# Presentation: 869528

## Authorities to Accept Funds Through Agreements

- Louie Pectol
- Chief, Office of Policy and Analysis
- U.S. Geological Survey

**Notes:**
Pleased to be here to discuss acceptance of funds through agreements.  This presentation deals solely with the acceptance of incoming funds and not with the requirements related to outgoing funds (e.g., the USGS award of contracts or assistance  to another entity involving USGS funds going out of the bureau).

 I will be discussing the various types of authorities available to USGS and to its customers, which permit USGS to enter into agreements with and accepts funds from their customers or partners for the performance of specified projects or tasks.  I will also discuss the authorities USGS has available to it to charge and retain “user fees.” as well as USGS authority to accept grants.  In addition, I will briefly discuss the Technology Transfer statutes and the opportunities these statutes provide USGS to enter into Cooperative Research and Development Agreements with non-Federal partners in order to promote and facilitate the transfer of technology to the non-Federal sector.

Because of time constraints, I will not be discussing the authorities available to USGS to perform International work nor other authorities which permit the acceptance of gifts or travel.

## Topics To Be Covered

- Statutes Governing Acceptance of Funds
- Authorities to Accept Funds from:
-  DOI
- Other Federal Agencies
- State and Local Governments
- Non-Governmental Entities

**Notes:**
Because I prefer a “glass half full approach”, the presentation is focused on what USGS can do in terms of entering into agreements for the performance of specified projects, tasks or services.  Compared to many other Federal agencies, the Department of the Interior and USGS have more authorities which permit agreements to be entered into with diverse customers than other Federal agencies.

The presentation will begin with a brief review of statutes and Appropriations Law provisions which establish the requirements for entering into agreements involving the acceptance of funds by a Federal agency.
Then, using examples, authorities will be reviewed which permit USGS to accept funds through agreements.
A brief overview of Technology Transfer will be provided because of the opportunities Technology Transfer provides to USGS cost centers.
Finally, I will discuss items which must be included in agreements as well as agreement issues which are surfacing as USGS enters into agreements with non-Federal customers.

## Augmentation (31 USC 3302(b) & 31USC1301(a))

- An agency may not augment its appropriations from outside sources without specific statutory authority.
- Reimbursements must generally, absent statutory authority to the contrary, be deposited as miscellaneous receipts.

**Notes:**
-Agency may not credit to its own appropriations anything Congress has not expressly authorized.
-An unauthorized transfer is an improper augmentation of the receiving appropriation.
-Unless USGS has statutory authority which permits its to retain funds from a customer, the customer’s funds must be deposited as miscellaneous receipts in the Treasury Department.

## Federal Authorities to Accept Funds

- Many Federal Agencies have statutory authority to enter into cooperative or reimbursable agreements with other Federal agencies.
- Specific statute cites programs for which authority may be used.

**Notes:**
Your Handout “Program or non-DOI agency Specific Authorities to Accept Funds” provides examples of the authorities available to other agencies which permit them to enter into agreements with another Federal agency and to fund the agreement.  The authority typically cites both the agency authorized to use the statute as well as the specific programs for which the authority can be used. 

## Federal Authorities to Accept Funds

- Unless the authority explicitly covers both the ordering (funding) agency and the performing agency, each agency must have its own authority to enter into the agreement.
- Funds are not subject to de-obligation if an authority other than the Economy Act is cited.

## Economy Act (31 U.S.C. 1535(a))

- Must be between U.S. Federal agencies.
- Amounts are available.
- Best interest of the U.S. government.
- Agency filling the order must be able to provide or get by contract the ordered goods or services.
- The ordering agency must decide that the ordered goods or services cannot be provided by contract as cheaply by a commercial enterprise.

**Notes:**
Your handout entitled “Governmentwide Authorities to Accept Funds” list authorities available to all Federal agencies.  I will briefly discuss those governmentwide authorities which permit Federal agencies to enter into agreements with each other.
-Most frequently used authority for agreements between Federal agency.  Provides both the authority for the ordering or funding agency to enter into the agreement as well as the authority for the performing agency to accept the funds.
-Must be an agency or instrumentality of the U.S. Government.  Consequently, the Economy Act does not apply to D.C. government, the Postal Service, the National Guard, Indian tribes, United Nations agencies, or to American Samoa.
-Amounts are available. Contains two requirements. The ordering agency must have funds (1) and the funds must be available for the contemplated purpose (2).  The purpose of the transaction must be something the ordering agency is authorized to do.  The Economy Act does not authorize an agency to use another agency to do anything it could not lawfully do itself.
-The ordering agency must determine that the order is in the best interests of the government.
-The objective of the Economy Act is to permit a Federal agency to take advantage of another agency’s
Experience or expertise, not merely to “dump” either work or funds to avoid legislative restrictions.  The performing Agency may, as long as the work or service is within the scope of activities it normally performs, procure additional supplies or equipment or add additional temporary personnel. The Economy Act does not give a performing agency any authority which it would not otherwise have.
-The ordering agency must determine that it cannot obtain the goods or services as conveniently or as cheaply from a private contractor. If the ordering agency cannot make this determination, use of the Economy Act is improper.
The Federal Acquisition Regulation was amended in 1995 to require that ordering agencies document in a
“Determination and Finding” that an Economy Act interagency agreement is in the best interest of the
Government and at a lower cost than the private sector.  
Payment must be based on the actual costs of goods or services provided.
Billing on the basis of standard costs derived from documented costs of last acquisitions or production is permitted.
Payment must be credited to the FY in which reimbursement was earned.

## Economy Act Requirements(31 U.S.C. 1535(d))

- An Economy Act agreement obligates the ordering agency’s appropriation.
- The performing agency must incur obligations to fill the order within the period of availability of the ordering agency’s appropriation. Otherwise, the funds must be deobligated.

**Notes:**
If we have accepted one year funds through an Economy Act transaction, any funds which we have not expended or obligated must be returned to the ordering agency.  The funds are not available for expenditure or obligation  in the next fiscal year, regardless of the period of performance.

## Government Employees Training Act (5 U.S.C. 4104)

- A Federal agency may, through agreements with agencies in any branch of the Government, provide:
- Use of Government facilities
- Use of the agency’s training program
- Training and use of facilities may be provided on a reimbursable or nonreimbursable basis.

**Notes:**
Provides the authority for the agency requesting training to do so and the authority for the agency providing the training, authority to retain the funds. Acceptance of funds is not subject to the deobligation requirements of the Economy Act.
If an agency has room available in a training class it is otherwise offering, the agency may accommodate private participants. However, any fees or funds received must be deposited in Miscellaneous Receipts in Treasury.

## Joint Funding of a Common-Interest Project

- 	If a project will benefit more than one agency, and as long as it is not something one of the agencies is required to do as part of its mission without reimbursement, then there is nothing that prohibits the agencies from funding the project in proportion to their benefit.

**Notes:**
Joint Funding of a Common-Interest Project is included in Volume IV of the Appropriations Law Manual, Chapter 17, Miscellaneous Topics, Interagency Funding, pages 17-16 through 17-18.
The original Comptroller General decision occurred in 1925 involving several agencies and state and local governments.  They were interested in development of the Colorado River and wanted to sponsor the construction of three gaging stations along the river, under the supervision of the Interior Department’s Geological Survey.  Once it was determined that this was not something the USGS was required to do anyway as part of its job (i.e., there was no augmentation problem), GAO concluded that there appears to be no legal objection to the allocation of Federal Power Commission funds to pay for its proper share of the expenses 
Incident to the maintenance of the stations for which it derives a corresponding benefit.
More recent decisions involved the Environmental Protection Agency cooperating with other federal and nonfederal entities as required by several environmental statutes.  These environmental statutes (e.g., the Clean Air and the Clean Water Acts) provided sufficient authority for interagency agreements, to be funded by transfers to the contracting agency from the other participating agencies.  The decision pointed out the distinction between this type of interagency agreement-in which the participating agencies all had an interest, and an Economy Act agreement in which the performing agency has “no specific interest apart from the provision of a routine service”.  
In any joint funding case, the threshold question is purpose availability.  Joint funding cannot be used if the source appropriation is not otherwise available for the object in question.  The joint funds must be obligated and expensed in accordance with the statute appropriating such funds and within the period of availability of the original appropriations.
Consequently, a joint funding agreement must cite the program statutes which authorize the project to be performed.  In addition, all participating agencies would be funding the project and the period of availability of the funds is that of each funding agency’s appropriation.

## DOI Agreement Authorities

- Numerous statutes authorize the Interior Secretary and DOI bureaus to accept funds from other Federal agencies for specified programs.
- DOI Partnership website (_[http://www.doi.gov/partnerships/partnership_legal_framework.html](http://www.doi.gov/partnerships/partnership_legal_framework.html)__) provides information on many authorities – some of which can be used for agreements between bureaus._

**Notes:**
Your handout entitled “DOI Authorities to Accept Funds” lists authorities available to the Secretary of the Interior and to other bureaus which permit the acceptance of funds through agreements.  The handout provides a brief explanation of the authority, its statutory citation, the type(s) of agreements which can be entered into, the customers, program limitations, and any funding limitations.  The handout also provides the beginning origin of the statute.

When NBS was transferred to USGS, our Director received authority to utilize the authorities related to former NBS functions.  

Other listed authorities could be used by USGS to accept funds if the statute relates to USGS programs (e.g., Water Resources Research and Technology Institutes – Page 1, second authority, which permits acceptance of funds from other Federal agencies to pay for grants and contracts awarded to the Institutes.).

Several of the other listed authorities permit the cited bureau to enter into agreements with other Federal agencies for the purposes contained in the statute.  For example, the last authority could be used by FWS to enter into a reimbursable agreement with USGS when USGS expertise is needed for purposes related to the statute.  

If one of these authorities is cited on agreement, the funds are not subject to deobligation at the end of the fiscal year.

## USGS Agreement Authorities

- 43 USC 36c:  Authorizes USGS “to accept lands, buildings, equipment, and other contributions from public and private sources and to prosecute projects in cooperation with other agencies, Federal, State or private.”

**Notes:**

Your handout, USGS specific authorities to accept funds, lists authorities available to USGS.  

43 USC 36c authorizes both the acceptance of contributions from public and private sources as well as cooperation with other agencies in prosecution of projects.

The first part of the statute, the acceptance of contributions, authorizes USGS to accept “gifts” and contributions and is the statute we cite when someone wishes to make a donation to USGS.  The first part of this statute is also what authorizes USGS to accept a grant. 

The second part of the statute authorizes USGS to prosecute projects in cooperation with other agencies, Federal, State or private.  This is the authority USGS would cite when the authority another Federal agency is using to enter into an agreement and provide funds does not also contain a provision for acceptance of the funds by another Federal agency.  Because this authority does not also authorize another Federal agency to enter into and fund an agreement with USGS, the ordering Federal agency needs a specific authority.

When this authority is used to accept a grant from another Federal agency, USGS must be sure that the funding Federal agency is aware that USGS would be a grant recipient.  This is because some grant authorities available to Federal agencies, preclude another Federal agency from receiving funds from the grant.  Consequently, when applying for grants, USGS must always specify that it is a Federal agency.  If possible, when applying for a grant, it would be useful if USGS requested that any Federal funds be awarded to USGS directly (e.g., as opposed to being received from a university as a sub award of a Federal grant).  If this is not possible, the conditions of the grant must be carefully reviewed to ensure that USGS can agree to the conditions.

Funds accepted under this authority must clearly related to and benefit the mission of the USGS.

## State and Local Governments

## USGS Authority - State & Local Governments

- 43 USC 50:  “The share of the USGS in any topographic mapping or water resources investigations carried on in cooperation with any State or municipality shall not exceed 50 percent of the cost thereof.”

**Notes:**
And 43 U.S.C. 50.  This authority has been interpreted by the DOI Solicitors Office to mean a public agency or entity having taxing authority or a public institution that is an integral part of such tax-levying entity.   Indian tribes are considered public entities as substantiated by their possessing powers of self-government.  United States island possessions are also considered public entities.

The authority is limited to topographic mapping or water resources investigations and no more than 50% may be paid by USGS from its entire appropriation.  

## USGS Authority to Execute Cooperative Projects with States

- 43 USC 36c:  Authorizes USGS “to accept lands, buildings, equipment, and other contributions from public and private sources and to prosecute projects in cooperation with other agencies, Federal, State or private.”
- Also cite 43 USC 50b if the state is not providing advance funding.

**Notes:**
43 USC 36c authorizes USGS to prosecute projects in cooperation with states.  Agreements would be cooperative in nature. For example, the state funds could be used to add to an existing USGS project funded with USGS appropriated funds.   Because the projects must be done in cooperation with the State, the agreement should include a sentence which explains the cooperative nature of the agreement.  This authority should not be cited if the only purpose of the agreement is to provide a service (e.g., state use of a USGS facility such as a laboratory).  An advance would not be required from a state because USGS has separate authority (43 USC50(b)) which permits it to record obligations to carry out work involving cooperation with any State, Territory possession, or political subdivision thereof without an advance.

## Intergovernmental Cooperation Act 31 USC 6505

- Authorizes Federal agencies to provide specialized and technical services to a State or local government on a reimbursable basis when a written request is made by the State or Local Government.
- Federal agencies must be 100% reimbursed.
- State or Local government must certify that services cannot be procured reasonably and expeditiously by it through ordinary business channels.

**Notes:**
This authority is included in your handout “Government wide Authorities to Accept Funds.”

States include the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the U.S., or any instrumentality of a state.

Specialized or Technical services means statistical and other studies and compilations, development projects, technical tests and evaluations, training activities, surveys, reports, documents and any other similar service functions which any Federal agency is especially equipped and authorized by law to perform.

An advance is not required.  Funding received is credited to the providing agency’s appropriation from which the costs of providing the services have been paid or are to be charged.

## Authorities to Accept Funds from Non-Governmental Entities

- USGS Specific Authority (43 USC 36c)
- Stevenson-Wydler Technology Innovation Act as amended (15 USC 3710(a))
- Other Authorities

## Technology Transfer

- Tech Transfer (TT) projects can be performed with non-federal, public, private and non-profit entities.
- A Federal laboratory can provide services, personnel, equipment, intellectual property or other resources with or without remuneration to a collaborator; a laboratory may **NOT** transfer funds directly to a partner in a cooperative project.
- A Federal laboratory may receive funds in- services, personnel, equipment, intellectual property or other resources from the collaborator.
- The legislation provides the partner with a protected research and development exemption from Freedom of Information for up to five years for participating in joint development effort.

**Notes:**
Government can provide services/equipment = personnel, services, facilities, equipment, intellectual property, or other resources with or without reimbursement.  The Government cannot, however, cannot provide funds to the technology transfer partner.

While the non-federal party can supply funds, personnel, services, facilities, equipment, intellectual property, or other resources toward the conduct of specified research or development.