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