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
**********************************************