best interest, or that may expose you to liability.
As research administration continues to increase in complexity, DRA’s experienced team is available to help you understand and navigate complex scenarios. Contact DRA at 865-974-3466 or osp@utk.edu.