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


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 

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:

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 
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 

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. 

. 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 

If further information or clarification is needed on agreements, please 
contact Carlyn West (cvwest) in the Branch of Operational Support.


                                                 Catherine L. Hill
                                                 Associate Chief Hydrologist 
                                                 for Program Operations

Distribution: A, B, DC, AO

Catherine L. Hill
Associate Chief Hydrologist 
for Program Operations
441 National Center           703-648-5031 (Phone)
U.S. Geological Survey      703-648-5295 (Fax)
Reston, Va    20192