[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2002 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
48
Chapters 7 to 14
Revised as of October 1, 2002
Federal Acquisition Regulations System
Containing a Codification of documents of general
applicability and future effect
As of October 1, 2002
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 7--Agency for International Development 3
Chapter 8--Department of Veterans Affairs 135
Chapter 9--Department of Energy 265
Chapter 10--Department of the Treasury 519
Chapter 12--Department of Transportation 523
Chapter 13--Department of Commerce 593
Chapter 14--Department of the Interior 627
Finding Aids:
Table of CFR Titles and Chapters........................ 645
Alphabetical List of Agencies Appearing in the CFR...... 663
List of CFR Sections Affected........................... 673
[[Page iv]]
----------------------------
Cite this Code: CFR
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.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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OMB CONTROL NUMBERS
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Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
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[[Page vii]]
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Raymond A. Mosley,
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Office of the Federal Register.
October 1, 2002.
[[Page ix]]
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, 2002.
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.
[[Page x]]
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapters 7 to 14)
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Part
chapter 7--Agency for International Development............. 701
chapter 8--Department of Veterans Affairs................... 801
chapter 9--Department of Energy............................. 901
chapter 10--Department of the Treasury...................... 1033
chapter 12--Department of Transportation.................... 1201
chapter 13--Department of Commerce.......................... 1301
chapter 14--Department of the Interior...................... 1401
[[Page 3]]
CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT
--------------------------------------------------------------------
Editorial Note: Nomenclature changes to chapter 7 appear at 62 FR
40466, July 29, 1997, and corrected at 62 FR 45334, August 27, 1997.
SUBCHAPTER A--GENERAL
Part Page
701 Federal Acquisition Regulation System....... 5
702 Definitions of words and terms.............. 10
703 Improper business practices and personal
conflicts of interest................... 12
704 Administrative matters...................... 12
SUBCHAPTER B--ACQUISITION PLANNING
705 Publicizing contract actions................ 13
706 Competition requirements.................... 13
707 Acquisition planning........................ 16
709 Contractor qualifications................... 16
711 Describing agency needs..................... 16
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
713 Simplified acquisition procedures........... 18
714 Sealed bidding.............................. 18
715 Contracting by negotiation.................. 18
716 Types of contracts.......................... 22
717 Special contracting methods................. 23
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
719 Small business programs..................... 24
722 Application of labor laws to government
acquisition............................. 28
724 Protection of privacy and freedom of
information............................. 31
725 Foreign acquisition......................... 32
726 Other socioeconomic programs................ 33
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
728 Bonds and insurance......................... 37
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731 Contract cost principles and procedures..... 38
732 Contract financing.......................... 42
733 Protests, disputes, and appeals............. 44
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
734 Major system acquisition.................... 47
736 Construction and architect-engineer
contracts............................... 47
737
[Reserved]
SUBCHAPTER G--CONTRACT MANAGEMENT
742 Contract administration..................... 49
745 Government property......................... 49
747 Transportation.............................. 50
749 Termination of contracts.................... 50
750 Extraordinary contractual actions........... 51
SUBCHAPTER H--CLAUSES AND FORMS
752 Solicitation provisions and contract clauses 57
753 Forms....................................... 85
Appendixes A-C to Chapter 7 [Reserved]
Appendix D to Chapter 7--Direct USAID Contracts With a U.S.
Citizen or a U.S. Resident Alien for Personal Services
Abroad.................................................... 85
Appendix E to Chapter 7 [Reserved]
Appendix F to Chapter 7--Use of Collaborative Assistance
Method for Title XII Activities........................... 110
Appendixes G-H to Chapter 7 [Reserved]
Appendix I to Chapter 7--USAID's Academic Publication Policy 114
Appendix J to Chapter 7--Direct USAID Contracts With a
Cooperating Country National and With a Third Country
National for Personal Services Abroad..................... 115
[[Page 5]]
SUBCHAPTER A--GENERAL
PART 701--FEDERAL ACQUISITION REGULATION SYSTEM
Subpart 701.1--Purpose, Authority, Issuance
Sec.
Sec. 701.105 OMB approval under the Paperwork Reduction Act.
Subpart 701.3--U.S. Agency for International Development Acquisition
Regulation
Sec. 701.301 Policy.
Sec. 701.303 Publication and codification.
Subpart 701.4--Deviations from the FAR or AIDAR
Sec. 701.402 Policy.
Sec. 701.470 Procedure.
Subpart 701.6--Career Development, Contracting Authority, and
Responsibilities
Sec. 701.601 General.
Sec. 701.602-1 Authority of contracting officers in resolving audit
recommendations.
Sec. 701.602-3 Ratification of unauthorized commitments.
Sec. 701.603 Selection, appointment, and termination of appointment.
Sec. 701.603-70 Designation of contracting officers.
Subpart 701.7--Determinations and Findings
Sec. 701.704 Content.
Sec. 701.707 Signatory authority.
Authority: 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.
Source: 49 FR 13236, Apr. 3, 1984, unless otherwise noted.
Subpart 701.1--Purpose, Authority, Issuance
Sec. 701.105 OMB approval under the Paperwork Reduction Act.
(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:
------------------------------------------------------------------------
Burden
OMB control Expiration hours
AIDAR segment No. date per
report
------------------------------------------------------------------------
733.7003(c)......................... 0412-0520 08/31/2000 40
752.209-70.......................... 0412-0520 08/31/2000 4
752.219-8........................... 0412-0520 08/31/2000 1
752.245-70.......................... 0412-0520 08/31/2000 .5
752.245-71.......................... 0412-0520 08/31/2000 1
752.7001(a)......................... 0412-0520 08/31/2000 .5
752.7001(b)......................... 0412-0520 08/31/2000 .5
752.7002(j)......................... 0412-0520 08/31/2000 1
752.7003............................ 0412-0520 08/31/2000 8
752.7004(b)(4)...................... 0412-0520 08/31/2000 .5
752.7032............................ 0412-0520 08/31/2000 2
752.7033............................ 0412-0536 08/31/2000 4
------------------------------------------------------------------------
(b) The information requested by the AIDAR sections listed in
paragraph (a) is necessary to allow USAID to prudently administer pubic
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.
(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
[[Page 6]]
reducing the burden, to: U.S. Agency for International (USAID), Office
of Procurement, Policy Division (M/OP/P), Room 7.08-082U, 1300
Pennsylvania Avenue, N.W. Washington, D.C. 20523-7801; and Office of
Management and Budget (OMB), Paperwork Reduction Project (0412-0520),
Washington, D.C. 20503.
[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]
Subpart 701.3--U.S. Agency for International Development Acquisition
Regulation
Source: 64 FR 42040, Aug. 3, 1999, unless otherwise noted.
Sec. 701.301 Policy.
(a) Responsibility. Subject to the direction of the Administrator,
the Director, Office of Procurement (``M/OP Director'') is responsible
for:
(1) Developing and maintaining necessary uniform procurement
policies, procedures, and standards;
(2) Providing assistance to the contracting activities as
appropriate;
(3) Keeping the Administrator and Executive Staff fully informed on
procurement matters which should be brought to their attention; and
(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.
(b) Applicability. (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.
(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.
Sec. 701.303 Publication and codification.
(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.
(b) Appendices. 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.g.,
``Appendix D--Direct USAID Contracts with a U.S. Citizen or a U.S.
Resident Alien for Personal Services Abroad'').
(c) Only the M/OP Director has the authority to issue internal
agency guidance applicable to all agency contracts. The heads of the
various USAID contracting activities (see subparts 701.6 and 702.10) may
issue operating instructions and procedures consistent with the FAR,
AIDAR, and other Agency regulations, policies, and procedures for
application within their organizations. One copy of each such issuance
shall be forwarded to the Office of Procurement, Policy Division (M/OP/
POL). Insofar as possible, such material will be numerically keyed to
the AIDAR.
[[Page 7]]
Subpart 701.4--Deviations from the FAR or AIDAR
Sec. 701.402 Policy.
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.
Sec. 701.470 Procedure.
(a) Deviation from the FAR or AIDAR affecting one contract or
transaction.
(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.
(2) Requests for such deviations may be initiated by the responsible
USAID contracting officer who shall obtain clearance and approvals as
may be required by the head of the contracting activity. Prior to
submission of the deviation request to the head of the contracting
activity for approval, the contracting officer shall obtain written
comments from the Office of Procurement, Policy Division (M/OP/P),
hereinafter referred to as ``M/OP/P''. The M/OP/P shall normally be
allowed 10 working days prior to the submission of the deviation request
to the head of the contracting activity to review the request and to
submit comments. If the exigency of the situation requires more
immediate action, the requesting office may arrange with the M/OP/P for
a shorter review period. In addition to a copy of the deviation request,
the M/OP/P shall be furnished any background or historical data which
will contribute to a more complete understanding of the deviation. The
comments of the M/OP/P shall be made a part of the deviation request
file which is forwarded to the head of the contracting activity.
(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.
(b) Class deviations from the FAR or AIDAR: Class deviations are
those which affect more than one contract or contractor.
(1) Class deviations from the AIDAR will be processed in the same
manner as prescribed in paragraph (a) of this section. Individual heads
of contracting activities have authority to approve class deviations
affecting only contracts within their own contracting activities, except
that the Director, M/OP, has authority to approve class deviations that
affect more than one contracting activity.
(2) Class deviations from the FAR shall be considered jointly by
USAID and the Chairperson of the Civilian Agency Acquisition Council (C/
CAAC) (FAR 1.404) unless, in the judgement of the head of the
contracting activity, after due consideration of the objective of
uniformity, circumstances preclude such consultation. The head of the
contracting activity shall certify on the face of the deviation the
reason for not coordinating with the C/CAAC. In such cases, the M/OP/P,
shall be responsible for notifying the C/CAAC of the class deviation.
(3) Class deviations from the FAR shall be processed as follows:
(i) The request shall be processed in the same manner as paragraph
(a) of this section, except that the M/OP/P, shall be allowed 15 working
days prior to the submission of the deviation request to the head of the
contracting activity to effect the necessary coordination with the C/
CAAC and to submit comments. If the exigency of the situation requires
more immediate action, the requesting office may arrange with the M/OP/P
for a shorter review and coordination period. The comments of the C/CAAC
and the M/OP/P shall be made a part of the deviation request file which
is forwarded to the head of the contracting activity.
(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.
[[Page 8]]
(4) Deviations involving basic agreements or other master type
contracts are considered to involve more than one contract.
(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.
(6) Expiration dates shall be shown on all class deviations.
(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.
(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.
(e) Central record of deviations: Copies of approved deviations
shall be furnished promptly to the M/OP/P, who shall be responsible for
maintaining a central record of all deviations that are granted.
(f) Semiannual report of class deviations:
(1) USAID contracting officers shall submit a semiannual report to
the M/OP/P of all contract actions effected under class deviations to
the FAR and AIDAR which have been approved pursuant to paragraph (b) of
this section.
(2) The report shall contain the applicable deviation control
number, the contractor's name, contract number and task order number (if
appropriate).
(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.
[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]
Subpart 701.6--Career Development, Contracting Authority, and
Responsibilities
Sec. 701.601 General
(a) (1) Pursuant to the delegations in ADS 103.5.10, the M/OP
Director is authorized to act as the Head of the Agency for all purposes
described in the Federal Acquisition Regulation (FAR, 48 CFR Chapter 1),
except for the authority in (48 CFR) FAR sections 6.302-7(a)(2), 6.302-
7(c)(1), 17.602(a), 19.201(c), 27.306(a), 27.306(b), and 30.201-5, or
where the ``head of the agency'' authority is expressly not delegable
under the FAR or AIDAR. Further, the M/OP Director is responsible for
implementing the procurement related aspects of the Foreign Assistance
Act, Executive Order 11223, the Office of Federal Procurement Policy
Act, and other statutory and Executive Branch procurement policies and
requirements applicable to USAID operations, except for those
authorities and responsibilities delegated to the Procurement Executive
as specified in ADS 103.5.10f.
(2) The M/OP Director has specified authority to:
(i) Select and appoint contracting officers and terminate their
appointments in accordance with section 1.603 of the Federal Acquisition
Regulation; and
(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.
(b) Except as otherwise prescribed, the head of each contracting
activity
[[Page 9]]
(as defined in 702.170) is responsible for the procurement of supplies
and services under or assigned to the procurement cognizance of his or
her activity. The heads of USAID contracting activities are vested with
broad authority to carry out the programs and activities for which they
are responsible. This authority includes authority to execute contracts
and the establishment of procurement policies, procedures, and standards
appropriate for their programs and activities, subject to government-
wide and USAID requirements and restrictions, such as those found at
701.376-4 and particularly 701.603-70, the USAID policy regarding the
direct-hire status of contracting officers.
(c) The authority of heads of contracting activities to execute
contracts is limited as follows:
(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.
(2) Director, Center for Human Capacity Development (G/HCD).
Authority to execute simplified acquisitions up to $10,000. Unlimited
authority for procuring participant training based on published catalog
prices, using M/OP/E approved forms. May issue warrants for simplified
acquisitions up to $10,000 to qualified individuals on his or her staff.
(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.
[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]
Sec. 701.602-1 Authority of contracting officers in resolving
audit recommendations.
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.
[62 FR 40466, July 29, 1997]
Sec. 701.602-3 Ratification of unauthorized commitments.
(a) [Reserved]
(b) Policy. (1) [Reserved]
(2) In order to maintain management oversight and controls on
unauthorized commitments, authority to ratify unauthorized commitments
within USAID is reserved to the M/OP Director.
[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 42040, Aug. 3, 1999]
Sec. 603 Selection, appointment, and termination of appointment.
Sec. 701.603-70 Designation of contracting officers.
A contracting officer represents the U.S. Government through the
exercise of his/her delegated authority to negotiate, sign, and
administer contracts on behalf of the U.S. Government. The contracting
officer's duties are sensitive, specialized, and responsible. In order
to insure proper accountability, and to preclude possible security,
conflict of interest, or jurisdiction problems, it is USAID policy that
USAID
[[Page 10]]
contracting officers must be U.S. citizen direct-hire employees of the
U.S. Government.
[49 FR 13236, Apr. 3, 1984, as amended at 61 FR 39091, July 26, 1996]
Subpart 701.7--Determinations and Findings
Sec. 701.704 Content.
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.
[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40466, July 29, 1997]
Sec. 701.707 Signatory authority.
Unless otherwise specified in the FAR or AIDAR section under which
the D&F is issued, the Contracting Officer is the signing official.
[58 FR 8702, Feb. 17, 1993]
PART 702--DEFINITIONS OF WORDS AND TERMS
Subpart 702.170--Definitions
Sec.
Sec. 702.170-1 USAID.
Sec. 702.170-2 Administrator.
Sec. 702.170-3 Contracting activities.
Sec. 702.170-4 Cooperating country.
Sec. 702.170-5 Cooperating country national (CCN).
Sec. 702.170-6 Executive agency.
Sec. 702.170-7 Foreign Assistance Act.
Sec. 702.170-8 Government, Federal, State, local and political
subdivisions.
Sec. 702.170-9 Head of agency.
Sec. 702.170-10 Head of the contracting activity.
Sec. 702.170-11 Mission.
Sec. 702.170-12 Overseas.
Sec. 702.170-13 Procurement Executive.
Sec. 702.170-14 [Reserved]
Sec. 702.170-15 Third country national (TCN).
Sec. 702.170-16 U.S. national (USN).
Sec. 702.170-17 Automated Directives System.
Subpart 702.270--Definitions Clause
Sec. 702.270-1 Definitions clause.
Authority: 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.
Source: 49 FR 13238, Apr. 3, 1984, unless otherwise noted.
Subpart 702.170--Definitions
Sec. 702.170-1 USAID.
USAID means the U.S. Agency for International Development and its
predecessor agencies, including the International Cooperation
Administration (ICA).
Sec. 702.170-2 Administrator.
Administrator means the Administrator or Deputy Administrator of the
U.S. Agency for International Development.
Sec. 702.170-3 Contracting activities.
The contracting activities within USAID are:
(a) The USAID/Washington activities. The contracting activities
located in Washington are the Office of Procurement, Office of Foreign
Disaster Assistance, and Center for Human Capacity Development (G/HCD).
Subject to the limitations stated in 702.170-10, these contracting
activities are responsible for procurement related to programs and
activities for their areas. The Office of Procurement is responsible for
procurements which do not fall within the responsibility of other
contracting activities, or which are otherwise assigned to it.
(b) The overseas field contracting activities. 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.
[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]
Sec. 702.170-4 Cooperating country.
Cooperating country means a foreign country in which there is a
program or activity administered by USAID.
[[Page 11]]
Sec. 702.170-5 Cooperating country national (CCN).
Cooperating country national (CCN) means an individual who is a
cooperating country citizen or a non-cooperating country citizen
lawfully admitted for permanent residence in the cooperating country.
Sec. 702.170-6 Executive agency.
Executive agency includes the U.S. Agency for International
Development (USAID) and its predecessor agencies, including the
International Cooperation Administration.
Sec. 702.170-7 Foreign Assistance Act.
Foreign Assistance Act means the Foreign Assistance Act of 1961, as
amended (22 U.S.C., Chapter 32).
Sec. 702.170-8 Government, Federal, State, local and political
subdivisions.
As used in the FAR and AIDAR, these terms do not refer to foreign
entities except as otherwise stated.
Sec. 702.170-9 Head of agency.
Head of agency means, for USAID, the Administrator, and the Deputy
Administrator, and in accordance with the responsibilities and
limitations set forth in 701.601(a)(1), the M/OP Director.
[50 FR 52780, Dec. 26, 1985, as amended at 64 FR 42041, Aug. 3, 1999]
Sec. 702.170-10 Head of the contracting activity.
(a) The heads of USAID contracting activities are listed below. The
limits of their contracting authority are set forth in 701.601.
(1) USAID/Washington Heads of Contracting Activities:
(i) Director, Office of Procurement;
(ii) Director, Office of U.S. Foreign Disaster Assistance; and
(iii) Director, Center for Human Capacity Development (G/HCD).
(2) Overseas Heads of Contracting Activities: Each Mission Director
or principal USAID officer at post (e.g. USAID Representative, USAID
Affairs Officer, etc.)
(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.
[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]
Sec. 702.170-11 Mission.
Mission 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.
Sec. 702.170-12 Overseas.
Overseas means outside the United States, its possessions, and
Puerto Rico.
Sec. 702.170-13 Procurement Executive.
``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.
[64 FR 42041, Aug. 3, 1999]
Sec. 702.170-14 [Reserved]
Sec. 702.170-15 Third country national (TCN).
Third country national (TCN) 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).
[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985,
as amended at 62 FR 40466, July 29, 1997]
Sec. 702.170-16 U.S. national (USN).
U.S. national (USN) means an individual who is a U.S. citizen or a
non-U.S. citizen lawfully admitted for permanent residence in the United
States.
[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985]
Sec. 702.170-17 Automated Directives System.
``Automated Directives System'' (``ADS'') sets forth the Agency's
policies and essential procedures, as well
[[Page 12]]
as supplementary informational references. It contains six functional
series, interim policy updates, valid USAID handbook chapters, a
resource library, and a glossary. References to ``ADS'' throughout this
chapter 7 are references to the Automated Directives System.
Procurement-related sections of this system are accessible to the
general public at the following internet address: http://
www.info.usaid.gov/pubs/ads. 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 [email protected].
[64 FR 42041, Aug. 3, 1999]
Subpart 702.270--Definitions Clause
Sec. 702.270-1 Definitions clause.
Use the appropriate clause in 752.202-1, in addition to the clause
in FAR 52.202-1.
PART 703--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 703.1--Safeguards
Sec.
Sec. 703.104-5 Disclosure, protection, and marking of proprietary and
source information.
Sec. 703.104-10.1 Violations or possible violations.
Authority: 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.
Subpart 703.1--Safeguards
Sec. 703.104-5 Disclosure, protection, and marking of proprietary
and source information.
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).
[64 FR 16648, Apr. 6, 1999]
Sec. 703.104-10.1 Violations or possible violations.
Requests for concurrence under paragraph (a)(1) of FAR 3.104-10
shall be forwarded to one level above the Contracting Officer.
[64 FR 16648, Apr. 6, 1999]
PART 704--ADMINISTRATIVE MATTERS
Subpart 704.4--Safeguarding Classified Information Within Industry
Sec.
Sec. 704.404 Contract clause.
Subpart 704.8--Contract Files [Reserved]
Authority: 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.
Subpart 704.4--Safeguarding Classified Information Within Industry
Sec. 704.404 Contract clause.
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.
[49 FR 13239, Apr. 3, 1984. Redesignated at 54 FR 16122, Apr. 21, 1989,
as amended at 62 FR 40467, July 29, 1997]
Subpart 704.8--Contract Files [Reserved]
[[Page 13]]
SUBCHAPTER B--ACQUISITION PLANNING
PART 705--PUBLICIZING CONTRACT ACTIONS
Sec.
Sec. 705.002 Policy.
Subpart 705.2--Synopsis of Proposed Contract Actions
Sec. 705.202 Exceptions.
Sec. 705.207 Preparation and transmittal of certain synopses.
Sec. 705.502 Authority.
Authority: 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.
Sec. 705.002 Policy.
(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.
(b) USAID policy is to include all Commerce Business Daily Notices
and solicitations on the Internet.
[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]
Subpart 705.2--Synopsis of Proposed Contract Actions
Sec. 705.202 Exceptions.
(a) [Reserved]
(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).
(c) Advance notice is not required for contract actions undertaken
in accordance with 706.302-71.
[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]
Sec. 705.207 Preparation and transmittal of certain synopses.
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:
(a) Which is to be funded from amounts referred to in section
706.302-71(a); and
(b) Which is expected to exceed $100,000.
For exceptions, see 726.7005.
[56 FR 27208, June 13, 1991, as amended at 62 FR 40467, July 29, 1997]
Sec. 705.502 Authority.
(a) The M/OP Director, acting as head of the Agency under the
authority of 701.601(a)(1), hereby authorizes USAID contracting officers
to place paid advertisements and notices in newspapers and periodicals.
Contracting officers shall document the contract file to reflect
consideration of the requirements of (48 CFR) FAR 5.101(b)(4).
[64 FR 5006, Feb. 2, 1999, as amended at 64 FR 42042, Aug. 3, 1999]
PART 706--COMPETITION REQUIREMENTS
Sec.
Sec. 706.003 Definitions.
Subparts 706.1-706.2 [Reserved]
[[Page 14]]
Subpart 706.3--Other Than Full and Open Competition
Sec. 706.302-5 Authorized or required by statute.
Sec. 706.302-70 Impairment of foreign aid programs.
Sec. 706.302-71 Small disadvantaged businesses.
Sec. 706.303-1 Requirements.
Subpart 706.5--Competition Advocates
Sec. 706.501 Requirement.
Authority: 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.
Sec. 706.003 Definitions.
Procuring activity means ``contracting activity'', as defined in
702.170-3.
[50 FR 40528, Oct. 4, 1985]
Subparts 706.1-706.2 [Reserved]
Subpart 706.3--Other Than Full and Open Competition
Sec. 706.302-5 Authorized or required by statute.
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.
[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40467, July 29, 1997]
Sec. 706.302-70 Impairment of foreign aid programs.
(a) Authority. (1) Citation: 40 U.S.C. 474.
(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.
(b) Application. This authority may be used for:
(1) An award under section 636(a)(3) of the Foreign Assistance Act
of 1961, as amended, involving a personal services contractor serving
abroad;
(2) An award of $250,000 or less by an overseas contracting
activity;
(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
(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.
(4) Awards under AIDAR 715.370-1 (Title XII selection procedure--
general) or 715.370-2 (Title XII selection procedure--collaborative
assistance).
(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.
(c) Limitations. (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.
(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.
(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
[[Page 15]]
be reflected in the determination and finding.
(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.
[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]
Sec. 706.302-71 Small disadvantaged businesses.
(a) Authority. (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).
(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.
(b) Application. This authority may be used only if the Agency
determines in accordance with 726.7004 that:
(1) The acquisition is to be funded from amounts referred to in
paragraph (a) of this section;
(2) Award of the acquisition to an eligible organization is
appropriate to meet the requirement in paragraph (a)(2) of this section;
and
(3) After considering whether the acquisition can be made under the
authority of section 8(a), award under section 8(a) is not practicable.
(c) Limitations. (1) Offers shall be requested from as many
potential offerors as is practicable under the circumstances.
(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.
[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]
Sec. 706.303-1 Requirements.
(a)-(c) [Reserved]
(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.
[50 FR 16086, Apr. 24, 1985]
Subpart 706.5--Competition Advocates
Sec. 706.501 Requirement.
The USAID Administrator delegated the authority to designate the
agency competition advocate and a competition advocate for each agency
procuring activity (see 706.003 of this part) to the M/OP Director. The
M/OP Director, under the Administrator's delegation, has designated the
M/OP Deputy Director for Policy, Evaluation and Support as the Agency's
competition advocate and the deputy head of each
[[Page 16]]
contracting activity as the competition advocate for each activity. The
competition advocate for M/OP is the Deputy Director for Operations. If
there is no deputy, the head of the contracting activity is designated
the competition advocate for that activity. The competition advocate's
duties may not be redelegated, but can be exercised by persons serving
as acting deputy (or acting head) of the contracting activity. For
definitions of contracting activity and head of contracting activity,
see 702.170-3 and 702.170-10, respectively.
[59 FR 33446, June 29, 1994, as amended at 64 FR 5006, Feb. 2, 1999; 64
FR 42040, Aug. 3, 1999]
PART 707--ACQUISITION PLANNING
Subpart 707.1--Acquisition Plans [Reserved]
PART 709--CONTRACTOR QUALIFICATIONS
Sec.
Subpart 709.4--Debarment, Suspension and Ineligibility
Sec. 709.403 Definitions.
Subpart 709.5--Organizational Conflicts of Interest
Sec. 709.503 Waiver.
Sec. 709.507-2 Contract clause.
Authority: 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.
Subpart 709.4--Debarment, Suspension and Ineligibility
Sec. 709.403 Definitions.
Debarring official in USAID is the M/OP Director.
Suspending official in USAID is the M/OP Director.
[62 FR 40467, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]
Subpart 709.5--Organizational Conflicts of Interest
Sec. 709.503 Waiver.
For purposes of approving waivers or further delegating the
authority to approve waivers pursuant to FAR 9.503, the M/OP Director is
the Agency head (see AIDAR 701.601(a)(1)). The M/OP Director hereby
delegates the authority to approve waivers pursuant to FAR 9.503 to the
heads of USAID contracting activities, as defined in AIDAR 702.170-10.
[64 FR 42042, Aug. 3, 1999]
Sec. 709.507-2 Contract clause.
(a)-(b) [Reserved]
(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.
[58 FR 42255, Aug. 9, 1993, as amended at 64 FR 5006, Feb. 2, 1999]
PART 711--DESCRIBING AGENCY NEEDS
Sec.
Sec. 711.002-70 Metric system waivers.
Sec. 711.002-71 Solicitation provisions and contract clauses.
Authority: 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.
Sec. 711.002-70 Metric system waivers.
(a) Criteria. 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.
(b) Authorization. (1) The USAID Metric Executive (as designated in
ADS
[[Page 17]]
chapter 323), the contracting officer, and the USAID official who
approves the procurement requirement are authorized to waive the metric
requirement for one of the above reasons. The USAID Metric Executive is
authorized to overrule a decision to grant a waiver, or to nullify a
blanket waiver made by another approving official so long as a
contractor's rights under an executed contract are not infringed upon.
(2) A blanket waiver for a class of multiple transactions may be
issued for a term not to exceed three years.
(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.
(c) Records and reporting. (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.
(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.
(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.
[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]
Sec. 711.002-71 Solicitation provisions and contract clauses.
The contracting officer shall insert the clause at 752.211-70 in all
USAID-direct solicitations and contracts.
[57 FR 23321, June 3, 1992. Redesignated and amended at 61 FR 39091,
July 26, 1996]
[[Page 18]]
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 713--SIMPLIFIED ACQUISITION PROCEDURES
Sec.
Sec. 713.000 Scope of part.
Subpart 713.1--General
Sec. 713.101 Definitions.
Authority: 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.
Source: 61 FR 39091, July 26, 1996, unless otherwise noted.
Sec. 713.000 Scope of part.
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.
Subpart 713.1--General
Sec. 713.101 Definitions.
Accessorial costs 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.
PART 714--SEALED BIDDING
Subpart 714.4--Opening of Bids and Award of Contract
Sec.
Sec. 714.406-3 Other mistakes disclosed before award.
Sec. 714.406-4 Disclosure of mistakes after award.
Authority: 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.
Subpart 714.4--Opening of Bids and Award of Contract
Sec. 714.406-3 Other mistakes disclosed before award.
The M/OP Director is the designated central authority to make the
determinations described in FAR 14.406-3.
[49 FR 13240, Apr. 3, 1984, as amended at 54 FR 46389, Nov. 3, 1989; 64
FR 42040, Aug. 3, 1999]
Sec. 714.406-4 Disclosure of mistakes after award.
The M/OP Director is the designated central authority to make the
determinations described in FAR 14.406-4.
[49 FR 13240, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999]
PART 715--CONTRACTING BY NEGOTIATION
Subpart 715.3--Source Selection
Sec.
Sec. 715.303 Responsibilities.
Sec. 715.303-70 Responsibilities of USAID evaluation committees.
Sec. 715.305 Proposal evaluation.
Sec. 715.370 Alternative source selection procedures.
Sec. 715.370-1 Title XII selection procedure--general.
Sec. 715.370-2 Title XII selection procedure--collaborative assistance.
Subpart 715.6--Unsolicited Proposals
Sec. 715.602 Policy.
Sec. 715.604 Agency points of contact.
Authority: 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.
Source: 49 FR 13240, Apr. 3, 1984, unless otherwise noted.
[[Page 19]]
Subpart 715.3--Source Selection
Sec. 715.303 Responsibilities.
Sec. 715.303-70 Responsibilities of USAID evaluation committees.
(a) Establishment and composition of USAID evaluation committees. 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.
(b) Technical evaluation procedures. (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.
(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.
(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.
(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.
(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.
[61 FR 39091, July 26, 1996. Redesignated and amended at 64 FR 16648,
Apr. 6, 1999]
Sec. 715.305 Proposal evaluation.
(a)(1) [Reserved]
(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:
AIDNET: Past [email protected]@aidw/Internet:
[email protected].)
(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.
(c) The Contracting Officer may authorize release of proposals
outside the Government for evaluation--
(1) When an Evaluation Assistance Contract (EAC) is required to
provide technical advisory or other services relating to the evaluation
of proposals; or
(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).
[64 FR 16648, Apr. 6, 1999; 64 FR 25405, May 11, 1999, as amended at 65
FR 36642, June 9, 2000]
Sec. 715.370 Alternative source selection procedures.
The following selection procedures may be used, when appropriate,
for activities covered under Title XII of the Foreign Assistance Act of
1961, as amended.
[64 FR 16649, Apr. 6, 1999]
Sec. 715.370-1 Title XII selection procedure--general.
(a) General. 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
[[Page 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.
(b) Scope of subsection. 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.
(c) Applicability. 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.
(d) Solicitation, evaluation, and selection procedures. (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.
(2) The project office shall--
(i) Prepare selection criteria for evaluation of eligible
institutions for use in preparing the source list, determining
predominantly qualified sources, and selecting the contractor;
(ii) Prepare an initial list of eligible institutions considered
qualified to perform the proposed activity;
(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).
(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.
(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.
(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.
(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:
(i) State the evaluation criteria;
(ii) List all of the eligible institutions whose proposals were
reviewed;
(iii) Report on the ranking and rationale therefor for all
proposals;
(iv) Indicate the eligible institution or institutions considered
best qualified.
(6) The evaluation committee will submit the selection memorandum to
the contracting officer for review and approval.
(7) The contracting officer will either approve the selection
memorandum, or return it to the evaluation committee for reconsideration
for specified reasons.
(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.
[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]
[[Page 21]]
Sec. 715.370-2 Title XII selection procedure--collaborative
assistance.
(a) General. (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.
(b) Scope of subsection. 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.
(c) Determinations. The following findings and determinations must
be made prior to initiating any contract actions under the collaborative
assistance method:
(1) The cognizant technical office makes a preliminary finding that
an activity:
(i) Is authorized by Title XII; and
(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.
(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.
(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.
(d) Evaluation and selection. (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.
(2) The evaluation panel shall:
(i) Prepare evaluation and selection criteria;
(ii) Prepare an initial source list of eligible institutions
considered qualified to perform the proposed project; and
(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.
(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:
(i) The formal determinations required by paragraph (c) of this
section;
(ii) The evaluation criteria which have been determined; and
(iii) The recommended source list and the rationale therefor.
(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.
(5) The contracting officer will transmit all expressions of
interest to the evaluation panel for evaluation and selection
recommendation. The panel
[[Page 22]]
may conduct on site evaluations at its discretion, as part of the
evaluation process.
(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.
(7) The contracting officer will review the selection
recommendation, obtain necessary cost and other data, and proceed to
negotiate with the recommended sources.
[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]
Subpart 715.6--Unsolicited Proposals
Sec. 715.602 Policy.
(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.
(b) USAID's basic policies and procedures regarding unsolicited
proposals are those established in FAR subpart 15.6 and this subpart.
(c) For detailed information on unsolicited proposals, see 715.604;
for initial contact point within USAID, see 715.604(c).
[49 FR 13240, Apr. 3, 1984. Redesignated and amended at 64 FR 16648,
16649, Apr. 6, 1999; 64 FR 25405, May 11, 1999]
Sec. 715.604 Agency points of contact.
(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.
(b) The information available concerns:
(1) Contact points within USAID;
(2) Definitions;
(3) Characteristics of a suitable proposal;
(4) Determination of contractor responsibility;
(5) Organizational conflict of interest;
(6) Cost sharing; and
(7) Procedures for submission and evaluation of proposals.
(c) Initial inquiries and subsequent unsolicited proposals should be
submitted to the address specified in paragraph (a) of this section.
[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]
PART 716--TYPES OF CONTRACTS
Subpart 716.3--Cost Reimbursement Contracts
Sec.
Sec. 716.303 Cost-sharing contracts.
Sec. 716.306 [Reserved]
Sec. 709.406 Contract clauses.
Subpart 716.5 [Reserved]
Authority: 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.
Subpart 716.3--Cost Reimbursement Contracts
Sec. 716.303 Cost-sharing contracts.
(a)-(b) [Reserved]
[[Page 23]]
(c) Limitations. In addition to the limitations specified in FAR
16.301-3, prior approval of the M/OP Director (see 701.601(a)(1)) is
required in order to use a cost-sharing contract with an educational
institution.
[54 FR 46390, Nov. 3, 1989, as amended at 64 FR 42042, Aug. 3, 1999]
Sec. 716.306 [Reserved]
Sec. 716.406 Contract clauses.
The Contracting Officer shall include the clause at 752.216-70,
Award Fee, in solicitations and contracts when an award-fee contract is
contemplated.
[64 FR 5007, Feb. 2, 1999]
Subpart 716.5 [Reserved]
PART 717--SPECIAL CONTRACTING METHODS
Authority: 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.
Subpart 717.70--Pharmaceutical Products
Sec. 717.700 General.
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.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]
[[Page 24]]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 719--SMALL BUSINESS PROGRAMS
Subpart 719.2--Policies
Sec.
Sec. 719.270 Small business policies.
Sec. 719.271 Agency program direction and operation.
Sec. 719.271-1 General.
Sec. 719.271-2 The USAID Office of Small and Disadvantaged Business
Utilization (SDB).
Sec. 719.271-3 USAID contracting officers.
Sec. 719.271-4 Heads of contracting activities.
Sec. 719.271-5 Cognizant technical officers.
Sec. 719.271-6 Small business screening procedure.
Sec. 719.271-7 Reports on procurement actions that are exempted from
screening.
Sec. 719.272 Small disadvantaged business policies.
Authority: 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.
Source: 49 FR 13243, Apr. 3, 1984, unless otherwise noted.
Subpart 719.2--Policies
Sec. 719.270 Small business policies.
(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.
(b) It is the policy of USAID to:
(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
(2) Increase their participation in USAID procurement.
(c) In furtherance of this policy:
(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;
(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
(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)).
(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).
(e) Where practicable and desirable, small business and minority
business enterprise award goals will be established for the respective
USAID/Washington procuring activities to provide incentive for
contracting personnel to increase awards to small firms. The goals will
be set by SDB after consultation with the respective head of the
contracting activity (see subsection 702.170-10).
(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.
[[Page 25]]
(g) The above suspension shall not apply where the contracting
officer:
(1) Certifies in writing, with supporting information, that in order
to protect the public interest award must be made without delay;
(2) Promptly provides a copy of said certification to SDB; and
(3) Includes a copy of the certification in the contract file.
(h) SDB shall be the Small Business Advisor and Minority Business
Procurement Policy Manager for all USAID/Washington procuring
activities.
(i) The details on the Agency's direction and operation of the small
business program are set forth in 719.271.
(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.
[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]
Sec. 719.271 Agency program direction and operation.
Sec. 719.271-1 General.
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.
Sec. 719.271-2 The USAID Office of Small and Disadvantaged
Business Utilization (SDB).
(a) SDB is responsible for administering, implementing, and
coordinating the Agency's small business (including minority business
enterprises) program.
(b) SDB, headed by the Director SDB, who also serves as the Minority
Business Procurement Manager, shall be specifically responsible for:
(1) Developing policies, plans, and procedures for a coordinated
Agency-wide small business and minority business enterprise procurement
program;
(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;
(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;
(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;
(5) Cooperating with contracting officers in administering the
performance of contractors subject to the Small Business and Minority
Business Enterprises Subcontracting Program clauses;
(6) Developing a plan of operation designed to increase the share of
contracts awarded to small business concerns, including small minority
business enterprises;
(7) Establishing small business class set-aside for types and
classes of items of services where appropriate;
(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);
(9) Maintaining a program designed to:
(i) Locate capable small business sources for current and future
procurements through GSA and other methods;
(ii) Utilize every source available to determine if an item is
obtainable from small business; and
[[Page 26]]
(iii) Develop adequate small business competition on all appropriate
procurements;
(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;
(11) Recommending that portions of large planned procurements or
suitable components of end items or services be purchased separately so
small firms may compete;
(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;
(13) Assisting small business concerns with individual problems;
(14) Promoting increased awareness by the technical staff of the
availability of small business firms;
(15) Making available to GSA copies of solicitations when so
requested;
(16) Counseling non-responsive or non-responsible small business
bidders/offerors to help them participate more effectively in future
solicitations; and
(17) Examining bidders lists to make certain small business firms
are appropriately identified and adequately represented for both
negotiated and advertised procurements.
[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]
Sec. 719.271-3 USAID contracting officers.
With respect to procurement activities within their jurisidiction,
contracting officers are responsible for:
(a) Being thoroughly familiar with part 19 of the FAR and this
section dealing with the small business program;
(b) Screening abstracts of bids and other award data to determine
set-aside potential for future procurements;
(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;
(d) Reviewing types and classes of items and services to determine
where small business set-asides can be applied;
(e) Recommending that portions of large planned procurements of
suitable components of end items or services be purchased separately so
small firms may compete;
(f) Making a unilateral determination for total or partial small
business set-asides in accordance with Subpart 19.5 of the Federal
Acquisition Regulations;
(g) Submitting proposed procurement actions for USAID/Washington
contracts to SDB for screening (see 719.271-6);
(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;
(i) Prior to rendering a final decision on a proposed non-
competitive procurement action, and as part of his/her findings and
determinations, the contracting officer shall consider the
recommendations, if any, of SDB together with the latter's list of
additional sources;
(j) As appropriate, referring small business concerns, including
small minority business enterprises, to SDB for information and advice;
(k) Promoting increased awareness by the technical staff of the
availability of small business concerns;
(l) Making available to SDB copies of solicitations when requested;
(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
[[Page 27]]
(n) Including the Small Business and Minority Business Enterprises
Subcontracting Program clauses in all contracts where required by part
19 of the FAR.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996; 62
FR 40468, July 29, 1997]
Sec. 719.271-4 Heads of contracting activities.
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:
(a) Rendering decisions in cases resulting from non-acceptances by
their contracting officers of set-aside recommendations made by SDB;
(b) Consulting with SDB in establishing small business and minority
business enterprise award goals, where practicable and desirable; and
(c) Advising cognizant technical officers of their responsibilities
as set forth in 719.271-5.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]
Sec. 719.271-5 Cognizant technical officers.
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:
(a) Consult with SDB on the availability and capabilities of small
business firms to permit making a tentative set-aside determination
where appropriate; and
(b) Provide sufficient procurement lead time in the activity
implementation schedule to allow potential small business participation.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]
Sec. 719.271-6 Small business screening procedure.
(a) General. All USAID/Washington proposed contract actions in
excess of the simplified acquisition threshold shall be screened by SDB,
with the exception of:
(1) Class set-asides and those unilaterally set-aside by contracting
officers (719.271-3(f));
(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));
(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.
(4) Those involving the payment of tuition and fees for participant
training at academic institutions; and
(5) Personal services contract requirements (see 719.270).
(b) Preparation of Form USAID 1410-14 (the Small Business/Minority
Business Enterprise Procurement Review Form). (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.
(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.
(3) The contracting officer shall complete blocks 2, 3, 4, 5, 9, and
10 (when appropriate) prior to submittal to SDB.
(c) Screening of Form USAID 1410-14 by SDB. (1) SDB will screen the
contracting officer's recommendations on set-aside potential, small
business subcontracting opportunities, and section 8(a) subcontracting,
and furnish him/her with either a written concurrence in his/her
recommendations or written counter-recommendations on the original and
duplicate copy within five working days from receipt of the form from
the contracting officer.
(2) SDB will complete Blocks 1, 6, 7, 8, 11, and 12 (when
appropriate) prior to returning the screened form to the contracting
officer.
(d) Concurrence or rejection procedure. (1) The contracting officer
shall complete Block 13 upon receipt of the original and duplicate copy
of the screened form from SDB.
[[Page 28]]
(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.
(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.
(e) Appeal procedure. (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.
(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.
(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.
[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]
Sec. 719.271-7 Reports on procurement actions that are exempted
from screening.
(a) Unilateral and class set-asides. 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.
(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.
(2) Such advice shall be considered a counter-recommendation and
shall be processed in accordance with 719.271-6 (d) and (e).
(b) Public exigency exemption. 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).
(c) Institution building contract (IBC) exemption. 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.
(d) Personal services contract exemption. Preparation of Form USAID
1410-14 is not required for personal services contracts.
Sec. 719.272 Small disadvantaged business policies.
In addition to the requirements in FAR part 19, part 726 provides
for contracting and subcontracting with small disadvantaged businesses
and other disadvantaged enterprises based on provisions of the foreign
assistance appropriations acts.
[58 FR 8702, Feb. 17, 1993]
PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
Subpart 722.1--Basic Labor Policies
Sec.
Sec. 722.103 Overtime.
Sec. 722.103-1 Definitions.
Sec. 722.103-2 Policy.
[[Page 29]]
Sec. 722.103-3 [Reserved]
Sec. 722.103-4 Approvals.
Sec. 722.170 Employment of third country nationals (TCN's) and
cooperating country nationals (CCN's).
Subpart 722.8--Equal Employment Opportuntity
Sec. 722.805-70 Procedures.
Authority: 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.
Source: 49 FR 13246, Apr. 3, 1984, unless otherwise noted.
Subpart 722.1--Basic Labor Policies
Sec. 722.103 Overtime.
Sec. 722.103-1 Definitions.
Compensatory time off 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.
Sec. 722.103-2 Policy.
(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.
(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.
[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]
Sec. 722.103-3 [Reserved]
Sec. 722.103-4 Approvals.
The contracting officer may make the determinations referred to in
FAR 22.103-4.
[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]
Sec. 722.170 Employment of third country nationals (TCN's) and
cooperating country nationals (CCN's).
(a) General. 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.)
(b) Compensation. Compensation, including merit or promotion
increases paid to TCN's and CCN's may not, without the approval of the
Mission Director or the Assistant Administrator having program
responsibility for the project, exceed the prevailing compensation paid
to personnel performing comparable work in the cooperating country as
determined by the USAID Mission. Unless otherwise authorized by the
Mission Director or the Assistant Administrator having program
responsibility for the project, the compensation of such TCN and CCN
employees shall be paid in the currency of the cooperating country.
(c) Allowances and differentials. 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.
[[Page 30]]
(d) Country and security clearances. 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.
(e) Physical fitness. 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.
(f) Workweek, holidays, and leave. 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.
(g) Travel and transportation for TCN's and CCN's. 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.
(h) Household effects and motor vehicles. 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.
Subpart 722.8--Equal Employment Opportunity
Sec. 722.805-70 Procedures.
(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.
(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.
(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).
(2) If completed and signed Reps and Certs raise questions
concerning the offeror's compliance with EEO requirements, or if the
contracting officer has information from any other source which calls
into question the offeror's eligibility for award based on this section
and (48 CFR) FAR 22.8, the contracting officer must refer the matter to
the cognizant regional Department of Labor Office of Federal Contract
Compliance Programs (OFCCP) regardless of the estimated value of the
contract; only OFCCP may make a determination of non-compliance with EEO
requirements.
(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.
[[Page 31]]
(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.
(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.
(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:
(i) Name, title, address, and telephone number of a contract person
for the prospective contractor;
(ii) A description of the type of organization (university,
nonprofit, etc.) and its ownership (private, foreign, state, etc.).
(iii) Names and addresses of the organizations in a joint venture
(if any).
(iv) Type of procurement (new contract--RFP or IFB, amendment, etc.)
and the period of the contract.
(v) Copy of approved Reps and Certs.
(d) In the event that OFCCP reports that the offeror is not in
compliance, negotiations with the offeror shall be terminated.
(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:
(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.
(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.
(f) Documentation in the event of non-compliance. In the event OFCCP
determines that a prospective contractor is not in compliance, a copy of
OFCCP's written determination, and a summary of resultant action taken
(termination of negotiations, notification of offeror and cognizant
technical officer, negotiation with next offeror in competitive range,
resolicitation, etc.) will be placed in the contract file for any
contract which may result, together with other records related to
unsuccessful offers, and retained for at least six months following
award.
[64 FR 5007, Feb. 2, 1999; 64 FR 18481, Apr. 14, 1999]
PART 724--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 724.2--Freedom of Information Act
Sec.
Sec. 724.202 Policy.
[[Page 32]]
Authority: 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.
Source: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.
Subpart 724.2--Freedom of Information Act
Sec. 724.202 Policy.
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).
PART 725--FOREIGN ACQUISITION
Subpart 725.1--Buy American Act--Supplies
Sec.
Sec. 725.170 Exceptions for Foreign Assistance Act functions.
Subpart 725.4--Trade Agreements
Sec. 725.403 Exceptions.
Subpart 725.70--Source, Origin, and Nationality
Sec. 725.701 General.
Sec. 725.702 Designation of authorized geographic code.
Sec. 725.703 Contractor employees.
Sec. 725.704 Source, origin and nationality requirements--Contract
clause.
Sec. 725.705 Local procurement--contract clause.
Sec. 725.706 Geographic source waivers.
Authority: 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.
Source: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.
Subpart 725.1--Buy American Act--Supplies
Sec. 725.170 Exceptions for Foreign Assistance Act functions.
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.
Subpart 725.4--Trade Agreements
Sec. 725.403 Exceptions.
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.
[61 FR 39093, July 26, 1996]
Subpart 725.70--Source, Origin, and Nationality
Sec. 725.701 General.
USAID's source, origin and nationality requirements for program-
funded contracts and subcontracts are established in 22 CFR part 228,
Rules on Source, Origin and nationality for Commodities and Services
Financed by USAID. These policies as they apply to subcontracts and
purchases under USAID program-funded contracts have been incorporated
into the contract clauses referenced in 725.704 and 725.705 of this
subpart.
[62 FR 40468, July 29, 1997]
Sec. 725.702 Designation of authorized geographic code.
(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
[[Page 33]]
geographic code is specified, the authorized code will be deemed to be
Geographic Code 000, the U.S.
(b) Individual country and geographic codes are defined in the
Agency Geographic Code Book.
[49 FR 13248, Apr. 3, 1984, as amended at 61 FR 39093, July 26, 1996]
Sec. 725.703 Contractor employees.
(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.
(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.
[51 FR 34985, Oct. 1, 1986]
Sec. 725.704 Source, origin and nationality requirements--
Contract clause.
The clause in 752.225-70 is required in all USAID program-funded
contracts under which the contractor may procure goods or services.
[62 FR 40468, July 29, 1997]
Sec. 725.705 Local procurement--contract clause.
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.
[62 FR 40468, July 29, 1997]
Sec. 725.706 Geographic source waivers.
(a) Authority to waive source, origin, nationality, and
transportation services requirements is set forth in chapters 103 and
310 of the ADS.
(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.
[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]
PART 726--OTHER SOCIOECONOMIC PROGRAMS
Subpart 726.70--Disadvantaged Enterprises Program
Sec.
Sec. 726.7001 Scope of subpart.
Sec. 726.7002 Definitions.
Sec. 726.7003 Policy.
Sec. 726.7004 Determination to use other than full and open
competition.
Sec. 726.7005 Exceptions.
Sec. 726.7006 Determination of status as a disadvantaged enterprise.
Sec. 726.7007 Requirement for subcontracting with disadvantaged
enterprises.
Sec. 726.7008 Limitations on subcontracting.
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
Sec. 726.7101 Policy.
Sec. 726.7102 PD 20 provision.
Authority: 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.
Source: 55 FR 8470, Mar. 8, 1990, unless otherwise noted.
Subpart 726.70--Disadvantaged Enterprises Program
Sec. 726.7001 Scope of subpart.
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
[[Page 34]]
and part 706 for additional provisions on publicizing contract actions
and using other than full and open competition.
[58 FR 8702, Feb. 17, 1993. Redesignated and amended at 61 FR 39093,
July 26, 1996; 62 FR 40468, July 29, 1997]
Sec. 726.7002 Definitions.
(a) Controlled by socially and economically disadvantaged
individuals means management and daily business are controlled by one or
more such individuals.
(b) Disadvantaged enterprises means U.S. organizations or
individuals that are:
(1) Business concerns (as defined in FAR 19.001) owned and
controlled by socially and economically disadvantaged individuals;
(2) Institutions designated by the Secretary of Education, pursuant
to 34 CFR 608.2, as historically black colleges and universities;
(3) Colleges or universities having a student body in which more
than 40 percent of the students are Hispanic American; or
(4) Private voluntary organizations which are controlled by
individuals who are socially and economically disadvantaged.
(c) Economically disadvantaged individuals has the same meaning as
in FAR 19.001, except that the term includes women.
(d) Owned by socially and economically disadvantaged individuals
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.
(e) Small disadvantaged business 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.
(f) Socially disadvantaged individuals has the same meaning as in
FAR 19.001, except that the term includes women.
[56 FR 27209, June 13, 1991, as amended at 56 FR 52212, Oct. 18, 1991.
Redesignated at 61 FR 39093, July 26, 1996]
Sec. 726.7003 Policy.
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:
(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;
(b) Other than full and open competition in contracting with certain
disadvantaged enterprises shall be authorized in accordance with
706.302-71;
(c) Subcontracting with disadvantaged enterprises shall be carried
out in accordance with section 726.7007;
(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.
[56 FR 27209, June 13, 1991. Redesignated at 61 FR 39093, July 26, 1996,
as amended at 62 FR 40468, July 29, 1997]
Sec. 726.7004 Determination to use other than full and open
competition.
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.
[55 FR 8470, Mar. 8, 1990. Redesignated at 61 FR 39093, July 26, 1996.]
[[Page 35]]
Sec. 726.7005 Exceptions.
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/OP
Director has been designated to make such determinations. One such
determination concerning subcontracting is set out in 726.7007.
[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]
Sec. 726.7006 Determination of status as a disadvantaged
enterprise.
(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.
(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.
[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]
Sec. 726.7007 Requirement for subcontracting with disadvantaged
enterprises.
(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.
(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.
(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.
[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]
Sec. 726.7008 Limitations on subcontracting.
The contracting officer shall insert the clause at 752.226-3,
Limitations on Subcontracting, in any solicitation and contract for
technical assistance services which is to be awarded under the authority
of 706.302-71.
[58 FR 42255, Aug. 9, 1993. Redesignated at 61 FR 51235, Oct. 1, 1996]
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
Sec. 726.7101 Policy.
USAID Policy Determination (PD) 20, ``Guidelines to Assure USAID
Programs do not Result in the Loss of Jobs
[[Page 36]]
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.
[61 FR 39093, July 26, 1996]
Sec. 726.7102 PD 20 provision.
Relocation of U.S. Businesses, Assistance to Export Processing Zones,
Internationally Recognized Workers' Rights (JAN 1994)
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.
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.
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.
[61 FR 39093, July 26, 1996]
[[Page 37]]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 728--BONDS AND INSURANCE
Subpart 728.1--Bonds
Sec.
Sec. 728.105-1 Advance payment bonds.
Subpart 728.3--Insurance
Sec. 728.305-70 Overseas worker's compensation and war-hazard
insurance--waivers and USAID insurance coverage.
Sec. 728.307-2 Liability.
Sec. 728.307-70 Medical Evacuation (MEDEVAC) Services (Mar 1993).
Sec. 728.309 Contract clause for worker's compensation insurance.
Sec. 728.313 Contract clauses for insurance of transportation or
transportation-related services.
Authority: 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.
Source: 49 FR 13249, Apr. 3, 1984, unless otherwise noted.
Subpart 728.1--Bonds
Sec. 728.105-1 Advance payment bonds.
(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.
(b) Whenever a contracting officer considers that an advance payment
bond is necessary, the contracting officer will: (1) Establish a bond
penalty that will adequately protect interests of the Government, (2)
use the USAID Advance Payment Bond format, (3) place bond with a surety
currently approved by the U.S. Treasury Department according to the
latest Treasury Department Circular 570, (4) stipulate that the cost of
the bond shall not exceed a rate of $7.50 per $1,000 per annum based on
the penalty of the bond, without the prior written approval of the
Office of Procurement, Policy Division (M/OP/P).
(c) Where the surety's obligation under an advance payment bond
covers all advances made to the contractor during the term of the
contract, no release should be issued to the surety until all advances
made and to be made under the contract have been fully liquidated in
accordance with the provisions of the contract, such as no-pay vouchers,
reports of expenditures, or by refund. Where the surety's obligation
under the bond is limited to advances made during a specified period of
time, no release should be issued to the surety until all advances made
and to be made during the specified period have been liquidated as
aforesaid.
[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]
Subpart 728.3--Insurance
Sec. 728.305-70 Overseas worker's compensation and war-hazard
insurance--waivers and USAID insurance coverage.
(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
[[Page 38]]
or of the country of the employee's nationality, whichever offers
greater benefits. The Department of Labor has granted partial blanket
waivers of DBA coverage applicable to USAID-financed contracts performed
in certain countries, subject to two conditions:
(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;
(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.
(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.
[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]
Sec. 728.307-2 Liability.
(a)-(b) [Reserved]
(c) Automobile liability. 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.
[53 FR 50630, Dec. 16, 1988]
Sec. 728.307-70 Medical Evacuation (MEDEVAC) Services (Mar 1993).
The Contracting Officer shall insert the clause at 752.228-70 in all
contracts which require performance by contractor employees overseas.
[59 FR 33446, June 29, 1994]
Sec. 728.309 Contract clause for worker's compensation insurance.
(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.
[53 FR 50630, Dec. 16, 1988]
Sec. 728.313 Contract clauses for insurance of transportation or
transportation-related services.
(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.
[53 FR 50630, Dec. 16, 1988]
PART 731--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 731.1--Applicability
Sec.
Sec. 731.109 Advance agreements.
[[Page 39]]
Subpart 731.2--Contracts With Commercial Organizations
Sec. 731.205-6 Compensation for personal services.
Sec. 731.205-46 Travel costs.
Sec. 731.205-70 Overseas recruitment incentive.
Sec. 731.205-71 Salary supplements for Host Government employees.
Subpart 731.3--Contracts With Educational Institutions
Sec. 731.370 Predetermined fixed rates for indirect costs.
Sec. 731.371 Compensation for personal services.
Sec. 731.372 Fringe benefits.
Sec. 731.373 Overseas recruitment incentive.
Subpart 731.7--Contracts With Nonprofit Organizations
Sec. 731.770 OMB Circular A-122; cost principles for nonprofit
organizations; USAID implementation.
Sec. 731.771 Bid and proposal costs.
Sec. 731.772 Compensation for personal services.
Sec. 731.773 Independent research and development costs.
Sec. 731.774 Overseas recruitment incentive.
Authority: 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.
Source: 49 FR 13250, Apr. 3, 1984, unless otherwise noted.
Subpart 731.1--Applicability
Sec. 731.109 Advance agreements.
Advance agreements on selected costs may be negotiated with USAID
contractors by the Overhead and Special Cost and Contract Close-Out
Branch, Office of Procurement. Such advance understandings will be
applicable to all USAID contracts with that contractor.
[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51
FR 20651, June 6, 1986]
Subpart 731.2--Contracts With Commercial Organizations
Sec. 731.205-6 Compensation for personal services.
(a) General. 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.
(b) Reasonableness. ADS Chapter 302.5.3 states USAID policy
regarding personnel compensation exceeding the maximum annual rate for
an Executive Service level ES-6. Consistent with this policy, any
employee's or consultant's base salary plus overseas recruitment
incentive, if any (see 731.205-70), subject to this policy will be
allowable under USAID-direct contracts only if approved in accordance
with the essential procedures in ADS chapter E302.5.3. USAID policies on
compensation of third country national or cooperating country national
employees are set forth in AIDAR 722.170.
(d)-(l) [Reserved]
(m) Fringe benefits. 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.
[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]
Sec. 731.205-46 Travel costs.
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.
[57 FR 5236, Feb. 13, 1992]
Sec. 731.205-70 Overseas recruitment incentive.
(Note: the term employee as used in this section means an employee
who is a U.S. citizen or a U.S. resident alien.)
(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
[[Page 40]]
the base salary of the employee from date of arrival at overseas post to
begin assignment to date of departure from post at the end of
assignment. ORI is to be paid as a single payment at the end of the
employee tour of duty overseas. The contractor shall take all reasonable
and prudent steps to ensure that ORI is not paid to any employee who has
received the IRS section 911 exemption.
(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.
[57 FR 5236, Feb. 13, 1992]
Sec. 731.205-71 Salary supplements for Host Government employees.
(a) Definitions. (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.
(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.
(b) General. 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.
(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.
(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.
[64 FR 16649, Apr. 6, 1999]
Subpart 731.3--Contracts With Educational Institutions
Sec. 731.370 Predetermined fixed rates for indirect costs.
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.
Sec. 731.371 Compensation for personal services.
(a) General. 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.
(b) Salaries and wages. (1) ADS Chapter 302.5.3 states USAID policy
regarding personnel compensation exceeding the maximum annual rate for
an Executive Service level ES-6. Consistent with this policy, any
employee's or consultant's base salary plus overseas recruitment
incentive, if any (see 731.205-70), subject to this policy will be
allowable under USAID-direct contracts only if approved in accordance
with the essential procedures in ADS chapter E302.5.3.
[[Page 41]]
(2) In considering consulting income as a factor when determining
allowable salary for service under a contract:
(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.
(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).
(3) USAID policies and compensation of third country national or
cooperating country national employees are set forth in AIDAR 722.170.
[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]
Sec. 731.372 Fringe benefits.
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.
[57 FR 5236, Feb. 13, 1992]
Sec. 731.373 Overseas recruitment incentive.
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.
[57 FR 5236, Feb. 13, 1992]
Subpart 731.7--Contracts With Nonprofit Organizations
Sec. 731.770 OMB Circular A-122, cost principles for nonprofit
organizations; USAID implementation.
(a) Paragraph 6 of the transmittal letter for OMB Circular A-122
specifies that ``Agencies shall designate a liaison official to serve as
the agency representative on matters relating to the implementation of
this Circular.'' The Director, Office of Procurement, has been so
designated. The Overhead and Special Cost and Contract Close-Out Branch,
Office of Procurement (OCC) provides staff assistance to the Director
concerning OMB Circular A-122. OCC is also responsible for obtaining
cognizance under the criteria in the transmittal letter for OMB Circular
A-122; for liaison with other cognizant agencies; for authorizing
exclusion of OMB Circular A-122 coverage for a particular nonprofit
organization pursuant to paragraph 5 of the OMB Circular A-122
transmittal letter; and for advice and assistance in applying OMB
Circular A-122 cost principles.
(b) Paragraph 4b of the OMB Circular A-122 transmittal letter
contains a definition of prior approval as follows:
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.
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:
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
In accordance with the requirements to OMB Circular No. A-122,
approval is granted to incur costs for (name specific item or
[[Page 42]]
items) which are included in the budget of this award.
[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]
Sec. 731.771 Bid and proposal costs.
Pending the establishment of Government-wide principles in
Attachment B of OMB Circular A-122, USAID will treat bid and proposal
costs as follows:
(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.
(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.
Sec. 731.772 Compensation for personal services.
The policies set for in AIDAR 731.205-6 are also applicable to
contracts with a nonprofit organization.
[57 FR 5236, Feb. 13, 1992]
Sec. 731.773 Independent research and development costs.
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.
Sec. 731.774 Overseas recruitment incentive.
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.
[57 FR 5236, Feb. 13, 1992]
PART 732--CONTRACT FINANCING
Subpart 732.1--General
Sec.
Sec. 732.111 Contract clauses.
Subpart 732.4--Advance Payments
Sec. 732.401 Statutory authority.
Sec. 732.402 General.
Sec. 732.403 Applicability.
Sec. 732.406-70 Agency-issued letters of credit.
Sec. 732.406-71 Circumstances for use of an LOC.
Sec. 732.406-72 Establishing an LOC.
Sec. 732.406-73 LOC contract clause.
Sec. 732.406-74 Revocation of the LOC.
Authority: 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.
Subpart 732.1--General
Sec. 732.111 Contract clauses.
(a) [Reserved]
(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.
[61 FR 39094, July 26, 1996]
Subpart 732.4--Advance Payments
Source: 56 FR 67225, Dec. 30, 1991, unless otherwise noted.
[[Page 43]]
Sec. 732.401 Statutory authority.
(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.
(b) The Act of August 28, 1968, Public Law 85-804 does not apply to
USAID.
[56 FR 67225, Dec. 30, 1991, as amended at 62 FR 40469, July 29, 1997]
Sec. 732.402 General.
(a)-(d) [Reserved]
(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.
(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.
[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]
Sec. 732.403 Applicability.
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.
Sec. 732.406-70 Agency-issued letters of credit.
This subsection provides guidance on use of USAID issued letters of
credit (LOC) for advance payments.
Sec. 732.406-71 Circumstances for use of an LOC.
An LOC shall be used under the following circumstances:
(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;
(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
(c) The Office of Financial Management, Cash Management and Payment
Division (FM/CMP) agrees that the LOC payment method is appropriate.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996]
Sec. 732.406-72 Establishing an LOC.
(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.
(b) In order to establish or amend an LOC, the contracting officer
shall provide FM/CMP with the following information:
(1) The name of the Contractor;
(2) The official USAID contract number;
(3) The obligated amount of the contract;
(4) The budget plan code for the obligated funds;
(5) The effective date and estimated completion date.
(6) The contractor Federal Tax Identification Number.
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.
(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.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996;
64 FR 42042, Aug. 3, 1999]
[[Page 44]]
Sec. 732.406-73 LOC contract clause.
(a) If payment is to be provided by LOC, the contract shall contain
the clause in subsection 752.232-70.
(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.
[56 FR 67225, Dec. 30, 1991, as amended at 64 FR 5008, Feb. 2, 1999]
Sec. 732.406-74 Revocation of the LOC.
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).
PART 733--PROTESTS, DISPUTES, AND APPEALS
Subpart 733.1--Protests
Sec.
Sec. 733.101 Definitions.
Sec. 733.103-70 Protests to the agency.
Sec. 733.103-71 Filing of protest.
Sec. 733.103-72 Responsibilities.
Sec. 733.103-73 Protests excluded from consideration.
Subpart 733.27--USAID Procedures for Disputes and Appeals
Sec. 733.270-1 Designation of Armed Services Board of Contract Appeals
(ASBCA) to hear and determine appeals under USAID contracts.
Sec. 733.270-2 Special procedures regarding contract disputes appeals
promulgated pursuant to paragraph 2 of the Administrator's
designation.
Authority: 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.
Subpart 733.1--Protests
Source: 61 FR 39094, July 26, 1996, unless otherwise noted.
Sec. 733.101 Definitions.
(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.
(b) All other terms defined in FAR 33.101 are used herein with the
same meaning.
[61 FR 39094, July 26, 1996, as amended at 64 FR 42042, Aug. 3, 1999]
Sec. 733.103-70 Protests to the agency.
USAID follows the agency protest procedures in FAR 33.103, as
supplemented by this section.
Sec. 733.103-71 Filing of protest.
(a) Protests must be in writing and addressed to the Contracting
Officer for consideration by the M/OP Director.
(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.
(c) Material submitted by a protester will not be withheld from any
interested party outside the government or from any government agency if
the M/OP Director decides to release such material, except to the extent
that the withholding of such information is permitted or required by law
or regulation.
[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64
FR 42040, Aug. 3, 1999]
Sec. 733.103-72 Responsibilities.
(a) M/OP Director. The decision regarding an agency protest shall be
made by the M/OP Director within 30 days from the date a proper protest
is filed unless the M/OP Director determines that a longer period is
necessary to resolve the protest, and so notifies the protester in
writing. The M/OP Director shall make his or her decision after
personally reviewing and considering all aspects of the case as
presented in the protest itself and in any documentation provided by the
contracting officer, and after obtaining input and clearance from the
Assistant General Counsel for Litigation and Enforcement (GC/LE). The
decision shall be in writing and constitutes the final decision of the
Agency.
[[Page 45]]
(b) Contracting Officer. The Contracting Officer is responsible for
requesting an extension of the time for acceptance of offers as
described in FAR 33.103(f)(2).
[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64
FR 42040, Aug. 3, 1999]
Sec. 733.103-73 Protests excluded from consideration.
(a) Contract administration. Disputes between a contractor and USAID
are resolved pursuant to the disputes clause of the contract and the
Contract Disputes Act of 1978.
(b) Small business size standards and standard industrial
classification. 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.
(c) Procurement under Section 8(a) of the Small Business Act.
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.
(d) Protests filed in the General Accounting Office (GAO). Protests
filed with the GAO will not be reviewed.
(e) Procurements funded by USAID to which USAID is not a party. No
protest of a procurement funded by USAID shall be reviewed unless USAID
is a party to the acquisition agreement.
(f) Subcontractor protests. Subcontractor protests will not be
considered.
(g) Judicial proceedings. 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.
(h) Determinations of responsibility by the contracting officer. A
determination by the contracting officer that a bidder or offeror is or
is not capable of performing a contract will not be reviewed by the M/OP
Director.
(i) Small Business Certificate of Competency Program. Any referral
made to the Small Business Administration pursuant to section 8(b)(7) of
the Small Business Act, or any issuance of, or refusal to issue, a
certificate of competency under that section will not be reviewed by the
M/OP Director.
[61 FR 39094, July 26, 1996, as amended at 64 FR 42040, Aug. 3, 1999]
Subpart 733.27--USAID Procedures for Disputes and Appeals
Sec. 733.270-1 Designation of Armed Services Board of Contract
Appeals (ASBCA) to hear and determine appeals under USAID
contracts.
(a) The ASBCA is hereby designated the authorized representative of
the Administrator of the U.S. Agency for International Development
(USAID) in hearing, considering, and determining as fully and finally as
might the Administrator, appeals by contractors from decisions on
disputed questions taken pursuant to the provisions of contracts
requiring the determination of such appeals by the Administrator or his/
her duly authorized representative or Board.
(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.
(c) The General Counsel of USAID will assure representation of the
interests of the Government in proceedings before the ASBCA.
(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.
[53 FR 4980, Feb. 19, 1988. Redesignated at 61 FR 39095, July 26, 1996;
61 FR 51235, Oct. 1, 1996]
Sec. 733.270-2 Special procedures regarding contract disputes
appeals promulgated pursuant to paragraph 2 of the
Administrator's designation.
(a) The following rules will apply, in lieu of Rules 3 and 4(a) of
the ASBCA,
[[Page 46]]
to contract dispute appeals to the Administrator of the USAID or his/her
authorized representative which are docketed with that Board.
(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.
(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).
(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:
(1) The decision and findings of fact from which appeal is taken;
(2) The contract, including specifications and pertinent amendments,
plans and drawings;
(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;
(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
(5) Any additional information considered pertinent.
(e) The General Counsel will compile the appeal file from such
documents, which file must contain the items enumerated in paragraphs
(d) (1) through (5) of this section and will promptly, and in any event
within 65 days after the appeal is docketed by the Board, transmit the
appeal file to the Board. The General Counsel will notify the appellant
when he/she has compiled the appeal file, will provide him/her with a
list of its contents, and will afford him/her an opportunity to examine
the complete file at the office of the Board and, if the General Counsel
deems it appropriate, at any overseas location, for the purpose of
satisfying himself/herself as to the contents, and furnishing or
suggesting any additional documentation deemed pertinent to the appeal.
After receipt of the foregoing file, as it may be augmented at the time
of receipt, the Board will promptly advise the parties.
[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]
[[Page 47]]
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 734--MAJOR SYSTEM ACQUISITION
Authority: 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.
Sec. 734.002-70 USAID policy.
In order for an USAID acquisition to be considered a major system
acquisition it must meet the criteria of OMB Circular A-109 and FAR part
34, and must have an estimated value of $15 million or more during the
first year of the contract. All major systems acquisition must be
approved in advance by the M/OP Director.
[55 FR 39976, Oct. 1, 1990, as amended at 64 FR 42040, Aug. 3, 1999]
PART 736--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 736.6--Architect-Engineer Services
Sec.
Sec. 736.602-2 Evaluation boards.
Sec. 736.602-3 Evaluation board functions.
Sec. 736.602-4 Selection authority.
Sec. 736.602-5 Short selection process for procurements not to exceed
the simplified acquisition threshold.
Sec. 736.603 Collecting data on and appraising firms' qualifications.
Sec. 736.605 Government cost estimate for architect-engineer work.
Authority: 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.
Source: 49 FR 13254, Apr. 3, 1984, unless otherwise noted.
Subpart 736.6--Architect-Engineer Services
Sec. 736.602-2 Evaluation boards.
(a)-(b) [Reserved]
(c) Each evaluation board will include a representative of the
Contracting Officer and, as appropriate, the cognizant bureau.
[54 FR 46391, Nov. 3, 1989]
Sec. 736.602-3 Evaluation board functions.
Agency architect-engineer evaluation boards shall perform the
following functions:
(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).
(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:
(1) Specialized experience of the firm (including each member of
joint venture or association) with the type of service required;
(2) Capacity of the firm to perform the work (including any
specialized services) within the time limitations;
(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;
(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;
(5) The portions of the work the architect-engineer is able to
perform with its own forces when required;
(6) Ability of the architect-engineer to furnish or to obtain
required materials and equipment;
(7) If the geographical or topographical aspects of the project are
deemed vital, familiarity with the locality where the project is
situated;
(8) Financial capacity;
(9) Responsibility of the architect-engineer under standards
provided in FAR subpart 9.1. No contract may be
[[Page 48]]
awarded to a contractor that does not meet these standards;
(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).
(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:
(1) A listing by name of all firms reviewed by the board;
(2) A listing of the evaluation criteria applied;
(3) An analysis of the selection showing the rationale for the
board's recommendation;
(4) The board's recommendation of the three most highly qualified
firms, in order of preference;
(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.
Sec. 736.602-4 Selection authority.
(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.
(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.
Sec. 736.602-5 Short selection process for procurements not to
exceed the simplified acquisition threshold.
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.
[49 FR 13254, Apr. 3, 1984, as amended at 61 FR 39095, July 26, 1996]
Sec. 736.603 Collecting data on and appraising firms'
qualifications.
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 Commerce Business
Daily, as provided in FAR part 5.
[49 FR 13254, Apr. 3, 1984, as amended at 52 FR 21059, June 4, 1987; 53
FR 50631, Dec. 16, 1988]
Sec. 736.605 Government cost estimate for architect-engineer
work.
See 736.602-3(c)(5).
PART 737 [RESERVED]
[[Page 49]]
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 742--CONTRACT ADMINISTRATION
Subpart 742.7--Indirect Cost Rates
Sec.
Sec. 742.770 Negotiated indirect cost rate agreement.
Subpart 742.15--Contractor Performance Information
Sec. 742.1501 [Reserved]
Sec. 742.1502 Policy.
Sec. 742.1503 Procedures.
Authority: 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.
Subpart 742.7--Indirect Cost Rates
Sec. 742.770 Negotiated indirect cost rate agreement.
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.
[49 FR 13256, Apr. 3, 1984; 53 FR 50631, Dec. 16, 1988]
Subpart 742.15--Contractor Performance Information
Source: 65 FR 36642, June 9, 2000, unless otherwise noted.
Sec. 742.1501 [Reserved]
Sec. 742.1502 Policy.
(a) USAID contracting officers shall report contractor performance
information at least annually, employing the procedures prescribed by
the NIH Contractor Performance System. (Access to the system by USAID
contracting office personnel is authorized by the USAID Past Performance
Coordinator, E-mail address: AIDNET: Past [email protected]@aidw/
Internet: [email protected].)
(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.
[65 FR 36642, June 9, 2000; 65 FR 39470, June 26, 2000]
Sec. 742.1503 Procedures.
(a) [Reserved]
(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).
PART 745--GOVERNMENT PROPERTY
Authority: 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.
Subpart 745.1--General
Sec. 745.106 Contract clauses.
(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.
(b) The contracting officer shall insert the applicable clause as
required in (48 CFR) FAR 45.106 in all contracts
[[Page 50]]
under which the contractor will acquire property with funds not already
obligated under a Strategic Objective agreement (or similar agreement)
with the cooperating country.
[64 FR 5008, Feb. 2, 1999]
PART 747--TRANSPORTATION
Authority: 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.
Subpart 747.5--Ocean Transportation by U.S.-Flag Vessels
Sec. 747.507 Contract clauses.
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.
[64 FR 5008, Feb. 2, 1999]
PART 749--TERMINATION OF CONTRACTS
Subpart 749.1--General Principles
Sec.
Sec. 749.100 Scope of subpart.
Sec. 749.111 Review of proposed settlements.
Sec. 749.111-70 Termination settlement review boards.
Sec. 749.111-71 Required review and approval.
Authority: 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.
Source: 49 FR 13256, Apr. 3, 1984, unless otherwise noted.
Subpart 749.1--General Principles
Sec. 749.100 Scope of subpart.
The Foreign Aid and Related Agencies Appropriation Act, 1963, and
subsequent appropriation Acts, have imposed the following requirement:
None of the funds appropriated or made available pursuant to this Act
for carrying out the Foreign Assistance Act of 1961, as amended, may be
used for making payments on any contract for procurement to which the
United States is a party entered into after the date of enactment of
this Act which does not contain a provision authorizing the termination
of such contract for the convenience of the United States.
See, for example, section 110 of the Foreign Assistance and Related
Agencies Appropriation Act, 1965.
Sec. 749.111 Review of proposed settlements.
Sec. 749.111-70 Termination settlement review boards.
(a) The USAID Settlement Review Board shall be composed of the
following members or their delegates (except as provided under 749.111-
71(b)):
(1) M/OP Director;
(2) Controller;
(3) General Counsel.
(b) The M/OP Director or his/her delegate shall be designated as
chairman of the board. Delegate members of the board shall have broad
business and contracting experience and shall be senior USAID officials.
Each member or his/her delegate must be in attendance in order to
conduct business, and the board shall act by majority vote. No
individual shall serve as a member of a board for the review of a
proposed settlement if he/she has theretofore reviewed, approved or
disapproved or recommended approval, disapproval or other action with
respect to any substantive element of such settlement proposal.
(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.
[49 FR 13256, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999]
Sec. 749.111-71 Required review and approval.
(a) When required. The USAID Settlement Review Board shall receive
and
[[Page 51]]
approve all USAID/W and Mission proposed settlements or determinations
if:
(1) The amount of settlement, by agreement or determination,
involves $100,000 or more;
(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;
(3) The head of the contracting activity concerned determines that a
review of a specific case or class of cases is desirable; or
(4) The contracting officer, in his/her discretion, desires review
by the board.
(b) Level of review. Proposed settlements in excess of $5 million
shall be reviewed and approved by a board consisting of the M/OP
Director, the General Counsel, and the Controller, without power of
redelegation.
(c) Submission of information. 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.
[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]
PART 750--EXTRAORDINARY CONTRACTUAL ACTIONS
Sec.
Sec. 750.000 Scope of part.
Subpart 750.70 [Reserved]
Subpart 750.71--Extraordinary Contractual Actions To Protect Foreign
Policy Interests of the United States
Sec. 750.7100 Scope of subpart.
Sec. 750.7101 Authority.
Sec. 750.7102 General policy.
Sec. 750.7103 Definitions.
Sec. 750.7104 Types of actions.
Sec. 750.7105 Approving authorities.
Sec. 750.7106 Standards for deciding cases.
Sec. 750.7106-1 General.
Sec. 750.7106-2 Amendments without consideration.
Sec. 750.7106-3 Mistakes.
Sec. 750.7106-4 Informal commitments.
Sec. 750.7107 Limitations upon exercise of authority.
Sec. 750.7108 Contractual requirements.
Sec. 750.7109 Submission of requests by contractors.
Sec. 750.7109-1 Filing requests.
Sec. 750.7109-2 Form of requests by contractors.
Sec. 750.7109-3 Facts and evidence.
Sec. 750.7110 Processing cases.
Sec. 750.7110-1 Investigation.
Sec. 750.7110-2 Office of General Counsel coordination.
Sec. 750.7110-3 Submission of cases to the M/OP Director.
Sec. 750.7110-4 Processing by M/OP Director.
Sec. 750.7110-5 Contract files.
Sec. 750.7110-6 Inter-agency coordination.
Authority: 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.
Source: 49 FR 13257, Apr. 3, 1984, unless otherwise noted.
Sec. 750.000 Scope of part.
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.
Subpart 750.70 [Reserved]
Subpart 750.71--Extraordinary Contractual Actions To Protect Foreign
Policy Interests of the United States
Sec. 750.7100 Scope of subpart.
This subpart sets forth the standards and the procedures for
disposition of
[[Page 52]]
requests for extraordinary contractual actions under Executive Order
11223.
Sec. 750.7101 Authority.
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:
Section 3. 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.
Section 4. 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.
[49 FR 49472, Dec. 20, 1984, as amended at 62 FR 40469, July 29, 1997;
64 FR 42042, Aug. 3, 1999]
Sec. 750.7102 General policy.
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.
Sec. 750.7103 Definitions.
(a) The term approving authority as used in this subpart means an
officer or official having been delegated authority to approve actions
under the Executive Order. This authority is distinguished from
authority to take appropriate contractual action pursuant to such
approval.
(b) The term the Executive Order shall mean Executive Order 11223
(30 FR 6635) as amended, unless otherwise stated.
(c) The term the Act shall mean the Foreign Assistance Act of 1961,
as amended.
[49 FR 13257, Apr. 3, 1984, as amended at 49 FR 49472, Dec. 20, 1984]
Sec. 750.7104 Types of actions.
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.
Sec. 750.7105 Approving authorities.
All authority to approve actions under this subpart has been
delegated to the M/OP Director.
[50 FR 16086, Apr. 24, 1985, as amended at 64 FR 42040, Aug. 3, 1999]
Sec. 750.7106 Standards for deciding cases.
Sec. 750.7106-1 General.
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
[[Page 53]]
facts of such case. Although it is obviously impossible to predict or
enumerate all the types of cases with respect to which action may be
appropriate, examples of certain cases or types of cases where action
may be proper are set forth in sections 750.7106-2 through 750.7106-4.
Even if all of the factors contained in any of the examples are present,
other factors or considerations in a particular case may warrant denial
of the request. These examples are not intended to exclude other cases
where the approving authority determines that the circumstances warrant
action.
Sec. 750.7106-2 Amendments without consideration.
(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.
(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.
Sec. 750.7106-3 Mistakes.
A contract may be amended or modified to corrrect or mitigate the
effect of a mistake, including the following examples:
(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;
(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
(c) A mutual mistake as to a material fact.
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.
Sec. 750.7106-4 Informal commitments.
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.
Sec. 750.7107 Limitations upon exercise of authority.
(a) The Executive Order is not authority for:
(1) The use of the cost-plus-a-percentage-of-cost system of
contracting;
(2) The making of any contract in violation of existing law relating
to limitation on profit or fees;
(3) The waiver of any bid, payment performance or other bond
required by law.
(b) No amendments, or modifications shall be entered into under the
authority of the Executive Order:
(1) Unless, with respect to cases falling within Section 4 of the
Executive
[[Page 54]]
Order, a finding is made that the action is necessary to protect the
foreign policy interests of the United States;
(2) Unless other legal authority in the Agency is deemed to be
lacking or inadequate;
(3) Except within the limits of the amounts appropriated and the
statutory contract authorization.
(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.
(d) No informal commitment shall be formalized unless:
(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;
(2) USAID has received the services satisfactorily performed, or has
accepted property furnished in reliance on the commitment;
(3) The USAID employees alleged to have made the informal commitment
have accepted responsibility for making the informal commitment in
question; and
(4) USAID has taken appropriate action to prevent recurrence.
[49 FR 13257, Apr. 3, 1984, as amended at 50 FR 16088, Apr. 24, 1985; 53
FR 4982, Feb. 19, 1988]
Sec. 750.7108 Contractual requirements.
Every contract amended or modified pursuant to this subpart shall
contain:
(a) A citation of the Act and Executive Order.
(b) A brief statement of the circumstances justifying the action;
(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.
Sec. 750.7109 Submission of requests by contractors.
Sec. 750.7109-1 Filing requests.
Any person (hereinafter called the ``contractor'') seeking an
adjustment under standards set forth in 750.7106 may file a request in
duplicate with the cognizant contracting officer or his/her duly
authorized representative. If such filing is impracticable, requests
will be deemed to be properly filed if filed with the Chief of the
Office of Procurement, Evaluation Division (M/OP/E) for forwarding to
the cognizant contracting officer.
[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]
Sec. 750.7109-2 Form of requests by contractors.
The contractor's request shall normally consist of a letter to the
contracting officer providing the information specified in FAR 50.303.
Sec. 750.7109-3 Facts and evidence.
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.
[49 FR 13257, Apr. 3, 1984, as amended at 62 FR 40469, July 29, 1997]
Sec. 750.7110 Processing cases.
Sec. 750.7110-1 Investigation.
The Evaluation Division of the Office of Procurement (M/OP/E) shall
be responsible for assuring that the case prepared by the cognizant
contracting officer makes a thorough investigation of all facts and
issues relevant to each situation. Facts and evidence shall be obtained
from contractor and Government personnel and shall include signed
statements of material facts within the knowledge of the individuals
where documentary evidence is lacking and audits where considered
necessary to establish financial or cost related facts. The
investigation shall establish the facts essential to meet the standards
for deciding the particular case and shall address the limitations upon
exercise of the authority of the M/OP Director to approve the request.
[62 FR 40469, July 29, 1997, as amended at 64 FR 42042, Aug. 3, 1999]
[[Page 55]]
Sec. 750.7110-2 Office of General Counsel coordination.
Prior to the submission of a case to the M/OP Director recommending
extraordinary contractual relief, the claim shall be fully developed by
the cognizant contracting officer and concurrences or comments shall be
obtained from the Office of General Counsel for the proposed relief to
be granted. Such concurrences or comments shall be incorporated in or
accompany the action memorandum submitted for consideration to the M/OP
Director in accordance with 750.7110-3.
[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]
Sec. 750.7110-3 Submission of cases to the M/OP Director.
Cases to be submitted for consideration by the M/OP Director shall
be prepared and forwarded by the cognizant contracting officer through
M/OP/E to the M/OP Director by means of an action memorandum. M/OP/E
will review the action memorandum for accuracy and completeness. The
action memorandum shall provide for approval or disapproval by the M/OP
Director of the disposition recommended by the contracting officer. The
action memorandum shall address:
(a) The nature of the case;
(b) The basis for authority to act under section 750.7101;
(c) The findings of fact essential to the case (see 750.7109-3)
arranged chronologically with cross references to supporting enclosures;
(d) The conclusions drawn from applying the standards for deciding
cases, as set forth in 750.7106, to the findings of fact;
(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):
(f) Concurrences or comments obtained from the Office of General
Counsel;
(g) Verification of funds availability and the contracting officer's
determination of cost/price reasonableness when the disposition
recommended requires payment to a contractor;
(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
(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:
(1) Date of request;
(2) Date request received by USAID:
(3) Contract number;
(4) Contractor's name and address;
(5) Name, address, and phone number of contractor's representative;
(6) Name, office symbol, and phone number of cognizant contracting
officer;
(7) Amount of request.
[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]
Sec. 750.7110-4 Processing by M/OP Director.
When the action memorandum has been determined to be as accurate and
complete as possible and has been prepared in accordance with this
subpart, M/OP/E will forward the action memorandum to the M/OP Director.
The M/OP Director will sign and date the action memorandum indicating
approval or disapproval of the disposition recommended by the
contracting officer.
[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]
Sec. 750.7110-5 Contract files.
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.
[62 FR 40469, July 29, 1997; 62 FR 47532, Sept. 9, 1997]
Sec. 750.7110-6 Inter-agency coordination.
(a) General. Where a case involves matters of interest to more than
one
[[Page 56]]
department or agency, USAID should maintain liaison with other
departments and agencies of the Government and take such joint action as
may be proper under the circumstances, including holding joint meetings.
(b) Cases involving funds of other departments or agencies. 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.
[[Page 57]]
SUBCHAPTER H--CLAUSES AND FORMS
PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 752.2--Texts of Provisions and Clauses
Sec.
Sec. 752.200 Scope of subpart.
Sec. 752.202-1 Definitions.
Sec. 752.204-2 Security requirements.
Sec. 752.209-71 Organizational conflicts of interest discovered after
award.
Sec. 752.211-70 Language and measurement.
Sec. 752.216-70 Award fee.
Sec. 752.219-8 Utilization of small business concerns and small
disadvantaged business concerns.
Sec. 752.225-9 Buy American Act--Trade Agreements Act--Balance of
Payments Program.
Sec. 725.225-70 Source, origin and nationality requirements.
Sec. 725.225-71 Local procurement.
Sec. 752.226-1 Determination of status as disadvantaged enterprise.
Sec. 752.226-2 Subcontracting with disadvantaged enterprises.
Sec. 752.226-3 Limitation on subcontracting.
Sec. 752.228-3 Worker's compensation insurance (Defense Base Act).
Sec. 752.228-7 Insurance--liability to third persons
Sec. 752.228-9 Cargo insurance.
Sec. 752.228-70 Medical Evacuation (MEDEVAC) Services.
Sec. 752.229-70 Federal, state and local taxes.
Sec. 752.231-71 Salary supplements for HG employees.
Sec. 752.232-7 Payments under time-and-materials and labor-hour
contracts.
Sec. 752.232-70 Letter of credit advance payment.
Sec. 752.245-70 Government property--USAID reporting requirements.
Sec. 752.245-71 Title to and care of property.
Sec. 752.247-70 Preference for privately owned U.S.-flag commercial
vessels.
Subpart 752.70--Texts of USAID Contract Clauses
Sec. 752.7000 Scope of subpart.
Sec. 752.7001 Biographical data.
Sec. 752.7002 Travel and transportation.
Sec. 752.7003 Documentation for payment.
Sec. 752.7004 Emergency locator information.
Sec. 752.7005 Submission requirements for development experience
documents.
Sec. 752.7006 Notices.
Sec. 752.7007 Personnel compensation.
Sec. 752.7008 Use of Government facilities or personnel.
Sec. 752.7009 Marking.
Sec. 752.7010 Conversion of U.S. dollars to local currency.
Sec. 752.7011 Orientation and language training.
Sec. 752.7012 Protection of the individual as a research subject.
Sec. 752.7013 Contractor-mission relationships.
Sec. 752.7014 Notice of changes in travel regulations.
Sec. 752.7015 Use of pouch facilities.
Sec. 752.7016 Family planning and population assistance activities.
Sec. 752.7017 [Reserved]
Sec. 752.7018 Health and accident coverage for USAID participant
trainees.
Sec. 752.7019 Participant training.
Sec. 752.7020 [Reserved]
Sec. 752.7021 Changes in tuition and fees.
Sec. 752.7022 Conflicts between contract and catalog.
Sec. 752.7023 Required visa form for USAID participants.
Sec. 752.7024 Withdrawal of students.
Sec. 752.7025 Approvals.
Sec. 752.7026 [Reserved]
Sec. 752.7027 Personnel.
Sec. 752.7028 Differential and allowances.
Sec. 752.7029 Post privileges.
Sec. 752.7030 Inspection trips by contractor's officers and executives.
Sec. 752.7031 Leave and holidays.
Sec. 752.7032 International travel approval and notification
requirements.
Sec. 752.7033 Physical fitness.
Sec. 752.7034 Acknowledgement and disclaimer.
Sec. 752.7035 Public notices.
Subpart 752.3-70--USAID Clause Matrices [Reserved]
Authority: 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.
Source: 49 FR 13259, Apr. 3, 1984, unless otherwise noted.
Subpart 752.2--Texts of Provisions and Clauses
Sec. 752.200 Scope of subpart.
None of the clauses specified in this subpart are for use in USAID
personal services contracts. For personal services contract clauses, see
AIDAR Appendix D--Direct USAID Contracts with U.S. Citizens or U.S.
Residents for Personal Services Abroad and AIDAR Appendix J--Direct
USAID Contracts with Cooperating Country Nationals
[[Page 58]]
and with Third Country Nationals for Personal Services Abroad.
[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]
Sec. 752.202-1 Definitions.
(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.
(b) Alternate 70. For use in all USAID contracts. Use in addition to
the clause in FAR 52.202-1.
USAID Definitions Clause--General Supplement for Use in All USAID
Contracts (JAN 1990)
(a) USAID shall mean the U.S. Agency for International Development.
(b) Administrator shall mean the Administrator or the Deputy
Administrator of USAID.
(c) When this contract is with an educational institution Campus
Coordinator 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.
(d) When this contract is with an educational institution Campus
Personnel shall mean representatives of the Contractor performing
services under the contract at the Contractor's home institution and
shall include the Campus Coordinator.
(e) Consultant 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.
(f) Contractor employee shall mean an employee of the Contractor
assigned to work under this contract.
(g) Cooperating Country or Countries shall mean the foreign country
or countries in or for which services are to be rendered hereunder.
(h) Cooperating Government shall mean the government of the
Cooperating Country.
(i) Federal Acquisition Regulations (FAR), when referred to herein
shall include U.S. Agency for International Development Acquisition
Regulations (AIDAR).
(j) Government shall mean the United States Government.
(k) Mission shall mean the United States AID Mission to, or
principal USAID office in, the Cooperating Country.
(l) Mission Director shall mean the principal officer in the Mission
in the Cooperating Country, or his/her designated representative.
(c) Alternate 71. 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.
USAID Definitions Clause--Supplement for Contracts With an Educational
Institution for Participant Training (APR 1984)
(a) Catalog 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.
(b) Director 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.
(c) Fees 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.
(d) Institution shall mean the educational institution providing
services hereunder. The terms ``Institution'' and ``Contractor'' are
synonymous.
(e) Tuition shall mean the amount of money charged by an institution
for instruction, not including fees as described in this section.
(d) Alternate 72. 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.
USAID Definitions Clause--Supplement for USAID Contracts Involving
Performance Overseas (DEC 1986)
(a) Contractor's Chief of Party 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.
(b) Cooperating Country National (CCN) employee means an individual
who meets the citizenship requirements of 48 CFR 702.170-5 and is hired
while residing outside the United States for work in a cooperating
country.
(c) Dependents shall mean:
(1) Spouse;
(2) Children (including step and adopted children) who are unmarried
and under 21
[[Page 59]]
years of age or, regardless of age, are incapable of self support.
(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
(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.
(d) Local currency shall mean the currency of the Cooperating
Country.
(e) Regular employee shall mean a Contractor employee appointed to
serve one year or more in the Cooperating Country.
(f)Short-term employee shall mean a Contractor employee appointed to
serve less than one year in the Cooperating Country.
(g) Third Country National (TCN) employee 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.
[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]
Sec. 752.204-2 Security requirements.
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:
(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.
[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]
Sec. 752.209-71 Organizational conflicts of interest discovered
after award.
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.
Organizational Conflicts of Interest Discovered After Award (JUN 1993)
(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.
(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.
(End of clause)
[58 FR 42255, Aug. 9, 1993, as amended at 64 FR 5008, Feb. 2, 1999]
Sec. 752.211-70 Language and measurement.
The following clause shall be used in all USAID-direct contracts.
Language and Measurement (JUN 1992)
(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.
(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.
(End of clause)
[57 FR 23321, June 3, 1992. Redesignated at 61 FR 39095, July 26, 1996]
Sec. 752.216-70 Award fee.
As prescribed in 716.406, insert the following clause in
solicitations and contracts in which an award-fee contract is
contemplated.
[[Page 60]]
Award Fee (MAY 1997)
(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.
(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.
(c) Award fee determinations made by the Government under this
contract are not subject to the Disputes clause.
(End of clause)
[64 FR 5008, Feb. 2, 1999]
Sec. 752.219-8 Utilization of small business concerns and small
disadvantaged business concerns.
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):
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:
(1) Brief general description and quantity of commodities or
services;
(2) Closing date for receiving quotations or bids; and
(3) Address where invitations or specifications may be obtained.
[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]
Sec. 752.225-9 Buy American Act--Trade Agreements Act--Balance of
Payments Program.
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.
[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]
Sec. 752.225-70 Source, origin and nationality requirements.
The following clause is required as prescribed in 725.704.
Source, Origin and Nationality Requirements (FEB 1997)
(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.
(b) Ineligible goods and services. The Contractor shall not procure
any of the following goods or services under this contract:
(1) Military equipment,
(2) Surveillance equipment,
(3) Commodities and services for support of police and other law
enforcement activities,
(4) Abortion equipment and services,
(5) Luxury goods and gambling equipment, or
[[Page 61]]
(6) Weather modification equipment.
(c) Restricted goods. The Contractor shall not procure any of the
following goods or services without the prior written approval of the
Contracting Officer:
(1) Agricultural commodities,
(2) Motor vehicles,
(3) Pharmaceuticals and contraceptive items,
(4) Pesticides,
(5) Fertilizer,
(6) Used equipment, or
(7) U.S. government-owned excess property.
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.
[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997]
Sec. 752.225-71 Local procurement.
For use in any USAID contract involving performance overseas.
Local Procurement (FEB 1997)
(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.
(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.
[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997; 62 FR 47532,
Sept. 9, 1997]
Sec. 752.226-1 Determination of status as disadvantaged
enterprise.
As prescribed in 726.7006(a), insert the following provision:
Disadvantaged Enterprise Representation (APR 1991)
The offeror/contractor shall submit a representation in the
following form to the contracting officer:
(a) Representation. The offeror represents that:
(1) It >< is,
>< is not a small disadvantaged business.
(2) It >< is,
>< is not an historically black college
or university, as designated by the Secretary of Education pursuant to
34 CFR 608.2.
(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.
(4) It >< is,
>< is not a private voluntary
organization which is controlled by individuals who are socially and
economically disadvantaged.
(b) Definitions. (1) Asian Pacific Americans, 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.
(2) Controlled by socially and economically disadvantaged
individuals means management and daily business are controlled by one or
more such individuals.
(3) Native Americans, as used in this provision means American
Indians, Eskimos, Aleuts, and native Hawaiians.
(4) Owned by socially and economically disadvantaged individuals
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.
(5) Small business concern, 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.
(6) Small disadvantaged business, as used in this provision, means a
small business concern that:
(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
(ii) Has its management and daily business controlled by one or more
such individuals.
(7) Subcontinent Asian Americans, as used in this provision, means
United States citizens whose origins are in India, Pakistan, Bangladesh,
Sri Lanka, Bhutan, or Nepal.
(c) Qualified groups. 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.
(End of provision)
[56 FR 27209, June 13, 1991, as amended at 62 FR 40470, July 29, 1997]
[[Page 62]]
Sec. 752.226-2 Subcontracting with disadvantaged enterprises.
As prescribed in 726.7007, insert the following clause:
Subcontracting With Disadvantaged Enterprises (APR 1997)
Note: This clause does not apply to prime contractors that qualify
as disadvantaged enterprises as described below.
(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.
(b) Disadvantaged enterprises are U.S. organizations or individuals
that are:
(1) Business concerns (as defined in FAR 19.001) owned and
controlled by socially and economically disadvantaged individuals;
(2) Institutions designated by the Secretary of Education, pursuant
to 34 CFR 608.2, as historically black colleges and universities:
(3) Colleges and universities having a student body in which more
than 40 percent of the students are Hispanic American; or
(4) Private voluntary organizations which are controlled by
individuals who are socially and economically disadvantaged.
(c) Definitions. (1) Controlled by socially and economically
disadvantaged individuals means management and daily business are
controlled by one or more such individuals.
(2) Owned by socially and economically disadvantaged individuals
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.
(3) Socially and economically disadvantaged individuals has the same
meaning as in FAR 19.001, except that the term also includes women.
(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.
(End of clause)
[56 FR 27210, June 13, 1991, as amended at 62 FR 40470, July 29, 1997]
Sec. 752.226-3 Limitation on subcontracting.
As prescribed in 726.7008, insert the following clause:
Limitations on Subcontracting (JUN 1993)
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.
(End of clause)
[58 FR 42255, Aug. 9, 1993, as amended at 62 FR 40470, July 29, 1997]
Sec. 752.228-3 Worker's compensation insurance (Defense Base
Act).
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.
(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.
(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.
(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.
[53 FR 50631, Dec. 16, 1988, as amended at 54 FR 16122, Apr. 21, 1989;
56 FR 67226, Dec. 30, 1991]
Sec. 752.228-7 Insurance--liability to third persons.
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 Alternate I is not used) or (i) (if FAR 52.228-7
Alternate I is used):
( ) Insurance on private automobiles. If the Contractor or any of
its employees or their
[[Page 63]]
dependents transport or cause to be transported (whether or not at
contract expense) privately owned automobiles to the Cooperating
Country, or they or any of them purchase an automobile within the
Cooperating Country, the Contractor agrees to make certain that all such
automobiles during such ownership within the Cooperating Country will be
covered by a paid-up insurance policy issued by a reliable company
providing the following minimum coverages or such other minimum
coverages as may be set by the Mission Director, payable in United
States dollars or its equivalent in the currency of the Cooperating
Country: injury to persons, $10,000/$20,000; property damage, $5,000.
The premium costs for such insurance shall not be a reimbursable cost
under this contract. Copies of such insurance policies shall be
preserved and made available as part of the Contractor's records which
are required to be preserved and made available by the ``Audit and
Records--Negotiation'' clause of this contract.
[53 FR 50632, Dec. 16, 1988, as amended at 54 FR 16122, Apr. 21, 1989;
62 FR 40470, July 29, 1997]
Sec. 752.228-9 Cargo insurance.
As prescribed in 728.313(a), the following preface is to be used
preceding the text of the clause at FAR 52.228-9:
Preface: 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.
[53 FR 50632, Dec. 16, 1988]
Sec. 752.228-70 Medical Evacuation (MEDEVAC) Services.
As prescribed in 728.307-70, for use in all contracts requiring
performance overseas:
Medical Evacuation (MEDEVAC) Services (MAR 1993)
(a) Contractors agree to provide medevac service coverage to all
U.S. citizen, U.S. resident alien, and Third Country National employees
and their authorized dependents while overseas under an USAID financed
direct contract. Coverage shall be obtained pursuant to the terms of the
contract between USAID and USAID's medevac service provider unless
exempted in accordance with paragraph (b) of this clause.
(b) The following are exempted from the requirements in paragraph
(a) of this clause:
(i) Eligible employees and their dependents with a health program
that includes sufficient medevac coverage as approved by the Contracting
Officer.
(ii) Eligible employees and their dependents located at Missions
where the Mission Director makes a written determination to waive the
requirement for such coverage based on findings that the quality of
local medical services or other circumstances obviate the need for such
coverage.
(c) Contractors further agree to insert in all subcontracts
hereunder to which the medevac coverage is applicable, a clause similar
to this clause, including this sentence, imposing on all subcontractors
a like requirement to provide medical evacuation services coverage and
obtain medevac coverage in accordance with the contract between USAID
and USAID's medevac service provider.
[59 FR 33447, June 29, 1994]
Sec. 752.229-70 Federal, state and local taxes.
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.
Sec. 752.231-71 Salary supplements for HG employees.
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.
Salary Supplements for HG Employees (OCT 1998)
(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.
(b) Salary supplements to HG Employees are not allowable without the
written approval of the Contracting Officer.
[64 FR 16649, Apr. 6, 1999]
Sec. 752.232-7 Payments under time-and-materials and labor-hour
contracts.
USAID uses the payment provision contained in FAR 52.232-7 in
indefinite quantity contracts for professional services up to 120 days,
as provided in
[[Page 64]]
USAIDAR 716.501(c). When this provision is used the following preamble
will be included:
For the purposes of this clause certain terms shall be interpreted
as follows:
The term contract(s) includes ``delivery order(s)''; ``hour(s)'', or
``hourly'' may be calculated in terms of ``day(s)'' or ``daily (8
hours)''; and ``materials'' includes ``other direct costs''.
[50 FR 11450, Apr. 3, 1986]
Sec. 752.232-70 Letter of credit advance payment.
As required by 732.406-73 insert the following clause in contracts
being paid by Letter of Credit.
Letter of Credit Advance Payment (OCT 1989)
(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).
(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.
(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.
(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.
[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]
Sec. 752.245-70 Government property--USAID reporting
requirements.
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.
Preface: to be inserted preceding the text of the FAR clause.
The term Government furnished property 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 and
(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
government property, 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.
Reporting Requirement: to be inserted following the text of the FAR
clause.
Reporting Requirements: The contractor will submit an annual report
on all non-expendable property in a form and manner acceptable to USAID
substantially as follows:
Annual Report of Government Property in Contractor's Custody
[(Name of contractor) as of (end of contract year), 19xx]
------------------------------------------------------------------------
Furniture and
furnishings-- Other
Motor vehicles ------------------ nonexpend-
Living able
Office quarters property
------------------------------------------------------------------------
A. Value of property as of last report.... ...... ........ ..........
B. Transactions during this reporting ...... ........ ..........
period...................................
1. Acquisitions (add):
a. Purchased by contractor \1\.......... ...... ........ ..........
b. Transferred from USAID \2\........... ...... ........ ..........
c. Transferred from others, without ...... ........ ..........
reimbursement \3\......................
2. Disposals (deduct):
a. Returned to USAID.................... ...... ........ ..........
b. Transferred to USAID--contractor ...... ........ ..........
purchased..............................
c. Transferred to other Government ...... ........ ..........
agencies \3\...........................
d. Other disposals \3\.................. ...... ........ ..........
C. Value of property as of reporting date. ...... ........ ..........
D. Estimated average age of contractor ...... ........ ..........
held property............................
------------------------------------------------------------------------
Years Years Years
------------------------------------------------------------------------
\1\ 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.
[[Page 65]]
\2\ Government furnished property listed in this Contract as
nonexpendable.
\3\ Explain if transactions were not processed through or otherwise
authorized by USAID.
Property Inventory Verifications
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.
________________________________________________________________________
Authorized Signature
[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997]
Sec. 752.245-71 Title to and care of property.
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.
Title to and Care of Property (APR 1984)
(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.)
(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.
(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''.
(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.I56Subpart 752.70--Texts
of USAID Contract Clauses
[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997; 64
FR 5009, Feb. 2, 1999]
Sec. 752.247-70 Preference for privately owned U.S.-flag
commercial vessels.
As prescribed in 747.507, insert the following clause:
Preference for Privately Owned U.S.-Flag Commercial Vessels (OCT 1996)
(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.
(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.
(c)(1) The contractor shall submit one legible copy of a rated on-
board ocean bill of
[[Page 66]]
lading for each shipment to both the Division of National Cargo, Office
of Cargo Preference, Maritime Administration, U.S. Department of
Transportation, Washington, DC 20590, and the Transportation Division,
Office of Procurement, USAID, Washington, DC 20523-7900.
(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:
(i) Sponsoring U.S. Government agency.
(ii) Name of vessel.
(iii) Vessel flag registry.
(iv) Date of loading.
(v) Port of loading.
(vi) Port of final discharge.
(vii) Description of commodity.
(viii) Gross weight in pounds and cubic feet if available.
(ix) Total ocean freight revenue in U.S. dollars.
Alternate I
(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.
(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.
[64 FR 5009, Feb. 2, 1999]
Subpart 752.70--Texts of USAID Contract Clauses
Sec. 752.7000 Scope of subpart.
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.
[49 FR 13259, Apr. 3, 1984, as amended at 57 FR 5237, Feb. 13, 1992]
Sec. 752.7001 Biographical data.
The following clause is to be included in all USAID cost
reimbursement contracts.
Biographical Data (JUL 1997)
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.
[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997; 62 FR 47532,
Sept. 9, 1997]
Sec. 752.7002 Travel and transportation.
For use in cost reimbursement contracts performed in whole or in
part overseas.
Travel and Transportation (JAN 1990)
(a) General. 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.
(b) International travel. 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
[[Page 67]]
the cost of travel from the post of duty in the Cooperating Country to
the employee's residence) upon completion of services by the individual.
Reimbursement for travel will be in accordance with the applicable cost
principles and the provisions of this contract, and will be limited to
the cost of travel by the most direct and expeditious route. If a
regular employee does not complete one full year at post of duty (except
for reasons beyond his/her control), the costs of going to and from the
post of duty for that employee and his/her dependents are not
reimbursable hereunder. If the employee serves more than one year but
less than the required service in the Cooperating Country (except for
reasons beyond his/her control) the costs of going to the post of duty
are reimbursable hereunder but the costs of going from post of duty to
the employee's permanent, legal place of residence at the time he or she
was employed for work under this contract or other location as approved
by the Contracting Officer are not reimbursable under this contract for
the employee and his/her dependents. When travel is by economy class
accommodations, the Contractor will be reimbursed for the cost of
transporting up to 22 pounds of accompanied personal baggage per
traveler in addition to that regularly allowed with the economy ticket
provided that the total number of pounds of baggage does not exceed that
regularly allowed for first class travelers. Travel allowances for
travelers shall not be in excess of the rates authorized in the
Standardized Regulations (Government Civilians, Foreign Areas)--
hereinafter referred to as the Standardized Regulations--as from time to
time amended, for not more than the travel time required by scheduled
commercial air carrier using the most expeditious route. One stopover en
route for a period of not to exceed 24 hours is allowable when the
traveler uses economy class accommodations for a trip of 14 hours or
more of scheduled duration. Such stopover shall not be authorized when
travel is by indirect route or is delayed for the convenience of the
traveler. Per diem during such stopover shall be paid in accordance with
the established practice of the Contractor but not to exceed the amounts
stated in the Standardized Regulations.
(c) Local travel. 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.
(d) Travel for consultation. 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.
(e) Special international travel and third country travel. 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.
(f) Indirect travel for personal convenience. 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.
(g) Limitation on travel by dependents. 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.
(h) Delays en route. 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
[[Page 68]]
caused by physical incapacitation, personnel shall be eligible for such
sick leave as provided under the ``Leave and Holidays'' clause of this
contract.
(i) Travel by privately owned automobile. 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.
(j) Emergency and irregular travel and transportation. 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:
(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.
(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.
(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.
(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.
(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.
(k) Home leave travel. 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.
(l) Rest and recuperation travel. 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
[[Page 69]]
not exceed that authorized for USAID direct hire employees, and provided
further that no reimbursement will be made unless approval is given by
the Contractor's Chief of party.
(m) Transportation of motor vehicles, personal effects and household
goods. (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.
(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.
(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.
(n) Unaccompanied baggage. 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.
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.
(o) Storage of household effects. 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) International ocean transportation. (1) Flag eligibility
requirements for ocean carriage are covered by the ``Source and
Nationality Requirements'' clause of this contract.
(i) Transportation of things. Where U.S. flag vessels are not
available, or their use would result in a significant delay, the
Contractor may obtain a release from this requirement from the
Transportation Division, Office of Procurement, U.S. Agency for
International Development, Washington, DC. 20523-1419, or the Mission
Director, as appropriate, giving the basis for the request.
(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.
(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.
(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
[[Page 70]]
amount in excess of the reduced rates available in accordance with the
foregoing.
(End of clause)
[55 FR 6803, Feb. 27, 1990, as amended at 56 FR 2699, Jan. 24, 1991]
Sec. 752.7003 Documentation for payment.
The following clause is required in all USAID direct contracts,
excluding fixed price contracts:
Documentation for Payment (NOV 1998)
(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.
(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:
Total Expenditures
[Document Number: XXX-X-XX-XXXX-XX]
----------------------------------------------------------------------------------------------------------------
Amt. vouchered to Amt. vouchered
Line item No. Description date this period
----------------------------------------------------------------------------------------------------------------
001..................................... Product/Service Desc. for Line $XXXX.XX $ XXXX.XX
Item 001.
002..................................... Product/Service Desc. for Line XXXX.XX XXXX.XX
Item 002.
-------------------------------------
Total............................. ................................ XXXX.XX XXXX.XX
----------------------------------------------------------------------------------------------------------------
(2) The fiscal report shall include the following certification
signed by an authorized representative of the Contractor:
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.
BY:_____________________________________________________________________
TITLE:__________________________________________________________________
DATE:___________________________________________________________________
(b) Local currency payment. 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.
(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.
(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''.
[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 5009, Feb. 2, 1999]
[[Page 71]]
Sec. 752.7004 Emergency locator information.
The following clause is to be included in all contracts requiring
travel overseas.
Emergency Locator Information (JUL 1997)
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:
(1) The individual's full name, home address, and telephone number.
(2) The name and number of the contract, and whether the individual
is an employee or dependent.
(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.
(4) The name, address, and telephone number(s) of each individual's
next of kin.
(5) Any special instructions pertaining to emergency situations such
as power of attorney designees or alternate contact persons.
[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997]
Sec. 752.7005 Submission requirements for development experience
documents.
The following clause shall be included in all USAID professional/
technical contracts in which development experience documents are likely
to be produced.
Submission Requirements for Development Experience Documents (OCT 1997)
(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.
(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.
(b) Submission requirements--(1) Distribution. (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.
(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.
(2) Format. (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.
(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.
(iii) The electronic document submitted shall consist of only one
electronic file which comprises the complete and final equivalent of the
hard copy submitted.
(iv) Acceptable software formats for electronic documents include
WordPerfect, Microsoft Word, ASCII, and Portable Document Format (PDF).
Submission in Portable Document format is encouraged.
(v) The electronic document submission shall include the following
descriptive information:
(A) Name and version of the application software used to create the
file, e.g., WordPerfect Version 6.1 or ASCII or PDF.
(B) The format for any graphic and/or image file submitted, e.g.,
TIFF-compatible.
[[Page 72]]
(C) Any other necessary information, e.g. special backup or data
compression routines, software used for storing/retrieving submitted
data, or program installation instructions.
[64 FR 5010, Feb. 2, 1999]
Sec. 752.7006 Notices.
The following clause shall be used in all USAID contracts.
Notices (APR 1984)
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:
To USAID: 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).
To Contractor: 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.
[49 FR 13259, Apr. 3, 1984, as amended at 56 FR 2699, Jan. 24, 1991; 61
FR 39095, July 26, 1996]
Sec. 752.7007 Personnel compensation.
The following clause shall be used in all USAID cost-reimbursement
contracts.
Personnel Compensation (JUL 1996)
(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.
(b) Compensation (i.e., the employee's base annual salary plus
overseas recruitment incentive, if any) which exceeds the maximum
payable annual or daily rate for an Executive Service level ES-6, as
published in the Federal Register, will be reimbursed only with the
approval of the Contracting Officer, as prescribed in 731.205-6(d) or
731.371(b), as applicable.
[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]
Sec. 752.7008 Use of Government facilities or personnel.
The following clause is for use in all USAID non-commercial
contracts.
Use of Government Facilities or Personnel (APR 1984)
(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.
(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.
(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''.
[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997
Sec. 752.7009 Marking.
The following clause is for use in all USAID contracts performed in
whole or in part overseas.
Marking (JAN 1993)
(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.
(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.
(c) Authority to waive marking requirements is vested with the
Regional Assistant Administrators, and with Mission Directors.
(d) A copy of any specific marking instructions or waivers from
marking requirements is to be sent to the Contracting Officer; the
[[Page 73]]
original should be retained by the Contractor.
[49 FR 13259, Apr. 3, 1984, as amended at 58 FR 8703, Feb. 17, 1993]
Sec. 752.7010 Conversion of U.S. dollars to local currency.
For use in all USAID non-commercial contracts involving performance
overseas.
Conversion of U.S. Dollars to Local Currency (APR 1984)
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.
[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997]
Sec. 752.7011 Orientation and language training.
For use in all USAID cost-reimbursement contracts involving
performance overseas.
Orientation and Language Training (APR 1984)
(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.
(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.
(1) Modified orientation.
(2) Language training, particularly when significant for operating
capabilities.
(3) Orientation and language training for regular employee's
dependents.
(4) Contractor-sponsored orientation.
(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.
(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.
(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.
Sec. 752.7012 Protection of the individual as a research subject.
This clause is for use in any USAID contract which involves research
using human subjects.
Protection of the Individual as a Research Subject (AUG 1995)
(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.
(b) Contractors must comply with the Policy when humans are the
subject of research, as defined in 22 CFR 225.102(d), performed as part
of the contract, and contractors must provide ``assurance'', as required
by 22 CFR 225.103, that they follow and abide by the procedures in the
Policy. See also Section 5 of the April 19, 1995, USAID General Notice
which sets forth activities to which the Policy is applicable. The
existence of a bona fide, applicable assurance approved by the
Department of Health and Human Services (HHS) such as the ``multiple
project assurance'' (MPA) will satisfy this requirement. Alternatively,
contractors can provide an acceptable written assurance to USAID as
described in 22 CFR 225.103. Such assurances must be determined by the
CHSO to be acceptable prior to any applicable research being initiated
or conducted under the contract. In some limited instances outside the
U.S., alternative systems for the protection of human subjects may be
used provided they are deemed ``at least equivalent'' to those outlined
in Part 225 (see 22 CFR 225.101(h)). Criteria and procedures for making
this determination are described in the General Notice cited in the
preceding paragraph.
(c) Since the welfare of the research subject is a matter of concern
to USAID as well
[[Page 74]]
as to the contractor, USAID staff, consultants and advisory groups may
independently review and inspect research, and research processes and
procedures involving human subjects, and based on such findings, the
CHSO may prohibit research which presents unacceptable hazards or
otherwise fails to comply with USAID procedures. Informed consent
documents must include the stipulation that the subject's records may be
subject to such review.
[61 FR 39095, July 26, 1996]
Sec. 752.7013 Contractor-mission relationships.
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.
Contractor-Mission Relationships (OCT 1989)
(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.
(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.
(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.
(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.
(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.
[The following paragraph (f) is applicable if the contract is with an
educational institution:]
(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.
(End of clause)
[54 FR 46391, Nov. 3, 1989]
Sec. 752.7014 Notice of changes in travel regulations.
The following clause is for use in cost-reimbursement contracts
involving work overseas.
Notice of Changes in Travel Regulations (JAN 1990)
(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).
(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.
(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.
(End of clause)
[55 FR 6805, Feb. 27, 1990]
Sec. 752.7015 Use of pouch facilities.
For use in all USAID non-commercial contracts exceeding the
simplified acquisition threshold and involving performance overseas.
[[Page 75]]
Use of Pouch Facilities (JUL 1997)
(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.
(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.
(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).
(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.
(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.
(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.
(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.
(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.
(b) The Contractor shall be responsible for advising its employees
of this authorization and these guidelines and limitations on use of
pouch facilities.
(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.
[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]
Sec. 752.7016 Family planning and population assistance
activities.
The following clause is applicable to all contracts involving any
aspect of family planning or population activities.
Family Planning and Population Assistance Activities (AUG 1986)
(a) Voluntary Participation. (1) The Contractor agrees to take any
steps necessary to ensure that funds made available under this contract
will not be used to coerce any individual to practice methods of family
planning inconsistent with such individual's moral, philosophical, or
religious beliefs. Further, the Contractor agrees to conduct its
activities in a manner which safeguards the rights, health and welfare
of all individuals who take part in the program.
(2) Activities which provide family planning services or information
to individuals, financed in whole or in part under this contract, shall
provide a broad range of family planning methods and services available
in the country which the activity is conducted or shall provide
information to such individuals regarding where such methods and
services may be obtained.
(b) Prohibition on Abortion-related Activities. No funds made
available under this Contract shall be used to finance, support, or be
attributed to the following activities: (i) Procurement or distribution
of equipment intended to be used for the purposes of inducing abortions
as a method of family planning: (ii) special fees or incentives to women
to coerce or motivate them to have abortions; (iii) payments to persons
to perform abortions or to solicit persons to undergo abortions; (iv)
information, education, training, or communication programs that seek to
promote abortion as a method of family planning; (v) any biomedical
research which relates, in whole or in part, to methods of, or the
performance of, abortions or involuntary sterilization as a means of
family planning (epidemiologic or descriptive research to assess the
incidence, extent or consequences of abortion is not precluded); or (vi)
lobbying for abortion.
(c) Voluntary Participation Requirements for Sterilization Programs.
(1) None of the funds made available under this contract shall be used
to pay for the performance of involuntary sterilizations or to coerce or
provide any financial incentive to any person to practice
sterilizations.
[[Page 76]]
(2) The Contractor shall insure that any surgical sterilization
procedures supported in whole or in part by funds from the contract are
performed only after the individual has voluntarily come to the
treatment facility and has given an informed consent to the
sterilization procedure. Informed consent means the voluntary knowing
assent from the individual given after being advised of the surgical
procedures to be followed, the attendant discomforts and risks, the
benefits to be expected, the availability of alternative methods of
family planning, the purpose of the operation and its irreversibility,
and the fact that the consent can be withdrawn at any time prior to the
operation. An individual's consent is considered voluntary if it is
based upon the exercise of free choice and is not obtained by any
special inducement or any element of force, fraud, deceit, duress or
other forms of coercion or misrepresentation.
(3) Further, the Contractor shall document the patient's informed
consent by: (i) A written consent document in a language the patient
understands and speaks, which explains the basic elements of informed
consent, as set out above, and which is signed by the individual and by
the attending physician or by the authorized assistant of the attending
physician; or (ii) when a patient is unable to read adequately a written
certification signed by the attending physician or by the authorized
assistant of the attending physician that the basic elements of informed
consent above were orally presented to the patient, and that the patient
thereafter consented to the performance of the operation. The receipt of
the oral explanation shall be acknowledged by the patient's mark on the
certification and by the signature or mark of the witness who shall be
of the same sex and speak the same language as the patient.
(4) Copies of the informed consent forms and certification documents
for each voluntary sterilization (VS) procedure must be retained by the
performing Contractor or subcontractor for a period of three years after
the performance of the sterilization procedure.
(d) The Contractor shall insert the substance of this clause in any
subgrants, subcontracts, purchase orders, and other subordinate
agreements hereunder whenever appropriate to the goods and services to
be provided under such agreements.
[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33669, Aug. 24, 1984; 51
FR 34985, Oct. 1, 1986]
Sec. 752.7017 [Reserved]