2 FAM 970
PUBLIC-PRIVATE PARTNERSHIPS
(CT:GEN-548; 03-29-2019)
(Office of Origin: S/GP)
2 FAM 971 SCOPE
2 FAM 971.1 Policy
(CT:GEN-434; 12-01-2014)
a. A public-private partnership is a collaborative
working relationship with nongovernmental partners in which the goals,
structure, and governance, as well as roles and responsibilities, are mutually
determined. Four common reasons for pursuing partnerships are:
(1) They advance a shared objective;
(2) They enhance impact through resource sharing;
(3) They improve programmatic reputation/visibility;
and
(4) They achieve mutual programmatic goals.
A broad principle is that an agency should be able
to show that it will be more effective if it works through a partnership and
that associated resources, including staff time, will serve the Agencys
statutory purposes.
b. To ensure that these partnerships further the
Departments interests, to preserve the integrity of government, and to avoid
actual or apparent impropriety, Department officials may enter into
partnerships only in accordance with the regulations in this section. The
process for entering into a short- term partnership, or "co-hosted"
event is at 2 FAM
974. To this end, Department officials should ensure that all employees
involved in entering into partnerships become thoroughly familiar with the
contents of these regulations. All public-private partnerships, whether
occurring domestically or abroad, are required to follow the procedures
outlined here.
c. Do not use public-private partnerships as vehicles
for the Department to contract for services, staff, facilities or goods. In
such cases, Federal Acquisition Regulations (FAR) provisions control the
relationship between the entity (contractor) and the Department. The
provisions in this subchapter do not apply to agreements to which the FAR does
not apply, such as those for real property that are authorized pursuant to the
Foreign Service Buildings Act of 1926. Consult your bureau's lawyers for
advice.
d. Offices or posts abroad conducting solicitations
and acceptance of gifts to the Department requiring approval from the Under
Secretary for Management (hereinafter, the Under Secretary) under 2 FAM 960 must
use the process at 2 FAM 972.2.
e. The Under Secretary is the Department official
responsible for the general direction and overall supervision of the
Departments public private partnership program. He or she is responsible for
the approval of all partnerships involving the Department of State for official
purposes, unless the Secretary, a Deputy Secretary, or the Under Secretary
delegates this authority in writing. Any employee to whom partnership approval
authority has not been delegated must obtain the approval of the Under
Secretary or his or her designee before entering into a partnership.
f. A Department public-private partnership must not
impair or otherwise affect the functions of the Overseas Security Advisory
Council (OSAC).
g. Direct questions regarding these policies to the
Secretarys Office of Global Partnerships (S/GP).
2 FAM 971.2 Authorities
(CT:GEN-548; 03-29-2019)
a. General authorities of the Secretary of State for
the conduct of foreign relations and management of the Department, 22 U.S.C.
2651a.
b. The Foreign Assistance Act of 1961, as amended; 22
U.S.C. 2151 et seq.
c. Mutual Educational and Cultural Exchange Act of
1961, as amended; 22 U.S.C. 2451 et seq.
d. United States Information and Educational Exchange
Act of 1948, as amended; 22 U.S.C. 1431 et seq.
e. The U.S. Leadership against HIV/AIDS, Tuberculosis,
and Malaria Act of 2003; 22 U.S.C. 7601 et
seq.
f. Migration and Refugee Assistance, 22 U.S.C. 2601 et seq.
g. Delegation of Authority No. 462, dated January
9, 2019.
h. Other authorities as relevant.
2 FAM 971.3 Legal Guidance
(CT:GEN-406; 05-03-2013)
a. Be aware that there are issues that might arise that
may limit the ability of an office to pursue and/or enter into a particular
partnership. Examples of such issues include the following:
(1) The Conflict of Interest Statute at 18 U.S.C. 208
and ethics regulations at 5 CFR 2635 generally prohibit employees from
participating officially in a matter that could affect an entity with which the
employee has an outside economic or personal relationship. The regulations
also prohibit inappropriate official endorsement of an outside entity and the
misuse of an official position. These rules inform Department of State policy
as to the appropriateness of any particular party and the terms of the
partnership;
(2) The Federal Advisory Committee Act (FACA), 5
U.S.C. Appendix:
(a) FACA is designed to ensure that Congress and the
public are kept informed with respect to the number, purpose, membership,
activities, and cost of Federal advisory committees. A member of the public
can sue the Department if he or she believes that the Department has not
complied with FACA;
(b) For purposes of this chapter, an advisory committee
is any committee, panel, task force, or other similar group, established by a
Department official for the purpose of obtaining advice or recommendations on
issues or policies within the scope of the official's responsibilities; and
(c) FACA should not be an issue in most public-private
partnerships:
(i) The partner is not primarily providing advice or
recommendations to the Department; it is primarily performing operations in
partnership with the Department. If the partner does provide advice to the
Department, it is only one entity, and would not be a "committee" for
purposes of FACA; and
(ii) However, it is conceivable that the Department
might call upon the partner, together with other entities, to make
recommendations. There also might be more than one partner, and the Department
might ask them for consensus advice on a policy matter. This process might be
subject to FACA. If you have any questions about FACA, consult the Office of
the Assistant Legal Adviser for Management (L/M); and
(3) The Government Corporation Control Act (GCCA, 31
U.S.C. 9102):
(a) The GCCA prohibits a Federal agency from
establishing or acquiring a corporation that is an agent of the U.S. Government
unless specifically authorized by Federal law; and
(b) Consult the Office of the Legal Adviser for a GCCA
review if the public-private partnership may operate through a new or acquired
corporation or other private legal entity. The GCCA review will consider
whether the corporation or legal entity is being created by Department
employees, receiving funding solely from the Department, being controlled by
Department employees, or performing functions that belong to the Department.
b. Other laws such as the Paperwork Reduction Act may
affect a partnership, or the ability of an office to enter into a particular
partnership.
2 FAM 971.4 Subchapter Definitions
(CT:GEN-406; 05-03-2013)
Employee means an appointed
officer or employee of the Department, including a locally employed staff, a
special U.S. Government employee, or an expert or consultant;
Nonfederal entity includes any
individual, private, or commercial entity other than the U.S. Government,
including but not limited to corporations, nonprofit organizations or
associations, international or multinational organizations, and foreign, State,
tribal, or local governments.
2 FAM 972 PROCEDURE
2 FAM 972.1 Evaluating the
Suitability and Necessity of a Public-Private Partnership
(CT:GEN-406; 05-03-2013)
a. Appropriate partnerships are those that contain
discrete, identifiable Department goals or initiatives that would be best accomplished
through leveraging the resources or expertise of a private entity. An office
interested in entering into a partnership should be able to articulate why it
would be more effective and efficient to work with an outside organization than
alone or with other offices of the U.S. Government. Generally, a post abroad
is the relevant organizational unit for evaluating the propriety of a
partnership entered into abroad.
b. When deciding whether a public-private partnership
may be warranted in any particular situation, the requesting office should
first consider whether the particular goal or initiative is suitable for a
partnership.
c. Conditions indicating that a particular goal or
initiative may be suitable for a partnership include:
(1) Where it is anticipated that addressing the issues
involved will require or benefit from contributions, expertise or substantial
participation from outside the U.S. Government;
(2) Where nongovernmental assets are available and
there is nongovernmental interest in partnering to address the issues; and
(3) Where the Department is able and willing to devote
the staff, time and funding to support the collaborative process.
d. Conditions indicating that a particular goal or
initiative might not be suitable for a partnership include:
(1) Where the affected parties do not see the goals as
a high enough priority to commit time and energy to a collaborative process;
(2) Where there are insufficient resources (staff
time, funds, etc.) to adequately support the collaborative process;
(3) Where partners under consideration have
demonstrated an unwillingness to cooperate;
(4) Where it is unclear that the Department needs to
leverage the resources or expertise of the private sector in order to reach the
goal of the initiative; or
(5) Where there is evidence that the Department would
more effectively reach the goal of the initiative on its own.
e. A partnership should generally not be entered into
if the primary purpose is to facilitate a gift to the Department. In such
cases, 2 FAM 960
procedures should be followed.
f. If an office or post determines that a
private-public partnership is appropriate for a particular initiative or goal,
the office or post must consult its bureaus cognizant L office to determine if
the activity is authorized.
2 FAM 972.2 Due Diligence: Process
for Identifying and Vetting Partners
(CT:GEN-434; 12-01-2014)
a. Once the office has confirmed that the particular
initiative is suitable for a partnership and the activity is authorized, the
office should determine who in the private sector fits its needs. However,
when seeking potential partners, the office must conduct a broad enough search
so as to avoid giving the appearance that the office is affording a preference
to any one particular partner over another.
b. When considering partnering with any particular
entity, the office should familiarize itself with the potential partners' goals
and objectives and look for similarities that overlap with the goals of the
Department.
c. The office should also conduct sufficient research
on a potential partner to make sure the partner has the necessary resources or
expertise to meet the goals of the partnership.
d. After identifying potential partners, the office
must obtain from S/GP a due diligence informational memorandum for all
nonfederal entities potentially involved in the partnership.
e. The office should then review the due diligence
memorandum carefully and make a determined judgment as to each potential
partner that entering into a partnership with that partner would not cause
embarrassment or harm to the Department or its reputation.
f. The office should also make a reasoned judgment
that entering into the partnership would not give the appearance of a conflict
of interest that would cause a reasonable person to believe that any Department
official involved had lost objectivity in the performance of his or her
official duties.
2 FAM 972.3 Approval of the
Partners
(CT:GEN-434; 12-01-2014)
a. The requesting official must prepare an action
memorandum to the Under Secretary, and obtain clearances from the Legal
Adviser's Office (which must include clearances from L/M, Ethics and Financial
Disclosure (L/EFD), and the L office with principal responsibility for advising
on the requesting office's programs), S/GP, as well as other relevant offices.
This memorandum must include the following:
(1) A detailed description of the proposed partnership
and its goals;
(2) A list of the potential partners to be approached
and any relevant information from the due diligence information memorandum,
including any potential conflicts or information that could cause harm or
embarrassment to the Department;
(3) An explanation of any funding to be used in the
partnership, including appropriated funds or alternative sources of funding and
an explanation of funding or personnel to be provided by the private sector
partner;
(4) The importance to the U.S. Government of the
proposed project;
(5) The anticipated duration of the partnership;
(6) Background concerning how the partner(s) was or
were chosen;
(7) Whether the partnership will involve any
solicitations from outside entities and if so, how the solicitations will be
managed; and
(8) A draft of the expected Memorandum of
Understanding reflecting the partnership arrangement and the responsibilities
of each partner.
b. The Under Secretary will generally not approve a
request to partner with an entity that:
(1) Is seeking to obtain any business, benefit or
assistance from the soliciting official or other officials in the same
organizational unit;
(2) Conducts operations or activities that are
regulated by the Department;
(3) Has interests that may be substantially affected
by the performance or nonperformance of the requesting officials duties;
(4) Appears to be entering into the partnership with
the expectation of obtaining advantage or preference in dealing with the
requesting official, office or the Department; or
(5) Has major non-routine business with the Department
c. The Under Secretary will generally also not approve
a request to partner if there is any evidence that could cause a reasonable
person to question the impartiality of any Department official involved in the
partnership.
d. The requesting office shall be responsible for
providing the necessary information to the Under Secretary to allow a
determination about whether any of these factors exist with respect to a
particular proposal.
2 FAM 973 APPROVAL OF THE PARTNERSHIP
AND THE TERMS OF THE MEMORANDUM OF UNDERSTANDING
(CT:GEN-406; 05-03-2013)
a. Once the Under Secretary has approved the partners,
the requesting office may pursue finalization of a Memorandum of Understanding,
setting forth the anticipated goals, rights and responsibilities of the
partners.
b. The requesting office must then seek approval of the
terms of the Memorandum of Understanding from the appropriate chief of mission,
bureau head, or designee, with clearance from the official in the Office of the
Legal Adviser with principal responsibility for advising on the requesting
offices programs.
c. A template of a Memorandum of Understanding
establishing a public-private partnership is at 2 FAM Exhibit 973.
d. Once the authorized official has approved the
partnership, a bureau, post or office may commence authorized activities.
2 FAM 974 "SHORT-TERM"
PARTNERSHIPS
(CT:GEN-403; 01-30-2013)
a. For purposes of these provisions, a short-term
partnership or "co-hosted event" is a collaboration with an outside
entity for the purposes of a short-term event intended for a defined, limited
purpose. Generally, a short-term partnership would involve a reception,
meeting or conference intended to last no more than a few days and created for
the purpose of disseminating and receiving information useful to the
Department.
b. Chiefs of mission or bureau heads or designees, as
relevant, may, without the need to receive prior authorization from the Under
Secretary for Management, enter into or authorize an office to enter into a
short-term partnership.
c. An official authorized to approve a short-term
partnership must follow the guidelines set forth in 2 FAM 972.3 as
if the official were the Under Secretary.
2 FAM 975 ONGOING IMPLEMENTATION
(CT:GEN-403; 01-30-2013)
Once approved, the activities of a partnership may evolve
over time and frequently additional partners are added to existing partnerships
to further shared objectives. Ongoing legal review may be required to ensure
that legal issues, including conflict of interest requirements, are identified
and appropriately addressed. Take care to ensure that partnerships operate
within the scope of the initial approval. Consult L for review of activities
that may be outside of the scope of the initial approval and for guidance on
whether additional approval from the Under Secretary is necessary.
2 FAM 976 THROUGH 979 UNASSIGNED
2 FAM EXHIBIT 973
TEMPLATE OF A MEMORANDUM OF UNDERSTANDING ESTABLISHING A PUBLIC-PRIVATE
PARTNERSHIP
(CT:GEN-406; 05-03-2013)
MEMORANDUM OF
UNDERSTANDING
the U.S. Department of State
and
[NAME OF PARTNER ORGANIZATION/S]
I. Purpose
The Office of [NAME OF BUREAU] of the U.S.
Department of State (BUREAU Abbv) and the [NAME OF PARTNER] (Abbv of
PARTNER) share the common goal of [COMMON GOAL typically promoting, hosting,
etc]. For this reason, BUREAU Abbv and Abbv of PARTNER (individually, the
Participant; collectively, the Participants) enter into this Memorandum of
Understanding (MOU) to combine efforts, resources and ideas in order to
pursue an initiative of mutual interest related to [COMMON GOAL]. The purpose
of this MOU is to set forth the understandings and intentions of the
Participants with regard to their shared objectives. The Participants are
entering into this MOU while wishing to maintain their own separate and unique
missions and mandates.
II. [OPTIONAL] Authorities
The Department enters into this MOU pursuant to its
authorities under Section 5 of the State Department Basic Authorities Act (22
U.S.C. 2672), and [ANY OTHER RELEVANT AUTHORITIES].
III. Objectives, Roles, and
Responsibilities
This MOU provides for a broad-based core alliance
between[among] the Participants. It reflects a shared value and focus for
seeking joint collaboration opportunities within each organizations respective
vision, mission, and program focus within the context of [COMMON GOAL].
[OPTIONAL] In preparation for the [EVENT] and its
accompanying programs or partnerships, the Participants intend to work together
to achieve common goals.
[PARTNER]
[Insert description of partners mission and activities in which it engages].
[PARTNER] has no formal relationship with the DOS
or the U.S. Government, and is not subject to the control or direction of the
DOS or the U.S. Government within the scope of this partnership.
[PARTNER] intends to:
1. FIRST ACTIVITY
2. ADDITIONAL ACTIVITY
3. ADDITIONAL ACTIVITY [ETC]
The [BUREAU], subject to the availability of funds,
intends to:
1. FIRST ACTIVITY
2. ADDITIONAL ACTIVITY [ETC]
3. [OPTIONAL] The [BUREAU] intends for its liaison to
assist [PARTNERSHIP] with its review of potential partners to ensure that they
are suitable partners and that there is no conflict of interest with relevant
Department programs and operations. To this end, [PARTNERSHIP] Members intend
to provide details of potential private sector partners to [BUREAU] before
entering into discussions to pursue a partnership, so that [BUREAU] can
coordinate the necessary due diligence.
[OPTIONAL] In the event a private sector partner
desires to contribute funds or in-kind contributions directly to the Department
of State for existing Department funded programs, [BUREAU] will seek and obtain
approval from the Department.
V. [OPTIONAL] Management
[DESCRIBE TYPE OF PARTNERSHIP]
[OPTIONAL] For the purposes of coordinating
activities under this MOU, including fundraising, determining an appropriate
allocation of private sector funds, and identifying entities and activities
to/for which funds will be disbursed, the Participants may create an
operational committee, which may be referred to as the Coordinating Committee.
The Coordinating Committee will not provide advice; it will itself decide on
activities for the Partnership to pursue, subject to the availability of
statutory authority and appropriated funds.
The Participants expect that the Coordinating
Committee will consist of Department and
[PARTNER] representatives. Each Participant will
choose its representatives on the Coordinating Committee.
The Coordinating Committee would meet as often as
mutually agreed by the Participants but not less frequently than monthly.
The Coordinating Committee may wish to identify and
include others interested in assisting in advancing the PPP mission and
activities. The Participants will mutually agree upon adding additional
members to the Coordinating Committee.
[DESCRIBE REGULAR PLANNED MEETINGS]
Use by the Partner of the State Department Seal or
other promotional material referring to the Partnership must be approved in
advance by the Department. [DESCRIBE USE OF DEPARTMENT LOGO or SEAL].
VI. Dispute Resolution
In the event of a disagreement under this MOU, the
Participants intend to negotiate to resolve the disagreement in good faith.
VII. Publicity
[OPTIONAL] The Participants intend to work together
and coordinate appropriate publicity in support of the PPP and its activities.
They propose, among other things, that a press release be created for
publication announcing the signing of this MOU and subsequent projects. Any
communications and/or press releases referencing the PPP must be approved in
writing by both Participants.
VIII. Designated Points of Contact
The primary points of contact and liaison for each
Participant to this MOU are as follows:
The Department: [Information listed here].
[PARTNER]: [Information listed here].
IX. Effective Date, Duration, and
Termination
This MOU is effective from the date of execution by
both Participants until [OPTIONAL] the earlier of either the completion of the
PPP goals described above or termination of the MOU or a period of time
[example, 3 years]. However, the duration may be extended beyond [ABOVE AGREED
TIME FRAME] if both Participants so agree in writing. In addition, this MOU may
be amended if both Participants agree in writing. Either Participant may
terminate this MOU at any time upon advance written notice to the other, with
such termination becoming effective upon the date set forth in such written
notice.
[OPTIONAL] for an event or forum funded by the
PARTNER] In the event that
[PARTNER] does not raise sufficient funds to cover the entire cost of the
event, the Participants understand that [PARTNER] will cancel the Event.
X. Funding and Legal Effect
Nothing in this MOU shall be construed as
superseding or interfering in any way with other agreements or contracts
entered into either prior to or subsequent to the signing of this MOU. The
Participants further specifically acknowledge that this MOU is not an
obligation of funds, nor does it constitute a legally binding commitment by
either Participant or create any rights in any third party.
This MOU does not create any legal or binding
relationship between the Participants, or commit either Participant to the
obligation of any funding in furtherance of the goals of the MOU. It is
intended to be implemented consistent with applicable law and is subject to the
availability of appropriations.
This MOU is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or in
equity by any party against the United States, the U.S. Department of State,
its officers, employees, or agents, or any other person.
IN WITNESS WHEREOF, the Participants, acting through their
duly authorized representatives, have caused this MOU to be signed in their
names and delivered as of this ___ day of [MONTH], [YEAR].
For the U.S. Department of State For
[PARTNER]
NAME NAME
TITLE TITLE