[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2016 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 48
Federal Acquisition Regulations System
________________________
Chapters 7 to 14
Revised as of October 1, 2016
Containing a codification of documents of general
applicability and future effect
As of October 1, 2016
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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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 151
Chapter 9--Department of Energy 307
Chapter 10--Department of the Treasury 587
Chapter 12--Department of Transportation 607
Chapter 13--Department of Commerce 671
Chapter 14--Department of the Interior 777
Finding Aids:
Table of CFR Titles and Chapters........................ 859
Alphabetical List of Agencies Appearing in the CFR...... 879
List of CFR Sections Affected........................... 889
[[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
departments and agencies of the Federal Government. The Code is divided
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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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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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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PAST PROVISIONS OF THE CODE
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INCORPORATION BY REFERENCE
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register.
October 1, 2016.
[[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, 2016.
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).
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapters 7 to 14)
--------------------------------------------------------------------
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
700
[Reserved]
701 Federal Acquisition Regulation System....... 5
702 Definitions of words and terms.............. 10
703 Improper business practices and personal
conflicts of interest................... 11
704 Administrative matters...................... 12
SUBCHAPTER B--ACQUISITION PLANNING
705 Publicizing contract actions................ 15
706 Competition requirements.................... 15
707 Acquisition planning........................ 17
709 Contractor qualifications................... 17
711 Describing agency needs..................... 17
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
713 Simplified acquisition procedures........... 19
714 Sealed bidding.............................. 19
715 Contracting by negotiation.................. 19
716 Types of contracts.......................... 24
717 Special contracting methods................. 25
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
719 Small business programs..................... 26
722 Application of labor laws to Government
acquisition............................. 35
724 Protection of privacy and freedom of
information............................. 38
725 Foreign acquisition......................... 38
[[Page 4]]
726 Other socioeconomic programs................ 39
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
727 Patents, data, and copyrights............... 41
728 Bonds and insurance......................... 41
729 Taxes....................................... 43
731 Contract cost principles and procedures..... 44
732 Contract financing.......................... 48
733 Protests, disputes, and appeals............. 49
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
734 Major system acquisition.................... 52
736 Construction and architect-engineer
contracts............................... 52
737
[Reserved]
SUBCHAPTER G--CONTRACT MANAGEMENT
742 Contract administration..................... 54
744 Subcontracting policies and procedures...... 56
745 Government property......................... 56
747 Transportation.............................. 56
749 Termination of contracts.................... 56
750 Extraordinary contractual actions........... 58
SUBCHAPTER H--CLAUSES AND FORMS
752 Solicitation provisions and contract clauses 63
753 Forms....................................... 101
754-799
[Reserved]
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.................................................... 102
Appendix E to Chapter 7 [Reserved]
Appendix F to Chapter 7--Use of Collaborative Assistance
Method for Title XII Activities........................... 127
Appendixes G-H to Chapter 7 [Reserved]
Appendix I to Chapter 7--USAID's Academic Publication Policy 131
Appendix J to Chapter 7--Direct USAID Contracts With a
Cooperating Country National and With a Third Country
National for Personal Services Abroad..................... 132
[[Page 5]]
SUBCHAPTER A_GENERAL
PART 700 [RESERVED]
PART 701_FEDERAL ACQUISITION REGULATION SYSTEM--Table of Contents
Subpart 701.1_Purpose, Authority, Issuance
Sec.
701.106 OMB approval under the Paperwork Reduction Act.
Subpart 701.3_U.S. Agency for International Development Acquisition
Regulation
701.301 Policy.
701.303 Publication and codification.
Subpart 701.4_Deviations from the FAR or AIDAR
701.402 Policy.
701.470 Procedure.
Subpart 701.6_Career Development, Contracting Authority, and
Responsibilities
701.601 General.
701.602-1 Authority of contracting officers in resolving audit
recommendations.
701.602-3 Ratification of unauthorized commitments.
701.603 Selection, appointment, and termination of appointment of
contracting officers.
701.603-70 Designation of contracting officers.
Subpart 701.7_Determinations and Findings
701.704 Content.
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
701.106 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 as specified below:
------------------------------------------------------------------------
OMB control
(48 CFR) AIDAR segment No.
------------------------------------------------------------------------
752.219-8.................................................. 0412-0520
752.245-70................................................. 0412-0520
752.245-71(c)(2)........................................... 0412-0520
752.247-70(c).............................................. 0412-0520
752.7001................................................... 0412-0520
752.7002(j)................................................ 0412-0520
752.7003................................................... 0412-0520
752.7004................................................... 0412-0520
752.7032................................................... 0412-0520
------------------------------------------------------------------------
(b) The information requested by the AIDAR sections listed in
paragraph (a) is necessary to allow USAID to prudently administer public
funds. It lets USAID make reasonable assessments of contractor
capabilities and responsibility of costs. Information is required in
order for a contractor and/or its employee to obtain a benefit-usually
taking the form of payment under a Government contract.
(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.
[59 FR 33445, June 29, 1994, as amended at 61 FR 39090, July 26, 1996;
62 FR 40466, July 29, 1997; 64 FR 16648, Apr. 6, 1999; 72 FR 19670, Apr.
19, 2007. Redesignated and amended at 79 FR 74988, 74989, Dec. 16, 2014]
Subpart 701.3_U.S. Agency for International Development Acquisition
Regulation
Source: 64 FR 42040, Aug. 3, 1999, unless otherwise noted.
701.301 Policy.
(a) Responsibility. Subject to the direction of the Administrator,
the Director, Bureau for Management, Office of Acquisition and
Assistance (``M/OAA Director) is responsible for:
(1) Developing and maintaining necessary uniform procurement
policies, procedures, and standards;
[[Page 6]]
(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 Office of 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 Bureau for Management,
Office of Management Services (M/MS) 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.
[64 FR 42040, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007; 79
FR 74989, Dec. 16, 2014]
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 subpart 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/OAA Director has the authority to issue internal
Agency guidance applicable to all Agency contracts. The heads of the
various Agency contracting activities (see Subparts 701.6 and 702.170)
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
must be forwarded to the Bureau for Management, Office of Acquisition
and Assistance, Policy Division (M/OAA/P). Insofar as possible, such
material must be numerically keyed to the AIDAR.
[64 FR 42040, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007; 79
FR 74989, Dec. 16, 2014]
Subpart 701.4_Deviations from the FAR or AIDAR
701.402 Policy.
It is USAID policy to approve deviations from the mandatory
requirements of the FAR and AIDAR only if it is essential to effect
necessary procurement actions and when special and exceptional
circumstances make such deviation clearly in the best interest of the
Government.
[79 FR 74989, Dec. 16, 2014]
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
[[Page 7]]
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 must 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 must obtain written comments from the
Bureau for Management, Office of Acquisition and Assistance, Policy
Division (M/OAA/P), hereinafter referred to as ``M/OAA/P''. M/OAA/P will
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
M/OAA/P for a shorter review period. In addition to a copy of the
deviation request, M/OAA/P must be furnished any background or
historical data that will contribute to a more complete understanding of
the deviation. The comments of M/OAA/P must 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 the 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/OAA, has authority to approve class deviations that
affect more than one contracting activity.
(2) Class deviations from the FAR will be considered jointly by
USAID and the Chairperson of the Civilian Agency Acquisition Council (C/
CAAC) (FAR 1.404) unless, in the judgment 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 must certify on the face of the deviation the reason for not
coordinating with the C/CAAC. In such cases, M/OAA/P will 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 must be processed in the same manner as paragraph
(a) of this section, except that M/OAA/P will 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 M/OAA/P
for a shorter review and coordination period. The comments of C/CAAC and
M/OAA/P must be forwarded to the head of the contracting activity along
with the deviation request and made a part of the deviation request
file.
(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.
(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.
[[Page 8]]
(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 must be maintained by
the procuring activities of the deviations granted from the FAR and
AIDAR. Each deviation must be recorded in its appropriate register and
be assigned a control number as follows: For USAID Washington deviations
the symbol of the procuring activity, or for overseas mission deviations
the relevant geographic code; the abbreviation ``DEV''; the fiscal year;
the type of deviation (from the FAR or AIDAR); 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., M/OAA-
DEV-FAR-14-1, M/OAA-DEV-FAR-14-2c, 123-DEV-AIDAR-14-1). The control
number must be embodied in the document authorizing the deviation and
must be cited in all references to the deviation.
(e) Central record of deviations. Copies of approved deviations
shall be furnished promptly to the M/OAA/P, who shall be responsible for
maintaining a central record of all deviations that are granted.
(f) Semiannual report of class deviations. (1) USAID contracting
officers must submit a semiannual report to M/OAA/P of all contract
actions effected under class deviations to the FAR and AIDAR, which have
been approved pursuant to paragraph (b) of this section.
(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; 72 FR 19670, Apr. 19, 2007; 79 FR
74989, Dec. 16, 2014]
Subpart 701.6_Career Development, Contracting Authority, and
Responsibilities
701.601 General.
(a)(1) Pursuant to the delegations in USAID's Automated Directives
System (ADS) Chapter 103, the M/OAA Director is authorized to act as the
head of the agency for all purposes described in the Federal Acquisition
Regulation (FAR, 48 CFR chapter 1), except for the authority in (48 CFR)
FAR 6.302-7(a)(2), 6.302-7(c)(1), 17.602(a), 19.201(c), 27.306(a),
27.306(b), and 30.201-5, or where the ``head of the agency'' authority
is expressly not delegable under the FAR or AIDAR. Further, the M/OAA
Director is responsible for implementing the procurement related aspects
of the Foreign Assistance Act, Executive Order 11223, the Office of
Federal Procurement Policy Act, and other statutory and Executive Branch
procurement policies and requirements applicable to USAID operations,
including those authorities and responsibilities delegated to the Senior
Procurement Executive as specified in USAID's internal delegations found
in the ADS.
(2) The M/OAA Director has specific 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 (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
[[Page 9]]
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 (48 CFR) AIDAR 701.601 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, the Bureau of Democracy, Conflict and Humanitarian
Assistance, the Office of U.S. Foreign Disaster Assistance (DCHA/OFDA).
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, Bureau for Economic Growth, Education and Environment,
Office of Education (E3/ED). Authority to execute simplified
acquisitions up to $10,000. Unlimited authority for procuring
participant training based on published catalog prices. 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 $1,000,000 (or local currency equivalent) for personal
services contracts; or the simplified acquisition threshold as defined
in (48 CFR) FAR 2.101 (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; 72 FR 19670, Apr. 19,
2007; 79 FR 74990, Dec. 16, 2014]
701.602-1 Authority of contracting officers in resolving audit recommendations.
With the exception of termination settlements subject to part 749 of
this chapter, Termination of Contracts, contracting officers have the
authority to negotiate and enter into settlements with contractors for
costs questioned under audit reports, or to issue a contracting
officer's final decision pursuant to applicable dispute resolution
procedures (in the event that questioned costs are not settled by
negotiated agreement) in accordance with USAID's internal policy found
in ADS Chapter 591. The negotiated settlement or final decision will be
final, subject only to a contractor's appeal under the provisions of the
Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), or other
procedures as applicable. Policies and procedures for resolving audit
recommendations are in accordance with USAID's internal policies found
in ADS Chapters 591 and 592.
[79 FR 74990, Dec. 16, 2014]
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/OAA Director.
[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 42040, Aug. 3, 1999; 72
FR 19670, Apr. 19, 2007]
701.603 Selection, appointment, and termination of appointment of
contracting officers.
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 ensure proper accountability, and to preclude possible security,
conflict of interest, or jurisdiction problems, USAID contracting
officers must
[[Page 10]]
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; 79
FR 74990, Dec. 16, 2014]
Subpart 701.7_Determinations and Findings
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 (48
CFR) FAR 1.704 and any information which may be required by the (48 CFR)
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; 79
FR 74988, Dec. 16, 2014]
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, as amended at 79 FR 74988, Dec. 16, 2014]
PART 702_DEFINITIONS OF WORDS AND TERMS--Table of Contents
Subpart 702.170_Definitions
Sec.
702.170-1 Definitions.
Subpart 702.270_Definitions Clause
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
702.170-1 Definitions.
A word or term, defined in this section, has the same meaning
throughout the AIDAR.
Administrator means the Administrator or Deputy Administrator of the
U.S. Agency for International Development.
Automated Directives System (ADS) sets forth the Agency's policies
and essential procedures, as well as supplementary informational
references. It contains six functional series, valid USAID Handbook
chapters, a resource library, and a glossary. References to ``ADS''
throughout 48 CFR chapter 7 are references to the Automated Directives
System. The entire ADS is accessible to the general public at the
following USAID Internet address: http://www.usaid.gov/policy/ads/.
Contracting activities also referred to as ``procuring activities''
within USAID are:
(1) The USAID/Washington activities. The contracting activities
located in Washington, DC are: The Bureau for Management, Office of
Acquisition and Assistance (M/OAA); the Bureau for Democracy, Conflict
and Humanitarian Assistance, Office of Foreign Disaster Assistance
(DCHA/OFDA); and the Bureau for Economic Growth, Education and
Environment, Office of Education (E3/ED). Subject to the limitations in
701.601 of this chapter, the latter two contracting activities are
responsible for procurements related to programs and activities for
their areas. M/OAA is responsible for procurements that do not fall
within the responsibility of other contracting activities, or that are
otherwise assigned to it.
(2) The overseas field contracting activities. Each USAID Mission or
post overseas is a contracting activity responsible for procurements
related to its programs and activities, subject to the limitations in
701.601 of this chapter.
Cooperating country means a foreign country in which there is a
program or activity administered by USAID.
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.
Executive agency includes the U.S. Agency for International
Development (USAID) and its predecessor agencies, including the
International Cooperation Administration.
Foreign Assistance Act means the Foreign Assistance Act of 1961, as
amended (22 U.S.C., Chapter 32).
[[Page 11]]
Government, Federal, State, local and political subdivisions, as
used in the FAR and AIDAR, do not refer to foreign entities except as
otherwise stated.
Head of agency means, for USAID, the Administrator, the Deputy
Administrator, and in accordance with the responsibilities and
limitations set forth in (48 CFR) AIDAR 701.601(a)(1), the M/OAA
Director.
Head of the contracting activity:
(1) The heads of USAID contracting activities are listed below. The
limits of their contracting authority are set forth in 701.601 of this
chapter.
(i) USAID/Washington Heads of Contracting Activities:
(A) Director, Bureau for Management, Office of Acquisition and
Assistance;
(B) Director, the Bureau for Democracy, Conflict and Humanitarian
Assistance, Office of Foreign Disaster Assistance (DCHA/OFDA); and
(C) Director, Bureau for Economic Growth, Education and Environment,
Office of Education (E3/ED).
(ii) Overseas Heads of Contracting Activities: Each Mission Director
or principal USAID officer at post (e.g. USAID Representative, USAID
Affairs Officer, etc.).
(2) Individuals serving in the positions listed in paragraphs (1)(i)
and (ii) of this definition in an ``Acting'' capacity may exercise the
authority delegated to that position.
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.
Overseas means outside the United States, its possessions, and
Puerto Rico.
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 USAID's internal delegations found in the ADS.
Procuring activity means ``contracting activity'', as defined in
this subpart.
Third country national (TCN) means an individual who is neither a
cooperating country national nor a U.S. national, but is a citizen or
lawful permanent resident (or equivalent immigration status) of any
country other than the countries which are prohibited sources. (See 22
CFR 228.15).
USAID means the U.S. Agency for International Development and its
predecessor agencies, including the International Cooperation
Administration (ICA).
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.
[79 FR 74991, Dec. 16, 2014]
Subpart 702.270_Definitions Clause
702.270-1 Definitions clause.
Use the appropriate clause in 752.202-1, in addition to the clause
in (48 CFR) FAR 52.202-1.
[49 FR 13238, Apr. 3, 1984, as amended at 79 FR 74988, Dec. 16, 2014]
PART 703_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
--Table of Contents
Subpart 703.1_Safeguards
Sec.
703.104-4 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
703.104-7 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
703.104-4 Disclosure, protection, and marking of contractor bid or proposal
information and source selection information.
A contracting officer may authorize the release of proprietary and/
or source selection information outside the Government for evaluation
purposes pursuant to (48 CFR) FAR 15.305(c) and (48 CFR) AIDAR
715.305(c).
[79 FR 74991, Dec. 16, 2014]
[[Page 12]]
703.104-7 Violations or possible violations.
Requests for concurrence under paragraph (a)(1) of (48 CFR) FAR
3.104-7 must be forwarded to one level above the contracting officer.
[79 FR 74991, Dec. 16, 2014]
PART 704_ADMINISTRATIVE MATTERS--Table of Contents
Subpart 704.4_Safeguarding Classified Information Within Industry
Sec.
704.404 Contract clauses.
Subpart 704.8--Contract Files [Reserved]
Subpart 704.70_Partner Vetting
704.7001 Scope of subpart.
704.7002 Definitions.
704.7003 Policy.
704.7004 Procedures.
704.7004-1 Preaward requirements.
704.7004-2 Post award requirements.
704.7004-3 Subcontracts.
704.7005 Solicitation provision and 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 704.4_Safeguarding Classified Information Within Industry
704.404 Contract clauses.
(a) When the contract includes a requirement for the contractor to
access classified (``Confidential'', ``Secret'', or ``Top Secret''), or
administratively controlled (``Sensitive But Unclassified'')
information, the contracting officer must insert (48 CFR) FAR clause
52.204-2, Security Requirements and (48 CFR) AIDAR clause 752.204-2,
Security Requirements, in the solicitation and award.
(b) If the contract requires the contractor (or contractor
employees) to have routine physical access to USAID-controlled
facilities in the U.S. (i.e., will need an ID for regular entry to USAID
space), or have logical access to USAID's information systems (i.e.,
access to AIDNet, Phoenix, the Global Acquisition and Assistance System
(GLAAS,) etc.,) and the solicitation and contract contains (48 CFR) FAR
52.204-9(a), the contracting officer must also insert (48 CFR) AIDAR
752.204-72, Access to USAID Facilities and USAID's Information Systems.
Only U.S citizen employees or consultants of a U.S.-based company may
request routine physical access to USAID-controlled facilities or
logical access to USAID's information systems.
[79 FR 74991, Dec. 16, 2014]
Subpart 704.8--Contract Files [Reserved]
Subpart 704.70_Partner Vetting
Source: 77 FR 8170, Feb. 14, 2012, unless otherwise noted.
704.7001 Scope of subpart.
This subpart prescribes the policies and procedures to apply partner
vetting to USAID acquisitions.
704.7002 Definitions.
As used in this subpart--
Key individual means:
(1) Principal officers of the organization's governing body (e.g.,
chairman, vice chairman, treasurer and secretary of the board of
directors or board of trustees);
(2) The principal officer and deputy principal officer of the
organization (e.g., executive director, deputy director, president, vice
president);
(3) The program manager or chief of party for the USG-financed
program; and
(4) Any other person with significant responsibilities for
administration of the USG-financed activities or resources, such as key
personnel as described in Automated Directives System Chapter 302. Key
personnel, whether or not they are employees of the prime contractor,
must be vetted.
Vetting official means the USAID employee identified in the
solicitation or contract as having responsibility for receiving vetting
information, responding to questions about information to be included on
the Partner Information Form, coordinating with the USAID Office of
Security (SEC), and conveying
[[Page 13]]
the vetting determination to each offeror, potential subcontractors
subject to vetting, and the contracting officer. The vetting official is
not part of the contracting office and has no involvement in the source
selection process.
704.7003 Policy.
In the interest of national security, USAID may determine that a
particular acquisition is subject to vetting. In that case, USAID will
require vetting of all key individuals of offerors, first tier
subcontractors, and any other class of subcontracts if identified in the
solicitation and resulting contract. When USAID conducts partner
vetting, it will not award a contract to any offeror who does not pass
vetting.
704.7004 Procedures.
704.7004-1 Preaward requirements.
(a) When USAID determines an acquisition to be subject to vetting,
the contracting officer determines the appropriate stage of the
acquisition cycle to require offerors to submit the completed USAID
Partner Information Form, USAID Form 500-13, to the vetting official
identified in the solicitation. The contracting officer must specify in
the solicitation the stage at which the offerors will be required to
submit the USAID Partner Information Form.
(b) For negotiated procurements using (48 CFR) FAR part 15, this
stage will typically be when the contracting officer establishes the
competitive range (48 CFR 15.306(c)). However, the contracting officer
may determine that vetting is more appropriate at a different stage of
the source selection process, such as immediately prior to award, and
then require only the apparently successful offeror to submit the
completed USAID Partner Information Form.
(c) For Indefinite Delivery contracts under (48 CFR) FAR subpart
16.5, vetting will occur prior to award of the basic contract if the
contracting officer anticipates placing orders subject to vetting under
that contract. Vetting will also occur before USAID places any orders
subject to vetting. The contracting officer will notify awardees of the
appropriate timing for vetting in the request for task or delivery order
proposals. See (48 CFR) AIDAR subpart 716.5 for vetting procedures for
task and delivery orders.
(d) For all other acquisitions, including those under (48 CFR) FAR
parts 13 and 14, the contracting officer determines the appropriate time
to require potential awardee(s) to submit the completed USAID Partner
Information Form to the vetting official.
(e) Source selection proceeds separately from vetting. The source
selection authority makes the source selection determination separately
from the vetting process and without knowledge of vetting-related
information other than that the apparently successful offeror has passed
or not passed vetting.
(f) The contracting officer may only award to an offeror who has
passed vetting.
[77 FR 8170, Feb. 14, 2012, as amended at 79 FR 74988, Dec. 16, 2014]
704.7004-2 Post award requirements.
(a) For those contracts and task orders the Agency has determined
are subject to vetting, the contractor must submit the completed USAID
Partner Information Form any time it changes:
(1) Key individuals, and
(2) Subcontractors for which vetting is required.
(b) USAID may vet key individuals of the contractor and any required
subcontractors periodically during contract performance using the
information already submitted on the Form.
[77 FR 8170, Feb. 14, 2012, as amended at 79 FR 74992 Dec. 16, 2014]
704.7004-3 Subcontracts.
(a) When the prime contract is subject to vetting, vetting is
required for key individuals of all subcontracts under that contract for
which consent is required under (48 CFR) FAR clause 52.244-2,
Subcontracts.
(b) The contracting officer must not consent to a subcontract with
any subcontractor subject to vetting until that subcontractor has passed
vetting.
(c) Vetting may be required for key individuals of subcontracts at
any tier for certain classes of items (supplies and services). The
contracting officer
[[Page 14]]
must identify these classes of items in the solicitation.
(d) The contractor may instruct prospective subcontractors who are
subject to vetting to submit the USAID Partner Information Form to the
vetting official as soon as the contractor submits the USAID Partner
Information Form for its key individuals.
[77 FR 8170, Feb. 14, 2012, as amended at 79 FR 74988, Dec. 16, 2014]
704.7005 Solicitation provision and contract clause.
(a) The contracting officer will insert the provision at 752.204-70
Partner Vetting Pre-Award Requirements, in all solicitations USAID
identifies as subject to vetting.
(b) Except for awards made under FAR part 16, the contracting
officer will--
(1) Insert the clause at 752.204-71 Partner Vetting, in all
solicitations and contracts USAID identifies as subject to vetting, or
(2) Use the clause with its Alternate I when USAID determines that
subcontracts at any tier for certain classes of supplies or services are
subject to vetting.
(c) For awards made under FAR part 16, see (48 CFR) AIDAR subpart
716.5.
[77 FR 8170, Feb. 14, 2012, as amended at 79 FR 74992, Dec. 16, 2014]
[[Page 15]]
SUBCHAPTER B_ACQUISITION PLANNING
PART 705_PUBLICIZING CONTRACT ACTIONS--Table of Contents
Sec.
705.002 [Reserved]
Subpart 705.2_Synopsis of Proposed Contract Actions
705.202 Exceptions.
705.207 [Reserved]
Subpart 705.5_Paid Advertisement
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.
705.002 [Reserved]
Subpart 705.2_Synopsis of Proposed Contract Actions
705.202 Exceptions.
(a) [Reserved]
(b) The head of the U.S. Agency for International Development has
determined after consultation with the Administrator of the Office of
Management and Budget's Office of 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) [Reserved]
[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; 79 FR 74992, Dec. 16, 2014]
705.207 [Reserved]
Subpart 705.5_Paid Advertisement
705.502 Authority.
(a) The M/OAA Director, acting as head of the Agency under the
authority of 701.601(a)(1), hereby authorizes USAID contracting officers
to place paid advertisements and notices in newspapers and periodicals.
Contracting officers shall document the contract file to reflect
consideration of the requirements of (48 CFR) FAR 5.101(b)(4).
[64 FR 5006, Feb. 2, 1999, as amended at 64 FR 42042, Aug. 3, 1999; 72
FR 19670, Apr. 19, 2007]
PART 706_COMPETITION REQUIREMENTS--Table of Contents
Sec.
Subparts 706.1-706.2 [Reserved]
Subpart 706.3_Other Than Full and Open Competition
706.302-5 [Reserved]
706.302-70 Impairment of foreign aid programs.
706.302-71 [Reserved]
Subpart 706.5_Competition Advocates
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.
Subparts 706.1-706.2 [Reserved]
Subpart 706.3_Other Than Full and Open Competition
706.302-5 [Reserved]
706.302-70 Impairment of foreign aid programs.
(a) Authority. (1) Citation: 40 U.S.C. 113.
(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
[[Page 16]]
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 (48 CFR) 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) Proposals must be requested from as many
potential offerors as is practicable under the circumstances.
Additionally, as required in (48 CFR) FAR 5.201, the contracting officer
must publicize the intended award when using the exceptions above,
including when using the authority at 706.302-70(b)(5) where the
contracting officer has determined that the incumbent contractor is the
only practicable, potential offeror.
(2) The contract file must include appropriate explanation and
support justifying the award without full and open competition, as
provided in (48 CFR) 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 (48 CFR) FAR 6.304.
(3) The authority in 706.302-70(b)(3)(i) shall be used only when no
other authority provided in (48 CFR) FAR 6.302 or (48 CFR) 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 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 (48 CFR) FAR 6.303-2(b)(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; 79 FR 74988, 74992, Dec. 16, 2014]
706.302-71 [Reserved]
Subpart 706.5_Competition Advocates
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 702.170 of this chapter) to the M/OAA Director.
The M/OAA Director, under the Administrator's delegation, has designated
the M/OAA Deputy Director for Accountability, Compliance, Transparency,
and Support as the Agency Competition Advocate and the deputy head of
each contracting activity as the competition advocate for each activity.
The competition advocate for USAID/W is the Deputy Director for M/OAA
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 the contracting activity, see 702.170 of this chapter.
[79 FR 74992, Dec. 16, 2014]
[[Page 17]]
PART 707_ACQUISITION PLANNING--Table of Contents
Subpart 707.1_Acquisition Plans
707.104 General procedures.
Policies, procedures, and internal guidance for acquisition planning
are found in ADS 300.
[79 FR 74992, Dec. 16, 2014]
PART 709_CONTRACTOR QUALIFICATIONS--Table of Contents
Sec.
Subpart 709.4_Debarment, Suspension and Ineligibility
709.403 Definitions.
Subpart 709.5_Organizational Conflicts of Interest
709.503 Waiver.
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
709.403 Definitions.
Debarring official in USAID is the Assistant Administrator, Bureau
for Management, or designee as delegated in Agency policy found in ADS
103--Delegations of Authority.
Suspending official in USAID is the Assistant Administrator, Bureau
for Management, or designee as delegated in Agency policy found in ADS
103--Delegations of Authority.
[79 FR 74992, Dec. 16, 2014; 80 FR 12935, Mar. 12, 2015]
Subpart 709.5_Organizational Conflicts of Interest
709.503 Waiver.
For purposes of approving waivers or further delegating the
authority to approve waivers pursuant to (48 CFR) FAR 9.503, the M/OAA
Director is the agency head (see (48 CFR) AIDAR 701.601(a)(1)). The M/
OAA Director hereby delegates the authority to approve waivers pursuant
to (48 CFR) FAR 9.503 to the heads of USAID contracting activities, as
defined in (48 CFR) AIDAR 702.170.
[64 FR 42042, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007; 79
FR 74988, 74992, Dec. 16, 2014]
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--Table of Contents
Sec.
711.002-70 Metric system waivers.
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.
711.002-70 Metric system waivers.
(a) Criteria. The (48 CFR) 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 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
[[Page 18]]
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 (OSDBU) 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; 79 FR 74988, 74992, Dec. 16,
2014]
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 19]]
SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES
PART 713_SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents
Sec.
713.000 Scope of part.
713.001 Definitions.
Subpart 713.1_Procedures
713.106-370 Partner vetting.
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.
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.
713.001 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.
[61 FR 39091, July 26, 1996. Redesignated at 79 FR 74993, Dec. 16, 2014]
Subpart 713.1_Procedures.
713.106-370 Partner vetting.
If an acquisition is identified as subject to vetting, see (48 CFR)
AIDAR 704.70 for the applicable procedures and requirements.
[77 FR 8171, Feb. 14, 2012]
PART 714_SEALED BIDDING--Table of Contents
Subpart 714.4_Opening of Bids and Award of Contract
Sec.
714.407-3 Other mistakes disclosed before award.
714.407-4 Mistakes after award.
714.408-170 Partner vetting.
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
714.407-3 Other mistakes disclosed before award.
The M/OAA Director is the designated central authority to make the
determinations described in (48 CFR) FAR 14.407-3.
[49 FR 13240, Apr. 3, 1984, as amended at 54 FR 46389, Nov. 3, 1989; 64
FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007. Redesignated and
amended at 79 FR 74993, Dec. 16, 2014]
714.407-4 Mistakes after award.
The M/OAA Director is the designated central authority to make the
determinations described in (48 CFR) FAR 14.407-4.
[49 FR 13240, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999; 72
FR 19670, Apr. 19, 2007. Redesignated and amended at 79 FR 74993, Dec.
16, 2014]
714.408-170 Partner vetting.
If an acquisition is identified as subject to vetting, see (48 CFR)
AIDAR 704.70 for the applicable procedures and requirements.
[77 FR 8171, Feb. 14, 2012]
PART 715_CONTRACTING BY NEGOTIATION--Table of Contents
Subpart 715.3_Source Selection
Sec.
715.303 Responsibilities.
[[Page 20]]
715.303-70 Responsibilities of USAID evaluation committees.
715.305 Proposal evaluation.
715.370 Alternative source selection procedures.
715.370-1 Title XII selection procedure--general.
715.370-2 Title XII selection procedure--collaborative assistance.
Subpart 715.6_Unsolicited Proposals
715.602 Policy.
715.604 Agency points of contact.
Subpart 715.70_Partner Vetting
715.70 Partner vetting.
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.
Subpart 715.3_Source Selection
715.303 Responsibilities.
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 (48 CFR) 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; 79 FR 74988, Dec. 16, 2014]
715.305 Proposal evaluation.
(a) [Reserved]
(b) A justification must 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.
(3) Prior to releasing the proposals outside the Government, the
contracting officer must obtain a signed and dated agreement from each
NGE and EAC employee that they will safeguard the proposals and
information in the proposals and that they perceive no actual or
potential conflict of interests. (An example of such agreement is
provided in the ADS).
[64 FR 16648, Apr. 6, 1999; 64 FR 25405, May 11, 1999, as amended at 65
FR 36642, June 9, 2000; 79 FR 74993, Dec. 16, 2014]
[[Page 21]]
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]
715.370-1 Title XII selection procedure--general.
(a) General. The Deputy Administrator has determined, as provided in
(48 CFR) 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 Act. This
determination is reflected in (48 CFR) 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 requisition 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 (48 CFR) 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
715.303-70.
(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
[[Page 22]]
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, as
amended at 79 FR 74988, 74993, Dec. 16, 2014]
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 (48 CFR) AIDAR
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
[[Page 23]]
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 (48 CFR) 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 (48 CFR)
AIDAR appendix F.
(5) The contracting officer will transmit all expressions of
interest to the evaluation panel for evaluation and selection
recommendation. The panel 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, as amended at 79 FR 74988, 74993, Dec. 16, 2014]
Subpart 715.70_Partner Vetting
715.70 Partner vetting.
If an acquisition is identified as subject to vetting, see (48 CFR)
AIDAR 704.70 for the applicable procedures and requirements.
[77 FR 8171, Feb. 14, 2012]
Subpart 715.6_Unsolicited Proposals
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. Further,
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 including
point of contact information see (48 CFR) AIDAR 715.604.
[49 FR 13240, Apr. 3, 1984. Redesignated and amended at 64 FR 16648,
16649, Apr. 6, 1999; 64 FR 25405, May 11, 1999; 79 FR 74993, Dec. 16,
2014]
715.604 Agency points of contact.
(a) Information on USAID's policies for unsolicited proposals is
available from the U.S. Agency for International Development, Bureau for
Management, Office of Acquisition and Assistance, Evaluation Division
(M/OAA/E), SA-44, Room 858-E, 1300 Pennsylvania Ave. NW., Washington, DC
20523 or by email to [email protected]. Initial inquiries
and subsequent unsolicited proposals must be submitted to the address
specified above.
(b) The information available includes:
(1) Contact points within USAID;
(2) Definitions;
(3) Information source on USAID objectives and areas of potential
interest;
(4) Characteristics of a suitable proposal;
[[Page 24]]
(5) Determination of contractor responsibility;
(6) Organizational conflicts of interest;
(7) Cost sharing; and
(8) Procedures for submission and evaluation of proposals;
(9) Guidance on preferred methods for submitting ideas/concepts to
the Government;
(10) Instructions for identifying and marking proprietary
information so that it is projected and restrictive legends conform to
(48 CFR) FAR 15.609.
[79 FR 74993, Dec. 16, 2014]
PART 716_TYPES OF CONTRACTS--Table of Contents
Subpart 716.3_Cost Reimbursement Contracts
Sec.
716.303 Cost-sharing contracts.
716.306 [Reserved]
716.406 Contract clauses.
Subpart 716.5_Indefinite-Delivery Contracts
716.501-270 Partner vetting--indefinite-delivery contracts.
716.505-70 Partner vetting--orders under indefinite delivery contracts.
716.506 Solicitation provision and 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 716.3_Cost Reimbursement Contracts
716.303 Cost-sharing contracts.
(a)-(b) [Reserved]
(c) Limitations. In addition to the limitations specified in (48
CFR) FAR 16.301-3, prior approval of the M/OAA Director (see
701.601(a)(1)) is required in order to use a cost-sharing contract with
an educational institution.
[54 FR 46390, Nov. 3, 1989, as amended at 64 FR 42042, Aug. 3, 1999; 72
FR 19670, Apr. 19, 2007; 79 FR 74988, Dec. 16, 2014]
716.306 [Reserved]
716.406 Contract clauses.
The contracting officer must insert 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, as amended at 79 FR 74993, Dec. 16, 2014]
Subpart 716.5_Indefinite-Delivery Contracts
Source: 77 FR 8171, Feb. 14, 2012, unless otherwise noted.
716.501-270 Partner vetting--indefinite-delivery contracts.
If a task order or delivery order under an indefinite-delivery
contract has the potential to be subject to vetting, then the contract
itself will be subject to the applicable procedures and requirements for
partner vetting in (48 CFR) AIDAR 704.70.
716.505-70 Partner vetting--orders under indefinite delivery contracts.
(a) The task order contracting officer will specify in the request
for task or delivery order proposals whether the order is subject to
vetting and when awardees must submit the USAID Partner Information
Form.
(b) For orders under multiple award contracts, fair opportunity
selection procedures are conducted separately from vetting. The
contracting officer for the order must follow the ordering procedures in
the contract to select the order awardee without knowledge of vetting-
related information, other than that the contractor has passed or not
passed vetting.
(c) The contracting officer may only place an order subject to
vetting with an awardee that has passed vetting for that order.
716.506 Solicitation provision and contract clause.
(a) As prescribed in 48 CFR 704.7005(a), the contracting officer
will insert the provision at 752.204-70 Partner Vetting Pre-Award
Requirements, in solicitations for indefinite delivery contracts when
USAID anticipates that any orders placed under the contract will be
subject to vetting.
(b)(1) The contracting officer will insert the clause at 752.216-71
Partner Vetting, in those solicitations and contracts for indefinite-
delivery contracts
[[Page 25]]
that USAID identifies as subject to vetting.
(2) The contracting officer will use the clause with its Alternate I
when USAID determines that subcontracts at any tier for certain classes
of supplies or services are subject to vetting.
PART 717_SPECIAL CONTRACTING METHODS--Table of Contents
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
717.770 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.
Redesignated at 79 FR 74993, Dec. 16, 2014]
[[Page 26]]
SUBCHAPTER D_SOCIOECONOMIC PROGRAMS
PART 719_SMALL BUSINESS PROGRAMS--Table of Contents
Subpart 719.2_Policies
Sec.
719.270 Small business policies.
719.271 Agency program direction and operation.
719.271-1 General.
719.271-2 The USAID Office of Small and Disadvantaged Business
Utilization (OSDBU).
719.271-3 USAID contracting officers.
719.271-4 Heads of contracting activities.
719.271-5 Contracting officer's representatives.
719.271-6 Small business screening procedure.
719.271-7 Reports on procurement actions that are exempted from
screening.
719.272 [Reserved]
Subpart 719.273_The U.S. Agency for International Development (USAID)
Mentor-ProtgAE1 Program
719.273 The U.S. Agency for International Development Mentor-ProtAE1gAE1
Program.
719.273-1 Purpose.
719.273-2 Definitions.
719.273-3 Incentives for prime contractor participation.
719.273-4 Eligibility of Mentor and ProtAE1gAE1 firms.
719.273-5 Selection of ProtAE1gAE1 firms.
719.273-6 Application process.
719.273-7 OSDBU review of application.
719.273-8 Developmental assistance.
719.273-9 Obligations under the Mentor-ProtAE1gAE1 Program.
719.273-10 Internal controls.
719.273-11 Solicitation provision and contract clause.
Subpart 719 7_The Small Business Subcontracting Program
719.708 Contract clause.
Authority: 42 U.S.C. 7254, 40 U.S.C. 486(c), 42 U.S.C. 2201.
Source: 49 FR 13243, Apr. 3, 1984, unless otherwise noted.
Subpart 719.2_Policies
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 U.S. small businesses 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) Contracting officer's representatives 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 (48 CFR) 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 (OSDBU) except those exempted by
719.271-6(a).
(e) Where practicable and desirable, small business and minority
business
[[Page 27]]
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
OSDBU after consultation with the respective head of the contracting
activity (see 702-170).
(f) In the event of a disagreement between OSDBU 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.
(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 OSDBU; and
(3) Includes a copy of the certification in the contract file.
(h) OSDBU 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; 79 FR 74988, 74993, Dec. 16, 2014]
719.271 Agency program direction and operation.
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 (48 CFR) FAR. Small business concerns
are defined in (48 CFR) 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 (48 CFR) 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.
[49 FR 13243, Apr. 3, 1984, as amended at 79 FR 74988, 74993, Dec. 16,
2014]
719.271-2 The USAID Office of Small and Disadvantaged Business Utilization (OSDBU).
(a) OSDBU is responsible for administering, implementing, and
coordinating the Agency's small business (including minority business
enterprises) program.
(b) OSDBU, headed by the Director, OSDBU, 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) [Reserved]
(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;
[[Page 28]]
(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
(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 OSDBU, 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 ; 79 FR 74993, Dec.
16, 2014]
719.271-3 USAID contracting officers.
With respect to procurement activities within their jurisdiction,
contracting officers are responsible for:
(a) Being thoroughly familiar with part 19 of the (48 CFR) 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 OSDBU 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
[[Page 29]]
with the latter's list of additional sources;
(j) As appropriate, referring small business concerns, including
small minority business enterprises, to OSDBU for information and
advice;
(k) Promoting increased awareness by the technical staff of the
availability of small business concerns;
(l) Making available to OSDBU copies of solicitations when
requested;
(m) Assisting OSDBU in counseling non-responsive or non-responsible
small business bidders/offerors to help them to participate more
effectively in future solicitations; and
(n) Including the Small Business and Minority Business Enterprises
Subcontracting Program clauses in all contracts where required by part
19 of the (48 CFR) FAR.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996; 62
FR 40468, July 29, 1997; 79 FR 74993, Dec. 16, 2014]
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 OSDBU;
(b) Consulting with OSDBU in establishing small business and
minority business enterprise award goals, where practicable and
desirable; and
(c) Advising contracting officer's representatives 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; 79
FR 74988, 74993, 74994, Dec. 16, 2014]
719.271-5 Contracting officer's representatives.
Since the procurement process starts with the establishment of a
requirement, the actions of the Contracting officer's representatives
can affect the opportunity of small business to participate equitably;
therefore, each contracting officer's representative shall, during the
formulation of activities which will require contractual implementation:
(a) Consult with OSDBU 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; 79
FR 74988, 74993, Dec. 16, 2014]
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
OSDBU, 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 (48 CFR) 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 OSDBU 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 OSDBU.
[[Page 30]]
(c) Screening of Form USAID 1410-14 by OSDBU. (1) OSDBU 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) OSDBU 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 OSDBU.
(2) If the contracting officer rejects the OSDBU counter-
recommendation, he/she shall return the original and duplicate forms
with his/her written reasons for rejection to OSDBU within two working
days.
(3) Upon receipt of the contracting officer's rejection, OSDBU may:
(i) accept, or (ii) appeal, the rejection. In the case of acceptance of
the contracting officer's rejection, OSDBU 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 OSDBU, 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, OSDBU 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 OSDBU'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 OSDBU 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; 79 FR 74988, 74993, Dec. 16, 2014]
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
OSDBU. The original will be filed in the contract file.
(1) If, upon review of the material submitted under 719.271-7(a)
above, OSDBU 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
OSDBU. 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; OSDBU 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 OSDBU.
(d) Personal services contract exemption. Preparation of Form USAID
1410-
[[Page 31]]
14 is not required for personal services contracts.
[49 FR 13243, Apr. 3, 1984, as amended at 79 FR 74993, Dec. 16, 2014]
719.272 [Reserved]
Subpart 719.273_The U.S. Agency for International Development (USAID)
Mentor-ProtAE1gAE1 Program
Source: 72 FR 32543, June 13, 2007, unless otherwise noted.
719.273 The U.S. Agency for International Development (USAID)
Mentor-ProtAE1gAE1 Program.
719.273-1 Purpose.
The USAID Mentor-ProtAE1gAE1 Program is designed to assist small
business, including veteran-owned small business, service-disabled
veteran-owned small business, HUBZone, small socially and economically
disadvantaged business, and women-owned small business in enhancing
their capabilities to perform contracts and sub-contracts for USAID and
other Federal agencies. The Mentor-ProtAE1gAE1 Program is also designed
to improve the performance of USAID contractors and subcontractors by
providing developmental assistance to ProtAE1gAE1 entities, fostering
the establishment of long-term business relationships between small
business and prime contractors, and increasing the overall number of
small business that receive USAID contract and subcontract awards. A
firm's status as a ProtAE1gAE1 under a USAID contract shall not have an
effect on the firm's eligibility to seek other prime contracts or
subcontracts.
719.273-2 Definitions.
Throughout, the term ``small business'' includes all categories of
small firms as defined by the Small Business Administration (SBA) on
whose behalf the Office of Small and Disadvantaged Business Utilization
(OSDBU) is chartered to advocate, including small business, small
disadvantaged business, women-owned small business, veteran-owned and
service-disabled veteran-owned small business and small business located
in HUBZones, as those terms are defined in 13 CFR part 124. The
determination of affiliation is a function of the SBA.
(a) A ``Mentor'' is a prime contractor that elects to promote and
develop small business subcontractors by providing developmental
assistance designed to enhance the business success of the ProtAE1gAE1.
(b) ``Program'' refers to the USAID Mentor-ProtAE1gAE1 Program as
described in this Chapter.
(c) ``ProtAE1gAE1'' means a small business, small disadvantaged
business, women-owned small business, HUBZone small business, veteran-
owned small business or service-disabled veteran owned small business
that is the recipient of developmental assistance pursuant to a Mentor-
ProtAE1gAE1 Agreement.
719.273-3 Incentives for prime contractor participation.
(a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), USAID is
authorized to provide appropriate incentives to encourage subcontracting
opportunities for small business consistent with the efficient and
economical performance of the contract. This authority is limited to
negotiated procurements. (48 CFR) FAR 19.202-1 provides additional
guidance.
(b) Costs incurred by a Mentor to provide developmental assistance,
as described in 719.273-8 to fulfill the terms of their agreement(s)
with a ProtAE1gAE1 firm(s), are not reimbursable as a direct cost under
a USAID contract. If USAID is the mentor's responsible audit agency
under (48 CFR) FAR 42.703-1, USAID will consider these costs in
determining indirect cost rates. If USAID is not the responsible audit
agency, mentors are encouraged to enter into an advance agreement with
their responsible audit agency on the treatment of such costs when
determining indirect cost rates.
(c) In addition to subparagraph (b) above, contracting officers may
give Mentors evaluation credit under (48 CFR) FAR 15.101-1
considerations for subcontracts awarded pursuant to their Mentor-
ProtAE1gAE1 Agreements and their subcontracting plans. Therefore:
[[Page 32]]
(1) Contracting officers may evaluate subcontracting plans
containing Mentor-ProtAE1gAE1 arrangements more favorably than
subcontracting plans without Mentor-ProtAE1gAE1 Agreements.
(2) Contracting officers may assess the prime contractor's
compliance with the subcontracting plans submitted in previous contracts
as a factor in evaluating past performance under (48 CFR) FAR
15.305(a)(2)(v) and determining contractor responsibility (48 CFR)
19.705-5(a)(1).
(d) OSDBU Mentoring Award. A non-monetary award will be presented
annually to the Mentoring firm providing the most effective
developmental support of a ProtAE1gAE1. The Mentor-ProtAE1gAE1 Program
Manager will recommend an award winner to the Director of the Office of
Small and Disadvantaged Business Utilization (OSDBU).
(e) OSDBU Mentor-ProtAE1gAE1 Annual Conference. At the conclusion of
each year in the Mentor-ProtAE1gAE1 Program, Mentor firms will be
invited to brief contracting officers, program leaders, office directors
and other guests on Program progress.
[49 FR 13243, Apr. 3, 1984, as amended at 79 FR 74988, Dec. 16, 2014]
719.273-4 Eligibility of Mentor and ProtAE1gAE1 firms.
Eligible business entities approved as Mentors may enter into
agreements (hereafter referred to as ``Mentor-ProtAE1gAE1 Agreement'' or
``Agreement'' and explained in section 719.273-6) with eligible
ProtAE1gAE1s. Mentors provide appropriate developmental assistance to
enhance the capabilities of ProtAE1gAE1s to perform as contractors and/
or subcontractors. Eligible small business entities capable of providing
developmental assistance may be approved as Mentors. ProtAE1gAE1s may
participate in the Program in pursuit of a prime contract or as
subcontractors under the Mentor's prime contract with the USAID, but are
not required to be a subcontractor to a USAID prime contractor or be a
USAID prime contractor. Notwithstanding eligibility requirements in this
section, USAID reserves the right to limit the number of participants in
the Program in order to insure its effective management of the Mentor-
ProtAE1gAE1 Program.
(a) Eligibility. A Mentor:
(1) May be either a large or small business entity;
(2) Must be eligible for award of Government contracts;
(3) Must be able to provide developmental assistance that will
enhance the ability of ProtAE1gAE1s to perform as prime contractors or
subcontractors; and
(4) Will be encouraged to enter into arrangements with entities with
which it has established business relationships.
(b) Eligibility. A ProtAE1gAE1:
(1) Must be a small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone, small socially and
economically disadvantaged business, and women-owned small business);
(2) Must meet the size standard corresponding to the NAICS code that
the Mentor prime contractor believes best describes the product or
service being acquired by the subcontract; and
(3) Eligible for award of Government contracts.
(c) ProtAE1gAE1s may have multiple Mentors. ProtAE1gAE1s
participating in Mentor-ProtAE1gAE1 programs in addition to USAID's
Program should maintain a system for preparing separate reports of
Mentoring activity so that results of the USAID Program can be reported
separately from any other agency program.
(d) A ProtAE1gAE1 firm shall self-certify to a Mentor firm that it
meets the requirements set forth in paragraph (b) of this section and
possess related certifications granted by the Small Business
Administration (e.g., HUBZone, 8(a), etc.). Mentors may rely in good
faith on written representations by potential ProtAE1gAE1s that they
meet the specified eligibility requirements. HUBZone and small
disadvantaged business status eligibility and documentation requirements
are determined according to 13 CFR part 124.
[49 FR 13243, Apr. 3, 1984, as amended at 79 FR 74988, Dec. 16, 2014]
719.273-5 Selection of ProtAE1gAE1 firms.
(a) Mentor firms will be solely responsible for selecting
ProtAE1gAE1 firms. Mentors are encouraged to select from
[[Page 33]]
a broad base of small business including small disadvantaged business,
women-owned small business, veteran-owned small business, service-
disabled veteran-owned small business, and HUBZone firms whose core
competencies support USAID's mission.
(b) Mentors may have multiple ProtAE1gAE1s. However, to preserve the
integrity of the Program and assure the quality of developmental
assistance provided to ProtAE1gAE1s, USAID reserves the right to limit
the total number of ProtAE1gAE1s participating under each Mentor firm
for the Mentor-ProtAE1gAE1 Program.
(c) The selection of ProtAE1gAE1 firms by Mentor firms may not be
protested, except that any protest regarding the size or eligibility
status of an entity selected by a Mentor shall be handled in accordance
with the Federal Acquisition Regulation (FAR) and the Small Business
Administration regulations.
719.273-6 Application process.
Entities interested in becoming a Mentor firm must apply in writing
to the USAID Office of Small and Disadvantaged Business Utilization
(OSDBU) by submitting form AID 321-1 (OMB Control number 0412-0574
approved on 5/22/2007). The application shall contain the Mentor-
ProtAE1gAE1 Agreement and shall be evaluated for approval. Evaluations
will consider the nature and extent of technical and managerial support
as well as any proposed financial assistance in the form of equity
investment, loans, joint-venture, and traditional subcontracting
support. The Mentor-ProtAE1gAE1 Agreement must contain:
(a) Names, addresses, phone numbers, and e-mail addresses (if
available) of Mentor and ProtAE1gAE1 firm(s) and a point of contact for
both Mentor and ProtAE1gAE1;
(b) A description of the developmental assistance that will be
provided by the Mentor to the ProtAE1gAE1, including a description of
the work or product contracted for (if any), a schedule for providing
assistance, and criteria for evaluation of the ProtAE1gAE1's
developmental success;
(c) A listing of the number and types of subcontracts to be awarded
to the ProtAE1gAE1;
(d) Duration of the Agreement, including rights and responsibilities
of both parties (Mentor and ProtAE1gAE1);
(e) Termination procedures, including procedures for the parties'
voluntary withdrawal from the Program. The Agreement shall require the
Mentor or the ProtAE1gAE1 to notify the other firm in writing at least
30 days in advance of its intent to voluntarily terminate the Agreement;
(f) Procedures requiring the parties to notify OSDBU immediately
upon receipt of termination notice from the other party;
(g) A plan for accomplishing the work or product contracted for
should the Agreement be terminated; and
(h) Other terms and conditions, as appropriate.
719.273-7 OSDBU review of application.
(a) OSDBU will review the information to establish the Mentor and
ProtAE1gAE1 eligibility and to ensure that the information that is in
section 719.273-6 is included. If the application relates to a specific
contract, then OSDBU will consult with the responsible contracting
officer on the adequacy of the proposed Agreement, as appropriate. OSDBU
will complete its review no later than 30 calendar days after receipt of
the application or after consultation with the contracting officer,
whichever is later. Application for and enrollment into the Program are
free and open to the public.
(b) After OSDBU completes its review and provides written approval,
the Mentor may execute the Agreement and implement the developmental
assistance as provided under the Agreement. OSDBU will provide a copy of
the Mentor-ProtAE1gAE1 Agreement to the USAID contracting officer for
any USAID contracts affected by the Agreement.
(c) The Agreement defines the relationship between the Mentor and
ProtAE1gAE1 firms only. The Agreement itself does not create any privity
of contract or contractual relationship between the Mentor and USAID nor
the ProtAE1gAE1 and USAID.
(d) If the application is disapproved, the Mentor may provide
additional information for reconsideration. OSDBU
[[Page 34]]
will complete review of any supplemental material no later than 30 days
after its receipt. Upon finding deficiencies that USAID considers
correctable, OSDBU will notify the Mentor and ProtAE1gAE1 and request
correction of deficiencies to be provided within 15 days.
719.273-8 Developmental assistance.
The forms of developmental assistance a Mentor can provide to a
ProtAE1gAE1 include and are not limited to the following:
(a) Guidance relating to--
(1) Financial management;
(2) Organizational management;
(3) Overall business management/planning;
(4) Business development; and
(5) Technical assistance.
(b) Loans;
(c) Rent-free use of facilities and/or equipment;
(d) Property;
(e) Temporary assignment of personnel to a ProtAE1gAE1 for training;
and
(f) Any other types of permissible, mutually beneficial assistance.
719.273-9 Obligations under the Mentor-ProtAE1gAE1 Program.
(a) A Mentor or ProtAE1gAE1 may voluntarily withdraw from the
Program. However, in no event shall such withdrawal impact the
contractual requirements under any prime contract.
(b) Mentor and ProtAE1gAE1 entities shall submit to the USAID Office
of Small and Disadvantaged Business Utilization (OSDBU) annual reports
on progress under the Mentor-ProtAE1gAE1 Agreement. USAID will evaluate
annual reports by considering the following:
(1) Specific actions taken by the Mentor during the evaluation
period to increase the participation of their ProtAE1gAE1(s) as
suppliers to the Federal Government and to commercial entities;
(2) Specific actions taken by the Mentor during the evaluation
period to develop technical and administrative expertise of a
ProtAE1gAE1 as defined in the Agreement;
(3) The extent to which the ProtAE1gAE1 has met the developmental
objectives in the Agreement;
(4) The extent to which the Mentor's participation in the Mentor-
ProtAE1gAE1 Program impacted the ProtAE1gAE1'(s) ability to receive
contract(s) and subcontract(s) from private firms and Federal agencies
other than USAID; and, if deemed necessary;
(5) Input from the ProtAE1gAE1 on the nature of the developmental
assistance provided by the Mentor.
(c) OSDBU will submit annual reports to the relevant contracting
officer regarding participating prime contractor(s)' performance in the
Program.
(d) Mentor and ProtAE1gAE1 firms shall submit an evaluation to OSDBU
at the conclusion of the mutually agreed upon Program period, the
conclusion of the contract, or the voluntary withdrawal by either party
from the Program, whichever comes first.
719.273-10 Internal controls.
(a) OSDBU will oversee the Program and will work in concert with the
Mentor-ProtAE1gAE1 Program Manager and relevant contracting officers to
achieve Program objectives. OSDBU will establish internal controls as
checks and balances applicable to the Program. These controls will
include:
(1) Reviewing and evaluating Mentor applications for validity of the
provided information;
(2) Reviewing annual progress reports submitted by Mentors and
ProtAE1gAE1s on ProtAE1gAE1 development to measure ProtAE1gAE1 progress
against the plan submitted in the approved Agreement;
(3) Reviewing and evaluating financial reports and invoices
submitted by the Mentor to verify that USAID is not charged by the
Mentor for providing developmental assistance to the ProtAE1gAE1; and
(4) Limiting the number of participants in the Mentor-ProtAE1gAE1
Program within a reporting period, in order to insure the effective
management of the Program.
(b) USAID may rescind approval of an existing Mentor-ProtAE1gAE1
Agreement if it determines that such action is in USAID's best interest.
The rescission shall be in writing and sent to the Mentor and
ProtAE1gAE1 after approval by the Director of OSDBU. Rescission of an
Agreement does not change the terms
[[Page 35]]
of any subcontract between the Mentor and the ProtAE1gAE1.
719.273-11 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at (48 CFR)
AIDAR 752.219-70 in all unrestricted solicitations exceeding $550,000
($1,000,000 for construction) that offer subcontracting opportunities.
(b) The contracting officer shall insert the clause at (48 CFR)
AIDAR 752.219-71 in all contracts where the prime contractor has signed
a Mentor-ProtAE1gAE1 Agreement with USAID.
[72 FR 32543, June 13, 2007, as amended at 79 FR 74988, Dec. 16, 2014]
Subpart 719 7_The Small Business Subcontracting Program
719.708 Contract clause.
The Foreign Assistance Act calls for USAID to give U.S. Small
Businesses an opportunity to provide supplies and services for foreign
assistance projects. To help USAID meet this obligation, the contracting
officer must insert the clause at (48 CFR) AIDAR 752.219-8 in all
solicitations and contracts that contain the (48 CFR) FAR clause at
52.219-8, Utilization of Small Business Concerns.
[79 FR 74994, Dec. 16, 2014]
PART 722_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
--Table of Contents
Subpart 722.1_Basic Labor Policies
Sec.
722.103 Overtime.
722.103-1 Definitions.
722.103-2 Policy.
722.103-3 [Reserved]
722.103-4 Approvals.
722.170 Employment of third country nationals (TCN's) and cooperating
country nationals (CCN's).
Subpart 722.8_Equal Employment Opportuntity
722.805-70 Procedures.
722.810 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.
Source: 49 FR 13246, Apr. 3, 1984, unless otherwise noted.
Subpart 722.1_Basic Labor Policies
722.103 Overtime.
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.
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]
722.103-3 [Reserved]
722.103-4 Approvals.
The contracting officer may make the determinations referred to in
(48 CFR) FAR 22.103-4.
[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996;
79 FR 74988, Dec. 16, 2014]
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
(CCNs) and third country nationals (TCNs),
[[Page 36]]
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 TCNs and CCNs employed 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.
(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.
[49 FR 13246, Apr. 3, 1984, as amended at 79 FR 74994, Dec. 16, 2014]
Subpart 722.8_Equal Employment Opportunity
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 22.804-1. 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) as required by (48
CFR) FAR 22.810 and FAR 4.1202. When applicable, the contracting officer
must review the Reps and Certs to determine whether they have been
completed and signed as required, and are acceptable.
[[Page 37]]
(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.
(1) If the conditions stated in (48 CFR) 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 (48 CFR) 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 contracting
officer's representative, 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
[[Page 38]]
unsuccessful offers, and retained for at least six months following
award.
[64 FR 5007, Feb. 2, 1999; 64 FR 18481, Apr. 14, 1999, as amended at 79
FR 74988, 74994, Dec. 16, 2014]
722.810 Solicitation provisions and contract clauses.
(a) The contracting officer must insert the clause at 752.222-70,
USAID Disability Policy in section I of all solicitations and resulting
contracts.
(b) The contracting officer must insert the clause at 752.222-71,
Nondiscrimination in section I of all solicitations and resulting
contracts
[81 FR 48716, July 26, 2016]
PART 724_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION--Table of Contents
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
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--Table of Contents
Subpart 725.1_Buy American Act_Supplies
Sec.
725.170 Exceptions for Foreign Assistance Act functions.
Subpart 725.4_Trade Agreements
725.403 Exceptions.
Subpart 725.70_Source, Origin, and Nationality
725.701 General.
725.702 Designation of authorized geographic code.
725.703 Source, origin and nationality requirements--Contract clause.
725.704 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
725.170 Exceptions for Foreign Assistance Act functions.
In addition to the exception stated in (48 CFR) 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.
[49 FR 13248, Apr. 3, 1984, as amended at 79 FR 74988, Dec. 16, 2014]
Subpart 725.4_Trade Agreements
725.403 Exceptions.
(48 CFR) 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 (48
CFR) 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 (48 CFR) FAR 25.4, unless
[[Page 39]]
otherwise exempted by one of the exemptions specified in (48 CFR) FAR
25.4.
[61 FR 39093, July 26, 1996, as amended at 79 FR 74988, Dec. 16, 2014]
Subpart 725.70_Source and Nationality
Source: 79 FR 74994, Dec. 16, 2014, unless otherwise noted.
725.701 General.
USAID's source and nationality requirements for program-funded
contracts and subcontracts are set forth in 22 CFR part 228, Rules on
Procurement of Commodities and Services Financed by USAID. 22 CFR part
228 is supplemented by the policies and procedures in ADS Chapters 310
and 312.
725.702 Designation of authorized geographic code.
(a) Unless another geographic code is specified in the Schedule of
the contract, in accordance with 22 CFR part 228, the authorized code
for all Agency contracts is Geographic Code 937, which is the U.S., the
cooperating/recipient country, and developing countries other than
advanced developing countries, and excluding prohibited sources.
(b) The list of developing countries is available in ADS Chapter
310.
725.703 Source and Nationality requirements--Contract clause.
Insert the clause at 752.225-70, Source and Nationality Requirements
in all USAID program-funded solicitations and contracts for goods or
services, unless source and nationality requirements do not apply as set
forth at 22 CFR 228.02.
725.704 Geographic Code waivers.
(a) Authority to approve waivers of source, nationality, and
transportation services requirements, pursuant to 22 CFR part 228,
subpart D, is set forth in ADS Chapters 103 and 310.
(b) If a Geographic Code other than Code 937 is authorized by a
waiver, the contracting officer must insert the authorized geographic
code approved in the waiver, in the Schedule of the contract as required
in 725.702. In addition, the contracting officer must place a copy of
the approved geographic code waiver in the official contract file.
PART 726_OTHER SOCIOECONOMIC PROGRAMS--Table of Contents
Subpart 726.70 [Reserved]
Subpart 726.71_Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
Sec.
726.7101 Policy.
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 [Reserved]
Subpart 726.71_Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
726.7101 Policy.
USAID Policy Determination (PD) 20, ``Guidelines to Assure USAID
Programs do not Result in the Loss of Jobs in the U.S.'' implemented
statutory prohibitions on expenditure of appropriated funds. The PD
contains a standard provision for inclusion in USAID-funded grants and
inter-agency agreements and indicates that when the PD applies to a
contract, appropriate provisions covering the subject matter are to be
included. When the provisions of PD 20 do apply to a contract, the
cognizant technical office shall provide to the contracting officer
appropriate language tailored to the specific circumstances for the
contract statement of work, or if applicable to the circumstances, the
provision included in the PD (see 726.7102) may be used as a clause in
the contract. The provision is not required in subcontracts.
[61 FR 39093, July 26, 1996]
[[Page 40]]
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 41]]
SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS
PART 727_PATENTS, DATA, AND COPYRIGHTS--Table of Contents
Subpart 727.3_Patent Rights under Government Contracts
Sec.
727.303 Contract clause.
Subpart 727.4_Rights in Data and Copyrights
727.404 Basic rights in data clause.
727.409 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.
Source: 72 FR 53163, Sept. 18, 2007, unless otherwise noted.
Subpart 727.3_Patent Rights under Government Contracts
727.303 Contract clause.
Contracting officers must insert the clause at 752.227-70, Patent
Reporting Procedures, in all solicitations and contracts that contain
the clause at (48 CFR) FAR 52.227-11, Patent Rights--Ownership by the
Contractor.
[79 FR 74994, Dec. 16, 2014]
Subpart 727.4_Rights in Data and Copyrights
727.404 Basic rights in data clause.
(a) through (f) [Reserved]
(g) When the contract includes a requirement for the contractor to
assign copyright to the Government or another party, the contracting
officer must insert (48 CFR) 752.227-14 and/or include an express
limitation or restriction in the contract. USAID contracting officers
will assert such a right in limited circumstances in accordance with the
principles as stated in (48 CFR) 27.402.
[72 FR 53163, Sept. 18, 2007, as amended at 79 FR 74988, 74994, Dec. 16,
2014]
727.409 Solicitation provisions and contract clauses.
(a) When the contracting officer inserts (48 CFR) FAR 52.227-14, and
if the release or publication of data first produced in the performance
of the contract may be sensitive to U.S. Government relations with the
cooperating country, the contracting officer must use the clause at (48
CFR) AIDAR 752.227-14.
(b) through (m) [Reserved]
(n) The prescriptions for provisions and clauses in (48 CFR) FAR
27.409 apply to all USAID contracts regardless of place of performance.
[72 FR 53163, Sept. 18, 2007, as amended at 79 FR 74988, 74995, Dec. 16,
2014]
PART 728_BONDS AND INSURANCE--Table of Contents
Subpart 728.1_Bonds
Sec.
728.105-1 Advance payment bonds.
Subpart 728.3_Insurance
728.305-70 Overseas worker's compensation and war-hazard insurance--
waivers and USAID insurance coverage.
728.307-2 Liability.
728.307-70 Medical Evacuation (MEDEVAC) Services (MAR 1993).
728.309 Contract clause for worker's compensation insurance.
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
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 (48 CFR) FAR 32.409-3.
[[Page 42]]
(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; and
(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 Bureau for Management, Office of
Acquisition and Assistance, Policy Division (M/OAA/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; 72 FR 19670, Apr. 19, 2007; 79 FR 74988, 74995, Dec. 16, 2014]
Subpart 728.3_Insurance
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 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
[[Page 43]]
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]
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 (48 CFR) FAR clause at 52.228-
7. This supplemental coverage is specified in (48 CFR) AIDAR 752.228-7,
and is to be used in all USAID-direct contracts involving performance
overseas.
[53 FR 50630, Dec. 16, 1988, as amended at 79 FR 74988, Dec. 16, 2014]
728.307-70 Medical Evacuation (MEDEVAC) Services (MAR 1993).
The contracting officer must insert the clause at 752.228-70 in all
contracts which require performance by contractor employees overseas.
[59 FR 33446, June 29, 1994, as amended at 79 FR 74995, Dec. 16, 2014]
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
(48 CFR) FAR clause at 52.228-3 with the additional coverage specified
in (48 CFR) AIDAR 752.228-3. The coverage specified in (48 CFR) AIDAR
752.228-3 shall be used in addition to the coverage specified in (48
CFR) FAR 52.228-3 in all USAID-direct contracts involving performance
overseas.
[53 FR 50630, Dec. 16, 1988, as amended at 79 FR 74988, Dec. 16, 2014]
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 (48 CFR)
FAR 52.228-9. This supplementary preface is set forth in (48 CFR) 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, as amended at 79 FR 74988, Dec. 16, 2014]
PART 729_TAXES--Table of Contents
Subpart 729.4_Contract Clauses
729.402-70 Foreign contracts.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381),
as amended; E.O. 12163, 44 FR 56673, 3 CFR 1979 Comp., p. 435.
Source: 81 FR 48716, July 26, 2016, unless otherwise noted.
Subpart 729.4_Contract Clauses
729.402-70 Foreign contracts.
(a) Section 579 of the Foreign Operations, Export Financing, and
Related Programs Appropriations Act of FY 2003 requires certain steps to
prevent countries from imposing taxes [defined as Value Added Tax (VAT)
or customs duties] on U.S. foreign assistance, or if imposed, requires
the countries to reimburse the assessed taxes or duties. The Act also
requires certain reporting to Congress. The Department of State has
published guidance for implementing this section of the Act. See http://
2001-2009.state.gov/s/d/rm/c10443.htm for further information.
(b) Contracting Officers (COs) must insert the clause at 752.229-71,
Reporting of Foreign Taxes in section I of solicitations and resulting
contracts that obligate or subobligate FY 2003 or later funds except for
the following:
[[Page 44]]
(1) Contracts funded with Operating Expense, Public Law 83-480
funds, or trust funds; or
(2) Contracts where there will be no commodity transactions in a
foreign country over the amount of $500.
PART 731_CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents
Subpart 731.1_Applicability
Sec.
731.109 Advance agreements.
Subpart 731.2_Contracts With Commercial Organizations
731.205-6 Compensation for personal services.
731.205-43 Trade, business, technical and professional activity costs--
USAID conference approval requirements.
731.205-46 Travel costs.
731.205-70 Overseas recruitment incentive.
731.205-71 Salary supplements for Host Government employees.
Subpart 731.3_Contracts With Educational Institutions
731.370 Predetermined fixed rates for indirect costs.
731.371 Compensation for personal services.
731.372 Fringe benefits.
731.373 Overseas recruitment incentive.
Subpart 731.7_Contracts With Nonprofit Organizations
731.770 OMB Circular A-122; cost principles for nonprofit organizations;
USAID implementation.
731.771 Bid and proposal costs.
731.772 Compensation for personal services.
731.773 Independent research and development costs.
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; and 3 CFR 1979
Comp., p. 435.
Source: 49 FR 13250, Apr. 3, 1984, unless otherwise noted.
Subpart 731.1_Applicability
731.109 Advance agreements.
Advance agreements on selected costs may be negotiated with USAID
contractors by the Bureau for Management, Office of Acquisition and
Assistance, Cost Audit Support Division, Overhead and Special Cost and
Contract Close-Out Branch (M/OAA/CAS/OCC). 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; 72 FR 19670, Apr. 19, 2007; 79 FR 74995, Dec.
16, 2014]
Subpart 731.2_Contracts With Commercial Organizations
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) Salaries and wages. It is USAID policy that if an employee's
base salary plus overseas recruitment incentive, if any (see (48 CFR)
AIDAR 731.205-70) exceeds the USAID Contractor Salary Threshold (USAID
CST), as stated in USAID's Automated Directives System (ADS) Chapter 302
USAID Direct Contracting (available at http://www.usaid.gov/policy/ads/
300/302.pdf), it will be allowable only if approved in writing by the
contracting officer. The contracting officer shall only provide such
approval after internal Agency procedures for review/approval of
salaries in excess of the USAID CST in ADS 302 have been followed. USAID
policies on compensation of third country national or cooperating
country national employees are set forth in (48 CFR) 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 (48 CFR) 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; 72 FR 19669, Apr. 19,
2007; 79 FR 74988, Dec. 16, 2014]
[[Page 45]]
731.205-43 Trade, business, technical and professional activity costs
--USAID conference approval requirements.
(a) The contractor must obtain prior written approval from the
contracting officer, or the contracting officer's representative (COR),
if delegated in the Contracting Officer's Representative Designation
Letter, for costs related to conferences funded in whole or in part with
USAID funds when:
(1) Twenty (20) or more USAID employees are expected to attend.
(2) The net conference expense funded by USAID will exceed $100,000
(excluding salary of employees), regardless of the number of USAID
participants.
(b) The contracting officer or the contracting officer's
representative will follow the internal Agency procedures for review and
approval of conference costs, as specified in Automated Directive System
(ADS) chapter 580, prior to providing such approval to the contractor.
(c) Costs associated with a conference that meets the criteria
above, incurred without USAID prior written approval, are unallowable.
(d) Contracting officers must insert the clause at 752.231-72 in all
USAID-funded solicitations and contracts anticipated to include a
requirement for a USAID-funded conference. See (48 CFR) AIDAR 752.231-72
for the definition of a conference and specific requirements and
procedures.
[81 FR 48716, July 26, 2016]
731.205-46 Travel costs.
It is USAID policy to require prior written approval of
international travel by the contracting officer, or the contracting
officer's representative (COR) if delegated in the Contracting Officer's
Representative Designation Letter. See (48 CFR) AIDAR 752.7032 for
specific requirements and procedures.
[79 FR 74995, Dec. 16, 2014]
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
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]
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
[[Page 46]]
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 in ADS Chapter 302. 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, as amended at 79 FR 74988, 74995, Dec. 16,
2014]
Subpart 731.3_Contracts With Educational Institutions
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.
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) The policies set forth in (48 CFR) AIDAR
731.205-6(b) are also applicable to contracts with a nonprofit
organization.
(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 (48 CFR) 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; 72 FR 19669, Apr. 19,
2007; 79 FR 74988, Dec. 16, 2014]
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
(48 CFR) AIDAR 752.70.
[57 FR 5236, Feb. 13, 1992, as amended at 79 FR 74988, Dec. 16, 2014]
731.373 Overseas recruitment incentive.
USAID's policies regarding overseas recruitment incentives are set
forth in (48 CFR) AIDAR 731.205-70. These policies are also applicable
to contracts with an educational institution.
[57 FR 5236, Feb. 13, 1992, as amended at 79 FR 74988, Dec. 16, 2014]
[[Page 47]]
Subpart 731.7_Contracts With Nonprofit Organizations
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, Bureau for Management, Office of
Acquisition and Assistance, has been so designated. The Bureau for
Management, Office of Acquisition and Assistance, Cost Audit Support
Division, Overhead and Special Cost and Contract Close-Out Branch (M/
OAA/CAS/OCC) provides staff assistance to the Director concerning OMB
Circular A-122. M/OAA/CAS/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 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; 72 FR 19670, Apr.
19, 2007; 79 FR 74995, Dec. 16, 2014]
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.
731.772 Compensation for personal services.
The policies set for in (48 CFR) AIDAR 731.205-6 are also applicable
to contracts with a nonprofit organization.
[57 FR 5236, Feb. 13, 1992, as amended at 79 FR 74988, Dec. 16, 2014]
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 (48 CFR)
[[Page 48]]
FAR 31.205-18 for independent research and development costs.
[49 FR 13250, Apr. 3, 1984, as amended at 79 FR 74988, Dec. 16, 2014]
731.774 Overseas recruitment incentive.
USAID's policies regarding overseas recruitment incentives are set
forth in (48 CFR) AIDAR 731.205-70. These policies are also applicable
to contracts with a nonprofit organization.
[57 FR 5236, Feb. 13, 1992, as amended at 79 FR 74988, Dec. 16, 2014]
PART 732_CONTRACT FINANCING--Table of Contents
Subpart 732.4_Advance Payments for Non-Commercial Items
Sec.
732.401 Statutory authority.
732.402 General.
732.403 Applicability.
732.406-70 Agency-issued letters of credit.
732.406-71 Applicability for use of a Letter of Credit (LOC).
732.406-72 Establishing an LOC.
732.406-73 LOC contract clause.
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 732.4_Advance Payments for Non-Commercial Items
Source: 56 FR 67225, Dec. 30, 1991, unless otherwise noted.
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]
732.402 General.
(a)-(d) [Reserved]
(e)(1) U.S. Dollar advances to for-profit organizations for any
award, including advances for disbursement to grantees, must be
processed and approved in accordance with ADS Chapter 636.
(2) All local currency advances to for-profit organizations for any
award require the approval of the head of the contracting activity, with
concurrence of the Mission Controller.
[79 FR 74995, Dec. 16, 2014]
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.
732.406-70 Agency-issued letters of credit.
This subsection provides guidance on use of USAID issued letters of
credit (LOC) for advance payments.
732.406-71 Applicability for use of a Letter of Credit (LOC).
An LOC must be used when:
(a) The contracting officer has determined that an advance payment
is necessary and appropriate in accordance with this subpart and the
requirements found in (48 CFR) 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 advance payment is approved in accordance with (48 CFR)
AIDAR 732.402(e). Additionally, the advance payments made by LOC under
for fee or profit contracts, must be approved by the Procurement
Executive.
[79 FR 74995, Dec. 16, 2014]
[[Page 49]]
732.406-72 Establishing an LOC.
(a) While the contract will provide for the use of an LOC when it is
applicable under 732.406-71, the LOC is a separate agreement between the
contractor and USAID. The terms and conditions of the LOC are contained
in the LOC instructions issued by USAID and the general operating
requirements are those imposed by the USAID LOC servicing agent. LOCs
for both USAID/Washington and Mission-executed awards are established by
the Bureau for Management, Office of the Chief Financial Officer, Cash
Management and Payment Division (M/CFO/CMP) through the Agency LOC
servicing agent.
(b) To establish a new LOC account, the contractor must submit to
USAID the documentation specified in (48 CFR) AIDAR Clause 752.232-
70(b).
[79 FR 74995, Dec. 16, 2014]
732.406-73 LOC contract clause.
(a) If payment is to be provided by LOC, the contract must contain
the clause in 752.232-70.
(b) Contracting officers must ensure that an appropriate (48 CFR)
FAR payment clause is also inserted in the contract, in the event that
the LOC is revoked pursuant to 732.406-74.
[79 FR 74995, Dec. 16, 2014]
732.406-74 Revocation of the LOC.
If during the term of the contract M/CFO/CMP believes that the LOC
should be revoked, M/CFO/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).
[79 FR 74995, Dec. 16, 2014]
PART 733_PROTESTS, DISPUTES, AND APPEALS--Table of Contents
Subpart 733.1_Protests
Sec.
733.101 Definitions.
733.103-70 Protests to the agency.
733.103-71 Filing of protest.
733.103-72 Responsibilities.
733.103-73 Protests excluded from Agency consideration.
Subpart 733.27_USAID Procedures for Disputes and Appeals
733.270 Designation of Civilian Board of Contract Appeals (CBCA) to hear
and determine appeals under USAID contracts.
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.
733.101 Definitions.
(a) All ``days'' referred to in this subpart are deemed to be
``calendar days'', in accordance with (48 CFR) 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 (48 CFR) 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; 79
FR 74988, Dec. 16, 2014]
733.103-70 Protests to the agency.
USAID follows the agency protest procedures in (48 CFR) FAR 33.103,
as supplemented by this section.
[61 FR 39094, July 26, 1996, as amended at 79 FR 74988, Dec. 16, 2014]
733.103-71 Filing of protest.
(a) Protests must be in writing and addressed to the contracting
officer for consideration by the M/OAA Director.
(b) A protest shall include, in addition to the information required
in (48 CFR) 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/OAA Director decides to release such material, except to the
extent that the
[[Page 50]]
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; 72 FR 19670, Apr. 19, 2007; 79 FR 74988, Dec.
16, 2014]
733.103-72 Responsibilities.
(a) M/OAA Director. The decision regarding an agency protest shall
be made by the M/OAA Director within 30 days from the date a proper
protest is filed unless the M/OAA Director determines that a longer
period is necessary to resolve the protest, and so notifies the
protester in writing. The M/OAA Director shall make his or her decision
after personally reviewing and considering all aspects of the case as
presented in the protest itself and in any documentation provided by the
contracting officer, and after obtaining input and clearance from the
Office of the General Counsel's Division for Litigation and Enforcement
(GC/LE). The decision shall be in writing and constitutes the final
decision of the Agency.
(b) Contracting officer. The contracting officer is responsible for
requesting an extension of the time for acceptance of offers as
described in (48 CFR) 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; 72 FR 19670, Apr. 19, 2007; 79 FR 74988, 74996,
Dec. 16, 2014]
733.103-73 Protests excluded from Agency 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 Government Accountability 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/
OAA 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/OAA Director.
[61 FR 39094, July 26, 1996, as amended at 64 FR 42040, Aug. 3, 1999; 72
FR 19670, Apr. 19, 2007; 79 FR 74988, 74996, Dec. 16, 2014]
Subpart 733.27_USAID Procedures for Disputes and Appeals
733.270 Designation of Civilian Board of Contract Appeals (CBCA) to
hear and determine appeals under USAID contracts.
(a) The Civilian Board of Contract Appeals (CBCA) was established by
section 847 of the National Defense Authorization Act for Fiscal Year
2006 to hear and decide contract disputes between Government contractors
and executive civilian agencies under the provisions of the Contract
Disputes Act of 1978, 41 U.S.C. 7101-7109, and regulations and rules
issued under that statute. The CBCA is USAID's board for hearing and
deciding appeals to contracting officer decisions.
(b) USAID must follow CBCA Rules of Procedure (see
www.cbca.gsa.gov).
[[Page 51]]
(c) The Office of the General Counsel's Division of Litigation and
Enforcement (GC/LE) will assure representation of the interests of the
Government in proceedings before the CBCA.
(d) All officers and employees of USAID must cooperate with the CBCA
and GC/LE in the processing of appeals so as to assure their speedy and
just determination.
[79 FR 74996, Dec. 16, 2014]
[[Page 52]]
SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING
PART 734_MAJOR SYSTEM ACQUISITION--Table of Contents
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.
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/OAA Director.
[55 FR 39976, Oct. 1, 1990, as amended at 64 FR 42040, Aug. 3, 1999; 72
FR 19670, Apr. 19, 2007]
PART 736_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS--Table of Contents
Subpart 736.5_Contract Clauses
736.570 Disability standards in construction contracts.
Subpart 736.6_Architect-Engineer Services
Sec.
736.602-2 Evaluation boards.
736.602-3 Evaluation board functions.
736.602-4 Selection authority.
736.602-5 Short selection process for procurements not to exceed the
simplified acquisition threshold.
736.603 [Reserved]
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 736.5_Contract Clauses
736.570 Disability standards in construction contracts.
Contracting officers must insert the clause at 752.236-70, Standards
for Accessibility for the Disabled in USAID Construction Contracts, in
all solicitations and contracts for construction or renovations made
using program funds.
[79 FR 74996, Dec. 16, 2014]
Subpart 736.6_Architect-Engineer Services
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, as amended at 79 FR 74988, Dec. 16, 2014]
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
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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 (48 CFR) FAR subpart 9.1. No contract may be 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.
[49 FR 13254, Apr. 3, 1984, as amended at 79 FR 74988, Dec. 16, 2014]
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.
736.602-5 Short selection process for procurements not to exceed the
simplified acquisition threshold.
References to (48 CFR) FAR 36.602-3 and 36.602-4 contained in (48
CFR) 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; 79
FR 74988, Dec. 16, 2014]
736.603 [Reserved]
736.605 Government cost estimate for architect-engineer work.
See 736.602-3(c)(5).
PART 737 [RESERVED]
[[Page 54]]
SUBCHAPTER G_CONTRACT MANAGEMENT
PART 742_CONTRACT ADMINISTRATION--Table of Contents
Subpart 742.7_Indirect Cost Rates
Sec.
742.770 Negotiated indirect cost rate agreement.
Subpart 742.11_Production, Surveillance, and Reporting
742.1170 Performance monitoring and progress reporting.
742.1170-1 General.
742.1170-2 Applicability.
742.1170-3 Policy.
742.1170-4 Progress reporting requirements and contract clause.
Subpart 742.15_Contractor Performance Information
742.1501 [Reserved]
742.1502 Policy.
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
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 742.11_Production, Surveillance, and Reporting
Source: 72 FR 53163, Sept. 18, 2007, unless otherwise noted.