PURPOSE AND LEGAL AUTHORITY FOR COOPERATIVE AGREEMENTS DURING THIS MODULE WE WILL DISCUSS THE BASIS FOR OUR COOPERATIVE AGREEMENTS

FEDERAL GRANT AND COOPERATIVE AGREEMENT ACT OF 1977 THE FEDERAL GRANT AND COOPERATIVE AGREEMENT ACT OF 1977 PROVIDED DISTINCTION BETWEEN ACQUISITION AND ASSISTANCE INSTRUMENTS. PRIOR TO THE PASSAGE OF THE FEDERAL GRANT AND COOPERATIVE AGREEMENT ACT OF 1977, FEDERAL AGENCIES WERE OFTEN USING GRANTS AND PROCUREMENT CONTRACTS INTERCHANGEABLY AND WITHOUT CONSISTENCY IN CONSIDERING THE TYPE OF RELATIONSHIP BEING ESTABLISHED.

TYPES OF INSTRUMENTS PROCURMENT CONTRACT GRANT COOPERATIVE AGREEMENT THESE ARE THE 3 TYPE OF INSTRUMENTS THAT ARE ADDRESSED BY THE ACT.

DISTINCTIONS ACQUISITION = PROCUREMENT INSTRUMENT CONTRACT ASSISTANCE = GRANTS AND INSTRUMENT COOPERATIVE AGREEMENTS THERE ARE TWO MAJOR FUNCTIONS THAT ARE GOING ON WITHIN THE FEDERAL GOVERNMENT. ACQUISITION-THAT IS THE BUY OF SUPPLIES, EQUIPMENT AND SERVICES. THE OTHER IS THE PROVIDING OF ASSISTANCE.

QUALITATIVE DIFFERENCES ASSISTANCE ACQUISITION SUPPORT OR STIMULATION PURCHASE OR ACQUIRE GOODS OR SERVICES PUBLIC PURPOSE PURCHASE FOR THE AWARDING AGENCY LEVEL OF SUPPORT PRICE PARTNERSHIP BUYER/SELLER NO PROFIT OR FEE PROFIT ALLOWED UNILATERAL RIGHT TO UNILATERAL RIGHT TO TERMINATE TERMINATE BY THE RECIPIENT BY THE GOVERNMENT DISCUSS SLIDE

PROCUREMENT CONTRACT (31 U.S.C. 6303, “USING PROCUREMENT CONTRACTS”) IF THE PRINCIPAL PURPOSE OF THE RELATIONSHIP IS THE DIRECT ACQUISITION OF PROPERTY OR SERVICES BY THE AGENCY FOR ITS DIRECT USE AND BENEFIT, USE OF A PROCUREMENT CONTRACT IS REQUIRED. THE USE OF PROCUREMENT CONTRACTS WILL NOT BE DISCUSSED IN DETAIL DURING THIS CLASS.

GRANT AGREEMENT (31 U.S.C. 6304, “USING GRANT AGREEMENTS”) A GRANT AGREEMENT SHALL BE USED IF THE PRINCIPAL PURPOSE OF THE RELATIONSHIP IS TO TRANSFER A THING OF VALUE TO CARRY OUT A PUBLIC PURPOSE OF SUPPORT AND SUBSTANTIAL INVOLVEMENT BETWEEN THE EXECUTIVE AGENCY AND THE RECIPIENT IS NOT EXPECTED IN CARRYING OUT THE ACTIVITY IN THE AGREEMENT. LETS FIRST LOOK AT GRANTS:WHEN A UNIVERSITY RECEIVES A GRANT FROM THE FEDERAL GOVERNMENT TO CONDUCT A STUDY THEY WILL RECEIVE A STATEMENT OF WORK AND AT THE END PROVIDE A DELIVERABLE, I.E. REPORT. DURING THE COURSE OF THE STUDY THERE IS VERY LITTLE SUBSTANTIAL INVOLMENT BETWEEN THE TWO PARTIES.

COOPERATIVE AGREEMENT (31 U.S.C. 6305, “USING COOPERATIVE AGREEMENTS”) A COOPERATIVE AGREEMENT SHALL BE USED IF THE PRINCIPAL PURPOSE OF THE RELATIONSHIP IS TO TRANSFER A THING OF VALUE TO CARRY OUT A PUBLIC PURPOSE OF SUPPORT AND SUBSTANTIAL INVOLVEMENT BETWEEN THE EXECUTIVE AGENCY AND THE RECIPIENT IS EXPECTED IN CARRYING OUT THE ACTIVITY IN THE AGREEMENT. AS YOU CAN SEE CA READS THE SAME EXCEPT FOR ONE IMPORTANT AND THAT IS THE AMOUNT OF SUBSTANTIAL INVOLVEMENT THAT IS REQUIRED TO CARRY OUT THE AGREEMENT.

GRANTS vs COOPERATIVE AGREEMENTS Substantially same document Terms/conditions/format are same Difference is amount of Substantial Involvement DISCUSS SLIDE.

HOW IS SUBSTANTIAL INVOLVEMENT MEASURED? LETS TAKE A LOOK TO HOW WE DETERMINE IF WE HAVE SUBSTANTIAL INVOLVEMENT.

SUBSTANTIAL INVOLVEMENT Agency(NGB) has direct involvement in managing the effort Agency(NGB) reviews and approves before work can proceed Agency(NGB) has involvement in selecting personnel USING OUR FMOS AND BCES AS AN EXAMPLE. CERTAINLY THEY AND THE NGB COUNTERPART, WHO WRITES THE APPENDIX, IN INVOLVED IN MANAGING THE EFFORT. THE FMO AND CE REVIEW WORK BEFORE WORK CAN PROCEED. FINALLY THEY ARE DIRECTLY INVOLVED IN SELECTING THE STATE EMPLOYEES THAT ARE AUTHORIZED UNDER THE TERMS OF THE AGREEMENT.

STATE GUARD Title 32 United States Code (U.S.C.), National Guard, Chapter 1, Organization, defines the State, District of Columbia and Territorial Army and Air National Guard units as State Army and Air militias. And, unless activated to Federal active duty for a national emergency, these units are under the command and control of their State, Territory, or District of Columbia military department. Thus, Army and Air National Guard units, until activated to Federal active duty in event of a national emergency, are statutorily defined as State entities. Therefore, the State Military Department (SMD) in each State, Territory, or District of Columbia is a State entity. THIS SLIDE LAYS THE FOUNDATION IS TO WHOM IS RESPONSIBLE FOR THE STATE GUARD. AS WE GO THROUGH THE MATERIAL THE NEXT TWO DAYS ALWAYS KEEP THIS IN MIND.

The Department of Defense (NGB) has a vested interest in ensuring that the various States/Territories have combat ready units. DoD is willing to provide assistance to achieve this end. To look at how this is accomplished we need to look at the Federal Domestic Assistance provision. THE FEDERAL GOVERNMENT, THROUGH THE NATIONAL GUARD BUREAU, PROVIDES ASSISTANCE AND MATERIEL TO THE NATIONAL GUARD OF THE STATES. THE FEDERAL GOVERNMENT ALSO PROVIDES GIDANCE TO THE STATES CONCERNNING TRAINING, FORCE STRUCTURE, MANNING, LOGISTICS, AND FISCAL POLICY. THE NATIONAL GUARD BUREAU’S USE OF AGREEMENTS AS A VEHICLE TO FUND THE STATE NATIONAL GUARDS AROSE IN THE EARLY 19050s WITH THE PASSAGE OF WHAT IS NOW 10 USC 1803 PROVIDING FOR NATIONAL GURD BUREAU CONTRIBUTION TO CONSTRUCT FACILITIES FOR RESERVE COMPONENTS. THE AMOUNT OF ASSISTANCE VARIES FROM STATE-TO-STATE AND DEPENDED ON THE AMOUNT OF FUNDING THAT IS PROVIDED BY THE STATE.

FEDERAL DOMESTIC ASSISTANCE 31 U.S.C. CHAP 61 & 65 Whenever a Federal Government Entity Transfers Anything of Value To A Nonfederal Entity to Provide Assistance or Support For A Purpose That is Authorized by Federal Law. DISCUSS SLIDE

FEDERAL DOMESTIC ASSISTANCE NATIONAL GUARD When a Federal Entity (NGB) Transfer Things of Value (Funds/In-Kind Assistance) To a Non-Federal Entity (State Military Department) To Assist or Support a Public Purpose (State Military Department Operations) That are Authorized by Federal Law (Statutory Authority) THIS SLIDE SHOWS HOW THE GUARD LINES UP WITH THE DOMESTIC ASSISTANCE PROGRAM.

QUESTION? What Instrument, Grant or Cooperative Agreement, Given The Amount of Substantial Involvement Required, is Best for NGB to Use to Provide Assistance? DISCUSS SLIDE

COOPERATIVE AGREEMENT!!!

QUESTION? Can a State or Territory develop and execute a Cooperative Agreement?

YOU MUST HAVE TWO ELEMENTS - NO ! YOU MUST HAVE TWO ELEMENTS -

THE TWO ELEMENTS ARE Specific(Positive)Statutory Authority Guard Mission Involvement DISCUSS SLIDE

FIRST REQUIRED ELEMENT ! (Specific Statutory Authority) Federal agencies must be authorized by statute to support or stimulate a public purpose FIRST REQUIRED ELEMENT ! (Specific Statutory Authority)

“SPECIFIC” STATUTORY AUTHORITY IS ACQUIRED FROM Specific Authority by Secretary of Defense Specific Authority by Services Secretary Specific Authorization or Program Legislation FEDERAL AGENCIES MUST BE AUTHORIZED BY STATUTE TO SUPPORT OR STIMULATE A PUBLIC PURPOSE. ASBENT THIS STATUTORY AUTHORITY, A GRANTS OFFICER(USPFO) MAY NOT USE A COOPERATIVE AGREEMENT. THIS AUTHORITY CAN COME FROM:

BASIC STATUTES THAT PROVIDE ASSISTANCE AUTHORITY TO THE NATIONAL GUARD 32 U.S.C. 106, 107 (O&M) 32 U.S.C. 112 (COUNTERDRUG) 32 U.S.C. 113 (ARNG ADDITIONAL DUTIES) 10 U.S.C. CHAPTER 1803 (CONSTRUCTION) 32 U.S.C. 509 (CHALLENGE) 32 U.S.C. 501 (STARBASE) 10 U.S.C. 2701 (ENVIRONMENTAL) LISTED IS SOME OF THE MORE COMMON STATUTES THAT GOVERN OUR AGREEMENTS. ______________________________________________________________ _______________________________________________________________

32 U.S.C. 106,107 (O&M) Establishes Master Cooperative Agreement Provides O&M support to State National Guards Basis for Specialized Agreements Distance Learning

32 U.S.C. 112 (COUNTERDRUG) To provide assistance for State Counterdrug and Drug Interdiction Mostly done on Federal side

32 U.S.C. 113 (ARNG ADDITIONAL DUTIES) FY 98 DoD Authorization Act added 113 Congress recognized the valuable maintenance and assistance the Guard could provide the Active Army Provides for the Secretary of the Army to assign and fund missions to National Guard NGB initiated a broader proposal for both the ANG and ARNG to use CAs to do work for the Active Component OMB did not approve and it was not forwarded to Congress THIS IS AN IMPORTANT SLIDE THIS STEMED OUT OF AN IDEA FROM SOUTH CAROLINA. THE KEY ELEMENT IS THAT EVEN THOUGH IT WAS ADDED TO THE DOD AUTHORIZATION ACT CONGRESS SAID THAT THE SEC ARMY MUST ASSIGN THE MISSION. TO THIS DATE THAT HAS NEVER HAPPENED. WHY. COULD BE SEEN AS COMPETITION FOR THE DEPOTS.

CURRENT GUIDELINES Under 32 U.S.C 106, 107 the ARNG can only perform missions internal to the National Guard using a Cooperative Agreement. Missions performed for other services must be done with Federally reimbursed technicians. WE HAVE STATES SUCH AS MS, TX, KS OR, ME THAT UNDER A COOPERATIVE AGREEMENT ARE REPARING THE EQUIPMENT OF THE NATIONAL GUARD. BRING UP THE EXAMPLE OF A STATE BIDDING ON A FEDERAL CONTRACT. EXAMPLE THE STATE OF KY AND CLOTHING.

10 U.S.C. 1803 (MILITARY CONSTRUCTION) (APPLIES TO 2085 APPROPRIATION) Statute permits contributions to States for construction of Reserve Component facilities. A MCCA is required when a National Guard facility is to be constructed by the State. THE QUESTION ALWAYS ARISES AS TO WHETHER WE CAN DO FEDERAL CONTRACTING ON STATE PROPERTY.

32 U.S.C. 501 (YOUTH PROGRAMS) Starbase Requires NGB approval for Starbase Program

32 U.S.C. 509 (CHALLENGE) Requires NGB authority to initiate Challenge Program State share is set at 40%

32 U.S.C. 106, 107 (DISTANCE LEARNING) Requires Cooperative Agreement Potential for program income through shared usage

10 U.S.C. 2701 (ENVIRONMENTAL) Environmental projects are generally funded through the Master Cooperative Agreement

SECOND REQUIRED ELEMENT ! (Guard Mission Involvement) CA MUST SUPPORT TRADITIONAL GUARD MISSION CA MAY ALSO SUPPORT NON-TRADITIONAL GUARD MISSIONS OVER THE PAST SEVERAL YEARS WE ALL HAVE CERTAINLY SEEN THE INCREASE OF THE NON-TRADITIONAL PROGRAMS THAT WE HAVE BECOME INVOLVED IN. THESE INCLUDE CHALLENAGE, STARBASE, DISTANT LEARNING, THESE ARE ALL GOOD PROGRAMS AND PROVIDE VALUE TO THE STATE.

COOPERATIVE AGREEMENT REPRESENTATION EXECUTIVE AGENCY (NATIONAL GUARD BUREAU): Representation for the Executive Agency rest with United States Property & Fiscal Officer serving as the Grants Officer. RECIPIENT: Representation for the recipient rest with the Adjutant General of each State and Territory. THIS IS ONE TIME WHEN THE TAG AND USPFO ARE EQUAL PARTICIPANTS.

QUESTION? ARE COOPERATIVE AGREEMENT CONSIDERED CONTRACTS? WE NEED TO CLEAR THE AIR ON THIS SUBJECT.

ELEMENTS OF CONTRACT OFFER CONSIDERATION ACCEPTANCE CAPACITY OF PARTY LEGAL SUBJECT MATTER WHILE WE CANNOT ARGUE, BASED UPON THIS SLIDE, THAT CA ARE CONTRACTS. HOWEVER WHEN WE START USING THIS TERM MY CONCERN IS THAT IT BEGIN US THINKING ABOUT HOW THESE CONTRACTS ARE TREATED. AS WE LEARNED IN THE CASE STUDY AGREEMENTS DO NOT HOLD THE SAME STATUS AS TRUE CONTRACTS.

ANSWER COOPERATIVE AGREEMENTS BY THEIR NATURE ARE COST REIMBURSEMENT NON-PROCUREMENT CONTRACTS. THIS ADDRESSES THE ISSUE AS TO WHETHER Cas ARE CONTRACTS. IN ESSENCE THEY ARE CONTRACTS, HOWEVER THEY ARE NOT BOUND OR GOVERNED BY FAR AND THE COMPETITION IN CONTRACTING ACT. THEY ARE SENSTIVE TO DRUG-FREE WORKPLACE, SINGLE AUDIT ACT, GENERAL APPROPRIATION LAW ETC.

Executive Agency (NGB/Grants Officer) is reimbursing the Federal Share of the costs incurred by the Recipient (TAG) within the scope of the agreement.

THE CONCEPT OF THE NATIONAL GUARD COOPERATIVE AGREEMENT PROGRAM “STATE PAYS” “FEDERAL REIMBURSES” WE HAVE A PROBLEM IN THAT SOME STATES, ESPECIALLY THE AIR GUARD WITHIN THAT STATE HAS NOT BOUGHT INTO THIS CONCEPT. THE PROBLEM REALLY SURFACES WHEN YOU ARE DEALING WITH AGREEMENTS THAT ARE SPLIT. THIS DOES NOT MEAN THAT YOU ARE UNABLE TO DO THINGS ON THE FEDERAL SIDE. YOU CAN THROUGH IN-KIND ASSISTANCE, WHICH WE WILL DISCUSS LATER.

QUESTION? IF THE APPENDIX IS 100% FEDERALLY REIMBURSED – WHY DO WE NEED TO GO THROUGH THE STATE? THIS QUESTION COMES UP ALL OF THE TIME. WE SEEM TO UNDERSTAND TO SOME DEGRESS THAT IF THERE IS MATCH REQUIRED BY THE STATE WE MUCH USE THE STATE SYSTEM. HOWEVER, MANY STATES FEEL THAT IS MUCH EASIER TO USE THE FEDERAL SYSTEM VRS THE STATE SYSTEM. CERTAINLY WE UNDERSTAND THAT IN ORDER TO PAY THE STATE EMPLOYEES THAT MUST GO THROUGH THE STATE SYSTEM. HOWEVER, THE PURCHASE OF SUPPLIES, EQUIPMENT AND SERVIES COULD GO THROUGH THE FEDERAL GOVERNMENT. MY RESPONSE IS AS FOLLOWS: 1) ARE WE CONFUSING ACQUISTION WITH ASSISTANCE, WHICH WE DISCUSS EARILIER. 2) IF WE USE THE FEDERAL SYSTEM AND NOT REPORT THROUGH THE CA WE ARE UNDERESTIMATED TO CONGRESS THE AMOUNT OF ASSISTANCE THAT IS PROVIDED TO THE STATES/TERRITORIES. THIS COULD EFFECT FUTURE FUNDING. 3) THE FUNDS AT THE STATE LEVEL COULD BE SUBJECT TO THE WISHES OF THE PBAC/FMD BOARDS.

MY OPINION We may be confusing acquisition with assistance. We will underestimate the amount of assistance that is being provided. Assistance funds at the PBAC/FMB level may be subject for withdraw.

Executive Agency (Grants Officer) has no obligation to reimburse the Recipient (TAG) beyond the amount authorized in the agreement. IF THE STATE DOES NOT PUT US ON NOTICE THAT THEY ARE RUNNING LOW ON FUNDS, THEY ARE AT RISK FOR BEING REIMBURSED.

The Recipient (TAG) has no obligation to continue performance if the funding limitation has been reached. TALK ABOUT THE START UP OF THE FISCAL YEAR.

MODULE TEACHING POINTS COOPERATIVE AGREEMENTS ARE THE INSTRUMENTS USED TO PROVIDE FEDERAL FUNDING TO THE STATE NATIONAL GUARD POSITIVE AUTHORITY REQUIRED SUBSTANTIAL INVOLVEMENT REQUIRED

QUESTIONS ?