Page 222 - Automated Fingerprint Identification Systems (AFIS)

CONTRACTUAL ISSUES REGARDING THE PURCHASE OF AN AFIS 207

applicant is required to agree to a series of terms and conditions. (See
http://www.ojp.usdoj.gov/Forms/assur.pdf for more information.) While
referred to as “assurances,” these clauses place binding restrictions on the
expenditure of funds. Further, many of these clauses must expressly be passed
on to the contractor. For example, clause 6 of the federal certified assurances
requires compliance with all the requirements of the federal sponsoring agency,
including special requirements of law, program requirements, and administra-
tive requirements, and includes a commitment that the contractor must comply
with a listing of non-discrimination statutes.
The key funding restriction derived from federal funding is probably the
non-supplantation requirement. For example, the federal Edward Byrne Memo-
rial State and Local Law Enforcement Assistance Program, administered by the
U.S. Department of Justice (DOJ) Office of Justice Program, is used to support
state and local law enforcement efforts. (See http://www.ojp.usdoj.gov/BJA/
grant/byrneguide_03/b_strategy.html for more information.) The recipient
must agree that these federal funds will not be used to supplant state or local
funds, but will be used to increase the amount of such funds that would, in the
absence of federal funds, be made available for law enforcement activities. (See
http://www.ojp.usdoj.gov/BJA/grant/byrneguide_03/b_budget.html.) What
this requirement means is that the recipient must not have already budgeted
funds to perform the work and then substituted the budgeted funds with the
grant funds. Again, this is an issue that should be discussed with the finance or
grants office.
Another requirement that can be difficult to comply with in an AFIS pro-
curement that is also derived from DOJ funds is when a single state agency is
responsible for receiving a grant and then distributing the funds to other eli-
gible recipients. For example, as part of its standard terms and conditions, the
state of New York, through its state agency the Division of Criminal Justice Ser-
vices (DCJS), passes forward the federal requirement that “if the grant support
provided by DCJS is federally sponsored, the federal awarding agency also
reserves a royalty-free, nonexclusive, and irrevocable license to reproduce,
publish or otherwise use, and to authorize others to use: (a) the copyright in
any work developed under a grant, subgrant or contract under a grant or
subgrant; and (b) any rights of copyright to which a Grantee, Subgrantee,
or a Contractor purchases ownership with such grant support.” (See http://
criminaljustice.state.ny.us/ofpa/appendixa1.htm for more information on this
clause.) As a practical matter, the most efficient way to comply with this require-
ment is for the governmental agency to take an ownership interest in the result-
ing intellectual property. If this is a requirement of the funding source, it must
be built into the solicitation so that the vendor fully understands the expecta-
tions regarding the ownership of customized work products.