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  <AMDDATE>July 28, 2005</AMDDATE>
  <FMTR>
    <TITLEPG>
      <CODE>CODE OF FEDERAL REGULATIONS</CODE>
      <PRTPAGE P="1"/>
      <TITLENUM>48</TITLENUM>
      <PARTS>Chapters 7 to 14</PARTS>
      <REVISED>Revised as of October 1, 2005</REVISED>
      <SUBJECT>Federal Acquisition Regulations System</SUBJECT>
      <CONTAINS>Containing a codification of documents of general applicability and future effect</CONTAINS>
      <DATE>As of October 1, 2005</DATE>
      <ANCIL>With Ancillaries</ANCIL>
      <PUB>
        <P>Published by</P>
        <P>Office of the Federal Register</P>
        <P>National Archives and Records</P>
        <P>Administration</P>
      </PUB>
      <SPECED>A Special Edition of the Federal Register</SPECED>
    </TITLEPG>
    <BTITLE>
      <PRTPAGE P="?ii"/>
      <HD SOURCE="HED">U.S. GOVERNMENT OFFICIAL EDITION NOTICE</HD>
      <HD SOURCE="HED">Legal Status and Use of Seals and Logos</HD>
      <GPH DEEP="54" HTYPE="LEFT" SPAN="1">
        <GID>e:\seals\archives.ai</GID>
      </GPH>
      <P>The seal of the National Archives and Records Administration (NARA) authenticates the Code of Federal Regulations (CFR) as the official codification of Federal regulations established under the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the contents of the CFR, a special edition of the Federal Register, shall be judicially noticed. The CFR is prima facie evidence of the original documents published in the Federal Register (44 U.S.C. 1510).</P>
      <P>It is prohibited to use NARA's official seal and the stylized Code of Federal Regulations logo on any republication of this material without the express, written permission of the Archivist of the United States or the Archivist's designee. Any person using NARA's official seals and logos in a manner inconsistent with the provisions of 36 CFR part 1200 is subject to the penalties specified in 18 U.S.C. 506, 701, and 1017.</P>
      <HD SOURCE="HED">Use of ISBN Prefix</HD>
      <P>This is the Official U.S. Government edition of this publication and is herein identified to certify its authenticity. Use of the 0-16 ISBN prefix is for U.S. Government Printing Office Official Editions only. The Superintendent of Documents of the U.S. Government Printing Office requests that any reprinted edition clearly be labeled as a copy of the authentic work with a new ISBN.</P>
      <GPO/>
      <GPH DEEP="18" HTYPE="LEFT" SPAN="1">
        <GID>e:\seals\gpologo.eps</GID>
      </GPH>
      <P>U . S . G O V E R N M E N T P R I N T I N G O F F I C E</P>
      <P>U.S. Superintendent of Documents • Washington, DC 20402-0001</P>
      <P>http://bookstore.gpo.gov</P>
      <P>Phone: toll-free (866) 512-1800; DC area (202) 512-1800</P>
    </BTITLE>
    <TOC>
      <PRTPAGE P="iii"/>
      <HD SOURCE="HED">Table of Contents</HD>
      <PGHD>Page</PGHD>
      <EXPL>
        <SUBJECT>Explanation</SUBJECT>
        <PG>v</PG>
      </EXPL>
      <TITLENO>
        <HD SOURCE="HED">Title 48:</HD>
        <CHAPTI>
          <SUBJECT>Chapter 7—Agency for International Development</SUBJECT>
          <PG>3</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 8—Department of Veterans Affairs</SUBJECT>
          <PG>135</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 9—Department of Energy</SUBJECT>
          <PG>273</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 10—Department of the Treasury</SUBJECT>
          <PG>545</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 12—Department of Transportation</SUBJECT>
          <PG>561</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 13—Department of Commerce</SUBJECT>
          <PG>623</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 14—Department of the Interior</SUBJECT>
          <PG>657</PG>
        </CHAPTI>
      </TITLENO>
      <FAIDS>
        <HD SOURCE="HED">Finding Aids:</HD>
        <SUBJECT>Table of CFR Titles and Chapters</SUBJECT>
        <PG>677</PG>
        <SUBJECT>Alphabetical List of Agencies Appearing in the CFR</SUBJECT>
        <PG>695</PG>
        <SUBJECT>List of CFR Sections Affected</SUBJECT>
        <PG>705</PG>
      </FAIDS>
    </TOC>
    <CITE>
      <PRTPAGE P="iv"/>
      <P>Cite this Code:<E T="01">CFR</E>
      </P>

      <CITEP>To cite the regulations in this volume use title, part and section number. Thus, <E T="01">48 CFR 701.105</E> refers to title 48, part 701, section 105.</CITEP>
    </CITE>
    <EXPLA>
      <PRTPAGE P="v"/>
      <HD SOURCE="HED">Explanation</HD>
      <P>The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.</P>
      <P>Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:</P>
      <IPAR>
        <P SOURCE="P1">Title 1 through Title 16</P>
        <STUB>as of January 1</STUB>
        <P SOURCE="P1">Title 17 through Title 27</P>
        <STUB>as of April 1</STUB>
        <P SOURCE="P1">Title 28 through Title 41</P>
        <STUB>as of July 1</STUB>
        <P SOURCE="P1">Title 42 through Title 50</P>
        <STUB>as of October 1</STUB>
      </IPAR>
      <P>The appropriate revision date is printed on the cover of each volume.</P>
      <SIDEHED>
        <HD SOURCE="HED">LEGAL STATUS</HD>
        <P>The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">HOW TO USE THE CODE OF FEDERAL REGULATIONS</HD>
        <P>The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule.</P>
        <P>To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2005), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">EFFECTIVE AND EXPIRATION DATES</HD>
        <P>Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OMB CONTROL NUMBERS</HD>

        <P>The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. <PRTPAGE P="vi"/>Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OBSOLETE PROVISIONS</HD>
        <P>Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949-1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate volumes. For the period beginning January 1, 2001, a “List of CFR Sections Affected” is published at the end of each CFR volume.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">CFR INDEXES AND TABULAR GUIDES</HD>

        <P>A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR <E T="04">Index and Finding Aids.</E> This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.</P>
        <P>An index to the text of “Title 3—The President” is carried within that volume.</P>
        <P>The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.</P>
        <P>A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">REPUBLICATION OF MATERIAL</HD>
        <P>There are no restrictions on the republication of textual material appearing in the Code of Federal Regulations.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">INQUIRIES</HD>
        <P>For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.</P>

        <P>For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail, <E T="03">fedreg.info@nara.gov.</E>
        </P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">SALES</HD>
        <P>The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-512-1803.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">ELECTRONIC SERVICES</HD>

        <P>The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Privacy Act Compilation are available in electronic format at <E T="03">www.gpoaccess.gov/nara</E> (“GPO Access”). For more information, contact Electronic Information Dissemination Services, U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, <E T="03">gpoaccess@gpo.gov.</E>
          <PRTPAGE P="vii"/>
        </P>

        <P>The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA's web site at <E T="03">www.archives.gov/federal_register.</E> The NARA site also contains links to GPO Access.</P>
      </SIDEHED>
      <SIG>
        <NAME>Raymond A. Mosley,</NAME>
        <POSITION>Director,</POSITION>
        <OFFICE>Office of the Federal Register.</OFFICE>
      </SIG>
      <DATE>October 1, 2005.</DATE>
    </EXPLA>
    <THISTITL>
      <PRTPAGE P="ix"/>
      <HD SOURCE="HED">THIS TITLE</HD>
      <P>Title 48—<E T="04">Federal Acquisition Regulations System</E> is composed of seven volumes. The chapters in these volumes are arranged as follows: Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and chapter 29 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2005.</P>

      <P>The Federal acquisition regulations in chapter 1 are those government-wide acquisition regulations jointly issued by the General Services Administration, the Department of Defense, and the National Aeronautics and Space Administration. Chapters 2 through 99 are acquisition regulations issued by individual government agencies. Parts 1 to 69 in each of chapters 2 through 99 are reserved for agency regulations <E T="03">implementing</E> the Federal acquisition regulations in chapter 1 and are numerically keyed to them. Parts 70 to 99 in chapters 2 through 99 contain agency regulations <E T="03">supplementing</E> the Federal acquisition regulations.</P>
      <P>The OMB control numbers for the Federal Acquisition Regulations System appear in section 1.106 of chapter 1. For the convenience of the user section 1.106 is reprinted in the Finding Aids section of the second volume containing chapter 1 (parts 52 to 99).</P>
      <P>The first volume, containing chapter 1 (parts 1 to 51), includes an index to the Federal acquisition regulations.</P>
      <P>For this volume, Robert J. Sheehan was Chief Editor. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.</P>
    </THISTITL>
  </FMTR>
  <TITLE>
    <LRH>48 CFR Ch. 7 (10-1-05 Edition)</LRH>
    <RRH>Agency for International Development</RRH>
    <CFRTITLE>
      <TITLEHD>
        <PRTPAGE P="1"/>
        <HD SOURCE="HED">Title 48—Federal Acquisition Regulations System</HD>
        <P>(This book contains chapters 7 to 14)</P>
      </TITLEHD>
      <CFRTOC>
        <PTHD>Part</PTHD>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 7</E>—Agency for International Development</SUBJECT>
          <PG>701</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 8</E>—Department of Veterans Affairs</SUBJECT>
          <PG>801</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 9</E>—Department of Energy</SUBJECT>
          <PG>901</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 10</E>—Department of the Treasury</SUBJECT>
          <PG>1033</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 12</E>—Department of Transportation</SUBJECT>
          <PG>1201</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 13</E>—Department of Commerce</SUBJECT>
          <PG>1301</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 14</E>—Department of the Interior</SUBJECT>
          <PG>1401</PG>
        </CHAPTI>
      </CFRTOC>
    </CFRTITLE>
    <CHAPTER>
      <TOC>
        <TOCHD>
          <PRTPAGE P="3"/>
          <HD SOURCE="HED">CHAPTER 7—AGENCY FOR INTERNATIONAL DEVELOPMENT</HD>
        </TOCHD>
        <EDNOTE>
          <HD SOURCE="HED">Editorial Note:</HD>
          <P>Nomenclature changes to chapter 7 appear at 62 FR 40466, July 29, 1997, and corrected at 62 FR 45334, August 27, 1997.</P>
        </EDNOTE>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>701</PT>
          <SUBJECT>Federal Acquisition Regulation System</SUBJECT>
          <PG>5</PG>
          <PT>702</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>10</PG>
          <PT>703</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>12</PG>
          <PT>704</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>12</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>705</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>13</PG>
          <PT>706</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>13</PG>
          <PT>707</PT>
          <SUBJECT>Acquisition planning</SUBJECT>
          <PG>16</PG>
          <PT>709</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>16</PG>
          <PT>711</PT>
          <SUBJECT>Describing agency needs</SUBJECT>
          <PG>16</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>713</PT>
          <SUBJECT>Simplified acquisition procedures</SUBJECT>
          <PG>18</PG>
          <PT>714</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>18</PG>
          <PT>715</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>18</PG>
          <PT>716</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>22</PG>
          <PT>717</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>23</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>719</PT>
          <SUBJECT>Small business programs</SUBJECT>
          <PG>24</PG>
          <PT>722</PT>
          <SUBJECT>Application of labor laws to government acquisition</SUBJECT>
          <PG>28</PG>
          <PT>724</PT>
          <SUBJECT>Protection of privacy and freedom of information</SUBJECT>
          <PG>31</PG>
          <PT>725</PT>
          <SUBJECT>Foreign acquisition</SUBJECT>
          <PG>32</PG>
          <PT>726</PT>
          <SUBJECT>Other socioeconomic programs</SUBJECT>
          <PG>33</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>728</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>37<PRTPAGE P="4"/>
          </PG>
          <PT>731</PT>
          <SUBJECT>Contract cost principles and procedures</SUBJECT>
          <PG>38</PG>
          <PT>732</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>42</PG>
          <PT>733</PT>
          <SUBJECT>Protests, disputes, and appeals</SUBJECT>
          <PG>44</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>734</PT>
          <SUBJECT>Major system acquisition</SUBJECT>
          <PG>47</PG>
          <PT>736</PT>
          <SUBJECT>Construction and architect-engineer contracts</SUBJECT>
          <PG>47</PG>
          <PT>737</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>742</PT>
          <SUBJECT>Contract administration</SUBJECT>
          <PG>49</PG>
          <PT>745</PT>
          <SUBJECT>Government property</SUBJECT>
          <PG>49</PG>
          <PT>747</PT>
          <SUBJECT>Transportation</SUBJECT>
          <PG>50</PG>
          <PT>749</PT>
          <SUBJECT>Termination of contracts</SUBJECT>
          <PG>50</PG>
          <PT>750</PT>
          <SUBJECT>Extraordinary contractual actions</SUBJECT>
          <PG>51</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>752</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>57</PG>
          <PT>753</PT>
          <SUBJECT>Forms</SUBJECT>
          <PG>85</PG>
        </CHAPTI>
        <APPHED>Appendixes A-C to Chapter 7 [Reserved]</APPHED>
        <APP>Appendix D to Chapter 7—Direct USAID Contracts With a U.S. Citizen or a U.S. Resident Alien for Personal Services Abroad</APP>
        <PG>85</PG>
        <APPHED>Appendix E to Chapter 7 [Reserved]</APPHED>
        <APP>Appendix F to Chapter 7—Use of Collaborative Assistance Method for Title XII Activities</APP>
        <PG>110</PG>
        <APPHED>Appendixes G-H to Chapter 7 [Reserved]</APPHED>
        <APP>Appendix I to Chapter 7—USAID's Academic Publication Policy</APP>
        <PG>114</PG>
        <APP>Appendix J to Chapter 7—Direct USAID Contracts With a Cooperating Country National and With a Third Country National for Personal Services Abroad</APP>
        <PG>115</PG>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="5"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 701</EAR>
          <HD SOURCE="HED">PART 701—FEDERAL ACQUISITION REGULATION SYSTEM</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 701.1—Purpose, Authority, Issuance</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>701.105</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 701.3—U.S. Agency for International Development Acquisition Regulation</HD>
              <SECTNO>701.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>701.303</SECTNO>
              <SUBJECT>Publication and codification.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 701.4—Deviations from the FAR or AIDAR</HD>
              <SECTNO>701.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>701.470</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 701.6—Career Development, Contracting Authority, and Responsibilities</HD>
              <SECTNO>701.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>701.602-1</SECTNO>
              <SUBJECT>Authority of contracting officers in resolving audit recommendations.</SUBJECT>
              <SECTNO>701.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <SECTNO>701.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
              <SECTNO>701.603-70</SECTNO>
              <SUBJECT>Designation of contracting officers.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 701.7—Determinations and Findings</HD>
              <SECTNO>701.704</SECTNO>
              <SUBJECT>Content.</SUBJECT>
              <SECTNO>701.707</SECTNO>
              <SUBJECT>Signatory authority.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13236, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 701.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>701.105</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
              <P>(a) The following information collection and record keeping requirements established by USAID have been approved by OMB, and assigned an OMB control number and approval/expiration dates as specified below:</P>
              <GPOTABLE CDEF="s100,10,10,7" COLS="4" OPTS="L2">
                <BOXHD>
                  <CHED H="1">AIDAR segment</CHED>
                  <CHED H="1">OMB control No.</CHED>
                  <CHED H="1">Expiration date</CHED>
                  <CHED H="1">Burden hours per <LI>report</LI>
                  </CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">733.7003(c)</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>40</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.209-70</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>4</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.219-8</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>1</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.245-70</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>.5</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.245-71</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>1</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.7001(a)</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>.5</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.7001(b)</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>.5</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.7002(j)</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>1</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.7003</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>8</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.7004(b)(4)</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>.5</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.7032</ENT>
                  <ENT>0412-0520</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>2</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">752.7033</ENT>
                  <ENT>0412-0536</ENT>
                  <ENT>08/31/2000</ENT>
                  <ENT>4</ENT>
                </ROW>
              </GPOTABLE>
              <P>(b) The information requested by the AIDAR sections listed in paragraph (a) is necessary to allow USAID to prudently administer public funds. It lets USAID make reasonable assessments of contractor capabilities and responsibility of costs. Information is required in order for a contractor and/or its employee to obtain a benefit-usually taking the form of payment under a government contract.</P>

              <P>(c) Public reporting burden for these collections of information is estimated as shown in paragraph (a) of this section. The estimated burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimates or any other aspects of these collections of information, including suggestions for <PRTPAGE P="6"/>reducing the burden, to: U.S. Agency for International (USAID), Office of Procurement, Policy Division (M/OP/P), Room 7.08-082U, 1300 Pennsylvania Avenue, N.W. Washington, D.C. 20523-7801; and Office of Management and Budget (OMB), Paperwork Reduction Project (0412-0520), Washington, D.C. 20503.</P>
              <CITA>[59 FR 33445, June 29, 1994, as amended at 61 FR 39090, July 26, 1996; 62 FR 40466, July 29, 1997; 64 FR 16648, Apr. 6, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 701.3—U.S. Agency for International Development Acquisition Regulation</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>64 FR 42040, Aug. 3, 1999, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>701.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) <E T="03">Responsibility.</E> Subject to the direction of the Administrator, the Director, Office of Procurement (“M/OP Director”) is responsible for:</P>
              <P>(1) Developing and maintaining necessary uniform procurement policies, procedures, and standards;</P>
              <P>(2) Providing assistance to the contracting activities as appropriate;</P>
              <P>(3) Keeping the Administrator and Executive Staff fully informed on procurement matters which should be brought to their attention; and</P>
              <P>(4) All agency head duties and authorities stated in (48 CFR) FAR subpart 1.3, in accordance with (48 CFR) AIDAR 701.601. These responsibilities include but are not limited to developing, issuing, and maintaining the USAID Acquisition Regulation (“AIDAR”, 48 CFR chapter 7), USAID's supplement to the Federal Acquisition Regulation (48 CFR Chapter 1), in coordination with the General counsel and such other offices as may be appropriate.</P>
              <P>(b) <E T="03">Applicability.</E> (1) Unless a deviation is specifically authorized in accordance with subpart 701.4, or unless otherwise provided, the FAR and AIDAR apply to all contracts (regardless of currency of payment, or whether funds are appropriated or non-appropriated) to which USAID is a direct party.</P>
              <P>(2) At Missions where joint administrative services are arranged, procuring offices may apply the Department of State Acquisition Regulation (48 CFR chapter 6) for all administrative and technical support contracts except in defined areas. The Office of Administrative Services will furnish the defined areas and administrative guidelines for procurement to the overseas Missions. Administrative and local support services include the procurement accountability, maintenance and disposal of all office and residential equipment and furnishings, vehicles and expendable supplies purchased with administrative and/or technical support funds, either dollars or local currency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>701.303</SECTNO>
              <SUBJECT>Publication and codification.</SUBJECT>
              <P>(a) The AIDAR is USAID's Acquisition Regulation supplementing the FAR (48 CFR chapter 1) and is published as chapter 7 of Title 48, Code of Federal Regulations. AIDAR Circulars shall be used to promulgate changes to the AIDAR and shall be published in compliance with (48 CFR) FAR part 1.</P>
              <P>(b) <E T="03">Appendices.</E> Significant procurement policies and procedures that do not correspond to or conveniently fit into the FAR system described in FAR 1.1 and 1.303 may be published as Appendices to the AIDAR. Appendices follow the main text of the AIDAR in a section entitled “Appendices to Chapter 7” and contain a table of contents and the individual appendices identified by letter and subject title (<E T="03">e.g.,</E> “Appendix D—Direct USAID Contracts with a U.S. Citizen or a U.S. Resident Alien for Personal Services Abroad”).</P>
              <P>(c) Only the M/OP Director has the authority to issue internal agency guidance applicable to all agency contracts. The heads of the various USAID contracting activities (see subparts 701.6 and 702.10) may issue operating instructions and procedures consistent with the FAR, AIDAR, and other Agency regulations, policies, and procedures for application within their organizations. One copy of each such issuance shall be forwarded to the Office of Procurement, Policy Division (M/OP/POL). Insofar as possible, such material will be numerically keyed to the AIDAR.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="7"/>
            <HD SOURCE="HED">Subpart 701.4—Deviations from the FAR or AIDAR</HD>
            <SECTION>
              <SECTNO>701.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>It is the policy of USAID that deviation from the mandatory requirements of the FAR and AIDAR shall be kept at a minimum and be granted only if it is essential to effect necessary procurement and when special and exceptional circumstances make such deviation clearly in the best interest of the Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>701.470</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
              <P>(a) Deviation from the FAR or AIDAR affecting one contract or transaction.</P>
              <P>(1) Deviations which affect only one contract or procurement will be made only after prior approval by the head of the contracting activity. Deviation requests containing the information listed in paragraph (c) of this section shall be submitted sufficiently in advance of the effective date of such deviation to allow adequate time for consideration and evaluation by the head of the contracting activity.</P>
              <P>(2) Requests for such deviations may be initiated by the responsible USAID contracting officer who shall obtain clearance and approvals as may be required by the head of the contracting activity. Prior to submission of the deviation request to the head of the contracting activity for approval, the contracting officer shall obtain written comments from the Office of Procurement, Policy Division (M/OP/P), hereinafter referred to as “M/OP/P”. The M/OP/P shall normally be allowed 10 working days prior to the submission of the deviation request to the head of the contracting activity to review the request and to submit comments. If the exigency of the situation requires more immediate action, the requesting office may arrange with the M/OP/P for a shorter review period. In addition to a copy of the deviation request, the M/OP/P shall be furnished any background or historical data which will contribute to a more complete understanding of the deviation. The comments of the M/OP/P shall be made a part of the deviation request file which is forwarded to the head of the contracting activity.</P>
              <P>(3) Coordination with the Office of General Counsel, as appropriate, should also be effected prior to approval of a deviation by the head of the contracting activity.</P>
              <P>(b) Class deviations from the FAR or AIDAR: Class deviations are those which affect more than one contract or contractor.</P>
              <P>(1) Class deviations from the AIDAR will be processed in the same manner as prescribed in paragraph (a) of this section. Individual heads of contracting activities have authority to approve class deviations affecting only contracts within their own contracting activities, except that the Director, M/OP, has authority to approve class deviations that affect more than one contracting activity.</P>
              <P>(2) Class deviations from the FAR shall be considered jointly by USAID and the Chairperson of the Civilian Agency Acquisition Council (C/CAAC) (FAR 1.404) unless, in the judgement of the head of the contracting activity, after due consideration of the objective of uniformity, circumstances preclude such consultation. The head of the contracting activity shall certify on the face of the deviation the reason for not coordinating with the C/CAAC. In such cases, the M/OP/P, shall be responsible for notifying the C/CAAC of the class deviation.</P>
              <P>(3) Class deviations from the FAR shall be processed as follows:</P>
              <P>(i) The request shall be processed in the same manner as paragraph (a) of this section, except that the M/OP/P, shall be allowed 15 working days prior to the submission of the deviation request to the head of the contracting activity to effect the necessary coordination with the C/CAAC and to submit comments. If the exigency of the situation requires more immediate action, the requesting office may arrange with the M/OP/P for a shorter review and coordination period. The comments of the C/CAAC and the M/OP/P shall be made a part of the deviation request file which is forwarded to the head of the contracting activity.</P>

              <P>(ii) The request shall be processed in the same manner as paragraph (a) of this section if the request is not being jointly considered by USAID and the C/CAAC.<PRTPAGE P="8"/>
              </P>
              <P>(4) Deviations involving basic agreements or other master type contracts are considered to involve more than one contract.</P>
              <P>(5) Unless the approval is sooner rescinded, class deviations shall expire 2 years from the date of approval provided that deviation authority shall continue to apply to contracts or task orders which are active at the time the class deviation expires. Authority to continue the use of such deviation beyond 2 years may be requested in accordance with the procedures prescribed in paragraph (a) of this section.</P>
              <P>(6) Expiration dates shall be shown on all class deviations.</P>
              <P>(c) Requests for deviation shall contain a complete description of the deviation, the effective date of the deviation, the circumstances in which the deviation will be used, a specific reference to the regulation being deviated from, an indication as to whether any identical or similar deviations have been approved in the past, a complete justification of the deviation including any added or decreased cost to the Government, the name of the contractor, and the contract or task order number.</P>
              <P>(d) Register of deviations: Separate registers shall be maintained by the procuring activities of the deviations granted from the FAR and AIDAR. Each deviation shall be recorded in its appropriate register and shall be assigned a control number as follows: the symbol of the procuring activity, the abbreviation “DEV”, the fiscal year, the serial number [issued in consecutive order during each fiscal year] assigned to the particular deviation and the suffix “c” if it is a class deviation, e.g. CM-DEV-85-1, CM-DEV-85-2c. The control number shall be embodied in the document authorizing the deviation and shall be cited in all references to the deviation.</P>
              <P>(e) Central record of deviations: Copies of approved deviations shall be furnished promptly to the M/OP/P, who shall be responsible for maintaining a central record of all deviations that are granted.</P>
              <P>(f) Semiannual report of class deviations:</P>
              <P>(1) USAID contracting officers shall submit a semiannual report to the M/OP/P of all contract actions effected under class deviations to the FAR and AIDAR which have been approved pursuant to paragraph (b) of this section.</P>
              <P>(2) The report shall contain the applicable deviation control number, the contractor's name, contract number and task order number (if appropriate).</P>
              <P>(3) The report shall cover the 6-month periods ending June 30 and December 31, respectively, and shall be submitted within 20 working days after the end of the reporting period.</P>
              <CITA>[49 FR 13236, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 55 FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33445, June 29, 1994; 61 FR 39090, July 26, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 701.6—Career Development, Contracting Authority, and Responsibilities</HD>
            <SECTION>
              <SECTNO>701.601</SECTNO>
              <SUBJECT>General</SUBJECT>
              <P>(a) (1) Pursuant to the delegations in ADS 103.5.10, the M/OP Director is authorized to act as the Head of the Agency for all purposes described in the Federal Acquisition Regulation (FAR, 48 CFR Chapter 1), except for the authority in (48 CFR) FAR sections 6.302-7(a)(2), 6.302-7(c)(1), 17.602(a), 19.201(c), 27.306(a), 27.306(b), and 30.201-5, or where the “head of the agency” authority is expressly not delegable under the FAR or AIDAR. Further, the M/OP Director is responsible for implementing the procurement related aspects of the Foreign Assistance Act, Executive Order 11223, the Office of Federal Procurement Policy Act, and other statutory and Executive Branch procurement policies and requirements applicable to USAID operations, except for those authorities and responsibilities delegated to the Procurement Executive as specified in ADS 103.5.10f.</P>
              <P>(2) The M/OP Director has specified authority to:</P>
              <P>(i) Select and appoint contracting officers and terminate their appointments in accordance with section 1.603 of the Federal Acquisition Regulation; and</P>
              <P>(ii) Exercise in person or by delegation the authorities stated in subpart 1.4 of the Federal Acquisition Regulation with regard to deviations from that regulation.</P>

              <P>(b) Except as otherwise prescribed, the head of each contracting activity <PRTPAGE P="9"/>(as defined in 702.170) is responsible for the procurement of supplies and services under or assigned to the procurement cognizance of his or her activity. The heads of USAID contracting activities are vested with broad authority to carry out the programs and activities for which they are responsible. This authority includes authority to execute contracts and the establishment of procurement policies, procedures, and standards appropriate for their programs and activities, subject to government-wide and USAID requirements and restrictions, such as those found at 701.376-4 and particularly 701.603-70, the USAID policy regarding the direct-hire status of contracting officers.</P>
              <P>(c) The authority of heads of contracting activities to execute contracts is limited as follows:</P>
              <P>(1) Director, Office of U.S. Foreign Disaster Assistance. Authority to execute contracts for disaster relief purposes during the first 72 hours of a disaster in a cumulative total amount not to exceed $500,000. Authority to execute simplified acquisitions up to $50,000 at any time. May issue warrants for simplified acquisitions up to $50,000 to qualified individuals on his or her staff.</P>
              <P>(2) Director, Center for Human Capacity Development (G/HCD). Authority to execute simplified acquisitions up to $10,000. Unlimited authority for procuring participant training based on published catalog prices, using M/OP/E approved forms. May issue warrants for simplified acquisitions up to $10,000 to qualified individuals on his or her staff.</P>
              <P>(3) Overseas heads of contracting activities. Authority to sign contracts where the cumulative amount of the contract, as amended, does not exceed $250,000 (or local currency equivalent) for personal services contracts or $100,000 (or local currency equivalent) for all other contracts. May issue warrants for simplified acquisitions up to $50,000 to qualified individuals on his or her staff.</P>
              <CITA>[53 FR 4980, Feb. 19, 1988, as amended at 55 FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 58 FR 8702, Feb. 17, 1993; 59 FR 33445, June 29, 1994; 60 FR 11912, Mar. 3, 1995; 61 FR 39090, July 26, 1996; 62 FR 40466, July 29, 1997; 64 FR 42041, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>701.602-1</SECTNO>
              <SUBJECT>Authority of contracting officers in resolving audit recommendations.</SUBJECT>
              <P>With the exception of termination settlements subject to part 749, Termination of Contracts, contracting officers shall have the authority to negotiate and enter into settlerments with contractors for costs questioned under audit reports, or to issue a contracting officer's final decision pursuant to the disputes clauses (in the event that questioned costs are not settled by negotiated agreement) in accordance with ADS Chapter 591.5.20. The negotiated settlement or final decision shall be final, subject only to a contractor's appeal, either under the provisions of the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), or to the courts. Policies and procedures for resolving audit recommendations are in accordance with ADS Chapters 591 and 592.</P>
              <CITA>[62 FR 40466, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>701.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) <E T="03">Policy.</E> (1) [Reserved]</P>
              <P>(2) In order to maintain management oversight and controls on unauthorized commitments, authority to ratify unauthorized commitments within USAID is reserved to the M/OP Director.</P>
              <CITA>[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>701.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>701.603-70</SECTNO>
              <SUBJECT>Designation of contracting officers.</SUBJECT>

              <P>A contracting officer represents the U.S. Government through the exercise of his/her delegated authority to negotiate, sign, and administer contracts on behalf of the U.S. Government. The contracting officer's duties are sensitive, specialized, and responsible. In order to insure proper accountability, and to preclude possible security, conflict of interest, or jurisdiction problems, it is USAID policy that USAID <PRTPAGE P="10"/>contracting officers must be U.S. citizen direct-hire employees of the U.S. Government.</P>
              <CITA>[49 FR 13236, Apr. 3, 1984, as amended at 61 FR 39091, July 26, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 701.7—Determinations and Findings</HD>
            <SECTION>
              <SECTNO>701.704</SECTNO>
              <SUBJECT>Content.</SUBJECT>
              <P>There is no USAID-prescribed format or form for determinations and findings (D&amp;Fs). D&amp;Fs are to contain the information specified in FAR 1.704 and any information which may be required by the FAR or AIDAR section under which the D&amp;F is issued.</P>
              <CITA>[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40466, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>701.707</SECTNO>
              <SUBJECT>Signatory authority.</SUBJECT>
              <P>Unless otherwise specified in the FAR or AIDAR section under which the D&amp;F is issued, the Contracting Officer is the signing official.</P>
              <CITA>[58 FR 8702, Feb. 17, 1993]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 702</EAR>
          <HD SOURCE="HED">PART 702—DEFINITIONS OF WORDS AND TERMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 702.170—Definitions</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>702.170-1</SECTNO>
              <SUBJECT>USAID.</SUBJECT>
              <SECTNO>702.170-2</SECTNO>
              <SUBJECT>Administrator.</SUBJECT>
              <SECTNO>702.170-3</SECTNO>
              <SUBJECT>Contracting activities.</SUBJECT>
              <SECTNO>702.170-4</SECTNO>
              <SUBJECT>Cooperating country.</SUBJECT>
              <SECTNO>702.170-5</SECTNO>
              <SUBJECT>Cooperating country national (CCN).</SUBJECT>
              <SECTNO>702.170-6</SECTNO>
              <SUBJECT>Executive agency.</SUBJECT>
              <SECTNO>702.170-7</SECTNO>
              <SUBJECT>Foreign Assistance Act.</SUBJECT>
              <SECTNO>702.170-8</SECTNO>
              <SUBJECT>Government, Federal, State, local and political subdivisions.</SUBJECT>
              <SECTNO>702.170-9</SECTNO>
              <SUBJECT>Head of agency.</SUBJECT>
              <SECTNO>702.170-10</SECTNO>
              <SUBJECT>Head of the contracting activity.</SUBJECT>
              <SECTNO>702.170-11</SECTNO>
              <SUBJECT>Mission.</SUBJECT>
              <SECTNO>702.170-12</SECTNO>
              <SUBJECT>Overseas.</SUBJECT>
              <SECTNO>702.170-13</SECTNO>
              <SUBJECT>Procurement Executive.</SUBJECT>
              <SECTNO>702.170-14</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>702.170-15</SECTNO>
              <SUBJECT>Third country national (TCN).</SUBJECT>
              <SECTNO>702.170-16</SECTNO>
              <SUBJECT>U.S. national (USN).</SUBJECT>
              <SECTNO>702.170-17</SECTNO>
              <SUBJECT>Automated Directives System.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 702.270—Definitions Clause</HD>
              <SECTNO>702.270-1</SECTNO>
              <SUBJECT>Definitions clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13238, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 702.170—Definitions</HD>
            <SECTION>
              <SECTNO>702.170-1</SECTNO>
              <SUBJECT>USAID.</SUBJECT>
              <P>
                <E T="03">USAID</E> means the U.S. Agency for International Development and its predecessor agencies, including the International Cooperation Administration (ICA).</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-2</SECTNO>
              <SUBJECT>Administrator.</SUBJECT>
              <P>
                <E T="03">Administrator</E> means the Administrator or Deputy Administrator of the U.S. Agency for International Development.</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-3</SECTNO>
              <SUBJECT>Contracting activities.</SUBJECT>
              <P>The contracting activities within USAID are:</P>
              <P>(a) <E T="03">The USAID/Washington activities.</E> The contracting activities located in Washington are the Office of Procurement, Office of Foreign Disaster Assistance, and Center for Human Capacity Development (G/HCD). Subject to the limitations stated in 702.170-10, these contracting activities are responsible for procurement related to programs and activities for their areas. The Office of Procurement is responsible for procurements which do not fall within the responsibility of other contracting activities, or which are otherwise assigned to it.</P>
              <P>(b) <E T="03">The overseas field contracting activities.</E> Each USAID Mission or post overseas is a contracting activity, responsible for procurement related to its programs and activities, subject to the limitations in 702.170-10(b), which sets forth the contracting authority for Mission Directors and principal USAID officers at posts.</P>
              <CITA>[50 FR 16085, Apr. 24, 1985, as amended at 50 FR 40528, Oct. 4, 1985; 50 FR 50302, Dec. 10, 1985; 51 FR 20651, June 6, 1986; 56 FR 67224, Dec. 30, 1991; 61 FR 39091, July 26, 1996; 62 FR 40466, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-4</SECTNO>
              <SUBJECT>Cooperating country.</SUBJECT>
              <P>
                <E T="03">Cooperating country</E> means a foreign country in which there is a program or activity administered by USAID.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="11"/>
              <SECTNO>702.170-5</SECTNO>
              <SUBJECT>Cooperating country national (CCN).</SUBJECT>
              <P>
                <E T="03">Cooperating country national (CCN)</E> means an individual who is a cooperating country citizen or a non-cooperating country citizen lawfully admitted for permanent residence in the cooperating country.</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-6</SECTNO>
              <SUBJECT>Executive agency.</SUBJECT>
              <P>
                <E T="03">Executive agency</E> includes the U.S. Agency for International Development (USAID) and its predecessor agencies, including the International Cooperation Administration.</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-7</SECTNO>
              <SUBJECT>Foreign Assistance Act.</SUBJECT>
              <P>
                <E T="03">Foreign Assistance Act</E> means the Foreign Assistance Act of 1961, as amended (22 U.S.C., Chapter 32).</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-8</SECTNO>
              <SUBJECT>Government, Federal, State, local and political subdivisions.</SUBJECT>
              <P>As used in the FAR and AIDAR, these terms do not refer to foreign entities except as otherwise stated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-9</SECTNO>
              <SUBJECT>Head of agency.</SUBJECT>
              <P>
                <E T="03">Head of agency</E> means, for USAID, the Administrator, and the Deputy Administrator, and in accordance with the responsibilities and limitations set forth in 701.601(a)(1), the M/OP Director.</P>
              <CITA>[50 FR 52780, Dec. 26, 1985, as amended at 64 FR 42041, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-10</SECTNO>
              <SUBJECT>Head of the contracting activity.</SUBJECT>
              <P>(a) The heads of USAID contracting activities are listed below. The limits of their contracting authority are set forth in 701.601.</P>
              <P>(1) USAID/Washington Heads of Contracting Activities:</P>
              <P>(i) Director, Office of Procurement;</P>
              <P>(ii) Director, Office of U.S. Foreign Disaster Assistance; and</P>
              <P>(iii) Director, Center for Human Capacity Development (G/HCD).</P>
              <P>(2) Overseas Heads of Contracting Activities: Each Mission Director or principal USAID officer at post (e.g. USAID Representative, USAID Affairs Officer, etc.)</P>
              <P>(b) Individuals serving in the positions listed in (a)(1) and (a)(2) of this section in an “Acting” capacity may exercise the authority delegated to that position.</P>
              <CITA>[53 FR 4980, Feb. 19, 1988, as amended at 56 FR 67224, Dec. 30, 1991; 61 FR 39091, July 26, 1996; 62 FR 40466, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-11</SECTNO>
              <SUBJECT>Mission.</SUBJECT>
              <P>
                <E T="03">Mission</E> means the USAID mission or the principal USAID office or representative (including an embassy designated to so act) in a foreign country in which there is a program or activity administered by USAID.</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-12</SECTNO>
              <SUBJECT>Overseas.</SUBJECT>
              <P>
                <E T="03">Overseas</E> means outside the United States, its possessions, and Puerto Rico.</P>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-13</SECTNO>
              <SUBJECT>Procurement Executive.</SUBJECT>
              <P>“Procurement Executive” is synonymous with “Senior Procurement Executive” as defined in FAR 2.101 and means the USAID official who is responsible for the management direction of USAID's assistance and acquisition (“A&amp;A”) system, as so delegated and more fully described in ADS 103.5.10f.</P>
              <CITA>[64 FR 42041, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-14</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-15</SECTNO>
              <SUBJECT>Third country national (TCN).</SUBJECT>
              <P>
                <E T="03">Third country national (TCN)</E> means an individual who is neither a cooperating country national nor a U.S. national, but is a citizen of a country included in Geographic Code 935 (see 22 CFR 228.3).</P>
              <CITA>[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985, as amended at 62 FR 40466, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-16</SECTNO>
              <SUBJECT>U.S. national (USN).</SUBJECT>
              <P>
                <E T="03">U.S. national (USN)</E> means an individual who is a U.S. citizen or a non-U.S. citizen lawfully admitted for permanent residence in the United States.</P>
              <CITA>[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>702.170-17</SECTNO>
              <SUBJECT>Automated Directives System.</SUBJECT>

              <P>“Automated Directives System” (“ADS”) sets forth the Agency's policies and essential procedures, as well <PRTPAGE P="12"/>as supplementary informational references. It contains six functional series, interim policy updates, valid USAID handbook chapters, a resource library, and a glossary. References to “ADS” throughout this chapter 7 are references to the Automated Directives System. Procurement-related sections of this system are accessible to the general public at the following internet address: <E T="03">http://www.info.usaid.gov/pubs/ads.</E> The entire ADS is available on the ADS Compact Disk (ADS CD), which may be purchased from the Agency at cost by submitting a completed ADS CD order form. To request a fax copy of the ADS CD order form, send an e-mail with your fax number to <E T="03">ADS@USAID.GOV.</E>
              </P>
              <CITA>[64 FR 42041, Aug. 3, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 702.270—Definitions Clause</HD>
            <SECTION>
              <SECTNO>702.270-1</SECTNO>
              <SUBJECT>Definitions clause.</SUBJECT>
              <P>Use the appropriate clause in 752.202-1, in addition to the clause in FAR 52.202-1.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 703</EAR>
          <HD SOURCE="HED">PART 703—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 703.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>703.104-5</SECTNO>
              <SUBJECT>Disclosure, protection, and marking of proprietary and source information.</SUBJECT>
              <SECTNO>703.104-10.1</SECTNO>
              <SUBJECT>Violations or possible violations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 703.1—Safeguards</HD>
            <SECTION>
              <SECTNO>703.104-5</SECTNO>
              <SUBJECT>Disclosure, protection, and marking of proprietary and source information.</SUBJECT>
              <P>A Contracting Office may authorize release of proprietary and/or source selection information outside the Government for evaluation purposes pursuant to FAR 15.305(c) and (AIDAR) 48 CFR 715.305(c).</P>
              <CITA>[64 FR 16648, Apr. 6, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>703.104-10.1</SECTNO>
              <SUBJECT>Violations or possible violations.</SUBJECT>
              <P>Requests for concurrence under paragraph (a)(1) of FAR 3.104-10 shall be forwarded to one level above the Contracting Officer.</P>
              <CITA>[64 FR 16648, Apr. 6, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 704</EAR>
          <HD SOURCE="HED">PART 704—ADMINISTRATIVE MATTERS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 704.4—Safeguarding Classified Information Within Industry</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>704.404</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart 704.8—Contract Files [Reserved]</RESERVED>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 704.4—Safeguarding Classified Information Within Industry</HD>
            <SECTION>
              <SECTNO>704.404</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>If the contract involves access to classified (“Confidential”, “Secret”, or “Top Secret”), or administratively controlled (“Sensitive But Unclassified”) information, use the contract clause in 752.204-2.</P>
              <CITA>[49 FR 13239, Apr. 3, 1984. Redesignated at 54 FR 16122, Apr. 21, 1989, as amended at 62 FR 40467, July 29, 1997]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart 704.8—Contract Files [Reserved]</RESERVED>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="13"/>
        <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 705</EAR>
          <HD SOURCE="HED">PART 705—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>705.002</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 705.2—Synopsis of Proposed Contract Actions</HD>
              <SECTNO>705.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>705.207</SECTNO>
              <SUBJECT>Preparation and transmittal of certain synopses.</SUBJECT>
              <SECTNO>705.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp., p. 435; 40 U.S.C. 474.</P>
          </AUTH>
          <SECTION>
            <SECTNO>705.002</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>(a) USAID's Office of Small and Disadvantaged Business Utilization maintains an USAID Consultant Registry Information System (ACRIS), which serves as a reference source and an indication of a prospective contractor's interest in performing USAID contracts. Prospective contractors are invited to file the appropriate form (Standard Forms 254/255, Architect-Engineer and Related Services Questionnaire; or USAID Form 1420-50, USAID Consultant Registry Information System (ACRIS) Organization and Individual Profile) with USAID's Office of Small and Disadvantaged Business Utilization (Department of State, U.S. Agency for International Development, Washington, DC 20523-1414—Attention: Office of Small and Disadvantaged Business Utilization). These forms should be updated annually.</P>
            <P>(b) USAID policy is to include all Commerce Business Daily Notices and solicitations on the Internet.</P>
            <CITA>[50 FR 40976, Oct. 8, 1985, and 50 FR 51396, Dec. 17, 1985, as amended at 52 FR 21058, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 62 FR 40467, July 29, 1997]</CITA>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 705.2—Synopsis of Proposed Contract Actions</HD>
            <SECTION>
              <SECTNO>705.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) The head of the U.S. Agency for International Development has determined after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that advance notice is not appropriate or reasonable for contract actions described in 706.302-70(b)(1) through (b)(3).</P>
              <P>(c) Advance notice is not required for contract actions undertaken in accordance with 706.302-71.</P>
              <CITA>[51 FR 42845, Nov. 26, 1986, as amended at 54 FR 28069, July 5, 1989; 55 FR 8469, Mar. 8, 1990; 55 FR 39154, Sept. 25, 1990; 56 FR 27208, June 13, 1991; 57 FR 5235, Feb. 13, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>705.207</SECTNO>
              <SUBJECT>Preparation and transmittal of certain synopses.</SUBJECT>
              <P>The responsible contracting officer shall notify USAID's Office of Small and Disadvantaged Business Utilization (OSDBU) at least seven business days before publicizing a solicitation in the Commerce Business Daily for an acquisition:</P>
              <P>(a) Which is to be funded from amounts referred to in section 706.302-71(a); and</P>
              <P>(b) Which is expected to exceed $100,000.</P>
              <FP>For exceptions, see 726.7005.</FP>
              <CITA>[56 FR 27208, June 13, 1991, as amended at 62 FR 40467, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>705.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>(a) The M/OP Director, acting as head of the Agency under the authority of 701.601(a)(1), hereby authorizes USAID contracting officers to place paid advertisements and notices in newspapers and periodicals. Contracting officers shall document the contract file to reflect consideration of the requirements of (48 CFR) FAR 5.101(b)(4).</P>
              <CITA>[64 FR 5006, Feb. 2, 1999, as amended at 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 706</EAR>
          <HD SOURCE="HED">PART 706—COMPETITION REQUIREMENTS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>706.003</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SUBPART>
              <RESERVED>Subparts 706.1-706.2 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="14"/>
              <HD SOURCE="HED">Subpart 706.3—Other Than Full and Open Competition</HD>
              <SECTNO>706.302-5</SECTNO>
              <SUBJECT>Authorized or required by statute.</SUBJECT>
              <SECTNO>706.302-70</SECTNO>
              <SUBJECT>Impairment of foreign aid programs.</SUBJECT>
              <SECTNO>706.302-71</SECTNO>
              <SUBJECT>Small disadvantaged businesses.</SUBJECT>
              <SECTNO>706.303-1</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 706.5—Competition Advocates</HD>
              <SECTNO>706.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp., p. 435; 40 U.S.C. 474.</P>
          </AUTH>
          <SECTION>
            <SECTNO>706.003</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>
              <E T="03">Procuring activity</E> means “contracting activity”, as defined in 702.170-3.</P>
            <CITA>[50 FR 40528, Oct. 4, 1985]</CITA>
          </SECTION>
          <SUBPART>
            <RESERVED>Subparts 706.1-706.2 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 706.3—Other Than Full and Open Competition</HD>
            <SECTION>
              <SECTNO>706.302-5</SECTNO>
              <SUBJECT>Authorized or required by statute.</SUBJECT>
              <P>Certain annual appropriations acts authorize USAID to contract with certain disadvantaged enterprises using other than full and open competition. The provisions implementing this authority are set forth in 706.302-71 and part 726.</P>
              <CITA>[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40467, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>706.302-70</SECTNO>
              <SUBJECT>Impairment of foreign aid programs.</SUBJECT>
              <P>(a) <E T="03">Authority.</E> (1) Citation: 40 U.S.C. 474.</P>
              <P>(2) Full and open competition need not be obtained when it would impair or otherwise have an adverse effect on programs conducted for the purposes of foreign aid, relief, and rehabilitation.</P>
              <P>(b) <E T="03">Application.</E> This authority may be used for:</P>
              <P>(1) An award under section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, involving a personal services contractor serving abroad;</P>
              <P>(2) An award of $250,000 or less by an overseas contracting activity;</P>
              <P>(3)(i) An award for which the Assistant Administrator responsible for the project or program makes a formal written determination, with supporting findings, that compliance with full and open competition procedures would impair foreign assistance objectives, and would be inconsistent with the fulfillment of the foreign assistance program; or</P>
              <P>(ii) Awards for countries, regions, projects, or programs for which the Administrator of USAID makes a formal written determination, with supporting findings, that compliance with full and open competition procedures would impair foreign assistance objectives, and would be inconsistent with the fulfillment of the foreign assistance program.</P>
              <P>(4) Awards under AIDAR 715.370-1 (Title XII selection procedure—general) or 715.370-2 (Title XII selection procedure—collaborative assistance).</P>
              <P>(5) An award for the continued provision of highly specialized services when award to another resource would result in substantial additional costs to the government or would result in unacceptable delays.</P>
              <P>(c) <E T="03">Limitations.</E> (1) Offers shall be requested from as many potential offerors as is practicable under the circumstances. While the authority at 706.302-70(b)(5) is for use when the contracting officer determines that the incumbent contractor is the only practicable, potential offeror, the requirement to publicize the intended award, as required in FAR 5.201, still applies.</P>
              <P>(2) The contract file must include appropriate explanation and support justifying the award without full and open competition, as provided in FAR 6.303, except that determinations made under 706.302-70(b)(3) will not be subject to the requirement for contracting officer certification or to approvals in accord with FAR 6.304.</P>

              <P>(3) The authority in 706.302-70(b)(3)(i) shall be used only when no other authority provided in FAR 6.302 or AIDAR 706.302 is suitable. The specific foreign assistance objective which would be impaired must be identified and explained in the written determination and finding. Prior consultation with the Agency Competition Advocate (see 706.501) is required before executing the written determination and finding, and this consultation must <PRTPAGE P="15"/>be reflected in the determination and finding.</P>
              <P>(4) Use of the authority in 706.302-70(b)(5) for proposed follow-on amendments in excess of one year or over $250,000 is subject to the approval of the Agency Competition Advocate. For all other follow-on amendments using this authority, the contracting officer's certification required in FAR 6.303-2(a)(12) will serve as approval.</P>
              <CITA>[50 FR 40976, Oct. 8, 1985, and 50 FR 51395, Dec. 17, 1985, as amended at 54 FR 28069, July 5, 1989; 54 FR 46389, Nov. 3, 1989; 57 FR 5235, Feb. 13, 1992; 61 FR 39091, July 26, 1996; 62 FR 40467, July 29, 1997; 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>706.302-71</SECTNO>
              <SUBJECT>Small disadvantaged businesses.</SUBJECT>
              <P>(a) <E T="03">Authority.</E> (1) Citations: Sec. 579, Pub. L. 101-167 (Fiscal Year (FY) 1990), Sec. 567, Pub. L. 101-513 (FY 1991), Sec. 567, Pbu. L. 102-145 (FY 1992), Sec. 562, Pub. L. 102-391 (FY 1993), Sec. 558, Pub. L. 103-87 (FY 1994), and Sec. 555, Pub. L. 103-306 (FY 1995).</P>
              <P>(2) Except to the extent otherwise determined by the Administrator, not less than ten percent of the amounts made available through the appropriations cited in paragraph (a)(1) of this section for development assistance and for assistance for famine recovery and development in Africa shall be used only for activities of disadvantaged enterprises (as defined in 726.7002). In order to achieve its goal, USAID is authorized in the cited statutes to use other than full and open competition to award contracts to small business concerns owned and controlled by socially and economically disadvantaged individuals (small disadvantaged businesses as defined in 726.7002), historically black colleges and universities, colleges and universities having a student body of which more than 40 percent of the students are Hispanic Americans, and private voluntary organizations which are controlled by individuals who are socially and economically disadvantaged, as the terms are defined in 726.7002.</P>
              <P>(b) <E T="03">Application.</E> This authority may be used only if the Agency determines in accordance with 726.7004 that:</P>
              <P>(1) The acquisition is to be funded from amounts referred to in paragraph (a) of this section;</P>
              <P>(2) Award of the acquisition to an eligible organization is appropriate to meet the requirement in paragraph (a)(2) of this section; and</P>
              <P>(3) After considering whether the acquisition can be made under the authority of section 8(a), award under section 8(a) is not practicable.</P>
              <P>(c) <E T="03">Limitations.</E> (1) Offers shall be requested from as many potential offerors as is practicable under the circumstances.</P>
              <P>(2) Use of this authority is not subject to the requirements in FAR 6.303 and FAR 6.304, provided that the contract file includes a certification by the contracting officer stating that the procurement is being awarded pursuant to 706.302-71 and that the application requirements and limitations of 706.302-71 (b) and (c) have been complied with.</P>
              <CITA>[56 FR 27208, June 13, 1991, as amended at 58 FR 8702, Feb. 17, 1993; 61 FR 51235, Oct. 1, 1996; 62 FR 40467, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>706.303-1</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
              <P>(a)-(c) [Reserved]</P>
              <P>(d) USAID project procurements are generally not subject to the Trade Agreements Acts of 1979 (see 725.403 of this chapter). To the extent procurements are made under the authority of FAR 6.302-3(a)(2)(i) or FAR 6.302-7 with Operating Expenses (OE) Funds, the Contracting Officer shall send a copy of the justification to the Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20506, ATTN: Director, International Procurement Policy.</P>
              <CITA>[50 FR 16086, Apr. 24, 1985]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 706.5—Competition Advocates</HD>
            <SECTION>
              <SECTNO>706.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>

              <P>The USAID Administrator delegated the authority to designate the agency competition advocate and a competition advocate for each agency procuring activity (see 706.003 of this part) to the M/OP Director. The M/OP Director, under the Administrator's delegation, has designated the M/OP Deputy Director for Policy, Evaluation and Support as the Agency's competition advocate and the deputy head of each <PRTPAGE P="16"/>contracting activity as the competition advocate for each activity. The competition advocate for M/OP is the Deputy Director for Operations. If there is no deputy, the head of the contracting activity is designated the competition advocate for that activity. The competition advocate's duties may not be redelegated, but can be exercised by persons serving as acting deputy (or acting head) of the contracting activity. For definitions of contracting activity and head of contracting activity, see 702.170-3 and 702.170-10, respectively.</P>
              <CITA>[59 FR 33446, June 29, 1994, as amended at 64 FR 5006, Feb. 2, 1999; 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 707</EAR>
          <HD SOURCE="HED">PART 707—ACQUISITION PLANNING</HD>
          <SUBPART>
            <RESERVED>Subpart 707.1—Acquisition Plans [Reserved]</RESERVED>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 709</EAR>
          <HD SOURCE="HED">PART 709—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SUBPART>
              <HD SOURCE="HED">Subpart 709.4—Debarment, Suspension and Ineligibility</HD>
              <SECTNO>709.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 709.5—Organizational Conflicts of Interest</HD>
              <SECTNO>709.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <SECTNO>709.507-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 709.4—Debarment, Suspension and Ineligibility</HD>
            <SECTION>
              <SECTNO>709.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Debarring official</E> in USAID is the M/OP Director.</P>
              <P>
                <E T="03">Suspending official</E> in USAID is the M/OP Director.</P>
              <CITA>[62 FR 40467, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 709.5—Organizational Conflicts of Interest</HD>
            <SECTION>
              <SECTNO>709.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>For purposes of approving waivers or further delegating the authority to approve waivers pursuant to FAR 9.503, the M/OP Director is the Agency head (see AIDAR 701.601(a)(1)). The M/OP Director hereby delegates the authority to approve waivers pursuant to FAR 9.503 to the heads of USAID contracting activities, as defined in AIDAR 702.170-10.</P>
              <CITA>[64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>709.507-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>(a)-(b) [Reserved]</P>
              <P>(c) In order to avoid problems from organizational conflicts of interest that may be discovered after award of a contract, the clause found at 752.209-71 shall be inserted in all contracts whenever the solicitation or resulting contract or both include a provision in accordance with (48 CFR) FAR 9.507-1, or a clause in accordance with (48 CFR) FAR 9.507-2, establishing a restraint on the contractor's eligibility for future contracts.</P>
              <CITA>[58 FR 42255, Aug. 9, 1993, as amended at 64 FR 5006, Feb. 2, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 711</EAR>
          <HD SOURCE="HED">PART 711—DESCRIBING AGENCY NEEDS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>711.002-70</SECTNO>
            <SUBJECT>Metric system waivers.</SUBJECT>
            <SECTNO>711.002-71</SECTNO>
            <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SECTION>
            <SECTNO>711.002-70</SECTNO>
            <SUBJECT>Metric system waivers.</SUBJECT>
            <P>(a) <E T="03">Criteria.</E> The FAR 11.002(b) requirement to use the metric system of measurement for specifications and quantitative data that are incorporated in or required by USAID contracts may be waived when USAID determines in writing that such usage is impractical or is likely to cause U.S. firms to experience significant inefficiencies or the loss of markets.</P>
            <P>(b) <E T="03">Authorization.</E> (1) The USAID Metric Executive (as designated in ADS <PRTPAGE P="17"/>chapter 323), the contracting officer, and the USAID official who approves the procurement requirement are authorized to waive the metric requirement for one of the above reasons. The USAID Metric Executive is authorized to overrule a decision to grant a waiver, or to nullify a blanket waiver made by another approving official so long as a contractor's rights under an executed contract are not infringed upon.</P>
            <P>(2) A blanket waiver for a class of multiple transactions may be issued for a term not to exceed three years.</P>
            <P>(3) When a waiver will be based upon the adverse impact on U.S. firms, clearance from the USAID Metric Executive and the Office of Small and Disadvantaged Business Utilization (SDB) will be obtained prior to authorization.</P>
            <P>(c) <E T="03">Records and reporting.</E> (1) The basis for each waiver and any plans to adapt similar requirements to metric specifications in future procurements should be documented in the contract file.</P>
            <P>(2) Each procurement activity will maintain a log of the waivers from the metric requirements which are authorized for its procurements. The logs shall list the commodity/service being procured, total dollar value of the procured item(s), waiver date, authorizing official, basis for waiver, and USAID actions that can promote metrication and lessen the need for future waivers.</P>
            <P>(3) Within 30 days of the closing of each fiscal year, each USAID/W procurement activity and each Mission will submit a copy of the metric waiver log for the year to the USAID Metric Executive. (Mission logs are to be consolidated in a Mission report for the procurement activity and for the nonprocurement activities maintaining such logs under the USAID Metric Transition Plan.) Repetitive purchases of commercially produced and marketed items and classes of items may be consolidated in reporting procurements that do not exceed $10,000 cumulatively during the reporting period.</P>
            <CITA>[57 FR 23321, June 3, 1992, as amended at 59 FR 33446, June 29, 1994. Redesignated and amended at 61 FR 39091, July 26, 1996. Redesignated and amended at 62 FR 40467, July 29, 1997]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>711.002-71</SECTNO>
            <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            <P>The contracting officer shall insert the clause at 752.211-70 in all USAID-direct solicitations and contracts.</P>
            <CITA>[57 FR 23321, June 3, 1992. Redesignated and amended at 61 FR 39091, July 26, 1996]</CITA>
          </SECTION>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="18"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 713</EAR>
          <HD SOURCE="HED">PART 713—SIMPLIFIED ACQUISITION PROCEDURES</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>713.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 713.1—General</HD>
              <SECTNO>713.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 39091, July 26, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>713.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>The simplified acquisition threshold applies to the cost of supplies and services, exclusive of the cost of transportation and other accessorial costs if their destination is outside the United States.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 713.1—General</HD>
            <SECTION>
              <SECTNO>713.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Accessorial costs</E> means the cost of getting supplies or services to their destination in the cooperating country (and the travel costs of returning personnel to the U.S. or other point of hire). It does not include costs such as allowances or differentials related to maintaining personnel at post which are to be considered as part of the base costs within the simplified acquisition threshold.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 14</EAR>
          <HD SOURCE="HED">PART 714—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 714.4—Opening of Bids and Award of Contract</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>714.406-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <SECTNO>714.406-4</SECTNO>
              <SUBJECT>Disclosure of mistakes after award.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 714.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>714.406-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>The M/OP Director is the designated central authority to make the determinations described in FAR 14.406-3.</P>
              <CITA>[49 FR 13240, Apr. 3, 1984, as amended at 54 FR 46389, Nov. 3, 1989; 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>714.406-4</SECTNO>
              <SUBJECT>Disclosure of mistakes after award.</SUBJECT>
              <P>The M/OP Director is the designated central authority to make the determinations described in FAR 14.406-4.</P>
              <CITA>[49 FR 13240, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 715</EAR>
          <HD SOURCE="HED">PART 715—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 715.3—Source Selection</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>715.303</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>715.303-70</SECTNO>
              <SUBJECT>Responsibilities of USAID evaluation committees.</SUBJECT>
              <SECTNO>715.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
              <SECTNO>715.370</SECTNO>
              <SUBJECT>Alternative source selection procedures.</SUBJECT>
              <SECTNO>715.370-1</SECTNO>
              <SUBJECT>Title XII selection procedure—general.</SUBJECT>
              <SECTNO>715.370-2</SECTNO>
              <SUBJECT>Title XII selection procedure—collaborative assistance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 715.6—Unsolicited Proposals</HD>
              <SECTNO>715.602</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>715.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13240, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="19"/>
            <HD SOURCE="HED">Subpart 715.3—Source Selection</HD>
            <SECTION>
              <SECTNO>715.303</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>715.303-70</SECTNO>
              <SUBJECT>Responsibilities of USAID evaluation committees.</SUBJECT>
              <P>(a) <E T="03">Establishment and composition of USAID evaluation committees.</E> A technical evaluation committee shall be established for each proposed procurement. In each case, the committee shall be composed of a chair representing the cognizant technical office, a representative of the contracting office (who shall be a non-voting member of the committee), and representatives from other concerned offices as appropriate.</P>
              <P>(b) <E T="03">Technical evaluation procedures.</E> (1) The contracting officer will receive all proposals and provide to the chair a listing and copies of the technical proposals and instructions for conducting the evaluation.</P>
              <P>(2) The chair will promptly call a meeting of the committee to evaluate the proposals received. The evaluation shall be based on the evaluation factors set forth in the solicitation document.</P>
              <P>(3) The chair shall prepare and provide to the Contracting Officer written documentation summarizing the results of the evaluation of each proposal, including an assessment of past performance information in accordance with FAR 15.305(a)(2). The documentation shall include narrative justification of the evaluation results.</P>
              <P>(4) The contracting officer is responsible for reviewing the documentation justifying the evaluation results to determine that it is adequate and complete. The contracting officer shall return a justification determined to be inadequate to the chair for revision.</P>
              <P>(5) No member of the USAID evaluation committee shall hold discussions with any offeror before or during the USAID evaluation committee's proceedings, nor shall any information about the proposals be provided to anyone not on the committee without first obtaining the contracting officer's consent.</P>
              <CITA>[61 FR 39091, July 26, 1996. Redesignated and amended at 64 FR 16648, Apr. 6, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>715.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
              <P>(a)(1) [Reserved]</P>

              <P>(2) USAID shall use the information on offerors made available from the NIH Contractor Performance System to evaluate past performance. (Access to the system by USAID contracting office personnel is authorized by the USAID Past Performance Coordinator, E-mail address: <E T="03">AIDNET: Past Performance@op.spu@aidw/Internet: pastperformance@usaid.gov.</E>)</P>
              <P>(b) A justification is to be written by the Contracting Officer and placed in the official file to support the decision to reject all proposals and to cancel the procurement.</P>
              <P>(c) The Contracting Officer may authorize release of proposals outside the Government for evaluation—</P>
              <P>(1) When an Evaluation Assistance Contract (EAC) is required to provide technical advisory or other services relating to the evaluation of proposals; or</P>
              <P>(2) When an individual other than a government employee, known as a Non-Government Evaluator (NGE), is selected to serve as a member of a USAID technical evaluation committee, the Contracting Officer shall obtain a signed and dated certification and agreement from each NGE and EAC that they will safeguard the proposals and information therein and that they perceive no actual or potential conflict of interests. (An acceptable certification appears under ADS Chapter 302).</P>
              <CITA>[64 FR 16648, Apr. 6, 1999; 64 FR 25405, May 11, 1999, as amended at 65 FR 36642, June 9, 2000]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>715.370</SECTNO>
              <SUBJECT>Alternative source selection procedures.</SUBJECT>
              <P>The following selection procedures may be used, when appropriate, for activities covered under Title XII of the Foreign Assistance Act of 1961, as amended.</P>
              <CITA>[64 FR 16649, Apr. 6, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>715.370-1</SECTNO>
              <SUBJECT>Title XII selection procedure—general.</SUBJECT>
              <P>(a) <E T="03">General.</E> The Deputy Administrator has determined, as provided in AIDAR 706.302-70(b)(3)(ii) that use of this Title XII source selection procedure is necessary so as not to impair or affect USAID's ability to administer Title XII of the Foreign Assistance <PRTPAGE P="20"/>Act. This determination is reflected in AIDAR 706.302-70(b)(4). This constitutes authority for other than full and open competition when selecting Title XII institutions to perform Title XII projects.</P>
              <P>(b) <E T="03">Scope of subsection.</E> This subsection prescribes policies and procedures for the selection of institutions eligible under Title XII of the Foreign Assistance Act of 1961, as amended, to perform activities authorized under Title XII.</P>
              <P>(c) <E T="03">Applicability.</E> The provisions of this subsection are applicable when the project office certifies that the activity is authorized under Title XII, and determines that use of the Title XII selection procedure is appropriate.</P>
              <P>(d) <E T="03">Solicitation, evaluation, and selection procedures.</E> (1) Competition shall be sought among eligible Title XII institutions to the maximum practicable extent; this requirement shall be deemed satisfied when a contractor is selected under the procedures of this subsection.</P>
              <P>(2) The project office shall—</P>
              <P>(i) Prepare selection criteria for evaluation of eligible institutions for use in preparing the source list, determining predominantly qualified sources, and selecting the contractor;</P>
              <P>(ii) Prepare an initial list of eligible institutions considered qualified to perform the proposed activity;</P>
              <P>(iii) Provide a statement describing qualifications and areas of expertise considered essential, a statement of work, estimate of personnel requirements, special requirements (logistic support, government furnished property, and so forth) for the contracting officer's use in preparing the request for technical proposal (RFTP).</P>
              <P>(iv) Send a memorandum incorporating the certification and determination required by paragraph (c) of this section, together with the information required by paragraphs (d)(2) (i) through (iii) of this section, with the “Action” copy of the PIO/T to the contracting officer, requesting him/her to prepare and distribute the RFTP.</P>
              <P>(3) Upon receipt and acceptance of the project officer's request, the contracting officer shall prepare the RFTP. The RFTP shall contain sufficient information to enable an offeror to submit a responsive and complete technical proposal. This includes a definitive statement of work, an estimate of the personnel required, and special provisions (such as logistic support, government furnished equipment, and so forth), a proposed contract format, and evaluation criteria. No cost or pricing data will be requested or required by the RFTP. The RFTP will be distributed to the eligible institutions recommended by the project office. The RFTP will be synopsized, as required by FAR 5.201, and will normally allow a minimum of 60 days for preparation and submission of a proposal.</P>
              <P>(4) Upon receipt of responses to the RFTP by the contracting officer, an evaluation committee will be established as provided for in 715.608 of this subpart.</P>
              <P>(5) The evaluation committee will evaluate all proposals in accordance with the criteria set forth in the RFTP, and will prepare a selection memorandum which shall:</P>
              <P>(i) State the evaluation criteria;</P>
              <P>(ii) List all of the eligible institutions whose proposals were reviewed;</P>
              <P>(iii) Report on the ranking and rationale therefor for all proposals;</P>
              <P>(iv) Indicate the eligible institution or institutions considered best qualified.</P>
              <P>(6) The evaluation committee will submit the selection memorandum to the contracting officer for review and approval.</P>
              <P>(7) The contracting officer will either approve the selection memorandum, or return it to the evaluation committee for reconsideration for specified reasons.</P>
              <P>(8) If the selection memorandum is approved, the contracting officer shall obtain cost, pricing, and other necessary data from the recommended institution or institutions and shall conduct negotiations. If a satisfactory contract cannot be obtained, the contracting officer will so advise the evaluation committee. The evaluation committee may then recommend an alternate institution or institutions.</P>
              <CITA>[52 FR 6158, Mar. 2, 1987, as amended at 54 FR 28069, July 5, 1989; 55 FR 6802, Feb. 27, 1990. Redesignated at 64 FR 16648, Apr. 6, 1999]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="21"/>
              <SECTNO>715.370-2</SECTNO>
              <SUBJECT>Title XII selection procedure—collaborative assistance.</SUBJECT>
              <P>(a) <E T="03">General.</E> (48 CFR) AIDAR 706.302-70(b)(4) provides authority for other than full and open competition when selecting Title XII institutions to perform Title XII activities.</P>
              <P>(b) <E T="03">Scope of subsection.</E> This subsection prescribes policies and procedures for the selection of institutions eligible under Title XII of the Foreign Assistance Act of 1961, as amended, to perform activities authorized under Title XII, where USAID has determined, in accordance with paragraph (c) of this subsection, that use of the collaborative assistance contracting system is appropriate. See AIDR Appendix F (of this chapter)—Use of Collaborative Assistance Method for Title XII Activities for a more complete definition and discussion of the collaborative assistance method.</P>
              <P>(c) <E T="03">Determinations.</E> The following findings and determinations must be made prior to initiating any contract actions under the collaborative assistance method:</P>
              <P>(1) The cognizant technical office makes a preliminary finding that an activity:</P>
              <P>(i) Is authorized by Title XII; and</P>
              <P>(ii) Should be classed as collaborative assistance because a continuing collaborative relationship between USAID, the host country, and the contractor is required from design through completion of the activity, and USAID, host country, and contractor participation in a continuing review and evaluation of the activity is essential for its proper execution.</P>
              <P>(2) Based upon this preliminary finding, the cognizant technical office shall establish an evaluation panel consisting of a representative of the cognizant technical office as chairman, a representative of the contracting officer, and any other representatives considered appropriate by the chairman to review the proposed activity for its appropriateness under the collaborative assistance method.</P>
              <P>(3) If supported by the panel's findings, the chairman will make a formal written determination that the collaborative assistance method is the appropriate contracting method for the Title XII activity in question.</P>
              <P>(d) <E T="03">Evaluation and selection.</E> (1) Competition shall be sought among eligible Title XII institutions to the maximum practicable extent; this requirement shall be deemed satisfied when a contractor is selected under the procedures of this section.</P>
              <P>(2) The evaluation panel shall:</P>
              <P>(i) Prepare evaluation and selection criteria;</P>
              <P>(ii) Prepare an initial source list of eligible institutions considered qualified to perform the proposed project; and</P>
              <P>(iii) Evaluate the list, using the evaluation criteria previously determined, for the purpose of making a written determination of the sources considered most capable of performing the project.</P>
              <P>(3) The chairman of the evaluation panel will prepare a memorandum requesting the contracting officer to prepare a request for expressions of interest from qualified sources and setting forth:</P>
              <P>(i) The formal determinations required by paragraph (c) of this section;</P>
              <P>(ii) The evaluation criteria which have been determined; and</P>
              <P>(iii) The recommended source list and the rationale therefor.</P>
              <P>(4) The contracting officer will prepare a request for an expression of interest (REI), containing sufficient information to permit an offeror to determine its interest in the project, and to discuss the project with USAID representatives, if appropriate. The REI should include a concise statement of the purpose of the activity, any special conditions or qualifications considered important, a brief description of the selection procedure and evaluation criteria which will be used, the proposed contract format, and any other information considered appropriate. The REI will be issued to the sources recommended by the panel, and to others, as appropriate; it will be synopsized, as required by FAR 5.201, and it will normally allow a minimum of 60 days for preparation of an expression of interest. Guidelines for preparation of expressions of interest are contained in attachment 1 to AIDAR appendix F.</P>

              <P>(5) The contracting officer will transmit all expressions of interest to the evaluation panel for evaluation and selection recommendation. The panel <PRTPAGE P="22"/>may conduct on site evaluations at its discretion, as part of the evaluation process.</P>
              <P>(6) The chairman of the evaluation panel will prepare a written selection recommendation with supporting justification, recommending that negotiations be conducted with the prospective contractor(s) selected by the evaluation panel. The selection recommendation shall be transmitted to the contracting officer together with the complete official file on the project which was being maintained by the evaluation panel.</P>
              <P>(7) The contracting officer will review the selection recommendation, obtain necessary cost and other data, and proceed to negotiate with the recommended sources.</P>
              <CITA>[52 FR 6159, Mar. 2, 1987, as amended at 54 FR 28069, July 5, 1989; 55 FR 6802, Feb. 27, 1990; 62 FR 40467, July 29, 1997; 62 FR 45334, Aug. 27, 1997; 62 FR 47532, Sept. 9, 1997. Redesignated at 64 FR 16648, Apr. 6, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 715.6—Unsolicited Proposals</HD>
            <SECTION>
              <SECTNO>715.602</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) USAID encourages the submission of unsolicited proposals which contribute new ideas consistent with and contributing to the accomplishment of the Agency's objectives. However, the requirements for contractor resources are normally quite program specific, and thus widely varied, and must be responsive to host country needs. Futher, USAID's projects are usually designed in collaboration with the cooperating country. These factors can limit both the need for, and USAID's ability to use unsolicited proposals. Therefore, prospective offerors are encouraged to contact USAID to determine the Agency's technical and geographical requirements as related to the offeror's interests before preparing and submitting a formal unsolicited proposal.</P>
              <P>(b) USAID's basic policies and procedures regarding unsolicited proposals are those established in FAR subpart 15.6 and this subpart.</P>
              <P>(c) For detailed information on unsolicited proposals, see 715.604; for initial contact point within USAID, see 715.604(c).</P>
              <CITA>[49 FR 13240, Apr. 3, 1984. Redesignated and amended at 64 FR 16648, 16649, Apr. 6, 1999; 64 FR 25405, May 11, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>715.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>
              <P>(a) Information concerning USAID's policies for unsolicited proposals is available from the U.S. Agency for International Development, Evaluation Division, Room 7.08-005, 1300 Pennsylvania Avenue, NW., Washington, DC 20523-7803.</P>
              <P>(b) The information available concerns:</P>
              <P>(1) Contact points within USAID;</P>
              <P>(2) Definitions;</P>
              <P>(3) Characteristics of a suitable proposal;</P>
              <P>(4) Determination of contractor responsibility;</P>
              <P>(5) Organizational conflict of interest;</P>
              <P>(6) Cost sharing; and</P>
              <P>(7) Procedures for submission and evaluation of proposals.</P>
              <P>(c) Initial inquiries and subsequent unsolicited proposals should be submitted to the address specified in paragraph (a) of this section.</P>
              <CITA>[49 FR 13240, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 52 FR 21058, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 56 FR 67224, Dec. 30, 1991; 59 FR 33446, June 29, 1994. Redesignated and amended at 64 FR 16648, 16649, Apr. 6, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 716</EAR>
          <HD SOURCE="HED">PART 716—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 716.3—Cost Reimbursement Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>716.303</SECTNO>
              <SUBJECT>Cost-sharing contracts.</SUBJECT>
              <SECTNO>716.306</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>709.406</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart 716.5 [Reserved]</RESERVED>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381) as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 716.3—Cost Reimbursement Contracts</HD>
            <SECTION>
              <SECTNO>716.303</SECTNO>
              <SUBJECT>Cost-sharing contracts.</SUBJECT>
              <P>(a)-(b) [Reserved]<PRTPAGE P="23"/>
              </P>
              <P>(c) <E T="03">Limitations.</E> In addition to the limitations specified in FAR 16.301-3, prior approval of the M/OP Director (see 701.601(a)(1)) is required in order to use a cost-sharing contract with an educational institution.</P>
              <CITA>[54 FR 46390, Nov. 3, 1989, as amended at 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>716.306</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>716.406</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>The Contracting Officer shall include the clause at 752.216-70, Award Fee, in solicitations and contracts when an award-fee contract is contemplated.</P>
              <CITA>[64 FR 5007, Feb. 2, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart 716.5 [Reserved]</RESERVED>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 717</EAR>
          <HD SOURCE="HED">PART 717—SPECIAL CONTRACTING METHODS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 717.70—Pharmaceutical Products</HD>
            <SECTION>
              <SECTNO>717.700</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Section 606(c) of the Foreign Assistance Act bars procurement by the Government of drug and pharmaceutical products manufactured outside the United States if their manufacture involves the use of or is covered by an unexpired U.S. patent which has not been held invalid by an unappealed or unappealable court decision unless the manufacture is expressly authorized by the patent owner. Applicable policies and procedures are set forth in USAID Automated Directive System Chapter 312.</P>
              <CITA>[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="24"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 719</EAR>
          <HD SOURCE="HED">PART 719—SMALL BUSINESS PROGRAMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 719.2—Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>719.270</SECTNO>
              <SUBJECT>Small business policies.</SUBJECT>
              <SECTNO>719.271</SECTNO>
              <SUBJECT>Agency program direction and operation.</SUBJECT>
              <SECTNO>719.271-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>719.271-2</SECTNO>
              <SUBJECT>The USAID Office of Small and Disadvantaged Business Utilization (SDB).</SUBJECT>
              <SECTNO>719.271-3</SECTNO>
              <SUBJECT>USAID contracting officers.</SUBJECT>
              <SECTNO>719.271-4</SECTNO>
              <SUBJECT>Heads of contracting activities.</SUBJECT>
              <SECTNO>719.271-5</SECTNO>
              <SUBJECT>Cognizant technical officers.</SUBJECT>
              <SECTNO>719.271-6</SECTNO>
              <SUBJECT>Small business screening procedure.</SUBJECT>
              <SECTNO>719.271-7</SECTNO>
              <SUBJECT>Reports on procurement actions that are exempted from screening.</SUBJECT>
              <SECTNO>719.272</SECTNO>
              <SUBJECT>Small disadvantaged business policies.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13243, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 719.2—Policies</HD>
            <SECTION>
              <SECTNO>719.270</SECTNO>
              <SUBJECT>Small business policies.</SUBJECT>
              <P>(a) In keeping with section 602 of the Foreign Assistance Act of 1961 (22 U.S.C. 2352), as amended, USAID shall, insofar as practicable and to the maximum extent consistent with the accomplishment of the purposes of said Act, assist United States small business to participate equitably in the furnishing of supplies and services for Foreign Assistance activities.</P>
              <P>(b) It is the policy of USAID to:</P>
              <P>(1) Fully endorse and carry out the Government's small business program for placing a fair proportion of its purchases and contracts for supplies, construction (including maintenance and repair), research and development, and services (including personal, professional, and technical services) with small business, including minority small business concerns; and</P>
              <P>(2) Increase their participation in USAID procurement.</P>
              <P>(c) In furtherance of this policy:</P>
              <P>(1) Cognizant technical officers shall make positive efforts (see 719.271-5) to identify potentially qualified small and minority business firms during precontract development of activities and shall, with the responsible contracting officers, assure that such firms are given full opportunity to participate equitably;</P>
              <P>(2) Small business set-asides shall be made for all contracts to be executed in USAID/Washington which qualify for small business set-aside action under Part 19 of the FAR; and</P>
              <P>(3) Consideration shall be given in appropriate cases to the award of the contract to the Small Business Administration for subcontracting to small business firms pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)).</P>
              <P>(d) This program shall be implemented by all USAID/Washington contracting activities in order to attain these policy objectives. In accordance with 719.271, all USAID/Washington direct-procurement requirements which exceed the simplified acquisition threshold shall be screened for small business opportunities by the Office of Small and Disadvantaged Business Utilization (SDB) except those exempted by 719.271-6(a).</P>
              <P>(e) Where practicable and desirable, small business and minority business enterprise award goals will be established for the respective USAID/Washington procuring activities to provide incentive for contracting personnel to increase awards to small firms. The goals will be set by SDB after consultation with the respective head of the contracting activity (see subsection 702.170-10).</P>

              <P>(f) In the event of a disagreement between SDB and the contracting officer concerning: (1) A recommended set-aside, or (2) a request for modification or withdrawal of a class or individual set-aside, complete documentation of the case including the reasons for disagreement shall be transmitted within five working days to the head of the contracting activity (see 719.271-6(e)) for a decision. Procurement action shall be suspended pending a decision.<PRTPAGE P="25"/>
              </P>
              <P>(g) The above suspension shall not apply where the contracting officer:</P>
              <P>(1) Certifies in writing, with supporting information, that in order to protect the public interest award must be made without delay;</P>
              <P>(2) Promptly provides a copy of said certification to SDB; and</P>
              <P>(3) Includes a copy of the certification in the contract file.</P>
              <P>(h) SDB shall be the Small Business Advisor and Minority Business Procurement Policy Manager for all USAID/Washington procuring activities.</P>
              <P>(i) The details on the Agency's direction and operation of the small business program are set forth in 719.271.</P>
              <P>(j) No decision rendered, or action taken, under the coverage set forth in 719.271 shall preclude the Small Business Administration from appealing directly to the USAID Administrator as provided for in part 19 of the FAR.</P>
              <CITA>[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 56 FR 67224, Dec. 30, 1991; 61 FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>719.271</SECTNO>
              <SUBJECT>Agency program direction and operation.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>719.271-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The purpose of this section is to prescribe responsibilities and procedures for carrying out the small business program policy set forth in 219.270, and in part 19 of the FAR. Small Business concerns are defined in FAR subpart 19.1; in addition, small business concerns are concerns organized for profit. Nonprofit organizations are not considered small business concerns. Small disadvantaged business enterprises are defined in FAR subpart 19.1. Small disadvantaged business enterprises are included in the term “small business” when used in this subpart; specific reference to disadvantaged business enterprises is for added emphasis.</P>
            </SECTION>
            <SECTION>
              <SECTNO>719.271-2</SECTNO>
              <SUBJECT>The USAID Office of Small and Disadvantaged Business Utilization (SDB).</SUBJECT>
              <P>(a) SDB is responsible for administering, implementing, and coordinating the Agency's small business (including minority business enterprises) program.</P>
              <P>(b) SDB, headed by the Director SDB, who also serves as the Minority Business Procurement Manager, shall be specifically responsible for:</P>
              <P>(1) Developing policies, plans, and procedures for a coordinated Agency-wide small business and minority business enterprise procurement program;</P>
              <P>(2) Advising and consulting regularly with USAID/Washington procuring activities on all phases of their small business program, including, where practicable and desirable, the establishment of small business and minority business enterprise award goals;</P>
              <P>(3) Collaborating with officials of the Small Business Administration (SBA), other Government Agencies, and private organizations on matters affecting the Agency's small business program;</P>
              <P>(4) Developing and maintaining an USAID Consultant Registry Information System (ACRIS) of bidders/offerors (annotated to identify small business and minority business enterprise firms) capable of furnishing services for use by the USAID contracting activities;</P>
              <P>(5) Cooperating with contracting officers in administering the performance of contractors subject to the Small Business and Minority Business Enterprises Subcontracting Program clauses;</P>
              <P>(6) Developing a plan of operation designed to increase the share of contracts awarded to small business concerns, including small minority business enterprises;</P>
              <P>(7) Establishing small business class set-aside for types and classes of items of services where appropriate;</P>
              <P>(8) Reviewing each procurement requisition to make certain individual or class set-asides are initiated on all suitable USAID/Washington proposed contract actions in excess of the simplified acquisition threshold which are subject to screening (see 719.271-6);</P>
              <P>(9) Maintaining a program designed to:</P>
              <P>(i) Locate capable small business sources for current and future procurements through GSA and other methods;</P>

              <P>(ii) Utilize every source available to determine if an item is obtainable from small business; and<PRTPAGE P="26"/>
              </P>
              <P>(iii) Develop adequate small business competition on all appropriate procurements;</P>
              <P>(10) Taking action to assure that unnecessary qualifications, restrictive specifications, or other features (such as inadequate procurement lead time) of the programming or procurement process, which may prevent small business participation in the competitive process, are modified to permit such participation where an adequate product or service can be obtained;</P>
              <P>(11) Recommending that portions of large planned procurements or suitable components of end items or services be purchased separately so small firms may compete;</P>
              <P>(12) On proposed non-competitive procurements, recommending to the contracting officer that the procurement be made competitive when, in the opinion of SDB, there are small business or minority business enterprises believed competent to furnish the required goods or services, and supplying the contracting officer a list of such firms;</P>
              <P>(13) Assisting small business concerns with individual problems;</P>
              <P>(14) Promoting increased awareness by the technical staff of the availability of small business firms;</P>
              <P>(15) Making available to GSA copies of solicitations when so requested;</P>
              <P>(16) Counseling non-responsive or non-responsible small business bidders/offerors to help them participate more effectively in future solicitations; and</P>
              <P>(17) Examining bidders lists to make certain small business firms are appropriately identified and adequately represented for both negotiated and advertised procurements.</P>
              <CITA>[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61 FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>719.271-3</SECTNO>
              <SUBJECT>USAID contracting officers.</SUBJECT>
              <P>With respect to procurement activities within their jurisidiction, contracting officers are responsible for:</P>
              <P>(a) Being thoroughly familiar with part 19 of the FAR and this section dealing with the small business program;</P>
              <P>(b) Screening abstracts of bids and other award data to determine set-aside potential for future procurements;</P>
              <P>(c) Assuring that small business concerns and minority business enterprises are appropriately identified on source lists and abstracts of bids or proposals by an “S” and “M”, respectively, or other appropriate symbol;</P>
              <P>(d) Reviewing types and classes of items and services to determine where small business set-asides can be applied;</P>
              <P>(e) Recommending that portions of large planned procurements of suitable components of end items or services be purchased separately so small firms may compete;</P>
              <P>(f) Making a unilateral determination for total or partial small business set-asides in accordance with Subpart 19.5 of the Federal Acquisition Regulations;</P>
              <P>(g) Submitting proposed procurement actions for USAID/Washington contracts to SDB for screening (see 719.271-6);</P>
              <P>(h) Taking action to assure that unnecessary qualifications, restrictive specifications or other features (such as inadequate procurement lead time) of the programming or procurement process which may prevent small business participation in the competitive process are modified to permit such participation where an adequate product or service can be obtained;</P>
              <P>(i) Prior to rendering a final decision on a proposed non-competitive procurement action, and as part of his/her findings and determinations, the contracting officer shall consider the recommendations, if any, of SDB together with the latter's list of additional sources;</P>
              <P>(j) As appropriate, referring small business concerns, including small minority business enterprises, to SDB for information and advice;</P>
              <P>(k) Promoting increased awareness by the technical staff of the availability of small business concerns;</P>
              <P>(l) Making available to SDB copies of solicitations when requested;</P>

              <P>(m) Assisting SDB in counseling non-responsive or non-responsible small business bidders/offerors to help them to participate more effectively in future solicitations; and<PRTPAGE P="27"/>
              </P>
              <P>(n) Including the Small Business and Minority Business Enterprises Subcontracting Program clauses in all contracts where required by part 19 of the FAR.</P>
              <CITA>[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>719.271-4</SECTNO>
              <SUBJECT>Heads of contracting activities.</SUBJECT>
              <P>In order for the agency small business program to be effective, the active support of top management is required. The heads of the contracting activities shall be responsible for:</P>
              <P>(a) Rendering decisions in cases resulting from non-acceptances by their contracting officers of set-aside recommendations made by SDB;</P>
              <P>(b) Consulting with SDB in establishing small business and minority business enterprise award goals, where practicable and desirable; and</P>
              <P>(c) Advising cognizant technical officers of their responsibilities as set forth in 719.271-5.</P>
              <CITA>[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>719.271-5</SECTNO>
              <SUBJECT>Cognizant technical officers.</SUBJECT>
              <P>Since the procurement process starts with the establishment of a requirement, the actions of the cognizant technical officers can affect the opportunity of small business to participate equitably; therefore, each cognizant technical officer shall, during the formulation of activities which will require contractual implementation:</P>
              <P>(a) Consult with SDB on the availability and capabilities of small business firms to permit making a tentative set-aside determination where appropriate; and</P>
              <P>(b) Provide sufficient procurement lead time in the activity implementation schedule to allow potential small business participation.</P>
              <CITA>[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>719.271-6</SECTNO>
              <SUBJECT>Small business screening procedure.</SUBJECT>
              <P>(a) <E T="03">General.</E> All USAID/Washington proposed contract actions in excess of the simplified acquisition threshold shall be screened by SDB, with the exception of:</P>
              <P>(1) Class set-asides and those unilaterally set-aside by contracting officers (719.271-3(f));</P>
              <P>(2) Those where the contracting officer certifies in writing that the public exigency will not permit the delay incident to screening (719.271-7(b));</P>
              <P>(3) “Institution building” contracts (contracts for development of a counterpart capability in the host country) with educational or nonprofit institutions; or collaborative assistance contracts pursuant to AIDAR 715.370-2.</P>
              <P>(4) Those involving the payment of tuition and fees for participant training at academic institutions; and</P>
              <P>(5) Personal services contract requirements (see 719.270).</P>
              <P>(b) <E T="03">Preparation of Form USAID 1410-14 (the Small Business/Minority Business Enterprise Procurement Review Form).</E> (1) The contracting officer shall prepare the subject form in an original and 3 copies and forward the original and 2 copies to SDB within one working day of receipt by the contracting activity of a procurement requisition.</P>
              <P>(2) The contracting officer will attach to his/her transmittal a complete copy of the procurement request and a copy of the recommended source list as furnished by the technical office and supplemented by him/her.</P>
              <P>(3) The contracting officer shall complete blocks 2, 3, 4, 5, 9, and 10 (when appropriate) prior to submittal to SDB.</P>
              <P>(c) <E T="03">Screening of Form USAID 1410-14 by SDB.</E> (1) SDB will screen the contracting officer's recommendations on set-aside potential, small business subcontracting opportunities, and section 8(a) subcontracting, and furnish him/her with either a written concurrence in his/her recommendations or written counter-recommendations on the original and duplicate copy within five working days from receipt of the form from the contracting officer.</P>
              <P>(2) SDB will complete Blocks 1, 6, 7, 8, 11, and 12 (when appropriate) prior to returning the screened form to the contracting officer.</P>
              <P>(d) <E T="03">Concurrence or rejection procedure.</E> (1) The contracting officer shall complete Block 13 upon receipt of the original and duplicate copy of the screened form from SDB.<PRTPAGE P="28"/>
              </P>
              <P>(2) If the contracting officer rejects the SDB counter-recommendation, he/she shall return the original and duplicate forms with his/her written reasons for rejection to SDB within two working days.</P>
              <P>(3) Upon receipt of the contracting officer's rejection, SDB may: (i) accept, or (ii) appeal, the rejection. In the case of acceptance of the contracting officer's rejection, SDB shall annotate Block 14 when it renders a decision and return the original form to the contracting officer within two working days.</P>
              <P>(e) <E T="03">Appeal procedure.</E> (1) When informal efforts fail to resolve the set-aside disagreement between the contracting officer and SDB, the latter official may appeal the contracting officer's decision to the head of the contracting activity. Such an appeal will be made within five working days after receipt of the contracting officer's rejection.</P>
              <P>(2) In the case of an appeal, SDB will send the original and duplicate form, with the appeal noted in Block 14, directly to the head of the contracting activity with its written reasons for appealing. The contracting officer will be notified of SDB's appeal by means of a copy of the written reasons for appealing.</P>
              <P>(3) The head of the contracting activity shall render a decision on the appeal (complete Block 15) within three working days after receipt of same and return the original to SDB and the duplicate to the contracting officer.</P>
              <CITA>[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61 FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997; 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>719.271-7</SECTNO>
              <SUBJECT>Reports on procurement actions that are exempted from screening.</SUBJECT>
              <P>(a) <E T="03">Unilateral and class set-asides.</E> The contracting officer shall prepare Form USAID 1410-14 as stated in 719.271-6, but forward only the duplicate copy with the documentation required by Block 5 of the form to SDB. The original will be filed in the contract file.</P>
              <P>(1) If, upon review of the material submitted under 719.271-7(a) above, SDB concludes that it would be practicable to accomplish all or a portion of the procurement involved under section 8(a) subcontracting, it shall so advise the contracting officer in writing within five days after receipt of such material.</P>
              <P>(2) Such advice shall be considered a counter-recommendation and shall be processed in accordance with 719.271-6 (d) and (e).</P>
              <P>(b) <E T="03">Public exigency exemption.</E> The contracting officer shall prepare Form USAID 1410-14 as stated in 719.271-6, but forward only the duplicate copy with the documentation required by Block 5 of the form to SDB. In addition to the documentation called for in 719.271-6, the contracting officer shall furnish a copy of his/her written determination exempting the procurement from screening. The determination shall cite the pertinent facts which led to his/her decision. This exemption is not intended to be used as substitute for good procurement planning and lead-time; SDB will report abuses of this exemption to the head of the contracting activity for appropriate action in accordance with 719.271-4(c).</P>
              <P>(c) <E T="03">Institution building contract (IBC) exemption.</E> The contracting officer shall prepare Form USAID 1410-14 as stated in 719.271-6, but forward only the duplicate copy with the documentation required by Block 5 of the form to SDB.</P>
              <P>(d) <E T="03">Personal services contract exemption.</E> Preparation of Form USAID 1410-14 is not required for personal services contracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>719.272</SECTNO>
              <SUBJECT>Small disadvantaged business policies.</SUBJECT>
              <P>In addition to the requirements in FAR part 19, part 726 provides for contracting and subcontracting with small disadvantaged businesses and other disadvantaged enterprises based on provisions of the foreign assistance appropriations acts.</P>
              <CITA>[58 FR 8702, Feb. 17, 1993]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 722</EAR>
          <HD SOURCE="HED">PART 722—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 722.1—Basic Labor Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>722.103</SECTNO>
              <SUBJECT>Overtime.</SUBJECT>
              <SECTNO>722.103-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>722.103-2</SECTNO>
              <SUBJECT>Policy.<PRTPAGE P="29"/>
              </SUBJECT>
              <SECTNO>722.103-3</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>722.103-4</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
              <SECTNO>722.170</SECTNO>
              <SUBJECT>Employment of third country nationals (TCN's) and cooperating country nationals (CCN's).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 722.8—Equal Employment Opportuntity</HD>
              <SECTNO>722.805-70</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13246, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 722.1—Basic Labor Policies</HD>
            <SECTION>
              <SECTNO>722.103</SECTNO>
              <SUBJECT>Overtime.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>722.103-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Compensatory time off</E> means leave equal to overtime worked, which, unless otherwise authorized in a contract or approved by a contracting officer, must be taken not later than the end of the calendar month following that in which the overtime is worked.</P>
            </SECTION>
            <SECTION>
              <SECTNO>722.103-2</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) Most contracts covered by this regulation call for the performance of professional or technical services overseas on a cost-reimbursement basis. The compensation for employees performing such services is normally fixed on a monthly or annual basis, and the contracts usually state minimum work week hours. It is not expected that these employees will receive additional pay, overtime or shift premiums, or compensatory time off.</P>
              <P>(b) When the contracting officer determines it is in the best interests of the Government, specific provision may be made in contracts to permit such benefits for non-technical and non-professional employees serving overseas, subject to approvals to be required in the contract.</P>
              <CITA>[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>722.103-3</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>722.103-4</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
              <P>The contracting officer may make the determinations referred to in FAR 22.103-4.</P>
              <CITA>[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>722.170</SECTNO>
              <SUBJECT>Employment of third country nationals (TCN's) and cooperating country nationals (CCN's).</SUBJECT>
              <P>(a) <E T="03">General.</E> It is USAID policy that cooperating country nationals (CCN's) and third country nationals (TCN's), who are hired abroad for work in a cooperating country under USAID-direct contracts, generally be extended the same benefits, and be subject to the same restrictions as TCN's and CCN's employed as direct hires by the USAID Mission. Exceptions to this policy may be granted either by the Mission Director or the Assistant Administrator having program responsibility for the project. (TCN's and CCN's who are hired to work in the United States shall be extended benefits and subject to restrictions on the same basis as U.S. citizens who work in the United States.)</P>
              <P>(b) <E T="03">Compensation.</E> Compensation, including merit or promotion increases paid to TCN's and CCN's may not, without the approval of the Mission Director or the Assistant Administrator having program responsibility for the project, exceed the prevailing compensation paid to personnel performing comparable work in the cooperating country as determined by the USAID Mission. Unless otherwise authorized by the Mission Director or the Assistant Administrator having program responsibility for the project, the compensation of such TCN and CCN employees shall be paid in the currency of the cooperating country.</P>
              <P>(c) <E T="03">Allowances and differentials.</E> TCN's and CCN's, hired abroad for work in a cooperating country, are not eligible for allowances or differentials under USAID-direct contracts, unless authorized by the Mission Director or the Assistant Administrator having program responsibility for the project.</P>
              <P>(d) <E T="03">Country and security clearances.</E> The contractor shall insure that the <PRTPAGE P="30"/>necessary clearances, including security clearances, if required, have been obtained for TCN and CCN employees in accordance with any such requirements set forth in the contract or required by the USAID Mission, prior to the TCN or CCN starting work under the contract.</P>
              <P>(e) <E T="03">Physical fitness.</E> Contractors are required to insure that prospective TCN and CCN employees are examined prior to employment to determine whether the prospective employee meets the minimum physical requirements of the position and is free from any contagious disease.</P>
              <P>(f) <E T="03">Workweek, holidays, and leave.</E> The workweek, holidays, and leave for TCN and CCN employees shall be the same as for all other employees of the contractor, under the terms of the contract; however, TCN and CCN employees are not eligible for home leave or military leave unless authorized by the Mission Director or the Assistant Administrator having program responsibility for the project.</P>
              <P>(g) <E T="03">Travel and transportation for TCN's and CCN's.</E> Travel and transportation shall be provided TCN and CCN employees on the same basis as for all other employees of the contractor, under the terms of the contract.</P>
              <P>(h) <E T="03">Household effects and motor vehicles.</E> USAID will not provide household effects to TCN and CCN employees; such employees may ship their household effects and motor vehicles to their place of employment on the same basis as for all other employees of the contractor, under the terms of the contract unless they are residents of the cooperating country.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 722.8—Equal Employment Opportunity</HD>
            <SECTION>
              <SECTNO>722.805-70</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) The procedures in this section apply, as appropriate, for all contracts excluding construction, which shall be handled in accordance with (48 CFR) FAR 22.804-2. Contracting officers are responsible for ensuring that the requirements of (48 CFR) FAR 22.8 and related clauses are met before awarding any contracts or consenting to subcontracts subject to these requirements.</P>
              <P>(b) Representations and Certifications. The first step in ensuring compliance with these requirements is to obtain all necessary representations and certifications (Reps and Certs) required by FAR 22.810. The contracting officer must review the Reps and Certs to determine whether they have been completed and signed as required, and are acceptable.</P>
              <P>(1) If any of these Reps and Certs are incomplete or unsigned, the contracting officer must request that the offeror(s) complete and sign them, as necessary, unless the initial evaluation of the offeror's proposal results in the contracting officer's concluding that the offeror would not, in any event, be within a competitive range determined in accordance with (48 CFR) FAR 15.306(c), or would not be selected if award is to be made without discussions. A request as described in this paragraph (b)(1) constitutes either a clarification per (48 CFR) FAR 15.306(a) (“resolving minor or clerical errors”, paragraph (a)(2)), or a communication before establishment of competitive range per (48 CFR) FAR 15.306(b), not a discussion per (48 CFR) FAR 15.306(d).</P>
              <P>(2) If completed and signed Reps and Certs raise questions concerning the offeror's compliance with EEO requirements, or if the contracting officer has information from any other source which calls into question the offeror's eligibility for award based on this section and (48 CFR) FAR 22.8, the contracting officer must refer the matter to the cognizant regional Department of Labor Office of Federal Contract Compliance Programs (OFCCP) regardless of the estimated value of the contract; only OFCCP may make a determination of non-compliance with EEO requirements.</P>
              <P>(c) OFCCP's National Preaward Registry. If the Reps and Certs are complete, signed, and deemed acceptable, and the contracting officer has no reason to doubt their accuracy, the contracting officer must then consult the OFCCP's National Preaward Registry at the internet website in 48 CFR 22.805(a)(4) (i) to see if the offeror is listed.</P>

              <P>(1) If the conditions stated in FAR 22.805(a) (4) are met (including the contract file documentation requirement <PRTPAGE P="31"/>in paragraph (a)(4)(iii)), then the Contracting Officer does not need to take any further action in verifying the offeror's compliance with the requirements of this subpart and (48 CFR) FAR 22.8.</P>
              <P>(2) If the offeror does not appear in the National Preaward Registry, and the estimated amount of the contract or subcontract is expected to be under $10 million then the contracting officer may rely on the Reps and Certs as sufficient verification of the offeror's compliance.</P>
              <P>(3) If the offeror does not appear in the National Preaward Registry and the estimated amount of the contract or subcontract is $10 million or more, then the contracting officer must request a preaward clearance from the appropriate OFCCP regional office, in accordance with 48 CFR 22.805(a). If the initial contact with OFCCP is by telephone, the contracting officer and OFCCP are to mutually determine what information is to be included in the written verification request. The contracting officer may need to provide the following information in addition to the items listed in FAR 22.805(a)(5), if so requested by the OFCCP regional office:</P>
              <P>(i) Name, title, address, and telephone number of a contract person for the prospective contractor;</P>
              <P>(ii) A description of the type of organization (university, nonprofit, etc.) and its ownership (private, foreign, state, etc.).</P>
              <P>(iii) Names and addresses of the organizations in a joint venture (if any).</P>
              <P>(iv) Type of procurement (new contract—RFP or IFB, amendment, etc.) and the period of the contract.</P>
              <P>(v) Copy of approved Reps and Certs.</P>
              <P>(d) In the event that OFCCP reports that the offeror is not in compliance, negotiations with the offeror shall be terminated.</P>
              <P>(e) Documentation for the contract file. Every contract file must contain completed and signed Reps and Certs. The file must clearly show that these documents have been reviewed and accepted by the contracting officer. If the Reps and Certs were revised to make them acceptable (see paragraph (b) of this section), the file must also document what changes were required and why, and verify that the changes were made. The contracting officer shall also document the OFCCP National Preaward Registry review (see paragraph (c)(1) of this section), and, if the Registry does not include the offeror:</P>
              <P>(1) For contracts or modifications over $10,000 but less than $10 million, the file must contain a statement from the contracting officer that the contractor is considered in compliance with EEO requirements, and giving the basis for this statement (see paragraph (c)(2) of this section). This statement may be in a separate memorandum to the file or in the memorandum of negotiation.</P>
              <P>(2) For contracts or modifications of $10 million or more, the file must document all communications with OFCCP regarding the offeror's compliance. Such documentation includes copies of any written correspondence and a record of telephone conversations, specifying the name, address, and telephone number of the person contacted, a summary of the information presented, and any advice given by OFCCP.</P>
              <P>(f) Documentation in the event of non-compliance. In the event OFCCP determines that a prospective contractor is not in compliance, a copy of OFCCP's written determination, and a summary of resultant action taken (termination of negotiations, notification of offeror and cognizant technical officer, negotiation with next offeror in competitive range, resolicitation, etc.) will be placed in the contract file for any contract which may result, together with other records related to unsuccessful offers, and retained for at least six months following award.</P>
              <CITA>[64 FR 5007, Feb. 2, 1999; 64 FR 18481, Apr. 14, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 724</EAR>
          <HD SOURCE="HED">PART 724—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 724.2—Freedom of Information Act</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>724.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <PRTPAGE P="32"/>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13248, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 724.2—Freedom of Information Act</HD>
            <SECTION>
              <SECTNO>724.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>The U.S. Agency for International Development's policies concerning implementation of the Freedom of Information Act are codified in 22 CFR part 212 (USAID Regulation 12).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 725</EAR>
          <HD SOURCE="HED">PART 725—FOREIGN ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 725.1—Buy American Act—Supplies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>725.170</SECTNO>
              <SUBJECT>Exceptions for Foreign Assistance Act functions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 725.4—Trade Agreements</HD>
              <SECTNO>725.403</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 725.70—Source, Origin, and Nationality</HD>
              <SECTNO>725.701</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>725.702</SECTNO>
              <SUBJECT>Designation of authorized geographic code.</SUBJECT>
              <SECTNO>725.703</SECTNO>
              <SUBJECT>Contractor employees.</SUBJECT>
              <SECTNO>725.704</SECTNO>
              <SUBJECT>Source, origin and nationality requirements—Contract clause.</SUBJECT>
              <SECTNO>725.705</SECTNO>
              <SUBJECT>Local procurement—contract clause.</SUBJECT>
              <SECTNO>725.706</SECTNO>
              <SUBJECT>Geographic source waivers.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13248, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 725.1—Buy American Act—Supplies</HD>
            <SECTION>
              <SECTNO>725.170</SECTNO>
              <SUBJECT>Exceptions for Foreign Assistance Act functions.</SUBJECT>
              <P>In addition to the exception stated in FAR 25.102 for purchases for use outside the United States, there is an exception for economic assistance functions performed under authority of the Foreign Assistance Act. This exception is stated in Executive Order 11223, dated May 12, 1965 (30 FR 6635). U.S. procurement restrictions are applied by USAID, however, as shown elsewhere in this part. These restrictions are generally tighter than the Buy American Act. As a general rule, the tighter USAID restrictions will be used. In the case of certain procurements for use within the United States, the Buy American provision may be used instead in the interest of uniformity among Federal Agencies procuring for domestic use.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 725.4—Trade Agreements</HD>
            <SECTION>
              <SECTNO>725.403</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>FAR 25.4 establishes procedures for purchases under the Trade Agreements Act of 1979 (including GATT's Agreement on Government Procurement) and the North American Free Trade Agreement (NAFTA). Under both such agreements, USAID's contracts for the purpose of providing foreign assistance are not subject to the procedures set forth in FAR 25.4. In contrast, USAID's operating expense-type administrative purchases (i.e., purchases for the direct benefit and use of USAID) are subject to the procedures in FAR 25.4, unless otherwise exempted by one of the exemptions specified in FAR 25.4.</P>
              <CITA>[61 FR 39093, July 26, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 725.70—Source, Origin, and Nationality</HD>
            <SECTION>
              <SECTNO>725.701</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>USAID's source, origin and nationality requirements for program-funded contracts and subcontracts are established in 22 CFR part 228, Rules on Source, Origin and nationality for Commodities and Services Financed by USAID. These policies as they apply to subcontracts and purchases under USAID program-funded contracts have been incorporated into the contract clauses referenced in 725.704 and 725.705 of this subpart.</P>
              <CITA>[62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>725.702</SECTNO>
              <SUBJECT>Designation of authorized geographic code.</SUBJECT>

              <P>(a) The authorized geographic code or codes for an USAID contract shall be specified in the Schedule of each contract and shown on its cover page. If no geographic code is specified, the authorized code will be deemed to be Geographic Code 000, the U.S.<PRTPAGE P="33"/>
              </P>
              <P>(b) Individual country and geographic codes are defined in the Agency Geographic Code Book.</P>
              <CITA>[49 FR 13248, Apr. 3, 1984, as amended at 61 FR 39093, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>725.703</SECTNO>
              <SUBJECT>Contractor employees.</SUBJECT>
              <P>(a) Except as specifically provided in paragraph (b) of this section, there are no nationality restrictions on employees or consultants of either contractors or subcontractors providing services under an USAID-financed contract, except that they must be citizens of a Geographic Code 935 country, or non-U.S. citizens lawfully admitted for permanent residence in the U.S.</P>
              <P>(b) For USAID-financed construction projects where the contract is awarded to a U.S. firm, at least half of the supervisors, and any other specified key personnel, working at the project site must be U.S. citizens or permanent legal residents of the United States. Exceptions may be authorized by the Mission Director in writing if special circumstances make compliance impractical.</P>
              <CITA>[51 FR 34985, Oct. 1, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>725.704</SECTNO>
              <SUBJECT>Source, origin and nationality requirements—Contract clause.</SUBJECT>
              <P>The clause in 752.225-70 is required in all USAID program-funded contracts under which the contractor may procure goods or services.</P>
              <CITA>[62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>725.705</SECTNO>
              <SUBJECT>Local procurement—contract clause.</SUBJECT>
              <P>Local procurement may be undertaken in accordance with the provisions of 22 CFR 228.40. All contracts involving performance overseas shall contain the clause in 752.225-71.</P>
              <CITA>[62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>725.706</SECTNO>
              <SUBJECT>Geographic source waivers.</SUBJECT>
              <P>(a) Authority to waive source, origin, nationality, and transportation services requirements is set forth in chapters 103 and 310 of the ADS.</P>
              <P>(b) The contracting officer shall insert the authorized geographic code based on an approved geographic source waiver in the Schedule of the contract as provided for in 725.702. In addition, the contracting officer shall place a copy of any approved geographic source waiver in the official contract file.</P>
              <CITA>[49 FR 13248, Apr. 3, 1984, as amended at 52 FR 4144, Feb. 10, 1987; 61 FR 39093, July 26, 1996; 62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 726</EAR>
          <HD SOURCE="HED">PART 726—OTHER SOCIOECONOMIC PROGRAMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 726.70—Disadvantaged Enterprises Program</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>726.7001</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>726.7002</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>726.7003</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>726.7004</SECTNO>
              <SUBJECT>Determination to use other than full and open competition.</SUBJECT>
              <SECTNO>726.7005</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>726.7006</SECTNO>
              <SUBJECT>Determination of status as a disadvantaged enterprise.</SUBJECT>
              <SECTNO>726.7007</SECTNO>
              <SUBJECT>Requirement for subcontracting with disadvantaged enterprises.</SUBJECT>
              <SECTNO>726.7008</SECTNO>
              <SUBJECT>Limitations on subcontracting.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 726.71—Relocation of U.S. Businesses, Assistance to Export Processing Zones, Internationally Recognized Workers' Rights</HD>
              <SECTNO>726.7101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>726.7102</SECTNO>
              <SUBJECT>PD 20 provision.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O.12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>55 FR 8470, Mar. 8, 1990, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 726.70—Disadvantaged Enterprises Program</HD>
            <SECTION>
              <SECTNO>726.7001</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>

              <P>This subpart supplements FAR part 19 and implements the provisions of certain foreign assistance appropriations acts (see section 706.302-71(a)) concerning disadvantaged enterprises which require, in general, that not less than ten percent of the aggregate amount made available for development assistance and for assistance for famine recovery and development in Africa shall be made available to disadvantaged enterprises. See part 705 and part 706 for additional provisions on publicizing contract actions and <PRTPAGE P="34"/>using other than full and open competition.</P>
              <CITA>[58 FR 8702, Feb. 17, 1993. Redesignated and amended at 61 FR 39093, July 26, 1996; 62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7002</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) <E T="03">Controlled by socially and economically disadvantaged individuals</E> means management and daily business are controlled by one or more such individuals.</P>
              <P>(b) <E T="03">Disadvantaged enterprises</E> means U.S. organizations or individuals that are:</P>
              <P>(1) Business concerns (as defined in FAR 19.001) owned and controlled by socially and economically disadvantaged individuals;</P>
              <P>(2) Institutions designated by the Secretary of Education, pursuant to 34 CFR 608.2, as historically black colleges and universities;</P>
              <P>(3) Colleges or universities having a student body in which more than 40 percent of the students are Hispanic American; or</P>
              <P>(4) Private voluntary organizations which are controlled by individuals who are socially and economically disadvantaged.</P>
              <P>(c) <E T="03">Economically disadvantaged individuals</E> has the same meaning as in FAR 19.001, except that the term includes women.</P>
              <P>(d) <E T="03">Owned by socially and economically disadvantaged individuals</E> means at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged, or a publicly owned business having at least 51 percent of its stock owned by one or more socially and economically disadvantaged individuals.</P>
              <P>(e) <E T="03">Small disadvantaged business</E> means a small business concern (as defined in FAR 19.001) that is at least 51 percent unconditionally owned by one or more individuals who are both socially and economically disadvantaged (as defined in this section), or a publicly owned business that has at least 51 percent of its stock unconditionally owned by one or more socially and economically disadvantaged individuals (as defined in this section) and that has its management and daily business controlled by one or more such individuals.</P>
              <P>(f) <E T="03">Socially disadvantaged individuals</E> has the same meaning as in FAR 19.001, except that the term includes women.</P>
              <CITA>[56 FR 27209, June 13, 1991, as amended at 56 FR 52212, Oct. 18, 1991. Redesignated at 61 FR 39093, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7003</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>USAID promotes participation in its projects by disadvantaged enterprises. In order to achieve the goals in foreign assistance appropriation acts, contracts which are to be funded from amounts made available from the appropriations cited in section 706.302-71(a)(1) are subject to the following policies:</P>
              <P>(a) Authority in section 8(a) of the Small Business Act (15 U.S.C. 637(a)) shall be used to the maximum practicable extent;</P>
              <P>(b) Other than full and open competition in contracting with certain disadvantaged enterprises shall be authorized in accordance with 706.302-71;</P>
              <P>(c) Subcontracting with disadvantaged enterprises shall be carried out in accordance with section 726.7007;</P>
              <P>(d) In accordance with 705.207, the Office of Small and Disadvantaged Business Utilization (OSDBU) shall be notified at least seven business days before publicizing a proposed procurement in excess of $100,000.</P>
              <CITA>[56 FR 27209, June 13, 1991. Redesignated at 61 FR 39093, July 26, 1996, as amended at 62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7004</SECTNO>
              <SUBJECT>Determination to use other than full and open competition.</SUBJECT>
              <P>The determinations required in order to use the authority under 706.302-71 for other than full and open competition shall be made by the contracting officer in consultation with the Director of OSDBU. In the event of a disagreement between the contracting officer and the Director of OSDBU, the head of the contracting activity shall make the final determination.</P>
              <CITA>[55 FR 8470, Mar. 8, 1990. Redesignated at 61 FR 39093, July 26, 1996.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7005</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>

              <P>The notification requirement in 705.207 and the subcontracting requirement in 726.7007 are based on statutory requirement and may not be deviated <PRTPAGE P="35"/>from under the provisions of subpart 701.4. By statute, the Administrator or designee may determine that these requirements do not apply to a particular contract or category of contracts. The M/OP Director has been designated to make such determinations. One such determination concerning subcontracting is set out in 726.7007.</P>
              <CITA>[58 FR 8702, Feb. 17, 1993. Redesignated at 61 FR 39093, July 26, 1996, as amended at 62 FR 40468, July 29, 1997; 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7006</SECTNO>
              <SUBJECT>Determination of status as a disadvantaged enterprise.</SUBJECT>
              <P>(a) To be eligible for an award under AIDAR 706.302-71 providing for other than full and open competition, the contractor must qualify, as of both the date of submission of its offer and the date of contract award, as a small disadvantaged business (as defined in 726.7002), an historically black college or university, a college or university in which more than 40 percent of the students are Hispanic Americans, or a private voluntary organization controlled by individuals who are socially and economically disadvantaged. The contracting officer shall insert the provision at 752.226-1 in any solicitation or contract to be awarded under the provisions of 706.302-71.</P>
              <P>(b) The contracting officer shall accept an offeror's representations and certifications under the provisions referenced above that it is a small disadvantaged business unless he or she determines otherwise based on information contained in a challenge of the offeror's status by the Small Business Administration or another offeror, or otherwise available to the contracting officer.</P>
              <CITA>[55 FR 8470, Mar. 8, 1990, as amended at 56 FR 27209, June 13, 1991. Redesignated at 61 FR 39093, July 26, 1996, as amended at 62 FR 40468, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7007</SECTNO>
              <SUBJECT>Requirement for subcontracting with disadvantaged enterprises.</SUBJECT>
              <P>(a) In addition to the requirements in FAR subpart 19.7, any new contract or modification which constitutes new procurement (except for a contract or modification with a disadvantaged enterprise as defined in 726.7002) with respect to which more than $500,000 is to be funded with amounts made available for development assistance or from the appropriations cited in section 706.302-71(a)(1) shall contain a provision requiring that not less than ten percent of the dollar value of the contract must be subcontracted to disadvantaged enterprises, including disadvantaged enterprises which are not small.</P>
              <P>(b) This requirement does not apply when the contracting officer, with the concurrence of the Director of OSDBU, certifies there is no realistic expectation of U.S. subcontracting opportunities and so documents the file. If the contracting officer and the Director of OSDBU do not agree, the determination will be made by the head of the contracting activity. See 726.7005 for guidance on other potential exceptions.</P>
              <P>(c) The contracting officer shall insert the clause in 752.226-2 in any solicitation or contract as provided in paragraph (a) of this section, unless exempted in accordance with the provisions of paragraph (b) of this section.</P>
              <CITA>[55 FR 8470, Mar. 8, 1990, as amended at 56 FR 27209, June 13, 1991; 56 FR 52213, Oct. 18, 1991; 58 FR 42255, Aug. 9, 1993. Redesignated at 61 FR 39093, July 26, 1996, as amended at 62 FR 40468, July 29, 1997; 62 FR 47532, Sept. 9, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7008</SECTNO>
              <SUBJECT>Limitations on subcontracting.</SUBJECT>
              <P>The contracting officer shall insert the clause at 752.226-3, Limitations on Subcontracting, in any solicitation and contract for technical assistance services which is to be awarded under the authority of 706.302-71.</P>
              <CITA>[58 FR 42255, Aug. 9, 1993. Redesignated at 61 FR 51235, Oct. 1, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 726.71—Relocation of U.S. Businesses, Assistance to Export Processing Zones, Internationally Recognized Workers' Rights</HD>
            <SECTION>
              <SECTNO>726.7101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>USAID Policy Determination (PD) 20, “Guidelines to Assure USAID Programs do not Result in the Loss of Jobs in the U.S.” implemented statutory prohibitions on expenditure of appropriated funds. The PD contains a standard provision for inclusion in USAID-funded grants and inter-agency <PRTPAGE P="36"/>agreements and indicates that when the PD applies to a contract, appropriate provisions covering the subject matter are to be included. When the provisions of PD 20 do apply to a contract, the cognizant technical office shall provide to the contracting officer appropriate language tailored to the specific circumstances for the contract statement of work, or if applicable to the circumstances, the provision included in the PD (see 726.7102) may be used as a clause in the contract. The provision is not required in subcontracts.</P>
              <CITA>[61 FR 39093, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>726.7102</SECTNO>
              <SUBJECT>PD 20 provision.</SUBJECT>
              <EXTRACT>
                <HD SOURCE="HD1">Relocation of U.S. Businesses, Assistance to Export Processing Zones, Internationally Recognized Workers' Rights (JAN 1994)</HD>
                <P>No funds or other support provided hereunder may be used in an activity reasonably likely to involve the relocation or expansion outside of the United States of an enterprise located in the United States if non-U.S. production in such relocation or expansion replaces some or all of the production of, and reduces the number of employees at, said enterprise in the United States.</P>
                <P>No funds or other support provided hereunder may be used in an activity the purpose of which is the establishment or development in a foreign country of any export processing zone or designated area where the labor, environmental, tax, tariff, and safety laws of the country would not apply, without the prior approval of USAID.</P>
                <P>No funds or other support provided hereunder may be used in an activity which contributes to the violation of internationally recognized rights of workers in the recipient country, including those in any designated zone or area in that country.</P>
              </EXTRACT>
              <CITA>[61 FR 39093, July 26, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="37"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 728</EAR>
          <HD SOURCE="HED">PART 728—BONDS AND INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 728.1—Bonds</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>728.105-1</SECTNO>
              <SUBJECT>Advance payment bonds.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 728.3—Insurance</HD>
              <SECTNO>728.305-70</SECTNO>
              <SUBJECT>Overseas worker's compensation and war-hazard insurance—waivers and USAID insurance coverage.</SUBJECT>
              <SECTNO>728.307-2</SECTNO>
              <SUBJECT>Liability.</SUBJECT>
              <SECTNO>728.307-70</SECTNO>
              <SUBJECT>Medical Evacuation (MEDEVAC) Services (Mar 1993).</SUBJECT>
              <SECTNO>728.309</SECTNO>
              <SUBJECT>Contract clause for worker's compensation insurance.</SUBJECT>
              <SECTNO>728.313</SECTNO>
              <SUBJECT>Contract clauses for insurance of transportation or transportation-related services.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13249, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 728.1—Bonds</HD>
            <SECTION>
              <SECTNO>728.105-1</SECTNO>
              <SUBJECT>Advance payment bonds.</SUBJECT>
              <P>(a) Generally, advance payment bonds will not be required in connection with USAID contracts containing an advance payment provision. In lieu thereof, contracting officers will follow procedures set forth in FAR 32.409-3.</P>
              <P>(b) Whenever a contracting officer considers that an advance payment bond is necessary, the contracting officer will: (1) Establish a bond penalty that will adequately protect interests of the Government, (2) use the USAID Advance Payment Bond format, (3) place bond with a surety currently approved by the U.S. Treasury Department according to the latest Treasury Department Circular 570, (4) stipulate that the cost of the bond shall not exceed a rate of $7.50 per $1,000 per annum based on the penalty of the bond, without the prior written approval of the Office of Procurement, Policy Division (M/OP/P).</P>
              <P>(c) Where the surety's obligation under an advance payment bond covers all advances made to the contractor during the term of the contract, no release should be issued to the surety until all advances made and to be made under the contract have been fully liquidated in accordance with the provisions of the contract, such as no-pay vouchers, reports of expenditures, or by refund. Where the surety's obligation under the bond is limited to advances made during a specified period of time, no release should be issued to the surety until all advances made and to be made during the specified period have been liquidated as aforesaid.</P>
              <CITA>[49 FR 13249, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 55 FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33446, June 29, 1994]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 728.3—Insurance</HD>
            <SECTION>
              <SECTNO>728.305-70</SECTNO>
              <SUBJECT>Overseas worker's compensation and war-hazard insurance—waivers and USAID insurance coverage.</SUBJECT>

              <P>(a) Upon the recommendation of the USAID Administrator, the Secretary of Labor may waive the applicability of the Defense Base Act (DBA) with respect to any contract, subcontract, or subordinate contract, work location, or classification of employees. Either the contractor or USAID can request a waiver from coverage. Such a waiver can apply to any employees who are not U.S. citizens, not residents of, or not hired in the United States. Waivers requested by the contractor are submitted to the contracting officer for approval and further submission to the Department of Labor, which grants the waiver. Application for a waiver is submitted on Labor Department Form BEC 565. USAID has a number of blanket waivers already in effect for certain countries that are applicable to its direct contracts with contractors performing in such countries. Where such waivers are granted from coverage under the DBA, the waiver is conditioned on providing other worker's compensation coverage to employees to which the waiver applies. Usually this takes the form of securing worker's compensation coverage of the country where work will be performed <PRTPAGE P="38"/>or of the country of the employee's nationality, whichever offers greater benefits. The Department of Labor has granted partial blanket waivers of DBA coverage applicable to USAID-financed contracts performed in certain countries, subject to two conditions:</P>
              <P>(1) Employees hired in the United States by the contractor, and citizens or residents of the United States are to be provided DBA insurance coverage;</P>
              <P>(2) Waived employees (i.e., employees who are neither U.S. citizens nor U.S. resident aliens, and who were hired outside the United States) will be provided worker's compensation benefits as required by the laws of the country in which they are working or the laws of their native country, whichever offers greater benefits. Information as to whether a DBA Waiver has been obtained by USAID for a particular country may be obtained from the cognizant USAID contracting officer.</P>
              <P>(b) To assist contractors in securing insurance at minimal rates for the workmen's compensation insurance required under the DBA, and to facilitate meeting insurance requirements for such coverage, USAID, after open and competitive negotiation, has entered into a contract with an insurance carrier to provide such coverage at a specified rate. The terms of this contract require the insurance carrier to provide coverage, and the contractor to make payments to and handle its claims with that insurance carrier. Contracting officers are responsible for explaining and advising contractors of the details of securing such insurance.</P>
              <CITA>[49 FR 13249, Apr. 3, 1984, as amended at 52 FR 4144, Feb. 10, 1987. Redesignated at 53 FR 50630, Dec. 16, 1988, and amended at 54 FR 16122, Apr. 21, 1989; 56 FR 67224, Dec. 30, 1991]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>728.307-2</SECTNO>
              <SUBJECT>Liability.</SUBJECT>
              <P>(a)-(b) [Reserved]</P>
              <P>(c) <E T="03">Automobile liability.</E> In order to ensure that private automobiles used by contractor employees stationed overseas under an USAID contract are properly insured, USAID has established minimum required coverages as a supplement to the FAR clause at 52.228-7. This supplemental coverage is specified in AIDAR 752.228-7, and is to be used in all USAID-direct contracts involving performance overseas.</P>
              <CITA>[53 FR 50630, Dec. 16, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>728.307-70</SECTNO>
              <SUBJECT>Medical Evacuation (MEDEVAC) Services (Mar 1993).</SUBJECT>
              <P>The Contracting Officer shall insert the clause at 752.228-70 in all contracts which require performance by contractor employees overseas.</P>
              <CITA>[59 FR 33446, June 29, 1994]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>728.309</SECTNO>
              <SUBJECT>Contract clause for worker's compensation insurance.</SUBJECT>
              <P>(a) Because of the volume of projects performed overseas resulting in contracts which require worker's compensation insurance, USAID has contracted with an insurance carrier to provide the required insurance for all USAID contractors. It is therefore necessary to supplement the FAR clause at 52.228-3 with the additional coverage specified in AIDAR 752.228-3. The coverage specified in AIDAR 752.228-3 shall be used in addition to the coverage specified in FAR 52.228-3 in all USAID-direct contracts involving performance overseas.</P>
              <CITA>[53 FR 50630, Dec. 16, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>728.313</SECTNO>
              <SUBJECT>Contract clauses for insurance of transportation or transportation-related services.</SUBJECT>
              <P>(a) USAID is required by law to include language in all its direct contracts and subcontracts ensuring that all U.S. marine insurance companies have a fair opportunity to bid for marine insurance when such insurance is necessary or appropriate under the contract. USAID has therefore established a supplementary preface to the clause at FAR 52.228-9. This supplementary preface is set forth in AIDAR 752.228-9, and is required for use in any USAID-direct contract where marine insurance is necessary or appropriate.</P>
              <CITA>[53 FR 50630, Dec. 16, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 731</EAR>
          <HD SOURCE="HED">PART 731—CONTRACT COST PRINCIPLES AND PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 731.1—Applicability</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>731.109</SECTNO>
              <SUBJECT>Advance agreements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="39"/>
              <HD SOURCE="HED">Subpart 731.2—Contracts With Commercial Organizations</HD>
              <SECTNO>731.205-6</SECTNO>
              <SUBJECT>Compensation for personal services.</SUBJECT>
              <SECTNO>731.205-46</SECTNO>
              <SUBJECT>Travel costs.</SUBJECT>
              <SECTNO>731.205-70</SECTNO>
              <SUBJECT>Overseas recruitment incentive.</SUBJECT>
              <SECTNO>731.205-71</SECTNO>
              <SUBJECT>Salary supplements for Host Government employees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 731.3—Contracts With Educational Institutions</HD>
              <SECTNO>731.370</SECTNO>
              <SUBJECT>Predetermined fixed rates for indirect costs.</SUBJECT>
              <SECTNO>731.371</SECTNO>
              <SUBJECT>Compensation for personal services.</SUBJECT>
              <SECTNO>731.372</SECTNO>
              <SUBJECT>Fringe benefits.</SUBJECT>
              <SECTNO>731.373</SECTNO>
              <SUBJECT>Overseas recruitment incentive.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 731.7—Contracts With Nonprofit Organizations</HD>
              <SECTNO>731.770</SECTNO>
              <SUBJECT>OMB Circular A-122; cost principles for nonprofit organizations; USAID implementation.</SUBJECT>
              <SECTNO>731.771</SECTNO>
              <SUBJECT>Bid and proposal costs.</SUBJECT>
              <SECTNO>731.772</SECTNO>
              <SUBJECT>Compensation for personal services.</SUBJECT>
              <SECTNO>731.773</SECTNO>
              <SUBJECT>Independent research and development costs.</SUBJECT>
              <SECTNO>731.774</SECTNO>
              <SUBJECT>Overseas recruitment incentive.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13250, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 731.1—Applicability</HD>
            <SECTION>
              <SECTNO>731.109</SECTNO>
              <SUBJECT>Advance agreements.</SUBJECT>
              <P>Advance agreements on selected costs may be negotiated with USAID contractors by the Overhead and Special Cost and Contract Close-Out Branch, Office of Procurement. Such advance understandings will be applicable to all USAID contracts with that contractor.</P>
              <CITA>[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51 FR 20651, June 6, 1986]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 731.2—Contracts With Commercial Organizations</HD>
            <SECTION>
              <SECTNO>731.205-6</SECTNO>
              <SUBJECT>Compensation for personal services.</SUBJECT>
              <P>(a) <E T="03">General.</E> When establishing the workweek for employees overseas the contractor will take local and USAID Mission practice into account and will insure that the workweek is compatible with that of those USAID Mission and Cooperating Country employees with whom the contractor will be working.</P>
              <P>(b) <E T="03">Reasonableness.</E> ADS Chapter 302.5.3 states USAID policy regarding personnel compensation exceeding the maximum annual rate for an Executive Service level ES-6. Consistent with this policy, any employee's or consultant's base salary plus overseas recruitment incentive, if any (see 731.205-70), subject to this policy will be allowable under USAID-direct contracts only if approved in accordance with the essential procedures in ADS chapter E302.5.3. USAID policies on compensation of third country national or cooperating country national employees are set forth in AIDAR 722.170.</P>
              <P>(d)-(l) [Reserved]</P>
              <P>(m) <E T="03">Fringe benefits.</E> USAID's policies on certain fringe benefits related to overseas service, including but not limited to leave, holidays, differentials and allowances, etc. are set forth in the appropriate contract clauses in AIDAR subpart 752.70.</P>
              <CITA>[57 FR 5235, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62 FR 40468, July 29, 1997; 64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>731.205-46</SECTNO>
              <SUBJECT>Travel costs.</SUBJECT>
              <P>It is USAID policy to require prior written approval of international travel by the Contacting Officer. See AIDAR 752.7032 for specific requirements and procedures.</P>
              <CITA>[57 FR 5236, Feb. 13, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>731.205-70</SECTNO>
              <SUBJECT>Overseas recruitment incentive.</SUBJECT>
              <NOTE>
                <HD SOURCE="HED">Note:</HD>
                <P>the term <E T="03">employee</E> as used in this section means an employee who is a U.S. citizen or a U.S. resident alien.)</P>
              </NOTE>
              

              <P>(a) If a contractor employee serving overseas under a contract does not qualify for the exemption for overseas income provided under section 911 of the U.S. Internal Revenue Code (26 U.S.C. 911), such employee is eligible to receive an overseas recruitment incentive (ORI), to the extent the ORI: Is authorized by the contractor's normal policy and practice; is deemed necessary by the contractor to recruit and retain qualified employees for overseas services; and does not exceed 10% of <PRTPAGE P="40"/>the base salary of the employee from date of arrival at overseas post to begin assignment to date of departure from post at the end of assignment. ORI is to be paid as a single payment at the end of the employee tour of duty overseas. The contractor shall take all reasonable and prudent steps to ensure that ORI is not paid to any employee who has received the IRS section 911 exemption.</P>
              <P>(b) In the event that an employee subsequently receives a section 911 exclusion for any part of the base salary upon which this supplement has been paid, such supplement or appropriate portion thereof shall be reimbursed by the contractor to USAID with interest. The interest shall be calculated at the average U.S. Treasury rate in effect for the period that the contractor or his employee had the funds. Neither the contractor's nor the subcontractor's inability to collect refunds from eligible employees shall be used as a basis to excuse subsequent refunds by the contractor to USAID.</P>
              <CITA>[57 FR 5236, Feb. 13, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>731.205-71</SECTNO>
              <SUBJECT>Salary supplements for Host Government employees.</SUBJECT>
              <P>(a) <E T="03">Definitions.</E> (1) A Host Government (HG) employee is a person paid by the HG, occupying an established position, either temporary or permanent, part-time or full-time, within a HG institution.</P>
              <P>(2) An HG institution is an organization in which the government owns at least a fifty percent share or receives at least fifty percent of its financial support from the government.</P>
              <P>(b) <E T="03">General.</E> Salary supplement occurs when payments are made that augment an HG employee's base salary or premiums, overtime, extra payments, incentive payment and allowances for which the HG employee would qualify under HG rules or practices for the performance of his/hers regular duties or work performed during his/hers regular office hours. Per diem, invitational travel, honoraria and payment for work carried out outside of normal working hours are not considered to be salary supplements subject to the provisions in USAID policy referenced in paragraph (c) of this section.</P>
              <P>(c) Salary supplements are eligible for USAID financing only when authorized in accordance with USAID policy established in the cable State 119780 dated April 15, 1988 (on ADS-CD under USAID Handbooks, Handbook 1). If salary supplements have been authorized in a particular case, the Contracting Officer shall provide written approval to the contractor in order for such costs to be eligible. Any specific requirements or limitations shall be specified in the approval.</P>
              <P>(d) Contracting Officers shall insert the Clause at 752.231-71 in all contracts in which there is a possibility of the need of HG employees. It should also be inserted in all subsequent subcontracts.</P>
              <CITA>[64 FR 16649, Apr. 6, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 731.3—Contracts With Educational Institutions</HD>
            <SECTION>
              <SECTNO>731.370</SECTNO>
              <SUBJECT>Predetermined fixed rates for indirect costs.</SUBJECT>
              <P>Section 635(k) of the Foreign Assistance Act of 1961, as amended, authorizes USAID to use predetermined fixed rates in determining the indirect costs applicable under contracts with educational institutions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>731.371</SECTNO>
              <SUBJECT>Compensation for personal services.</SUBJECT>
              <P>(a) <E T="03">General.</E> When establishing the workweek for employees overseas the contractor will take local and USAID Mission practice into account and will ensure that the workweek is compatible with that of those USAID Mission and Cooperating Country employees with whom the contractor will be working.</P>
              <P>(b) <E T="03">Salaries and wages.</E> (1) ADS Chapter 302.5.3 states USAID policy regarding personnel compensation exceeding the maximum annual rate for an Executive Service level ES-6. Consistent with this policy, any employee's or consultant's base salary plus overseas recruitment incentive, if any (see 731.205-70), subject to this policy will be allowable under USAID-direct contracts only if approved in accordance with the essential procedures in ADS chapter E302.5.3.<PRTPAGE P="41"/>
              </P>
              <P>(2) In considering consulting income as a factor when determining allowable salary for service under a contract:</P>
              <P>(i) For faculty members working under annual appointments, salary for service under the contract may include the employee's on-campus salary plus “consulting income” (that is, income from employment other than the employee's regular on-campus appointment, excluding business or other activities not connected with the employee's profession) earned during the year preceding employment under the contract.</P>
              <P>(ii) For faculty members working under academic year appointments, salary for service under the contract may include the employee's on-campus academic year salary plus “consulting income” as defined above earned during the year proceeding employment under the contract, or salary for service under the contract may be derived by annualizing the academic year salary (in which case “consulting income” may not be included).</P>
              <P>(3) USAID policies and compensation of third country national or cooperating country national employees are set forth in AIDAR 722.170.</P>
              <CITA>[57 FR 5236, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62 FR 40469, July 29, 1997; 64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>731.372</SECTNO>
              <SUBJECT>Fringe benefits.</SUBJECT>
              <P>USAID's policies on certain fringe benefits related to overseas service, including but not limited to leave, holidays, differentials and allowances, etc. are set forth in the appropriate contract clauses in AIDAR 752.70.</P>
              <CITA>[57 FR 5236, Feb. 13, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>731.373</SECTNO>
              <SUBJECT>Overseas recruitment incentive.</SUBJECT>
              <P>USAID's policies regarding overseas recruitment incentives are set forth in AIDAR 731.205-70. These policies are also applicable to contracts with an educational institution.</P>
              <CITA>[57 FR 5236, Feb. 13, 1992]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 731.7—Contracts With Nonprofit Organizations</HD>
            <SECTION>
              <SECTNO>731.770</SECTNO>
              <SUBJECT>OMB Circular A-122, cost principles for nonprofit organizations; USAID implementation.</SUBJECT>
              <P>(a) Paragraph 6 of the transmittal letter for OMB Circular A-122 specifies that “Agencies shall designate a liaison official to serve as the agency representative on matters relating to the implementation of this Circular.” The Director, Office of Procurement, has been so designated. The Overhead and Special Cost and Contract Close-Out Branch, Office of Procurement (OCC) provides staff assistance to the Director concerning OMB Circular A-122. OCC is also responsible for obtaining cognizance under the criteria in the transmittal letter for OMB Circular A-122; for liaison with other cognizant agencies; for authorizing exclusion of OMB Circular A-122 coverage for a particular nonprofit organization pursuant to paragraph 5 of the OMB Circular A-122 transmittal letter; and for advice and assistance in applying OMB Circular A-122 cost principles.</P>

              <P>(b) Paragraph 4b of the OMB Circular A-122 transmittal letter contains a definition of <E T="03">prior approval</E> as follows:
              </P>
              <EXTRACT>
                <P>Prior approval means securing the awarding agency's permission in advance to incur costs for those items that are designated as requiring prior approval by OMB Circular A-122. Generally, this permission will be in writing. Where an item of cost requiring prior approval is specified in the budget of an award, approval of the budget constitute approval of that cost.</P>
              </EXTRACT>
              
              <FP>Consequently, an award containing a budget constitutes prior approval of the direct cost item in the budget, unless otherwise annotated. Accordingly, award budgets should be appropriately annotated substantially as follows:</FP>
              
              <EXTRACT>
                <P>Inclusion of any cost in the line item budget of this award does not obviate the requirement for prior approval of cost items designated as requiring prior approval by OMB Circular A-122 ; or</P>

                <P>In accordance with the requirements to OMB Circular No. A-122, approval is granted to incur costs for (name specific item or <PRTPAGE P="42"/>items) which are included in the budget of this award.</P>
              </EXTRACT>
              <CITA>[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51 FR 20651, June 6, 1986; 56 FR 67225, Dec. 30, 1991]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>731.771</SECTNO>
              <SUBJECT>Bid and proposal costs.</SUBJECT>
              <P>Pending the establishment of Government-wide principles in Attachment B of OMB Circular A-122, USAID will treat bid and proposal costs as follows:</P>
              <P>(a) Bid and proposal costs are the costs of preparing bids, proposals, and applications for potential activities such as Government and non-Government grants, contracts and other agreements, including the development of scientific, cost, and other data needed to support such bids, proposals, and applications. Except as provided in (b) below, bid and proposal costs of the current accounting period of both successful and unsuccessful bids and proposals normally should be treated as indirect costs for allocation to all current activities, and no bid and proposal costs of past accounting periods will be allocable to the current period. However, if the organization's established practice is to treat bid and proposal costs by some other method, the results obtained may be accepted only if found to be reasonable and equitable.</P>
              <P>(b) Bid and proposal costs incurred by the organization to obtain unrestricted funds are to be treated as fund raising and allocated an appropriate share of indirect costs under the conditions described in paragraph B.3 of Attachment A to OMB Circular A-122.</P>
            </SECTION>
            <SECTION>
              <SECTNO>731.772</SECTNO>
              <SUBJECT>Compensation for personal services.</SUBJECT>
              <P>The policies set for in AIDAR -731.205-6 are also applicable to contracts with a nonprofit organization.</P>
              <CITA>[57 FR 5236, Feb. 13, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>731.773</SECTNO>
              <SUBJECT>Independent research and development costs.</SUBJECT>
              <P>Pending establishment of Government-wide principles in Attachment B of OMB Circular A-122, USAID will apply the cost principles at FAR 31.205-18 for independent research and development costs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>731.774</SECTNO>
              <SUBJECT>Overseas recruitment incentive.</SUBJECT>
              <P>USAID's policies regarding overseas recruitment incentives are set forth in AIDAR 731.205-70. These policies are also applicable to contracts with a nonprofit organization.</P>
              <CITA>[57 FR 5236, Feb. 13, 1992]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 732</EAR>
          <HD SOURCE="HED">PART 732—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 732.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>732.111</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 732.4—Advance Payments</HD>
              <SECTNO>732.401</SECTNO>
              <SUBJECT>Statutory authority.</SUBJECT>
              <SECTNO>732.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>732.403</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>732.406-70</SECTNO>
              <SUBJECT>Agency-issued letters of credit.</SUBJECT>
              <SECTNO>732.406-71</SECTNO>
              <SUBJECT>Circumstances for use of an LOC.</SUBJECT>
              <SECTNO>732.406-72</SECTNO>
              <SUBJECT>Establishing an LOC.</SUBJECT>
              <SECTNO>732.406-73</SECTNO>
              <SUBJECT>LOC contract clause.</SUBJECT>
              <SECTNO>732.406-74</SECTNO>
              <SUBJECT>Revocation of the LOC.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 732.1—General</HD>
            <SECTION>
              <SECTNO>732.111</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) USAID may obtain short term and (less frequently) long-term indefinite quantity professional services through Agency-specific indefinite quantity contracts that are a combination of contract types. Rather than using the fixed-price payment clauses for indefinite quantity contracts, when these IQCs provide for fixed daily rates (which may include wages, overhead, general and administrative expenses, fringe benefits, and profit) for services and reimbursement of other direct costs (such as travel and transportation) at cost, then the payment clause at 752.232-7 shall be used in the contract.</P>
              <CITA>[61 FR 39094, July 26, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 732.4—Advance Payments</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>56 FR 67225, Dec. 30, 1991, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <PRTPAGE P="43"/>
              <SECTNO>732.401</SECTNO>
              <SUBJECT>Statutory authority.</SUBJECT>
              <P>(a) Sections 635 (b) of the Foreign Assistance Act and Executive Order 11223, May 12, 1965, 30 FR 6635, permit the making of advance payments with respect to functions authorized by the Foreign Assistance Act. Advance payments may also be made under section 305 of the Federal Property and Administrative Services Act of 1949, which provides authority, not otherwise available to USAID, to take a paramount lien.</P>
              <P>(b) The Act of August 28, 1968, Public Law 85-804 does not apply to USAID.</P>
              <CITA>[56 FR 67225, Dec. 30, 1991, as amended at 62 FR 40469, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>732.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a)-(d) [Reserved]</P>
              <P>(e)(1) U.S. Dollar advances to for-profit organizations, including advances for disbursement to grantees, shall be processed and approved in accordance with ADS 583.5.6b.</P>
              <P>(2) All local currency advances to for-profit organizations require the approval of the Head of the Contracting Activity, after consultation with the Mission Controller.</P>
              <CITA>[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996; 64 FR 5008, Feb. 2, 1999; 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>732.403</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>References to nonprofit contracts with nonprofit educational or research institutions for experimental, research and development work include nonprofit contracts with nonprofit institutions for: (a) technical assistance services provided to or for another country or countries, and (b) projects which concern studies, demonstrations and similar activities related to economic growth or the solution of social problems of developing countries.</P>
            </SECTION>
            <SECTION>
              <SECTNO>732.406-70</SECTNO>
              <SUBJECT>Agency-issued letters of credit.</SUBJECT>
              <P>This subsection provides guidance on use of USAID issued letters of credit (LOC) for advance payments.</P>
            </SECTION>
            <SECTION>
              <SECTNO>732.406-71</SECTNO>
              <SUBJECT>Circumstances for use of an LOC.</SUBJECT>
              <P>An LOC shall be used under the following circumstances:</P>
              <P>(a) The contracting officer has determined that an advance payment is necessary and appropriate in accordance with this subpart and the guidance provided in FAR 32.4;</P>
              <P>(b) USAID has, or expects to have, a continuing relationship of at least one year with the organization, and the annual amount required for advance financing will be at least $50,000; and</P>
              <P>(c) The Office of Financial Management, Cash Management and Payment Division (FM/CMP) agrees that the LOC payment method is appropriate.</P>
              <CITA>[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>732.406-72</SECTNO>
              <SUBJECT>Establishing an LOC.</SUBJECT>
              <P>(a) While the contract will provide for the use of an LOC when it is justified under subsection 732.406-71, the LOC is a separate agreement between the contractor and FM/CMP, acting on behalf of the USAID Controller. The terms and conditions of the LOC are established by FM/CMP/GIB.</P>
              <P>(b) In order to establish or amend an LOC, the contracting officer shall provide FM/CMP with the following information:</P>
              <P>(1) The name of the Contractor;</P>
              <P>(2) The official USAID contract number;</P>
              <P>(3) The obligated amount of the contract;</P>
              <P>(4) The budget plan code for the obligated funds;</P>
              <P>(5) The effective date and estimated completion date.</P>
              <P>(6) The contractor Federal Tax Identification Number.</P>
              <P>This information should be provided in writing to FM/CMP together with a request to establish or amend an LOC as early in the negotiation cycle as possible.</P>
              <P>(c) FM/CMP will prepare the LOC in accordance with USAID's LOC procedures; issue or amend and maintain the LOC in accordance with its terms and USAID procedures and regulations; and provide the contracting officer(s) a copy of each LOC and any other material governing its use at the time the LOC is issued or when it is amended or modified.</P>
              <CITA>[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996; 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="44"/>
              <SECTNO>732.406-73</SECTNO>
              <SUBJECT>LOC contract clause.</SUBJECT>
              <P>(a) If payment is to be provided by LOC, the contract shall contain the clause in subsection 752.232-70.</P>
              <P>(b) Contracting offices shall ensure that an appropriate (48 CFR) FAR payment clause is also included in the contract, in the event that the LOC is revoked pursuant to 732.406-74.</P>
              <CITA>[56 FR 67225, Dec. 30, 1991, as amended at 64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>732.406-74</SECTNO>
              <SUBJECT>Revocation of the LOC.</SUBJECT>
              <P>If during the term of the contract FM/CMP believes that the LOC should be revoked, FM/CMP may, after consultation with the cognizant contracting officer(s) and GC, revoke the LOC by written notification to the contractor. A copy of any such revocation notice will immediately be provided to the cognizant contracting officer(s).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 733</EAR>
          <HD SOURCE="HED">PART 733—PROTESTS, DISPUTES, AND APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 733.1—Protests</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>733.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>733.103-70</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <SECTNO>733.103-71</SECTNO>
              <SUBJECT>Filing of protest.</SUBJECT>
              <SECTNO>733.103-72</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>733.103-73</SECTNO>
              <SUBJECT>Protests excluded from consideration.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 733.27—USAID Procedures for Disputes and Appeals</HD>
              <SECTNO>733.270-1</SECTNO>
              <SUBJECT>Designation of Armed Services Board of Contract Appeals (ASBCA) to hear and determine appeals under USAID contracts.</SUBJECT>
              <SECTNO>733.270-2</SECTNO>
              <SUBJECT>Special procedures regarding contract disputes appeals promulgated pursuant to paragraph 2 of the Administrator's designation.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621. Pub. L. 87-195, 73 Stat. 445 (22 U.S.C. 2381), as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp. p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 733.1—Protests</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>61 FR 39094, July 26, 1996, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>733.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) All “days” referred to in this subpart are deemed to be “calendar days”, in accordance with FAR 33.101. In the case of USAID overseas offices with non-Saturday/Sunday weekend schedules, the official post weekend applies in lieu of Saturday and Sunday.</P>
              <P>(b) All other terms defined in FAR 33.101 are used herein with the same meaning.</P>
              <CITA>[61 FR 39094, July 26, 1996, as amended at 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>733.103-70</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <P>USAID follows the agency protest procedures in FAR 33.103, as supplemented by this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>733.103-71</SECTNO>
              <SUBJECT>Filing of protest.</SUBJECT>
              <P>(a) Protests must be in writing and addressed to the Contracting Officer for consideration by the M/OP Director.</P>
              <P>(b) A protest shall include, in addition to the information required in FAR 33.103(d)(2), the name of the issuing Mission or office.</P>
              <P>(c) Material submitted by a protester will not be withheld from any interested party outside the government or from any government agency if the M/OP Director decides to release such material, except to the extent that the withholding of such information is permitted or required by law or regulation.</P>
              <CITA>[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>733.103-72</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>(a) <E T="03">M/OP Director.</E> The decision regarding an agency protest shall be made by the M/OP Director within 30 days from the date a proper protest is filed unless the M/OP Director determines that a longer period is necessary to resolve the protest, and so notifies the protester in writing. The M/OP Director shall make his or her decision after personally reviewing and considering all aspects of the case as presented in the protest itself and in any documentation provided by the contracting officer, and after obtaining input and clearance from the Assistant General Counsel for Litigation and Enforcement (GC/LE). The decision shall be in writing and constitutes the final decision of the Agency.<PRTPAGE P="45"/>
              </P>
              <P>(b) <E T="03">Contracting Officer.</E> The Contracting Officer is responsible for requesting an extension of the time for acceptance of offers as described in FAR 33.103(f)(2).</P>
              <CITA>[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>733.103-73</SECTNO>
              <SUBJECT>Protests excluded from consideration.</SUBJECT>
              <P>(a) <E T="03">Contract administration.</E> Disputes between a contractor and USAID are resolved pursuant to the disputes clause of the contract and the Contract Disputes Act of 1978.</P>
              <P>(b) <E T="03">Small business size standards and standard industrial classification.</E> Challenges of established size standards or the size status of particular firms, and challenges of the selected standard industrial classification are for review solely by the Small Business Administration.</P>
              <P>(c) <E T="03">Procurement under Section 8(a) of the Small Business Act.</E> Contracts are let under Section 8(a) of the Small Business Act to the Small Business Administration solely at the discretion of the Contracting Officer, and are not subject to review.</P>
              <P>(d) <E T="03">Protests filed in the General Accounting Office (GAO).</E> Protests filed with the GAO will not be reviewed.</P>
              <P>(e) <E T="03">Procurements funded by USAID to which USAID is not a party.</E> No protest of a procurement funded by USAID shall be reviewed unless USAID is a party to the acquisition agreement.</P>
              <P>(f) <E T="03">Subcontractor protests.</E> Subcontractor protests will not be considered.</P>
              <P>(g) <E T="03">Judicial proceedings.</E> Protests will not be considered when the matter involved is the subject of litigation before a court of competent jurisdiction or when the matter involved has been decided on the merits by a court of competent jurisdiction.</P>
              <P>(h) <E T="03">Determinations of responsibility by the contracting officer.</E> A determination by the contracting officer that a bidder or offeror is or is not capable of performing a contract will not be reviewed by the M/OP Director.</P>
              <P>(i) <E T="03">Small Business Certificate of Competency Program.</E> Any referral made to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act, or any issuance of, or refusal to issue, a certificate of competency under that section will not be reviewed by the M/OP Director.</P>
              <CITA>[61 FR 39094, July 26, 1996, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 733.27—USAID Procedures for Disputes and Appeals</HD>
            <SECTION>
              <SECTNO>733.270-1</SECTNO>
              <SUBJECT>Designation of Armed Services Board of Contract Appeals (ASBCA) to hear and determine appeals under USAID contracts.</SUBJECT>
              <P>(a) The ASBCA is hereby designated the authorized representative of the Administrator of the U.S. Agency for International Development (USAID) in hearing, considering, and determining as fully and finally as might the Administrator, appeals by contractors from decisions on disputed questions taken pursuant to the provisions of contracts requiring the determination of such appeals by the Administrator or his/her duly authorized representative or Board.</P>
              <P>(b) In acting under this designation, the ASBCA will follow such rules and procedures as are or may be prescribed for the conduct of Defense Department contract appeal cases, except for the rules entitled “Forwarding of Appeals” (Rule 3) and “Duties of the Contracting Officer” (Rule 4), which subjects will be governed by procedures to be promulgated by the General Counsel of USAID with approval of the Chairman of the ASBCA.</P>
              <P>(c) The General Counsel of USAID will assure representation of the interests of the Government in proceedings before the ASBCA.</P>
              <P>(d) All officers and employees of USAID will cooperate with the ASBCA and Government counsel in the processing of appeals so as to assure their speedy and just determination.</P>
              <CITA>[53 FR 4980, Feb. 19, 1988. Redesignated at 61 FR 39095, July 26, 1996; 61 FR 51235, Oct. 1, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>733.270-2</SECTNO>
              <SUBJECT>Special procedures regarding contract disputes appeals promulgated pursuant to paragraph 2 of the Administrator's designation.</SUBJECT>

              <P>(a) The following rules will apply, in lieu of Rules 3 and 4(a) of the ASBCA, <PRTPAGE P="46"/>to contract dispute appeals to the Administrator of the USAID or his/her authorized representative which are docketed with that Board.</P>
              <P>(b) Rule 3 (USAID)—Forwarding of Appeals. When a notice of appeal in any form has been received by the contracting officer, he/she shall endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days shall forward said notice of appeal to the Board with a copy to the USAID General Counsel in Washington, DC. Following receipt by the Board of the original notice of an appeal (whether through the contracting officer or otherwise), the contractor, the contracting officer, and the USAID General Counsel will be promptly advised of its receipt, and the contractor will be furnished a copy of these rules.</P>
              <P>(c) Rule 4 (USAID). Preparation, Contents, Organization, Forwarding, and Status of Appeal File (Supersedes Rule 4, “Duties of Contracting Officer” of the ASBCA rules in effect on April 1, 1980).</P>
              <P>(d) Duties of Contracting Officer. Within 30 days of receipt of an appeal or advice that an appeal has been filed, the contracting officer shall assemble and transmit to the USAID General Counsel in Washington, DC, two copies of all documents pertinent to the appeal, including:</P>
              <P>(1) The decision and findings of fact from which appeal is taken;</P>
              <P>(2) The contract, including specifications and pertinent amendments, plans and drawings;</P>
              <P>(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which the decision was issued;</P>
              <P>(4) All transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and</P>
              <P>(5) Any additional information considered pertinent.</P>
              <P>(e) The General Counsel will compile the appeal file from such documents, which file must contain the items enumerated in paragraphs (d) (1) through (5) of this section and will promptly, and in any event within 65 days after the appeal is docketed by the Board, transmit the appeal file to the Board. The General Counsel will notify the appellant when he/she has compiled the appeal file, will provide him/her with a list of its contents, and will afford him/her an opportunity to examine the complete file at the office of the Board and, if the General Counsel deems it appropriate, at any overseas location, for the purpose of satisfying himself/herself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. After receipt of the foregoing file, as it may be augmented at the time of receipt, the Board will promptly advise the parties.</P>
              <CITA>[53 FR 4980, Feb. 19, 1988. Redesignated at 61 FR 39095, July 26, 1996; 61 FR 51235, Oct. 1, 1996; 62 FR 40469, July 29, 1997]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="47"/>
        <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        <PART>
          <EAR>Pt. 734</EAR>
          <HD SOURCE="HED">PART 734—MAJOR SYSTEM ACQUISITION</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SECTION>
            <SECTNO>734.002-70</SECTNO>
            <SUBJECT>USAID policy.</SUBJECT>
            <P>In order for an USAID acquisition to be considered a major system acquisition it must meet the criteria of OMB Circular A-109 and FAR part 34, and must have an estimated value of $15 million or more during the first year of the contract. All major systems acquisition must be approved in advance by the M/OP Director.</P>
            <CITA>[55 FR 39976, Oct. 1, 1990, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 736</EAR>
          <HD SOURCE="HED">PART 736—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 736.6—Architect-Engineer Services</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>736.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <SECTNO>736.602-3</SECTNO>
              <SUBJECT>Evaluation board functions.</SUBJECT>
              <SECTNO>736.602-4</SECTNO>
              <SUBJECT>Selection authority.</SUBJECT>
              <SECTNO>736.602-5</SECTNO>
              <SUBJECT>Short selection process for procurements not to exceed the simplified acquisition threshold.</SUBJECT>
              <SECTNO>736.603</SECTNO>
              <SUBJECT>Collecting data on and appraising firms' qualifications.</SUBJECT>
              <SECTNO>736.605</SECTNO>
              <SUBJECT>Government cost estimate for architect-engineer work.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13254, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 736.6—Architect-Engineer Services</HD>
            <SECTION>
              <SECTNO>736.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <P>(a)-(b) [Reserved]</P>
              <P>(c) Each evaluation board will include a representative of the Contracting Officer and, as appropriate, the cognizant bureau.</P>
              <CITA>[54 FR 46391, Nov. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>736.602-3</SECTNO>
              <SUBJECT>Evaluation board functions.</SUBJECT>
              <P>Agency architect-engineer evaluation boards shall perform the following functions:</P>
              <P>(a) Prepare a selection memorandum recommending no less than three firms which are considered most highly qualified to perform the required services for submission to the head of the contracting activity for his/her approval. This selection memorandum shall include the information specified in 736.602-3(c).</P>
              <P>(b) In evaluating architect-engineer firms, the architect-engineer evaluation board shall apply the following criteria, other criteria established by Agency regulations, and any criteria set forth in the public notice on a particular contract:</P>
              <P>(1) Specialized experience of the firm (including each member of joint venture or association) with the type of service required;</P>
              <P>(2) Capacity of the firm to perform the work (including any specialized services) within the time limitations;</P>
              <P>(3) Past record of performance on contracts with USAID or other Government agencies and private industry with respect to such factors as control of costs, quality of work, and ability to meet schedules, to the extent such information is available;</P>
              <P>(4) Ability to assign an adequate number of qualified key personnel from the organization, including a competent supervising representative having considerable experience in responsible positions on work of a similar nature;</P>
              <P>(5) The portions of the work the architect-engineer is able to perform with its own forces when required;</P>
              <P>(6) Ability of the architect-engineer to furnish or to obtain required materials and equipment;</P>
              <P>(7) If the geographical or topographical aspects of the project are deemed vital, familiarity with the locality where the project is situated;</P>
              <P>(8) Financial capacity;</P>

              <P>(9) Responsibility of the architect-engineer under standards provided in FAR subpart 9.1. No contract may be <PRTPAGE P="48"/>awarded to a contractor that does not meet these standards;</P>
              <P>(10) Volume of work previously awarded to the firm by the Agency, with the object of effecting an equitable distribution of architect-engineer contracts among qualified firms. Each architect-engineer evaluation board shall give favorable consideration, to the fullest extent practicable to the most highly qualified firms that have not had prior experience on Government projects (including small business firms and firms owned by the socially and/or economically deprived).</P>
              <P>(c) The evaluation board shall prepare a selection memorandum for the approval of the head of the contracting activity. The selection memorandum will be signed by the board chairman and cleared by each board member. The selection memorandum shall include the following information:</P>
              <P>(1) A listing by name of all firms reviewed by the board;</P>
              <P>(2) A listing of the evaluation criteria applied;</P>
              <P>(3) An analysis of the selection showing the rationale for the board's recommendation;</P>
              <P>(4) The board's recommendation of the three most highly qualified firms, in order of preference;</P>
              <P>(5) An independent Government cost estimate. The evaluation board shall require the project engineer to develop an independent Government estimate of the cost of the required architect-engineer services. Consideration shall be given to the estimated value of the services to be rendered, the scope, complexity, and the nature of the project and the estimated costs expected to be generated by the work. The independent Government estimate shall be revised as required during negotiations to correct noted deficiencies and reflect changes in or clarification of, the scope of the work to be performed by the architect-engineer. A cost estimate based on the application of percentage factors to cost estimates of the various segments of the work involved, e.g., construction project, may be developed for comparison purposes, but such a cost estimate shall not be used as a substitute for the independent Government estimate.</P>
            </SECTION>
            <SECTION>
              <SECTNO>736.602-4</SECTNO>
              <SUBJECT>Selection authority.</SUBJECT>
              <P>(a) The head of the contracting activity or his/her authorized designee shall review the selection memorandum and shall either approve it or return it to the board for reconsideration for specified reasons.</P>
              <P>(b) Approval of the selection memorandum by the head of the contracting activity or his/her authorized designee shall serve as authorization for the contracting office to commence negotiation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>736.602-5</SECTNO>
              <SUBJECT>Short selection process for procurements not to exceed the simplified acquisition threshold.</SUBJECT>
              <P>References to FAR 36.602-3 and 36.602-4 contained in FAR 36.602-5 shall be construed as references to 736.602-3 and 736.602-4 of this subpart.</P>
              <CITA>[49 FR 13254, Apr. 3, 1984, as amended at 61 FR 39095, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>736.603</SECTNO>
              <SUBJECT>Collecting data on and appraising firms' qualifications.</SUBJECT>

              <P>An USAID Consultant Registry Information System (ACRIS) is maintained in Washington by the USAID Office of Small and Disadvantaged Business Utilization. Architect-engineers wishing to perform contracts for USAID should file the appropriate form with that office, as provided in section 705.002. Procurements are publicized in the <E T="03">Commerce Business Daily,</E> as provided in FAR part 5.</P>
              <CITA>[49 FR 13254, Apr. 3, 1984, as amended at 52 FR 21059, June 4, 1987; 53 FR 50631, Dec. 16, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>736.605</SECTNO>
              <SUBJECT>Government cost estimate for architect-engineer work.</SUBJECT>
              <P>See 736.602-3(c)(5).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 737 [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="49"/>
        <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        <PART>
          <EAR>Pt. 742</EAR>
          <HD SOURCE="HED">PART 742—CONTRACT ADMINISTRATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 742.7—Indirect Cost Rates</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>742.770</SECTNO>
              <SUBJECT>Negotiated indirect cost rate agreement.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 742.15—Contractor Performance Information</HD>
              <SECTNO>742.1501</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>742.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>742.1503</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 742.7—Indirect Cost Rates</HD>
            <SECTION>
              <SECTNO>742.770</SECTNO>
              <SUBJECT>Negotiated indirect cost rate agreement.</SUBJECT>
              <P>Except for educational institutions having a cognizant agency (as defined in OMB Circular A-88, 44 FR 70094, -12/5/79) other than USAID, USAID may establish negotiated overhead rates in a Negotiated Indirect Cost Rate Agreement, executed by both parties. The Negotiated Indirect Cost Rate Agreement is automatically incorporated in each contract between the parties and shall specify: (a) The final rate(s), (b) the base(s) to which the rate(s) apply, (c) the period(s) for which the rate(s) apply, (d) the items treated as direct costs, and (e) the contract(s) to which the rate(s) apply. The Negotiated Indirect Cost Rate Agreement shall not change any monetary ceiling, obligation, or specific cost allowance or disallowance provided for in each contract between the parties.</P>
              <CITA>[49 FR 13256, Apr. 3, 1984; 53 FR 50631, Dec. 16, 1988]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 742.15—Contractor Performance Information</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>65 FR 36642, June 9, 2000, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>742.1501</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>742.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) USAID contracting officers shall report contractor performance information at least annually, employing the procedures prescribed by the NIH Contractor Performance System. (Access to the system by USAID contracting office personnel is authorized by the USAID Past Performance Coordinator, E-mail address: <E T="03">AIDNET: Past Performance@op.spu@aidw/Internet: pastperformance@usaid.gov.</E>)</P>
              <P>(b) Performance for personal services contracts awarded under AIDAR Appendices D and J shall not be evaluated under the contractor performance reporting procedures prescribed in FAR subpart 42.15.</P>
              <CITA>[65 FR 36642, June 9, 2000; 65 FR 39470, June 26, 2000]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>742.1503</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) Personal services contractors shall be recognized as Government personnel for the purposes of the restriction on access to contractor performance information in FAR 42.1503(b).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 745</EAR>
          <HD SOURCE="HED">PART 745—GOVERNMENT PROPERTY</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 787-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 745.1—General</HD>
            <SECTION>
              <SECTNO>745.106</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) The contracting officer shall insert the clause at 752.245-71 in all contracts under which the contractor will acquire property for use overseas and the contract funds were obligated under a Strategic Objective agreement (or similar agreement) with the cooperating country.</P>

              <P>(b) The contracting officer shall insert the applicable clause as required in (48 CFR) FAR 45.106 in all contracts <PRTPAGE P="50"/>under which the contractor will acquire property with funds not already obligated under a Strategic Objective agreement (or similar agreement) with the cooperating country.</P>
              <CITA>[64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 747</EAR>
          <HD SOURCE="HED">PART 747—TRANSPORTATION</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 98-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., p. 435.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 747.5—Ocean Transportation by U.S.-Flag Vessels</HD>
            <SECTION>
              <SECTNO>747.507</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>Contracting officers shall insert the clause at 752.247-70 in solicitations and contracts solely for ocean transportation services, and in solicitations and contracts for goods and ocean transportation services when the ocean transportation will be fixed at the time the contract is awarded. Contracting Officers shall use (48 CFR) FAR 52.247-64 as prescribed in (48 CFR) FAR 27.507(a) in other situations.</P>
              <CITA>[64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 749</EAR>
          <HD SOURCE="HED">PART 749—TERMINATION OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 749.1—General Principles</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>749.100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>749.111</SECTNO>
              <SUBJECT>Review of proposed settlements.</SUBJECT>
              <SECTNO>749.111-70</SECTNO>
              <SUBJECT>Termination settlement review boards.</SUBJECT>
              <SECTNO>749.111-71</SECTNO>
              <SUBJECT>Required review and approval.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13256, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 749.1—General Principles</HD>
            <SECTION>
              <SECTNO>749.100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>The Foreign Aid and Related Agencies Appropriation Act, 1963, and subsequent appropriation Acts, have imposed the following requirement:</P>
              <P>None of the funds appropriated or made available pursuant to this Act for carrying out the Foreign Assistance Act of 1961, as amended, may be used for making payments on any contract for procurement to which the United States is a party entered into after the date of enactment of this Act which does not contain a provision authorizing the termination of such contract for the convenience of the United States.</P>
              <P>See, for example, section 110 of the Foreign Assistance and Related Agencies Appropriation Act, 1965.</P>
            </SECTION>
            <SECTION>
              <SECTNO>749.111</SECTNO>
              <SUBJECT>Review of proposed settlements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>749.111-70</SECTNO>
              <SUBJECT>Termination settlement review boards.</SUBJECT>
              <P>(a) The USAID Settlement Review Board shall be composed of the following members or their delegates (except as provided under 749.111-71(b)):</P>
              <P>(1) M/OP Director;</P>
              <P>(2) Controller;</P>
              <P>(3) General Counsel.</P>
              <P>(b) The M/OP Director or his/her delegate shall be designated as chairman of the board. Delegate members of the board shall have broad business and contracting experience and shall be senior USAID officials. Each member or his/her delegate must be in attendance in order to conduct business, and the board shall act by majority vote. No individual shall serve as a member of a board for the review of a proposed settlement if he/she has theretofore reviewed, approved or disapproved or recommended approval, disapproval or other action with respect to any substantive element of such settlement proposal.</P>
              <P>(c) The chairman shall appoint a nonvoting recorder who shall be responsible for receiving cases, scheduling and recording the proceedings at meetings, maintaining a log of all cases received by him/her for the board, and other duties as assigned by the board.</P>
              <CITA>[49 FR 13256, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>749.111-71</SECTNO>
              <SUBJECT>Required review and approval.</SUBJECT>
              <P>(a) <E T="03">When required.</E> The USAID Settlement Review Board shall receive and approve all USAID/W and Mission proposed settlements or determinations if:<PRTPAGE P="51"/>
              </P>
              <P>(1) The amount of settlement, by agreement or determination, involves $100,000 or more;</P>
              <P>(2) The settlement or determination is limited to adjustment of the fee of a cost-reimbursement contract or subcontract and: (i) In the case of complete termination, the fee, as adjusted, with respect to the terminated portion of the contract or subcontract is $100,000 or more; or (ii) in the case of a partial termination, the fee, as adjusted, with respect to the terminated portion of the contract or subcontract is $100,000 or more;</P>
              <P>(3) The head of the contracting activity concerned determines that a review of a specific case or class of cases is desirable; or</P>
              <P>(4) The contracting officer, in his/her discretion, desires review by the board.</P>
              <P>(b) <E T="03">Level of review.</E> Proposed settlements in excess of $5 million shall be reviewed and approved by a board consisting of the M/OP Director, the General Counsel, and the Controller, without power of redelegation.</P>
              <P>(c) <E T="03">Submission of information.</E> The contracting officer shall submit to the board a statement of the proposed settlement agreement or determination, supported by such detailed information as is required for an adequate review. This information should normally include copies of: (1) The contractor's or subcontractor's settlement proposal, (2) the audit report, (3) the property disposal report and any required approvals in connection therewith, and (4) the contracting officer's memorandum explaining the settlement. The board may, in its discretion, require the submission of additional information.</P>
              <CITA>[49 FR 13256, Apr. 3, 1984, as amended at 57 FR 5236, Feb. 13, 1992; 59 FR 33446, June 29, 1994; 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 750</EAR>
          <HD SOURCE="HED">PART 750—EXTRAORDINARY CONTRACTUAL ACTIONS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>750.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <RESERVED>Subpart 750.70 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 750.71—Extraordinary Contractual Actions To Protect Foreign Policy Interests of the United States</HD>
              <SECTNO>750.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>750.7101</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>750.7102</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <SECTNO>750.7103</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>750.7104</SECTNO>
              <SUBJECT>Types of actions.</SUBJECT>
              <SECTNO>750.7105</SECTNO>
              <SUBJECT>Approving authorities.</SUBJECT>
              <SECTNO>750.7106</SECTNO>
              <SUBJECT>Standards for deciding cases.</SUBJECT>
              <SECTNO>750.7106-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>750.7106-2</SECTNO>
              <SUBJECT>Amendments without consideration.</SUBJECT>
              <SECTNO>750.7106-3</SECTNO>
              <SUBJECT>Mistakes.</SUBJECT>
              <SECTNO>750.7106-4</SECTNO>
              <SUBJECT>Informal commitments.</SUBJECT>
              <SECTNO>750.7107</SECTNO>
              <SUBJECT>Limitations upon exercise of authority.</SUBJECT>
              <SECTNO>750.7108</SECTNO>
              <SUBJECT>Contractual requirements.</SUBJECT>
              <SECTNO>750.7109</SECTNO>
              <SUBJECT>Submission of requests by contractors.</SUBJECT>
              <SECTNO>750.7109-1</SECTNO>
              <SUBJECT>Filing requests.</SUBJECT>
              <SECTNO>750.7109-2</SECTNO>
              <SUBJECT>Form of requests by contractors.</SUBJECT>
              <SECTNO>750.7109-3</SECTNO>
              <SUBJECT>Facts and evidence.</SUBJECT>
              <SECTNO>750.7110</SECTNO>
              <SUBJECT>Processing cases.</SUBJECT>
              <SECTNO>750.7110-1</SECTNO>
              <SUBJECT>Investigation.</SUBJECT>
              <SECTNO>750.7110-2</SECTNO>
              <SUBJECT>Office of General Counsel coordination.</SUBJECT>
              <SECTNO>750.7110-3</SECTNO>
              <SUBJECT>Submission of cases to the M/OP Director.</SUBJECT>
              <SECTNO>750.7110-4</SECTNO>
              <SUBJECT>Processing by M/OP Director.</SUBJECT>
              <SECTNO>750.7110-5</SECTNO>
              <SUBJECT>Contract files.</SUBJECT>
              <SECTNO>750.7110-6</SECTNO>
              <SUBJECT>Inter-agency coordination.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13257, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>750.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>USAID is not among the agencies named in the Act or authorized by the President to take actions under it; however, see Subpart 750.71—Extraordinary Contractual Actions to Protect Foreign Policy Interests of the United States.</P>
          </SECTION>
          <SUBPART>
            <RESERVED>Subpart 750.70 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 750.71—Extraordinary Contractual Actions To Protect Foreign Policy Interests of the United States</HD>
            <SECTION>
              <SECTNO>750.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>

              <P>This subpart sets forth the standards and the procedures for disposition of <PRTPAGE P="52"/>requests for extraordinary contractual actions under Executive Order 11223.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7101</SECTNO>
              <SUBJECT>Authority.</SUBJECT>

              <P>Under section 633 of the Foreign Assistance Act of 1961, 75 Stat. 454 (22 U.S.C. 2933), as amended; Executive Order 11223, dated May 12, 1965 (30 FR 6635), as amended; and Executive Order 12163, dated September 29, 1979 (44 FR 56673), as amended, the Administrator of the U.S. Agency for International Development has been granted authority to provide extraordinary contractual relief. The Authority is set forth in sections 3 and 4 of Executive Order 11223, as follows:
              </P>
              <EXTRACT>
                <P>
                  <E T="03">Section 3.</E> With respect to cost-type contracts heretofore or hereafter made with non-profit institutions under which no fee is charged or paid, amendments or modifications of such contracts may be made with or without consideration and may be utilized to accomplish the same things as any original contract could have accomplished, irrespective of the time or circumstances of the making, or of the form of the contract amended or modified, or of the amending or modifying contract and irrespective of rights which may have accrued under the contract or the amendments or modifications thereof.</P>
                <P>
                  <E T="03">Section 4.</E> With respect to contracts heretofore or hereafter made, other than those described in section 3 of this order, amendments and modifications of such contracts may be made with or without consideration and may be utilized to accomplish the same things as any original contract could have accomplished, irrespective of the time or circumstances of the making, or the form of the contract amended or modified, or of the amending or modifying contract, and irrespective of rights which may have accrued under the contract or the amendments or modifications thereof, if the Secretary of State or the Director of the United States International Development Cooperation Agency (with respect to functions vested in or delegated to Director) determines in each case that such action is necessary to protect the foreign policy interests of the United States.</P>
              </EXTRACT>
              <CITA>[49 FR 49472, Dec. 20, 1984, as amended at 62 FR 40469, July 29, 1997; 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7102</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <P>Extra-contractual claims arising from foreign assistance contracts will be processed in accordance with this subpart, which is similar to that utilized to process claims for extraordinary relief under FAR Part 50, as modified to meet the circumstances involved under the Foreign Assistance Act and the different authority involved.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7103</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) The term <E T="03">approving authority</E> as used in this subpart means an officer or official having been delegated authority to approve actions under the Executive Order. This authority is distinguished from authority to take appropriate contractual action pursuant to such approval.</P>
              <P>(b) The term <E T="03">the Executive Order</E> shall mean Executive Order 11223 (30 FR 6635) as amended, unless otherwise stated.</P>
              <P>(c) The term <E T="03">the Act</E> shall mean the Foreign Assistance Act of 1961, as amended.</P>
              <CITA>[49 FR 13257, Apr. 3, 1984, as amended at 49 FR 49472, Dec. 20, 1984]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7104</SECTNO>
              <SUBJECT>Types of actions.</SUBJECT>
              <P>Three types of actions may be taken by or pursuant to the direction of an approving authority under the Executive Order. These are contractual adjustments such as amendments without consideration, correction of mistakes, and formalization of informal commitments.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7105</SECTNO>
              <SUBJECT>Approving authorities.</SUBJECT>
              <P>All authority to approve actions under this subpart has been delegated to the M/OP Director.</P>
              <CITA>[50 FR 16086, Apr. 24, 1985, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7106</SECTNO>
              <SUBJECT>Standards for deciding cases.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>750.7106-1</SECTNO>
              <SUBJECT>General.</SUBJECT>

              <P>The mere fact that losses occur under a Government contract is not, by itself, a sufficient basis for the exercise of the authority conferred by the Executive Order. Whether, in a particular case, appropriate action such as amendment without consideration, correction of a mistake or ambiguity in a contract, or formalization of an informal commitment, will protect the foreign policy interests of the United States is a matter of sound judgment to be made on the basis of all of the <PRTPAGE P="53"/>facts of such case. Although it is obviously impossible to predict or enumerate all the types of cases with respect to which action may be appropriate, examples of certain cases or types of cases where action may be proper are set forth in sections 750.7106-2 through 750.7106-4. Even if all of the factors contained in any of the examples are present, other factors or considerations in a particular case may warrant denial of the request. These examples are not intended to exclude other cases where the approving authority determines that the circumstances warrant action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7106-2</SECTNO>
              <SUBJECT>Amendments without consideration.</SUBJECT>
              <P>(a) Where an actual or threatened loss under a foreign assistance contract, however caused, will impair the productive ability of a contractor whose continued performance of any foreign assistance contract or whose continued operation as a source of supply is found to be essential to protect the foreign policy interests of the United States, the contract may be adjusted but only to the extent necessary to avoid such impairment to the contractor's productive ability.</P>
              <P>(b) Where a contractor suffers a loss (not merely a diminution of anticipated profits) on a foreign assistance contract as a result of Government action, the character of the Government action will generally determine whether any adjustment in the contract will be made and its extent. Where the Government action is directed primarily at the contractor and is taken by the Government in its capacity as the other contracting party, the contract may be adjusted if fairness so requires; thus where such Government action, although not creating any liability on its part, increases the cost of performance, considerations of fairness may make appropriate some adjustment in the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7106-3</SECTNO>
              <SUBJECT>Mistakes.</SUBJECT>
              <P>A contract may be amended or modified to corrrect or mitigate the effect of a mistake, including the following examples:</P>
              <P>(a) A mistake or ambiguity which consists of the failure to express or to express clearly in the written contract the agreements as both parties understood them;</P>
              <P>(b) A mistake on the part of the contractor which is so obvious that it was or should have been apparent to the contracting officer; and</P>
              <P>(c) A mutual mistake as to a material fact.</P>
              <FP>Amending contracts to correct mistakes with the least possible delay normally will protect the foreign policy interests of the United States by expediting the procurement program and by giving contractors proper assurance that such mistakes will be corrected expeditiously and fairly.</FP>
            </SECTION>
            <SECTION>
              <SECTNO>750.7106-4</SECTNO>
              <SUBJECT>Informal commitments.</SUBJECT>
              <P>Informal commitments may be formalized under certain circumstances to permit payment to persons who have taken action without a formal contract; for example, where any person, pursuant to written or oral instructions from an officer or official of the Agency and relying in good faith upon the apparent authority of the officer or official to issue such instructions, has arranged to furnish or has furnished property or services to the agency and/or to a foreign assistance contractor or subcontractor without formal contractual coverage for such property or services. Formalization of commitments under such circumstances normally will protect the foreign policy interests of the United States by assuring persons that they will be treated fairly and paid expeditiously.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7107</SECTNO>
              <SUBJECT>Limitations upon exercise of authority.</SUBJECT>
              <P>(a) The Executive Order is not authority for:</P>
              <P>(1) The use of the cost-plus-a-percentage-of-cost system of contracting;</P>
              <P>(2) The making of any contract in violation of existing law relating to limitation on profit or fees;</P>
              <P>(3) The waiver of any bid, payment performance or other bond required by law.</P>
              <P>(b) No amendments, or modifications shall be entered into under the authority of the Executive Order:</P>

              <P>(1) Unless, with respect to cases falling within Section 4 of the Executive <PRTPAGE P="54"/>Order, a finding is made that the action is necessary to protect the foreign policy interests of the United States;</P>
              <P>(2) Unless other legal authority in the Agency is deemed to be lacking or inadequate;</P>
              <P>(3) Except within the limits of the amounts appropriated and the statutory contract authorization.</P>
              <P>(c) No contract shall be amended or modified unless the request therefor has been filed before all obligations (including final payment) under the contract have been discharged.</P>
              <P>(d) No informal commitment shall be formalized unless:</P>
              <P>(1) A request for payment has been filed within six months after arranging to furnish or furnishing property or services in reliance upon the commitment;</P>
              <P>(2) USAID has received the services satisfactorily performed, or has accepted property furnished in reliance on the commitment;</P>
              <P>(3) The USAID employees alleged to have made the informal commitment have accepted responsibility for making the informal commitment in question; and</P>
              <P>(4) USAID has taken appropriate action to prevent recurrence.</P>
              <CITA>[49 FR 13257, Apr. 3, 1984, as amended at 50 FR 16088, Apr. 24, 1985; 53 FR 4982, Feb. 19, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7108</SECTNO>
              <SUBJECT>Contractual requirements.</SUBJECT>
              <P>Every contract amended or modified pursuant to this subpart shall contain:</P>
              <P>(a) A citation of the Act and Executive Order.</P>
              <P>(b) A brief statement of the circumstances justifying the action;</P>
              <P>(c) A recital of the finding, with respect to cases falling within Section 4 of the Executive Order, that the action is necessary to protect the foreign policy interests of the United States.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7109</SECTNO>
              <SUBJECT>Submission of requests by contractors.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>750.7109-1</SECTNO>
              <SUBJECT>Filing requests.</SUBJECT>
              <P>Any person (hereinafter called the “contractor”) seeking an adjustment under standards set forth in 750.7106 may file a request in duplicate with the cognizant contracting officer or his/her duly authorized representative. If such filing is impracticable, requests will be deemed to be properly filed if filed with the Chief of the Office of Procurement, Evaluation Division (M/OP/E) for forwarding to the cognizant contracting officer.</P>
              <CITA>[49 FR 13257, Apr. 3, 1984, as amended at 50 FR 50303, Dec. 10, 1985; 55 FR 6802, Feb. 27, 1990; 56 FR 67225, Dec. 30, 1991; 59 FR 33446, June 29, 1994]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7109-2</SECTNO>
              <SUBJECT>Form of requests by contractors.</SUBJECT>
              <P>The contractor's request shall normally consist of a letter to the contracting officer providing the information specified in FAR 50.303.</P>
            </SECTION>
            <SECTION>
              <SECTNO>750.7109-3</SECTNO>
              <SUBJECT>Facts and evidence.</SUBJECT>
              <P>The contracting officer or the approving authority may, where considered appropriate, request the contractor to furnish the facts and evidence as described in FAR 50.304.</P>
              <CITA>[49 FR 13257, Apr. 3, 1984, as amended at 62 FR 40469, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7110</SECTNO>
              <SUBJECT>Processing cases.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>750.7110-1</SECTNO>
              <SUBJECT>Investigation.</SUBJECT>
              <P>The Evaluation Division of the Office of Procurement (M/OP/E) shall be responsible for assuring that the case prepared by the cognizant contracting officer makes a thorough investigation of all facts and issues relevant to each situation. Facts and evidence shall be obtained from contractor and Government personnel and shall include signed statements of material facts within the knowledge of the individuals where documentary evidence is lacking and audits where considered necessary to establish financial or cost related facts. The investigation shall establish the facts essential to meet the standards for deciding the particular case and shall address the limitations upon exercise of the authority of the M/OP Director to approve the request.</P>
              <CITA>[62 FR 40469, July 29, 1997, as amended at 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="55"/>
              <SECTNO>750.7110-2</SECTNO>
              <SUBJECT>Office of General Counsel coordination.</SUBJECT>
              <P>Prior to the submission of a case to the M/OP Director recommending extraordinary contractual relief, the claim shall be fully developed by the cognizant contracting officer and concurrences or comments shall be obtained from the Office of General Counsel for the proposed relief to be granted. Such concurrences or comments shall be incorporated in or accompany the action memorandum submitted for consideration to the M/OP Director in accordance with 750.7110-3.</P>
              <CITA>[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7110-3</SECTNO>
              <SUBJECT>Submission of cases to the M/OP Director.</SUBJECT>
              <P>Cases to be submitted for consideration by the M/OP Director shall be prepared and forwarded by the cognizant contracting officer through M/OP/E to the M/OP Director by means of an action memorandum. M/OP/E will review the action memorandum for accuracy and completeness. The action memorandum shall provide for approval or disapproval by the M/OP Director of the disposition recommended by the contracting officer. The action memorandum shall address:</P>
              <P>(a) The nature of the case;</P>
              <P>(b) The basis for authority to act under section 750.7101;</P>
              <P>(c) The findings of fact essential to the case (see 750.7109-3) arranged chronologically with cross references to supporting enclosures;</P>
              <P>(d) The conclusions drawn from applying the standards for deciding cases, as set forth in 750.7106, to the findings of fact;</P>
              <P>(e) Compliance with the limitations upon exercise of authority, as set forth in section 750.7107 (for informal commitments, include statements addressing each of the limitations in paragraph (d) of 750.7107):</P>
              <P>(f) Concurrences or comments obtained from the Office of General Counsel;</P>
              <P>(g) Verification of funds availability and the contracting officer's determination of cost/price reasonableness when the disposition recommended requires payment to a contractor;</P>
              <P>(h) The disposition recommended and, if contractual action is recommended with respect to cases falling within Section 4 of the Executive Order, the opinion of the contracting officer that such action is necessary to protect the foreign policy interest of the United States; and</P>
              <P>(i) The action memorandum shall enclose all evidentiary materials, including the reports and comments of all cognizant Government or other officials, and a copy of the contractor's request. The action memorandum should provide the following information related to the contractor's request, as applicable:</P>
              <P>(1) Date of request;</P>
              <P>(2) Date request received by USAID:</P>
              <P>(3) Contract number;</P>
              <P>(4) Contractor's name and address;</P>
              <P>(5) Name, address, and phone number of contractor's representative;</P>
              <P>(6) Name, office symbol, and phone number of cognizant contracting officer;</P>
              <P>(7) Amount of request.</P>
              <CITA>[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7110-4</SECTNO>
              <SUBJECT>Processing by M/OP Director.</SUBJECT>
              <P>When the action memorandum has been determined to be as accurate and complete as possible and has been prepared in accordance with this subpart, M/OP/E will forward the action memorandum to the M/OP Director. The M/OP Director will sign and date the action memorandum indicating approval or disapproval of the disposition recommended by the contracting officer.</P>
              <CITA>[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7110-5</SECTNO>
              <SUBJECT>Contract files.</SUBJECT>
              <P>The fully executed action memorandum indicating approval/disapproval and a copy of the contractual document implementing any approved contractual action shall be placed in the contract file.</P>
              <CITA>[62 FR 40469, July 29, 1997; 62 FR 47532, Sept. 9, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>750.7110-6</SECTNO>
              <SUBJECT>Inter-agency coordination.</SUBJECT>
              <P>(a) <E T="03">General.</E> Where a case involves matters of interest to more than one <PRTPAGE P="56"/>department or agency, USAID should maintain liaison with other departments and agencies of the Government and take such joint action as may be proper under the circumstances, including holding joint meetings.</P>
              <P>(b) <E T="03">Cases involving funds of other departments or agencies.</E> Requests for adjustment within any category, involving the funds of another department or agency, shall not be approved by USAID until advice is requested and received from the department or agency whose funds are involved.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="57"/>
        <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        <PART>
          <EAR>Pt. 752</EAR>
          <HD SOURCE="HED">PART 752—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 752.2—Texts of Provisions and Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>752.200</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>752.202-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>752.204-2</SECTNO>
              <SUBJECT>Security requirements.</SUBJECT>
              <SECTNO>752.209-71</SECTNO>
              <SUBJECT>Organizational conflicts of interest discovered after award.</SUBJECT>
              <SECTNO>752.211-70</SECTNO>
              <SUBJECT>Language and measurement.</SUBJECT>
              <SECTNO>752.216-70</SECTNO>
              <SUBJECT>Award fee.</SUBJECT>
              <SECTNO>752.219-8</SECTNO>
              <SUBJECT>Utilization of small business concerns and small disadvantaged business concerns.</SUBJECT>
              <SECTNO>752.225-9</SECTNO>
              <SUBJECT>Buy American Act—Trade Agreements Act—Balance of Payments Program.</SUBJECT>
              <SECTNO>725.225-70</SECTNO>
              <SUBJECT>Source, origin and nationality requirements.</SUBJECT>
              <SECTNO>725.225-71</SECTNO>
              <SUBJECT>Local procurement.</SUBJECT>
              <SECTNO>752.226-1</SECTNO>
              <SUBJECT>Determination of status as disadvantaged enterprise.</SUBJECT>
              <SECTNO>752.226-2</SECTNO>
              <SUBJECT>Subcontracting with disadvantaged enterprises.</SUBJECT>
              <SECTNO>752.226-3</SECTNO>
              <SUBJECT>Limitation on subcontracting.</SUBJECT>
              <SECTNO>752.228-3</SECTNO>
              <SUBJECT>Worker's compensation insurance (Defense Base Act).</SUBJECT>
              <SECTNO>752.228-7</SECTNO>
              <SUBJECT>Insurance—liability to third persons</SUBJECT>
              <SECTNO>752.228-9</SECTNO>
              <SUBJECT>Cargo insurance.</SUBJECT>
              <SECTNO>752.228-70</SECTNO>
              <SUBJECT>Medical Evacuation (MEDEVAC) Services.</SUBJECT>
              <SECTNO>752.229-70</SECTNO>
              <SUBJECT>Federal, state and local taxes.</SUBJECT>
              <SECTNO>752.231-71</SECTNO>
              <SUBJECT>Salary supplements for HG employees.</SUBJECT>
              <SECTNO>752.232-7</SECTNO>
              <SUBJECT>Payments under time-and-materials and labor-hour contracts.</SUBJECT>
              <SECTNO>752.232-70</SECTNO>
              <SUBJECT>Letter of credit advance payment.</SUBJECT>
              <SECTNO>752.245-70</SECTNO>
              <SUBJECT>Government property—USAID reporting requirements.</SUBJECT>
              <SECTNO>752.245-71</SECTNO>
              <SUBJECT>Title to and care of property.</SUBJECT>
              <SECTNO>752.247-70</SECTNO>
              <SUBJECT>Preference for privately owned U.S.-flag commercial vessels.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 752.70—Texts of USAID Contract Clauses</HD>
              <SECTNO>752.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>752.7001</SECTNO>
              <SUBJECT>Biographical data.</SUBJECT>
              <SECTNO>752.7002</SECTNO>
              <SUBJECT>Travel and transportation.</SUBJECT>
              <SECTNO>752.7003</SECTNO>
              <SUBJECT>Documentation for payment.</SUBJECT>
              <SECTNO>752.7004</SECTNO>
              <SUBJECT>Emergency locator information.</SUBJECT>
              <SECTNO>752.7005</SECTNO>
              <SUBJECT>Submission requirements for development experience documents.</SUBJECT>
              <SECTNO>752.7006</SECTNO>
              <SUBJECT>Notices.</SUBJECT>
              <SECTNO>752.7007</SECTNO>
              <SUBJECT>Personnel compensation.</SUBJECT>
              <SECTNO>752.7008</SECTNO>
              <SUBJECT>Use of Government facilities or personnel.</SUBJECT>
              <SECTNO>752.7009</SECTNO>
              <SUBJECT>Marking.</SUBJECT>
              <SECTNO>752.7010</SECTNO>
              <SUBJECT>Conversion of U.S. dollars to local currency.</SUBJECT>
              <SECTNO>752.7011</SECTNO>
              <SUBJECT>Orientation and language training.</SUBJECT>
              <SECTNO>752.7012</SECTNO>
              <SUBJECT>Protection of the individual as a research subject.</SUBJECT>
              <SECTNO>752.7013</SECTNO>
              <SUBJECT>Contractor-mission relationships.</SUBJECT>
              <SECTNO>752.7014</SECTNO>
              <SUBJECT>Notice of changes in travel regulations.</SUBJECT>
              <SECTNO>752.7015</SECTNO>
              <SUBJECT>Use of pouch facilities.</SUBJECT>
              <SECTNO>752.7016</SECTNO>
              <SUBJECT>Family planning and population assistance activities.</SUBJECT>
              <SECTNO>752.7017</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>752.7018</SECTNO>
              <SUBJECT>Health and accident coverage for USAID participant trainees.</SUBJECT>
              <SECTNO>752.7019</SECTNO>
              <SUBJECT>Participant training.</SUBJECT>
              <SECTNO>752.7020</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>752.7021</SECTNO>
              <SUBJECT>Changes in tuition and fees.</SUBJECT>
              <SECTNO>752.7022</SECTNO>
              <SUBJECT>Conflicts between contract and catalog.</SUBJECT>
              <SECTNO>752.7023</SECTNO>
              <SUBJECT>Required visa form for USAID participants.</SUBJECT>
              <SECTNO>752.7024</SECTNO>
              <SUBJECT>Withdrawal of students.</SUBJECT>
              <SECTNO>752.7025</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
              <SECTNO>752.7026</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>752.7027</SECTNO>
              <SUBJECT>Personnel.</SUBJECT>
              <SECTNO>752.7028</SECTNO>
              <SUBJECT>Differential and allowances.</SUBJECT>
              <SECTNO>752.7029</SECTNO>
              <SUBJECT>Post privileges.</SUBJECT>
              <SECTNO>752.7030</SECTNO>
              <SUBJECT>Inspection trips by contractor's officers and executives.</SUBJECT>
              <SECTNO>752.7031</SECTNO>
              <SUBJECT>Leave and holidays.</SUBJECT>
              <SECTNO>752.7032</SECTNO>
              <SUBJECT>International travel approval and notification requirements.</SUBJECT>
              <SECTNO>752.7033</SECTNO>
              <SUBJECT>Physical fitness.</SUBJECT>
              <SECTNO>752.7034</SECTNO>
              <SUBJECT>Acknowledgement and disclaimer.</SUBJECT>
              <SECTNO>752.7035</SECTNO>
              <SUBJECT>Public notices.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart 752.3-70—USAID Clause Matrices [Reserved]</RESERVED>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 13259, Apr. 3, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 752.2—Texts of Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>752.200</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>

              <P>None of the clauses specified in this subpart are for use in USAID personal services contracts. For personal services contract clauses, see AIDAR Appendix D—Direct USAID Contracts with U.S. Citizens or U.S. Residents for Personal Services Abroad and AIDAR Appendix J—Direct USAID Contracts with Cooperating Country Nationals <PRTPAGE P="58"/>and with Third Country Nationals for Personal Services Abroad.</P>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 51 FR 11450, Apr. 3, 1986; 51 FR 12706, Apr. 15, 1986; 57 FR 5236, Feb. 13, 1992; 62 FR 40469, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.202-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) As prescribed in 702.270 and in FAR Subpart 2.2, USAID contracts use the Definitions clause in FAR 52.202-1 and its Alternate I, as appropriate, and the following additional definitions.</P>
              <P>(b) <E T="03">Alternate 70.</E> For use in all USAID contracts. Use in addition to the clause in FAR 52.202-1.</P>
              <EXTRACT>
                <HD SOURCE="HD1">USAID Definitions Clause—General Supplement for Use in All USAID Contracts (JAN 1990)</HD>
                <P>(a) <E T="03">USAID</E> shall mean the U.S. Agency for International Development.</P>
                <P>(b) <E T="03">Administrator</E> shall mean the Administrator or the Deputy Administrator of USAID.</P>

                <P>(c) When this contract is with an educational institution <E T="03">Campus Coordinator</E> shall mean the representative of the Contractor at the Contractor's home institution, who shall be responsible for coordinating the activities carried out under the contract.</P>

                <P>(d) When this contract is with an educational institution <E T="03">Campus Personnel</E> shall mean representatives of the Contractor performing services under the contract at the Contractor's home institution and shall include the Campus Coordinator.</P>
                <P>(e) <E T="03">Consultant</E> shall mean any especially well qualified person who is engaged, on a temporary or intermittent basis to advise the Contractor and who is not an officer or employee of the Contractor who performs other duties for the Contractor.</P>
                <P>(f) <E T="03">Contractor employee</E> shall mean an employee of the Contractor assigned to work under this contract.</P>
                <P>(g) <E T="03">Cooperating Country or Countries</E> shall mean the foreign country or countries in or for which services are to be rendered hereunder.</P>
                <P>(h) <E T="03">Cooperating Government</E> shall mean the government of the Cooperating Country.</P>
                <P>(i) <E T="03">Federal Acquisition Regulations (FAR),</E> when referred to herein shall include U.S. Agency for International Development Acquisition Regulations (AIDAR).</P>
                <P>(j) <E T="03">Government</E> shall mean the United States Government.</P>
                <P>(k) <E T="03">Mission</E> shall mean the United States AID Mission to, or principal USAID office in, the Cooperating Country.</P>
                <P>(l) <E T="03">Mission Director</E> shall mean the principal officer in the Mission in the Cooperating Country, or his/her designated representative.</P>
              </EXTRACT>
              
              <P>(c) <E T="03">Alternate 71.</E> For use in USAID contracts with an educational institution for participant training. Use in addition to the clauses in FAR 52.202-1 and in 752.202-1(b) of this chapter.</P>
              <EXTRACT>
                <HD SOURCE="HD1">USAID Definitions Clause—Supplement for Contracts With an Educational Institution for Participant Training (APR 1984)</HD>
                <P>(a) <E T="03">Catalog</E> shall mean any medium by which the Institution publicly announces terms and conditions for enrollment in the Institution, including tuition and fees to be charged. This includes “bulletins,” “announcements,” or any other similar word the Institution may use.</P>
                <P>(b) <E T="03">Director</E> shall mean the individual who fills the USAID position of Director, Center for Human Capacity Development (G/HCD), or his/her authorized representative acting within the limits of his/her authority.</P>
                <P>(c) <E T="03">Fees</E> shall mean those applicable charges directly related to enrollment in the Institution. This shall not include any permit charge (e.g., parking, vehicle registration), or charges for services of a personal nature (e.g., food, housing, laundry) unless specifically called for in this contract.</P>
                <P>(d) <E T="03">Institution</E> shall mean the educational institution providing services hereunder. The terms “Institution” and “Contractor” are synonymous.</P>
                <P>(e) <E T="03">Tuition</E> shall mean the amount of money charged by an institution for instruction, not including fees as described in this section.</P>
              </EXTRACT>
              
              <P>(d) <E T="03">Alternate 72.</E> For use in all USAID contracts which involve any performance overseas. Use in addition to the clauses in FAR 52.202-1 and in 752.202-1(b) of this chapter.</P>
              <EXTRACT>
                <HD SOURCE="HD1">USAID Definitions Clause—Supplement for USAID Contracts Involving Performance Overseas (DEC 1986)</HD>
                <P>(a) <E T="03">Contractor's Chief of Party</E> shall mean the representative of the Contractor in the Cooperating Country who shall be responsible for supervision of the performance of all duties undertaken by the Contractor in the Cooperating Country.</P>
                <P>(b) <E T="03">Cooperating Country National (CCN) employee</E> means an individual who meets the citizenship requirements of 48 CFR 702.170-5 and is hired while residing outside the United States for work in a cooperating country.</P>
                <P>(c) <E T="03">Dependents</E> shall mean:</P>
                <P>(1) Spouse;</P>

                <P>(2) Children (including step and adopted children) who are unmarried and under 21 <PRTPAGE P="59"/>years of age or, regardless of age, are incapable of self support.</P>
                <P>(3) Parents (including step and legally adoptive parents), of the employee or of the spouse, when such parents are at least 51 percent dependent on the employee for support; and</P>
                <P>(4) Sisters and brothers (including step or adoptive sisters or brothers) of the employee, or of the spouse, when such sisters and brothers are at least 51 percent dependent on the employee for support, unmarried and under 21 years of age, or regardless of age, are incapable of self support.</P>
                <P>(d) <E T="03">Local currency</E> shall mean the currency of the Cooperating Country.</P>
                <P>(e) <E T="03">Regular employee</E> shall mean a Contractor employee appointed to serve one year or more in the Cooperating Country.</P>
                <P>(f)<E T="03">Short-term employee</E> shall mean a Contractor employee appointed to serve less than one year in the Cooperating Country.</P>
                <P>(g) <E T="03">Third Country National (TCN) employee</E> means an individual who meets the citizenship requirements of 48 CFR 702.170-15 and is hired while residing outside the United States for work in a Cooperating Country.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 52 FR 4145, Feb. 10, 1987; 52 FR 38098, Oct. 14, 1987; 55 FR 6802, Feb. 27, 1990; 64 FR 42042, Aug. 3, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.204-2</SECTNO>
              <SUBJECT>Security requirements.</SUBJECT>

              <P>Pursuant to the Uniform State/USAID/USIA Regulations (Volume 12, Foreign Affairs Manual, Chapter 540), USAID applies the safeguards applicable to “Confidential” information to administratively controlled information designated as “Sensitive But Unclassified”. Therefore, when the clause in FAR 52.204-2 is used in USAID contracts, pursuant to 704.404, paragraph (a) of the clause is revised as follows:
              </P>
              <EXTRACT>
                <P>(a) This clause applies to the extent that this contract involves access to classified (`Confidential', `Secret', or `Top Secret'), or administratively controlled (`Sensitive But Unclassified') information.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33668, Aug. 24, 1984; 62 FR 40469, July 29, 1997; 64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.209-71</SECTNO>
              <SUBJECT>Organizational conflicts of interest discovered after award.</SUBJECT>
              <P>As prescribed in 709.507-2, include the following clause in any solicitation containing a provision in accordance with (48 CFR) FAR 9.507-1, or a clause in accordance with (48 CFR) FAR 9.507-2, establishing a restraint on the contractor's eligibility for future contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Organizational Conflicts of Interest Discovered After Award (JUN 1993)</HD>
                <P>(a) The Contractor agrees that, if after award it discovers either an actual or potential organizational conflict of interest with respect to this contract, it shall make an immediate and full disclosure in writing to the Contracting Officer which shall include a description of the action(s) which the Contractor has taken or proposes to take to avoid, eliminate or neutralize the conflict.</P>
                <P>(b) The Contracting Officer shall provide the contractor with written instructions concerning the conflict. USAID reserves the right to terminate the contract if such action is determined to be in the best interest of the Government.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[58 FR 42255, Aug. 9, 1993, as amended at 64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.211-70</SECTNO>
              <SUBJECT>Language and measurement.</SUBJECT>
              <P>The following clause shall be used in all USAID-direct contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Language and Measurement (JUN 1992)</HD>
                <P>(a) The English language shall be used in all written communications between the parties under this contract with respect to services to be rendered and with respect to all documents prepared by the contractor except as otherwise provided in the contract or as authorized by the contracting officer.</P>
                <P>(b) Wherever measurements are required or authorized, they shall be made, computed, and recorded in metric system units of measurement, unless otherwise authorized by USAID in writing when it has found that such usage is impractical or is likely to cause U.S. firms to experience significant inefficiencies or the loss of markets. Where the metric system is not the predominant standard for a particular application, measurements may be expressed in both the metric and the traditional equivalent units, provided the metric units are listed first.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[57 FR 23321, June 3, 1992. Redesignated at 61 FR 39095, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.216-70</SECTNO>
              <SUBJECT>Award fee.</SUBJECT>
              <P>As prescribed in 716.406, insert the following clause in solicitations and contracts in which an award-fee contract is contemplated.</P>
              <EXTRACT>
                <PRTPAGE P="60"/>
                <HD SOURCE="HD1">Award Fee (MAY 1997)</HD>
                <P>(a) The Government shall pay the Contractor for performing this contract such base fee and such additional fee as may be awarded, as provided in the Schedule.</P>
                <P>(b) Payment of the base fee and award fee shall be made as specified in the Schedule; provided, that after payment of 85 percent of the base fee and potential award fee, the Contracting Officer may withhold further payment of the base fee and award fee until a reserve is set aside in an amount that the Contracting Officer considers necessary to protect the Government's interest. This reserve shall not exceed 15 percent of the total base fee and potential award fee or $100,000, whichever is less. The Contracting Officer shall release 75 percent of all fee withholds under this contract after receipt of the certified final indirect cost rate proposal covering the year of physical completion of this contract, provided the Contractor has satisfied all other contract terms and conditions, including the submission of the final patent and royalty reports, and is not delinquent in submitting final vouchers on prior years' settlements. The Contracting Officer may release up to 90 percent of the fee withholds under this contract based on the Contractor's past performance related to the submission and settlement of final indirect cost rate proposals.</P>
                <P>(c) Award fee determinations made by the Government under this contract are not subject to the Disputes clause.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[64 FR 5008, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.219-8</SECTNO>
              <SUBJECT>Utilization of small business concerns and small disadvantaged business concerns.</SUBJECT>

              <P>The Foreign Assistance Act calls for USAID to give small businesses an opportunity to provide supplies and services for foreign assistance projects. To help USAID meet this obligation, the following paragraph is to be added to the clause prescribed in FAR 19.708(a):
              </P>
              <EXTRACT>
                <P>USAID small business provision. To permit USAID, in accordance with the small business provisions of the Foreign Assistance Act, to give small business firms an opportunity to participate in supplying equipment supplies and services financed under this contract, the Contractor shall, to the maximum extent possible, provide the following information to the Office of Small and Disadvantaged Business Utilization (OSDBU), USAID, Washington, DC 20523-1414, at least 45 days prior to placing any order in excess of the simplified acquisition threshold except where a shorter time is requested of, and granted by OSDBU:</P>
                <P>(1) Brief general description and quantity of commodities or services;</P>
                <P>(2) Closing date for receiving quotations or bids; and</P>
                <P>(3) Address where invitations or specifications may be obtained.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 52 FR 21059, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 61 FR 39095, July 26, 1996; 62 FR 40469, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.225-9</SECTNO>
              <SUBJECT>Buy American Act—Trade Agreements Act—Balance of Payments Program.</SUBJECT>
              <P>The clause prescribed by FAR 25.408(a)(2) is not generally included in USAID contracts when more stringent source requirements are stated in the contract or when inclusion is not appropriate under FAR 25.403, or 725.403 of this chapter. (See Executive Order 11223, dated May 12, 1965, 30 FR 6635.) The clause setting forth USAID's source restrictions is shown in section 752.225-70.</P>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 54 FR 16122, Apr. 21, 1989; 59 FR 33447, June 29, 1994; 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.225-70</SECTNO>
              <SUBJECT>Source, origin and nationality requirements.</SUBJECT>
              <P>The following clause is required as prescribed in 725.704.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Source, Origin and Nationality Requirements (FEB 1997)</HD>
                <P>(a) Except as may be specifically approved by the Contracting Officer, all commodities (e.g., equipment, materials, vehicles, supplies) and services (including commodity transportation services) which will be financed under this contract with U.S. dollars shall be procured in accordance with the requirements in 22 CFR part 228, “Rules on Source, Origin and Nationality for Commodities and Services Financed by USAID.” The authorized source for procurement is Geographic Code 000 unless otherwise specified in the schedule of this contract. Guidance on eligibility of specific goods or services may be obtained from the Contracting Officer.</P>
                <P>(b) Ineligible goods and services. The Contractor shall not procure any of the following goods or services under this contract:</P>
                <P>(1) Military equipment,</P>
                <P>(2) Surveillance equipment,</P>
                <P>(3) Commodities and services for support of police and other law enforcement activities,</P>
                <P>(4) Abortion equipment and services,</P>
                <P>(5) Luxury goods and gambling equipment, or<PRTPAGE P="61"/>
                </P>
                <P>(6) Weather modification equipment.</P>
                <P>(c) Restricted goods. The Contractor shall not procure any of the following goods or services without the prior written approval of the Contracting Officer:</P>
                <P>(1) Agricultural commodities,</P>
                <P>(2) Motor vehicles,</P>
                <P>(3) Pharmaceuticals and contraceptive items,</P>
                <P>(4) Pesticides,</P>
                <P>(5) Fertilizer,</P>
                <P>(6) Used equipment, or</P>
                <P>(7) U.S. government-owned excess property.</P>
                <P>If USAID determines that the Contractor has procured any of these specific restricted goods under this contract without the prior written authorization of the Contracting Officer, and has received payment for such purposes, the Contracting Officer may require the contractor to refund the entire amount of the purchase.</P>
              </EXTRACT>
              <CITA>[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.225-71</SECTNO>
              <SUBJECT>Local procurement.</SUBJECT>
              <P>For use in any USAID contract involving performance overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Local Procurement (FEB 1997)</HD>
                <P>(a) Local procurement involves the use of appropriated funds to finance the procurement of goods and services supplied by local businesses, dealers, or producers, with payment normally being in the currency of the cooperating country.</P>
                <P>(b) All locally-financed procurements must be covered by source/origin and nationality waivers as set forth in subpart F of 22 CFR part 228 except as provided for in 22 CFR 228.40, Local procurement.</P>
              </EXTRACT>
              <CITA>[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997; 62 FR 47532, Sept. 9, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.226-1</SECTNO>
              <SUBJECT>Determination of status as disadvantaged enterprise.</SUBJECT>
              <P>As prescribed in 726.7006(a), insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Disadvantaged Enterprise Representation (APR 1991)</HD>
                <P>The offeror/contractor shall submit a representation in the following form to the contracting officer:</P>
                <P>(a) <E T="03">Representation.</E> The offeror represents that:</P>
                <P>(1) It □ is, □ is not a small disadvantaged business.</P>
                <P>(2) It □ is, □ is not an historically black college or university, as designated by the Secretary of Education pursuant to 34 CFR 608.2.</P>
                <P>(3) It □ is, □ is not a college or university having a student body in which more than 40 percent of the students are Hispanic American.</P>
                <P>(4) It □ is, □ is not a private voluntary organization which is controlled by individuals who are socially and economically disadvantaged.</P>
                <P>(b) <E T="03">Definitions.</E> (1) <E T="03">Asian Pacific Americans,</E> as used in this provision means United States citizens whose origins are in Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust Territory of the Pacific Islands (Republic of Palau), the Northern Mariana Islands, Laos, Kampuchea (Cambodia), Taiwan, Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Republic of the Marshall Islands, or the Federated States of Micronesia.</P>
                <P>(2) <E T="03">Controlled by socially and economically disadvantaged individuals</E> means management and daily business are controlled by one or more such individuals.</P>
                <P>(3) <E T="03">Native Americans,</E> as used in this provision means American Indians, Eskimos, Aleuts, and native Hawaiians.</P>
                <P>(4) <E T="03">Owned by socially and economically disadvantaged individuals</E> means at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged, or a publicly owned business having at least 51 percent of its stock owned by one or more socially and economically disadvantaged individuals.</P>
                <P>(5) <E T="03">Small business concern,</E> as used in this provision, means a U.S. concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualifies as a small business under the criteria and size standards in 13 CFR part 121.</P>
                <P>(6) <E T="03">Small disadvantaged business,</E> as used in this provision, means a small business concern that:</P>
                <P>(i) Is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged, or a publicly owned business having at least 51 percent of its stock owned by one or more socially and economically disadvantaged individuals; and</P>
                <P>(ii) Has its management and daily business controlled by one or more such individuals.</P>
                <P>(7) <E T="03">Subcontinent Asian Americans,</E> as used in this provision, means United States citizens whose origins are in India, Pakistan, Bangladesh, Sri Lanka, Bhutan, or Nepal.</P>
                <P>(c) <E T="03">Qualified groups.</E> The offeror shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and women.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <CITA>[56 FR 27209, June 13, 1991, as amended at 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="62"/>
              <SECTNO>752.226-2</SECTNO>
              <SUBJECT>Subcontracting with disadvantaged enterprises.</SUBJECT>
              <P>As prescribed in 726.7007, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Subcontracting With Disadvantaged Enterprises (APR 1997)</HD>
              </EXTRACT>
              <NOTE>
                <HD SOURCE="HED">Note:</HD>
                <P>This clause does not apply to prime contractors that qualify as disadvantaged enterprises as described below.</P>
              </NOTE>
              <EXTRACT>
                <P>(a) Not less than ten (10) percent of the dollar value of this contract shall be subcontracted to disadvantaged enterprises as described in paragraph (b) of this clause.</P>
                <P>(b) Disadvantaged enterprises are U.S. organizations or individuals that are:</P>
                <P>(1) Business concerns (as defined in FAR 19.001) owned and controlled by socially and economically disadvantaged individuals;</P>
                <P>(2) Institutions designated by the Secretary of Education, pursuant to 34 CFR 608.2, as historically black colleges and universities:</P>
                <P>(3) Colleges and universities having a student body in which more than 40 percent of the students are Hispanic American; or</P>
                <P>(4) Private voluntary organizations which are controlled by individuals who are socially and economically disadvantaged.</P>
                <P>(c) <E T="03">Definitions.</E> (1) <E T="03">Controlled by socially and economically disadvantaged individuals</E> means management and daily business are controlled by one or more such individuals.</P>
                <P>(2) <E T="03">Owned by socially and economically disadvantaged individuals</E> means at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged, or a publicly owned business having at least 51 percent of its stock owned by one or more socially and economically disadvantaged individuals.</P>
                <P>(3) <E T="03">Socially and economically disadvantaged individuals</E> has the same meaning as in FAR 19.001, except that the term also includes women.</P>
                <P>(d) Contractors should require representations from their subcontractors regarding their status as a disadvantaged enterprise. Contractors acting in good faith may rely on such representations by their subcontractors.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[56 FR 27210, June 13, 1991, as amended at 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.226-3</SECTNO>
              <SUBJECT>Limitation on subcontracting.</SUBJECT>
              <P>As prescribed in 726.7008, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Limitations on Subcontracting (JUN 1993)</HD>
                <P>By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract, at least 51 percent of the cost of contract performance incurred for personnel shall be expended for employees of the contractor or employees of other disadvantaged enterprises eligible under the terms of 706.302-71. For the purposes of this clause, independent contractors hired by the contractor shall be considered employees of the contractor.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[58 FR 42255, Aug. 9, 1993, as amended at 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.228-3</SECTNO>
              <SUBJECT>Worker's compensation insurance (Defense Base Act).</SUBJECT>

              <P>As prescribed in 728.309, the following supplemental coverage is to be added to the clause specified in FAR 52.228-3 by the USAID contracting officer.
              </P>
              <EXTRACT>
                <P>(a) The Contractor agrees to procure Defense Base Act (DBA) insurance pursuant to the terms of the contract between USAID and USAID's DBA insurance carrier unless the Contractor has a DBA self insurance program approved by the Department of Labor or has an approved retrospective rating agreement for DBA.</P>
                <P>(b) If USAID or the contractor has secured a waiver of DBA coverage (see AIDAR 728.305-70(a)) for contractor's employees who are not citizens of, residents of, or hired in the United States, the contractor agrees to provide such employees with worker's compensation benefits as required by the laws of the country in which the employees are working, or by the laws of the employee's native country, whichever offers greater benefits.</P>
                <P>(c) The Contractor further agrees to insert in all subcontracts hereunder to which the DBA is applicable, a clause similar to this clause, including this sentence, imposing on all subcontractors a like requirement to provide overseas workmen's compensation insurance coverage and obtain DBA coverage under the USAID requirements contract.</P>
              </EXTRACT>
              <CITA>[53 FR 50631, Dec. 16, 1988, as amended at 54 FR 16122, Apr. 21, 1989; 56 FR 67226, Dec. 30, 1991]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.228-7</SECTNO>
              <SUBJECT>Insurance—liability to third persons.</SUBJECT>

              <P>As prescribed in 728.307-2(c), the following paragraph is to be added to the clause specified in FAR 52.228-7 as either paragraph (h) (if FAR 52.228-7 <E T="03">Alternate I</E> is not used) or (i) (if FAR 52.228-7 Alternate I is used):
              </P>
              <EXTRACT>
                <P>() <E T="03">Insurance on private automobiles.</E> If the Contractor or any of its employees or their <PRTPAGE P="63"/>dependents transport or cause to be transported (whether or not at contract expense) privately owned automobiles to the Cooperating Country, or they or any of them purchase an automobile within the Cooperating Country, the Contractor agrees to make certain that all such automobiles during such ownership within the Cooperating Country will be covered by a paid-up insurance policy issued by a reliable company providing the following minimum coverages or such other minimum coverages as may be set by the Mission Director, payable in United States dollars or its equivalent in the currency of the Cooperating Country: injury to persons, $10,000/$20,000; property damage, $5,000. The premium costs for such insurance shall not be a reimbursable cost under this contract. Copies of such insurance policies shall be preserved and made available as part of the Contractor's records which are required to be preserved and made available by the “Audit and Records—Negotiation” clause of this contract.</P>
              </EXTRACT>
              <CITA>[53 FR 50632, Dec. 16, 1988, as amended at 54 FR 16122, Apr. 21, 1989; 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.228-9</SECTNO>
              <SUBJECT>Cargo insurance.</SUBJECT>

              <P>As prescribed in 728.313(a), the following preface is to be used preceding the text of the clause at FAR 52.228-9:
              </P>
              <EXTRACT>
                <P>
                  <E T="04">Preface:</E> To the extent that marine insurance is necessary or appropriate under this contract, the contractor shall ensure that U.S. marine insurance companies are offered a fair opportunity to bid for such insurance. This requirement shall be included in all subcontracts under this contract.</P>
              </EXTRACT>
              <CITA>[53 FR 50632, Dec. 16, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.228-70</SECTNO>
              <SUBJECT>Medical Evacuation (MEDEVAC) Services.</SUBJECT>
              <P>As prescribed in 728.307-70, for use in all contracts requiring performance overseas:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Medical Evacuation (MEDEVAC) Services (MAR 1993)</HD>
                <P>(a) Contractors agree to provide medevac service coverage to all U.S. citizen, U.S. resident alien, and Third Country National employees and their authorized dependents while overseas under an USAID financed direct contract. Coverage shall be obtained pursuant to the terms of the contract between USAID and USAID's medevac service provider unless exempted in accordance with paragraph (b) of this clause.</P>
                <P>(b) The following are exempted from the requirements in paragraph (a) of this clause:</P>
                <P>(i) Eligible employees and their dependents with a health program that includes sufficient medevac coverage as approved by the Contracting Officer.</P>
                <P>(ii) Eligible employees and their dependents located at Missions where the Mission Director makes a written determination to waive the requirement for such coverage based on findings that the quality of local medical services or other circumstances obviate the need for such coverage.</P>
                <P>(c) Contractors further agree to insert in all subcontracts hereunder to which the medevac coverage is applicable, a clause similar to this clause, including this sentence, imposing on all subcontractors a like requirement to provide medical evacuation services coverage and obtain medevac coverage in accordance with the contract between USAID and USAID's medevac service provider.</P>
              </EXTRACT>
              <CITA>[59 FR 33447, June 29, 1994]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.229-70</SECTNO>
              <SUBJECT>Federal, state and local taxes.</SUBJECT>
              <P>For contracts involving performance overseas the clauses prescribed in FAR 29.401-3 or 29.401-4 may be modified to specify that the taxes referred to are United States taxes.</P>
            </SECTION>
            <SECTION>
              <SECTNO>752.231-71</SECTNO>
              <SUBJECT>Salary supplements for HG employees.</SUBJECT>
              <P>As prescribed in 731.205-71, for use in all contracts with a possible need or services of a HG employee. The clause should also be inserted in all subsequent sub-contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Salary Supplements for HG Employees (OCT 1998)</HD>
                <P>(a) Salary supplements are payments made that augment an employee's base salary or premiums, overtime, extra payments, incentive payment and allowances for which the HG employee would qualify under HG rules or practice for the performance of his/hers regular duties or work performed during his/hers regular office hours. Per diem, invitational travel, honoraria and payment for work carried out outside of normal working hours are not considered to be salary supplements.</P>
                <P>(b) Salary supplements to HG Employees are not allowable without the written approval of the Contracting Officer.</P>
              </EXTRACT>
              <CITA>[64 FR 16649, Apr. 6, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.232-7</SECTNO>
              <SUBJECT>Payments under time-and-materials and labor-hour contracts.</SUBJECT>

              <P>USAID uses the payment provision contained in FAR 52.232-7 in indefinite quantity contracts for professional services up to 120 days, as provided in <PRTPAGE P="64"/>USAIDAR 716.501(c). When this provision is used the following preamble will be included:
              </P>
              <EXTRACT>
                <P>For the purposes of this clause certain terms shall be interpreted as follows:</P>
                <P>The term <E T="03">contract(s)</E> includes “delivery order(s)”; “hour(s)”, or “hourly” may be calculated in terms of “day(s)” or “daily (8 hours)”; and “materials” includes “other direct costs”.</P>
              </EXTRACT>
              <CITA>[50 FR 11450, Apr. 3, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.232-70</SECTNO>
              <SUBJECT>Letter of credit advance payment.</SUBJECT>
              <P>As required by 732.406-73 insert the following clause in contracts being paid by Letter of Credit.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Letter of Credit Advance Payment (OCT 1989)</HD>
                <P>(a) Payment under this contract shall be by means of a Letter of Credit (LOC) in accordance with the terms and conditions of the LOC and any instructions issued by the USAID Office of Financial Management, Cash Management and Payment Division (FM/CMP).</P>
                <P>(b) As long as the LOC is in effect, the terms and conditions of the LOC and any instructions issued by FM/CMP constitute the payment conditions of this contract, superseding and taking precedence over any other clause of this contract concerning payment.</P>
                <P>(c) If the LOC is revoked, payment may be made on a cost-reimbursement basis, in accordance with the other clauses of this contract concerning payment.</P>
                <P>(d) Revocation of the LOC is at the discretion of FM/CMP after consultation with the contracting officer. Notification to the contractor of revocation must be in writing and must specify the reasons for such action. The contractor may appeal any such revocation to the contracting officer, in accordance with the Disputes clause of this contract. Pending final decision, payments under the contact will be in accordance with paragraph (c) of this clause.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33668, Aug. 24, 1984; 54 FR 46391, Nov. 3, 1989; 56 FR 67226, Dec. 30, 1991; 59 FR 33447, June 29, 1994]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.245-70</SECTNO>
              <SUBJECT>Government property—USAID reporting requirements.</SUBJECT>

              <P>In response to a GAO audit recommendation, USAID contracts, except for those for commercial items, must contain the following preface and reporting requirement as additions to the appropriate Government Property clause prescribed by FAR 45.106.
              </P>
              <EXTRACT>
                <P>
                  <E T="03">Preface:</E> to be inserted preceding the text of the FAR clause.</P>
                <P>The term <E T="03">Government furnished property</E> wherever it may appear in the following clause, shall mean (1) non-expendable personal property owned by or leased to the U.S. Government and furnished to the contractor <E T="03">and</E> (2) personal property furnished either prior to or during the performance of this contract by any U.S. Government accountable officer to the contractor for use in connection with performance of this contract and identified by such officer as accountable. The term <E T="03">government property,</E> wherever it may appear in the following clause, shall mean government-furnished property and non-expendable personal property title to which vests in the U.S. Government under this contract. Non-expendable property, for purposes of this contract, is defined as property which is complete in itself, does not lose its identity or become a component part of another article when put into use; is durable, with an expected service life of two years or more; and which has a unit cost of more than $500.</P>
                <P>
                  <E T="03">Reporting Requirement:</E> to be inserted following the text of the FAR clause.</P>
                <P>
                  <E T="03">Reporting Requirements:</E> The contractor will submit an annual report on all non-expendable property in a form and manner acceptable to USAID substantially as follows:</P>
                <GPOTABLE CDEF="s10,5,5,5" COLS="4" OPTS="L2">
                  <TTITLE>Annual Report of Government Property in Contractor's Custody</TTITLE>
                  <TDESC>[(Name of contractor) as of (end of contract year), 19xx]</TDESC>
                  <BOXHD>
                    <CHED H="1">Motor vehicles</CHED>
                    <CHED H="1">Furniture and furnishings—</CHED>
                    <CHED H="2">Office</CHED>
                    <CHED H="2">Living quarters</CHED>
                    <CHED H="1">Other nonexpend- able property</CHED>
                  </BOXHD>
                  <ROW>
                    <ENT I="01">A. Value of property as of last report</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="01">B. Transactions during this reporting period</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="11">1. Acquisitions (add):</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="02">a. Purchased by contractor <SU>1</SU>
                    </ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="02">b. Transferred from USAID <SU>2</SU>
                    </ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="02">c. Transferred from others, without reimbursement <SU>3</SU>
                    </ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="11">2. Disposals (deduct):</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="02">a. Returned to USAID</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="02">b. Transferred to USAID—contractor purchased</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="02">c. Transferred to other Government agencies <SU>3</SU>
                    </ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="02">d. Other disposals <SU>3</SU>
                    </ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="01">C. Value of property as of reporting date</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW RUL="s">
                    <ENT I="01">D. Estimated average age of contractor held property</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="22"/>
                    <ENT>Years</ENT>
                    <ENT>Years</ENT>
                    <ENT>Years</ENT>
                  </ROW>
                  <TNOTE>

                    <SU>1</SU> Property which is complete in itself, does not lose its identity or become a component part of another article when put into use; is durable, with an expected service life of two years or more; and which has a unit cost of more than $500.<PRTPAGE P="65"/>
                  </TNOTE>
                  <TNOTE>
                    <SU>2</SU> Government furnished property listed in this Contract as nonexpendable.</TNOTE>
                  <TNOTE>
                    <SU>3</SU> Explain if transactions were not processed through or otherwise authorized by USAID.</TNOTE>
                </GPOTABLE>
                <HD SOURCE="HD1">Property Inventory Verifications</HD>
                <P>I attest that (1) physical inventories of Government property are taken not less frequently than annually; (2) the accountability records maintained for Government property in our possession are in agreement with such inventories; and (3) the total of the detailed accountability records maintained agrees with the property value shown opposite line C above, and the estimated average age of each category of property is as cited opposite line D above.</P>
                <FP SOURCE="FP-DASH"/>
                <HD SOURCE="HD3">Authorized Signature</HD>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.245-71</SECTNO>
              <SUBJECT>Title to and care of property.</SUBJECT>
              <P>As prescribed in 745.106(a), the following clause shall be included in all contracts when the contractor will acquire property under the contract for use overseas and the contract funds were obligated under a Strategic Objective agreement (or similar agreement) with the cooperating country.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Title to and Care of Property (APR 1984)</HD>
                <P>(a) Title to all non-expendable property purchased with contract funds under this contract and used in the Cooperating Country, shall at all times be in the name of the Cooperating Government, or such public or private agency as the Cooperating Government may designate, unless title to specified types or classes of non-expendable property is reserved to USAID under provisions set forth in the schedule of this contract; but all such property shall be under the custody and control of Contractor until the owner of title directs otherwise, or completion of work under this contract or its termination, at which time custody and control shall be turned over to the owner of title or disposed of in accordance with its instructions. All performance guaranties and warranties obtained from suppliers shall be taken in the name of the title owner. (Non-expendable property is property which is complete in itself, does not lose its identity or become a component part of another article when put into use; is durable, with an expected service life of two years or more; and which has a unit cost of $500 of more.)</P>
                <P>(b) Contractor shall prepare and establish a program, to be approved by the Mission, for the receipt, use, maintenance, protection, custody, and care of non-expendable property for which it has custodial responsibility, including the establishment of reasonable controls to enforce such program.</P>
                <P>(c)(1) For non-expendable property to which title is reserved to the U.S. Government under provisions set forth in the schedule of this contract, Contractor shall submit an annual report on all non-expendable property under its custody as required in the clause of this contract entitled “Government Property”.</P>
                <P>(2) For non-expendable property titled to the Cooperating Government, the Contractor shall, within 90 days after completion of this contract, or at such other date as may be fixed by the Contracting Officer, submit an inventory schedule covering all items of non-expendable property under its custody, which have not been consumed in the performance of this contract. The Contractor shall also indicate what disposition has been made of such property.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997; 64 FR 5009, Feb. 2, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 752.70—Texts of USAID Contract Clauses</HD>
            <SECTION>
              <SECTNO>752.247-70</SECTNO>
              <SUBJECT>Preference for privately owned U.S.-flag commercial vessels.</SUBJECT>
              <P>As prescribed in 747.507, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Preference for Privately Owned U.S.-Flag Commercial Vessels (OCT 1996)</HD>
                <P>(a) Under the provisions of the Cargo Preference Act of 1954 (46 U.S.C. 1241(b)) at least 50 percent of the gross tonnage of equipment, materials, or commodities financed by USAID, or furnished without provision for reimbursement, or at least 75 percent of the gross tonnage of cargo moving under P.L. 480 financed by the U.S. Department of Agriculture, that may be transported in ocean vessels (computed separately for dry bulk carriers, dry cargo liners, and tankers) shall be transported in privately owned U.S.-flag commercial vessels.</P>
                <P>(b) In accordance with USAID regulations and consistent with the regulations of the Maritime Administration, USAID applies Cargo Preference requirements on the basis of programs or activities that generally include more than one contract. Thus, the amount of cargo fixed on privately owned U.S.-flag vessels under this contract may be more or less than the required 50 or 75 percent, depending on current compliance with Cargo Preference requirements. If freight under the contract is fixed on a U.S. flag vessel, Alternate I of this clause shall apply.</P>

                <P>(c)(1) The contractor shall submit one legible copy of a rated on-board ocean bill of <PRTPAGE P="66"/>lading for each shipment to both the Division of National Cargo, Office of Cargo Preference, Maritime Administration, U.S. Department of Transportation, Washington, DC 20590, and the Transportation Division, Office of Procurement, USAID, Washington, DC 20523-7900.</P>
                <P>(2) The contractor shall furnish these bill of lading copies within 20 working days of the date of loading for shipments originating in the United States, or within 30 working days for shipments originating outside the United States. Each bill of lading copy shall contain the following information:</P>
                <P>(i) Sponsoring U.S. Government agency.</P>
                <P>(ii) Name of vessel.</P>
                <P>(iii) Vessel flag registry.</P>
                <P>(iv) Date of loading.</P>
                <P>(v) Port of loading.</P>
                <P>(vi) Port of final discharge.</P>
                <P>(vii) Description of commodity.</P>
                <P>(viii) Gross weight in pounds and cubic feet if available.</P>
                <P>(ix) Total ocean freight revenue in U.S. dollars.</P>
                <HD SOURCE="HD2">Alternate I</HD>
                <P>(d) If freight is fixed on a U.S. flag vessel, except as provided in paragraph (e) of this clause, the contractor shall use privately owned U.S. flag commercial vessels, and no others, in the ocean transportation of any supplies to be furnished under this contract.</P>
                <P>(e) If such vessels are not available, or not available at rates that are fair and reasonable for privately owned U.S. flag commercial vessels, the Contractor shall notify the contracting officer and request either authorization to ship in foreign-flag vessels or designation of available U.S.-flag vessels. If the Contractor is authorized in writing by the Contracting Officer to ship the supplies in foreign-flag vessels, the contract price shall be equitably adjusted to reflect the difference in costs of shipping the suppliers in privately owned U.S.-flag commercial vessels and foreign-flag vessels.</P>
              </EXTRACT>
              <CITA>[64 FR 5009, Feb. 2, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 752.70—Texts of USAID Contract Clauses</HD>
            <SECTION>
              <SECTNO>752.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>Subpart 752.70 contains the text of USAID-specific contract clauses for which there is no FAR equivalent. The clauses in this subpart do not apply to contracts for personal services. For personal service contract clauses see AIDAR Appendix D—Direct USAID Contracts with U.S. Citizens or U.S. Residents for Personal Services Abroad and AIDAR Appendix J—Direct USAID Contracts with Cooperating Country Nationals and with Third Country Nationals for Personal Services Abroad.</P>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 57 FR 5237, Feb. 13, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7001</SECTNO>
              <SUBJECT>Biographical data.</SUBJECT>
              <P>The following clause is to be included in all USAID cost reimbursement contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Biographical Data (JUL 1997)</HD>
                <P>The Contractor agrees to furnish to the Contracting Officer on USAID Form 1420-17, “Contractor Employee Biographical Data Sheet”, biographical information on the following individuals to be employed in the performance of the contract: (1) All individuals to be sent outside the United States, or (2) any employees designated as “key personnel”. Biographical data in the form usually maintained by the Contractor on the other individuals employed under the contract shall be available for review by USAID at the Contractor's headquarters. A supply of USAID Form 1420-17 will be provided with this contract. The Contractor may reproduce additional copies as necessary.</P>
              </EXTRACT>
              <CITA>[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997; 62 FR 47532, Sept. 9, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7002</SECTNO>
              <SUBJECT>Travel and transportation.</SUBJECT>
              <P>For use in cost reimbursement contracts performed in whole or in part overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Travel and Transportation (JAN 1990)</HD>
                <P>(a) <E T="03">General.</E> The Contractor will be reimbursed for reasonable, allocable and allowable travel and transportation expenses incurred under and for the performance of this contract. Determination of reasonableness, allocability and allowability will be made by the Contracting Officer based on the applicable cost principles, the Contractor's established policies and procedures, USAID's established policies and procedures for USAID direct-hire employees, and the particular needs of the project being implemented by this contract. The following paragraphs provide specific guidance and limitations on particular items of cost.</P>
                <P>(b) <E T="03">International travel.</E> For travel to and from post of assignment the Contractor shall be reimbursed for travel costs and travel allowances of travelers from place of residence in the United States (or other location provided that the cost of such travel does not exceed the cost of the travel from the employee's residence in the United States) to the post of duty in the Cooperating Country and return to place of residence in the United States (or other location provided that the cost of such travel does not exceed <PRTPAGE P="67"/>the cost of travel from the post of duty in the Cooperating Country to the employee's residence) upon completion of services by the individual. Reimbursement for travel will be in accordance with the applicable cost principles and the provisions of this contract, and will be limited to the cost of travel by the most direct and expeditious route. If a regular employee does not complete one full year at post of duty (except for reasons beyond his/her control), the costs of going to and from the post of duty for that employee and his/her dependents are not reimbursable hereunder. If the employee serves more than one year but less than the required service in the Cooperating Country (except for reasons beyond his/her control) the costs of going to the post of duty are reimbursable hereunder but the costs of going from post of duty to the employee's permanent, legal place of residence at the time he or she was employed for work under this contract or other location as approved by the Contracting Officer are not reimbursable under this contract for the employee and his/her dependents. When travel is by economy class accommodations, the Contractor will be reimbursed for the cost of transporting up to 22 pounds of accompanied personal baggage per traveler in addition to that regularly allowed with the economy ticket provided that the total number of pounds of baggage does not exceed that regularly allowed for first class travelers. Travel allowances for travelers shall not be in excess of the rates authorized in the Standardized Regulations (Government Civilians, Foreign Areas)—hereinafter referred to as the Standardized Regulations—as from time to time amended, for not more than the travel time required by scheduled commercial air carrier using the most expeditious route. One stopover en route for a period of not to exceed 24 hours is allowable when the traveler uses economy class accommodations for a trip of 14 hours or more of scheduled duration. Such stopover shall not be authorized when travel is by indirect route or is delayed for the convenience of the traveler. Per diem during such stopover shall be paid in accordance with the established practice of the Contractor but not to exceed the amounts stated in the Standardized Regulations.</P>
                <P>(c) <E T="03">Local travel.</E> Reimbursement for local travel in connection with duties directly referable to the contract shall not be in excess of the rates established by the Mission Director for the travel costs of travelers in the Cooperating Country. In the absence of such established rates the Contractor shall be reimbursed for actual travel costs of travelers in the Cooperating Country, if not provided by the Cooperating Government or the Mission, including travel allowances at rates not in excess of those prescribed by the Standardized Regulations.</P>
                <P>(d) <E T="03">Travel for consultation.</E> The Contractor shall be reimbursed for the round trip of the Contractor's Chief of Party in the Cooperating Country or other designated Contractor employee or consultant in the Cooperating Country performing services required under this Contract, for travel from the Cooperating Country to the Contractor's office in the United States or to USAID/Washington for consultation and return on occasions deemed necessary by the Contractor and approved in advance, in writing, by the Contracting Officer or the Mission Director.</P>
                <P>(e) <E T="03">Special international travel and third country travel.</E> For special travel which advances the purpose of the contract, which is not otherwise provided by the Cooperating Government, and with the prior written approval of the Contracting Officer or the Mission Director, the Contractor shall be reimbursed for (i) the travel cost of travelers other than between the United States and the Cooperating Country and for local travel within other countries and (ii) travel allowance for travelers while in travel status and while performing services hereunder in such other countries at rates not in excess of those prescribed by the Standardized Regulations.</P>
                <P>(f) <E T="03">Indirect travel for personal convenience.</E> When travel is performed by an indirect route for the personal convenience of the traveler, the allowable costs of such travel will be computed on the basis of the cost of allowable air fare via the direct usually traveled route. If such costs include fares for air or ocean travel by foreign flag carriers, approval for indirect travel by such foreign flag carriers must be obtained from the Contracting Officer or the Mission Director before such travel is undertaken, otherwise only that portion of travel accomplished by United States-flag carriers will be reimbursable within the above limitation of allowable costs.</P>
                <P>(g) <E T="03">Limitation on travel by dependents.</E> Travel costs and allowances will be allowed only for dependents of regular employees and such costs shall be reimbursed for travel from place of abode to assigned station in the Cooperating Country and return, only if dependent remains in the country for at least 9 months or one-half of the required tour of duty of the regular employee responsible for such dependent, whichever is greater. If the dependent is eligible for educational travel pursuant to the “Differential and Allowances” clause of this contract, time spent away from post resulting from educational travel will be counted as time at post.</P>
                <P>(h) <E T="03">Delays en route.</E> The Contractor may grant to travelers under this contract reasonable delays en route while in travel status when such delays are caused by events beyond the control of such traveler or Contractor. It is understood that if delay is <PRTPAGE P="68"/>caused by physical incapacitation, personnel shall be eligible for such sick leave as provided under the “Leave and Holidays” clause of this contract.</P>
                <P>(i) <E T="03">Travel by privately owned automobile.</E> The Contractor shall be reimbursed for the cost of travel performed by a regular employee in his/her privately owned automobile at a rate not to exceed that authorized in the Federal Travel Regulations plus authorized per diem for the employee and for each of the authorized dependents traveling in the automobile, if the automobile is being driven to or from the Cooperating Country as authorized under the contract, provided that the total cost of the mileage and the per diem paid to all authorized travelers shall not exceed the total constructive cost of fare and normal per diem by all authorized travelers by surface common carrier or authorized air fare, whichever is less.</P>
                <P>(j) <E T="03">Emergency and irregular travel and transportation.</E> Emergency transportation costs and travel allowances while en route, as provided in this section will also be reimbursed not to exceed amounts authorized by the Foreign Service Travel Regulations for USAID-direct hire employees in like circumstances under the following conditions:</P>
                <P>(1) The costs of going from post of duty in the Cooperating Country to the employee's permanent, legal place of residence at the time he or she was employed for work under this contract or other location for Contractor employees and dependents and returning to the post of duty, when the Contractor's Chief of Party, with the concurrence of the Contracting Officer or Mission Director makes a written determination that such travel is necessary for one of the reasons specified in subparagraphs (j)(1) (i) and (ii) of this section. A copy of the written determination shall be furnished to the Contracting Officer.</P>
                <P>(i) Need for medical care beyond that available within the area to which the employee is assigned, or serious effect on physical or mental health if residence is continued at assigned post of duty, subject in either case, to the limitations stated in the clause of this contract entitled “Personnel—Physical Fitness of Employee and Dependents.” The Mission Director may authorize a medical attendant to accompany the employee at contract expense if, based on medical opinion, such an attendant is necessary.</P>
                <P>(ii) Death, or serious illness or injury of a member of the immediate family of the employee or the immediate family of the employee's spouse.</P>
                <P>(2) When, for any reason, the Mission Director determines it is necessary to evacuate the Contractor's entire team (employees and dependents) or Contractor dependents only, the Contractor will be reimbursed for travel and transportation expenses and travel allowance while en route, for the cost of the individuals going from post of duty in the Cooperating Country to the employee's permanent, legal place of residence at the time he or she was employed for work under this contract or other approved location. The return of such employees and dependents may also be authorized by the Mission Director when, in his/her discretion, he/she determines it is prudent to do so.</P>
                <P>(3) The Mission Director may also authorize emergency or irregular travel and transportation in other situations, when in his/her opinion, the circumstances warrant such action. The authorization shall include the kind of leave to be used and appropriate restrictions as to time away from post, transportation of personal and/or household effects, etc. Requests for such emergency travel shall be submitted through the Contractor's Chief of Party.</P>
                <P>(k) <E T="03">Home leave travel.</E> To the extent that home leave has been authorized as provided in the “Leave and Holidays” clause of this contract, the cost of travel for home leave is reimbursable for travel costs and travel allowances of travelers from the post of duty in the Cooperating Country to place of residence in the United States (or other location provided that the cost of such travel does not exceed the cost of travel to the employee's residence in the United States) and return to the post of duty in the Cooperating Country. Reimbursement for travel will be in accordance with the applicable cost principles and the provisions of this contract, and will be limited to the cost of travel by the most direct and expeditious route. When travel is by economy class accommodations, the Contractor will be reimbursed for the cost of transporting up to 22 pounds of accompanied personal baggage per traveler in addition to that regularly allowed with the economy ticket provided that the total number of pounds of baggage does not exceed that regularly allowed for first class travelers. Travel allowances for travelers shall not be in excess of the rates authorized in the Standardized Regulations as from time to time amended, for not more than the travel time required by scheduled commercial air carrier using the most expeditious route. One stopover en route for a period of not to exceed 24 hours is allowable when the traveler uses economy class accommodations for a trip of 14 hours or more of scheduled duration. Such stopover shall not be authorized when travel is by indirect route or is delayed for the convenience of the traveler. Per diem during such stopover shall be paid in accordance with the established practice of the Contractor but not to exceed the amounts stated in the Standardized Regulations.</P>
                <P>(l) <E T="03">Rest and recuperation travel.</E> The Contractor shall be reimbursed for the cost of travel performed by regular employees and dependents for purposes of rest and recuperation provided that such reimbursement does <PRTPAGE P="69"/>not exceed that authorized for USAID direct hire employees, and provided further that no reimbursement will be made unless approval is given by the Contractor's Chief of party.</P>
                <P>(m) <E T="03">Transportation of motor vehicles, personal effects and household goods.</E> (1) Transportation, including packing and crating costs, will be paid for shipping from the point of origin in the United States (or other location as approved by the Contracting Officer) to post of duty in the Cooperating Country and return to point of origin in the United States (or other location as approved by the Contracting Officer) of one privately-owned vehicle for each regular employee, personal effects of travelers and household goods of each regular employee not to exceed the limitations in effect for such shipments for USAID direct hire employees in accordance with the Foreign Service Travel Regulations as in effect when shipment is made.</P>
                <P>(2) If a regular employee does not complete one full year at post of duty (except for reasons beyond his/her control), the costs for transportation of vehicles, effects and goods to and from the post of duty are not reimbursable hereunder. If the employee serves more than one year but less than the required service in the Cooperating Country (except for reasons beyond his/her control) the costs for transportation of vehicles, effects and goods to the post of duty are reimbursable hereunder but the costs for transportation of vehicles, effects and goods from post of duty to the employee's permanent, legal place of residence at the time he or she was employed for work under this contract or other location as approved by the Contracting Officer are not reimbursable under this contract.</P>
                <P>(3) The cost of transporting motor vehicles and household goods shall not exceed the cost of packing, crating and transportation by surface. In the event that the carrier does not require boxing or crating of motor vehicles for shipment to the Cooperating Country, the cost of boxing or crating is not reimbursable. The transportation of a privately-owned motor vehicle for a regular employee may be authorized by the Contractor as replacement of the last such motor vehicle shipped under this contract for the employee when the Mission Director or his/her designee determines in advance and so notifies the Contractor in writing that the replacement is necessary for reasons not due to the negligence or malfeasance of the regular employee. The determination shall be made under the same rules and regulations that apply to Mission employees.</P>
                <P>(n) <E T="03">Unaccompanied baggage.</E> Unaccompanied baggage is considered to be those personal belongings needed by the traveler immediately upon arrival at destination. To permit the arrival of effects to coincide with the arrival of regular employees and dependents, consideration should be given to advance shipments of unaccompanied baggage. The Contractor will be reimbursed for costs of shipment of unaccompanied baggage (in addition to the weight allowance for household effects) not to exceed the limitations in effect for USAID direct hire employees in accordance with the Foreign Service Travel Regulations as in effect when shipment is made.</P>
                <P>This unaccompanied baggage may be shipped as air freight by the most direct route between authorized points of origin and destination regardless of the modes of travel used. This provision is applicable to home leave travel and to short-term employees when these are authorized by the terms of this contract.</P>
                <P>(o) <E T="03">Storage of household effects.</E> The cost of storage charges (including packing, crating, and drayage costs) in the U.S. of household goods of regular employees will be permitted in lieu of transportation of all or any part of such goods to the Cooperating Country under paragraph (m) above provided that the total amount of effects shipped to the Cooperating Country or stored in the U.S. shall not exceed the amount authorized for USAID direct hire employees under the Uniform Foreign Service Travel Regulations.</P>
                <P>(p) <E T="03">International ocean transportation.</E> (1) Flag eligibility requirements for ocean carriage are covered by the “Source and Nationality Requirements” clause of this contract.</P>
                <P>(i) Transportation of things. Where U.S. flag vessels are not available, or their use would result in a significant delay, the Contractor may obtain a release from this requirement from the Transportation Division, Office of Procurement, U.S. Agency for International Development, Washington, DC. 20523-1419, or the Mission Director, as appropriate, giving the basis for the request.</P>
                <P>(ii) Transportation of persons. Where U.S. flag vessels are not available, or their use would result in a significant delay, the Contractor may obtain a release from this requirement from the Contracting Officer or the Mission Director, as appropriate.</P>
                <P>(2) Transportation of foreign-made vehicles. Reimbursement of the costs of transporting a foreign-made motor vehicle will be made in accordance with the provisions of the Foreign Service Travel Regulations.</P>

                <P>(3) Reduced rates on U.S. flag carriers. Reduced rates on United States flag carriers are in effect for shipments of household goods and personal effects of USAID contract personnel. These reduced rates are available provided the shipper states on the bill of lading that the cargo is “Personal property-not for resale-payment of freight charges is at U.S. Government (USAID) expense and any special or diplomatic discounts accorded this type cargo are applicable.” The Contractor will not be reimbursed for shipments of household goods or personal effects in an <PRTPAGE P="70"/>amount in excess of the reduced rates available in accordance with the foregoing.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[55 FR 6803, Feb. 27, 1990, as amended at 56 FR 2699, Jan. 24, 1991]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7003</SECTNO>
              <SUBJECT>Documentation for payment.</SUBJECT>
              <P>The following clause is required in all USAID direct contracts, excluding fixed price contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Documentation for Payment (NOV 1998)</HD>
                <P>(a) Claims for reimbursement or payment under this contract must be submitted to the Paying Office indicated in the schedule of this contract. The cognizant technical officer (CTO) is the authorized representative of the Government to approve vouchers under this contract. The Contractor must submit either paper or fax versions of the SF-1034—Public Voucher for Purchases and Services Other Than Personal. Each voucher shall be identified by the appropriate USAID contract number, in the amount of dollar expenditures made during the period covered.</P>
                <P>(1) The SF 1034 provides space to report by line item for products or services provided. The form provides for the information to be reported with the following elements:</P>
                <GPOTABLE CDEF="s40,r100,15,15" COLS="4" OPTS="L2">
                  <TTITLE>Total Expenditures</TTITLE>
                  <TDESC>[Document Number: XXX-X-XX-XXXX-XX]</TDESC>
                  <BOXHD>
                    <CHED H="1">Line item No.</CHED>
                    <CHED H="1">Description</CHED>
                    <CHED H="1">Amt. vouchered to date</CHED>
                    <CHED H="1">Amt. vouchered this period</CHED>
                  </BOXHD>
                  <ROW>
                    <ENT I="01">001</ENT>
                    <ENT>Product/Service Desc. for Line Item 001</ENT>
                    <ENT>$XXXX.XX</ENT>
                    <ENT>$ XXXX.XX</ENT>
                  </ROW>
                  <ROW RUL="n,n,s">
                    <ENT I="01">002</ENT>
                    <ENT>Product/Service Desc. for Line Item 002</ENT>
                    <ENT>XXXX.XX</ENT>
                    <ENT>XXXX.XX</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="04">Total</ENT>
                    <ENT/>
                    <ENT>XXXX.XX</ENT>
                    <ENT>XXXX.XX</ENT>
                  </ROW>
                </GPOTABLE>

                <P>(2) The fiscal report shall include the following certification signed by an authorized representative of the Contractor:
                </P>

                <P>The undersigned hereby certifies to the best of my knowledge and belief that the fiscal report and any attachments have been prepared from the books and records of the Contractor in accordance with the terms of this contract and are correct: the sum claimed under this contract is proper and due, and all the costs of contract performance (except as herewith reported in writing) have been paid, or to the extent allowed under the applicable payment clause, will be paid currently by the Contractor when due in the ordinary course of business; the work reflected by these costs has been performed, and the quantities and amounts involved are consistent with the requirements of this Contract; all required Contracting Officer approvals have been obtained; and appropriate refund to USAID will be made promptly upon request in the event of disallowance of costs not reimbursable under the terms of this contract.
                </P>
                <FP SOURCE="FP-DASH">BY:</FP>
                
                <FP SOURCE="FP-DASH">TITLE:</FP>
                
                <FP SOURCE="FP-DASH">DATE:</FP>
                <P>(b) <E T="03">Local currency payment.</E> The Contractor is fully responsible for the proper expenditure and control of local currency, if any, provided under this contract. Local currency will be provided to the Contractor in accordance with written instructions provided by the Mission Director. The written instructions will also include accounting, vouchering, and reporting procedures. A copy of the instructions shall be provided to the Contractor's Chief of Party and to the Contracting Officer. The costs of bonding personnel responsible for local currency are reimbursable under this contract.</P>
                <P>(c) Upon compliance by the Contractor with all the provisions of this contract, acceptance by the Government of the work and final report, and a satisfactory accounting by the Contractor of all Government-owned property for which the Contractor had custodial responsiblity, the Government shall promptly pay to the Contractor any moneys (dollars or local currency) due under the completion voucher. The Government will make suitable reduction for any disallowance or indebtedness by the Contractor by applying the proceeds of the voucher first to such deductions and next to any unliquidated balance of advance remaining under this contract.</P>
                <P>(d) The Contractor agrees that all approvals of the Mission Director and the Contracting Officer which are required by the provisions of this contract shall be preserved and made available as part of the Contractor's records which are required to be presented and made available by the clause of this contract entitled “Audit and Records—Negotiation”.</P>
              </EXTRACT>
              <CITA>[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 5009, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="71"/>
              <SECTNO>752.7004</SECTNO>
              <SUBJECT>Emergency locator information.</SUBJECT>
              <P>The following clause is to be included in all contracts requiring travel overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Emergency Locator Information (JUL 1997)</HD>
                <P>The Contractor agrees to provide the following information to the Mission Administrative Officer on or before the arrival in the host country of every contract employee or dependent:</P>
                <P>(1) The individual's full name, home address, and telephone number.</P>
                <P>(2) The name and number of the contract, and whether the individual is an employee or dependent.</P>
                <P>(3) The contractor's name, home office address, and telephone number, including any after-hours emergency number(s), and the name of the contractor's home office staff member having administrative responsibility for the contract.</P>
                <P>(4) The name, address, and telephone number(s) of each individual's next of kin.</P>
                <P>(5) Any special instructions pertaining to emergency situations such as power of attorney designees or alternate contact persons.</P>
              </EXTRACT>
              <CITA>[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7005</SECTNO>
              <SUBJECT>Submission requirements for development experience documents.</SUBJECT>
              <P>The following clause shall be included in all USAID professional/technical contracts in which development experience documents are likely to be produced.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Submission Requirements for Development Experience Documents (OCT 1997)</HD>
                <P>(a) Contract Reports and Information/Intellectual Products. (1) The Contractor shall submit to the Development Experience Information Division of the Center for Development Information and Evaluation (PPC/DCIE/DI) in the Bureau for Policy and Program Coordination, copies of reports and information products which describe, communicate or organize program/project development assistance activities, methods, technologies, management, research, results and experience as outlined in the Agency's ADS Chapter 540, section E540.5.2b(3). Information may be obtained from the Cognizant Technical Officer (CTO). These reports include: assessments, evaluations, studies, development experience documents, technical reports and annual reports. The Contractor shall also submit to PPC/CDIE/DI copies of information products including training materials, publications, databases, computer software programs, videos and other intellectual deliverable materials required under the Contract Schedule. Time-sensitive materials such as newsletters, brochures, bulletins or periodic reports covering periods of less than a year are not to be submitted.</P>
                <P>(2) Upon contract completion, the contractor shall submit to PPC/CDIE/DI an index of all reports and information/intellectual products referenced in paragraph (a)(1) of this clause.</P>
                <P>(b) <E T="03">Submission requirements—</E>(1) <E T="03">Distribution.</E> (i) The contractor shall submit contract reports and information/intellectual products (referenced in paragraph (a)(1) of this clause) in electronic format and hard copy (one copy) to U.S. Agency for International Development PPC/CDIE/DI, Attn: ACQUISITIONS, Washington D.C. 20523 at the same time submission is made to the CTO.</P>
                <P>(ii) The contractor shall submit the reports index referenced in paragraph (a)(2) of this clause and any reports referenced in paragraph (a)(1) of this clause that have not been previously submitted to PPC/CDIE/DI, within 30 days after completion of the contract to the address cited in paragraph (b)(1)(i) of this clause.</P>
                <P>(2) <E T="03">Format.</E> (i) Descriptive information is required for all Contractor products submitted. The title page of all reports and information products shall include the contract number(s), contractor name(s), name of the USAID cognizant technical office, the publication or issuance date of the document, document title, author name(s), and strategic objective or activity title and associated number. In addition, all materials submitted in accordance with this clause shall have attached on a separate cover sheet the name, organization, address, telephone number, fax number, and Internet address of the submitting party.</P>
                <P>(ii) The hard copy report shall be prepared using non-glossy paper (preferably recycled and white or off-white) using black ink. Elaborate art work, multicolor printing and expensive bindings are not to be used. Whenever possible, pages shall be printed on both sides.</P>
                <P>(iii) The electronic document submitted shall consist of only one electronic file which comprises the complete and final equivalent of the hard copy submitted.</P>
                <P>(iv) Acceptable software formats for electronic documents include WordPerfect, Microsoft Word, ASCII, and Portable Document Format (PDF). Submission in Portable Document format is encouraged.</P>
                <P>(v) The electronic document submission shall include the following descriptive information:</P>
                <P>(A) Name and version of the application software used to create the file, e.g., WordPerfect Version 6.1 or ASCII or PDF.</P>

                <P>(B) The format for any graphic and/or image file submitted, e.g., TIFF-compatible.<PRTPAGE P="72"/>
                </P>
                <P>(C) Any other necessary information, e.g. special backup or data compression routines, software used for storing/retrieving submitted data, or program installation instructions.</P>
              </EXTRACT>
              <CITA>[64 FR 5010, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7006</SECTNO>
              <SUBJECT>Notices.</SUBJECT>
              <P>The following clause shall be used in all USAID contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Notices (APR 1984)</HD>
                <P>Any notice given by any of the parties hereunder shall be sufficient only if in writing and delivered in person or sent by telegraph, cable, or registered or regular mail as follows:</P>
                <P>
                  <E T="03">To USAID:</E> Administrator, U.S. Agency for International Development, Washington, DC 20523-0061. Attention: Contracting Officer (the name of the cognizant Contracting Officer with a copy to the appropriate Mission Director).</P>
                <P>
                  <E T="03">To Contractor:</E> At Contractor's address shown on the cover page of this contract, or to such other address as either of such parties shall designate by notice given as herein required. Notices hereunder shall be effective when delivered in accordance with this clause or on the effective date of the notice, whichever is later.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 56 FR 2699, Jan. 24, 1991; 61 FR 39095, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7007</SECTNO>
              <SUBJECT>Personnel compensation.</SUBJECT>
              <P>The following clause shall be used in all USAID cost-reimbursement contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Personnel Compensation (JUL 1996)</HD>
                <P>(a) Direct compensation of the Contractor's personnel will be in accordance with the Contractor's established policies, procedures, and practices, and the cost principles applicable to this contract.</P>

                <P>(b) Compensation (i.e., the employee's base annual salary plus overseas recruitment incentive, if any) which exceeds the maximum payable annual or daily rate for an Executive Service level ES-6, as published in the <E T="04">Federal Register,</E> will be reimbursed only with the approval of the Contracting Officer, as prescribed in 731.205-6(d) or 731.371(b), as applicable.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33669, Aug. 24, 1984; 61 FR 39095, July 26, 1996; 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7008</SECTNO>
              <SUBJECT>Use of Government facilities or personnel.</SUBJECT>
              <P>The following clause is for use in all USAID non-commercial contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Use of Government Facilities or Personnel (APR 1984)</HD>
                <P>(a) The Contractor and any employee or consultant of the Contractor is prohibited from using U.S. Government facilities (such as office space or equipment) or U.S. Government clerical or technical personnel in the performance of the services specified in the contract, unless the use of Government facilities or personnel is specifically authorized in the contract, or is authorized in advance, in writing, by the Contracting Officer.</P>
                <P>(b) If at any time it is determined that the Contractor, or any of its employees or consultants have used U.S. Government facilities or personnel without authorization either in the contract itself, or in advance, in writing, by the Contracting Officer, then the amount payable under the contract shall be reduced by an amount equal to the value of the U.S. Government facilities or personnel used by the Contractor, as determined by the Contracting Officer.</P>
                <P>(c) If the parties fail to agree on an adjustment made pursuant to this clause, it shall be considered a dispute, and shall be dealt with under the terms of the clause of this contract entitled “Disputes”.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7009</SECTNO>
              <SUBJECT>Marking.</SUBJECT>
              <P>The following clause is for use in all USAID contracts performed in whole or in part overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Marking (JAN 1993)</HD>
                <P>(a) It is USAID policy that USAID-financed commodities and shipping containers, and project construction sites and other project locations be suitably marked with the USAID emblem. Shipping containers are also to be marked with the last five digits of the USAID financing document number. As a general rule, marking is not required for raw materials shipped in bulk (such as coal, grain, etc.), or for semifinished products which are not packaged.</P>
                <P>(b) Specific guidance on marking requirements should be obtained prior to procurement of commodities to be shipped, and as early as possible for project construction sites and other project locations. This guidance will be provided through the cognizant technical office indicated on the cover page of this contract, or by the Mission Director in the Cooperating Country to which commodities are being shipped, or in which the project site is located.</P>
                <P>(c) Authority to waive marking requirements is vested with the Regional Assistant Administrators, and with Mission Directors.</P>

                <P>(d) A copy of any specific marking instructions or waivers from marking requirements is to be sent to the Contracting Officer; the <PRTPAGE P="73"/>original should be retained by the Contractor.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 58 FR 8703, Feb. 17, 1993]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7010</SECTNO>
              <SUBJECT>Conversion of U.S. dollars to local currency.</SUBJECT>
              <P>For use in all USAID non-commercial contracts involving performance overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Conversion of U.S. Dollars to Local Currency (APR 1984)</HD>
                <P>Upon arrival in the Cooperation Country, and from time to time as appropriate, the Contractor's Chief of Party shall consult with the Mission Director who shall provide, in writing, the procedure the Contractor and its employees shall follow in the conversion of United States dollars to local currency. This may include, but is not limited to, the conversion of said currency through the cognizant U.S. Disbursing Officer or Mission Controller, as appropriate.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7011</SECTNO>
              <SUBJECT>Orientation and language training.</SUBJECT>
              <P>For use in all USAID cost-reimbursement contracts involving performance overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Orientation and Language Training (APR 1984)</HD>
                <P>(a) Regular employees shall receive a maximum of 2 weeks USAID sponsored orientation before travel overseas. The dates of orientation shall be selected by the Contractor from the orientation schedule provided by USAID.</P>
                <P>(b) Participation in USAID sponsored orientation in no way relieves the Contractor of its responsibility for assuring that all employees, regular and short-term, are properly oriented. As an addition to or substitution for USAID's sponsored orientation for regular employees, the following types of orientation may be authorized taking into consideration specific job requirements, the employee's prior overseas experience, or unusual circumstances.</P>
                <P>(1) Modified orientation.</P>
                <P>(2) Language training, particularly when significant for operating capabilities.</P>
                <P>(3) Orientation and language training for regular employee's dependents.</P>
                <P>(4) Contractor-sponsored orientation.</P>
                <P>(5) Orientation in all matters related to the administrative, logistical, and technical aspects of the employee's movement to, and tour of duty in, the Cooperating Country.</P>
                <P>(c) Authorization for an additional or alternate orientation program, if any, shall be either set forth in the schedule or provided in writing by the Contracting Officer.</P>
                <P>(d) Travel expenses not to exceed one round trip from regular employee's residence to place of orientation and return will be reimbursed, pursuant to the cost principles applicable to this contract. Allowable salary costs during the period of orientation are also reimbursable.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>752.7012</SECTNO>
              <SUBJECT>Protection of the individual as a research subject.</SUBJECT>
              <P>This clause is for use in any USAID contract which involves research using human subjects.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Protection of the Individual as a Research Subject (AUG 1995)</HD>
                <P>(a) Safeguarding the rights and welfare of human subjects in research conducted under a USAID contract is the responsibility of the contractor. USAID has adopted the Common Federal Policy for the Protection of Human Subjects. USAID's Policy is found in Part 225 of Title 22 of the Code of Federal Regulations (the “Policy”). Additional interpretation, procedures, and implementation guidance of the Policy are found in USAID General Notice entitled “Procedures for the Protection of Human Subjects in Research Supported by USAID”, issued April 19, 1995, as from time to time amended (a copy of which is attached to this contract). USAID's Cognizant Human Subjects Officer (CHSO) and USAID/W has oversight, guidance, and interpretation responsibility for the Policy.</P>
                <P>(b) Contractors must comply with the Policy when humans are the subject of research, as defined in 22 CFR 225.102(d), performed as part of the contract, and contractors must provide “assurance”, as required by 22 CFR 225.103, that they follow and abide by the procedures in the Policy. See also Section 5 of the April 19, 1995, USAID General Notice which sets forth activities to which the Policy is applicable. The existence of a bona fide, applicable assurance approved by the Department of Health and Human Services (HHS) such as the “multiple project assurance” (MPA) will satisfy this requirement. Alternatively, contractors can provide an acceptable written assurance to USAID as described in 22 CFR 225.103. Such assurances must be determined by the CHSO to be acceptable prior to any applicable research being initiated or conducted under the contract. In some limited instances outside the U.S., alternative systems for the protection of human subjects may be used provided they are deemed “at least equivalent” to those outlined in Part 225 (see 22 CFR 225.101(h)). Criteria and procedures for making this determination are described in the General Notice cited in the preceding paragraph.</P>

                <P>(c) Since the welfare of the research subject is a matter of concern to USAID as well <PRTPAGE P="74"/>as to the contractor, USAID staff, consultants and advisory groups may independently review and inspect research, and research processes and procedures involving human subjects, and based on such findings, the CHSO may prohibit research which presents unacceptable hazards or otherwise fails to comply with USAID procedures. Informed consent documents must include the stipulation that the subject's records may be subject to such review.</P>
              </EXTRACT>
              <CITA>[61 FR 39095, July 26, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7013</SECTNO>
              <SUBJECT>Contractor-mission relationships.</SUBJECT>
              <P>For use in all USAID contracts involving performance overseas. Note that paragraph (f) of this clause is applicable only in contracts with an educational institution.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Contractor-Mission Relationships (OCT 1989)</HD>
                <P>(a) The Contractor acknowledges that this contract is an important part of the United States Foreign Assistance Program and agrees that its operations and those of its employees in the Cooperating Country will be carried out in such a manner as to be fully commensurate with the responsibility which this entails.</P>
                <P>(b) The Mission Director is the chief representative of USAID in the Cooperating Country. In this capacity, he/she is responsible for both the total USAID program in the cooperating country including certain administrative responsibilities set forth in this contract, and for advising USAID regarding the performance of the work under the contract and its effect on the United States Foreign Assistance Program. Although the Contractor will be responsible for all professional, technical, and administrative details of the work called for by the contract, it shall be under the guidance of the Mission Director in matters relating to foreign policy. The Chief of Party shall keep the Mission Director currently informed of the progress of the work under the contract.</P>
                <P>(c) In the event the conduct of any Contractor employee is not in accordance with the preceding paragraphs, the Contractor's Chief of Party shall consult with the Mission Director and the employee involved and shall recommend to the Contractor a course of action with regard to such employee.</P>
                <P>(d) The parties recognize the right of the U.S. Ambassador to direct the removal from a country of any U.S. citizen or the discharge from this contract of any third-country national or cooperating-country national when, at the discretion of the Ambassador, the interests of the United States so require. Under these circumstances termination of an employee and replacement by an acceptable substitute shall be at no cost to USAID.</P>

                <P>(e) If it is determined that the services of such employee shall be terminated, the Contractor shall use its best efforts to cause the return of such employee to the United States or point of origin as appropriate.
                </P>
                <FP>[The following paragraph (f) is applicable if the contract is with an educational institution:]</FP>
                
                <P>(f) It is understood by the parties that the Contractor's responsibilities shall not be restrictive of academic freedom. Notwithstanding these academic freedoms, the Contractor's employees, while in the Cooperating Country, are expected to show respect for its conventions, customs, and institutions, to abide by applicable laws and regulations, and not to interfere in its internal political affairs.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[54 FR 46391, Nov. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7014</SECTNO>
              <SUBJECT>Notice of changes in travel regulations.</SUBJECT>
              <P>The following clause is for use in cost-reimbursement contracts involving work overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Notice of Changes in Travel Regulations (JAN 1990)</HD>
                <P>(a) Changes in travel, differential, and allowance regulations shall be effective on the beginning of the Contractor's next pay period following the effective date of the change as published in the applicable travel regulations (the Standardized Regulations (Government Civilians, Foreign Areas), the Uniform State/USAID/USIA Foreign Service Travel Regulations, and the Federal Travel Regulations).</P>
                <P>(b) The Standardized Regulations (Government Civilians Foreign Areas), and the Federal Travel Regulations are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.</P>
                <P>(c) Information regarding the Uniform State/USAID/USIA Foreign Service Travel Regulations as referenced in the “Travel and Transportation” clause of this contract may be obtained from the Contracting Officer.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[55 FR 6805, Feb. 27, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7015</SECTNO>
              <SUBJECT>Use of pouch facilities.</SUBJECT>
              <P>For use in all USAID non-commercial contracts exceeding the simplified acquisition threshold and involving performance overseas.</P>
              <EXTRACT>
                <PRTPAGE P="75"/>
                <HD SOURCE="HD1">Use of Pouch Facilities (JUL 1997)</HD>
                <P>(a) Use of diplomatic pouch is controlled by the Department of State. The Department of State has authorized the use of pouch facilities for USAID contractors and their employees as a general policy, as detailed in paragraphs (a)(1) through (a)(7) of this clause; however, the final decision regarding use of pouch facilities rests with the Embassy or USAID Mission. In consideration of the use of pouch facilities as hereinafter stated, the Contractor and its employees agree to indemnify and hold harmless the Department of State and USAID against loss or damage occurring in pouch transmission.</P>
                <P>(1) Contractors and their employees are authorized use of the pouch for transmission and receipt of up to a maximum of 2 pounds per shipment of correspondence and documents needed in the administration of foreign assistance programs.</P>
                <P>(2) U.S. citizen employeed of U.S. contractors are authorized use of the pouch for personal mail up to a maximum of one pound per shipment (but see paragraph (a)(3) of this clause).</P>
                <P>(3) Merchandise, parcels, magazines, or newspapers are not considered to be personal mail for purposes of this clause, and are not authorized to be sent or received by pouch.</P>
                <P>(4) Official mail as authorized by paragraph (a)(1) of this clause should be addressed as follows: Individual or Organization name, followed by the symbol “C”, city Name of Post, U.S. Agency for International Development, Washington, DC 20523-0001.</P>
                <P>(5) Personal mail pursuant to paragraph (a)(2) of this clause should be sent to the address specified in paragraph (a)(4) of this clause, but without the name of the organization.</P>
                <P>(6) Mail sent via the diplomatic pouch may not be in violation of U.S. Postal laws and may not contain material ineligible for pouch transmission.</P>
                <P>(7) USAID contractor personnel are not authorized use of military postal facilities (APO/FPO). This is an Adjutant General's decision based on existing laws and regulations governing military postal facilities and is being enforced worldwide. Posts having access to APO/FPO facilities and using such for diplomatic pouch dispatch, may, however, accept official mail from Contractors and letter mail from their employees for the pouch, provided of course, adequate postage is affixed.</P>
                <P>(b) The Contractor shall be responsible for advising its employees of this authorization and these guidelines and limitations on use of pouch facilities.</P>
                <P>(c) Specific additional guidance on use of pouch facilities in accordance with this clause is available from the Post Communication Center at the Embassy or USAID Mission.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 56 FR 2699, Jan. 24, 1991; 57 FR 5237, Feb. 13, 1992; 62 FR 40471, July 29, 1997; 62 FR 45334, Aug. 27, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7016</SECTNO>
              <SUBJECT>Family planning and population assistance activities.</SUBJECT>
              <P>The following clause is applicable to all contracts involving any aspect of family planning or population activities.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Family Planning and Population Assistance Activities (AUG 1986)</HD>
                <P>(a) <E T="03">Voluntary Participation.</E> (1) The Contractor agrees to take any steps necessary to ensure that funds made available under this contract will not be used to coerce any individual to practice methods of family planning inconsistent with such individual's moral, philosophical, or religious beliefs. Further, the Contractor agrees to conduct its activities in a manner which safeguards the rights, health and welfare of all individuals who take part in the program.</P>
                <P>(2) Activities which provide family planning services or information to individuals, financed in whole or in part under this contract, shall provide a broad range of family planning methods and services available in the country which the activity is conducted or shall provide information to such individuals regarding where such methods and services may be obtained.</P>
                <P>(b) <E T="03">Prohibition on Abortion-related Activities.</E> No funds made available under this Contract shall be used to finance, support, or be attributed to the following activities: (i) Procurement or distribution of equipment intended to be used for the purposes of inducing abortions as a method of family planning: (ii) special fees or incentives to women to coerce or motivate them to have abortions; (iii) payments to persons to perform abortions or to solicit persons to undergo abortions; (iv) information, education, training, or communication programs that seek to promote abortion as a method of family planning; (v) any biomedical research which relates, in whole or in part, to methods of, or the performance of, abortions or involuntary sterilization as a means of family planning (epidemiologic or descriptive research to assess the incidence, extent or consequences of abortion is not precluded); or (vi) lobbying for abortion.</P>
                <P>(c) <E T="03">Voluntary Participation Requirements for Sterilization Programs.</E> (1) None of the funds made available under this contract shall be used to pay for the performance of involuntary sterilizations or to coerce or provide any financial incentive to any person to practice sterilizations.<PRTPAGE P="76"/>
                </P>
                <P>(2) The Contractor shall insure that any surgical sterilization procedures supported in whole or in part by funds from the contract are performed only after the individual has voluntarily come to the treatment facility and has given an informed consent to the sterilization procedure. Informed consent means the voluntary knowing assent from the individual given after being advised of the surgical procedures to be followed, the attendant discomforts and risks, the benefits to be expected, the availability of alternative methods of family planning, the purpose of the operation and its irreversibility, and the fact that the consent can be withdrawn at any time prior to the operation. An individual's consent is considered voluntary if it is based upon the exercise of free choice and is not obtained by any special inducement or any element of force, fraud, deceit, duress or other forms of coercion or misrepresentation.</P>
                <P>(3) Further, the Contractor shall document the patient's informed consent by: (i) A written consent document in a language the patient understands and speaks, which explains the basic elements of informed consent, as set out above, and which is signed by the individual and by the attending physician or by the authorized assistant of the attending physician; or (ii) when a patient is unable to read adequately a written certification signed by the attending physician or by the authorized assistant of the attending physician that the basic elements of informed consent above were orally presented to the patient, and that the patient thereafter consented to the performance of the operation. The receipt of the oral explanation shall be acknowledged by the patient's mark on the certification and by the signature or mark of the witness who shall be of the same sex and speak the same language as the patient.</P>
                <P>(4) Copies of the informed consent forms and certification documents for each voluntary sterilization (VS) procedure must be retained by the performing Contractor or subcontractor for a period of three years after the performance of the sterilization procedure.</P>
                <P>(d) The Contractor shall insert the substance of this clause in any subgrants, subcontracts, purchase orders, and other subordinate agreements hereunder whenever appropriate to the goods and services to be provided under such agreements.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33669, Aug. 24, 1984; 51 FR 34985, Oct. 1, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7017</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>752.7018</SECTNO>
              <SUBJECT>Health and accident coverage for USAID participant trainees.</SUBJECT>
              <P>For use in any USAID contract under which USAID participants are trained.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Health and Accident Coverage for USAID Participant Trainees (JAN 1999)</HD>
                <P>(a) In accordance with the requirements of USAID Automated Directive System (ADS) 253.5.6b, the Contractor shall enroll all non-U.S. trainees (hereinafter referred to as “participants”), whose training in the U.S. is financed by USAID under this contract, in USAID's Health and Accident Coverage (HAC) program. Sponsored trainees enrolled in third-country or in-country training events are not eligible for USAID's HAC program, but the Contractor may obtain alternative local medical and accident insurance at contract expense, provided the cost is consistent with the cost principles in FAR 31.2.</P>
                <P>(b) When enrollment in the HAC program is required per paragraph (a) of this clause, the Contractor must enroll each participant in the HAC program through one of two designated contractors prior to the initiation of travel by the participant. USAID has developed an Agency-wide database training management system, the Training Results and Information Network (“TraiNet”), which is the preferred system for managing USAID's participant training program, including enrollment in the HAC program. However, until such time as the USAID sponsoring unit (as defined in ADS 253) has given the Contractor access to USAID's “TraiNet” software for trainee tracking and HAC enrollment, the Contractor must fill out and mail the Participant Data Form (PDF) (Form USAID 1381-4) to USAID. The Contractor can obtain information regarding each HAC program contractor, including contact information, and a supply of the PDF forms and instructions for completing and submitting them, by contacting the data base contractor serving the Global Center for Human Capacity Development (G/HCD).</P>
                <P>(c) The Contractor must ensure that HAC enrollment begins immediately upon the participant's departure for the United States for the purpose of participating in a training program financed by USAID, and that enrollment continues in full force and effect until the participant returns to his/her country of origin, or is released from USAID's responsibility, whichever is the sooner.</P>
                <P>(1) The HAC insurance provider, not the Contractor, shall be responsible for paying all reasonable and necessary medical reimbursement charges not otherwise covered by student health service or other insurance programs, subject to the availability of funds for such purposes, in accordance with the standards of coverage established by USAID under its HAC program and by the HAC providers' contracts.</P>

                <P>(2) After HAC enrollment, upon receipt of HAC services invoice from the selected HAC provider, the Contractor shall submit payment directly to the HAC provider.<PRTPAGE P="77"/>
                </P>
                <P>(3) The Contractor is responsible for ensuring that participants and any stakeholders (as defined in ADS 253) are advised that USAID is not responsible for any medical claims in excess of the coverages provided by the HAC program, or for medical claims not eligible for coverage under the HAC program, or not otherwise covered in this section.</P>
                <P>(d) The Contractor, to the extent that it is an educational institution with a mandatory student health service program, shall also enroll participants in that institution's student health service program. Medical costs which are covered under the institution's student health service shall not be eligible for payment under USAID's HAC program.</P>
                <P>(e) If the Contractor has a mandatory, non-waivable health and accident insurance program for students, the costs of such insurance will be allowable under this contract. Any claims eligible under such insurance will not be payable under USAID's HAC plan or under this contract. Even though the participant is covered by the Contractor's mandatory, non-waivable health and accident insurance program, the participant MUST be enrolled in USAID's more comprehensive HAC program.</P>
                <P>(f) Medical conditions pre-existing to the participant's sponsorship for training by USAID, discovered during the required pre-departure medical examination, are grounds for ineligibility for sponsorship unless specifically waived by the sponsoring unit, and covered through a separate insurance policy maintained by the participant or his employer, or a letter of guarantee from the participant or the employer (which thereby assumes liability for any related charges that might materialize. See ADS 253).</P>
              </EXTRACT>
              <CITA>[64 FR 5010, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7019</SECTNO>
              <SUBJECT>Participant training.</SUBJECT>
              <P>For use in any USAID direct contract involving training of USAID participants.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Participant Training (JAN 1999)</HD>
                <P>(a) <E T="03">Definitions.</E> (1) Participant training is the training of any foreign national outside of his or her home country, using USAID funds.</P>
                <P>(2) A Participant is any foreign national being trained under this contract outside of his or her country.</P>
                <P>(b) <E T="03">Applicable regulations.</E> Participant training conducted under this contract shall comply with the policies and essential procedures pertaining to training-related services contained in USAID Automated Directive System (ADS) Ch. 253 “Training for Development Impact”. Any exceptions to ADS 253 requirements are specified as such within this contract. The current version of Chapter 253 may be obtained directly from the USAID website at <E T="03">http://www.info.usaid.gov/pubs/ads/200.</E>
                </P>
                <P>(c) The contractor shall be reimbursed for the reasonable and allocable costs incurred in providing training to participants in the United States or other approved location provided such costs do not exceed the limitations in, or have been waived in accordance with, ADS 253.5.5.</P>
              </EXTRACT>
              
              <NOTE>
                <HD SOURCE="HED">Note:</HD>

                <P>Academic rates are available through a special website monitored by the United States Information Agency. The website for academic programs is: <E T="03">http://www.iie.org/fulbright/posts/restrict.</E> U.S.-based participants receive the standardized U.S. travel per diem rates maintained by GSA for short-term training (website: <E T="03">http://policyworks.gov</E>).</P>
              </NOTE>
              <CITA>[64 FR 5011, Feb. 2, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7020</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>752.7021</SECTNO>
              <SUBJECT>Changes in tuition and fees.</SUBJECT>
              <P>For use in contracts for participant training with an educational institution.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Changes in Tuition and Fees (APR 1984)</HD>
                <P>While educational programs for participants will be established utilizing the Contractor's currently applicable tuition and fee schedule, the parties understand that such standard tuition and fees may be subject to change during the course of the program. If such event results in an increase in the cost of the program, USAID agrees to pay such increased standard tuition and fees in the next applicable academic term as a condition for the continuation of the program. If such change results in a decrease in the cost of the program, the Contractor agrees to charge to USAID only the amount of such revised standard tuition and fees in the next applicable academic term. The Contractor shall undertake to keep USAID currently advised as to changes in its standard tuition and fees. At such time as increases in the amounts of tuition and fees results in there being inadequate funds remaining in this contract to meet the costs of the next academic term, the Contractor will so advise USAID. USAID may then provide such additional funds as required to complete the program.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>752.7022</SECTNO>
              <SUBJECT>Conflicts between contract and catalog.</SUBJECT>
              <P>For use in contracts for participant training with an educational institution.</P>
              <EXTRACT>
                <PRTPAGE P="78"/>
                <HD SOURCE="HD1">Conflicts Between Contract and Catalog (APR 1984)</HD>
                <P>In the event of any inconsistency between the provisions of this contract and any catalog, or other document incorporated in this contract by reference or otherwise or any of the Contractor's rules and regulations, the provisions of this contract shall govern.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>752.7023</SECTNO>
              <SUBJECT>Required visa form for USAID participants.</SUBJECT>
              <P>For use in any USAID direct contract which involves training of USAID participants.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Required Visa Form for USAID Participants (APR 1984)</HD>
                <P>The Contractor shall insure that any foreign student brought to the United States for training under this contract uses visa form IAP 66A “Certificate for Exchange Visitor (J-1) Status”.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>752.7024</SECTNO>
              <SUBJECT>Withdrawal of students.</SUBJECT>
              <P>For use in contracts for participant training with an educational institution.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Withdrawal of Students (APR 1984)</HD>
                <P>(a) The Government may, at its option and at any time, withdraw any student.</P>
                <P>(b) The Contractor may request withdrawal by the Government of any student for academic or disciplinary reasons.</P>
                <P>(c) If such withdrawal occurs prior to the end of a term, the Government shall pay any tuition and fees due for the current term in which the student may be enrolled, and the Contractor shall credit the Government with any charges eligible for refund under the Contractor's standard procedures for civilian students in effect on the effective date of such withdrawal.</P>
                <P>(d) Withdrawal of students by the Government shall not be the basis for any special charge or claim by the Contractor other than as provided by the Contractor's standard procedures.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>752.7025</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
              <P>For use in all USAID contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Approvals (APR 1984)</HD>
                <P>All approvals required to be given under the contract by the Contracting Officer or the Mission Director shall be in writing and, except when extraordinary circumstances make it impracticable, shall be requested by the Contractor sufficiently in advance of the contemplated action to permit approval, disapproval or other disposition prior to that action. If, because of existing conditions, it is impossible to obtain prior written approval, the approving official may, at his discretion, ratify the action after the fact.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>752.7026</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>752.7027</SECTNO>
              <SUBJECT>Personnel.</SUBJECT>
              <P>For use in all USAID services contracts involving performance overseas. Note that paragraphs (f) and (g) of this clause are for use only in cost reimbursement contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Personnel (DEC 1990)</HD>
                <P>(a) <E T="03">Clearance.</E>
                </P>
                <P>(1) <E T="03">Individuals Engaged or Assigned Within the United States.</E> The contractor will obtain written notification from the Contracting Officer of Cooperating Country clearance of any employee sent outside the United States to perform duties under this contract.</P>
                <P>(2) <E T="03">Individuals Engaged or Assigned When Outside the United States.</E> No individual shall be engaged or assigned when outside the United States to perform work outside the United States under this contract unless authorized in the schedule or otherwise approved by the Contracting Officer or Mission Director. However, when services are performed in the Cooperating Country on a casual or irregular basis or in an emergency, exception to this provision can be made in accordance with instructions or regulations established by the Mission Director.</P>
                <P>(b) <E T="03">Physical fitness of employees and dependents.</E> See the clause of this contract entitled Physical Fitness.</P>
                <P>(c) <E T="03">Conformity to laws and regulations of Cooperating Country.</E> Contractor agrees to use its best efforts to assure that its employees and their dependents, while in the Cooperating Country, abide by all applicable laws and regulations of the Cooperating Country and political subdivisions thereof.</P>
                <P>(d) <E T="03">Importation or sale of personal property or automobiles.</E> To the extent permitted by Cooperating Country laws, the importation and sale of personal property or automobiles by contractor employees and their dependents in the Cooperating Country shall be subject to the same limitations and prohibitions which apply to U.S. nationals employed by the Mission. This provision does not apply to employees or consultants who are citizens or legal residents of the Cooperating Country.</P>
                <P>(e) <E T="03">Economic and Financial Activities.</E> Other than work to be performed under this contract for which an employee or consultant is assigned by the contractor, no such employee or consultant of the contractor shall engage, directly or indirectly, either in his/her own name or in the name or through the agency of another person, in any business, profession or occupation in the Cooperating Country or other foreign countries to which he/she is assigned, nor shall he make loans or investments to or in any business, profession <PRTPAGE P="79"/>or occupation in the Cooperating Country or other foreign countries in which he/she is assigned. This provision does not apply to employees or consultants who are citizens or legal residents of the Cooperating Country.
                </P>

                <P>[The following paragraphs (f) and (g) are applicable only to cost reimbursement contracts.]
                </P>
                <P>(f) <E T="03">Duration of Appointments.</E> (1) Regular employees will normally be appointed for a minimum of 2 years which period includes orientation (less language training) in the United States and authorized international travel under the contract except:</P>
                <P>(i) An appointment may be made for less than 2 years if the contract has less than 2 years but more than 1 year to run provided that if the contract is extended the appointment shall also be extended to the full 2 years. This provision shall be reflected in the employment agreement prior to employment under this contract.</P>
                <P>(ii) When a 2-year appointment is not required, appointment may be made for less than 2 years but in no event less than 1 year.</P>
                <P>(iii) When the normal tour of duty established for USAID personnel at a particular post is less than 2 years, then a normal appointment under this contract may be of the same duration.</P>
                <P>(iv) When the contractor is unable to make appointments of regular employees for a full 2 years, the contractor may make appointments of less than 2 but not less than 1 year, provided that such appointment is approved by the Contracting Officer.</P>
                <P>(2) Services required for less than 1 year will be considered short-term appointments and the employee will be considered a short-term employee.</P>
                <P>(g) <E T="03">Employment of Dependents.</E> If any person who is employed for services in the Cooperating Country under this contract is either (1) a dependent of an employee of the U.S. Government working in the Cooperating Country, or (2) a dependent of a contractor employee working under a contract with the U.S. Government in the Cooperating Country, such person shall continue to hold the status of a dependent. He or she shall be entitled to salary for the time services are actually performed in the Cooperating Country, and differential and allowances as established by the Standardized Regulations (Government Civilians, Foreign Areas).</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[56 FR 7587, Feb. 25, 1991, as amended at 62 FR 40471, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7028</SECTNO>
              <SUBJECT>Differential and allowances.</SUBJECT>
              <P>The following clause is for use in all USAID cost reimbursement contracts performed in whole or in part overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Differentials and Allowances (JUL 1996)</HD>

                <P>(This clause does not apply to TCN or CCN employees. TCN and CCN employees are not eligible for differentials and allowances, unless specifically authorized by the cognizant Assistant Administrator or Mission Director. A copy of such authorization shall be retained and made available as part of the contractor's records which are required to be preserved and made available by the “Examination of Records by the Comptroller General” and “Audit” clauses of this contract).
                </P>
                <P>(a) <E T="03">Post differential.</E> Post differential is an additional compensation for service at places in foreign areas where conditions of environment differ substantially from conditions of environment in the continental United States and warrant additional compensation as a recruitment and retention incentive. In areas where post differential is paid to USAID direct-hire employees, post differential not to exceed the percentage of salary as is provided such USAID employees in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 500 (except the limitation contained in Section 552, “Ceiling on Payment”) Tables-Chapter 900, as from time to time amended, will be reimbursable hereunder for employees in respect to amounts earned during the time such employees actually spend overseas on work under this contract. When such post differential is provided to regular employees of the Contractor, it shall be payable beginning on the date of arrival at the post of assignment and continue, including periods away from post on official business, until the close of business on the day of departure from post of assignment en route to the United States. Sick or vacation leave taken at or away from the post of assignment will not interrupt the continuity of the assignment or require a discontinuance of such post differential payments, provided such leave is not taken within the United States or the territories of the United States. Post differential will not be payable while the employee is away from his/her post of assignment for purposes of home leave. Short-term employees shall be entitled to post differential beginning with the forty-third (43rd) day at post.</P>
                <P>(b) <E T="03">Living quarters allowance.</E> Living quarters allowance is an allowance granted to reimburse an employee for substantially all of his/her cost for either temporary or residence quarters whenever Government-owned or Government-rented quarters are not provided to him/her at his/her post without charge. Such costs are those incurred for temporary lodging (temporary lodging allowance) or one unit of residence quarters (living quarters allowance) and include rent, plus any costs not included therein for heat, light, fuel, gas, electricity and water. The temporary lodging allowance and the living <PRTPAGE P="80"/>quarters allowance are never both payable to an employee for the same period of time. The Contractor will be reimbursed for payments made to employees for a living quarters allowance for rent and utilities if such facilities are not supplied. Such allowance shall not exceed the amount paid USAID employees of equivalent rank in the Cooperating Country, in accordance with either the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 130, as from time to time amended, or other rates approved by the Mission Director. Subject to the written approval of the Mission Director, short-term employees may be paid per diem (in lieu of living quarters allowance) at rates prescribed by the Federal Travel Regulations, as from time to time amended, during the time such short-term employees spend at posts of duty in the Cooperating Country under this contract. In authorizing such per diem rates, the Mission Director shall consider the particular circumstances involved with respect to each such short-term employee including the extent to which meals and/or lodging may be made available without charge or at nominal cost by an agency of the United States Government or of the Cooperating Government, and similar factors.</P>
                <P>(c) <E T="03">Temporary quarters subsistence allowance.</E> Temporary quarters subsistence allowance is a quarters allowance granted to an employee for the reasonable cost of temporary quarters incurred by the employee and his family for a period not in excess of (i) 90 days after first arrival at a new post in a foreign area or a period ending with the occupation of residence (permanent) quarters, if earlier, and (ii) 30 days immediately preceding final departure from the post subsequent to the necessary vacating of residence quarters, unless an extension is authorized in writing by the Mission Director. The Contractor will be reimbursed for payments made to employees and authorized dependents for temporary quarters subsistence allowance, in lieu of living quarters allowance, not to exceed the amount set forth in the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 120, as from time to time amended.</P>
                <P>(d) <E T="03">Post allowance.</E> Post allowance is a cost-of-living allowance granted to an employee officially stationed at a post where the cost of living, exclusive of quarters cost, is substantially higher than in Washington, DC. The Contractor will be reimbursed for payments made to employees for post allowance not to exceed those paid USAID employees in the Cooperating Country, in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 220, as from time to time amended.</P>
                <P>(e) <E T="03">Supplemental post allowance.</E> Supplemental post allownce is a form of post allowance granted to an employee at his/her post when it is determined that assistance is necessary to defray extraordinary subsistence costs. The Contractor will be reimbursed for payments made to employees for supplemental post allowance not to exceed the amount set forth in the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 230, as from time to time amended.</P>
                <P>(f) Educational allowance. Educational allowance is an allowance to assist an employee in meeting the extraordinary and necessary expenses, not otherwise compensated for, incurred by reason of his/her service in a foreign area in providing adequate elementary and secondary education for his/her children. The Contractor will be reimbursed for payments made to regular employees for educational allowances for their dependent children in amounts not to exceed those set forth in the Standardized (Regulations Government Civilians, Foreign Areas), Chapter 270, as from time to time amended.</P>
                <P>(g) <E T="03">Educational travel.</E> Educational travel is travel to and from a school in the United States for secondary education (in lieu of an educational allowance) and for college education. The Contractor will be reimbursed for payments made to regular employees for educational travel for their dependent children provided such payment does not exceed that which would be payable in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 280, as from time to time amended. Educational travel shall not be authorized for regular employees whose assignment is less than two years.</P>
                <P>(h) <E T="03">Separate maintenance allowance.</E> Separate maintenance allowance is an allowance to assist an employee who is compelled, by reason of dangerous, notably unhealthful, or excessively adverse living conditions at his/her post of assignment in a foreign area, or for the convenience of the Government, to meet the additional expense of maintaining his/her dependents elsewhere than at such post. The Contractor will be reimbursed for payments made to regular employees for a separate maintenance allowance not to exceed that made to Aid employees in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 260, as from time to time amended.</P>
                <P>(i) <E T="03">Payments during evacuation.</E> The Standardized Regulations (Government Civilians, Foreign Areas) provide the authority for efficient, orderly, and equitable procedure for the payment of compensation, post differential and allowances in the event of an emergency evacuation of employees or their dependents, or both, from duty stations for military or other reasons or because of imminent danger to their lives. If evacuation has been authorized by the Mission Director <PRTPAGE P="81"/>the Contractor will be reimbursed for payments made to employees and authorized dependents evacuated from their post of assignment in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 600, and the Federal Travel Regulations, as from time to time amended.</P>
                <P>(j) <E T="03">Danger pay allowance.</E> (1) The contractor will be reimbursed for payments made to its employees for danger pay not to exceed that paid USAID employees in the cooperating country, in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 650, as from time to time amended.</P>
                <P>(2) Danger pay is an allowance that provides additional compensation above basic compensation to an employee in a foreign area where civil insurrection, civil war, terrorism or wartime conditions threaten physical harm or imminent danger to the health or well-being of the employee. The danger pay allowance is in lieu of that part of the post differential which is attributable to political violence. Consequently, the post differential may be reduced while danger pay is in effect to avoid dual crediting for political violence.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 51 FR 11450, Apr. 3, 1986; 53 FR 50632, Dec. 16, 1988; 61 FR 39096, July 26, 1996; 61 FR 51235, Oct. 1, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7029</SECTNO>
              <SUBJECT>Post privileges.</SUBJECT>
              <P>For use in all USAID non-commercial contracts involving performance overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Post Privileges (JUL 1993)</HD>
                <P>(a) Routine health room services may be available, subject to post policy, to U.S. citizen contractors and their authorized dependents (regardless of citizenship) at the post of duty. These services do not include hospitalization, or predeparture or end of tour medical examinations. The services normally include such medications as may be available, immunizations and preventive health measures, diagnostic examinations and advice, and home visits as medically indicated. Emergency medical treatment is provided to U.S. citizen employees and dependents, whether or not they may have been granted access to routine health room services, on the same basis as it would be to any U.S. citizen in an emergency medical situation in the country.</P>
                <P>(b) Privileges such as the use of APO, PX's, commissaries, and officer's clubs are established at posts abroad pursuant to agreements between the U.S. and Cooperating Governments. These facilities are intended for and usually limited to members of the official U.S. establishment including the Embassy, USAID Mission, U.S. Information Service, and the Military. Normally, the agreements do not permit these facilities to be made available to nonofficial Americans.</P>
              </EXTRACT>
              <CITA>[49 FR 13259, Apr. 3, 1984, as amended at 56 FR 7587, Feb. 25, 1991; 58 FR 58596, Nov. 2, 1993; 62 FR 40471, July 29, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7030</SECTNO>
              <SUBJECT>Inspection trips by contractor's officers and executives.</SUBJECT>
              <P>For use in cost reimbursement contracts with an educational institution involving performance overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Inspection Trips by Contractor's Officers and Executives (APR 1984)</HD>
                <P>Provided it is approved by the Mission Director, the Contractor may send the Campus Coordinator, a professional member of its staff as an alternate to the Campus Coordinator, or such of its senior officials (e.g., president, vice presidents, deans, or department heads) to the Cooperating Country as may be required to review the progress of the work under this contract. Except for the Campus Coordinator or his/her alternate, no direct salary charges will be paid hereunder with respect to any such officials.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>752.7031</SECTNO>
              <SUBJECT>Leave and holidays.</SUBJECT>
              <P>For use in all USAID cost-reimbursement contracts for technical or professional services.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Leave and Holidays (OCT 1989)</HD>
                <P>(a) <E T="03">Vacation leave.</E> (1) The Contractor may grant to its employees working under this contract vacations of reasonable duration in accordance with the Contractor's practice for its employees, but in no event shall such vacation leave be earned at a rate exceeding 26 work days per annum. Reimbursement for vacation leave is limited to the amount earned by employees while serving under this contract.</P>
                <P>For regular employees during their tour of duty in the Cooperating Country, vacation leave is provided under this contract primarily for purposes of affording necessary rest and recreation. The Contractor's Chief of Party, the employee and the Cooperating Country institution associated with this project shall develop vacation leave schedules early in the employee's tour of duty taking into consideration project requirements, employee preference and other factors.</P>

                <P>(2) Leave taken during the concluding weeks of an employee's tour shall be included in the established leave schedule and be limited to that amount of leave which can be earned during a twelve-month period unless approved in accordance with paragraph (a)(3) of this clause.<PRTPAGE P="82"/>
                </P>
                <P>(3) Vacation leave earned but not taken by the end of the employee's tour pursuant to paragraphs (a) (1) and (2) of this clause will be forfeited unless the requirements of the project precluded the employee from taking such leave, and the Contracting Officer (with the endorsement of the Mission) approves one of the following as an alternative:</P>
                <P>(i) Taking, during the concluding weeks of the employee's tour, leave not permitted under (a)(2) of this section, or</P>
                <P>(ii) Lump-sum payment for leave not taken provided such leave does not exceed the number of days which can be earned by the employee during a twelve-month period.</P>
                <P>(b) <E T="03">Sick Leave.</E> Sick leave is earned by employees in accordance with the Contractor's usual practice but not to exceed 13 work days per annum or 4 hours every 2 weeks. Additional sick leave after use of accrued vacation leave may be advanced in accordance with Contractor's usual practice, if in the judgment of the Contractor's Chief of Party it is determined that such additional leave is in the best interest of the project. In no event shall such additional leave exceed 30 days. The Contractor agrees to reimburse USAID for leave used in excess of the amount earned during the employee's assignment under this contract. Sick leave earned and unused at the end of a regular tour of duty may be carried over to an immediately-succeeding tour of duty under this contract. The use of home leave authorized under this clause shall not constitute a break in service for the purpose of sick leave carry-over. Contractor employees will not be compensated for unused sick leave at the completion of their duties under this contract.</P>
                <P>(c) <E T="03">Home leave.</E> (1) Home leave is leave earned for service abroad for use only in the United States, in the Commonwealth of Puerto Rico, or in the possessions of the United States.</P>
                <P>(2) A regular employee who is a U.S. citizen or resident and has served at least 2 years overseas, as defined in paragraph (c)(4) of this clause, under this contract and has not taken more than 30 workdays leave (vacation, sick, or leave without pay) in the United States, may be granted home leave of not more than 15 workdays for each such year of service overseas, provided that such regular employee agrees to return overseas upon completion of home leave under an additional 2 year appointment, or for a shorter period of not less than 1 year of overseas service under the contract if the Mission Director has approved in advance. Home leave must be taken in the United States, the Commonwealth of Puerto Rico, or the possessions of the United States; any days spent elsewhere will be charged to vacation leave or leave without pay.</P>
                <P>(3) Notwithstanding the requirement in paragraph (c)(2), of this clause, that the Contractor's regular employee must have served 2 years overseas under this contract to be eligible for home leave, Contractor may grant advance home leave to such regular employee subject to all of the following conditions:</P>
                <P>(i) Granting of advance home leave would in each case serve to advance the attainment of the objectives of this contract;</P>
                <P>(ii) The regular employee shall have served a minimum of 18 months in the Cooperating Country on his/her current tour of duty under this contract; and</P>
                <P>(iii) The regular employee shall have agreed to return to the Cooperating Country to serve out the remainder of his/her current tour of duty and an additional 2 year appointment under this contract, or such other additional appointment of not less than 1 year of overseas service as the Mission Director may approve.</P>
                <P>(4) The period of service overseas required under paragraph (c)(2) or paragraph (c)(3) of this clause shall include the actual days spent in orientation in the United States (less language training) and the actual days overseas beginning on the date of departure from the United States port of embarkation on international travel and continuing, inclusive of authorized delays en route, to the date of arrival at the United States port of debarkation from international travel. Allowable vacation and sick leave taken while overseas, but not leave without pay, shall be included in the required period of service overseas. An amount equal to the number of days vacation and sick leave taken in the United States, the Commonwealth of Puerto Rico, or the possessions of the United States will be added to the required period of service overseas.</P>
                <P>(5) Salary during travel to and from the United States for home leave will be limited to the time required for travel by the most expeditious air route. The Contractor will be responsible for reimbursing USAID for salary payments made during home leave if in spite of the undertaking of the new appointment the regular employee, except for reasons beyond his/her control as determined by the Contracting Officer, does not return overseas and complete the additional required service. Unused home leave is not reimbursable under this contract.</P>

                <P>(6) To the extent deemed necessary by the Contractor, regular employees in the United States on home leave may be authorized to spend not more than 5 days in work status for consultation at home office/campus or at USAID/Washington before returning to their post of duty. Consultation at locations other than USAID/Washington or home office/campus, as well as any time in excess of 5 days spent for consultation, must be approved by the Mission Director or the Contracting Officer.<PRTPAGE P="83"/>
                </P>
                <P>(7) Except as provided in the schedule or approved by the Mission Director or the Contracting Officer, home leave is not authorized for TCN or CCN employees.</P>
                <P>(d) <E T="03">Holidays.</E> Holidays for Contractor employees serving in the United States shall be in accordance with the Contractor's established policy and practice. Holidays for Contractor employees serving overseas should take into consideration local practices and shall be established in collaboration with the Mission Director.</P>
                <P>(e) <E T="03">Military leave.</E> Military leave of not more than 15 calendar days in any calendar year may be granted in accordance with the Contractor's usual practice to each regular employee whose appointment is not limited to 1 year or less and who is a reservist of the United States Armed Forces, provided that such military leave has been approved in advance by the cognizant Mission Director or Assistant Administrator. A copy of any such approval shall be provided to the Contracting Officer.</P>
                <P>(f) <E T="03">Leave Records.</E> The Contractor's leave records shall be preserved and made available as part of the contractor's records which are required to be preserved and made available by the Examination of Records by the Comptroller General and Audit clauses of this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[54 FR 46392, Nov. 3, 1989, as amended at 56 FR 2699, Jan. 24, 1991]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7032</SECTNO>
              <SUBJECT>International travel approval and notification requirements.</SUBJECT>
              <P>For use in any USAID contract requiring international travel.</P>
              <EXTRACT>
                <HD SOURCE="HD1">International Travel Approval and Notification Requirements (JAN 1990)</HD>
                <P>Prior written approval by the Contracting Officer is required for all interrnational travel directly and identifiably funded by USAID under this contract. The Contractor shall therefore present to the Contracting Officer an itinerary for each planned international trip, showing the name of the traveler, purpose of the trip, origin/destination (and intervening stops), and dates of travel, as far in advanced of the proposed travel as possible, but in no event less than three weeks before travel is planned to commence. The Contracting Officer's prior written approval may be in the form of a letter or telegram or similar device or may be specifically incorporated into the schedule of the contract. At least one week prior to commencement of approved international travel, the Contractor shall notify the cognizant Mission, with a copy to the Contracting Officer, of planned travel, identifying the travellers and the dates and times of arrival.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[55 FR 6805, Feb. 27, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7033</SECTNO>
              <SUBJECT>Physical fitness.</SUBJECT>
              <P>For use in all USAID contracts involving performance overseas.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Physical Fitness (JUL 1997)</HD>
                <P>(The requirements of this provision do not apply to employees hired in the Cooperating Country or to authorized dependents who were already in the Cooperating Country when their sponsoring employee was hired.)</P>
                <P>(a) <E T="03">Assignments of less than 60 days in the Cooperating Country.</E> The contractor shall require employees being assigned to the Cooperating Country for less than 60 days to be examined by a licensed doctor of medicine. The contractor shall require the doctor to provide to the contractor a written statement that in his/her medical opinion the employee is physically qualified to engage in the type of activity for which he/she is employed and the employee is physically able to reside in the country to which he/she is assigned. Under a cost reimbursement contract, if the contractor has no written statement of medical opinion on file prior to the departure for the Cooperating Country of any employee and such employee is unable to perform the type of activity for which he/she is employed or cannot complete his/her tour of duty because of any physical disability (other than physical disability arising from an accident while employed under this contract), the contractor shall be responsible for returning the disabled employee to his/her point of hire and providing a replacement at no additional cost to the Government. In addition, in the case of a cost reimbursement contract, the contractor shall not be entitled to reimbursement for any additional costs attributable to delays or other circumstances caused by the employee's inability to complete his/her tour of duty.</P>
                <P>(b) <E T="03">Assignments of 60 days or more in the Cooperating Country.</E> (1) The Contracting Officer shall provide the contractor with a reproducible copy of the “USAID Contractor Employee Physical Examination Form”. This form is for collection of information; it has been reviewed and approved by OMB (see 701.105(a)). Information required by the Paperwork Reduction Act for reporting the burden estimate, the points of contact regarding burden estimate, and the OMB approval expiration date, are printed on the form. The contractor shall reproduce the form as required, and provide a copy to each employee and authorized dependent proposed for assignments of 60 days or more in the Cooperating Country. The contractor shall <PRTPAGE P="84"/>have the employee and all authorized dependents obtain a physical examination from a licensed physician, who will complete the form for each individual. The employee will deliver the physical examination form(s) to the embassy health unit in the Cooperating Country.</P>
                <P>(2) (The following information is provided for two purposes: To assist fixed price offerors to develop their price proposal, and to provide cost reimbursement contractors with guidance in determining reasonable and allowable costs.) As a contribution to the cost of medical examinations, USAID shall reimburse the contractor for the physical examination authorized in paragraph (a) of this section in an amount not to exceed $100 for the physical examination, plus reimbursement of charges for immunizations to the extent not covered by the contractor's health insurance policy. For physical examinations authorized in paragraph (b)(1) above, the USAID contribution to the cost of the examination shall be as follows:</P>
                <P>(i) For the employee and authorized dependents 12 years of age and over, one half of the cost of each examination up to a maximum USAID share of $300 per individual, plus reimbursement of charges for immunizations to the extent not covered by the contractor's health insurance policy.</P>
                <P>(ii) For authorized dependents under 12 years of age, one half of the cost of each examination up to a maximum USAID share of $120 per individual, plus reimbursement of charges for immunizations to the extent not covered by the contractor's health insurance policy.</P>
                <P>(iii) The contractor must obtain the prior written approval of the Contracting Officer to receive any USAID contributions higher than these limits.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[56 FR 7588, Feb. 25, 1991, as amended at 58 FR 58596, Nov. 2, 1993; 62 FR 40471, July 29, 1997; 62 FR 45334, Aug. 27, 1997]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7034</SECTNO>
              <SUBJECT>Acknowledgement and disclaimer.</SUBJECT>
              <P>For use in any USAID contract which funds or partially funds publications, videos, or other information/media products.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Acknowledgement and Disclaimer (DEC 1991)</HD>
                <P>(a) USAID shall be prominently acknowledged in all publications, videos or other information/media products funded or partially funded through this contract, and the product shall state that the views expressed by the author(s) do not necessarily reflect those of USAID. Acknowledgements should identify the sponsoring USAID Office and Bureau or Mission as well as the U.S. Agency for International Development substantially as follows:</P>
                <P>“This (publication, video or other information/media product (specify)) was made possible through support provided by the Office of ___, Bureau for ___, U.S. Agency for International Development, under the terms of Contract No. ___. The opinions expressed herein are those of the author(s) and do not necessarily reflect the views of the U.S. Agency for International Development.”</P>
                <P>(b) Unless the contractor is instructed otherwise by the cognizant technical office, publications, videos or other information/media products funded under this contract and intended for general readership or other general use will be marked with the USAID logo and/or U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT appearing either at the top or at the bottom of the front cover or, if more suitable, on the first inside title page for printed products, and in equivalent/appropriate location in videos or other information/media products. Logos and markings of co-sponsors or authorizing institutions should be similarly located and of similar size and appearance.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[57 FR 5237, Feb. 13, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>752.7035</SECTNO>
              <SUBJECT>Public notices.</SUBJECT>
              <P>The following clause is for use when the cognizant technical office determines that the contract is of public interest, and that both the public and the Government would benefit from public notices concerning the contract, and requests that the Contracting Officer include the clause in the contract.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Public Notices (DEC 1991)</HD>

                <P>It is USAID's policy to inform the public as fully as possible of its programs and activities. The contractor is encouraged to give public notice of the receipt of this contract and, from time to time, to announce progress and accomplishments. Press releases or other public notices should include a statement substantially as follows: “The U.S. Agency for International Development administers the U.S. foreign assistance program providing economic and humanitarian assistance in more than 80 countries worldwide.” The contractor may call on USAID's Legislative and Public Affairs (LPA) for advice regarding public Notices. The contractor is requested to provide copies of notices or announcements to the cognizant technical officer and to USAID's Legislative <PRTPAGE P="85"/>and Public Affairs (LPA) as far in advance of release as possible.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[57 FR 5237, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart 752.3-70—USAID Clause Matrices [Reserved]</RESERVED>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 753</EAR>
          <HD SOURCE="HED">PART 753—FORMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 753.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>753.107</SECTNO>
              <SUBJECT>Obtaining forms.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 753.2—Prescription of Forms</HD>
              <SECTNO>753.270</SECTNO>
              <SUBJECT>Prescription of USAID Forms.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 753.3—Illustration of Forms</HD>
              <SECTNO>753.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979 44 FR 56673, 3 CFR, 1979 Comp., p. 435.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 50632, Dec. 16, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 753.1—General</HD>
            <SECTION>
              <SECTNO>753.107</SECTNO>
              <SUBJECT>Obtaining forms.</SUBJECT>
              <P>Copies of any USAID Form referenced in the AIDAIR may be obtained from the U.S. Agency for International Development, Washington, DC 20523-0001, Attention: M/AS/ISS, Distribution, Room B-929 N.S., or from the congnizant Contracting Officer.</P>
              <CITA>[53 FR 50632, Dec. 16, 1988, as amended at 56 FR 2699, Jan. 24, 1991; 56 FR 67226, Dec. 30, 1991; 59 FR 33447, June 29, 1994; 62 FR 40471, July 29, 1997]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 753.2—Prescription of Forms</HD>
            <SECTION>
              <SECTNO>753.270</SECTNO>
              <SUBJECT>Prescription of USAID forms.</SUBJECT>
              <P>The requirements for use of USAID forms are contained in parts 701 through 752 where the subject matter applicable to the form is addressed.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 753.3—Illustration of Forms</HD>
            <SECTION>
              <SECTNO>753.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>USAID forms are not illustrated in the AIDAR. Copies of any USAID form prescribed in the AIDAR may be obtained as provided in 753.107.</P>
            </SECTION>
            <APPENDIX>
              <RESERVED>Appendixes A-C to Chapter 7 [Reserved]</RESERVED>
            </APPENDIX>
            <APPENDIX>
              <EAR>Ch. 7, App. D</EAR>
              <HD SOURCE="HED">Appendix D to Chapter 7—Direct USAID Contracts With a U.S. Citizen or a U.S. Resident Alien for Personal Services Abroad</HD>
              <P>1. <E T="03">General.</E> (a) <E T="03">Purpose.</E> This appendix sets forth the authority, policy, and procedures under which USAID contracts with a U.S. citizen or U.S. resident alien for personal services abroad.</P>
              <P>(b) <E T="03">Definitions.</E> (1) <E T="03">Personal services contract (PSC)</E> means a contract that, by its express terms or as administered, make the contractor personnel appear, in effect, Government employees (see FAR 37.104).</P>
              <P>(2) <E T="03">Employer-employee relationship</E> means an employment relationship under a service contract with an individual which occurs when, as a result of the contract's terms or the manner of its administration during performance, the contractor is subject to the relatively continuous supervision and control of a Government officer or employee.</P>
              <P>(3) <E T="03">Non-person services contract</E> means a contract under which the personnel rendering the services are not subject either by the contract's terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees.</P>
              <P>(4) <E T="03">Independent contractor relationship</E> means a contract relationship in which the contractor is not subject to the supervision and control prevailing in relationships between the Government and its employees. Under this relationship, the Government does not normally supervise the performance of the work, control the days of the week or hours of the day in which it is to be performed, or the location of performance.</P>
              <P>(5) <E T="03">Resident hire</E> means a U.S. citizen who, at the time of hire as a PSC, resides in the cooperating country as a spouse or dependent of a U.S. citizen employed by a U.S. government agency or under any U.S. government-financed contract or agreement, or for reasons other than for employment with a U.S. government agency or under any U.S. government-financed contract or agreement. A U.S. citizen for purposes of this definition also includes persons who at the time of contracting are lawfully admitted permanent residents of the United States.<PRTPAGE P="86"/>
              </P>
              <P>(6) <E T="03">U.S. resident alien</E> means a non-U.S. citizen lawfully admitted for permanent residence in the United States.</P>
              <P>(7) <E T="03">Abroad</E> means outside the United States and its territories and possessions.</P>
              <P>(8) <E T="03">USAID direct-hire employees</E> means civilian employees appointed under USAID Handbook 25 procedures or superseding Automated Directive System (ADS) Chapters.
              </P>
              <P>2. <E T="03">Legal Basis.</E> (a) Section 635(b) of the Foreign Assistance Act of 1961, as amended (hereinafter referred to as the “FAA”) provides the Agency's contracting authority.</P>
              <P>(b) Section 636(a)(3) of the FAA (22 U.S.C. 2396(a)(3)) authorizes the Agency to enter into personal services contracts with individuals for personal services abroad and provides further that such individuals “* * * shall not be regarded as employees of the U.S. Government for the purpose of any law administered by the Civil Service Commission.” <SU>1</SU>
                <FTREF/>
              </P>
              <FTNT>
                <P>
                  <SU>1</SU> The Civil Service Commission is now the Federal Office of Personnel Management.</P>
              </FTNT>
              
              <P>3. <E T="03">Applicability.</E> (a) This appendix applies to all personal services contracts with U.S. citizens or U.S. resident aliens to provide assistance abroad under Section 636(a)(3) of the FAA.</P>
              <P>(b) This appendix does not apply to:</P>
              <P>(1) Nonpersonal services contracts with U.S. citizens or U.S. resident aliens; such contracts are covered by the basic text of the FAR (48 CFR Chapter 1) and the AIDAR (48 CFR Chapter 7).</P>
              <P>(2) Personal services contracts with individual Cooperating Country Nationals (CCNs) or Third Country Nationals (TCNs). Such contracts are covered by Appendix J of this chapter.</P>
              <P>(3) Other personal services arrangements covered by USAID Handbook 25—Employment and Promotion or superseding ADS Chapters.</P>

              <P>(4) Interagency agreements (e.g., PASAs and RSSAs covered by ADS 306—Interagency Agreements.
              </P>
              <P>4. <E T="03">Policy.</E> (a) <E T="03">General.</E> USAID may finance, with either program or operating expense (OE) funds, the cost of personal services contracts as part of the Agency's program of foreign assistance by entering into a direct contract with an individual U.S. citizen or U.S. resident alien for personal services abroad.</P>
              <P>(1) <E T="03">Program funds.</E> Under the authority of Section 635(h) of the FAA, program funds may be obligated for periods up to five years where necessary and appropriate to the accomplishment of the tasks involved.</P>
              <P>(2) <E T="03">Operating Expense Funds.</E> Pursuant to USAID budget policy, OE funded salaries and other recurrent cost items may be forward funded for a period of up to three (3) months beyond the fiscal year in which these funds were obligated. Non-recurring cost items may be forward funded for periods not to exceed twenty-four (24) months where necessary and appropriate to accomplishment of the work.<SU>2</SU>
                <FTREF/>
              </P>
              <FTNT>
                <P>
                  <SU>2</SU> If there is a need, these contracts may be written for 5 years also but funded only as outlined in paragraph 4(a) of this Appendix.</P>
              </FTNT>
              <P>(b) <E T="03">Limitations on Personal Services Contracts.</E> (1) Personal services contracts may only be used when adequate supervision is available.</P>
              <P>(2) Personal services contracts may be used for commercial activities. Commercial activities provide a product or service which could be obtained from a commercial source. See Attachment A of OMB Circular A-76 for a representative list of such activities.</P>
              <P>(3) Notwithstanding any other provision of USAID directives, regulations or delegations, U.S. citizen personal services contractors (USPSCs) may be delegated or assigned any authority, duty or responsibility delegable to U.S. citizen direct-hire employees (USDH employees) except that:</P>
              <P>a. They may not supervise U.S. direct-hire employees of USAID or other U.S. Government agencies. They may supervise USPSCs and non-U.S. citizen employees.</P>
              <P>b. They may not be designated as Contracting Officers or delegated authority to sign obligating or subobligating documents.</P>
              <P>c. They may represent the agency, except that communications that reflect a final policy, planning or budget decision of the agency must be cleared by a USDH employee.</P>
              <P>d. They may participate in personnel selection matters, but may not be delegated authority to make a final decision on personnel selection.</P>
              <P>e. Exceptions to the limitations in this paragraph (b)(3) must be approved by the Assistant Administrator for Management (AA/M).</P>
              <P>(c) <E T="03">Withholdings and Fringe Benefits.</E> (1) Personal services contractors (PSCs) are Government employees for purposes of the Internal Revenue Code (Title 26 of the United States Code) and are, therefore, subject to social security (FICA) and Federal income tax (FIT) withholdings. As employees, they are ineligible for the “foreign earned income” exclusion under the Internal Revenue Service (IRS) regulations (see 26 CFR 1.911-3(c)(3)).</P>

              <P>(2) Personal services contractors are treated on par with other Government employees, except for programs based on any law administered by the Federal Office of Personnel Management (e.g., incentive awards, life insurance, health insurance, and retirement programs covered by 5 CFR Parts 530, 531, 831, 870, 871, and 890). While PSCs are ineligible to participate in any of these programs, <PRTPAGE P="87"/>the following fringe benefits are provided as a matter of policy:</P>
              <P>(i) The employer's FICA contribution for retirement purposes.</P>
              <P>(ii) A contribution against the actual cost of the PSC's annual health and life insurance costs. Proof of health and life insurance coverage and its actual cost to the PSC shall be submitted to the Contracting Officer before any contribution is made. (See also paragraph 4(c)(3) of this Appendix.)</P>
              <P>(A) The contribution for health insurance shall not exceed 50% of the actual cost to the PSC for his/her annual health insurance, or the maximum U.S. Government contribution for a direct-hire employee, as announced annually by the Office of Personnel Management, whichever is less. If the PSC is covered under a spouse's health insurance plan, where the spouse's employer pays some or all of the health insurance costs, the cost to the PSC for annual health insurance shall be considered to be zero.</P>
              <P>(B) The contribution for life insurance shall be up to 50% of the actual annual costs to the PSC for life insurance, not to exceed $500.00 per year.</P>
              <P>(iii) PSCs shall receive the same percentage pay comparability adjustment as U.S. Government employees subject to the availability of funds.</P>
              <P>(iv) PSCs shall receive a 3% annual salary increase subject to satisfactory performance documented in their annual written evaluation. Such increase may not exceed 3% without a deviation. This 3% limitation also applies to extensions of the same service or negotiations for a new contract for the same or similar services unless a deviation has been approved.</P>
              <P>(v) PSCs shall receive the following allowances and differentials provided in the State Department's Standardized Regulations (Government Civilians Foreign Areas) on the same basis as U.S. Government employees (except for U.S. resident hires, see paragraph 4(d) and Section 12, General Provisions, Clause 22, “U.S. Resident Hire Personal Services Contractors”):</P>
              <P>(A) Temporary lodging allowance (Section 120),<SU>3</SU>
                <FTREF/>
              </P>
              <FTNT>
                <P>
                  <SU>3</SU> Mission Directors may authorize per diem in lieu of these allowances.</P>
              </FTNT>
              <P>(B) Living quarters allowance (Section 130),<SU>3</SU>
              </P>
              <P>(C) Post allowance (Section 220),<SU>3</SU>
              </P>
              <P>(D) Supplemental post allowance (Section 230),<SU>3</SU>
              </P>
              <P>(E) Separate maintenance allowance (Section 260),<SU>4</SU>
                <FTREF/>
              </P>
              <FTNT>
                <P>
                  <SU>4</SU> These allowances are not authorized for short tours (i.e., less than a year).</P>
              </FTNT>
              <P>(F) Education allowance (Section 270),<SU>4</SU>
              </P>
              <P>(G) Educational travel (Section 280),<SU>4</SU>
              </P>
              <P>(H) Post differential (Section 500),</P>
              <P>(I) Payments during evacuation/authorized departure (Section 600), and</P>
              <P>(J) Danger pay (Section 650).</P>
              <P>(vi) Any allowance or differential that is not expressly stated in paragraph 4(c)(2)(v) is not authorized for any PSC unless a deviation is approved. The only exception is a consumables allowance if authorized for the post under Handbook 22 or superseding ADS Chapter.</P>
              <P>(vii) Health room services may be provided in accordance with the clause of this contract entitled “Physical Fitness and Health Room Privileges.”</P>
              <P>(viii) PSCs are eligible to receive benefits for injury, disability, or death under the Federal Employees' Compensation Act since the law is administered by the Department of Labor not the Office of Personnel Management.</P>
              <P>(ix) PSCs are eligible to earn four hours of annual leave and four hours of sick leave for each two week period. However, PSCs with previous PSC service (not previous U.S. Government civilian or military service) earn either six hours of annual leave for each two week period if their previous PSC service exceeds 3 years (including 10 hours annual leave for the final pay period of a calendar year), or eight hours of annual leave for each two week period if their previous PSC service exceeds 15 years.</P>
              <P>(3) A PSC who is a spouse of a current or retired Civil Service, Foreign Service, or Military Service member and who is covered by their spouse's Government health or life insurance policy is ineligible for the contribution under paragraph 4(c)(2)(ii) of this appendix.</P>
              <P>(4) Retired U.S. Government employees shall not be paid additional contributions for health or life insurance under their contract (since the Government will normally have already paid its contribution for the retiree) unless the employee can prove to the satisfaction of the Contracting Officer that his/her health and life insurance does not provide or specifically excludes coverage overseas. If coverage overseas is excluded, then eligibility as cited in paragraph 4(c)(3) applies.</P>
              <P>(5) Retired U.S. Government employees may be awarded Personal Services Contracts without any reduction in or offset against their Government annuity.</P>
              <P>(d) <E T="03">U.S. Resident Hire Personal Services Contractors.</E> U.S. resident-hire PSCs are not eligible for any fringe benefits (except contributions for FICA, health insurance, and life insurance), including differentials and allowances unless such individuals can demonstrate to the satisfaction of the Contracting Officer that they have received similar benefits and allowances from their immediately previous employer in the cooperating country, or the Mission Director <PRTPAGE P="88"/>may determine that payment of such benefits would be consistent with the Mission's policy and practice and would be in the best interests of the U.S. Government.</P>
              <P>(e) <E T="03">Determining Salary for Personal Services Contractors.</E> (1) There are two separate and distinct methods of establishing a salary for personal services contractors. Use of method number 1 is required unless justified and approved as provided for in paragraph (e)(1)(ii).</P>
              <P>(i) <E T="03">Method 1:</E> Salaries for Personal Services Contractors shall be established based on the market value in the United States of the position being recruited for. This requires the Contracting Officer in coordination with the Technical Officer to determine the correct market value (a salary range) of the position to be filled. This method is required in establishing salary for all PSCs unless method 2 is authorized as provided for in paragraph (e)(1)(ii). Contract Information Bulletin (CIB) 96-8 dated February 23, 1996 provides a guide which contains information concerning Preparation of Scopes of Work, Determination of Salary Class Grade, Salary Class Bench Marks and Salary Class Review. The market value of the position then becomes the basis along with the applicants' certified salary history on the SF 171, “Personal Qualifications Statement” for salary negotiations by the Contracting Officer. The SF 171 must be retained in the permanent contract file. Any position which is determined to be above the GS-13 equivalent and exceeds six months in duration must be classified by M/HR/POD. The crucial point is the establishment of a realistic and reasonable market value for a job. The final determination regarding the reasonableness of a salary level rests with the Contracting Officer. Paying salaries using this method avoids “rank in person” salaries which are in excess of the value of the job being contracted for.</P>
              <P>(ii) <E T="03">Method 2:</E> If approved in writing by the Mission Director or the cognizant Assistant Administrator, based on written justification, salary may be negotiated based on the applicant's current earnings adjusted in accordance with the factors set out in paragraphs (e)(1)(ii) (A) through (C). This approval requirement cannot be redelegated. Current earnings must be certified by the contractor on the SF 171, (see paragraph 6(b)(3) of this appendix). This is guidance for establishing initial salaries, not subsequent increases, for the same contractor performing the same function.</P>
              <P>(A) As a rule, up to a 3 percent increase above current earnings may be given. However, a 3 percent increase is awarded only to a PSC whose earnings are based on a period of twelve months or more; 2 percent for established earnings of less than twelve months but not less than four months; or 1 percent for established earnings during the past four months.</P>
              <P>(B) Additional percentages may be given for the following factors. If a PSC has worked in a developing country for more than two years, an additional 1 percent may be awarded. Education related to the area of specialization and above the minimum qualification required may warrant an additional 1 percent, and those specialties for which there is keen competition in the employment market or a serious shortage category nationwide may be awarded an additional 2 percent. In addition, related technical experience over 5 years may increase the percentage by 1 and over ten years by 3.</P>
              <P>(C) All requests for an initial rate of pay above 10 percent over current earnings must be approved in writing by the appropriate Assistant Administrator or Mission Director. Current earnings are actual earnings for work reasonably related to the position for which the applicant is being considered. Paragraphs 4(e)(1)(ii) (A) through (C) apply only to salary setting method number 2 in paragraph 4 (e)(1)(ii).</P>
              <P>(2) When an applicant has no current earnings history (e.g., a person returning to the workforce after an absence of a number of years) or when an applicant's current earnings history doesn't accurately reflect the applicant's job market worth (e.g., a Peace Corps volunteer), every effort should be made to establish a market value for the position as a basis for negotiation, notwithstanding the lack of a current earnings history, provided that the applicant has the full qualifications for the job and could command a similar salary in the open job market.</P>
              <P>(3) Salaries in excess of the ES-6 level must also be approved by the M/OP Director based upon a memorandum through the appropriate Assistant Administrator or Mission Director and Contracting Officer, as provided for in internal guidelines on “Approval Procedures for Contractor Salaries”. This approval level cannot be redelegated.</P>
              <P>(f) <E T="03">Incentive Awards.</E> U.S. PSCs are not eligible to receive monetary awards. They are eligible for non-monetary awards such as certificates.</P>
              <P>(g) <E T="03">Annual Salary Increase.</E> PSC contracts written for more than one year should provide for a 3% annual increase based on satisfactory performance documented in their annual written evaluations.</P>
              <P>(h) <E T="03">Pay Comparability Adjustment.</E> PSCs shall receive the same percentage pay comparability adjustment as that received by U.S. Government employees subject to the availability of funds.</P>
              <P>(i) <E T="03">Subcontracting.</E> PSCs are U.S. Government employees and may not be called upon (or permitted) to subcontract out any part of their work. Funds for subcontracting have no place in the budget of a personal services contract. Support services, equipment, and supplies (e.g., typing and report preparation, <PRTPAGE P="89"/>paper, pens, computers, and furniture) should be furnished to PSCs just as they would be to direct-hire employees. To the extent that direct-hire personnel may be authorized to purchase supporting services or supplies under a travel authorization, so may PSCs; otherwise, contracts for personal services should not contain any funds for procurement.
              </P>
              <P>5. <E T="03">Soliciting for Personal Services Contracts.</E> (a) <E T="03">Technical Officer's Responsibilities.</E> The Technical Officer will prepare a written detailed statement of duties and a statement of minimum qualifications to cover the position being recruited for. The statement shall be included in the procurement request (the Acquisition &amp; Assistance Request Document) e.g., the request shall also include the following additional information as a minimum:</P>
              <P>(1) The specific foreign location(s) where the work is to be performed, including any travel requirements (with an estimate of frequency);</P>
              <P>(2) The length of the contract, with beginning and ending dates, plus any options for renewal or extension;</P>
              <P>(3) The basic education, training, experience, and skills required for the position;</P>
              <P>(4) An estimate of what a comparable GS/FS equivalent position should cost, including basic salary, allowances, and differentials, if appropriate; and</P>
              <P>(5) A list of Government or host country furnished items (e.g., housing).</P>
              <P>(b) <E T="03">Contracting Officer's Responsibilities.</E> (1) The Contracting Officer will prepare the solicitation for personal services which shall contain:</P>
              <P>(i) Three sets of SF 171s and SF 171As. (Upon receipt, one copy of each SF 171 and SF 171A shall be forwarded to the Project Officer.)</P>
              <P>(ii) A detailed statement of duties or a completed position description for the position being recruited for.</P>
              <P>(iii) A copy of the prescribed contract Cover Page, Contract Schedule, General Provisions as appropriate, as well as the FAR Clauses to be incorporated in full text and by reference.</P>
              <P>(iv) A copy of the USAID General Notice entitled “Employee Review of the New Standards of Conduct”.</P>
              <P>(2) The Contracting Officer shall comply with the requirements of (48 CFR) AIDAR 706.302-70(c) as detailed in paragraph 5(c) except those recruited from the U.S.</P>
              <P>(c) <E T="03">Competition.</E> (1) Under (48 CFR) AIDAR 706.302-70(b)(1), Personal Services Contracts (except those recruited from the U.S.) are exempt from the requirements for full and open competition with two limitations that must be observed by Contracting Officers:</P>
              <P>(i) Offers are to be requested from as many potential offerors as is practicable under the circumstances, and</P>
              <P>(ii) A justification supporting less than full and open competition must be prepared in accordance with FAR 6.303.</P>
              <P>(2) <E T="03">PSCs With Untied States Citizens or Resident Aliens Recruited from Outside the Cooperating Country.</E> Solicitations for PSCs recruited outside the cooperating country must be publicized via the Agency's External Home Page on the Internet under the caption “Business &amp; Procurement, USAID Procurements.” Instructions regarding how to access the External Internet and the information to be provided have been approved and included in a CIB. A justification under FAR 6.303 is not required when this procedure is followed.</P>
              <P>(3) A class justification was approved by the USAID Procurement Executive to satisfy the requirements of (48 CFR) AIDAR 706.302-70(c)(2) for a justification in accordance with FAR 6.303. This class justification for Personal Services Contracts with U.S. Citizens may only be used for those who are recruited locally subject to the following conditions:</P>
              <P>(i) The position was publicized locally in accordance with established Mission policy or procedure, or the procedures in paragraph 5(c)(ii) was followed;</P>
              <P>(ii) As an alternative to the procedures in paragraphs 5(c) (i) and (ii), at least 3 individuals were considered by consulting source lists (e.g., applications or resumes on hand) or conducting other informal solicitation.</P>
              <P>(iii) Extensions or renewals with the same individual for continuing services do not need to be publicized.</P>
              <P>(iv) A copy of the class justification (which was distributed to all USAID Contracting Officers via Contract Information Bulletin) must be included in the contract file, together with a written statement, signed by the Contracting Officer, that the contract is being awarded pursuant to (48 CFR) AIDAR 706.302-70(b)(1); that the conditions for use of this class justification have been met; and that the cost of the contract is fair and reasonable.</P>
              <P>(4) If the appropriate competitive procedure in paragraph 5(3) is not followed, the Contracting Officer must prepare a separate justification as required under (48 CFR) AIDAR 706.302-70(c)(2).</P>

              <P>(5) Since the award of a Personal Services Contract is based on technical qualifications, not price, and since the SF 171, “Personal Qualifications Statement”, and SF 171A, “Continuation Sheet for Standard Form 171”, are used to solicit for such contracts, FAR subparts 15.4 and 15.5 and FAR parts 52 and 53 are inappropriate and shall not be used. Instead, the solicitation and selection procedures outlined in this Appendix shall govern.
              </P>
              <P>6. <E T="03">Negotiating a Personal Services Contract.</E> Negotiating a Personal Services Contract is significantly different from negotiating a <PRTPAGE P="90"/>nonpersonal services contract because it establishes an employer-employee relationship; therefore, the selection procedures are more akin to the personnel selection procedures.</P>
              <P>(a) <E T="03">Technical Officer's Responsibilities.</E> The Technical Officer shall be responsible for reviewing and evaluating the applications (i.e., SF 171s) received in response to the solicitation issued by the Contracting Officer. If deemed appropriate, interviews may be conducted with the applicants before the final selection is submitted to the Contracting Officer.</P>
              <P>(b) <E T="03">Contracting Officer's Responsibilities.</E> (1) The Contracting Officer shall forward a copy of each SF 171 received under the solicitation to the Project Officer for evaluation.</P>
              <P>(2) On receipt of the Technical Officer's recommendation, the Contracting Officer shall conduct negotiations with the recommended applicant. Normally, the Contracting Officer shall negotiate only the salary (see the salary setting coverage in paragraph 4(e) of this Appendix). The terms and conditions of the contract, including differentials and allowances, are not negotiable or waivable without a properly approved deviation (see (48 CFR) AIDAR 701.470). If the Contracting Officer can negotiate a salary that is fair and reasonable, then the award shall be made.</P>
              <P>(3) The Contracting Officer shall use the certified salary history on the SF 171 as the basis for salary negotiations, along with the market value of the position being recruited for (unless approval not to use market value has been granted under paragraph 4(e)(1)(ii)), and the Technical Officer's cost estimate.</P>
              <P>(4) The Contracting Officer will obtain two copies of IRS Form W-4, “Employee's Withholding Allowance Certificate”, from the successful applicant. (Upon receipt, the Contracting Officer will forward one copy of the W-4 to the Office of the Controller.)</P>

              <P>(5) Security clearance is required for all U.S. citizens entering into USAID PSCs. The Contracting Officer will obtain four sets of SF 86, “Security Investigation Data for Sensitive Position”, from the successful applicant and forward them to the Office of Security. PSCs may receive a preliminary clearance and be placed under contract prior to receipt of clearance provided the appropriate paper work has been completed, reviewed by IG/SEC/PSI and acknowledged as a “no objection” to the appropriate Mission. See General Provision 24 in section 12 of this Appendix.
              </P>
              <P>7. <E T="03">Executing a Personal Services Contract.</E> Contracting Officers or Heads of Contracting Activities, whether USAID/W or Mission, may execute Personal Services Contracts, provided that the amount of the contract does not exceed the contracting authority that has been redelegated to them. In executing a Personal Services Contract, the Contracting Officer is responsible for insuring that:</P>
              <P>(a) The proposed contract is within his/her delegated authority;</P>
              <P>(b) A Request Number covering the proposed contract has been received;</P>
              <P>(c) The position has been classified by either the Mission or M/HR/POD (see CIB 96-8) and the classification is in the contract file;</P>
              <P>(d) The proposed Statement of Duties is contractible, contains a statement of minimum qualifications from the technical office requesting the services, and is suitable to the use of a Personal Services Contract in that:</P>
              <P>(1) Performance of the proposed work requires or is best suited for an employer-employee relationship, and is thus not suited to the use of a non-personal services contract;</P>
              <P>(2) The Statement of Duties does not require performance of any function normally reserved for Federal employees (see paragraph 4(b) of this Appendix); and</P>
              <P>(3) There is no apparent conflict of interest involved (if the Contracting Officer believes that a conflict of interest may exist, the question should be referred to the cognizant legal counsel);</P>
              <P>(e) Selection of the contractor is documented and justified. (48 CFR) AIDAR 706.302-70(b)(1) provides an exception to the requirement for full and open competition for Personal Services Contracts abroad (see paragraph 5(c) of this Appendix);</P>

              <P>(f) The standard contract format prescribed for Personal Services Contracts (Sections 10, 11, 12 and 13 to this Appendix) is used; or that any necessary deviations are processed as required by (48 CFR) AIDAR 701.470.
              </P>
              <P>(<E T="04">Note:</E> The prescribed contract format is designed for use with contractors who are residing in the U.S. when hired. If the contract is with a U.S. citizen residing in the cooperating country when hired, contract provisions governing physical fitness and travel/transportation expenses, and home leave, allowances, and orientation should be suitably modified (see paragraph 4(d) of this Appendix)).
              </P>
              <FP>These modifications are not considered deviations subject to (48 CFR) AIDAR 701.470. (Justification and explanation of these modifications is to be included in the contract file);</FP>
              <P>(g) Orientation is arranged in accordance with General Provision 23 in section 12 of this Appendix;</P>
              <P>(h) The contractor has submitted the names, addresses, and telephone numbers of at least two persons who may be notified in the event of an emergency (this information is to be retained in the contract file);</P>

              <P>(i) The contract is complete and correct and all information required on the contract <PRTPAGE P="91"/>Cover Page (USAID Form 1420-36A) has been entered;</P>
              <P>(j) The contract has been signed by the Contracting Office and the contractor, and fully executed copies are properly distributed;</P>
              <P>(k) The following clearances, approvals and forms have been obtained, properly completed, and placed in the contract file before the contract is signed by both parties;</P>
              <P>(1) Evidence of job classification in the file by the Mission except for grade equivalents above GS-13. For those positions with grade equivalent above GS-13, evidence of job classification done by M/HR/POD;</P>
              <P>(2) Security clearance, including the completed SF 86, to the extent required by USAID Handbook 6, Security or superseding ADS Chapter, (see General Provisions 14 and 24 in section 12 of this Appendix);</P>
              <P>(3) Mission, host country, Human Resources Office, and technical office clearance, as appropriate;</P>
              <P>(4) Medical examinations and certifications as required by the contract general provision entitled “Physical Fitness and Health Room Privileges”;</P>
              <P>(5) One original executed IRS Form W-4 entitled “Employee's Withholding Allowance Certificate”, and one copy, shall be obtained. The original shall be sent to the Controller of the paying office and one shall be placed in the contract file;</P>
              <P>(6) Evidence of DAA/HR clearance that the position may be filled by PSC.</P>
              <P>(7) The approval for any salary in excess of ES-6, in accordance with Appendix G of this chapter;</P>
              <P>(8) A copy of the class justification or other appropriate explanation and support required by (48 CFR) AIDAR 706.302-70, if applicable;</P>
              <P>(9) Any deviation to the policy or procedures of this appendix, processed and approved under (48 CFR) AIDAR 701.470;</P>
              <P>(10) A fully executed SF 171, and a copy of the position classification, and approved deviation, if appropriate;</P>
              <P>(11) The Memorandum of Negotiation; and</P>
              <P>(12) The Contracting Officer's signed certification that competition requirements have been satisfied as described in paragraph 5(c) of the policy text of this Appendix. The certification shall be a part of the Memorandum of Negotiations.</P>
              <P>(l) Funds for the contract are properly obligated to preclude violation of the Anti-Deficiency Act, 31 U.S.C. 1341 (the Contracting Officer ensures that the contract has been properly recorded by the appropriate accounting office prior to its release for the signature of the selected contractor);</P>
              <P>(m) The contractor receives and understands the USAID General Notice entitled “Employee Review of the New Standards of Conduct” and a copy is attached to each contract as provided for in paragraph (c) of General Provision 1, section 12;</P>
              <P>(n) Agency conflict of interest requirements as set out in the General Notice “Employee Review of the New Standards of Conduct” are met by the contractor prior to his/her reporting for duty;</P>
              <P>(o) A copy of a Checklist for Personal Services contractors which may be in the format set out in this section or another format convenient for the Contracting Officer, provided that a memorandum containing all of the information described in this section 7 shall be prepared for each PSC and placed in the contract file;</P>
              <P>(p) The contractor understands that he/she is an employee of the United States for purposes of the Foreign Assistance Act of 1961, as amended, and the Internal Revenue Code (Title 26 of the United States Code). This subjects the employee to withholding for both FICA and Federal Income Tax and precludes the employee from receiving the Federal Earned Income Tax exclusion of 26 U.S.C. Section 911. See Special Note on the Cover Page of USAID Form 1420-36.</P>

              <P>(q) The contractor also understands that he/she may commence work prior to the completion of the security clearance. However, until such time as clearance is received, the contractor may not have access to classified or administratively controlled materials. Failure to obtain clearances will constitute cause for termination.
              </P>
              <P>8. <E T="03">Post Audit.</E> The Inspector General, or his/her designee, audits the Personal Services Contracts of all contracting activities for the purpose of ensuring conformance to applicable policy and regulations.
              </P>
              <P>9. <E T="03">Contracting Format.</E> The prescribed Contract Cover Page, Contract Schedule, General Provisions, and appropriate Federal Acquisition Regulations (FAR) clauses for Personal Services Contracts covered by this appendix are included as follows:</P>
              <P>10. <E T="03">Form USAID 1420-36, “Cover Page” and “Schedule”.</E>
              </P>
              <P>11. <E T="03">Optional Schedule With a U.S. Citizen or U.S. Resident Alien.</E>
              </P>
              <P>12. <E T="03">General Provisions.</E>
              </P>
              <P>13. <E T="03">FAR Clauses to be Incorporated in Full Text in Personal Services Contracts.</E>
              </P>
              <P>14. <E T="03">FAR Clauses to be incorporated by reference in Personal Services Contracts.</E>
                
              </P>
              <P>10. <E T="03">Form USAID 1420-36, “Cover Page” and “Schedule”.</E>
              </P>
              <HD SOURCE="HD2">Contract With a U.S. Citizen or U.S. Resident Alien for Personal Services Abroad—Form AID 1420-36A (11/96) (Cover Page)</HD>
              <GPH DEEP="469" SPAN="2">
                <PRTPAGE P="92"/>
                <GID>ER23JY97.000</GID>
              </GPH>
              <HD SOURCE="HD1">Privacy Act Statement</HD>
              <P>This information is provided pursuant to Public Law 93-579 (Privacy Act of 1974), December 31, 1974, for individuals who complete this form.</P>

              <P>The Executive Office of the President, Office of Management and Budget has required <PRTPAGE P="93"/>that all departments and agencies comply with the reporting requirements of Section 6041 of the Internal Revenue Code, Section 6041 states that all departments and agencies making payments totalling $600 or more in one year to a recipient for services provided must be reported to the Internal Revenue Service (IRS). The SSN and all financial numbers will be disclosed to U.S. Agency for International Development (USAID) payroll office personnel and personnel in the Department of the Treasury, Division of Disbursements. USAID will use this SSN to complete Form W-2 of the Code on employee compensation. Disclosure by the personal services contractor of the SSN is necessary to obtain the services, benefits or processes provided by this contract. Disclosure of the SSN may be made outside USAID (a) pursuant to any applicable routine use listed in USAID's Notice for implementing the Privacy Act as published in the Federal Register or (b) when disclosure by virtue of a contract being a public document after signatures is authorized under the Freedom of Information Act.</P>
              <HD SOURCE="HD3">Schedule</HD>
              <P>(The Illustrated Schedule consists of this Table of Contents—Articles I-VI, and the General Provisions.)</P>
              <HD SOURCE="HD1">Table of Contents</HD>
              <FP SOURCE="FP-2">Article I—Statement of Duties</FP>
              <FP SOURCE="FP-2">Article II—Period of Service Overseas</FP>
              <FP SOURCE="FP-2">Article III—Contractor's Compensation and Reimbursement in U.S. Dollars</FP>
              <FP SOURCE="FP-2">Article IV—Costs Reimbursable and Logistic Support</FP>
              <FP SOURCE="FP-2">Article V—Precontract Expenses</FP>
              <FP SOURCE="FP-2">Article VI—Additional Clauses</FP>
              
              <P>General Provisions:</P>

              <P>The following provisions numbered as shown below omitting number(s) ___, are the General Provisions (GPs) of this Contract:
              </P>
              <FP SOURCE="FP-2">1. Definitions</FP>
              <FP SOURCE="FP-2">2. Laws and Regulations Applicable Abroad</FP>
              <FP SOURCE="FP-2">3. Physical Fitness and Health Room Privileges</FP>
              <FP SOURCE="FP-2">4. Workweek and Compensation (Pay Comparability Adjustments)</FP>
              <FP SOURCE="FP-2">5. Leave and Holidays</FP>
              <FP SOURCE="FP-2">6. Differential and Allowances</FP>
              <FP SOURCE="FP-2">7. Social Security, Federal Income Tax and Foreign Earned Income</FP>
              <FP SOURCE="FP-2">8. Advance of Dollar Funds</FP>
              <FP SOURCE="FP-2">9. Insurance</FP>
              <FP SOURCE="FP-2">10. Travel and Transportation Expenses</FP>
              <FP SOURCE="FP-2">11. Payment</FP>
              <FP SOURCE="FP-2">12. Conversion of U.S. Dollars to Local Currency</FP>
              <FP SOURCE="FP-2">13. Post of Assignment Privileges</FP>
              <FP SOURCE="FP-2">14. Security Requirements</FP>
              <FP SOURCE="FP-2">15. Contractor-Mission Relationships</FP>
              <FP SOURCE="FP-2">16. Termination</FP>
              <FP SOURCE="FP-2">17. Release of Information</FP>
              <FP SOURCE="FP-2">18. Notices</FP>
              <FP SOURCE="FP-2">19. Reports</FP>
              <FP SOURCE="FP-2">20. Use of Pouch Facilities</FP>
              <FP SOURCE="FP-2">21. Biographical Data</FP>
              <FP SOURCE="FP-2">22. Resident Hire PSC</FP>
              <FP SOURCE="FP-2">23. Orientation and Language Training</FP>
              <FP SOURCE="FP-2">24. Conditions for Contracting Prior to Receipt of Security Clearance</FP>
              <FP SOURCE="FP-2">25. Medical Evacuation Services</FP>
              <FP SOURCE="FP-2">26. Governing Law</FP>
              
              <P>For each tour of duty, attach the applicable General Provisions.</P>
              <P>Schedule: (<E T="04">Note:</E> Use of the following Schedule Articles are not mandatory. They are intended to serve as guidelines for contracting offices in drafting contract schedules. Article language may be changed to suit the needs of the particular contract).</P>
              <HD SOURCE="HD3">Article I—Statement of Duties</HD>
              <P>(The statement of duties shall include:</P>
              <P>A. General statement of the purpose of the contract.</P>
              <P>B. Statement of duties to be performed.</P>
              <P>C. Any USAID consultation or orientation.)</P>
              <HD SOURCE="HD3">Article II—Period of Service Overseas</HD>
              <P>Within ___ days after written notice from the Contracting Officer that all clearances, including the doctor's statement of medical opinion required under General Provision Clause 4, have been received or unless another date is specified by the Contracting Officer in writing, the contractor shall proceed to ___ where he/she shall promptly commence performance of the duties specified above. The contractor's period of service overseas shall be approximately ___ in ___. (Specify time of duties in each location as well as authorized stopovers with purpose of each.)</P>
              <HD SOURCE="HD3">Article III—Contractor's Compensation and Reimbursement in U.S. Dollars</HD>
              <P>A. Except to the extent reimbursement is payable in the currency of the Cooperating Country pursuant to Article IV, USAID shall pay the contractor compensation after it has accrued and reimburse him/her in U.S. dollars for necessary and reasonable costs actually incurred by him/her in the performance of this contract within the categories listed in paragraph C, below, and subject to the conditions and limitations applicable thereto as set out herein and in the attached General Provisions (GP).</P>
              <P>B. The amount budgeted and available as personal compensation to the contractor is calculated to cover a calendar period of approximately ___ (days) (weeks) (months) (years) which is to include:</P>

              <P>(1) vacation, sick, and home leave which may be earned during the contractor's tour of duty (GP Clause 5);<PRTPAGE P="94"/>
              </P>
              <P>(2) ___ days for authorized travel (GP Clause 10); and</P>
              <P>(3) ___ days for orientation and consultation in the United States (GP Clause 23).</P>
              <P>C. Allowable Costs: 1. Compensation at the rate of $___ per (year) (month) (week) (day). Adjustments in compensation (pay) for periods when the contractor is not in compensable pay status shall be calculated as follows:</P>
              <P>Rate of $___ per (day) (hour).</P>
              <P>Contingency for Compensation (Pay Comparability) Adjustments. $___.</P>
              <P>Annual Salary increase (3%) $___.</P>
              <P>2. Overtime (Unless specifically authorized in the Schedule of this contract, no overtime hours shall be allowed hereunder.) $___.</P>
              <P>* <FTREF/>3. Overseas Differential (Ref. GP Clause No. 6.) Rate $___ and Contingency $___=Total $___.</P>
              <FTNT>
                <P>* If post differential is applicable to the assigned post, a contingency for the adjusted amount of differential resulting from compensation (pay comparability) adjustment should be included.</P>
              </FTNT>
              <P>** <FTREF/>4. Allowances in Cooperating Country (Ref. GP Clause 6.) $___.</P>
              <FTNT>
                <P>** Do not include the value of any costs to be paid or reimbursed in local currency.</P>
              </FTNT>
              <P>** 5. Travel and Transportation (Ref. GP Clause 10.) (Includes the value of GTRs furnished by the Government, not payable to contractor). $___.</P>
              <P>a. United States$___</P>
              <P>b. International$___</P>
              <P>c. Cooperating and Third Country$___</P>
              <P>Subtotal Item 5$___</P>
              <P>** 6. Subsistence or Per Diem (Ref. GP Clause 10.)</P>
              <P>a. Untied States$___</P>
              <P>b. International$___</P>
              <P>c. Cooperating and Third Country$___.</P>
              <P>Subtotal Item 6$___</P>
              <P>7. Other Direct Costs.</P>
              <P>a. Health and Life Insturance$___</P>
              <P>b. Precontract Costs, passport, visa, inoculations, etc. (Ref. GP Clause 8.) $___</P>
              <P>c. Physical Examination (Ref. GP Clause 3.)$___</P>
              <P>d. Communications, Miscellaneous.$___</P>
              <P>Subtotal Item 7$___</P>
              <P>8. F.I.C.A.-U.S.G. Contribution (not payable to contractor).$___</P>
              <P>D. Maximum U.S.-Dollar Obligation:</P>
              <P>In no event shall the maximum U.S.-dollar obligation under this contract exceed $___. Contractor shall keep a close account of all obligations he/she incurs and accrues hereunder and promptly notify the Contracting Officer whenever in his/her opinion the said maximum is not sufficient to cover all compensation and costs reimbursable in U.S. dollars which he/she anticipates under the contract.</P>
              <HD SOURCE="HD3">Article IV—Costs Reimbursable and Logistic Support</HD>
              <P>A. General: The contractor shall be provided with or reimbursed in local currency (___) for the following:</P>
              <HD SOURCE="HD3">[Complete]</HD>
              <P>B. Method of Payment of Local Currency Costs: Those contract costs which are specified as local currency costs in paragraph A above, if not furnished in kind by the cooperating government or the Mission, shall be paid to the contractor in a manner adapted to the local situation, based on vouchers submitted in accordance with General Provision Clause 11. The documentation for such costs shall be on such forms and in such manner as the Mission Director shall prescribe.</P>
              <HD SOURCE="HD3">[Complete]</HD>
              <HD SOURCE="HD3">Article V—Precontract Expenses</HD>
              <P>No expense incurred before execution of this contract will be reimbursed unless such expense was incurred after receipt and acceptance of a precontract expense letter issued to the contractor by the Contracting Officer, and then only in accordance with the provisions and limitations contained in such letter. The rights and obligations created by such letter shall be considered as merged into this contract.</P>
              <HD SOURCE="HD3">Article VI—Additional Clauses</HD>

              <P>(Additional Schedule Clauses may be added such as the implementation of General Provisions or Additional Clauses.)
              </P>
              <P>11.<E T="03">Optional Schedule With a U.S. Citizen or U.S. Resident Alien</E>
              </P>
              <HD SOURCE="HD3"> A U.S. Citizen or a U.S. Resident Alien PSC Contract No. ___</HD>
              <HD SOURCE="HD1">Table of Contents</HD>
              <HD SOURCE="HD3">(Optional Schedule)</HD>
              <P>(Use of the Optional Schedule is not mandatory. It is intended to serve as an alternate procedure for OE funded U.S. PSCs or U.S. Resident Alien PSCs. The Schedule is for use when the Contracting Officer anticipates incremental recurring cost funded contracts.</P>
              <P>Use of the Optional Schedule eliminates the need to amend the contract each time funds are obligated. However, the Contracting Officer is required to amend each contract not less than twice during a 12 month period to ensure that the contract record of obligations is up to date and agrees with the figures in the master funding document.)</P>

              <P>The Schedule on pages ___ thru ___ consists of this Table of Contents and the following Articles:
              </P>
              <FP SOURCE="FP-2">Article I—Statement of Duties<PRTPAGE P="95"/>
              </FP>
              <FP SOURCE="FP-2">Article II—Period of Service Overseas</FP>
              <FP SOURCE="FP-2">Article III—Contractor's Compensation and Reimbursement in U.S. Dollars</FP>
              <FP SOURCE="FP-2">Article IV—Costs Reimbursable and Logistic Support</FP>
              <FP SOURCE="FP-2">Article V—Precontract Expenses</FP>
              <FP SOURCE="FP-2">Article VI—Additional Clauses</FP>
              
              <P>General Provisions:</P>

              <P>The following provisions, numbered as shown below, omitting number(s) ___, are the General Provisions (GP) of this Contract:
              </P>
              <FP SOURCE="FP-2">1. Definitions</FP>
              <FP SOURCE="FP-2">2. Laws and Regulations Applicable Abroad</FP>
              <FP SOURCE="FP-2">3. Physical Fitness and Health Room Privileges</FP>
              <FP SOURCE="FP-2">4. Workweek and Compensation (Pay Comparability Adjustments)</FP>
              <FP SOURCE="FP-2">5. Leave and Holidays</FP>
              <FP SOURCE="FP-2">6. Differential and Allowances</FP>
              <FP SOURCE="FP-2">7. Social Security and Federal Income Tax</FP>
              <FP SOURCE="FP-2">8. Advance of Dollar Funds</FP>
              <FP SOURCE="FP-2">9. Insurance</FP>
              <FP SOURCE="FP-2">10. Travel and Transportation Expenses</FP>
              <FP SOURCE="FP-2">11. Payment</FP>
              <FP SOURCE="FP-2">12. Conversion of U.S. Dollars of Local Currency</FP>
              <FP SOURCE="FP-2">13. Post of Assignment Privileges</FP>
              <FP SOURCE="FP-2">14. Security Requirements</FP>
              <FP SOURCE="FP-2">15. Contractor-Mission Relationships</FP>
              <FP SOURCE="FP-2">16. Termination</FP>
              <FP SOURCE="FP-2">17. Release of Information</FP>
              <FP SOURCE="FP-2">18. Notices</FP>
              <FP SOURCE="FP-2">19. Reports</FP>
              <FP SOURCE="FP-2">20. Use of Pouch Facilities</FP>
              <FP SOURCE="FP-2">21. Biographical Data</FP>
              <FP SOURCE="FP-2">22. Resident Hire PSC</FP>
              <FP SOURCE="FP-2">23. Orientation and Language Training</FP>
              <FP SOURCE="FP-2">24. Conditions for Contracting Prior to Receipt of Security Clearance</FP>
              <FP SOURCE="FP-2">25. Medical Evacuation Services</FP>
              <FP SOURCE="FP-2">26. Governing Law</FP>
              
              <P>For each tour of duty, attach the applicable General Provisions.</P>
              <HD SOURCE="HD3">Article I—Statement of Duties.</HD>
              <P>(The statement of duties shall include:</P>
              <P>A. General statement of the purpose of the contract.</P>
              <P>B. Statement of duties to be performed.</P>
              <P>C. Any USAID consultation or orientation.)</P>
              <HD SOURCE="HD3">Article II—Period of Service Overseas.</HD>
              <P>Within ___ days after written notice form the Contracting Officer that all clearances, including the doctor's statement of medical opinion required under General Provision Clause 3, have been received or unless another date is specified by the Contracting Officer in writing, the contractor shall proceed to ___ where he/she shall promptly commence performance of the duties specified above. The contractor's period of service overseas shall be approximately ___ in ___. (Specify time of duties in each location as well as authorized stopovers with purpose of each.)</P>
              <HD SOURCE="HD3">Article III—Contractor's Compensation and Reimbursement in U.S. Dollars.</HD>
              <P>A. Except to the extent reimbursement is payable in the currency of the Cooperating Country pursuant to Article IV, USAID shall pay the contractor compensation after it has accrued and reimburse him/her in U.S. dollars for necessary and reasonable costs actually incurred by him/her in the performance of this contract within the categories listed in paragraph C, below, and subject to the conditions and limitations applicable thereto as set out herein and in the attached General Provisions (GP).</P>
              <P>B. The amount budgeted and available as personal compensation to the contractor is calculated to cover a calendar period of approximately ___ (days) (weeks) (months) (years) which is to include:</P>
              <P>1. Vacation, sick, and home leave which may be earned during the contractor's tour of duty (GP Clause 5);</P>
              <P>2. ___ days for authorized travel (GP Clause 10); and</P>
              <P>3. ___ days for orientation and consultation in the United States (GP Clause 23).</P>
              <P>C. Allowable Costs: 1. The following illustrative budget details allowable costs under this contract and provides estimated incremental recurrent cost funding in the total amount shown. Additional funds for the full term of this contract will be provided by the preparation of a master PSC funding document issued by the Mission Controller for the purpose of providing additional funding for a specific period. The master PSC funding document will be attached to this contract and will form a part of the executed contract while also serving to amend the budget.</P>
              <P>2. Compensation at the rate of $___ per (year) (month) (week) (day). Adjustments in compensation (pay) for periods when the contractor is not in compensable pay status shall be calculated as follows:</P>
              <P>Rate of $___ per (day) (hour).</P>
              <P>Contingency for Compensation (Pay Comparability Adjustments.) $___</P>
              <P>Annual Salary increase (3%) $___</P>
              <P>3. Overtime (Unless specifically authorized in the Schedule of this contract, no overtime hours shall be allowed hereunder.) $___</P>
              <P>* 4. Overseas Differential (Ref. GP Clause No. 6.) Rate $___ and Contingency $___ = Total $___.</P>
              <P>** <FTREF/>5. Allowances in Cooperating Country (Ref. GP Clause 6.) $___</P>
              <FTNT>
                <P>* If post differential is applicable to the assigned post, a contingency for the adjusted <PRTPAGE/>amount of differential resulting from compensation (pay comparability) adjustment should be included.</P>
              </FTNT>
              <PRTPAGE P="96"/>
              <P>** <FTREF/>6. Travel and Transportation (Ref. GP Clause 10.) (Includes the value of GTRs furnished by the Government, not payable to contractor). $___.</P>
              <FTNT>
                <P>** Do not include the value of any costs to be paid or reimbursed in local currency.</P>
              </FTNT>
              <P>a. United States$___</P>
              <P>b. International$___</P>
              <P>c. Cooperating and Third Country$___</P>
              <P>Subtotal Item 6$___</P>
              <P>**7. Subsistence or Per Diem (Ref. GP Clause 10.)</P>
              <P>a. United States$___</P>
              <P>b. International$___</P>
              <P>c. Cooperating and Third Country$___</P>
              <P>Subtotal Item 7$___</P>
              <P>**8. Other Direct Costs</P>
              <P>a. Health and Life Insurance (Ref. GP Clause 9.)$___</P>
              <P>b. Precontract Costs, passport, visa, inoculations, etc. (Ref. GP Clause 8.)$___</P>
              <P>c. Physical Examination (Ref. GP Clause 3.)$___</P>
              <P>d. Communications, Miscellaneous Subtotal Item 8$___</P>
              <P>9. F.I.C.A.—U.S.G. contribution (not payable to contractor).$___</P>
              <P>D. Maximum U.S.-Dollar Obligation: In no event shall the maximum U.S.-dollar obligation under this contract exceed $___.</P>
              <P>E. Salary changes and personnel-related contract actions will be made by processing the same forms as used in making such changes and actions for direct-hire employees. When issued by the Contracting Officer, the forms utilized will be attached to the contract and will form a part of the contract terms and conditions.</P>
              <P>F. Any adjustment or increase in the compensation granted to direct-hire employees will be allowed for in PSCs subject to the availability of funds. Such an adjustment will be effected by a mass pay adjustment notice from the Contracting Officer, which will be attached to the contract and form a part of the executed contract.</P>
              <P>G. At the end of each year of satisfactory service, PSC contractors will be eligible to receive an increase equal to 3% pending availability of funds provided their services have been satisfactory. Such increase will be effected by the execution of an SF-1126, payroll change slip which is to be attached to each contract and each action forms a part of the official contract file.</P>
              <P>H. The master PSC funding document may not exceed the term or estimated total cost of this contract. Notwithstanding that additional funds are obligated under this contract through the issuance and attachment of the master PSC funding document, all other contract terms and conditions remain in full effect.</P>
              <HD SOURCE="HD3">Article IV—Costs Reimbursable and Logistic Support</HD>
              <P>A. General: The contractor shall be provided with or reimbursed in local currency (___) for the following:</P>
              <HD SOURCE="HD3">[Complete]</HD>
              <P>B. Method of Payment of Local Currency Costs: Those contract costs which are specified as local currency costs in paragraph A above, if not furnished in kind by the cooperating government or the Mission, shall be paid to the contractor in a manner adapted to the local situation, based on vouchers submitted in accordance with General Provision Clause 12. The documentation for such costs shall be on such forms and in such manner as the Mission Director shall prescribe.</P>
              <HD SOURCE="HD3">Article V—Precontract Expenses</HD>
              <P>No expense incurred before execution of this contract will be reimbursed unless such expense was incurred after receipt and acceptance of a precontract expense letter issued to the contractor by the Contracting Officer, and then only in accordance with the provisions and limitations contained in such letter. The rights and obligations created by such letter shall be considered as merged into this contract.</P>
              <HD SOURCE="HD3">Article VI—Additional Clauses</HD>

              <P>(Additional Schedule Clauses may be added such as the implementation of General Provisions or Additional Clauses.)
              </P>
              <P>12.<E T="03"> General Provisions</E>
              </P>
              <HD SOURCE="HD3">Contract With a U.S. Citizen or a U.S. Resident Alien for Personal Services Abroad</HD>
              <P>The following clauses are to be used (when applicable), for both tours of duty of less than 1 year as well as 1 year or more.</P>
              <HD SOURCE="HD1">Index of Clauses</HD>
              <FP SOURCE="FP-2">1. Definitions</FP>
              <FP SOURCE="FP-2">2. Compliance with Laws and Regulations Applicable Abroad</FP>
              <FP SOURCE="FP-2">3. Physical Fitness and Health Room Privileges</FP>
              <FP SOURCE="FP-2">4. Workweek and Compensation (Pay Comparability Adjustments)</FP>
              <FP SOURCE="FP-2">5. Leave and Holidays</FP>
              <FP SOURCE="FP-2">6. Differential and Allowances</FP>
              <FP SOURCE="FP-2">7. Social Security, Federal Income Tax, and Foreign Earned Income</FP>
              <FP SOURCE="FP-2">8. Advance of Dollar Funds</FP>
              <FP SOURCE="FP-2">9. Insurance</FP>
              <FP SOURCE="FP-2">10. Travel and Transportation Expenses</FP>
              <FP SOURCE="FP-2">11. Payment</FP>
              <FP SOURCE="FP-2">12. Conversion of U.S. Dollars to Local Currency</FP>
              <FP SOURCE="FP-2">13. Post of Assignment Privileges</FP>
              <FP SOURCE="FP-2">14. Security Requirements</FP>
              <FP SOURCE="FP-2">15. Contractor-Mission Relationships</FP>
              <FP SOURCE="FP-2">16. Termination<PRTPAGE P="97"/>
              </FP>
              <FP SOURCE="FP-2">17. Release of Information</FP>
              <FP SOURCE="FP-2">18. Notices</FP>
              <FP SOURCE="FP-2">19. Reports</FP>
              <FP SOURCE="FP-2">20. Use of Pouch Facilities</FP>
              <FP SOURCE="FP-2">21. Biographical Data</FP>
              <FP SOURCE="FP-2">22. U.S. Resident Hire Personal Services Contractor</FP>
              <FP SOURCE="FP-2">23. Orientation and Language Training</FP>
              <FP SOURCE="FP-2">24. Conditions for Contracting Prior to Receipt of Security Clearance</FP>
              <FP SOURCE="FP-2">25. Medical Evacuation (MEDEVAC) Services</FP>
              <FP SOURCE="FP-2">26. Governing Law</FP>
              <HD SOURCE="HD3">1. Definitions (June 1990)</HD>
              <P>(a) <E T="03">USAID</E> shall mean the U.S. Agency for International Development.</P>
              <P>(b) <E T="03">Administrator</E> shall mean the Administrator or the Deputy Administrator of USAID.</P>
              <P>(c) <E T="03">Contracting Officer</E> shall mean a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the Contracting Officer acting within the limits of their authority as delegated by the Contracting Officer.</P>
              <P>(d) <E T="03">Contractor</E> shall mean the individual engaged to serve under this contract.</P>
              <P>(e) <E T="03">Cooperating Country</E> shall mean the foreign country in or for which services are to be rendered hereunder.</P>
              <P>(f) <E T="03">Cooperating Government</E> shall mean the government of the Cooperating Country.</P>
              <P>(g) <E T="03">Government</E> shall mean the United States Government.</P>
              <P>(h) <E T="03">Local currency</E> shall mean the currency of the Cooperating Country.</P>
              <P>(i) <E T="03">Mission</E> shall mean the United States USAID Mission, or principal USAID office, in the Cooperating Country, or USAID/Washington (USAID/W).</P>
              <P>(j) <E T="03">Mission Director</E> shall mean the principal officer in the Mission in the Cooperating Country, or his/her designated representative.</P>
              <P>(k) <E T="03">Technical Officer</E> shall mean the USAID official to whom the contractor reports, and who is responsible for monitoring the contractor's performance.</P>
              <P>(l) <E T="03">Tour of duty</E> shall mean the contractor's period of service under this contract and shall include orientation in the United States (less language training), authorized leave, and international travel.</P>
              <P>(m) <E T="03">Traveler</E> shall mean—</P>
              <P>(1) The contractor in authorized travel status or</P>
              <P>(2) Dependents of the contractor who are in authorized travel status.</P>
              <P>(n) <E T="03">Dependents</E> means:</P>
              <P>(1)Spouse.</P>
              <P>(2) Children (including step and adopted children) who are unmarried and under 21 years of age or, regardless of age, are incapable of self-support.</P>
              <P>(3) Parents (including step and legally adoptive parents) of the employee or of the spouse, when such parents are at least 51 percent dependent on the contractor for support.</P>
              <P>(4) Sisters and brothers (including step or adoptive sisters or brothers) of the contractor, or of the spouse, when such sisters and brothers are at least 51 percent dependent on the contractor for support, unmarried and under 21 years of age, or regardless of age, are incapable of self-support.</P>
              <P>(o) <E T="03">U.S. Resident Alien,</E> as used in this contract, shall mean an alien immigrant, legally resident in the United States, the Commonwealth of Puerto Rico, or the possessions of the United States, and having a valid “Alien Registration and Receipt Card” (Immigration and Naturalization Service forms I-151 or I-551).</P>
              <P>(p) <E T="03">U.S. Resident Hire Personal Services Contractor (PSC)</E> means a U.S. citizen who, at the time of hiring as a PSC, resides in the Cooperating Country:</P>
              <P>(1) As a spouse or dependent of a U.S. citizen employed by a U.S. Government Agency or under any U.S. Government-financed contract or agreement, or</P>
              <P>(2) For reasons other than for employment with a U.S. Government Agency or under any U.S. Government-financed contract or agreement. A U.S. citizen for purposes of this definition also includes a person who at the time of contracting, is a lawfully admitted permanent resident of the United States.</P>
              <HD SOURCE="HD3">2. Compliance With Laws and Regulations Applicable Abroad (July 1993)</HD>
              <P>(a) <E T="03">Conformity to Laws and Regulations of the Cooperating Country.</E> Contractor agrees that, while in the cooperating country, he/she as well as authorized dependents will abide by all applicable laws and regulations of the cooperating country and political subdivisions thereof.</P>
              <P>(b) <E T="03">Purchase or Sale of Personal Property or Automobiles.</E> To the extent permitted by the cooperating country, the purchase, sale, import, or export of personal property or automobiles in the cooperating country by the contractor shall be subject to the same limitations and prohibitions which apply to Mission U.S.-citizen direct-hire employees.</P>
              <P>(c) <E T="03">Code of Conduct.</E> The contractor shall, during his/her tour of duty under this contract, be considered an “employee” (or if his/her tour of duty is for less than 130 days, a “special Government employee”) for the purposes of, and shall be subject to, the provisions of 18 U.S.C. 202(a) and the USAID General Notice entitled “Employee Review of the New Standards of Conduct” pursuant to 5 CFR part 2635. The contractor acknowledges receipt of a copy of these documents by his/her acceptance of this contract.<PRTPAGE P="98"/>
              </P>
              <HD SOURCE="HD3">3. Physical Fitness and Health Room Privileges (APR 7)</HD>
              <P>(a) <E T="03">Physical Fitness.</E> (1) For all assignments outside of the United States the contractor and any authorized dependents shall be required to be examined by a licensed doctor of medicine, and the contractor shall obtain from the doctor a statement of medical opinion that, in the doctor's opinion, the contractor is physically able to engage in the type of activity for which he/she is to be employed under the contract, and the contractor and any dependents are physically able to reside in the Cooperating Country. A copy of the statement(s) shall be provided to the Contracting Officer prior to the contractor's departure for the Cooperating Country, or for a U.S. resident hire, before he/she starts work under the contract.</P>
              <P>(2) For assignments of 60 days or more in the Cooperating Country, the Contracting Officer shall provide the contractor and all authorized dependents copies of the “USAID Contractor Employee Physical Examination Form”. This form is for collection of information; it has been reviewed and approved by OMB, and assigned Control No. 0412-0536. Information required by the Paperwork Reduction Act (burden estimate, points of contract, and OMB approval expiration date) is printed on the form. The contractor and all authorized dependents shall obtain a physical examination from a licensed physician, who will complete the form for each individual. The contractor will deliver the physical examination form(s) to the Embassy health unit in the Cooperating Country. A copy of the doctor's statement of medical opinion at the end of the form which identifies the contractor or dependent by name may be used to meet the requirement in (a)(1) above.</P>
              <P>(3) For end-of-tour the contractor and his/her authorized dependents are authorized physical examinations within 60 days after completion of the contractor's tour-of-duty.</P>
              <P>(b) <E T="03">Reimbursement.</E> (1) As a contribution to the cost of medical examinations required by paragraph (a)(1) of this clause, USAID shall reimburse the contractor not to exceed $100 for each physical examination, plus reimbursement of charges for immunizations.</P>
              <P>(2) As a contribution to the cost of medical examinations required by paragraph (a)(2) of this clause the contractor shall be reimbursed in an amount not to exceed half of the cost of the examination up to a maximum USAID share of $300 per examination plus reimbursement of charges for immunizations for himself/herself and each authorized dependent 12 years of age or over. The USAID contribution for authorized dependents under 12 years of age shall not exceed half of the cost of the examination up to a maximum share of $120 per individual plus reimbursement of charges for immunizations. The contractor must obtain the prior written approval of the Contracting Officer to receive any USAID obligations higher than these limits.</P>
              <P>(c) <E T="03">Health Room Privileges.</E> Routine health room services may be available, subject to post policy and in accordance with the requirements of paragraph (a) of this clause, to U.S. citizen contractors and their authorized dependents (regardless of citizenship) at the post of duty. These services do not include hospitalization or predeparture examinations. The services normally include such medications as may be available, immunizations and preventive health measures, diagnostic examinations and advice, and home visits as medically indicated. Emergency medical treatment is provided to U.S. citizen contractor employees and dependents, whether or not they may have been granted access to routine health room services, on the same basis as it would be to any U.S. citizen in an emergency medical situation in the country.</P>
              <HD SOURCE="HD3">4. Workweek and Compensation (Pay Comparability Adjustments) (Dec 1985)</HD>
              <P>(a) <E T="03">Workweek.</E> The contractor's workweek shall not be less than 40 hours, unless otherwise provided in the Contract Schedule, and shall coincide with the workweek for those employee of the Mission or the Cooperating Country agency most closely associated with the work of this contract. If the contract is for less than full time (40 hours weekly), the annual and sick leave earned shall be prorated (see the General Provision of this contract entitled Leave and Holidays).</P>
              <P>(b) <E T="03">Compensation (Pay Comparability) Adjustments.</E> The contractor's compensation shall be adjusted to reflect the pay comparability adjustments which are granted from time to time to U.S. direct-hire employees by Executive Order for the statutory pay systems. Any adjustments authorized are subject to the availability of funds and shall not exceed that percentage stated in the Executive Order granting the adjustment. Further, the adjusted compensation may not exceed the maximum ES-6 annual compensation (or the equivalent daily rate).</P>
              <HD SOURCE="HD3">5. Leave and Holidays (APR 1997)</HD>
              <P>(a) <E T="03">Vacation Leave.</E> (1) The contractor shall earn vacation leave at the rate of 13 workdays per annum or 4 hours every 2 weeks. However, no vacation shall be earned if the tour of duty is less than 90 days.</P>

              <P>(2) Notwithstanding paragraph (a)(1) above, if the contractor has had previous PSC service (i.e., has served under other personal services contracts (PSCs) covered by Sec. 636(a)(3) of the FAA), he/she shall earn vacation leave at the rate of either 6 hours every two weeks (10 hours for the final pay period of a calendar year) cumulative PSC service <PRTPAGE P="99"/>exceeding 3 years, or 8 hours every two weeks for cumulative PSC service exceeding 15 years. Former Civil Service, Foreign Service, or a Military Service experience is not creditable towards PSC service for annual leave purposes.</P>
              <P>(3) It is understood that vacation leave is provided under this contract primarily for the purposes of affording necessary rest and recreation during the tour of duty in the Cooperating Country. The Contractor in consultation with the USAID Mission shall develop a vacation leave schedule early in his/her tour of duty taking into consideration project requirements, employee preference and other factors. All vacation leave earned by the contractor must be used during his/her tour of duty. All vacation leave earned by the contractor but not taken by the end of his/her tour of duty will be forfeited unless the requirements of the activity precluded the employee from taking such leave and the Contracting Officer, with the endorsement of the Mission Director, approves one of the following as an alternative:</P>
              <P>(i) Taking leave during the concluding weeks of the employee's tour, or</P>
              <P>(ii) Lump-sum payment for leave not taken provided such leave does not exceed the number of days which can be earned by the employee during a twelve month period.</P>
              <P>(4) With the approval of the Mission Director, and if the circumstances warrant, a contractor may be granted advance vacation leave in excess in that earned, but in no case shall a contractor be granted advance vacation leave in excess of that which he/she will earn over the life of the contract. The contractor agrees to reimburse USAID for leave used in excess of the amount earned during the contractor's assignment under the contract.</P>
              <P>(b) <E T="03">Sick Leave.</E> Sick leave is earned at a rate not to exceed 13 work-days per annum or 4 hours every 2 weeks. Unused sick leave may be carried over under an extension of this contract for the same or similar services <E T="03">at the same Mission,</E> but the contractor will not be compensated for unused sick leave at the completion of this contract. No leave my be carried over from one post to another.</P>
              <P>(c) <E T="03">Home Leave.</E> (1) Home leave is leave earned for service abroad for use only in the United States, in the Commonwealth of Puerto Rico, or in the possessions of the United States.</P>
              <P>(2) A contractor who is a U.S. citizen or U.S. resident alien and has served as least 2 years overseas, as defined in paragraph (c)(4) below, under personal services contract in this Mission, and has not taken more than 30 workdays leave (vacation, sick, or leave without pay) in the United States, may be granted home leave of not more than 15 work days for each such year of service overseas; provided, that the contractor agrees to return overseas upon completion of home leave under an additional 2 year appointment, or for such shorter period of not less than 1 year of overseas service under the contract as the Mission Director may approve in advance. Home leave must be taken in the United States, the Commonwealth of Puerto Rico, or the possessions of the United States, and any days spent elsewhere will be charged to vacation leave or leave without pay.</P>
              <P>(3) Notwithstanding the requirement in paragraph (c)(2) above that the contractor must have served 2 years overseas under personal services contract with this Mission to be eligible for home leave, the contractor may be granted advance home leave subject to all of the following conditions:</P>
              <P>(i) Granting of leave home leave would in each case serve to advance the attainment of the objectives of this contract;</P>
              <P>(ii) The contractor has served a minimum of 18 months in the Cooperating Country on his/her current tour of duty under this contract; and</P>
              <P>(iii) The contractor agrees to return to the Cooperating Country to serve out the remainder of his/her current tour of duty and an additional 2 year appointment under this or subsequent contract, or such other additional appointment of not less than 1 year of overseas service as the Mission Director may approve.</P>
              <P>(4) The period of service overseas required under paragraph (c)(2), or paragraph (c)(3) above, shall include the actual days in orientation in the United States (less language training) and the actual days overseas beginning on the date of departure from the U.S. port of embarkation on international travel and continuing, inclusive of authorized delays enroute, to the date of arrival at the U.S. port of debarkation from international travel. Allowable vacation and sick leave taken while overseas, but not leave without pay, shall be included in the required period of service overseas. An amount equal to the number of days of vacation and sick leave taken in the United States, the Commonwealth of Puerto Rico, or the possessions of the United States will be added to the required period of service overseas.</P>
              <P>(5) Salary during the travel to and from the United States for home leave will be limited to the time required for travel by the most expeditious air route. The contractor will be responsible for reimbursing USAID for payments made during home leave, if, in spite of the undertaking of the new appointment, the contractor, except for reasons beyond his/her control as determined by the Contracting Officer, does not return overseas and complete the additional required service. Unused home leave is not reimbursable under this contract.</P>

              <P>(6) To the extent deemed necessary by the Contracting Officer, a contractor in the United States on home leave may be authorized to spend not more than 5 days in work <PRTPAGE P="100"/>status for consultation at USAID/Washington before returning to post duty. Consultation at locations other than USAID/Washington as well as any time in excess of 5 days spent for consultation, must be approved by the Mission Director or the Contracting Officer.</P>
              <P>(d) <E T="03">Holidays.</E> The contractor, while serving abroad, shall be entitled to all holidays granted by the Mission to U.S.-citizen direct-hire employees.</P>
              <P>(e) <E T="03">Military Leave.</E> Military leave of not more than 15 calendar days in any calendar year may be granted to a contractor who is a reservist of the Armed Forces, provided that military leave has been approved in advance by the Contracting Officer or the Mission Director. A copy of any such approval shall be part of the contract file.</P>
              <P>(f) <E T="03">Leave Without Pay.</E> Leave without pay may be granted only with the written approval of the Contracting Officer or Mission Director.</P>
              <P>(g) <E T="03">Compensatory Time.</E> Compensatory leave may be granted only with the written approval of the Contracting Officer or Mission Director in rare instances when it has been determined absolutely essential and used under those guidelines which apply to direct-hire employees.</P>
              <P>(h) <E T="03">Leave Records.</E> The contractor shall maintain current leave records for himself/herself and make them available, as requested by the Mission Director or the Contracting Officer.</P>
              <HD SOURCE="HD3">6. Differential and Allowances (June 1990)</HD>
              <P>(a) The following differential and allowances will be granted to the contractor and his/her authorized dependents to the same extent and on the same basis as they are granted to U.S. citizen direct-hire employees at the Mission by the Standardized Regulations (Government Civilians, Foreign Areas), as from time to time amended, except as noted to the contrary below:</P>
              <GPOTABLE CDEF="s200,xs60" COLS="2" OPTS="L2,p1,7/8,i1">
                <TTITLE>Applicable Reference to Standardized Regulations</TTITLE>
                <ROW>
                  <ENT I="01">(1) Post Differential</ENT>
                  <ENT>Chapter 500 and Tables in Chapter 900.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(2) Living Quarters Allowance</ENT>
                  <ENT>Section 130.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(3) Temporary Lodging Allowance</ENT>
                  <ENT>Section 120.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(4) Post Allowance </ENT>
                  <ENT O="xl">Section 220.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(5) Supplemental Post Allowance</ENT>
                  <ENT>Section 230.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(6) Payments During Evacuation</ENT>
                  <ENT>Section 600.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(7) Education Allowance</ENT>
                  <ENT>Section 270.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(8) Separate Maintenance Allowance</ENT>
                  <ENT>Section 260.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(9) Danger Pay Allowance</ENT>
                  <ENT>Section 650.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(10) Education Travel </ENT>
                  <ENT O="xl">Section 280.</ENT>
                </ROW>
              </GPOTABLE>
              <P>(1)<E T="03"> Post Differential.</E> Post differential is an additional compensation for service at places in foreign areas where conditions of environment differ substantially from conditions of environment in the continental United States and warrant additional compensation as a recruitment and retention incentive. In areas where post differential is paid to USAID direct-hire employees, post differential not to exceed the percentage of salary as is provided such USAID employees in accordance with the Standardized Regulations (Government Civilians, Foreign Areas) Chapter 500 (except the limitation contained in Section 552, “Ceiling on Payment”) Tables—Chapter 900, as from time to time amended, will be reimbursable hereunder for employees in respect to amounts earned during the time such employees actually spend overseas on work under this contract. When such post differential is provided to the contractor, it shall be payable beginning on the date of arrival at the post of assignment and continue, including periods away from post on official business, until the close of business on the day of departure from post of assignment enroute to the United States. Sick or vacation leave taken at or away from the post of assignment will not interrupt the continuity of the assignment or require a discontinuance of such post differential payments, provided such leave is not taken within the United States or the territories of the United States. Post differential will not be payable while the employee is away from his/her post of assignment for purposes of home leave. Short-term employees shall be entitled to pose differential beginning with the forty-third (43rd) day at post.</P>
              <P>(2) <E T="03">Living Quarters Allowance.</E> Living quarters allowance is an allowance granted to reimburse an employee for substantially all of his/her cost for either temporary or residence quarters whenever Government-owned or Government-rented quarters are not provided to him/her at his/her post without charge. Such costs are those incurred for temporary lodging (temporary lodging allowance) or one unit of residence quarters (living quarters allowance) and include rent, <PRTPAGE P="101"/>plus any costs not included therein for heat, light, fuel, gas, electricity and water. The temporary lodging allowance and the living quarters allowance are never both payable to an employee for the same period of time. The contractor will receive living quarters allowance for payment of rent and utilities if such facilities are not supplied. Such allowance shall not exceed the amount paid USAID employees of equivalent rank in the Cooperating Country, in accordance with either the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 130, as from time to time amended, or other rates approved by the Mission Director. Subject to the written approval of the Mission Director, short-term employees may be paid per diem (in lieu of living quarters allowance) at rates prescribed by the Federal Travel Regulations, as from time to time amended, during the time such short-term employees spend at posts of duty in the Cooperating Country under this contract. In authorizing such per diem rates, the Mission Director shall consider the particular circumstances involved with respect to each such short-term employee including the extent to which meals and/or lodging may be made available without charge or at nominal cost by an agency of the United States Government or of the Cooperating Government, and similar factors.</P>
              <P>(3) <E T="03">Temporary Lodging Allowance.</E> Temporary lodging allowance is a quarters allowance granted to an employee for the reasonable cost of temporary quarters incurred by the employee and his/her family for a period not in excess of (i) three months after first arrival at a new post in a foreign area or a period ending with the occupation of residence (permanent) quarters, if earlier, and (ii) one month immediately preceding final departure from the post subsequent to the necessary vacating of residence quarters. The contractor will receive temporary lodging allowance for himself/herself and authorized dependents, in lieu of living quarters allowance, not to exceed the amount set forth in the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 120, as from time to time amended.</P>
              <P>(4) <E T="03">Post Allowance.</E> Post allowance is a cost-of-living allowance granted to an employee officially stationed at a post where the cost of living, exclusive of quarters cost, is substantially higher than in Washington, D.C. The contractor will receive post allowance payments not to exceed those paid USAID employees in the Cooperating Country, in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 220, as from time to time amended.</P>
              <P>(5) <E T="03">Supplemental Post Allowance.</E> Supplemental post allowance is a form of post allowance granted to an employee at his/her post when it is determined that assistance is necessary to defray extraordinary subsistence costs. The contractor will receive supplemental post allowance payments not to exceed the amount set forth in the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 230, as from time to time amended.</P>
              <P>(6) <E T="03"> Payments During Evacuation.</E> The Standardized Regulations (Government Civilians, Foreign Areas) provide the authority for efficient, orderly, and equitable procedure for the payment of compensation, post differential and allowances in the event of an emergency evacuation of employees or their dependents, or both, from duty stations for military or other reasons or because of imminent danger to their lives. If evacuation has been authorized by the Mission Director, the contractor will receive payments during evacuation for himself/herself and authorized dependents evacuated from their post of assignment in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 600, and the Federal Travel Regulations, as from time to time amended.</P>
              <P>(7) <E T="03">Educational Allowance.</E> Educational allowance is an allowance to assist the contractor in meeting the extraordinary and necessary expenses, not otherwise compensated for, incurred by reason of his/her service in a foreign area in providing adequate elementary and secondary education for his/her children. The contractor will receive educational allowance payments for his/her dependent children in amounts not to exceed those set forth in Standardized Regulations (Government Civilians, Foreign Areas), Chapter 270, as from time to time amended.</P>
              <P>(8) <E T="03">Separate Maintenance Allowance.</E> Separate maintenance allowance is an allowance to assist an employee who is compelled by reason of dangerous, notably unhealthful, or excessively adverse living conditions at his/her post of assignment in a foreign area, or for the convenience of the Government, to meet the additional expense of maintaining his/her dependents elsewhere than at such post. The contractor will receive separate maintenance allowance payments not to exceed that made to USAID employees in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 260, as from time to time amended.</P>
              <P>(9) <E T="03">Danger Pay Allowance.</E> Danger pay allowance is an allowance to provide additional compensation above basic compensation to employees in foreign areas where civil insurrection, civil war, terrorism or wartime conditions threaten physical harm or imminent danger to the health or well-being of the employee. The danger pay allowance is in lieu of that part of the post differential which is attributable to political violence. Consequently, the post differential may be reduced while danger pay is in effect to avoid dual crediting for political violence. <PRTPAGE P="102"/>The contractor shall be allowed danger pay allowance not to exceed that paid USAID employees in the Cooperating Country, in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 650, as from time to time amended.</P>
              <P>(10) <E T="03">Educational Travel.</E> Educational travel is travel to and from a school in the United States for secondary education (in lieu of an educational allowance) and for college education. The contractor will receive educational travel payments for his/her dependent children provided such payment does not exceed that which would be payable in accordance with the Standardized Regulations (Government Civilians, Foreign Areas), Chapter 280, as from time to time amended. Educational travel shall not be authorized for contractors whose assignment is less than two years.</P>
              <P>(b) The allowances provided in paragraphs (a) (1) through (10) of this provision shall be paid to the contractor in dollars or in the currency of the Cooperating Country in accordance with practice prevailing at the Mission, or the Mission Director may direct that the contractor be paid a per diem in lieu thereof as prescribed by the Standardized Regulations (Government Civilians, Foreign Areas), as from time to time amended.</P>
              <HD SOURCE="HD3">7. Social Security, Federal Income Tax, and Foreign Earned Income (June 1990)</HD>
              <P>(a) Since the contractor is an employee, F.I.C.A. contributions and U.S. Federal Income Tax withholding shall be deducted in accordance with regulations and rulings of the Social Security Administration and the U.S. Internal Revenue Service, respectively.</P>
              <P>(b) As an employee, the contractor is not eligible for the “foreign earned income” exclusion under the IRS Regulations (see 26 CFR 1.911-3(c)(3)).</P>
              <HD SOURCE="HD3">8. Advance of Dollar Funds (APR 1997)</HD>
              <P>If requested by the contractor and authorized in writing by the Contracting Officer, USAID will arrange for an advance of funds to defray the initial cost of travel, travel allowances, authorized precontract expenses, and shipment of personal property. The advance shall be granted on the same basis as to a USAID U.S.-citizen direct-hire employee in accordance with USAID Handbook 22, Chapter 4 or superseding ADS Chapter.</P>
              <HD SOURCE="HD3">9. Insurance (APR 1997)</HD>
              <P>(a) <E T="03">Worker's Compensation Benefits.</E> The contractor shall be provided worker's compensation benefits in accordance with the Federal Employees' Compensation Act.</P>
              <P>(b) <E T="03">Health and Life Insurance.</E> (1) The contractor shall be provided a maximum contribution of up to 50% against the actual costs of the contractor's annual health insurance costs, provided that such costs may not exceed the maximum U.S. Government contribution for direct-hire personnel as announced annually by the Office of Personnel Management.</P>
              <P>(2) The contractor shall be provided a contribution of up to 50% against the actual costs of annual life insurance not to exceed $500.00 per year.</P>
              <P>(3) Retired U.S. Government employees shall not be paid additional contributions for health or life insurance under their contracts. The Government will normally have already paid its contribution for the retiree unless the employee can prove to the satisfaction of the Contracting Officer that his/her health and life insurance does not provide or specifically excludes coverage overseas. In such case, the contractor would be eligible for contributions under paragraphs (b) (1) or (2) as appropriate.</P>
              <P>(4) Proof of health and life insurance coverage shall be submitted to the Contracting Officer before any contribution is paid. On assignments of less than one year, costs for health and life insurance shall be prorated and paid accordingly.</P>
              <P>(5) A contractor who is a spouse of a current or retired Civil Service, Foreign Service, or Military Service member and who is covered by their spouse's Government health or life insurance policy is ineligible for the contribution under paragraphs (b)(1) or (b)(2) of this provision.</P>
              <P>(c) <E T="03">Insurance on Private Automobiles.</E> If the contractor or his/her dependents transport, or cause to be transported, privately owned automobile(s) to the Cooperating Country, or any of them purchase an automobile within the Cooperating Country, the contractor agrees to ensure that all such automobile(s) during such ownership within the Cooperating Country will be covered by a current, i.e., not in arrears, insurance policy issued by a reliable company providing the following minimum coverage, or such other minimum coverage as may be set by the Mission Director, payable in U.S. dollars or its equivalent in the currency of the Cooperating Country: injury to persons, $10,000/$20,000; property damage, $5,000. The contractor further agrees to deliver, or cause to be delivered to the Mission Director, the insurance policies required by this clause or satisfactory proof of the existence thereof, before such automobile(s) operated within the Cooperating Country. The premium costs for such insurance shall not be a reimbursable cost under this contract.</P>
              <HD SOURCE="HD3">10. Travel and Transportation Expenses (July 1993)</HD>
              <P>(a) <E T="03">General.</E> (1) USAID/Washington Office of Administrative Services, or such other office as may be designated by that office, may furnish Transportation Requests (TR's) to the contractor for transportation authorized by this contract originating in the United <PRTPAGE P="103"/>States, and the executive or administrative officer at the Mission may furnish TR's for such authorized transportation which is payable in local currency or is to originate overseas. When transportation is not provided by the Government-issued TR, the contractor shall procure his/her own transportation, the costs of which will be reimbursed in accordance with the terms of this contract.</P>
              <P>(2) The contractor will be reimbursed for reasonable, allocable and allowable travel and transportation expenses incurred under and for the performance of this contract. Determination of reasonableness, allocability and allowability will be made by the Contracting Officer in accordance with USAID's established policies and procedures for USAID direct-hire employees, and the particular needs of the activity being implemented by this contract. The following paragraphs provide specific guidance and limitations on particular items of cost.</P>
              <P>(b) <E T="03">U.S. Travel and Transportation.</E> The contractor shall be reimbursed for actual transportation costs and travel allowances in the United States as authorized in the Contract Schedule or approved in advance by the Contracting Officer or the Mission Director. Transportation costs and travel allowances shall not be reimbursed in any amount greater than the cost of, and time required for, economy-class commercially scheduled air travel by the most expeditious route except as otherwise provided in paragraph (g) of this provision unless economy air travel is not available and the contractor certifies to this in his/her voucher or other documents submitted for reimbursement.</P>
              <P>(c) <E T="03">International Travel.</E> For travel to and from post of assignment, the contractor shall be reimbursed for travel costs and travel allowances from place of residence in the United States (or other location provided that the cost of such travel does not exceed the cost of the travel from the contractor's residence in the United States) to the post of duty in the Cooperating Country and return to place of residence in the United States (or other location provided that the cost of such travel does not exceed the cost of travel from the post of duty in the Cooperating Country to the contractor's residence) upon completion of services by the individual. Reimbursement for travel will be in accordance with USAID's established policies and procedures for its direct-hire employees and the provisions of this contract, and will be limited to the cost of travel by the most direct and expeditious route. If the contract is for longer than one year and the contractor does not complete one full year at post of duty (except for reasons beyond his/her control), the costs of going to and from the post of duty for the contractor and his/her dependents are not reimbursable hereunder. If the contractor serves more than one year but less than the required service in the Cooperating Country (except for reasons beyond his/her control) the costs of going to the post of duty are reimbursable hereunder but the costs of going from post of duty to the contractor's permanent, legal place of residence at the time he or she was employed for work under this contract, or other location as approved by the Contracting Officer, are not reimbursable under this contract for the contractor and his/her dependents. When travel is by economy class accommodations, the contractor will be reimbursed for the cost of transporting up to 10 kilograms/22 pounds of accompanied personal baggage per traveler in addition to that regularly allowed with the economy ticket provided that the total number of pounds of baggage does not exceed that regularly allowed for first class travelers. Travel allowances for travelers shall not be in excess of the rates authorized in the Standardized Regulations (Government Civilians, Foreign Areas)-hereinafter referred to as the Standardized Regulations—as from time to time amended, for not more than the travel time required by scheduled commercial air carrier using the most expeditious route. One stopover enroute for a period of not to exceed 24 hours is allowable when the traveler uses economy class accommodations for a trip of 14 hours or more of scheduled duration. Such stopover shall not be authorized when travel is by indirect route or is delayed for the convenience of the traveler. Per diem during such stopover shall be paid in accordance with the Federal Travel Regulations as from time to time amended.</P>
              <P>(d) <E T="03">Local Travel.</E> Reimbursement for local travel in connection with duties directly referable to the contract shall not be in excess of the rates established by the Mission Director for the travel costs of travelers in the Cooperating Country. In the absence of such established rates the contractor shall be reimbursed for actual travel costs in the Cooperating Country or the Mission, including travel allowances at rates not in excess of those prescribed by the Standardized Regulations.</P>
              <P>(e) <E T="03">Indirect Travel for Personal Convenience.</E> When travel is performed by an indirect route for the personal convenience of the traveler, the allowable costs of such travel will be computed on the basis of the cost of allowable air fare via the direct usually traveled route. If such costs include fares for air or ocean travel by foreign flag carriers, approval for indirect travel by such foreign flag carriers must be obtained from the Contracting Officer or the Mission Director before such travel is undertaken, otherwise only that portion of travel accomplished by the United States-flag carriers will be reimbursable within the above limitation of allowable costs.</P>
              <P>(f) <E T="03">Limitation on Travel by Dependents.</E> Travel costs and allowances will be allowed for authorized dependents of the contractor and <PRTPAGE P="104"/>such costs shall be reimbursed for travel from place of abode to assigned station in the Cooperating Country and returned, only if the dependent remains in the Cooperating Country for at least 9 months or one-half of the required tour of duty of the contractor, whichever is greater, except as otherwise authorized hereunder for education, medical or emergency visitation travel. If the dependent is eligible for educational travel pursuant to the “Differential and Allowances” clause of this contract, time spent away from post resulting from educational travel will be counted as time at post.</P>
              <P>(g) <E T="03">Delays Enroute.</E> The contractor may be granted reasonable delays enroute while in travel status when such delays are caused by events beyond the control of the contractor and are not due to circuitous routine. It is understood that if delay is caused by physical incapacitation, he/she shall be eligible for such sick leave as provided under the “Leave and Holidays” clause of this contract.</P>
              <P>(h) <E T="03">Travel by Privately Owned Automobile (POV).</E> If travel by POV is authorized in the contract schedule or approved by the Contracting Officer, the contractor shall be reimbursed for the cost of travel performed in his/her POV at a rate not to exceed that authorized in the Federal Travel Regulations plus authorized per diem for the employee and for each of the authorized dependents traveling in the POV, if the POV is being driven to or from the Cooperating Country as authorized under the contract, provided that the total cost of the mileage and the per diem paid to all authorized travelers shall not exceed the total constructive cost of fare and normal per diem by all authorized travelers by surface common carrier or authorized air fare, whichever is less.</P>
              <P>(i) <E T="03">Emergency and Irregular Travel and Transportation.</E> Emergency transportation costs and travel allowances while enroute, as provided in this section, will be reimbursed not to exceed amounts authorized by the Foreign Service Travel Regulations for USAID-direct hire employees in like circumstances under the following conditions:</P>
              <P>(1) The costs of going from post of duty in the Cooperating Country to the employee's permanent, legal place of residence at the time he or she was employed for work under this contract or other location for contractor employees and dependents and returning to the post of duty, subject to the prior written approval of the Mission Director that such travel is necessary for one of the following reasons.</P>
              <P>(i) Need for medical care beyond that available within the area to which the employee is assigned, or serious effect on physical or mental health if residence is continued at assigned post of duty. The Mission Director may authorize a medical attendant to accompany the employee at contract expense if, based on medical opinion, such an attendant is necessary.</P>
              <P>(ii) Death, or serious illness or injury of a member of the immediate family of the employee or the immediate family of the employee's spouse.</P>
              <P>(2) When, for any reason, the Mission Director determines it is necessary to evacuate the contractor or contractor's dependents, the contractor will be reimbursed for travel and transportation expenses and travel allowance while enroute, for the cost of the individuals going from post of duty in the Cooperating Country to the employee's permanent, legal place of residence at the time he or she was employed for work under this contract or other approved location. The return of such employees and dependents may also be authorized by the Mission Director when, in his/her discretion, he/she determines it is prudent to do so.</P>
              <P>(3) The Mission Director may also authorize emergency or irregular travel and transportation in other situations, when in his/her opinion, the circumstances warrant such action. The authorization shall include the kind of leave to be used and appropriate restrictions as to time away from post, transportation of personal and household effects, etc.</P>
              <P>(j) <E T="03">Home Leave Travel.</E> To the extend that home leave has been authorized as provided in the “Leave and Holidays” clause of this contract, the cost of travel for home leave is reimbursable for travel costs and travel allowances of travelers from the post of duty in the Cooperating Country to place of residence in the United States (or other location provided that the cost of such travel does not exceed the cost of travel to the contractor's residence in the United States) and return to the post of duty in the Cooperating Country. Reimbursement for travel will be in accordance with the Uniform State/USAID/USIA Foreign Service Travel Regulations, as from time to time amended, and will be limited to the cost of travel by the most direct and expeditious route. Travel allowances for travelers shall be in accordance with the rates authorized in the Standardized Regulations as from time to time amended, for not more than the travel time required by scheduled commercial air carrier using the most expeditious route using economy class. One stopover enroute for a period of not to exceed 24 hours is allowable when the traveler uses economy class accommodations for a trip of 14 hours or more of scheduled duration. Such stopover shall not be authorized when travel is by indirect route or is delayed for the convenience of the traveler or the traveler uses other than economy class. Per diem during such stopover shall be paid in accordance with the Standardized Regulations.</P>
              <P>(k) <E T="03">Rest and Recuperations Travel.</E> If approved in writing by the Mission Director, <PRTPAGE P="105"/>the contractor and his/her dependents shall be allowed rest and recuperation travel on the same basis as authorized USAID direct-hire Mission employees and their dependents.</P>
              <P>(l) <E T="03">Transportation of Motor Vehicles, Personal Effects and Household Goods</E>.</P>
              <P>(1) Transportation costs will be paid on the same basis as for USAID direct-hire employees serving the same length tour of duty, as authorized in the schedule. Transportation, including packing and crating costs, will be paid for shipping from the point of origin in the United States (or other location as approved by the Contracting Officer) to post of duty in the Cooperating Country and return to point of origin in the United States (or other location as approved by the Contracting Officer) of one privately-owned vehicle for the contractor, personal effects of the contractor and authorized dependents, and household goods of the contractor not to exceed the limitations in effect for such shipments for USAID direct-hire employees in accordance with the Foreign Service Travel Regulations in effect at the time shipment is made. These limitations may be obtained from the Contracting Officer.</P>
              <P>(2) The cost of transporting motor vehicles and household goods shall not exceed the cost of packing, crating, and transportation by surface common carrier. In the event that the carrier does not require boxing or crating of motor vehicles for shipment to the Cooperating Country, the cost of boxing or crating is not reimbursable. The transportation of a privately owned motor vehicle for a contractor may be authorized as a replacement of the last such motor vehicle shipped under this contract for such contractor when the Mission Director determines, in advance, and so notifies the contractor in writing, that the replacement is necessary for reasons not due to the negligence or malfeasance of the contractor. The determination shall be made under the same rules and regulations that apply to authorized Mission U.S. citizen direct-hire employees.</P>
              <P>(m) <E T="03">Unaccompanied Baggage.</E> Unaccompanied baggage is considered to be those personal belongings needed by the traveler immediately upon arrival of the contractor and dependents, and consideration should be given to advance shipments of unaccompanied baggage. The contractor will be reimbursed for costs of shipment of unaccompanied baggage (in addition to the weight allowance for household effects) not to exceed the limitations in effect for USAID direct-hire employees in accordance with the Foreign Service Travel Regulations as in effect when shipment is made. These limitations are available from the Contracting Officer. This unaccompanied baggage may be shipped as air freight by the most direct route between authorized points of origin and destination regardless of the modes of travel used. This provision is applicable to home leave travel when authorized by the terms of this contract.</P>
              <P>(n) <E T="03">International Ocean Transportation.</E> (1)(i) <E T="03">Transportaiton of things.</E> Where U.S. flag vessels are not available, or their use would result in a significant delay, the contractor may obtain a release from the requirement to use U.S. flag vessels from the Transportation Division, Office of Procurement, U.S. Agency for International Development, Washington, D.C. 20523-1419, or the Mission Director, as appropriate, giving the basis for the request.</P>
              <P>(ii) <E T="03">Transportation of persons.</E> Where U.S. flag vessels are not available, or their use would result in a significant delay, the contractor may obtain a release from the requirement to use U.S. flag vessels from the Contracting Officer or the Mission Director, as appropriate.</P>
              <P>(2) <E T="03">Transportation of foreign-made vehicles.</E> Reimbursement of the costs of transporting a foreign-made motor vehicle will be made in accordance with the provisions of the Foreign Service Travel Regulations.</P>
              <P>(3) Reduced rates on U.S.-flag carriers are in effect for shipments of household goods and personal effects of USAID contractors between certain locations. These reduced rates are available provided the shipper furnishes to the carrier at the time of the issuance of the Bill of Lading documentary evidence that the shipment is for the account of USAID. The Contracting Officer will, on request, furnish to the contractor current information concerning the availability of a reduced rate with respect to any proposed shipment. The contractor will not be reimbursed for shipments of household goods or personal effects in amounts in excess of the reduced rates which are available in accordance with the foregoing.</P>
              <P>(o) <E T="03">Storage of household effects.</E> The cost of storage charges (including packing, crating, and drayage costs) in the U.S. of household goods of the contractor will be permitted in lieu of transportation of all or any part of such goods to the Cooperating Country under paragraph (l) above provided that the total amount of effects shipped to the Cooperating Country or stored in the U.S. shall not exceed the amount authorized for USAID direct-hire employees under the Uniform Foreign Service Travel Regulations. These amounts are available from the Contracting Officer.</P>
              <HD SOURCE="HD3">11. Payment (Aug 1996)</HD>

              <P>(a) Once each month, or at more frequent intervals, if approved by the paying office indicated on the Cover Page, the contractor may submit to such office form SF 1034 “Public Voucher for Purchases and Services Other Than Personal” (original) and SF 1034-A (three copies), or whatever other form is locally required or accepted. Each voucher <PRTPAGE P="106"/>shall be identified by the USAID contract number and properly executed in the amount of dollars claimed during the period covered. The voucher forms shall be supported by:</P>
              <P>(1) The contractor's detailed invoice, in original and two copies, indicating for each amount claimed the paragraph of the contract under which payment is to be made, supported when applicable as follows:</P>
              <P>(i) For compensation—a statement showing period covered, days worked, and days when contractor was in authorized travel, leave, or stopover status for which compensation is claimed. All claims for compensation will be accompanied by, or will incorporate, a certification signed by the Project Officer covering days or hours worked, or authorized travel or leave time for which compensation is claimed.</P>
              <P>(ii) For travel and transportation—a statement of itinerary with attached carrier's receipt and/or passenger's coupons, as appropriate.</P>
              <P>(iii) For reimbursable expenses—an itemized statement supported by original receipts.</P>
              <P>(2) The first voucher submitted shall account for, and liquidate the unexpended balance of any funds advanced to the contractor.</P>
              <P>(b) A final voucher shall be submitted by the contractor promptly following completion of the duties under this contract but in no event later than 120 days (or such longer period as the Contracting Officer may in his/her discretion approve in writing) from the date of such completion. The contractor's claim, which includes his/her final settlement of compensation, shall not be paid until after the performance of the duties required under the terms of this contract has been approved by USAID. On receipt and approval of the voucher designated by the contractor as the “final voucher” submitted on Form SF 1034 (original) and SF 1034-A (three copies), together with a refund check for the balance remaining on hand of any funds which may have been advanced to the contractor, the Government shall pay any amounts due and owing the contractor.</P>
              <P>(c) If approved by the paying office time and attendance may be submitted for PSCs in the same manner as is approved for direct-hire personnel.</P>
              <HD SOURCE="HD3">12. Conversion of U.S. Dollars to Local Currency (Dec 1985)</HD>
              <P>Upon arrival in the Cooperating Country, and from time to time as appropriate, the contractor shall consult with the Mission Director or his/her authorized representative who shall provide, in writing, the policy the contractor shall follow in the conversion of U.S. dollars to local currency. This may include, but not be limited to the conversion of said currency through the cognizant U.S. Disbursing Officer, or Mission Controller, as appropriate.</P>
              <HD SOURCE="HD3">13. Post of Assignment Privileges (July 1993)</HD>
              <P>Privileges such as the use of APO, PX's, commissaries and officers clubs are established at posts abroad under agreements between the U.S. and host governments. These facilities are intended for and usually limited to members of the official U.S. establishment including the Embassy, USAID Mission, U.S. Information Service and the Military. Normally, the agreements do not permit these facilities to be made available to non-official Americans. However, in those cases where facilities are open to non-official Americans, they may be used.</P>
              <HD SOURCE="HD3">14. Security Requirements (June 1990)</HD>
              <P>(a) This entire provision shall apply to the extent that this contract involves access to classified information (“Confidential”, “Secret”, or “Top Secret”) or access to administratively controlled information (“Limited Official Use”). Contractors that are not U.S. citizens shall not have access to classified or administratively controlled information.</P>
              <P>(b) The contractor (1) shall be responsible for safeguarding all classified or administratively controlled information in accordance with appropriate instructions furnished by the USAID Office of Security (IG/SEC), as referenced in paragraph (d) of this provision and shall not supply, disclose, or otherwise permit access to classified information or administratively controlled information to any unauthorized person; (2) shall not make or permit to be made any reproductions of classified information or administratively controlled information except with the prior written authorization of the Contracting Officer or Mission Director; (3) shall submit to the Contracting Officer, at such times as the Contracting Officer may direct, an accounting of all reproductions of classified or administratively controlled information; and (4) shall not incorporate in any other project any matter which will disclose classified and/or administratively controlled information except with the prior written authorization of the Contracting Officer.</P>
              <P>(c) The contractor shall follow the procedures for classifying, marking, handling, transmitting, disseminating, storing, and destroying official material in accordance with the regulations in the Foreign Affairs Manual, Chapter 5 (5 FAM 900), a copy of which will be furnished by the Contracting Officer or Mission Director.</P>

              <P>(d) The contractor agrees to submit immediately to the Mission Director or Contracting Officer a complete detailed report, appropriately classified, of any information which the contractor may have concerning existing or threatened espionage, sabotage, or subversive activity.<PRTPAGE P="107"/>
              </P>
              <P>(e) The Government agrees that, when necessary, it shall indicate by security classification or administratively controlled designation, the degree of importance to the national defense of information to be furnished by the contractor to the Government or by the Government to the contractor, and the Government shall give written notice of such security classification or administratively controlled designation to the contractor and of any subsequent changes thereof. The contractor is authorized to rely on any letter or other written instrument signed by the Contracting Officer changing a security classification or administratively controlled designation of information.</P>
              <P>(f) The contractor agrees to certify after completion of his/her assignment under this contract that he/she has surrendered or disposed of all classified and/or administratively controlled information in his/her custody in accordance with applicable security instructions.</P>
              <HD SOURCE="HD3">15. Contractor-Mission Relationships (Dec 1985)</HD>
              <P>(a) The contractor acknowledges that this contract is an important part of the U.S. Foreign Assistance Program and agrees that his/her duties will be carried out in such a manner as to be fully commensurate with the responsibilities which this entails.</P>
              <P>(b) While in the Cooperating Country, the contractor is expected to show respect for the conventions, customs, and institutions of the Cooperating Country and not interfere in its political affairs.</P>
              <P>(c) If the contractor's conduct is not in accordance with paragraph (b) of this provision, the contract may be terminated under General Provision 16 of this contract. The Contractor recognizes the right of the U.S. Ambassador to direct his/her immediate removal from any country when, in the discretion of the Ambassador, the interests of the United States so require.</P>
              <P>(d) The Mission Director is the chief representative of USAID in the Cooperating Country. In this capacity, he/she is responsible for the total USAID Program in the Cooperating Country including certain administrative responsibilities set forth in this contract and for advising USAID regarding the performance of the work under the contract and its effect on the U.S. Foreign Assistance Program. The contractor will be responsible for performing his/her duties in accordance with the statement of duties called for by the contract. However, he/she shall be under the general policy guidance of the Mission Director, and shall keep the Mission Director or his/her designated representative currently informed of the progress of the work under this contract.</P>
              <HD SOURCE="HD3">16. Termination (Nov 1989)</HD>
              <P>(This is an approved deviation to be used in place of the clause specified in FAR 52.249-12.)</P>
              <P>(a) The Government may terminate performance of work under this contract in whole or, from time to time, in part:</P>
              <P>(1) For cause, which may be effected immediately after establishing the facts warranting the termination, by giving written notice and a statement of reasons to the contractor in the event (i) the Contractor commits a breach or violation of any obligations herein contained, (ii) a fraud was committed in obtaining this contract, or (iii) the contractor is guilty (as determined by USAID) of misconduct in the Cooperating Country. Upon such a termination, the contractor's right to compensation shall cease when the period specified in such notice expires or the last day on which the contractor performs services hereunder, whichever is earlier. No costs of any kind incurred by the contractor after the date such notice is delivered shall be reimbursed hereunder except the cost of return transportation (not including travel allowances), if approved by the Contracting Officer. If any costs relating to the period subsequent to such date have been paid by USAID, the contractor shall promptly refund to USAID any such prepayment as directed by the Contracting Officer.</P>
              <P>(2) For the convenience of USAID, by giving not less than 15 calendar days advance written notice to the contractor. Upon such a termination, contractor's right to compensation shall cease when the period specified in such notice expires except that the contractor shall be entitled to any unused vacation leave, return transportation costs and travel allowances and transportation of unaccompanied baggage costs at the rate specified in the contract and subject to the limitations which apply to authorized travel status.</P>

              <P>(3) For the convenience of USAID, when the contractor is unable to complete performance of his/her services under the contract by reason of sickness or physical or emotional incapacity based upon a certification of such circumstances by a duly qualified doctor of medicine approved by the Mission. The contract shall be deemed terminated upon delivery to the Contractor of a termination notice. Upon such a termination, the contractor shall not be entitled to compensation except to the extent of any unused vacation or sick leave but shall be entitled to return transportation, travel allowances, and unaccompanied baggage costs at rates specified in the contract and subject to the limitations which apply to authorized travel status.<PRTPAGE P="108"/>
              </P>
              <P>(b) The contractor, with the written consent of the Contracting Officer, may terminate this contract upon at least 15 days' written notice to the Contracting Officer.</P>
              <HD SOURCE="HD3">17. Release of Information (Dec 1985)</HD>
              <P>All rights in data and reports shall become the property of the U.S. Government. All information gathered under this contract by the Contractor and all reports and recommendations hereunder shall be treated as confidential by the Contractor and shall not, without the prior written approval of the Contracting Officer, be made available to any person, party, or government, other than USAID, except as otherwise expressly provided in this contract.</P>
              <HD SOURCE="HD3">18. Notices (Dec 1985)</HD>
              <P>Any notice, given by any of the parties hereunder, shall be sufficient only if in writing and delivered in person or sent by telegraph, telegram, registered, or regular mail as follows:</P>
              <P>To USAID: Administrator, U.S. Agency for International Development, Washington, D.C. 20523-0001, Attention: Contracting Officer.</P>
              <P>(name of the cognizant Contracting Officer with a copy to the appropriate Mission Director).</P>
              <P>To Contractor:</P>
              <P>At his/her post of duty while in the Cooperating Country and at the Contractor's address shown on the Cover Page of this contract or to such other address as either of such parties shall designate by notice given as herein required. Notices hereunder shall be effective in accordance with this clause or on the effective date of the notice, whichever is later.</P>
              <HD SOURCE="HD3">19. Reports (June 1987)</HD>
              <P>(a) The Contractor shall prepare and submit 2 copies of each technical report required by the schedule of this contract to the Bureau for Program and Policy Coordination, Center for Development Information and Evaluation, Development Information Division (PPC/CDIE/DI). All documents should be mailed to:</P>
              <P>PPC/CDIE/DI, Acquisitions, Room 209, SA-18, U.S. Agency for International Development, Washington, D.C. 20523-1802.</P>
              <P>The title page of all reports forwarded to PPC/CDIE/DI pursuant to this paragraph shall include a descriptive title, the author's name(s), contract number, project number and title, contractor's name, name of the USAID project office, and the publication or insurance date of the report.</P>
              <P>(b) When preparing reports, the contractor shall refrain from using elaborate art work, multicolor printing and expensive paper/binding, unless it is specifically authorized in the Contract Schedule. Wherever possible, pages should be printed on both sides using single spaced type.</P>
              <HD SOURCE="HD3"> 20. Use of Pouch Facilities (July 1993)</HD>
              <P>(a) Use of diplomatic pouch is controlled by the Department of State. The Department of State has authorized the use of pouch facilities for USAID contractors and their employees as a general policy, as detailed in paragraphs (a)(1) through (a)(6) of this provision. However, the final decision regarding use of pouch facilities rests with the Embassy or USAID Mission. In consideration of the use of pouch facilities as hereinafter stated, the Contractor agrees to indemnify and hold harmless the Department of State and USAID for loss or damage occurring in pouch transmission.</P>
              <P>(1) Contractors are authorized use of the pouch for transmission and receipt of up to a maximum of 0.90 kilogram/2 pounds per shipment of correspondence and documents needed in the administration of foreign assistance programs.</P>
              <P>(2) U.S. citizen contractors are authorized use of the pouch for personal mail up to a maximum of 0.45 kilogram/one pound per shipment (but see (a)(3) below). Non-U.S. citizen Contractors are not permitted use of the pouch for personal mail except to the extent that such use may be authorized by the Chief of Mission.</P>
              <P>(3) Merchandise, parcels, magazines, or newspapers are not considered to be personal mail for purpose of this clause, and are not authorized to be sent or received by pouch.</P>
              <P>(4) Official and personal mail under paragraphs (a) (1) and (2) of this provision, sent by pouch, should be addressed as follows:</P>
              <P>Individual's Name (C), U.S. Agency for International Development, Washington, D.C. 20523-0001.</P>
              <P>(5) Mail sent via the diplomatic pouch may not be in violation of U.S. Postal laws and may not contain material ineligible for pouch transmission.</P>
              <P>(6) Use of military postal facilities (APO/FPO) is authorized to U.S. contractors on the same basis as approved for direct-hire employees at the USAID Mission. Posts having access to APO/FPO facilities and using such for diplomatic pouch dispatch, may, however, accept official and personal mail for the pouch provided, of course, adequate postage is affixed when onward transmission (mail to other than USAID/W) through U.S. postal channels is required.</P>
              <P>(b) The contractor shall be responsible for compliance with these guidelines and limitations on use of pouch facilities.</P>

              <P>(c) Specific additional guidance on use of pouch facilities in accordance with this clause is available from the Post Communication Center at the Embassy or USAID Mission.<PRTPAGE P="109"/>
              </P>
              <HD SOURCE="HD3">21. Biographical Data (June 1990)</HD>
              <P>(a) The contractor agrees to furnish biographical information to the Contracting Officer on forms (SF 171 and 171As) provided for that purpose.</P>
              <P>(b) Emergency locator information. The contractor agrees to provide the following information to the Mission Administrative Officer on arrival in the host country regarding himself/herself and dependents:</P>
              <P>(1) Contractor's full name, home address, and telephone number including any after-hours emergency number(s).</P>
              <P>(2) The name and number of the contract, and whether the individual is the contractor or the contractor's dependent.</P>
              <P>(3) The name, address, and home and office telephone number(s) of each individual's next of kin.</P>
              <P>(4) Any special instructions pertaining to emergency situations such as power of attorney designees or alternate contact persons.</P>
              <HD SOURCE="HD3">22. U.S. Resident Hire Personal Services Contractor (June 1990)</HD>
              <P>A contractor meeting the definition of a U.S. Resident Hire PSC contained in Section 12, General Provisions, Clause 1, Definitions, shall be subject to U.S. Federal Income Tax, but shall not be eligible for any fringe benefits (except contributions for FICA, health insurance and life insurance), allowances, or differentials, including but not limited to travel and transportation, medical, orientation, home leave, etc., unless such individual can demonstrate to the satisfaction of the Contracting Officer that he/she has received similar benefits/allowances from their immediately previous employer in the Cooperating Country, or the Mission Director determines that payment of such benefits would be consistent with the Mission's policy and practice and would be in the best interest of the U.S. Government.</P>
              <HD SOURCE="HD3">23. Orientation and Language Training (July 1993)</HD>
              <P>(a) Except as set forth in paragraph (b)(4) below, the Contractor shall receive a maximum of 2 weeks USAID orientation before travel overseas. The dates of orientation shall be selected by the Contractor and approved by the Contracting Officer from the orientation schedule provided by USAID.</P>
              <P>(b) As either set forth in the Contract Schedule, or provided in writing by the Contracting Officer, the following may be authorized taking into consideration specific job requirements, contractor's prior overseas experience, or unusual circumstances, in connection with orientation of individual Contractors:</P>
              <P>(1) Modified orientation,</P>
              <P>(2) Language training,</P>
              <P>(3) Orientation for Contractor's dependents at contract expense.</P>
              <P>(4) Waiver of orientation for individual contractor.</P>
              <P>(c) Transportation costs and travel allowances not to exceed one round trip from the Contractor's residence to place of orientation and return will be reimbursed, pursuant to Clause 10 of the General Provisions, entitled “Travel and Transportation Expenses,” if the orientation is more than 80 kilometers/50 miles from the contractor's residence.</P>
              <P>Allowable salary costs during the period of orientation are also reimbursable.</P>
              <HD SOURCE="HD3">24. Conditions for Contracting Prior to Receipt of Security Clearance (July 1993)</HD>
              <P>(a) U.S. Resident Hire PSC. The contractor may commence work prior to the completion of the security clearance. However, until such time as clearance is received, the contractor shall have no access to classified or administratively controlled materials. Further, failure to obtain clearance will constitute cause for contract termination in accordance with paragraph (a)(2) of General Provision 16 of this contract.</P>
              <P>(b) U.S. PSC—Non-Resident Hire. The contractor may elect to commence travel to post immediately to begin work prior to completion of the security clearance. However, until such time as security clearance is received, the contractor shall:</P>
              <P>(1) Have no access to classified or administratively controlled materials;</P>
              <P>(2) Be authorized to travel to post himself/herself only; and</P>
              <P>(3) Be authorized no entitlements other than those normally authorized for short term (less than a year) employees at post. Even if the contract is for one year or more, dependents may not accompany contractor unless at his/her expense, and transportation/storage of household/personal effects and motor vehicle will not be financed by USAID prior to the receipt of the security clearance. Upon receipt of clearance, the Contracting Officer will authorize reimbursement of any such costs borne at contractor's expense prior to clearance provided they are reasonable, allocable and allowable. If appropriate given the length of time remaining, the Contracting Officer will authorize dependent travel and shipment/storage of motor vehicle and effects. Allowances which would not be provided to short term employees will be authorized after clearance is received provided that the contractor is otherwise entitled to such benefits. Failure to obtain the security clearance will constitute cause for contract termination in accordance with paragraph (a)(2) of General Provision 16 of this contract.</P>
              <HD SOURCE="HD3">25. Medical Evacuation (MEDEVAC) Services (July 1993)</HD>

              <P>(a) The contractor agrees to obtain medevac service coverage for himself/herself <PRTPAGE P="110"/>and his/her authorized dependents while performing personal services abroad. Coverage shall be obtained pursuant to the terms of the contract between USAID and USAID's medevac service provider unless exempted in accordance with paragraph (b).</P>
              <P>(b) The following are exempted from the requirements in paragraph (a):</P>
              <P>(1) Contractors and their dependents with a health insurance program that includes sufficient medevac coverage as approved by the Contracting Officer.</P>
              <P>(2) Contractors and their dependents located at Missions where the Mission Director makes a written determination to waive the requirement for such coverage based on findings that the quality of local medical services or other circumstances obviate the need for such coverage.</P>
              <P>(c) Information on the current medevac service provider, including application procedures, is available from the Contracting Officer.</P>
              <HD SOURCE="HD3">26. Governing Law (Nov 1996)</HD>

              <P>This contract is established under the procurement authorities of the United States Government and shall be interpreted in accordance with the body of Federal Procurement Law in the United States. This contract is a complete statement of the duties, compensation, benefits, leave, notice, termination, and the like; therefore, the laws of the country of performance with respect to labor and contract matters shall not apply to either the carrying out of the obligations of the parties or to the interpretation of this agreement.
              </P>
              <P>13. <E T="03">FAR Clauses to be Incorporated in Full Text in Personal Services Contracts.</E>
              </P>
              <P>The following FAR Clauses are always to be used along with the General Provisions. They are required in full text.</P>
              <FP SOURCE="FP-2">1. Covenant Against Contingent Fees 52.203-5</FP>
              <FP SOURCE="FP-2">2. Electronic Funds Transfer Payment Methods 52.232-28</FP>
              <FP SOURCE="FP-2">3. Disputes 52.233-1 (Alternate 1)</FP>
              <FP SOURCE="FP-2">4. Preference for U.S. Flag Air Carriers 52.247-63</FP>
              
              <P>14. <E T="03">FAR Clauses to be Incorporated by Reference in Personal Services Contracts</E>
              </P>
              <P>The following FAR Clauses are to be used along with the General Provisions, and when appropriate, be incorporated in each personal services contract by reference:</P>
              <FP SOURCE="FP-2">1. Anti-Kickback Procedures 52.203-7</FP>
              <FP SOURCE="FP-2">2. Limitation on Payments to Influence Certain Federal Transactions 52.203-12</FP>
              <FP SOURCE="FP-2">3. Audit and Records—Negotiation 52.215-2</FP>
              <FP SOURCE="FP-2">4. Privacy Act Notification 52.224-1</FP>
              <FP SOURCE="FP-2">5. Privacy Act 52.224-2</FP>
              <FP SOURCE="FP-2">6. Taxes—Foreign Cost Reimbursement Contracts 52.229-8</FP>
              <FP SOURCE="FP-2">7. Interest 52.232-17</FP>
              <FP SOURCE="FP-2">8. Limitation of Cost 52.232-20</FP>
              <FP SOURCE="FP-2">9. Limitation of Funds 52.232-22</FP>
              <FP SOURCE="FP-2">10. Assignment of Claims 52.232-23</FP>
              <FP SOURCE="FP-2">11. Protection of Government Buildings, Equipment, and Vegetation 52.237-2</FP>
              <FP SOURCE="FP-2">12. Notice of Intent to Disallow Costs 52.242-1</FP>
              <FP SOURCE="FP-2">13. Inspection 52.246-5</FP>
              <FP SOURCE="FP-2">14. Limitation of Liability—Services 52.246-25</FP>
              <CITA>[62 FR 39453, July 23, 1997, as amended at 64 FR 42040, Aug. 3, 1999]</CITA>
            </APPENDIX>
            <APPENDIX>
              <RESERVED>Appendix E to Chapter 7 [Reserved]</RESERVED>
            </APPENDIX>
            <APPENDIX>
              <EAR>Ch. 7, App. F</EAR>
              <HD SOURCE="HED">Appendix F to Chapter 7—Use of Collaborative Assistance Method for Title XII Activities</HD>
              <HD SOURCE="HD2">1. Introduction</HD>
              <P>This appendix provides a detailed description of the collaborative assistance method of contracting. This is a specialized contracting system which may be used for contracting with educational institutions eligible under, and for activities authorized under, Title XII of the Foreign Assistance Act of 1961, as amended, under the circumstances described in AIDAR 715.613-71.</P>
              <HD SOURCE="HD2">2. Purpose</HD>
              <P>The collaborative assistance system is designed to:</P>
              <P>(a) Increase the joint implementation authority and responsibility of the contractor and the LDC;</P>
              <P>(b) Encourage more effective collaboration between all participating parties (USAID, host country, and contractor) at important stages, including the design stage of a technical assistance project.</P>
              <HD SOURCE="HD2">3. Policy</HD>

              <P>The collaborative assistance approach represents an alternative method for long-term technical assistance which involves professional collaboration with eligible Title XII institutions and LDC counterparts for a problem-solving type activity to develop new institutional forms and capabilities, to devise operating systems and policies, and to conduct joint research and development—including training. In such an activity, the difficulty in defining, in advance, precise and objectively verifiable contractor inputs and long-term project content as a basis for payment usually requires a flexible approach to project design, contracting, and project implementation. Such flexibility is also essential to the collaborative style which is responsive to LDC desires in problem areas of great complexity and varying uncertainty. Other types of technical assistance, which are usually shorter in term are amenable to <PRTPAGE P="111"/>more precise definition in advance, or involve closely defined and relatively standardized services, or are otherwise more analogous to commodity resource transfers, may be suitable for other contracting methods, e.g., certain forms of institution building, on-the-job training, resource surveys, etc. The collaborative assistance method is an approved method for providing technical assistance when used in accordance with the circumstances outlined above, and with the guidelines set forth in paragraph 4, below.</P>
              <HD SOURCE="HD2">4. Implementation Procedures</HD>
              <P>(a) <E T="03">Introduction.</E> This paragraph 4, provides background information, guidelines and procedures to effect the implementation of the policy set forth in paragraph 3 of this appendix.</P>
              <P>(b) <E T="03">Conditions and practices.</E> In order for this policy to work effectively even when the proposed activity fits the criteria described under Policy, there must also be:</P>
              <P>(1) Acceptance of the notion that the host country, in consultation with the contractor, is in the best position to make tactical, day-to-day decisions on project inputs within agreed-upon limitations and output expectations;</P>
              <P>(2) Sufficient trust and respect between the Agency and the contractor to allow this flexible implementation authority;</P>
              <P>(3) A direct-hire project monitor with appropriate background to be knowledgeable of progress and to assist in an advisory and facilitative capacity, both during and between periodic reviews. In addition, the following important conditions must be met:</P>
              <P>(i) Adequate preproject communication between, and identification of assistance required by, the host government and USAID;</P>
              <P>(ii) Full joint planning and improved project design (“Joint” as used herein refers to the primary parties, i.e., the collaborating institutions, as well as the host government and USAID. In some instances, it can also include other donors.);</P>
              <P>(iii) Careful contractor selection, i.e., matching of the contractor's technical and managerial capabilities to the anticipated requirements of the overseas activity;</P>
              <P>(iv) Establishment of relationships between host country, USAID and contractor staff to include host country leadership, flexible implementation authority, and effective management by the contractor;</P>
              <P>(v) Improved joint project evaluation, feedback, and replanning; and</P>
              <P>(vi) Simplified administrative procedures and greater reliance on in-country logistical support.</P>
              <P>(c) <E T="03">Project Stages and Contractor Involvement.</E> In the long-term technical assistance projects as described above, there are four discrete but sometimes overlapping decision stages which take place—with the principal contractor usually involved in the last three.</P>
              <P>(1) <E T="03">Problem analysis and project identification.</E> After the host government has indicated a desire for U.S. collaboration on a particular problem and the USAID field mission has determined that the proposed activity is consistent with its program goals and priorities, considerable effort is usually necessary to refine further the project purpose and type of assistance required and provide a basis for contractor selection. This is a crucial step and is focused on results sought—on what the prospective contractor is expected to produce in relation to resources to be used and to project purpose. It should result in a clear understanding of what the LDC wants, and an overall plan which includes agreement on specific objectives or outputs, acceptable types of activities and inputs and an initial budget—resulting in project documentation. At this step, USAID makes decisions it cannot delegate on what it will support and at what cost. If needed to supplement its direct-hire expertise, USAID can use outside consultants for analysis and advice but retains the ultimate decision for itself in collaboration with, but independent of, the requesting host government. (Normally, the proposed contractor for project definition and subsequent implementation should not have been involved in the problem analysis and project identification stage as a consultant to either the host country government, host institution, or USAID. If a potential contractor has been so involved, particular care must be taken to prevent actual or apparent organizational conflicts of interest in the procurement that follows. This could require at a minimum, a careful assessment and complete documentation of reasons for selection.)</P>
              <P>Normally, there will need to be some mutual interaction between the overall planning stage outlined here and the detailed planning and design work which follows in the next phase. There will usually be some overlap, with preliminary decisions in this stage providing a basis for selection of implementing agents for stage (2) which in turn proceeds through some preliminary planning to guide completion of stage (1) as a basis for long-term contracting.</P>
              <P>(2) <E T="03">Project definition.</E> At this stage, having selected the implementing agent, the U.S. and LDC organizations which will be collaborating in carrying out the project are encouraged to work out, to their mutual <FR>3/8</FR>satisfaction, the particulars of what to do and how to do it (i.e., detailed project design) within the context of LDC leadership and responsibility and the general agreements and budget reached in stage (1). The emphasis here is on the technical approach to be utilized and the scheduling and management of project inputs. This may involve a short-term reconnaissance and/or an extensive period of detailed joint planning and feeling out of what is feasible during a preliminary <PRTPAGE P="112"/>operating phase of the project, possibly lasting as much as a year or more. This stage recognizes the importance, for the problem-solving or ground breaking types of technical assistance, of involving the U.S. and LDC implementing organizations together as soon as the detailed design work begins. USAID's role here is to facilitate, not direct, the joint planning, assure consistency with prior agreements or concur in changes, affirm that the implementing parties have agreed on a reasonable project design, and prepare or cause to be prepared the documentation required for stage (3), including any amendments that might be required to the project documentation. If and when a decision is made by the host government and USAID to proceed into the operating phase with the same contractor, the U.S. intermediary should be treated as a cooperating partner in the negotiation of the subsequent long-term operating agreement(s) with the host government, host institution and USAID.</P>
              <P>(3) <E T="03">Implementation.</E> The results of the approach outlined in the stage above should include, in addition to a better understanding and more meaningful commitment by all parties, the following specific products:</P>
              <P>(i) A jointly developed life-of-project design which reflects the commitment of all parties and includes clear statements of purpose, principal outputs, eligible types of activity and expenditure limits, critical assumptions, and major progress indicators;</P>
              <P>(ii) A workplan and input schedule for the first two years or at least as long as the expenditure period for the next obligation of project funds;</P>
              <P>(iii) Provisions for any administrative support, special services or other inputs by the host country, contractor, and/or USAID; and</P>
              <P>(iv) A plan for periodic joint evaluation and review or progress and subsequent workplans, normally annually, with the participation of all parties.</P>
              <P>Appropriate elements of these agreements and understandings are now embodied in a contract for project implementation, as described in paragraph (d)(3)(i) of the section on Contracting Implications. This contract allows the U.S. intermediary to apply its judgment, reflecting close collaboration with its LDC colleagues, in adjusting the flow of USAID-financed inputs and in making other operational decisions with a minimum of requirements for prior USAID approvals or contract amendments as long as the contractor stays within the bounds of the approved overall plan and budget. In this phase, USAID will give technical assistance contractors the authority and responsibility for using their specialized expertise to the fullest extent in the scheduling and managing of project inputs.</P>
              <P>(4) <E T="03">Monitoring, joint evaluation and replanning.</E> With increased flexibility and responsibility for implementation placed with the technical assistance contractor, the host government, and/or institutional collaborator, improved and timely progress reporting and periodic, joint, and structured reviews of results and evolving plans are imperative as a basis for monitoring and evaluating contractor performance, revalidating or adjusting project design, and for determining future funding levels and commitments.</P>
              <P>Both the contractor's annual report and the joint review should be structured within the framework of purpose, outputs, performance indicators, etc., originally established in the project indentification phase—as modified by detailed project design—and reflected in the Project Agreement and other pertinent documentation. The field review will normally serve as the occasion for discussing changes in or additions to previously agreed-to workplans as well as proposing changes in purpose, types of activities authorized and budgets which require contract amendment. Obviously, the appropriate host government, host institution, and senior contractor officials should be thoroughly involved in the process, which will have to be adapted to the conditions within specific projects and countries. An important USAID responsibility is to assure that there is appropriate host country participation in developing and improving project plans prior to new obligations of funds. The special requirements and responsibilities of the various parties shall also be reflected in the project agreement and contract terms and in guidelines on the content of annual reports, evaluation procedures, etc.</P>
              <P>Standard checking on services actually delivered as a basis for reimbursement will be continued including appropriate audit of expenditures.</P>
              <P>(d) <E T="03">Contracting implications.</E> The principal elements of change in present contracting practices, as detailed below, are earlier selection and involvement of the prime contractor, contracting by major stages of project design and operations, minimizing the need for precontract negotiations and contract amendments and USAID approvals, and providing technical assistance contractors with the authority and responsibility needed to manage implementation within the approved program bounds.</P>
              <P>(1) <E T="03">Selection.</E> The early involvement of the contractor in the definition stage of a long-term technical assistance project, after USAID decides what it wants to undertake in stage (1), does not alter the Agency's responsibility to select its contractors carefully and in full compliance with appropriate contracting regulations and selection procedures. What is required here is that contractor selection be carried out at an earlier stage than has sometimes been the Agency practice in the past or with other types of <PRTPAGE P="113"/>contracts and in anticipation that the contractor, assuming adequate performance, will participate in all subsequent phases until final completion.</P>
              <P>(2) <E T="03">Contracting stages.</E> In contracting, the initial design stage should be separated from the longer term implementation stage without any USAID commitment to undertake the second until it has exercised its independent judgment based on the product of the first plus any outside expert appraisal it and the host country want to use.</P>
              <P>The long-term implementation stage itself may be further subdivided into contract periods which permit time between predetermined events for analysis, determination of new project requirements, and evaluation of performance prior to initiating the next phase by contract amendment/extension. If, for any reason, such an examination does not appear to warrant project continuation, then termination of the project and/or contract would be the next step.</P>
              <P>(3) <E T="03">Flexible implementation authority.</E> While good project design will eliminate or diminish many operational problems, the very nature of long-term technical assistance requires flexible implementation within agreed purposes, ultimate outputs, types of activity and available financing. With these key variables for USAID management control established, contracts should be written so as to minimize the need for amendments and USAID approval of changes in input particulars. This can be facilitated, both for the USAID, host country, institution, and the contractor by:</P>
              <P>(i) <E T="03">Retention of operational plan in contract and removal of workplan.</E> The contract narrative will contain the life-of-the-project Operational Plan, consistent with the project design as developed in stage (2) and reflected in the project documentation (and subsequent amendments thereto). The Operational Plan includes a statement of the purpose to be achieved, the outputs to be produced by the contractor and the types of activities to be undertaken, the more significant indicators of progress, a general description of the type of inputs that are authorized and intended to be provided during the life of the project, and the overall budget.</P>
              <P>In order to allow adjustments at the implementation level without going through the contract amendment process, the detailed but short-term workplan containing specific descriptions and scheduling of all inputs such as numbers and types of staff, participants, commodities, etc., and specific activities, will not be a part of the contract. It is a working document to be modified in the field when the situation demands. The latest version will be available as a supporting document to justify proposed new obligation levels. Normally, the workplan and derived budget will cover a rolling two year period, i.e., each year another yearly increment is added after review and approval.</P>
              <P>(ii) <E T="03">Budget flexibility.</E> To support this implementation flexibility, contract budget or fiscal controls will be shifted from fixed line items for each input category to program categories, permitting the technical assistance contractor to adjust amounts and timing to achieve previously approved types of activity. This same type of flexibility should apply to any local currency supplied for project operations and/or contractor staff support. While an essential corollary to eliminating the workplan from the contract, this is not a unique procedure under cost reimbursement type contracts when the contractor has demonstrated adequate management capability.</P>
              <P>(iii) <E T="03">Negotiation of advance understandings.</E> To permit university and international research center contractors to manage their activities in accordance with their own policies and procedures and thereby sharpen their management responsibility while achieving substantial savings in time and reduced documentation, USAID may negotiate advance understandings with its technical assistance contractors on dollar costs and administrative procedures that would be included by reference in its subsequent contracts. Upon receipt of a request from the contractor that their policies be reviewed and approved for usage in their contract in lieu of the standard terms and conditions, OP/PS/OCC, USAID/W will initiate negotiations of such policies in an expeditious manner. The approved policies will be used in all relevant relations involving the Agency and respective contractors in lieu of traditional contract standard provisions, whenever this may be appropriate. This does not apply to local currency costs and host government procedures which must be negotiated in each case.</P>
              <P>The purpose of the practices listed above is not only to give a qualified contractor the authority to adjust the composition and timing of inputs but to assign to it clear responsibility for managing such resources, as the evolving circumstances require, to achieve the agreed-upon outputs on a cost efficient basis. It should also reduce the delay and paperwork involved in frequent but minor contract amendments, and approvals. For the agency as a whole, both in the Mission and in USAID/W, these have involved a large workload and cost.</P>
              <P>(e) <E T="03">Role of USAID.</E> Nothing in this appendix is intended to delegate, diminish or otherwise modify USAID's final responsibility for the prudent management of public funds and its own programs. Rather in withdrawing from the day-to-day involvement in and responsibility for the management of adjustment of the flow of inputs during the implementation, the best use of limited agency staff and time can be devoted to protecting <PRTPAGE P="114"/>the public interest in gaining maximum results from the funds appropriated for technical assistance by:</P>
              <P>(1) Seeking optimum identification in terms of LDC priorities and U.S. capabilities;</P>
              <P>(2) Mobilizing and selecting the best U.S. professional talent to design and carry out the project;</P>
              <P>(3) Monitoring what is happening to assure adequacy of processes, get a feel of results, assure actual delivery of inputs being financed;</P>
              <P>(4) Assuring that the attention of USAID's implementation agents and LDC colleagues stay well focused on project purpose and results to be achieved (outputs) and the relation to these of what is being done and actual results;</P>
              <P>(5) Providing intermediaries adequate authority and responsibility to adjust inputs promptly and sensitively to the evolving project situations.</P>
              <P>Attention to these considerations, and to achievements of the preimplementation conditions prescribed above, should greatly increase the chances for successful project completion and impact on a cost effective basis, which is the final measurement of prudent management.</P>
              <HD SOURCE="HD1">Attachment to Appendix F—Guidelines for Requests for Expressions of Interest</HD>
              <HD SOURCE="HD2">A. Length and Level of Detail</HD>
              <P>A Request for Expression of Interest (REI) should include more than just a short letter expressing interest, but should not be in the detail of a technical proposal (RFTP). The REI is not the only source of information that can or should be used for selection, but at least a minimum level of information should be contained in each document. A ten page paper that responds to the selection criteria included in every REI should be sufficient for evaluation purposes. The selection criteria should specify the technical inputs required for successful execution of the project and normally require a response in three general areas:</P>
              <P>1. A description of the institution's capability to address the problem described in the REI.</P>
              <P>2. Any related experience, whether in the country or region or in the problem area.</P>
              <P>3. A demonstrable commitment of the institution to support the project.</P>
              <P>The responses should address the capability, experience, and commitment to the particular project.</P>
              <HD SOURCE="HD2">B. Specific Personnel Information</HD>
              <P>The response should specify within the areas set out in the selection criteria the following planning and personnel factors.</P>
              <P>1. The design team plan and the scope of work for each member.</P>
              <P>2. A list of candidates for the design team and their credentials.</P>
              <P>3. A list of possible candidates for long-term assignment to the project. (Since there has been no project design, the specific technical assistance slots and technical responsibilities are vague. But it is expected that at least half of the personnel needs can be estimated early in the project. The institution should make its best guess for the team and present to the Agency the persons or types of persons with whom they are likely to contract.)</P>
              <HD SOURCE="HD2">C. Multiple Institution Submissions</HD>
              <P>Joint effort on the part of several institutions is encouraged when appropriate. A single institution may submit an expression of interest for part of the project without knowledge of other collaborators or it may submit information in response to A and B of this attachment as part of a suggested collection of institutions. In either case, a proposed plan for cooperation is necessary.</P>
              <P>However, such joint efforts must specify the division of responsibilities for the planning and personnel factors indicated in B of this attachment. Often USAID will identify the need for cooperation and suggest such an effort in the REI. Even if USAID does not suggest collaboration, joint efforts with a description of the cooperation would be an appropriate way to respond to an REI.</P>
              <SECAUTH>(Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435)</SECAUTH>
              <CITA>[49 FR 13301, Apr. 3, 1984, as amended at 49 FR 33669, Aug. 24, 1984; 50 FR 16089, Apr. 24, 1985; 51 FR 20652, June 6, 1986; 52 FR 6160, Mar. 2, 1987]</CITA>
            </APPENDIX>
            <APPENDIX>
              <RESERVED>Appendixes G-H to Chapter 7 [Reserved]</RESERVED>
            </APPENDIX>
            <APPENDIX>
              <EAR>Ch. 7, App. I</EAR>
              <HD SOURCE="HED">Appendix I to Chapter 7—USAID's Academic Publication Policy</HD>
              <HD SOURCE="HD2">1. Statement of Policy</HD>
              <P>This is a statement of USAID policy on publication, or release to parties other than those specifically authorized, of unclassified materials gathered or developed under contracts with academic institutions.</P>
              <HD SOURCE="HD2">2. Underlying Principles</HD>
              <P>USAID favors and encourages the publication of scholarly research as well as the maximum availability, distribution, and use of knowledge developed in its program.</P>

              <P>This policy statement does not deal with material that is classified for security reasons. It does deal with considerations of national interest, not of sufficient gravity to warrant security classification, but serious enough to affect adversely the conduct of <PRTPAGE P="115"/>U.S. assistance programs. Consequently, in addition to the requirements of courtesy, propriety, and confidence which normally guide scholars in their work, there should also be consideration of the potential repercussions of publication on the successful execution of development and other cooperative programs in which the United States and foreign countries are involved.</P>
              <HD SOURCE="HD2">3. Operational Definitions</HD>
              <P>The Agency draws a distinction between two kinds of manuscripts which a scholar may wish to publish:</P>
              <P>(a) A report which is prepared and delivered to the Agency under the terms of the contract (a “contract manuscript”); and</P>
              <P>(b) An article or book based upon experience and information gained under an USAID contract but not prepared or delivered under the contract (a “non-contract manuscript”).</P>
              <P>There are two kinds of actions, to be specified in the contract, which the Agency can take upon notification of a contractor's desire to publish:</P>
              <P>(a) Comment only, under which USAID and the foreign government involved may review the manuscript, and have their comments considered seriously by the contractor prior to publication; and</P>
              <P>(b) Authorization for release, which USAID may withhold if reconciliation between the national interest and the author's interest is impossible.</P>
              <HD SOURCE="HD2">4. Policy Statements</HD>
              <P>(a) USAID, as a general rule, will not require an academic institution to obtain permission to publish the written work produced under a contract. It will ask for the opportunity to review the manuscript for comment only, prior to publication.</P>
              <P>In the case of a contract manuscript, USAID reserves the right to disclaim endorsement of the opinions expressed; if it is a noncontract manuscript, USAID reserves the right to disassociate itself from sponsorship or publication.</P>
              <P>(b) On the other hand, USAID may reserve the right of authorization for release in those exceptional cases where conditions exist making it reasonably foreseeable, in light of the contract's scope of work and the manner and place of performance, that the written work to be prepared and delivered under the contract may have adverse repercussions on the relations and programs of the United States. Where this right is reserved, it must be so specified in the contract. In determining where to reserve such right, USAID will consider all relevant factors, including:</P>
              <P>(1) The extent to which prompt and full performance of the contract will require access, facilitated by reason of the contract, to information not generally available to scholars;</P>
              <P>(2) The extent to which the work involves matters of political concern to foreign countries, particularly where any substantial part of the work is to be performed therein;</P>
              <P>(3) The extent to which, by reason of USAID's close involvement and cooperation in the performance of the contract, the work product may be so identified with USAID itself as to prevent effective disclaimer of USAID endorsement thereof;</P>
              <P>(4) The extent to which the objective of the contract is to provide advice to USAID or to a foreign government of immediate operational significance in the conduct of the USAID program or the implementation of governmental programs in the host country;</P>
              <P>(5) The desires of the host country.</P>
              <HD SOURCE="HD2">5. Implementation</HD>
              <P>The successful implementation of this policy on publication rests on a thorough understanding and acceptance of these principles by USAID and the prospective contractor. The actual publications provision for a particular contract, then, would be so worded as to reflect the agreement reached in the contract negotations.</P>
              <P>USAID's concern with noncontract manuscripts is related to the identification of a manuscript with the U.S. Government. This concern will be modified by the passage of time following termination of the contract.</P>
              <P>In the normal case of prepublication review for USAID comment, the institution will submit a copy of the manuscript not later than the date of submission to the publisher. This gives the Agency time to comment if it is deemed appropriate. However, in the case of review for authorization, timely notification of USAID's response will be given, consistent with the size of the manuscript and the number and location of the parties involved.</P>
              <P>The Agency will make every effort to expedite this review procedure in accordance with the underlying principle described at the beginning of this policy statement.</P>
              <SECAUTH>(Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435)</SECAUTH>
              <CITA>[49 FR 13304, Apr. 3, 1984]</CITA>
            </APPENDIX>
            <APPENDIX>
              <EAR>Ch. 7, App. J</EAR>
              <HD SOURCE="HED">Appendix J to Chapter 7—Direct USAID Contracts With a Cooperating Country National and With a Third Country National for Personal Services Abroad</HD>
              <HD SOURCE="HD2">1. General</HD>
              <P>(a) <E T="03">Purpose.</E> This appendix sets forth the authority, policy, and procedures under which USAID contracts with cooperating <PRTPAGE P="116"/>country nationals or third country nationals for personal services abroad.</P>
              <P>(b) <E T="03">Definitions.</E> For the purpose of this appendix:</P>
              <P>(1)<E T="03"> Personal services contract</E> (PSC) means a contract that, by its express terms or as administered, make the contractor personnel appear, in effect, Government employees (see FAR 37.104).</P>
              <P>(2)<E T="03"> Employer-employee relationship</E> means an employment relationship under a service contract with an individual which occurs when, as a result of (i) the contract's terms or (ii) the manner of its administration during performance, the contractor is subject to the relatively continuous supervision and control of a Government officer or employee.</P>
              <P>(3)<E T="03"> Non-personal services contract</E> means a contract under which the personnel rendering the services are not subject either by the contract's terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees.</P>
              <P>(4)<E T="03"> Independent contractor relationship</E> means a contract relationship in which the contractor is not subject to the supervision and control prevailing in relationships between the Government and its employees. Under these relationships, the Government does not normally supervise the performance of the work, or the manner in which it is to be performed, control the days of the week or hours of the day in which it is to be performed, or the location of performance.</P>
              <P>(5)<E T="03"> Contractor</E> means a cooperating country national or a third country national who has entered into a contract pursuant to this appendix.</P>
              <P>(6)<E T="03"> Cooperating country</E> means the country in which the employing USAID Mission is located.</P>
              <P>(7)<E T="03"> Cooperating country national (CCN)</E> means an individual who is a cooperating country citizen or a non-cooperating country citizen lawfully admitted for permanent residence in the cooperating country.</P>
              <P>(8)<E T="03"> Third Country National (TCN)</E> means an individual</P>
              <P>(i) Who is neither a citizen nor a permanent legal resident alien of the United States nor of the country to which assigned for duty, and</P>
              <P>(ii) Who is eligible for return to his/her home country or country of recruitment at U.S. Government expense [see Section 12, General Provision 9 paragraph (n)].</P>
              <HD SOURCE="HD2">2. Legal Basis</HD>
              <P>(a) Section 635(b) of the Foreign Assistance Act of 1961, as amended, hereinafter referred to as the “FAA”, provides the Agency's contracting authority.</P>
              <P>(b) Section 636(a)(3) of the FAA authorizes the Agency to enter into personal services contracts with individuals for personal services abroad and provides further that such individuals “* * * shall not be regarded as employees of the U.S. Government for the purpose of any law administered by the Civil Service Commission.”<SU>1</SU>
                <FTREF/>
              </P>
              <FTNT>
                <P>
                  <SU>1</SU>The Civil Service Commission is now the Federal Office of Personnel Management.</P>
              </FTNT>
              <HD SOURCE="HD2">3. Applicability</HD>
              <P>(a) This appendix applies to all personal services contracts with CCNs or TCNs to provide assistance abroad under Section 636(a)(3) of the FAA.</P>
              <P>(b) This appendix does not apply to:</P>
              <P>(1) Contracts for non-personal services with TCNs or CCNs; such contracts are covered by the basic text of the FAR and AIDAR.</P>
              <P>(2) Personal services contracts with U.S. citizens or U.S. resident aliens for personal services abroad; such contracts are covered by Appendix D of this chapter.</P>
              <P>(3) Appointments of experts and consultants as USAID direct-hire employees; such appointments are covered by USAID Handbook 25, Employment and Promotion or superseding Chapters of the Automated Directive System (ADS).</P>
              <HD SOURCE="HD2">4. Policy</HD>
              <P>(a) <E T="03">General.</E> USAID may finance, with either program or operating expense (OE) funds, the cost of personal services as part of the Agency's program of foreign assistance by entering into a direct contract with a CCN or a TCN for personal services abroad.</P>
              <P>(1) <E T="03">Program funds.</E> Under the authority of Section 636(h) of the FAA, program funds may be obligated for periods up to five years where necessary and appropriate to the accomplishment of the tasks involved.</P>
              <P>(2) <E T="03">Operating expense funds.</E> Pursuant to USAID budget policy, OE funded salaries and other recurrent cost items may be forward funded for a period of up to three (3) months beyond the fiscal year in which these funds were obligated. Non-recurring cost items may be forward funded for periods not to exceed twenty-four (24) months where necessary and appropriate to accomplishment of the work.<SU>2</SU>
                <FTREF/>
              </P>
              <FTNT>
                <P>
                  <SU>2</SU>If there is a need, these contracts may be written for 5 years but only funded as outlined above.</P>
              </FTNT>
              <P>(b) <E T="03">Limitations on Personal Services Contracts.</E>
              </P>
              <P>(1) Personal services contracts may only be used when adequate supervision is available.</P>

              <P>(2) Personal services contracts may be used for commercial activities. Commercial activities provide a product or service which could be obtained from a commercial source. See Attachment A of OMB Circular A-76 for a representative list of such activities.<PRTPAGE P="117"/>
              </P>
              <P>(3) Notwithstanding any other provision of USAID directives, regulations or delegations, Cooperating Country or Third Country Nationals may be delegated or assigned any authority, duty or responsibility, delegated or assigned U.S. citizen direct-hire employees (USDH employees) except that:</P>
              <P>a. They may not supervise USDH employees of USAID or other U.S. Government agencies. They may supervise USPSCs and non-U.S. citizen employees.</P>
              <P>b. They may not be designated a Contracting Officer or delegated authority to sign obligating or subobligating documents.</P>
              <P>c. They may represent the agency, except that communications that reflect a final policy, planning or budget decision of the agency must be cleared by a USDH employee.</P>
              <P>d. They may participate in personnel selection matters but may not be delegated authority to make a final decision on personnel selection.</P>
              <P>e. Services which involve security classified material.</P>
              <P>(4) Exceptions. Exceptions to the limitations in (b)(3) must be approved by the Assistant Administrator for Management (AA/M).</P>
              <P>(c) <E T="03">Conditions of Employment.</E>
              </P>
              <P>(1) <E T="03">General.</E> For the purpose of any law administered by the U.S. Office of Personnel Management, USAID PSC contractors are not to be regarded as employees of the U.S. Government, are not included under any retirement or pension program of the U.S. Government, and are not eligible for the Incentive Awards Program covered by Uniform State/USAID/USIA regulations. Each USAID Mission is expected to participate in the Joint Special Embassy Incentive Awards Program. The program is administered by a joint committee which establishes procedures for submission, review and approval of proposed awards. Other than these exceptions, CCNs and TCNs who are hired for work in a cooperating country under PSCs generally will be extended the same benefits and be subject to the same restrictions as Foreign Service Nationals (FSNs) employed as direct-hires by the USAID Mission.</P>
              <P>(2) <E T="03">Compensation.</E> (i) It is USAID's general policy (see AIDAR 722.170) that PSC compensation may not, without the approval of the Mission Director or Assistant Administrator, exceed the prevailing compensation paid to personnel performing comparable work in the cooperating country. Compensation for TCN or CCN personal services contractors set in accordance with the provisions of 4c(2)(ii) below satisfies this requirement.</P>
              <P>(ii) In accordance with Section 408(a)(1) of the Foreign Service Act of 1980, a local compensation plan forms the basis for all compensation payments to FSNs which includes CCNs and TCNs. The plan is each post's official system of position classification and pay, consisting of the local salary schedule which includes salary rates, statements authorizing fringe benefit payments, and other pertinent facets of compensation for TCNs and CCNs, and the local position classification system as reflected in the Local Employee Position Classification Handbook (LEPCH) or equivalent in effect at the Mission. Compensation for PSCs will be in accordance with the local compensation plan, to the extent that it covers employees of the type or category being employed, unless the Mission Director determines otherwise. If the Mission Director determines that compensation in accordance with the local plan would be inappropriate in a particular instance, then compensation will be set in accordance with (in order of preference):</P>
              <P>(A) Any other Mission policies on foreign national employee compensation; or</P>
              <P>(B) Paragraphs 4(c) (d), (e), (g), (h), and (i) of Appendix D. When compensation is set in accordance with this exception, the record shall be documented in writing with a justification prepared by the requesting office and approved by the Mission Director.</P>
              <P>(iii) The earning of leave (annual and sick), allowances and differential (if applicable), salaries and all other related benefits cannot be enumerated in this Appendix as they vary from Mission to Mission and are based upon the compensation plan for each.</P>
              <P>(iv) Unless otherwise authorized, the currency in which compensation is paid to contractors shall be in accordance with the prevailing local compensation practice of the post.</P>
              <P>(v) CCN and TCN contractors are eligible for allowances and differential on the same basis as direct-hire FSN employees under the post compensation plan.</P>
              <P>(vi) A USAID PSC who is a spouse of a current or retired U.S. Civil Service, U.S. Foreign Service, or U.S. military service member, and who is covered by their spouse's government health or life insurance policy, is ineligible for a contribution towards the costs of annual health and life insurance.</P>
              <P>(vii) Retired CCNs and TCNs may be awarded personal services contracts without any reduction in or offset against their Government annuity.</P>
              <P>(3) <E T="03">Incentives Awards.</E> (i) All Cooperating Country Nationals direct-hire and Personal Services Contractors (PSCs) and Third Country Nationals (PSCs) of the Foreign Affairs Community are eligible for the Joint Special Embassy Incentive Awards Program.</P>
              <P>(ii) Meritorious Step Increases for USAID FSN PSCs may be authorized provided the granting of such increases is the general practice locally.</P>

              <P>(iii) The Joint Country Awards Committee administers each post's (Embassy) award program, including establishment of procedures for submission, review and approval of proposed awards.<PRTPAGE P="118"/>
              </P>
              <P>(4) <E T="03">Training.</E> CCN and TCN PSCs are eligible for most of the training courses offered in the Training Course Schedule. However, applications will be processed on a case-by-case basis and are required to be approved by the Contracting Officer.</P>
              <HD SOURCE="HD2">5. Soliciting for Personal Services Contracts</HD>
              <P>(a) <E T="03">Technical Officer's Responsibilities.</E> The Technical Officer will prepare a written detailed statement of duties and a statement of minimum qualifications to cover the position being recruited for; the statement shall be included in the procurement request. The procurement request shall also include the following additional information as a minimum:</P>
              <P>(1) The specific foreign location(s) where the work is to be performed, including any travel requirements (with an estimate of frequency);</P>
              <P>(2) The length of the contract, with beginning and ending dates, plus any options for renewal or extension;</P>
              <P>(3) The basic education, training, experience, and skills required for the position;</P>
              <P>(4) A certification from the officer in the Mission responsible for the LEPCH or equivalent that the position has been reviewed and is properly classified as to a title, series and grade in accordance with the LEPCH. If the position does not fall within the LEPCH or equivalent system, and estimate of compensation based on subparagraphs 4(c)(2)(ii) (A) or (B) of this Appendix after consultations or in coordination with the contract officer or executive officer;</P>
              <P>(5) A list of Government or host country furnished items (e.g., housing).</P>
              <P>(b) <E T="03">Contracting Officer's Responsibilities.</E> (1) The Contracting Officer will prepare the solicitation for personal services which shall contain:</P>
              <P>(i) Three sets of certified biographical data and salary history. (Upon receipt, one copy of the above information shall be forwarded to the Project Officer);</P>
              <P>(ii) A detailed statement of duties or a completed position description for the position being recruited for;</P>
              <P>(iii) A copy of the prescribed contract Cover Page, Contract Schedule, and General Provisions as well as the FAR Clause to be included in full text and a list of those to be incorporated by reference; and</P>
              <P>(iv) A copy of General Notice entitled “Employee Review of the New Standards of Conduct” dated October 30, 1992.</P>
              <P>(2) The Contracting Officer shall comply with the limitations of AIDAR 706.302-70(c) as detailed in paragraph 5(c) below.</P>
              <P>(c) <E T="03">Competition.</E> (1) Under AIDAR 706.302-70(b)(1), Personal Services Contracts are exempt from the requirements for full and open competition with two limitations that must be observed by Contracting Officers:</P>
              <P>(i) Offers are to be requested from as many potential offerors as is practicable under the circumstances, and</P>
              <P>(ii) a justification supporting less than full and open competition must be prepared in accordance with FAR 6.303.</P>
              <P>(2) A class justification was approved by the USAID Procurement Executive to satisfy the requirements of AIDAR 706.302-70(c)(2) for a justification in accordance with FAR 6.303. Use of this class justification for Personal Services Contracts with Cooperating Country Nationals and Third Country Nationals is subject to the following conditions:</P>
              <P>(i) New contracts are publicized consistent with Mission/Embassy practice on announcement of direct hire FSN positions. Renewals or extensions with the same individual for continuing service do not need to be publicized.</P>
              <P>(ii) A copy of the class justification (which was distributed to all USAID Contracting Officers via Contract Information Bulletin) must be included in the contract file, together with a written statement, signed by the Contracting Officer, that the contract is being awarded pursuant to AIDAR 706.302-70(b)(1); that the conditions for use of this class justification have been met; and that the cost of the contract is fair and reasonable. If the conditions in paragraphs (2)(i) and (ii) are not followed, the Contracting Officer must prepare a separate justification as required under AIDAR 706.302-70(c)(2).</P>
              <P>(3) Since the award of a personal services contract is based on technical qualifications, not price, and since the biographical data and salary history are used to solicit for such contracts, FAR Subparts 15.4 and 15.5 are inappropriate and shall not be used. Instead, the solicitation and selection procedures outlined in this Appendix shall govern.</P>
              <HD SOURCE="HD2">6. Negotiating a Personal Services Contract</HD>
              <P>Negotiating a Personal Services Contract is significantly different from negotiating a nonpersonal services contract because it establishes an employer-employee relationship; therefore, the selection and negotiations procedures are more akin to the personal selection procedures.</P>
              <P>(a) <E T="03">Technical Officer's Responsibilities.</E> The Technical Officer shall be responsible for reviewing and evaluating the applications received in response to the solicitation issued by the Contracting Officer. If deemed appropriate, interviews may be conducted with the applicants before the final selection is submitted to the Contracting Officer.</P>
              <P>(b) <E T="03">Contracting Officer's Responsibilities.</E>
              </P>
              <P>(1) The Contracting Officer shall forward a copy of biographical data and salary history received under the solicitation to the Technical Officer for evaluation.</P>

              <P>(2) On receipt of the Technical Officer's recommendation, the Contracting Officer <PRTPAGE P="119"/>shall conduct negotiations with the recommended applicant. The terms and conditions of the contract will normally be in accordance with the local compensation plan which forms the basis for all compensation on payments paid to FSNs which includes CCNs and TCNs.</P>
              <P>(3) The Contracting Officer shall use the certified salary history on the certified statement of biographical data and salary history as the basis for salary negotiations, along with the Technical Officer's cost estimate.</P>
              <P>(4) The Contracting Officer will obtain necessary data for a security and suitability clearance to the extent required by USAID Handbook 6, Security or superseding ADS Chapters.</P>
              <HD SOURCE="HD2">7. Executing a Personal Services Contract</HD>
              <P>Contracting activities, whether USAID/W or Mission, may execute Personal Services Contracts, provided that the amount of the contract does not exceed the contracting authority that has been redelegated to them. See AIDAR 701.601. In executing a personal service contract, the Contracting Officer is responsible for insuring that:</P>
              <P>(a) The proposed contract is within his/her delegated authority;</P>
              <P>(b) A written detailed statement of duties covering the proposed contract has been received;</P>
              <P>(c) The proposed scope of work is contractible, contains a statement of minimum qualifications from the technical office requesting the services, and is suitable for a personal services contract in that:</P>
              <P>(1) Performance of the proposed work requires or is best suited for an employer-employee relationship, and is thus not suited to the use of a non-personal services contract;</P>
              <P>(2) The scope of work does not require performance of any function normally reserved for direct-hire Federal employees (under paragraph 4(b) of this Appendix); and</P>
              <P>(3) There is no apparent conflict of interest involved (if the Contracting Officer believes that a conflict of interest may exist, the question should be referred to the cognizant legal counsel);</P>
              <P>(d) Selection of the contractor is documented and justified (AIDAR 706.302-70(b)(1) provides an exception to the requirement for full and open competition for Personal Services Contracts abroad; see paragraph 5(c) of this Appendix);</P>
              <P>(e) The standard contract format prescribed for a Cooperating Country National and a Third Country National personal services contract (Sections 9, 10, 11, 12, and 13 of this Appendix as appropriate) is used, or that any necessary deviations are processed as required by AIDAR 701.470;</P>
              <P>(f) The contractor has submitted the names, addresses, and telephone numbers of at least two persons who may be notified in the event of an emergency (this information is to be retained in the contract file);</P>
              <P>(g) The contract is complete and correct and all information required on the contract Cover Page (USAID form 1420-36B) has been entered;</P>
              <P>(h) The contract has been signed by the Contracting Officer and the contractor, and fully executed copies are properly distributed;</P>
              <P>(i) The following clearances, approvals and forms have been obtained, properly completed, and placed in the contract file before the contract is signed by both parties:</P>

              <P>(1) Security clearance to the extent required by USAID Handbook 6, <E T="03">Security</E> or other superseding Chapters of the Automated Directives System;</P>
              <P>(2) Mission, host country, and technical office clearance, as appropriate;</P>
              <P>(3) Medical clearance(s) based on a full medical examination(s) and statement of medical opinion by a licensed physician. The physician's medical opinion must be in the possession of the Contracting Officer prior to signature of contract. If a TCN is recruited, medical clearance requirements apply to the contractor and each dependent who is authorized to accompany the contractor;</P>
              <P>(4) The approval for any salary in excess of ES-6, in accordance with Appendix G of this chapter;</P>
              <P>(5) A copy of the class justification or other appropriate explanation and support required by AIDAR 706.302-70, if applicable;</P>
              <P>(6) Any deviation to the policy or procedures of this Appendix, processed and approved under AIDAR 701.470;</P>
              <P>(7) The memorandum of negotiation;</P>
              <P>(j) The position description is classified in accordance with the LEPCH, and the proposed salary is consistent with the local compensation plan or the alternate procedures established in 4(c)(2)(ii) above;</P>
              <P>(k) Funds for the contract are properly obligated to preclude violation of the Anti-Deficiency Act, 31 U.S.C. 134 (the Contracting Officer ensures that the contract has been properly recorded by the appropriate accounting office prior to its release for the signature of the selected contractor);</P>
              <P>(l) The contractor receives and understands USAID General Notice entitled “Employee Review of the New Standards of Conduct” dated October 30, 1992 and a copy is attached to each contract, as provided for in paragraph (c) of General Provision 2, Section 12;</P>
              <P>(m) Agency conflict of interest requirements, as set out in the above notice are also met by the contractor prior to his/her reporting for duty;</P>

              <P>(n) A copy of a Checklist for Personal Services Contractors which may be in the form set out above or another form convenient for the contracting officer, provided that a form containing all of the information described <PRTPAGE P="120"/>in this paragraph 7 shall be prepared for each PSC and placed in the contract file;</P>
              <P>(o) In consultation with the regional legal advisor and/or the regional contracting officer, the contract is modified by deleting from the General Provisions (Sections 12 and 13 of this Appendix) the inapplicable clause(s) by a listing in the Schedule; and</P>
              <P>(p) The block entitled, “Acquisition and Assistance Request Document” on the Cover Page of the contract format is completed by inserting the four-segment technical number as prescribed in USAID Handbook 18, the USAID Code Book Appendix D or superseding ADS Chapter if the PSC is project-funded.</P>
              <HD SOURCE="HD2">8. Contracting Format</HD>
              <P>The prescribed Contract Cover Page, Contract Schedules, General Provisions and FAR Clauses for personal service contracts for TCNs and CCNs covered by this Appendix are included as follows:</P>
              <P>9. <E T="03">“Cover Page” for a Contract with a Cooperating Country National or with a Third Country National for Personal Services.</E>
              </P>
              <P>10. <E T="03">“Schedule” for a Contract with a Cooperating Country National or Third Country National Personal Services Contracts.</E>
              </P>
              <P>11. <E T="03">“Optional Schedule” for a Contract with a Cooperating Country National or Third Country National Personal Services Contracts.</E>
              </P>
              <P>[Use of the Optional Schedule is intended to serve as an alternate procedure for OE funded Foreign Service National PSCs. The schedule was developed for use when the Contracting Officer anticipates incremental recurring cost funded contracts. It should be noted that the Optional Schedule eliminates the need to amend the contract each time funds are obligated. However, the Contracting Officer is required to amend each contract not less than twice during a 12 month period to ensure that the contract record of obligations is up to date and agrees with the figures in the master funding document.]</P>
              <P>12. <E T="03">“General Provisions” for a Contract With a Cooperating Country National or With a Third Country National for Personal Services.</E>
              </P>
              <P>13. <E T="03">FAR Clauses to be incorporated in full text as well as by reference in Personal Services Contracts.</E>
              </P>
              <HD SOURCE="HD2">9. “Cover page” for a Contract With a Cooperating Country National or With a Third Country National for Personal Services.</HD>
              <P>—AID Form 1420-36B (11/96)</P>
              <GPH DEEP="465" SPAN="2">
                <PRTPAGE P="121"/>
                <GID>ER11AU97.005</GID>
              </GPH>
              <HD SOURCE="HD2">10. “Schedule” for a Contract With a Cooperating Country National or Third Country National Personal Services Contracts</HD>
              <FP>Contract No.___</FP>
              <FP>Table of Contents</FP>
              <P>The Schedule on pages ___ through ___ consists of this Table of Contents, the following Articles, and General Provisions:</P>
              <FP>Article IStatement of Duties<PRTPAGE P="122"/>
              </FP>
              <FP>Article IIPeriod of Service</FP>
              <FP>Article IIIContractor's Compensation and Reimbursement</FP>
              <FP>Article IVCosts Reimbursable and Logistic Support</FP>
              <FP>Article VPrecontract Expenses</FP>
              <FP>Article VIAdditional Clauses</FP>
              
              <FP>General Provisions</FP>
              

              <P>The following provisions, numbered as shown below, omitting number(s) ___, are the General Provisions (GPs) of this Contract:
              </P>
              <FP>1. Definitions</FP>
              <FP>2. Compliance with Applicable Laws and Regulations</FP>
              <FP>3. Physical Fitness</FP>
              <FP>4. Security</FP>
              <FP>5. Workweek</FP>
              <FP>6 Leave and Holidays</FP>
              <FP>7. Social Security and Cooperating Country Taxes</FP>
              <FP>8. Insurance</FP>
              <FP>9. Travel and Transportation</FP>
              <FP>10. Payment</FP>
              <FP>11. Contractor-Mission Relationships</FP>
              <FP>12. Termination</FP>
              <FP>13. Allowances</FP>
              <FP>14. Advance of Dollar Funds</FP>
              <FP>15. Conversion of U.S. Dollars to Local Currency</FP>
              <FP>16. Post of assignment Privileges</FP>
              <FP>17. Release of Information</FP>
              <FP>18. Notices</FP>
              <FP>19. Incentive Awards</FP>
              <FP>20. Training</FP>
              <FP>21. Medical Evacuation Services</FP>
              
              <P>Schedule
              </P>
              <NOTE>
                <HD SOURCE="HED">Note:</HD>
                <P>Use of the following Schedule is not mandatory.</P>
              </NOTE>
              
              <P>The Schedule is intended to serve as a guideline and as a checklist for contracting offices in drafting contract schedules. Article language shall be changed to suit the needs of the particular contract. Special attention should be given to the financial planning sections where unnecessary line items should be eliminated.</P>
              <HD SOURCE="HD1">Article I—Statement of Duties</HD>
              <P>[The statement of duties shall include:</P>
              <P>A. General statement of the purpose of the contract.</P>
              <P>B. Statement of duties to be performed.</P>
              <P>C. Orientation or training to be provided by USAID.]</P>
              <HD SOURCE="HD1">Article II—Period of Service</HD>
              <P>Within ___ days after written notice from the Contracting Officer that all clearances, including the statement of medical opinion required under General Provision Clause 3, have been received, unless another date is specified by the contracting officer in writing, the contractor shall proceed to ___ and shall promptly commence performance of the duties specified above. The contractor's period of service shall be approximately ___ in ___. (Specify time of duties in each location.)</P>
              <HD SOURCE="HD1">Article III—Contractor's Compensation and Reimbursement</HD>
              <P>A. Except as reimbursement may be specifically authorized by the Mission Director or contracting officer, USAID shall pay the contractor compensation after it has accrued and make reimbursements, if any are due, in currency of the post or for necessary and reasonable costs actually incurred in the performance of this contract within the categories listed in Paragraph D, below, and subject to the conditions and limitations applicable thereto as set out herein and in the attached General Provisions (GPs).</P>
              <P>B. The amount budgeted and available as personal compensation to the contractor is calculated to cover a calendar period of approximately ___ (days) (weeks) (months) (years) (which is to include) (1) vacation and sick leave which may be earned during contractor's tour of duty (GP Clause No. 6), (2) ___ days for authorized travel (GP Clause 9), and (3) ___ days for orientation and consultation if required by the Statement of Duties.</P>
              <P>C. The contractor shall earn vacation leave at the rate of ___ days per year under the contract (provided the contract is in force for at least 90 days) and shall earn sick leave at the rate of ___ days per year under the contract.</P>
              <P>D. Allowable Costs.</P>
              <P>1. Compensation at the rate of LC ___ per (year) (month) (week) (day), equivalent to Grade FSN-___/___ in accordance with the Mission's Local Compensation Plan. If during the effective period of this contract the Local Compensation Plan is revised, contractor's compensation will be revised accordingly and contractor will be notified in writing by the contracting officer. Adjustments in compensation for periods when the contractor is not in compensable pay status shall be calculated as follows: Rate of LC ___ per (day) (hour).</P>
              <P>LC ___</P>
              <P>2. Overtime (Unless specifically authorized in the Schedule of this contract, no overtime hours shall be allowed hereunder.)</P>

              <P>3. Travel and Transportation (Ref. GP Clause 9). (Includes the value of TRs furnished by the Government, not payable to contractor).
              </P>
              <FP>a. United States—$___</FP>
              <FP>b. International—$___</FP>
              <FP>c. Cooperating and Third Country—$___, LC ___</FP>
              
              <P>Subtotals Item 3—$___, LC ___
              </P>
              <P>4. Subsistence or Per Diem (Ref. GP Clause 9).
              </P>
              <FP>a. United States—$___<PRTPAGE P="123"/>
              </FP>
              <FP>b. International—$___</FP>
              <FP>c. Cooperating and Third Country—$___, LC___</FP>
              <P>Subtotals Item 4—$___, LC___
              </P>
              <P>5. Other Direct Costs
              </P>
              <FP>a. Physical Examination (Ref. GP Clause 3)—LC___</FP>
              <FP>b. Miscellaneous—LC___</FP>
              <P>Subtotal Item—LC___
              </P>
              <P>Total Estimated Costs (Lines 1 thru 5) $___ LC ___</P>
              <P>E. Maximum U.S. Dollar and Local Currency Obligation.</P>
              <P>In no event shall the maximum U.S. Dollar obligation under this contract exceed $___ nor shall the maximum local currency obligation exceed LC ___. Contractor shall keep a close account of all obligations incurred and accrued hereunder and promptly notify the contracting officer whenever it appears that the said maximum is not sufficient to cover all compensation and costs reimbursable which are anticipated under the contract.</P>
              <P>F. Under the Joint Incentive Awards Program for FSN monetary awards will be made pending availability of funds. The increase for the award will be effected by the execution of an SF-1126 which will be attached to the contract and will form a part of the contract. In no event may costs under the contract exceed the total amount obligated.</P>
              <P>Meritorious Step Increases for FSN PSCs may be authorized provided the granting of such increase is the general practice locally.</P>
              <HD SOURCE="HD1">Article IV—Costs Reimbursable And Logistic Support</HD>
              <P>A. General.</P>

              <P>The contractor shall be provided with or reimbursed in local currency
              </P>
              <FP>(___) for the following: [Complete]</FP>
              
              <P>B. Method of Payment of Local Currency Costs.</P>
              <P>Those contract costs which are specified as local currency costs in Paragraph A, above, if not furnished in kind by the cooperating government or the Mission, shall be paid to the contractor in a manner adapted to the local situation, based on vouchers submitted in accordance with GP Clause 10. The documentation for such costs shall be on such forms and in such manner as the Mission Director shall prescribe.</P>
              <P>C. Cooperating or U.S. Government Furnished Equipment and Facilities.</P>
              <P>[List any logistical support, equipment, and facilities to be provided by the cooperating government or the U.S. Government at no cost to this contract; e.g., office space, supplies, equipment, secretarial support, etc., and the conditions, if any, for use of such equipment.]</P>
              <HD SOURCE="HD1">Article V—Precontract Expenses</HD>
              <P>No expense incurred before signing of this contract will be reimbursed unless such expense was incurred after receipt and acceptance of a precontract expense letter issued to the contractor by the Contracting Officer, and then only in accordance with the provisions and limitations contained in such letter. The rights and obligations created by such letter shall be considered as merged into this contract.</P>
              <HD SOURCE="HD1">Article VI—Additional Clauses</HD>

              <P>[Additional Schedule Clauses may be added to meet specific requirements of an individual contract.]
              </P>
              <HD SOURCE="HD2">11. Optional Schedule for a Contract With a Cooperating Country National or Third Country National Personal Services Contracts</HD>
              <FP>Contract No. ___</FP>
              <FP>Table of Contents</FP>
              <FP>(Optional Schedule)</FP>
              <P>[Use of the Optional Schedule is not mandatory. It is intended to serve as an alternate procedure for OE funded Cooperating Country National and Third Country National PSCs. The schedule was developed for use when the Contracting Officer anticipates incremental recurring cost funded contracts.</P>
              <P>It should be noted that use of the Optional Schedule eliminates the need to amend the contract each time funds are obligated. However, Contracting Officer is required to amend each contract not less than twice during a 12 month period to ensure that the contract record of obligations is up to date and agrees with the figures in the master funding document.]</P>

              <P>The Schedule on pages ___ through ___ consists of this Table of Contents and the following Articles:
              </P>
              <FP>Article IStatement of Duties</FP>
              <FP>Article IIPeriod of Service</FP>
              <FP>Article IIIContractor's Compensation and Reimbursement</FP>
              <FP>Article IVCosts Reimbursable and Logistic Support</FP>
              <FP>Article VPrecontract Expenses</FP>
              <FP>Article VIAdditional Clauses</FP>
              
              <FP>General Provisions</FP>
              

              <P>The following provisions, numbered as shown below, omitting number(s) ___, are the General Provisions (GPs) of this contract.
              </P>
              <FP>1. Definitions</FP>
              <FP>2. Compliance with Applicable Laws and Regulations</FP>
              <FP>3. Physical Fitness</FP>
              <FP>4. Security</FP>
              <FP>5. Workweek</FP>
              <FP>6. Leave and Holidays</FP>
              <FP>7. Social Security and Cooperating Country Taxes</FP>
              <FP>8. Insurance<PRTPAGE P="124"/>
              </FP>
              <FP>9. Travel and Transportation</FP>
              <FP>10. Payment</FP>
              <FP>11. Contractor-Mission Relationships</FP>
              <FP>12. Termination</FP>
              <FP>13. Allowances</FP>
              <FP>14. Advance of Dollar Funds</FP>
              <FP>15. Conversion of U.S. Dollars to Local Currency</FP>
              <FP>16. Post of Assignment Privileges</FP>
              <FP>17. Release of Information</FP>
              <FP>18. Notices</FP>
              <FP>19. Incentive Awards</FP>
              <FP>20. Training</FP>
              <FP>21. Medical Evacuation Services</FP>
              <HD SOURCE="HD1">Article I—Statement of Duties</HD>
              <P>[The statement of duties shall include:</P>
              <P>A. General statement of the purpose of the contract.</P>
              <P>B. Statement of duties to be performed.</P>
              <P>C. Orientation or training to be provided by USAID.]</P>
              <HD SOURCE="HD1">Article II—Period of Service</HD>
              <P>Employment under this contract is of a continuing nature. Its duration is expected to be part of a series of sequential contracts; all contract provisions and clauses and regulatory requirements concerning availability of funds and the specific duration of this contract shall apply.</P>
              <P>Within 10 days after written notice from the Contracting Offices that all clearances have been received, unless another date is specified by the Contracting Officer in writing, the contractor shall proceed to (name place) and shall promptly commence performance of the duties specified in Article I of this contract. The contractor's period of service shall be approximately (specify duration from date to date).</P>
              <HD SOURCE="HD1">Article III—Contractor's Compensation and Reimbursement</HD>
              <P>A. Except as reimbursement may be specifically authorized by the Mission Director or Contracting Officer, USAID shall pay the contractor compensation after it has accrued and make reimbursements, if any are due in currency of the cooperating country (LC) in accordance with the prevailing practice of the post or for necessary and reasonable costs actually incurred in the performance of this contract within the categories listed in paragraph E, below, and subject to the conditions and limitations applicable thereto as set out herein and in the attached General Provisions (GPs).</P>
              <P>B. The amount budgeted and available as personal compensation to the contractor is calculated to cover a calendar period of approximately ___ (days) (weeks) (months) (years) (which is to include) (1) vacation and sick leave which may be earned during the contractor's tour of duty (GP Clause No. 6), (2) ___ days for authorized travel (GP Clause 9), and (3) ___ days for orientation and consultation if required by the Statement of Duties.</P>
              <P>C. The contractor shall earn vacation leave at the rate of ___ days per year under the contract (provided the contract is in force for at least 90 days) and shall earn sick leave at the rate of ___ days per year under the contract.</P>
              <P>D. All employee rights and benefits from the previous contract or employment, i.e., accumulated annual and sick leave balances, original service computation dates, reserve fund contributions, accumulated compensatory time, social security contributions, seniority and longevity bonuses are considered allowable costs and as a continuation as long as the break in service does not exceed three days.</P>
              <P>E. Allowable Costs.</P>
              <P>1. The following illustrative budget details allowable costs under this contract and provides estimated incremental recurrent cost funding in the total amount shown. Additional funds for the full term of this contract will be provided by the preparation of a master PSC funding document issued by the Mission Controller for the purpose of providing additional funding for a specific period. The master PSC funding document will be attached to this contract and will form a part of the executed contract while also serving to amend the budget.</P>
              <P>2. Overtime (Unless specifically authorized in the Schedule of this contract, no overtime hours shall be allowed hereunder.)</P>
              <P>LC___</P>

              <P>3. Travel and Transportation (Ref. GP Clause 9). (Includes the value of TRs furnished by the Government, not payable to contractor).
              </P>
              <FP>a. United States—$___</FP>
              <FP>b. International—$___</FP>
              <FP>c. Cooperating and Third Country—$___, LC ___</FP>
              <P>Subtotals Item 3—$___, LC ___
              </P>
              <P>4. Subsistence or Per Diem (Ref. GP Clause 9.)
              </P>
              <FP>a. United States—$___</FP>
              <FP>b. International—$___</FP>
              <FP>c. Cooperating and Third Country—$___, LC ___</FP>
              <P>Subtotals Item 4—$___, LC ___
              </P>
              <P>5. Other Direct Costs.
              </P>
              <FP>a. Physical Examination (Ref. GP Clause 3)—$___, LC ___</FP>
              <FP>b. Miscellaneous—$___, LC ___</FP>
              <P>Subtotals Item 5—$___, LC ___
              </P>
              <FP>Total Estimated Costs (Lines 1 thru 5) $___, LC ___</FP>
              

              <P>F. Allowable costs compensation and all terms and benefits of employment under this contract will be in accordance with the Mission's local compensation plan. Salary <PRTPAGE P="125"/>changes and personnel-related contract actions will be made by processing the same forms as used in making such changes and actions for direct-hire FSN employees. When issued by the Contracting Officer, the forms utilized will be attached to the contract and will form a part of the contract terms and conditions.</P>
              <P>Any adjustment or increase in the compensation granted to direct-hire employees under the local compensation plan will be allowed for in PSCs subject to the availability of funds. Such an adjustment will be effected by a mass pay adjustment notice from the Contracting Officer, which will be attached to the contract and form a part of the executed contract.</P>
              <P>At the end of each year of satisfactory service, PSC contractors will be eligible to receive an increase equal to one annual step increase as shown in the local compensation plan, pending availability for funds. Such increase will be effected by the execution of an SF-1126, Payroll Change Slip which is to be attached to each contract and each action forms a part of the official contract file.</P>
              <P>Under the Joint Inventive Awards Program for FSNs, monetary awards will be made pending availability of funds. The increase for the award will be effected by the execution of an SF-1126 which will be attached to the contract and will form a part of the contract. In no event may costs under the contract exceed the total amount obligated.</P>
              <P>Meritorious Step Increases for FSN PSCs may be authorized provided the granting of such increase is the general practice locally.</P>
              <P>The master PSC funding document may not exceed the term or estimated total cost of this contract. Notwithstanding that additional funds are obligated under this contract through the issuance and attachment of the master PSC funding document, all other contract terms and conditions remain in full effect.</P>
              <HD SOURCE="HD1">Article IV—Costs Reimbursable and Logistic Support</HD>
              <P>A. General.</P>

              <P>The contractor shall be provided with or reimbursed in local currency
              </P>
              <FP>___ for the following: [Complete]</FP>
              
              <P>B. Method of Payment of Local Currency Costs.</P>
              <P>Those contract costs which are specified as local currency costs in Paragraph A, above, if not furnished in kind by the cooperating government or the Mission, shall be paid to the contractor in a manner adapted to the local situation, based on vouchers submitted in accordance with GP Clause 10. The documentation for such costs shall be on such forms and in such manner as the Mission Director shall prescribe.</P>
              <P>C. Cooperating or U.S. Government Furnished Equipment and Facilities.</P>
              <P>[List any logistical support, equipment, and facilities to be provided by the cooperating government or the U.S. Government at no cost to this contract; e.g., office space, supplies, equipment, secretarial support, etc., and the conditions, if any, for use of such equipment.]</P>
              <HD SOURCE="HD1">Article V—Precontract Expenses</HD>
              <P>No expense incurred before signing of this contract will be reimbursed unless such expense was incurred after receipt and acceptance of a precontract expense letter issued to the contractor by the Contracting Officer, and then only in accordance with the provisions and limitations contained in such letter. The rights and obligations created by such letter shall be considered as merged into this contract.</P>
              <HD SOURCE="HD1">Article VI—Additional Clauses</HD>

              <P>[Additional Schedule Clauses may be added to meet specific requirements of an individual contract.]
              </P>
              <HD SOURCE="HD2">12. General Provisions for a Contract With a Cooperating Country National or With a Third Country National for Personal Services</HD>

              <P>To be used to contract with cooperating country nationals or third country nationals for personal services.
              </P>
              <FP>Index of Clauses</FP>
              <FP>1. Definitions</FP>
              <FP>2. Compliance with Applicable Laws and Regulations</FP>
              <FP>3. Physical Fitness</FP>
              <FP>4. Security</FP>
              <FP>5. Workweek</FP>
              <FP>6. Leave and Holidays</FP>
              <FP>7. Social Security and Cooperating Country Taxes</FP>
              <FP>8. Insurance</FP>
              <FP>9. Travel and Transportation</FP>
              <FP>10. Payment</FP>
              <FP>11. Contractor-Mission Relationships</FP>
              <FP>12. Termination</FP>
              <FP>13. Allowances</FP>
              <FP>14. Advance of Dollar Funds</FP>
              <FP>15. Conversion of U.S. Dollars to Local Currency</FP>
              <FP>16. Post of Assignment Privileges</FP>
              <FP>17. Release of Information</FP>
              <FP>18. Notices</FP>
              <FP>19. Incentive Awards</FP>
              <FP>20. Training</FP>
              <FP>21. Medical Evacuation Services</FP>
              
              <FP>1. Definitions (JUL 1993)</FP>
              <P>[For use in both Cooperating Country National (CCN) and Third Country National (TCN) Contracts].</P>
              <P>(a) <E T="03">USAID</E> shall mean the U.S. Agency for International Development.</P>
              <P>(b) <E T="03">Administrator</E> shall mean the Administrator or the Deputy Administrator of the U.S. Agency for International Development.<PRTPAGE P="126"/>
              </P>
              <P>(c) <E T="03">Contracting Officer</E> shall mean a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the Contracting Officer acting within the limits of their authority as delegated by the Contracting Officer.</P>
              <P>(d) <E T="03">Cooperating Country National</E> shall mean the individual engaged to serve in the Cooperating Country under this contract.</P>
              <P>(e) <E T="03">Cooperating Country</E> shall mean the foreign country in or for which services are to be rendered hereunder.</P>
              <P>(f) <E T="03">Cooperating Government</E> shall mean the government of the Cooperating Country.</P>
              <P>(g) <E T="03">Government</E> shall mean the United States Government.</P>
              <P>(h) <E T="03">Economy Class</E> air travel shall mean a class of air travel which is less than business or first class.</P>
              <P>(i) <E T="03">Local Currency</E> shall mean the currency of the cooperating country.</P>
              <P>(j) <E T="03">Mission</E> shall mean the United States USAID Mission to, or principal USAID office in, the Cooperating Country.</P>
              <P>(k) <E T="03">Mission Director</E> shall mean the principal officer in the Mission in the Cooperating Country, or his/her designated representative.</P>
              <P>(l) <E T="03">Third Country National</E> shall mean an individual (i) who is neither a citizen of the United States nor of the country to which assigned for duty, and (ii) who is eligible for return travel to the TCN's home country or country from which recruited at U.S. Government expenses, and (iii) who is on a limited assignment for a specific period of time.</P>
              <P>(m) <E T="03">Tour of Duty</E> shall mean the contractor's period of service under this contract and shall include, authorized leave and international travel.</P>
              <P>(n) <E T="03">Traveler</E> shall mean the contractor or dependents of the contractor who are in authorized travel status.</P>
              <P>(o) <E T="03">Dependents</E> shall mean spouse and children (including step and adopted children who are unmarried and under 21 years of age or, regardless of age, are incapable of self-support.
              </P>
              <FP>2. Compliance With Laws and Regulations Applicable Abroad (JUL 1993)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>
              <P>(a) <E T="03">Conformity to Laws and Regulations of the Cooperating Country.</E>
              </P>
              <P>Contractor agrees that, while in the cooperating country, he/she as well as authorized dependents will abide by all applicable laws and regulations of the cooperating country and political subdivisions thereof.</P>
              <P>(b) <E T="03">Purchase or Sale of Personal Property or Automobiles.</E> [For TCNs Only].</P>
              <P>To the extent permitted by the cooperating country, the purchase, sale, import, or export of personal property or automobiles in the cooperating country by the contractor shall be subject to the same limitations and prohibitions which apply to Mission U.S.-citizen direct-hire employees.</P>
              <P>(c) <E T="03">Code of Conduct.</E>
              </P>

              <P>The contractor shall, during his/her tour of duty under this contract, be considered an “employee” (or if his/her tour of duty is for less than 130 days, a “special Government employee”) for the purposes of, and shall be subject to, the provisions of 18 U.S.C. 202(a) the AID General Notice entitled Employee Review of the New Standards of Conduct. The contractor acknowledges receipt of a copy of these documents by his/her acceptance of this contract.
              </P>
              <P>3. Physical Fitness (JUL 1993)
              </P>
              <P>[For use in both CCN and TCN Contracts].</P>
              <P>(a) <E T="03">Cooperating Country National.</E>
              </P>
              <P>The contractor shall be examined by a licensed doctor of medicine, and shall obtain a statement of medical opinion that, in the doctor's opinion, the contractor is physically qualified to engage in the type of activity for which he/she is to be employed under the contract. A copy of the medical opinion shall be provided to the Contracting Officer before the contractor starts work under the contract. The contractor shall be reimbursed for the cost of the physical examination based on the rates prevailing locally for such examinations in accordance with Mission practice.</P>
              <P>(b) <E T="03">Third Country National.</E>
              </P>
              <P>(i) The contractor shall obtain a physical examination for himself/herself and any authorized dependents by a licensed doctor of medicine. The contractor shall obtain a statement of medical opinion from the doctor that, in the doctor's opinion, the contractor is physically qualified to engage in the type of activity for which he/she is to be employed under the contract, and the contractor's authorized dependents are physically qualified to reside in the cooperating country. A copy of that medical opinion shall be provided to the Contracting Officer prior to the dependents' departure for the cooperating country.</P>

              <P>(ii) The contractor shall be reimbursed for the cost of the physical examinations mentioned above as follows: (1) based on those rates prevailing locally for such examinations in accordance with Mission practice or (2) if not done locally, not to exceed $100 per examination for the contractor's dependents of 12 years of age and over and not to exceed $40 per examination for contractor's dependents under 12 years of age. The contractor shall also be reimbursed for the cost of all immunizations normally authorized and extended to FSN employees.
              </P>
              <FP>4. Security (JUL 1993)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>

              <P>(a) The contractor is obligated to notify immediately the Contracting Officer if the <PRTPAGE P="127"/>contractor is arrested or charged with any offense during the term of this contract.</P>
              <P>(b) The contractor shall not normally have access to classified or administratively controlled information and shall take conscious steps to avoid receiving or learning of such information. However, based on contractor's need to know, Mission may authorize access to administratively controlled information for performance of assigned scope of work on a case-by-case basis in accordance with USAID Handbook 6 or superseding ADS Chapters.</P>

              <P>(c) The contractor agrees to submit immediately to the Mission Director or Contracting Officer a complete detailed report, marked “Privileged Information”, of any information which the contractor may have concerning existing or threatened espionage, sabotage, or subversive activity against the United States of America or the USAID Mission or the cooperating country government.
              </P>
              <FP>5. Workweek (OCT 1987)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>

              <P>The contractor's workweek shall not be less than 40 hours, unless otherwise provided in the Schedule, and shall coincide with the workweek for those employees of the Mission or the cooperating country agency must closely associated with the work of this contract. If approved in advance in writing, overtime worked by the contractor shall be paid in accordance with the procedures governing premium compensation applicable to direct-hire foreign service national employees. If the contract is for less than full time (40 hours weekly), the leave earned shall be prorated.
              </P>
              <FP>6. Leave and Holidays (OCT 1987)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>
              <P>(a) <E T="03">Vacation Leave.</E>
              </P>
              <P>The contractor may accrue, accumulate, use and be paid for vacation leave in the same manner as such leave is accrued, accumulated, used and paid to foreign service national direct-hire employees of the Mission. No vacation leave shall be earned if the contract is for less than 90 days. Unused vacation leave may be carried over under an extension or renewal of the contract as long as it conforms to Mission policy and practice. With the approval of the Mission Director, and if the circumstances warrant, a contractor may be granted advance vacation leave in excess of that earned, but in no case shall a contractor be granted advance vacation leave in excess of that which he/she will earn over the life of the contract. The contractor agrees to reimburse USAID for leave used in excess of the amount earned during the contractor's assignment under the contract.</P>
              <P>(b) <E T="03">Sick Leave.</E>
              </P>
              <P>The contractor may accrue, accumulate, and use sick leave in the same manner as such leave is accrued, accumulated and used by foreign service national direct-hire employees of the Mission. Unused sick leave may be carried over under an extension of the contract. The contractor will not be paid for sick leave earned but unused at the completion of this contract.</P>
              <P>(c) <E T="03">Leave Without Pay.</E>
              </P>
              <P>Leave without pay may be granted only with the written approval of the Contracting Officer or Mission Director.</P>
              <P>(d) <E T="03">Holidays.</E>
              </P>

              <P>The contractor shall be entitled to all holidays granted by the Mission to direct-hire cooperating country national employees who are on comparable assignments.
              </P>
              <FP>7. Social Security and Cooperating Country Taxes (DEC 1986)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>

              <P>Funds for Social Security, retirement, pension, vacation or other cooperating country programs as required by local law shall be deducted and withheld in accordance with laws and regulations and rulings of the cooperating country or any agreement concerning such withholding entered into between the cooperating government and the United States Government.
              </P>
              <FP>8. Insurance (JUL 1993)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>
              <P>(a) <E T="03">Worker's Compensation Benefits.</E>
              </P>
              <P>The contractor shall be provided worker's compensation benefits under the Federal Employees Compensation Act.</P>
              <P>(b) <E T="03">Health and Life Insurance.</E>
              </P>
              <P>The contractor shall be provided personal health and life insurance benefits on the same basis as they are granted to direct-hire CCNs and TCN employees at the post under the Post Compensation Plan.</P>
              <P>(c) <E T="03">Insurance on Private Automobiles—Contractor Responsibility</E> [For use in TCN contracts]. If the contractor or dependents transport, or cause to be transported, any privately owned automobile(s) to the cooperating country, or any of them purchase an automobile within the cooperating country, the contractor agrees to ensure that all such automobile(s) during such ownership within the cooperating country will be covered by a paid-up insurance policy issued by a reliable company providing the following minimum coverages, or such other minimum coverages as may be set by the Mission Director, payable in U.S. dollars or its equivalent in the currency of the cooperating country: injury to persons, $10,000/$20,000; property damage, $5,000. The contractor further agrees to deliver, or cause to be delivered to the Mission Director, copies of the insurance policies required by this clause or satisfactory proof of the existence thereof, before such automobile(s) is operated within the cooperating country. The premium costs for such insurance shall not be a reimbursable cost under this contract.<PRTPAGE P="128"/>
              </P>
              <P>(d) <E T="03">Claims for Private Personal Property Losses</E> [For use in TCN contracts]. The contractor shall be reimbursed for private personal property losses in accordance with USAID Handbook 23, “Overseas Support”, Chapter 10, or superseding ADS Chapter.
              </P>
              <FP>9. Travel and Transportation Expenses (JUL 1993)</FP>
              
              <P>[For use in both CCN and TCN Contracts as appropriate].</P>
              <P>(a) <E T="03">General.</E> The contractor will be reimbursed in currency consistent with the prevailing practice at post and at the rates established by the Mission Director for authorized travel in the cooperating country in connection with duties directly referable to work under this contract. In the absence of such established rates, the contractor shall be reimbursed for actual costs of authorized travel in the cooperating country if not provided by the cooperating government or the Mission in connection with duties directly referable to work hereunder, including travel allowances at rates prescribed by USAID Handbook 22, “Foreign Service Travel Regulations” or superseding ADS Chapters as from time to time amended. The Executive or Administrative Officer at the Mission may furnish Transportation Requests (TR's) for transportation authorized by this contract which is payable in local currency or is to originate outside the United States. When transportation is not provided by Government issued TR, the contractor shall procure the transportation, and the costs will be reimbursed. The following paragraphs provide specific guidance and limitations on particular items of cost.</P>
              <P>(b) <E T="03">International Travel.</E> For travel to and from post of assignment the TCN contractor shall be reimbursed for travel costs and travel allowances from place of residence in the country of recruitment (or other location provided that the cost of such travel does not exceed the cost of the travel from the place of residence) to the post of duty in the cooperating country and return to place of residence in the country of recruitment (or other location provided that the cost of such travel does not exceed the cost of travel from the post of duty in the cooperating country to the contractor's residence) upon completion of services by the individual. Reimbursement for travel will be in accordance with USAID's established policies and procedures for its CCN and TCN direct-hire employees and the provisions of this contract, and will be limited to the cost of travel by the most direct and expeditious route. If the contract is for longer than one year and the contractor does not complete one full year at post of duty (except for reasons beyond his/her control), the cost of going to and from the post of duty for the contractor and his/her dependents are not reimbursable hereunder. If the contractor serves more than one year but less than the required service in the cooperating country (except for reasons beyond his/her control) costs of going to the post of duty are reimbursable hereunder but the cost of going from post of duty to the contractor's permanent, legal place of residence at the time he or she was employed for work under this contract are not reimbursable under this contract for the contractor and his/her dependents. When travel is by economy class accommodations, the contractor will be reimbursed for the cost of transporting up to 10 kilograms/22 pounds of accompanied personal baggage per traveler in addition to that regularly allowed with the economy ticket provided that the total number of pounds of baggage does not exceed that regularly allowed for first class travelers. Travel allowances for travelers shall not be in excess of the rates authorized in the Standardized Regulations (Government Civilians, Foreign Areas) hereinafter referred to as the Standardized Regulations—as from time to time amended, for not more than the travel time required by scheduled commercial air carrier using the most expeditious route. One stopover enroute for a period of not to exceed 24 hours is allowable when the traveler uses economy class accommodations for a trip of 14 hours or more of scheduled duration. Such stopover shall not be authorized when travel is by indirect route or is delayed for the convenience of the traveler. Per diem during such stopover shall be paid in accordance with the Federal Travel Regulations as from time to time amended.</P>
              <P>(c) <E T="03">Local Travel.</E> Reimbursement for local travel in connection with duties directly referable to the contract shall not be in excess of the rates established by the Mission Director for the travel costs of travelers in the Cooperating Country. In the absence of such established rates the contractor shall be reimbursed for actual travel costs in the Cooperating Country by the Mission, including travel allowances at rates not in excess of those prescribed by the Standardized Regulations.</P>
              <P>(d) <E T="03">Indirect Travel for Personal Convenience of a TCN.</E> When travel is performed by an indirect route for the personal convenience of the traveler, the allowable costs of such travel will be computed on the basis of the cost of allowable air fare via the direct usually traveled route. If such costs include fares for air or ocean travel by foreign flag carriers, approval for indirect travel by such foreign flag carriers must be obtained from the Contracting Officer or the Mission Director before such travel is undertaken, otherwise only that portion of travel accomplished by the United States-flag carriers will be reimbursable within the above limitation of allowable costs.</P>
              <P>(e) <E T="03">Limitation on Travel by TCN Dependents.</E> Travel costs and allowances will be allowed <PRTPAGE P="129"/>for authorized dependents of the contractor and such costs shall be reimbursed for travel from place of abode in the country of recruitment to the assigned station in the Cooperating Country and return, only if the dependent remains in the Cooperating Country for at least 9 months or one-half of the required tour of duty of the contract, whichever is greater, except as otherwise authorized hereunder for education, medical, or emergency visitation travel. Dependents of the TCN contractor must return to the country of recruitment or home country within thirty days of the termination or completion of the contractor's employment, otherwise such travel will not be reimbursed under this contract.</P>
              <P>(f) <E T="03">Delays Enroute.</E> The contractor may be granted reasonable delays enroute while in travel status when such delays are caused by events beyond the control of the contractor and are not due to circuitous routing. It is understood that if delay is caused by physical incapacitation, he/she shall be eligible for such sick leave as provided under the “Leave and Holidays” clause of this contract.</P>
              <P>(g) <E T="03">Travel by Privately Owned Automobile (POV).</E> If travel by POV is authorized in the contract schedule or approved by the Contracting Officer, the contractor shall be reimbursed for the cost of travel performed in his/her POV at a rate not to exceed that authorized in the Federal Travel Regulations plus authorized per diem for the employee and, if the POV is being driven to or from the cooperating country as authorized under the contract, for each of the authorized dependents traveling in the POV, provided that the total cost of the mileage and per diem paid to all authorized travelers shall not exceed the total constructive cost of fare and normal per diem by all authorized travelers by surface common carrier or authorized air fare, whichever is less.</P>
              <P>(h) <E T="03">Emergency and Irregular Travel and Transportation.</E> [For TCNs only]. Emergency transportation costs and travel allowances while enroute, as provided in this section, will be reimbursed not to exceed amounts authorized by the Foreign Service Travel Regulations for FSN direct-hire employees in like circumstances under the following conditions:</P>
              <P>(1) The costs of going from post of duty in the cooperating country to another approved location for the contractor and authorized dependents and returning to post of duty, subject to the prior written approval of the Mission Director, when such travel is necessary for one of the following reasons:</P>
              <P>(i) Need for medical care beyond that available within the area to which contractor is assigned.</P>
              <P>(ii) Serious effect on physical or mental health if residence is continued at assigned post of duty.</P>
              <P>(iii) Serious illness, injury, or death of a member of the contractor's immediate family or a dependent, including preparation and return of the remains of a deceased contractor or his/her dependents.</P>
              <P>(2) Emergency evacuation when ordered by the principal U.S. Diplomatic Officer in the cooperating country. Transportation and travel allowances at safe haven and the transportation of household effects and automobile or storage thereof when authorized by the Mission Director, shall be payable in accordance with established Government regulations.</P>
              <P>(3) The Mission Director may also authorize emergency or irregular travel and transportation in other situations when in his/her opinion the circumstances warrant such action. The authorization shall include the kind of leave to be used and appropriate restrictions as to time away from post, transportation of personal and household effects, etc.</P>
              <P>(i) <E T="03">Country of Recruitment Travel and Transportation.</E> [For TCNs only]. The contractor shall be reimbursed for actual transportation costs and travel allowances in the country of recruitment as authorized in the Schedule or approved in advance by the Contracting Officer or the Mission Director. Transportation costs and travel allowances shall not be reimbursed in any amount greater than the cost of, and time required for, economy-class commercial-scheduled air travel by the most expeditious route except as otherwise provided in paragraph (h) above, unless economy air travel is not available and the contractor adequately documents this to the satisfaction of the Contracting Officer in documents submitted with the voucher.</P>
              <P>(j) <E T="03">Rest and Recuperation Travel.</E> [For TCNs only].</P>
              <P>If approved in writing by the Mission Director, the contractor and his/her dependents shall be allowed rest and recuperation travel on the same basis as direct-hire TCN employees and their dependents at the post under the local compensation plan.</P>
              <P>(k) <E T="03">Transportation of Personal Effects (Excluding Automobiles and Household Goods).</E> [For TCNs only].</P>
              <P>(1) <E T="03">General.</E> Transportation costs will be paid on the same basis as for direct-hire employees at post serving the same length tour of duty, as authorized in the schedule. Transportation, including packing and crating costs, will be paid for shipping from contractor's residence in the country of recruitment or other location, as approved by the Contracting Officer (provided that the cost of transportation does not exceed the cost from the contractor's residence) to post of duty in the cooperating country and return to the country of recruitment or other location provided the cost of transportation of the <PRTPAGE P="130"/>personal effects of the contractor not to exceed the limitations in effect for such shipments for USAID direct-hire employees in accordance with the Foreign Service Travel Regulations in effect at the time shipment is made. These limitations may be obtained from the Contracting Officer. The cost of transporting household goods shall not exceed the cost of packing, crating, and transportation by surface common carrier.</P>
              <P>(2) <E T="03">Unaccompanied Baggage.</E> Unaccompanied baggage is considered to be those personal belongings needed by the traveler immediately upon arrival of the contractor and dependents. To permit the arrival of effects to coincide with the arrival of the contractor and dependents, consideration should be given to advance shipments of unaccompanied baggage. The contractor will be reimbursed for costs of shipment of unaccompanied baggage (in addition to the weight allowance for household effects) not to exceed the limitations in effect for USAID direct-hire employees in accordance with the Foreign Service Travel Regulations in effect when shipment is made. These limitations are available from the Contracting Officer. This unaccompanied baggage may be shipped as air freight by the most direct route between authorized points of origin and destination regardless of the modes of travel used.</P>
              <P>(l) <E T="03">Reduced Rates on U.S.-Flag Carriers.</E> Reduced rates on U.S.-flag carriers are in effect for shipments of household goods and personal effects of USAID contractors between certain locations. These reduced rates are available provided the shipper furnishes to the carrier at the time of the issuance of the Bill of Lading documentary evidence that the shipment is for the account of USAID. The Contracting Officer will, on request, furnish to the contractor current information concerning the availability of a reduced rate with respect to any proposed shipment. The contractor will not be reimbursed for shipments of household goods or personal effects in amounts in excess of the reduced rates which are available in accordance with the foregoing.</P>
              <P>(m) <E T="03">Transportation of things.</E> [For TCNs Only]. Where U.S. flag vessels are not available, or their use would result in a significant delay, the contractor may obtain a release from the requirement to use U.S. flag vessels from the Transportation Division, Office of Procurement, U.S. Agency for International Development, Washington, DC 20523-1419, or the Mission Director, as appropriate, giving the basis for the request.</P>
              <P>(n) <E T="03">Repatriation Travel.</E> [For TCNs Only]. Notwithstanding other provisions of this Clause 9, a TCN must return to the country of recruitment or to the TCN's home country within 30 days after termination or completion of employment or forfeit all right to reimbursement for repatriation travel. The return travel obligation [repatriation travel] assumed by the U.S. Government may have been the obligation of another employer in the area of assignment if the employee has been in substantially continuous employment which provided for the TCN's return to home country or country from which recruited.</P>
              <P>(o) <E T="03">Storage of household effects.</E> [For TCNs Only]. The cost of storage charges (including packing, crating, and drayage costs) in the country of recruitment of household goods of regular employees will be permitted in lieu of transportation of all or any part of such goods to the Cooperating Country under paragraph (k) above provided that the total amount of effects shipped to the Cooperating Country or stored in the country of recruitment shall not exceed the amount authorized for USAID direct-hire employees under the Foreign Service Travel Regulations. These amounts are available from the Contracting Officer.
              </P>
              <FP>10. Payment (MAY 1997)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>
              <P>(a) Payment of compensation shall be based on written documentation supporting time and attendance which may be (1) maintained by the Mission in the same way as for direct-hire CCNs and TCNs or (2) the contractor may submit such written documentation in a form acceptable to Mission policy and practice as required for other personal services contractors and as directed by the Mission Controller or paying office. The documentation will also provide information required to be filed under cooperating country laws to permit withholding by USAID of funds, if required, as described in the clause of these General Provisions entitled Social Security and Cooperating Country Taxes.</P>

              <P>(b) Any other payments due under this contract shall be as prescribed by Mission policy for the type of payment being made.
              </P>
              <FP>11. Contractor-Mission Relationships (DEC 1986)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>
              <P>(a) The contractor acknowledges that this contract is an important part of the U.S. Foreign Assistance Program and agrees that his/her duties will be carried out in such a manner as to be fully commensurate with the responsibilities which this entails. Favorable relations between the Mission and the Cooperating Government as well as with the people of the cooperating country require that the contractor shall show respect for the conventions, customs, and institutions of the cooperating country and not become involved in any illegal political activities.</P>

              <P>(b) If the contractor's conduct is not in accordance with paragraph (a), the contract may be terminated pursuant to the General Provision of this contract, entitled “Termination.” If a TCN, the contractor recognizes <PRTPAGE P="131"/>the right of the U.S. Ambassador to direct his/her immediate removal from any country when, in the discretion of the Ambassador, the interests of the United States so require.</P>

              <P>(c) The Mission Director is the chief representative of USAID in the cooperating country. In this capacity, he/she is responsible for the total USAID Program in the cooperating country including certain administrative responsibilities set forth in this contract and for advising USAID regarding the performance of the work under the contract and its effect on the U.S. Foreign Assistance Program. The contractor will be responsible for performing his/her duties in accordance with the statement of duties called for by the contract. However, he/she shall be under the general policy guidance of the Mission Director and shall keep the Mission Director or his/her designated representative currently informed of the progress of the work under this contract.
              </P>
              <FP>12. Termination (NOV 1989)</FP>
              
              <P>[For use in both CCN and TCN Contracts].</P>
              <P>(This is an approved deviation to be used in place of the clause specified in FAR 52.249-12.)</P>
              <P>(a) The Government may terminate performance of work under this contract in whole or, from time to time, in part:</P>
              <P>(1) For cause, which may be effected immediately after establishing the facts warranting the termination, by giving written notice and a statement of reasons to the contractor in the event (i) the contractor commits a breach or violation of any obligations herein contained, (ii) a fraud was committed in obtaining this contract, or (iii) the contractor is guilty (as determined by USAID) of misconduct in the cooperating country. Upon such a termination, the contractor's right to compensation shall cease when the period specified in such notice expires or the last day on which the contractor performs services hereunder, whichever is earlier. No costs of any kind incurred by the contractor after the date such notice is delivered shall be reimbursed hereunder except the cost of return transportation (not including travel allowances), if approved by the Contracting Officer. If any costs relating to the period subsequent to such date have been paid by USAID, the contractor shall promptly refund to USAID any such prepayment as directed by the Contracting Officer.</P>
              <P>(2) For the convenience of USAID, by giving not less than 15 calender days advance written notice to the contractor. Upon such a termination, contractor's right to compensation shall cease when the period specified in such notice expires except that the contractor shall be entitled to any accrued, unused vacation leave, return transportation costs and travel allowances and transportation of unaccompanied baggage costs at the rates specified in the contract and subject to the limitations which apply to authorized travel status.</P>
              <P>(3) For the convenience of USAID, when the contractor is unable to complete performance of his/her services under the contract by reason of sickness or physical or emotional incapacity based upon a certification of such circumstances by a duly qualified doctor of medicine approved by the Mission. The contract shall be deemed terminated upon delivery to the contractor of a termination notice. Upon such a termination, the contractor shall not be entitled to compensation except to the extent of any accrued, unused vacation leave, but shall be entitled to return transportation, travel allowances, and unaccompanied baggage costs at rates specified in the contract and subject to the limitations which apply to authorized travel status.</P>

              <P>(b) The contractor, with the written consent of the Contracting Officer, may terminate this contract upon at least 15 days' written notice to the Contracting Officer.
              </P>
              <FP>13. Allowances (DEC 1986)</FP>
              
              <P>[For TCNs only].</P>

              <P>Allowances will be granted to the contractor and authorized dependents on the same basis as to direct-hire TCN employees at the post under the Post Compensation Plan. The allowances provided shall be paid to the contractor in the currency of the cooperating country or in accordance with the practice prevailing at the Mission.
              </P>
              <FP>14. Advance of Dollar Funds (DEC 1986)</FP>
              
              <P>[For TCNs only].</P>

              <P>If requested by the contractor and authorized in writing by the Contracting Officer, USAID will arrange for an advance of funds to defray the initial cost of travel, travel allowances, authorized precontract expenses, and shipment of personal property. The advance shall be granted on the same basis as to an USAID U.S.-citizen direct-hire employee in accordance with USAID Handbook 22, Chapter 4 or superseding ADS Chapters.
              </P>
              <FP>15. Conversion of U.S. Dollars To Local Currency (DEC 1986)</FP>
              
              <P>[For TCNs only].</P>

              <P>Upon arrival in the cooperating country, and from time to time as appropriate, the contractor shall consult with the Mission Director or his/her authorized representative who shall provide, in writing, the policy the contractor shall follow in the conversion of one currency to another currency. This may include, but not be limited to, the conversion of said currency through the cognizant U.S. Disbursing Officer, or Mission Controller, as appropriate.
              </P>
              <FP>16. Post of Assignment Privileges (DEC 1986)</FP>
              
              <P>[For TCNs only].<PRTPAGE P="132"/>
              </P>

              <P>Privileges such as the use of APO, PX's, commissaries and officer's clubs are established at posts abroad pursuant to agreements between the U.S. and host governments. These facilities are intended for and usually limited to U.S. citizen members of the official U.S. Mission including the Embassy, USAID, Peace Corps, U.S. Information Services and the Military. Normally, the agreements do not permit these facilities to be made available to non-U.S. citizens if they are under contract to the United States Government. However, in those cases where the facilities are open to TCN contractor personnel, they may be used.
              </P>
              <FP>17. Release Of Information (DEC 1986)</FP>
              
              <P>[For use in both CNN and TCN Contracts].</P>

              <P>All rights in data and reports shall become the property of the U.S. Government. All information gathered under this contract by the contractor and all reports and recommendations hereunder shall be treated as privileged information by the contractor and shall not, without the prior written approval of the Contracting Officer, be made available to any person, party, or government, other than USAID, except as otherwise expressly provided in this contract.
              </P>
              <FP>18. Notices (DEC 1986)</FP>
              
              <P>[For use in both CNN and TCN Contracts].</P>
              <P>Any notice, given by any of the parties hereunder, shall be sufficient only if in writing and delivered in person or sent by telegraph, telegram, registered, or regular mail as follows:</P>
              <P>(a) TO USAID: To the Mission Director of the Mission in the Cooperating Country with a copy to the appropriate Contracting Officer.</P>
              <P>(b) TO THE CONTRACTOR: At his/her post of duty while in the Cooperating Country and at the contractor's address shown on the Cover Page of this contract or to such other address as either of such parties shall designate by notice given as herein required.</P>

              <P>Notices hereunder shall be effective when delivered in accordance with this clause or on the effective date of the notice, whichever is later.
              </P>
              <FP>19. Incentive Awards (DEC 1996)</FP>
              
              <P>[For CNN and TCN Contracts].</P>
              <P>(a) All Cooperating Country National (CCN) Personal Services Contractors (PSCs) and Third Country Nationals (TCNs) of the Foreign Affairs Community are eligible for the Joint Embassy Incentive Awards Program. The program is administered by each post's (Embassy) Joint Country Awards Committee.</P>
              <P>(b) Meritorious Step Increases</P>

              <P>Meritorious step increases may be granted to CNNs and TCNs paid under the local compensation plan provided the granting of such increases is the general practice locally.
              </P>
              <FP>20. Training (JUL 1993)</FP>
              
              <P>[For CNN and TCN Contracts].</P>

              <P>The contractor may be provided job related training to develop growth potential, expand capabilities and increase knowledge and skills. The training may be funded under the personal services contract.
              </P>
              <FP>21. Medical Evacuation (MEDEVAC) Services (JUL 1993)</FP>
              
              <P>[For TCN Contracts Only].</P>
              <P>(a) The contractor agrees to obtain medevac service coverage for himself/herself and his/her authorized dependents while performing personal services abroad. Coverage shall be obtained pursuant to the terms of the contract between USAID and USAID's medevac service provider unless exempted in accordance with paragraph (b).</P>
              <P>(b) The following are exempted from the requirements in paragraph (a):</P>
              <P>(i) Contractors and their dependents with a health insurance program that includes sufficient medevac coverage as approved by the Contractor Officer.</P>
              <P>(ii) Contractors and their dependents located at Missions where the Mission Director makes a written determination to waive the requirement for such coverage based on findings that the quality of local medical services or other circumstances obviate the need for such coverage.</P>

              <P>(c) Information on the current medevac service provider, including application procedures, is available from the Contracting Officer.
              </P>
              <HD SOURCE="HD2">13. FAR Clauses</HD>

              <P>The following FAR Clauses are always to be used along with the General Provisions. They are required in full text.
              </P>
              <FP>1. Covenant Against Contingent Fees 52.203-5</FP>
              <FP>2. Disputes 52.233-1 (Alternate 1)</FP>
              <FP>3. Preference for U.S. Flag Air Carriers 52.247-63</FP>

              <P>The following FAR Clauses are to be used along with the General Provisions, and when appropriate, be incorporated in each personal services contract by reference:
              </P>
              <FP>1. Anti-Kickback Procedures52.203-7</FP>
              <FP>2. Limitation on Payments to Influence Certain Federal Transactions52.203-12</FP>
              <FP>3. Audit and Records—Negotiation52.215-2</FP>
              <FP>4. Privacy Act Notification552.224-1</FP>
              <FP>5. Privacy Act52.224-2</FP>
              <FP>6. Taxes—Foreign Cost Reimbursement Contracts52.229-8</FP>
              <FP>7. Interest52.232-17</FP>
              <FP>8. Limitation of Cost52.232-20</FP>
              <FP>9. Limitation of Funds52.232-22</FP>
              <FP>10. Assignment of Claims52.232-23</FP>
              <FP>11. Protection of Government Buildings, Equipment, and Vegetation52.237-2</FP>
              <FP>12. Notice of Intent to Disallow Costs52.242-1</FP>
              <FP>13. Inspection52.246-5<PRTPAGE P="133"/>
              </FP>
              <FP>14. Limitation of Liability—Services52.246-25</FP>
              <CITA>[62 FR 42929, Aug. 11, 1997]</CITA>
            </APPENDIX>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 8 (10-1-05 Edition)</LRH>
      <RRH>Department of Veterans Affairs</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="135"/>
          <HD SOURCE="HED">CHAPTER 8—DEPARTMENT OF VETERANS AFFAIRS</HD>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>801</PT>
          <SUBJECT>Veterans Affairs Acquisition Regulations System</SUBJECT>
          <PG>137</PG>
          <PT>802</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>153</PG>
          <PT>803</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>153</PG>
          <PT>804</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>155</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>805</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>156</PG>
          <PT>806</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>156</PG>
          <PT>807</PT>
          <SUBJECT>Acquisition planning</SUBJECT>
          <PG>159</PG>
          <PT>808</PT>
          <SUBJECT>Required sources of supplies and services</SUBJECT>
          <PG>160</PG>
          <PT>809</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>161</PG>
          <PT>811</PT>
          <SUBJECT>Describing agency needs</SUBJECT>
          <PG>165</PG>
          <PT>812</PT>
          <SUBJECT>Acquisition of commercial items</SUBJECT>
          <PG>170</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>813</PT>
          <SUBJECT>Simplified acquisition procedures</SUBJECT>
          <PG>172</PG>
          <PT>814</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>173</PG>
          <PT>815</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>179</PG>
          <PT>816</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>181</PG>
          <PT>817</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>182</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>819</PT>
          <SUBJECT>Small business and small disadvantaged business concerns</SUBJECT>
          <PG>184</PG>
          <PT>822</PT>
          <SUBJECT>Application of labor laws to Government acquisitions</SUBJECT>
          <PG>190</PG>
          <PT>824</PT>
          <SUBJECT>Protection of privacy and freedom of information</SUBJECT>
          <PG>191</PG>
          <PT>825</PT>
          <SUBJECT>Foreign acquisition</SUBJECT>
          <PG>191</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>828</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>195</PG>
          <PT>829</PT>
          <SUBJECT>Taxes</SUBJECT>
          <PG>197<PRTPAGE P="136"/>
          </PG>
          <PT>831</PT>
          <SUBJECT>Contract cost principles and procedures</SUBJECT>
          <PG>198</PG>
          <PT>832</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>201</PG>
          <PT>833</PT>
          <SUBJECT>Protests, disputes, appeals</SUBJECT>
          <PG>203</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>836</PT>
          <SUBJECT>Construction and architect-engineer contracts</SUBJECT>
          <PG>208</PG>
          <PT>837</PT>
          <SUBJECT>Service contracting</SUBJECT>
          <PG>214</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>842</PT>
          <SUBJECT>Contract administration</SUBJECT>
          <PG>218</PG>
          <PT>846</PT>
          <SUBJECT>Quality assurance</SUBJECT>
          <PG>220</PG>
          <PT>847</PT>
          <SUBJECT>Transportation</SUBJECT>
          <PG>223</PG>
          <PT>849</PT>
          <SUBJECT>Termination of contracts</SUBJECT>
          <PG>224</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>852</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>227</PG>
          <PT>853</PT>
          <SUBJECT>Forms</SUBJECT>
          <PG>254</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER I—DEPARTMENT SUPPLEMENTARY REGULATIONS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>870</PT>
          <SUBJECT>Special procurement controls</SUBJECT>
          <PG>257</PG>
          <PT>871</PT>
          <SUBJECT>Loan guaranty and vocational rehabilitation and counseling programs</SUBJECT>
          <PG>259</PG>
          <PT>873</PT>
          <SUBJECT>Simplified acquisition procedures for health-care resources</SUBJECT>
          <PG>264</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="137"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 801</EAR>
          <HD SOURCE="HED">PART 801—VETERANS AFFAIRS ACQUISITION REGULATIONS SYSTEM</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>801.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 801.1—Purpose, Authority, Issuance</HD>
              <SECTNO>801.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>801.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>801.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>801.104-70</SECTNO>
              <SUBJECT>Exclusions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 801.2—Administration</HD>
              <SECTNO>801.201-1</SECTNO>
              <SUBJECT>The two councils.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 801.3—Department Acquisition Regulations</HD>
              <SECTNO>801.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>801.301-70</SECTNO>
              <SUBJECT>Paperwork Reduction Act requirements.</SUBJECT>
              <SECTNO>801.303</SECTNO>
              <SUBJECT>Publication and codification.</SUBJECT>
              <SECTNO>801.304</SECTNO>
              <SUBJECT>Department control and compliance procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 801.4—Deviations From the FAR or VAAR</HD>
              <SECTNO>801.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <SECTNO>801.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 801.6—Career Development, Contracting Activity, and Responsibilities</HD>
              <SECTNO>801.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>801.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
              <SECTNO>801.602-2</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>801.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <SECTNO>801.602-70</SECTNO>
              <SUBJECT>Legal/technical review requirements to be met prior to contract execution.</SUBJECT>
              <SECTNO>801.602-71</SECTNO>
              <SUBJECT>Processing contracts for legal/technical review.</SUBJECT>
              <SECTNO>801.602-72</SECTNO>
              <SUBJECT>Documents to be submitted for legal review.</SUBJECT>
              <SECTNO>801.602-73</SECTNO>
              <SUBJECT>Certification by reviewing official.</SUBJECT>
              <SECTNO>801.602-74</SECTNO>
              <SUBJECT>Results of General Counsel's legal review.</SUBJECT>
              <SECTNO>801.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
              <SECTNO>801.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>801.603-70</SECTNO>
              <SUBJECT>Representatives of contracting officers.</SUBJECT>
              <SECTNO>801.603-71</SECTNO>
              <SUBJECT>Representatives of contracting officers; receipt of equipment, supplies, and nonpersonal services.</SUBJECT>
              <SECTNO>801.670</SECTNO>
              <SUBJECT>Special and limited delegation.</SUBJECT>
              <SECTNO>801.670-1</SECTNO>
              <SUBJECT>Issue of Government bills of lading—transportation of remains of deceased beneficiaries.</SUBJECT>
              <SECTNO>801.670-2</SECTNO>
              <SUBJECT>Issue of Government bills of lading—transportation of property.</SUBJECT>
              <SECTNO>801.670-3</SECTNO>
              <SUBJECT>Medical, dental, and ancillary service.</SUBJECT>
              <SECTNO>801.670-4</SECTNO>
              <SUBJECT>National Cemetery System.</SUBJECT>
              <SECTNO>801.670-5</SECTNO>
              <SUBJECT>Letters of agreement.</SUBJECT>
              <SECTNO>801.680</SECTNO>
              <SUBJECT>Contracting authority of the Inspector General.</SUBJECT>
              <SECTNO>801.690</SECTNO>
              <SUBJECT>VA Contracting Officer Certification Program.</SUBJECT>
              <SECTNO>801.690-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>801.690-2</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>801.690-3</SECTNO>
              <SUBJECT>Responsibility for administration of Contracting Officer Certification Program (COCP).</SUBJECT>
              <SECTNO>801.690-4</SECTNO>
              <SUBJECT>Selection.</SUBJECT>
              <SECTNO>801.690-5</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
              <SECTNO>801.690-6</SECTNO>
              <SUBJECT>Termination.</SUBJECT>
              <SECTNO>801.690-7</SECTNO>
              <SUBJECT>Interim appointment provisions.</SUBJECT>
              <SECTNO>801.690-8</SECTNO>
              <SUBJECT>Distribution of SF 1402, Certificate of Appointment.</SUBJECT>
              <SECTNO>801.690-9</SECTNO>
              <SUBJECT>Post appointment maintenance of certifications. [Reserved]</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12583, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>801.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part prescribes general policies and background regarding the Veterans Affairs Acquisition Regulation (VAAR). It includes information regarding the maintenance and administration of the VAAR and includes procedures for deviations from the VAAR and the Federal Acquisition Regulation (FAR).</P>
            <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31961, Aug. 3, 1989; 63 FR 69217, Dec. 16, 1998]</CITA>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 801.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>801.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>

              <P>(a) This subpart establishes Chapter 8, Veterans Affairs Acquisition Regulation, of Title 48—Federal Acquisition Regulation System, Code of Federal Regulations.<PRTPAGE P="138"/>
              </P>
              <P>(b) The VAAR must be utilized in conjunction with the FAR. The VAAR cannot be utilized by itself.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>The VAAR and any amendments thereto are issued by the Secretary of Veterans Affairs as provided by 38 U.S.C. 501 and the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486(c)).</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31961, Aug. 3, 1989. Redesignated and amended at 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>(a) The FAR and the VAAR apply to all acquisitions of the Department (including construction) made with appropriated funds and procurements made with Supply Fund monies (38 U.S.C. 8121).</P>
              <P>(b) The FAR and VAAR will apply to the special procurement programs authorized by Title 38 U.S. Code (Viz., Veterans Canteen Service and the Loan Guaranty programs), to the extent indicated in the VAAR.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 40062, Sept. 29, 1989. Redesignated and amended at 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.104-70</SECTNO>
              <SUBJECT>Exclusions.</SUBJECT>
              <P>The FAR and VAAR will not apply to purchases and contracts which utilize General Post Funds when such regulations would infringe upon a donor's prerogative to specify the exact item to be purchased and/or the source of supply.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984. Redesignated at 67 FR 49257, July 30, 2002]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 801.2—Administration</HD>
            <SECTION>
              <SECTNO>801.201-1</SECTNO>
              <SUBJECT>The two councils.</SUBJECT>
              <P>A designee of the Office of Acquisition and Materiel Management will represent the Department of Veterans Affairs on the CAA (Civilian Agency Acquisition) Council.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31962, Aug. 3, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 801.3—Department Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>801.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) VAAR, amendments and interim changes thereto will be issued by the Secretary of Veterans Affairs after necessary reviews by cognizant VA officials.</P>
              <P>(b) Implementing procedures, instructions and guidelines necessary to implement the VAAR and the FAR may be issued by the heads of contracting activities. Such issuances may include delegations of authority, review and approval for acquisition action up to the dollar level delegated to that contracting activity by this regulation as well as providing procedural guidance for users. Such issuances will be the minimum necessary to provide a logical implementation of FAR and VAAR requirements and will be internal to the facility, i.e., it will not specify reporting/recordkeeping requirements for the public (see 801.301-70(b)).</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 52 FR 28559, July 31, 1987; 54 FR 31962, Aug. 3, 1989; 61 FR 20491, May 7, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.301-70</SECTNO>
              <SUBJECT>Paperwork Reduction Act requirements.</SUBJECT>
              <P>(a) It is the policy of the Government to keep to the minimum the amount of recordkeeping and reporting required of the public. This objective applies to the Department of Veterans Affairs acquisition system.</P>
              <P>(b) Contractors will not be requested to maintain systems of records unless prescribed in FAR or VAAR.</P>
              <P>(1) A deviation to this prohibition may be processed in accordance with 801.403 in order to allow the contracting officer to require contractor reporting or recordkeeping beyond that prescribed in the FAR and VAAR. The request for deviation will clearly specify what information or recordkeeping will be required and why it is required. The request will be signed by the head of the contracting activity.</P>

              <P>(2) The Deputy Assistant Secretary for Acquisition and Materiel Management (95) will review the request and upon concurrence will likewise submit the request to Office of Management <PRTPAGE P="139"/>and Budget (OMB) for approval as prescribed by the Paperwork Reduction Act of 1980. If approved, the Deputy Assistant Secretary for Acquisition and Materiel Management will send the approval back to the requester with the OMB clearance number.</P>
              <P>(c) In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-511), the reporting or recordkeeping provisions that are included in this VAAR have been approved by OMB and have been given the following approval numbers:</P>
              <GPOTABLE CDEF="s25,10" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">48 CFR part or section where identified and described</CHED>
                  <CHED H="1">Current OMB control No.</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">809.504(d)</ENT>
                  <ENT>2900-0418</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">819.7003</ENT>
                  <ENT>2900-0445</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">836.606-71</ENT>
                  <ENT>2900-0422</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.207-70</ENT>
                  <ENT>2900-0590</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.219-70</ENT>
                  <ENT>2900-0584</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.211-70</ENT>
                  <ENT>2900-0587</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.211-74</ENT>
                  <ENT>2900-0588</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.211-75</ENT>
                  <ENT>2900-0586</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.211-77</ENT>
                  <ENT>2900-0585</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.214-70</ENT>
                  <ENT>2900-0593</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.236-72</ENT>
                  <ENT>2900-0422</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.236-79</ENT>
                  <ENT>2900-0422</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.236-80 (Alt. I)</ENT>
                  <ENT>2900-0422</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.236-82 through 852.236-85</ENT>
                  <ENT>2900-0422</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.236-88</ENT>
                  <ENT>2900-0422</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.236-89</ENT>
                  <ENT>2900-0622</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.236-91</ENT>
                  <ENT>2900-0623</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.237-7</ENT>
                  <ENT>2900-0590</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.237-71</ENT>
                  <ENT>2900-0590</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">852.270-03</ENT>
                  <ENT>2900-0589</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">871.201-2</ENT>
                  <ENT>2900-0416</ENT>
                </ROW>
              </GPOTABLE>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 50 FR 790, Jan. 7, 1985; 54 FR 31962, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989; 63 FR 17335, Apr. 9, 1998; 63 FR 69217, Dec. 16, 1998; 67 FR 49258, July 30, 2002; 68 FR 3467, Jan. 24, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.303</SECTNO>
              <SUBJECT>Publication and codification.</SUBJECT>

              <P>The VAAR is codified as chapter 8 of title 48, Code of Federal Regulations. Codified changes to the VAAR will be published in the <E T="04">Federal Register.</E> The Deputy Assistant Secretary for Acquisition and Materiel Management arranges distribution of the issues to VA contracting activities and the Office of Acquisition and Materiel Management should be notified of changes to the distribution list.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31962, Aug. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.304</SECTNO>
              <SUBJECT>Department control and compliance procedures.</SUBJECT>
              <P>Office of Acquisition and Materiel Management is responsible for ensuring that the VAAR and amendments thereto are developed as prescribed by the FAR.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31962, Aug. 3, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 801.4—Deviations From the FAR or VAAR</HD>
            <SECTION>
              <SECTNO>801.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <P>(a) When contracting officers consider it necessary to deviate from the policies set forth in the FAR or VAAR, a request for authority to do so will be submitted to the Deputy Assistant Secretary for Acquisition and Materiel Management (93). The request will clearly set forth the circumstances warranting the deviation and nature of the deviation.</P>
              <P>(b) When a deviation in an individual case is authorized by the Deputy Assistant Secretary for Acquisition and Materiel Management, the authorization will be filed in the purchase or contract file, whichever is appropriate.</P>
              <CITA>[54 FR 31962, Aug. 3, 1989, as amended at 61 FR 20491, May 7, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <P>The Deputy Assistant Secretary for Acquisition and Materiel Management is responsible for determining the need for class deviations. If determined necessary, the Deputy Assistant Secretary for Acquisition and Materiel Management will request deviation authority from the Deputy Secretary through the Senior Procurement Executive as well as complying with the provisions in FAR 1.404.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 52 FR 49016, Dec. 29, 1987; 54 FR 31962, Aug. 3, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 801.6—Career Development, Contracting Activity, and Responsibilities</HD>
            <SECTION>
              <SECTNO>801.601</SECTNO>
              <SUBJECT>General.</SUBJECT>

              <P>(a) This subpart establishes general contracting officer authority and responsibility. However, other provisions <PRTPAGE P="140"/>in both the FAR and the VAAR contain some contracting officer limitations and it is incumbent upon each contracting officer to be aware of those limitations.</P>
              <P>(b) Personnel, other than those designated in 801.602, may determine quality, quantity and delivery requirements for items or services to be purchased. However, under no circumstances will individuals who have not been delegated contracting authority commit the Government for purchases of supplies, equipment or services. Individuals making such commitments may be held financially liable for the amount of the obligation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>801.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
              <P>(a) Except as otherwise provided by law, VA regulations, VAAR and FAR, the authority vested in the Secretary to do the following is delegated to the Senior Procurement Executive and is further delegated to the Procurement Executive:</P>
              <P>(1) Execute, award, and administer contracts, purchase orders, and other agreements (including interagency agreements) for the expenditure of funds involved in the acquisition of personal property, service (including architect-engineer services), construction, issuing Government bills of lading, and for the sale of personal property, leases, sales agreements and other transactions;</P>
              <P>(2) Prescribe and publish acquisition policies and procedures;</P>
              <P>(3) Establish clear lines of contracting authority;</P>
              <P>(4) Manage and enhance career development of the procurement work force;</P>
              <P>(5) Examine, in coordination with the Office of Federal Procurement Policy, the procurement system to determine specific areas where Governmentwide performance standards should be established and applied, and to participate in the development of Governmentwide procurement policies, regulations and standards; and,</P>
              <P>(6) Oversee the competition advocate program.</P>
              <P>(b) Further delegation to execute, award, and administer contracts, purchase orders and other agreements will be made in accordance with the Contracting Officer Certification Program as prescribed in (VAAR) 48 CFR 801.670 and 801.690.</P>
              <CITA>[61 FR 1526, Jan. 22, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.602-2</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>(a) In the administration of a contract, many problems can and do arise that make the advice and assistance of the General Counsel either desirable or necessary. The final decision as to the action to be taken, however, must be made by the contracting officer in each instance. To reduce to the absolute minimum the possibility of litigation resulting from his/her decision, the contracting officer shall, except as provided in paragraph (c) of this section, submit the problem through channels in sufficient detail to the General Counsel for advice or assistance.</P>
              <P>(b) While legal review and concurrence of the General Counsel is required prior to a default termination, in some cases where a quick response is necessary, this review can be expedited by express mailing or telefaxing the default letter and related documents which are required to make an evaluation directly to the General Counsel (025). The default termination letter should contain, at a minimum, the following:</P>
              <P>(1) The proposed termination (FAR 49.102);</P>
              <P>(2) An explanation of what necessitated the default, including the reasons why the contracting officer considers the contractor to be in default;</P>
              <P>(3) A statement that the factors set forth in FAR 49.402-3(f) have been fully considered; and</P>
              <P>(4) Final decision language and appeal rights.</P>
              <P>(c) Contracts containing a mutual termination clause may be terminated without reference to the General Counsel.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31962, Aug. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>

              <P>(a) Contracting officers shall not ratify contractual commitments made by other VA personnel without prior approval as prescribed below. Such unauthorized commitments include commitments made by other contracting <PRTPAGE P="141"/>officers which exceed their respective contracting authority as well as unauthorized commitments made by individuals lacking contracting authority.</P>
              <P>(1) At field stations, for supplies, services and construction, the approving authority is the director of the field facility concerned.</P>
              <P>(2) For central office contracting officers, for supplies, services, and construction, the approving authorities are the heads of the administrations and directors of the staff offices concerned, and the Deputy Assistant Secretary for Acquisition and Materiel Management.</P>
              <P>(3) For acquisitions of leasehold interest in real property the approving authority is:</P>
              <P>(i) The Chief Facilities Management Officer, Office of Facilities Management, for 1-5,000 square feet, and for 1-100 parking spaces costing less than $50,000 per annum.</P>
              <P>(ii) The Assistant Secretary for Management for 5,001-20,000 square feet, and for parking spaces exceeding 100 which cost less than $100,000 per annum.</P>
              <P>(iii) The Deputy Secretary for 20,001 square feet and above, and for parking spaces exceeding 100 which cost more than $100,000 per annum.</P>
              <P>(4) This approval authority shall not be redelegated.</P>
              <P>(b) Requests received by contracting officers for ratification of commitments made by personnel lacking contracting authority shall be processed as follows:</P>
              <P>(1) The individual who made the unauthorized contractual commitment shall furnish the contracting officer all records and documents concerning the commitment and a complete written statement of facts, including, but not limited to, a statement as to why the procurement office was not utilized, why the proposed contractor was selected and a list of other sources considered, description of work to be performed or products to be furnished, estimated or agreed contract price, citation of appropriation available, and a statement of whether the contractor has commenced performance.</P>
              <P>(2) The contracting officer will review the file and forward it to the approving authority specified in paragraph (a) of this section with any comments or information which should be considered in evaluation of the request for ratification. If legal review is desirable, the approving authority will coordinate the request for ratification with the Office of the General Counsel or the District Counsel, as appropriate.</P>
              <P>(3) If ratification is authorized, the file will be returned to the contracting officer for issuance of a purchase order or contract, as appropriate.</P>
              <P>(c) In the case of otherwise proper contract awards made by contracting officers in excess of the limits of their delegated authority, the need for ratification will be brought to the attention of the head of the contracting activity. That individual will take such action as may be indicated to preclude future instances of such awards.</P>
              <CITA>[54 FR 31962, Aug. 3, 1989, as amended at 61 FR 11585, Mar. 21, 1996; 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.602-70</SECTNO>
              <SUBJECT>Legal/technical review requirements to be met prior to contract execution.</SUBJECT>
              <P>(a) The following categories of proposed contracts and agreements will be reviewed and concurred in by the Office of Acquisition and Materiel Management prior to contract execution. (Additionally, the Office of Acquisition and Materiel Management may, when considered necessary, request preaward technical review regardless of dollar value). Office of General Counsel legal reviews of such proposed contracts and agreements will be performed when requested and determined necessary by the Office of Acquisition and Materiel Management. (Excluded from this requirement is the National Acquisition Center which will perform its own technical reviews at the thresholds herein prescribed. The National Acquisition Center will receive preaward legal review of solicitation from the General Counsel staff located in Hines, Illinois).</P>

              <P>(1) All negotiated and sealed bid contracts (except as specified in (a)(2) and (a)(3)) exceeding $250,000 in either appropriated or nonappropriated funds. This includes indefinite quantity contracts when expenditures of $250,000 or more can reasonably be expected, and multiyear contracts in which $250,000 <PRTPAGE P="142"/>or more will be expended over the life of the contract. (Note also that multiyear contracts also require review any time the cancellation ceiling exceeds 20 percent of the contract amount (see 817.1)).</P>
              <P>(2) All fixed price, sealed bid construction contracts involving $500,000 or more in either appropriated or unappropriated funds.</P>
              <P>(3) All 8(a) contracts exceeding $500,000.</P>
              <P>(4) All proposed agreements and contracts coming within the purview of one or more of the following:</P>
              <P>(i) Contracts for insurance.</P>
              <P>(ii) Utility service agreements involving $50,000 or more.</P>
              <P>(iii) Contracts for consulting services (see subpart 837.2) and management and professional services (see 837.271).</P>
              <P>(iv) Contracts for research or research and development involving $50,000 or more.</P>
              <P>(v) Automatic data processing equipment, when purchased from other than a Federal Supply Schedule contract, involving $50,000 or more.</P>
              <P>(vi) Competitive contracts exceeding $1.5 million and noncompetitive contracts exceeding $500,000 for the acquisition of scarce medical specialist services acquired under the authority of 38 U.S.C. 7409.</P>
              <P>(vii) Competitive contracts exceeding $1.5 million and noncompetitive contracts exceeding $500,000 for the acquisition of health-care resources acquired under the authority of 38 U.S.C. 8151-8153.</P>
              <P>(viii) Agreements with other Federal agencies regardless of dollar value. Those agreements of $5,000 or more will be forwarded to General Counsel for legal review. VA/DoD Sharing Agreements executed under the authority of Public Law 97-174 (38 U.S.C. 8111) and sections 201-206 of Public Law 102-585 are exempt from review by the Office of Acquisition and Materiel Management; however, they must be approved in accordance with VA Manual M-1, Part I, Chapter 1, Section XI.</P>
              <P>(ix) Contracts for ADP software exceeding $10,000.</P>
              <P>(x) ADP software licensing agreements for ADP software exceeding $10,000 (all software licensing agreements require technical review).</P>
              <P>(5) All proposed letter contracts and ensuing formal contracts involving expenditures of $5,000 or more.</P>
              <P>(6) Any proposed agreement that is unique, novel or unusual (including all consignment agreements, regardless of anticipated dollar value—except those established and provided in Federal Supply Schedule Contracts).</P>
              <P>(7) Step One of two-step sealed bid procurements when the anticipated value is more than $200,000.</P>
              <P>(b) The following categories of proposed contractual actions require the concurrence of the General Counsel:</P>
              <P>(1) Contract modifications, terminations (including final decision (cure) letters), disputes and claims in excess of $25,000 ($50,000 for contracts awarded by the Office of Facilities Management).</P>
              <P>(2) Contract modifications granting a time extension of more than 20 days.</P>
              <P>(3) Assignment of claims.</P>
              <P>(4) Proposed awards to other than the low evaluated bidder/offeror.</P>
              <P>(c) In addition to the requirements of paragraphs (a) and (b) of this section, the following require review and concurrence of the General Counsel:</P>
              <P>(1) Changes or revisions to all contract clauses.</P>
              <P>(2) Changes or revisions to prescribed VA contract forms.</P>
              <P>(d) Utility construction and connection contracts which are developed in the Office of Facilities Management and cost $50,000 or more will be be reviewed by General Counsel and the Chief Facilities Management Officer, Office of Facilities Management.</P>
              <P>(e) When legal assistance is requested by any Central Office contracting activity, the contracting officer will brief the General Counsel regarding the facts and points of issue to facilitate prompt resolution.</P>

              <P>(f) With regard to solicitations and contracts awarded and administered by the Central Office contracting activities, the General Counsel will be requested to participate in conferences where it is expected that legal problems or contract provisions will be considered, and in meetings attended by legal representatives of private parties or other Government agencies. Assigned procurement counsel will be requested to participate in the drafting <PRTPAGE P="143"/>of correspondence involving controversial or sensitive contractual matters of a significant nature.</P>
              <P>(g) All protests against award will be reviewed by General Counsel in accordance with the provisions specified in 48 CFR 833.103.</P>
              <P>(h) Excluded from these legal review requirements are:</P>
              <P>(1) Agreements, licenses, easements, or deeds dealing with management, sale, or lease of properties acquired by VA as a result of liquidation of guaranteed, direct, acquired or vendee loans.</P>
              <P>(2) Orders or contracts for procurement of leased telecommunications systems, installation of and changes to telephone PBX systems at individual Department of Veterans Affairs locations or orders issued under GSA area-wide contracts with the American Telephone and Telegraph Company and local telephone companies.</P>
              <P>(i) If a change order (unilateral agreement) is essential for the logical process of the contract, the Office of Acquisition and Materiel Management, Acquisition Review Division shall be called prior to issuing the document. (This requirement does not apply to change orders issued by the Office of Facilities Management.)</P>
              <P>(j) The following apparent low responsive and responsible bids/offers with the respective solicitations will be submitted for the review of the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Review Division, prior to award:</P>
              <P>(1) Negotiated contract actions in the Office of Facilities Management which exceed $2 million.</P>
              <P>(2) Bids/offers for construction contracts to be awarded by VHA facilities which exceed $5 million.</P>
              <P>(3) Bids/offers for service contracts, including A/E, which exceed $2 million, and</P>
              <P>(4) Bids/offers for supply contracts which exceed $5 million in total evaluated cost (excluding FSS contracts awarded by VA National Acquisition Center).</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985; 51 FR 23066, June 25, 1986; 52 FR 28559, July 31, 1987; 52 FR 49016, Dec. 29, 1987; 54 FR 31963, Aug. 3, 1989; 55 FR 31391, Aug. 2, 1990; 58 FR 31914, June 7, 1993; 61 FR 11585, Mar. 21, 1996; 68 FR 3468, Jan. 24, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.602-71</SECTNO>
              <SUBJECT>Processing contracts for legal/technical review.</SUBJECT>
              <P>(a) All competitively awarded solicitations requiring legal and/or technical review will have such reviews completed prior to opening of bids or proposals. The contracting officer will fully evaluate technical and legal review comments prior to opening bids or proposals. Potential bidders/offerors will be advised of changes to the solicitation by amendment and afforded sufficient time for evaluation prior to opening of bids or offers.</P>
              <P>(b) <E T="03">Veterans Health Administration (VHA) Field Facilities, VA National Acquisition Center.</E> (1) Proposed contracts or agreements specified in 801.602-70(a) (1), (2), (3), (4) (iii) through (v), (5), (6) and (7) will be forwarded by the contracting officer directly to the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Review Division. The Deputy Assistant Secretary for Acquisition and Materiel Management will review the submissions and when applicable, forward them directly to the General Counsel (025).</P>
              <P>(2) Proposed contracts and agreements for scarce medical specialist services or for the mutual use or exchange of use of health-care resources, as specified in 801.602-70(a)(4)(vi) and (a)(4)(vii), will be forwarded to Central Office in accordance with Veterans Health Administration directives and VA Manual M-1, Part 1, Chapter 34, for review and submission to the Office of the General Counsel (025).</P>
              <P>(3) Proposed interagency agreements specified in 801.602-70(a)(4)(viii) will be forwarded by the approving official to the Deputy Assistant Secretary for Acquisition and Materiel Management, Program Development and Evaluation Division. The Deputy Assistant Secretary for Acquisition and Materiel Management will review the submissions and forward them directly to the General Counsel (025).</P>

              <P>(4) Proposed facility-level modification specified in 801.607-70(b) will be forwarded by the contracting officer to General Counsel (025), through the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Review Division.<PRTPAGE P="144"/>
              </P>
              <P>(5) Proposed final decisions or settlement agreements specified in 801.602-70(b) will be forwarded by the contracting officer directly to the Deputy Assistant Secretary for Acquisition and Materiel Management. The Deputy Assistant Secretary for Acquisition and Materiel Management will review the submissions and forward them to the General Counsel (025).</P>
              <P>(6) Proposed revisions to contract clauses specified in 801.602-70(c) will be forwarded by the contracting officer directly to the Deputy Assistant Secretary for Acquisition and Materiel Management. If concurred in, the Deputy Assistant Secretary for Acquisition and Materiel Management will forward them directly to the General Counsel.</P>
              <P>(c) <E T="03">Veterans Benefits Administration field facilities.</E> (1) All proposed State reimbursement contracts and Guidance Center and Vocational Rehabilitation contracts which are anticipated to ultimately involve the expenditure of $100,000 or more, will be forwarded by the contracting officer directly to the Director, Vocational Rehabilitation and Education Service, for review and approval. The Director, Vocational Rehabilitation and Education Service will review the submissions and forward them to the General Counsel.</P>
              <P>(2) Any other proposed agreement or contract specified in 801.602-70(a) will be forwarded by the facility Director to the Chief Benefits Director for Field Operations (201) for coordination with Director(s) of the concerned service(s) and submission to the General Counsel.</P>
              <P>(3) Any other element of contracting falling within 801.602-70 (b) and (c) will be processed in accordance with paragraph (b)(2) of this section.</P>
              <P>(d) <E T="03">Central office.</E> Any element of contracting prescribed for legal review in 801.602-70 originating in central office, will be submitted for legal review by the contracting officer, or approving official in the case of agreements with other Government agencies through the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Review Division. (Except that in the case of Office of Facilities Management contracts, a selected sample of contracts will be processed through the Office of Acquisition and Materiel Management, Acquisition Review Division. All other Office of Facilities Management contract actions identified in 801.602-70 will be sumitted for legal review in accordance with Office of Facilities Management procedures).</P>
              <P>(e) All bids/offers required to be reviewed prior to award in accordance with 801.602-70(j), will be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Review Division, with a cover letter identifying:</P>
              <P>(1) The date in which the award is anticipated;</P>
              <P>(2) Responsibility determination results or efforts ongoing;</P>
              <P>(3) Determinations of price reasonableness;</P>
              <P>(4) Explanation of proposed award to other than low responsible bidder/offeror.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 52 FR 28559, July 31, 1987; 52 FR 49017, Dec. 29, 1987; 54 FR 31963, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989; 61 FR 11585, Mar. 21, 1996; 68 FR 3468, Jan. 24, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.602-72</SECTNO>
              <SUBJECT>Documents to be submitted for legal review.</SUBJECT>
              <P>The following documents are to be submitted for legal review:</P>
              <P>(a) For proposed construction contracts, one copy of all solicitation documents, excluding drawings. These documents will be submitted no later than at the time they are furnished to prospective bidders. Where feasible, these documents should be submitted for review prior to the time they are furnished to prospective bidders.</P>
              <P>(b) For proposed contracts and agreements for scarce medical specialist services or for the mutual use or exchange of use of health-care resources, as specified in 801.602-70(a)(4)(vi) and (a)(4)(vii), the documents referred to in VA Manual M-1, Part 1, Chapter 34.</P>

              <P>(c) For all other proposed contracts and agreements, a copy of the documents to be used in the solicitation and/or award of contract, including any other documents which support the proposed procurement action, e.g., justification and approval in the case of noncompetitive procurement. Solicitation documents will be submitted no later than at the time they are mailed <PRTPAGE P="145"/>to prospective bidders. Where feasible, these documents should be submitted for review prior to the time they are mailed to prospective bidders.</P>
              <P>(d) For contract modifications described in 801.602-70(b) and 801.602-71(b)(4) and (d):</P>
              <P>(1) A draft of the proposed modification. This shall be prepared on an SF (Standard Form) 30, Amendment of Solicitation/Modification of Contract, and shall specify the exact language to be used. Changes in work, time and cost must be specifically described;</P>
              <P>(2) A statement describing the need for the changed work. This should also be accompanied by any backup documentation, including a copy of the general statement of work in the original contract plus any existing contract language which will be modified. Include a statement that the work covered by the proposed modification is or is not within the original scope of the contract, setting forth fully the facts considered in reaching the conclusion;</P>
              <P>(3) A statement containing an analysis on what necessitated the modification, e.g., design error, technical change, medical center requirements;</P>
              <P>(4) The contracting officer's technical representative (COTR) technical evaluation of the proposed change;</P>
              <P>(5) For construction modifications and, where applicable for architect-engineer (A/E) modifications, a copy of drawings which the COTR has marked up to delineate the proposed changed work. If appropriate, include a copy of the pertinent technical specifications. Whenever a proposed contract modification involves numerous changes to drawings and specifications for a Central Office project, the drawings and specifications will be available for review in the office of the Project Director;</P>
              <P>(6) Costing information including:</P>
              <P>(i) The contractor's cost proposal in the format required by the contract.</P>
              <P>(ii) The COTR's independent cost evaluation.</P>
              <P>(iii) The A/E's independent cost evaluation.</P>
              <P>(iv) Contracting officer's Price Negotiation Memorandum (PNM) in accordance with VAAR 815.808. For Office of Facilities Management contracts, the PNM may be submitted by either the contracting officer or COTR.</P>
              <P>(v) For A/E contracts, a listing of the fees awarded in the original contract and previous modifications.</P>
              <P>(vi) For A/E working drawing contracts, a statement regarding the actual or estimated cost of the original construction and any estimated change to the overall project cost as a result of the proposed modification.</P>
              <P>(vii) Any other relevant costing information, such as independent market research, which was or will be used as negotiation criteria.</P>
              <P>(7) A concurrence on the memorandum from the appropriate office indicating that funds are available or a statement concerning the actions which must be taken to secure the required funds; and</P>
              <P>(8) The names and telephone numbers of the contracting officer and COTR.</P>
              <P>(e) For bids/offers submitted as required by 801.602-70(j), the following documents will be provided:</P>
              <P>(1) Request for contract action, including justification of need.</P>
              <P>(2) The solicitation.</P>
              <P>(3) Abstracts of bids/offers.</P>
              <P>(4) Price negotiations memorandum, if applicable.</P>
              <P>(5) Justification and approval (see FAR 6.303), if applicable.</P>
              <P>(6) Documents relevant to determination of contractor's responsibility.</P>
              <P>(7) Documents relevant to price reasonableness.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 51 FR 23066, June 25, 1986; 52 FR 28559, July 31, 1987; 52 FR 49017, Dec. 29, 1987; 54 FR 31964, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989; 61 FR 11586, Mar. 21, 1996; 61 FR 20491, May 7, 1996; 68 FR 3468, Jan. 24, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.602-73</SECTNO>
              <SUBJECT>Certification by reviewing official.</SUBJECT>
              <P>In submitting proposed agreements or contracts received from field stations to the General Counsel, the Central Office reviewing officials will state on the transmittal memorandum or within the file that the proposal conforms to the Federal Acquisition Regulations and Department of Veterans Affairs Acquisition Regulations to the best of their knowledge.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 61 FR 11586, Mar. 21, 1996]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="146"/>
              <SECTNO>801.602-74</SECTNO>
              <SUBJECT>Results of General Counsel's legal review.</SUBJECT>
              <P>(a) Upon completion of the review, the General Counsel will advise the appropriate Central Office activity or contracting officers as to whether the proposal was approved as submitted or provide them with the recommended changes. The appropriate Central Office activity will advise the contracting officer as to whether: (1) The submission was approved as is, or (2) provide a copy of the changes required. Where changes are required, the contracting officer will take immediate action to amend the solicitation document.</P>
              <P>(b) The General Counsel's review will be completed as expeditiously as possible, with due regard to those procurement actions where circumstances dictate an unusually short period for completing procurement action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>801.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>801.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The policy and procedures for the selection, appointment, and termination of appointment of contracting officers are established in VAAR 801.690, The Contracting Officer Certification Program, and as otherwise provided in VAAR 801.670 and its subsections.</P>
              <CITA>[52 FR 24010, June 26, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.603-70</SECTNO>
              <SUBJECT>Representatives of contracting officers.</SUBJECT>
              <P>(a) In carrying out the responsibilities of FAR 1.602-2, the contracting officer may designate another Government contracting officer, or other Government employees, or another contractor:</P>
              <P>(1) To furnish technical guidance and advice or generally supervise the work performed under the contract. Such designations will be in writing and will define the scope and limitation of the representative's authority; and, will be addressed to the designee with a copy to be forwarded to the contractor except as indicated in 801.603-71. Except as provided in paragraph (c) of this section representatives will not be authorized to make any commitments or changes which will affect the price, quantity, quality or delivery terms. (All changes to a contract must be authorized by a contracting officer acting within the scope of his/her authority.)</P>
              <P>(2) To take actions authorized in the contract, such as issue delivery orders, reject unsatisfactory items, order replacement of such items (materials or services) and, when necessary, declare contractor in default on specific delivery orders. Except for blood, this authority will be delegated only to other Government contracting officers under centralized indefinite delivery type contracts and the contract will so state. Centralized contracts for blood will provide that contracting officers at ordering offices are authorized to designate representatives and alternate representatives to place delivery orders subject to the same restrictions stated in paragraph (a)(3) of this section.</P>
              <P>(3) To place oral or other informal delivery orders for items such as, but not limited to, bread, milk, and blood against local indefinite delivery type contracts on which blanket purchase arrangements have been established and funds have been obligated. The designation of representatives and alternates will be in writing and will define the scope and limitations of the representative's authority, and will be addressed to the employee(s) with a copy to the contractor. Such designations will be made only by the prime contracting officer and are not redelegable.</P>
              <P>(b) In the administration of research and development contracts, any representative appointed pursuant to this section must be acceptable both to the contracting officer and the administration head or staff office director concerned. When it is necessary to designate a representative under this paragraph (b), the clause in 852.270-1 will be observed.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 52 FR 24010, June 26, 1987; 54 FR 40062, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.603-71</SECTNO>
              <SUBJECT>Representatives of contracting officers; receipt of equipment, supplies, and nonpersonal services.</SUBJECT>

              <P>(a) Except as provided in paragraphs (b), (c) and (d) of this section, any contracting officer may, without prior notification to the contractor or vendor, <PRTPAGE P="147"/>designate the Chief, Storage and Distribution Section, or other competent personnel, to represent him/her in receiving and inspecting supplies, equipment and services at his/her facility. Duties such as, but not limited to, the following will be performed by these designees:</P>
              <P>(1) The inspection and certification as to compliance with the quality and quantity requirements of the purchase order or contract; and</P>
              <P>(2) Inspection of supplies and equipment for condition and quantity and the acceptance of supplies, equipment, and services, based on quality inspection made by other authorized representatives.</P>
              <P>(b) The Director, Library Services, VA Central Office, and the Chief, Library Service, at a field facility, are designated the representatives of the contracting officer to receive, inspect and accept library books, newspapers, and periodicals. Purchase documents will specify that delivery will be made direct to the library.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31964, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989; 61 FR 11586, Mar. 21, 1996; 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.670</SECTNO>
              <SUBJECT>Special and limited delegation.</SUBJECT>
              <P>The authority vested in the Secretary to execute, award and administer contracts, purchase orders and other agreements for the expenditure of funds involved in the acquisition of the specific services set forth in this 801.670 and its subsections, is hereby delegated to the Senior Procurement Executive for further delegation to those employees appointed or designated to the positions specified in these subsections.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31964, Aug. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.670-1</SECTNO>
              <SUBJECT>Issue of Government bills of lading—transportation of remains of deceased beneficiaries.</SUBJECT>
              <P>The Chief, Medical Administration Service (MAS), or the person designated by the medical center director to perform MAS functions, at a Department of Veterans Affairs medical center, is delegated authority to issue and to sign as “Issuing Officer,” Government bills of lading for the shipment of the remains of beneficiaries expiring in a Department of Veterans Affairs medical center.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984. Redesignated at 52 FR 24010, June 26, 1987, as amended at 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.670-2</SECTNO>
              <SUBJECT>Issue of Government bills of lading—transportation of property.</SUBJECT>
              <P>(a) Authority to issue and sign Government bills of lading for the transportation of supplies, material, and equipment is delegated to the following:</P>
              <P>(1) Chief, Warehouse Section, VA Forms and Publications Depot.</P>
              <P>(2) Traffic Manager, Office of Acquisition and Materiel Management, Central Office.</P>
              <P>(b) The employees named in paragraph (a) of this section may designate one or more of their subordinates as a contracting officer; and, authority is hereby delegated to such subordinates to issue and sign Government bills of lading for the transportation of supplies, material, and equipment. Designations will be in writing and specifically set forth the scope and limitation of the designee's authority.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984. Redesignated at 52 FR 24010, June 26, 1987, and amended at 54 FR 31964, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989; 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.670-3</SECTNO>
              <SUBJECT>Medical, dental, and ancillary service.</SUBJECT>
              <P>(a) The Chief of Staff, the physician assigned the responsibility for the ambulatory care function, and Chief, Medical Administration Service (MAS), or the person designated by the medical center director to perform MAS funtions, at a Department of Veterans Affairs facility are delegated authority to execute authorizations for medical, dental, and ancillary services under $10,000 per authorization when such services are not available from existing contracts or agreements. Forms specified in part 853 of this chapter will be used for this purpose and when ordering such services from existing contracts.</P>

              <P>(b) The contracting officers named in paragraph (a) of this section may designate one or more of their subordinates to execute the forms for purposes stated in paragraph (a) of this section. <PRTPAGE P="148"/>Designations will be in writing and will specifically set forth the scope and limitations of the designee's authority.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985. Redesignated at 52 FR 24010, June 26, 1987, and amended at 54 FR 31964, Aug. 3, 1989; 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.670-4</SECTNO>
              <SUBJECT>National Cemetery System.</SUBJECT>
              <P>Authority for the National Cemetery System to procure supplies, equipment and nonpersonal services is delegated as follows:</P>
              <P>(a) Authority to issue and sign Government bills of lading for the transportation of headstones and markers is further delegated to:</P>
              <P>(1) Chief, Centralized Contracting Division, Office of Operations Support.</P>
              <P>(2) Freight Rate Specialist, Office of Operations Support.</P>
              <P>(b) Authority to procure, in emergency situations when the servicing supply organization cannot be utilized, and in accordance with the provisions of FAR Part 13, supplies, equipment, and nonpersonal services (including construction) required for the operation of national cemeteries is delegated to:</P>
              <P>(1) Director, National Cemetery System, and Director, Office of Field Operations, National Cemetery System.</P>
              <P>(2) Director, National Cemetery Area Office.</P>
              <P>(c) Authority to procure items and nonpersonal services up to $300 per transaction for the operation of national cemeteries is delegated to the Director of each national cemetery. The authority is to be used only in emergency situations when the servicing supply organization cannot be utilized, and the method of purchase is limited to the use of SF 44, Purchase Order—Invoice—Voucher, (FAR 13.306).</P>
              <CITA>[49 FR 12583, Mar. 29, 1984. Redesignated and amended at 52 FR 24010, June 26, 1987; 54 FR 31964, Aug. 3, 1989; 63 FR 69217, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.670-5</SECTNO>
              <SUBJECT>Letters of agreement.</SUBJECT>
              <P>(a) Authority to execute, award, and administer letters of agreement (subject to the limitation prescribed in 837.2) is delegated to the following:</P>
              <P>(1) General Counsel.</P>
              <P>(2) Deputy Assistant Secretary for Human Resources Management.</P>
              <P>(3) Under Secretary for Health.</P>
              <P>(4) Under Secretary for Benefits.</P>
              <P>(5) Under Secretary for Memorial Affairs.</P>
              <P>(6) Deputy Assistant Secretary for Acquisition and Materiel Management</P>
              <P>(7) Inspector General.</P>
              <P>(8) Directors, Regional Medical Education Centers (limited to obtaining instructors and training pursuant to section 7471 of Title 38, United States Code).</P>
              <P>(9) Directors, Domiciliary and Medical Centers and Research and Development Service Directors authorized to sign for the Chief Research and Development Officer (limited to obtaining peer review of research (see 837.2)).</P>
              <P>(b) The contracting officers named in paragraphs (a) (1) through (7) of this section may designate one or more subordinates, and authority to execute letters of agreement is hereby delegated to such subordinates. Such subordinates will be no more than one organizational level below the contracting officers designated in paragraph (a) of this section, except that the Under Secretary for Health may designate the Veterans Integrated Service Network Directors. All such designations will be in writing, will specifically state the scope and limitations of the designees' contractual authority, and will also specifically prohibit further delegation by the designees. Copies of the delegation will be submitted to the Office of Acqusition and Materiel Management, Acquisition Administration Team.</P>
              <P>(c) Copies of all letters of agreement issued by the designees identified in paragraphs (a) and (b) of this section will be forwarded to the servicing contracting activity in order that the procurement action may be entered into the Federal Procurement Data System.</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985. Redesignated at 52 FR 24010, June 26, 1987, and further amended at 54 FR 31964, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989; 61 FR 11586, Mar. 21, 1996; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.680</SECTNO>
              <SUBJECT>Contracting authority of the Inspector General.</SUBJECT>

              <P>(a) As provided by section 6(a) of Pub. L. 95-452 (October 12, 1978), the Inspector General is authorized to enter into contracts and other arrangements for audits, studies, analyses, and other <PRTPAGE P="149"/>services with public agencies and with private persons, and to make such payments as may be necessary to carry out the provisions of the Act, to the extent and in such amounts as may be provided in advance by appropriations Acts.</P>
              <P>(b) In exercising the special authority provided in paragraph (a) of this section, the Inspector General may request the assistance of the servicing Acquisition and Materiel Management Service in developing appropriate contract or agreement documents.</P>
              <P>(c) If, in the opinion of the Inspector General, a reason to exercise the special authority does not exist, the services required by the Inspector General shall be obtained by the servicing Acquisition and Materiel Management Service or the local purchase and contract activity in accordance with the provisions of FAR and VAAR.</P>
              <P>(d) Contracts entered into under the authority of paragraph (a) of this section are subject to the provisions of the Federal Acquisition Regulation. In addition, such contracts are subject to those provisions of VAAR which implement and supplement the FAR on matters other than those stemming from or related to delegations of the Secretary's contracting authority (e.g., management controls and approvals specified in subpart 837.2 will not apply to contract actions under the contract authority of the Inspector General).</P>
              <CITA>[49 FR 12583, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985; 54 FR 31964, Aug. 3, 1989; 61 FR 11586, Mar. 21, 1996; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690</SECTNO>
              <SUBJECT>VA Contracting Officer Certification Program.</SUBJECT>
              <P>The policy and procedures for the VA-wide Contracting Officer Certification Program (COCP) are established in this section and subsections.</P>
              <CITA>[52 FR 24010, June 26, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) <E T="03">Head of the Contracting Activity (HCA)</E> means an individual who has overall responsibility for managing the procurement program assigned to the activity. HCA designations are prescribed in VAAR 802.100. The HCA has the authority to appoint contracting officers with authority to conduct procurements of up to and including $25,000 or the maximum order limitation for orders placed against established contracts, and terminate such appointments.</P>
              <P>(b) <E T="03">Recommending official</E> means an individual who is authorized by VAAR 801.690 and its subsections to recommend to a designating official that an individual be appointed as a contracting officer.</P>
              <P>(c) <E T="03">Designating official</E> means an individual who is authorized to appoint and terminate contracting officers.</P>
              <P>(d) <E T="03">Contracting Officer Certification Board (COCB)</E> means the group of Department officials, listed in VAAR 801.690-3(c), that evaluates and recommends to the designating official individuals as contracting officers at the Intermediate and Senior levels of authority, which levels are described in VAAR 801.690-2(c).</P>
              <P>(e) <E T="03">Contracting Officer Certification Program (COCP)</E> means a program designated by Department management for the selection, appointment, and termination of appointment of contracting officers. Training, experience, education, performance, and conduct are the objective criteria reviewed prior to appointment as contracting officer.</P>
              <P>(f) <E T="03">Qualifications</E> means an employee's record of training, experience, education, performance, and conduct which are reviewed prior to designation as contracting officer. These “qualifications” are not identical, supplemental, or related to the position qualification requirements published by the Office of Personnel Management in Handbook X-118.</P>
              <P>(g) <E T="03">Appointment</E> means the delegation of authority to any employee to enter into, administer or terminate contracts, and make related determinations and findings. Appointment provisions are identified in 801.690-5.</P>
              <P>(h) <E T="03">Certification</E> means an evaluation that the candidate has the experience, education and training to perform properly the duties of a contracting officer.</P>
              <P>(i) <E T="03">Selection</E> means that an employee has been appointed or certified as a contracting officer. The “selection” process is not identical, supplemental or related to any process whereby an <PRTPAGE P="150"/>employee is placed into a position by any competitive action (merit promotion) or noncompetitive action (reassignment, reinstatement). Selection provisions are identified in 801.690-4.</P>
              <P>(j) <E T="03">Termination</E> means the revocation of contracting authority of a contracting officer by the designating official. Termination provisions are identified in 801.690-6.</P>
              <P>(k) <E T="03">Acquisition Training Program (ATP)</E> means a program designed to provide contracting officers with classroom knowledge to further develop their acquisition skills.</P>
              <CITA>[52 FR 24010, June 26, 1987, as amended at 54 FR 31964, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-2</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The VA COCP applies to all programs of the Department of Veterans Affairs except for those contracting officers appointed pursuant to the Inspector General Act (Pub. L. 95-452).</P>
              <P>(b) A certification of appointment is not required for contracting officers designated in 801.670 who exercise special and limited delegations of authority.</P>
              <P>(c) The COCP is based on three levels of authority:</P>
              <P>(1) <E T="03">Basic.</E> Expenditures up to and including $25,000 or the maximum order limitation for orders placed against established contracts.</P>
              <P>(2) <E T="03">Intermediate.</E> Expenditures up to and including $100,000 for negotiation and $1,000,000 for sealed bids.</P>
              <P>(3) <E T="03">Senior.</E> Unlimited.</P>
              <CITA>[52 FR 24011, June 26, 1987, as amended at 54 FR 31964, Aug. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-3</SECTNO>
              <SUBJECT>Responsibility for administration of Contracting Officer Certification Program (COCP).</SUBJECT>
              <P>(a) <E T="03">The Deputy Assistant Secretary for Acquisition and Materiel Management (A&amp;MM).</E> The Deputy Assistant Secretary for A&amp;MM is responsible for:</P>
              <P>(1) Administering the COCP to ensure that the certification board evaluates, recommends acceptance, rejection, or termination of applicants at the Senior and Intermediate Levels according to the requirements of the COCP.</P>
              <P>(2) Developing additional training and the level of certification as required by the COCP.</P>
              <P>(3) Serving as the designating official, and in that capacity appoints or terminates contracting officers at the Senior and Intermediate Levels of authority.</P>
              <P>(b) <E T="03">Heads of contracting activities (HCA).</E> The HCA is responsible for:</P>
              <P>(1) Implementing and maintaining an effective and efficient program for the procurement of personal property and nonpersonal services assigned to the activity.</P>
              <P>(2) Establishing adequate controls to ensure compliance with applicable laws and regulations.</P>
              <P>(3) Appointing or terminating appointments of contracting officers at the Basic Level within their activity. Each HCA will establish procedures for the appointment or termination of appointment of contracting officers at the Basic Level to include maintenance of records on individual training and experience, as well as appointment and termination actions.</P>
              <P>(4) Recommending to the designating official the appointment or termination of appointment of contracting officers at the Intermediate and Senior Levels of authority based on candidate qualifications, as well as a valid organizational need.</P>
              <P>(c) <E T="03">Contracting Officer Certification Board (COCB).</E> The COCB may receive, evaluate, and recommend to the designating official, candidates for contracting officer positions at the Intermediate and Senior Levels. The board will be chaired by the Associate Deputy Assistant Secretary for Acquisitions, OA&amp;MM, and membership will consist of:</P>
              <P>(1) Chief Administrative Officer (VHA) (or designee),</P>
              <P>(2) Deputy Facilities Management Officer (or designee),</P>
              <P>(3) Acquisition Training Officer, and</P>
              <P>(4) Additional members to be selected on an ad hoc basis depending on the organizational need for certified contracting officers.</P>
              <P>(d) <E T="03">Acquisition Training Officer (ATO).</E> The ATO in the OA&amp;MM will serve as the Executive Secretary to the COCB. The ATO will coordinate all requests for certification with the COCB. Upon the decision by the Deputy Assistant Secretary for A&amp;MM, the ATO will respond to the HCA with a copy of the <PRTPAGE P="151"/>appropriate action. In addition, the ATO will maintain records on the development and administration of the Contracting Officer Certification Program (COCP) as well as the records on individual training, certification and termination actions at the Intermediate and Senior Contracting Officer Level. The ATO will identify all records created and maintained and ensure they are scheduled for disposal by the Office of Acquisition and Materiel Management Records Officer.</P>
              <CITA>[52 FR 24011, June 26, 1987, as amended at 54 FR 31964, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-4</SECTNO>
              <SUBJECT>Selection.</SUBJECT>
              <P>(a) Contracting officers (CO) shall be appointed only in those instances where a valid organizational need for certified personnel can be demonstrated. Such factors to be considered in making these assessments include complexity of work, volume of actions and organizational structure.</P>
              <P>(b) Requests for appointment of contracting officers will be made in writing. Request for appointments at the Senior and Intermediate Level will be signed by the HCA and forwarded to the Acquisition Training Officer (90) for processing. The request for appointment will include at a minimum a justification of need, and a qualification statement for the candidate. Requests for appointment of HCAs as contracting officers will be made at one level above the head of the contracting activity.</P>
              <P>(c) The COCB and HCAs (limited to Basic Level) will evaluate candidates for CO certifications based on training, experience, and performance, and consideration of academic education, in addition to meeting standards of ethical conduct and avoiding conflicts of interest. Minimum qualifications of contracting officers are based on a combination of training, experience, and performance with consideration of relevant academic credit or degrees earned. The following minimum requirements are established for designation of contracting officers:</P>
              <P>(1) <E T="03">Basic level.</E> (i) <E T="03">Training</E>—Forty hours of basic acquisition or small purchase training that can be accomplished on the job or in formalized courses of instruction. If on-the-job training is conducted, it must be documented for the record and include a brief description of the duties and responsibilities that comprised that training.</P>
              <P>(ii) <E T="03">Experience.</E> Three years of progressive assignments in an acquisition related field within the last five years and demonstrated broad technical ability related to acquisition.</P>
              <P>(iii) Performance—Satisfactory rating.</P>
              <P>(iv) Education (desired)—High school diploma.</P>
              <P>(2) <E T="03">Intermediate level</E>—(i) <E T="03">Training</E>—(A) <E T="03">ATP Level I</E>—Basic Acquisition.</P>
              <P>(B) <E T="03">ATP Level II</E>—Advanced Contract Administration.</P>
              <P>(C) <E T="03">ATP Level III—</E> Cost and Price Analysis.</P>
              <FP>ATP courses may include tests or other assessments to indicate what information has been learned by the student. An assessment will then be made to determine if additional formal or on-the-job training is needed.</FP>
              <P>(ii) <E T="03">Experience.</E> Two years of progressive work assignments in an acquisition related field leading to broader technical ability within the last five years.</P>
              <P>(iii) <E T="03">Performance.</E> Satisfactory rating.</P>
              <P>(iv) <E T="03">Education (desired).</E> Associate degree.</P>
              <P>(3) <E T="03">Senior level—</E>(i) <E T="03">Training—(A) ATP Level I—</E> Fundamentals of Acquisition.</P>
              <P>(B) <E T="03">ATP Level II—</E> Advanced Contract Administration.</P>
              <P>(C) <E T="03">ATP Level III—</E> Cost and Price Analysis.</P>
              <P>(D) <E T="03">ATP Level IV—</E> Contract Negotiation.
              </P>
              <FP>ATP courses may include tests or other assessments to indicate what information has been learned by the student. An assessment will then be made to determine if additional formal or on-the-job training is needed.</FP>
              <P>(ii) <E T="03">Experience.</E> Three years of progressive assignments in an acquisition related field within the last five years and demonstrated broad technical ability related to acquisition.</P>
              <P>(iii) <E T="03">Performance.</E> Satisfactory rating.</P>
              <P>(iv) <E T="03">Education (desired).</E> Bachelor degree.<PRTPAGE P="152"/>
              </P>
              <P>(d) Other training courses may be substituted for the prescribed core curriculum provided that the training meets equivalent content and difficulty per course. Recommending officials must fully document and justify equivalent courses when recommending candidates for appointment as contracting officers. The COCB will review and determine if equivalent courses may be appropriately substituted. HCAs are responsible for providing their subordinates with advice and assistance necessary to complete required training.</P>
              <P>(e) Candidates who achieve additional academic credit beyond the desired education level may be eligible to receive credit toward experience for this additional academic credit. Substitutions of this nature must be fully justified and documented by the recommending official and forwarded to the COCB for evaluation and appropriate action. Candidates will receive a maximum credit of 1 year of experience when substitutions are approved for the Intermediate and Senior Level. A maximum credit of 6 months may be approved by the HCA for the Basic Level.</P>
              <P>(f) Candidates who do not meet the minimum qualifications established in this section, may be granted interim appointments in accordance with 801.690-7.</P>
              <P>(g) The Privacy Act of 1974 applies to the information collected during the selection and appointment of contracting officers.</P>
              <CITA>[52 FR 24011, June 26, 1987, as amended at 54 FR 31965, Aug. 3, 1989; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-5</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
              <P>(a) The recommending official may recommend candidates for appointment as contracting officers to the designating official. Only the Deputy Assistant Secretary for A&amp;MM or the HCA is authorized to sign the Standard Form 1402, Certification of Appointment.</P>
              <P>(b) Specific limitations imposed upon the authority of contracting officer shall be set forth in certificates of appointment or otherwise conveyed in writing to appoint contracting officers.</P>
              <P>(c) Appointment of COs at specific levels does not preclude imposition of administrative reviews, approvals, or other limitations for program management purposes.</P>
              <CITA>[52 FR 24012, June 26, 1987, as amended at 54 FR 31965, Aug. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-6</SECTNO>
              <SUBJECT>Termination.</SUBJECT>
              <P>(a) The designating official may revoke the appointment of a contracting officer at any time after evaluation of written recommendations by an HCA or other management officials based on:</P>
              <P>(1) The fact that the need for the appointment no longer exists;</P>
              <P>(2) Personnel actions such as resignation or retirement;</P>
              <P>(3) Cause. (Cause covers such areas as, e.g., unsatisfactory performance, official misconduct pending criminal or administrative investigations, failure to meet training requirements.)</P>
              <P>(b) Situations involving termination of contracting authority of contracting officers for cause should be discussed with the servicing Human Resorces Service to determine impact, if any, on the employee's continued employment.</P>
              <CITA>[54 FR 31965, Aug. 3, 1989, as amended at 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-7</SECTNO>
              <SUBJECT>Interim appointment provisions.</SUBJECT>
              <P>(a) Individuals who do not meet all minimum qualifications as described in 801.690-4, may be appointed on an interim basis to ensure availability of procurement support. Requests to the designating official for interim appointments shall include information on the candidate's training, experience, performance, education, and justification for the interim appointment. All minimum training requirements shall be scheduled for individuals issued interim appointments and completed within a reasonable period of time. At least two required courses or equivalents will normally be completed each year after the date of appointment. Failure to complete minimum training requirements within the time frame may result in the loss of the interim appointment.</P>

              <P>(b) If training requirements are met during the interim appointment period <PRTPAGE P="153"/>through the ATP, a permanent warrant may be issued by the designating official upon satisfactory completion of all the required courses. Where equivalent courses have been completed, appropriate documentation (copies of course certificates) must be submitted before a permanent warrant can be issued.</P>
              <P>(c) Instances that may require the use of interim appointments may include, but are not limited to the following:</P>
              <P>(1) Organization changes;</P>
              <P>(2) Sudden extreme increases in the number of procurement requests; and</P>
              <P>(3) New hires or promotions into GS-1102 series.</P>
              <P>(d) Interim appointments shall normally not exceed a 2 year period.</P>
              <CITA>[52 FR 24012, June 26, 1987, as amended at 54 FR 31965, Aug. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-8</SECTNO>
              <SUBJECT>Distribution of SF 1402, Certificate of Appointment</SUBJECT>
              <P>(a) The original SF 1402, Certificate of Appointment, shall be provided to the appointed contracting officer and displayed at the contracting officer's duty station.</P>
              <P>(b) A copy of the certificate will be filed in the delegation of authority file and another copy will be furnished to the fiscal activity.</P>
              <P>(c) Each certificate will be serially numbered.</P>
              <CITA>[54 FR 31965, Aug. 3, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>801.690-9</SECTNO>
              <SUBJECT>Post appointment maintenance of certifications. [Reserved]</SUBJECT>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 802</EAR>
          <HD SOURCE="HED">PART 802—DEFINITIONS OF WORDS AND TERMS</HD>
          <SUBPART>
            <HD SOURCE="HED">Subpart 802.1—Definitions</HD>
            <SECTION>
              <SECTNO>802.100</SECTNO>
              <SUBJECT>Definitions</SUBJECT>
              <P>(a) In VA, <E T="03">head of the contracting activity</E> means the Director, Acquisition Management Service, Central Office; Deputy Assistant Secretary for Facilities, Central Office; Director, Building and Supply Service, Central Office; Director, Publications Service, Central Office; Director, Monument Service, Central Office; Director, Vocational Rehabilitation and Education Service, Central Office; Director, Loan Guaranty Service, Central Office; Director, VA Marketing Center; Chief, Supply Service, at a field facility; and the Director, Regional Office.</P>
              <P>(b) Procurement Executive means the Deputy Assistant Secretary for Acquisition and Materiel Management.</P>
              <P>(c) Senior Procurement Executive means the Assistant Secretary for Management (004). The Senior Procurement Executive is responsible for the management direction of the VA acquisition systems.</P>
              <SECAUTH>(38 U.S.C. 501 and 40 U.S.C. 486(c))</SECAUTH>
              <CITA>[52 FR 24013, June 26, 1987, as amended at 52 FR 28559, July 31, 1987; 54 FR 40062, Sept. 29, 1989; 61 FR 1527, Jan. 22, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 803</EAR>
          <HD SOURCE="HED">PART 803—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 803.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>803.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
              <SECTNO>803.101-3</SECTNO>
              <SUBJECT>Department regulations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 803.2—Contractor Gratuities to Government Personnel</HD>
              <SECTNO>803.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities Clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 803.3—Reports of Suspected Antitrust Violations</HD>
              <SECTNO>803.303</SECTNO>
              <SUBJECT>Reporting suspected antitrust violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 803.4—Contingent Fees</HD>
              <SECTNO>803.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Convenant Against Contingent Fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 803.5—Other Improper Business Practices</HD>
              <SECTNO>803.502</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 803.70—Contractor Responsibility To Avoid Improper Business Practices</HD>
              <SECTNO>803.7000</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>803.7001</SECTNO>
              <SUBJECT>Display of VA hotline poster.</SUBJECT>
              <SECTNO>803.7002</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12592, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="154"/>
            <HD SOURCE="HED">Subpart 803.1—Safeguards</HD>
            <SECTION>
              <SECTNO>803.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>803.101-3</SECTNO>
              <SUBJECT>Department regulations.</SUBJECT>
              <P>(a) Standards of conduct for all VA employees, including contracting officials, are found in 38 CFR part 0.</P>
              <P>(b) Requirements for employee financial disclosure are contained in 38 CFR part 0, subpart B. Generally contracting officers and all supervisory contracting officials must file financial disclosure statements.</P>
              <CITA>[49 FR 12592, Mar. 29, 1984, as amended at 61 FR 20491, May 7, 1996; 63 FR 69218, Dec. 16, 1998; 64 FR 30442, June 8, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 803.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>803.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities Clause.</SUBJECT>
              <P>(a) Suspected violations of the Gratuities Clause will be reported to the head of the contracting activity through the contracting officer. The head of the contracting activity will confirm that violations are evident and that reporting these violations to officials designated in paragraph (b) would be warranted.</P>
              <P>(b) When violations of the Gratuities Clause warrant actions described in FAR 3.204(c) the head of the contracting activity will request instructions from the VA General Counsel (025) through the Deputy Assistant Secretary for Acquisition and Materiel Management.</P>
              <CITA>[49 FR 12592, Mar. 29, 1984, as amended at 61 FR 1527, Jan. 22, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 803.3—Reports of Suspected Antitrust Violations</HD>
            <SECTION>
              <SECTNO>803.303</SECTNO>
              <SUBJECT>Reporting suspected antitrust violations.</SUBJECT>
              <P>Instances of possible antitrust violations will be reported by procurement activities in accordance with FAR 3.303 to the Deputy Assistant Secretary for Acquisition and Materiel Management for review and submission to the General Counsel, who will determine whether or not to submit the case to the Attorney General.</P>
              <CITA>[49 FR 12592, Mar. 29, 1984, as amended at 61 FR 1527, Jan. 22, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 803.4—Contingent Fees</HD>
            <SECTION>
              <SECTNO>803.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
              <P>Before taking any administrative action the heads of the contracting activity shall consult with their respective VA District Counsels. Contracting officers in Central Office shall consult with the Office of the General Counsel.</P>
              <CITA>[49 FR 12592, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985; 61 FR 20491, May 7, 1996. Redesignated at 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 803.5—Other Improper Business Practices</HD>
            <SECTION>
              <SECTNO>803.502</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
              <P>Suspected violations of the Anti-kickback Act will be reported to the Office of the General Counsel.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 803.70—Contractor Responsibililty To Avoid Improper Business Practices</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>57 FR 58718, Dec. 11, 1992, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>803.7000</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>It is Department of Veterans Affairs' (VA) policy to contract with companies that conduct business with the highest degree of integrity and honesty. To demonstrate this commitment to integrity and honesty, contractors should have standards of conduct and internal control systems that are designed to promote such standards, to facilitate the timely discovery and disclosure of improper conduct in connection with Government contracts, and to assure that corrective measures are promptly instituted and carried out. For example, a contractor's system of management controls should provide for—</P>

              <P>(a) A written code of business ethics and standards of conduct and an ethics training program for all employees;<PRTPAGE P="155"/>
              </P>
              <P>(b) A mechanism, such as a hotline, by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports;</P>
              <P>(c) Disciplinary action for improper conduct;</P>
              <P>(d) Periodic reviews of company business practices, procedures, policies, and internal controls for compliance with standards of conduct and the special requirements of Government contracting;</P>
              <P>(e) Internal and/or external audits as appropriate;</P>
              <P>(f) Timely reporting to appropriate Government officials of any suspected or possible violations of law in connection with Government contracts or any other irregularities in connection with such contracts; and</P>
              <P>(g) Full cooperation with any Government agencies responsible for either investigation or corrective actions.</P>
              <CITA>[57 FR 58718, Dec. 11, 1992, as amended at 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>803.7001</SECTNO>
              <SUBJECT>Display of VA hotline poster.</SUBJECT>
              <P>Contractors who are awarded a VA contract of—</P>
              <P>(a) $500,000 or more for supplies or services, or</P>
              <P>(b) $3 million or more for construction, and who have not established an internal reporting mechanism and program, as described in 803.7000(b), shall be required to display prominently in common work areas within business segments performing work under VA contracts, the VA hotline poster prepared by the VA Office of Inspector General.</P>
            </SECTION>
            <SECTION>
              <SECTNO>803.7002</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The contracting officer shall insert the clause at 852.203-71, Display of VA hotline poster, in solicitations and contracts expected to equal or exceed the dollar thresholds established in 803.7001.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 804</EAR>
          <HD SOURCE="HED">PART 804—ADMINISTRATIVE MATTERS</HD>
          <SUBPART>
            <HD SOURCE="HED">Subpart 804.1—Contract Execution</HD>
            <AUTH>
              <HD SOURCE="HED">Authority:</HD>
              <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
            </AUTH>
            <SECTION>
              <SECTNO>804.101</SECTNO>
              <SUBJECT>Contracting officer's signature.</SUBJECT>
              <P>In the event a contracting officer's name and title has been typed, stamped or printed on the contract and the contracting officer is not available to sign the contract, a designee may sign for the contracting officer. Such designee must be a contracting officer as specified in 801.602 and must have specific contracting authority to cover the contract to be signed.</P>
              <CITA>[49 FR 12592, Mar. 29, 1984, as amended at 61 FR 20492, May 7, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="156"/>
        <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 805</EAR>
          <HD SOURCE="HED">PART 805—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 805.2—Synopses of Proposed Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>805.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>805.205</SECTNO>
              <SUBJECT>Special situations.</SUBJECT>
              <SECTNO>805.207</SECTNO>
              <SUBJECT>Preparation and transmittal of synopses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 805.2—Synopses of Proposed Contracts</HD>
            <SECTION>
              <SECTNO>805.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>In accordance with FAR 5.202, the contract actions in 806.302-5 do not require synopsizing.</P>
              <CITA>[51 FR 23066, June 25, 1986 and 52 FR 28559, July 31, 1987; 61 FR 20492, May 7, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>805.205</SECTNO>
              <SUBJECT>Special situations.</SUBJECT>
              <P>Contracting officers are hereby delegated authority to procure paid advertising in a daily newspaper circulated in the local area, for the purpose of publicizing a proposed procurement of architect-engineer services expected not to exceed $10,000.</P>
              <CITA>[49 FR 12592, Mar. 29, 1984, as amended at 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>805.207</SECTNO>
              <SUBJECT>Preparation and transmittal of synopses.</SUBJECT>
              <P>At such time as an architect-engineer evaluation board is ready to advertise for architect-engineer services, it must establish the geographic area within which architect-engineer firms (including joint ventures) will be considered. The area determined must be large enough to assure selection of three to five firms highly qualified for the particular project involved, but not so large as to make the evaluation process unduly burdensome.</P>
              <CITA>[49 FR 12592, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985; 51 FR 23066, June 25, 1986; 52 FR 28559, July 31, 1987; 54 FR 40063, Sept. 29, 1989; 61 FR 20492, May 7, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 806</EAR>
          <HD SOURCE="HED">PART 806—COMPETITION REQUIREMENTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 806.3—Other Than Full and Open Competition</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>806.302-3</SECTNO>
              <SUBJECT>Industrial mobilization; or experimental, development, or research work.</SUBJECT>
              <SECTNO>806.302-5</SECTNO>
              <SUBJECT>Authorized or required by statute.</SUBJECT>
              <SECTNO>806.302-7</SECTNO>
              <SUBJECT>Public interest.</SUBJECT>
              <SECTNO>806.304</SECTNO>
              <SUBJECT>Approval of the justification.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 806.4—Sealed Bidding and Competitive Proposals</HD>
              <SECTNO>806.401</SECTNO>
              <SUBJECT>Sealed bidding and competitive proposals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 806.5—Competition Advocates</HD>
              <SECTNO>806.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
              <SECTNO>806.502</SECTNO>
              <SUBJECT>Duties and responsibilities.</SUBJECT>
              <SECTNO>806.570</SECTNO>
              <SUBJECT>Planning requirements.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>51 FR 23066, June 25, 1986, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 806.3—Other Than Full and Open Competition</HD>
            <SECTION>
              <SECTNO>806.302-3</SECTNO>
              <SUBJECT>Industrial mobilization; or experimental, development, or research work.</SUBJECT>
              <P>Research authorized to be conducted by the Department of Veterans Affairs in accordance with the provisions of title 38, U.S. Code, will be negotiated under the authority of 41 U.S.C. 253(c)(3) (except prosthetics research authorized by 38 U.S.C. 7303 will be negotiated under the authority of 41 U.S.C. 253(c)(5), regardless of the dollar amount). Such acquisitions require justifications and approvals required by FAR 6.303 and 48 CFR 806.304.</P>
              <CITA>[51 FR 23066, June 25, 1986, as amended at 61 FR 20492, May 7, 1996; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>806.302-5</SECTNO>
              <SUBJECT>Authorized or required by statute.</SUBJECT>

              <P>(a) Scarce Medical Specialist contracts negotiated under the authority of 38 U.S.C. 7409 are approved for other than full and open competition <E T="03">only</E>
                <PRTPAGE P="157"/>when such contracts are with institutions affiliated with the Department of Veterans Affairs pursuant to 38 U.S.C. 7302. The justification and approval requirements of FAR 6.303 and 806.304 are still applicable.</P>
              <P>(b) Contracts or agreements for the mutual use or exchange of use of health-care resources, consisting of commercial services, the use of medical equipment or space, or research, negotiated under the authority of 38 U.S.C. 8151-8153, are approved for other than full and open competition only when such contracts or agreements are with institutions affiliated with the Department of Veterans Affairs, pursuant to 38 U.S.C. 7302, with medical practice groups or other approved entities associated with affiliated institutions (entities will be approved if determined legally to be associated with affiliated institutions), or with blood banks, organ banks, or research centers. The justification and approval requirements of FAR 6.303 and VAAR 806.304 do not apply to such contracts or agreements.</P>
              <P>(c) Contracts or agreements for the mutual use or exchange of use of health-care resources, consisting of commercial services or the use of medical equipment or space, negotiated under the authority of 38 U.S.C. 8151-8153, and not acquired under the authority of paragraph (b) of this section, may be conducted without regard to any law or regulation that would otherwise require the use of competitive procedures for procuring resources, provided the procurement is conducted in accordance with the simplified procedures contained in (VAAR) 48 CFR part 873. The justification and approval requirements of FAR 6.303 and 806.304 shall apply to such contracts or agreements conducted on a sole source basis.</P>
              <P>(d) Various other sections of Title 38, United States Code, authorize the Secretary to enter into certain contracts, and certain types of contracts, without regard to any other provision of law. The justification and approval requirements specified in FAR 6.303 and 806.304 are still applicable. VA contracting officers entering into contracts using other than competitive procedures for any of the following items or services, estimated to cost in excess of the simplified acquisition threshold, will cite, in addition to 41 U.S.C. 253(c)(5), the appropriate section of Title 38, United States Code, as their authority to do so.</P>
              <P>(1) Contracts for orthopedic and prosthetic appliances and related services including research. 38 U.S.C. 8123.</P>
              <P>(2) Contracts to purchase or sell merchandise, equipment, fixtures, supplies and services for the operation of the Veterans Canteen Service. 38 U.S.C. 7802.</P>
              <P>(3) Contracts or leases for the operation of parking facilities established under the authority of 38 U.S.C. 8109(b), provided that the establishment, operation, and maintenance of such facilities have been authorized by the Secretary or designee. 38 U.S.C. 8109(f).</P>
              <P>(4) Contracts for laundry and other common services such as the purchase of steam, may be noncompetitively negotiated with non-profit, tax-exempt, educational, medical, or community institutions, when specifically approved by the Secretary or designee and when such services are not reasonably available from private commercial sources. 38 U.S.C. 8122(c).</P>
              <P>(5) Contracts or agreements with public or private agencies for services or translators. 38 U.S.C. 513.</P>
              <P>(6) Contracts for nursing home care. 38 U.S.C. 1720.</P>
              <CITA>[51 FR 23066, June 25, 1986, as amended at 52 FR 28560, July 31, 1987; 54 FR 40063, Sept. 29, 1989; 61 FR 20492, May 7, 1996; 63 FR 69218, Dec. 16, 1998; 68 FR 3468, Jan. 24, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>806.302-7</SECTNO>
              <SUBJECT>Public interest.</SUBJECT>
              <P>Use of 41 U.S.C. 253(c)(7) to support contract award using other than full and open competition will require a D&amp;F prepared in accordance with FAR subpart 1.7 and VAAR subpart 801.7 and signed by the Secretary. The D&amp;F will be prepared by the contracting officer and submitted by the head of contracting activity (Subpart 802.1) to the Agency Competition Advocate (806.501). The submission will include:</P>
              <P>(a) The date of expected contract award (<E T="03">Note: Congress must be notified 30 days prior to award</E>), and<PRTPAGE P="158"/>
              </P>
              <P>(b) A justification prepared by the contracting officer in accordance with FAR 6.303.</P>
              <CITA>[51 FR 23066, June 25, 1986, as amended at 61 FR 20492, May 7, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>806.304</SECTNO>
              <SUBJECT>Approval of the justification.</SUBJECT>
              <P>(a) Approvals of justifications as specified in FAR 6.304, prepared in accordance with FAR 6.303, will be approved as follows:</P>
              <P>(1) For a proposed contract not exceeding $100,000, one contracting level above the contracting officer (see Subpart 801.6). However, if the contracting officer is also the head of the contracting activity approval will be made by:</P>
              <P>(i) The medical center director for acquisitions at Veterans Health Administration (VHA) medical facilities, or</P>
              <P>(ii) The Agency Competition Advocate (806.501(a)) in all other cases.</P>
              <P>(2) For a proposed contract over $100,000 but not exceeding $1,000,000, by the Contracting Activity Competition Advocate (806.501(b)). However, if the Contracting Activity Competition Advocate is also the contracting officer, approval will be made by:</P>
              <P>(i) The medical center director for acquisitions at VHA medical facilities, or</P>
              <P>(ii) The Agency Competition Advocate in all other cases.</P>
              <P>(3) For a proposed contract over $1,000,000 but not exceeding $10,000,000 by the Agency Competition Advocate (806.501(a)).</P>
              <P>(4) For a proposed contract over $10,000,000 by the Senior Procurement Executive (See 802.100).</P>
              <P>(b) Class justifications as specified in FAR 6.304(c), will be approved by the Agency Competition Advocate regardless of dollar amount.</P>
              <CITA>[51 FR 23066, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 54 FR 40063, Sept. 29, 1989; 61 FR 20492, May 7, 1996; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 806.4—Sealed Bidding and Competitive Proposals</HD>
            <SECTION>
              <SECTNO>806.401</SECTNO>
              <SUBJECT>Sealed bidding and competitive proposals.</SUBJECT>
              <P>Contracting officers shall solicit sealed bids if the contract is expected to exceed the small purchase limitation or expected to exceed $1,000 for contracts made for repairs to property acquired by VA under 38 U.S.C. Chapter 37 and the criteria in FAR 6.401(a) are met. The contract file shall include any findings by the contracting officer that sealed bidding is not appropriate.</P>
              <CITA>[51 FR 23066, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 54 FR 40063, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 806.5—Competition Advocates</HD>
            <SECTION>
              <SECTNO>806.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
              <P>(a) The Associated Deputy Assistant Secretary for Acquisitions (90A) is designated as the Agency Competition Advocate.</P>
              <P>(b) The Executive Director and Chief Operating Officers, VA National Acquisition Center, or designee, will serve as the Competition Advocate for the Center. Each head of the contracting activity (see Subpart 802.1) or designee will serve as the Contracting Activity Competition Advocate in all other cases.</P>
              <CITA>[51 FR 23066, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 54 FR 40063, Sept. 29, 1989; 61 FR 1527, Jan. 22, 1996; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>806.502</SECTNO>
              <SUBJECT>Duties and responsibilities.</SUBJECT>
              <P>In addition to the responsibilities identified in FAR 6.502(a), the Agency Competition Advocate will coordinate the competition advocacy program as it is implemented at all VA contracting activities. The Agency Competition Advocate will:</P>
              <P>(a) Establish program guidelines to be used by contracting activity competition advocates;</P>
              <P>(b) Assist contracting activity competition advocates with obstacles to promoting competition;</P>

              <P>(c) Utilize supply technical surveys, other facility reports, and the Federal Procurement Data System to monitor <PRTPAGE P="159"/>contracting activity compliance with the advocacy program;</P>
              <CITA>[51 FR 23066, June 25, 1986, as amended at 61 FR 20492, May 7, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>806.570</SECTNO>
              <SUBJECT>Planning requirements.</SUBJECT>
              <P>
                <E T="03">Competition Plan.</E> Each Contracting Activity Competition Advocate shall develop a Competition Plan and incorporate the Plan in the internal operating procedures of the facility or organization in which the contracting activity is located. It is essential that the plan be endorsed and supported by top level management and be clearly understood by the services and offices that the contracting activity support. As a minimum, the plan shall include:</P>
              <P>(a) The appoval requirements for other than full and open competition specified in FAR 6.304;</P>
              <P>(b) A description of the synopsizing requirements contained in FAR Subpart 5.2 in order that the necessity for Advance Procurement Planning is fully understood;</P>
              <P>(c) A description of how the Competition Plan should be integrated into Advance Procurement Planning;</P>
              <P>(d) Identification of any known obstacles to competition and a proposal for overcoming them;</P>
              <P>(e) A method for otherwise increasing competition for contracts on the basis of cost and other significant factors.</P>
              <CITA>[51 FR 23066, June 25, 1986, as amended at 61 FR 20492, May 7, 1996; 63 FR 69218, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 807</EAR>
          <HD SOURCE="HED">PART 807—ACQUISITION PLANNING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 807.3—Contractor Versus Government Performance</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>807.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>807.304</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>807.304-73</SECTNO>
              <SUBJECT>Bid opening/receipt of proposals.</SUBJECT>
              <SECTNO>807.304-75</SECTNO>
              <SUBJECT>Bid acceptance.</SUBJECT>
              <SECTNO>807.304-76</SECTNO>
              <SUBJECT>Contract effective date.</SUBJECT>
              <SECTNO>807.304-77</SECTNO>
              <SUBJECT>Right of first refusal.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 43210, Oct. 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 807.3—Contractor Versus Government Performance</HD>
            <SECTION>
              <SECTNO>807.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes basic procedures and principles to be followed in performing the contracting aspect of the OMB Circular A-76 cost comparison process.</P>
            </SECTION>
            <SECTION>
              <SECTNO>807.304</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>807.304-73</SECTNO>
              <SUBJECT>Bid opening/receipt of proposals.</SUBJECT>
              <P>The date established for bid opening or receipt of proposals will normally be 90 days after sending the request for publication to the Commerce Business Daily (CBD) (65 days after issuing the solicitation).</P>
            </SECTION>
            <SECTION>
              <SECTNO>807.304-75</SECTNO>
              <SUBJECT>Bid acceptance.</SUBJECT>
              <P>Bid acceptance shall be 90 days from bid opening/receipt of proposals in order to accommodate the time necessary to evaluate bids/offers, finalize the cost comparison and process any appeals. Contracting officers will insert “90 days” in FAR clause 52.214-15.</P>
            </SECTION>
            <SECTION>
              <SECTNO>807.304-76</SECTNO>
              <SUBJECT>Contract effective date.</SUBJECT>
              <P>(a) A transition from in-house performance to contract requires a period of time from contract award to beginning of contract performance (contract effective date). This time is necessary to allow for personnel adjustments, e.g., right of first refusal process, and to allow a reasonable period for the contractor to make necessary resource reallocations. The contract effective date should be carefully considered in conjunction with the A-76 Task Group and must be specified in the solicitation.</P>
              <P>(b) Although outplacement planning to minimize the effect of any necessary reduction in force should be initiated in advace of bid opening/receipt of proposals as prescribed by Office of Personnel and Labor Relations, there are also employee and labor organization reduction-in-force notice requirements which must be satisfied.</P>

              <P>(c) When bargaining unit employees will be affected, facility officials also <PRTPAGE P="160"/>should review and comply with any employee or labor organization notice requirements in applicable negotiated agreements.</P>
            </SECTION>
            <SECTION>
              <SECTNO>807.304-77</SECTNO>
              <SUBJECT>Right of first refusal.</SUBJECT>
              <P>(a) In addition to the Right of First Refusal clause specified in FAR 52.207-3, the contracting officer will include the clause “Report of Employment Under Commercial Activities” in 852.207-70. This clause is primarily intended to verify that the contractor is meeting its obligation to provide adversely affected Federal workers the first opportunity for employment openings, for which they qualify, created by the contract.</P>
              <P>(b) The Report of Employment Under Commercial Activities clause is also prescribed to avoid inappropriate severance payment. In order to implement the clause, the contracting officer (or Contracting Officer's Technical Representative (COTR)) must first obtain a list from the servicing personnel office of Federal employees, including their Social Security numbers, who will be adversely affected as a result of the anticipated contract. The list should be requested as soon as a preliminary determination is made to contract out a function subject to A-76. (Contracting officers may designate a COTR to coordinate the information and reporting requirements.)</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 808</EAR>
          <HD SOURCE="HED">PART 808—REQUIRED SOURCES OF SUPPLIES AND SERVICES</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>808.001</SECTNO>
            <SUBJECT>Priorities for use of Government supply sources.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 808.4—Ordering From Federal Supply Schedules</HD>
              <SECTNO>808.401</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12593, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>808.001</SECTNO>
            <SUBJECT>Priorities for use of Government supply sources.</SUBJECT>
            <P>(a) Procurement will be effected from the following sources in the descending order of priority as indicated herein:</P>
            <P>(1) VA excess.</P>
            <P>(2) Other government agencies excess.</P>
            <P>(3) Federal Prison Industries.</P>
            <P>(4) Procurement list of products available from the Committee for Purchase From People Who Are Blind or Severely Disabled.</P>
            <P>(5) GSA stock and other Government agency inventory.</P>
            <P>(6) VA decentralized contracts.</P>
            <P>(7) Mandatory Federal Supply Schedule contracts.</P>
            <P>(8) Optional use Federal Supply Schedule contracts.</P>
            <P>(9) Commercial concerns, educational, or nonprofit institutions, as applicable.</P>
            <P>(b) <E T="03">Public exigency.</E> A source lower in priority may be utilized in a public exigency as defined in FAR 6.302-2 and in Federal Property Management Regulation 41 CFR 101-25.101-5. Justification for each deviation must be included in the procurement file.</P>
            <P>(c) <E T="03">Eligible Beneficiaries.</E> When it is determined that a therapeutic benefit to eligible beneficiaries will result from personal selection of shoes, clothing and incidentals, acquisition from the Veterans Canteen Service or commercial sources is authorized. When dress shoes similar to Federal Prison Industries, Inc., Style No. 86-A are purchased from commercial sources, FPI clearance No. 1206 will be cited on the purchase document.</P>
            <CITA>[49 FR 12593, Mar. 29, 1984, as amended at 51 FR 23068, June 25, 1986; 52 FR 28559, July 31, 1987; 54 FR 40063, Sept. 29, 1989; 61 FR 20492, May 7, 1996; 63 FR 69219, Dec. 16, 1998]</CITA>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 808.4—Ordering From Federal Supply Schedules</HD>
            <SECTION>
              <SECTNO>808.401</SECTNO>
              <SUBJECT>General.</SUBJECT>

              <P>The Executive Director and Chief Operating Officer, VA National Acquisition Center, advertises, negotiates, awards the contracts, and is responsible for contract administration for FSS (Federal Supply Schedule) Groups 65 and 89. The Executive Director and Chief Operating Officer issues the Federal Supply Schedules containing the <PRTPAGE P="161"/>necessary information for placing delivery orders with the contractors for the above FSS Groups.</P>
              <CITA>[49 FR 12593, Mar. 29, 1984, as amended at 63 FR 69219, Dec. 16, 1998</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 809</EAR>
          <HD SOURCE="HED">PART 809—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 809.1—Responsible Prospective Contractors</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>809.104-2</SECTNO>
              <SUBJECT>Special standards.</SUBJECT>
              <SECTNO>809.106-1</SECTNO>
              <SUBJECT>Conditions for preaward surveys.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 809.2—Qualified Products</HD>
              <SECTNO>809.206</SECTNO>
              <SUBJECT>Acquiring qualified products.</SUBJECT>
              <SECTNO>809.270</SECTNO>
              <SUBJECT>Qualified products for convenience/labor saving foods.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 809.4—Debarment, Suspension, and Ineligibility</HD>
              <SECTNO>809.400</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>809.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>809.404</SECTNO>
              <SUBJECT>Consolidated list of debarred, suspended, and ineligible contractors.</SUBJECT>
              <SECTNO>809.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <SECTNO>809.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
              <SECTNO>809.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>809.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>809.406-4</SECTNO>
              <SUBJECT>Period of debarment.</SUBJECT>
              <SECTNO>809.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
              <SECTNO>809.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>809.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 809-5—Organizational Conflicts of Interest</HD>
              <SECTNO>809.504</SECTNO>
              <SUBJECT>Contracting officer's responsibilities.</SUBJECT>
              <SECTNO>809.505</SECTNO>
              <SUBJECT>General rules.</SUBJECT>
              <SECTNO>809.508-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 809.7—Defense Production Pools and Research and Development Pools</HD>
              <SECTNO>809.702</SECTNO>
              <SUBJECT>Contracting with pools.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 210, 40 U.S.C. 486(c) and 42 U.S.C. 2453(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12594, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 809.1—Responsible Prospective Contractors</HD>
            <SECTION>
              <SECTNO>809.104-2</SECTNO>
              <SUBJECT>Special standards.</SUBJECT>
              <P>Standards applicable to subsistence will be established based on preaward surveys prescribed by 809.106-1.</P>
            </SECTION>
            <SECTION>
              <SECTNO>809.106-1</SECTNO>
              <SUBJECT>Conditions for preaward surveys.</SUBJECT>
              <P>(a) Preaward on-site evaluation will be made for contracts covering the products and services of bakeries, dairies, ice cream plants and laundry and dry cleaning activities. A committee under the direction of the contracting officer and composed of representatives of the medical service and/or using service chiefs or designees appointed by the facility director will inspect and evaluate the plant, personnel, equipment and processes of the prospective contractor. Prior to any inspection, the contracting officer will inquire whether the plant has been recently inspected and approved by another Department of Veterans Affairs facility or Federal agency. Approved inspection reports of another Department of Veterans Affairs facility will be accepted by Department of Veterans Affairs facilities and approved inspection reports of other Federal agencies may be accepted as satisfactory evidence that the facilities of the bidder meet the requirements of the Invitation for Bid, provided inspection was made not more than 6 months prior to the proposed contract period.</P>
              <P>(b) Preaward on-site evaluation of dairy plants will not be made by the Department of Veterans Affairs when acceptable bids are received from suppliers of those dairy products designated as No. 1 in the Federal Specifications. Suppliers must have received, prior to opening of bids, a pasteurized milk rating of 90 percent or more for the type of product being supplied, on the basis of the U.S. Public Health Service milk ordinance and code. Such rating must be current (not over 2 years old), and will have been determined by certified State milk sanitation rating officer in the State of origin or by the Public Health Service and will continue at 90 percent or more during the period of the contract. Firms not so rated may only offer dairy products designated as No. 2 in the Federal Specifications. Award to such firms may be made only after completion of a preaward on-site evaluation conducted in accordance with paragraph (a) of this section.</P>

              <P>(c) Prior to any open market purchase of fresh bakery products (such as <PRTPAGE P="162"/>pies, cakes, cookies), the plant where these products are produced or prepared will be inspected and evaluated as provided in paragraph (a) of this section. On-site evaluation will be made at least annually and recorded on VA Form 10-2079, Inspection Report of Bakery.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989; 54 FR 40063, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 809.2—Qualified Products</HD>
            <SECTION>
              <SECTNO>809.206</SECTNO>
              <SUBJECT>Acquiring qualified products.</SUBJECT>
              <P>(a) Federal Qualified Products Lists are lists of products qualified under the applicable Federal or interim Federal specification. Such lists may be used as authorized by the appropriate administration or staff office. Requests to receive copies of existing Federal Qualified Products Lists will be submitted to the Deputy Assistant Secretary for Acquisition and Materiel Management (91) for transmittal to General Services Administration. Requests to establish a Federal Qualified Products List for a commodity will be submitted to the Deputy Assistant Secretary for Acquisition and Materiel Management (91), supported by one or more of the following justifications:</P>
              <P>(1) The time required for testing after award would unduly delay delivery of the supplies being purchased.</P>
              <P>(2) The cost of repetitive testing would be excessive.</P>
              <P>(3) The tests would require expensive or complicated testing apparatus not commonly available.</P>
              <P>(4) The interest of the Government requires assurance, prior to award, that the product is satisfactory for its intended use.</P>
              <P>(5) The determination of acceptability would require performance data to supplement technical requirements in the specification.</P>
              <P>(b) VA Qualified Products Lists are lists of products qualified by VA under VA specifications or purchase descriptions. Such lists may be established as authorized by the appropriate administration or staff office.</P>
              <P>(1) VA Qualified Products Lists will be supported by one or more of the justifications in 809.206(a) or the following:</P>
              <P>(i) Where tests result in substantial or repetitive rejections, or</P>
              <P>(ii) Where professional requirements of performance, balance, design, or construction cannot economically be developed into clear specifications, and professional judgment is required in determining the acceptability of items meeting VA requirements.</P>
              <P>(2) In the event that the requirement for VA Qualified Products List is established for any given product, known suppliers of the type of item required will be notified and given an opportunity to submit samples for inspection, and test based upon guarantee that they will deliver the item to be inspected, provided the item is acceptable. A qualified products list shall not be used as a means of restricting competition to favored suppliers. All suppliers so desiring shall be given an opportunity to have their products tested for acceptability.</P>
              <P>(3) Costs involved in the inspection and test will be borne by VA. The supplier will be required to bear the cost of the sample and its transportation to the inspecting point. After inspection, the sample shall be returned to the supplier “as is” unless it is destroyed by inspection or disposed of or retained by VA as authorized by the supplier.</P>
              <P>(4) Items which have been accepted for the qualified products list will be subject to constant review for compliance with the applicable specification. Where there is a variance between the specification and item, the supplier shall be requested to furnish an item that conforms to the specification. Failure or inability on the part of the supplier to provide an item that conforms to the specification will be sufficient cause to consider the item unacceptable in response to subsequent invitations.</P>
              <P>(5) The acceptance of an item for the qualified products list does not guarantee acceptance in any future purchase, nor does it constitute a waiver of the requirements of the specifications as to acceptance, inspection, testing or other provisions of any future contract involving such item.</P>

              <P>(6) Bid invitations covering products which have been included in a qualified products list will include the clause set <PRTPAGE P="163"/>forth in FAR 52.209-1 or 52.209-2 as applicable.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989; 54 FR 40063, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>809.270</SECTNO>
              <SUBJECT>Qualified products for convenience/labor saving foods.</SUBJECT>
              <P>(a) Each VA medical district's Dietetic Service representative is delegated authority to establish a common Qualified Products List for convenience/labor-saving foods for the use of medical centers within his/her respective district. The medical district Dietetic Service representative will notify the Director, Dietetic Service, VA Central Office, of the establishment of each Qualified Products List and amendments to each established list.</P>
              <P>(b) Each medical center is authorized to use its district Qualified Products List. Each medical center may test food of its own choice, but will submit test results to the district Dietetic Service representative. The Dietetic Service representative will coordinate and consolidate the test results and recommendations of individual medical centers with other medical centers within the district in order to avoid unnecessary duplication.</P>
              <P>(c) The approved medical district Qualified Products List will be furnished each Supply office within the district. The Supply Services will have access to complete and accurate records of established Qualified Products Lists and all test results. These records will be made available to the Office of Acquisition and Materiel Management, VA Central Office, upon request.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 809.4—Debarment, Suspension, and Ineligibility</HD>
            <SECTION>
              <SECTNO>809.400</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes procedures for debarring or suspending contractors and the inclusion of those contractors on the consolidated list of debarred, suspended or ineligible bidders.</P>
            </SECTION>
            <SECTION>
              <SECTNO>809.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Fact-finding</E> as used in this subpart shall mean a gathering of facts which is accomplished through informal meetings with the contractor, submissions of information, either verbally or in writing, by the contractor, and any other method deemed appropriate by the debarring official.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>809.404</SECTNO>
              <SUBJECT>Consolidated list of debarred, suspended, and ineligible contractors.</SUBJECT>
              <P>(a) The Office of Acquisition and Materiel Management (93) shall be responsible for the action described in FAR 9.404(c) (1), (2), (4) and (6).</P>
              <P>(b) The Office of Acquisition and Materiel Management (91) shall be responsible for the actions described by FAR 9.404(c) (3) and (5).</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>809.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <P>The Deputy Assistant Secretary for Acquisition and Materiel Management shall make the determinations required by FAR 9.405(a) and 9.405-2 to solicit from, award contracts to, or consent to subcontracts with contractors whose names are included on the consolidated list of debarred, suspended or ineligible contractors.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>809.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>809.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The Deputy Assistant Secretary for Acquisition and Materiel Management is the debarring official for the Department of Veterans Affairs.</P>
              <P>(b) Any Department of Veterans Affairs employee may submit a recommendation to the Deputy Assistant Secretary for Acquisition and Materiel Management that a firm or individual be debarred by the Department of Veterans Affairs.</P>
              <P>(c) Such recommendations must be supported by documentary evidence of a cause listed in FAR 9.406-2.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="164"/>
              <SECTNO>809.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) The Deputy Assistant Secretary for Acquisition and Materiel Management shall, upon a receipt of a recommendation for debarment, appoint a designee to conduct an investigation, initiate debarment and present the facts to the debarring official for consideration and action.</P>
              <P>(b) The appointed designee shall issue the proposed debarment notice as required by FAR 9.406-3(c).</P>
              <P>(1) If no reply is received from the firm or individual to the notice of proposed debarment, the case will be referred to the debarring official for decision on the basis of information available.</P>
              <P>(2) When a reply is received, the information provided will be considered by the appointed designee prior to making a recommendation to the debarring official. If the contractor's submission in opposition to the debarment raises a genuine dispute over facts material to the proposed debarment, the designee appointed by the Deputy Assistant Secretary for Acquisition and Materiel Management will conduct a fact-finding as prescribed by FAR 9.406-3(b)(2).</P>
              <P>(3) Upon completion of the fact-finding with respect to disputed facts, a written findings of facts will be provided to the debarring official.</P>
              <P>(4) The debarring official shall make a decision on the basis of all information available including findings of facts, and/or arguments submitted by the contractor.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>809.406-4</SECTNO>
              <SUBJECT>Period of debarment.</SUBJECT>
              <P>The period of debarment will be based upon the circumstances involved but will not, except in unusual circumstances, exceed a period of 3 years. The Deputy Assistant Secretary for Acquisition and Materiel Management may for those firms or individuals debarred by the Department of Veterans Affairs decide to remove the debarment, reduce the period of debarment, or amend the scope of the debarment, if indicated, after review of documentary evidence submitted by or in behalf of the contractor setting forth the appropriate grounds for granting of such relief. Such grounds may be, but are not limited to, newly discovered material evidence, reversal of a conviction, bona fide change of ownership or management or the elimination of the cause for which debarment was imposed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>809.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>809.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The Deputy Assistant Secretary for Acquisition and Materiel Management is the suspending official for the Department of Veterans Affairs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>809.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) Suspension may be recommended by any Department of Veterans Affairs employee. These recommendations will be submitted to the Deputy Assistant Secretary for Acquisition and Materiel Management and must be supported by documentary evidence of a cause listed in FAR 9.407-2.</P>
              <P>(b) The Deputy Assistant Secretary for Acquisition and Materiel Management shall designate an official to initiate suspension, conduct an investigation and present the facts to the suspending official for consideration and appropriate action.</P>
              <P>(c) The designee shall issue the proposed suspension notice as required by FAR 9.407-3(c).</P>
              <P>(1) If no reply is received from the contractor to the notice of proposed suspension, the case will be referred to the suspending official for decision on the basis of information available.</P>
              <P>(2) When a reply is received, the information provided will be considered by the official conducting the suspension proceedings prior to referring the case with recommendations to the suspending official. If the contractor's submission in opposition to the suspension raises a genuine dispute over facts material to the proposed suspension, the designee of the Deputy Assistant Secretary for Acquisition and Materiel Management will conduct a fact-finding as prescribed by FAR 9.407-3(b)(2).</P>

              <P>(3) Upon completion of the informal hearing with respect to the disputed facts, a written findings of facts will be prepared and presented to the suspending official.<PRTPAGE P="165"/>
              </P>
              <P>(4) The suspending official shall make a decision on the basis of all information available including findings of facts, and/or arguments submitted by the contractor.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 809.5—Organizational Conflicts of Interest</HD>
            <SECTION>
              <SECTNO>809.504</SECTNO>
              <SUBJECT>Contracting officer's responsibilities.</SUBJECT>
              <P>(a) Contracting officers will be responsible for determining the existence of actual and/or potential organizational conflicts of interest which would result from the award of the contract. The contracting officer will be guided by information submitted by offerors and by his/her own judgment. The contracting officer may obtain the advice of legal counsel and the assistance of technical specialists in evaluating potential organizational conflicts.</P>
              <P>(b) If it is determined that organizational conflicts of interest will be created by the award of the contract, the contracting officer may find an offeror nonresponsible.</P>
              <P>(c) Notwithstanding the existence of organizational conflicts of interest, it may be determined that the award of the contract would be in the best interest of the Government. In that case, the contracting officer may set terms and conditions which will reduce the organizational conflicts of interest to the greatest extent possible, with the approval of the head of the contracting activity.</P>
              <P>(d) The contracting officer will, in addition to any certifications required by this subpart, require in all solicitations for consulting services that the offeror submit as part of an offer a statement which discloses all relevant facts relating to existing or potential organizational conflicts of interest surrounding the contract and/or the proposed use of subcontractors during the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>809.505</SECTNO>
              <SUBJECT>General rules.</SUBJECT>
              <P>The determination that organizational conflicts of interest exist can only be made when facts surrounding individual contracting situations are known. Therefore, it is up to the contracting officer to exercise common sense, good judgment and sound discretion in making such a determination and to take steps to mitigate to the greatest extent possible organizational conflicts of interest. The contracting officer will be guided by at least two underlying principles. These are that organizational conflicts of interest may result from (a) conflicting roles and interests of the contractor, in which case he/she would be unable to give unbiased and objective advice or may otherwise produce a biased work product; or (b) unfair competitive advantage which exceeds a normal flow of benefits from the award of the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>809.508-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The representation in 852.209-70, Organizational Conflicts of Interest, will be made a part of all solicitations for consulting services.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 809.7—Defense Production Pools and Research and Development Pools</HD>
            <SECTION>
              <SECTNO>809.702</SECTNO>
              <SUBJECT>Contracting with pools.</SUBJECT>
              <P>Department of Veterans Affairs contracting officers will be advised of, consider bids from, and make awards to, Small Business and Defense Production Pools. The Chief Medical Director, or designee, will notify the appropriate administrations and staff offices when such pools are approved.</P>
              <CITA>[49 FR 12594, Mar. 29, 1984, as amended at 54 FR 40063, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 811</EAR>
          <HD SOURCE="HED">PART 811—DESCRIBING AGENCY NEEDS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>811.001</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 811.1—Selecting and Developing Requirements Documents</HD>
              <SECTNO>811.104</SECTNO>
              <SUBJECT>Items particular to one manufacturer.</SUBJECT>
              <SECTNO>811.104-70</SECTNO>
              <SUBJECT>Purchase descriptions.</SUBJECT>
              <SECTNO>811.104-71</SECTNO>
              <SUBJECT>Bid evaluation and award.</SUBJECT>
              <SECTNO>811.104-72</SECTNO>
              <SUBJECT>Procedure for negotiated procurements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="166"/>
              <HD SOURCE="HED">Subpart 811.2—Using and Maintaining Requirements Documents</HD>
              <SECTNO>811.202</SECTNO>
              <SUBJECT>Maintenance of standardization documents.</SUBJECT>
              <SECTNO>811.204</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 811.4—Delivery or Performance Schedules</HD>
              <SECTNO>811.404</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 811.5—Liquidated Damages</HD>
              <SECTNO>811.502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>811.504</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 811.6—Priorities and Allocations</HD>
              <SECTNO>811.602</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>63 FR 17335, Apr. 9, 1998, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>811.001</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>(a) <E T="03">Brand name product</E> means a commercial product described by brand name and make or model number or other appropriate nomenclature by which such product is offered for sale to the public by the particular manufacturer, producer or distributor.</P>
            <P>(b) <E T="03">Salient characteristics</E> are those particular characteristics that specifically describe the essential physical and functional features of the material or service required. They are those essential physical or functional features which are identified in the specifications as a mandatory requirement which a proposed “equal” product or material must possess in order for the bid to be considered responsive. Bidders must furnish all descriptive literature and bid samples required by the solicitation to establish such “equality”.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 811.1—Selecting and Developing Requirements Documents</HD>
            <SECTION>
              <SECTNO>811.104</SECTNO>
              <SUBJECT>Items particular to one manufacturer.</SUBJECT>
              <P>(a) Specifications shall be written in accordance with FAR 11.002 unless otherwise justified by the specification writer and approved by the contracting officer as described in paragraph (b) of this section. The contract file shall be documented accordingly.</P>
              <P>(b) When it is determined that a particular physical or functional characteristic of only one product will meet the minimum requirements of the Department of Veterans Affairs (see FAR 11.104) or that a “brand name or equal” purchase description will be used, the specification writer, whether agency personnel, architect-engineer, or consultant with which the Department of Veterans Affairs has contracted, shall separately identify the item(s) to the contracting officer and provide a full written justification of the reason the particular characteristic is essential to the Government's requirements or why the “brand name or equal” purchase description is necessary. The contracting officer shall make the final determination whether restrictive specifications or “brand name or equal” purchase descriptions will be included in the solicitation.</P>
              <P>(c) Purchase descriptions that contain references to one or more brand name products may be used only in accordance with 811.104-70, 811.104-71, and 811.104-72. In addition, purchase descriptions that contain references to one or more brand name products shall be followed by the words “or equal,” except when the acquisition is fully justified under FAR 6.3 and VAAR 806.3. Acceptable brand name products should be listed in the solicitation. Where a “brand name or equal” purchase description is used, prospective contractors must be given the opportunity to offer products other than those specifically referenced by brand name if such other products are determined by the Government to fully meet the salient characteristics listed in the invitation. The contract file will be documented in accordance with paragraph (b) of this section, justifying the need for use of a brand name or equal description.</P>

              <P>(d) “Brand name or equal” purchase descriptions shall set forth those salient physical, functional, or other characteristics of the referenced products which are essential to the minimum needs of the Government. For example, when interchangeability of parts is required, such requirement <PRTPAGE P="167"/>should be specified. Purchase descriptions shall contain the following information to the extent available and include such other information as is necessary to describe the item required:</P>
              <P>(1) Complete common generic identification of the item required;</P>
              <P>(2) Applicable model, make or catalog number for each brand name product referenced, and identity of the commercial catalog in which it appears; and</P>
              <P>(3) Name of manufacturer, producer or distributor of each brand name product referenced (and address if not well known).</P>
              <P>(e) When necessary to describe adequately the item required, an applicable commercial catalog description or pertinent extract may be used if such description is identified in the solicitation as being that of the particular named manufacturer, producer or distributor. The contracting officer will insure that a copy of any catalogs referenced (except parts catalogs) is available on request for review by bidders at the purchasing office.</P>
              <P>(f) Except as noted in paragraph (d) of this section, purchase descriptions shall not include either minimum or maximum restrictive dimensions, weights, materials or other salient characteristics which are unique to a brand name product or which would tend to eliminate competition or other products which are only marginally outside the restrictions. However, purchase description may include restrictive dimensions, weights, materials or other salient characteristics if such restrictions are determined in writing by the user to be essential to the Government's requirements, the brand name of the product is included in the purchase description, and all other determinations required by 811.104 are made.</P>
            </SECTION>
            <SECTION>
              <SECTNO>811.104-70</SECTNO>
              <SUBJECT>Purchase descriptions.</SUBJECT>
              <P>(a) When any purchase description, including a “brand name or equal” purchase description, is used in a solicitation for a supply contract to describe required items of mechanical equipment, the solicitation will include the clauses in 852.211-70 (Service Data Manual) and in 852.211-71 (Guarantee).</P>
              <P>(b) Solicitations using “brand name or equal” purchase descriptions will contain the “brand name or equal” clause in 852.211-77, and the provision set forth at FAR 52.214-21, Descriptive Literature. Contracting officers are cautioned to review the requirements at FAR 14.202-5(d) when utilizing the descriptive literature provision.</P>
              <P>(c) Except as provided in paragraph 811.104-70(d), when a “brand name or equal” purchase description is included in an invitation for bids, the following shall be inserted after each item so described in the solicitation, for completion by the bidder:</P>
              <EXTRACT>
                <HD SOURCE="HD3">Bidding on:</HD>
                <FP SOURCE="FP-DASH">Manufacturer name</FP>
                
                <FP SOURCE="FP-DASH">Brand</FP>
                
                <FP SOURCE="FP-DASH">No.</FP>
              </EXTRACT>
              

              <P>(d)(1) When component parts of an end item are described in the solicitation by a “brand name or equal” purchase description and the contracting officer determines that the clause in 811.104-70(b) is inapplicable to such component parts, the requirements of 811.104-70(c) shall not apply with respect to such component parts. In such cases, if the clause is included in the solicitation for other reasons, a statement substantially as follows also shall be included:
              </P>

              <P>The clause entitled “Brand Name or Equal” does not apply to the following component parts (list the component parts to which the clause does not apply): and
              </P>

              <P>(2) In the alternative, if the contracting officer determines that the clause in 811.104-70(b) shall apply to only certain such component parts, the requirements of 811.104-70(c) shall apply to such component parts and a statement substantially as follows also shall be included:
              </P>

              <P>The clause entitled “Brand Name or Equal” applies to the following component parts (list the component parts to which the clause applies):
              </P>

              <P>(e) When a solicitation contains “brand name or equal” purchase descriptions, bidders who offer brand name products, including component parts, referenced in such descriptions shall not be required to furnish bid samples of the referenced brand name products. However, solicitations may <PRTPAGE P="168"/>require the submission of bid samples in the case of bidders offering “or equal” products. If bid samples are required, the solicitation shall include the provision set forth at FAR 52.214-20, Bid Samples. The bidder must still furnish all descriptive literature in accordance with and for the purpose set forth in the “Brand Name or Equal” clause, 852.211-77(c)(1) and (2), even though bid samples may not be required.</P>
            </SECTION>
            <SECTION>
              <SECTNO>811.104-71</SECTNO>
              <SUBJECT>Bid evaluation and award.</SUBJECT>
              <P>(a) Bids offering products that differ from brand name products referenced in a “brand name or equal” purchase description shall be considered for award when the contracting officer determines in accordance with the terms of the clause at 852.211-77 that the offered products are clearly identified in the bids and are equal in all material respects to the products specified.</P>
              <P>(b) Award documents shall identify, or incorporate by reference, an identification of the specific products which the contractor is to furnish. Such identification shall include any brand name and make or model number, descriptive material, and any modifications of brand name products specified in the bid. Included in this requirement are those instances when the descriptions of the end items contain “brand name or equal” purchase descriptions of component parts or of accessories related to the end item, and the clause at 852.211-77 was applicable to such component parts or accessories (see 811.104-70(d)(2)).</P>
            </SECTION>
            <SECTION>
              <SECTNO>811.104-72</SECTNO>
              <SUBJECT>Procedure for negotiated procurements.</SUBJECT>
              <P>(a) The policies and procedures prescribed in 811.104-70 and 811.104-71 should be used as a guide in developing adequate purchase descriptions for negotiated procurements.</P>
              <P>(b) The clause at 852.211-77 may be adapted for use in negotiated procurements. If use of the clause is not practicable (as may be the case in unusual and compelling urgency purchases), suppliers shall be suitably informed that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that such offered products are equal in all material respects to the products referenced.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 811.2—Using and Maintaining Requirements Documents</HD>
            <SECTION>
              <SECTNO>811.202</SECTNO>
              <SUBJECT>Maintenance of standardization documents.</SUBJECT>
              <P>(a) <E T="03">Military and departmental specifications.</E> Contracting officers may, when they deem it to be advantageous to the Department of Veterans Affairs, utilize these specifications when procuring supplies and equipment costing less than the simplified acquisition threshold. However, when purchasing items of perishable subsistence, contracting officers shall observe only those exemptions set forth in paragraphs (b)(2) and (b)(3) of this section.</P>
              <P>(b) <E T="03">Nutrition and Food Service specifications.</E> (1) The Department of Veterans Affairs has adopted for use in the procurement of packinghouse products, the purchase descriptions and specifications set forth in the Institutional Meat Purchase Specifications (IMPS), and the IMPS General Requirements, which have been developed by the U.S. Department of Agriculture. Purchase descriptions and specifications for dairy products, poultry, eggs, fresh and frozen fruits and vegetables, as well as certain packinghouse products selected from the IMPS especially for Department of Veterans Affairs use, are contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, Publication No. C8900-SL. A copy of Part IV of this catalog and the IMPS may be obtained from any Department of Veterans Affairs contracting officer.</P>

              <P>(2) The military specifications for meat and meat products contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, shall be used by the Department of Veterans Affairs only when purchasing such items of subsistence from the Defense Logistics Agency (DLA). Military specifications for poultry, eggs, and egg products contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, may be used when purchasing either from DLA or from local dealers.<PRTPAGE P="169"/>
              </P>
              <P>(3) Except as authorized in part 846 of this chapter, contracting officers shall not deviate from the specifications contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, and the IMPS without prior approval of the Deputy Assistant Secretary for Acquisition and Materiel Management.</P>
              <P>(4) Items of meat, cured pork and poultry not listed in either Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, or the IMPS, will not be purchased without prior approval of the Deputy Assistant Secretary for Acquisition and Materiel Management.</P>
              <P>(c) <E T="03">Department of Veterans Affairs specifications.</E> (1) The Director, Publications Service, is responsible for developing, publishing, and distributing Department of Veterans Affairs specifications covering printing and binding.</P>
              <P>(2) Department of Veterans Affairs specifications, as they are revised, are placed in stock in the VA Forms and Publications Depot. Facility requirements for these specifications will be requisitioned from that source.</P>
              <P>(d) <E T="03">Government paper specification standards.</E> (1) Invitations for bids, requests for proposals, purchase orders, or other procurement instruments covering the purchase of paper stocks to be used in duplicating or printing, or which specify the paper stocks to be used in buying printing, binding, or duplicating, will require that such paper stocks be in accordance with the Government Paper Specification Standards issued by the Joint Committee on Printing of Congress.</P>
              <P>(2) All binding or rebinding of books, magazines, pamphlets, newspapers, slip cases and boxes will be procured in accordance with Government Printing Office (GPO) specifications and will be procured from the servicing GPO Regional Printing Procurement Office or, when appropriate, from commercial sources.</P>
              <P>(3) There are three types of binding/rebinding: Class A (hard cover); Perfect (glued); and Lumbinding (sewn). The most suitable type of binding will be procured to satisfy the requirements, based upon the intended use of the bound material.</P>
            </SECTION>
            <SECTION>
              <SECTNO>811.204</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>
                <E T="03">Specifications.</E> When product specifications are cited in an invitation for bids or requests for proposals, the citation shall include desired options and shall conform to the following:
              </P>
              <P>Shall be type _____, grade _____, in accordance with (type of specification) No. ____, dated______ and amendment ____ dated _____, except paragraphs ____ and _____ which are amended as follows:</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 811.4—Delivery or Performance Schedules</HD>
            <SECTION>
              <SECTNO>811.404</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>When delivery is required by or on a particular date, the time of delivery clause set forth in FAR 52.211-8 as it relates to f.o.b. destination contracts will state that the delivery date specified is the date by which the shipment is to be delivered, not the shipping date. In f.o.b. origin contracts, the clause will state that the date specified is the date shipment is to be accepted by the carrier.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 811.5—Liquidated Damages</HD>
            <SECTION>
              <SECTNO>811.502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Liquidated damages provisions will not be routinely included in supply or construction contracts, regardless of dollar amount. The decision to include liquidated damages provisions will conform to the criteria in FAR 11.502. In making this decision, consideration will be given to whether the necessity for timely delivery or performance as required in the contract schedule is so critical that a probable increase in contract price is justified. Liquidated damages provisions will not be included as insurance against selection of a non-responsible bidder, as a substitute for efficient contract administration, or as a penalty for failure to perform on time.</P>
            </SECTION>
            <SECTION>
              <SECTNO>811.504</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>

              <P>When the liquidated damages clause prescribed in FAR 52.211-11 or 52.211-12 <PRTPAGE P="170"/>is to be used and where partial performance may be utilized to the advantage of the Government, the clause in 852.211-78 will be included in the contract.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 811.6—Priorities and Allocations</HD>
            <SECTION>
              <SECTNO>811.602</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) Priorities and allocations of critical materials are controlled by the Department of Commerce. Essentially, such priorities and allocations are restricted to projects having a direct connection with supporting current defense needs. The Department of Veterans Affairs is not authorized to assign a priority rating to its purchase orders or contracts involving the acquisition or use of critical materials.</P>
              <P>(b) In those instances where it has been technically established that it is not feasible to use a substitute material, the Department of Commerce has agreed to assist us in obtaining critical materials for maintenance and repair projects. They will also, where possible, render assistance in connection with the purchase of new items, which may be in short supply because of their use in connection with the defense effort.</P>
              <P>(c) Contracting officers having problems in acquiring critical materials will ascertain all the facts necessary to enable the Department of Commerce to render assistance to the Department of Veterans Affairs in acquiring these materials. The contracting officer will submit a request for assistance containing the following information to the Deputy Assistant Secretary for Acquisition and Materiel Management (90):</P>
              <P>(1) A description of the maintenance and repair project or the new item, whichever is applicable;</P>
              <P>(2) The critical material and the amount required;</P>
              <P>(3) The contractor's sources of supply, including any addresses. If the source is other than the manufacturer or producer, also list the name and address of the manufacturer or producer;</P>
              <P>(4) The Department of Veterans Affairs contract or purchase order number;</P>
              <P>(5) The contractor's purchase order number, if known, and the delivery time requirement as stated in the solicitation or offer;</P>
              <P>(6) The additional time the contractor claims will be necessary to effect delivery if priority assistance is not provided;</P>
              <P>(7) The nature and extent of the emergency that will be generated at the station, e.g.,</P>
              <P>(i) damage to the physical plant,</P>
              <P>(ii) impairment of the patient care program,</P>
              <P>(iii) creation of safety hazards, and</P>
              <P>(iv) any other pertinent condition that will result because of failure to secure assistance in obtaining the critical materials; and</P>
              <P>(8) If applicable, a statement that the item required is for use in a construction contract which was authorized by the Chief Facilities Management Officer, Office of Facilities Management, to be awarded and administered by the facility contracting officer.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 812</EAR>
          <HD SOURCE="HED">PART 812—ACQUISITION OF COMMERCIAL ITEMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 812.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>812.301</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses for the acquisition of commercial items.</SUBJECT>
              <SECTNO>812.302</SECTNO>
              <SUBJECT>Tailoring of provisions and clauses for the acquisition of commercial items.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>63 FR 17338, Apr. 9, 1998, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>812.301</SECTNO>
            <SUBJECT>Solicitation provisions and contract clauses for the acquisition of commercial items.</SUBJECT>
            <P>(a) Notwithstanding prescriptions contained elsewhere in the VAAR, when acquiring commercial items, contracting officers shall be required to use only those provisions and clauses prescribed in this part.</P>

            <P>(b) The provision and clause in the following VAAR sections shall be used, in accordance with the prescriptions contained therein or elsewhere in the <PRTPAGE P="171"/>VAAR, in requests for quotations, solicitations, or contracts for the acquisition of commercial items:</P>
            <P>(1) 852.219-70, Veteran-owned small business.</P>
            <P>(2) 852.270-4, Commercial advertising.</P>
            <P>(c) The provisions and clauses in the following VAAR sections must be used, when appropriate, in accordance with the prescriptions contained therein or elsewhere in the VAAR, in requests for quotations, solicitations, or contracts for the acquisition of commercial items:</P>
            <P>(1) 852.207-70, Report of employment under commercial activities.</P>
            <P>(2) 852.211-71, Guarantee clause.</P>
            <P>(3) 852.211-72, Inspection.</P>
            <P>(4) 852.211-73, Frozen processed foods.</P>
            <P>(5) 852.211-74, Telecommunications equipment.</P>
            <P>(6) 852.211-75, Technical industry standards.</P>
            <P>(7) 852.214-70, Caution to bidders-bid envelopes.</P>
            <P>(8) 852.216-70, Estimated quantities for requirements contracts.</P>
            <P>(9) 852.229-70, Purchases from patient's funds.</P>
            <P>(10) 852.229-71, Purchases for patients using Government funds and/or personal funds of patients.</P>
            <P>(11) 852.233-70, Protest content.</P>
            <P>(12) 852.237-7, Indemnification and Medical Liability Insurance.</P>
            <P>(13) 852.237-70, Contractor responsibilities.</P>
            <P>(14) 852.237-71, Indemnification and insurance (vehicle and aircraft service contracts).</P>
            <P>(15) 852.252-1, Provisions or clauses requiring completion by the offeror or prospective contractor.</P>
            <P>(16) 852.270-1, Representatives of contracting officers.</P>
            <P>(17) 852.270-2, Bread and bakery products.</P>
            <P>(18) 852.270-3, Purchase of shellfish.</P>
            <P>(d) The clauses in the following VAAR sections shall be used, when appropriate, in accordance with the prescriptions contained therein or elsewhere in the VAAR, in requests for quotations, solicitations, or contracts for the acquisition of commercial items, provided the contracting officer determines that use of the clauses is consistent with customary commercial practices.</P>
            <P>(1) 852.211-70, Requirements for operating and maintenance manuals.</P>
            <P>(2) 852.211-77, Brand name or equal.</P>
            <P>(e) The contracting officer shall insert the clause in 852.271-70, Services provided eligible beneficiaries, by reference, in all requests for quotations, solicitations, and contracts meeting the prescription contained therein.</P>
            <P>(f) Clauses are not required for micro-purchases using the procedures of this part or part 813. However, this does not prohibit the use of any clause prescribed in this part or elsewhere in this chapter in micro-purchases when determined by the contracting officer to be in the Government's best interest.</P>
            <P>(g) When soliciting for commercial services or the use of medical equipment or space under the authority of part 873 and 38 U.S.C. 8151-8153, the provisions and clauses in the following VAAR sections may be used in accordance with the prescriptions contained therein or elsewhere in the VAAR:</P>
            <P>(1) 852.273-70, Late offers.</P>
            <P>(2) 852.273-71, Alternative negotiation techniques.</P>
            <P>(3) 852.273-72, Alternative evaluation.</P>
            <P>(4) 852.273-73, Evaluation—health-care resources.</P>
            <P>(5) 852.273-74, Award without exchanges.</P>
            <CITA>[63 FR 17338, Apr. 9, 1998, as amended at 64 FR 69934, Dec. 15, 1999; 68 FR 3468, Jan. 24, 2003]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>812.302</SECTNO>
            <SUBJECT>Tailoring of provisions and clauses for the acquisition of commercial items.</SUBJECT>
            <P>
              <E T="03">Agency procedures for approval of waivers:</E> Waivers to tailor solicitations in a manner that is inconsistent with customary commercial practice shall be prepared by contracting officers in accordance with FAR 12.302(c). Waiver requests shall be submitted to the contracting officer's next higher level supervisor for approval. Approved requests shall be retained in the contract file.</P>
          </SECTION>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="172"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 813</EAR>
          <HD SOURCE="HED">PART 813—SIMPLIFIED ACQUISITION PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 813.1—Procedures</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>813.106-70</SECTNO>
              <SUBJECT>Oral purchase orders.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 813.3—Simplified Acquisition Methods</HD>
              <SECTNO>813.302</SECTNO>
              <SUBJECT>Purchase orders.</SUBJECT>
              <SECTNO>813.302-5</SECTNO>
              <SUBJECT>Clauses.</SUBJECT>
              <SECTNO>813.307</SECTNO>
              <SUBJECT>Forms.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 813.1—Procedures</HD>
            <SECTION>
              <SECTNO>813.106-70</SECTNO>
              <SUBJECT>Oral purchase orders.</SUBJECT>
              <P>Oral purchase orders, when considered advantageous to the Department of Veterans Affairs, may be used for transactions not in excess of $2,500. This limitation does not apply to delivery orders against existing contracts, e.g., delivery orders against FSS Contracts. The transaction will be assigned a purchase order number and receipt documentation will be obtained on the copies of the purchase request utilized as a property voucher and receiving report. Documentation as to competition will be in accordance with FAR 13.106-3.</P>
              <CITA>[52 FR 28560, July 31, 1987. Redesignated and amended at 64 FR 69935, Dec. 15, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 813.3—Simplified Acquisition Methods</HD>
            <SECTION>
              <SECTNO>813.302</SECTNO>
              <SUBJECT>Purchase orders.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>813.302-5</SECTNO>
              <SUBJECT>Clauses.</SUBJECT>
              <P>When using VA Forms 90-2138 or 90-2138-ADP for maintenance contracts involving services performed on Government property which have the potential for property damage and liability claims, the contracting officer shall insert in the purchase order the Contractor Responsibilities clause found at 852.237-70. Applicable maintenance contracts include but are not limited to window washing, pest control, and elevator maintenance.</P>
              <CITA>[64 FR 69935, Dec. 15, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>813.307</SECTNO>
              <SUBJECT>Forms.</SUBJECT>
              <P>(a) VA Form 90-2138, Order for Supplies or Services, VA Form 90-2139, Order for Supplies or Services (Continuation), VA Form 90-2138-ADP, Purchase Order for Supplies or Services, and VA Form 2139-ADP, Order for Supplies and Services (Continuation), provide in one set of forms a purchase or delivery order, vendor's invoice, and receiving report. They will be used in lieu of but in the same manner as Optional Form 347, Order for Supplies or Services, Optional Form 348, Order for Supplies or Services Schedule—Continuation, and Standard Form 1449, Solicitation/Contract/Order for Commercial Items.</P>
              <P>(b) The following order forms are for use when ordering the indicated medical, dental and ancillary services up to $10,000 per authorization when such services are not available under existing contracts.</P>
              <P>(1) VA Form 10-7078, Authorization and Invoice for Medical and Hospital Services.</P>
              <P>(2) VA Form 10-7079, Request for Outpatient Medical Services.</P>
              <P>(3) VA Form 10-2570d, Dental Record, Authorization and Invoice for Outpatient Services.</P>
              <P>(c) In authorizing patient travel as set forth in VA Manual MP-1, Part II, Chapter 3, VA Form 10-2511, Authority and Invoice for Travel by Ambulance or Other Hired Vehicle, will be used as provided by that manual.</P>
              <P>(d) Standard Form 182, Request, Authorization, Agreement, and Certification of Training, will be utilized for the procurement of training in the manner prescribed in 870.104.</P>
              <P>(e) VA Form 10-2421, Prosthetics Authorization and Invoice, will be used for indicated procurements not in excess of $300.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984. Redesignated and amended at 64 FR 69934, Dec. 15, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="173"/>
          <EAR>Pt. 814</EAR>
          <HD SOURCE="HED">PART 814—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 814.1—Use of Sealed Bidding</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>814.103</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>814.103-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>814.104</SECTNO>
              <SUBJECT>Types of contracts.</SUBJECT>
              <SECTNO>814.104-70</SECTNO>
              <SUBJECT>Fixed-price contracts with escalation.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 814.2—Solicitation of Bids</HD>
              <SECTNO>814.201</SECTNO>
              <SUBJECT>Preparation of invitations for bids.</SUBJECT>
              <SECTNO>814.202</SECTNO>
              <SUBJECT>General rules for solicitation of bids.</SUBJECT>
              <SECTNO>814.202-4</SECTNO>
              <SUBJECT>Bid samples.</SUBJECT>
              <SECTNO>814.203</SECTNO>
              <SUBJECT>Methods of soliciting bids.</SUBJECT>
              <SECTNO>814.203-1</SECTNO>
              <SUBJECT>Mailing or delivery to prospective bidders.</SUBJECT>
              <SECTNO>814.204</SECTNO>
              <SUBJECT>Records of invitations for bids and records of bids.</SUBJECT>
              <SECTNO>814.205</SECTNO>
              <SUBJECT>Solicitation mailing lists.</SUBJECT>
              <SECTNO>814.205-1</SECTNO>
              <SUBJECT>Establishment of lists.</SUBJECT>
              <SECTNO>814.205-2</SECTNO>
              <SUBJECT>Removal of names from solicitation mailing lists.</SUBJECT>
              <SECTNO>814.205-5</SECTNO>
              <SUBJECT>Release of solicitation mailing lists.</SUBJECT>
              <SECTNO>814.208</SECTNO>
              <SUBJECT>Amendment of invitation for bids (construction).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 814.3—Submission of Bids</HD>
              <SECTNO>814.301</SECTNO>
              <SUBJECT>Responsiveness of bids.</SUBJECT>
              <SECTNO>814.302</SECTNO>
              <SUBJECT>Bid submission.</SUBJECT>
              <SECTNO>814.304</SECTNO>
              <SUBJECT>Late bids, late modifications of bids, or late withdrawal of bids.</SUBJECT>
              <SECTNO>814.304-2</SECTNO>
              <SUBJECT>Notification to late bidders.</SUBJECT>
              <SECTNO>814.304-4</SECTNO>
              <SUBJECT>Records.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 814.4—Opening of Bids and Award of Contract</HD>
              <SECTNO>814.402</SECTNO>
              <SUBJECT>Opening of bids.</SUBJECT>
              <SECTNO>814.403</SECTNO>
              <SUBJECT>Recording of bids.</SUBJECT>
              <SECTNO>814.404</SECTNO>
              <SUBJECT>Rejection of bids.</SUBJECT>
              <SECTNO>814.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>
              <SECTNO>814.404-2</SECTNO>
              <SUBJECT>Rejection of individual bids.</SUBJECT>
              <SECTNO>814.404-70</SECTNO>
              <SUBJECT>Questions involving the responsiveness of a bid.</SUBJECT>
              <SECTNO>814.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
              <SECTNO>814.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <SECTNO>814.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
              <SECTNO>814.408</SECTNO>
              <SUBJECT>Award.</SUBJECT>
              <SECTNO>814.408-70</SECTNO>
              <SUBJECT>Award when only one bid is received.</SUBJECT>
              <SECTNO>814.408-71</SECTNO>
              <SUBJECT>Recommendation for award (construction).</SUBJECT>
              <SECTNO>814.409</SECTNO>
              <SUBJECT>Information to bidders.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12599, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 814.1—Use of Sealed Bidding</HD>
            <SECTION>
              <SECTNO>814.103</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.103-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Contracts in excess of the small purchase limitation or in excess of $1,000 for contracts made for repairs to property acquired by the Department of Veterans Affairs under chapter 37, title 38, United States Code, will be made by sealed bidding when all of the elements necessary for sealed bidding as prescribed in FAR 6.401(a) are present.</P>
              <CITA>[51 FR 23068, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 54 FR 40063, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.104</SECTNO>
              <SUBJECT>Types of contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.104-70</SECTNO>
              <SUBJECT>Fixed-price contracts with escalation.</SUBJECT>
              <P>When contracts of this nature are authorized pursuant to 816.102(b), contracting officers will be guided by the provisions of FAR 16.203.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 814.2—Solicitation of Bids</HD>
            <SECTION>
              <SECTNO>814.201</SECTNO>
              <SUBJECT>Preparation of invitations for bids.</SUBJECT>
              <P>(a) Invitations for bids for supplies, equipment and services will be serially numbered at the time of issue. The number will consist of the station or National Acquisition Center division number, the serial number of the invitation, and the fiscal year in which issued, e.g., 101-24-84. A series beginning with the number 1 will be started each fiscal year. Invitations for bids for supplies, equipment and services which are issued, accepted and become contracts in the same fiscal year but, because of procurement leadtime, will not be performed until the ensuing fiscal year will be numbered in the series of the year in which they are issued. However, invitations issued in one fiscal year that will result in a contract that will become effective and performed only in the ensuing fiscal year will be numbered in the ensuing fiscal year series.</P>

              <P>(b) Invitations for construction contracts will bear the applicable IFB number and project number, if assigned.<PRTPAGE P="174"/>
              </P>
              <P>(c) In order to preclude adverse criticism of the Department of Veterans Affairs by prospective bidders relative to the disclosure of bid prices prior to bid opening, the provision entitled “Caution to Bidders Bid-Envelopes,” as set forth in 852.214-70, will be prominently placed in all invitations for bids.</P>
              <P>(d) To realize the greatest possible price advantage for the Government, items that may be processed by a contractor to effect a reduction in cost factors such as production, inspection and delivery, may be listed for award on both individual item and summary item bases. Items will be listed individually and, in addition, a summary price will be solicited for those items the contracting officer determines to be of a related character and normally handled by a majority of prospective bidders.</P>

              <P>(1) When different products are to be combined for a summary price, the quantity, unit and unit price columns opposite the summary item will be crossed out, e.g.:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">(Item No.) Summary bid for furnishing items ___ to ___ inclusive on an all or none basis:</FP>
              </EXTRACT>
              <GPOTABLE CDEF="s25,r25,r25,r25" COLS="4" OPTS="L2">
                <BOXHD>
                  <CHED H="1">Quantity</CHED>
                  <CHED H="1">Unit</CHED>
                  <CHED H="1">Unit Price</CHED>
                  <CHED H="1">Summary</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">XX</ENT>
                  <ENT>XX</ENT>
                  <ENT>XX</ENT>
                  <ENT>$ XX</ENT>
                </ROW>
                <TNOTE>(Bidder will enter summary amount.)</TNOTE>
              </GPOTABLE>

              <P>(2) When a single unit price is solicited for a single product for delivery to various destinations, or for multiple deliveries, the total quantity required will be listed opposite the summary item, e.g.:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">(Item No.) Summary bid for furnishing items ___ to ___ inclusive on all or none basis:</FP>
              </EXTRACT>
              <GPOTABLE CDEF="s25,r25,r25,r25" COLS="4" OPTS="L2">
                <BOXHD>
                  <CHED H="1">Quantity</CHED>
                  <CHED H="1">Unit</CHED>
                  <CHED H="1">Unit Price</CHED>
                  <CHED H="1">Summary</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">XX</ENT>
                  <ENT>XX</ENT>
                  <ENT>XX</ENT>
                  <ENT>$ XX</ENT>
                </ROW>
                <TNOTE>(Bidder will enter unit price and summary amount.)</TNOTE>
              </GPOTABLE>

              <P>(3) Invitations containing a summary bid request will contain the following statement:
              </P>
              <EXTRACT>
                <P>The award will be made on either an individual item basis or summary bid basis, whichever results in the lowest cost to the Government. Therefore, to assure proper evaluation of all bids, a bidder quoting a summary bid price must also quote a price on each individual item included in the summary bid price.</P>
              </EXTRACT>
              
              <P>(e) Bid invitations for supplies, equipment, or services (other than construction) must define the extent to which alternate bids will be authorized and considered. Alternates specified on construction projects will be considered for acceptance only as a part of the basic item.</P>
              <P>(1) When an alternate item will be considered only if no bids or insufficient bids are received on the item desired, the clause set forth in 852.214-71(a) will be included in the invitation.</P>
              <P>(2) When an alternate item will be considered on an equal basis with the item specified, the clause set forth in 852.214-71(b) will be included in the invitation.</P>
              <P>(3) In addition to the clauses referenced in paragraph (e) (1) or (2) of this section, the clause set forth in 852.214-71(c) will be included in the invitation when bids will be allowed on different packaging, unit designation, etc.</P>
              <P>(f) When a contracting officer determines that it will be advantageous to the Government to make the award by group or groups of items, a provision for such award will be included in the invitation for bids.</P>
              <P>(1) This may apply when:</P>
              <P>(i) The items in the group or groups are readily available from the sources to be solicited; and</P>
              <P>(ii) It is desirable to make a minimum number of contracts; or</P>
              <P>(iii) Furniture or fixtures are required for a single project and uniformity of design is desirable; or</P>
              <P>(iv) The articles required will be assembled and used as a unit.</P>
              <P>(2) Solicitations for supplies and services, other than construction, will contain the provision set forth in FAR 52.214-22.</P>

              <P>(3) Solicitations for construction contracts which solicit prices on an item and alternate item basis (when it is intended that a single aggregate award will be made for all items in the solicitation within certain fiscal limitations) will contain a statement as to the order of priority in which the alternate items will be awarded. This priority will be based on the relative importance of an item, the Department of Veterans Affairs' estimate, and the <PRTPAGE P="175"/>amount of funds available. Such schedules will be substantially as follows:
              </P>
              <EXTRACT>
                <P>Item No. 1—Furnish all labor, material, equipment, etc., to paint buildings No. 1, 2, and 3, $___.</P>
                <P>Alternate items in order of priority. Furnish all labor, material, equipment, etc., to paint:</P>
                <P>Item No. 2—Building No. 1 only $___.</P>
                <P>Item No. 3—Building No. 2 only $___.</P>
              </EXTRACT>
              
              <FP>A single award will be made on Item No. 1, but in the event the offer exceeds the funds available, a single award will be made on Item No. 2, or a combination of Item Nos. 2 and 3. Offerors should quote a price on each item listed.</FP>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 50 FR 791, Jan. 7, 1985; 51 FR 23068, June 25, 1986; 52 FR 28559, July 31, 1987; 52 FR 49017, Dec. 29, 1987; 54 FR 30044, July 18, 1989; 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.202</SECTNO>
              <SUBJECT>General rules for solicitation of bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.202-4</SECTNO>
              <SUBJECT>Bid samples.</SUBJECT>
              <P>When it has been determined that samples are necessary to the proper awarding of a contract, the provision set forth in 852.214-73 will be added to the provision in FAR 52.214-20.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 52 FR 49017, Dec. 29, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.203</SECTNO>
              <SUBJECT>Methods of soliciting bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.203-1</SECTNO>
              <SUBJECT>Mailing or delivery to prospective bidders.</SUBJECT>
              <P>The contracting officer will include either a bid envelope, or Optional Form 17, Sealed Bid Label, with each invitation for bids furnished to prospective bidders.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 51 FR 23068, June 25, 1986; 52 FR 28559, July 31, 1987; 58 FR 48974, Sept. 21, 1993]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.204</SECTNO>
              <SUBJECT>Records of invitations for bids and records of bids.</SUBJECT>
              <P>(a) A single register will be established and maintained by the issuing office on a fiscal year basis for all solicitations by invitations for bid or requests for proposal number, date of issue, date of opening, commodity or service involved and disposition, i.e., contract number or purchase order number or, when applicable, no award.</P>
              <P>(b) Maintenance of the contract file prescribed by part 804 and retention of canceled Invitation for Bid files will fulfill the requirements set forth in FAR 14.204.</P>
            </SECTION>
            <SECTION>
              <SECTNO>814.205</SECTNO>
              <SUBJECT>Solicitation mailing lists.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.205-1</SECTNO>
              <SUBJECT>Establishment of lists.</SUBJECT>
              <P>From the solicitations mailing list applications received, each contracting activity will compile and keep current a Solicitations Mailing List file. The lists will be maintained according to the commodity classification or group of items normally listed on the same invitation for bids.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 51 FR 23068, June 25, 1986; 52 FR 28559, July 31, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.205-2</SECTNO>
              <SUBJECT>Removal of names from solicitation mailing lists.</SUBJECT>
              <P>Except as provided for in FAR 14.205-2, no Department of Veterans Affairs contracting officer, or other employee, shall remove from the solicitation mailing list the name of any prospective solicitation.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 51 FR 23068, June 25, 1986; 52 FR 28559, July 31, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.205-5</SECTNO>
              <SUBJECT>Release of solicitation mailing lists.</SUBJECT>
              <P>When invitations for bids for supply and service contracts have been issued, contracting officers may furnish, upon request of an individual or institution having a bona fide interest in such information, a list of the prospective bidders to whom invitations for bids were submitted. The provisions of FAR 14.205-5 will be observed with respect to invitations for bids for construction contracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>814.208</SECTNO>
              <SUBJECT>Amendment of invitation for bids (construction).</SUBJECT>
              <P>Amendments will be sent to holders of drawings and specifications by certified mail, return receipt requested. (Amendments may be made by telegram, if time does not permit mailing.)</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="176"/>
            <HD SOURCE="HED">Subpart 814.3—Submission of Bids</HD>
            <SECTION>
              <SECTNO>814.301</SECTNO>
              <SUBJECT>Responsiveness of bids.</SUBJECT>
              <P>Where the timeliness of the submission of a bid, modification or withdrawal cannot be administratively determined in accordance with FAR 14.301, the matter will be submitted by the contracting officer directly to the Comptroller General for decision. The submission will include copies of all pertinent papers. A copy of each submission will be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management.</P>
            </SECTION>
            <SECTION>
              <SECTNO>814.302</SECTNO>
              <SUBJECT>Bid submission.</SUBJECT>
              <P>A bid hand-carried by the bidder or his agent will be considered late unless delivered to the addressee designated in the bid invitation prior to the time set for opening.</P>
              <CITA>[49 FR 12599, Mar. 29, 1985, as amended at 50 FR 791, Jan. 7, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.304</SECTNO>
              <SUBJECT>Late bids, late modifications of bids, or late withdrawal of bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.304-2</SECTNO>
              <SUBJECT>Notification to late bidders.</SUBJECT>
              <P>The notification to late bidders will specify the final date by which the evidence must be received to be considered. This date must be within the time allowed by the apparent low bidder for acceptance of his bid.</P>
            </SECTION>
            <SECTION>
              <SECTNO>814.304-4</SECTNO>
              <SUBJECT>Records.</SUBJECT>
              <P>All bids received by mail (or telegram where authorized) will be time and date stamped immediately upon receipt at the VA installation mail room and in the office of the addressee designated in the invitation. This will firmly establish the time of receipt of bids, or when bids are received in the office of the addressee subsequent to the time of opening, and it will establish whether or not the delay was due to mishandling on the part of VA.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 54 FR 40063, Sept. 29, 1989; 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 814.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>814.402</SECTNO>
              <SUBJECT>Opening of bids.</SUBJECT>
              <P>(a) The contracting officer shall serve as, or designate, a bid opening officer, and shall also designate a recorder.</P>
              <P>(b) The form and amount of bid security and name of surety will be read aloud and recorded.</P>
              <CITA>[49 FR 12599, Mar. 29, 1985, as amended at 50 FR 792, Jan. 7, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.403</SECTNO>
              <SUBJECT>Recording of bids.</SUBJECT>
              <P>The information required for bid evaluation shall be recorded on the appropriate Abstract of Offers form (SF 1409 or OF 1419). The evaluation data may be recorded on supplemental sheets or forms such as VA Form 10-2237b, Request for Dietetic Supplies, providing that such supplemental sheets or forms are covered by one of the forms authorized above for recording bid or price data. In addition to those instructions set forth in FAR 14.403, the bid opening officer shall certify on the abstract the date and hour at which the bids were opened. Where erasures, strikeovers, or changes in price are noted at the time of opening, a statement to that effect will also be included on, or attached to, the abstract or record of bids.</P>
              <CITA>[49 FR 12599, Mar. 29, 1985, as amended at 61 FR 11586, Mar. 21, 1996; 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.404</SECTNO>
              <SUBJECT>Rejection of bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>
              <P>(a) A copy of each invitation for bids which is canceled as provided for in FAR 14.404-1, together with the abstract showing to whom such bids were sent, will be filed in a separate folder identified by the invitation number. Invitations for bids which result in no bids being received will be handled in like manner. In each instance the abstract will be annotated to show why an award was not made. These folders will be retained for the current and two succeeding fiscal years.</P>

              <P>(b) The authority to approve cancellation of invitations for bid after <PRTPAGE P="177"/>opening and the authority to approve the acquisition after cancellation as provided in FAR 14.404-1(e) is delegated to the head of the contracting activity. The contracting officer will submit a D&amp;F to the head of the contracting activity for signature.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 51 FR 23068, June 25, 1986; 52 FR 28560, July 31, 1987; 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.404-2</SECTNO>
              <SUBJECT>Rejection of individual bids.</SUBJECT>
              <P>(a) When a bid that is being considered for an award is found to be incomplete, e.g., all pages of the invitation have not been returned by the bidder, the contracting officer will take whichever of the following actions that is appropriate:</P>
              <P>(1) Make a determination that the bid as submitted is in such a form that acceptance would create a valid and binding contract, requiring the contractor to perform in accordance with all of the material terms and conditions of the invitation. Such a determination may be based on the fact that the bid as submitted includes evidence that the offeror intends to be bound by all the material terms and conditions of the invitation.</P>
              <P>(2) Make a determination that the bid as submitted is in such form that acceptance would not create a valid and binding contract.</P>
              <P>(b) When a single bid is received in response to a solicitation, the offer shall not be rejected simply because it specifies a bid acceptance time which is shorter than that contained in the solicitation, unless a compelling reason exists for rejecting such a bid. Insufficient time to properly evaluate an offer shall be considered a compelling reason for rejection; however, the contracting officer will first request the offeror to extend the acceptance date of the bid to allow for proper evaluation.</P>
              <NOTE>
                <HD SOURCE="HED">Note:</HD>
                <P>In those cases where more than one bid is received, an individual bid which is not in compliance with the Government's bid acceptance time shall be rejected as nonresponsive since consideration of such an offer would unfairly disadvantage other bidders.</P>
              </NOTE>
            </SECTION>
            <SECTION>
              <SECTNO>814.404-70</SECTNO>
              <SUBJECT>Questions involving the responsiveness of a bid.</SUBJECT>
              <P>Questions involving the responsiveness of a bid which cannot be resolved by the contracting officer may be submitted to the Comptroller General through the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, or the Chief Facilities Management Officer, Office of Facilities Management, as appropriate. Pertinent documentation must accompany the submission.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 54 FR 40063, Sept. 29, 1989; 61 FR 11586, Mar. 21, 1996; 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>(a) In accordance with the provisions of the FAR 14.407-3(e), the authority of the Secretary to make the administrative determinations set forth in FAR 14.407-3 (a), (b), (c), and (d) is hereby delegated, without power of redelegation, to the Deputy Assistant Secretary for Acquisition and Materiel Management. This delegation in no way impairs the delegations contained in Comptroller General decision B-122003, dated November 22, 1954.</P>
              <P>(b) When a bidder alleges a mistake in his or her bid prior to award, after complying with the provisions of FAR 14.407-3, the contracting officer will submit the complete file to the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, for an administrative determination. Based upon the evidence submitted, the Deputy Assistant Secretary for Acquisition and Materiel Management will determine the action to be taken by the contracting officer. Prior to its release to the contracting officer, this determination will be submitted to the General Counsel (025) for approval. Pending receipt of the determination, no award shall be made.</P>

              <P>(c) Based on the evidence, when the Deputy Assistant Secretary for Acquisition and Materiel Management believes that the case should be submitted to the Comptroller General for <PRTPAGE P="178"/>decision, he/she will prepare the submission and forward it to the Comptroller General through the General Counsel (025). The decision of the Comptroller General will be furnished to the contracting officer by the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team. A copy of each such decision will be furnished to the General Counsel (025).</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989; 61 FR 11586, Mar. 21, 1996. Redesignated and amended at 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
              <P>(a) When a contracting officer corrects a mistake in bid pursuant to FAR 14.407-4(a), a copy of the contract amendment or supplemental agreement together with a copy of the contracting officer's determination will be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team Division.</P>
              <P>(b) For mistakes in bid alleged after award, the contracting officer's proposed determination, prepared in accordance with FAR 14.407-4, will be forwarded to the General Counsel (025) through the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, for legal coordination. The results of this coordination will be transmitted to the contracting officer by the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team. The final determination on the alleged mistake in bid after award will be made by the contracting officer.</P>
              <P>(c) The Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, will maintain the agency records of mistakes in bids after award required by FAR 14.407-4.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989, as amended at 61 FR 11586, Mar. 21, 1996. Redesignated and amended at 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.408</SECTNO>
              <SUBJECT>Award.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>814.408-70</SECTNO>
              <SUBJECT>Award when only one bid is received.</SUBJECT>
              <P>When only one bid is received in response to an invitation for bids, such bid may be considered and accepted if (a) the specifications used in the invitation were not restrictive, (b) adequate competition was solicited, (c) the price is reasonable, and (d) the bid is otherwise in accordance with the invitation for bids. Such determination will be made in writing, and included on or attached to the abstract of bids.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984. Redesignated at 63 FR 69219, Dec. 16, 1998</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.408-71</SECTNO>
              <SUBJECT>Recommendation for award (construction).</SUBJECT>
              <P>(a) For Central Office contracts, the Chief Facilities Management Officer, Office of Facilities Management, after analyzing all bids received, will submit a memorandum to the Secretary (00) recommending award or other disposition of the project. A copy of each of the following will accompany the memorandum:</P>
              <P>(1) The invitation.</P>
              <P>(2) Each bid received.</P>
              <P>(3) The abstract.</P>
              <P>(4) Any other pertinent data.</P>
              <P>(b) On facility level contracts, the Chief, Engineering Service, will analyze all bids received and submit to the contracting officer a memorandum recommending award or other disposition of the project. However, the final decision to accept or reject the lowest responsive bid and the determination as to the responsibility of a prospective contractor shall be made by the contracting officer alone.</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 54 FR 30044, July 18, 1989; 54 FR 40063, Sept. 29, 1989; 61 FR 11586, Mar. 21, 1996. Redesignated at 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>814.409</SECTNO>
              <SUBJECT>Information to bidders.</SUBJECT>
              <P>(a) Prior to award, no information as to probable acceptance or rejection of any offer shall be given to any bidder or other person outside the Department of Veterans Affairs.</P>

              <P>(b) Except as provided in paragraphs (c) and (d) of this section, information as to performance under contract or an accepted bid is not public information <PRTPAGE P="179"/>and will be released to persons outside VA only upon the authority of the immediate supervisor of the contracting officer.</P>
              <P>(c) Except as provided in paragraph (d) of this section, the contracting officer may furnish information as to performance under a contract to those having a legitimate interest, such as banks, other financial companies and Government departments and agencies.</P>
              <P>(d) When litigation is involved, all information will be furnished through the General Counsel (025).</P>
              <CITA>[49 FR 12599, Mar. 29, 1984, as amended at 54 FR 30045, July 18, 1989; 54 FR 40063, Sept. 29, 1989. Redesignated at 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 815</EAR>
          <HD SOURCE="HED">PART 815—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 815.5—Unsolicited Proposals</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>815.504</SECTNO>
              <SUBJECT>Advance guidance.</SUBJECT>
              <SECTNO>815.506</SECTNO>
              <SUBJECT>Department procedures.</SUBJECT>
              <SECTNO>815.506-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 815.6—Source Selection</HD>
              <SECTNO>815.607</SECTNO>
              <SUBJECT>Disclosure of mistakes before award.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 815.8—Price Negotiation</HD>
              <SECTNO>815.804-70</SECTNO>
              <SUBJECT>Preproduction and start-up and other nonrecurring costs.</SUBJECT>
              <SECTNO>815.805-4</SECTNO>
              <SUBJECT>Technical analysis.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12604, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 815.5—Unsolicited Proposals</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>51 FR 6005, Feb. 19, 1986, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>815.504</SECTNO>
              <SUBJECT>Advance guidance.</SUBJECT>
              <P>(a) Any inquiries from a potential offeror of an unsolicited proposal shall be referred to the appropriate VA contact point designated in 815.506(a). The contact point will determine the nature of the potential proposal and determine what technical/professional disciplines need be consulted to determine the VA need for such a proposal and the likelihood that a formal proposal would be favorably reviewed. In consultation with such technical/professional offices, the VA contact point will inform the potential proposer of any additional information required to provide advance guidance as well as the information specified in FAR 15.504.</P>
              <P>(b) The FAR contact point will maintain a record of advance guidance provided and the disposition/recommendation regarding the potential offer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>815.506</SECTNO>
              <SUBJECT>Department procedures.</SUBJECT>
              <P>(a) The Chief, Acquisition and Materiel Management Service, servicing the field facility and the Director, VA Marketing Center, Hines, Illinois are designated as the VA contact points for unsolicited proposals submitted at the facility level. The Deputy Assistant Secretary for Acquisition and Materiel Management is designated as the VA contact point for all unsolicited proposals received at VA Central Office.</P>
              <P>(b) Each unsolicited proposal received by the Department of Veterans Affairs will be submitted to the appropriate contact point.</P>
              <P>(c) The VA contact point will review the unsolicited proposal and ensure that it is complete as prescribed in FAR 15.505. If required information is not submitted, the VA contact point will:</P>
              <P>(1) Determine if advance guidance as specified in FAR 15.504 is necessary (2) request that the offeror provide the necessary information if it is determined that the formal evaluation prescribed in FAR 15.506-2 is appropriate; and (3) establish an estimated due date for completion of the review process.</P>
              <CITA>[51 FR 6005, Feb. 19, 1986, as amended at 54 FR 40063, Sept. 29, 1989; 54 FR 42508, Oct. 17, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>815.506-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
              <P>(a) When VA contact point determines that a comprehensive evaluation is to be undertaken (i.e., the proposal complies with the requirements in FAR 15.506-1(a) and is related to the mission of VA), the offeror will be contacted to ensure that all data that should be restricted in accordance with FAR 15.509 has been identified.</P>

              <P>(b) The VA contact point will maintain a log of all unsolicited proposals <PRTPAGE P="180"/>which will be evaluated. The log will indicate:</P>
              <P>(1) The date the proposal was received;</P>
              <P>(2) The date that the unsolicited proposal has been determined to warrant a comprehensive evaluation;</P>
              <P>(3) A description of the proposal;</P>
              <P>(4) The offices requested to evaluate the proposal and the date such offices are requested to return their evaluations;</P>
              <P>(5) The date the reviewing offices finalize their respective evaluation; and</P>
              <P>(6) The final disposition of the proposal.</P>
              <P>(c) Each office which is assigned responsibility for reviewing an unsolicited proposal will be advised of the need to evaluate the proposal against the criteria set forth in FAR 15.507(a) (1) through (3), i.e., is the proposal available to the Government without restriction from another source, does it closely resemble a pending competitive acquisition, is the proposal lacking in demonstrated innovation or uniqueness? If the reviewers conclude in the affirmative as to any one of these questions, the VA contact point shall be advised and return the proposal to the proposer.</P>
              <P>(d) With regard to an unsolicited proposal being processed at a field facility, if the reviewing offices conclude that the unsolicited proposal should be accepted and provide the justification and certification required by FAR 15.507, the VA contact point will obtain the prior approval of the Deputy Assistant Secretary for Acquisition and Materiel Management (93) prior to proceeding with negotiation. In order to obtain the approval, the VA contact point will submit all necessary documentation supporting the noncompetitive negotiation including any justification and approval required by FAR Subpart 6.3 and results of any synopsis required by FAR Subpart 5.2 The Deputy Assistant Secretary for Acquisition and Materiel Management will coordinate the proposal with the cognizant VA Central Office program official(s) and furnish the VA contact point with the final decision.</P>
              <P>(e) All copies of the unsolicited proposal will be controlled by the contact point by numbering each copy. If a reviewing office requires additional copies, the reviewing office will obtain approval of the VA contact point prior to duplication, numbering the copies as specified by the contact point. All copies will be returned to the VA contact point once review is completed.</P>
              <CITA>[51 FR 6005, Feb. 19, 1986, as amended at 54 FR 40063, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 815.6—Source Selection</HD>
            <SECTION>
              <SECTNO>815.607</SECTNO>
              <SUBJECT>Disclosure of mistakes before award.</SUBJECT>
              <P>The Head of the Contracting Activity (as defined in 802.1) is delegated authority to permit correction of mistakes in proposals before award consistent with FAR 15.607.</P>
              <CITA>[54 FR 45736, Oct. 31, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 815.8—Price Negotiation</HD>
            <SECTION>
              <SECTNO>815.804-70</SECTNO>
              <SUBJECT>Preproduction and start-up and other nonrecurring costs.</SUBJECT>
              <P>In evaluating start-up and other nonrecurring costs, the extent to which these costs are included in the proposed price and the intent to absorb or recover any such costs in any future noncompetitive procurement or other pricing action will be determined. The contracting officer will ascertain, with the assistance of the Assistant Inspector General for Policy, Planning and Resources (53), as required or considered necessary, that payment of such costs is not duplicated. For example, cost of equipment paid for by the Government through a setup or connection agreement will not be included in depreciation costs of a subsequently negotiated agreement.</P>
              <CITA>[49 FR 12604, Mar. 29, 1984, as amended at 50 FR 792, Jan. 7, 1985; 54 FR 40063, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>815.805-4</SECTNO>
              <SUBJECT>Technical analysis.</SUBJECT>

              <P>(a) Contracting officers are responsible for the technical and administrative sufficiency of the contracts they enter into and ensuring that all legal and technical reviews are accomplished. To this end, initial and revised pricing of all negotiated prime contracts (including subcontract pricing <PRTPAGE P="181"/>under them) and contract modifications will be subject to technical analyses to the degree the contracting officer deems necessary (see 801.602-70 for required legal reviews). Technical analyses of the proposals will be requested by the contracting officer from the appropriate technical personnel to address, as a minimum, the items set forth in FAR Subpart 15.805-4. Contracting officers shall not begin negotiation of or award any negotiated contracts or contract modifications before receipt, analysis and consideration of documented technical evaluations for every procurement action requiring such analysis under the conditions prescribed in FAR 15.805-4. The results of such analyses will be documented in the contract file and will also be made available to the auditor performing the preaward audit required by 815.805-5.</P>
              <P>(b) When, in the opinion of the contracting officer, the complexity of the proposed contract warrants, he/she will submit the proposed contract to the Deputy Assistant Secretary for Acquisition and Materiel Management (93) for review and comment. When deemed advisable, the Deputy Assistant Secretary for Acquisition and Materiel Management (93) will request the General Counsel to accomplish a legal review. This review is in addition to the legal review specified in 801.602-70.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 816</EAR>
          <HD SOURCE="HED">PART 816—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 816.1—Selecting Contract Types</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>816.102</SECTNO>
              <SUBJECT>Policies.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 816.70—Unauthorized Agreements</HD>
              <SECTNO>816.7001</SECTNO>
              <SUBJECT>Letters of availability.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 816.1—Selecting Contract Types</HD>
            <SECTION>
              <SECTNO>816.102</SECTNO>
              <SUBJECT>Policies.</SUBJECT>
              <P>(a) Contracts which include an economic price adjustment provision other than those contracts awarded by the National Cemetery System for monuments or those contracts that contain the clause for service contracts (FAR 22.1006(c)) require the prior approval of the Deputy Assistant Secretary for Acquisition and Materiel Management (90). The request for approval shall clearly set forth the need for the provision.</P>
              <P>(b) Any contract involving direct obligation of appropriations and which extends beyond the appropriation of the year in which the contract period begins or which is for more than one fiscal year, is to contain provisions to the effect that:</P>
              <P>(1) It is made for the period covered by the contract, subject to the availability of appropriations in the ensuing year(s), and</P>
              <P>(2) No service is to be performed by the contractor after September 30 of each fiscal year unless and until specifically authorized by the contracting officer or representative.</P>
              <P>(c) Architect-engineer contracts, construction contracts, or professional engineer contracts, financed by “no year appropriations” are not subject to the requirements of paragraph (b) of this section.</P>
              <CITA>[49 FR 12607, Mar. 29, 1984, as amended at 50 FR 792, Jan. 7, 1985; 54 FR 30045, July 18, 1989; 61 FR 20492, May 7, 1996]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 816.70—Unauthorized Agreements</HD>
            <SECTION>
              <SECTNO>816.7001</SECTNO>
              <SUBJECT>Letters of availability.</SUBJECT>
              <P>(a) <E T="03">Description.</E> A letter of availability (sometimes inappropriately called a letter of intent) is a letter to a supplier primarily for the purpose of obtaining a place on the supplier's production or delivery schedule for long lead time items. Such a letter typically indicates that products or services are being considered for procurement, but that the statement of intent is not to be construed as a commitment. Such letters of availability are sometimes solicited by prospective contractors, or they may be originated by Government personnel. A letter of availability is distinguished from a letter contract which is specifically authorized in FAR 16.603.</P>
              <P>(b) <E T="03">Policy.</E> (1) Unless specifically authorized by the Deputy Assistant Secretary for Acquisition and Materiel Management, letters of availability are not to be utilized for the following reasons:<PRTPAGE P="182"/>
              </P>
              <P>(i) While such letters of availability may disclaim Government liability, they may induce potential contractors to initiate costly preparations in anticipation of contract award.</P>
              <P>(ii) Procurements announced in such letters do not always materialize. The result may be costly to the Government, the prospective contractor, or both. If the author of the letter of availability is an authorized contracting officer of the Department, the Government may be bound by action, even though the action is contrary to sound procurement practices and/or fiscal regulations. If the author of the letter of availability lacks procurement authority, the prospective contractor may incur substantial expenditures which may not be recovered from the Government, but for which the prospective contractor may seek to hold the unauthorized author personally liable.</P>
              <P>(iii) The issuance of a letter of availability may violate the “Anti-Deficiency Act” (31 U.S.C. 1341).</P>
              <P>(2) It is recognized that potential contractors have a need to obtain procurement information at the earliest possible moment in order to make timely preparations. To this end, procurement personnel are expected to act as efficiently and expeditiously as possible on all procurement actions.</P>
              <CITA>[49 FR 12607, Mar. 29, 1974, as amended at 54 FR 30044, July 18, 1989; 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 817</EAR>
          <HD SOURCE="HED">PART 817—SPECIAL CONTRACTING METHODS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 817.1—Multi-Year Contracting</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>817.105</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>817.105-1</SECTNO>
              <SUBJECT>Uses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 817.2—Options</HD>
              <SECTNO>817.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 817.4—Leader Company Contracting</HD>
              <SECTNO>817.402</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12608, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 817.1—Multi-Year Contracting</HD>
            <SECTION>
              <SECTNO>817.105</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>817.105-1</SECTNO>
              <SUBJECT>Uses.</SUBJECT>
              <P>(a) Pursuant to Title 38, United States Code, Chapter 1, Section 114 (as amended by Pub. L. 101-237), multiyear contracting not exceeding 5 years is authorized for obtaining supplies and services when the Secretary has made the following determinations:</P>
              <P>(1) Appropriations are available for obligation for the total payments for the fiscal year the contract is entered into plus the estimated amount of any cancellation charges.</P>
              <P>(2) The contract is in the best interest of the Government due to the effect it would have in:</P>
              <P>(i) Reducing cost;</P>
              <P>(ii) Achieving contract administration and other efficiencies;</P>
              <P>(iii) Increasing quality contract performance;</P>
              <P>(iv) Encouraging effective competition.</P>
              <P>(3) During the contract period:</P>
              <P>(i) There is a continuing need for the supplies or services;</P>
              <P>(ii) There is little likelihood of substantial changes in need for the supplies and services in terms of quantity or rate of delivery; and</P>
              <P>(iii) The specifications for the supplies or services are expected to be reasonably stable.</P>
              <P>(4) The risks relating to a prospective contractor's ability to perform in accordance with the specifications and other contract terms are not excessive;</P>
              <P>(5) The use of a multiyear contract will not inhibit competition from small business firms;</P>
              <P>(6) In the case of a pharmaceutical item for which a patent has expired less than 4 years before the solicitation issue date, there is no substantial likelihood that increased competition will occur during the term of the contact that would make the contract prices higher than would be reasonable.</P>

              <P>(b) The authority of the Secretary to enter into multiyear contracts and to make the determinations specified in 817.102-1(a) of this section is delegated as follows:<PRTPAGE P="183"/>
              </P>
              <P>(1) <E T="03">Heads of contracting activities.</E> For contracts not requiring legal/technical reviews pursuant to 801.602-70 (for purposes of determining applicability of the thresholds, the total dollar amount of the contract over its full multiyear term will be used), and which do not contain a first year cancellation ceiling which exceeds 20 percent of the total dollar amount of the contract over the full multi-year term.</P>
              <P>(2) <E T="03">Deputy Assistant Secretary for Acquisition and Materiel Management,</E> will approve all proposed uses of multiyear contracts not authorized for approval by heads of contracting activities. For approval purposes, the head of the contracting activity will justify and document the use of a multiyear contract against each of the criteria specified in 817.102-1 (a)(1) through (a)(6) of this section. The justification will additionally delineate the cancellation ceiling and the method used for calculating that ceiling and will specify the advantages of multiyear contracts over other alternative methods, e.g., option year contracts.</P>
              <P>(c) Cancellation ceilings will be carefully developed in accordance with FAR 17.106-1.</P>
              <CITA>[54 FR 980, Jan. 11, 1989, as amended at 57 FR 44129, Sept. 24, 1992. Redesignated and amended at 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 817.2—Options</HD>
            <SECTION>
              <SECTNO>817.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
              <P>All solicitations developed pursuant to Office of Management and Budget Circular A-76 (Revised) cost comparisons will provide for one year renewal options as prescribed in FAR Subpart 17.2. Requests to use less or more than the prescribed contract period for Circular A-76 (Revised) cost comparisons will be forwarded to the Deputy Assistant Secretary for Acquisition and Material Management (90).</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 54 FR 980, Jan. 11, 1989; 57 FR 44129, Sept. 24, 1992]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 817.4—Leader Company Contracting</HD>
            <SECTION>
              <SECTNO>817.402</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <P>(a) Except as provided in 817.402(b), no leader company contracts shall be initiated or consummated.</P>
              <P>(b) The Deputy Assistant Secretary for Acquisition and Materiel Management (90) may designate a contracting officer to enter into a leader company contract when considered beneficial to the Department and the Government. When a contracting officer is designated the authority to enter into a leader company contract, the designation will be by name for a specific contract. The proposed contract with a determination and finding will be submitted for legal review in accordance with 801.602-71.</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 54 FR 980, Jan. 11, 1989; 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="184"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 819</EAR>
          <HD SOURCE="HED">PART 819—SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>819.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 819.2—Policies</HD>
              <SECTNO>819.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <SECTNO>819.202-5</SECTNO>
              <SUBJECT>Data collection and reporting requirements.</SUBJECT>
              <SECTNO>819.202-70</SECTNO>
              <SUBJECT>Additional responsibilities.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 819.5—Set-Asides for Small Business</HD>
              <SECTNO>819.502-2</SECTNO>
              <SUBJECT>Total set-asides.</SUBJECT>
              <SECTNO>819.502-3</SECTNO>
              <SUBJECT>Partial set-asides.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 819.6—Certificates of Competency and Determinations of Eligibility</HD>
              <SECTNO>819.602-3</SECTNO>
              <SUBJECT>Appealing Small Business Administration's decision to issue Certificates of Competency.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 819.8—Contracting With the Small Business Administration (The 8(a) Program)</HD>
              <SECTNO>819.800</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>819.803</SECTNO>
              <SUBJECT>Selecting acquisitions for the 8(a) program.</SUBJECT>
              <SECTNO>819.804</SECTNO>
              <SUBJECT>Evaluation, offering, and acceptance.</SUBJECT>
              <SECTNO>819.806</SECTNO>
              <SUBJECT>Pricing the 8(a) contract.</SUBJECT>
              <SECTNO>819.806-4</SECTNO>
              <SUBJECT>Funding business development expense.</SUBJECT>
              <SECTNO>819.807</SECTNO>
              <SUBJECT>Estimating fair market price.</SUBJECT>
              <SECTNO>819.807-70</SECTNO>
              <SUBJECT>Commitments of the Office of Facilities Mnaagement funded projects for the 8(a) program.</SUBJECT>
              <SECTNO>819.809-70</SECTNO>
              <SUBJECT>Procurement of supplies, services, and research and development.</SUBJECT>
              <SECTNO>819.809-71</SECTNO>
              <SUBJECT>Procurement of construction.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 819.70—Veteran-Owned and Operated Small Businesses</HD>
              <SECTNO>819.7001</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>819.7002</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>819.7003</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
              <SECTNO>819.7004</SECTNO>
              <SUBJECT>Waiver of the use of veteran-owned firms.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12608, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>819.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This subpart sets forth the Department of Veterans Affairs small business program including section 8(a) contracts with Small Business Administration (SBA) and unilateral set-asides. It establishes responsibility for making such determinations, reviewing determinations and evaluation of the program.</P>
            <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989]</CITA>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 819.2—Policies</HD>
            <SECTION>
              <SECTNO>819.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <P>(a) The Director, Office of Small and Disadvantaged Business Utilization (OSDBU) (00SB) is responsible for the overall supervision of the Department of Veterans Affairs Small and Disadvantaged Business Utilization program and will assist administrations and key staff officials in developing their respective small business programs.</P>
              <P>(b) The Chief Facilities Management Officer will develop and coordinate the Department small business program, as it affects construction projects, with the OSDBU.</P>
              <P>(c) The Director, Veterans Canteen Service (VCS), will designate an employee of his/her organization to serve as liaison between the VCS and the Office of Small and Disadvantaged Business Utilization on small business problems affecting the VCS.</P>

              <P>(d) The Director, National Cemetery System; Under Secretary for Benefits; Chief Facilities Management Officer; Deputy Assistant Secretary for Administration; Director, Acquisition Operations and Analysis Service; Executive Director and Chief Operating Officer, VA National Acquisition Center; and Directors of field facilities with acquisition and materiel management activities will designate an employee of their respective organizations to serve as a small and small disadvantaged business specialist. This employee will <PRTPAGE P="185"/>be a full-time employee of the respective contracting activity, will be familiar with the supplies and services purchased at the activity, and will be fully cognizant of the regulations implementing the Small Business Act. The principal duties will include assisting the Small Business Administration Procurement Center Representative (if assigned) in activities and functions relating to sections 8 and 15 of the Small Business Act. The name, telephone number, and mailing symbol of each designee and any successor will be forwarded to the Director, Office of Small and Disadvantaged Business Utilization, through the Deputy Assistant Secretary for Acquisition and Materiel Management.</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 52 FR 37317, Oct. 6, 1987; 54 FR 40064, Sept. 29, 1989; 55 FR 49899, Dec. 3, 1990; 56 FR 44011, Sept. 6, 1991; 63 FR 69219, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.202-5</SECTNO>
              <SUBJECT>Data collection and reporting requirements.</SUBJECT>
              <P>Administration heads, staff office directors and heads of contracting activities will, in addition to the responsibilities designated in FAR 19.202-5, cooperate with the Office of Small and Disadvantaged Business Utilization in formulating specific socio-economic procurement goals and providing other data necessary for goal assessment.</P>
              <P>(a) Each VA acquisition activity shall establish goals for expenditure of funds with preferred businesses within their projected annual budget. The preference programs supported by VA are listed in paragraph (c) of this section. OSDBU is responsible for Department-wide goals and accomplishments and will approve or adjust each acquisition activity's goals.</P>
              <P>(b) A Procurement Preference Program Goals Report (Report Control Symbol 00-0427) shall be submitted annually by each acquisition activity to reach OSDBU by November 1. Each report shall contain total expenditure estimates and goals for the current fiscal year and explanations of the methods utilized to arrive at each proposed goal.</P>
              <P>(c) All acquisition activities shall submit information and procurement preference goals identified in paragraphs (c)(1) through (c)(8) of this section. In addition, the Office of Acquisition and Materiel Management, the VA National Acquisition Center and the Office of Facilities Management shall submit the information identified in paragraphs (c)(1) through (c)(11) of this section. Goals shall be expressed in dollars and rounded to the nearest thousand.</P>
              <P>(1) Estimate of the total procurement dollar expenditures (excluding delivery orders against General Services Administration (GSA) FSS contracts).</P>
              <P>(2) Small business awards (includes paragraphs (c)(3) through (c)(5) of this section).</P>
              <P>(3) Minority business direct awards.</P>
              <P>(4) SBA 8(a) awards.</P>
              <P>(5) Women-owned business awards.</P>
              <P>(6) Veteran-owned business awards (includes paragraphs (c)(8) and (c)(9) of this section).</P>
              <P>(7) Vietnam era veteran-owned business awards (including disabled Vietnam era veterans).</P>
              <P>(8) Disabled veteran-owned business awards (other than Vietnam era disabled veterans).</P>
              <P>(9) Estimate of total dollar value of subcontracts to be awarded by reporting prime contractors.</P>
              <P>(10) Subcontracts to be awarded to small business concerns by prime contractors.</P>
              <P>(11) Subcontracts to be awarded to small disadvantaged business concerns by prime contractors.</P>
              <P>(d) Anticipated problems in the attainment of the proposed goal in any category shall also be identified. This information will be used in negotiating the Department goals with SBA.</P>
              <P>(e) As an addendum to the report, each acquisition activity shall provide a narrative explaining the reason(s) for any shortfall(s) in the achievement of any previous fiscal year goal category. This explanation shall be specific and will be used by OSDBU to justify Department shortfalls.</P>

              <P>(f) Upon review by OSDBU of the proposed goals, each acquisition activity will be notified of the acceptance of goals as submitted, or of any deficiencies. If the goals are not acceptable, the acquisition activity will be requested to submit further written justification for the goals submitted. Based on documents submitted, <PRTPAGE P="186"/>OSDBU will make a final determination on the goal assignment.</P>
              <P>(g) Accomplishment of goals identified in paragraphs (c)(1) through (c)(8) of this section will be determined by OSDBU from data reported by acquisition activities into the VA Federal Procurement Data System (FPDS).</P>
              <P>(h) Achievement of subcontracting goals shall be reported by the Office of Facilities Management, the Office of Acquisition and Materiel Management, and the VA National Acquisition Center on a semiannual basis, to be received by OSDBU not later than April 30 for the period ending March 31, and November 1 for the period ending September 30.</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989; 55 FR 49900, Dec. 3, 1990; 56 FR 44011, Sept. 6, 1991; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.202-70</SECTNO>
              <SUBJECT>Additional responsibilities.</SUBJECT>
              <P>In addition to the duties designated in FAR 19.202, VA contracting officers will perform the following functions in furtherance of the small business program:</P>
              <P>(a) Develop a plan of operation to increase the share of contracts and purchase orders awarded to small business, including veteran, and Vietnam era and disabled veteran-owned concerns.</P>
              <P>(b) Promote the disadvantaged business program through the SBA 8(a) procedures set forth in Subpart 819.8.</P>
              <P>(c) Review the types and classes of items and services to be purchased to determine the applicability of individual small business set-asides. Class set-asides, established in accordance with criteria in FAR 19.503, shall be reviewed at least annually to determine whether items or services procured under a unilateral or joint set-aside should be modified or withdrawn. Updated lists of acquisitions reserved for small business on a class basis shall be maintained by heads of contracting activities.</P>
              <P>(d) On an annual basis, VA acquisition personnel shall request a Procurement Automated Source System (PASS) listing of veteran-owned, including Vietnam era and disabled, and woman-owned businesses capable of meeting identified requirements. Acquisition personnel will utilize PASS as a primary source file. Firms identified on the PASS list shall be included on solicitation mailing lists.</P>
              <P>(e) Assure that small business firms are identified on bid abstracts.</P>
              <P>(f) Assure that specifications are not unduly restrictive, thereby enabling small business participation to the maximum extent feasible.</P>
              <P>(g) Assist and counsel small business firms with individual problems.</P>
              <P>(h) Provide for counseling nonresponsive or nonresponsible small business bidders to help qualify them for future awards.</P>
              <P>(i) Attend conferences and meetings publicizing the small business program.</P>
              <P>(j) Promote the award of research contracts to small business firms.</P>
              <P>(k) Promote goals for small business, small business set-asides, small business subcontracting, 8(a) procurements, and purchases from women-owned businesses.</P>
              <P>(l) Review all urgent and sole source procurements to determine that they are sparingly made, thoroughly documented and approved by the head of the contracting activity.</P>
              <P>(m) If the acquisition activity is assigned an SBA Procurement Center Representative (PCR), assure that the representative is provided logistical support, cooperation, and access to all reasonably obtainable contract information directly pertinent to the PCR's official duties.</P>
              <P>(n) Encourage technical and requirements personnel to identify veteran-owned and women-owned small business sources.</P>
              <P>(o) Assure that plans are forwarded as specified in FAR 19.705-6(b).</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 50 FR 792, Jan. 7, 1985; 51 FR 23070, June 25, 1986; 52 FR 28559, July 31, 1987; 55 FR 49900, Dec. 3, 1990; 56 FR 44011, Sept. 6, 1991; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 819.5—Set-Asides for Small Business</HD>
            <SECTION>
              <SECTNO>819.502-2</SECTNO>
              <SUBJECT>Total set-asides.</SUBJECT>

              <P>(a) When a total small business set-aside is made, one of the following statements, as applicable, will be included in the solicitation for bids:<PRTPAGE P="187"/>
              </P>
              <P>(1) Notice of total small business set-aside, page __, applies to all items in this solicitation.</P>
              <P>(2) Notice of total small business set-aside, page __, applies to items __ through __ in this solicitation.</P>
              <P>(b) Contracting officers must ensure that appropriate product or service classification and the related size standard are included in each solicitation.</P>
              <P>(c) All proposed procurement for construction anticipated to cost between $10,000 and $3 million and all proposed procurements for architect-engineer services construction projects of $3 million and less will be considered as though SBA had initiated a set-aside request. Determinations of the need to deviate from this policy made by the head of a contracting activity will require review by the Director, Office of Small and Disadvantaged Business Utilization.</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 50 FR 792, Jan. 7, 1985; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.502-3</SECTNO>
              <SUBJECT>Partial set-asides.</SUBJECT>

              <P>When, in accordance with the provisions of FAR 19.502-3, it is determined that a particular procurement will be partially set aside for exclusive small business participation, the solicitation for bids shall state the appropriate product or service classification and appropriate size standard and the following statement shall be placed on the face page:
              </P>
              <EXTRACT>
                <P>Notice of partial small business set-aside, page __, applies to Item ___ through Item ___ in this solicitation.</P>
              </EXTRACT>
              <CITA>[63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 819.6—Certificates of Competency and Determinations of Eligibility</HD>
            <SECTION>
              <SECTNO>819.602-3</SECTNO>
              <SUBJECT>Appealing Small Business Administration's decision to issue Certificates of Competency.</SUBJECT>
              <P>Formal VA appeals of an initial concurrence by the SBA Central Office in an SBA Regional Office decision to issue a Certificate of Competency (CoC) will be processed as follows:</P>
              <P>(a) When the contracting officer believes that VA should formally appeal the concurrence by the SBA Central Office in an SBA Regional Office decision to issue a CoC, the contracting officer will so notify the Deputy Assistant Secretary for Acquisition and Materiel Management (95B) in writing within five business days after receipt of the SBA Central Office's written confirmation of its determination. Within ten business days of the contracting officer's receipt of the SBA's written confirmation (or within a period acceptable to VA and the SBA), the Deputy Assistant Secretary for Acquisition and Materiel Management (95B) will advise the SBA Central Office that VA intends to file a formal appeal.</P>
              <P>(b) Within ten business days of the contracting officer's receipt of the SBA Central Office's written confirmation, the contracting officer will furnish an original and one copy of the appeal file to the Deputy Assistant Secretary for Acquisition and Materiel Management (95B). The file must contain a copy of the bid/offer from the firm considered nonresponsible, a copy of the bid/offer from the firm otherwise in line for award, a copy of the bid, a copy of the bid abstract, a copy of SBA's CoC Review Committee report, a copy of all correspondence with SBA on the matter, and the contracting officer's narrative statement establishing the error, omission, or other basis for disputing SBA's proposed responsibility determination.</P>
              <P>(c) The Deputy Assistant Secretary for Acquisition and Materiel Management (95B) will review the file prepared by the contracting officer. If the contracting officer's position is accepted, the Deputy Assistant Secretary for Acquisition and Materiel Management (95B) will transmit the formal appeal to the SBA Central Office within ten business days after notifying that office of VA's intent to appeal (or within a period acceptable to VA and the SBA). The contracting officer will be informed of the final SBA decision.</P>

              <P>(d) If, after the Central Office review, it is decided that a formal appeal should not be made to the SBA, the contracting officer will be advised of this decision and that the CoC should be accepted by VA. The SBA Central Office will also be advised that VA will <PRTPAGE P="188"/>not pursue its formal appeal. If the decision concerns major construction projects and the Office of Facilities Management disagrees with the decision made by the Deputy Assistant Secretary for Acquisition and Materiel Management, the matter will be referred to the Senior Procurement Executive for a final VA determination.</P>
              <CITA>[52 FR 46083, Dec. 4, 1987, as amended at 54 FR 40064, Sept. 29, 1989; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 819.8—Contracting With the Small Business Administration (The 8(a) Program)</HD>
            <SECTION>
              <SECTNO>819.800</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) No contract will be entered into with SBA under section 8(a) of the Small Business Act (15 U.S.C. 637(a)) unless a certification is made by the Administrator of that agency, or designee, that SBA is competent to perform the contract.</P>
              <P>(b) When it is determined that the requirements of the Department of Veterans Affairs are appropriate for inclusion in this program, the contracting officer will make this fact known to proper officials of the SBA regional office servicing his/her area. However, when projects funded from minor construction appropriation (between $400,000 and $2 million) are proposed for 8(a) acquisition, the Director, Office of Small and Disadvantaged Business Utilization (OSDBU) (00SB), shall be contracted by telephone or notified in writing in order to afford the OSDBU an opportunity to identify possible 8(a) sources prior to apprising SBA officials. If the certification required by paragraph (a) of this section is received, the Department of Veterans Affairs contracting officer will secure from SBA the name(s) and location(s) of their subcontractor(s) and the unit price(s) to be paid. Should these prices be within a range acceptable to the Department of Veterans Affairs, the contracting officer will notify SBA of acceptance.</P>
              <P>(c) The contract will be made between the Department of Veterans Affairs and SBA and will be administered by the Department of Veterans Affairs.</P>
              <P>(d) In addition to meeting the requirements of 801.602-70, contracting officers will secure cost and pricing data prescribed in FAR 15.403-4 and 815.804-2 when negotiating contracts under the SBA 8(a) program. Contracting officers will request an audit in accordance with 815.805-5 on proposals in excess of $500,000 before negotiating any contract or modification.</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 50 FR 792, Jan. 7, 1985; 54 FR 40064, Sept. 29, 1989. Redesignated and amended at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.803</SECTNO>
              <SUBJECT>Selecting acquisitions for the 8(a) program.</SUBJECT>
              <P>The contracting officer will specify in writing the time limit for SBA to propose an acceptable 8(a) subcontractor. The time limit should be between 30 and 45 days, but may be extended by the contracting officer.</P>
              <CITA>[50 FR 793, Jan. 7, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.804</SECTNO>
              <SUBJECT>Evaluation, offering, and acceptance.</SUBJECT>
              <P>(a) The contracting officer will notify SBA in writing of the time limit for contract negotiations in accordance with FAR 19.804-2. The time limit, as a minimum, should be 45 days, but may be extended by the contracting officer.</P>
              <CITA>[50 FR 793, Jan. 7, 1985, as amended at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.806</SECTNO>
              <SUBJECT>Pricing the 8(a) contract.</SUBJECT>
              <P>In order to expedite the 8(a) process, SBA should be informed as soon as a disparity between the 8(a) offered price and the estimated fair market price is determined. The SBA and the VA contracting office should collaborate to determine if the disparity is:</P>
              <P>(a) A result of deficiencies in developing the fair market price, thereby requiring revision to the estimate;</P>
              <P>(b) A result of overpricing by the 8(a) company, thereby requiring further efforts to negotiate a decrease in the offered price; or</P>
              <P>(c) A legitimate differential which should be funded through the SBA business development expense.</P>
              <CITA>[52 FR 37317, Oct. 6, 1987. Redesignated at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="189"/>
              <SECTNO>819.806-4</SECTNO>
              <SUBJECT>Funding business development expense.</SUBJECT>
              <P>If SBA declines to fund the business development expense, it will be reported in accordance with 819.870.</P>
              <CITA>[52 FR 37317, Oct. 6, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.807</SECTNO>
              <SUBJECT>Estimating fair market price.</SUBJECT>
              <P>(a) Estimating the fair market price is a crucial initial step in determining what is a reasonable price for a negotiated 8(a) contract. For supplies and equipment, previous prices paid under competitive conditions, adjusted for inflation, may provide necessary data to make such an estimate.</P>
              <P>(b) Estimating fair market price for such services as architect-engineer and construction may be accomplished through independent cost estimates and other pertinent data obtained from SBA when the estimated fair market price is not fully supportable from available documentation (see FAR 19.807).</P>
              <CITA>[52 FR 37317, Oct. 6, 1987. Redesignated and amended at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.807-70</SECTNO>
              <SUBJECT>Commitments of Office of Facilities Management funded projects for the 8(a) program.</SUBJECT>
              <P>Major and minor projects funded by the Office of Facilities Management (including those delegated to the VHA medical facilities) which have been committed to the 8(a) program will not be withdrawn from that program without the consent of the Office of Small and Disadvantaged Business Utilization (00SB). Requests for consent from 00SB will normally be in writing and will clearly set forth the circumstances necessitating 8(a) withdrawal. If the contracting officer determines that time does not permit a written request, an oral request will be made. Such an oral request will be confirmed in writing.</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 52 FR 46083, Dec. 4, 1987; 54 FR 40064, Sept. 29, 1989; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.809-70</SECTNO>
              <SUBJECT>Procurement of supplies, services, and research and development.</SUBJECT>
              <P>(a) Contracts for supplies, equipment and services other than construction will be prepared as any other prime contract and in accordance with FAR Subpart 19.8.</P>
              <P>(b) The Department of Veterans Affairs contracting officer will forward the prime contract to SBA in sufficient numbers to furnish two copies to SBA and one copy to each subcontractor. SBA will return the signed original to the Department of Veterans Affairs contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>819.809-71</SECTNO>
              <SUBJECT>Procurement of construction.</SUBJECT>
              <P>Construction projects which have been selected for inclusion in this program will be contracted for as provided in this section and FAR Subpart 19.8.</P>
              <P>(a) The contracting officer will submit, for each project so identified, the complete project listing including technical specifications, drawings and wage rates to the proper official of the appropriate SBA regional office. Should SBA select a competent subcontractor capable of performing the work, they will so certify to the Department of Veterans Affairs contracting officer. They will furnish him/her the name and complete address of the subcontractor(s), the project involved and the price(s) quoted. If the price quoted is within the range acceptable to the Department of Veterans Affairs, the contracting officer will indicate acceptance to SBA.</P>
              <P>(b) When the contracting officer receives Standard Form 1442, Solicitation, Offer and Award (Construction, Alteration, or Repair), signed by SBA and the subcontractor, and the performance and payment bonds, the contracting officer will forward a notice to proceed to the subcontractor.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 819.70—Veteran-Owned and Operated Small Businesses</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>50 FR 793, Jan. 7, 1985, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>819.7001</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) Pub. L. 93-237 amended the Small Business Act by directing SBA to give “special consideration” to veterans of the Armed Forces in all SBA programs. Consistent with and in furtherance of that statute, it is the policy of the Department of Veterans Affairs to encourage participation by veteran-<PRTPAGE P="190"/>owned and operated small businesses, including Vietnam era and disabled, in VA acquisitions.</P>
              <P>(b) All VA facilities having procurement requirements for which veteran-owned small businesses are known sources, will take affirmative action to solicit these firms and assist them in participating in VA acquisition opportunities.</P>
              <CITA>[50 FR 793, Jan. 7, 1985, as amended at 55 FR 49900, Dec. 3, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.7002</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>A veteran-owned small business is a small business that is at least 51 percent owned by a veteran who also controls and operates the business. Control in this context means exercising the power to make policy decisions. Operate in this context means actively involved in day-to-day management. For purposes of this definition, eligible veterans include:</P>
              <P>(a) Veterans who served in the U.S. Armed Forces and were discharged or released under conditions other than dishonorable.</P>
              <P>(b) Vietnam era veterans who served for a period of more than 180 days, any part of which was between August 5, 1964, and May 7, 1975, and were discharged other than dishonorably.</P>
              <P>(c) Disabled veterans with a minimum compensable disability of 30 percent, or a veteran who was discharged for disability.</P>
              <CITA>[49 FR 12608, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989; 55 FR 49900, Dec. 3, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.7003</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
              <P>(a) To obtain information on business development for veteran-owned businesses and further identify veteran-owned small businesses, contracting officers shall contact the veterans affairs officers at the local SBA district office. When counselling small businesses, contracting officers shall determine if the business is veteran-owned and operated and ensure that SF 129s are completed properly to identify veteran-owned business.</P>
              <P>(b) The veteran-owned business representation in 852.219-70 shall be included in all solicitations.</P>
              <CITA>[55 FR 49901, Dec. 3, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>819.7004</SECTNO>
              <SUBJECT>Waiver of the use of veteran-owned firms.</SUBJECT>
              <P>It is the policy of the Department of Veterans Affairs to provide veteran-owned firms every opportunity to participate in the acquisition process. A contracting office wishing to waive this policy for a particular procurement involving other than small purchase procedures must first process a VA Form 90-2268. The contracting officer must clearly document on VAF 90-2268 the reasons that eligible veteran-owned firms are not intended to be solicited or quotations sought for the particular procurement. Exempt from this reporting requirement are SBA 8(a) acquisitions.</P>
              <CITA>[50 FR 793, Jan. 7, 1985, as amended at 52 FR 37317, Oct. 6, 1987; 52 FR 46083, Dec. 4, 1987; 54 FR 40064, Sept. 29, 1989; 55 FR 49901, Dec. 3, 1990; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 822</EAR>
          <HD SOURCE="HED">PART 822—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 822.3—Contract Work Hours and Safety Standards Act</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>822.304</SECTNO>
              <SUBJECT>Variations, tolerances, and exemptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 822.4—Labor Standards for Contracts Involving Construction</HD>
              <SECTNO>822.478</SECTNO>
              <SUBJECT>Contract terminations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12610, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 822.3—Contract Work Hours and Safety Standards Act</HD>
            <SECTION>
              <SECTNO>822.304</SECTNO>
              <SUBJECT>Variations, tolerances, and exemptions.</SUBJECT>
              <P>When a contract is entered into for nursing home care, the clause prescribed by FAR 22.305 will be modified to reflect the variation contained in 29 CFR 5.15(d)(3) as set forth in 852.222-70.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="191"/>
            <HD SOURCE="HED">Subpart 822.4—Labor Standards for Contracts Involving Construction</HD>
            <SECTION>
              <SECTNO>822.478</SECTNO>
              <SUBJECT>Contract terminations.</SUBJECT>
              <P>(a) Prior to terminating any contract because of violations of the labor standards provisions of the contract, contracting officers, other than those in the Office of Facilities Management will, through the Deputy Assistant Secretary for Acquisition and Materiel Management, present the facts in detail to the General Counsel for review. The contracting officer will be advised by the Deputy Assistant Secretary for Acquisition and Materiel Management as to the recommended action to be taken.</P>
              <P>(b) Prior to terminating a contract managed by the Office of Facilities Management for labor standards violation, the contracting officer will, through the Chief Facilities Management Officer, present the facts in detail to the General Counsel for review. The contracting officer will be advised by the Chief Facilities Management Officer, as to the recommended action.</P>
              <P>(c) If the contract is to be terminated, the Deputy Secretary for Acquisition and Materiel Management or the Chief Facilities Management Officer will submit the reports required by 29 CFR 5.7(d).</P>
              <CITA>[49 FR 12610, Mar, 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 824</EAR>
          <HD SOURCE="HED">PART 824—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 824.1—Protection of Individual Privacy</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>824.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 824.2—Freedom of Information Act</HD>
              <SECTNO>824.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 210 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 824.1—Protection of Individual Privacy</HD>
            <SECTION>
              <SECTNO>824.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The pertinent Department rules regarding the implementation of the Privacy Act of 1974 consist of 38 CFR 1.575 through 1.584.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 824.2—Freedom of Information Act</HD>
            <SECTION>
              <SECTNO>824.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Department rules implementing the Freedom of Information Act are contained in 38 CFR 1.550 through 1.559.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984; as amended at 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 825</EAR>
          <HD SOURCE="HED">PART 825—FOREIGN ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 825.1—Buy American Act—Supplies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>825.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>825.102-70</SECTNO>
              <SUBJECT>Nonavailability in the United States.</SUBJECT>
              <SECTNO>825.105</SECTNO>
              <SUBJECT>Evaluating offers.</SUBJECT>
              <SECTNO>825.108</SECTNO>
              <SUBJECT>Excepted articles, materials and supplies.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 825.2—Buy American Act—Construction Materials</HD>
              <SECTNO>825.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>825.202-70</SECTNO>
              <SUBJECT>Nonavailability in the United States.</SUBJECT>
              <SECTNO>825.203</SECTNO>
              <SUBJECT>Evaluating offers.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 825.3—Balance of Payments Program</HD>
              <SECTNO>825.302</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>825.302-70</SECTNO>
              <SUBJECT>Deviations from the Balance of Payments Program.</SUBJECT>
              <SECTNO>825.304</SECTNO>
              <SUBJECT>Excess and near-excess foreign currencies.</SUBJECT>
              <SECTNO>825.304-70</SECTNO>
              <SUBJECT>Determination of feasibility to use excess or near-excess foreign currency.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 825.6—Customs and Duties</HD>
              <SECTNO>825.603</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>825.603-70</SECTNO>
              <SUBJECT>Technical assistance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 825.7—Restrictions on Certain Foreign Purchases</HD>
              <SECTNO>825.703</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="192"/>
              <HD SOURCE="HED">Subpart 825.8—International Agreements and Coordination</HD>
              <SECTNO>825.870</SECTNO>
              <SUBJECT>Technical assistance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 825.10—Additional Foreign Acquisition Regulations</HD>
              <SECTNO>825.1001</SECTNO>
              <SUBJECT>Waiver of right to examination of records.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 825.11—Solicitation Provisions and Contract Clauses</HD>
              <SECTNO>825.1102</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12611, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 825.1—Buy American Act—Supplies</HD>
            <SECTION>
              <SECTNO>825.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>825.102-70</SECTNO>
              <SUBJECT>Nonavailability in the United States.</SUBJECT>
              <P>(a) If articles, materials, and supplies required for a particular procurement are not excepted in FAR 25.108, or when only foreign bids or offers are received, the determination concerning nonavailability required by FAR 25.108(b) will be prepared by the contracting officer for foreign construction materials costing less than $1 million. Each determination will be factually supported in writing and included in the contract file.</P>
              <P>(b) Nonavailability determinations for foreign materials costing over $1 million must be requested by field facility contracting officers from the Deputy Assistant Secretary for Acquisition and Materiel Management (95). Each request for a determination must be fully justified with all pertinent facts.</P>
              <P>(c) A copy of all determinations made in accordance with paragraph (a) of this section shall be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management (95) concurrently with the submissions required by FAR 25.108 (b) and (c).</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985; 54 FR 40064, Sept. 29, 1989; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>825.105</SECTNO>
              <SUBJECT>Evaluating offers.</SUBJECT>
              <P>When a determination is required under FAR 25.105, the contracting officer will submit the proposed award to the Deputy Assistant Secretary for Acquisition and Materiel Management (95) for approval by the Secretary. The submission will contain all the facts, including a comparison of all the bids or offers received, and any other pertinent information upon which a determination may be made. If approved, a report of the transaction will be prepared and submitted by the Deputy Assistant Secretary for Acquisition and Materiel Management in accordance with Executive Order 10582, dated December 17, 1954, as amended.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>825.108</SECTNO>
              <SUBJECT>Excepted articles, materials and supplies.</SUBJECT>

              <P>The following items are added to the list of exceptions contained in FAR 25.108(d):
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">Glass, Wire</FP>
                <FP SOURCE="FP-1">Glass, Lead</FP>
                <FP SOURCE="FP-1">Insulin, Human.</FP>
              </EXTRACT>
              <CITA>[52 FR 32012, Aug. 25, 1987]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 825.2—Buy American Act—Construction Materials</HD>
            <SECTION>
              <SECTNO>825.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>825.202-70</SECTNO>
              <SUBJECT>Nonavailability in the United States.</SUBJECT>
              <P>(a) If articles, materials, and supplies required for a particular procurement are not excepted in FAR 25.108, or when only foreign bids or offers are received, the determination concerning nonavailability required by FAR 25.202(a)(3) will be made by the contracting officer for foreign construction material costing $100,000 or less. Each determination will be factually supported in writing and included in the contract file.</P>
              <P>(b) Field facility contracting officers must request approval of nonavailability determinations from the Deputy Assistant Secretary for Acquisition and Materiel Management (95).</P>

              <P>(c) A copy of all determinations made in accordance with paragraph (a) of this section shall be forwarded to the <PRTPAGE P="193"/>Chief Facilities Management Officer, Office of Facilities Management, through the Deputy Assistant Secretary for Acquisition and Materiel Management (95).</P>
              <P>(d) Each solicitation will include the clause specified in 852.236-89. This provision reflects the general policy of not authorizing nondomestic materials on VA construction contracts.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985; 52 FR 32012, Aug. 25, 1987; 54 FR 40064, Sept. 29, 1989; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>825.203</SECTNO>
              <SUBJECT>Evaluating offers.</SUBJECT>
              <P>When a contracting officer believes that the requirement of the “Buy American Act” is impracticable as provided in FAR 25.202(a)(2), or that it would be advantageous to VA to deviate from the provisions of the Act as authorized by FAR 25.203, authority to consummate the contract will be requested. The request containing all the facts, including a comparison of all the bids or offers received and any other pertinent information upon which a determination may be made, will be submitted through the Deputy Assistant Secretary for Acquisition and Materiel Management (95), for approval by the Secretary. If approved, a report of the transaction will be prepared and transmitted by the Chief Facilities Management Officer, Office of Facilities Management, in accordance with Executive Order 10582, dated December 17, 1954, as amended.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 52 FR 32012, Aug. 25, 1987; 54 FR 40064, Sept. 29, 1989; 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 825.3—Balance of Payments Program</HD>
            <SECTION>
              <SECTNO>825.302</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>825.302-70</SECTNO>
              <SUBJECT>Deviations from the Balance of Payments Program.</SUBJECT>
              <P>When a contracting officer believes that the requirement of the “Balance of Payments Program” is not practicable as set forth in FAR 25.302 (b)(2) or (b)(3), he/she will request authority to consummate the contract through the Deputy Assistant Secretary for Acquisition and Materiel Management (95) for approval. Each request must be fully justified, containing all pertinent facts.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>825.304</SECTNO>
              <SUBJECT>Excess and near-excess foreign currencies.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>825.304-70</SECTNO>
              <SUBJECT>Determination of feasibility to use excess or near-excess foreign currency.</SUBJECT>
              <P>In accordance with FAR 25.304(c), contracting officers will submit requests for determination to utilize excess or near-excess foreign currencies to the Deputy Assistant Secretary for Acquisition and Materiel Management (93).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 825.6—Customs and Duties</HD>
            <SECTION>
              <SECTNO>825.603</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>825.603-70</SECTNO>
              <SUBJECT>Technical assistance.</SUBJECT>

              <P>Should the regulations contained in FAR 25.6 be inadequate to meet particular needs of a contracting officer in clearing items through customs and/or obtaining Duty Free Entry of goods, the nearest Regional Office of the United States Customs Service should be contacted for technical assistance. These offices are located as follows:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">Regional Commissioner, U.S. Customs Service, 100 Summer St., Boston, Massachusetts 02110</FP>
                <FP SOURCE="FP-1">Regional Commissioner, U.S. Customs Service, 99 S.E. 5th St., Miami, Florida 33131</FP>
                <FP SOURCE="FP-1">Regional Commissioner, U.S. Customs Service, 585 Felipe St., Houston, Texas 77057</FP>
                <FP SOURCE="FP-1">Regional Commissioner, U.S. Customs Service, 6 World Trade Center, New York, New York 10048</FP>
                <FP SOURCE="FP-1">Regional Commissioner, U.S. Customs Service, 423 Canal St., New Orleans, Louisiana 70130</FP>
                <FP SOURCE="FP-1">Regional Commissioner, U.S. Customs Service, 300 N. Los Angeles St., Los Angeles, California 90053</FP>
                <FP SOURCE="FP-1">Regional Commissioner, U.S. Customs Service, 55 E. Monroe St., Chicago, Illinois 60603</FP>
              </EXTRACT>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="194"/>
            <HD SOURCE="HED">Subpart 825.7—Restrictions on Certain Foreign Purchases</HD>
            <SECTION>
              <SECTNO>825.703</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>When felt to be in the best interest of the Government, the contracting officer may request exceptions to the requirements of FAR 25.7 for purchases in excess of $10,000 from the Secretary through the Deputy Assistant Secretary for Acquisition and Materiel Management (95). Each such request must be fully justified, containing all pertinent facts.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 825.8—International Agreements and Coordination</HD>
            <SECTION>
              <SECTNO>825.870</SECTNO>
              <SUBJECT>Technical assistance</SUBJECT>
              <P>Contracting officers may obtain technical information or guidance on international agreements and treaties for procurements outside the United States by contacting the Executive Director and Chief Operating Officer, VA National Acquisition Center.</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 63 FR 69220, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 825.10—Additional Foreign Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>825.1001</SECTNO>
              <SUBJECT>Waiver of right to examination of records.</SUBJECT>
              <P>(a) If the contracting officer determines that the “Audit and Records—Negotiation” clause with Alternate III should be used after all efforts to include the basic clause have failed, and provided that use of Alternate III of the clause is authorized in the instances cited in FAR 25.901, he/she may request, with appropriate documentation, a determination from the Secretary, through the Deputy Assistant Secretary for Acquisition and Materiel Management (95). The Secretary, should he/she concur in the contracting officer's determination that the clause should be omitted, will then forward an agency request for omission of the clause to the Comptroller General for a final determination as required by FAR 25.901(c)(1).</P>
              <P>(b) All determinations to omit the “Audit and Records—Negotiation” clause will be supported by a determination and findings prepared by the contracting officer containing the information set forth in FAR 25.901(d). The completed determination and findings will be made a part of the contract file. One copy of the determination and findings will be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management (95).</P>
              <CITA>[49 FR 12611, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989. Redesignated and amended at 63 FR 69220, Dec. 16, 1998. Further redesignated at 67 FR 49258, July 30, 2002]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 825.11—Solicitation Provisions and Contract Clauses</HD>
            <SECTION>
              <SECTNO>825.1102</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) The Buy American Act (41 U.S.C. 10a-d), except as modified by the Trade Agreements Act (TAA) and the North American Free Trade Agreement (NAFTA)), requires that only domestic construction material shall be used in the performance of contracts for construction. To clarify VA's position on foreign material, the contracting officer shall insert the clause at 852.236-89, Buy American Act, in solicitations and contracts for construction that contain the FAR clause at 52.225-9, Buy American Act'Balance of Payments Program'Construction Materials.</P>
              <P>(b) For solicitations and contracts for construction that include the FAR clause at 52.225-11, Buy American Act'Balance of Payment Program'Construction Materials Under Trade Agreements, with its Alternate I (i.e., subject only to the TAA), insert the clause at 852.236-89, Buy American Act, with its Alternate I.</P>
              <P>(c) For solicitations and contracts that include the FAR clause at 52.225-11 without its Alternate I (i.e., subject to both the TAA and NAFTA), insert the clause at 852.236-89, Buy American Act, with its Alternate II.</P>
              <CITA>[67 FR 49258, July 30, 2002]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="195"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 828</EAR>
          <HD SOURCE="HED">PART 828—BONDS AND INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 828.1—Bonds and Other Financial Protections</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>828.101</SECTNO>
              <SUBJECT>Bid guarantees.</SUBJECT>
              <SECTNO>828.101-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <SECTNO>828.101-70</SECTNO>
              <SUBJECT>Safekeeping and return of bid guarantee.</SUBJECT>
              <SECTNO>828.106</SECTNO>
              <SUBJECT>Administration.</SUBJECT>
              <SECTNO>828.106-6</SECTNO>
              <SUBJECT>Furnishing information.</SUBJECT>
              <SECTNO>828.106-70</SECTNO>
              <SUBJECT>Bond premium adjustment.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 828.2—Sureties and Other Security for Bonds</HD>
              <SECTNO>828.203-7</SECTNO>
              <SUBJECT>Exclusion of individual sureties.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 828.3—Insurance</HD>
              <SECTNO>828.306</SECTNO>
              <SUBJECT>Insurance under fixed-price contracts.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 828.71—Indemnification of Contractors, Medical Research or Development Contracts</HD>
              <SECTNO>828.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>828.7101</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>828.7102</SECTNO>
              <SUBJECT>Extent of indemnification.</SUBJECT>
              <SECTNO>828.7103</SECTNO>
              <SUBJECT>Financial protection.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12612, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 828.1—Bonds and Other Financial Protections</HD>
            <SECTION>
              <SECTNO>828.101</SECTNO>
              <SUBJECT>Bid guarantees.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>828.101-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Where a bid bond is required for supplies or services, the phrase “any cost of acquiring the work” in paragraph (e) of the BID GUARANTEE clause in FAR 52.228-1 may be modified to refer to the cost of “supplies,” “services,” etc.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984. Redesignated at 64 FR 40519, July 27, 1999.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>828.101-70</SECTNO>
              <SUBJECT>Safekeeping and return of bid guarantee.</SUBJECT>
              <P>(a) Certified checks or other negotiable security furnished as bid security with the three lowest acceptable bids will be retained in a safe. These will be returned by any method that will provide evidence of receipt, or in person upon presentation of proper receipt, after the contract and contract bonds have been signed and approved.</P>
              <P>(b) Certified checks or other negotiable security furnished in support of other than the three lowest acceptable bids should be returned promptly to the respective bidders by any method that will provide evidence of receipt or in person upon presentation of proper receipt.</P>
              <P>(c) Commercial bid bonds are not returned unless specifically requested by the bidders, and, even if requested by any of the three low bidders, are not returned until the contract and contract bonds have been executed by the successful bidder, or all bids have been rejected.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984, as amended at 64 FR 40519, July 27, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>828.106</SECTNO>
              <SUBJECT>Administration.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>828.106-6</SECTNO>
              <SUBJECT>Furnishing information.</SUBJECT>
              <P>For all contracts except contracts awarded by the Office of Facilities Management, the head of the contracting activity, as defined in 802.100, shall be the Department designee referenced in FAR 28.106-6(c) to furnish copies of payment bonds to requestors. For contracts awarded by the Office of Facilities Management, the Office of Facilities Management contracting officer shall be the Department designee.</P>
              <CITA>[64 FR 40519, July 27, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>828.106-70</SECTNO>
              <SUBJECT>Bond premium adjustment.</SUBJECT>
              <P>When performance and payment bonds are required, the contract will contain the clause prescribed in 852.228-70.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984. Redesignated at 64 FR 40519, July 27, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 828.2—Sureties and Other Security for Bonds</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>64 FR 40519, July 27, 1999, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <PRTPAGE P="196"/>
              <SECTNO>828.203-7</SECTNO>
              <SUBJECT>Exclusion of individual sureties.</SUBJECT>
              <P>The Deputy Assistant Secretary for Acquisition and Materiel Management is delegated authority to make the determinations referenced in FAR 28.203-7 to exclude individuals from acting as surety on bonds and to accept bonds from individuals named on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 828.3—Insurance</HD>
            <SECTION>
              <SECTNO>828.306</SECTNO>
              <SUBJECT>Insurance under fixed-price contracts.</SUBJECT>
              <P>(a) Term contracts, or contracts of a continuing nature, for ambulance, automobile and aircraft service, will contain the provision in 852.237-71.</P>
              <P>(b) <E T="03">Exceptions.</E> The provisions of paragraph (a) of this section do not apply to emergency or sporadic ambulance service authorized by VA Manual MP-1, part II, chapter 3; or other emergency or sporadic vehicle or aircraft services. <E T="03">Provided,</E> That such service is not used solely for the purpose of avoiding entering into a continuing contract. <E T="03">Provided further,</E> That such services will be obtained from firms known to carry insurance coverage in accordance with State or local requirements.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984, as amended at 64 FR 40519, July 27, 1999]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 828.71—Indemnification of Contractors, Medical Research or Development Contracts</HD>
            <SECTION>
              <SECTNO>828.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>(a) This subpart sets forth the policies and procedures concerning indemnification of contractors performing contracts covering medical research or development which involve risks of an unusually hazardous nature, as authorized by 38 U.S.C. 7317.</P>
              <P>(b) The authority to indemnify the contractor under this subpart does not create any rights to third parties which would not otherwise exist by law.</P>
              <P>(c) As used in this subpart the term “contractor” includes subcontractors of any tier under a contract containing an indemnification provision pursuant to 38 U.S.C. 7317.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984, as amended at 63 FR 69221, Dec. 16, 1998; 64 FR 40519, July 27, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>828.7101</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The approval for the indemnification of contractors will be made by the Secretary of Veterans Affairs.</P>
              <P>(b) Contracting Officers shall submit requests for approval, together with all available information, to the Deputy Assistant Secretary for Acquisition and Materiel Management (95) for transmittal to the Secretary.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984, as amended at 54 FR 24173, June 6, 1989; 54 FR 30044, July 18, 1989; 63 FR 69221, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>828.7102</SECTNO>
              <SUBJECT>Extent of indemnification.</SUBJECT>
              <P>(a) Any contract for medical research or development authorized by 38 U.S.C. 7303, the performance of which involves a risk of an unusually hazardous nature, may provide that the Government will indemnify the contractor against either or both of the following, but only to the extent that they arise out of the direct performance of the contract and to the extent not covered by the financial protection required under 828.7103.</P>
              <P>(1) Liability (including reasonable expenses of litigation or settlement) to third persons, except liability under State or Federal worker's injury compensation laws to employees of the contractor employed at the site of and in connection with the contract for which indemnification is granted, for death, bodily injury, or loss of or damage to property, from a risk that the contract defines as unusually hazardous.</P>
              <P>(2) Loss of or damage to property of the contractor from a risk that the contract defines as unusually hazardous.</P>
              <P>(b) A contract that provides for indemnification in accordance with this subpart must also provide for:</P>

              <P>(1) Notice to the contracting officer of any claim or suit against the contractor for death, bodily injury, or loss of or damage to property; and<PRTPAGE P="197"/>
              </P>
              <P>(2) Control of or assistance in the defense by the Government, at its election, of such suit or claim for which indemnification is provided in the contract.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984, as amended at 63 FR 69221, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>828.7103</SECTNO>
              <SUBJECT>Financial protection.</SUBJECT>
              <P>(a) The amount of financial protection that the contractor is required to have and maintain to cover liability to third persons and loss of or damage to the contractor's property shall be the maximum amount of insurance available from private sources; however, the Secretary may establish a lesser amount after taking into consideration the cost and terms of private insurance.</P>
              <P>(b) The financial protection may include private insurance, private contractual indemnities, self-insurance, other proof of financial responsibility, or a combination of such forms to provide the maximum amount required. When the contractor elects to utilize self insurance, proof of such financial responsibility up to the maximum amount required will be furnished the contracting officer prior to award.</P>
              <CITA>[49 FR 12612, Mar. 29, 1984, as amended at 64 FR 40519, July 27, 1999]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 829</EAR>
          <HD SOURCE="HED">PART 829—TAXES</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>829.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 829.2—Federal Excise Taxes</HD>
              <SECTNO>829.202</SECTNO>
              <SUBJECT>General exemptions.</SUBJECT>
              <SECTNO>829.202-70</SECTNO>
              <SUBJECT>Tax exemptions for alcohol products.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12614, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>829.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part prescribes policies and procedures for exemptions from Federal excise taxes imposed on alcohol products purchased for use in the Department of Veterans Affairs medical care program.</P>
            <CITA>[64 FR 38593, July 19, 1999]</CITA>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 829.2—Federal Excise Taxes</HD>
            <SECTION>
              <SECTNO>829.202</SECTNO>
              <SUBJECT>General exemptions.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>829.202-70</SECTNO>
              <SUBJECT>Tax exemptions for alcohol products.</SUBJECT>
              <P>(a) <E T="03">General.</E> (1) The procurement of spirits free of tax for nonbeverage purposes is permitted to Government agencies by regulations of the Bureau of Alcohol, Tobacco, and Firearms (ATF) (see 27 CFR 211.231-237, 213.141-146 and 240.720-722). The use of tax-free alcohol, whiskey, beer, wine and denatured spirits for nonbeverage purposes shall include but not be limited to medicinal and scientific purposes and in the treatment of patients.</P>
              <P>(2) Authority is hereby delegated to the Director, Marketing Center, Hines, Illinois, and to the Chief, Acquisition and Materiel Management Service, Department of Veterans Affairs medical facilities to sign application permits on Bureau of Alcohol, Tobacco, and Firearms (ATF) prescribed forms. This authority is not to be redelegated.</P>
              <P>(b) <E T="03">Whiskey, alcohol, and denatured alcohol.</E> (1) Application forms for tax-free purchases are to be obtained from and submitted to the Director, Bureau of Alcohol, Tobacco, and Firearms, Washington, DC 20226.</P>
              <P>(2) ATF Form 1486, Specially Denatured Spirits for Use of United States, is the application/permit required for denatured spirits, and ATF Form 1444, Tax-Free Spirits for Use of United States, is required for distilled spirits (whiskey and alcohol). These are continuing permits to procure items tax free. Copies must be made available to the supplier in support of each procurement.</P>

              <P>(3) Purchases for excise tax-free whiskey and alcohol, not available through the depot can only be made from a distillery or a bonded premises. In accordance with 27 CFR 213.144, the vendor will also support each shipment with ATF 1473, Shipment and Receipt Specifically Denatured Tax-Free, or Recovered Spirits. The ATF 1473 will be completed by the accountable officer and the original copy will be forwarded to the Regional Regulatory Administrator whose address is shown in item <PRTPAGE P="198"/>12 of the form. A copy of ATF 1473 will be retained in the purchase order file.</P>
              <P>(c) <E T="03">Wine.</E> No tax exemption form or ATF permit is required for the tax-free procurement of wine. An extra copy of a properly executed purchase order or requisition document may be furnished to the supplier (retailer, wholesaler or winery) to facilitate record keeping.</P>
              <P>(d) <E T="03">Beer.</E> Tax-free beer may be procured only from licensed breweries and only when such product is prescribed for therapeutic use of patients. The application for an ATF permit is to be submitted in letter form to the Director, Bureau of Alcohol, Tobacco, and Firearms, Washington, DC 20226. The following information is required.</P>
              <P>(1) Name and address of facility;</P>
              <P>(2) Specific purpose for which beer will be used;</P>
              <P>(3) Quantity proposed to buy each month, year, etc.;</P>
              <P>(4) Name and address of brewery; and</P>
              <P>(5) Copy of document authorizing contracting officer to sign request.</P>
              <P>A new permit is needed only when beer is to be purchased from a different brewery than the one for which the original permit was requested.</P>
              <CITA>[49 FR 12614, Mar. 29, 1984, as amended at 54 FR 24173, June 6, 1989]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 831</EAR>
          <HD SOURCE="HED">PART 831—CONTRACT COST PRINCIPLES AND PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 831.70—Contract Cost Principles and Procedures</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>831.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>831.7001</SECTNO>
              <SUBJECT>Allowable costs under cost reimbursement vocational rehabilitation and education contracts or agreements.</SUBJECT>
              <SECTNO>831.7001-1</SECTNO>
              <SUBJECT>Tuition.</SUBJECT>
              <SECTNO>831.7001-2</SECTNO>
              <SUBJECT>Special services or courses.</SUBJECT>
              <SECTNO>831.7001-3</SECTNO>
              <SUBJECT>Books, supplies and equipment required to be personally owned.</SUBJECT>
              <SECTNO>831.7001-4</SECTNO>
              <SUBJECT>Medical services and hospital care.</SUBJECT>
              <SECTNO>831.7001-5</SECTNO>
              <SUBJECT>Secretary's Decision No. 557.</SUBJECT>
              <SECTNO>831.7001-6</SECTNO>
              <SUBJECT>Consumable instructional supplies.</SUBJECT>
              <SECTNO>831.7001-7</SECTNO>
              <SUBJECT>Reimbursement for other supplies and services.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12615, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 831.70—Contract Cost Principles and Procedures</HD>
            <SECTION>
              <SECTNO>831.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart contains general cost principles and procedures for the determination and allowance of costs in connection with the negotiation and administration of cost reimbursement type contracts pertaining to the furnishing of vocational rehabilitation, education, and training to eligible veterans under chapter 31 of Title 38, United States Code.</P>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001</SECTNO>
              <SUBJECT>Allowable costs under cost reimbursement vocational rehabilitation and education contracts or agreements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001-1</SECTNO>
              <SUBJECT>Tuition.</SUBJECT>
              <P>(a) Except as provided in this section, when the contractor has a customary cost of tuition the charge to the Department of Veterans Affairs may not exceed that charged to similarly circumstanced nonveteran students; provided that where the contractor has more than one standard charge for the same service, the charge to the Department of Veterans Affairs will be the lowest price for the entire course, semester, quarter, or term which is offered or published.</P>
              <P>(b) VA will not normally pay tuition or incidental fees to institutions or establishments furnishing apprentice or other training on-the-job. VA may pay:</P>
              <P>(1) For such charges customarily made by nonprofit workshop or similar establishment for providing work adjustment training to similarly circumstanced nonveterans even though an incentive wage is paid the trainee as part of the training; or</P>
              <P>(2) For certain training expenses incurred by an employer providing on-the-job training following rehabilitation to the point of employability when such additional training is determined to be necessary by VA.</P>

              <P>(c) When the total cost of instruction is paid from Federal funds or a portion of the cost is covered by grants from the Federal Government, i.e., Smith-Hughes or other laws, excluding Federal Land Grant Funds, such subsidy <PRTPAGE P="199"/>will be taken into consideration in determining the charge to the Department of Veterans Affairs. The term, Federal Land Grant Funds, refers to those received under the Morrill-Nelson Act (Morrill Acts of 1862 and 1890 and the Nelson amendment of 1907) and section 22 of the Bankhead-Jones Act of 1935.</P>
              <P>(d) Payments on behalf of a veteran who receives a fellowship, scholarship, grant-in-aid, assistantship, or similar award in complete or partial payment of tuition or fees or both will be made in accordance with the following:</P>
              <P>(1) The award will reduce, to the extent of the award, the amount of tuition or fee or both that is payable by the Department of Veterans Affairs.</P>
              <P>(2) Awards which are not paid in cash, except those which are made specifically for the purpose of defraying the cost of room and board in dormitories which will be disregarded, will reduce to the extent of the award the charges for which the Department of Veterans Affairs is responsible.</P>
              <P>(3) Cash awards may be retained by the veterans and will not be deducted from charges ordinarily paid by the Department of Veterans Affairs.</P>
              <P>(4) Waivers of tuition and fees provided under law by States or other Government authority will be utilized to reduce the charges payable by Department of Veterans Affairs in accordance with such waivers.</P>
              <P>(e) Enrollment fees in an amount sufficient to cover the cost of registration may be paid, provided the institution or training establishment usually makes such a charge, and it does not exceed that charge made to other students or trainees.</P>
              <CITA>[49 FR 12615, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001-2</SECTNO>
              <SUBJECT>Special services or courses.</SUBJECT>
              <P>Special services or courses are those services requested by the Department of Veterans Affairs which are over and above those customarily required by the institution for similarly circumstanced nonveterans and are considered by the contracting officer to be necessary for the rehabilitation of the trainee. The costs of such special services or courses will be negotiated prior to being requested by the Department of Veterans Affairs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001-3</SECTNO>
              <SUBJECT>Books, supplies and equipment required to be personally owned.</SUBJECT>
              <P>(a) Reimbursement for books, supplies, or equipment and referred to as supplies, will be made as provided in this section.</P>
              <P>(1) Reimbursement will be made for those supplies customarily required to be owned personally by all students taking the same course or courses except that reimbursement may be made for items which are not specifically required by the school for pursuit of the course, but are determined to be needed by VA because of the demands of the course, general possession by other students, and the disadvantage imposed on the veterans by not having the item. In no instance will the supplies be in a greater variety, quality, or amount than required of nonveteran students. In this instance required is in contradistinction to requested or desirable to have or necessary for a future profession or job but not required by the institution of all students in the course.</P>
              <P>(2) When supplies are available in several prices, grades, or qualities, reimbursement may be made only for such quality or grade that will meet the requirements.</P>
              <P>(3) Partial payment agreements in which the Department of Veterans Affairs shares payment with the veterans is not allowable.</P>
              <P>(4) The costs incurred by the institution in connection with the veteran's thesis such as typing, printing, microfilming, or otherwise reproducing the required number of copies; research expenses when certified by the veterans committee chairman, major professor, department head, or appropriate dean that such expenses are required in order to complete the course requiring the preparation of a thesis are considered as supplies and are authorized for reimbursement.</P>

              <P>(5) When the institution operates a bookstore or supply store for all students the reimbursement for supplies issued to trainees will be no greater than charges made to nonveteran students.<PRTPAGE P="200"/>
              </P>
              <P>(6) Where the institution, training establishment, or employer arranges for issuance of supplies to all students by stores or establishments not institutionally owned and to pay such store or establishment for supplies issued to trainees, reimbursement is allowable provided the charges are no greater than those paid by nonveterans or to the institutions whichever is the lesser.</P>
              <P>(7) Supplies purchased by the institution specifically for trainees will be reimbursed at the net cost to the institution.</P>
              <P>(8) Where the institution does not provide or arrange for issuance of generally required books, tools and supplies for students attending the facility, the institution, in cooperation with VA, may designate certain stores and establishments to provide generally required books, tools and supplies for veterans pursuing a vocational rehabilitation program. The vendor will be reimbursed in the same manner as for supplies provided or arranged for by the institutions.</P>
              <P>(9) Where it is customary in a survey subject to permit each student to obtain the aggregate of books for the subject on a rental basis (commonly referred to as a rental set) and the ownership or permanent possession by the student is not required, reimbursement is authorized for the rental charge provided it does not exceed the charge made to nonveteran students.</P>
              <P>(10) Educational and training institutions furnishing supplies to trainees which are required to be owned personally or on a rental basis by all students pursuing the same or similar course may be compensated for such services in an amount not exceeding 10 percent of the allowable charge for the supplies furnished or rented except:</P>
              <P>(i) Where the tuition covers the charges for supplies or rentals or a stipulated fee is assessed all students, handling charges are not allowable.</P>
              <P>(ii) The handling charge is not allowable for Government-owned books procured by the institution from the Library of Congress.</P>
              <P>(iii) In cases where an item of equipment will exceed $50 in cost, effort will be made to secure a lower handling charge than for those costing a lesser amount. The agreed percent for such handling charges will be included in the contract or added as an addendum.</P>
              <CITA>[49 FR 12615, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001-4</SECTNO>
              <SUBJECT>Medical services and hospital care.</SUBJECT>
              <P>(a) VA may pay the customary student health fee when payment of the fee is required for similarly circumstanced nonveterans. If payment of the fee is not required for similarly circumstanced nonveterans payment, payment may be made if it is determined by the Veterans Health Administration that such payment is in the best interest of the veteran and the government.</P>
              <P>(b) Where medical services or hospital care not covered by the customary students health fee are available in the school operated facilities or arrangements have been made by the institution with doctors and hospitals in the immediate area, reimbursement by the Veterans Benefits Administration for such services may be made in a contract for such services provided that the Director, VA Medical Center, determines:</P>
              <P>(1) That such arrangements are necessary to provide timely medical care for veterans attending the facility under provisions of Chapter 31; and</P>
              <P>(2) The general rates established for such services do not exceed the rates established by the Under Secretary for Health.</P>
              <P>(c) VA may reimburse a rehabilitation facility for incidental medical services provided during a veteran's program at the facility.</P>
              <CITA>[49 FR 12615, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989; 63 FR 69221, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001-5</SECTNO>
              <SUBJECT>Secretary's Decision No. 557.</SUBJECT>
              <P>(a) Fees and expenses authorized under Secretary's Decision No. 557 may be authorized for payment when the educational institution or training establishment makes such payments on behalf of the veteran.</P>

              <P>(b) Payment for fees and expenses not made by the educational institution or training establishment will be made in <PRTPAGE P="201"/>accordance with the applicable provisions of parts 812, 813 or 815 of this chapter and FAR parts 12, 13, or 15.</P>
              <CITA>[49 FR 12615, Mar. 29, 1984, as amended at 63 FR 69221, Dec. 16, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001-6</SECTNO>
              <SUBJECT>Consumable instructional supplies.</SUBJECT>
              <P>(a) Reimbursement for consumable instructional supplies which institutions require for the instruction of all students, veteran or nonveteran pursuing the same or comparable course or courses will be made when:</P>
              <P>(1) The supplies are entirely consumed in the fabrication of a required project.</P>
              <P>(2) The supplies are not consumed but are of such a nature that they cannot be salvaged from the end product for reuse for further instructions by disassembling or dismantling the end product.</P>
              <P>(b) Reimbursement for consumable instructional supplies is not allowable when:</P>
              <P>(1) The supplies can be salvaged for reuse.</P>
              <P>(2) The supplies used in a project which has been elected by the student as an alternate class project in order to produce an end product of greater value than that which is normally required to learn the skills of the occupation and which will become his property upon completion.</P>
              <P>(3) The supplies used in a project which has been selected by the institution to provide the student with a more elaborate end product than is required to provide adequate instruction as an inducement to the veteran to elect a particular course of study.</P>
              <P>(4) The salable value of the end product is equal to or greater than the cost of the supplies used in its fabrication or assembly and a reasonable use has not been made of such supplies so that they are not readily salvaged from the end product to be reused for instructional purposes.</P>
              <P>(5) The end product is of permanent value and retained by the institution.</P>
              <P>(6) A third party provides the articles or equipment for repair or improvement and for which he or she would otherwise pay a commercial price.</P>
              <P>(7) The number of projects resulting in end products in excess of the numbers normally required to teach the recognized job operations and processes of the occupation stipulated in the approved course of study.</P>
              <P>(8) The cost of supplies are included in the charge for tuition or as a fee designated for such purpose.</P>
              <CITA>[49 FR 12615, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>831.7001-7</SECTNO>
              <SUBJECT>Reimbursement for other supplies and services.</SUBJECT>
              <P>Reimbursement shall be made for other services and assistance which may be authorized under provisions of applicable Chapter 31 regulations including but not limited to employment and self-employment, initial and extended evaluation, and independent living services.</P>
              <CITA>[49 FR 12615, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 832</EAR>
          <HD SOURCE="HED">PART 832—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 832.1—Non-Commercial Item Purchase Financing</HD>
              <SECTNO>832.111</SECTNO>
              <SUBJECT>Contract clauses for non-commercial purchases.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 832.4—Advance Payments</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>832.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>832.404</SECTNO>
              <SUBJECT>Exclusions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 832.5—Progress Payments Based on Costs</HD>
              <SECTNO>832.502</SECTNO>
              <SUBJECT>Preaward matters.</SUBJECT>
              <SECTNO>832.502-2</SECTNO>
              <SUBJECT>Contract finance office clearance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 832.8—Assignment of Claims</HD>
              <SECTNO>832.805</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
              <SECTNO>832.805-70</SECTNO>
              <SUBJECT>Distribution/notification of assignment of claims.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>49 FR 12616, Mar. 29, 1984, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 832.1—Non-Commercial Item Purchase Financing</HD>
            <SECTION>
              <SECTNO>832.111</SECTNO>
              <SUBJECT>Contract clauses for non-commercial purchases.</SUBJECT>

              <P>(a) In solicitations and contracts for construction that include the FAR clause at 52.232-5, Payments Under <PRTPAGE P="202"/>Fixed-Price Construction Contracts, but that do not contain a section entitled “Network Analysis System (NAS),” the contracting officer shall insert the clause at 852.236-82, Payments under fixed-price construction contracts (without NAS). When the solicitations or contracts include guarantee period services, the contracting officer shall use the clause with its Alternate I.</P>
              <P>(b) In solicitations and contracts for construction that include the FAR clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, and that also contain a section entitled “Network Analysis System (NAS),” the contracting officer shall insert the clause at 852.236-83, Payments under fixed-price construction contracts (including NAS). When the solicitations or contracts include guarantee period services, the contracting officer shall use the clause with its Alternate I.</P>
              <CITA>[67 FR 49258, July 30, 2002]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 832.4—Advance Payments</HD>
            <SECTION>
              <SECTNO>832.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The determination required by FAR 32.402(c)(1)(iii) will be made by the Deputy Assistant Secretary for Acquisition and Materiel Management. Prior to award, contracting officers will submit, through channels, the information required by FAR 32.409-1 for such determinations.</P>
            </SECTION>
            <SECTION>
              <SECTNO>832.404</SECTNO>
              <SUBJECT>Exclusions.</SUBJECT>
              <P>(a) Under the provisions of 31 U.S.C. 3324(d)(2), as amended, advance payment is authorized for subscriptions or other charges for newspapers, magazines, periodicals and other publications for official use of any office under the Government from appropriations available therefore, notwithstanding the provisions of 31 U.S.C. 3324(a). The term “other publications” includes any publication printed, microfilmed, photocopied or magnetically or otherwise recorded for auditory or visual usage.</P>
              <P>(b) Under the provisions of 31 U.S.C. 1535, advance payment may be made for services and supplies obtained from another Government agency. This includes items such as coupons from the Government Printing Office and Operator Permits, Civilian Defense Radio System, and from the Federal Communications Commission.</P>
              <P>(c) Under the provisions of 5 U.S.C. 4109, advance payment may be made for all or any part of the necessary expenses for training Government employees in Government or non-Government facilities. This includes the purchase or rental of books, materials and supplies or services directly related to the training of a Government employee.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 832.5—Progress Payments Based on Costs</HD>
            <SECTION>
              <SECTNO>832.502</SECTNO>
              <SUBJECT>Preaward matters.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>832.502-2</SECTNO>
              <SUBJECT>Contract finance office clearance.</SUBJECT>
              <P>Prior approval of actions listed in FAR 32.502-2 will be obtained from the Deputy Assistant Secretary for Acquisition and Materiel Management (95). Requests for approval shall be accompanied by full justification together with the recommendations of the contracting officer.</P>
              <CITA>[49 FR 12616, Mar. 29, 1984, as amended at 63 FR 69221, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 832.8—Assignment of Claims</HD>
            <SECTION>
              <SECTNO>832.805</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>832.805-70</SECTNO>
              <SUBJECT>Distribution/notification of assignment of claims.</SUBJECT>
              <P>(a) The Contracting officer will file the retained copy of the notice of assignment and the certified copy of the original instrument of assignment with the General Accounting Office copy of the contract.</P>

              <P>(b) Contracting officers will notify field facilities of any recognized assignment of payments under contracts executed in Central Office or by the VA National Acquisition Center divisions in all cases where payment for articles and services under such contracts are <PRTPAGE P="203"/>certified and approved for payment in the field.</P>
              <CITA>[49 FR 12616, Mar. 29, 1984, as amended at 54 FR 40065, Sept. 29, 1989; 63 FR 69221, Dec. 16, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 833</EAR>
          <HD SOURCE="HED">PART 833—PROTESTS, DISPUTES, APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 833.1—Protests</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>833.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>833.103</SECTNO>
              <SUBJECT>Protests to the Department.</SUBJECT>
              <SECTNO>833.104</SECTNO>
              <SUBJECT>Protests to GAO.</SUBJECT>
              <SECTNO>833.106</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 833.2—Disputes and Appeals</HD>
              <SECTNO>833.209</SECTNO>
              <SUBJECT>Suspected fraudulent claims.</SUBJECT>
              <SECTNO>833.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <SECTNO>833.212</SECTNO>
              <SUBJECT>Contracting officer's duties upon appeal.</SUBJECT>
              <SECTNO>833.214</SECTNO>
              <SUBJECT>Alternative dispute resolution (ADR).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>38 U.S.C. 501 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 833.1—Protests</HD>
            <SECTION>
              <SECTNO>833.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Solicitations shall instruct interested parties (see FAR provision 52.233-2) to deliver a copy of any protest filed with the General Accounting Office (GAO) to the contracting officer and the appropriate Central Office activity as follows:</P>
              <P>(a) For contracts to be awarded by the Office of Facilities Management: Chief Facilities Management Officer, Office of Facilities Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.</P>
              <P>(b) For all other contracts: Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420.</P>
              <CITA>[51 FR 23070, June 25, 1986, as amended at 52 FR 28559, July 31, 1987; 54 FR 40065, Sept. 29, 1989; 58 FR 48974, Sept. 21, 1993; 61 FR 11586, Mar. 21, 1996; 63 FR 15318, Mar. 31, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>833.103</SECTNO>
              <SUBJECT>Protests to the Department.</SUBJECT>
              <P>(a) <E T="03">Filing of protests.</E> (1) An interested party may protest to the contracting officer or, as an alternative, may request an independent review by filing a protest with the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, or, for solicitations issued by the Office of Facilities Management, the Chief Facilities Management Officer, Office of Facilities Management. A protest filed with the Deputy Assistant Secretary for Acquisition and Materiel Management or the Chief Facilities Management Officer will not be considered if the interested party has a protest on the same or similar issues pending with the contracting officer.</P>
              <P>(2) Protests must be in writing and addressed as follows:</P>
              <P>(i) Contracting officer protests—address where offer/bid is to be submitted;</P>
              <P>(ii) Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; or</P>
              <P>(iii) Chief Facilities Management Officer, Office of Facilities Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.</P>
              <P>(3) Protests regarding certain issues may be dismissed by VA without consideration of the merits or forwarded to another agency for appropriate action. Among these protests are the following:</P>
              <P>(i) <E T="03">Contract administration.</E> The administration of an existing contract is within the discretion of the contracting agency. Disputes between a contractor and the Department are resolved pursuant to the disputes clause of the contract and the Contract Disputes Act of 1978. 41 U.S.C. 601-613.</P>
              <P>(ii) <E T="03">Small business size standards and standard industrial classification.</E> Challenges of established size standards or the size status of particular firms, and challenges of the selected standard industrial classification are for review solely by the Small Business Administration. 15 U.S.C. 637(b)(6); 13 CFR 121.3-6 (1984).</P>
              <P>(iii) <E T="03">Small business certificate of competency program.</E> Any referral made to the Small Business Administration pursuant to section 8(b)(7) of the Small <PRTPAGE P="204"/>Business Act, or any issuance of a certificate of competency or refusal to issue a certificate under such section is not reviewed in accordance with bid protest procedures absent a showing of possible fraud or bad faith on the part of Government officials.</P>
              <P>(iv) <E T="03">Protests under section 8(a) of the Small Business Act.</E> Since contracts are let under section 8(a) of the Small Business Act to the Small Business Administration at the contracting officer's discretion and on such terms as agreed upon by the procuring agency and the Small Business Administration, the decision to place or not to place a procurement under the 8(a) subcontract are not subject to review absent a showing of possible fraud or bad faith on the part of Government officials or that regulations may have been violated. 15 U.S.C. 637(a).</P>
              <P>(v) <E T="03">Affirmative determination of responsibility by the Contracting Officer.</E> Because a determination that a bidder or offeror is capable of performing a contract is based in large measure on subjective judgments which generally are not readily susceptible to reasoned review, an affirmative determination of responsibility will not be reviewed, absent a showing that such determination was made fraudulently or in bad faith or that definitive responsibility criteria in the solicitation were not met.</P>
              <P>(vi) <E T="03">Walsh-Healey Public Contract Act.</E> Challenges of the legal status of a firm as a regular dealer or manufacturer within the meaning of the Walsh-Healey Act is for determination solely by the procuring agency, the Small Business administration (if a small business is involved) and the Secretary of Labor. 41 U.S.C. 35-45.</P>
              <P>(vii) <E T="03">Subcontractor protests.</E> The contracting agency will not consider subcontractor protests except where the subcontract is by or for the Government.</P>
              <P>(viii) <E T="03">Judicial proceedings.</E> The contracting agency will not consider protests where the matter involved is the subject of litigation before a court of competent jurisdiction.</P>
              <P>(b) Where appropriate, alternative dispute resolution (ADR) procedures may be used to resolve protests at any stage in the protest process. The Department of Veterans Affairs Board of Contract Appeals (VABCA) is an independent and neutral entity within the Department of Veterans Affairs and is available to serve as the third-party neutral (Neutral) for bid protests. If ADR is used, the Department of Veterans Affairs will not furnish any documentation in an ADR proceeding beyond what is allowed by the Federal Acquisition Regulation.</P>
              <P>(c) <E T="03">Action upon receipt of protest.</E> For protests filed with the contracting officer, the head of the contracting activity (HCA) shall be the approving official for the determinations identified in FAR 33.103(f)(1) and (f)(3). If the HCA is also the contracting officer, the approving official shall be the Deputy Assistant Secretary for Acquisition and Materiel Management. For protests filed with the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, or the Chief Facilities Management Officer, Office of Facilities Management, those individuals shall be the approving officials for the determinations identified in FAR 33.103(f)(1) and (f)(3).</P>
              <P>(d) <E T="03">Requests for GAO advance decisions.</E> When a written protest has been filed with the contracting officer and the contracting officer considers it desirable to do so, the contracting officer may request an advance decision from the Comptroller General. The submission to the Comptroller General will be sent through the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team or the Chief Facilities Management Officer, Office of Facilities Management, as appropriate, and will include the material indicated in FAR 33.104(a)(2). The contracting officer shall notify the protesting individual or firm promptly in writing of the decision of the Comptroller General.</P>
              <P>(e) <E T="03">Protest after award.</E> When a written protest is filed with the contracting officer after contract award:</P>

              <P>(1) If FAR 33.103(f)(3) requires suspension of contract performance, the contracting officer shall seek to obtain a mutual agreement with the contractor to suspend performance on a no-cost basis and, if successful, shall document the suspension with a supplemental <PRTPAGE P="205"/>agreement. If unsuccessful, the contracting officer shall issue a stop-work order in accordance with contract clause FAR 52.233-3, Protest After Award.</P>
              <P>(2) If suspension of contract performance is not required by FAR 33.103(f)(3) and if the contracting officer determines that the award was proper, the contracting officer shall furnish the protester a written explanation of the basis for the award which is responsive to the allegations of the protest. The contracting officer shall advise the protester that the protester may appeal the determination to the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, or the Chief Facilities Management Officer, Office of Facilities Management, in the case of a contract awarded by the Office of Facilities Management, or the Comptroller General, as specified in internal Department guidance.</P>
              <P>(3) If suspension of contract performance is not required by FAR 33.103(f)(3) but the contracting officer determines that the award is questionable, the contracting officer may consult with the Office of the General Counsel (025) and shall advise the contractor of the protest and invite the contractor to submit comments and relevant information. The contracting officer shall submit the case promptly to the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, or the Chief Facilities Management Officer, Office of Facilities Management, in the case of a contract awarded by the Office of Facilities Management, who may consult with the Office of the General Counsel (025) and who shall either advise the contracting officer of the appropriate action to take, or submit the case to the Comptroller General for a decision. The contracting officer shall provide interested parties with a copy of the final decision.</P>
              <P>(f) <E T="03">Agency appellate review of contracting officer's protest decision.</E> An interested party may request an independent review of a contracting officer's protest decision by filing an appeal with the Deputy Assistant Secretary for Acquisition and Materiel Management or, for solicitations issued by the Office of Facilities Management, with the Chief Facilities Management Officer, Office of Facilities Management. To be considered timely, the appeal must be received by the Deputy Assistant Secretary for Acquisition and Materiel Management or, for solicitations issued by the Office of Facilities Management, by the Chief Facilities Management Officer, Office of Facilities Management, within 10 calendar days of the date the interested party knew, or should have known, whichever is earlier, of the basis for the appeal. Appeals sh