Guidance on Non-Standard Joint Funding Agreements In Reply Refer to: Branch of Operational Support Mail Stop 405 Sunset Date: March 2005 March 10, 2000 WATER RESOURCES DIVISION POLICY MEMORANDUM NO. 2000.08 Subject: Guidance on Non-Standard Joint Funding Agreements This memorandum provides guidance on developing Joint Funding Agreements (JFA's) for work to be completed under the Federal-State Cooperative Program (Program). This Cooperative Program is a partnership between the U. S. Geological Survey (USGS), and State, tribal, and local agencies to conduct data collection and scientific investigations of mutual benefit. In this Program, resources are pooled to achieve a common goal. The USGS is the impartial, non-regulatory party that performs the work and openly reports the findings. These issues should be emphasized when negotiating JFA’s for work under this program. Reference U. S. Geological Survey Manual (SM) 500.1. As we are receiving a greater number of non-standard JFA’s that are more contractual in nature with legalistic language, the following guidance is intended to give districts and regions help in writing and reviewing these documents. 1. It is the responsibility of the district or region negotiating the agreement to make sure the agency they wish to cooperate with is a State, municipal, or county agency having taxing authority, or is an entity thereof, such as a State university. Privately endowed universities do not qualify. Cooperation with consortiums which consist only of State or local agencies who are funded by State or local agencies is allowable. However, work with consortiums that are a mix of State or local agencies and private organizations or consist only of private organizations, is not allowed under the Cooperative Program. Work for private organizations cannot be done under the Cooperative Program but may be pursued under “Work for Non-Federal Agencies" (work for others). See Geological Survey Manual 500.2.1 and the Technology Transfer Handbook on the internet at: www.usgs.gov:8888/tech-transfer/handbook 2. Under the Cooperative Program, we cannot accept agreements that refer to the agreement as a contract or to the USGS as a contractor. A contract denotes a buyer-seller relationship, generally expressed in a formal manner, with the rights and duties of the performer defined in detail. An agreement is more flexible, less formal, and less detailed than a contract. The results of a contract are basically for the hiring agency’' benefit. Agreements under our Cooperative Program denote a joint effort, and the results provide benefits to the cooperator, the USGS, and to the public. Instead of contract, the word agreement should be used, and the Survey, USGS, or performing agency are other options instead of contractor. Rather than a reference to services, investigations or data collection are more appropriate. 3. Agreements with a “"hold harmless”" liability clause, in which the cooperator states that USGS has responsibility for claims relating to the work performed, cannot be signed. The Anti-Deficiency Act, 31 U.S.C. 1341, bars Federal agencies from entering into any type of indemnification agreement. A statement that the “"U.S . Geological Survey agrees to cooperate, to the extent allowed by law, in the submittal of all claims for alleged loss, injuries, or damages to persons or property arising from the acts of U.S. Geological Survey employees acting within the scope of their employment pursuant to the Federal Tort Claims Act (28 U.S.C. 2671 et seq.)”" is acceptable. 4. A statement that the agreement is subject to all applicable Federal and State laws” should eliminate the need for lists of State and Federal citations. If the cooperator insists that these citations be included, they should be reviewed. If questions regarding those laws cannot be answered by the region or headquarters, they will be sent for interpretation to the Solicitor, Department of the Interior. We cannot accept a statement that this agreement is governed by the laws of the State alone or that State laws take precedence. Federal laws usually take precedence over State laws. Legal disputes would have to be handled by a Federal court and not a State court. 5. If the agreement has a statement that USGS agrees to comply with the terms of the cooperator’s agreement with another organization “which is deemed to be inserted herein and the agreement shall be read and enforced between the parties as though all such provisions were included verbatim,” this means that USGS will also be bound by all that is in the cooperator’s agreement with the other party. This should be avoided, if possible, as many of the requirements are contractual and usually do not apply to the Federal Government. However, if the cooperator insists on making this document part of the agreement, a copy must be included in the package sent to headquarters for review and signature. 6. If the cooperator will sign our standard JFA form, but insists we also sign their document, it is better to negotiate their document into something we can agree with, leaving their document as the only document. Two documents can become a legal issue if a problem arises, and it poses the question of which document is the ruling one. 7. When signing an agreement with a State or local agency, we consider the source of the matching funds to be that of the cooperating agency. Therefore, agreements cannot state that the cooperator’'s matching funds have been provided by another Federal agency. The only obligation the USGS has to police the funds obtained from the State or locality is to ensure that no more than 50 percent of the cost of the cooperative work is derived from funds appropriated to the USGS. 8. A statement requiring mutual agreement by the USGS and the cooperator is preferred in areas such as approval of key personnel, compensation for time extensions, and termination of the agreement. It is not acceptable to allow the cooperator the sole decision in these areas. 9. A termination clause should be included for USGS as well as the cooperator, allowing for a 30 or 60 day notification process with compensation to USGS for work performed up to that point. 10. A paragraph describing the USGS intention to publish and use data in related work should be included. Paragraph 8 of the JFA form can be used in the non-standard version. If a publishing paragraph is not included in the agreement, a statement of the USGS intention to publish must be in the letter transmitting the agreement back to the cooperator. 11. If equipment is to be purchased for use in a project, ownership of the equipment at the end of the project must be negotiated and stated in the agreement. If the ownership of the equipment reverts back to the cooperator at the end of the project, a statement that "equipment purchased with agreement funds will not be accounted for and tracked in the USGS property system" should be included. 12. A billing statement indicating billing frequency (e.g., monthly, quarterly, etc.) should be included. However, if bills are not paid within 60 days of the billing date, the interest clause in paragraph 9 of the standard JFA form applies (31 USC 3717; Comptroller General File B-212222, August 23, 1983). 13. Since the USGS, as a part of the Federal Government, maintains a drug free workplace (Executive Order Number 9000-5) and abides by Federal non-discrimination laws, statements regarding these areas are not necessary but are acceptable in non-standard agreements. It is also acceptable to include a statement that the USGS may not subcontract the work to another party without the previous consent of the cooperator in writing. If the statements in this paragraph are all that make the JFA non-standard, the agreement can be signed at the regional or district level. 14. Attachments to the JFA form, such as a proposal or work plan that have been approved by the region, may be referenced in the JFA and the agreement can be signed at the region or district level. 15. The type of cost accounting, fixed price or cost-reimbursable, must be negotiated and confirmed either in the agreement or the transmittal letter to the cooperator. Reference WRD Memorandum No. 96.28. GENERAL COMMENTS . One agreement is preferable when negotiating an agreement with a cooperator where other USGS divisions will be performing some of the work on the project. This is to assure that no more than 50 percent of the total funding for a project is from USGS, regardless of the division(s) providing funding. . Work under a non-standard or standard JFA cannot commence until the agreement is signed. This is especially critical when previous areas of disagreement with the cooperator have not been resolved satisfactorily or payment for other agreements is overdue. Exemptions to this policy must be approved by the Regional Hydrologist. Reference WRD Memorandum No. 96.06. . All non-standard JFA’s should be reviewed by the region before being sent to headquarters for signature, with any noted problems mentioned in the transmittal memorandum. The region should try to resolve problems at their level whenever possible. However, if requested, headquarters will review any agreements. . If comments from headquarters are made and the agreement is returned to the district, the next transmittal memorandum to headquarters should explain what areas were changed or include explanations of why requested changes were not made. . The standard electronic version of the JFA form must not be electronically altered. However, it can be used as a guide for creating a non-standard version. If the basic JFA language is preserved but changes are typed in that make the JFA non-standard, the transmittal memo should note where this has been done. The standard JFA form number should never appear on these revisions, as the approved form has now been altered. . Non-Standard agreements should be sent to the Office of the Associate Chief Hydrologist for Program Operations (ACH/PO) for signature. However, if a non-standard JFA has been approved and signed by the ACH/PO, and the same format and wording will be used in following years with the same cooperator, permission to sign at the regional or district level may be requested in writing from the ACH/PO. This request should accompany the first non-standard agreement submitted for approval. . Agreements with minor editorial changes that do not contradict the language contained on the JFA form do not need approval by headquarters. Amendments to non-standard JFA's, that have been signed at headquarters, where the ONLY changes to the JFA are a change in the period of performance or dollar amount, may also be signed at the regional or district level. Amendments that have changes in the scope of work should be reviewed by the region and, if approved, may also be signed at the regional or district level. Any additions or legal requirements added to the amendment, other than the change in the scope of work, amount of money, or period of performance, should be reviewed and/or signed at headquarters. If further information or clarification is needed on agreements, please contact Carlyn West (cvwest) in the Branch of Operational Support.
/signed/ Catherine L. Hill Associate Chief Hydrologist for Program Operations
Distribution: A, B, DC, AO
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Catherine L. Hill Associate Chief Hydrologist for Program Operations firstname.lastname@example.org 441 National Center 703-648-5031 (Phone) U.S. Geological Survey 703-648-5295 (Fax) Reston, Va 20192 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~