Deep Dive: Common elements of collaboration agreements between agencies

An inter-agency collaboration agreement is a written agreement between two or more parties, outlining the terms of collaboration or cooperation to reach one or more common objectives. Such agreements, frequently drafted as an MOU or a Memorandum of Agreement (MOA), establish a legal basis for collaboration and outline participants’ roles and functions; responsibilities; allocation of funds; and short-, medium- and long-term goals. Typical provisions might also include processes for inter-agency information-sharing, investigations, enforcement, training, and external outreach (DHS 2006).

MOUs or MOAs used by ICT regulators can include the following components:

• an introduction to the specific policy problem addressed by the MOU, as well as the goals of the partnership;
• a list of participating agencies, offices, and other governmental bodies included under the MOU;
• a clear articulation of each signatory’s roles, duties, and responsibilities, including when agency/office mandates may overlap;
• the duration of the MOU and timeline for review;
• the legal bases for the MOU, such as the objectives and powers enumerated in the legislation establishing each regulator; and
• the names and contact information of each party’s primary representative for purposes of the agreement (Ofcom 2019).

Introduction and background information

The first section of an agreement usually introduces the signing parties, the topic(s), and relevant background information. The section might include additional information related to the history of the agreement, such as when and how it was established, and which are the goals of their collaboration. It might also include proposed timelines for each desired outcome (Box 1) and the overall agreement.

Box 1. Example collaboration agreement introductory paragraphs

Source: CAK 2015.

In addition, early sections of an agreement may include an initial statement regarding the validity of the agreement and its status as legally binding or not (Box 2).

Box 2. Example clause related to legally binding status

Source: Ofcom 2019; ACMA 2023

Objectives of the agreement

The section on the purpose of the collaboration agreement should include a concise statement discussing the intention of the collaborative or coordinated action that warrants the implementation of the agreement. It also explains how the agencies involved will employ any specific collaborative mechanisms described in the text and under what circumstances. This section informs the remainder of the agreement, with clear and precise goals laying a foundation for properly developing later sections describing how the signatories will work toward the goals described and what would be the outcomes of the collaboration. For example, an agreement’s objectives might include the establishment of a working relationship between the parties and ways to facilitate information-sharing (Box 3).

Box 3. Example collaboration agreement goals

Source: Ofcom 2019; FCC 2003

Information on the relationship, project, or initiative

Collaboration agreements can be structured around stated objectives, enumerating the details of the specific collaborative relationship, project, or initiative to be governed by the document. This section might include several sub-sections and is intended to guide the parties’ actions – whether individually or during joint activities – based on the objectives identified and the roles and powers of the involved parties. However, MOUs and MOAs can also be structured more as framework agreements that include a non-exhaustive list of stated objectives and specific intended activities. Such agreements account for the fact that the collaborative arrangement’s specific goals or plans may evolve over time.

In addition, the signatories may want to outline the shared principles that led them to draft an agreement (Box 4). Similarly, agencies might want to reinforce the idea of an open and collaborative agreement, such as committing to avoid potential conflicts, assisting one another in reaching shared goals, and not intentionally negatively affecting the other signatories.

Box 4. Example of shared collaboration principles

Source: Competition Commission of South Africa 2021

The parties may also choose to agree on specific terminology to avoid confusion or uncertainty in the implementation of the project. The section might include both operational and technical definitions and might include acronyms commonly used in the field (Box 5).

Box 5. Example definitions text

Source: CAK 2015

In addition, considering the differing missions of governmental agencies, it is important to outline additional elements, such as how the initiative is linked with the intended governmental outcomes, the use of research and statistics to support the project, and identifying expected costs and benefits of the initiative. Further, the parties may choose to include language reinforcing the expected outcome of the collaboration, including citing examples of successful or unsuccessful prior initiatives and acknowledging existing initiatives (Box 6).

Box 6. Example other initiatives text

Source: Competition Commission of South Africa 2019

General provisions

Provisions related to the specific relationship or projects may be supplemented by more general subsections, including references to policies, legislation, and regulations; specific requirements of the signatories; periodic evaluations of the collaborative effort; reciprocal duties; and oversight mechanisms.

Such language may also detail the conditions under which the agreement’s provisions come into effect, anticipated timing, and other circumstances such as specific procedures that may be required. Similarly, it may illustrate the conditions under which a party can use or authorize the use of individual or shared resources or how committee members are nominated (Box 7).

Box 7. Example procedural text

Source: ACMA 2023

The agreement might also include obligations on the signatories intended to support the agreement’s goals, such as training, capacity building, financial obligations, and information-sharing (Box 8).

Box 8. Example collaborative agreement information-sharing clause

Source: CAK 2015

This portion of the agreement may also detail relevant legislation or regulations that allow each agency to enter into the agreement and empower them to negotiate, sign, and implement the agreement. Such language provides certainty to all parties and potential readers regarding the scope of each authority’s powers as they relate to collaborative activities (Box 9).

Box 9. Example organizational functions text

Source: ACMA 2019

Additional provisions might incorporate an oversight mechanism and its governance structure. The agreement should also outline additional elements intended to avoid uncertainty or conflicts, such as providing a process to support the agencies in situations such as a conflict of interest or interference with government operations (Box 10).

Box 10. Example governmental operations text

Source: FCC 2003

Finally, the parties often consider the inclusion of frameworks or mechanisms to review and maintain the agreement, including a mechanism to amend the agreement as needed and procedures to periodically evaluate the advancement of the parties’ goals or, conversely, provisions that protect the agreement from unnecessary modification, such as a clause that outlines how the text can be modified (Box 11). A clause to terminate the agreement under specific circumstances may be included as well.

Box 11. Example review, non-variation, and termination text

Source: Competition Commission of South Africa 2021b; ACMA 2021b

Communications and concluding provisions

Collaboration agreements should identify the key points of contact within each signatory agency. At a minimum, this should include the titles of the responsible staff members and may include the contact details of the individuals currently holding the identified positions. This not only enables the participating agencies to identify their counterparts but also provides a level of transparency to other readers of the agreement. Such agreements may also stipulate that communications between the parties are also transmitted to further contact points, such as a chief operations officer, for record-keeping or other tracking purposes.

In addition, collaboration agreements frequently contain provisions similar to contracts employed in a wide range of contexts, including language addressing the treatment of confidential information, dispute resolution provisions, and force majeure.

All such collaborative agreements should be concluded with the date and signatures of the persons representing the signatory agencies.

Inter-agency collaboration agreements are formal instruments to establish the parameters of collaboration that may also be flexible tools that allow the parties to shape the agreement to meet the specific issues or needs faced. To this end, the signatories can incorporate clauses and sections based on the parties involved, their objectives, the legal and regulatory powers available to meet those objectives, and the sensitivity of the parties to certain specific topics (e.g., adding data protection/privacy, security, or national security sections).

References

Australian Communications and Media Authority (ACMA). 2019. Memorandum of Understanding between the Australian Communications and Media Authority and the Office of the Australian Information Commissioner at https://www.acma.gov.au/publications/2019-11/plan/memorandum-understanding-acma-and-oaic.

Australian Communications and Media Authority (ACMA). 2021b. Memorandum of Understanding between the Australian Communications and Media Authority and the Australian Space Agency at https://www.acma.gov.au/publications/2021-07/plan/memorandum-understanding-australian-space-agency-and-acma.

Australian Communications and Media Authority (ACMA). 2023. Memorandum Of Understanding Between The Australian Competition And Consumer Commission And The Australian Communications And Media Authority at https://www.acma.gov.au/sites/default/files/2023-06/acccmoucompilation1%20%28003%29.pdf.

Competition Authority of Kenya (CAK). 2015. Memorandum Of Understanding Between the Competition Authority of Kenya and Central Bank Of Kenya On Effectively Addressing Competition Concerns In The Kenyan Banking Sector at https://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/2015/LN85_2015.pdf.

Competition Commission of South Africa. 2019. Memorandum of Agreement, the Competition Commission of South Africa and The Independent Communications Authority of South Africa at https://www.compcom.co.za/wp-content/uploads/2019/09/MOA-between-the-Competition-Commission-and-ICASA-signed-on-29-August-2019.pdf.

Competition Commission of South Africa. 2021. Memorandum of Understanding between the Competition Commission of South Africa and the National Agricultural Marketing Council at https://www.gov.za/sites/default/files/gcis_document/202108/44981gon723.pdf.

Competition Commission of South Africa. 2021b. Memorandum of Understanding between the Competition Commission of South Africa and the National Empowerment Fund at https://www.gov.za/sites/default/files/gcis_document/202111/45452gon1493.pdf.

Department of Homeland Security (DHS). 2006. Writing Guide for Memorandum of Understanding (MOU) at https://transition.fcc.gov/pshs/docs/clearinghouse/DHS-MemorandumOfUnderstanding.pdf.

Federal Communications Commission. 2003. Memorandum of Understanding between The Federal Communications Commission and The National Telecommunications and Information Administration at https://docs.fcc.gov/public/attachments/DOC-230835A2.pdf.

Ofcom. 2019. Memorandum of Understanding between the Information Commissioner and Ofcom at https://www.ofcom.org.uk/__data/assets/pdf_file/0027/165933/mou-ico-ofcom.pdf.