Attachment

Guidelines on Joint Funding Agreements

1. The following policies apply to all Joint Funding Agreements, regardless of whether they are standard or non-standard.

(a) Cooperating agencies—State, Tribe, municipality, county, and other organizations with taxing authority –Appropriation language reflecting the intent of Congress refers to "...water-resources investigations carried on in cooperation with States or municipalities."  This has been interpreted to mean an agency or entity having taxing authority or a public institution that is an integral part of such tax-levying entity.  An entity that does not meet such a definition would not be eligible to enter into a Joint Funding Agreement (JFA).

It is the responsibility of the Water Science Center (WSC) negotiating a JFA to make sure the cooperating agency is (1) an American Indian Tribe, or (2) a State, municipality, or county agency having taxing authority, or an entity thereof, such as a state university.  Privately endowed universities do not qualify.  Cooperation with consortiums consisting only of State or local agencies 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 private individuals, or consist only of private organizations or private individuals, is not allowed under the Cooperative Water Program (CWP).  In situations where the water resource in question is part of a regional hydrologic flow system that has trans-boundary or inter-jurisdictional water management issues, it is desirable to have all affected parties participating in the development of the proposed effort. When full participation by all affected parties is not possible, the USGS must rely on its assessment of the jurisdictional responsibility of the Cooperator and the scientific value of the data or investigation to decide whether to enter into a JFA.

(b)  Private sector - Proposed joint work through the CWP must not compete with the private sector as defined in the long-standing and firm WMA policy (Water Mission Area Memorandum No. 12.01, Avoiding Competition with the Private Sector). Work for private organizations cannot be done under the CWP but may be pursued in other ways within USGS, such as through Collaborative Agreements and (or) Technical Assistance Agreements. (Refer to U.S. Geological Survey Manual 500.2.2 under Policy on Work for Non-Federal Agencies and in the Technology Transfer Handbook, accessible at:  http://www.usgs.gov/tech-transfer/handbk.html.)

(c) Source of funds - The USGS assumes that Cooperator funds matched by USGS are funds under the control of the State, Tribe, or local cooperating agency that signs a standard or non-standard JFA.  The USGS has no duty to audit or question the source of the funds offered by the cooperating agency  for example, to determine if from federal sources other than to ascertain that these offerings do not include other USGS funds (refer to guidance in Water Mission Area Memorandum 12.06, Matching State, Tribal, or Local Funds Derived from Federal Sources in the Cooperative Water Program). 
In the event that a Cooperator advises USGS that provided funds are of federal origin that is acceptable, however, USGS may not match federal funds in a JFA. The prohibition of referencing other federal funds in a JFA is based on the fact that agreements between the USGS and other federal agencies are conducted under a different authority than the CWP, and require an agreement with the other federal agency using instruments other than a JFA (as specified in Survey Manual Chapter 500.3, Policy on Work for Other Federal Agencies, http://www.usgs.gov/usgs-manual/500/500-3.html)
If the cooperating agency includes a requirement in the JFA that the funds are subject to federal audit, USGS is required to question the source of the funds and adjust the matching share from the CWP accordingly.
A fundamental assumption of the JFA is that, in execution of this agreement between equal partners, the USGS is conforming to all applicable federal regulations and the cooperating agency is conforming to all applicable State and local regulations.

(d) Signed agreements - Work under JFAs may not commence until an agreement is signed. This is especially critical when previous areas of disagreement with the Cooperator have not been resolved satisfactorily or payment from the Cooperator in connection with other agreements is overdue.  Any exceptions to this policy must be approved by the Regional Director. For more detail, reference the USGS Financial Operating Procedures Handbook, Chapter 4.12.

(e) Attachments - Attachments to a JFA, such as a proposal or work plan that have been approved by the Region, may be referenced in the JFA.

(f) Information access - Work conducted under a JFA should not be undertaken in which resulting data and reports cannot be made public (except perhaps under certain court-ordered situations or under special situations negotiated with and specifically approved by the Regional Director). Results of CWP projects and data-collection activities must be made available to the public in published media consistent with USGS policy. Water data collected by the USGS are to be entered into the National Water Information System (NWIS) database. This requirement applies to site information, streamflow, groundwater levels, water quality, water use, and biological data. (WRD Policy Memo 2008.01, Accepting Furnished Records; Guidelines for Ensuring the Quality of Information Dissemination to the Public)

2. Specific guidelines for non-standard Joint Funding Agreements

(a) Approval of Non-Standard Agreements – Consistent with Bureau Policy, as specified in the Survey Manual, Section 205 , final approval by the Water Science Center Director is adequate if a non-standard JFA represents an agreement with the same parties and previously approved language and formats, or if an amendment to an existing non-standard JFA reflects ONLY a change in the scope of work, period of performance, or dollar amount.

All new non-standard JFAs or amendments to existing non-standard JFAs that reflect a change in policy or legal requirements MUST be submitted by the Water Science Center to the Office of Policy and Analysis for final approval in writing. A transmittal memorandum should point out areas where changes are sought and (or) include explanations of why requested changes were not made (should that occur).

(b) Form - The standard electronic version of the JFA form (9-1366) must not be electronically altered.  However, it can be used as a guide for creating a non-standard version. The standard JFA form number should never appear on a non-standard JFA, as the approved form has now been altered.  A transmittal memo should note any changes to the standard JFA language.

(c) Single agreement document – A non-standard JFA is preferred in the event that the Cooperator requests a separate agreement document be signed by the USGS in addition to the standard JFA. It is better to negotiate a single, mutually agreed upon, non-standard document that incorporates the additional terms required by the Cooperator. Two signed documents can lead to a dispute about which rules. In the event that two documents are unavoidable, refer to paragraph 2 (e) (4) of this memorandum.

One agreement is also preferable when negotiating an agreement with a Cooperator where two or more USGS disciplines will be performing the work on the project.

(d) Type of accounting - 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. 

(e) Appropriate use of terms, clauses, and statements

1. Reference to “contracts” – The CWP will not accept an agreement referred to as a “contract.” A contract denotes a buyer-seller relationship, generally expressed in a formal manner, with the rights and duties of the performer defined in detail.  Results of a contract generally are to the benefit of the “hiring agency.”  In contrast, an “agreement” is more flexible, less formal, and less detailed than a contract and denotes a joint effort. Results of an agreement provide benefits to the Cooperator, the USGS, and the public.  Instead of contract, the word agreement should therefore be used.  CWP does not refer to the USGS as a “contractor.” Options to replace the word contractor are (1) the Survey, (2) USGS, or (3) performing agency. 

2. Hold harmless clauses - Agreements with “hold harmless” or open-ended indemnification clauses cannot be signed. According to the Anti-Deficiency Act (31 U.S.C. 1341), federal agencies are barred from entering into any type of open-ended indemnification agreement because of the unlimited risk associated with them.  However, the following statement or other words to that affect are acceptable: "U.S. Geological Survey agrees to be responsible, to the extent allowed by law, for all claims for alleged loss, injuries, or damages to persons or property arising from the negligent or wrongful acts or omissions of U.S. Geological Survey employees acting within the scope of their employment in accordance with the Federal Tort Claims Act (codified at 28 U.S.C. 2671 et seq.).”  USGS may not agree to “defend” either because that is a prerogative of the Department of Justice.

3. State and Federal laws - 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 a 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 should be sent for interpretation to the Solicitor, Department of the Interior.  USGS cannot accept a statement that an agreement is governed by the laws of the State alone or that State laws take precedence.  State law applies if federal law says it applies or if it is not inconsistent with federal law.  Federal laws usually take precedence over State laws. Since USGS is a federal entity, it may only submit to the jurisdiction of a federal court, not a State court.  If a draft agreement provides for state court jurisdiction of disputes, the language must be revised to have federal court jurisdiction.

4. Terms of another organization –Sometimes a cooperating agency may have entered into a “prime agreement” or contract that they would like to incorporate into a non-standard JFA. While it is preferable not to have a separate agreement and include only relevant terms, it may be unavoidable. In such a case, a statement should be included in the non-standard JFA that “The terms of the ‘other agreement’ are incorporated into this Agreement provided such terms do not either contravene applicable federal law and regulations or conflict with the terms in this Agreement.”

5. Mutual agreement - 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.  Sole decision by the Cooperator is not acceptable.

6. Termination clause - A termination clause should be included for USGS as well as the Cooperator, allowing for a 30 to 60 day notification process with compensation to USGS for work performed up to that point.

7. Intention to publish - 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.

8. Equipment purchases - 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 must be included that specifies "equipment purchased with agreement funds will not be accounted for and tracked in the USGS property system."

9. Billing statement - 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).  If the Cooperator insists on the removal of this late payment interest provision, it may be removed because the requirement is statutory and applies, regardless of its presence within the agreement.

10. Other - 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 contract the work to another party without the prior consent of the Cooperator in writing.