Guest Blogger: Navigating the Seas of Consultants and Subreceipients

[As part of our efforts to interact with Research Administration personnel across the country, BloggingORA will occasionally feature posts written by colleagues at other institutions.  Today’s Guest Blogger is Adriel Villegas-Estrada, Senior Grants and Contracts Specialist at Weill Cornell Medical College.]

When researchers collaborate, teams come together to build on each other’s expertise and create new and exciting developments.  Two of the more popular collaboration arrangements involve the parties acting as consultants or subrecipients, each of which involves different rights and obligations.

To begin with, what is a consultant?  NIH defines it as “an individual who provides professional advice or services for a fee, but normally not as an employee of the engaging party.”  This definition does provide useful information, but is still somewhat broad.  Yes, a consultant works on a fee basis and is not normally an employee of the engaging party, but what happens if an investigator wants to engage in consulting while being a member of an academic institution?  Many universities allow their own faculty to engage in independent consulting, as they want to provide investigators with the opportunity to help others and share knowledge.  However, the general restriction is that they have to do so on their own time, which is crucial when examining consulting arrangements.

Alternatively, a subaward is the legal instrument used to provide funds to an eligible subrecipient to perform a substantive portion of a given program or project.  It is essentially a form of financial assistance, and in these cases, the subrecipient is responsible and accountable to the prime recipient for the research that is performed.

That being said, what do you do when an investigator approaches your office and requests a consulting agreement?  Depending on your policies, you might be able to simply say “No, we have to do it as a subaward.”  However, it is often times not easy to make a quick determination, and you have to find a solution.

So, is there an easy way to differentiate between what truly is consulting and what is not?  The main difference between the two is that a consultant does not do research for the engaging party, but a subrecipient does.  There are also certain questions you can ask to further determine whether or not it is research or consulting:

Will the investigator use university-owned resources and facilities?

Will the investigator receive and keep data that they may later use for secondary analysis?

Will the investigator be listed as an author or be able to publish based on their role?

Is there any intellectual property involved?

If any of the above is answered with a “yes,” or could potentially be a “yes,” it likely should not be classified as consulting, and thus the work would need to be performed under a subaward.

While there may be many compelling arguments made by investigators as to why they would rather use the consulting arrangement over a subaward, it is important to remind them that you are also trying to protect them.  For instance, many consulting arrangements require the consultant to assign all intellectual property to the engaging party.  By allowing an investigator to assign his or her rights, your institution may be in jeopardy, and could face similar consequences as were addressed in the landmark case of Stanford v. Roche.  Consequently, sponsored project offices should take care in accurately determining the appropriate contractual tool that best represents the work being performed.