Camp Contracting with Service Providers: The Bigger Picture

by Charles R. "Reb" Gregg and Catherine Hansen-Stamp
May 2017
boys in raft

I. Introduction

As part of a camp’s offerings to campers, camp services include those provided by others, outside the camp’s direct employees or volunteers. The American Camp Association (ACA) calls these organizations or individuals “providers” — commonly known as “vendors,” “sub-contractors,” or “third party providers.”1 A camp’s use of providers encompasses those who use camp premises to conduct a service (food service, rock climbing, portable recreation equipment) or those that provide services at a selected site or location off of camp property, whether in the next town, or somewhere else inside or outside the US — river rafting or bicycle riding, for example. We have written in the past about these issues2, but focused primarily on the written contract between the camp and its contractor. Although a written contract is important, its value is better framed in its place within a set of key components that encompass the larger contracting relationship. Whether yours is an accredited camp or not, these key components will allow the camp to better understand and manage
the risk management, legal issues and practical issues associated with this important relationship.

Why does a camp choose to sub-contract with a provider to offer a service or activity? The reasons are many and varied. A camp may not have the equipment or trained staff to provide an activity they believe serves their mission and rounds out an attractive array of activities for their campers — rafting at a nearby scenic river or horseback riding in the mountains. The camp may have premises appropriate for certain activities that it believes are best utilized by others specializing in the activity — such as technical rock climbing offered on the camp’s property by a climbing guide service. Alternatively, the camp may want to contract out on premises cleaning or food service. Or, the camp may be a “Tripping Camp”3 that has no camp premises but organizes programs for campers taking place in the US or in international4 locations.

Contracting with a provider offers the camp an opportunity to hire others who are more experienced and versed in offering a particular service, and who, the camp believes, can more effectively manage the associated risks. In contracting with a provider, the camp also avoids legal requirements associated with employee withholding, worker’s compensation, unemployment taxes, and other matters. Importantly, in hiring an independent contractor who is responsible for the oversight and direction of the services, the camp may believe it will reduce or eliminate the camp’s legal exposure should something go wrong.

All of the above are true, but there is more to the story. In the context of a camp’s endeavor to run quality camp programming, this article will examine the nature of the contracting relationship from a legal, risk management, and practical perspective, giving the camp an overview of issues it needs to consider as it contemplates its existing — and future — contracting relationships. In the process, we will identify relevant ACA standards.

II. What is an Independent Contractor?

An independent contractor is an organization or individual who, or which, controls and is responsible for the manner and method of the services they provide. As a result, under the law, a contractor is responsible for its own actions and ultimately liable for incidents or injuries relating to its services. Generally speaking, then, the camp has no liability for the acts of its contractors for incidents occurring on the contractor’s “watch.” But, there
are exceptions….

III. Camp — Potential Liability

A camp — like any other organization engaging a contractor — has a duty to exercise reasonable care in selecting a competent contractor. As a result, the camp may be found liable for “negligent selection” of a contractor if found to have breached its duty of care in a particular case. Screening the contractor ahead of time (discussed below) forms the basis for a camp’s effort to reasonably assess competency.

A camp may also be exposed to liability if, having selected the contractor, it exercises control over the manner and method of the contractor’s services, thereby treating the contractor like an employee. Even if the camp has developed a carefully drawn contract identifying that the contractor is hired independently, a court can choose to override the contract and declare that the contractor is actually the camp’s employee based upon the actions and conduct of the parties. Basically, the written contract does not match the program “roll-out.” This scenario may make the camp responsible not only for the contractor’s actions, but also (perhaps) responsible for back taxes, benefits, or penalties (e.g. workers’ compensation, withholding, unemployment compensation) for not treating the individual as an employee.

Other exposure may result if the camp doesn’t disclose the existence of a contractor, or the fact of a contracted activity to its camper families. A camp may believe that it doesn’t want its current or prospective camper families to know that some activities campers will engage in will be performed by contractors outside the camp organization. If an incident or injury occurs, a plaintiff may successfully claim that it appeared the contractor was an employee or agent of the camp rather than a separate entity or individual. On this basis, under what is known as the doctrine of “apparent authority,” a court can hold the camp responsible for the actions of its contractor.

The camp may have other exposure if the contractor is injured and claims that he or she was actually an employee, and is entitled to worker’s compensation, unemployment compensation, or other benefits. Or, a federal or state audit — perhaps kicked off by a contractor’s actions — results in penalties for a camp’s failure to properly designate the individual as an employee.

Other exposure may exist as well, making it critical that camps entering into these relationships understand the bigger picture.

IV. Key Components of the Contracting Relationship

What are the key components of this contracting relationship? As we have described, it isn’t just about the contract. Consider the following:

• Maintaining mission and purpose. Examine the camp’s purpose and goals in the particular contracting relationship. Is the relationship reasonable? Does it align with the camp’s mission?

• Screening and selecting the contractor. Does the camp have a screening or “vetting” method in place for reasonably determining competency? Is the camp documenting this screening process? Various methods (or some combination) include referrals or input from other camps or organizations who have utilized the services of the contractor, reviewing online or printed information or reports on the contractor, in-person or phone interviews, and questionnaires. An additional method — termed by some as “retro-vetting” — involves having the camp’s own staff evaluate the contractor’s services in a way that is documented by the camp. Having regular evaluations by camp staff (or other evidence of “competency evaluation”) over the course of time may not only protect the camp from potential legal exposure, but provides the camp with important insight on the quality of the contractor’s services (from a program quality and risk management perspective).

What is “reasonable”? This is an objective standard — what would an organization in the same or similar circumstances do to determine competency? What is reasonable in any given case can be measured (in court litigation, typically via the testimony of an expert) by, e.g.: practices engaged in by other programs in the industry, applicable accreditation standards or practices, any state laws or regulations, or direction from published
case law.

• Written Contract. The camp and contractor should enter into a clearly written contract that matches the program roll-out. Elements of the contract (discussed below) should, among other content, identify the responsibilities and liabilities of each of the parties.

• Inform Campers and Parents about the Contracting Relationship. The camp should inform camper families regarding the camp’s contracting relationships and associated activities and risks. This disclosure may be included (e.g.) on the camp’s website (with a link to the contractor’s website, perhaps) or elsewhere, and described in the participant agreement, along with a description of selected activities and risks. Not only does this make the camp’s contracting relationships clear to the families from the start, but assists families in understanding the nature of camp activities and risks, and their responsibilities and liabilities. Rather than highlight deficiencies in the camp’s capabilities, it sends the clear signal that the camp wants to deliver a high level of competency in offering the activities, and not simply “wing it.”

• Camp/Contractor Coordination; Maintaining the Independent Relationship. The camp should effectively coordinate with the contractor in advance of the activity or service to confirm the details of the arrangement and to inform the contract, while taking care to appropriately maintain the independence of the parties.

• Education, Preparation, and Training for Attending Camp Staff on Contract, Culture, Coordination. Typically, camp staff will attend, and often participate in, the contracted activity with the campers. Camp staff should be familiar with the written contract ahead of time and specifically understand the intended scope of the contracted activity (does the bike-riding activity also include swimming at a local waterfall, and hiking through a ravine, or just bike-riding?).

Ideally, attending staff can meet or talk with the contractor in advance of the activity or service in efforts to coordinate the planned activity, speaking with camp management if staff have questions.

Camp staff should understand their role during the contracted activity, how they may coordinate with contractor staff (during an emergency or otherwise) and understand any in country or local cultural or other considerations that may influence the conduct of the contractor (a lax attitude about wearing safety equipment, for example). As directed (preferably in training) by camp management, attending camp staff should be prepared to terminate the activity, or intervene, if they do not feel comfortable at the meeting location or at some other point during the contracted activity (bad weather, swollen and rushing river, guide who appears impaired in some way). However, staff should understand their role here is not to take over the running of the activity, but to avoid or terminate the activity, as appropriate, under the circumstances.

A camp should devote a portion of its staff training to addressing these issues.

• Understanding and Structuring Insurance. Insurance is typically the “last layer of the onion” of protection. In the written contract, the contractor will typically be required to offer proof of insurance and add the camp as an additional insured on the contractor’s insurance; ACA standards recommend this.5 Additional challenges arise if the camp is contracting with a foreign contractor (international location), as it may be unable to secure a written contract, secure insurance — or, if secured — adequately “vet” the nature of that insurance.6 In any case, in addition to its efforts to secure insurance/additional insured status from the contractor, it behooves the camp to assure that its own insurance will provide the camp with protection — in a US or foreign location — should it be exposed to liability for incidents or injuries occurring on the contractor’s watch.

V. Applicable ACA Standards

ACA standards address a camp’s contracting arrangements on various levels. The standards don’t necessarily require that the camp make the contracted provider adhere to all standards. In fact, to require this of an accredited camp might compromise a camp’s ability to declare that it was operating independently from the contracted provider (as it might be construed by a court that the camp, in dictating the manner and method of the contractor’s service, was responsible for any resulting harm).

However, the introduction to the PD, PA and PT standards identify, for example, that selected standards “apply” when camps are using “providers” or “vendors” for certain activities. And in some cases, the standards — mandatory or not — require the camp to provide written evidence of compliance (by the camp or contractor).8 ACA Professional Practices9 state:
“[c]ontracts have been signed with all providers of program services such as aquatics, adventure/challenge, horseback riding, and tripping that specify responsibility for meeting the intent of appropriate ACA standards.”

Perhaps the difference here is that — not unlike applicable laws or regulations — the camp is advising its contracted providers on external ACA standards that, as an accredited camp, it must adhere to. In addition, standards applicable to the contractor can be incorporated into the camp’s screening procedures for vetting the competency of a contractor (an important undertaking, as discussed above). Ultimately, a camp should work with its legal counsel to comply with ACA standards, while appropriately preserving the independence of the parties in the contracted relationship.10

VI. Basic Elements of the Written Contract

Although an oral or written contract can obligate parties to an agreement, using a written contract in the context of a camp’s contracting arrangements is a valuable way to document the parties’ understanding. Use of a written agreement between the camp
and a provider is valuable for two basic reasons:

  • It documents the parties’ understanding of their respective responsibilities and important details of the arrangement before the event begins. This information exchange is good business—increasing the understanding between the parties, and hopefully minimizing the risk that incidents may occur during the event.
  • It allows the parties to address their respective liability to each other should an incident occur during the event, or should a party fail to fulfill their obligations under the contract.

At the outset, an enforceable contract must have certain qualities — those include:

  1. Mutual Agreement — it must clearly set out the intent of the parties. There must be a “meeting of the minds”;
  2. Competency — it must be entered into by persons who are legally competent to do so in terms of their adulthood and mental capacity to understand the implications of its terms;
  3. Consideration — a party agreeing to do (or to not do) something must receive “consideration” for that promise — something of value, which may be money, goods or services.
  4. Legality — an agreement will not be enforced if it calls for action that is illegal or otherwise unenforceable under the law.

A contract, however simple it appears and whatever the level of trust between the parties, should be written by, or at least reviewed by, competent legal counsel. (Note that the camp may not always be in the “driver’s seat” if a provider insists that its contract be used. This may involve some strategic negotiation, with assistance from your legal counsel). While the details of a contract will vary, the basic elements are fairly predictable and include at least (but not limited to) the following:

Definition of Terms: To achieve clarity and consistency, consider defining certain terms in the agreement and then using those terms throughout the document. For example, the contracted event or activity could be termed the “program.”

Title: The title should reflect the intent and purpose of the agreement. It must not mislead. For example, a camp would not title a contract for equine services “The Camp’s River Trip.”

Parties: Identify the parties to the agreement using their full legal names (and you might provide an abbreviated reference for later in the agreement).

Purpose and Intent: State the overall intent of the parties as further “table setting” for the agreement which is to follow.

Consideration: As esoteric as this element might seem, courts are comforted by a recognition of what the parties consider a “fair trade” or a “bargained for exchange,” even if the recitation is only: “In consideration of the mutual undertakings described below, the parties acknowledge and agree as follows.”

Brief Description of the Event: Include a brief description of the contracted event or activity.

Beginning and Ending Point of Event: The parties must be very clear about the beginning and ending point of the event, as that marks the start and end of the parties’ respective responsibilities — to each other and to the campers — relating to the event. This could be an airport, a trailhead, or another agreed upon location where the parties meet and then part. If it is a multiple day event which goes for a period of time each day, it may be that the “event” begins and ends each day at specific times, perhaps signaling a shift in responsibilities between camp staff and contracted staff.

Camp Facilities or Premises Provided: If the provider will come to the camp premises for the contracted activity or event, the agreement should describe which facilities or premises the provider has access to and when (including any limitations on use), and whether the camp or the contractor is responsible for selecting and inspecting the sites used for the activity.

Parties Responsibilities and Services: In two parts (or more, depending on the number of parties), describe what each party is expected to do. If the parties are to collaborate in delivering an experience (“mutual services”), the boundaries and nature of their respective contributions must be set out. In these sections, the parties can describe responsibilities regarding staffing11, orientation12, provision of activities, transportation, medical and emergency care and response13, structures, gear, and other resources. As appropriate, the camp should be explicit about disclaiming certain responsibilities.

The matter of supervision — particularly where minors are involved — is a critical element of this responsibilities “breakdown.” Often, camp staff members accompany the campers on a contracted activity – wherever the location. What is the camp staff member’s role vis-a-vis contracted staff? Is it behavior management, assisted supervision, or is the camp staff member simply along to participate in the activity? The point is, the parties should articulate respective roles so that there are no gaps in oversight because of a misunderstanding about who was in charge of what, when. ACA standards highlight the importance of defining these staff roles, particularly around the area of camper supervision.14

Compliance with Standards, Laws, and Regulations: Contractor responsibilities should address compliance with licensure, permitting or certification requirements, applicable ACA standards, state child care licensing laws or other state
laws or regulations. These can be identified in the agreement and, in the case of standards or regulations, attached to it, or, contained within a questionnaire sent to the contractor, and referenced in the agreement. The camp should have a means to verify any required compliance.

Compensation — Payment, Cancellation, Refund: If the contractor will be paid, declare the amount to be paid and when, and, if a down payment is required, describe under what circumstances (cancelation, for example) all or part of that payment might be refunded.

Relationship between (among) the parties: If it is true, the parties should agree that they are each independent of the other, and not employees, partners, agents, or otherwise affiliated in a manner which would allow one to be liable for the actions of the other. This language is sometimes expanded to refer explicitly to the independent contractor status and to deny any obligation to withhold for, or pay, taxes or provide benefits, including workers’ compensation.

Matters of Liability: Here the parties agree to the protection one party will give to the other, or, that each will extend to the other, by mean of insurance, additional insured status, indemnity and otherwise, if a claim is made against one party for the wrongful acts or omissions of the other. As discussed above, seek the advice of both the camp’s legal and insurance counsel, to accurately articulate these terms.

Term and Termination: The parties should agree to a term, and to those events which will cause the agreement to be terminated or suspended, and any monetary or other adjustment which will be made in those circumstances.

Applicable law and venue:
The parties should agree, in advance, where a lawsuit, mediation or other means of dispute resolution shall take place, and in accordance with the laws of which State.

Other provisions: A variety of other provisions may be included, which the camp should discuss with its legal counsel.

Effective date, and signatures: Finally, the agreement should provide for an effective date, and signature blocks for each party, identifying the party and the person signing on behalf of that party.

Again, in developing these contracts the camp must enlist the help of qualified legal counsel, familiar with the camp and the laws pertinent to its operations. These contracts are too important to relegate their drafting and negotiation to a camp administrator with no access to the camp’s legal counsel. Camp families deserve
the clarity and commitment to
professionalism that such a well-crafted document represents.

VII. Conclusion

A casual contracting arrangement based on a handshake, oral agreement, or informal letter may be fine if nothing bad happens, but in the event of an incident during the program, the parties may be pointing fingers about who was supposed to do what, who is financially responsible, and other aspects of the arrangement, increasing the camp’s legal exposure and hurting its reputation. Taking the time to thoughtfully consider a camp’s contracting relationships benefits
your camp operation — and your camper families.

*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415, or e-mail rgregg@gregglaw.net; www.rebgregg.com.

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. She can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com.

1 See ACA Accreditation Process Guide (“APG”) Glossary: “Staffed Public Facility or Provider.” (Note: alternative terms used in the APG referencing this sub-contracted arrangement include “vendor,” “contracted service provider” and “public provider”). This collective definition includes those offering services via a “staffed public facility” (climbing gym, swimming pool) or those offering services either on or off the camp’s premises. This article will focus on the latter.
2Contracting With User Groups and Outside Providers: Legal and Practical Issues, Gregg and Hansen-Stamp, ACA CampLine, Winter 2008.
3 As identified in the APG, “Program Trip and Travel” (see introduction to those standards) defines these that send camp staff with campers on organized programs that travel for 3 nights or more. This can be a camp that has no camp facilities or premises, or, a resident or day camp that offers special trips for campers. See our previous CampLine article, Tripping and Travel Camps – Thinking Outside the Gate, Hansen-Stamp and Gregg, ACA CampLine.
4 See, Id., Tripping and Travel Camps, p. 5, for some discussion on contracting services for a camp’s international trips. Contracting internationally involves a variety of unique issues which are outside the scope of this article.
5 OM 3, Contextual Education.
6 See, supra, Tripping and Travel Camps, p. 5.
7 Id., p. 8.
8 See, e.g. PT.14.1, PD.38 and Contextual Education.
9 The ACA APG explains its “Professional Practices” designation: “[a]s former and current standards become general accepted practices in the industry or are regulated by other bodies, they are acknowledged here as norms in the industry and moved to this educational resource for review and implementation.”
10 See similar comments, supra, Tripping and Travel Camps, p. 3.
11 See HR.4 & HR.5 (contracted staff working on camp property).
12 See PA.33, PD.18.
13 See HW.2, PD.17 and PA.31.
14 See, e.g. PD 39 and contextual education, PT.13 & PT.17 and contextual education; see also OM.12.1.

Photo courtesy of Cheley Colorado Camps, Estes Park, CO