1. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER New York State Office of the State Comptroller Thomas P. DiNapoli, Comptroller Office of Operations John Traylor, Executive Deputy Comptroller Division of Contracts and Expenditures Margaret Becker, Deputy Comptroller Charlotte Breeyear, Director, Bureau of Contracts Back to Basics Office of Operations 2013 Fall Conference November 6-7 Fundamentals of Intergovernmental Agreements and Memorandums of Understanding (MOUs) Mike Boivin and Mia Graham

2. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 2 What should you consider when drafting an Intergovernmental Agreement or MOU? INTERGOVERNMENTAL AGREEMENTS AND MEMORANDUMS OF UNDERSTANDING

3. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 3 An Intergovernmental Agreements is a contract between divisions of government. An MOU is a contract between two or more parties which may or may not be governmental entities. Are intergovernmental agreements and MOUs contracts? Can a contract fit into more than one category? Yes. Its all a matter of terminology. Yes. What is the difference between an Intergovernmental Agreement and an MOU? DEFINITIONS

4. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 4 Intergovernmental Agreements over certain dollar values are sent to the Office of the State Comptroller (OSC) for prior approval under Section 112 of State Finance Law. MOUs are sent to OSC for prior approval under Section 112 as well, except when the MOU is between two or more State agencies. IS THE PRIOR APPROVAL OF OSC REQUIRED?

5. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 5 On June 9, 1980, the Attorney General published the following opinion: Agencies... may not enter into formal contracts with each other but may execute interagency memoranda of understanding limited to matters of substance and omitting standard provisions normally included in formal contracts … It is elementary contract law that a person cannot contract with himself … there is only one entity – the State-and … the State cannot agree to indemnify itself … ATTORNEY GENERAL OPINION

6. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 6 Need Justification Cost Justification Advertising Requirements Scope of Work/ Budget Approval Potential Issues? Enabling Legislation Appendix A Requirements Board & Municipal Resolutions Signatures Attorney General and OSC Approval Agency Schedule and Timelines

7. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 7 Discuss Alternatives. Demonstrate for the procurement record that the chosen option is the best option. NEED JUSTIFICATION

8. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 8 Market Rates Office of General Services Backdrop Contract Grant or Funding Agreement Published Rates Engineer Estimate Historical Data COST JUSTIFICATION

9. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 9 Is this a biddable service or a contract for consultant services that could be procured using a standard procurement method? DO YOU NEED A CONTRACT REPORTER EXEMPTION?

10. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 10 Define the scope of the agreement and clearly identify the responsibilities of each party to the contract. Include a not-to-exceed amount in the body of the contract. Also include a repayment schedule in the contract if the contract involves the repayment of funds to the State. If there is enabling legislation, make sure all legislative requirements are included in the terms of the contract and have been satisfied. Get Division of the Budget approval early in the process. SCOPE OF WORK & BUDGET REQUIREMENTS

11. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 11 How will we justify the cost? Does this contract involve any third party contracting? Who needs to sign this contract? Will they be readily available when the time comes or do we need a plan? Have we done a contract like this one before? Do we need to get a sample contract from another agency? What are the timeframes like? Are there any drop-dead dates or legislative requirements that must be met? EVALUATE POTENTIAL ISSUES

12. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 12 Be familiar with enabling legislation before drafting contracts; watch for restrictions and drop dead dates that must be met in order for the contract to be valid. Include a copy of the enabling legislation in the procurement package. ENABLING LEGISLATION

13. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 13 Executory Clause Non-Assignment Clause Comptrollers Approval Records Clause CONTRACTS WITH THE FEDERAL GOVERNMENT REQUIRE THE FOLLOWING APPENDIX A CLAUSES

14. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 14 Executory Clause Late Payment Non-Assignment Clause No Arbitration Comptrollers Approval Records Clause CONTRACTS WITH OTHER STATES REQUIRE THE FOLLOWING APPENDIX A CLAUSES

15. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 15 Must be current Must match contract Original, raised seal or certified copy Check the authority policy for signing requirements BOARD & MUNICIPAL RESOLUTIONS

16. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 16 All non-agency signatures must be notarized. OSC must sign last. SIGNATURES

17. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 17 Attorney General approval is required by OSC for all contracts reviewed by OSC. ATTORNEY GENERAL & OSC APPROVAL

18. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 18 Determine how long will it take to: Define Scope of Work Get In-House Approvals Advertise and Make Selection Draft Contract & Build Procurement Record Conduct Legal Review & Make Necessary Changes Assess Vendor Responsibility Get Signatures Obtain Attorney General Approval Obtain OSC Approval AGENCY SCHEDULE & TIMELINES

19. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 19 Crown Point Bridge CONTRACTS WITH OTHER STATES

20. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 20 CONTRACTS WITH OTHER STATES Include required Appendix A clauses in contract. Scope of Work and the responsibilities of each party must be clearly defined for cost-sharing purposes. Division of the Budget form B1184 required. Funding is only encumbered once; determine if the encumbrance will be on the cooperative agreement or on future contracts.

21. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 21 Coastal Erosion & Flood Control Projects With the Army Corp of Engineers CONTRACTS WITH THE FEDERAL GOVERNMENT

22. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 22 Clearly define scope of work. Pay attention to federal reporting requirements. Specify time and manner in which State funds will be expended. Call for interim reports on expenditures. Include required Appendix A Clauses. CONTRACTS WITH THE FEDERAL GOVERNMENT

23. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 23 Municipal Snow Trucks Removing Snow & Ice CONTRACTS WITH MUNICIPALITIES

24. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 24 Clearly define the scope of work. Include maps, if applicable. If this is going to be an ongoing relationship, consider negotiating renewal terms and/or multi-year agreements. Municipal Resolutions are required. Attach the standard Appendix A. CONTRACTS WITH MUNICIPALITIES

25. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 25 Hudson River Walkway CONTRACTS WITH NOT-FOR-PROFITS

26. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 26 Decide if you will advertise or if you need an exemption. Along with the standard need and cost justifications, you will also need to complete a Vendor Responsibility review. Include enabling legislation in the procurement package, if applicable. CONTRACTS WITH NOT-FOR-PROFITS

27. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 27 When funding is advanced to another party, the repayment schedule is memorialized in the terms of the agreement REPAYMENT AGREEMENTS

28. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 28 The most important requirement for a repayment agreement is for the repayment schedule to be included in the body of the agreement. Your agencys legal counsel must review the repayment agreement. Most repayment agreements will have an associated grant contract with the same contract number. The repayment agreement will have an F prefix. The grant contract will have a C prefix. REPAYMENT AGREEMENTS

29. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 29 ! High Speed Rail COOPERATIVE AGREEMENTS

30. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 30 Cooperative agreements are often zero dollar agreements that simply outline the terms of what is going to happen. Use engineers estimates for design and construction. Use historical data for cost and revenue items. COOPERATIVE AGREEMENTS

31. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 31 You will be told that yesterday is too late to get this done! One thing you can count on is a changing schedule Understand the requirements, its the key to success Consider you options Advertise Notify OSC when its a rush! Dont worry Own the project Include a not-to-exceed amount in your contract Track the schedule! MAKE A PLAN

32. STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER 32 Trich Warner 473-1024 Mike Boivin 486-1293 David Schmidt 474-4245 Mia Graham 402-4591 Sharon Viscusi 486-3012 Danielle Niemitalo 486-1299 Kathy Fitzpatrick 473-6762 Krista Gardner 474-3658 REAL PROPERTY & NEGOTIATED CONTRACTS STAFF LISTING