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Does the U. S. Congress Violate The Grants and Cooperative Agreement Act?
bob antonio on Friday, June 15,
2001 - 07:20 am:
someone mentioned that quite a few grants should be contracts in
accordance with the law noted above. Some of the notices for
grants and/or cooperative agreements that I post may be more
appropriately issued as a request for proposal and then awarded
as a contract. A typical second-guesser would immediately blame
the grants officer. However, I think there may be something more
to this assuming that a thorough analysis proves that some
grants should be contracts.
Yes. My agency went so far as to change it's appropriation language to allow for such actions. The language provides us with a new agreement category called a "non-assistance cooperative agreement". The instrument allows us to accomplish non-competitive procurement actions, as long as the recipient has a mutual interest in the undertaking and makes a nominal contribution it's own resources. The instrument is not limited to any particular type of recipient. The "non-assistance cooperative agreement" is outside the FGCA, but we must use our agency Federal Grant and Cooperative Agreement Handbook for our guidance.
The type of agreement Anon mentions is fairly common and goes back many years. Many agencies use this type of arrangement termed "joint project" agreement. The key piece is both sides (government and other organization) have to contribute resources. The intent is for both to split costs, but it often happens the government provides money while the other side provides time, facilities, and other expenses. Depending on the circumstances, it can look like a grant or a contract. In any event, they are always noncompetitive. This also has been around so long most agencies have the authority spelled out in their chapter of the CFR.
I don't know if I can make a clear distinction. Joint project authority is supposed to be used where some entity and the agency share a common interest in exploring something. Actual dollar costs don't have to be shared, but each party is supposed to make comparable contributions. Typically the Government puts up money but the other institution doesn't. Instead, they offer use of their facilities or have graduate students work on a program. It's used with educational institutions, non-profits, state and local governments, and even foreign entities with prior State approval. I believe in most cases, the power to enter into these are with the Secretary but that obviously is delegated to a lower level.
We have had "joint agreement"
instruments available for some time. They differ from our
"non-assistance cooperative agreements" because they must be
outside the scope of both procurement and Federal assistance
(outside the FGCAA). Our "joint agreements" require both parties
to contribute approximately equal funds or tangible resources.
They are similar in that both can be entered into with almost
any type of entity (both Federal and non-Federal) and both
parties must have mutual interest and share responsibility in
In reading through this discussion, I am hit with the "So what?" question. Besides sidestepping the intent of the law, what are some of the effects of awarding cooperative agreements or grants for efforts more appropriately procured with a contract?
There are some significant
differences between financial assistance and contracts.
Financial assistance is essentially a cost reimbursement
instrument and the awardee is only obligated to provide their
best efforts. Especially with grants, but even with cooperative
agreements, the Government is limited in their level of
oversight and involvement. There is no termination for convience
provisions and since it is "best efforts ", termination for
default is difficult.
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