Interim Guidance on Non-Standard Joint Funding Agreements 

In Reply Refer to: 
Office of Information 
Mail Stop 440 
Sunset Date:  October 2007 

October 4, 2002


WATER RESOURCES DIVISION POLICY MEMORANDUM NO.  2003.01 

Subject:  Interim Guidance on Non-Standard Joint Funding Agreements 

This memorandum supersedes WRD Memorandum No. 2000.08 and provides interim 
guidance on developing Non-Standard Joint Funding Agreements (JFA's) for 
work to be completed under the Cooperative Water Program (Program) until 
permanent procedures are put in place by the Office of Administrative 
Policy and Services (APS).  These interim procedures are effective as of 
October 1, 2002.   

The approval authority for Non-Standard Joint Funding Agreements with 
States and other governmental subdivisions is being delegated to the 
Regional Directors in anticipation of approval of the draft Joint Funding 
Agreement Chapter SM 205.13.  Regional Directors may choose to delegate 
approval authority to Regional Executives.  Prior to forwarding 
Non-Standard JFA's for regional approval, all such agreements shall first 
be reviewed at headquarters by the Office of Partnerships and Business 
Policy in the Geography Discipline for adherence to legal and policy 
requirements.  The Office of Partnerships and Business Policy is 
designated to provide the reviews, to advise districts, and to provide 
comments and recommendations to the regional signature authority. 

Through December 2002, Carlyn West will be on detail to the Office of 
Partnerships and Business Policy and will continue to review Non-Standard 
Agreements and provide advice to districts, while providing training to 
personnel from the Office of Partnerships and Business Policy.   

The following guidance, modified from WRD Memorandum No. 2000.08 is 
intended to give Water Discipline districts and regions help in writing 
and reviewing these documents. 

1.        The Cooperative Water 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. 

2.        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 Program.  Work for private 
organizations cannot be done under the Program but may be pursued under 
"Work for Non-Federal Agencies" (work for others).  See U.S. Geological 
Survey Manual 500.2.1 and the Technology Transfer Handbook on the internet 
at: 

http://internal.usgs.gov/tech-transfer/handbook/


3.        Under the 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 Water 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. 

4.        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. 

5.        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. 

6.        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. 

7.        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. 

8.        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. 

9.        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. 

10.        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. 

11.        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. 

12.          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 
  
13.        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). 
  
14.        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. 

15.        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. 

16.        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 disciplines 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 
disciplines 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. 

        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 memorandum 
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 designated Regional 
authority for signature.  However, if a non-standard JFA has been approved 
and signed by the Regional authority, and the same format and wording will 
be used in following years with the same cooperator, permission to sign at 
the Regional Executive or District Chief level may be requested in writing 
from the appropriate regional authority.   

        Agreements with minor editorial changes that do not contradict 
the language contained on the JFA form do not need further review by 
headquarters.  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 by headquarters. 

If further information or clarification is needed on agreements, please 
contact Carlyn West at 703-648-6840, cvwest@usgs.gov.  Questions regarding 
this interim guidance should be directed to Katherine Lins at 
703-648-5014, klins@usgs.gov, Office of Information. 


/signed/ 

Katherine Lins 
Acting Chief, Office of Information 

Distribution:         District Chiefs 
                District AO's 
                Regional AO's 
                Regional Hydrologists 

Copy to:        Regional Directors 
                Office of Partnerships and Business Policy 
                WRD Senior Staff 

This memorandum supersedes WRD Memorandum No. 2000.08 dated March 10, 
2000, subject:  Guidance on Non-Standard Joint Funding Agreements. 
        



*********************************************
Katherine Lins
Acting Chief, Office of Information, WRD
U.S. Geological Survey
440 National Center
Reston, VA 20192
703-648-5014

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