Joint Venture Agreements - Administrative General Terms and Conditions

  1. Mandatory
    1.  Accounting System Requirements
    2.  Accounting, Audit, and Records
    3.  Advertising
    4.  Agreement Closeout
    5.  Allowable Costs
    6.  Applicability of Administrative and Cost Principle Requirements, Part 1
    7.  Disputes
    8.  Endorsement
    9.  Enforcement
    10.  Freedom of Information Act (FOIA)
    11.  Government-Furnished Property
    12.  Indirect Costs and Tuition Remission
    13.  Modifications
    14.  Non-Liability
    15.  Notices
    16.  Overpayment
    17.  Participation in Similar Activities
    18.  Press Releases
    19.  Prior Approvals
    20.  Program Management
    21.  Project Supervision and Responsibilities
    22.  Responsibility for Making and Monitoring Subawards
    23.  Retention and Access Requirements for Records
    24.  Revision of Budget
    25.  Rules of the Workplace
    26.  Sub Cooperator Notification
    27.  Tangible Personal Property
    28.  Termination
    29. The Cooperator Shall Pt. 1
  2. Conditional
    1. Program Income – Joint Venture Agreements
    2. Publications and Acknowledgment of Support
    3. Procurement of Goods and Services Outside the United States

Provision Title

Administrative GT&C - Mandatory

JV Instructions

Accounting System Requirements

(a) Prior to FAS’ initial payment to the Cooperator, the Cooperator shall provide sufficient evidence to the FAS Grants Management Officer that its accounting system is in accord with the Generally Accepted Accounting Principles.

(b) Cooperators’ financial management systems shall provide for the following:

(1) Accurate, current, and complete disclosure of the financial results of each FAS sponsored project or program. FAS requires financial reporting on an accrual basis; however, the Cooperator shall not be required to establish an accrual accounting system. These Cooperators shall develop such accrual data through best estimate for their reports on the basis of an analysis of the documentation on hand.

(2) Records that identify the source and application of funds for federally sponsored activities. These records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.

(3) Effective control over and accountability for all funds, property and other assets. Cooperators shall adequately safeguard all such assets and assure they are used solely for authorized purposes.

(4) Comparison of outlays with budget amounts for each award. Whenever appropriate, financial information should be related to performance and unit cost data.

(5) Written procedures to minimize the time elapsing between the transfer of funds to the Cooperator from the U.S. Treasury and the issuance or redemption of a check, warrant or payment by other means for program purposes by the Cooperator. To the extent that the provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101–453) govern, payment methods of State agencies, instrumentalities, and fiscal agents shall be consistent with CMIA Treasury-State Agreements or the CMIA default procedures codified at 31 CFR part 205, ‘‘Rules and procedures for efficient Federal State funds transfer.’’

(6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles and the terms and conditions of the award.

(7) Accounting records including cost accounting records that are supported by source documentation.

(c) Where bonds are required in the situations described above, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CFR part 223, ‘‘Surety Companies Doing Business with the United States.’’

Applies to all JVs.

Accounting, Audit, and Records

(a) The Cooperator shall maintain financial records, supporting documents, statistical records and all other records pertinent to the Agreement in accordance with Generally Accepted Accounting Principles formally prescribed by the United States to sufficiently substantiate charges to this Agreement. Accounting records that are supported by documentation shall at a minimum be adequate to show all costs incurred under the Agreement, receipt, and use of goods and services acquired under the Agreement, the costs of the program supplied from other sources, and the overall progress of the program. Unless otherwise notified, the Cooperator’s records and sub cooperator’s records which pertain to this Agreement shall be retained for a period of three years from the date of submission of the final expenditure report, except when a longer retention period is required by law and may be audited by FAS and/or its representatives.

(b) Non-federal for-profit and non-profit organizations that expend $500,000 or more per their fiscal year in Federal awards, i.e., as Cooperators or sub cooperators of Federal grants or cooperative agreements, or as cost reimbursable subcontractors of Federal grants or cooperative agreements, shall have an annual audit conducted in accordance with the provisions of 7 CFR Part 3052.

(c) Non-federal for-profit and non-profit organizations expending less than $500,000 per their fiscal year under Federal cost-reimbursable contracts, grants, cooperative agreements, or agreements shall be exempt from the above financial audit requirements for that year, but are subject to the requirement to make records available upon request for review by FAS officials or their designees.

(d) FAS shall retain the right to conduct a financial review, require an audit, or otherwise ensure adequate accountability of organizations expending FAS funds regardless of the audit requirement.

(e) Organizations that provide FAS resources to other organizations to carry out FAS program and activities shall be responsible for monitoring their subcontractors or sub cooperators. The cost of agreed-upon procedures to monitor sub cooperators who are exempted from A-133 under section 200(d) are allowable, subject to the conditions listed in A-133, section 230(b)(2).

(f) The audit reports referenced in paragraph 2 and 5 shall be submitted to FAS within the earlier of 30 days after receipt of the auditor’s report or not later than 9 months after the end of the audit period. No audit costs may be charged to this Agreement if audits have not been made in accordance with the terms of 7 CFR Part 3052. In cases of continued inability or unwillingness to have an audit performed in accordance with the terms of 7 CFR Part 3052, FAS shall consider appropriate sanctions which may include, inter alia, suspension of all or a percentage of disbursements until the audit is satisfactorily completed.

(g) This provision in its entirety shall be incorporated into all subawards with non-U.S. organizations that meet the $500,000 threshold as described at paragraph (b) of this provision. Subawards to non-U.S. organizations which are for more than $10,000 but do not meet the $500,000 threshold shall at a minimum incorporate paragraph (d) of this provision. Subawards of grants and cooperative agreements made to U.S. organizations, except for not-for-profits, shall state that the U.S. organization is subject to the audit requirements contained in OMB Circular A-133.

Applies to all JVs.

Advertising

The Cooperator will not refer in any manner to the USDA or agencies thereof in connection with the use of the results of the project without prior specific written authorization by FAS. Information obtained as a result of the project will be made available to the public in printed or other forms by FAS at its discretion. The Cooperator will be given due credit for its cooperation in the project.

Applies to all JVs.

Agreement Closeout

(a) The Cooperator shall close out the Agreement within 90 days after expiration or notice of termination.

(b) Any unobligated balance of cash advanced to the Cooperator shall be immediately refunded to FAS, including any interest (to HHS PMS), or other relevant law or regulation.

(c) In the event a final audit has not been performed prior to the closeout of the Agreement, FAS reserves the right to disallow and recover an appropriate amount after fully considering any recommended disallowances resulting from an audit which may be conducted later.

(d) Submit final SF-PPR, SF-425, and SF-428, as applicable under the provisions of this Agreement.

(e) Failure to close out an agreement according to the provisions of this agreement in a timely manner may result in adverse actions.

Applies to all JVs.

Allowable Costs

(a) The Cooperator shall be reimbursed for costs incurred in carrying out the purposes of this Agreement which are determined by the Grants Management Officer to be reasonable, allocable, and allowable in accordance with the terms of this Agreement and the applicable cost principles in effect on the date of this Agreement. The Cooperator may obtain a copy of the applicable cost principles from the Grants Management Officer. Brief definitions of what may be considered as reasonable, allocable, and allowable costs are provided below; however, it is the Cooperator's responsibility to ensure that costs incurred are in accordance to the relevant federal Cost Principles.

(1) Reasonable. Shall mean those costs that are generally recognized as ordinary and necessary and would be incurred by a prudent person in the conduct of normal business.

(2) Allocable Costs. Shall mean those that are incurred specifically for the Agreement.

(3) Allowable Costs. Shall mean those costs that conform to any limitations in the Agreement.

(b) Prior to incurring a questionable or unique cost, the Cooperator shall obtain the Grants Management Officer's written determination on whether the cost will be allowable.

(c) No funds provided under this Agreement shall be paid as profit or fee to the Cooperator or paid by the Cooperator to any sub cooperator under this Agreement. However, funds may be used to pay subcontractors profit or fees under this Agreement.

(d) Failure to comply with indirect cost rate requirements may lead to substantial overpayments or underpayments.

(e) The Cooperator must inform FAS, through the Grants Management Officer, of all applicable indirect cost rate adjustments.

Applies to all JVs.

Applicability of Administrative and Cost Principle Requirements, Part 1

(a) 2 CFR part 180 and part 417, “OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)” and “Nonprocurement Debarment and Suspension”;

(b) Executive Order 13224, as amended, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”;

(c) OMB Circular A-133, as codified in 7 CFR part 3052, ‘‘Audits of States, Local Governments, and Nonprofit Organizations’’;

(d) 7 CFR part 3015.175(b), ‘‘Copyrights’’;

(e) 2 CFR part 25 “Universal Identifier and Central Contractor Registration”;

(f) 2 CFR part 170, “Reporting Subaward and Executive Compensation Information”;

(g) 41 U.S.C. §§ 351 – 358, “the McNamara-O'Hara Service Contract Act of 1965”

(h) 37 CFR part 401.14, ‘‘Standard Patent Rights Clause’’;

(i) 15 U.S.C. 205a et seq., ‘‘The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act’’;

(j) 42 U.S.C. 6962, ‘‘Resource Conservation and Recovery Act (RCRA)’’;

(k) 49 U.S.C. 40118 et seq., “Fly America Act”;

(l) 8 USC 1324a, “Immigration and Nationality Act”;

(m) OMB Circular A–21, ‘‘Cost Principles for Educational Institutions’’ codified at 2 CFR 220;

(n) 5 U.S.C. 552, “Freedom of Information Act”;

(o) Executive Order (EO) 13513, “Federal Leadership on Reducing Text Messaging While Driving”;

(p) 41 U.S.C. 22, “Interest of Members of Congress”;

(q) 40 U.S.C. 3141-3148, “the Davis–Bacon Act”; and,

(r) Other laws, regulations, Executive Orders, and other applicable requirements, which are hereby incorporated in this Agreement.

Applies to all JVs.

Disputes

Whenever disputes, disagreements, or misunderstanding arise regarding issues under this Agreement, the Cooperator and FAS shall attempt to resolve the issues by discussion and mutual agreement as soon as practicable. If the parties are unable to mutually resolve the dispute, the Cooperator may submit, in writing, a disputed claim or issue to the FAS Deputy Administrator for the Division administering the Agreement, or their designee, for a decision. No hearing will be provided, unless another hearing, appeal, or other administrative proceeding is available to the Cooperator under any statute or regulations applicable to the action involved. The Cooperator’s submission must specify the nature and basis of the claim and the relief requested and include all data to support such claim. A copy of the submission shall be concurrently furnished to the Grants Management Officer. The Grants Management Officer shall furnish the Cooperator a written copy of the Deputy Administrator’s decision. Decisions of the Deputy Administrator shall be final unless, within 30 days of receipt of the decision, the Cooperator appeals the decision to the FAS Administrator. Any appeal made shall be in writing and addressed to the FAS Administrator. No hearing will be provided.

Applies to all JVs.

Endorsement

Any of the Cooperator’s contributions made under this Agreement do not by direct reference or implication convey FAS endorsement of the Cooperator's products or activities.

Applies to all JVs.

The parties may negotiate the following, additional, text,”…, and does not by direct reference or implication convey the Cooperator's endorsement of the FAS’ products or activities.

Enforcement

(a) Remedies for noncompliance. If a Cooperator materially fails to comply with the terms and conditions of an award, whether stated in a Federal statute, regulation, assurance, application, or notice of award, FAS may, in addition to imposing special conditions, take one or more of the following actions.

(1) Temporarily withhold cash payments pending correction of the deficiency by the Cooperator or more severe enforcement action by FAS.

(2) Disallow all or part of the cost of the activity or action not in compliance.

(3) Wholly or partly suspend or terminate the current award.

(4) Withhold further awards for the project or program.

(5) Take other remedies that may be legally available.

(b) Effects of suspension and termination. Costs of a Cooperator resulting from obligations incurred by the Cooperator during a suspension or after termination of an award are not allowable unless FAS expressly authorizes them in the notice of suspension or termination or thereafter. Other Cooperator costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if paragraphs (b)(1) and (2) of this provision apply.

(1) The costs result from obligations which were properly incurred by the Cooperator before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are non-cancellable.

(2) The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.

(3) Relationship to debarment and suspension. The enforcement remedies identified in this provision, including suspension and termination, do not preclude a Cooperator from being subject to debarment and suspension under 2 CFR part 180 and part 417.

Applies to all JVs.

Freedom of Information Act (FOIA)

Public access to agreement records shall not be limited, except when such records must be kept confidential and would have been exempted from disclosure pursuant to "Freedom of Information" regulations (5 U.S.C. 552).

Applies to all JVs.

Government-Furnished Property

(a) Title to federally-owned property remains vested in the Federal Government. Cooperators shall submit annually an inventory listing of federally-owned property in their custody to FAS. Upon completion of the award or when the property is no longer needed, the Cooperator shall report the property to FAS for further Federal Agency utilization.

(b) The Cooperator may only use FAS property furnished under the Agreement for performing tasks assigned in the Agreement . The Cooperator shall not modify, cannibalize, or make alterations to FAS property. A separate document, Form AD-107, must be completed to document the loan of FAS property. Title to FAS property must not be affected by its incorporation into or attachment to any property not owned by FAS, nor must the property become a fixture or lose its identity as personal property by being attached to any real property.

(c) Unless otherwise provided for in the Agreement, the Cooperator shall not be liable for loss, damage, destruction, or theft to the Government property furnished or acquired under a contract, except when any one of the following applies:

(1) The risk is covered by insurance or the Cooperator is otherwise reimbursed (to the extent of such insurance or reimbursement), and

(2) The loss, damage, destruction, or theft is the result of willful misconduct or lack of good faith on the part of the Cooperator’s managerial personnel. The Cooperator’s managerial personnel, in this clause, means the Cooperator’s directors, officers, managers, superintendents, or equivalent representatives who have supervision or direction of all or substantially all of the Cooperator’s business; all or substantially all of the Cooperator’s operation at any one plant or separate location; or a separate and complete major industrial operation.

(d) The Cooperator shall take all reasonable actions necessary to protect the Government property from further loss, damage, destruction, or theft. The Cooperator shall separate the damaged and undamaged Government property, place all the affected Government property in the best possible order, and take such other action as the Property Administrator directs.

(e) The Cooperator shall do nothing to prejudice the Government's rights to recover against third parties for any loss, damage, destruction, or theft of Government property.

(f) Upon the request of the Grants Management Officer, the Cooperator shall, at the Government's expense, furnish to the Government all reasonable assistance and cooperation, including the prosecution of suit and the execution of agreements of assignment in favor of the Government in obtaining recovery.

(g) If FAS has no further need for the property, it shall be declared excess and reported to the GSA, unless FAS has statutory authority to dispose of the property by alternative methods.

Applies to all JVs when FAS loans property to Cooperator.

Indirect Costs and Tuition Remission

(1) State Cooperative Institutions: In accordance with 7 U.S.C. 3318(b), indirect costs and tuition remission are not reimbursable to a State Cooperative Institution, as defined in 7 U.S.C. 3103 (17), under this agreement. Indirect costs, however, may be used by a State Cooperative Institution to satisfy matching or cost-sharing requirements. Funds for international agricultural programs conducted by a State cooperative institution and administered by the Secretary (7 U.S.C. 3319) are capped at 10%.

Applies to JVs with State Cooperative Institutions, as defined by 7 USC 3103 (17).

Modifications

Modifications to this Agreement shall be made by mutual consent of the parties, by the issuance of a written modification signed and dated by properly authorized, signatory officials, prior to any changes being performed. Requests for modification should be made at least 30 days prior to implementation of the requested change. FAS is not obligated to fund any changes not properly approved in advance.

Applies to all JVs.

Non-Liability

FAS does not assume liability for any third-party claims for damages arising out of this Agreement. Sub Cooperators, subawardees, and contractors have no privity of contract with FAS under the terms of this Agreement.

Applies to all JVs.

Notices

Any notice given by FAS or the Cooperator will be sufficient only if in writing and delivered in person, or transmitted electronically by e-mail or fax (not by postal mail), as follows: To FAS: FAS Program Manager and FAS Grants Manager Officer, at the address specified in this Agreement. To the Cooperator: the Cooperator's address specified in this Agreement. Notices will be effective when delivered in accordance with this provision, or on the effective date of the notice, whichever is later.

Applies to all JVs. May incorporate actually addresses here along with specific names.

Overpayment

(a) Any funds paid to the Cooperator in excess of the amount to which the Cooperator is finally determined to be entitled under the terms and conditions of the Agreement constitute a debt to the Federal Government. If not paid within a reasonable period after the demand for payment, FAS may in accordance with 7 CFR part 3, reduce the debt by—

(1) Making an administrative offset against other requests for reimbursements, or

(2) Taking other action permitted by statute. (31 U.S.C. 3716 and 7 CFR, part 3, Subpart B).

(b) The following must also be considered as a debt or debts owed by the Cooperator to FAS:

(1) Any royalties or other special classes of program income which, under the provisions of the Agreement, are required to be returned.

(c) Except as otherwise provided by law, FAS shall charge interest on an overdue debt in accordance with 31 CFR part 900, ‘‘Federal Claims Collection Standards.’’

(d) The following must also be considered as a debt or debts owed by the Cooperator to FAS:

(1) Any royalties or other special classes of program income which, under the provisions of the Agreement, are required to be returned.

(e) Except as otherwise provided by law, FAS shall charge interest on an overdue debt in accordance with 31 CFR part 900, ‘‘Federal Claims Collection Standards.’’

Applies to all JVs.

Participation in Similar Activities

This Agreement in no way restricts FAS or the Cooperator from participating in similar activities with other public or private agencies, organizations, and individuals.

Applies to all JVs.

Press Releases

Press releases or other forms of public notification will be submitted to FAS for review prior to release to the public. FAS will be given the opportunity to review, in advance, all written press releases and any other written information to be released to the public by the Cooperator, and require changes as deemed necessary, if the material mentions by name FAS or the USDA, or any USDA employee or research unit or location.

Applies to all JVs.

Prior Approvals

(a) The budget is the financial expression of the project or program as approved during the award process. FAS requires that all Federal costs be itemized on the approved budget. The budget shall be related to performance for program evaluation purposes.

(b) Cooperators are required to report deviations from budget and program plans, and request prior approvals for budget and program plan revisions.

(c) Cooperators shall request prior approvals from FAS for one or more of the following program or budget related reasons.

(1) Incur pre-award costs up to 90 days prior to award date. All pre-award costs are incurred at the Cooperator’s risk (i.e., FAS is under no obligation to reimburse such costs if for any reason the Cooperator does not receive an award or if the award is less than anticipated and inadequate to cover such costs).

(2) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).

(3) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.

(4) Extensions of time, within statutory limitations, to complete project objectives. This extension may not be requested merely for the purpose of using unobligated balances. The Cooperator shall request the extension in writing with supporting reasons.

(5) The transfer of amounts budgeted for indirect costs to absorb increases in direct costs, or vice versa.

(6) The inclusion of costs that require prior approval in accordance the applicable set of federal Cost Principles.

(7) Unless described in this Agreement and associated budget, the subaward, transfer or contracting out of any work.

(8) If FAS requires the Cooperator to hire or appoint technical staff under this Agreement, the Cooperator shall send formal notification within 30 days of any new hires or appointments. When FAS funding derives from a PASA, and the activity requires long-term hires or appointments, FAS must participate in the Cooperator’s selection panel.

(9) Changes in Key personnel.

(10) Change in a budget line item or cost category of 10% or more.

(11) Request for additional funding.

(12) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.

(13) Advertising.

Applies to all JVs.

Program Management

(a) The Cooperator shall monitor the performance of the Agreement activities to ensure that performance goals are being achieved.

(b) Cooperators are responsible for managing the day-to-day operations of this Agreement using their established controls and policies, as long as they are consistent with FAS requirements.

(c) Monitoring of a project or activity continues for as long as FAS retains a financial interest in the project or activity. FAS reserves the right to monitor a project after it has been administratively closed out and no longer providing active support in order to resolve issues of accountability and other administrative requirements.

(d) FAS reserves the right to perform site visits at Cooperator locations.

(e) Cooperators shall immediately notify FAS of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the Agreement. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.

Applies to all JVs .

Project Supervision and Responsibilities

(a) The Cooperator is solely responsible and accountable for the performance and conduct of all Cooperator employees assigned to the project, including, but not limited to, personnel, performance and time management issues. FAS does not have authority to supervise Cooperator employees or engage in the employer employee relationship.

(b) The Cooperator shall immediately notify FAS of developments that have a significant impact on the activities supported under this Agreement. Also, notification shall be given in case of problems, delays or adverse conditions that materially impair the ability to meet the objectives of the agreement. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.

Applies to all JVs.

Responsibility for Making and Monitoring Subawards

(a) The Cooperator shall make subawards only to responsible sub cooperators who possess the potential ability to perform successfully under the terms and conditions of a proposed agreement. Consideration shall be given to such matters as integrity, record of past performance, financial and technical resources, or accessibility to other necessary resources. Awards shall not be made to firms or individuals whose name appears on the "Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs" available online at www.EPLS.gov.

(b) All subawards shall at a minimum contain provisions to define a sound and complete agreement in addition to those that are specifically required by any other provisions in this Agreement and clauses required by Federal law, executive orders and the implementing Federal regulations. Whenever a provision within this Agreement is required to be inserted in a subaward, the Cooperator shall insert a statement in the subaward that in all instances where FAS is mentioned, the Cooperator's name will be substituted.

The Cooperator shall monitor its subawards and contracts in compliance with the requirements for sub cooperator monitoring as contained in 31 USC 7502(f)(2)(B) (Single Audit Act Amendments of 1996 (Pub. L. No. 104-156)), OMB Circular A-133 as codified at 7 CFR Part 3052,and OMB Circular A-110 as codified at 7 CFR Part 3019.

Applies to all JVs.

Retention and Access Requirements for Records

(a) This provision sets forth requirements for record retention and access to records. As used in this provision, “records” includes books, documents, accounting procedures and practice, and other data, regardless of the type or format.

(b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of 3 years from the date of submission of the final expenditure report or, for awards that are renewed quarterly or annually, from the date of the submission of the quarterly or annual financial report, as authorized by FAS. The only exceptions are the following:

(i) If any litigation, claim, or audit is started before the expiration of the 3- year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken;

(ii) Records for real property and equipment acquired with Federal funds shall be retained for 3 years after final disposition;

(iii) When records are transferred to or maintained by FAS, the 3- year retention requirement is not applicable to the Cooperator;

(iv) Indirect cost rate proposals, cost allocations plans, etc., as specified in paragraph (f) of this provision.

(c) Copies of original records may be substituted for the original records if authorized by FAS.

(d) FAS will request transfer of certain records to its custody from Cooperators when it determines that the records possess long-term retention value. However, in order to avoid duplicate record keeping, FAS may make arrangements for Cooperators to retain any records that are continuously needed for joint use.

(e) FAS, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of Cooperators that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a Cooperator’s personnel for the purpose of interview and discussion related to such documents. The Cooperator shall provide access to any program site(s) to FAS or any of its authorized representatives. The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained.

(f) No Cooperator shall disclose its records that are pertinent to an award until the Cooperator provides notice of the intended disclosure with copies of the relevant records to FAS.

(g) Indirect cost rate proposals, cost allocations plans, etc. Paragraphs (g)(1) and (g)(2) of this provision apply to the following types of documents, and their supporting records: Indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage charge back rates or composite fringe benefit rates).

(i) If submitted for negotiation. If the Cooperator submits to FAS or the sub cooperators submits to the Cooperator the proposal, plan, or other computation to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts on the date of such submission.

(ii) If not submitted for negotiation. If the Cooperator is not required to submit to FAS or the sub cooperators is not required to submit to the Cooperator the proposal, plan, or other computation for negotiation purposes, then the 3-year retention period for the proposal, plan, or other computation and its supporting records starts at the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.

Applies to all JVs.

Revision of Budget

(a) The approved agreement budget in Attachment C is the financial expression of the Cooperator's program as approved by FAS, pending approval of any subsequent budget.

(b) The Cooperator is required to report deviations from budget and program plans, and request prior approvals from the FAS Program Manager for any of the following reasons:

(1) To change the scope or the objectives of the program and/or revise the funding allocated among program objectives.

(2) To change a key person where specified in the awarding document, or allow a 25% reduction in time devoted to the project.

(3) Additional Federal funding is needed.

(4) Where indirect costs have been authorized, the Cooperator plans to transfer funds budgeted for indirect costs to absorb increases in direct costs or vice versa.

(5) The inclusion of costs that require prior approval in accordance with the applicable set of federal Cost Principles.

(6) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.

(c) FAS is under no obligation to reimburse the Cooperator for costs incurred in excess of the total amount obligated under the Agreement. If the total obligated amount under the Agreement has been increased, FAS will notify the Cooperator in writing of the increase and specify the new total obligated amount.

Applies to all JVs.

Rules of The Workplace

Cooperator employees, while engaged in work at FAS’ facilities, will abide by FAS’ standard operating procedures regarding the maintenance of laboratory notebooks, dissemination of information, equipment operation standards, hours of work, conduct, HSPD-12 requirements (access to buildings and computer systems), and other incidental matters stated in the rules and regulations of FAS.

Applies to all JVs when research activities are anticipated.

Sub Cooperator Notification

The Cooperator shall require sub cooperators under this Agreement to comply with the terms and conditions herein, except with respect to the Cooperator’s cost principles and audit requirements. Sub Cooperators shall comply with the following, when applicable:

SUB COOPERATOR TYPE APPLICABLE COST PRINCIPLES, and AUDIT REQUIREMENTS

Cost Principles and Audit Requirements

Non-profits, 2 CFR Part 230, A-133

State governments (when Cooperator is a non-State), 2 CFR Part 225, A-133

Local and Tribal governments (when Cooperator is a non-State), 2 CFR Part 225, A-133

State agencies, 2 CFR Part 225, A-133

Universities, 2 CFR Part 220, A-133

Profit-makers, Federal Acquisition Regulations (FAR) 31.2, Agency

Applies to all JVs .

Tangible Personal Property

The Cooperator is required to provide annual, award closeout, and disposition request reports related to their inventories of FAS furnished tangible personal property or those tangible personal property items acquired with funds under this award using the SF-428 cover sheet and either: Annual Report, SF428-A; Final (Award Closeout) Report, SF-428-B; and a Disposition Request/Report, SF-428-C. A Supplemental Sheet, SF-428S, may be used to provide detailed individual item information.

Tangible personal property means property of any kind, except real property, that has physical existence. It includes equipment and supplies. It does not include copyrights, patents or securities.

Applies to all JVs.

Termination

This Agreement may be terminated, in whole or part, as follows:

(a) Awards may be suspended or terminated in whole or in part if paragraphs (1), (2), (3), or (4) of this provision apply.

(1) When FAS and the Cooperator agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated.

(2) By 30 days written notification by the Cooperator to FAS setting forth the reasons for termination, effective date, and in the case of partial termination, the portion to be terminated.

(3) By FAS, if the Cooperator materially fails to comply with the terms and conditions of the Agreement.

(4) If, in the case of a partial termination, FAS determines that the remaining portion of the Agreement will not accomplish the purposes for which the Agreement was made, FAS may terminate the Agreement in its entirety.

(b) Upon termination of the Agreement, the Cooperator shall not incur any new obligations for the terminated portion of the Agreement after the effective date, and shall cancel as many outstanding obligations as possible. FAS shall allow full credit to the Cooperator for the United States Federal share of the non-cancelable obligations properly incurred by the Cooperator up to the effective date of the termination. The Cooperator shall refund excess funds to FAS within 60 days after the effective date of termination.

Applies to all JVs.

The Cooperator Shall Pt. 1

(a) The Principal Investigator shall:

 

1) Report, and obtain approval for, any change in the project budget;

2) Report, and obtain approval for, any change in the scope or objectives of the project;

3) Assure that technical project performance and financial status reports are submitted on a timely basis in accordance with the terms and conditions of this Agreement;

4) Advise the PM of any issues that may affect the timely completion of the project;

5) Assure that the cooperator meets its commitments under the terms and conditions of this Agreement;

 

6) Assure that appropriate acknowledgements of support are included in all publications;

7) Assure that inventions are appropriately reported; and

8) Provide FAS with a project plan for use for external peer review.

Applies to all JVs. With some projects, not all Principal Investigator requirements apply; delete those that don’t apply. Under (b), fully describe all work, tasks, studies, reports, inspections, consultations, and cooperation the partner will perform.

Provision Title

Administrative GT&C - Conditional

JV Instructions

Program Income – Joint Venture Agreements

(a) FAS shall apply the standards set forth in this provision in requiring Cooperators to account for program income related to projects financed in whole or in part with Federal funds.

(b) Except as provided in (f) of this provision, program income earned during the project period should be retained by the Cooperator and shall be added to funds committed to the project by FAS and Cooperator and used to further eligible project or program objectives.

(c) Cooperators shall have no obligation to the Federal Government regarding program income earned after the end of the project period.

(d) Costs incident to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the award.

(e) Proceeds from the sale of property shall be handled in accordance with the requirements of the Property Standards.

(f) Cooperators shall have no obligation to the Federal Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award. However, Patent and Trademark Amendments (35 U.S.C. Chapter 25) apply to inventions made under an experimental, developmental, or research award.

Applies to all JVs when Program Income is anticipated.

Publications and Acknowledgment of Support

(a) Publications. FAS and the Federal Government shall enjoy a royalty-free, nonexclusive, and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any materials developed in conjunction with a joint venture agreement or contract, under such an agreement.

(1) Cooperators shall acknowledge FAS support, whether cash or in-kind, in any publications written or published with Federal support and, if feasible, on any publication reporting the results of, or  describing, a Federally supported activity as follows: ‘‘This material is based upon work supported by the U.S. Department of Agriculture, Foreign Agricultural Service under Agreement No. (Cooperator should enter the applicable agreement number here).’’

(2) All such material must also contain the following disclaimer unless the publication is formally cleared by the awarding agency:  ‘‘Any opinions, findings, conclusion, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the U.S. Department of Agriculture.’’

(3) Any public or technical information related to work carried out under a joint venture agreement shall be submitted by the developing party to the other for advice and comment. Information released to the public shall describe the contributions of both parties to the work effort. In the event of a dispute, a separate publication may be made with effective statements of acknowledgment and disclaimer.

(4) The cooperator, or its designees, is not authorized to develop and publish documents that could be sold and distributed for profit.

(b) Media. Cooperators shall acknowledge FAS support, as indicated in § 1551.35(a)(1) above, in any form of media (print, DVD, audio production, web, etc.) produced with Federal support that has a direct production cost to the cooperator of over $5,000. Unless the terms of the Federal award provide otherwise, this requirement does not apply to media produced as research instruments or for documenting experimentation or findings and intended for presentation or distribution to a USDA/FAS audience.

(c) Audiovisual. FAS must determine ownership of the audiovisual production based on the parties’ contributions to the production.  Where FAS and/or other Federal agencies contribute at least 50 percent of the total costs, including in-kind contributions, to develop an audiovisual production, it is owned by the FAS. 

(1) If FAS determines that it has ownership, then FAS must obtain the audiovisual using the Office of Management and Budget Government-wide audiovisual contracting procedures.

(2) If FAS determines that the cooperator has ownership, then the cooperator is not subject to USDA approvals and the government-wide audiovisual contracting procedures. 

(3) FAS must obtain a copy of the cooperator's audiovisual production and retain the right to duplicate the video for Government purposes.  FAS must use Government procurement procedures to duplicate the video for FAS purposes.

(d) Printing. Title 7, United States Code, section 3318(b) does not preclude the applicability of Government Printing Office regulations when Federal dollars are used for printing, regardless of whether the printing is accomplished by the cooperator or by contract.

(e) Miscellaneous.

(1) Publication and Media Releases Requirement. The cooperator must provide the GMO and Project Manager with one copy of all published works developed under the agreement and with lists of other written work produced under the joint venture agreement.

(2) Nondiscrimination Statement – Printed, Electronic, or Audiovisual Material Requirement. The cooperator shall include the following statement, in full, in any printed, audiovisual material, or electronic media for public distribution developed or printed with any Federal funding: “In accordance with Federal law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, or disability.  (Not all prohibited bases apply to all programs.  To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 1400 Independence Avenue, SW, Washington, DC  20250-9410 or call (202) 720-5964 (voice and TDD).  USDA is an equal opportunity provider and employer.”) If the material is too small to permit the full statement to be included, the material must, at minimum, include the following statement, in print size no smaller than the text: "This institution is an equal opportunity provider."

 

Applies to all JVs when publication of any printed, audiovisual, or electronic material is contemplated.

Procurement of Goods and Services Outside the United States

1. When the project under this Agreement takes place outside the United States, then the following apply:

(a) Authorized Source Requirement: The authorized sources for the procurement of goods and services are the United States, the District of Columbia, and areas of U.S.-associated sovereignty, including commonwealths, territories and possessions.

(b) Eligibility Rules for Goods and Services Requirement:

i. Ineligible and Restricted Goods and Services:

(i) Ineligible Goods and Services. Under no circumstances shall the Cooperator procure any of the following under this Agreement:

(A) Military equipment,

(B) Surveillance equipment,

(C) Commodities and services for support of police or other law enforcement activities,

(D) Abortion equipment and services,

(E) Luxury goods and gambling equipment, or

(F) Weather modification equipment.

(ii) Ineligible Suppliers. Funds provided under this Agreement shall not be used to procure any goods or services furnished by any firms or individuals whose name appears on the "Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs." See, www.epls.gov.

(iii) Restricted Goods. The Cooperator shall not procure any of the following goods and services without the prior approval of the Grants Management Officer:

(A) Agricultural commodities,

(B) Motor vehicles,

(C) Pharmaceuticals,

(D) Pesticides,

(E) Used equipment,

(F) U.S. Government-owned excess property, or

(G) Fertilizer,

(iv) Restricted Goods Exceptions. Prior approval will be deemed to have been met when:

(A) The item is of U.S. source/origin;

(B) The item has been identified and incorporated in the program description or schedule of the Agreement (initial or revisions), or modifications to the Agreement; and

(C) The costs related to the item are incorporated in the approved budget of the Agreement. Where the item has not been incorporated into the Agreement as described above, a separate written authorization from the Grants Management Officer must be provided before the item is procured.

ii. Source and Nationality. When the total procurement element exceeds $250,000, the following applies: Except as may be specifically approved or directed in advance by the Grants Management Officer, all goods and services financed with U.S. dollars, which will be reimbursed under the Agreement must meet the source and origin specified in the Agreement.

iii. Printed or Audio-Visual Teaching Materials: If the effective use of printed or audio-visual teaching materials depends upon their being in the local language and if such materials are intended for technical assistance projects or activities financed by FAS in whole or in part and if other funds including U.S.-owned or U.S.-controlled local currencies are not readily available to finance the procurement of such materials, local language versions may be procured from the following sources, in order of preference:

(i) The United States,

(ii) The Cooperating Country.

iv. If FAS determines that the Cooperator has procured any of these goods or services under this Agreement contrary to these requirements, and has received payment for such purposes, the Grants Management Officer may require the Cooperator to refund the entire amount of the purchase. This requirement must be included in all subagreements which include procurement of goods or services which total over $5,000.

(c) Local Procurement Requirement:

i. Financing local procurement involves the use of funds provided under this Agreement to finance the procurement of goods and services supplied by local businesses, dealers or producers, with payment normally being in the local country currency.

ii. The Cooperator shall not finance local procurement for any goods and services unless such procurement is covered by the source and origin requirement or when one of the following exceptions applies:

(i) Locally available commodities of U.S. origin, which are otherwise eligible for financing, if the value of the transaction is estimated not to exceed $100,000 exclusive of transportation costs.

(ii) Commodities of any country origin, except foreign policy restricted countries, if the value of the transaction does not exceed the local currency equivalent of $5,000.

(iii) Professional Services Contracts estimated not to exceed $250,000.

(iv) Construction Services Contracts estimated not to exceed $5,000,000.

(v) Commodities and services available only in the local economy (no specific per transaction value applies to this category). This category includes the following items:

(A) Utilities including fuel for heating and cooking waste disposal and trash collection;

(B) Communications - telephone, telex, fax, postal and courier services;

(C) Rental costs for housing and office space;

(D) Petroleum, oils and lubricants for operating vehicles and equipment;

(E) Newspapers, periodicals and books published locally;

(F) Other commodities and services and related expenses that, by their nature or as a practical matter, can only be acquired, performed, or incurred locally, e.g., vehicle maintenance, hotel accommodations, etc. Any waiver must be approved and processed by the Grants Management Officer before the Cooperator finances such local procurement. All subagreements where local procurement of goods or services is a supported element must include this requirement.

Applies to JVs that take place outside the U.S. and procurement of goods and/or services are anticipated.