# Presentation: 531716

## AGREEMENT INSTRUMENTS

## Partnerships

- Partnerships are the foundation of the Forest Service and are typically begun with the expectation that there will be a long-term relationship developed
- 	(from the first sip of coffee to the leftover grounds in the coffee pot).

## Partnerships

- There are three main activities when working with external parties:
- (1) developing the relationship and deciding how the parties might want to work together in the future (_no formal agreement_).
- (2) documenting the relationship (_MOU_).
- (3) documenting the work to be performed as a result of the relationship (_all other instruments_).

## Partnerships

- Just the facts:
- Forming a partnership involves bringing together two or more groups, organizations, companies, or government agencies that are not otherwise connected.
- Partnerships work best if both sides have something to gain and you are pursuing goals that will affect other people and organizations.
- Most often partnerships are formed due to mutual interests in the same resource or goals.
- Depending on the scope of the mutual benefit partnerships can be made at various levels of a Federal Agency.

## Partnerships

**EACH PARTNERSHIP SHOULD MEET THE FOLLOWING:****	****	****	****	**
**Competent Parties **- Sufficient resources to complete their goals.
**Proper Subject Matter **- Project must benefit each party’s mission.
**Sufficient Participation **- Active involvement, not just providing funding.
**Meeting of the Minds** - All parties must understand the end result.

## Partnerships

- Questions to ask prior to entering into a partnership:
- Are the appropriate project and administrative personnel involved?
- Can the appropriated funds be used for the purpose intended?
- Is there a potential conflict of interest or the appearance of conflict of interest?
- Will the “cooperator” be used as a “straw man” to accomplish something indirectly that we are forbidden to do directly?
- Is it a donation/gift?  If so, are there conditions attached?
- Is the cooperator capable of meeting its obligations; i.e., financial, skills and manpower?
- Is the Forest Service capable of meeting its obligations; i.e., financial, skills and manpower?
- Is there sufficient lead-time to acquire funding, materials, project approvals, etc?
- Does this activity belong on National Forest System lands; i.e., putting up advertisement signs, endorsements?

## Partnership Examples and Resources

- USFS National Partnership Office
- _[www.fs.fed.us/aboutus/partnership/index.shtml](http://www.fs.fed.us/aboutus/partnership/index.shtml)_
- Partnership Resource Center - Clearinghouse for information and tools for creating partnerships
- _[www.partnershipresourcecenter.org/](http://www.partnershipresourcecenter.org/)_

## Contracts, Grants and Agreements Overview

- There are three broad types of instruments that document work with our external parties:
- (1) Contracts
- (2) Grants and Cooperative Agreements   (Federal Financial Assistance)
- (3) Other Agreements

## Why Contracts, Grants and Agreements?

- To meet program needs:
- in an orderly manner
- ensuring sound procurement practices
- encouraging effective competition
- maintaining accountability

- To provide a flexible management tool that accommodates:
- emergencies
- budget changes
- changes in program direction

## Slide 10

## Slide 11

## Contracts, Grants, and Agreements Contracts (Procurement)

- _Contracts_ are used when:
- (1) the principle purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the _**direct benefit**_ or use of the United States Government.
- (2) the agency decides in a specific instance that the use of a procurement contract is appropriate.

## Contracts, Grants, and Agreements Grants and Agreements (FFA)

- Grants and Cooperative Agreements (FFA) are used when:
- The principal purpose of the relationship is to transfer a thing of value to a recipient to carry out a public purpose _**for the benefit of the recipient.**_
- A _Grant_ is appropriate where the Forest Service _is not_ substantially involved.
- A _Cooperative Agreement_ is appropriate when the Forest Service _is_ substantially involved.
- These transactions are governed by Office of Management and Budget Circulars and the Code of Federal Regulations.

## Contracts, Grants, and Agreements Other Agreements

- Other Agreements are _not_ considered procurement or Federal Financial Assistance relationships.
- These instruments typically involve a joint accomplishment of work and have _**direct benefits to both the cooperator and the Forest Service (mutual benefit)**_.

## Types of Other AgreementsRelated to the Fire Program

- Memorandum of Understanding
- Cooperative Fire Protection
- Collection
- Interagency
- Challenge Cost Share
- Participating

## Other Agreements – Memorandum of Understanding

- A written plan between the Forest Service and other parties for carrying out their separate activities in a coordinated and mutually beneficial manner and for documenting a framework for cooperation.

## Other Agreements – Memorandum of Understanding

- Example of a national MOU:
- The Nature Conversancy and USFS
- The purpose of the MOU is to provide a framework for cooperation and coordination in the context of Forest Plan development and implementation, research, and State and private forestry with respect to a wide range of activities, to conserve fish, wildlife, plants, ecosystems and other biological diversity on National Forest System and other lands, including Nature Conservancy preserves, which would appropriately serve the best interests of the people of the United States.
- htpp://fsweb.wofs.fed.us/aqm/ganda/mou%27s.htm

## Other Agreements – Cooperative Fire Protection

- Executed under the following authorities:
- (1) Granger-Thye Act of April 24, 1950
- (2) The Reciprocal Fire Act of May 27, 1955
- (3) The Cooperative Funds and Deposits Act of December 12, 1975 (4)
- The Cooperative Funds Act of June 30, 1914

## Other Agreements – Cooperative Fire Protection, Part A

- Cooperators must have wildland suppression responsibilities.
- Mutual exchange of services; e.g. personnel, equipment, training, and services.
- Each party agrees to waive claims against the other.
- Covers pre-suppression, suppression, and emergency rehabilitation.

## Other Agreements – Cooperative Fire Protection, Part A

- Part A (Format [FSH *]):
- Master Cooperative Fire Protection Agreement:
- Generally between Forest Service, State(s), and other Federal agencies.
- Local Cooperative Fire Protection Agreement:
- Five-year performance period.
- Protection area.
- Definitions.
- [pull out other bullets from R-5 generator]
- Annual Operating Plans are required for both Master and Local:
- Specific resources identified.
- Costs.
- Local management considerations/actions.
- Communication plan; e.g. radio frequencies, phone numbers.

## Other Agreements – Cooperative Fire Protection, Part AExamples

- _Participants:  _
- Forest Service (Regions 4, 5, and 6);
- National Park Service (Pacific West Region);
- Bureau of Land Management (California and Nevada);
- California Department of Forestry
- www.fs.fed.us/r5/fire/cooperators/4-party_agrmt_fina_02.pdf

_**Participants:**_
**State Of Arkansas,  Arkansas Forestry Commission**
**Forest Service: Ouachita And Ozark-St. Francis**
**National Forests**
- www.fs.fed.us/r8/ouachita/fire/web_files/afc_coop_04.htm

## Other Agreements – Cooperative Fire Protection, Part B

- Can contract with other governmental entities for suppression and other like activities; e.g. IMT non-Federal team members, using fire districts where there is no reciprocity (assistance by hire).
- Parties can file claims for damages against each other
- Generally no exchange of services; e.g. personnel, equipment, training, and services.
- Covers pre-suppression, suppression, and emergency rehabilitation.

## Other Agreements – Cooperative Fire Protection, Part B

- Part B (Format FSH *):
- Procurement action
- Cooperative Fire Protection Agreement, citing Part B [link to OES]
- Memorandum of Understanding, outlining responsibilities of the parties
*To identify which Part B format to use, please check with your AQM unit*

## Other Agreements: Cooperative Fire Protection, Part B Example

- _Participants:_
- Forest Service (Region 5);
- National Park Service (Pacific West Region);
- Bureau of Land Management (California);
- US Fish and Wildlife Service (California and Nevada);
- California Department of Forestry;
- California Office of Emergency Services
- www.fs.fed.us/r5/fire/cooperators/rev03_ca_fire_assist_agrmt_2002-2006

## Other Agreements – Collection

- The primary point to remember is that as a Federal agency, **the Forest Service must have legislative authority to accept funding from other non-FS entities.**  It is not enough that someone wants to give us money; there must be legislation that allows us to collect and spend it.

## Other Agreements – Collection

-   Executed under the following authorities:
- (1) Granger-Thye Act of April 24, 1950
- (2) The Cooperative Funds Act of June 30, 1914

## Other Agreements – Collection

-    The instrument to accept money, equipment, property, or products from a non-Federal party to carry out a purpose authorized by law. These agreements may involve both trust fund collections (advances) and reimbursements.

## Other Agreements – Collection

-    Format:
- Project-specific work plan and budget.
- Project cost includes overhead (burden rate).
- Period of performance, generally work is performed within the same fiscal year the money is deposited.

## Other Agreements – Collection

-    Examples:
- *

## Other Agreements – Intra-Agency

-    May be used when one Forest Service unit is in a position to provide materials, supplies, equipment, work, or services of any kind that another Forest Service unit needs procured or performed to accomplish its mission.

## Other Agreements – Inter-agency

-    Format:
- *

## Other Agreements – Interagency

- Authority:
- The Economy Act of 6/30/1932
- 	(31 U. S. C. 1535, P. L. 97-258 and 98-216)
- 	Allows requisition of work, services, supplies, material or equipment from another Federal agency where both agencies have the authority to do the work.

## Other Agreements – Interagency

- 	This authority can only be used with other Federal agencies.
- Full cost recovery whether we are receiving or providing the service.
- We cannot use this authority with tribal governments.
- Payment can only be on a reimbursement basis.
- Caution at yearend when negotiating Economy Act agreements, ensure the other Federal agency’s funds are valid for the performance period (can the funds be used across fiscal years?).
- We do not provide funding to another agency in order to accomplish _their_ mission (illegal augmentation); e.g.:
- Joint (BLM/FS) prescribed burn project with a common boundary – under this authority, BLM funds cannot be used for activity on FS land and FS funds cannot be used for activity on BLM lands.

## Other Agreements – Interagency

-    Format:
- Standard narrative template,
- AD-672, or
- Other agency format can be used
-    Regardless of the agreement format, the following always must be addressed:
- Project description.
- Financial plan.
- Performance period.

## Other Agreements – Interagency Examples

-   Cooperative Management Agreement for 2003-2008
- Participants:
- Bureau of Land Management,
- Bureau of Indian Affairs,
- National Park Service,
- Fish and Wildlife Service,
- US Forest Service

- Interagency Cooperative Fire Agreement
- Participants
- Bureau of Land Management, Wyoming
- Bureau of Indian Affairs, Rocky Mountain Region
- Forest Service, Rocky Mountain and Intermountain Regions
- State of Wyoming, State Board of Land Commissioners,
- Office of Lands and Investments and
- Wyoming State Forestry Division

## Other Agreements – Challenge Cost Share

- Authority:
- Interior and Related Agencies Appropriations Act of 1992 (P. L. 102-154, (Challenge Cost-Share) (FSM 1587)

## Other Agreements – Challenge Cost Share

- Expenditures shall be commensurate with value received.
- Forest Service may only reimburse cooperator for actual costs incurred.
- No advance payments allowed.
- Match can be cash, real or personal property, services, and/or in-kind contributions
- Financial plans required prior to start of work
- Federal Acquisition Regulations might apply:
- If the Forest Service contributes more than 50% of the cost of a third-party contract, then the Forest Service has to be the contracting agent; e.g. if the Forest Service and a Fire Safe/FireWise Council contract prescribed burns and the Forest Service puts in 51% of the contract price, then the Forest Service must do the contract.

## Other Agreements – Challenge Cost Share

-    Format:
- Clear description of the terms and conditions for performance of the work.
- Includes a financial plan reflecting a detailed break-down of costs if applicable.
- Specifies an appropriate period for performance.
- Includes mandatory Forest Service provisions.

## Other Agreements – Challenge Cost Share

-    Examples:
- *

## Other Agreements – Participating

- Authority:  Cooperative Funds and Deposits Act of 12/12/1975 (16 U. S. C. 565al-a3, P. L. 94-148)
- Authorizes the Forest Service to enter into cooperatively performed, mutually beneficial projects with public and private agencies, organizations, institutions, or persons.

## Other Agreements – Participating

- 	Tort liability _may be_ conveyed to cooperators; e.g. if an individual is injured while performing under this agreement, Forest Service would be responsible for workers compensation
- Forest Service may provide reimbursable or advance payments
- Expenditures shall be commensurate with value received.
- No advance payments allowed.
- Match can be cash, real or personal property, services, and/or in-kind contributions
- Financial plans required prior to start of work
- Federal Acquisition Regulations might apply:
- If the Forest Service contributes more than 50% of the cost of a third-party contract, then the Forest Service has to be the contracting agent; e.g. if the Forest Service and a Fire Safe/FireWise Council contract prescribed burns and the Forest Service puts in 51% of the contract price, then the Forest Service must do the contract.

## Other Agreements – Participating

-    Format:
- Clear description of the terms and conditions for performance of the work.
- Includes a financial plan reflecting a detailed break-down of costs if applicable.
- Specifies an appropriate period for performance.
- Includes mandatory Forest Service provisions.

## Other Agreements – Participating

-    Examples:
- Cooperatively develop publications and audiovisual productions relating to environmental education and forest history.
- Develop conferences jointly where the theme relates to environmental education or forest history.

## Other Agreements – Wyden Authority

- Wyden Amendment (Public Law 105-277, Section 323 as amended by Public Law 106-73, Section 330, Title III Watershed Restoration and Enhancement Authority).
- This Act authorizes the Forest Service to enter into cooperative agreements with willing federal, tribal, state, and local governments, private and nonprofit entities, and landowners for the protection, restoration, and enhancement of fish and wildlife habitat, and other resources on public _or private land_ that benefit those resources within the watershed (FSM 1587.15).

## Other Agreements – Wyden Authority

- Authority is available through Fiscal Year 2005.
- There is no specific Wyden appropriation. Funds must be available within existing appropriation; e.g., wildlife funds for wildlife projects
- There is no mandated match requirement.
- Ensure agreement terms protect public investment on nonfederal lands.
- Project(s) must comply with all Federal, state, and local laws and regulations; e.g. NEPA stills applies.
- When working off NFS lands:
- Must be direct benefit to NFS lands.
- Liability and long term maintenance responsibilities need to be addressed.
- Written permission by landowner to perform the work.

## Other Agreements – Wyden Authority

- 	 Format:
- Agreement template can be either Federal Assistance or Other Agreement.
- Clear description of the terms and conditions for performance of the work.
- Includes a financial plan reflecting a detailed break-down of costs if applicable.
- Specifies an appropriate period for performance.
- Includes mandatory Forest Service provisions.

## Other Agreements – Wyden Authority

- Examples:
- *

## Templates of agreements

- Useful WO website for samples of agreements and letters
- _[http://fsweb.wo.fs.fed.us/aqm/ganda/templates_&_forms.htm](http://fsweb.wo.fs.fed.us/aqm/ganda/templates_&_forms.htm)_
- _Local Agreements_
- R5 Agreement Generator:
- used to develop local cooperative fire agreements between
- national forests and fire departments.  Has multiple “drop
- down” clauses to handle various cooperative needs and
- situations.  fsweb.fire.r5.fs.fed.us/coop/coop.shtml