August 15, 2008 CODE OF FEDERAL REGULATIONS 48 Chapters 7 to 14 Revised as of October 1, 2008 Federal Acquisition Regulations System Containing a codification of documents of general applicability and future effect As of October 1, 2008 With Ancillaries

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 Table of Contents Page Explanation v Title 48: Chapter 7—Agency for International Development 3 Chapter 8—Department of Veterans Affairs 141 Chapter 9—Department of Energy 279 Chapter 10—Department of the Treasury 547 Chapter 12—Department of Transportation 563 Chapter 13—Department of Commerce 627 Chapter 14—Department of the Interior 661 Finding Aids: Table of CFR Titles and Chapters 681 Alphabetical List of Agencies Appearing in the CFR 701 List of CFR Sections Affected 711

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To cite the regulations in this volume use title, part and section number. Thus, 48 CFR 701.105 refers to title 48, part 701, section 105. Explanation

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(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume.

What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call 202-741-6010.

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October 1, 2008.

THIS TITLE

Title 48—Federal Acquisition Regulations System 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, 2008.

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 implementing 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 supplementing the Federal acquisition regulations.

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).

The first volume, containing chapter 1 (parts 1 to 51), includes an index to the Federal acquisition regulations.

For this volume, Robert J. Sheehan was Chief Editor. The Code of Federal Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley.

 <LRH>48 CFR Ch. 7 (10-1-08 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>33</PG> <PT>724</PT> <SUBJECT>Protection of privacy and freedom of information</SUBJECT> <PG>36</PG> <PT>725</PT> <SUBJECT>Foreign acquisition</SUBJECT> <PG>36</PG> <PT>726</PT> <SUBJECT>Other socioeconomic programs</SUBJECT> <PG>37</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD> </SUBCHAP> <CHAPTI> <PT>727</PT> <SUBJECT>Patents, data, and copyrights</SUBJECT> <PG>41<PRTPAGE P="4"/> </PG> <PT>728</PT> <SUBJECT>Bonds and insurance</SUBJECT> <PG>41</PG> <PT>731</PT> <SUBJECT>Contract cost principles and procedures</SUBJECT> <PG>43</PG> <PT>732</PT> <SUBJECT>Contract financing</SUBJECT> <PG>46</PG> <PT>733</PT> <SUBJECT>Protests, disputes, and appeals</SUBJECT> <PG>48</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD> </SUBCHAP> <CHAPTI> <PT>734</PT> <SUBJECT>Major system acquisition</SUBJECT> <PG>52</PG> <PT>736</PT> <SUBJECT>Construction and architect-engineer contracts</SUBJECT> <PG>52</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>54</PG> <PT>745</PT> <SUBJECT>Government property</SUBJECT> <PG>56</PG> <PT>747</PT> <SUBJECT>Transportation</SUBJECT> <PG>56</PG> <PT>749</PT> <SUBJECT>Termination of contracts</SUBJECT> <PG>56</PG> <PT>750</PT> <SUBJECT>Extraordinary contractual actions</SUBJECT> <PG>57</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>63</PG> <PT>753</PT> <SUBJECT>Forms</SUBJECT> <PG>91</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>91</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>117</PG> <APPHED>Appendixes G-H to Chapter 7 [Reserved]</APPHED> <APP>Appendix I to Chapter 7—USAID's Academic Publication Policy</APP> <PG>121</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>122</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 Acquisition and Assistance, Policy Division (M/OAA/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; 72 FR 19670, Apr. 19, 2007]</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 Acquisition and Assistance (“M/OAA 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> <CITA>[64 FR 42040, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007]</CITA> </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/OAA 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 Acquisition and Assistance, Policy Division (M/OAA/POL). Insofar as possible, <PRTPAGE P="7"/>such material will be numerically keyed to the AIDAR.</P> <CITA>[64 FR 42040, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007]</CITA> </SECTION> </SUBPART> <SUBPART> <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 Acquisition and Assistance, Policy Division (M/OAA/P), hereinafter referred to as “M/OAA/P”. The M/OAA/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/OAA/P for a shorter review period. In addition to a copy of the deviation request, the M/OAA/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/OAA/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/OAA, 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/OAA/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/OAA/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/OAA/P for a shorter review and coordination period. The comments of the C/CAAC and the M/OAA/P shall be made a part of the deviation request <PRTPAGE P="8"/>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.</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/OAA/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/OAA/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; 72 FR 19670, Apr. 19, 2007]</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/OAA 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/OAA 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/OAA Director has specified authority to:</P> <P>(i) Select and appoint contracting officers and terminate their appointments in accordance with section 1.603 <PRTPAGE P="9"/>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 (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/OAA/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; 72 FR 19670, Apr. 19, 2007]</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/OAA Director.</P> <CITA>[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</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 <PRTPAGE P="10"/>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 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&Fs). D&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&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&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 Acquisition and Assistance, 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 Acquisition and Assistance 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; 72 FR 19670, Apr. 19, 2007]</CITA> </SECTION> <SECTION> <PRTPAGE P="11"/> <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> <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/OAA Director.</P> <CITA>[50 FR 52780, Dec. 26, 1985, as amended at 64 FR 42041, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</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 Acquisition and Assistance;</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; 72 FR 19670, Apr. 19, 2007]</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&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-<PRTPAGE P="12"/>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 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/OAA 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; 72 FR 19670, Apr. 19, 2007]</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/OAA Director. The M/OAA Director, under the Administrator's delegation, has designated the M/OAA 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/OAA 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; 72 FR 19670, Apr. 19, 2007]</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/OAA Director.</P> <P> <E T="03">Suspending official</E> in USAID is the M/OAA Director.</P> <CITA>[62 FR 40467, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</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/OAA Director is the Agency head (see AIDAR 701.601(a)(1)). The M/OAA 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, as amended at 72 FR 19670, Apr. 19, 2007]</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.<PRTPAGE P="17"/> </P> <P>(b) <E T="03">Authorization.</E> (1) The USAID Metric Executive (as designated in ADS 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/OAA 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; 72 FR 19670, Apr. 19, 2007]</CITA> </SECTION> <SECTION> <SECTNO>714.406-4</SECTNO> <SUBJECT>Disclosure of mistakes after award.</SUBJECT> <P>The M/OAA 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; 72 FR 19670, Apr. 19, 2007]</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/OAA 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; 72 FR 19670, Apr. 19, 2007]</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> <SUBPART> <HD SOURCE="HED">Subpart 719.273—The U.S. Agency for International Development (USAID) Mentor-Protégé Program</HD> <SECTNO>719.273</SECTNO> <SUBJECT>The U.S. Agency for International Development Mentor-Protégé Program.</SUBJECT> <SECTNO>719.273-1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>719.273-2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>719.273-3</SECTNO> <SUBJECT>Incentives for prime contractor participation.</SUBJECT> <SECTNO>719.273-4</SECTNO> <SUBJECT>Eligibility of Mentor and Protégé firms.</SUBJECT> <SECTNO>719.273-5</SECTNO> <SUBJECT>Selection of Protégé firms.</SUBJECT> <SECTNO>719.273-6</SECTNO> <SUBJECT>Application process.</SUBJECT> <SECTNO>719.273-7</SECTNO> <SUBJECT>OSDBU review of application.</SUBJECT> <SECTNO>719.273-8</SECTNO> <SUBJECT>Developmental assistance.</SUBJECT> <SECTNO>719.273-9</SECTNO> <SUBJECT>Obligations under the Mentor-Protégé Program.</SUBJECT> <SECTNO>719.273-10</SECTNO> <SUBJECT>Internal controls.</SUBJECT> <SECTNO>719.273-11</SECTNO> <SUBJECT>Solicitation provision and contract clause.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>42 U.S.C. 7254, 40 U.S.C. 486(c), 42 U.S.C. 2201.</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 <PRTPAGE P="25"/>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.</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;<PRTPAGE P="26"/> </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</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 <PRTPAGE P="27"/>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</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 <PRTPAGE P="28"/>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.</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 <PRTPAGE P="29"/>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> <SUBPART> <HD SOURCE="HED">Subpart 719.273—The U.S. Agency for International Development (USAID) Mentor-Protégé Program</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>72 FR 32543, June 13, 2007, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>719.273</SECTNO> <SUBJECT>The U.S. Agency for International Development (USAID) Mentor-Protégé Program.</SUBJECT> </SECTION> <SECTION> <SECTNO>719.273-1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The USAID Mentor-Protégé Program is designed to assist small business, including veteran-owned small business, service-disabled veteran-owned small business, HUBZone, small socially and economically disadvantaged business, and women-owned small business in enhancing their capabilities to perform contracts and sub-contracts for USAID and other Federal agencies. The Mentor-Protégé Program is also designed to improve the performance of USAID contractors and subcontractors by providing developmental assistance to Protégé entities, fostering the establishment of long-term business relationships between small business and prime contractors, and increasing the overall number of small business that receive USAID contract and subcontract awards. A firm's status as a Protégé under a USAID contract shall not have an effect on the firm's eligibility to seek other prime contracts or subcontracts.</P> </SECTION> <SECTION> <SECTNO>719.273-2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Throughout, the term “small business” includes all categories of small firms as defined by the Small Business Administration (SBA) on whose behalf the Office of Small and Disadvantaged Business Utilization (OSDBU) is chartered to advocate, including small business, small disadvantaged business, women-owned small business, veteran-owned and service-disabled veteran-owned small business and small business located in HUBZones, as those terms are defined in 13 CFR part 124. The determination of affiliation is a function of the SBA.</P> <P>(a) A “Mentor” is a prime contractor that elects to promote and develop small business subcontractors by providing developmental assistance designed to enhance the business success of the Protégé.</P> <P>(b) “Program” refers to the USAID Mentor-Protégé Program as described in this Chapter.</P> <P>(c) “Protégé” means a small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business or service-disabled veteran owned small business that is the recipient of developmental assistance pursuant to a Mentor-Protégé Agreement.</P> </SECTION> <SECTION> <SECTNO>719.273-3</SECTNO> <SUBJECT>Incentives for prime contractor participation.</SUBJECT> <P>(a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), USAID is authorized to provide appropriate incentives to encourage subcontracting opportunities for small business consistent with the efficient and economical performance of the contract. This authority is limited to negotiated procurements. FAR 19.202-1 provides additional guidance.</P> <P>(b) Costs incurred by a Mentor to provide developmental assistance, as described in 719.273-8 to fulfill the terms of their agreement(s) with a Protégé firm(s), are not reimbursable as a direct cost under a USAID contract. If USAID is the mentor's responsible audit agency under FAR 42.703-1, USAID will consider these costs in determining indirect cost rates. If USAID is not the responsible audit agency, mentors are encouraged to enter into an advance agreement with their responsible audit agency on the treatment of such costs when determining indirect cost rates.</P> <P>(c) In addition to subparagraph (b) above, contracting officers may give Mentors evaluation credit under FAR 15.101-1 considerations for subcontracts awarded pursuant to their Mentor-Protégé Agreements and their subcontracting plans. Therefore:<PRTPAGE P="30"/> </P> <P>(1) Contracting officers may evaluate subcontracting plans containing Mentor-Protégé arrangements more favorably than subcontracting plans without Mentor-Protégé Agreements.</P> <P>(2) Contracting officers may assess the prime contractor's compliance with the subcontracting plans submitted in previous contracts as a factor in evaluating past performance under FAR 15.305(a)(2)(v) and determining contractor responsibility 19.705-5(a)(1).</P> <P>(d) OSDBU Mentoring Award. A non-monetary award will be presented annually to the Mentoring firm providing the most effective developmental support of a Protégé. The Mentor-Protégé Program Manager will recommend an award winner to the Director of the Office of Small and Disadvantaged Business Utilization (OSDBU).</P> <P>(e) OSDBU Mentor-Protégé Annual Conference. At the conclusion of each year in the Mentor-Protégé Program, Mentor firms will be invited to brief contracting officers, program leaders, office directors and other guests on Program progress.</P> </SECTION> <SECTION> <SECTNO>719.273-4</SECTNO> <SUBJECT>Eligibility of Mentor and Protégé firms.</SUBJECT> <P>Eligible business entities approved as Mentors may enter into agreements (hereafter referred to as “Mentor-Protégé Agreement” or “Agreement” and explained in section 719.273-6) with eligible Protégés. Mentors provide appropriate developmental assistance to enhance the capabilities of Protégés to perform as contractors and/or subcontractors. Eligible small business entities capable of providing developmental assistance may be approved as Mentors. Protégés may participate in the Program in pursuit of a prime contract or as subcontractors under the Mentor's prime contract with the USAID, but are not required to be a subcontractor to a USAID prime contractor or be a USAID prime contractor. Notwithstanding eligibility requirements in this section, USAID reserves the right to limit the number of participants in the Program in order to insure its effective management of the Mentor-Protégé Program.</P> <P>(a) Eligibility. A Mentor:</P> <P>(1) May be either a large or small business entity;</P> <P>(2) Must be eligible for award of Government contracts;</P> <P>(3) Must be able to provide developmental assistance that will enhance the ability of Protégés to perform as prime contractors or subcontractors; and</P> <P>(4) Will be encouraged to enter into arrangements with entities with which it has established business relationships.</P> <P>(b) Eligibility. A Protégé:</P> <P>(1) Must be a small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone, small socially and economically disadvantaged business, and women-owned small business);</P> <P>(2) Must meet the size standard corresponding to the NAICS code that the Mentor prime contractor believes best describes the product or service being acquired by the subcontract; and</P> <P>(3) Eligible for award of government contracts.</P> <P>(c) Protégés may have multiple Mentors. Protégés participating in Mentor-Protégé programs in addition to USAID's Program should maintain a system for preparing separate reports of Mentoring activity so that results of the USAID Program can be reported separately from any other agency program.</P> <P>(d) A Protégé firm shall self-certify to a Mentor firm that it meets the requirements set forth in paragraph (b) of this section and possess related certifications granted by the Small Business Administration (e.g., HUBZone, 8(a), etc.). Mentors may rely in good faith on written representations by potential Protégés that they meet the specified eligibility requirements. HUBZone and small disadvantaged business status eligibility and documentation requirements are determined according to 13 CFR part 124.</P> </SECTION> <SECTION> <SECTNO>719.273-5</SECTNO> <SUBJECT>Selection of Protégé firms.</SUBJECT> <P>(a) Mentor firms will be solely responsible for selecting Protégé firms. Mentors are encouraged to select from a broad base of small business including small disadvantaged business, women-owned small business, veteran-owned small business, service-disabled veteran-owned small business, and <PRTPAGE P="31"/>HUBZone firms whose core competencies support USAID's mission.</P> <P>(b) Mentors may have multiple Protégés. However, to preserve the integrity of the Program and assure the quality of developmental assistance provided to Protégés, USAID reserves the right to limit the total number of Protégés participating under each Mentor firm for the Mentor-Protégé Program.</P> <P>(c) The selection of Protégé firms by Mentor firms may not be protested, except that any protest regarding the size or eligibility status of an entity selected by a Mentor shall be handled in accordance with the Federal Acquisition Regulation (FAR) and the Small Business Administration regulations.</P> </SECTION> <SECTION> <SECTNO>719.273-6</SECTNO> <SUBJECT>Application process.</SUBJECT> <P>Entities interested in becoming a Mentor firm must apply in writing to the USAID Office of Small and Disadvantaged Business Utilization (OSDBU) by submitting form AID 321-1 (OMB Control number 0412-0574 approved on 5/22/2007). The application shall contain the Mentor-Protégé Agreement and shall be evaluated for approval. Evaluations will consider the nature and extent of technical and managerial support as well as any proposed financial assistance in the form of equity investment, loans, joint-venture, and traditional subcontracting support. The Mentor-Protégé Agreement must contain:</P> <P>(a) Names, addresses, phone numbers, and e-mail addresses (if available) of Mentor and Protégé firm(s) and a point of contact for both Mentor and Protégé;</P> <P>(b) A description of the developmental assistance that will be provided by the Mentor to the Protégé, including a description of the work or product contracted for (if any), a schedule for providing assistance, and criteria for evaluation of the Protégé's developmental success;</P> <P>(c) A listing of the number and types of subcontracts to be awarded to the Protégé;</P> <P>(d) Duration of the Agreement, including rights and responsibilities of both parties (Mentor and Protégé);</P> <P>(e) Termination procedures, including procedures for the parties' voluntary withdrawal from the Program. The Agreement shall require the Mentor or the Protégé to notify the other firm in writing at least 30 days in advance of its intent to voluntarily terminate the Agreement;</P> <P>(f) Procedures requiring the parties to notify OSDBU immediately upon receipt of termination notice from the other party;</P> <P>(g) A plan for accomplishing the work or product contracted for should the Agreement be terminated; and</P> <P>(h) Other terms and conditions, as appropriate.</P> </SECTION> <SECTION> <SECTNO>719.273-7</SECTNO> <SUBJECT>OSDBU review of application.</SUBJECT> <P>(a) OSDBU will review the information to establish the Mentor and Protégé eligibility and to ensure that the information that is in section 719.273-6 is included. If the application relates to a specific contract, then OSDBU will consult with the responsible contracting officer on the adequacy of the proposed Agreement, as appropriate. OSDBU will complete its review no later than 30 calendar days after receipt of the application or after consultation with the contracting officer, whichever is later. Application for and enrollment into the Program are free and open to the public.</P> <P>(b) After OSDBU completes its review and provides written approval, the Mentor may execute the Agreement and implement the developmental assistance as provided under the Agreement. OSDBU will provide a copy of the Mentor-Protégé Agreement to the USAID contracting officer for any USAID contracts affected by the Agreement.</P> <P>(c) The Agreement defines the relationship between the Mentor and Protégé firms only. The Agreement itself does not create any privity of contract or contractual relationship between the Mentor and USAID nor the Protégé and USAID.</P> <P>(d) If the application is disapproved, the Mentor may provide additional information for reconsideration. OSDBU will complete review of any supplemental material no later than 30 days after its receipt. Upon finding deficiencies that USAID considers correctable, OSDBU will notify the Mentor <PRTPAGE P="32"/>and Protégé and request correction of deficiencies to be provided within 15 days.</P> </SECTION> <SECTION> <SECTNO>719.273-8</SECTNO> <SUBJECT>Developmental assistance.</SUBJECT> <P>The forms of developmental assistance a Mentor can provide to a Protégé include and are not limited to the following:</P> <P>(a) Guidance relating to—</P> <P>(1) Financial management;</P> <P>(2) Organizational management;</P> <P>(3) Overall business management/planning;</P> <P>(4) Business development; and</P> <P>(5) Technical assistance.</P> <P>(b) Loans;</P> <P>(c) Rent-free use of facilities and/or equipment;</P> <P>(d) Property;</P> <P>(e) Temporary assignment of personnel to a Protégé for training; and</P> <P>(f) Any other types of permissible, mutually beneficial assistance.</P> </SECTION> <SECTION> <SECTNO>719.273-9</SECTNO> <SUBJECT>Obligations under the Mentor-Protégé Program.</SUBJECT> <P>(a) A Mentor or Protégé may voluntarily withdraw from the Program. However, in no event shall such withdrawal impact the contractual requirements under any prime contract.</P> <P>(b) Mentor and Protégé entities shall submit to the USAID Office of Small and Disadvantaged Business Utilization (OSDBU) annual reports on progress under the Mentor-Protégé Agreement. USAID will evaluate annual reports by considering the following:</P> <P>(1) Specific actions taken by the Mentor during the evaluation period to increase the participation of their Protégé(s) as suppliers to the Federal Government and to commercial entities;</P> <P>(2) Specific actions taken by the Mentor during the evaluation period to develop technical and administrative expertise of a Protégé as defined in the Agreement;</P> <P>(3) The extent to which the Protégé has met the developmental objectives in the Agreement;</P> <P>(4) The extent to which the Mentor's participation in the Mentor-Protégé Program impacted the Protégé'(s) ability to receive contract(s) and subcontract(s) from private firms and Federal agencies other than USAID; and, if deemed necessary;</P> <P>(5) Input from the Protégé on the nature of the developmental assistance provided by the Mentor.</P> <P>(c) OSDBU will submit annual reports to the relevant contracting officer regarding participating prime contractor(s)' performance in the Program.</P> <P>(d) Mentor and Protégé firms shall submit an evaluation to OSDBU at the conclusion of the mutually agreed upon Program period, the conclusion of the contract, or the voluntary withdrawal by either party from the Program, whichever comes first.</P> </SECTION> <SECTION> <SECTNO>719.273-10</SECTNO> <SUBJECT>Internal controls.</SUBJECT> <P>(a) OSDBU will oversee the Program and will work in concert with the Mentor-Protégé Program Manager and relevant contracting officers to achieve Program objectives. OSDBU will establish internal controls as checks and balances applicable to the Program. These controls will include:</P> <P>(1) Reviewing and evaluating Mentor applications for validity of the provided information;</P> <P>(2) Reviewing annual progress reports submitted by Mentors and Protégés on Protégé development to measure Protégé progress against the plan submitted in the approved Agreement;</P> <P>(3) Reviewing and evaluating financial reports and invoices submitted by the Mentor to verify that USAID is not charged by the Mentor for providing developmental assistance to the Protégé; and</P> <P>(4) Limiting the number of participants in the Mentor-Protégé Program within a reporting period, in order to insure the effective management of the Program.</P> <P>(b) USAID may rescind approval of an existing Mentor-Protégé Agreement if it determines that such action is in USAID's best interest. The rescission shall be in writing and sent to the Mentor and Protégé after approval by the Director of OSDBU. Rescission of an Agreement does not change the terms of any subcontract between the Mentor and the Protégé.</P> </SECTION> <SECTION> <PRTPAGE P="33"/> <SECTNO>719.273-11</SECTNO> <SUBJECT>Solicitation provision and contract clause.</SUBJECT> <P>(a) The Contracting Officer shall insert the provision at AIDAR 752.219-70 in all unrestricted solicitations exceeding $550,000 ($1,000,000 for construction) that offer subcontracting opportunities.</P> <P>(b) The Contracting Officer shall insert the clause at AIDAR 752.219-71 in all contracts where the prime contractor has signed a Mentor-Protégé Agreement with USAID.</P> </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.</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 <PRTPAGE P="34"/>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 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 <PRTPAGE P="35"/>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 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 <PRTPAGE P="36"/>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> <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 <PRTPAGE P="37"/>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.</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> <PRTPAGE P="38"/> <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 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> <PRTPAGE P="39"/> <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 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/OAA 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; 72 FR 19670, Apr. 19, 2007]</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 <PRTPAGE P="40"/>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 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="41"/> <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD> <PART> <EAR>Pt. 727</EAR> <HD SOURCE="HED">PART 727—PATENTS, DATA, AND COPYRIGHTS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 727.4—Rights in Data and Copyrights</HD> <SECHD>Sec.</SECHD> <SECTNO>727.404</SECTNO> <SUBJECT>Basic rights in data clause.</SUBJECT> <SECTNO>727.409</SECTNO> <SUBJECT>Solicitation provisions and contract clauses.</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>72 FR 53163, Sept. 18, 2007, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 727.4—Rights in Data and Copyrights</HD> <SECTION> <SECTNO>727.404</SECTNO> <SUBJECT>Basic rights in data clause.</SUBJECT> <P>(a) through (f) [Reserved]</P> <P>(g) When the contract includes a requirement for the contractor to assign copyright to the government or another party, the contracting officer shall incorporate (48 CFR) 752.227-14 and/or include an express limitation or restriction in the contract. USAID contracting officers will assert such a right in limited circumstances in accordance with the principles as stated in (48 CFR) 27.402.</P> </SECTION> <SECTION> <SECTNO>727.409</SECTNO> <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT> <P>(a) When the contracting officer incorporates (48 CFR) FAR 52.227-14, and if the release or publication of data first produced in the performance of the contract may be sensitive to U.S. Government relations with the cooperating country, the contracting officer must use the clause at (48 CFR) 752.227-14.</P> <P>(b) through (m) [Reserved]</P> <P>(n) The prescriptions for provisions and clauses in (48 CFR) FAR 27.409 apply to all USAID contracts regardless of place of performance.</P> </SECTION> </SUBPART> </PART> <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 Acquisition and Assistance, Policy Division (M/OAA/P).</P> <P>(c) Where the surety's obligation under an advance payment bond covers all advances made to the contractor <PRTPAGE P="42"/>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; 72 FR 19670, Apr. 19, 2007]</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 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> <PRTPAGE P="43"/> <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> <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 Acquisition and Assistance. 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; 72 FR 19670, Apr. 19, 2007]</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.<PRTPAGE P="44"/> </P> <P>(b) <E T="03">Salaries and wages.</E> It is USAID policy that if an employee's base salary plus overseas recruitment incentive, if any (see AIDAR 731.205-70) exceeds the USAID Contractor Salary Threshold (USAID CST), as stated in USAID's Automated Directives System (ADS) Chapter 302 USAID Direct Contracting (available at <E T="03">http://www.usaid.gov/policy/ads/300/302.pdf</E>), it will be allowable only if approved in writing by the contracting officer. The contracting officer shall only provide such approval after internal Agency procedures for review/approval of salaries in excess of the USAID CST in ADS 302 have been followed. 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; 72 FR 19669, Apr. 19, 2007]</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 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.<PRTPAGE P="45"/> </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) The policies set forth in AIDAR 731.205-6(b) are also applicable to contracts with a nonprofit organization.</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; 72 FR 19669, Apr. 19, 2007]</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 Acquisition and Assistance, has been so designated. The <PRTPAGE P="46"/>Overhead and Special Cost and Contract Close-Out Branch, Office of Acquisition and Assistance (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 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; 72 FR 19670, Apr. 19, 2007]</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.<PRTPAGE P="47"/> </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> <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> <PRTPAGE P="48"/> <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> <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> <PRTPAGE P="49"/> <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/OAA 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/OAA 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; 72 FR 19670, Apr. 19, 2007]</CITA> </SECTION> <SECTION> <SECTNO>733.103-72</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>(a) <E T="03">M/OAA Director.</E> The decision regarding an agency protest shall be made by the M/OAA Director within 30 days from the date a proper protest is filed unless the M/OAA Director determines that a longer period is necessary to resolve the protest, and so notifies the protester in writing. The M/OAA 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.</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; 72 FR 19670, Apr. 19, 2007]</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/OAA 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/OAA Director.</P> <CITA>[61 FR 39094, July 26, 1996, as amended at 64 FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</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 <PRTPAGE P="50"/>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, 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 <PRTPAGE P="51"/>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="52"/> <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/OAA Director.</P> <CITA>[55 FR 39976, Oct. 1, 1990, as amended at 64 FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</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="53"/>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="54"/> <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 742.11—Production, Surveillance, and Reporting</HD> <SECTNO>742.1170</SECTNO> <SUBJECT>Performance monitoring and progress reporting.</SUBJECT> <SECTNO>742.1170-1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>742.1170-2</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>742.1170-3</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>742.1170-4</SECTNO> <SUBJECT>Progress reporting requirements and contract clause.</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 742.11—Production, Surveillance, and Reporting</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>72 FR 53163, Sept. 18, 2007, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>742.1170</SECTNO> <SUBJECT>Performance monitoring and progress reporting.</SUBJECT> </SECTION> <SECTION> <SECTNO>742.1170-1</SECTNO> <SUBJECT>General.</SUBJECT> <P>Performance monitoring is a function of contract administration used to determine contractor progress towards achieving the goals and objectives of the contract and to identify any factors that may delay or prevent the accomplishment of those goals and objectives. Performance monitoring requires USAID personnel, particularly the cognizant technical officer, to maintain adequate knowledge of the contractor's activities and progress in order to ensure that USAID's objectives, as stated in the contract's Statement of Work, will be achieved.</P> </SECTION> <SECTION> <SECTNO>742.1170-2</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) This section applies to USAID non-personal, professional/technical services contracts exceeding the simplified acquisition threshold, but may be applied to other USAID contracts, if the contracting officer and requiring office determine that doing so is in the best interests of the Agency. The contracting officer must ensure that this determination is documented in the contract file. This section does not apply to personal services contracts.</P> <P>(b) The underlying principles of FAR 48 CFR subpart 42.11 apply to USAID contracts and are inherent to this section. However, not all of the specific requirements and terminology in FAR 48 CFR subpart 42.11 are compatible with the types of technical assistance contracts usually awarded by USAID. Therefore, this section 742.1170 applies when the requirements of FAR 48 CFR subpart 42.11 do not meet USAID requirements or are otherwise not appropriate.</P> <P>(c) The progress reports discussed in this section are separate from the performance evaluation reports prepared <PRTPAGE P="55"/>in accordance with FAR 48 CFR subpart 42.15 and internal Agency procedures, although they may be used by USAID personnel or their authorized representatives when evaluating the contractor's performance. Furthermore, the policies, procedures, and limitations of this section do not apply to technical reports, studies, papers, etc., the acquisition of which may be part of or even the sole purpose of the contract.</P> </SECTION> <SECTION> <SECTNO>742.1170-3</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) The contractor is responsible for timely contract performance. Performance monitoring by USAID does not obviate this responsibility.</P> <P>(b) The requiring office, particularly the cognizant technical officer and the contracting officer, will determine how to monitor the contractor's performance to protect the Government's interests, by considering:</P> <P>(1) The contract requirements for reporting progress;</P> <P>(2) The contract performance schedule;</P> <P>(3) The contractor's implementation plan or workplan;</P> <P>(4) The contractor's history of contract performance;</P> <P>(5) The contractor's experience with the services or supplies being provided under the contract;</P> <P>(6) The contractor's financial capability;</P> <P>(7) Any other factors the requiring office, particularly the cognizant technical officer and the contracting officer, considers appropriate and necessary to adequately monitor contractor performance (for example, the day-to-day working proximity of the cognizant technical officer or contracting officer to the contractor's place of performance).</P> <P>(c) In monitoring contractor performance, the requiring office (particularly the cognizant technical officer and contracting officer) must utilize any of the contractor's existing systems or processes for monitoring progress, provided that doing so is not contrary to the terms of the contract. The requiring officer or cognizant technical officer must not require anything from the contractor that is outside the scope or terms of the contract or may result in claims of waivers, of changes, or of other contract modifications. Further, progress reports shall not require information already available from other sources.</P> </SECTION> <SECTION> <SECTNO>742.1170-4</SECTNO> <SUBJECT>Progress reporting requirements and contract clause.</SUBJECT> <P>(a) When the requiring office needs information on contract performance status on a regular basis, the contracting officer may require the contractor to submit periodic progress reports, tailored to address specific contract requirements but limited to only that information essential to USAID's needs in monitoring the contractor's progress.</P> <P>(b) Because the cognizant technical officer is the individual most familiar with the contractor's performance, the contractor must submit the progress reports directly to the cognizant technical officer. The cognizant technical officer must review the reports and advise the contracting officer, in writing, of any recommended action, including any action needed to address potential or actual delays in performance. The cognizant technical officer must so advise the contracting officer in sufficient time, typically thirty days, for him or her to take any action that the contracting officer determines is appropriate. The requirements of this paragraph do not relieve the contractor of notification requirements identified elsewhere in the contract.</P> <P>(c) The contracting officer must insert the clause at 752.242-70, Periodic Progress Reports, in solicitations and contracts that require progress reporting, as specified in this section. The contracting officer must include specific reporting instructions in the Schedule.</P> </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 <PRTPAGE P="56"/>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 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 <PRTPAGE P="57"/>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/OAA Director;</P> <P>(2) Controller;</P> <P>(3) General Counsel.</P> <P>(b) The M/OAA 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; 72 FR 19670, Apr. 19, 2007]</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:</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/OAA 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; 72 FR 19670, Apr. 19, 2007]</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.<PRTPAGE P="58"/> </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/OAA 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 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 <PRTPAGE P="59"/>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/OAA Director.</P> <CITA>[50 FR 16086, Apr. 24, 1985, as amended at 64 FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</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 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.<PRTPAGE P="60"/> </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 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 Acquisition and Assistance, Evaluation Division <PRTPAGE P="61"/>(M/OAA/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; 72 FR 19670, Apr. 19, 2007]</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 Acquisition and Assistance (M/OAA/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/OAA Director to approve the request.</P> <CITA>[62 FR 40469, July 29, 1997, as amended at 64 FR 42042, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</CITA> </SECTION> <SECTION> <SECTNO>750.7110-2</SECTNO> <SUBJECT>Office of General Counsel coordination.</SUBJECT> <P>Prior to the submission of a case to the M/OAA 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/OAA Director in accordance with 750.7110-3.</P> <CITA>[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]</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/OAA Director shall be prepared and forwarded by the cognizant contracting officer through M/OAA/E to the M/OAA Director by means of an action memorandum. M/OAA/E will review the action memorandum for accuracy and completeness. The action memorandum shall provide for approval or disapproval by the M/OAA 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<PRTPAGE P="62"/> </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; 72 FR 19670, Apr. 19, 2007]</CITA> </SECTION> <SECTION> <SECTNO>750.7110-4</SECTNO> <SUBJECT>Processing by M/OAA 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/OAA/E will forward the action memorandum to the M/OAA Director. The M/OAA 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; 72 FR 19670, Apr. 19, 2007]</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 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="63"/> <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>752.219-70</SECTNO> <SUBJECT>USAID Mentor-Protégé Program.</SUBJECT> <SECTNO>752.219-71</SECTNO> <SUBJECT>Mentor requirements and evaluation.</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>752.227-14</SECTNO> <SUBJECT>Rights in Data—general.</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>752.242-70</SECTNO> <SUBJECT>Periodic progress reports.</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—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 <PRTPAGE P="64"/>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 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 <PRTPAGE P="65"/>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 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> <PRTPAGE P="66"/> <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> <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>752.219-70</SECTNO> <SUBJECT>USAID Mentor-Protégé Program.</SUBJECT> <P>As prescribed in 719.273-11(a), insert the following provision:</P> <EXTRACT> <HD SOURCE="HD1">USAID Mentor-Protégé Program (July 13, 2007)</HD> <P>(a) Large and small business are encouraged to participate in the USAID Mentor-Protégé Program (the “Program”). Mentor firms provide eligible small business Protégés with developmental assistance to enhance their business capabilities and ability to obtain Federal contracts.</P> <P>(b) Mentor firms are large prime contractors or eligible small business capable of providing developmental assistance. Protégé firms are small business as defined in 13 CFR parts 121, 124, and 126.</P> <P>(c) Developmental assistance is technical, managerial, financial, and other mutually beneficial assistance that aids Protégés. The costs for developmental assistance are not chargeable to the contract.</P> <P>(d) Firms interested in participating in the Program are encouraged to contact the USAID Mentor-Protégé Program Manager (202-712-1500) for more information.</P> </EXTRACT> <HD SOURCE="HD3">(End of provision)</HD> <CITA>[72 FR 32546, June 13, 2007]</CITA> </SECTION> <SECTION> <SECTNO>752.219-71</SECTNO> <SUBJECT>Mentor requirements and evaluation.</SUBJECT> <P>As prescribed in AIDAR 719.273-11(b), insert the following clause:</P> <EXTRACT> <HD SOURCE="HD1">Mentor Requirements and Evaluation (July 13, 2007)</HD> <P>(a) Mentor and Protégé firms shall submit an evaluation of the overall experience in the Program to OSDBU at the conclusion of the mutually agreed upon Program period, <PRTPAGE P="67"/>the conclusion of the contract, or the voluntary withdrawal by either party from the Program, whichever occurs first. At the conclusion of each year in the Mentor-Protégé Program, the Mentor and Protégé will formally brief the USAID Mentor-Protégé Program Manager regarding Program accomplishments under their Mentor-Protégé Agreement.</P> <P>(b) Mentor or Protégé shall notify OSDBU in writing, at least 30 calendar days in advance of the effective date of the firm's withdrawal from the Program.</P> </EXTRACT> <HD SOURCE="HD3">(End of clause)</HD> <CITA>[72 FR 32546, June 13, 2007]</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</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.<PRTPAGE P="68"/> </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> <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> <PRTPAGE P="69"/> <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>752.227-14</SECTNO> <SUBJECT>Rights in Data—general.</SUBJECT> <P>As prescribed in 727.409(b), insert the following clause:</P> <EXTRACT> <HD SOURCE="HD1">Rights in Data—General (OCT 2007)</HD> <P>The following paragraph (d) replaces paragraph (d) of (48 CFR) FAR 52.227-14 Rights in Data—General.</P> <P>(d) Release, publication and use of data.</P> <P>(1) For all data first produced or specifically used by the Contractor in the performance of this contract in the United States, its territories, or Puerto Rico, the Contractor shall have the right to use, release to others, reproduce, distribute, or publish such data, except to the extent such data may be subject to the Federal export control or national security laws or regulations, or unless otherwise provided in this paragraph of this clause or expressly set forth in this contract [see paragraph (d)(3) for limitations on contracts performed outside of the US].</P> <P>(2) The Contractor agrees that to the extent it receives or is given access to data necessary for the performance of this contract which contain restrictive markings, the Contractor shall treat the data in accordance with such markings unless otherwise specifically authorized in writing by the Contracting Officer.</P> <P>(3) For all data first produced or specifically used by the Contractor in the overseas performance of this contract, the Contractor shall not release, reproduce, distribute, or publish such data without the written permission of the Contracting Officer. The government also may require the contractor to assign copyright to the government or another party as circumstances warrant or as specifically stated elsewhere in the contract.</P> </EXTRACT> <CITA>[72 FR 53164, Sept. 18, 2007]</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 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 <PRTPAGE P="70"/>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 (JUL 2007)</HD> <P>(a) Contractor must provide MEDEVAC service coverage to all U.S. citizen, U.S. resident alien, and Third Country National employees and their authorized dependents (hereinafter “individual”) while overseas under a USAID-financed direct contract. USAID will reimburse reasonable, allowable, and allocable costs for MEDEVAC service coverage incurred under the contract. The Contracting Officer will determine the reasonableness, allowability, and allocability of the costs based on the applicable cost principles and in accordance with cost accounting standards.</P> <P>(b) <E T="03">Exceptions.</E> (i) The Contractor is not required to provide MEDEVAC insurance to eligible employees and their dependents with a health program that includes sufficient MEDEVAC coverage as approved by the Contracting Officer.</P> <P>(ii) The Mission Director may make a written determination to waive the requirement for such coverage. The determination must be based on findings that the quality of local medical services or other circumstances obviate the need for such coverage for eligible employees and their dependents located at post.</P> <P>(c) Contractor must insert a clause similar to this clause in all subcontracts that require performance by contractor employees overseas.</P> </EXTRACT> <CITA>[59 FR 33447, June 29, 1994, as amended at 72 FR 19669, Apr. 19, 2007]</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>752.232-70</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.<PRTPAGE P="71"/> </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>752.242-70</SECTNO> <SUBJECT>Periodic progress reports.</SUBJECT> <P>As prescribed in 742.1170-3(c), insert the following clause in contracts for which periodic progress reports are required from the contractor. The term “contract” shall be interpreted as “task order” or “delivery order” when this clause is used in an indefinite-delivery contract.</P> <EXTRACT> <HD SOURCE="HD1">Periodic Progress Reports (OCT 2007)</HD> <P>(a) The contractor shall prepare and submit progress reports as specified in the contract schedule. These reports are separate from the interim and final performance evaluation reports prepared by USAID in accordance with FAR 42.15 and internal Agency procedures, but they may be used by USAID personnel or their authorized representatives when evaluating the contractor's performance.</P> <P>(b) During any delay in furnishing a progress report required under this contract, the contracting officer may withhold from payment an amount not to exceed US$25,000 (or local currency equivalent) or 5 percent of the amount of this contract, whichever is less, until such time as the contractor submits the report or the contracting officer determines that the delay no longer has a detrimental effect on the Government's ability to monitor the contractor's progress.</P> </EXTRACT> <CITA>[72 FR 53164, Sept. 18, 2007]</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="72"/> </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> <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 lading for each shipment to both the Division of National Cargo, Office of Cargo Preference, Maritime Administration, U.S. Department of Transportation, Washington, DC <PRTPAGE P="73"/>20590, and the Transportation Division, Office of Acquisition and Assistance, 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, as amended at 72 FR 19670, Apr. 19, 2007]</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="74"/>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="75"/>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="76"/>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 Acquisition and Assistance, 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="77"/>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; 72 FR 19670, Apr. 19, 2007]</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="78"/> <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="79"/> </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 2007)</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) Reimbursement of the employee's base annual salary plus overseas recruitment incentive, if any, which exceed the USAID Contractor Salary Threshold (USAID CST) stated in USAID Automated Directives System (ADS) Chapter 302 USAID Direct Contracting, must be approved in writing by the Contracting Officer, as prescribed in 731.205-6(b) 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; 72 FR 19669, Apr. 19, 2007]</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.<PRTPAGE P="80"/> </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 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 <PRTPAGE P="81"/>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 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> <PRTPAGE P="82"/> <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> <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—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 <PRTPAGE P="83"/>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.</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 <PRTPAGE P="84"/>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> <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 <PRTPAGE P="85"/>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 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 <PRTPAGE P="86"/>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 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 <PRTPAGE P="87"/>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 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 <PRTPAGE P="88"/>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.</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 <PRTPAGE P="89"/>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.</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.<PRTPAGE P="90"/> </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 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> <PRTPAGE P="91"/> <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 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 <PRTPAGE P="92"/>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.</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).<PRTPAGE P="93"/> </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, 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/<PRTPAGE P="94"/>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 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) This Appendix applies the “USAID Contractor Salary Threshold (USAID CST)” policy in Automated Directives System (ADS) Chapter 302.3.6.8 to salaries for U.S. PSCs. Salaries in excess of the USAID CST, which is equivalent to the maximum rate for Federal agencies without a certified SES performance appraisal system, must be approved by the M/OAA Director in accordance with the approval procedures in ADS <PRTPAGE P="95"/>302.3.6.8(e). This approval cannot be re-delegated.</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, 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 & 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 & 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 <PRTPAGE P="96"/>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 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. <PRTPAGE P="97"/> </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 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 the “USAID Contractor Salary Threshold (USAID CST)”, which is equivalent to the maximum rate for Federal agencies without a certified SES performance appraisal system, in accordance with approval procedures in ADS 302.3.6.8(e) as required in Section 4.(e)(3);</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 <PRTPAGE P="98"/>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="99"/> <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="100"/>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="101"/> </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="102"/> </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 amount of differential resulting from compensation (pay comparability) adjustment should be included.</P> </FTNT> <PRTPAGE P="103"/> <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="104"/> </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="105"/> </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) (JUL 2007)</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 PSC'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 (usually in January). 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 annual “USAID Contractor Salary Threshold (USAID CST)”, which is equivalent to the maximum rate for agencies without a certified SES performance appraisal system (or the equivalent hourly 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. <PRTPAGE P="106"/>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 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.<PRTPAGE P="107"/> </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 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 <PRTPAGE P="108"/>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 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-<PRTPAGE P="109"/>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. 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.<PRTPAGE P="110"/> </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 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 <PRTPAGE P="111"/>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 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 <PRTPAGE P="112"/>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, 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> (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">Transportation 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 Acquisition and Assistance, 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.<PRTPAGE P="113"/> </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 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 (JUL 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 <PRTPAGE P="114"/>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.</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 <PRTPAGE P="115"/>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> <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 <PRTPAGE P="116"/>clause is available from the Post Communication Center at the Embassy or USAID Mission.</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.<PRTPAGE P="117"/> </P> <HD SOURCE="HD3">25. Medical Evacuation (MEDEVAC) Services (JUL 2007)</HD> <P>(a) The PSC must obtain MEDEVAC service coverage including coverage for authorized dependents while performing personal services abroad.</P> <P>USAID will reimburse the total cost of MEDEVAC insurance to the PSC. The PSC must provide proof of coverage to the CO in order to receive reimbursement.</P> <P>(b) <E T="03">Exceptions.</E> (1) A PSC and authorized dependents with a health insurance program that includes sufficient MEDEVAC coverage as approved by the Contracting Officer are not required to obtain MEDEVAC service coverage.</P> <P>(2) The Mission Director at the post of assignment may make a written determination to waive the requirement for such coverage. The determination must be based on findings that the quality of local medical services or other circumstances obviate the need for such coverage for PSCs and their dependents located at post.</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; 72 FR 19670, Apr. 19, 2007]</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="118"/>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="119"/>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="120"/>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="121"/>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="122"/>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="123"/>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="124"/> </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="125"/> </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="126"/>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="127"/>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="128"/> <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="129"/> </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="130"/> </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="131"/> </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="132"/>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="133"/> </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="134"/>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="135"/> </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="136"/>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="137"/>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 Acquisition and Assistance, 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 <PRTPAGE P="138"/>Provision of this contract, entitled “Termination.” If a TCN, 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>(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="139"/> </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 2007)</FP> <P>[For TCN Contracts Only].</P> <P>(a) The PSC must obtain MEDEVAC service coverage including coverage for authorized dependents while performing personal services abroad.</P> <P>(b) <E T="03">Exceptions.</E> (1) A PSC and authorized dependents with a health insurance program that includes sufficient MEDEVAC coverage as approved by the Contracting Officer are not required to obtain MEDEVAC service coverage.</P> <P>(2) The Mission Director at the post of assignment may make a written determination to waive the requirement for such coverage. The determination must be based on findings that the quality of local medical services or other circumstances obviate the need for such coverage for PSCs and their dependents located at post. </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</FP> <FP>14. Limitation of Liability—Services52.246-25</FP> <CITA>[62 FR 42929, Aug. 11, 1997, as amended at 72 FR 19670, Apr. 19, 2007]</CITA> </APPENDIX> </SUBPART> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>48 CFR Ch. 8 (10-1-08 Edition)</LRH> <RRH>Department of Veterans Affairs</RRH> <TOC> <TOCHD> <PRTPAGE P="141"/> <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>Department of Veterans Affairs acquisition regulation system</SUBJECT> <PG>143</PG> <PT>802</PT> <SUBJECT>Definitions of words and terms</SUBJECT> <PG>164</PG> <PT>803</PT> <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT> <PG>164</PG> <PT>804</PT> <SUBJECT>Administrative matters</SUBJECT> <PG>168</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD> </SUBCHAP> <CHAPTI> <PT>805</PT> <SUBJECT>Publicizing contract actions</SUBJECT> <PG>170</PG> <PT>806</PT> <SUBJECT>Competition requirements</SUBJECT> <PG>170</PG> <PT>807</PT> <SUBJECT>Acquisition planning</SUBJECT> <PG>172</PG> <PT>808</PT> <SUBJECT>Required sources of supplies and services</SUBJECT> <PG>173</PG> <PT>809</PT> <SUBJECT>Contractor qualifications</SUBJECT> <PG>174</PG> <PT>811</PT> <SUBJECT>Describing agency needs</SUBJECT> <PG>181</PG> <PT>812</PT> <SUBJECT>Acquisition of commercial items</SUBJECT> <PG>186</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>188</PG> <PT>814</PT> <SUBJECT>Sealed bidding</SUBJECT> <PG>189</PG> <PT>815</PT> <SUBJECT>Contracting by negotiation</SUBJECT> <PG>193</PG> <PT>816</PT> <SUBJECT>Types of contracts</SUBJECT> <PG>195</PG> <PT>817</PT> <SUBJECT>Special contracting methods</SUBJECT> <PG>197</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD> </SUBCHAP> <CHAPTI> <PT>819</PT> <SUBJECT>Small business programs</SUBJECT> <PG>199</PG> <PT>822</PT> <SUBJECT>Application of labor laws to Government acquisitions</SUBJECT> <PG>201</PG> <PT>823</PT> <RESERVED>Environment, energy and water efficiency, renewable energy technologies, occupational safety, and drug-free workplace [Reserved]</RESERVED> <PT>824</PT> <SUBJECT>Protection of privacy and freedom of information</SUBJECT> <PG>202</PG> <PT>825</PT> <SUBJECT>Foreign acquisition</SUBJECT> <PG>202<PRTPAGE P="142"/> </PG> <PT>826</PT> <RESERVED>Other socioeconomic programs [Reserved]</RESERVED> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD> </SUBCHAP> <CHAPTI> <PT>828</PT> <SUBJECT>Bonds and insurance</SUBJECT> <PG>206</PG> <PT>829</PT> <SUBJECT>Taxes</SUBJECT> <PG>208</PG> <PT>830</PT> <RESERVED>Cost accounting standards administration [Reserved]</RESERVED> <PT>831</PT> <SUBJECT>Contract cost principles and procedures</SUBJECT> <PG>209</PG> <PT>832</PT> <SUBJECT>Contract financing</SUBJECT> <PG>212</PG> <PT>833</PT> <SUBJECT>Protests, disputes, and appeals</SUBJECT> <PG>216</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>221</PG> <PT>837</PT> <SUBJECT>Service contracting</SUBJECT> <PG>226</PG> <PT>839</PT> <RESERVED>Acquisition of information technology [Reserved]</RESERVED> <PT>841</PT> <SUBJECT>Acquisition of utility services</SUBJECT> <PG>228</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD> </SUBCHAP> <CHAPTI> <PT>842</PT> <SUBJECT>Contract administration and audit services</SUBJECT> <PG>230</PG> <PT>844</PT> <RESERVED>Subcontracting policies and procedures [Reserved]</RESERVED> <PT>846</PT> <SUBJECT>Quality assurance</SUBJECT> <PG>231</PG> <PT>847</PT> <SUBJECT>Transportation</SUBJECT> <PG>235</PG> <PT>849</PT> <SUBJECT>Termination of contracts</SUBJECT> <PG>236</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>238</PG> <PT>853</PT> <SUBJECT>Forms</SUBJECT> <PG>262</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER I—DEPARTMENT SUPPLEMENTARY REGULATIONS</HD> </SUBCHAP> <CHAPTI> <PT>870</PT> <SUBJECT>Special procurement controls</SUBJECT> <PG>264</PG> <PT>871</PT> <SUBJECT>Loan guaranty and vocational rehabilitation and employment programs</SUBJECT> <PG>265</PG> <PT>872</PT> <RESERVED>[Reserved]</RESERVED> <PT>873</PT> <SUBJECT>Simplified acquisition procedures for health-care resources</SUBJECT> <PG>270</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="143"/> <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD> <PART> <EAR>Pt. 801</EAR> <HD SOURCE="HED">PART 801—DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION 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> <SECTNO>801.105</SECTNO> <SUBJECT>Issuance.</SUBJECT> <SECTNO>801.105-2</SECTNO> <SUBJECT>Arrangement of regulations.</SUBJECT> <SECTNO>801.106</SECTNO> <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 801.2—Administration</HD> <SECTNO>801.201</SECTNO> <SUBJECT>Maintenance of the FAR.</SUBJECT> <SECTNO>801.201-1</SECTNO> <SUBJECT>The two councils.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 801.3—Department Acquisition Regulations</HD> <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 Authority, 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>General review requirements.</SUBJECT> <SECTNO>801.602-71</SECTNO> <SUBJECT>Basic review requirements.</SUBJECT> <SECTNO>801.602-72</SECTNO> <SUBJECT>Exceptions and additional review requirements.</SUBJECT> <SECTNO>801.602-73</SECTNO> <SUBJECT>Review requirements for scarce medical specialist contracts and contracts for health-care resources.</SUBJECT> <SECTNO>801.602-74</SECTNO> <SUBJECT>Review requirements for an interagency agreement.</SUBJECT> <SECTNO>801.602-75</SECTNO> <SUBJECT>Review requirements—OGC.</SUBJECT> <SECTNO>801.602-76</SECTNO> <SUBJECT>Business clearance review.</SUBJECT> <SECTNO>801.602-77</SECTNO> <SUBJECT>Processing solicitations and contract documents for legal or technical review—general.</SUBJECT> <SECTNO>801.602-78</SECTNO> <SUBJECT>Processing solicitations and contract documents for legal or technical review—Veterans Health Administration field facilities, Central Office (except Office of Construction and Facilities Management), the National Acquisition Center, and the Denver Acquisition and Logistics Center.</SUBJECT> <SECTNO>801.602-79</SECTNO> <SUBJECT>Processing solicitations and contract documents for legal or technical review—Veterans Benefits Administration.</SUBJECT> <SECTNO>801.602-80</SECTNO> <SUBJECT>Legal and technical review-Office of Construction and Facilities Management and National Cemetery Administration.</SUBJECT> <SECTNO>801.602-81</SECTNO> <SUBJECT>Documents required for business clearance reviews.</SUBJECT> <SECTNO>801.602-82</SECTNO> <SUBJECT>Documents to submit for legal or technical review—general.</SUBJECT> <SECTNO>801.602-83</SECTNO> <SUBJECT>Documents to submit for legal or technical review—contract modifications.</SUBJECT> <SECTNO>801.602-84</SECTNO> <SUBJECT>Documents to submit for business clearance reviews.</SUBJECT> <SECTNO>801.602-85</SECTNO> <SUBJECT>Results of 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>Issuing bills of lading.</SUBJECT> <SECTNO>801.670-3</SECTNO> <SUBJECT>Medical, dental, and ancillary service.</SUBJECT> <SECTNO>801.670-4</SECTNO> <SUBJECT>National Cemetery Administration.</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's COCP.</SUBJECT> <SECTNO>801.690-1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>801.690-2</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>801.690-3</SECTNO> <SUBJECT>Responsibility under the COCP.</SUBJECT> <SECTNO>801.690-4</SECTNO> <SUBJECT>Selection.</SUBJECT> <SECTNO>801.690-5</SECTNO> <SUBJECT>Requirements for contracting authority.</SUBJECT> <SECTNO>801.690-6</SECTNO> <SUBJECT>Appointment.</SUBJECT> <SECTNO>801.690-7</SECTNO> <SUBJECT>Termination.</SUBJECT> <SECTNO>801.690-8</SECTNO> <SUBJECT>Interim appointment provisions.</SUBJECT> <SECTNO>801.690-9</SECTNO> <SUBJECT>Distribution of Certificates of Appointment.</SUBJECT> <SECTNO>801.695</SECTNO> <SUBJECT>VA's Appointment of HCAs program.</SUBJECT> <SECTNO>801.695-1</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>801.695-2</SECTNO> <SUBJECT>Procedures for appointment of HCAs.</SUBJECT> <SECTNO>801.695-3</SECTNO> <SUBJECT>Authority of the HCA.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="144"/> <SECTNO>801.000</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <P>This part sets out general Department of Veterans Affairs (VA) Acquisition Regulation (VAAR) policies, including information regarding the maintenance and administration of the VAAR, acquisition policies and practices, and procedures for deviation from the VAAR and the Federal Acquisition Regulation (FAR).</P> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart 801.1—Purpose, Authority, Issuance</HD> <SECTION> <SECTNO>801.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(a) VA established the VAAR to codify and publish uniform policies and procedures for VA's acquisition of supplies and services, including construction.</P> <P>(b) The VAAR implements and supplements the FAR.</P> </SECTION> <SECTION> <SECTNO>801.103</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>The Secretary issues the VAAR under the authority of 40 U.S.C. 121(c), Title 48 of the Code of Federal Regulations (CFR) 1.301 through 1.304, and other authorities as cited.</P> </SECTION> <SECTION> <SECTNO>801.104</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) Unless otherwise specified in this chapter or excepted by statute (i.e., expenditures of the VA Canteen Service) or other VA regulations, the FAR and VAAR apply to all VA acquisitions (including construction) made with appropriated funds. Supply Fund monies (38 U.S.C. 8121) and General Post Funds (38 U.S.C. 8302) are appropriated funds.</P> <P>(b) Use the VAAR and the FAR together. The FAR applies to VA acquisitions except as provided in the VAAR.</P> </SECTION> <SECTION> <SECTNO>801.104-70</SECTNO> <SUBJECT>Exclusions.</SUBJECT> <P>The FAR and VAAR do not apply to purchases and contracts that use General Post Funds if using the FAR and the VAAR would infringe upon a donor's right to specify the exact item to be purchased and/or the source of supply (38 U.S.C. 8303).</P> </SECTION> <SECTION> <SECTNO>801.105</SECTNO> <SUBJECT>Issuance.</SUBJECT> </SECTION> <SECTION> <SECTNO>801.105-2</SECTNO> <SUBJECT>Arrangement of regulations.</SUBJECT> <P>(a) <E T="03">General.</E> The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, sections, and subsections.</P> <P>(b) <E T="03">Numbering.</E> (1) The numbering system permits the discrete identification of every VAAR paragraph. The digits to the left of the decimal point represent the part number. The numbers to the right of the decimal point and to the left of the dash represent, in order, the subpart (one or two digits), and the section (two digits). The number to the right of the dash represents the subsection. Subdivisions may be used at the section and subsection level to identify individual paragraphs.</P> <P>(2) Subdivisions below the section or subsection level consist of parenthetical alphanumerics using the following sequence: (a)(1)(i)(A)(<E T="03">1</E>)(<E T="03">i</E>).</P> <P>(c) <E T="03">References and citations.</E> (1) Unless otherwise stated, cross-references indicate parts, subparts, sections, subsections, paragraphs, subparagraphs, or subdivisions of this Chapter.</P> <P>(2) This Chapter may be referred to as the “Department of Veterans Affairs Acquisition Regulation” or the “VAAR”.</P> <P>(3) Using the VAAR coverage at 809.106-4(c) as a typical illustration, reference to the—</P> <P>(i) Part would be “VAAR Part 809” outside the VAAR and “Part 809” within the VAAR.</P> <P>(ii) Subpart would be “VAAR Subpart 809.1” outside the VAAR and “Subpart 809.1” within the VAAR.</P> <P>(iii) Section would be “VAAR 809.106” outside the VAAR and “809.106” within the VAAR.</P> <P>(iv) Subsection would be “VAAR 809.106-4” outside the VAAR and “809.106-4” within the VAAR.</P> <P>(v) Paragraph would be “VAAR 809.106-4(c)” outside the VAAR and “809.106-4(c)” within the VAAR.</P> <P>(4) Citations of authority (e.g., statutes or Executive orders) in the VAAR shall follow the <E T="04">Federal Register</E> form guides.</P> </SECTION> <SECTION> <SECTNO>801.106</SECTNO> <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT> <P>In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), the Office of Management and Budget (OMB) has approved the reporting or recordkeeping provisions that are included in the VAAR and has <PRTPAGE P="145"/>given VA the following approval numbers:</P> <GPOTABLE CDEF="s50,12,r50,12" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">48 CFR part or section where identified<LI>and described</LI> </CHED> <CHED H="1">Current OMB control number</CHED> <CHED H="1">48 CFR part or section where identified<LI>and described</LI> </CHED> <CHED H="1">Current OMB control number</CHED> </BOXHD> <ROW> <ENT I="01">809.106-1</ENT> <ENT>2900-0418</ENT> <ENT>852.214-70</ENT> <ENT>2900-0593</ENT> </ROW> <ROW> <ENT I="01">809.504(d)</ENT> <ENT>2900-0418</ENT> <ENT>852.228-71</ENT> <ENT>2900-0590</ENT> </ROW> <ROW> <ENT I="01">813</ENT> <ENT>2900-0393</ENT> <ENT>852.236-72</ENT> <ENT>2900-0422</ENT> </ROW> <ROW> <ENT I="01">832.006-4</ENT> <ENT>2900-0688</ENT> <ENT>852.236-79</ENT> <ENT>2900-0208</ENT> </ROW> <ROW> <ENT I="01">832.202-4</ENT> <ENT>2900-0688</ENT> <ENT>852.236-80 (Alt. I)</ENT> <ENT>2900-0422</ENT> </ROW> <ROW> <ENT I="01">836.606-71</ENT> <ENT>2900-0208</ENT> <ENT>852.236-82 through 852.236-84</ENT> <ENT>2900-0422</ENT> </ROW> <ROW> <ENT I="01">852.207-70</ENT> <ENT>2900-0590</ENT> <ENT>852.236-88</ENT> <ENT>2900-0422</ENT> </ROW> <ROW> <ENT I="01">852.209-70</ENT> <ENT>2900-0418</ENT> <ENT>852.236-89</ENT> <ENT>2900-0622</ENT> </ROW> <ROW> <ENT I="01">852.211-70</ENT> <ENT>2900-0587</ENT> <ENT>852.236-91</ENT> <ENT>2900-0623</ENT> </ROW> <ROW> <ENT I="01">852.211-71</ENT> <ENT>2900-0588</ENT> <ENT>852.237-7</ENT> <ENT>2900-0590</ENT> </ROW> <ROW> <ENT I="01">852.211-72</ENT> <ENT>2900-0586</ENT> <ENT>852.270-3</ENT> <ENT>2900-0589</ENT> </ROW> <ROW> <ENT I="01">852.211-73</ENT> <ENT>2900-0585</ENT> </ROW> </GPOTABLE> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 801.2—Administration</HD> <SECTION> <SECTNO>801.201</SECTNO> <SUBJECT>Maintenance of the FAR.</SUBJECT> </SECTION> <SECTION> <SECTNO>801.201-1</SECTNO> <SUBJECT>The two councils.</SUBJECT> <P>Revisions to the FAR are prepared and issued through the coordinated action of two councils, the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council. A designee of the Office of Acquisition and Materiel Management will represent VA on the Civilian Agency Acquisition Council.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 801.3—Department Acquisition Regulations</HD> <SECTION> <SECTNO>801.304</SECTNO> <SUBJECT>Department control and compliance procedures.</SUBJECT> <P>The Assistant Secretary for Management is designated as the Department's Chief Acquisition Officer. The Deputy Assistant Secretary (DAS) for Acquisition and Materiel Management is designated as the Department's Senior Procurement Executive (SPE). The Associate DAS for Acquisitions is designated as the Deputy Senior Procurement Executive (DSPE). The DSPE is responsible for amending the VAAR for compliance with FAR 1.304.</P> </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) Authority to authorize individual deviations from the FAR and VAAR is delegated to the SPE and is further delegated to the DSPE.</P> <P>(b) When a contracting officer considers it necessary to deviate from the policies in the FAR or VAAR, the contracting officer, in accordance with Administration or staff office procedures, must submit a request through the HCA to the DSPE for authority to deviate.</P> <P>(c) The request to deviate must clearly state the circumstances warranting the deviation and the nature of the deviation.</P> <P>(d) The DSPE may authorize individual deviations from the FAR and VAAR when an individual deviation is in the best interest of the Government. When the DSPE authorizes a deviation, the contracting officer must file the authorization in the purchase order or contract file.</P> </SECTION> <SECTION> <SECTNO>801.404</SECTNO> <SUBJECT>Class deviations.</SUBJECT> <P>Authority to authorize class deviations from the FAR and VAAR is delegated to the SPE and is further delegated to the DSPE. The DSPE may authorize class deviations from the FAR and VAAR when a class deviation is in the best interest of the Government. The DSPE must comply with the provisions of FAR 1.404 through the SPE.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 801.6—Career Development, Contracting Authority, and Responsibilities</HD> <SECTION> <SECTNO>801.601</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) The HCA or the DSPE, within their authority, may appoint a contracting officer under FAR 1.603 and VA's Contracting Officer Certification Program (COCP).<PRTPAGE P="146"/> </P> <P>(b) In addition, the HCA may delegate micro-purchase authority to VA employees under VA's purchase card program.</P> <P>(c) An individual may not commit the Government for purchases of supplies, equipment, or services unless the individual has received delegated contracting authority as a contracting officer or purchase card holder or as provided in 801.670. Individuals making such commitments or acting beyond the scope of their authority may be held financially liable.</P> </SECTION> <SECTION> <SECTNO>801.602</SECTNO> <SUBJECT>Contracting officers.</SUBJECT> <P>(a) Except as otherwise provided by statute, VA regulations, the VAAR, or the FAR, the authority vested in the Secretary to do the following is delegated to the SPE and is further delegated from the SPE to the DSPE:</P> <P>(1) Execute, award, and administer contracts, purchase orders, and other agreements (including interagency agreements) for the expenditure of funds for construction and the acquisition of personal property and services (including architect-engineer services).</P> <P>(2) Issue bills of lading.</P> <P>(3) Sell personal property.</P> <P>(4) Enter into leases, sales agreements, and other transactions.</P> <P>(5) Prescribe and publish acquisition policies and procedures.</P> <P>(6) Establish clear lines of contracting authority.</P> <P>(7) Manage and enhance career development of the procurement work force.</P> <P>(8) Examine, in coordination with the Office of Federal Procurement Policy, the procurement system to determine specific areas where VA should establish and apply Government-wide performance standards, and to participate in developing Government-wide procurement policies, regulations, and standards.</P> <P>(9) Oversee the competition advocate program.</P> <P>(b) The DSPE may further delegate authority to execute, award, and administer contracts, purchase orders, and other agreements to other VA officials, such as HCAs and contracting officers, in accordance with the COCP.</P> </SECTION> <SECTION> <SECTNO>801.602-2</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>In the administration of a contract, many problems can and do arise that make the advice and assistance of the Office of General Counsel (OGC) 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 submit the problem through channels in sufficient detail to the General Counsel for advice or assistance.</P> </SECTION> <SECTION> <SECTNO>801.602-3</SECTNO> <SUBJECT>Ratification of unauthorized commitments.</SUBJECT> <P>(a) This section applies to unauthorized commitments, including any commitment made by a contracting officer that exceeds that contracting officer's contracting authority and unauthorized commitments made by individuals who lack contracting authority.</P> <P>(b) A contracting officer must not ratify unauthorized commitments made by other VA personnel or by another contracting officer who lacks authority without prior approval as specified in paragraphs (b)(1) through (b)(3) of this section. The specified approval authorities may not be re-delegated.</P> <P>(1) At field facilities, for supplies, services (except leases of real property), and construction, the approving authority for unauthorized commitments made by staff assigned to a field facility is the HCA.</P> <P>(2) For VA Central Office (VACO) organizations, for supplies, services (except leases of real property), and construction, the approving authorities for unauthorized commitments made by staff assigned to the Administrations are the respective chief financial officers of the Administrations concerned. The approving authority for unauthorized commitments made by staff assigned to any other organization within VACO is the Deputy Assistant Secretary for Acquisition and Materiel Management.</P> <P>(3) For unauthorized commitments for leasehold interest in real property, the approving authority is:</P> <P>(i) The Director, Office of Construction and Facilities Management, for unauthorized commitments for 1-5,000 <PRTPAGE P="147"/>square feet of space or for 1-100 parking spaces costing less than $50,000 per annum.</P> <P>(ii) The Under Secretary for Health for unauthorized commitments for 5,001-20,000 square feet of space or for more than 100 parking spaces costing less than $100,000 per annum.</P> <P>(iii) The Deputy Secretary for 20,001 square feet of space and above or for more than 100 parking spaces costing more than $100,000 per annum.</P> <P>(c) The process for contracting officer requests for ratification will be as follows:</P> <P>(1) The individual who made the unauthorized commitment will furnish the contracting officer with all records and documents concerning the commitment and a complete written statement of facts that includes the following:</P> <P>(i) Why the procurement office was not used.</P> <P>(ii) Why the proposed contractor was selected.</P> <P>(iii) Other sources that were considered.</P> <P>(iv) A description of work to be performed or products to be furnished.</P> <P>(v) The estimated or agreed contract price.</P> <P>(vi) A citation of the appropriation available.</P> <P>(vii) A statement of whether the contractor has commenced performance.</P> <P>(viii) The name of the individual responsible for the unauthorized commitment.</P> <P>(2) The contracting officer will review the file and forward it to the approving authority specified in paragraph (b) of this section with any comments or information that the approving authority should consider in evaluating the request for ratification. If the approving authority determines that a legal review would be desirable, the approving authority will coordinate the request for ratification with OGC or the Regional Counsel, as appropriate.</P> <P>(3) If the approving authority authorizes the ratification, the approving authority will return the file to the contracting officer for issuance of a purchase order or contract, as appropriate.</P> <P>(d) If an otherwise proper contract award exceeds the limits of the contracting officer's delegated authority, the ratifying contracting officer must comply with the above requirements and the approving authority must inform the HCA. The HCA will take action to preclude future instances of such awards.</P> </SECTION> <SECTION> <SECTNO>801.602-70</SECTNO> <SUBJECT>General review requirements.</SUBJECT> <P>(a) Contracting officers shall ensure that any document listed under 801.602-71 through 801.602-76 that is submitted for technical or legal review is submitted through or by an official at least one level above the contracting officer.</P> <P>(b) Before opening a bid, awarding a contract, or signing a contract-related document as specified in 801.602-71 through 801.602-76, the contracting officer shall ensure that the appropriate VA official, including appropriate staff of the Acquisition Resources Service regional or VA Central Office, has reviewed and concurred with the document.</P> <P>(c) Before signing a contract for a Veterans Benefits Administration field facility for any guidance center or vocational rehabilitation service with an anticipated expenditure of $100,000 or more, the contracting officer shall ensure that the Director, Vocational Rehabilitation and Employment Service, has reviewed and approved the solicitation or proposed contract.</P> <P>(d) When the following items are for the management, sale, or lease of properties acquired by VA after liquidation of a guaranteed, direct, acquired, or vendee loan, the review requirements specified in 801.602-71 through 801.602-76 do not apply:</P> <P>(1) Agreements.</P> <P>(2) Licenses.</P> <P>(3) Easements.</P> <P>(4) Deeds.</P> <P>(e) If there is insufficient time for the legal review required in 801.602-75(a)(3), the contracting officer (except contracting officers in the Office of Construction and Facilities Management) must at least obtain verbal concurrence from Acquisition Resources Service staff before issuing a change order where:</P> <P>(1) The change order (unilateral agreement) has an anticipated value of $100,000 or more; or<PRTPAGE P="148"/> </P> <P>(2) The change order is for a time extension of 60 days or more.</P> <P>(f) Unless otherwise stated, all dollar values in 801.602-71 through 801.602-76 are expressed in total dollars involved in the acquisition action.</P> <P>(1) The contracting officer may not consider the positive and negative status of the figures in determining the total dollar values involved.</P> <P>(2) An acquisition of $550,000 with a trade-in credit of $70,000 would be valued at $620,000 for legal or technical review purposes rather than the net amount of $480,000. An Energy Savings Performance Contract requiring payment from savings of $10,000,000 to the contractor over the life of the contract would be valued at $10,000,000, despite the fact that there is no immediate cost to VA and no payment if there are no savings.</P> <P>(g) By separate notice, the DSPE may require technical review of any contract-related materials, regardless of dollar value.</P> <P>(h) Except as set forth in 801.602-73 and 801.602-75, at its discretion, the Office of Acquisition and Materiel Management may request OGC review.</P> <P>(i) The requirements of this section or sections 801.602-71 through 801.602-76 do not apply to contracts awarded by or on behalf of the VA Office of Inspector General.</P> <P>(j) Contracting officers and purchase card holders must ensure compliance with separate guidance on information technology (IT) tracking and approval prior to processing requests for acquisitions of IT and telecommunications software, equipment, and/or services, regardless of dollar value.</P> </SECTION> <SECTION> <SECTNO>801.602-71</SECTNO> <SUBJECT>Basic review requirements.</SUBJECT> <P>Contracting officers must obtain technical review from Acquisition Resources Service staff of the documents set forth in column one of Table 801.602-71 that have anticipated award values equal to or greater than the value in column two.</P> <GPOTABLE CDEF="s100,xs50" COLS="2" OPTS="L2"> <TTITLE>Table 801.602-71</TTITLE> <BOXHD> <CHED H="1">Document</CHED> <CHED H="1">Anticipated contract award value</CHED> </BOXHD> <ROW> <ENT I="01">(a) Supply or service solicitations or quotations (except as provided in 801.602-72 through 801.602-75) (includes indefinite quantity, option year, and multi-year solicitations or quotations where the contracting officer reasonably expects expenditures of $500,000 or more, inclusive of options)</ENT> <ENT>$500,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(b) Supply or service solicitations or quotations where a consolidated acquisition activity is performing acquisitions for three or more physically separated VA medical centers (excluding outpatient clinics)</ENT> <ENT>$750,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(c) Fixed price, sealed bid construction solicitations, other than 8(a) construction solicitations</ENT> <ENT>$1 million or more.</ENT> </ROW> <ROW> <ENT I="01">(d) 8(a) construction solicitations and task orders</ENT> <ENT>$500,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(e) Request for Proposal (negotiated) construction solicitations and task orders</ENT> <ENT>$500,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(f) Proposed task/delivery orders and blanket purchase agreements (includes orders under Federal Supply Schedule contracts)</ENT> <ENT>$500,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(g) Proposed cost-reimbursement, incentive, time-and-materials, and labor-hour contracts (see 816.102(b))</ENT> <ENT>$100,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(h) Utility service agreements</ENT> <ENT>$50,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(i) Solicitations for advisory and assistance services (see 837.2)</ENT> <ENT>$100,000 or more.</ENT> </ROW> <ROW> <ENT I="01">(j) Proposed letter contracts and ensuing formal contracts</ENT> <ENT>$25,000.</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>801.602-72</SECTNO> <SUBJECT>Exceptions and additional review requirements.</SUBJECT> <P>(a) In addition to the general review requirements in 801.602-71, contracting officers must obtain technical reviews from Acquisition Resources Service staff of any proposed agreement that is unique, novel, or unusual.</P> <P>(b) Contracting officers must obtain technical reviews from Acquisition Resources Service staff of the following:</P> <P>(1) Documents relating to bonds (see FAR 28.102-1 and 28.203 through 28.203-5) as follows:</P> <P>(i) An irrevocable letter of credit.</P> <P>(ii) A tripartite escrow agreement.</P> <P>(iii) An individual surety bond. (Note that the FAR at 28.203(f) also requires legal review of the documents pledging the assets of an individual surety.)</P> <P>(2) Proposed novation and change-of-name agreements (see FAR Subpart 42.12).</P> <P>(3) Solicitations or proposed contracts containing an economic price <PRTPAGE P="149"/>adjustment clause (other than a pre-approved VA clause) based on a cost index of material or labor (e.g., the urban consumer price index (CPI-U) (see FAR 16.203-4(d)) or where one of the economic price adjustment clauses specified in FAR 16.203-4 are used.</P> <P>(4) Proposed multi-year contracts where the cancellation ceiling exceeds 20 percent of the contract amount, regardless of the dollar value of the proposed contract (see 817.105-1(b)).</P> <P>(5) Proposed solicitations where the contract term total of the basic and option periods may exceed 5 years, regardless of the dollar value of the proposed acquisition (see 817.204).</P> <P>(6) Proposed membership agreements in a group purchasing organization.</P> <P>(7) A proposed termination settlement or determination of amounts due the contractor under a terminated contract that involves the expenditure of $100,000 or more of Government funds. Acquisition Resources Service staff shall obtain legal review (see 849.111-70).</P> <P>(8) Consignment agreements with an anticipated expenditure of $250,000 or more per year (except for a consignment agreement established under, and provided for in, a Federal Supply Schedule contract).</P> <P>(c) Contracting officers, including purchase card holders, must obtain technical and legal review of all proposed contracts with hotels or similar facilities for conferences or similar functions (e.g., training, meetings) where VA's commitment, expenditure, and liability (combined) exceed $25,000. This dollar figure is based on the combination of all direct costs to VA under the contract (e.g., conference rooms, audio-visual charges, refreshments, catering) and all potential liability (e.g., room guarantee liability, cancellation costs). Even if there is no direct cost to VA, if the proposed contract includes a guarantee on room usage or a cancellation fee that could potentially exceed $25,000, the proposed contract requires legal and technical review. Signing a contract committing VA to hold a conference at a particular hotel is a procurement and procurement laws and regulations must be followed.</P> </SECTION> <SECTION> <SECTNO>801.602-73</SECTNO> <SUBJECT>Review requirements for scarce medical specialist contracts and contracts for health-care resources.</SUBJECT> <P>For contracts to be awarded under the authority of either 38 U.S.C. 7409 or 38 U.S.C. 8153, contracting officers must obtain technical and legal reviews from the Medical Sharing Office, OGC, and Acquisition Resources Service staff of the following documents:</P> <P>(a) Each competitive solicitation, quotation, proposed contract, or agreement with an anticipated contract award value of $1,500,000 or more, inclusive of options.</P> <P>(b) Each noncompetitive solicitation, quotation, proposed contract, or agreement with an anticipated contract award value of $500,000 or more, inclusive of options.</P> </SECTION> <SECTION> <SECTNO>801.602-74</SECTNO> <SUBJECT>Review requirements for an interagency agreement.</SUBJECT> <P>Contracting officers or other staff must obtain technical review from Acquisition Operations Service staff of the following documents:</P> <P>(a) Each proposed VA Central Office interagency agreement with another Federal agency to be awarded under authority of the Economy Act, regardless of dollar value. For VA Central Office, only the DSPE or designee may sign an interagency agreement.</P> <P>(b) Each proposed VA field facility interagency agreement with another Federal agency awarded under authority of the Economy Act involving an anticipated expenditure of VA funds of $250,000 or more. A VA field facility contracting officer or a contracting officer at the VA National Acquisition Center or the Denver Acquisition and Logistics Center may sign an interagency agreement if the dollar threshold is within the contracting officer's warrant limit.</P> </SECTION> <SECTION> <SECTNO>801.602-75</SECTNO> <SUBJECT>Review requirements—OGC.</SUBJECT> <P>(a) Contracting officers must obtain legal review or concurrence from OGC for the following categories of proposed contractual actions.</P> <P>(1) Each contract termination, final decision, cure letter, or “show cause” notice proposed under any contract where the total value of the contract is <PRTPAGE P="150"/>$100,000 or more. A contracting officer may not sign or release a document subject to this provision until OGC has concurred.</P> <P>(2) Each dispute or claim from a contractor involving a potential total dollar value of $100,000 or more. A contracting officer may not sign or release a document subject to this provision until OGC has concurred.</P> <P>(3) Each proposed contract modification, including any proposed modification to a supply or service contract, where the total value of the modification is $100,000 or more (<E T="03">e.g.</E>, a modification for a $60,000 increase and a $50,000 decrease equals $110,000). Contract modifications issued only to exercise contract options are exempt from this review requirement.</P> <P>(4) Each proposed contract modification granting a time extension of more than 60 days. The Director, Acquisition Resources Service, may waive the pre-approval requirement under this paragraph for an individual facility when the Director determines that the facility has obtained appropriate “consideration” for past time extensions and the extensions were otherwise appropriately granted.</P> <P>(5) Each proposed modification increasing the value of a letter contract, regardless of dollar value.</P> <P>(6) Each proposed contract modification for which the contractor takes exception to the accord and satisfaction language specified by VA. The contracting officer may not execute any proposed contract modification under this requirement until the contracting officer receives OGC's concurrence in the proposed language.</P> <P>(7) An assignment of claims (see FAR Subpart 32.8).</P> <P>(8) Each change or revision to a FAR or VAAR provision or clause or an internal VA-approved clause (e.g., architect/engineer “SP” clauses) not specifically authorized by the regulations.</P> <P>(9) Each change or revision to a prescribed VA contract form.</P> <P>(10) A proposed utility construction or connection contract with an anticipated contract award value of $50,000 or more.</P> <P>(11) Each proposed novation and change-of-name agreement (see 842.1203).</P> <P>(b) For an action specified in paragraph (a)(1) or (2) of this section, OGC may comment or concur in writing or by telephone.</P> <P>(c) When a Central Office contracting activity requests legal assistance, the contracting officer will brief OGC on the facts and points of issue to facilitate prompt resolution.</P> <P>(d) For each solicitation or contract awarded and administered by a Central Office contracting activity, that contracting activity will ask OGC to participate in conferences where legal problems or modifications to contract provisions may be considered and in meetings attended by legal representatives of private parties or other Government agencies. The contracting activity will request assigned procurement counsel participation in drafting correspondence involving significant controversial or sensitive contractual matters.</P> <P>(e) OGC will prepare any response to the Government Accountability Office (GAO) on GAO bid protests. (See 833.104).</P> </SECTION> <SECTION> <SECTNO>801.602-76</SECTNO> <SUBJECT>Business clearance review.</SUBJECT> <P>(a) A business clearance review is a technical review of all solicitation and contract award or modification documents immediately prior to contract award or modification over the specified dollar threshold.</P> <P>(b) All VA contracting officers must obtain a business clearance review prior to award of any contract, task or delivery order, or blanket purchase agreement or execution of any contract modification with a value of $5 million or more or prior to award of any lease with a value of $300,000 or more per year.</P> <P>(c) The dollar threshold in this paragraph is based on the total dollar value of all awards expected under a single solicitation, not the value of each individual award under a solicitation. For example, a solicitation for home oxygen for a Veterans Integrated Service Network (VISN) might result in multiple awards, each of which has a value of less than $5 million. If the total of all awards under that solicitation will exceed $5 million, the contracting officer must obtain a business clearance <PRTPAGE P="151"/>review of the entire package, including all proposed individual awards.</P> </SECTION> <SECTION> <SECTNO>801.602-77</SECTNO> <SUBJECT>Processing solicitations and contract documents for legal or technical review—general.</SUBJECT> <P>(a) Under 801.602-70 through 801.602-76, before taking contract action, a contracting officer must ensure that any required legal or technical review or concurrence is complete. Contracting officers shall not award or sign contracts, task or delivery orders, blanket purchase agreements, or contract modifications prior to receipt of the final legal and technical review. Should the contracting officer disagree with the advice provided, the contracting officer shall document in the contract file the reasons therefore and provide a copy of that document to the reviewing Office of Acquisition and Materiel Management office. The contracting officer must fully implement any accepted review comments as follows:</P> <P>(1) Before opening the bid or proposal for a competitively awarded contract.</P> <P>(2) Before executing contract documents for a contract modification or noncompetitive contract award.</P> <P>(b) The contracting officer must advise potential bidders or offerors of changes made to the solicitation by issuing an amendment. The contracting officer must give bidders and offerors sufficient time for evaluation before the bid or proposal opens.</P> </SECTION> <SECTION> <SECTNO>801.602-78</SECTNO> <SUBJECT>Processing solicitations and contract documents for legal or technical review—Veterans Health Administration field facilities, Central Office (except Office of Construction and Facilities Management), the National Acquisition Center, and the Denver Acquisition and Logistics Center.</SUBJECT> <P>(a) If legal or technical review is required, the documents listed in Table 801.602-78 must be forwarded for review and approval as shown therein.</P> <GPOTABLE CDEF="s100,r50,r50" COLS="3" OPTS="L2"> <TTITLE>Table 801.602-78</TTITLE> <BOXHD> <CHED H="1">Documents</CHED> <CHED H="1">Person forwarding</CHED> <CHED H="1">Forward to</CHED> </BOXHD> <ROW> <ENT I="01">(1) Proposed solicitations, quotations, contract-related documents, and agreements specified in Table 801.602.71 and in 801.602-72</ENT> <ENT>One level above the contracting officer</ENT> <ENT>Appropriate Acquisition Resources Service central or regional office.</ENT> </ROW> <ROW> <ENT I="01">(2) Scarce medical specialist and health-care resource solicitations, quotations, and proposed contracts (i.e., contracts to be awarded under the authority of 38 U.S.C. 7409 or 8153) specified in 801.602-73</ENT> <ENT>One level above the contracting officer</ENT> <ENT>Director, Enhanced Sharing Program (10FL), VACO.</ENT> </ROW> <ROW> <ENT I="01">(3) Interagency agreements specified in 801.602-74</ENT> <ENT>Approving official, contracting officer</ENT> <ENT>DSPE, Acquisition Operations Service.</ENT> </ROW> <ROW> <ENT I="01">(4) Proposed contract modifications, proposed contract modifications for which the contractor takes exception to the accord and satisfaction language VA specifies, assignment of claims, changes to clauses, and proposed utility connection agreements specified in 801.602-75(a)(3) through (a)(7) and in 801.602-75(a)(9) and (a)(10)</ENT> <ENT>Contracting officer</ENT> <ENT>OGC.</ENT> </ROW> <ROW> <ENT I="01">(5) Proposed contract terminations, final decisions, cure letters, show cause notices, disputes, and claims specified in 801.602-75(a)(1) and (a)(2)</ENT> <ENT>Contracting officer</ENT> <ENT>Regional Office of the General Counsel.</ENT> </ROW> </GPOTABLE> <P>(b) The director of the Acquisition Resources Service office conducting the technical review has authority to determine whether to forward documents for legal review.</P> <P>(c) When the contractor takes exception to the accord and satisfaction language VA specifies in a proposed contract modification, the contracting officer must not sign the modification until OGC concurs with the language proposed by the contractor.</P> <P>(d) The contracting officer either must fax or send via overnight mail or e-mail all of the relevant documents on proposed contract terminations, final decisions, cure letters, show cause notices, disputes, and claims specified in 801.602-75(a)(1) and (a)(2). OGC will provide concurrence or comments either in writing or by telephone. The contracting officer must not sign or release a document to the contractor until OGC concurs.<PRTPAGE P="152"/> </P> <P>(e) For any VA contract form subject to legal review under 801.602-75(a)(8), the contracting officer must process the change or revision in accordance with VA Manual MP-1, Part II, Chapter 4 and any supplements to it (<E T="03">http://www.va.gov/publ/direc/benefits/mp1p2ch4.htm</E>).</P> </SECTION> <SECTION> <SECTNO>801.602-79</SECTNO> <SUBJECT>Processing solicitations and contract documents for legal or technical review—Veterans Benefits Administration.</SUBJECT> <P>(a) Contracting officer must ensure that proposed solicitations, quotations, contract-related documents, and agreements listed in Table 801.602-71 are reviewed by the Office of Resource Management prior to document execution. The Office of Resource Management must request legal review of all these documents.</P> <P>(b) Contracting officer must ensure that proposed solicitations or agreements for guidance center and vocational rehabilitation services are reviewed by the Director, Vocational Rehabilitation and Employment Service, if there is an anticipated expenditure of $100,000 or more.</P> </SECTION> <SECTION> <SECTNO>801.602-80</SECTNO> <SUBJECT>Legal and technical review-Office of Construction and Facilities Management and National Cemetery Administration.</SUBJECT> <P>An Office of Construction and Facilities Management or National Cemetery Administration (Construction Support Division) contracting officer shall submit all A/E contracts, and all construction contracts, time extensions, and modifications, directly to Office of General Counsel (OGC) for review.</P> </SECTION> <SECTION> <SECTNO>801.602-81</SECTNO> <SUBJECT>Documents required for business clearance reviews.</SUBJECT> <P>When a bid or offer, proposed contract modification, or proposed lease requires a business clearance review under 801.602-76, the contracting officer must forward the required documents (see 801.602-84) and the following information to the appropriate Acquisition Resources Service central or regional office. Office of Construction and Facilities Management and National Cemetery Administration (Construction Support Division) contracting officers shall forward the documents to OGC (025):</P> <P>(a) The date on which award is anticipated.</P> <P>(b) Results or efforts made to determine whether the contractor is responsible under FAR Subpart 9.4.</P> <P>(c) A determination of price reasonableness.</P> <P>(d) An explanation (e.g., the source selection decision as specified in FAR 15.308) if the contracting officer proposes an award to a contractor other than the low responsible bidder or offeror.</P> </SECTION> <SECTION> <SECTNO>801.602-82</SECTNO> <SUBJECT>Documents to submit for legal or technical review—general.</SUBJECT> <P>Table 801.602-82 specifies the documents that must be submitted when a legal or technical review is required.</P> <GPOTABLE CDEF="s100,r100" COLS="2" OPTS="L2"> <TTITLE>Table 801.602-82</TTITLE> <BOXHD> <CHED H="1">Action or document subject to review</CHED> <CHED H="1">Documents to submit</CHED> </BOXHD> <ROW> <ENT I="01">(a) Proposed construction contract</ENT> <ENT>One copy of each solicitation document, excluding drawings. Submit not later than the date on which the contracting officer furnishes the documents to prospective bidders.</ENT> </ROW> <ROW> <ENT I="01">(b) Proposed solicitation or contract for scarce medical specialist services or health-care resources</ENT> <ENT>One copy of the solicitation or proposed contract and documents required under VA Manual M-1, Part 1, Chapter 34.</ENT> </ROW> <ROW> <ENT I="01">(c) All other proposed solicitations, contracts, and agreements</ENT> <ENT>One copy of each document to be used in the contract solicitation or award, and any other document that supports the proposed procurement action. Submit not later than the date on which the contracting officer furnishes the documents to prospective bidders.</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>801.602-83</SECTNO> <SUBJECT>Documents to submit for legal or technical review—contract modifications.</SUBJECT> <P>(a) The documents specified in this section related to proposed contract modifications must be submitted to Acquisition Resources Service for review under one or more of the following conditions:<PRTPAGE P="153"/> </P> <P>(1) When the total modification value is $100,000 or more.</P> <P>(2) When the modification is for a time extension of 60 days or more.</P> <P>(3) Where the contractor takes exception to VA's accord and satisfaction language.</P> <P>(b) The contracting officer must submit the following documents for review:</P> <P>(1) A draft of the proposed modification prepared on SF 30, Amendment of Solicitation/Modification of Contract, specifying the exact language proposed and describing any change in work, time, or cost.</P> <P>(2) A statement describing the need for the changed work with any back-up documentation, including a copy of the general statement of work in the original contract and any existing contract language that will be modified.</P> <P>(3) A statement addressing whether the proposed modification is within the original scope of the contract and specifically addressing the facts considered in reaching the conclusion.</P> <P>(4) A statement analyzing what necessitated the modification (e.g., a design error, technical changes, or medical center requirements).</P> <P>(5) The contracting officer's technical representative's (COTR) technical evaluation of the proposed change.</P> <P>(6) A memorandum from the appropriate office indicating that funds are available or a statement concerning the actions that must be taken to secure the required funds.</P> <P>(7) The names and telephone numbers of the contracting officer and COTR.</P> <P>(8) Costing information including the following:</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 architect/engineer's independent cost evaluation, if applicable and available.</P> <P>(iv) The contracting officer's Price Negotiation Memorandum under FAR 15.406-3.</P> <P>(v) Any other relevant costing information, such as independent market research, that VA used or will use as negotiation criteria.</P> <P>(c) For a proposed modification to an architect/engineer contract, the contracting officer must submit for review each document specified in paragraph (b) of this section and the following additional documents.</P> <P>(1) A listing of the fees awarded in the original contract and previous modifications.</P> <P>(2) For a working drawing contract, 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>(d) For a modification to a construction contract or, where applicable, to an architect/engineer contract, the contracting officer must submit for review a copy of the COTR's mark-up of any drawing that delineates the proposed changed work, including a copy of any pertinent technical specifications. When there is a proposed modification involving numerous changes to drawings and specifications for a VA Central Office project, the drawings and specifications must be available for review in the Office of the Project Director in VA Central Office.</P> </SECTION> <SECTION> <SECTNO>801.602-84</SECTNO> <SUBJECT>Documents to submit for business clearance reviews.</SUBJECT> <P>A contracting officer must submit to Acquisition Resources Service (Office of Construction and Facilities Management and National Cemetery Administration contracting officers shall forward the documents to OGC (025)) for review copies of the following documents when a business clearance review is required in accordance with 801.602-76:</P> <P>(a) The request for contract action, including a justification of need (i.e., the using service purchase request).</P> <P>(b) The solicitation.</P> <P>(c) The abstract of the subject bid or offer.</P> <P>(d) Any applicable Price Negotiation Memorandum.</P> <P>(e) A statement of the contracting officer's rationale for award.</P> <P>(f) Any applicable justification and approval under FAR 6.303 and 6.304.</P> <P>(g) Documents relevant to determining whether the contractor is responsible, including:<PRTPAGE P="154"/> </P> <P>(1) Verification that the vendor is not suspended, debarred, or on the Department of Health and Human Services Exclusionary List;</P> <P>(2) Verification that the vendor has filed any required VETS 100 report (not required if the acquisition is for a commercial item); and</P> <P>(3) For acquisitions exceeding $10 million, the Equal Employment Opportunity Clearance.</P> <P>(h) Any applicable approved subcontracting plan.</P> <P>(i) Documents relevant to price reasonableness (i.e., all documents used to support the contracting officer's determination of price reasonableness).</P> </SECTION> <SECTION> <SECTNO>801.602-85</SECTNO> <SUBJECT>Results of review.</SUBJECT> <P>(a) When the review is complete, the reviewing office will advise the appropriate Central Office activity or contracting officer that the proposal was approved as submitted or provide them with recommended changes. If the Central Office activity is notified, the Central Office activity will forward the information to the contracting officer.</P> <P>(b) When changes are recommended by technical or legal review staff, if the contracting officer concurs, the contracting officer must take immediate action to amend the document. If the contracting officer does not concur, the contracting officer must discuss the recommended changes with the technical reviewer or the attorney involved and document in the contract file the reasons why the contracting officer is not following the reviewer's recommendations.</P> <P>(c) Acquisition Resources Service and OGC will complete reviews as expeditiously as possible, with due regard for procurement actions that require an unusually short period for completing the procurement.</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>VAAR 801.690 through 801.690-9 and 801.670 establish the policy and procedures for selecting, appointing, and terminating a contracting officer.</P> </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 employee as COTR to perform the functions in this section and 801.603-71.</P> <P>(1) Except as indicated in 801.603-71, a designation under this section must be in writing, must define the scope and limitation of the representative's authority, and must be addressed to the COTR with a copy forwarded to the contractor.</P> <P>(2) The COTR may not re-delegate authority received under this paragraph.</P> <P>(3) The contracting officer may not authorize a representative to make any commitment or change that will affect the price, quantity, quality, or delivery terms of a contract.</P> <P>(4) A contracting officer acting within his or her warranted contracting authority must authorize any change to a contract.</P> <P>(b) A contracting officer may authorize his or her technical representative to do the following:</P> <P>(1) Furnish technical guidance and advice or generally supervise the work performed under the contract.</P> <P>(2) Take any action authorized in the contract, such as issuing a delivery order, rejecting an unsatisfactory item, ordering a replacement of an unsatisfactory item (materials or services) or declaring a contractor in default on specific delivery orders.</P> <P>(i) Except for a contract for blood, the contracting officer may delegate this authority only to other Government contracting officers under centralized indefinite delivery type contracts and the contract will so state.</P> <P>(ii) A centralized contract for blood must state that a contracting officer at an ordering office may designate representatives and alternate representatives to place a delivery order subject to the same restrictions in paragraph (b)(3) of this section.</P> <P>(3) Place an oral or other informal delivery order for items such as, but not limited to, bread, milk, and blood against a local indefinite delivery type contract for which there is a blanket purchase arrangement and for which funds have been obligated.<PRTPAGE P="155"/> </P> <P>(c) In the administration of research and development contracts, any representative appointed under this section must be acceptable to the contracting officer and the head of the organization concerned.</P> <P>(d) When the contracting officer intends to designate a representative under this section for a particular solicitation or contract, the contracting officer must include the clause in 852.270-1, Representatives of contracting officers, in the solicitation and contract.</P> </SECTION> <SECTION> <SECTNO>801.603-71</SECTNO> <SUBJECT>Representatives of contracting officers; receipt of equipment, supplies, and nonpersonal services.</SUBJECT> <P>(a) Without prior notification to the contractor or vendor, the contracting officer may designate other competent personnel, <E T="03">i.e.</E>, COTRs, to represent him or her to receive and inspect supplies, equipment and services at a VA facility. The COTRs may perform duties, as specified by the contracting officer, such as, but not limited to, the following:</P> <P>(1) Inspect and certify compliance with the quality and quantity requirements of the purchase order or contract.</P> <P>(2) Inspect supplies and equipment for condition and quantity and accept supplies, equipment, and services, based on quality inspection made by another authorized representative.</P> <P>(b) The Director, Library Services, VA Central Office, and the Chief, Library Service, at a field facility may act as representatives of the contracting officer to receive, inspect and accept library books, newspapers, and periodicals. Purchase documents will specify that delivery will be made directly to the library.</P> </SECTION> <SECTION> <SECTNO>801.670</SECTNO> <SUBJECT>Special and limited delegation.</SUBJECT> <P>The authority vested in the Secretary to execute, award, and administer a contract, purchase order, or other agreement for the expenditure of funds to acquire the specific services set forth in 801.670-1 through 801.670-4 is delegated to the SPE. The SPE further delegates this authority to the DSPE and to employees appointed or designated to the positions specified in those sections.</P> </SECTION> <SECTION> <SECTNO>801.670-1</SECTNO> <SUBJECT>Issuing bills of lading.</SUBJECT> <P>The authority to issue bills of lading previously contained in this section is rescinded. Except for individual small package shipments (e.g., United Parcel Service, Federal Express, or United States Postal Service small package shipments), no VA employee may issue a bill of lading or otherwise procure transportation services for goods unless the employee has been delegated authority to do so as a warranted contracting officer under the VA Contracting Officer Certification Program (ref. 801.690). All transportation services for goods, other than for small package shipments, require a bill of lading. Except for individual small package shipments, individuals with only micro-purchase authority may not issue bills of lading or otherwise procure transportation services. The dollar value of the bill of lading issued or transportation services acquired must not exceed the delegated authority of the contracting officer. Candidates for appointment as transportation contracting officers whose delegated authority will be limited to the acquisition of transportation services for goods only shall comply with the Education, Experience, and Training requirements, if any, in Part 102-117 of title 41 Code of Federal Regulations, the Federal Management Regulation, rather than the requirements in 801.690.</P> </SECTION> <SECTION> <SECTNO>801.670-3</SECTNO> <SUBJECT>Medical, dental, and ancillary service.</SUBJECT> <P>(a) When medical, dental, and ancillary services under $10,000 per authorization are not available from an existing contract or agreement, the following VA officials at VA medical facilities may authorize these services:</P> <P>(1) The Chief of Staff and the physician assigned the responsibility for the ambulatory care function.</P> <P>(2) Chief, Medical Administration Service, or the person designated by the facility director to perform medical administration functions.</P> <P>(b) Forms specified in Part 853 shall be used for ordering services under this paragraph from existing contracts.<PRTPAGE P="156"/> </P> <P>(c) The officials named in paragraph (a) of this section may designate one or more of their subordinates to exercise the authority in paragraph (a) of this section.</P> <P>(d) A designation under this section must be in writing and specifically set forth the scope and limitations of the designee's authority.</P> </SECTION> <SECTION> <SECTNO>801.670-4</SECTNO> <SUBJECT>National Cemetery Administration.</SUBJECT> <P>The Director of Logistics Management Service, the Centralized Contracting Division, and the Construction Support Division are authorized to procure supplies, equipment and non-personal services (including construction) for National Cemetery Administration (NCA) field facilities and other NCA offices when there is an emergency during which the servicing supply organization cannot be used.</P> </SECTION> <SECTION> <SECTNO>801.670-5</SECTNO> <SUBJECT>Letters of agreement.</SUBJECT> <P>(a) Letters of agreement shall not be used. The authority previously contained in this section is rescinded.</P> <P>(b) The VA Office of Inspector General may issue contracts for commercial items, including services, using a letter format (see FAR 12.204(a)), provided billing information and required clauses are included in the contract. If the dollar value of the acquisition will exceed the simplified acquisition threshold, this is a deviation from the requirement to use Standard Form 1449 at FAR 12.204(a).</P> </SECTION> <SECTION> <SECTNO>801.680</SECTNO> <SUBJECT>Contracting authority of the Inspector General.</SUBJECT> <P>(a) Under section 6(a) of Public Law 95-452 (October 12, 1978), the Inspector General may do the following:</P> <P>(1) Contract or arrange for audits, studies, analyses, and other services with public agencies and with private persons.</P> <P>(2) Make payments necessary to carry out the provisions of the Act, to the extent and in amounts 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 ask the servicing head of the contracting activity for assistance in developing appropriate contract or agreement documents.</P> <P>(c) The FAR applies to contracts made under paragraph (a) of this section. Such contracts also are subject to provisions of the VAAR that implement and supplement the FAR on matters other than those stemming from or related to delegations of the Secretary's contracting authority. (For example, management controls and approvals specified in subpart 837.2 will not apply to contract actions under the contract authority of the Inspector General.)</P> </SECTION> <SECTION> <SECTNO>801.690</SECTNO> <SUBJECT>VA's COCP.</SUBJECT> </SECTION> <SECTION> <SECTNO>801.690-1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Accredited college or university</E> means a college or university that has been accredited by an accrediting agency recognized by the U.S. Department of Education (see <E T="03">http://www.ed.gov/admins/finaid/accred/index.html</E>) or accredited by a foreign government.</P> <P> <E T="03">ACEP</E> means the Acquisition Continuing Education Program, a program to provide VA's acquisition workforce with classroom knowledge to further develop their acquisition skills. The program supports VA personnel in the GS 1102 contracting series, other contracting officers (regardless of General Schedule series), contracting officers' technical representatives, and contracting officers' representatives to ensure that they meet the continuing education requirements mandated by OFPP Policy Letter No. 05-01, Developing and Managing the Acquisition Workforce, dated April 15, 2005 (see <E T="03">http://www.whitehouse.gov/omb/procurement/policy_letters/05-01_041505.html</E>) and the OFPP Memorandum dated January 20, 2006, titled The Federal Acquisition Certification in Contracting Program (see <E T="03">http://www.whitehouse.gov/omb/procurement/acq_wk/fac_contracting_program.pdf</E>).</P> <P> <E T="03">ACM</E> means the Acquisition Career Manager, who is the Associate Deputy Assistant Secretary for Acquisitions.</P> <P> <E T="03">Acquisition Workforce</E> means those VA employees who are classified as: GS 1102 contract specialists; GS 1105 purchasing agents; contracting officers warranted above the micro-purchase <PRTPAGE P="157"/>threshold; program and project managers and other significant acquisition-related positions as otherwise identified by the VA Chief Acquisition Officer; contracting officers' technical representatives; and contracting officers' representatives. The acquisition workforce may also include a limited number of employees that perform significant acquisition-related responsibilities, (e.g., employees in the GS-345, GS-346, GS-801, GS-1101, GS-1106, GS-1170, GS-2001, GS-2003, and GS-2005 job series and select program officials).</P> <P> <E T="03">Appointment</E> means the delegation of authority to any VA employee to enter into, administer, or terminate contracts and to make related determinations and findings.</P> <P> <E T="03">ATCD</E> means the Acquisition Training and Career Development Division.</P> <P> <E T="03">Certificate of Appointment as Contracting Officer</E> is a signed certificate on Standard Form 1402 used for the written appointment of contracting officers that states the scope, limitation, and term of the contracting officer's authority.</P> <P> <E T="03">CLP</E> means continuous learning point, as provided in OFPP Policy Letter 05-01. One CLP is generally equivalent to one hour of classroom training.</P> <P> <E T="03">COCB</E> means the Contracting Officers Certification Board, a group of VA officials, listed at 801.690-3(c), who evaluate and recommend to the DSPE individuals for delegation of contracting authority as Level II warrant or Level III warrant (Senior Limited or Unlimited) contracting officers.</P> <P> <E T="03">COCP</E> means the Contracting Officers Certification Program, VA's program established for the selection, appointment, and termination of appointment of contracting officers.</P> <P> <E T="03">COQS</E> means the Contracting Officer Qualification Statement, a document completed by a candidate for a position as contracting officer that accompanies the request for contracting authority. The certified statement includes information on experience, education, training, and pertinent contracting authority information. The COQS is accompanied by supporting documentation such as training certificates, copies of prior and current warrants, college transcripts, and other relevant information.</P> <P> <E T="03">Federal Acquisition Certification</E> (see OFPP Policy Letter 05-01, paragraph 8) means a certification program developed by the Federal Acquisition Institute and OFPP that generally reflects a Government-wide standard for education, training, and experience leading to the fulfillment of core competencies in acquisition-related disciplines.</P> <P> <E T="03">Selection</E> means the appointment of an employee as a contracting officer. The selection process shall consider the complexity and dollar value of the assigned work, the candidate's experience, training, education, business acumen, judgment, character, reputation, and knowledge of acquisition policies, rules and regulations.</P> <P> <E T="03">Skills Currency</E> means the level of knowledge and abilities that a Level I warrant or higher level warrant contracting officer attains as the result of participating in a minimum of 80 CLPs of continuing education or training every two years. The training is intended to ensure that the employee maintains current acquisition knowledge and skills, as mandated by OFPP Policy Letter No. 05-01 and the OFPP Memorandum dated January 20, 2006, titled The Federal Acquisition Certification in Contracting Program.</P> <P> <E T="03">Termination</E> means the revocation or rescission of an appointment as contracting officer.</P> </SECTION> <SECTION> <SECTNO>801.690-2</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) The VA COCP applies to all VA programs except for the appointment of contracting officers under the Inspector General Act (Pub. L. 95-452) and for contracting officers designated in sections 801.670 through 801.670-5. The COCP also applies to VA officials granted authority to enter into sales agreements (see separate guidance under VA's Directives Management System).</P> <P>(b) A Certificate of Appointment is not required for a contracting officer designated in 801.670 who exercises special and limited delegations of authority.</P> <P>(c) Warrant levels are synonymous with the Federal Acquisition Certification in Contracting Program certification levels specified in the OFPP Memorandum dated January 20, 2006, <PRTPAGE P="158"/>titled “The Federal Acquisition Certification in Contracting Program.” The COCP is based on the following levels and types of authority:</P> <P>(1) <E T="03">Level I warrant.</E> Authority for expenditures at or below the simplified acquisition threshold (see FAR 2.101) for open market contracts, blanket purchase agreements, basic ordering agreements, and delivery/task orders against established contracts (except Federal Supply Schedule (FSS) contracts), within the specified geographical limits of the contracting officer's warrant. For FSS contracts, Level I warrant authority includes authority for expenditures up to the maximum order threshold of the FSS contract, within the specified geographical limits of the contracting officer's warrant. This level was formally titled “Basic” and any current Basic Level warrant need not be reissued solely to change the title.</P> <P>(2) <E T="03">Level II warrant.</E> Authority for expenditures at or below $5,000,000 or as stated on Standard Form 1402 for open market contracts, blanket purchase agreements, basic ordering agreements, and delivery/task orders against established contracts, within the specified geographic limits of the contracting officer's warrant. This level was formally titled “Intermediate” and any current Intermediate Level warrant need not be reissued solely to change the title.</P> <P>(3) <E T="03">Level III (Senior Limited) warrant.</E> Authority for expenditures at or below the dollar threshold and within the geographical limits specified on the contracting officer's warrant, Standard Form 1402. This level was formally titled “Senior Limited” and any current Senior Limited Level warrant need not be reissued solely to change the title.</P> <P>(4) <E T="03">Level III (Senior Unlimited) warrant.</E> Authority granted to VA's contracting officers in contracting activities (e.g., the VA National Acquisition Center, Hines, IL, and Acquisition Operations Service, VA Central Office, Washington, DC) that are charged with meeting Department-wide acquisition needs of VA and its customers. The authority is for expenditures at any dollar level without geographical restriction. This level was formally titled “Senior Unlimited” and any current Senior Unlimited Level warrant need not be reissued solely to change the title.</P> <P>(5) <E T="03">Multi-VISN.</E> Authority at the Level II warrant and Level III (Senior Limited) warrant levels, granted by the DSPE, that permits procurement consolidations among Veterans Health Administration VISNs, Veterans Benefits Administration Area Offices, and other Government agencies that exist outside the contracting officer's normally assigned geographical area of appointed authority. Multi-VISN authority is generally granted to contracting officers for procurement-specific requirements or to contracting officers who are members of groups or consortiums established for regional contracting initiatives.</P> <P>(d) <E T="03">Micro-purchase Level.</E> Micro-purchase Level authority, not to exceed the micro-purchase threshold (currently $3,000) ($2,500 for acquisition of services subject to the Service Contract Act, and $2,000 for acquisition of construction subject to the Davis Bacon Act) (see FAR 2.101), is separately addressed under VA's purchase card program. Under that program, the HCA may delegate authority to a VA employee as a purchase card holder through the issuance of VA Form 0242.</P> </SECTION> <SECTION> <SECTNO>801.690-3</SECTNO> <SUBJECT>Responsibilities under the COCP.</SUBJECT> <P>(a) <E T="03">DSPE.</E> The DSPE is responsible for the following:</P> <P>(1) Administering and overseeing the COCP;</P> <P>(2) Appointing and terminating Level II warrant and Level III (Senior Limited and Unlimited) warrant contracting officers;</P> <P>(3) Establishing and developing additional agency-specific training; and</P> <P>(4) Developing and implementing policy, procedures, and guidance for VA's acquisition program.</P> <P>(b) <E T="03">The Chief, Acquisition Program Management Division.</E> The Chief, Acquisition Program Management Division, serves as the Executive Secretary to the COCB and is responsible for the following:</P> <P>(1) Coordinating requests for contracting authority with the COCB;<PRTPAGE P="159"/> </P> <P>(2) Proceeding accordingly with appropriate action to carry out the decisions of the DSPE and the COCB;</P> <P>(3) Maintaining individual records on the appointment and termination of appointment of contracting officers. Records on contracting officers include HCA certifications and qualification statements, Certificates of Appointment, and other supporting documentation used to grant authority; and</P> <P>(4) Ensuring appropriate and timely disposition of records through the Office of Acquisition and Materiel Management's Records Control Officer.</P> <P>(c) <E T="03">The COCB.</E> (1) The Director, Acquisition Resources Service, will chair the COCB.</P> <P>(2) COCB membership consists of:</P> <P>(i) The Chief, Acquisition Program Management Division; and</P> <P>(ii) The Chief, Acquisition Training and Career Development Division (ATCD).</P> <P>(d) <E T="03">HCAs.</E> HCAs are responsible for the following:</P> <P>(1) Implementing and maintaining an effective and efficient program for the procurement of personal property and nonpersonal services required by the activity to which the HCA is assigned;</P> <P>(2) Establishing adequate controls to ensure compliance with applicable laws and regulations;</P> <P>(3) Appointing or terminating the appointment of contracting officers at the Micro-purchase Level and Level I warrant level within their assigned activity;</P> <P>(4) Establishing procedures and maintaining records for the appointment and termination of appointment of purchase card holders at the Micro-purchase Level and Level I warrant contracting officers. Records maintained on contracting officers shall include the contracting authority, certification and qualification statements;</P> <P>(5) Recommending to the DSPE the appointment or termination of appointment of contracting officers at the Level II warrant and Level III (Senior Limited or Unlimited) warrant levels of authority, certifying the candidate's qualifications, and justifying the organizational need;</P> <P>(6) Ensuring that all GS 1102 contract specialists and other contracting officers meet the minimum core training and continuing education requirements; and</P> <P>(7) Certifying that the assigned acquisition workforce meets the minimum training, education, and skills currency requirements prescribed by OFPP and the DSPE.</P> <P>(e) <E T="03">VA Acquisition Workforce.</E> All employees identified as members of VA's acquisition workforce (see 801.690-1) are responsible for maintaining records that include certificates of acquisition training, continuing education, college transcripts, work experience, and other supporting documentation needed to substantiate successful completion of all warrant requirements. These employees shall enroll in the Acquisition Career Management Information System (ACMIS), the data system that serves as the repository of required information on VA's acquisition workforce.</P> </SECTION> <SECTION> <SECTNO>801.690-4</SECTNO> <SUBJECT>Selection.</SUBJECT> <P>(a) The HCA may appoint Level I warrant contracting officers or submit written requests to the DSPE for appointment of Level II warrant or Level III (Senior Limited or Unlimited) warrant contracting officers. A VA official one level above the HCA may submit a written request to the DSPE for the appointment of an HCA as a contracting officer.</P> <P>(b) Appointment can only be requested in those circumstances where it can be demonstrated that a valid organizational need exists. In making this assessment and justification, the HCA will consider the complexity of the work, volume of actions, organizational structure, and human resource management actions and forecasts, such as rates of retirement, reassignment, and retention.</P> <P>(c) The request shall consist of the following:</P> <P>(1) Justification for requesting contracting authority to be granted;</P> <P>(2) Certification that the candidate's experience and training meet the established minimum qualifications for the requested contracting authority;</P> <P>(3) Certification that the candidate has a satisfactory-or-above performance rating;</P> <P>(4) Certification that the candidate maintains high standards of conduct <PRTPAGE P="160"/>and avoids apparent or actual conflicts of interest, and</P> <P>(5) Certification that the candidate has appropriate working knowledge of the FAR, VAAR, and other applicable laws, regulations, policies and procedures.</P> <P>(d) The accompanied COQS shall include the following information:</P> <P>(1) Candidate's name, position title, series, grade, and location;</P> <P>(2) Candidate's relevant acquisition or business-related experience that reflects the required number of years of progressive work assignments leading to broader technical abilities;</P> <P>(3) Education background, including number of acquisition or business-related college credits;</P> <P>(4) List of core training requirements or equivalent courses that have been successfully completed;</P> <P>(5) List of continuing education requirements successfully completed within the last two years;</P> <P>(6) List of current and prior warrant authorities, limitations, and information on termination and cause for termination;</P> <P>(7) List of other acquisition related activities or memberships;</P> <P>(8) Certification that the statement is accurate and complete to the best of the candidate's knowledge; and</P> <P>(9) Attached copies of acquisition or business-related training certificates, course certificates, and diplomas, transcripts, or degrees from accredited colleges or universities.</P> </SECTION> <SECTION> <SECTNO>801.690-5</SECTNO> <SUBJECT>Requirements for contracting authority.</SUBJECT> <P>(a) Effective January 1, 2007, no individual, regardless of job series, may be issued a new contracting officer warrant above the micro-purchase threshold unless the individual meets the requirements for Federal Acquisition Certification (Certification) for the applicable Level I, II, or III warrant level as specified in OFPP Policy Letter 05-01 and the OFPP Memorandum dated January 20, 2006, titled “the Federal Acquisition Certification in Contracting Program.” A new contracting officer warrant is defined in OFPP Policy Letter 05-01 as a warrant issued for the first time at a department or agency. For contracting officers warranted before January 1, 2007, certification will not be required to retain their existing warrants, but will be required before higher level warrants can be issued. Certification includes minimum requirements for education, training, and experience. A candidate for a warrant must have at least a satisfactory-or-above performance rating during the most recent performance period.</P> <P>(b) For contracting officer warrants issued prior to January 1, 2007, the minimum requirements for qualifying as a contracting officer previously specified in VA regulation and other internal VA guidance shall apply.</P> <P>(c) <E T="03">Multi-VISN.</E> The HCA shall obtain written or e-mail concurrence from the HCAs of the other affected VISNs or Area Offices when requesting Multi-VISN contracting authority.</P> <P>(d) <E T="03">Training.</E> (1) Contracting officers and non-warranted contract specialists shall complete the required coursework and on-the-job training needed to possess the established competencies listed in OFPP's Federal Acquisition Institute Contract Specialist Training Blueprints (<E T="03">http://www.fai.gov/policies/contract.htm</E>).</P> <P>(2) The Chief, ATCD, oversees the ATP.</P> <P>(3) Training course equivalency will be determined and approved by the Chief, ATCD. Candidates should contact the Chief, ATCD, for an equivalency determination and must furnish any information or evidence necessary to support the request. Appeals of decisions may be made to the VA ACM and the decisions of the ACM shall be final.</P> <P>(e) <E T="03">Skills Currency.</E> (1) Contracting officers and non-warranted contract specialists who have completed the core training requirements shall obtain a minimum of 80 CLPs of continuing education or training every two fiscal years to stay abreast of current acquisition knowledge and skills as mandated by OFPP. The HCA (for Level I warrant contracting officers) and the Chief, ATCD (for Level II warrant and Level III warrant contracting officers), shall make written determinations every October 1 for each warranted contracting officer on whether the required CLPs, as specified in OFPP guidance, were completed during the two prior fiscal years. The HCA shall <PRTPAGE P="161"/>assign CLP values to training taken by Level I warrant contracting officers for training that does not have pre-assigned CLP or continuing education unit (CEU) values assigned to the training by the provider. The Chief, ATCD, shall assign CLP values to training taken by Level II warrant and Level III warrant contracting officers for training that does not have pre-assigned CLP or CEU values assigned to the training by the provider. Values shall be assigned based on guidance provided by OFPP and the combined efforts of the Federal Acquisition Institute and the Defense Acquisition University. Questions regarding the CLP or CEU values assigned to training shall be resolved by the ACM.</P> <P>(2) The Chief, ATCD, is responsible for the management of the ACEP, the program that assists contracting officers and contract specialists to meet the training requirements.</P> <P>(3) An expiring warrant will not be re-issued if the contracting officer has not met the continuing education or training requirement.</P> <P>(f) <E T="03">Education</E>. (1) The 24 business-related college credits shall be in any combination of the following fields of study at an accredited college or university: accounting, business, finance, law, contracts, purchasing, economics, industrial management, marketing, quantitative methods, or organization and management.</P> <P>(2) The HCA will make the final determination whether a course is accepted as business-related for the purpose of granting Level I warrant authority. The Chief, ATCD, will make the final determination whether a course is accepted as business-related for the purpose of granting Level II warrant or Level III warrant contracting authority.</P> <P>(3) American Council on Education (ACE) credits are not considered as college credits until they are converted and included on a transcript from an accredited college or university.</P> <P>(g) <E T="03">Grandfather Provision for the Education Requirement</E>. (1) VA contracting officers, regardless of grade level, who currently hold Level I, Level II, or Level III (Senior Limited or Unlimited) warrants are considered as having met the Experience, Education, and Training requirements for their respective warrant levels. This includes transfers or laterals to other VA contracting activities with similar geographical restrictions. Contracting officers who are promoted up to a GS-12 can maintain their current warrant level authority.</P> <P>(2) This Grandfather provision does not cover new VA employees, current VA employees who are not warranted, former VA employees who held contracting authority at their previous Federal Government agencies or VA positions, or VA employees whose warrants have been rescinded or have expired. VA contracting officers who are promoted to GS 13-and-above will no longer be covered by this Grandfather provision and, therefore, must meet the current Experience, Education, and Training requirements for the specific warrant authority that they currently hold or to which they wish to be appointed. Contracting officers requesting a higher level warrant (e.g., from Level I warrant to Level II warrant or from Level III (Senior Limited) warrant to Level III (Senior Unlimited) warrant) must also meet the current Experience, Education, and Training requirement for the specific warrant authority requested.</P> <P>(3) This Grandfather provision for retaining a contracting officer's current warrant authority is voided if the contracting officer does not fully meet the minimum Skills Currency requirement prior to warrant expiration or when the warrant authority is suspended or revoked. The contracting officer will then need to meet all of the current warrant prerequisites before a new warrant can be issued or before the suspended or revoked warrant can be reinstated.</P> <P>(h) The training requirements for contracting officers whose delegated authority is limited to the acquisition of transportation services, as provided in Part 102-117 of title 41 Code of Federal Regulations, the Federal Management Regulation, shall be as specified therein.</P> </SECTION> <SECTION> <SECTNO>801.690-6</SECTNO> <SUBJECT>Appointment.</SUBJECT> <P>(a) Only the DSPE (for Level II and Level III (Senior Limited or Unlimited)) warrants and the respective HCA (for Level I warrants) may sign the <PRTPAGE P="162"/>Certificate of Appointment as Contracting Officer. HCAs are authorized to grant Micro-purchase Level and Level I warrant contracting authority up to the thresholds specified for these authorities at 801.690-2(c). The HCA may recommend a candidate to the DSPE for appointment as a Level II warrant or Level III warrant contracting officer. Only the DSPE may grant Level II warrant, Level III (Senior Limited or Unlimited) warrant, and Multi-VISN authority.</P> <P>(b) All Certificates of Appointment as Contracting Officers and other written documents must clearly state any limitations or restrictions on the authority.</P> <P>(c) The Privacy Act of 1974 applies to the information collected during contracting officer selection and appointment.</P> </SECTION> <SECTION> <SECTNO>801.690-7</SECTNO> <SUBJECT>Termination.</SUBJECT> <P>(a) The DSPE (for all warrant levels) or HCA (for Micro-purchase Level and Level I warrants) may revoke or rescind the appointment of a contracting officer at any time. HCAs may submit a recommendation to revoke or rescind the appointment of a contracting officer's Level II warrant or Level III (Senior Limited or Unlimited) warrant to the DSPE. Revocation may be based on the following circumstances:</P> <P>(1) There is no longer a need for the appointment;</P> <P>(2) There has been a personnel action such as a resignation, retirement, transfer;</P> <P>(3) Unsatisfactory performance;</P> <P>(4) Alleged official misconduct pending criminal or administrative investigations;</P> <P>(5) Failure to meet training or skills currency requirements;</P> <P>(6) A contracting officer taking an action that exceeds his or her authority;</P> <P>(7) Blatant disregard for adhering to acquisition regulations, policies and procedures; or</P> <P>(8) Situations similar to those in paragraphs (a)(1) through (7) of this section that may require remedial action.</P> <P>(b) The HCA should discuss a termination of contracting authority for cause with the servicing Human Resource Management Office to determine the impact, if any, on the contracting officer's continued employment.</P> <P>(c) All changes in the status (e.g., departure, name, position, or grade change) of a micro-purchase cardholder or Level I warrant holder shall be reported in writing by the individual's supervisor to the HCA within five workdays of occurrence. All changes in the status of a Level II warrant or Level III (Senior Limited or Unlimited) warrant holder shall be reported in writing by the HCA to the DSPE within five workdays of occurrence. Level II warrants or Level III (Senior Limited or Unlimited) warrants that are terminated, rescinded, or superseded should be returned to the Director, Acquisition Resources Service (049A5), citing the exact reason for the termination, rescission, or supersession.</P> </SECTION> <SECTION> <SECTNO>801.690-8</SECTNO> <SUBJECT>Interim appointment provisions.</SUBJECT> <P>(a) To ensure availability of procurement support, an interim appointment may be granted for a limited period of time when a candidate does not fully meet the minimum qualifications for Experience, Education, or successful completion of all acquisition Training requirements in previous VA regulations or VA internal guidance, if applicable, or as provided in the OFPP Memorandum dated January 20, 2006, titled “the Federal Acquisition Certification in Contracting Program.” All interim appointments made after January 1, 2007, for individuals who do not meet the minimum Experience, Education, or Training requirements for Levels I through III warrants shall be signed by the SPE or, if so delegated, the ACM, without power to redelegate, as provided in the OFPP Memorandum dated January 20, 2006, titled “the Federal Acquisition Certification in Contracting Program.”</P> <P>(1) In a request for an interim appointment, the HCA must include the information required by 801.690-4 on the candidate's training, experience, performance, and education, and a justification for the interim appointment.</P> <P>(2) The HCA must ensure that the candidate with interim appointment <PRTPAGE P="163"/>meets the minimum Experience, Education, and Training requirements within the time specified on the warrant.</P> <P>(3) A contracting officer with interim appointment should successfully complete all remaining required courses or equivalent courses within the time specified on the warrant.</P> <P>(b) At the HCA's written request, a permanent warrant may be issued during the interim appointment period when the contracting officer has satisfactorily met the requirements. The appropriate documentation (copies of course certificates) must be submitted with the HCA's request.</P> <P>(c) An interim appointment may be appropriate for instances such as organizational changes or sudden, extreme, and unexpected increases in workload complexity and/or volume.</P> <P>(d) Interim appointments will not be granted under the following circumstances:</P> <P>(1) To a candidate who is warranted but does not meet the Education or Training requirements for higher level (e.g., from Level I warrant to Level II warrant) contracting authority (unless waived by the SPE);</P> <P>(2) To a candidate who does not have a current record of satisfactory-or-above performance; or</P> <P>(3) To a contracting officer whose authority has expired and who has not met the continuing education requirement during the two preceding years.</P> <P>(e) Generally, an interim appointment may not exceed one year.</P> </SECTION> <SECTION> <SECTNO>801.690-9</SECTNO> <SUBJECT>Distribution of Certificates of Appointment.</SUBJECT> <P>(a) The DSPE or HCA will issue an original Certificate of Appointment as Contracting Officer to the appointed candidate, who must display the Certificate at his or her duty station.</P> <P>(b) The HCA shall file a copy of the warrant in the delegation of authority file.</P> <P>(c) The contracting officer must furnish a copy to the respective fiscal activity.</P> <P>(d) Each Certificate will be serially numbered, reflecting the facility number, the year of issuance (e.g., facility number—year of issuance (2 digits)—sequential number, 560-04-10), and have an effective and expiration date.</P> </SECTION> <SECTION> <SECTNO>801.695</SECTNO> <SUBJECT>VA's Appointment of HCAs Program.</SUBJECT> </SECTION> <SECTION> <SECTNO>801.695-1</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) VA's policy is to have a minimum number of HCAs. Generally, there will be one HCA per VISN, other major VA organizational element, or major acquisition organization. The authority vested in the Secretary to select, appoint, and terminate HCAs is delegated to the SPE and is further delegated from the SPE to the DSPE.</P> <P>(b) Under the FAR at 1.601(a) and 2.101, an HCA is a senior level position. The official who occupies this position should have the education, training, and experience necessary to make the decisions required of an HCA.</P> <P>(c) Except as provided in the FAR, an HCA may delegate his or her authority to other individuals within the HCA's acquisition activity. Such delegations must be in writing and must set forth the specific limitations on the designee's authority. The delegation may include authority to appoint a contracting officer at the Micro-purchase Level or the Level I warrant levels.</P> </SECTION> <SECTION> <SECTNO>801.695-2</SECTNO> <SUBJECT>Procedures for appointment of HCAs.</SUBJECT> <P>An HCA must be appointed in writing by the DSPE and in accordance with internal VA policy. The written delegation must state any limitation on the HCA's authority, other than a limitation contained in an applicable law or regulation.</P> </SECTION> <SECTION> <SECTNO>801.695-3</SECTNO> <SUBJECT>Authority of the HCA.</SUBJECT> <P>(a) The HCA has overall responsibility for managing the procurement program assigned to the activity.</P> <P>(b) The HCA's level of contracting authority, if any, shall be specified in the HCA's appointment letter.</P> <P>(c) The HCA has the authority to appoint and terminate contracting officers with authority to conduct procurements of up to and including the simplified acquisition threshold or the maximum order threshold or limitation for orders placed against Federal <PRTPAGE P="164"/>Supply Schedule contracts, and to terminate such appointments (Micro-purchase Level and Level I warrant appointments).</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 802</EAR> <HD SOURCE="HED">PART 802—DEFINITIONS OF WORDS AND TERMS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 802.1—Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>802.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(C) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 802.1—Definitions</HD> <SECTION> <SECTNO>802.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">A/E</E> means architect/engineer.</P> <P> <E T="03">Chief Acquisition Officer</E> means the Assistant Secretary for Management.</P> <P> <E T="03">COTR</E> means Contracting Officer's Technical Representative or Contracting Officer's Representative.</P> <P> <E T="03">D&S Committee</E> means the VA Debarment and Suspension Committee, a committee consisting of the Director, Acquisition Resources Service (chair), and representatives of the Office of Management, Office of Inspector General, and the program office to which the particular debarment or suspension case relates. A representative from OGC will serve as legal counsel to the D & S Committee.</P> <P> <E T="03">Debarring official</E> means the DSPE, who is also the Associate Deputy Assistant Secretary for Acquisitions. Authority to impose debarment is delegated to the SPE and is further delegated to the DSPE.</P> <P> <E T="03">DSPE</E> means the Deputy Senior Procurement Executive, who is also the Associate Deputy Assistant Secretary for Acquisitions. The DSPE must be career member of the Senior Executive Service.</P> <P> <E T="03">FAR</E> means the Federal Acquisition Regulation.</P> <P> <E T="03">GAO</E> means the Government Accountability Office.</P> <P> <E T="03">HCA</E> means the Head of the Contracting Activity, an individual appointed in writing by the DSPE under VA's Appointment of HCAs Program (see 801.695).</P> <P> <E T="03">OGC</E> means the Office of the General Counsel.</P> <P> <E T="03">Resident Engineer</E> has the same meaning as contracting officer's technical representative or contacting officer's representative (see 852.270-1).</P> <P> <E T="03">SPE</E> means the Senior Procurement Executive who is also the Deputy Assistant Secretary for Acquisition and Materiel Management. The SPE is responsible for the management direction of the VA acquisition system. The SPE may further delegate authority to the DSPE.</P> <P> <E T="03">Suspending official</E> means the DSPE. Authority to impose suspension is delegated to the SPE and is further delegated to the DSPE.</P> <P> <E T="03">VA</E> means the Department of Veterans Affairs.</P> <P> <E T="03">VAAR</E> means the Department of Veterans Affairs Acquisition Regulation.</P> <P> <E T="03">VISN</E> means Veterans Integrated Service Network, an integrated network of VA facilities that are focused on pooling and aligning resources to best meet local needs in the most cost-effective manner and provide greater access to care.</P> </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> <SECTNO>803.104</SECTNO> <SUBJECT>Procurement integrity.</SUBJECT> <SECTNO>803.104-7</SECTNO> <SUBJECT>Violations or possible violations.</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> <SECTNO>803.204</SECTNO> <SUBJECT>Treatment of violations.</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 Covenant Against Contingent Fees.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="165"/> <HD SOURCE="HED">Subpart 803.5—Other Improper Business Practices</HD> <SECTNO>803.502</SECTNO> <SUBJECT>Subcontractor kickbacks.</SUBJECT> <SECTNO>803.570</SECTNO> <SUBJECT>Commercial advertising.</SUBJECT> <SECTNO>803.570-1</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>803.570-2</SECTNO> <SUBJECT>Contract clause.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.6—Contracts with Government Employees or Organizations Owned or Controlled by Them</HD> <SECTNO>803.602</SECTNO> <SUBJECT>Exceptions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.7—Voiding and Rescinding Contracts</HD> <SECTNO>803.703</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>803.705</SECTNO> <SUBJECT>Procedures.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.8—Limitation on the Payment of Funds to Influence Federal Transactions</HD> <SECTNO>803.804</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>803.806</SECTNO> <SUBJECT>Processing suspected violations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.70—Contractor Responsibility To Avoid Improper Business Practices</HD> <SECTNO>803.7000</SECTNO> <SUBJECT>Display of the VA Hotline poster.</SUBJECT> <SECTNO>803.7001</SECTNO> <SUBJECT>Contract clause.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <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) Part 0 of 38 Code of Federal Regulations (CFR) states the standards of conduct for all VA employees, including contracting officials.</P> <P>(b) Subpart B of 38 CFR part 0 states the employee financial disclosure requirements.</P> </SECTION> <SECTION> <SECTNO>803.104</SECTNO> <SUBJECT>Procurement integrity.</SUBJECT> </SECTION> <SECTION> <SECTNO>803.104-7</SECTNO> <SUBJECT>Violations or possible violations.</SUBJECT> <P>(a) Contracting officers must forward the information required by FAR 3.104-7(a)(1) to the HCA. In consultation with OGC, the HCA may make the determination and concurrence specified in FAR 3.104-7(a)(1).</P> <P>(b) Upon receipt of information describing a violation or possible violation of subsections 27(a), (b), (c), or (d) of the Office of Federal Procurement Policy Act of 1974 (see FAR 3.104-3), the HCA will take action in accordance with FAR 3.104-7(b). The HCA must also report violations or possible violations to the VA Office of the Inspector General.</P> <P>(c) The authority to make the determinations specified in FAR 3.104-7(b)(5) and 3.104-7(d)(2)(ii)(B) is delegated to the SPE and is further delegated to the DSPE.</P> <P>(d) As provided in FAR 3.104-7(f), the HCA may authorize a contracting officer to award a contract after notifying the DSPE of the circumstances warranting such an award.</P> </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) Any VA employee must report a suspected violation of the Gratuities clause to the contracting officer or a higher level VA official.</P> <P>(b) The report must identify the contractor and the personnel involved, provide a summary of the pertinent evidence and circumstances that indicate a violation, and include any other available supporting documentation.</P> <P>(c) The contracting officer or higher level official must supplement the file with appropriate information and promptly forward the report to the DSPE, with copies to the VA Office of the Inspector General and the Assistant Secretary for Management.</P> </SECTION> <SECTION> <SECTNO>803.204</SECTNO> <SUBJECT>Treatment of violations.</SUBJECT> <P>In providing the notice and hearing required by FAR 3.204, the SPE may make the determinations required by FAR 3.204. This authority is further delegated to the DSPE. The DSPE shall use the following procedures to determine whether or not a violation of the Gratuities clause has occurred:</P> <P>(a) Upon receipt of an allegation or evidence of a violation of the Gratuities clause, the DSPE shall refer the matter to the D&S Committee to conduct a fact-finding. Upon completion of the fact-finding, the D&S Committee shall present the facts and recommendations for further action to the DSPE.<PRTPAGE P="166"/> </P> <P>(b) If the DSPE finds a basis for further action, the D&S Committee shall prepare a notice under FAR 3.204 for signature of the DSPE. If suspension or debarment is also being considered, the D&S Committee shall also follow the procedures contained in 809.4. The signed notice will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. In the case of a business, the D&S Committee may send the notice to any partner, principal, officer, director, owner or co-owner, or joint venture.</P> <P>(c) If VA does not receive a reply from the contractor within 45 calendar days of sending the notice, the D&S Committee will prepare a recommendation and refer the case to the DSPE for a decision on whether or not to take further action under FAR 3.204.</P> <P>(d) If VA receives a reply from the contractor within 45 calendar days of sending the notice, the D&S Committee must consider the information in the reply before the D&S Committee makes its recommendation to the DSPE.</P> <P>(e) The D&S Committee, upon the request of the contractor, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S Committee, in person or through a representative, to present information or argument. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the presentation for submission to the DSPE and must consider the information presented when making its recommendation to the DSPE.</P> <P>(f) If the D&S Committee finds that the contractor's submission in opposition to further action under FAR 3.204 raises a genuine dispute over facts material to the action, then the D&S Committee shall submit to the DSPE the information establishing the dispute of material facts. If the DSPE agrees that there is a genuine dispute of material facts, the DSPE shall refer the dispute to a designee for resolution under 809.470. The DSPE may reject the findings of the fact-finding official only if the findings are clearly erroneous or arbitrary and capricious.</P> <P>(g) If there are no disputes over material facts or if all disputes over material facts have been resolved under 809.470, the DSPE will make a decision on the basis of all information available, including findings of facts and oral or written arguments presented or submitted to the D & S Committee by the contractor. The DSPE should consider any mitigating factors, such as those listed at FAR 9.406-1 and 809.406-1, prior to making a final decision.</P> </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>(a) Any VA employee who suspects or has evidence of possible antitrust violations must report the suspected violations, in accordance with FAR 3.303, to the VA Office of the Inspector General and to the Assistant Secretary for Management for review and submission to OGC.</P> <P>(b) Either the General Counsel or the Inspector General will determine whether to submit the case to the U.S. Attorney General.</P> </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>(a) A VA employee who suspects or has evidence of an attempted or actual exercise of improper influence, misrepresentation of a contingent fee arrangement, or any other violation of the Covenant Against Contingent Fees must report the matter to the contracting officer or to the VA Office of Inspector General.</P> <P>(b) In addition to the requirement in paragraph (a) of this section, a contracting officer must report a suspected or actual misrepresentation or violation to the DSPE.</P> <P>(c) Before taking any administrative action under FAR 3.405, a contracting officer must consult with his or her Regional Counsel. A contracting officer in <PRTPAGE P="167"/>the Central Office must consult with OGC.</P> <P>(d) Contracting officers shall route any referrals of suspected fraudulent or criminal matters to the Department of Justice under FAR 3.405(b)(4) through OGC or the VA Office of the Inspector General, with a copy to the Assistant Secretary for Management. The General Counsel or the Inspector General will determine whether to forward the referral to the Department of Justice.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.5—Other Improper Business Practices</HD> <SECTION> <SECTNO>803.502</SECTNO> <SUBJECT>Subcontractor kickbacks.</SUBJECT> <P>A VA employee who suspects a violation of the Anti-kickback Act must report the suspected violation to OGC for review.</P> </SECTION> <SECTION> <SECTNO>803.570</SECTNO> <SUBJECT>Commercial advertising.</SUBJECT> </SECTION> <SECTION> <SECTNO>803.570-1</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>It is VA policy that contractors will not advertise the award of contracts or refer to VA contracts in contractors' commercial advertising in such a manner as to state or imply that VA endorses a product, project, or commercial line of endeavor. The intent of this policy is to preclude the appearance of bias toward any product or service.</P> </SECTION> <SECTION> <SECTNO>803.570-2</SECTNO> <SUBJECT>Contract clause.</SUBJECT> <P>The contracting officer shall insert the clause at 852.203-70, Commercial advertising, in solicitations and contracts expected to equal or exceed the micro-purchase threshold.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD> <SECTION> <SECTNO>803.602</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>The authority to authorize an exception to the policy in FAR 3.601 is delegated to the SPE and is further delegated to the DSPE.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.7—Voiding and Rescinding Contracts</HD> <SECTION> <SECTNO>803.703</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>The authority to make determinations under FAR Subpart 3.7, Voiding and Rescinding Contracts, is delegated to the SPE and is further delegated to the DSPE.</P> </SECTION> <SECTION> <SECTNO>803.705</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>In making a determination to void or rescind a contract, the DSPE must follow the procedures of FAR 3.705 and the following:</P> <P>(a) Upon receipt of an allegation or evidence of situations meeting the provisions of FAR 3.700, the DSPE shall refer the matter to the D&S Committee to conduct a finding of facts. Upon completion of the fact-finding, the D&S Committee shall present the facts and recommendations for further action to the DSPE.</P> <P>(b) If the DSPE finds a basis for further action, the D&S Committee shall prepare a notice under FAR 3.705 for signature of the DSPE. If suspension or debarment is being considered, the D&S Committee shall also follow the procedures of 809.4. The signed notice will be sent to the last known address of the contractor, the contractor's counsel, or registered agent, by certified mail, return receipt requested. In the case of a business, the D&S Committee may send the notice to any partner, principal, officer, director, owner or co-owner, or joint venture.</P> <P>(c) If VA does not receive a reply from the contractor within 30 calendar days of receipt of the notice by the addressee, the D&S Committee will prepare a recommendation and refer the case to the DSPE for a decision on whether or not to take further action under FAR 3.705.</P> <P>(d) If VA receives a reply from the contractor within 30 calendar days of receipt of the notice, the D&S Committee must consider the information in the reply before the D&S Committee makes its recommendation to the DSPE.</P> <P>(e) The D&S Committee, upon the request of the contractor, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S <PRTPAGE P="168"/>Committee, in person or through a representative, to present information or argument. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the presentation for submission to the DSPE.</P> <P>(f) If the D&S Committee finds that the contractor's submission in opposition to further action under FAR 3.705 raises a genuine dispute over facts material to the action, then the D&S Committee shall submit to the DSPE the information establishing the dispute of material facts. If the DSPE agrees that there is a genuine dispute of material facts, the DSPE shall refer the dispute to a designee for resolution under 809.470. The DSPE may reject the findings of the fact-finding official only if the findings are clearly erroneous or arbitrary and capricious.</P> <P>(g) If there are no disputes over material facts or if all disputes over material facts have been resolved under 809.470, the DSPE will make a decision on the basis of all information available, including findings of facts and oral or written arguments presented or submitted to the D&S Committee by the contractor.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.8—Limitation on the Payment of Funds to Influence Federal Transactions</HD> <SECTION> <SECTNO>803.804</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>A contracting officer must forward a copy of all contractor disclosures furnished under the clause at FAR 52.203-12, Limitations on Payments to Influence Certain Federal Transactions, to the Director, Acquisition Resources Service, for subsequent submission by the Secretary to Congress.</P> </SECTION> <SECTION> <SECTNO>803.806</SECTNO> <SUBJECT>Processing suspected violations.</SUBJECT> <P>A VA employee must report suspected violations of 31 U.S.C. 1352, Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions, to the Assistant Secretary for Management and the VA Office of the Inspector General.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 803.70—Contractor Responsibility to Avoid Improper Business Practices</HD> <SECTION> <SECTNO>803.7000</SECTNO> <SUBJECT>Display of the VA Hotline poster.</SUBJECT> <P>(a) Under the circumstances described in paragraph (b) of this section, a contractor must display prominently a VA Hotline poster prepared by the VA Office of Inspector General in a common work area within a business segment performing work under a VA contract.</P> <P>(b) A contractor must comply with paragraph (a) of this section when all of the following apply:</P> <P>(1) The contractor is awarded a VA contract for $500,000 or more for supplies or services, or $3 million or more for construction.</P> <P>(2) The contractor has not established an internal reporting mechanism and program, such as a hotline, by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports.</P> </SECTION> <SECTION> <SECTNO>803.7001</SECTNO> <SUBJECT>Contract clause.</SUBJECT> <P>The contracting officer shall insert the clause at 852.203-71, Display of Department of Veterans Affairs Hotline poster, in solicitations and contracts expected to equal or exceed the dollar thresholds established in 803.7000.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 804</EAR> <HD SOURCE="HED">PART 804—ADMINISTRATIVE MATTERS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 804.1—Contract Execution</HD> <SECHD>Sec.</SECHD> <SECTNO>804.101</SECTNO> <SUBJECT>Contracting officer's signature.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="169"/> <HD SOURCE="HED">Subpart 804.1—Contract Execution</HD> <SECTION> <SECTNO>804.101</SECTNO> <SUBJECT>Contracting officer's signature.</SUBJECT> <P>(a) If a contracting officer's name and title has been typed, stamped, or printed on the contract, and that contracting officer is not available to sign the contract, another contracting officer, as specified in 801.602, may sign the contract.</P> <P>(b) The contracting officer who signs the contract must have contracting authority to cover the contract to be signed and must annotate his or her name and title below his or her signature.</P> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="170"/> <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND 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 Contract Actions</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>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 805.2—Synopses of Proposed Contract Actions</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> </SECTION> <SECTION> <SECTNO>805.205</SECTNO> <SUBJECT>Special situations.</SUBJECT> <P>(a) A contracting officer may procure paid advertising in a daily newspaper circulated in the local area to publicize a proposed procurement of architectural and engineering (A/E) services not expected to exceed $10,000. See FAR 5.101(b)(4)(i) and 5.502(a).</P> <P>(b) A contracting officer may procure paid advertising in a daily newspaper circulated in the local area or in professional journals to publicize a proposed procurement of professional services (e.g., scarce medical specialist services, health-care resources, advisory and assistance services). See FAR 5.101(b)(4)(i) and 5.502(a).</P> </SECTION> <SECTION> <SECTNO>805.207</SECTNO> <SUBJECT>Preparation and transmittal of synopses.</SUBJECT> <P>(a) When an A/E evaluation board is ready to advertise for A/E services, the board must establish the geographic area within which it will consider A/E firms (including joint ventures).</P> <P>(b) The geographic area 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> </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</SECTNO> <SUBJECT>Circumstances permitting other than full and open competition.</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 806.5—Competition Advocates</HD> <SECTNO>806.501</SECTNO> <SUBJECT>Requirement.</SUBJECT> <SECTNO>806.570</SECTNO> <SUBJECT>Planning requirements.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 806.3—Other Than Full and Open Competition</HD> <SECTION> <SECTNO>806.302</SECTNO> <SUBJECT>Circumstances permitting other than full and open competition.</SUBJECT> </SECTION> <SECTION> <SECTNO>806.302-5</SECTNO> <SUBJECT>Authorized or required by statute.</SUBJECT> <P>(a) Full and open competition need not be provided for when awarding:</P> <P>(1) Scarce Medical Specialist contracts negotiated under the authority of 38 U.S.C. 7409, but only when such contracts are with institutions affiliated with VA under 38 U.S.C. 7302. (38 U.S.C. 7409)</P> <P>(2) Contracts for health-care resources negotiated under the authority of 38 U.S.C. 8153, but only when such contracts are with institutions affiliated with VA under 38 U.S.C. 7302, including medical practice groups and 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 <PRTPAGE P="171"/>806.304 do not apply to such contracts or agreements. (38 U.S.C. 8153)</P> <P>(3) Contracts for health-care resources, negotiated under the authority of 38 U.S.C. 8153, that are not acquired under the authority of paragraph (a)(2) of this section, but only when the procurement is conducted in accordance with part 873. The justification and approval requirements of FAR 6.303 and 806.304 shall apply to such contracts and agreements conducted on a sole-source basis. (38 U.S.C. 8153)</P> <P>(b) Various sections of title 38 U.S.C. authorize the Secretary to enter into certain contracts and certain types of contracts without regard to any other provisions of law. When the contracting officer enters into a contract without providing full and open competition for any of the following items or services, the contracting officer must cite 41 U.S.C. 253(c)(5) and the following authorities:</P> <P>(1) For contracts for orthopedic and prosthetic appliances and related services including research, cite 38 U.S.C. 8123. (38 U.S.C. 8123)</P> <P>(2) For contracts to purchase or sell merchandise, equipment, fixtures, supplies and services for the operation of the Veterans Canteen Service, cite 38 U.S.C. 7802. (38 U.S.C. 7802)</P> <P>(3) For contracts or leases for the operation of parking facilities established under 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, cite 38 U.S.C. 8109(f). (38 U.S.C. 8109)</P> <P>(4) For contracts for laundry and other common services, such as the purchase of steam, 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, cite 38 U.S.C. 8122(c). (38 U.S.C. 8122)</P> <P>(5) For contracts or agreements with public or private agencies for services of translators, cite 38 U.S.C. 513. (38 U.S.C. 513)</P> <P>(c) Except for an acquisition under paragraph (a)(2) of this section, the contracting officer must provide a justification under FAR 6.303 and obtain an approval under 806.304 for each acquisition described in this section.</P> </SECTION> <SECTION> <SECTNO>806.302-7</SECTNO> <SUBJECT>Public interest.</SUBJECT> <P>(a) When the contracting officer uses 41 U.S.C. 253(c)(7) to support a contract award using other than full and open competition, the contracting officer must prepare a Determination and Finding (D&F) under FAR 1.7 and a justification under FAR 6.303. The D&F must be signed by the Secretary.</P> <P>(b) The contracting officer must submit the D&F and justification through the HCA to the Agency Competition Advocate for signature by the Secretary. The submission must include the date the contracting officer expects to award the contract.</P> <P>(c) VA must notify Congress 30 days before the expected award date. The Agency Competition Advocate is responsible for preparing this notice. The contracting officer may not award the contract until notified by the Agency Competition Advocate.</P> </SECTION> <SECTION> <SECTNO>806.304</SECTNO> <SUBJECT>Approval of the justification.</SUBJECT> <P>(a) For a justification other than a class justification specified in FAR 6.304(c), Table 806.304-1 provides the authorities who may approve a justification:</P> <GPOTABLE CDEF="s75,r75,r75" COLS="3" OPTS="L2"> <TTITLE>Table 806.304.1</TTITLE> <BOXHD> <CHED H="1">Proposed contract amount</CHED> <CHED H="1">Approving authority</CHED> <CHED H="1">Alternate approving authority</CHED> </BOXHD> <ROW> <ENT I="01">(1) Not exceeding $500,000</ENT> <ENT>The contracting officer, as provided in FAR 6.304(a)(1)</ENT> <ENT>Not applicable.</ENT> </ROW> <ROW> <ENT I="01">(2) Over $500,000 but not exceeding $10 million</ENT> <ENT>Contracting Activity Competition Advocate (see 806.501(b) and (c)) unless that Advocate is the contracting officer</ENT> <ENT>The Agency Competition Advocate (see 806.501(a)).</ENT> </ROW> <ROW> <ENT I="01">(3) Over $10 million but not exceeding $50 million</ENT> <ENT>Agency Competition Advocate</ENT> <ENT>Not applicable.</ENT> </ROW> <ROW> <ENT I="01">(4) Over $50 million</ENT> <ENT>Senior Procurement Executive (see 802.100)</ENT> <ENT>Not applicable.</ENT> </ROW> </GPOTABLE> <PRTPAGE P="172"/> <P>(b) For class justifications specified in FAR 6.304(c), the contracting officer must obtain the approval of the Agency Competition Advocate for all proposed justifications with an estimated value of up to $50 million. The contracting officer must obtain the approval of the SPE for all proposed justifications with an estimated value of more than $50 million.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 806.5—Competition Advocates</HD> <SECTION> <SECTNO>806.501</SECTNO> <SUBJECT>Requirement.</SUBJECT> <P>(a) The Associate Deputy Assistant Secretary for Acquisitions is the Agency Competition Advocate. The Agency Competition Advocate may further delegate authority to other VA officials in VA Administrations and staff offices.</P> <P>(b) The Executive Director and Chief Operating Officer, National Acquisition Center, is the Contracting Activity Competition Advocate for the Center.</P> <P>(c) Each HCA (see Subpart 802.1) will serve as the Contracting Activity Competition Advocate in all other cases.</P> <P>(d) The authority in paragraphs (b) and (c) of this section is not delegable.</P> </SECTION> <SECTION> <SECTNO>806.570</SECTNO> <SUBJECT>Planning requirements.</SUBJECT> <P>(a) Each Contracting Activity Competition Advocate must do the following:</P> <P>(1) Develop a Competition Plan.</P> <P>(2) Incorporate the Plan in the internal operating procedures of the facility or organization in which the contracting activity is located.</P> <P>(3) Obtain the endorsement and support of the facility or staff office director.</P> <P>(4) Ensure that the services and offices that the contracting activity supports understand the plan.</P> <P>(b) At a minimum, the Competition Plan must include the following:</P> <P>(1) Approval requirements for other than full and open competition specified in FAR 6.304.</P> <P>(2) A description of the synopsis requirements in FAR Subpart 5.2 to ensure that responsible staff fully understand the advance procurement planning that is required.</P> <P>(3) A description of how to integrate the Competition Plan into advance procurement planning.</P> <P>(4) A listing of obstacles to competition and a proposal for overcoming them.</P> <P>(5) A method for increasing cost competition for contracts and competition on other significant factors.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 807</EAR> <HD SOURCE="HED">PART 807—ACQUISITION PLANNING</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 807.1—Acquisition Plans</HD> <SECHD>Sec.</SECHD> <SECTNO>807.103</SECTNO> <SUBJECT>Agency-head responsibilities.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 807.3—Contractor Versus Government Performance</HD> <SECTNO>807.300</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <SECTNO>807.304-77</SECTNO> <SUBJECT>Right of first refusal.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 807.1—Acquisition Plans</HD> <SECTION> <SECTNO>807.103</SECTNO> <SUBJECT>Agency-head responsibilities.</SUBJECT> <P>The authority to prescribe procedures in FAR 7.103 is delegated to the SPE and is further delegated to the DSPE.</P> </SECTION> </SUBPART> <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 the use of VAAR clause at 852.207-70, Report of employment under commercial activities, when contracting for commercial services under Office of Management and Budget (OMB) Circular A-76 or VA's cost comparison process. The cost comparison process is used by VA to determine whether to use commercial or Government resources to provide commercial services.</P> </SECTION> <SECTION> <SECTNO>807.304-77</SECTNO> <SUBJECT>Right of first refusal.</SUBJECT> <P>(a) In addition to the Right of First Refusal of Employment clause specified in FAR 52.207-3, the contracting officer must include the clause “Report of Employment Under Commercial Activities” at 852.207-70 in all cost comparison solicitations where VA personnel may be displaced. This clause is primarily intended to verify that the <PRTPAGE P="173"/>contractor is meeting its obligation to provide Federal workers who are adversely affected by the contract award and who are qualified for the jobs the first opportunity for employment openings created by the contract.</P> <P>(b) The Report of Employment Under Commercial Activities clause is also prescribed to avoid inappropriate severance payment. To implement the clause, the contracting officer (or COTR) must first obtain a list of Federal personnel who will be adversely affected as a result of the anticipated contract from the servicing Human Resources Service office. The list should be requested as soon as a preliminary determination is made to contract out a function subject to OMB Circular 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>808.002</SECTNO> <SUBJECT>Priorities for use of Government supply sources.</SUBJECT> <SUBPART> <HD SOURCE="HED">Subpart 808.4—Federal Supply Schedules</HD> <SECTNO>808.402</SECTNO> <SUBJECT>General.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 808.8—Acquisition of Printing and Related Supplies</HD> <SECTNO>808.802</SECTNO> <SUBJECT>Policy.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(c) and (d); and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>808.002</SECTNO> <SUBJECT>Priorities for use of Government supply sources.</SUBJECT> <P>(a) <E T="03">Supplies.</E> (1) As used in FAR 8.002(a)(1)(i), the term “agency inventories” includes Supply Fund Stock and VA Excess.</P> <P>(2) A national committed use contract awarded by the VA National Acquisition Center has a priority between wholesale supply sources (FAR 8.002(a)(1)(v)) and mandatory Federal Supply Schedules (FAR 8.002(a)(1)(vi)).</P> <P>(3) Federal Supply Schedule contracts awarded by the VA National Acquisition Center in Federal Supply Classification (FSC) Groups 65 and 66 shall be mandatory for use by VA and shall have the same order of priority as mandatory Federal Supply Schedules (FAR 8.002(a)(1)(vi)). VA contracting officers must place orders against Federal Supply Schedules contracts awarded by the VA National Acquisition Center in FSC Groups 65 and 66 in the following descending order of priority:</P> <P>(i) Nationally awarded Blanket Purchase Agreements (BPAs), issued by the VA National Acquisition Center against Federal Supply Schedules.</P> <P>(ii) Multi-VISN, single-VISN, or locally awarded BPAs, issued by VISN, regional, or local VA contracting officers against Federal Supply Schedules.</P> <P>(iii) Federal Supply Schedules without BPAs.</P> <P>(4) Indefinite delivery indefinite quantity (IDIQ) contracts, awarded by VISN, regional, or local facility VA contracting officers, for supplies not covered by national committed use contracts or Federal Supply Schedule contracts shall have an order of priority between optional use Federal Supply Schedules (FAR 8.002(1)(a)(vii)) and commercial sources (including educational and nonprofit institutions) (FAR 8.002(1)(a)(viii)). VA contracting officers must place delivery orders against IDIQ contracts, awarded by VISN, regional, or a local facility contracting officers, for supplies not covered by national committed use contracts or Federal Supply Schedule contracts in the following descending order of priority:</P> <P>(i) VISN or regionally awarded contracts.</P> <P>(ii) Locally awarded contracts.</P> <P>(5) Open market purchases (purchases not falling within any of the higher priorities in paragraphs (a)(2) through (4) of this section) have the same priority as commercial sources (including educational and nonprofit institutions) (FAR 8.002(1)(a)(viii)).</P> <P>(b) <E T="03">Unusual or compelling urgency.</E> The contracting officer may use a source lower in priority than as specified in paragraph (a) of this section when the need for supplies or services is of an unusual or compelling urgency (see FAR 6.302-2). The Contracting Officer must include a justification for each deviation in the procurement file.<PRTPAGE P="174"/> </P> <P>(c) <E T="03">Eligible Beneficiaries.</E> (1) A contracting officer may authorize an acquisition from the Veterans Canteen Service or a commercial source when a VA healthcare official (e.g., social worker, physician) determines that personal selection of shoes, clothing, and incidentals will result in a therapeutic benefit to an eligible beneficiary.</P> <P>(2) The contracting officer must cite Federal Prison Industries, Inc., clearance No. 1206 in the purchase document for any purchase from a commercial source of dress shoes similar to Federal Prison Industries, Inc., Style No. 86-A.</P> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart 808.4—Federal Supply Schedules</HD> <SECTION> <SECTNO>808.402</SECTNO> <SUBJECT>General.</SUBJECT> <P>The Executive Director and Chief Operating Officer, VA National Acquisition Center, advertises, negotiates, awards, administers, and issues the Federal Supply Schedules for Federal Supply Classification Groups 62, 65, and 89 and for cost-per-test services under Group 66.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 808.8—Acquisition of Printing and Related Supplies</HD> <SECTION> <SECTNO>808.802</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>The Director, Publications Staff, Office of Acquisition and Materiel Management, VA Central Office, is the Central Printing Authority for VA (see FAR 8.802(b)).</P> </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</SECTNO> <SUBJECT>Standards.</SUBJECT> <SECTNO>809.104-2</SECTNO> <SUBJECT>Special standards.</SUBJECT> <SECTNO>809.106</SECTNO> <SUBJECT>Preaward surveys.</SUBJECT> <SECTNO>809.106-1</SECTNO> <SUBJECT>Conditions for preaward surveys.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 809.2—Qualifications Requirements</HD> <SECTNO>809.201</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>809.202</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>809.204</SECTNO> <SUBJECT>Responsibilities for establishment of a qualification requirement.</SUBJECT> <SECTNO>809.206</SECTNO> <SUBJECT>Acquisitions subject to qualification requirements.</SUBJECT> <SECTNO>809.206-1</SECTNO> <SUBJECT>General.</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>809.402</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>809.404</SECTNO> <SUBJECT>Excluded Parties List System.</SUBJECT> <SECTNO>809.405</SECTNO> <SUBJECT>Effect of listing.</SUBJECT> <SECTNO>809.405-1</SECTNO> <SUBJECT>Continuation of current contracts.</SUBJECT> <SECTNO>809.405-2</SECTNO> <SUBJECT>Restrictions on subcontracting.</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> <SECTNO>809.470</SECTNO> <SUBJECT>Fact-finding procedures.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 809.5—Organizational and Consultant Conflicts of Interest</HD> <SECTNO>809.503</SECTNO> <SUBJECT>Waiver.</SUBJECT> <SECTNO>809.504</SECTNO> <SUBJECT>Contracting officer responsibilities.</SUBJECT> <SECTNO>809.507</SECTNO> <SUBJECT>Solicitation provisions and contract clause.</SUBJECT> <SECTNO>809.507-1</SECTNO> <SUBJECT>Solicitation provisions.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 809.1—Responsible Prospective Contractors</HD> <SECTION> <SECTNO>809.104</SECTNO> <SUBJECT>Standards.</SUBJECT> </SECTION> <SECTION> <SECTNO>809.104-2</SECTNO> <SUBJECT>Special standards.</SUBJECT> <P>(a) For a pre-award survey prescribed by 809.106-1, a contracting officer must develop special standards of sanitation applicable to the acquisition of subsistence and services prescribed by 809.106-1(a).</P> <P>(b) An appropriate specialist will assist the contracting officer in developing the special standards under paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>809.106</SECTNO> <SUBJECT>Pre-award surveys.</SUBJECT> </SECTION> <SECTION> <SECTNO>809.106-1</SECTNO> <SUBJECT>Conditions for pre-award surveys.</SUBJECT> <P>(a) Except as provided in paragraphs (b) through (e) of this section, a committee under the direction of the contracting officer and composed of representatives of the medical service or <PRTPAGE P="175"/>using service chiefs or designees appointed by the facility or VISN director will conduct a pre-award on-site evaluation of the plant, personnel, equipment and processes of the prospective contractor for contracts covering the products and services of the following:</P> <P>(1) Bakeries.</P> <P>(2) Dairies.</P> <P>(3) Ice cream plants.</P> <P>(4) Laundry and dry cleaning activities.</P> <P>(b) Before any inspection, the contracting officer will determine whether another VA facility or another Federal agency has recently inspected and approved the plant.</P> <P>(1) The contracting officer will accept an approved inspection report of another VA facility.</P> <P>(2) If another Federal agency made a plant inspection not more than 6 months before the proposed VA contract period, the contracting officer may accept an approved inspection report of that other Federal agency as satisfactory evidence that the facilities of the bidder meet the bid requirements.</P> <P>(c) VA will not conduct a pre-award on-site evaluation of a dairy plant when VA receives an acceptable bid from a supplier of dairy products designated as No.1 in the Federal Specifications if the following conditions are met:</P> <P>(1) The supplier has received 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.</P> <P>(2) The rating is current (not over 2 years old) and has been determined by a certified State milk sanitation rating officer in the State of origin or by the Public Health Service. The contractor must maintain the rating of 90 percent or more during the period of the contract.</P> <P>(3) The solicitation specifications must include the requirements in paragraphs (c)(1) and (2) of this section.</P> <P>(d) A dairy plant that does not meet paragraph (c) of this section may offer only dairy products designated as No. 2 in the Federal Specifications. VA will make an award to such a firm only after it completes a pre-award on-site evaluation conducted under paragraph (a) of this section.</P> <P>(e) Before it makes an open market purchase of fresh bakery products (such as pies, cakes, and cookies), VA will inspect and evaluate the plant where these products are produced or prepared under paragraph (a) of this section. VA will make an on-site evaluation at least annually and record the results on VA Form 10-2079, Inspection Report of Bakery.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 809.2—Qualifications Requirements</HD> <SECTION> <SECTNO>809.201</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purposes of this subpart:</P> <P> <E T="03">VA QPL</E> means a VA Qualified Products List, a list of products qualified by the VA under VA specifications, or purchase descriptions, or commercial item descriptions.</P> <P> <E T="03">VISN QPL</E> means a VISN Qualified Products List, a list of products qualified by a VISN under VA specifications, or purchase descriptions, or commercial item descriptions.</P> </SECTION> <SECTION> <SECTNO>809.202</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>The HCA may sign a justification required by FAR 9.202(a)(1).</P> </SECTION> <SECTION> <SECTNO>809.204</SECTNO> <SUBJECT>Responsibilities for establishment of a qualification requirement.</SUBJECT> <P>(a) Under FAR Subpart 9.2, VA may create VA QPLs for use on individual solicitations or on multiple solicitations issued by one or more VA facilities.</P> <P>(b) An HCA or designee must support the creation of a VA QPL using one or more of the following justifications:</P> <P>(1) The time required for testing the product after award would unduly delay product delivery.</P> <P>(2) The cost of repetitive product testing would be excessive.</P> <P>(3) Testing the product would require purchasing an expensive or complicated apparatus not commonly available.</P> <P>(4) It is in the Government's interest to be assured before contract award that the product is satisfactory for its intended use.<PRTPAGE P="176"/> </P> <P>(5) Determining acceptability would require providing product performance data to supplement technical requirements in the specification.</P> <P>(6) Conducting a test would result in substantial or repetitive rejections.</P> <P>(7) VA cannot economically develop clear, professional specifications for the product performance, balance, design, or construction, and professional judgment is required to determine whether the product is acceptable under VA requirements.</P> <P>(c) If VA plans to establish a VA QPL for any given product, the contracting officer may limit known suppliers to suppliers whose products are covered by a Federal Supply Schedule contract, as provided at FAR Subpart 8.4.</P> <P>(d) VA will pay the costs to inspect and test a product sample submitted under this section.</P> <P>(1) The product supplier must pay for the sample and its transportation to the place of inspecting and testing.</P> <P>(2) After inspection and testing, VA will return any product sample to the supplier “as is” unless:</P> <P>(i) The inspection or test destroys the sample; or</P> <P>(ii) The supplier authorizes VA to retain or dispose of the sample.</P> <P>(e) Once VA accepts a product for the VA QPL, VA may review the product for compliance with the applicable specification at any time.</P> <P>(1) Where there is a variance between a VA specification that was the basis for the VA QPL and the product furnished by the supplier, the supplier must furnish an item that conforms to the VA specification.</P> <P>(2) If the supplier fails to or is unable to provide a product that conforms to the applicable VA specification, the product will be removed from the VA QPL.</P> <P>(f) VA's acceptance of a product for listing on the VA QPL does not:</P> <P>(1) Guarantee that VA will accept the product in any future purchase; or</P> <P>(2) Constitute a waiver of the specifications as to acceptance, inspection, testing, or other provisions of any future contract involving the product.</P> </SECTION> <SECTION> <SECTNO>809.206</SECTNO> <SUBJECT>Acquisitions subject to qualification requirements.</SUBJECT> </SECTION> <SECTION> <SECTNO>809.206-1</SECTNO> <SUBJECT>General.</SUBJECT> <P>The HCA may determine that an emergency exists, as provided in FAR 9.206-1(b).</P> </SECTION> <SECTION> <SECTNO>809.270</SECTNO> <SUBJECT>Qualified products for convenience/labor-saving foods.</SUBJECT> <P>(a) Each VISN Nutrition and Food Service representative is authorized to establish a common VISN QPL for convenience and labor-saving foods for use at medical facilities within the representative's VISN.</P> <P>(1) The VISN Nutrition and Food Service representative must notify the Director, Nutrition and Food Service, VA Central Office, of the establishment or amendment of any VISN QPL.</P> <P>(2) To avoid unnecessary duplication within a VISN, for medical facilities using an applicable VISN QPL under paragraph (b) of this section, the VISN Nutrition and Food Service representative must coordinate and consolidate test results and recommendations.</P> <P>(b) Each medical facility may:</P> <P>(1) Use its VISN QPL; and</P> <P>(2) Test food of its choice, provided that the facility submits test results to the VISN Nutrition and Food Service representative.</P> <P>(c) The VISN representative must provide a copy of each approved VISN QPL to the following:</P> <P>(1) Each contracting office in the VISN.</P> <P>(2) The Director, Nutrition and Food Service, VA Central Office.</P> <P>(3) Upon request, the Office of Acquisition and Materiel Management, VA Central Office.</P> </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 supplements provisions of the FAR concerning procedures and related actions for the debarment and suspension of contractors.</P> </SECTION> <SECTION> <SECTNO>809.402</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) When VA receives information that another agency is pursuing a debarment or suspension identical to a VA action against the same contractor, <PRTPAGE P="177"/>the Debarment and Suspension (D&S) Committee will coordinate prospective action with the appropriate official of the other agency to establish a lead agency.</P> <P>(b) The D&S Committee will provide the designated lead agency with any information relevant to the action for consideration in the decision-making process.</P> <P>(c) The D&S Committee will maintain close coordination with the appropriate official through completion of a final debarment or suspension decision.</P> </SECTION> <SECTION> <SECTNO>809.404</SECTNO> <SUBJECT>Excluded Parties List System.</SUBJECT> <P>Acquisition Resources Service, Office of Acquisition and Materiel Management, is responsible for the actions described in FAR 9.404(c).</P> </SECTION> <SECTION> <SECTNO>809.405</SECTNO> <SUBJECT>Effect of listing.</SUBJECT> <P>The authority under FAR 9.405(a), 9.405(d)(2), and 9.405(d)(3) to determine whether to solicit from, evaluate bids or proposals from, or award contracts to contractors whose names appear on the Excluded Parties List System is delegated to the SPE and is further delegated to the DSPE.</P> </SECTION> <SECTION> <SECTNO>809.405-1</SECTNO> <SUBJECT>Continuation of current contracts.</SUBJECT> <P>Authority to make the determinations under FAR 9.405-1 is delegated to the SPE and is further delegated to the DSPE.</P> </SECTION> <SECTION> <SECTNO>809.405-2</SECTNO> <SUBJECT>Restrictions on subcontracting.</SUBJECT> <P>When a subcontract is subject to Government consent, authority to make the written determination required under FAR 9.405-2 consenting to a contractor's use of a subcontractor who is debarred, suspended, or proposed for debarment is delegated to the SPE and is further delegated to the DSPE.</P> </SECTION> <SECTION> <SECTNO>809.406</SECTNO> <SUBJECT>Debarment.</SUBJECT> </SECTION> <SECTION> <SECTNO>809.406-1</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) As provided in FAR 9.406-1(c), authority to determine whether to continue business dealings between VA and a contractor debarred or proposed for debarment is delegated to the SPE and is further delegated to the DSPE.</P> <P>(b) For the purposes of FAR 9.406-1, the DSPE is the debarring official under the Federal Management Regulation at 41 CFR 102-117.295.</P> <P>(c) Additional factors that a debarring official should consider before arriving at a debarment decision include the following:</P> <P>(1) Whether the contractor had a mechanism, such as a hotline, by which employees could have reported suspected instances of improper conduct, and instructions in place that encouraged employees to make such reports.</P> <P>(2) Whether the contractor conducted 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>(3) Whether the contractor conducted internal and external audits as appropriate.</P> <P>(4) Whether the contractor timely reported to appropriate Government officials any suspected or possible violations of law in connection with Government contracts or any other irregularities in connection with such contracts.</P> </SECTION> <SECTION> <SECTNO>809.406-3</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>(a) Any individual may submit a recommendation to debar a contractor to the DSPE. The recommendation to debar must be supported with evidence of a cause for debarment listed in FAR 9.406-2. When the DSPE receives a recommendation for debarment, he or she will refer the matter to the D&S Committee. If the reporting individual is a VA employee and the recommendation to debar is based on possible criminal or fraudulent activities, the VA employee must report the circumstances to the VA Office of Inspector General before making a recommendation to the DSPE.</P> <P>(b) When the D&S Committee finds evidence of a cause for debarment, as listed in FAR 9.406-2, with or without a recommendation, it will conduct a fact-finding and present facts to the debarring official.</P> <P>(c) If the debarring official finds a basis for proposing a contractor for debarment, the D&S Committee will prepare a notice of proposed debarment <PRTPAGE P="178"/>under FAR 9.406-3(c) for the signature of the debarring official. The signed notice of proposed debarment will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested. In the case of a business, the D&S Committee may send the notice of proposed debarment to any partner, principal, officer, director, owner or co-owner, or joint venture. The D&S Committee concurrently must post notice of proposed debarment to the General Services Administration Excluded Parties List System pending a debarment decision.</P> <P>(d) If VA does not receive a reply from the contractor within 45 calendar days of sending the notice of proposed debarment, the D&S Committee will prepare a recommendation and refer the case to the debarring official for a decision on whether or not to debar based on the information available.</P> <P>(e) If VA receives a reply from the contractor within 45 calendar days of sending the notice of proposed debarment, the D&S Committee must consider the information in the reply before the D&S Committee makes its recommendation to the debarring official.</P> <P>(f) The D&S Committee, upon the request of the contractor proposed for debarment, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S Committee to present information or argument in person or through a representative. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the proceeding for the debarring official.</P> <P>(g) If the D&S Committee finds that the contractor's submission in opposition to the debarment raises a genuine dispute over facts material to the proposed debarment and the debarment action is not based on a conviction or civil judgment, then the D&S Committee shall submit to the debarring official the information establishing the dispute of material facts. If the debarring official agrees that there is a genuine dispute of material facts, the debarring official shall refer the dispute to a designee for resolution pursuant to 809.470.</P> <P>(h) If there are no disputes over material facts, the debarment action is based on a conviction or civil judgment, or all disputes over material facts have been resolved pursuant to 809.470, the debarring official will make a decision on the basis of all information available, including findings of facts and oral or written arguments presented or submitted to the D&S Committee by the contractor. The D&S Committee must update the status of the action on the General Services Administration Excluded Parties List System.</P> </SECTION> <SECTION> <SECTNO>809.406-4</SECTNO> <SUBJECT>Period of debarment.</SUBJECT> <P>(a) Except in an unusual circumstance, the period of debarment will not exceed 3 years. The debarring official will base the period of debarment on the circumstances surrounding the cause for debarment.</P> <P>(b) The DSPE may remove a debarment, amend its scope, or reduce the period of debarment based on a D&S Committee recommendation if:</P> <P>(1) VA has debarred the contractor;</P> <P>(2) The action is indicated after the DSPE reviews documentary evidence submitted by or on behalf of the contractor setting forth the appropriate grounds for granting relief. Appropriate grounds include newly discovered material evidence, reversal of a conviction, bona fide change of ownership or management, elimination of the cause for which debarment was imposed, or any other appropriate grounds.</P> </SECTION> <SECTION> <SECTNO>809.407</SECTNO> <SUBJECT>Suspension.</SUBJECT> </SECTION> <SECTION> <SECTNO>809.407-1</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) As provided in FAR 9.407-1(d), authority to determine whether to continue business dealings between VA and a suspended contractor is delegated to the SPE and is further delegated to the DSPE.</P> <P>(b) For the purposes of FAR 9.407-1, the DSPE is the suspending official under the Federal Management Regulation at 41 CFR 102-117.295.</P> </SECTION> <SECTION> <PRTPAGE P="179"/> <SECTNO>809.407-3</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>(a) Any individual may submit a recommendation to suspend a contractor to the DSPE. The recommendation to suspend must be supported with evidence of a cause for suspension listed in FAR 9.407-2. When the DSPE receives a recommendation for suspension, he or she will refer the matter to the D&S Committee. If the reporting individual is a VA employee and the recommendation to suspend is based on possible criminal or fraudulent activities, the VA employee must report the circumstances to the VA Office of Inspector General before making a recommendation to the DSPE.</P> <P>(b) When the D&S Committee finds evidence of a cause for suspension, as listed in FAR 9.407-2, with or without a recommendation, it will conduct a fact-finding and present facts and recommendations to the suspending official.</P> <P>(c) If the suspending official finds a basis for suspending a contractor, the D&S Committee will prepare a notice of suspension under FAR 9.407-3(c) for the signature of the suspending official. The signed notice of suspension will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested. In the case of a business, the D&S Committee may send the notice of suspension to any partner, principal, officer, director, owner or co-owner, or joint venture. The D&S Committee concurrently must post notice of suspension to the General Services Administration Excluded Parties List System pending completion of investigation and any ensuing legal proceedings.</P> <P>(d) If VA receives a reply from the contractor within 45 calendar days of sending the notice of suspension, the D&S Committee must consider the information in the reply before the Committee makes further recommendations to the suspending official. The D&S Committee, upon the request of a suspended contractor, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S Committee to present information or argument in person or through a representative. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the proceeding for the suspending official.</P> <P>(e) In actions not based on an indictment, if the D&S Committee finds that the contractor's submission in opposition to the suspension raises a genuine dispute over facts material to the suspension, the D&S Committee shall submit to the suspending official the information establishing the dispute of material facts. However, the D&S Committee must first coordinate any further proceeding regarding the facts in dispute with the Department of Justice or with a State prosecuting authority in a case involving a State jurisdiction. VA will take no further action to determine disputed material facts pursuant to this section or 809.470 if the Department of Justice or a State prosecuting authority advises VA that additional proceedings to make such a determination would prejudice Federal or State legal proceedings.</P> <P>(f) If the suspending official agrees that there is a genuine dispute of material facts, the suspending official shall refer the dispute to the designee for resolution pursuant to 809.470.</P> </SECTION> <SECTION> <SECTNO>809.470</SECTNO> <SUBJECT>Fact-finding procedures.</SUBJECT> <P>The provisions of this section constitute the procedures to be used to resolve genuine disputes of fact pursuant to 809.406-3 and 809.407-3 of this chapter. The DSPE shall appoint a designee to conduct the fact-finding. OGC shall represent VA at any fact-finding hearing and may present witnesses for VA and question any witnesses presented by the contractor. The hearings shall be conducted in Washington, DC. The proceedings before the fact-finder will be limited to a finding of the facts in dispute, as determined by the debarring or suspending official. The fact-finder will establish the date for the fact-finding hearing, normally to be held within 45 working days of the submission of the dispute.</P> <P>(a) The Government's representative and the contractor will have an opportunity to present evidence relevant to the facts at issue. The contractor may <PRTPAGE P="180"/>appear in person or through a representative at the fact-finding hearing. The contractor may submit documentary evidence, present witnesses, and confront any person the agency presents.</P> <P>(b) Witnesses may testify in person. Witnesses will be reminded of the official nature of the proceedings and that any false testimony given is subject to criminal prosecution. Witnesses are subject to cross-examination. Hearsay evidence may be presented and will be given appropriate weight by the fact-finder.</P> <P>(c) The proceedings shall be transcribed and a copy of the transcript shall be made available at cost to the contractor upon request, unless the contractor and the fact-finder, by mutual agreement, waive the requirement for a transcript.</P> <P>(d) The fact-finder shall determine the disputed fact(s) by a preponderance of the evidence. As required by FAR 9.406-3(d)(2)(i) and 9.407-3(d)(2)(i), written findings of fact shall be prepared by the fact-finder. A copy of the findings of fact shall be provided to the debarring or suspending official, the Government's representative, and the contractor.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 809.5—Organizational and Consultant Conflicts of Interest</HD> <SECTION> <SECTNO>809.503</SECTNO> <SUBJECT>Waiver.</SUBJECT> <P>The HCA is delegated authority to waive any general rule or procedure of FAR Subpart 9.5. As provided at FAR 9.503, this authority may not be redelegated.</P> </SECTION> <SECTION> <SECTNO>809.504</SECTNO> <SUBJECT>Contracting officer responsibilities.</SUBJECT> <P>(a) A contracting officer must determine whether awarding a contract will result in an actual or potential conflict of interest for the contractor.</P> <P>(1) The contracting officer will make a conflict of interest determination after reviewing information submitted by offerors, evaluating information gathered under FAR 9.506, and exercising his or her own judgment.</P> <P>(2) In evaluating possible organizational conflicts of interest, the contracting officer may obtain the advice of legal counsel and the assistance of technical specialists.</P> <P>(b) If the contracting officer determines that there is no way to avoid or mitigate an organizational conflict of interest arising from a contract award, the contracting officer may disqualify the offeror from award under FAR 9.504(e).</P> <P>(c) Even if awarding a contract will result in an organizational conflict of interest, the contracting officer may request a waiver from his or her HCA if awarding the contract is in the best interests of the Government.</P> <P>(1) Before granting a waiver request under this paragraph, the HCA must obtain the concurrence of OGC.</P> <P>(2) If the HCA grants a waiver request, the contracting officer may set contract terms and conditions to reduce any organizational conflict of interest to the greatest extent possible.</P> <P>(d) In any solicitation for the services addressed at FAR 9.502, the contracting officer must require that each offeror submits a statement with its offer disclosing all facts relevant to an existing or potential organizational conflict of interest involving the contractor or any subcontractor during the life of the contract (see 809.507-1(b) and 852.209-70).</P> </SECTION> <SECTION> <SECTNO>809.507</SECTNO> <SUBJECT>Solicitation provisions and contract clause.</SUBJECT> </SECTION> <SECTION> <SECTNO>809.507-1</SECTNO> <SUBJECT>Solicitation provisions.</SUBJECT> <P>(a) While conflicts of interest may not presently exist, award of certain types of contracts may create potential future organizational conflicts of interest (see FAR 9.508 for examples). If a solicitation may create a potential future organizational conflict of interest, the contracting officer shall insert a provision in the solicitation imposing an appropriate restraint on the contractor's eligibility for award of contracts in the future. Under FAR 9.507-1, the restraint must be appropriate to the nature of the conflict and may exclude the contractor from award of one or more contracts in the future.</P> <P>(b) The clause at 852.209-70, Organizational conflicts of interest, must be included in any solicitation for the services addressed in FAR 9.502.</P> </SECTION> </SUBPART> </PART> <PART> <PRTPAGE P="181"/> <EAR>Pt. 811</EAR> <HD SOURCE="HED">PART 811—DESCRIBING AGENCY NEEDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 811.0—Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>811.001</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 811.1—Selecting and Developing Requirements Documents</HD> <SECTNO>811.103</SECTNO> <SUBJECT>Market acceptance.</SUBJECT> <SECTNO>811.103-70</SECTNO> <SUBJECT>Technical industry standards.</SUBJECT> <SECTNO>811.104</SECTNO> <SUBJECT>Use of brand name or equal purchase descriptions.</SUBJECT> <SECTNO>811.104-70</SECTNO> <SUBJECT>Brand name or equal purchase descriptions.</SUBJECT> <SECTNO>811.104-71</SECTNO> <SUBJECT>Purchase description clauses.</SUBJECT> <SECTNO>811.104-72</SECTNO> <SUBJECT>Limited application of brand name or equal.</SUBJECT> <SECTNO>811.104-73</SECTNO> <SUBJECT>Bid samples.</SUBJECT> <SECTNO>811.104-74</SECTNO> <SUBJECT>Bid evaluation and award.</SUBJECT> <SECTNO>811.104-75</SECTNO> <SUBJECT>Procedure for negotiated procurements.</SUBJECT> <SECTNO>811.105</SECTNO> <SUBJECT>Items peculiar to one manufacturer.</SUBJECT> <SECTNO>811.107</SECTNO> <SUBJECT>Contract clauses.</SUBJECT> </SUBPART> <SUBPART> <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>Contract clause.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 811.4—Delivery or Performance Schedules</HD> <SECTNO>811.404</SECTNO> <SUBJECT>Contract clause.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 811.5—Liquidated Damages</HD> <SECTNO>811.501</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>811.503</SECTNO> <SUBJECT>Contract clause.</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>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>811.001</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purposes of this part:</P> <P> <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 the product is offered for sale to the public by the particular manufacturer, producer or distributor.</P> <P> <E T="03">Salient characteristics</E> means those particular characteristics that specifically describe the essential physical and functional features of the material or service required. They are features that are identified in the specifications as a mandatory requirement that a proposed “equal” product or material must possess for the bid to be considered responsive.</P> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart 811.1—Selecting and Developing Requirements Documents</HD> <SECTION> <SECTNO>811.103</SECTNO> <SUBJECT>Market acceptance.</SUBJECT> </SECTION> <SECTION> <SECTNO>811.103-70</SECTNO> <SUBJECT>Technical industry standards.</SUBJECT> <P>Where items are required to conform to technical industry standards, such as those adopted by: Underwriters Laboratories, Inc.; Factory Mutual Laboratories; American Gas Association; American Society of Mechanical Engineers; National Electrical Manufacturers Association; American Society of Heating, Refrigerating and Air-Conditioning Engineers; or similar organizations, where such standards are generally recognized and accepted in the industry involved, the invitation for bids, request for proposals or request for quotations will so state. In no instance, where there is a multiple choice of laboratories, shall the invitation for bid, request for proposal, or request for quotation indicate that the label or certificate of only one such laboratory is acceptable. The contracting officer shall include the provision at 852.211-72, Technical industry standards, in solicitations requiring conformance to technical industry standards unless comparable provisions are contained in the item specification.</P> </SECTION> <SECTION> <SECTNO>811.104</SECTNO> <SUBJECT>Use of brand name or equal purchase descriptions.</SUBJECT> </SECTION> <SECTION> <SECTNO>811.104-70</SECTNO> <SUBJECT>Brand name or equal purchase descriptions.</SUBJECT> <P>(a) The specification writer may use purchase descriptions that contain references to one or more brand name products only in accordance with 811.104-71 through 811.104-75.</P> <P>(b) Purchase descriptions that contain references to one or more brand name products must be followed by the words “or equal,” except when the acquisition of a specific brand name is <PRTPAGE P="182"/>fully justified under FAR Subpart 6.3 and 806.3. If more than one brand name is acceptable, the contracting officer should list the known acceptable brand name products in the solicitation.</P> <P>(c) Where a “brand name or equal” purchase description is used, the contracting officer must give bidders an opportunity to offer products other than those specifically referenced by brand name. Following bid opening or receipt of offers, the contracting officer must determine if non-“brand name” substitute products fully meet the salient characteristics listed in the solicitation.</P> <P>(d) When using a “brand name or equal” purchase description, the specification writer must set forth those salient physical, functional, or other characteristics of the referenced products that are essential to the minimum needs of the Government. For example, when interchangeability of parts is required, the specification writer must specify this requirement. The purchase description must contain the following information to the extent available:</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.</P> <P>(3) Name of manufacturer, producer, or distributor of each brand name product referenced (and address if not well known).</P> <P>(4) Any other information necessary to describe the item required.</P> <P>(e) When necessary to adequately describe the item required, the contracting officer may use an applicable commercial catalog description or pertinent extract if the description is identified in the solicitation as being that of the particular named manufacturer, producer, or distributor. The contracting officer must insure that a copy of any catalog referenced (except a parts catalog) is available on request for review by bidders at the purchasing office.</P> <P>(f) Except as noted in paragraph (d) of this section, the specification writer must not include in a purchase description either minimum or maximum restrictive dimensions, weights, materials, or other salient characteristics that are unique to a brand name product or that would tend to eliminate competition or other products that are only marginally outside the restrictions. However, the specification writer may include in a purchase description restrictive dimensions, weights, materials, or other salient characteristic if:</P> <P>(1) The user determines in writing that the restrictions are essential to the Government's requirements;</P> <P>(2) The specification writer includes the brand name of the product in the purchase description; and,</P> <P>(3) The contracting officer makes all other determinations required by 811.105.</P> <P>(g) The contracting officer must include in the contract file, as appropriate, written justifications for using the “brand name or equal” description, the contracting officer's determinations, and bidder submissions.</P> </SECTION> <SECTION> <SECTNO>811.104-71</SECTNO> <SUBJECT>Purchase description clauses.</SUBJECT> <P>(a) When a solicitation uses “brand name or equal” purchase descriptions, the contracting officer must include in the solicitation the clause at 852.211-73, Brand name or equal, and the provision set forth at FAR 52.214-21, Descriptive Literature. The contracting officer must review the requirements at FAR 14.202-5 when using the descriptive literature provision.</P> <P>(b) When a “brand name or equal” purchase description is included in an invitation for bids, the contracting officer shall insert the following after each item so described in the solicitation, for completion by the bidder: </P> <EXTRACT> <P>Bidding on: </P> <FP SOURCE="FP-DASH">Manufacturer name</FP> <FP SOURCE="FP-DASH">Brand</FP> <FP SOURCE="FP-DASH">No.</FP> </EXTRACT> </SECTION> <SECTION> <SECTNO>811.104-72</SECTNO> <SUBJECT>Limited application of brand name or equal.</SUBJECT> <P>If the contracting officer determines that the clause at 852.211-73, Brand name or equal, applies to only certain line items of a solicitation, the requirements of 811.104-71(b) apply to those line items and the contracting officer must include a statement in the solicitation as follows: </P> <EXTRACT> <PRTPAGE P="183"/> <P>The clause entitled “Brand name or equal” applies only to the following line items: [<E T="03">List the line items to which the clause applies</E>]</P> </EXTRACT> </SECTION> <SECTION> <SECTNO>811.104-73</SECTNO> <SUBJECT>Bid samples.</SUBJECT> <P>(a) When a solicitation contains “brand name or equal” purchase descriptions, the contracting officer must not require a bidder who offers brand name products, including component parts, referenced in the descriptions to furnish bid samples of the referenced brand name products.</P> <P>(b) A solicitation may require the submission of bid samples in the case of a bidder offering “or equal” products. If bid samples are required, the contracting officer must include in the solicitation the provision set forth at FAR 52.214-20, Bid Samples.</P> <P>(c) A bidder must furnish all descriptive literature in accordance with and for the purpose set forth in the “Brand Name or Equal” clause, 852.211-73(c)(1) and (c)(2), even though bid samples may not be required.</P> </SECTION> <SECTION> <SECTNO>811.104-74</SECTNO> <SUBJECT>Bid evaluation and award.</SUBJECT> <P>(a) A bid offering products that differ from brand name products referenced in a “brand name or equal” purchase description must be considered for award if the contracting officer determines in accordance with the terms of the clause at 852.211-73, Brand name or equal, that the offered products are clearly identified in the bid and are equal in all material respects to the products specified.</P> <P>(b) In award documents, the contracting officer must include, or incorporate by reference, an identification of the specific products that the contractor is to furnish. The identification must include any brand name and make or model number, descriptive material, and any modifications of brand name products specified in the bid. This requirement also applies 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 852.211-73, Brand name or equal, was applied to the component parts or accessories (see 811.104-72).</P> </SECTION> <SECTION> <SECTNO>811.104-75</SECTNO> <SUBJECT>Procedure for negotiated procurements.</SUBJECT> <P>(a) The specification writer and contracting officer must use the policies and procedures prescribed in 811.104-70 through 811.104-74 as a guide in developing adequate purchase descriptions for negotiated procurements.</P> <P>(b) The contracting officer may adapt the clause at 852.211-73, Brand name or equal, for use in negotiated procurements. When use of the clause is not practical (as may be the case in unusual and compelling urgency purchases), the contracting officer must inform suppliers that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that the offered products are equal in all material respects to the products referenced. The contracting officer must place decisions under this paragraph in writing for the contract file, as appropriate.</P> </SECTION> <SECTION> <SECTNO>811.105</SECTNO> <SUBJECT>Items peculiar to one manufacturer.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, the specification writer must write specifications in accordance with FAR 11.002.</P> <P>(b)(1) When the specification writer determines that a particular physical or functional characteristic of only one product will meet the minimum requirements of VA (see FAR 11.105) or that a “brand name or equal” purchase description must be used (see FAR 11.104), the specification writer must identify the item(s) for the contracting officer and do one of the following:</P> <P>(i) Provide a full written justification of the reason the particular characteristic is essential to the Government's requirements.</P> <P>(ii) Explain why the “brand name or equal” purchase description is necessary.</P> <P>(2) The contracting officer makes the final determination whether restrictive specifications or “brand name or equal” purchase descriptions will be included in the solicitation.</P> </SECTION> <SECTION> <SECTNO>811.107</SECTNO> <SUBJECT>Contract clauses.</SUBJECT> <P>(a) Insert the clause at 852.211-70, Service data manuals, paragraph (a), in solicitations and requests for proposals <PRTPAGE P="184"/>for technical medical and other technical equipment and devices issued by a field facility unless the facility Chief, Engineering Service, indicates that the service data manuals are not needed. The purpose of the clause is to require the manufacturer to provide VA a manual or groups of manuals that will allow for the in-house repair of the equipment purchased.</P> <P>(b) Insert the clause at 852.211-70, Service data manuals, paragraph (b), in solicitations and requests for proposals for mechanical equipment (other than technical medical and other technical equipment and devices) issued by a field station.</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 it is advantageous to VA, use these specifications when procuring supplies and equipment costing less than the simplified acquisition threshold. When purchasing items of perishable subsistence, contracting officers may take into account 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) VA 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 VA use, are contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, Publication No. C8900-SL.</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, must be used by VA 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.</P> <P>(3) Except as authorized in Part 846, a contracting officer must 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 from the DSPE.</P> <P>(4) Items of meat, cured pork and poultry purchased under the Subsistence Prime Vendor national contract or other local procurement sources should be purchased via Commercial Item Descriptions (CID) that require all products meet USDA Grading standards and/or the IMPS as applicable.</P> <P>(c) <E T="03">Department of Veterans Affairs specifications.</E> (1) The Director, Publications Staff, is responsible for developing, publishing, and distributing VA specifications covering printing and binding.</P> <P>(2) VA specifications, as they are revised, are placed in stock in the VA Forms and Publications Depot. The contracting officer may requisition facility requirements for these specifications 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, must require that the paper stocks be in accordance with the Government Paper Specification Standards issued by the Congressional Joint Committee on Printing.</P> <P>(2) All binding or rebinding of books, magazines, pamphlets, newspapers, slip cases, and boxes must be procured in accordance with Government Printing Office (GPO) specifications and must 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 <PRTPAGE P="185"/>(glued); and Lumbinding (sewn). The most suitable type of binding must be procured to satisfy the requirements, based upon the intended use of the bound material.</P> </SECTION> <SECTION> <SECTNO>811.204</SECTNO> <SUBJECT>Contract clause.</SUBJECT> <P>Insert the clause at 852.211-75, Product specifications when product specifications are cited in an invitation for bids or a request for proposals.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 811.4—Delivery or Performance Schedules</HD> <SECTION> <SECTNO>811.404</SECTNO> <SUBJECT>Contract clause.</SUBJECT> <P>When delivery is required by or on a particular date for f.o.b. destination contracts, the contracting officer must add a statement following the Time of Delivery clause in FAR 52.211-8 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 contracting officer must add a statement following this clause 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>811.501</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>The contracting officer must not routinely include a liquidated damages provision in supply or construction contracts, regardless of dollar amount. The decision to include liquidated damages provisions must conform to the criteria in FAR 11.501. In making this decision, the contracting officer must consider 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. The contracting officer must not use a liquidated damages provision for any of the following reasons:</P> <P>(a) As insurance against selection of a non-responsible bidder.</P> <P>(b) As a substitute for efficient contract administration.</P> <P>(c) As a penalty for failure to perform on time.</P> </SECTION> <SECTION> <SECTNO>811.503</SECTNO> <SUBJECT>Contract clause.</SUBJECT> <P>When the contracting officer determines that the Liquidated damages clause prescribed in FAR 52.211-11 or 52.211-12 must be used and where partial performance by the contractor may be to the advantage of the Government, the contracting officer must include the clause in 852.211-74, Liquidated damages, 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, priorities and allocations of critical materials are restricted to projects having a direct connection with supporting current defense needs. VA 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) When it has been technically established that it is not feasible to use a substitute material, the Department of Commerce has agreed to assist the VA in obtaining critical materials for maintenance and repair projects. The Department of Commerce will also, when 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) A contracting officer having problems acquiring critical materials must ascertain all the facts necessary to enable the Department of Commerce to render assistance to VA in acquiring these materials. The contracting officer must submit a request for assistance to the DSPE containing the following information:</P> <P>(1) A description of the maintenance and repair project or the new item.</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 VA contract or purchase order number.<PRTPAGE P="186"/> </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 is necessary to deliver the materials if priority assistance is not provided.</P> <P>(7) The nature and extent of the emergency that will be generated at the station, such as any of the following:</P> <P>(i) Damage to the physical plant.</P> <P>(ii) Impairment of the patient care program.</P> <P>(iii) Creation of safety hazards.</P> <P>(iv) Any other pertinent condition that could result because of failure to secure assistance in obtaining the critical materials.</P> <P>(8) If applicable, a statement that the item required is for use in a construction contract that was authorized by the Director, Office of Construction and 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 812.1—Acquisition of Commercial Items—General</HD> <SECHD>Sec.</SECHD> <SECTNO>812.102</SECTNO> <SUBJECT>Applicability.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 812.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items</HD> <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; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 812.1—Acquisition of Commercial Items—General</HD> <SECTION> <SECTNO>812.102</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) This part shall be used for the acquisition of supplies and services that meet the definition of commercial items at FAR 2.101.</P> <P>(b) Contracting officers shall use the policies in this part in conjunction with the policies and procedures for the solicitation, evaluation, and award prescribed in Parts 813, Simplified Acquisition Procedures, 814, Sealed Bidding, and 815, Contracting by Negotiation, as appropriate for the particular acquisition.</P> <P>(c) Contracts for the acquisition of commercial items are subject to the policies of other parts of this chapter. When a policy in another part of this chapter differs from a policy in this part, this Part 812 applies to the acquisition of commercial items.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 812.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items</HD> <SECTION> <SECTNO>812.301</SECTNO> <SUBJECT>Solicitation provisions and contract clauses for the acquisition of commercial items.</SUBJECT> <P>(a) Regardless of provisions in other parts of the VAAR, contracting officers may use, as appropriate, only those provisions and clauses referred to in this part when acquiring commercial items.</P> <P>(b) Contracting officers may use the provisions and clauses in the following VAAR sections, as appropriate and in accordance with the prescriptions for the provisions and clauses, in requests for quotations, solicitations, and contracts:</P> <P>(1) 852.203-70, Commercial advertising.</P> <P>(2) 852.203-71, Display of Department of Veterans Affairs Hotline poster.</P> <P>(3) 852.207-70, Report of employment under commercial activities.</P> <P>(4) 852.209-70, Organizational conflicts of interest.</P> <P>(5) 852.211-71, Special notice.</P> <P>(6) 852.211-72, Technical industry standards.</P> <P>(7) 852.211-73, Brand name or equal.</P> <P>(8) 852.211-75, Product specifications.</P> <P>(9) 852.214-70, Caution to bidders—bid envelopes.</P> <P>(10) 852.214-71, Restrictions on alternate item(s).</P> <P>(11) 852.214-72, Alternate item(s).</P> <P>(12) 852.214-73, Alternate packaging and packing.</P> <P>(13) 852.214-74, Bid samples.<PRTPAGE P="187"/> </P> <P>(14) 852.216-70, Estimated quantities.</P> <P>(15) 852.228-71, Indemnification and insurance.</P> <P>(16) 852.229-70, Sales and use taxes.</P> <P>(17) 852.233-70, Protest content/alternative dispute resolution.</P> <P>(18) 852.233-71, Alternate protest procedure.</P> <P>(19) 852.237-7, Indemnification and medical liability insurance.</P> <P>(20) 852.237-70, Contractor responsibilities.</P> <P>(21) 852.246-70, Guarantee.</P> <P>(22) 852.246-71, Inspection.</P> <P>(23) 852.246-72, Frozen processed foods.</P> <P>(24) 852.252-70, Solicitation provisions or clauses incorporated by reference.</P> <P>(25) 852.270-1, Representatives of contracting officers.</P> <P>(26) 852.270-2, Bread and bakery products—quantities.</P> <P>(27) 852.270-3, Purchase of shellfish.</P> <P>(28) 852.271-72, Time spent by counselee in counseling process.</P> <P>(29) 852.271-73, Use and publication of counseling results.</P> <P>(30) 852.271-74, Inspection.</P> <P>(31) 852.271-75, Extension of contract period.</P> <P>(c) When appropriate in accordance with the prescriptions for the clauses, the contracting officer may use the clauses in the following VAAR sections in requests for quotations, solicitations, and contracts for the acquisition of commercial items if the contracting officer determines that the use is consistent with customary commercial practices:</P> <P>(1) 852.211-70, Service data manuals.</P> <P>(2) 852.211-74, Liquidated damages.</P> <P>(d) All requests for quotations, solicitations, and contracts for commercial item services to be provided to beneficiaries must include the clause at 852.271-70, Nondiscrimination in services provided to beneficiaries.</P> <P>(e) Micro-purchases that use the procedures of this part in conjunction with part 813 do not require clauses unless the contracting officer determines that the use of clauses serves the Government's best interest.</P> <P>(f) When soliciting for health care resources that are 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> <SECAUTH>(38 U.S.C. 8151-8153)</SECAUTH> </SECTION> <SECTION> <SECTNO>812.302</SECTNO> <SUBJECT>Tailoring of provisions and clauses for the acquisition of commercial items.</SUBJECT> <P>(a) Contracting officers may tailor solicitations to be inconsistent with customary commercial practice if they prepare and obtain approval of a waiver under paragraph (c) of this section.</P> <P>(b) The contracting officer must prepare the waiver in accordance with FAR 12.302(c). The waiver is subject to the tailoring prohibitions in FAR 12.302(b)(1) through 12.302(b)(6).</P> <P>(c) The contracting officer must obtain approval for waivers from the following:</P> <P>(1) The Chief, Acquisition Assistance Division, for individual contracts.</P> <P>(2) The Chief, Acquisition Program Management Division, for a class of contracts.</P> <P>(d) Contracting officers must submit waiver requests no later than the solicitation issue date.</P> <P>(e) Contracting officers must retain approved requests in the contract file.</P> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="188"/> <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</SECTNO> <SUBJECT>Soliciting competition, evaluation of quotations or offers, award and documentation.</SUBJECT> <SECTNO>813.106-3</SECTNO> <SUBJECT>Award and documentation.</SUBJECT> <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>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 813.1—Procedures</HD> <SECTION> <SECTNO>813.106</SECTNO> <SUBJECT>Soliciting competition, evaluation of quotations or offers, award and documentation.</SUBJECT> </SECTION> <SECTION> <SECTNO>813.106-3</SECTNO> <SUBJECT>Award and documentation.</SUBJECT> <P>The contracting officer may record a quotation on an Abstract of Offers (SF 1409 or 1419), the purchase request if space permits, or other supplemental sheet or form, such as VA Form 10-2237b, Request for Dietetic Supplies.</P> </SECTION> <SECTION> <SECTNO>813.106-70</SECTNO> <SUBJECT>Oral purchase orders.</SUBJECT> <P>When advantageous to VA, the contracting officer may use an oral purchase order for transactions not in excess of $3,000. This limitation does not apply to delivery orders against existing contracts, e.g., delivery orders against Federal Supply Schedule contracts. The contracting officer must assign a purchase order number to the transaction. A copy of any electronically generated purchase order may be used as a property voucher and receiving report to document receipt.</P> </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 the VA Form 90-2138 or 90-2138-ADP for maintenance contracts involving services performed on Government property that have the potential for property damage and liability claims, the contracting officer shall insert in the purchase order the Contractor's Responsibilities clause found at 852.237-70. Applicable maintenance contracts include, but are not limited to, window washing, pest control, and elevator maintenance.</P> </SECTION> <SECTION> <SECTNO>813.307</SECTNO> <SUBJECT>Forms.</SUBJECT> <P>(a) The following forms provide a purchase or delivery order, vendor's invoice, and receiving report:</P> <P>(1) VA Form 90-2138, Order for Supplies or Services.</P> <P>(2) VA Form 90-2139, Order for Supplies or Services (Continuation).</P> <P>(3) VA Form 90-2138-ADP, Purchase Order for Supplies or Services.</P> <P>(4) VA Form 2139-ADP, Order for Supplies and Services (Continuation).</P> <P>(b) The contracting officer may use the forms specified in paragraphs (a)(1) through (a)(4) of this section instead of OF 347, Order for Supplies or Services, OF 348, Order for Supplies or Services Schedule—Continuation, and SF 1449, Solicitation/Contract/Order for Commercial Items.</P> <P>(c) The contracting officer or other properly delegated official (see 801.670-3) may use the following order forms when ordering the indicated medical, dental, and ancillary services totaling 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.<PRTPAGE P="189"/> </P> <P>(3) VA Form 10-2570d, Dental Record Authorization and Invoice for Outpatient Service.</P> <P>(d) In authorizing patient travel as set forth in VA manual MP-1, Part II, Chapter 3, the contracting officer or other properly delegated official (see 801.670-3) may use VA Form 10-2511, Authority and Invoice for Travel by Ambulance or Other Hired Vehicle, as provided by that manual.</P> <P>(e) The contracting officer must use SF 182, Request, Authorization, Agreement, and Certification of Training, for procurement of training.</P> <P>(f) The contracting officer must use VA Form 10-2421, Prosthetics Authorization for Items or Services, for indicated services not in excess of $300.</P> </SECTION> </SUBPART> </PART> <PART> <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>814.104</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>814.201-6</SECTNO> <SUBJECT>Solicitation provisions.</SUBJECT> <SECTNO>814.203</SECTNO> <SUBJECT>Methods of soliciting bids.</SUBJECT> <SECTNO>814.203-1</SECTNO> <SUBJECT>Transmittal to prospective bidders.</SUBJECT> <SECTNO>814.204</SECTNO> <SUBJECT>Records of invitations for bids and records of bids.</SUBJECT> <SECTNO>814.208</SECTNO> <SUBJECT>Amendment of invitation for bids.</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>Submission, modification, and withdrawal of bids.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 814.4—Opening of Bids and Award of Contract</HD> <SECTNO>814.401</SECTNO> <SUBJECT>Receipt and safeguarding of bids.</SUBJECT> <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>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 814.1—Use of Sealed Bidding</HD> <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 fixed price contracts with escalation are authorized under 816.102(a), a contracting officer must comply with FAR 16.203-1 through 16.203-4.</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) An invitation for bids for supplies, equipment, and services must be serially numbered at the time of issue. Numbers assigned locally must consist of the facility or VA National Acquisition Center division number, the serial number of the invitation, and the fiscal year in which the VA facility issues the invitation, e.g., 533-24-07 for the 24th invitation issued by VA facility 533 in Fiscal Year 2007. A series beginning with the number 1 must be started each fiscal year. Numbers assigned from a national register may be sequential, without regard to year, and use whatever numbering system assigned by the national system or VA's Electronic Contract Management System (eCMS). VHA shall use eCMS for all solicitation numbering.</P> <P>(1) An invitation for bid for supplies, equipment, and services that is numbered locally must be numbered in the series of the year in which it is issued, will be accepted, and will become a contract in the same fiscal year but, because of procurement lead time, will not be performed until the next fiscal year.</P> <P>(2) An invitation for bid that is numbered locally must be numbered in the next fiscal year series if it is issued in <PRTPAGE P="190"/>one fiscal year but the contract will become effective and will be performed only in the next fiscal year.</P> <P>(b) An invitation for a construction contract must bear the applicable invitation for bid number and the project number, if assigned.</P> <P>(c) An invitation for bid containing a summary bid request must include 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>(d) When a contracting officer determines that it will be to the Government's advantage to make an award by group or groups of items, the contracting officer must include a provision for the award by group or groups of items in the invitation for bids. This may apply when the items in the group or groups are readily available from sources to be solicited; and one of the following apply:</P> <P>(1) It is desirable to award a minimum number of contracts.</P> <P>(2) Furniture or fixtures are required for a single project and uniformity of design is desirable.</P> <P>(3) The articles required will be assembled and used as a unit.</P> <P>(e) A solicitation for a construction contract must contain a statement on the order of priority in which VA will award any alternative bid items, based on the relative importance of the items, VA's cost estimate, and the amount of funds available, when the following apply:</P> <P>(1) VA intends to make a single aggregate award for all items in the solicitation within certain fiscal limitations.</P> <P>(2) The solicitation asks for prices on an item and alternate item basis.</P> <P>(f) A bid item schedule in a solicitation issued in compliance with paragraph (e) of this section should be structured substantially as follows: </P> <EXTRACT> <P>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 Item No. 3, in that order, based on available funding. Offerors should quote a price on each item listed.</P> <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:</P> <P>Item No. 2—Furnish all labor, material, equipment, etc., to paint Building Nos. 1 and 2:$__.</P> <P>Item No. 3—Furnish all labor, material, equipment, etc., to paint Building No. 1:__.</P> </EXTRACT> </SECTION> <SECTION> <SECTNO>814.201-6</SECTNO> <SUBJECT>Solicitation provisions.</SUBJECT> <P>(a) The contracting officer must place the provision entitled “Caution to Bidders-Bid Envelopes,” as set forth in 852.214-70, in all invitations for bids where bid submissions are by other than electronic means.</P> <P>(b) In an invitation for bid for supplies, equipment, or services (other than construction), the contracting officer must define the extent to which VA will authorize and consider alternate bids. VA will consider for acceptance an alternate specified on construction projects only as a part of the basic item.</P> <P>(1) When VA will consider an alternate item only if no bids or insufficient bids are received on an item desired, the contracting officer must include the provision set forth in 852.214-71, Restrictions on alternate item(s), in the invitation.</P> <P>(2) When VA will consider an alternate item on an equal basis with the item specified, the contracting officer must include the provision set forth in 852.214-72, Alternate items, in the invitation.</P> <P>(3) In addition to the provision referenced in paragraph (b)(1) or (2) of this section, the contracting officer must include the provision set forth in 852.214-73, Alternate packaging and packing, in the invitation when bids will be allowed on different packaging, unit designation, etc.</P> <P>(c) When the contracting officer determines that samples are necessary to the proper awarding of a contract, the contracting officer must include the provision set forth in 852.214-74, Bid samples, in the solicitation, along with the provision in FAR 52.214-20, Bid samples.</P> </SECTION> <SECTION> <PRTPAGE P="191"/> <SECTNO>814.203</SECTNO> <SUBJECT>Methods of soliciting bids.</SUBJECT> </SECTION> <SECTION> <SECTNO>814.203-1</SECTNO> <SUBJECT>Transmittal to prospective bidders.</SUBJECT> <P>The contracting officer should include either a bid envelope or OF 17, Sealed Bid Label, with each invitation for bids furnished by mail or hand delivered to prospective bidders.</P> </SECTION> <SECTION> <SECTNO>814.204</SECTNO> <SUBJECT>Records of invitations for bids and records of bids.</SUBJECT> <P>(a) The issuing office must establish and maintain a single register on a fiscal year basis for all solicitations. For each invitation to bid or request for proposal, the register must include the following:</P> <P>(1) Bid or proposal number.</P> <P>(2) Date of issue.</P> <P>(3) Date of opening.</P> <P>(4) Commodity or service involved.</P> <P>(5) 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(b).</P> </SECTION> <SECTION> <SECTNO>814.208</SECTNO> <SUBJECT>Amendment of invitation for bids.</SUBJECT> <P>The contracting officer must send amendments to holders of drawings and specifications by certified mail, return receipt requested, or any other method that provides evidence of receipt. The contracting officer may send amendments by telegram, facsimile, or other method of rapid delivery that provides evidence of receipt, if time does not permit mailing.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 814.3—Submission of Bids</HD> <SECTION> <SECTNO>814.301</SECTNO> <SUBJECT>Responsiveness of bids.</SUBJECT> <P>Where a contracting officer cannot administratively determine, in accordance with FAR 14.301, the timeliness of the submission of a bid, modification, or withdrawal, the contracting officer must submit the matter through the DSPE to the Comptroller General for a decision. The submission must include copies of all pertinent papers.</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 before the time set for opening.</P> </SECTION> <SECTION> <SECTNO>814.304</SECTNO> <SUBJECT>Submission, modification, and withdrawal of bids.</SUBJECT> <P>(a) A notification to late bidders must specify the final date by which VA must receive evidence. This date must be within the time allowed by the apparent low bidder for acceptance of the low bidder's bid.</P> <P>(b) All bids received by mail or delivered in person by the bidder (or telegram where authorized) must be time and date stamped immediately upon receipt at the VA facility mail room and in the office of the addressee designated in the invitation.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 814.4—Opening of Bids and Award of Contract</HD> <SECTION> <SECTNO>814.401</SECTNO> <SUBJECT>Receipt and safeguarding of bids.</SUBJECT> <P>The contracting officer is designated as the official to open bids for identification, as provided in FAR 14.401.</P> </SECTION> <SECTION> <SECTNO>814.402</SECTNO> <SUBJECT>Opening of bids.</SUBJECT> <P>(a) The contracting officer must serve as, or designate, a bid opening officer, and must also designate a recorder.</P> <P>(b) If a bid bond is required, the bid opening officer must read aloud the form and amount of bid security and the name of the surety. The recorder must record this information.</P> </SECTION> <SECTION> <SECTNO>814.403</SECTNO> <SUBJECT>Recording of bids.</SUBJECT> <P>(a) The recorder must transcribe the information required for bid evaluation 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, provided that any supplemental sheets or forms are covered by one of the forms authorized for recording bid or price data.</P> <P>(b) The bid opening officer must comply with the instructions in FAR 14.403 and certify on the abstract the date <PRTPAGE P="192"/>and hour at which the bids were opened. Where erasures, strikeovers, or changes in price are noted at the time of bid opening, a statement to that effect must also be included on, or attached to, the abstract or record of bids.</P> </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) For each invitation to bid that VA cancels or for which it receives no bid, the contracting officer must do the following:</P> <P>(1) File a copy of the invitation for bids, as provided for in FAR 14.404-1, together with the abstract showing to whom such bids were sent, in a separate folder identified by the invitation number.</P> <P>(2) Annotate the abstract to show why an award was not made.</P> <P>(3) Retain the folders for the current and two succeeding fiscal years.</P> <P>(b) The HCA may approve cancellation of invitations for bid after opening and may approve completion of the acquisition after cancellation, as provided in FAR 14.404-1(e). The contracting officer must submit a Determination and Finding to the HCA for approval and signature.</P> </SECTION> <SECTION> <SECTNO>814.404-2</SECTNO> <SUBJECT>Rejection of individual bids.</SUBJECT> <P>(a) When a contracting officer finds a bid that is being considered for an award is 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. The 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 VA receives a single bid in response to a solicitation, the contracting officer must not reject the offer simply because it specifies a bid acceptance time that 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 is a compelling reason for rejection; however, the contracting officer must first request the offeror to extend the acceptance date of the bid to allow for proper evaluation.</P> <P>(c) In those cases where VA receives more than one bid, the contracting officer must reject as nonresponsive an individual bid that is not in compliance with the Government's bid acceptance time, since consideration of such an offer would unfairly disadvantage other bidders.</P> </SECTION> <SECTION> <SECTNO>814.404-70</SECTNO> <SUBJECT>Questions involving the responsiveness of a bid.</SUBJECT> <P>If a contracting officer cannot resolve a question involving the responsiveness of a bid, the contracting officer may submit the question to the Comptroller General through the DSPE.</P> </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 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 delegated to the SPE and is further delegated, without power of redelegation, to the DSPE. This delegation in no way impairs the delegations contained in Unpublished Decision of the Comptroller General B-122003 dated November 22, 1954.</P> <P>(b) When a bidder alleges a mistake in his or her bid before award, after complying with the provisions of FAR 14.407-3, the contracting officer must submit the complete file to the DSPE for an administrative determination. Based upon the evidence submitted, the DSPE shall determine the action the contracting officer is to take. The contracting officer may make no award until the DSPE makes a determination.</P> </SECTION> <SECTION> <PRTPAGE P="193"/> <SECTNO>814.407-4</SECTNO> <SUBJECT>Mistakes after award.</SUBJECT> <P>(a) When a contracting officer corrects a mistake in bid under FAR 14.407-4(a), the contracting officer must forward a copy of the contract amendment or supplemental agreement and a copy of the contracting officer's determination, to the DSPE.</P> <P>(b) For mistakes in a bid alleged after award, the contracting officer's proposed determination, prepared in accordance with FAR 14.407-4, must be forwarded to OGC through the DSPE, Acquisition Resources Service, for legal coordination. The DSPE shall transmit the results of this coordination to the contracting officer, who will make the final determination on the alleged mistake in bid after award.</P> <P>(c) The DSPE, Acquisition Resources Service, must maintain the agency records of mistakes in bids after award required by FAR 14.407-4.</P> </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>(a) When VA receives only one bid in response to an invitation for bids, the contracting officer may consider and accept the bid if all of the following apply:</P> <P>(1) The specifications used in the invitation were not restrictive.</P> <P>(2) VA solicited adequate competition.</P> <P>(3) The price is reasonable.</P> <P>(4) The bid is otherwise in accordance with the invitation for bids.</P> <P>(b) The contracting officer must make the determination in writing, and include it the contract file.</P> </SECTION> <SECTION> <SECTNO>814.408-71</SECTNO> <SUBJECT>Recommendation for award (construction).</SUBJECT> <P>(a) For Central Office contracts, the Director, Office of Construction and Facilities Management, must analyze all bids received and submit a memorandum to the Secretary recommending award or other disposition of the project. A copy of each of the following must 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) For facility-level contracts, the Chief, Engineering Service, must analyze all bids received and submit a memorandum recommending award or other disposition of the project to the contracting officer. The contracting officer alone must make the final decision to accept or reject the lowest responsive bid and the determination as to the responsibility of a prospective contractor.</P> </SECTION> <SECTION> <SECTNO>814.409</SECTNO> <SUBJECT>Information to bidders.</SUBJECT> <P>(a) An employee of VA may not disclose information as to probable acceptance or rejection of any offer to any bidder or other person outside of VA, except as authorized by the FAR.</P> <P>(b) Except as provided in paragraphs (c) and (d) of this section, information about performance under a contract or an accepted bid is not public information and will be released to persons outside of 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 on performance under a contract to those having a legitimate interest, such as sureties, banks, other financial companies and Government departments and agencies.</P> <P>(d) When litigation is involved, all information must be furnished through OGC.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 815</EAR> <HD SOURCE="HED">PART 815—CONTRACTING BY NEGOTIATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 815.3—Source Selection</HD> <SECHD>Sec.</SECHD> <SECTNO>815.303</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 815.4—Contract Pricing</HD> <SECTNO>815.404</SECTNO> <SUBJECT>Proposal analysis.</SUBJECT> <SECTNO>815.404-1</SECTNO> <SUBJECT>Proposal analysis techniques.</SUBJECT> <SECTNO>815.404-2</SECTNO> <SUBJECT>Information to support proposal analysis.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 815.6—Unsolicited Proposals</HD> <SECTNO>815.604</SECTNO> <SUBJECT>Department points of contact.</SUBJECT> <SECTNO>815.606</SECTNO> <SUBJECT>Department procedures.</SUBJECT> <SECTNO>815.606-1</SECTNO> <SUBJECT>Receipt and initial review.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <PRTPAGE P="194"/> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 815.3—Source Selection</HD> <SECTION> <SECTNO>815.303</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>The authority of the Secretary to appoint an individual other than the contracting officer to serve as the source selection authority for a particular acquisition or group of acquisitions is delegated to the SPE and is further delegated to the DSPE. If an HCA wishes to designate an individual other than the delegated contracting officer as the source selection authority for a particular acquisition or group of acquisitions, the HCA shall prepare a request and justification and shall submit the request through channels to the DSPE for approval.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 815.4—Contract Pricing</HD> <SECTION> <SECTNO>815.404</SECTNO> <SUBJECT>Proposal analysis.</SUBJECT> </SECTION> <SECTION> <SECTNO>815.404-1</SECTNO> <SUBJECT>Proposal analysis techniques.</SUBJECT> <P>(a) Contracting officers are responsible for the technical and administrative sufficiency of the contracts they enter into. Contracting officers must ensure that contracts undergo all applicable legal and technical reviews. (See 801.602-70.)</P> <P>(b) Contracting officers determine the level of technical analyses necessary for initial and revised pricing of all negotiated prime contracts, including subcontract pricing under them, and contract modifications. Contracting officers must request technical analyses of the proposals from the appropriate technical personnel. The technical analyses must address, as a minimum, the items set forth in FAR 15.404-1(e)(2).</P> <P>(c) The contracting officer must document the results of such analyses in the contract file and make the results available to the auditor performing the pre-award audit.</P> </SECTION> <SECTION> <SECTNO>815.404-2</SECTNO> <SUBJECT>Information to support proposal analysis.</SUBJECT> <P>In evaluating start-up and other non-recurring costs, the contracting officer must determine the extent to which these costs are included in the proposed price and the intent to absorb or recover the costs in any future noncompetitive procurement or other pricing action. The contracting officer must ensure, with the assistance of the Assistant Inspector General for Policy, Planning, and Resources, as required or considered necessary, that VA will not pay the costs twice. For example, the cost of equipment that the Government pays for through a setup or connection agreement must not be included in depreciation cost of a subsequently negotiated agreement.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 815.6—Unsolicited Proposals</HD> <SECTION> <SECTNO>815.604</SECTNO> <SUBJECT>Department points of contact.</SUBJECT> <P>A VA employee who receives an unsolicited proposal or inquiries from a potential offeror of an unsolicited proposal must refer the proposal or inquiries to the following:</P> <P>(a) Facility level unsolicited proposals must be referred to the HCA for the field facility.</P> <P>(b) Proposals to the VA National Acquisition Center must be referred to the Executive Director and Chief Operating Officer, VA National Acquisition Center.</P> <P>(c) Proposals to VA Central Office must be referred to the Director, Acquisition Operations Service (049A3).</P> </SECTION> <SECTION> <SECTNO>815.606</SECTNO> <SUBJECT>Department procedures.</SUBJECT> <P>(a) The VA contact point will do the following:</P> <P>(1) Determine the nature of the potential proposal and which technical/professional disciplines within VA to consult to determine the need for the proposal and the likelihood that a formal proposal would earn favorable review.</P> <P>(2) In consultation with such technical/professional offices, the VA contact point will furnish the potential offeror the information specified in FAR 15.604 and any other information that might be of assistance to the potential offeror.</P> <P>(b) The contact point will maintain a record of advance guidance provided and the disposition/recommendation regarding the potential offer.</P> <P>(c) The contact point will review the unsolicited proposal and ensure that it <PRTPAGE P="195"/>is complete as prescribed in FAR 15.605. If required information is not submitted, the contact point will:</P> <P>(1) Determine if FAR 15.604 requires advance guidance;</P> <P>(2) Determine whether a comprehensive evaluation prescribed by FAR 15.606-2 is appropriate and, if so, request that the offeror provide the necessary information; and,</P> <P>(3) Establish an estimated due date for completion of the review process.</P> </SECTION> <SECTION> <SECTNO>815.606-1</SECTNO> <SUBJECT>Receipt and initial review.</SUBJECT> <P>(a) When the VA contact point determines a proposal warrants a comprehensive evaluation (i.e., the proposal complies with the requirements in FAR 15.606-1(a) and is related to VA's mission), the contact point must contact the offeror to ensure that all data that should be restricted in accordance with FAR 15.609 has been identified.</P> <P>(b) The contact point must maintain a log of all unsolicited proposals to be evaluated. The log must indicate the following:</P> <P>(1) The date the proposal was received.</P> <P>(2) The date that the unsolicited proposal was 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 the offices are requested to return their evaluations.</P> <P>(5) The date the reviewing offices finalize their respective evaluations.</P> <P>(6) The final disposition of the proposal.</P> <P>(c) The contact point must advise each office assigned responsibility for reviewing an unsolicited proposal of the need to evaluate the proposal against the criteria set forth in FAR 15.607(a)(1) through (4). If the reviewers determine that the proposal fails to meet any of the criteria, the contact point must be advised. The contact point must return the proposal to the offeror, citing the reasons therefore.</P> <P>(d) The contact point must obtain approval of the DSPE (049A5) before the contact point, if warranted as a contracting officer, or an appropriate contracting officer begins negotiation on proposals. The contact point must provide the DSPE (049A5) all necessary documentation supporting the noncompetitive negotiation, including any justification and approval required by FAR Subpart 6.3 and the results of any synopsis required by FAR Subpart 5.2. The DSPE (049A5) will consult the appropriate VA Central Office program official(s) and return the final decision to the contact point.</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 816.5—Indefinite-Delivery Contracts</HD> <SECTNO>816.504</SECTNO> <SUBJECT>Indefinite-quantity contracts.</SUBJECT> <SECTNO>816.505</SECTNO> <SUBJECT>Ordering.</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>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 816.1—Selecting Contract Types</HD> <SECTION> <SECTNO>816.102</SECTNO> <SUBJECT>Policies.</SUBJECT> <P>(a) Contracting officers must obtain technical review of solicitations that include a clause that provides for economic price adjustment specified in FAR 16.203-4 or any locally developed clause (see FAR 16.203-4(d)(2) and 801.602-72(d)). The request for approval must include a clearly stated need for the clause.</P> <P>(b) The contracting officer must obtain the approval of the Director, Acquisition Resources Service (049A5), VA Central Office, before issuing a solicitation or awarding a contract that includes time-and-material or labor-hour pricing provisions if the ceiling price or estimated value of the acquisition exceeds $100,000. See 801.602-71 for technical review requirements. Excluded from this requirement are time-and-material or labor-hour solicitations or proposed contracts covering emergencies, such as repair of a broken water, sewer, or communication line, <PRTPAGE P="196"/>repair of storm damage, etc. (i.e., where FAR 6.302-2 applies).</P> <P>(c) Except as provided in FAR 32.703-3, a contract that involves a direct obligation of appropriations and lasts for more than one year from the beginning of the contract period must provide that:</P> <P>(1) The contract applies to the period stated in the contract, subject to availability of funds; and</P> <P>(2) The contractor will not perform any service under the contract after September 30 of each fiscal year (or beyond the period of the basic contract or any authorized option if the contract crosses fiscal years as provided in FAR 32.703-3(b)) unless the contractor obtains specific authorization from the contracting officer.</P> <P>(d) A/E contracts, construction contracts, or professional engineer contracts, financed by “no year” appropriations, are not subject to the requirements of paragraph (c) of this section.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 816.5—Indefinite-Delivery Contracts</HD> <SECTION> <SECTNO>816.504</SECTNO> <SUBJECT>Indefinite-quantity contracts.</SUBJECT> <P>(a) Except as provided in paragraphs (b), (c), and (d) of this section, when the contracting officer cannot determine definite quantities to be acquired under a solicitation and intends to issue a solicitation for estimated quantities, the contracting officer shall insert the clause at 852.216-70, Estimated quantities.</P> <P>(b) The contracting officer shall insert the Alternate I clause at 852.216-70 in solicitations for bulk coal.</P> <P>(c) The contracting officer shall insert the Alternate II clause at 852.216-70 in solicitations for estimated quantities of orthopedic, prosthetic, and optical supplies.</P> <P>(d) The contracting officer shall insert the Alternate III clause at 852.216-70 in solicitations for monuments and headstones.</P> </SECTION> <SECTION> <SECTNO>816.505</SECTNO> <SUBJECT>Ordering</SUBJECT> <P>The task order contract and delivery order ombudsman for VA is the Associate Deputy Assistant Secretary for Acquisitions (see FAR 16.505(b)(5)). Contracting officers may obtain the name, telephone number, facsimile number, and e-mail address of the current Associate Deputy Assistant Secretary for Acquisitions by contacting: The Office of Acquisitions (049A), VA Central Office, 810 Vermont Ave., NW., Washington, DC 20420.</P> </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 that primarily seeks to reserve a place on the supplier's production or delivery schedule for long lead-time items. A letter of availability usually indicates products or services being considered for procurement. A supplier should not construe a letter of availability as a commitment. Prospective contractors sometimes solicit letters of availability or the letters may originate from Government personnel. A letter of availability differs from a letter contract, which is specifically authorized in FAR 16.603.</P> <P>(b) <E T="03">Policy.</E> (1) For the following reasons, contracting officers may not use letters of availability unless the DSPE specifically authorizes them to do so:</P> <P>(i) Letters of availability often cause 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 VA, the Government may be bound by the 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 that may not be recovered from the Government. In this instance, 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).<PRTPAGE P="197"/> </P> <P>(2) Contractors need access to procurement information as soon as possible to make timely preparations. Therefore, procurement personnel should act as efficiently and expeditiously as possible on all procurement actions.</P> </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> <SECTNO>817.204</SECTNO> <SUBJECT>Contracts.</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; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, 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) Under 38 U.S.C. 114, VA contracting officers may enter into multi-year contracts for supplies and services not to exceed 5 years (unless otherwise authorized by statue), provided the Secretary or designee makes the following determinations:</P> <P>(1) Appropriations are available for obligation to pay for the total payments for the fiscal year in which the contract is awarded plus the estimated amount of any cancellation charges.</P> <P>(2) The contract serves the best interest of the Government by:</P> <P>(i) Reducing cost;</P> <P>(ii) Achieving contract administration and other efficiencies;</P> <P>(iii) Increasing quality contract performance; and</P> <P>(iv) Encouraging effective competition.</P> <P>(3) That, during the contract period:</P> <P>(i) Demand for the supplies or services will continue;</P> <P>(ii) Substantial changes in demand for supplies and services in terms of quantity or rate of delivery are unlikely; and</P> <P>(iii) Specifications for the supplies or services will remain reasonably stable.</P> <P>(4) The risk of the contractor's inability to perform under the terms and conditions of the contract is low.</P> <P>(5) A multi-year contract will not inhibit competition from small businesses.</P> <P>(6) For a pharmaceutical item for which a patent has expired less than 4 years before the solicitation issue date, that there is no substantial likelihood that increased competition among potential contractors would occur during the term of the contract as the result of the availability of generic equivalents increasing during the term of the contract.</P> <P>(b) The Secretary has delegated authority to make the determinations specified in 817.105-1(a) as follows:</P> <P>(1) HCAs may make the above determinations and approve contracts that do not require legal/technical reviews under 801.602-70 and that do not contain a first year cancellation ceiling exceeding 20 percent of the contract value over the full multi-year term.</P> <P>(2) Authority to make the above determinations and to approve all other proposed multi-year contracts is delegated to the SPE and is further delegated to the DSPE. For approval purposes, the HCA will justify and document the use of a multi-year contract against each of the criteria specified in paragraphs (a)(1) through (a)(6) of this section and forward to the DSPE for approval. The justification must explain the cancellation ceiling and the method used to calculate that ceiling. The justification also must explain the advantages of multi-year contracts over other alternative methods, e.g., option year contracts.</P> <P>(c) The contracting officer must develop the cancellation ceilings in accordance with FAR 17.106-1. (38 U.S.C. 114)</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="198"/> <HD SOURCE="HED">Subpart 817.2—Options</HD> <SECTION> <SECTNO>817.202</SECTNO> <SUBJECT>Use of options.</SUBJECT> <P>All solicitations developed under Office of Management and Budget Circular A-76 (Revised) cost comparisons will provide for four one-year renewal options as prescribed in FAR Subpart 17.2. The contracting officer must forward requests to use less or more than the prescribed contract period for Circular A-76 (Revised) cost comparisons to the DSPE for approval.</P> </SECTION> <SECTION> <SECTNO>817.204</SECTNO> <SUBJECT>Contracts.</SUBJECT> <P>(a) The contracting officer must obtain the approval of the DSPE before awarding a contract that includes options exceeding the 5-year limitation specified in FAR 17.204(e). This requirement does not apply to contracts to be awarded by or on behalf of the VA Office of the Inspector General. The request for approval must include the following:</P> <P>(1) Supporting documentation, rationale, and justifications for the use of options (see FAR 17.205) and for exceeding the 5-year limitation.</P> <P>(2) Documentation that the contracting officer has considered and addressed the limitations specified in FAR 17.202(b) and (c).</P> <P>(b) Solicitations that require technical review in accordance with 801.602-71 through 801.602-73 shall be submitted for review concurrently as provided therein.</P> </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 paragraph (b) of this section, the Government shall not initiate or execute leader company contracts.</P> <P>(b) The DSPE may designate a contracting officer to enter into a leader company contract for the benefit of VA and the Government. The DSPE must designate a contracting officer by name for a specific contract. The named contracting officer will submit the proposed contract, with a determination and finding, for legal review in accordance with 801.602-75.</P> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="199"/> <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD> <PART> <EAR>Pt. 819</EAR> <HD SOURCE="HED">PART 819—SMALL BUSINESS PROGRAMS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 819.2—Policies</HD> <SECHD>Sec.</SECHD> <SECTNO>819.201</SECTNO> <SUBJECT>General policy.</SUBJECT> <SECTNO>819.202</SECTNO> <SUBJECT>Specific policies.</SUBJECT> <SECTNO>819.202-1</SECTNO> <SUBJECT>Encouraging small business participation in acquisitions.</SUBJECT> <SECTNO>819.202-5</SECTNO> <SUBJECT>Data collection and reporting requirements.</SUBJECT> <SECTNO>819.202-70</SECTNO> <SUBJECT>HCA responsibilities.</SUBJECT> <SECTNO>819.202-71</SECTNO> <SUBJECT>Additional contracting officer responsibilities.</SUBJECT> <SECTNO>819.202-72</SECTNO> <RESERVED>Order of precedence. [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 819.5—Set-Asides For Small Business</HD> <SECTNO>819.502</SECTNO> <SUBJECT>Setting aside acquisitions.</SUBJECT> <SECTNO>819.502-2</SECTNO> <SUBJECT>Total small business 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 Responsibility</HD> <SECTNO>819.602</SECTNO> <SUBJECT>Procedures.</SUBJECT> <SECTNO>819.602-3</SECTNO> <SUBJECT>Resolving differences between VA and the Small Business Administration.</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> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 819.70—Veteran-Owned and Operated Small Businesses</HD> <SECTNO>819.7001</SECTNO> <SUBJECT>Policy.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 819.2—Policies</HD> <SECTION> <SECTNO>819.201</SECTNO> <SUBJECT>General policy.</SUBJECT> <P>The Director, Office of Small and Disadvantaged Business Utilization (OSBDU), is designated as the official responsible for making the determination required by FAR 19.201(f).</P> </SECTION> <SECTION> <SECTNO>819.202</SECTNO> <SUBJECT>Specific policies.</SUBJECT> </SECTION> <SECTION> <SECTNO>819.202-1</SECTNO> <SUBJECT>Encouraging small business participation in acquisitions.</SUBJECT> <P>Contracting officers may negotiate payment terms of less than 30 calendar days to encourage small business participation. A period of less than 7 days may not be prescribed (see FAR 32.908(c)(2)). The contracting officer and the local fiscal officer must be in agreement on the negotiated payment terms before awarding the contract.</P> </SECTION> <SECTION> <SECTNO>819.202-5</SECTNO> <SUBJECT>Data collection and reporting requirements.</SUBJECT> <P>(a) Administration heads, staff office directors, and HCAs must, in addition to the responsibilities designated in FAR 19.202-5, cooperate with OSDBU in formulating specific small business program goals and providing other data necessary for goal assessment.</P> <P>(b) Each VA acquisition activity shall establish goals for the expenditure of funds with preferred businesses within their projected annual budget. OSDBU is responsible for Department-wide goals and accomplishments and will approve or adjust each acquisition activity's goals.</P> <P>(c) 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. 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 the Small Business Administration (SBA).</P> <P>(d) 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.</P> <P>(e) Upon review by OSDBU of the proposed goals, each acquisition activity will be notified of the acceptance of <PRTPAGE P="200"/>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, OSDBU will make a final determination on the goal assignment.</P> <P>(f) Accomplishment of goals will be determined by OSDBU from data reported by acquisition activities into the Federal Procurement Data System-Next Generation (FPDS-NG).</P> </SECTION> <SECTION> <SECTNO>819.202-70</SECTNO> <SUBJECT>HCA responsibilities.</SUBJECT> <P>An HCA must perform the following functions in support of the small business program. These functions cannot be delegated without written approval of the Director, OSBDU:</P> <P>(a) Develop, on an annual basis, a plan of operation to increase the share of contracts and purchase orders awarded to the small business programs prescribed in FAR Part 19. This plan must also include veteran-owned and service-disabled veteran-owned small business concerns.</P> <P>(b) Promote goals for the small business programs set forth in FAR Part 19. This must also include veteran-owned and service-disabled veteran-owned small business concerns.</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.</P> <P>(d) Review class set-asides, established in accordance with criteria in FAR 19.503, at least annually to determine whether items or services procured under a unilateral or joint set-aside should be modified or withdrawn.</P> <P>(e) Maintain updated lists of acquisitions reserved for small business on a class basis.</P> <P>(f) If the acquisition activity is assigned to an SBA Procurement Center Representative, assure that the representative is provided logistical support, cooperation, and access to all reasonably obtainable contract information directly pertinent to the SBA Procurement Center Representative's official duties.</P> <P>(g) Encourage technical personnel and end-users to participate in discussions with veteran-owned and service-disabled veteran-owned small business concerns.</P> <P>(h) Attend conferences and meetings publicizing small business programs. This responsibility may be delegated without the written approval of the Director, OSBDU.</P> </SECTION> <SECTION> <SECTNO>819.202-71</SECTNO> <SUBJECT>Additional contracting officer responsibilities.</SUBJECT> <P>In addition to the duties designated in FAR 19.202 through 19.202-6, contracting officers must perform the following functions in support of the small business program:</P> <P>(a) Make maximum use of small business source lists.</P> <P>(b) Assure that small business firms are identified on solicitation mailing lists and bid abstracts.</P> <P>(c) Assure that specifications are not unduly restrictive, thereby enabling small business participation to the maximum extent possible.</P> <P>(d) Assist and counsel small business firms with individual problems.</P> <P>(e) Provide for counseling non-responsive or non-responsible small business bidders to help qualify them for future awards.</P> <P>(f) Submit informational copies of all small business protests and appeals to the Director, OSBDU, at the same time they are submitted to the SBA.</P> </SECTION> <SECTION> <SECTNO>819.202-72</SECTNO> <RESERVED>Order of precedence. [Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 819.5—Set-Asides for Small Business</HD> <SECTION> <SECTNO>819.502</SECTNO> <SUBJECT>Setting aside acquisitions.</SUBJECT> </SECTION> <SECTION> <SECTNO>819.502-2</SECTNO> <SUBJECT>Total small business 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:</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 the appropriate product or service classification and the related size standard are included in each solicitation.</P> </SECTION> <SECTION> <PRTPAGE P="201"/> <SECTNO>819.502-3</SECTNO> <SUBJECT>Partial set-asides.</SUBJECT> <P>When, in accordance with the provisions of FAR 19.502-3, the contracting officer determines that a particular procurement will be partially set aside for small business participation, the solicitation for bids shall include 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 set-aside, page __, applies to item __ through item __ in this solicitation.</P> </EXTRACT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 819.6—Certificates of Competency and Determinations of Responsibility</HD> <SECTION> <SECTNO>819.602</SECTNO> <SUBJECT>Procedures.</SUBJECT> </SECTION> <SECTION> <SECTNO>819.602-3</SECTNO> <SUBJECT>Resolving differences between VA and the Small Business Administration.</SUBJECT> <P>The Director, OSDBU, is the VA liaison with the SBA. Information copies of correspondence sent to the SBA seeking a certificate of competency determination must be concurrently provided to the Director, OSDBU. Before appealing a certificate of competency, the HCA must seek concurrence from the Director, OSDBU.</P> </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 VA 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, OSDBU (00SB), shall be contacted 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 VA 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 VA, the contracting officer will notify SBA of acceptance.</P> <P>(c) The contract will be made between VA and SBA and will be administered by VA.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 819.70—Veteran-Owned and Operated Small Businesses</HD> <SECTION> <SECTNO>819.7001</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) The Small Business Act directs the SBA to give “special consideration” to veterans of the Armed Forces in all SBA programs. It is the policy of VA to encourage participation by all veteran-owned and operated small businesses in VA acquisitions.</P> <P>(b) All VA facilities having procurement requirements for which veteran-owned small businesses are known sources must take affirmative action to solicit these firms and assist them in participating in VA acquisition opportunities.</P> </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> <SECTNO>822.305</SECTNO> <SUBJECT>Contract clause.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 822.4—Labor Standards for Contracts Involving Construction</HD> <SECTNO>822.406</SECTNO> <SUBJECT>Administration and enforcement.</SUBJECT> <SECTNO>822.406-11</SECTNO> <SUBJECT>Contract terminations.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 CFR 5.15(d); 40 U.S.C. 121(c); 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="202"/> <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 issuing a contract for nursing home care, a contracting officer may exempt a contractor from certain requirements of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708) regarding the payment of overtime (see 29 CFR 5.15(d)(2) and 852.222-70).</P> </SECTION> <SECTION> <SECTNO>822.305</SECTNO> <SUBJECT>Contract clause.</SUBJECT> <P>The contracting officer shall insert the clause at 852.222-70, Contract Work Hours and Safety Standards Act—nursing home care contract supplement, in solicitations and contracts for nursing home care when the FAR clause at 52.222-4, Contract Work Hours and Safety Standards Act—Overtime Compensation, is included.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 822.4—Labor Standards for Contracts Involving Construction</HD> <SECTION> <SECTNO>822.406</SECTNO> <SUBJECT>Administration and enforcement.</SUBJECT> </SECTION> <SECTION> <SECTNO>822.406-11</SECTNO> <SUBJECT>Contract terminations.</SUBJECT> <P>(a) Contracting officers must submit any proposed termination of a contract based on violations of the labor standard provisions of the contract to OGC for review and comment prior to taking final action. The submittal must include a detailed explanation of the facts and circumstances involved. Contracting officers, except those in the Office of Construction and Facilities Management, shall forward the submittal to OGC through the DSPE. Contracting officers in the Office of Construction and Facilities Management shall forward the submittal to OGC through the Director, Office of Construction and Facilities Management.</P> <P>(b) If the contract is to be terminated, the DSPE or the Director, Office of Construction and Facilities Management, must submit the reports required by 29 CFR 5.7(d) over the signature of the SPE.</P> </SECTION> </SUBPART> </PART> <PART> <RESERVED>PART 823—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE [RESERVED]</RESERVED> </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>824.203</SECTNO> <SUBJECT>Policy.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 CFR 1.550-1.559 and 1.575-1.584; 40 U.S.C. 121(c), and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 824.1—Protection of Individual Privacy</HD> <SECTION> <SECTNO>824.102</SECTNO> <SUBJECT>General.</SUBJECT> <P>VA rules implementing the Privacy Act of 1974 are in 38 CFR 1.575 through 1.584.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 824.2—Freedom of Information Act</HD> <SECTION> <SECTNO>824.203</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>VA rules implementing the Freedom of Information Act are in 38 CFR 1.550 through 1.559.</P> </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>825.103</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <SECTNO>825.104</SECTNO> <SUBJECT>Nonavailable articles.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 825.2—Buy American Act—Construction Materials</HD> <SECTNO>825.202</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <SECTNO>825.205</SECTNO> <SUBJECT>Post-award determinations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 825.6—Trade Sanctions</HD> <SECTNO>825.602</SECTNO> <SUBJECT>Exceptions.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="203"/> <HD SOURCE="HED">Subpart 825.8—Other International Agreements and Coordination</HD> <SECTNO>825.870</SECTNO> <SUBJECT>Technical assistance.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 825.9—Customs and Duties</HD> <SECTNO>825.902</SECTNO> <SUBJECT>Procedures.</SUBJECT> <SECTNO>825.902-70</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>Acquisition of construction.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>40 U.S.C. 121(c) and 48 CFR 1.301-1.304.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 2717, Jan. 15, 2008, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart 825.1—Buy American Act—Supplies</HD> <SECTION> <SECTNO>825.103</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>(a) <E T="03">Public Interest</E>. When a contracting officer believes that a determination that domestic preference would be inconsistent with the public interest is necessary under FAR 25.103(a), the contracting officer must submit the request for determination to the DSPE for submission to the SPE, who will forward the request to the Secretary for approval. The request for determination must contain all the facts and other pertinent information upon which a determination may be made.</P> <P>(b) <E T="03">Non-availability</E>. (1) For each determination of non-availability made in accordance with FAR 25.103(b)(2)(i), the HCA must do the following:</P> <P>(i) Factually support the determination and include the supporting facts in the contract file.</P> <P>(ii) Forward a copy of the determination, along with supporting documentation, to the DSPE.</P> <P>(2) If the HCA believes that the non-availability of an article is likely to affect future acquisitions, include a recommendation that a copy of the determination and supporting documentation be forwarded to the Civilian Agency Acquisition Council (CAAC) for possible addition to the list of non-available articles in FAR 25.104. The DSPE will decide whether to submit the material to the CAAC.</P> </SECTION> <SECTION> <SECTNO>825.104</SECTNO> <SUBJECT>Nonavailable articles.</SUBJECT> <P>The following items are added to the list of nonavailable articles contained in FAR 25.104: </P> <FP SOURCE="FP-1">Glass, lead</FP> <FP SOURCE="FP-1">Insulin, human</FP> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 825.2—Buy American Act—Construction Materials</HD> <SECTION> <SECTNO>825.202</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>(a) When a determination is required under FAR 25.202(a)(1), the contracting officer must submit the request for determination to the DSPE for submission to the SPE, who will forward the request to the Secretary. The submission must contain all the facts and other pertinent information necessary for the Secretary to make a determination.</P> <P>(b) For each determination of non-availability that the HCA makes in accordance with FAR 25.202(a)(2), the HCA must do the following:</P> <P>(1) Factually support the determination in writing and include the determination in the contract file.</P> <P>(2) Forward a copy of the determination, along with supporting documentation, to the Director, Office of Construction and Facilities Management, through the DSPE.</P> <P>(3) If the HCA believes that the non-availability of an article is likely to affect future acquisitions, include a recommendation that a copy of the determination and supporting documentation be forwarded to the Civilian Agency Acquisition Council (CAAC) for possible addition to the list of non-available articles in FAR 25.104. The DSPE will decide whether to submit the material to the CAAC.</P> </SECTION> <SECTION> <SECTNO>825.205</SECTNO> <SUBJECT>Post-award determinations.</SUBJECT> <P>A post-award determination that an exception to the Buy American Act applies, as provided in FAR 25.205(c), will be made in accordance with FAR 25.202 and 825.202.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="204"/> <HD SOURCE="HED">Subpart 825.6—Trade Sanctions</HD> <SECTION> <SECTNO>825.602</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>When the contracting officer determines it to be in the best interest of the Government, the contracting officer may request an exception to the requirements of FAR 25.601 from the Secretary through the DSPE and the SPE. Each such request must be fully justified and include all pertinent facts, as provided in FAR 25.602(b). The SPE is responsible for notifying the U.S. Trade Representative of approved requests, as required by FAR 25.602(b)(2).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 825.8—Other 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 of the United States by contacting the Executive Director and Chief Operating Officer, VA National Acquisition Center.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart 825.9—Customs and Duties</HD> <SECTION> <SECTNO>825.902</SECTNO> <SUBJECT>Procedures.</SUBJECT> </SECTION>