Appendix A DOD NGR 5-1.pdf

National Guard Regulation 5-1

Management

National Guard Grants and Cooperative Agreements

National Guard Bureau Arlington, VA 22202-3231 28 May 2010

UNCLASSIFIED

SUMMARY of CHANGE

NGR 5-1

National Guard Grants and Cooperative Agreements

This revision supersedes all previous editions of NGR 5-1.

* This publication supersedes all previous editions of NGR 5-1. i

National Guard Bureau *NGR 5-1

Arlington, VA 22202-3231

Management

National Guard Grants and Cooperative Agreements

By Order of the Secretaries of the Army and the Air Force:

CRAIG R. MCKINLEY

General, USAF

Chief, National Guard Bureau

Official:

JOHN D. SELMER

Lt Col, USAF

Chief, Strategy and Policy Division

History: This publication supersedes all previous editions of NGR 5-1.

Summary: This regulation provides policy and procedural guidance to be followed in the administration and execution of cooperative agreements (CAs). It implements (DODGARS) 3210.6-R.

Applicability: This regulation applies to the Army National Guard (ARNG), the Air National Guard (ANG) and to all recipients of NGB Cooperative Agreements.

Proponent and exception authority: The proponent of this regulation is the National Guard Bureau, Office of

Grants and Cooperative Agreements, NGB-PARC-A. The proponent has the authority to approve exceptions to this regulation that are consistent with controlling law and regulation. Any changes to this regulation must be authorized and published by NGB-PARC-A.

Management Control Process: This regulation is subject to the requirements of NGB Management and Internal

Control Program directives. It contains internal control provisions but does not contain checklist for conducting internal control reviews.

Supplementation: Supplementation of this regulation will only be accomplished by the National Guard Bureau, Office of Grants and Cooperative Agreements, NGB-PARC-A.

Suggested Improvements: Users of this regulation are invited to send comments and suggested improvements on

DA 2028 Recommended Changes to Publications and Blank Forms to the National Guard Bureau, ATTN: NGB-

PARC-A, Jefferson Plaza #1, Suite 8300, 1411 Jefferson Davis Highway, Arlington VA 22202-3231.

Distribution: F and X

Contents (Listed by paragraph number)

Chapter 1

Introduction

Purpose • 1-1

Proponent • 1-2

Publications, Abbreviations and Glossary • 1-3

Responsibilities • 1-4

Chapter 2

Grants Officer’s Representative

General • 2-1 ii

NGR 5-1 28 May 2010

Appointment Policy and Administrative Actions • 2-2

Duties and Responsibilities • 2-3

Limitations • 2-4

Chapter 3

Administration

General • 3-1

Completion and Term Cooperative Agreements • 3-2

Milestone Dates • 3-3

Completion and Execution of the O& M Master Cooperative Agreement • 3-4

Completion and Execution of the O&M Master Cooperative Agreement Appendices • 3-5

Funding O&M MCA Appendices • 3-6

Completion and Execution of a Military Construction Cooperative Agreement (MCCA) • 3-7

Funding an Military Construction Cooperative Agreement (MCCA) • 3-8

Creation of a New Agreement/Appendix under the O&M Master Cooperative Agreement • 3-9

Special Military Project Cooperative Agreements • 3-10

Modifying Cooperative Agreements • 3-11

Grantee Contracts • 3-12

Grantee Contract Flow Down • 3-13

Grantee Department Administration • 3-14

Cooperative Agreement Claims, Disputes and Appeals Procedures • 3-15

Records • 3-16

Chapter 4

Management Controls and Audits

General • 4-1

Management Controls • 4-2

Audits • 4-3

Chapter 5

Cost Principles for NGB Cooperative Agreements

General • 5-1

Costs of Cooperative Agreement Performance • 5-2

Allowable Costs • 5-3

Cost Sharing • 5-4

Centralized Personnel Plan (CPP) • 5-5

Grantee Responsibilities • 5-6

Chapter 6

Program Income

General • 6-1

Accounting for Program Income • 6-2

Waiver of User Fees • 6-3

Chapter 7

Reimbursement Costs

General • 7-1

Accounting for Direct Reimbursement Costs • 7-2

Waiver of Direct Reimbursement Costs 7-3

Chapter 8

Equipment and Supplies

General • 8-1

Equipment Use, Accountability and Disposition • 8-2

Supplies • 8-3

Use of Federally Owned Equipment by State Employees • 8-4

28 May 2010 NGR 5-1 iii

Chapter 9

In- Kind Assistance

General • 9-1

Transacting IKA • 9-2

Accounting for IKA • 9-3

Chapter 10

Defense Assistance Awards Data System Reporting

General • 10-1

Responsibilities • 10-2

Catalog of Federal Domestic Assistance Program Numbering System • 10-3

In-Kind Assistance, Program Income and State Share Reporting • 10-4

DAADS Report • 10-5

Chapter 11

Finance

General • 11-1 Obligation • 11-2

Standards of Financial Administration • 11-3

Payment Processing (ARNG and ANG) • 11-4

Advance Payment Method • 11-5

Accounting for Program Income • 11-6

Accounting for In-Kind Assistance • 11-7

Accounting for Direct Reimbursements through a MIPR • 11-8

Accounting for Rebates, Credits, Discounts and Refunds 11-9

Final Accounting and Settlement • 11-10

Records • 11-11

Appendices

A. References

Figure List

Figure 11-1: Sample Request for Advance Payment Approval

Figure 11-2: Sample Estimated Cash Flow Requirements Chart

Glossary iv

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Chapter 1

Introduction

1-1. Purpose

a. This regulation implements various Federal Public Laws (PL); Office of Management and Budget (OMB)

Circulars; Code of Federal Regulations (CFR), and Department of Defense (DoD), Department of the Army (DA), Department of the Air Force (AF), National Guard (NG), Army National Guard (ARNG), and Air National Guard

(ANG) regulations and directives governing cooperative agreements (CAs). It establishes policy and procedures for administering CAs between the United States Property and Fiscal Officer (grantor) and the State/Territory (grantee) and provides information on the use and limitations of available National Guard Bureau (NGB) resources.

b. NGB cooperative agreements are normally entered into by the National Guard Bureau with the States

(grantees). CAs are funded thru Department of Defense appropriations provided to the NGB for Army and Air

National Guard construction, minor construction, maintenance, repair or operation of facilities and mission operational support, and for other programs authorized by Congress or the DoD to be performed by grantees in support of the National Guard. Some agreements, (Military Construction cooperative agreements), Army

Compatible Use Buffer {ACUB} and special military projects) are executed with State/local governments or non-profit agencies.

c. NGB CAs are legal instruments reflecting assistance relationships between the United States government

(NGB) and grantee recipients. As a DoD component, NGB can award grants and enter into cooperative agreements based on the statutory authority of 31 United States Code (U.S.C.) chapters 61 and 65 and Section 21.20, DoD

Instruction 3210.6R- Defense Grant and Cooperative Agreement Regulatory System (DoDGARS).

d. A cooperative agreement between NGB and a grantee is required when NGB transfers something of value, through funding or otherwise, to the grantee to support their ARNG or ANG and substantial involvement is expected between NGB and the grantee in carrying out the activity identified in the agreement. The DoD Grant and

Agreement Regulations (DoDGARS) and this regulation apply in the execution of NGB Cooperative Agreements.

e. The use of a procurement contract (Federal contracting), not a cooperative agreement, is required when the principal purpose of the transaction is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States. The Federal Acquisition Regulation (FAR), the Defense Federal Acquisition

Regulation Supplement (DFARS), the Army Federal Acquisition Regulation Supplement (AFARS), and the

National Guard Federal Acquisition Regulation Supplement (NGFARS) apply to procurement contracts.

f. This regulation is promulgated within the authority granted by DoDGARS 3210.6-R. Nothing in these supplemental regulations should be construed as conflicting with the superior authority set out in DoDGARS

3210.6-R.

1-2. References

Required and related publications and prescribed and referenced forms are listed in appendix A.

1-3. Explanation of abbreviations and terms

Abbreviations and terms used in this regulation are explained in the glossary.

1-4. Responsibilities

a. Chief, National Guard Bureau (CNGB) is responsible to the Secretary of Defense and to Congress for the proper management and use of Federal funds. When appropriated Federal funds are distributed to the

State/Territory through CAs, CNGB will normally assign this responsibility to the USPFO for the state.

b. National Guard Bureau Staff Judge Advocate (NGB-JA) is responsible for:

(1) Providing legal guidance, assistance and advice concerning CAs.

(2) Conducting legal reviews of CAs and their appendices, when requested.

c. NGB Office of Grants and Cooperative Agreements (NGB-PARC-A) is responsible for:

(1) Coordinating the staffing and updates to CAs and appendices.

(2) Monitoring the Defense Assistance Award Data System (DAADS) and providing NGB policy assistance for this report.

(3) Conducting policy reviews of CAs and appendices.

(4) Coordinating all aspects of CAs at the National Guard Bureau (NGB).

(5) Providing policy management and support to ensure that all NGB assistance programs comply with Federal public laws, executive orders, regulations and directives.

(6) Providing support, assistance, training and guidance to NGB and USPFO staffs.

(7) Appointment of USPFOs as grant officers.

(8) Serving as the proponent office for NGB sponsored CA training.

d. The Adjutant General (grantee) is responsible for:

(1) Compliance with all of the terms, conditions, and standards of the CA.

(2) Supervising and managing all activities or projects within the scope of the CAs in accordance with sound business practices.

(3) Providing the personnel, supplies, services and matching funds required by the CA.

(4) Receiving funds, property and accounting for all expenditures and property acquired through an MCA/MCCA or Special Military Project, and making returns and reports concerning those expenditures and that property, as required.

e. The United States Property and Fiscal Officer (grantor), as the grants officer, is responsible for:

(1) Accounting for the proper obligation and expenditure of all Federal funds provided to the State/Territory through the CAs. Making returns and reports concerning those funds and that property, as required by the Secretary concerned. (32 U.S.C. Section 708).

(2) Ensuring Federal funds are expended on authorized projects, activities or programs as set forth in the agreement or appendices.

(3) Ensuring that adequate management and internal controls are in place to protect Federal interests.

(4) Coordinating and conducting, in conjunction with the State Military Department, periodic State/Territory level

CA training related to the administration and execution of the CA program.

(5) Reviewing and approving/disapproving State requests for advance payments.

(6) Granting extension of the CA beyond the required fiscal year close out date.

(7) Appointing a grants officer Representative (GOR).

(8) Appointing, on a DD 577, an ARNG CA Program Manager for each ARNG Appendix as the designated

Federal employee to perform agreement duties outlined on the DD 577. (Sample ARNG appointment at the NGB-

PARC-A Webpage).

(9) Appointing, on a DD 577, an ANG CA Program Manager for each ANG Appendix as the designated Federal employee to perform day to day administrative duties outlined on the DD 577. This ANG appointment will exclude the funds certification authorization which rests solely with the Assistant USPFO Air (Fiscal). (Sample ANG appointment at the (NGB-PARC-A Webpage).

(10) Making the final decision on all matters pertaining to Grants and cooperative agreements for their respective

State.

f. National Guard Bureau, Office of Primary Responsibility, Program Managers (NGB-OPR-PM) responsibilities:

(1) It is NGB policy that all agreements and appendices, to include Special Military Project Agreements, will have an appointed NGB-OPR-PM. NGB-OPR-PMs will be appointed, on a DD Form 577 by their respective Directors

(06 level/or civilian equivalent minimum), to oversee and coordinate NGB level agreement/appendix activities.

(2) Provide, to NGB-PARC-A, copies of their respective agreements and modification for review and approval.

(3) Provide administrative and financial guidance to CA PMs as specified in the agreement.

(4) Coordinating the allocation of Federal funding to states to support the approved agreements.

(5) Compliance with NGB level management and internal controls program directives.

(6) Completing specified NGB-PARC-A sponsored training related to cooperative agreement management and oversight.

g. Special Military Project Agreements funded through specific DoD Appropriation or Special Authorization requires an NGB-OPR-PM.

h. The Cooperative Agreement Program Manager (CA PM) at State/Territory level is responsible for:

(1) Compliance with duties appointed by the USPFO (grantor) per DD Form 577.

(2) Completing an NGB sponsored Cooperative Agreement Course within the first year of appointment as a CA

PM.

(3) Completing related CA training (i.e. Fiscal Law or Finance training) as directed by the TAG/USPFO.

Chapter 2

Grants Officer Representative (GOR)

2-1. General

The GOR is the individual appointed by the grants officer to perform day to day administrative actions and technical monitoring related to cooperative agreements for the State or Territory. The authority for appointment of a Grants

Officer’s Representative is based on DoDGARS 3210.6R, which authorizes Grant Officers and Agreement Officers wide latitude to exercise judgment in performing their responsibilities.

2-2. Appointment Policy and Administrative Actions

a. Individuals appointed as GORs must have the skills and training to coordinate CA policy and staff actions with

CA PMs, NGB-OPR-PMs and grantee CA staff personnel. GOR appointees must be:

(1) A Federal employee. A grantee employee cannot be designated as a GOR.

(2) Appointed in writing by the grants officer.

b. The appointment shall clearly define the scope and limitations of the GOR’s authority, to include:

(1) Specifying the extent and limitations of the GOR's authority to act on behalf of the grants officer.

(2) Indicating if he/she has the authority to work all agreements or specific agreements only.

(3) Stating that the appointment is not re-delegable.

(4) Specifying the appointment period covered (specific begin and end date or indefinite).

c. The GOR shall acknowledge the appointment in writing. A copy of the appointment will be distributed to all parties within the State/Territory concerned with CAs.

d. The appointment may be terminated at any time by the grants officer or his/her successor.

e. The termination of a GOR’s appointment shall be in writing and shall State the effective date. All parties within the State/Territory concerned with CAs should be notified of the termination.

f. When a GOR’s appointment authority is revoked before completion of the agreement, the GOR shall turn over the records to the successor GOR or as instructed by the grants officer.

g. Training for GOR’s will, as a minimum, include completion of the cooperative agreements training course, the

GOR training course and a fiscal law course. The GOR training course and fiscal law course shall be completed within the first year of appointment to the position. Fiscal law may be completed via a distant learning on line course.

2-3. Duties and Responsibilities

a. The GOR shall establish and maintain a file for each Master Cooperative Agreement (MCA) and each of its appendices, each Military Construction Cooperative Agreement (MCCA) and each Special Military Project

Agreement approved for the state/territory.

(1) Establishing an MCA, MCCA and associated appendices and Special Military Project Agreements requires the

GOR to:

(a) Complete the agreement using the format provided on the NGB-PARC-A website.

(b) Coordinate the staffing of or obtain required legal reviews.

(c) Ensure agreements have all required signatures.

(d) Distribute the agreement to all concerned parties.

(2) Each MCA file must, as a minimum, include:

(a) A copy of the grants officer's letter of designation.

(b) A copy of the GOR’s appointment memorandum and any other documentation describing the GOR's duties and responsibilities.

(c) The original, executed MCA and all documentation supporting the MCA.

(d) Copies of modifications to the MCA, if applicable and all documentation supporting the modification.

(e) Documentation of all actions in support of the agreement.

(3) Each MCA Appendix file must, as a minimum, include:

(a) The original, executed agreement and all supporting documentation.

(b) Funding documents.

(c) Copies of modifications thereto.

(d) Documentation of all actions associated with the agreement.

(4) Each MCCA file must, as a minimum, include:

(a) The original, executed agreement with its Appendices and all supporting documentation.

(b) Funding documents.

(c) Copies of modifications thereto.

(d) Documentation of all actions in support of the agreement.

(e) Upon completion the final Project Inspection Report (NGB Form 593-R.)

b. The GOR should establish and maintain a current reference library containing the following publications as a minimum:

(1) NGR 5-1.

(2) Title 32 Code of Federal Regulations, Subtitle A, Chapter I, Subchapter C, Part 33 (DoD 3210.6R), hereinafter referred to as 32 CFR 33.

(3) Title 2 Code of Federal Regulations, Subtitle A, Chapter II, Part 225, hereinafter referred to as 2 CFR Part 225.

(4) DoDI 4000.19

c. GORs are responsible for the electronic reporting of assistance obligations/de-obligations through DAADS, DoD

Assistance Award Action Report System IAW Chapter 10, NGR 5-1.

d. The GOR, upon receipt of a Grants and agreements Policy Letter (GCAPL) is responsible for its distribution and any action required.

e. Maintenance of records.

(1) Grant officers shall instruct GORs as to the type of records they are to maintain and distribution thereof.

(2) Records shall be numbered/labeled IAW AR 25-400-2.

(3) When a cooperative agreement is completed, the GOR shall forward all records pertaining to the agreement to the grants officer for retention. The retention period for agreements is 6 years and 3 months after the final payment or settlement date.

2-4. Limitations

The GOR may be empowered, by the grants officer, to take any actions under a cooperative agreement which could lawfully be taken by the grants officer; except where the terms of the cooperative agreement itself specifically prohibit a GOR from exercising such authority.

a. The GOR does not have the authority and shall not be delegated authority to make any commitments or changes to the terms and conditions of a cooperative agreement.

b. The GOR shall not be authorized to award, agree or otherwise execute any cooperative agreement or modification thereto, or in any way obligate or certify funds on behalf of the Government.

Chapter 3

Administration

3-1. General

a. There are three categories of cooperative agreements: Operations and Maintenance Master Cooperative

Agreements, Military Construction cooperative agreements and Special Military Project cooperative agreements.

(1) The Operations and Maintenance Master Cooperative Agreement (O&M MCA) consists of two parts, the first part of the MCA, includes standard terms and conditions applicable to all Appendices under the MCA. The second part of the MCA is comprised of the Appendices which contain specific terms and conditions applicable to the specific program, (e.g. ARNG Facilities Program, ANG Facilities Operations and Maintenance, Environmental

Resource Management, and Physical Security). The performance period/termination date of each appendix shall be the same as the performance period/termination date of the MCA.

(2) Military Construction cooperative agreements (MCCA) both Army and Air consist of four parts. The first part is the main body of the agreement which includes standard terms and conditions applicable to the technical

Appendices. The remaining three parts are technical Appendices which contain technical information for the specific project (i.e., scope, design and construction).

(3) Special Military Project cooperative agreements are specific, non-standard, unique agreements used to provide

Federal domestic assistance to a State/District/Territory which cannot be executed under an existing agreement due to authority and/or funding.

b. The USPFO (grantor) and the TAG (grantee) shall have an approved and executed CA covering each program that the State Military Department operates and in which reimbursement is anticipated.

c. Legal reviews of all cooperative agreements by TAG (grantee) or other local government entity and USPFO

(grantor) legal counsels are required.

(1) TAGs are encouraged to involve their Attorneys General early on in the execution process and to seek delegation of legal review to the lowest reasonable level. The signature of the State Attorney General, or official designee (as delegated in writing), on the MCA shall satisfy the requirement of Article XI, Section 1102 of the MCA that the State furnish an opinion of counsel.

(2) The full-time Active Guard Reserve (AGR), or a federally recognized Staff Judge Advocate, shall be the legal counsel for the USPFO. If such Staff Judge Advocate is not available, NGB-JA shall assume this responsibility.

The USPFO may also seek legal counsel from NGB-JA as required to avoid potential conflicts of interests with the

Title 32 JAG.

d. The parties shall use the standard non-technical language in the agreement templates provided by NGB-PARC-

A unless the agreement specifically authorizes the parties to use State/Territory unique language, to choose alternatives, or to accommodate unique State/Territory conditions.

e. The USPFO shall ensure that the grantee and CA PMs have a copy of the entire approved MCA or MCCA, including modifications and applicable Appendices.

f. The USPFO, in conjunction with the grantee, is encouraged to prepare a CA SOP and establish a CA Council to address CA related issues such as administration, local business processes, performance issues, policy development and interpretation and internal management control issues.

g. The use of digital forms, templates and signatures, when agreed to by the grantor and grantee, is authorized.

Any document that is converted into digital format shall retain the same content, terms and conditions of the original format. A review for legal sufficiency will be completed by the grantor’s legal counsel.

3-2. Completion and Term Cooperative Agreements

A Cooperative Agreement may take one of two basic forms: Completion or Term. Both forms must meet the bona fide need of the fiscal year in which they are awarded.

a. A completion Cooperative Agreement describes the activities in the form of a definite goal, target or product.

This form of Cooperative Agreement normally requires completing and delivering a specified product, subject to availability of funds. NGB is required to fully fund completion form cooperative agreements, although NGB may elect to incrementally fund phased completion agreements. However, in the event the work or performance cannot be completed within the estimated cost, NGB may increase the estimated cost. Any increase in the estimated cost must be funded by appropriations that were in effect at the time the CA was executed. Work or performance using the completion form is by definition non-severable. The MCCA is a completion agreement.

b. A term cooperative agreement describes the scope of work or performance in general and obligates the grantee to perform specified activities within a stated period, typically the Federal fiscal year of the funding. Work or performance using the term form is by definition severable. The O&M MCA and Appendices are term agreements.

3-3. Milestone Dates

a. By 1 May of every year, NGB-OPR-PMs shall provide to NGB-PARC-A recommended changes to their respective agreements and supporting attachments.

b. By 1 June of each year, NGB-PARC-A shall publish (via a Grant and Cooperative Agreement Policy Letter

(GCAPL)) and post to the GKO website any updated or revised agreements.

c. By 30 September of the year in which an O&M MCA expires, the USPFO, TAG, and their respective counsels, shall have executed the new O&M MCA and State appropriate appendices. The O&M MCA may be executed independently of the appendices. Final execution of all appendices will not be a cause to delay the use of the MCA.

3-4. Completion and Execution of the O&M Master Cooperative Agreement

a. The TAG and the USPFO are responsible for the execution of the MCA. The MCA is executed not later than

30 September. The TAG and the USPFO shall decide the performance period/termination date of the MCA. Five years is recommended, but the parties may agree to a lesser or greater term. The appendices executed under the

MCA will have the same performance period/termination date as the MCA.

Note: The termination date is entered into Section 701 of the MCA.

b. Execution of the MCA requires the signature of the individuals and in the order as listed below:

(1) Legal counsels on behalf of the TAG and the USPFO;

(2) TAG, unless State legislation specifies otherwise;

(3) USPFO.

c. Execution of the MCA at the beginning of a new agreement cycle will take place before the commencement of the Federal fiscal year. Execution of the MCA is not dependent on the availability of funds. The MCA is not a funded document and the execution of an MCA is not an event which obligates Federal funds.

(1) The approved template issued by NGB-PARC-A shall be used in the preparation of the O&M MCA. (Ref. the

NGB-PARC-A GKO Webpage)

(2) The GOR is responsible for the administrative preparation of the MCA and for distribution of the executed agreement.

(a) The numbering of the MCA shall be as prescribed by DoD 3210.6-R, DoDGARS, Section 21.560. The serial number for the MCA will be 1000.

Note: This number, including the fiscal year designation, will be valid for the term agreed upon in Section 701 of the

MCA; the individual appendices under the MCA shall be numbered IAW with the FY they are established and that number, including the fiscal year designation, shall remain the same for the term established in Section 701 of the

MCA.]

1. Enter the termination date in Section 701.

2. Identify Attachments/Appendices.

3. Complete signature blocks as indicated on the execution page.

4. Process for signatures and distribute executed agreement to all signatories and to each Directorate/CA PM responsible for a CA program at the grantee level.

(3) Review and approval by NGB-PARC-A is not required unless the terms and/or conditions of the MCA are modified.

3-5. Completion and Execution of O&M Master Cooperative Agreement Appendices

a. Execution of an MCA Appendix at the beginning of a performance period will take place before the commencement of the Federal fiscal year. Execution of an MCA Appendix is not dependent on funds being obligated at the same time. An MCA Appendix is typically a funded document; however it may be executed without funding with the annotation “Subject to the Availability of Funds.” In such circumstances the appendix should reflect zero (0) Federal dollars obligated at that time. The Federal government cannot obligate appropriated funds in advance of an appropriation. If congressional action or NGB priorities dictate otherwise, the execution may occur anytime during the fiscal year and the initial funding period will be adjusted accordingly.

b. Execution of the MCA Appendices requires the signatures of the individuals and in the order as listed below:

(1) Legal counsels on behalf of the TAG and the USPFO.

(2) TAG, unless State legislation specifies otherwise.

(3) USPFO.

c. An appendix is initiated, at the beginning or during a fiscal year, through the USPFO by the Activity Program

Director, (e.g. G3, G6, and/or the CA PM). Documentation required, as a minimum, will be an approved budget amount from the NGB-OPR-PM or state military command. The CA PM must identify a specific proposed budget amount. (Ref chapter 11)

(1) The approved templates issued by NGB-PARC-A shall be used in the preparation of the O&M MCA

Appendices. (Ref. the NGB-PARC-A GKO Webpage)

(2) The GOR is responsible for the administrative preparation of the appendix and for distribution of the executed agreement to include:

(a) Numbering of the MCA Appendix as prescribed by DoD 3210.6-R, DoDGARS, Section 21.560. The serial numbers for the MCA Appendices will be in the 1000 series, the last digit(s) reflect the appendix number, (i.e. 1001 is

ARNG Facility Programs, 1002 is ARNG Environmental etc).

Note: The individual Appendices under the MCA shall be numbered IAW the FY they are established and that number, including the fiscal year designation, shall remain the same for the term established in Section 701 of the MCA.

(b) Ensuring that all data blanks are filled as appropriate to the appendix.

(c) Completing signature blocks as indicated on the execution page.

(d) Processing for signatures and distributing executed Appendices to all signatories (as a minimum).

d. A NGB-OPR-PM signature is not required for the execution of an appendix.

e. Execution is complete when the grantee and the grantor sign. The grantor signs last.

f. Review and approval by NGB-PARC-A is not required unless the terms and/or conditions of the MCA Appendix are modified.

g. The GOR is responsible for furnishing a copy of the executed agreement to the NGB-OPR-PM.

h. If an appendix is initiated and executed other than at the beginning of a fiscal year, the MCA will be modified to include the new appendix.

i. If an appendix is terminated prior to the end of the performance period/termination date, it shall be removed from the MCA by means of an executed CA modification when closeout of the agreement has been completed.

3-6. Funding O&M MCA Appendices

a. O&M MCA Appendices are funded annually, either fully or incrementally. A CA modification, initiated by a written request with a certification of funds from the ARNG CA PM or Assistant USPFO Air (Fiscal) for ANG, shall be executed to establish the amount to be obligated against the CA.

(1) When CA funding authority (allotment) is issued to the USPFO and or the Asst USPFO Air (Fiscal) by NGB during the FY, the CA PM will forward the appropriate documentation to the GOR, as indicated above. The GOR shall use the CA Modification Form issued by NGB-PARC-A (Ref. the NGB-PARC-A GKO Webpage) to obligate the funds. The modification shall include at a minimum:

(a) The Annual Funding Program (AFP) amount which shall be the approved budget amount or the proposed budget amount;

(b) The dollars to be obligated as a result of the CA modification; and

(c) The total dollars obligated to date which reflect the Federal dollars obligated for the Federal government’s share of the appendix.

(d) The State’s share(s), if applicable.

b. The same process applies for de-obligation of funds from an agreement.

c. When CA funding authority (allotment) has not yet been issued to the USPFO and or the Asst USPFO Air

(Fiscal) by NGB at the beginning of the FY, the CA PM can process, with the USFPO’s concurrence, a request to administratively open the appendix for the FY. The GOR shall use the CA Modification Form issued by NGB-

PARC-A (see the NGB-PARC-A Webpage) to administratively open the appendix for the FY. The modification shall include as a minimum:

(1) The Annual Funding Program (AFP) amount which shall be the approved budget amount or the proposed budge amount;

(2) Total Federal dollars amount obligated will be -0- ; and

(3) A statement to the effect of “This modification is subject to the availability of Federal FYXXXX Funds.”

(4) The State’s share(s), if applicable.

3-7. Completion and Execution of a Military Construction Cooperative Agreement (MCCA)

a. An ARNG MCCA is executed when a construction project has been approved through NGB-ARI. Execution may be accomplished prior to funds being issued; execution is not tied to the beginning of a fiscal year and may occur at any point during the fiscal year.

(1) Execution of the ARNG MCCA requires the signatures of the individuals and in the order as listed below:

(a) The grantee and grantor legal counsels.

(b) TAG, unless State legislation allows otherwise.

(c) USPFO.

(d) NGB-ARI.

(2) ARNG MCCAs contain three appendices, SP (Project Description, Scope, and Schedule), SD (State Design), and SC (State Construction). These appendices have data elements that are blank in the template; it typically is the responsibility of the requesting activity (Construction and Facilities Management Officer (CFMO) to complete these data elements and forward the completed appendix (ices) to the GOR for inclusion/attachment to the MCCA. An

ARNG MCCA may be executed with appendix SP, SD and SC being initiated and funded separately.

(3) An ARNG MCCA is initiated through the USPFO by the Activity Program Director, typically the CFMO.

Documentation required, as a minimum, will be the approved DD Form 1390-91 and any other project documents as provided by NGB-ARI.

b. An ANG MCCA is executed when a construction project has been approved through NGB/A7O; execution is not tied to the beginning of a fiscal year and may occur at any point during the fiscal year. Air National Guard

MCCAs are usually with other local government entities such as an airport authority or port authority. Any agreement written to an entity other than the TAG must include a tripartite execution page. (Ref. the NGB-PARC-A

GKO Webpage) The local government entity and the USPFO are the primary parties to the agreement and are referred to as grantee and grantor.

(1) Execution of the ANG MCCA requires the signatures (in order of appearance) of the:

(a) Legal Counsels on behalf of the grantee and grantor.

(b) Local Government grantee (dependent on project).

(c) Grantor.

(d) TAG, as third party to the agreement as applicable.

(2) ANG MCCAs contain three Appendices, State Design, State Construction and Utility Connection. These

Appendices have data elements that are blank in the template; it typically is the responsibility of the requesting activity (Base Civil Engineer (BCE) to complete these data elements and forward the completed appendix (ices) to the GOR for inclusion/attachment to the MCCA. An ANG MCCA may be executed with Appendix State Design, State Construction and Utility Connection being initiated and funded separately.

c. The approved templates issued by NGB-PARC-A shall be used in the preparation of the ANG and ARNG

MCCAs. (Ref. the NGB-PARC-A GKO Webpage) The GOR is responsible for the administrative preparation of the

MCCA and for distribution of the executed agreement to include:

(1) The numbering of the MCCA shall be as prescribed by DoD 3210.6-R, DoDGARS, Section 21.560. The serial numbers for ARNG MCCAs will be sequential starting with 2001 for the fiscal year in which they were executed. The serial numbers for ANG MCCAs will be sequential starting with 2101.

Note: The SD, SC and UC Appendices that are inclusive with the MCCAs are not numbered individually or separately from the MCCA. They retain the same number as the MCCA.

(2) Ensuring that all data blanks are filled as appropriate to the appendix.

(3)Completing signature blocks as indicated on the execution page.

(4)Processing for signatures and distributing executed agreements to all signatories (as a minimum).

d. Execution is complete when the grantee and grantor sign. The grantor signs last. However, in the case of

ARNG MCCAs NGB-ARI signs last and the agreement is not validated until NGB-ARI signs.

e. Review and approval by NGB-PARC-A is not required unless the terms and/or conditions of the MCCA are modified.

f. The technical appendices may be modified, after execution; as a result of project requirements. If this occurs, there shall be a review and approval by the NGB-OPR-PM. Legal review will be at the discretion of the grantor and grantee. Review and approval by NGB-PARC-A is not required.

g. The GOR is responsible for furnishing a copy of the executed agreement to the NGB-OPR-PM.

3-8. Funding an MCCA

a. An MCCA is project specific and is a completion type agreement. NGB is required to fully fund completion form cooperative agreements. However it is appropriate and typical that each technical appendix of the MCCAs may be funded independently/separately as the project progresses. For example an ARNG MCCA may be funded in one fiscal year for the design and then funded in another fiscal year for the construction; each of these phases does not require separate MCCAs. Close coordination with the CFMO or BCE is required. A CA modification, initiated by a written request with a certification of funds from the CA PM or Assistant USPFO Air (Fiscal), shall be executed to establish the amount to be obligated against the CA.

b. When MCCA funding authority has been issued to the USPFO and or the Asst USPFO Air (Fiscal) by NGB and the CA PM has forwarded the appropriate documentation to the GOR, the GOR shall use the CA Modification

Form issued by NGB-PARC-A (Ref. the NGB-PARC-A GKO Webpage). The modification shall include at a minimum:

(1) The appropriate project and appendix to be funded;

(2) The dollar amount to be obligated as a result of the CA modification; and

(3) The total dollar amount obligated to date which reflects the Federal dollars obligated for the Federal government’s share of the appendix.

(4) The State’s share(s), if applicable.

3-9. Creation of a new agreement/appendix under the O&M Master Cooperative Agreement

a. The creation of a new, non-existent, agreement/appendix under the O&M Master Cooperative Agreement will originate at the NGB-OPR-PM level. The NGB-OPR-PM shall submit a request for the new agreement to NGB-

PARC-A indicating the statutory authority, proposed title, purpose of the agreement, anticipated budget amount and appropriation to be used for the agreement. NGB-PARC-A will coordinate with the NGB-OPR-PM on agreement template.

b. NGB-PARC-A is responsible for reviewing new, non-existent, agreements/appendices under the O&M Master

Cooperative Agreement for policy compliance, formatting and numbering. NGB-PARC-A will also coordinate legal review and approval with NGB-JA and issue the agreement.

3-10. Special Military Projects Cooperative Agreements

a. A Special Military Project is a specific, non-standard/unique agreement used to provide Federal domestic assistance to a state/district/territory or other authorized local government entity or non-profit which cannot be executed under an existing MCA/Appendix. Special Military Projects require statutory authority, normally through a

DoD Appropriations Act or a special appropriations authority and funded appropriations act.

b. NGB-PARC-A is responsible for reviewing Special Military Project Agreements for policy compliance, formatting and numbering. NGB-PARC-A will also coordinate legal review and approval with NGB-JA and issue the agreement.

c. The following actions must be completed by requestors (grant officers/CA PMs or NGB-OPR-PMs) in the processing of Special Military Project Agreements for execution:

(1) Identify the statutory authority/funded appropriations act for the project.

(2) Identify/Coordinate with the NGB-OPR-PM.

(3) Complete the Special Military Project template provided by NGB-PARC-A in its entirety and include all necessary attachments. No signatures are required at this point.

(4) Attach a cover letter from the grants officer or NGB-OPR-PM, as appropriate, summarizing the request to include the statutory authority, proposed title, purpose of the agreement, anticipated budget amount and appropriation(s) to be used for the agreement.

(5) Submit the Special Military Project request to NGB-PARC-A for review and staff coordination. Electronic or hard copy submissions will be accepted.

3-11. Modifying Cooperative Agreements

a. All cooperative agreement modifications are to be accomplished on the CA Modification Form issued by NGB-

PARC-A (Ref. the NGB-PARC-A GKO Webpage). There are typically four purposes for issuing a CA modification;

funding, terms and conditions, termination and other administrative.

b. Modifications to the funding of a CA. Requests for funding modifications are typically initiated by the CA PM and provided to the GOR for action. Requests for an increase should include at a minimum, any approvals required by the CA and a certification of funds availability. Requests for a decrease should include at a minimum, any approvals required by the CA. Modifications that obligate or de-obligate funds against a Cooperative Agreement shall be signed by the grantee and grantor. Modifications for funding do not require the review or approval of NGB-

PARC-A.

(1) A CA modification shall be executed to obligate the initial funding of a Cooperative Agreement at the beginning of the FY whether it is fully funded or incrementally funded. Funds obligated against a Cooperative

Agreement allow reimbursement to the grantee. A funding modification may also be issued “Subject to the

Availability of Funds” at the beginning of a FY to allow the grantee to perform until certification of funds is received.

(2) A CA modification shall be executed to obligate additional funds for incremental allotments received during a

FY.

(3) A CA modification shall be executed to obligate any increases to the original Annual Funding Program or, in the case of MCCAs, to the original project amount of the agreement. Each program specific CA provides guidance as to the level of involvement and the specific requirement(s) of the NGB-OPR-PM, (i.e. prior approvals and CA modification signature).

(4) A CA modification shall be executed to de-obligate funds against a Cooperative Agreement. Each program specific CA provides guidance as to the level of involvement and the specific requirement(s) of the NGB-OPR-PM, (i.e. prior approvals and CA modification signature).

c. Modifications to the terms and conditions of a CA. Requests to modify the terms and conditions established in a NGB-PARC-A CA template may originate at the grantee/grantor or NGB-OPR-PM level. Modifications to the established terms and conditions of a CA template at the grantee/grantor level may be necessary due to a particular

State’s laws and/or regulations. Modifications to the established terms and conditions of a CA template at the NGB-

OPR-PM level may be necessary due to overall program change or statutory requirements. Modifications that change the terms and/or conditions of a CA shall be signed by the grantee and grantor. Requests for modification(s) to the terms and conditions of a CA at the grantee/grantor level shall be documented as to the circumstance and/or reason and forwarded by the grantor to NGB-PARC-A. NGB-PARC-A will coordinate the request with the NGB-

OPR-PM and NGB-JA for their reviews and approvals and will notify the grantor of decision. However, modifying the fill in data initially completed at the grantee/grantor level does not require NGB-PARC-A or NGB-JA review;

modifying the fill in data may require approval by the NGB-OPR-PM.

(1) Requests for modification(s) to the terms and conditions of a CA at the NGB-OPR-PM level shall be documented as to the circumstance and/or reason and forwarded by the NGB-OPR-PM to NGB-PARC-A. NGB-

PARC-A will coordinate the review and approval of the request with NGB-JA and the NGB-OPR-PM. This type of modification will result in a Grants and Cooperative Agreement Policy Letter (GCAPL) being issued. The grantor has authority to execute a modification to the terms and conditions of an agreement resulting from a Grants and

Cooperative Agreement Policy Letter (GCAPL). The GCAPL is the authority for this type of modification. The

NGB-OPR-PM, NGB-PARC-A and NGB-JA will have already reviewed and approved the changes resulting in the

GCAPL.

(2) Requests for modifications to the technical Appendices of ARNG or ANG MCCAs (typically modifying the fill in data initially completed at the State level by the CFMO or BCE) after the MCCA has been executed shall include approval of the NGB-OPR-PM and the circumstances and/or reasons for the modification. The request will be forwarded by the CA PM to the grantor. The grantor is authorized to execute this type of modification.

Modifications of this type do not require NGB-PARC-A or NGB-JA review and approval.

d. Modifications to Terminate a CA. Termination is not the same action as an FY closeout. Requests to terminate an executed CA may be necessary due to a particular State’s laws and/or regulations, funding status or mission/program status. Modifications that terminate a CA shall be signed by the grantee and grantor.

e. Request for modification(s) to terminate a CA shall be documented as to the circumstances and/or reasons and forwarded by the CA PM to the grantor. Documentation should also include the status of funds and any other specific requirements within the agreement being terminated. Legal review and approval by both grantor and grantee counsels will be required prior to execution. Modifications for other administrative actions to a CA.

Requests for modifications for other administrative actions may include providing a change in the Federal line of accounting and any other actions that do not include funds/funding or changes to the terms and or conditions of a

CA. Requests for other administrative actions to a CA may be initiated by either the grantee or grantor and should be documented as to the circumstance and requirement of the action. Legal review will be at the discretion of the grantor and grantee. The grantor is authorized to execute this type of modification. Modifications of this type do not require NGB-PARC-A, NGB-OPR-PM or NGB-JA review and approval.

f. The GOR is responsible for furnishing a copy of all executed terms, conditions and funding modifications to the

NGB-OPR-PM.

3-12. Grantee Contracts

Acquisition of goods and services by the grantee in performance of the CA shall be according to grantee contracting procedures IAW 32 CFR § 33.36.

3-13. Grantee Contract Flow Down

The grantee is required to insert the substance of Article VIII of each MCA, MCCA or Special Military Project CA in all contracts issued under the CA, unless State/Territory laws or regulations offer more protection.

3-14. Grantee Department Administration

The grantee shall designate a member of his/her staff to administer each MCA, MCCA or Special Military Project

CA.

3-15. Cooperative Agreement Claims, Disputes and Appeals Procedures

a. Policy: It is NGB policy to try to resolve all CA issues in controversy by mutual agreement at the grants officer level.

b. Statement of Relief Sought: No particular written format is required to make a claim or appeal under the CA.

Claims shall be in writing, shall specify the nature and basis for relief requested, and shall include the document and other evidence pertinent to the claim. The TAG shall certify that the claim is made in good faith, and if funding is sought, the amount.

c. Time for Filing Claims: Claims shall be made within 60 days after the basis of the claim is known or should have been known, whichever is earlier. It is the grantee’s responsibility to include in its claim all information needed to demonstrate its timeliness.

d. Grant officers’ authority: grant officers, the designated agents for the Chief, National Guard Bureau, are authorized to decide or settle all claims arising from or relating to a CA subject to this regulation. This authorization does not extend to approving any regulatory or legally prohibited activity.

e. Grants officer’s Decision:

(1) If a claim or dispute cannot be informally resolved, the TAG shall make a formal written Request for Decision to the grants officer. The grants officer shall make a written decision of the claim or dispute within 60 days of the receipt of the TAG’s request.

(2) Where a formal decision is necessary, the grants officer shall:

(a) Prepare a written decision, which shall include the reasons for the decision, shall identify all relevant documents or other evidence on which the decision is based, and shall be documented in the Cooperative Agreement file.

(b) Notify the TAG of a specific date when he or she will render a written decision, if more time is required to do

so. The notice shall inform the TAG of the reason for delaying the decision (e.g., a need for the TAG to provide additional information to support the claim).

(3) Unless appealed, the decision of the grants officer shall be final [see paragraph (g) below].

(4) If a formal decision is not rendered in the time specified above, the TAG can appeal directly to the grant appeal authority [see paragraph (g) below].

f. Alternative Dispute Resolution (ADR).

(1) Policy: NGB policy is to resolve all issues concerning cooperative agreements by mutual agreement at the grants officer level. Grant officers, therefore, are encouraged to use ADR procedures to the maximum extent practicable. ADR procedures are any voluntary means (e.g., settlement negotiations or mediation) used to resolve issues in dispute without resorting to formal administrative appeals [see paragraph (g) below] or to litigation.

(2) Procedures: If a TAG decides to appeal a grants officer’s decision, the grants officer shall encourage the TAG to enter into ADR procedures with the grants officer. The ADR procedures or techniques to be used either may be agreed upon in advance as part of the Cooperative Agreement instrument or may be agreed to at the time that the parties determine to employ ADR procedures. ADR procedures may be used before submission of the TAGs appeal

[see paragraph (e) above].

g. Appeals:

(1) Grant appeal authority: The CNGB shall establish one or more grant appeal Authorities to decide formal, administrative appeals. The individual so designated shall be at least at a grade level in the Senior Executive

Service, if civilian, or at the rank of General Officer, if military. The appointment letter shall be signed by the

CNGB.

(2) Right of Appeal: The grantee has the right to appeal a grants officer’s decision to the grant appeal authority.

(3) Appeal Procedures.

(a) Notice of appeal: The TAG may appeal a decision of the grants officer within 90…