RELATED SITES

INTRODUCTION
SECTION 1. PURPOSE AND APPLICABILITY
SECTION 2. DEFINITIONS
SECTION 3. LEGAL AUTHORITIES
SECTION 4. REQUIRED INFORMATION FOR ALL AGREEMENTS
SECTION 5. SUMMARY OF RESPONSIBILITIES
SECTION 6. FORMS, REPORTS, AND RECORDKEEPING
SECTION 7. REFERENCES/AUTHORITIES
SECTION 8. EFFECT ON OTHER ISSUANCES
SECTION 9. APPROVAL AUTHORITY
APPENDICES
APPENDIX A – Instruction and Form
Instruction on “How to Prepare and Obtain Clearance for ITA Agreements”
Form ITA-237 Reimbursable Agreement
Form ITA-2080 Memorandum of Agreement Determination and Findings
APPENDIX B - Sample Agreements
Sample I – Joint Project Agreement
Sample II – Memorandum of Understanding
Sample III – Reimbursable Agreement

INTRODUCTION

This guidance is for the internal use of the International Trade Administration (ITA). It provides general direction, legal authorities, other administrative references, and instructions in the preparation of interagency and intra-agency agreements.

SECTION 1. PURPOSE AND APPLICABILITY

.01 This instruction provides explanations of the purpose, the use, and procedures for various agreements between the International Trade Administration (ITA) and other Government agencies, international, Federal, state, or local agencies, universities, or with other private profit and not-for-profit institutions.
.02 Failure to follow these procedures may result in:
§ ITA units being unable to recover funds from other agencies/organizations for activities or services for which ITA units expended funds; or
§ ITA units entering into agreements that may pose a liability to the government

SECTION 2. DEFINITIONS

.01 Approving Official

The approving official is the operating unit official who has the authority to create a legal liability on the part of ITA to make a disbursement of funds under the terms of an agreement. The approving official must be independent from or outside the program officer’s line of supervision. The ITA-2068 "Designation/Revocation of Authority to approve Obligating and Payment Documents" form, commonly called a "signature card” must be used to document the signatures of the appropriate ITA officials who are authorized to approve obligating and payment documents. The approving official is responsible for all aspects of the agreement with the authority to approve, amend, administer, close out, suspend, and/or terminate agreements and make related determinations and findings.

.02 Grant

A grant is a legal instrument, as defined at 31 USC § 6304, that reflects a relationship between DOC and a recipient whenever: (a) the principal purpose of the relationship is to provide financial assistance to a recipient; and, (b) no substantial involvement is anticipated between DOC and the recipient during the performance of the contemplated activity. A grant is not a type of agreement covered by the provisions of this guidance.

.03 Government-wide Area Contract (GWAC)

GWACS are contracts for various information technology resources entered into by one federal agency but which other federal agencies can use. Some agencies with GWACs require an interagency agreement before another agency can order against the contract. Inter-agency agreements for the use of GWACs typically fall under the authority of the Clinger-Cohen Act. Orders placed with the GWAC as a result of an interagency agreement must follow the procedures of 48 CFR 16.505.

.04 In-Kind Contribution

An in-kind contribution is a contribution other than a monetary contribution, e.g., services, or property, that is formally included in the agreement.

.05 Interagency Agreement

This agreement is used when an exchange of funds, resources, supplies, or services is made with another federal agency. However, if a servicing agency is a mandatory source (i.e., if it is required by law to provide the services or supplies to other federal agencies), an interagency agreement may not be the appropriate vehicle for obtaining those supplies or services.

.06 Intergovernmental Cooperation Act Agreement

The Intergovernmental Cooperation Act is a legal instrument, as defined at 31 U.S.C. § 6505, which authorizes Federal agencies to perform services for state and local governments, and to collect and retain a user fee to cover the cost of the work.

.07 Intra-agency Agreement

This agreement is used when an agency exchanges supplies, services, or funds with another agency within the same department. ITA may have intra-agency agreements with any of the other bureaus within the Department of Commerce.

.08 Joint Project Agreement

A Joint Project Agreement (JPA) applies when ITA engages on an equitable basis, in collaborative projects or performs services on matters of mutual interest with non-profit, research, or public organizations and agencies, such as state and local governments (See Appendix B – Sample I). Parties to the agreement may contribute funds or in-kind resources (e.g. facility space, services, subject expertise, staff). Contributions are not required to be equal from each party, but each party must indicate what contributions it will make as part of the agreement. A JPA is an equity-based agreement and government funds can be used. Funds can be received by ITA in a JPA and minimal amounts of ITA funds can be transferred to partners under certain circumstances. Joint projects should not generally be used to transfer large amounts of government funds to private organizations. When large transfers occur, the operating unit must justify why the underlying purpose of the agreement is not financial assistance or procurement.

.09 Memorandum of Agreement/Understanding (MOA/U)

A Memorandum of Agreement/Understanding is a generic term that simply refers to an arrangement with ITA that is not a procurement contract, a grant, or a cooperative agreement (See Appendix B – Sample II). It has no reference to any designated statutory or financial arrangement. In general, the term MOA/U refers to any one of the types of agreements covered in this guidance.

.10 Mutual Educational and Cultural Exchange Act (MECEA) Agreement

The Mutual Educational and Cultural Exchange Act of 1961 (MECEA), 22 U.S.C. §§ 2455(f) and 2458 (c) is incorporated by reference each year into ITA’s annual appropriations legislation. MECEA allows ITA to accept contributions of funds and services from firms for the purpose of furthering ITA's mission. ITA has traditionally used this authority in two ways. First, it is used in the same way as a user fee statute: ITA accepts MECEA contributions to defray costs of providing services to specific companies. Second, ITA has used it as an authority to enter into agreements with for-profit companies when the two parties wish to work together on a specific project, most often a conference. The essence of the statute is that it is a contribution statute--the flow of funds, goods or services must be from the company to ITA. While, ITA can also contribute its own resources toward a specific project, like a conference, it cannot contribute to the company itself. When MECEA is being used to collect a user fee for services provided as a special benefit beyond those received by the general public, the agreement is subject to OMB Circular A-25.

.11 Non-Governmental

Non-governmental refers to any private sector business, international agency, foreign government, or any other organization that is not part of the Federal government or its subdivisions, or a State or local government within the United States.

.12 Non-Reimbursable Agreement

A non-reimbursable agreement is one that may commit operating unit resources to another party or parties to the agreement but does not obligate cash to or from the operating unit and another party to the agreement (See Appendix B – Sample II). Resources could be in the form of personnel, travel, or other in-kind types of commitments.

.13 Program Officer

The program officer is the operating unit official who is responsible for the technical, scientific, or other programmatic aspects of the work to be conducted under an agreement.

.14 Reimbursable Agreement

A reimbursable agreement applies only between ITA and another Federal Agency where government funds are either received or paid (See Appendix B – Sample III). The majority of reimbursable agreements are established under Economy Act authority. Reimbursable agreements involve the transfer of cash from one federal account to another federal account for services rendered.

.15 Reimbursable Detail

A reimbursable detail is a reimbursable agreement where a Federal agency is reimbursed all the costs associated with assigning an employee temporarily to a different position in a Federal agency for a specified time period, with the employee returning to regular duties at the end of the assignment. Most details outside the Department of Commerce require a Memorandum of Understanding, and most are authorized under the Economy Act.

.16 Requesting Agency

The requesting agency is the Federal or other ITA operating unit requesting or ordering goods or services.

.17 Servicing Agency

The servicing agency is the Federal agency or other ITA operating unit that will provide the goods or services, either directly or by contracting for the goods and services.

.18 User Charges

User Charges are fees charged by ITA when it conveys special benefits to individuals or organizations beyond those accruing to the general public. Chapter 11, “Fees and Revenues,” of the DOC Accounting Principles and Standards Handbook sets forth principles and standards pertaining to fees for services and items of value provided by DOC. This chapter of the DOC Accounting Principles and Standards Handbook also prescribes policies and procedures for establishing and imposing user charges for services or products, which DOC provides to non-federal recipients. ITA specific financial policy and procedure that supplements the DOC Accounting Principles is currently under development by ITA Accounting for future release.

SECTION 3. LEGAL AUTHORITIES

Each proposed agreement must be carefully analyzed to ensure that the correct legal instrument and authority are used. If there are questions regarding the correct legal instrument or authority, the Office of General Counsel (OGC) should be consulted. The most frequently used instruments and authorities are listed below.

.01 Joint Project Agreement

The Secretary of Commerce has specific Joint Project Authority under 15 U.S.C. §1525 to engage in joint projects or to perform services on matters of mutual interest with nonprofit organizations, research organizations, or public organizations and agencies (See Appendix B – Sample I).

.02 Memorandum of Understanding/Agreement

All MOU’s require two legal citations: one citation that authorizes ITA to enter into the agreement and work with the other party, and one programmatic authority, which authorizes it to carry out the duties it is agreeing to in the MOU (See Appendix B – Sample II). The agreement authorities were discussed above and can include: the Joint Project Authority (15 U.S.C. § 1525), the Mutual Educational and Cultural Exchange Act Authority (22 U.S.C. § 2455, as applied to ITA in its annual appropriations act), and the Economy Act (31 U.S.C. § 1535). Programmatic authorities can include: for US&FCS, the Export Enhancement and Promotion Act Authority (15 U.S.C. 4721) and for other parts of ITA, the Department’s authority to foster, promote, and develop foreign and domestic commerce (15 U.S.C. § 1512).”

.03 Reimbursable Agreement

Reimbursable agreements may be established under the authority of the Economy Act of 1932 (31 U.S.C. §1535) or any other statutory authorities available to the Federal agency that is involved in the agreement (See Appendix B – Sample III). The most common reimbursable agreements use Economy Act authority and require a Determination and Findings addendum.

.04 User Charges

User charges are established under the Government-wide User Charge Authority (31 U.S.C. §9701). This legal authority generally permits all government agencies to impose a “user charge” for an activity that conveys special benefits to recipients beyond those accruing to the general public. When operating units are performing services that are within the scope of their authorized missions, they may enter into agreements to recover their costs.

The DOC Accounting Principles and Standards Handbook contains guidance on user charges. With limited exceptions, user charges must be sufficient to recover the full cost of goods, services, and resources provided by the federal agency. Full cost refers to all direct and indirect costs incurred by any part of the Federal government from providing a good, resource, or service. These costs include direct and indirect personnel costs; physical overhead, consulting, and other indirect material and supply costs; management and supervisory costs; and the costs of enforcement, collection, research, establishment of standards, and regulation (OMB Circular A-25). Exceptions to full cost recovery include the following:

The recovery of full cost is in conflict with statutory requirements or would seriously impair the objectives of the program or public policy.
The furnishing of the service without charge is an appropriate reciprocal courtesy to a foreign country or international agreement to which the U.S. has subscribed.
Comparable fees are set on a reciprocal basis with a foreign country.

In addition, a bureau CFO may recommend to the Office of Management and Budget (OMB) exceptions to the following policy be made when:

The cost of collecting the fees would be an unduly large part of the receipts of the activity.

The recipient is engaged in a non-profit activity designed for public safety, health, or welfare.

Payment of the full cost by a Federal agency, state or local government, or non-profit group would not be in the program’s best interests.

The furnishing of information to the recipient is clearly a reasonable exchange of information with a voluntary contributor or information to a Department program.

Exceptions and accompanying documentation must be presented to the operating unit’s Chief Financial Officer to ensure that the exceptions to full cost recovery are correctly applied.

SECTION 4. REQUIRED INFORMATION FOR ALL AGREEMENTS

.01 Identification of all Parties to the Agreement. Include the name and address of each organization, the contact person, and contact person’s title and telephone number for each party to the agreement. The agreement should stipulate that changes in the contact person, contact person’s title, and telephone number for each party must be made by written notification to each party to the agreement.

.02 Funding Information. If no funds are obligated through the agreement, a statement to this effect should be included which makes it clear that it does not obligate any funds of any party to the agreement. If funds are to be obligated under the agreement, the financial arrangements for all parties must be clearly stipulated, to include a citation for an ITA accounting code for a reimbursable agreement as well as payment terms and method of payment.

.03 Purpose and Scope of Agreement. Describe the purpose and objective of the agreement. The agreement must provide a comprehensive description of the work to be conducted under the agreement and include general introductory information about the functions of the parties involved.

.04 Responsibilities of Each Party to the Agreement. The division of responsibilities and commitments of each party to the agreement should be defined as precisely as possible. Where applicable, the agreement should include goals, performance measures, products, and a schedule of strategic milestones.

.05 Contracting Authorities. Agreements which involve the use of funds $25,000 and below require approval from the contracting official in the Office of Organization and Management Support. The Office of General Counsel must approve agreements that require more than $25,000 in funds.

.06 Clearances. The unsigned agreement should be sent to the appropriate Office Director, Deputy Assistant Secretary, and the Office of Financial Management (OFM). As indicated above, the Assistant General Counsel for Administration clearance is required for agreements above $25,000.

SECTION 5. SUMMARY OF RESPONSIBILITIES

.01 ITA Program Managers will:

a. For Joint Projects Agreements (See Appendix B – Sample I):

Determine if the agreement is necessary for the furtherance of ITA programs.
Describe how the project is of mutual interest to both parties and cannot be done as effectively without the participation of the partner and ITA.
Assess project costs and determine if it is apportioned equitably.
Ensure that JPA partners are a nonprofit organization, research organization, or public organization or agency.
Ensure that the agreement includes a detailed budget and responsibilities of each of the participants.
Ensure that funds are available in the budget to comply with requirements stated in the agreement for the given fiscal year.
Ensure that the right citation or legal authority is being applied.
Ensure that the signature block reflects the appropriate and binding official per the delegations of authority.
Obtain the proper clearance to authorize the agreement. Note: All agreements must be cleared at a minimum by the appropriate Office Director, the appropriate Deputy Assistant Secretary, the Assistant General Counsel for Administration, and Budget.
Maintain a record of the agreement.

b. For Memorandum of Understanding (See Appendix B – Sample II):

Determine if the agreement is necessary for the furtherance of ITA programs.

Describe how the project is of mutual interest to both parties and cannot be done as effectively without the participation of the partner and ITA.

Ensure that the right citation or legal authority is being applied.

Ensure that the signature block reflects the appropriate and binding official per the delegations of authority.

Obtain the proper clearance to authorize the agreement. Note: All agreements must be cleared at a minimum by the appropriate Office Director, the appropriate Deputy Assistant Secretary, the Assistant General Counsel for Administration and Budget.

Maintain a record of the agreement.

c. For Reimbursable Agreements (See Appendix B – Sample III):

Determine if the agreement is in the best interest of the Government and that the project is necessary to the furtherance of ITA programs.

Describe how the end results of the agreement are consistent with ITA programs and mission and ensure that it is in the best interest of the public.

Ensure that the office entering into the agreement is able to fill the order or provide the services stated in the agreement.

Determine and certify that the goods and services for exchange in the agreement cannot be provided as conveniently or cheaply by a commercial enterprise.

Ensure that funds are available in the budget to comply with requirements stated in the agreement for the given fiscal year.

Ensure that the right citation or legal authority is being applied.

Ensure that the signature block reflects the appropriate and binding official per the delegations of authority.

Obtain the proper clearance to authorize the agreement. Note: All agreements must be cleared at a minimum by the appropriate Office Director, the appropriate Deputy Assistant Secretary, the Assistant General Counsel for Administration and Budget.

For reimbursable and non-reimbursable details over 30 days, it is required to obtain approval from ITA’s Office of Human Resources Management, the Office of General Counsel, and Department of Commerce’s Office of Human Resources Management.

Reimbursable agreements that cite the Economy Act require approval from Budget ($25,000 or below) or Office of General Counsel (above $25,000). An acquisition Determination and Findings must be signed by the Director, Office of Organization and Management Support ($25,000 or below) or NOAA Acquisition Management Division (above $25,000).

9. Maintain a record of the agreement.

.02 OFFICE OF FINANCIAL MANAGEMENT

The Office of Financial Management (OFM) will:

Maintain internal management control procedures to comply with current policies regarding ITA agreements.
Review agreements and related documents to ensure compliance with policies and procedures related to ITA agreements.
Ensure that reimbursable agreement receivables and payables are monitored to ensure that full cost recovery is achieved.
Ensure correct accounting data is being applied to track costs and revenue through the National Business Center’s designated accountant.
Approve the execution of the agreement after funds are certified as available by the program unit resource coordinator. Accounting’s approval is required prior to agreement execution and recordkeeping in ITA’s accounting system.
Ensure that all ITA agreements are justified as appropriate undertakings and relate to the mission of the agency. This process will be internal to the Office of Financial Management.
Maintain a repository of all ITA agreements currently in effect. This repository is maintained at the Department of Interior National Business Center.

.03 OFFICE OF THE GENERAL COUNSEL

The Office of the General Counsel (OGC) will:

Review all proposed ITA agreements above $25,000 to ensure that the cited applicable legal authorities for entering into the agreement are valid.
Review agreements and related documents to ensure that all proposed agreements are legally binding and pose no legal risk to ITA or the Department.

.04 OFFICE OF ORGANIZATION AND MANAGEMENT SUPPORT

The Office of Organization and Management Support (OOMS) will review all proposed reimbursable agreements $25,000 or below to ensure that the Determination and Findings comply with procurement guidelines.

SECTION 6. FORMS, REPORTS, AND RECORDKEEPING

.01 Forms. Form ITA-237, Reimbursable Agreement, is used for reimbursable agreements between ITA and other Government agencies.

.02 Reports. No external reports are required by this instruction.

.03 Recordkeeping.

Each originating ITA office will keep a record of any agreements it has entered that is currently in effect;
Accounting will maintain a repository of all ITA agreements currently in effect;
Accounting through the Department of Interior-National Business Center will see that billings are sent to agencies for which ITA provides services. Billings will be based on actual costs recorded in the accounting records.

SECTION 7. REFERENCES/AUTHORITY

Department of Commerce Accounting Principles and Standards Handbook
Economy Act of 1932, as amended (31 U.S.C. §1535)
Government-wide User Charge Authority (31 U.S.C. §9701)
Joint Project Agreement Authority (15 U.S.C. §1525)
Interagency and Other Special Agreements (IOSA) Handbook
Intergovernmental Cooperation Act (31 U.S.C. § 6505)
Mutual Educational and Cultural Exchange Act of 1961 (22 USC § 2245, (f) and 2458 (c))
Office of Budget and Management (OMB) Circular A-25, User Charges
“Special Studies” Statute (15 USC § 1525)

SECTION 8. EFFECT ON OTHER ISSUANCES

This instruction supersedes Administrative Instruction 3-1 of October 12, 1986.

SECTION 9. APPROVAL AUTHORITY

Chief Financial Officer and Director of Administration.