[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1998 Edition]
[From the U.S. Government Printing Office]
48
Federal Acquisition Regulations System
[[Page 1]]
CHAPTERS 3 TO 6
Revised as of October 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF OCTOBER 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 3--Department of Health and Human Services 3
Chapter 4--Department of Agriculture 227
Chapter 5--General Services Administration 293
Chapter 6--Department of State 499
Finding Aids:
Table of CFR Titles and Chapters........................ 583
Alphabetical List of Agencies Appearing in the CFR...... 601
List of CFR Sections Affected........................... 611
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 301.101
refers to title 48, part
301, section 101.
----------------------------
[[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
into 50 titles which represent broad areas subject to Federal
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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
volume.
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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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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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 1998.
[[Page ix]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
eight 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 251 and parts 252 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, 1998.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The two volumes containing chapter 1 include an index to the Federal
acquisition regulations. The second volume, containing chapter 1 (parts
52 to 99), includes contract clauses and forms.
For this volume, Melanie L. Marcec was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapters 7 to 14)
--------------------------------------------------------------------
Part
chapter 7--U.S. Agency for International Development........ 701
chapter 8--Department of Veterans Affairs................... 801
chapter 9--Department of Energy............................. 901
chapter 10--Department of the Treasury...................... 1033
chapter 12--Department of Transportation.................... 1201
chapter 13--Department of Commerce.......................... 1301
chapter 14--Department of the Interior...................... 1401
[[Page 3]]
CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT
--------------------------------------------------------------------
Editorial Note: Nomenclature changes to chapter 7 appear at 62 FR
40466, July 29, 1997, and corrected at 62 FR 45334, August 27, 1997.
SUBCHAPTER A--GENERAL
Part Page
701 Federal Acquisition Regulation System....... 5
702 Definitions of words and terms.............. 10
703 Improper business practices and personal
conflicts of interest................... 13
704 Administrative matters...................... 13
SUBCHAPTER B--ACQUISITION PLANNING
705 Publicizing contract actions................ 15
706 Competition requirements.................... 15
707 Acquisition planning........................ 18
709 Contractor qualifications................... 18
711 Describing agency needs..................... 18
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
713 Simplified acquisition procedures........... 20
714 Sealed bidding.............................. 20
715 Contracting by negotiation.................. 20
716 Types of contracts.......................... 25
717 Special contracting methods................. 25
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
719 Small business and small disadvantaged
business concerns....................... 26
722 Application of labor laws to government
acquisition............................. 30
724 Protection of privacy and freedom of
information............................. 33
725 Foreign acquisition......................... 34
[[Page 4]]
726 Other socioeconomic programs................ 35
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
728 Bonds and insurance......................... 39
731 Contract cost principles and procedures..... 40
732 Contract financing.......................... 44
733 Protests, disputes, and appeals............. 45
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
734 Major system acquisition.................... 49
736 Construction and architect-engineer
contracts............................... 49
737
[Reserved]
SUBCHAPTER G--CONTRACT MANAGEMENT
742 Contract administration..................... 51
749 Termination of contracts.................... 51
750 Extraordinary contractual actions........... 52
SUBCHAPTER H--CLAUSES AND FORMS
752 Solicitation provisions and contract clauses 58
753 Forms....................................... 85
Appendices 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.................................................... 86
Appendix E to Chapter 7 [Reserved]
Appendix F to Chapter 7--Use of Collaborative Assistance
Method for Title XII Activities........................... 111
Appendices G-H to Chapter 7 [Reserved]
Appendix I to Chapter 7--USAID's Academic Publication Policy 115
Appendix J to Chapter 7--Direct USAID Contracts With a
Cooperating Country National and With a Third Country
National for Personal Services Abroad..................... 116
[[Page 5]]
SUBCHAPTER A--GENERAL
PART 701--FEDERAL ACQUISITION REGULATION SYSTEM--Table of Contents
Subpart 701.1--Purpose, Authority, Issuance
Sec.
701.105 OMB approval under the Paperwork Reduction Act.
Subpart 701.3--U.S. Agency for International Development Acquisition
Regulation
701.370 Purpose.
701.371 Authority.
701.372 Applicability.
701.373 Code arrangement.
701.374 Publication.
701.375 Citation.
701.376 Agency implementation.
701.376-1 Responsibility.
701.376-2 AIDAR Notices.
701.376-3 Appendices.
701.376-4 Implementation within USAID contracting activities.
701.377 Procurement policy.
Subpart 701.4--Deviations from the FAR or AIDAR
701.402 Policy.
701.470 Procedure.
Subpart 701.6--Contracting Authority and Responsibility
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.
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
Sec. 701.105 OMB approval under the Paperwork Reduction Act.
(a) The following information collection and record keeping
requirements established by USAID have been approved by OMB, and
assigned an OMB control number and approval/expiration dates as
specified below:
------------------------------------------------------------------------
Burden
OMB control Expiration hours
AIDAR segment No. date per
report
------------------------------------------------------------------------
733.7003(c)......................... 0412-0520 6/30/97 40
752.209-70.......................... 0412-0520 6/30/97 4
752.219-8........................... 0412-0520 6/30/97 1
752.245-70.......................... 0412-0520 6/30/97 .5
752.245-71.......................... 0412-0520 6/30/97 1
752.7001(a)......................... 0412-0520 6/30/97 .5
752.7001(b)......................... 0412-0520 6/30/97 .5
752.7002(j)......................... 0412-0520 6/30/97 1
752.7003............................ 0412-0520 6/30/97 8
752.7004(b)(4)...................... 0412-0520 6/30/97 .5
752.7032............................ 0412-0520 6/30/97 2
752.7033............................ 0412-0536 6/30/97 4
------------------------------------------------------------------------
(b) The information requested by the AIDAR sections listed in
paragraph (a) is necessary to allow USAID to prudently administer pubic
funds. It lets USAID make reasonable assessments of contractor
capabilities and responsibility of costs. Information is required in
order for a contractor and/or its employee to obtain a benefit-usually
taking the form of payment under a government contract.
[[Page 6]]
(c) Public reporting burden for these collections of information is
estimated as shown in paragraph (a) of this section. The estimated
burden includes the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. Send comments regarding the
burden estimates or any other aspects of these collections of
information, including suggestions for reducing the burden, to: US
Agency for International Development, Office of Procurement, Policy
Division (M/OP/P), Washington, DC 20523-1435; and Office of Management
and Budget, OMB, Paper Reduction Project (0412-0520), Washington, DC
20503.
[59 FR 33445, June 29, 1994, as amended at 61 FR 39090, July 26, 1996;
62 FR 40466, July 29, 1997]
Subpart 701.3--U.S. Agency for International Development Acquisition
Regulation
Sec. 701.370 Purpose.
The U.S. Agency for International Development Acquisition Regulation
(AIDAR) supplements the Federal Acquisition Regulation (FAR) and
implements the procurement related aspects of the Foreign Assistance
Act, Executive Order 11223. The AIDAR provides for the codification and
publication of procedures for the acquisition of services and personal
property by USAID.
[59 FR 33445, June 29, 1994, as amended at 61 FR 39090, July 26, 1996]
Sec. 701.371 Authority.
The AIDAR is prepared by the USAID Procurement Executive by
direction of the Administrator of USAID pursuant to the Foreign
Assistance Act of 1961. See FAR subpart 1.3.
Sec. 701.372 Applicability.
(a) 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.
(b) At Missions where joint administrative services are arranged,
procuring offices may apply the Department of State Acquisition
Regulation for all administrative and technical support contracts except
in defined areas. The defined areas and administrative guidelines for
procurement will be furnished to the overseas Missions by the Office of
Administrative Services. 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.
[49 FR 13236, Apr. 3, 1984, as amended at 49 FR 33667, Aug. 24, 1984; 55
FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991]
Sec. 701.373 Code arrangement.
(a) The Federal Acquisition Regulation System brings together, in
title 48 of the Code of Federal Regulations, the procurement regulations
that apply to all agencies of the Government. The FAR is chapter 1 of
title 48; the AIDAR is chapter 7.
(b) The FAR is divided into 53 parts; parts 1 through 53 of AIDAR
expand upon or modify the policies and procedures included in the FAR.
Material issued in the first 53 parts of the AIDAR will be numerically
keyed to the corresponding sections of the FAR.
[49 FR 13230, Apr. 3, 1984, as amended at 62 FR 40466, July 29, 1997]
Sec. 701.374 Publication.
(a) Those parts of the AIDAR which contain basic and significant
policies and procedures considered to be of interest to the general
public will be published in the daily issues of the Federal Register
and, in cumulated form, in the Code of Federal Regulations. Copies of
the AIDAR in Federal Register and Code of Federal Regulations form may
be purchased from the Superintendent of Documents, Government Printing
Office, Washington, DC 20402.
(b) Public participation will be obtained for significant revisions
to the AIDAR by soliciting comments in accordance with FAR 1.501.
[[Page 7]]
Sec. 701.375 Citation.
Any section of the AIDAR may be identified by ``AIDAR'' followed by
the section number. Within the AIDAR itself, internal references to an
AIDAR section will cite the number only, and will not include the term
``AIDAR''. Since the AIDAR is published in the Federal Register, any
section may be incorporated into contracts by reference, using the
citation ``48 CFR'' followed by the section number, as ``48 CFR
703.375.''
Sec. 701.376 Agency implementation.
Sec. 701.376-1 Responsibility.
Responsibility for the development and maintenance of the AIDAR is
assigned to the Procurement Executive. Amendments and revisions will be
prepared in coordination with the General Counsel, and such other
offices as may be appropriate.
[49 FR 13236, Apr. 3, 1984, as amended at 50 FR 50301, Dec. 10, 1985]
Sec. 701.376-2 AIDAR Notices.
AIDAR Notices will be used to promulgate changes to the AIDAR. Such
Notices will be prepared by the Procurement Executive.
Sec. 701.376-3 Appendices.
Significant procurement policies and procedures which do not
correspond to or conveniently fit into the FAR system (described in FAR
1.1 and this subpart) 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 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'').
[62 FR 40466, July 29, 1997]
Sec. 701.376-4 Implementation within USAID contracting activities.
The heads of the various USAID contracting activities may issue
operating instructions and procedures consistent with the FAR, AIDAR,
and other Agency regulations, policies, and procedures for application
within their organizations. One copy of each such issuance shall be
forwarded to the Office of Procurement, Policy Division (M/OP/P).
Insofar as possible, such material will be numerically keyed to the
AIDAR.
[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]
Sec. 701.377 Procurement policy.
Subject to the direction of the Administrator, the Procurement
Executive will be responsible for the development and maintenance of
necessary uniform procurement policies, procedures, and standards; for
providing assistance to the contracting activities as appropriate; for
keeping the Administrator and Executive Staff fully informed on
procurement matters which should be brought to their attention.
Subpart 701.4--Deviations from the FAR or AIDAR
Sec. 701.402 Policy.
It is the policy of USAID that deviation from the mandatory
requirements of the FAR and AIDAR shall be kept at a minimum and be
granted only if it is essential to effect necessary procurement and when
special and exceptional circumstances make such deviation clearly in the
best interest of the Government.
Sec. 701.470 Procedure.
(a) Deviation from the FAR or AIDAR affecting one contract or
transaction.
(1) Deviations which affect only one contract or procurement will be
made only after prior approval by the head of the contracting activity.
Deviation requests containing the information listed in paragraph (c) of
this section shall be submitted sufficiently in advance of the effective
date of such deviation to allow adequate time for consideration and
evaluation by the head of the contracting activity.
(2) Requests for such deviations may be initiated by the responsible
USAID contracting officer who shall obtain clearance and approvals as
may be required by the head of the contracting
[[Page 8]]
activity. Prior to submission of the deviation request to the head of
the contracting activity for approval, the contracting officer shall
obtain written comments from the Office of Procurement, Policy Division
(M/OP/P), hereinafter referred to as ``M/OP/P''. The M/OP/P shall
normally be allowed 10 working days prior to the submission of the
deviation request to the head of the contracting activity to review the
request and to submit comments. If the exigency of the situation
requires more immediate action, the requesting office may arrange with
the M/OP/P for a shorter review period. In addition to a copy of the
deviation request, the M/OP/P shall be furnished any background or
historical data which will contribute to a more complete understanding
of the deviation. The comments of the M/OP/P shall be made a part of the
deviation request file which is forwarded to the head of the contracting
activity.
(3) Coordination with the Office of General Counsel, as appropriate,
should also be effected prior to approval of a deviation by the head of
the contracting activity.
(b) Class deviations from the FAR or AIDAR: Class deviations are
those which affect more than one contract or contractor.
(1) Class deviations from the AIDAR will be processed in the same
manner as prescribed in paragraph (a) of this section. Individual heads
of contracting activities have authority to approve class deviations
affecting only contracts within their own contracting activities, except
that the Director, M/OP, has authority to approve class deviations that
affect more than one contracting activity.
(2) Class deviations from the FAR shall be considered jointly by
USAID and the Chairperson of the Civilian Agency Acquisition Council (C/
CAAC) (FAR 1.404) unless, in the judgement of the head of the
contracting activity, after due consideration of the objective of
uniformity, circumstances preclude such consultation. The head of the
contracting activity shall certify on the face of the deviation the
reason for not coordinating with the C/CAAC. In such cases, the M/OP/P,
shall be responsible for notifying the C/CAAC of the class deviation.
(3) Class deviations from the FAR shall be processed as follows:
(i) The request shall be processed in the same manner as paragraph
(a) of this section, except that the M/OP/P, shall be allowed 15 working
days prior to the submission of the deviation request to the head of the
contracting activity to effect the necessary coordination with the C/
CAAC and to submit comments. If the exigency of the situation requires
more immediate action, the requesting office may arrange with the M/OP/P
for a shorter review and coordination period. The comments of the C/CAAC
and the M/OP/P shall be made a part of the deviation request file which
is forwarded to the head of the contracting activity.
(ii) The request shall be processed in the same manner as paragraph
(a) of this section if the request is not being jointly considered by
USAID and the C/CAAC.
(4) Deviations involving basic agreements or other master type
contracts are considered to involve more than one contract.
(5) Unless the approval is sooner rescinded, class deviations shall
expire 2 years from the date of approval provided that deviation
authority shall continue to apply to contracts or task orders which are
active at the time the class deviation expires. Authority to continue
the use of such deviation beyond 2 years may be requested in accordance
with the procedures prescribed in paragraph (a) of this section.
(6) Expiration dates shall be shown on all class deviations.
(c) Requests for deviation shall contain a complete description of
the deviation, the effective date of the deviation, the circumstances in
which the deviation will be used, a specific reference to the regulation
being deviated from, an indication as to whether any identical or
similar deviations have been approved in the past, a complete
justification of the deviation including any added or decreased cost to
the Government, the name of the contractor, and the contract or task
order number.
(d) Register of deviations: Separate registers shall be maintained
by the procuring activities of the deviations
[[Page 9]]
granted from the FAR and AIDAR. Each deviation shall be recorded in its
appropriate register and shall be assigned a control number as follows:
the symbol of the procuring activity, the abbreviation ``DEV'', the
fiscal year, the serial number [issued in consecutive order during each
fiscal year] assigned to the particular deviation and the suffix ``c''
if it is a class deviation, e.g. CM-DEV-85-1, CM-DEV-85-2c. The control
number shall be embodied in the document authorizing the deviation and
shall be cited in all references to the deviation.
(e) Central record of deviations: Copies of approved deviations
shall be furnished promptly to the M/OP/P, who shall be responsible for
maintaining a central record of all deviations that are granted.
(f) Semiannual report of class deviations:
(1) USAID contracting officers shall submit a semiannual report to
the M/OP/P of all contract actions effected under class deviations to
the FAR and AIDAR which have been approved pursuant to paragraph (b) of
this section.
(2) The report shall contain the applicable deviation control
number, the contractor's name, contract number and task order number (if
appropriate).
(3) The report shall cover the 6-month periods ending June 30 and
December 31, respectively, and shall be submitted within 20 working days
after the end of the reporting period.
[49 FR 13236, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 55
FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33445, June
29, 1994; 61 FR 39090, July 26, 1996]
Subpart 701.6--Contracting Authority and Responsibility
Sec. 701.601 General.
(a) Except as otherwise prescribed, the head of each contracting
activity (as defined in 702.170) is responsible for the procurement of
supplies and services under or assigned to the procurement cognizance of
his or her activity. The heads of USAID contracting activities are
vested with broad authority to carry out the programs and activities for
which they are responsible. This authority includes authority to execute
contracts and the establishment of procurement policies, procedures, and
standards appropriate for their programs and activities, subject to
Government-wide and USAID requirements and restrictions, such as those
found at 701.376-4 and particularly 701.603-70, the USAID policy
regarding the direct-hire status of contracting officers.
(b) The authority of heads of contracting activities to execute
contracts is limited as follows:
(1) Director, Office of Procurement. Unlimited authority to execute
contracts. May issue warrants for simplified acquisitions up to $50,000
to individuals on his or her staff (subject to termination in accordance
with FAR 1.603-4).
(2) Director, Office of U.S. Foreign Disaster Assistance. Authority
to execute contracts for disaster relief purposes during the first 72
hours of a disaster in a cumulative total amount not to exceed $500,000.
Authority to execute simplified acquisitions up to $50,000 at any time.
May issue warrants for simplified acquisitions up to $50,000 to
qualified individuals on his or her staff.
(3) Director, Center for Human Capacity Development (G/HCD).
Authority to execute simplified acquisitions up to $10,000. Unlimited
authority for procuring participant training based on published catalog
prices, using M/OP/E approved forms. May issue warrants for simplified
acquisitions up to $10,000 to qualified individuals on his or her staff.
(4) Overseas heads of contracting activities. Authority to sign
contracts where the cumulative amount of the contract, as amended, does
not exceed $250,000 (or local currency equivalent) for personal services
contracts or $100,000 (or local currency equivalent) for all other
contracts. May issue warrants for simplified acquisitions up to $50,000
to qualified individuals on his or her staff.
[53 FR 4980, Feb. 19, 1988, as amended at 55 FR 6802, Feb. 27, 1990; 56
FR 67224, Dec. 30, 1991; 58 FR 8702, Feb. 17, 1993; 59 FR 33445, June
29, 1994; 60 FR 11912, Mar. 3, 1995; 61 FR 39090, July 26, 1996; 62 FR
40466, July 29, 1997]
[[Page 10]]
Sec. 701.602-1 Authority of contracting officers in resolving audit recommendations.
With the exception of termination settlements subject to part 749,
Termination of Contracts, contracting officers shall have the authority
to negotiate and enter into settlerments with contractors for costs
questioned under audit reports, or to issue a contracting officer's
final decision pursuant to the disputes clauses (in the event that
questioned costs are not settled by negotiated agreement) in accordance
with ADS Chapter 591.5.20. The negotiated settlement or final decision
shall be final, subject only to a contractor's appeal, either under the
provisions of the Contract Disputes Act of 1978, as amended (41 U.S.C.
601-613), or to the courts. Policies and procedures for resolving audit
recommendations are in accordance with ADS Chapters 591 and 592.
[62 FR 40466, July 29, 1997]
Sec. 701.602-3 Ratification of unauthorized commitments.
(a) [Reserved]
(b) Policy. (1) [Reserved]
(2) In order to maintain management oversight and controls on
unauthorized commitments, authority to ratify unauthorized commitments
within USAID is reserved to the USAID Procurement Executive.
[53 FR 6829, Mar. 3, 1988]
Sec. 701.603 Selection, appointment, and termination of appointment.
Sec. 701.603-70 Designation of contracting officers.
A contracting officer represents the U.S. Government through the
exercise of his/her delegated authority to negotiate, sign, and
administer contracts on behalf of the U.S. Government. The contracting
officer's duties are sensitive, specialized, and responsible. In order
to insure proper accountability, and to preclude possible security,
conflict of interest, or jurisdiction problems, it is USAID policy that
USAID contracting officers must be U.S. citizen direct-hire employees of
the U.S. Government.
[49 FR 13236, Apr. 3, 1984, as amended at 61 FR 39091, July 26, 1996]
Subpart 701.7--Determinations and Findings
Sec. 701.704 Content.
There is no USAID-prescribed format or form for determinations and
findings (D&Fs). D&Fs are to contain the information specified in FAR
1.704 and any information which may be required by the FAR or AIDAR
section under which the D&F is issued.
[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40466, July 29, 1997]
Sec. 701.707 Signatory authority.
Unless otherwise specified in the FAR or AIDAR section under which
the D&F is issued, the Contracting Officer is the signing official.
[58 FR 8702, Feb. 17, 1993]
PART 702--DEFINITIONS OF WORDS AND TERMS--Table of Contents
Subpart 702.170--Definitions
Sec.
702.170-1 USAID.
702.170-2 Administrator.
702.170-3 Contracting activities.
702.170-4 Cooperating country.
702.170-5 Cooperating country national (CCN).
702.170-6 Executive agency.
702.170-7 Foreign Assistance Act.
702.170-8 Government, Federal, State, local and political subdivisions.
702.170-9 Head of agency.
702.170-10 Head of the contracting activity.
702.170-11 Mission.
702.170-12 Overseas.
702.170-13 Procurement Executive.
702.170-14 Senior Procurement Executive.
702.170-15 Third country national (TCN).
702.170-16 U.S. national (USN).
702.170-17 Automated Directives System.
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.
[[Page 11]]
Source: 49 FR 13238, Apr. 3, 1984, unless otherwise noted.
Subpart 702.170--Definitions
Sec. 702.170-1 USAID.
USAID means the U.S. Agency for International Development and its
predecessor agencies, including the International Cooperation
Administration (ICA).
Sec. 702.170-2 Administrator.
Administrator means the Administrator or Deputy Administrator of the
U.S. Agency for International Development.
Sec. 702.170-3 Contracting activities.
The contracting activities within USAID are:
(a) The USAID/Washington activities. The contracting activities
located in Washington are the Office of Procurement, Office of Foreign
Disaster Assistance, and Center for Human Capacity Development (G/HCD).
Subject to the limitations stated in 702.170-10, these contracting
activities are responsible for procurement related to programs and
activities for their areas. The Office of Procurement is responsible for
procurements which do not fall within the responsibility of other
contracting activities, or which are otherwise assigned to it.
(b) The overseas field contracting activities. Each USAID Mission or
post overseas is a contracting activity, responsible for procurement
related to its programs and activities, subject to the limitations in
702.170-10(b), which sets forth the contracting authority for Mission
Directors and principal USAID officers at posts.
[50 FR 16085, Apr. 24, 1985, as amended at 50 FR 40528, Oct. 4, 1985; 50
FR 50302, Dec. 10, 1985; 51 FR 20651, June 6, 1986; 56 FR 67224, Dec.
30, 1991; 61 FR 39091, July 26, 1996; 62 FR 40466, July 29, 1997]
Sec. 702.170-4 Cooperating country.
Cooperating country means a foreign country in which there is a
program or activity administered by USAID.
Sec. 702.170-5 Cooperating country national (CCN).
Cooperating country national (CCN) means an individual who is a
cooperating country citizen or a non-cooperating country citizen
lawfully admitted for permanent residence in the cooperating country.
Sec. 702.170-6 Executive agency.
Executive agency includes the U.S. Agency for International
Development (USAID) and its predecessor agencies, including the
International Cooperation Administration.
Sec. 702.170-7 Foreign Assistance Act.
Foreign Assistance Act means the Foreign Assistance Act of 1961, as
amended (22 U.S.C., Chapter 32).
Sec. 702.170-8 Government, Federal, State, local and political subdivisions.
As used in the FAR and AIDAR, these terms do not refer to foreign
entities except as otherwise stated.
Sec. 702.170-9 Head of agency.
Head of agency means, for USAID, the Administrator, and the Deputy
Administrator, and in accordance with the responsibilities and
limitations set forth in 702.170-13(c)(4), the Agency Procurement
Executive.
[50 FR 52780, Dec. 26, 1985]
Sec. 702.170-10 Head of the contracting activity.
(a) The heads of USAID contracting activities are listed below. The
limits of their contracting authority are set forth in 701.601.
(1) USAID/Washington Heads of Contracting Activities:
(i) Director, Office of Procurement;
(ii) Director, Office of U.S. Foreign Disaster Assistance; and
(iii) Director, Center for Human Capacity Development (G/HCD).
(2) Overseas Heads of Contracting Activities: Each Mission Director
or principal USAID officer at post (e.g. USAID Representative, USAID
Affairs Officer, etc.)
(b) Individuals serving in the positions listed in (a)(1) and (a)(2)
of this section in an ``Acting'' capacity may
[[Page 12]]
exercise the authority delegated to that position.
[53 FR 4980, Feb. 19, 1988, as amended at 56 FR 67224, Dec. 30, 1991; 61
FR 39091, July 26, 1996; 62 FR 40466, July 29, 1997]
Sec. 702.170-11 Mission.
Mission means the USAID mission or the principal USAID office or
representative (including an embassy designated to so act) in a foreign
country in which there is a program or activity administered by USAID.
Sec. 702.170-12 Overseas.
Overseas means outside the United States, its possessions, and
Puerto Rico.
Sec. 702.170-13 Procurement Executive.
(a) Procurement Executive means the USAID official who:
(1) Is responsible to the Administrator, through the Assistant
Administrator for Management, for management direction of USAID's
procurement system, including implementation of USAID's unique
procurement policies, regulations, and standards, and
(2) Oversees development of the system, evaluates system performance
in accordance with approved criteria, and certifies to the
Administrator, through the Assistant Administrator for Management, that
the USAID procurement system meets approved criteria.
(b) The Procurement Executive for USAID is Mr. Marcus L. Stevenson,
the Director, Office of Procurement, Bureau for Management. Mr.
Stevenson reports and makes recommendations to the Administrator, the
Deputy Administrator, or other USAID officials, as appropriate, with
regard to the implementation and improvement of the procurement system
and procurement staffing to meet the objectives and requirements of the
Foreign Assistance Act, Executive Order 12352, the Office of Federal
Procurement Policy Act, and other statutory and Executive Branch
procurement policies and requirements applicable to USAID operations.
These reports and recommendations, including results of case reviews
requested by the Director, Office of Procurement, will deal with the use
of effective competition in procurement; establishment of clear lines of
authority, accountability, and responsibility for procurement decision
making within USAID; and development and maintenance of a procurement
career management program to assure an adequate professional work force.
(c) The USAID Procurement Executive has specific authority to:
(1) Select and appoint contracting officers and terminate their
appointments in accordance with section 1.603 of the Federal Acquisition
Regulation;
(2) Issue, develop, and maintain the Agency's acquisition
regulations, procedures and standards for issuance in accordance with
established agency delegations and requirements, as provided in subpart
1.3 of the Federal Acquisition Regulation;
(3) 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; and
(4) Act for the Administrator, as ``head of the agency'' for all
other purposes of the Federal Acquisition Regulation and the USAID
Acquisition Regulation, except for the authority in FAR 6.302-7(a)(2),
6.302-7(c)(1), 7.103, 17.602(a), 19.201(c)(2), 19.201(c)(3), 27.306(a),
27.306(b), and 30.201-5 or where the ``head of the agency'' authority is
expressly not redelegable under the FAR or AIDAR.
[50 FR 52781, Dec. 26, 1985, as amended at 52 FR 38097, Oct. 14, 1987;
53 FR 50630, Dec. 16, 1988; 54 FR 37334, Sept. 8, 1989; 55 FR 6802, Feb.
27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33445, June 29, 1994; 61 FR
51234, Oct. 1, 1996]
Sec. 702.170-14 Senior Procurement Executive.
Senior Procurement Executive is synonymous with the term
``Procurement Executive'', as defined in 702.170-13 of this subpart.
[50 FR 16086, Apr. 24, 1985]
[[Page 13]]
Sec. 702.170-15 Third country national (TCN).
Third country national (TCN) means an individual who is neither a
cooperating country national nor a U.S. national, but is a citizen of a
country included in Geographic Code 935 (see 22 CFR 228.3).
[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985,
as amended at 62 FR 40466, July 29, 1997]
Sec. 702.170-16 U.S. national (USN).
U.S. national (USN) means an individual who is a U.S. citizen or a
non-U.S. citizen lawfully admitted for permanent residence in the United
States.
[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985]
Sec. 702.170-17 Automated Directives System.
Automated Directives System (``ADS'') means USAID's system of
internal directives, regulations, and procedures. References to ``ADS''
throughout this chapter 7 are references to the Automated Directives
System. Procurement-related sections of this system are accessible to
the general public at internet address: http://www.info.usaid.gov/ftp--
data/pub/handbooks/index.html. The entire ADS in available on the
Directives Resource Compact Disk (DR-CD), which may be purchased from
the Agency at cost by submitting a completed DR-CD order form. To
request a fax copy of the DR-CD order form, send an e-mail with your fax
number to [email protected].
[62 FR 40466, July 29, 1997]
Subpart 702.270--Definitions Clause
Sec. 702.270-1 Definitions clause.
Use the appropriate clause in 752.202-1, in addition to the clause
in FAR 52.202-1.
PART 703--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents
Subpart 703.1--Safeguards
Sec.
703.104-5 Disclosure, protection, and marking of proprietary and source
selection information.
703.104-11 Processing violations or possible violations.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Subpart 703.1--Safeguards
Sec. 703.104-5 Disclosure, protection, and marking of proprietary and source selection information.
A Contracting Officer may authorize release of proprietary and/or
source selection information outside the Government for evaluation
purposes pursuant to (FAR) 48 CFR 15.413-2, Alternative II, as
implemented by (AIDAR) 48 CFR 715.413-2, Alternate II.
[60 FR 11912, Mar. 3, 1995]
Sec. 703.104-11 Processing violations or possible violations.
The individual to whom the contracting officer should forward
information and documentation as required in FAR 3.104-10 is the
contracting officer's supervisor.
[62 FR 40467, July 29, 1997]
PART 704--ADMINISTRATIVE MATTERS--Table of Contents
Subpart 704.4--Safeguarding Classified Information Within Industry
Sec.
704.404 Contract clause.
Subpart 704.8--Contract Files [Reserved]
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
[[Page 14]]
Subpart 704.4--Safeguarding Classified Information Within Industry
Sec. 704.404 Contract clause.
If the contract involves access to classified (``Confidential'',
``Secret'', or ``Top Secret''), or administratively controlled
(``Sensitive But Unclassified'') information, use the contract clause in
752.204-2.
[49 FR 13239, Apr. 3, 1984. Redesignated at 54 FR 16122, Apr. 21, 1989,
as amended at 62 FR 40467, July 29, 1997]
Subpart 704.8--Contract Files [Reserved]
[[Page 15]]
SUBCHAPTER B--ACQUISITION PLANNING
PART 705--PUBLICIZING CONTRACT ACTIONS--Table of Contents
Sec.
705.002 Policy.
Subpart 705.2--Synopsis of Proposed Contract Actions
705.202 Exceptions.
705.207 Preparation and transmittal of certain synopses.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381),
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp.,
p. 435; 40 U.S.C. 474.
Sec. 705.002 Policy.
(a) USAID's Office of Small and Disadvantaged Business Utilization
maintains an USAID Consultant Registry Information System (ACRIS), which
serves as a reference source and an indication of a prospective
contractor's interest in performing USAID contracts. Prospective
contractors are invited to file the appropriate form (Standard Forms
254/255, Architect-Engineer and Related Services Questionnaire; or USAID
Form 1420-50, USAID Consultant Registry Information System (ACRIS)
Organization and Individual Profile) with USAID's Office of Small and
Disadvantaged Business Utilization (Department of State, U.S. Agency for
International Development, Washington, DC 20523-1414--Attention: Office
of Small and Disadvantaged Business Utilization). These forms should be
updated annually.
(b) USAID policy is to include all Commerce Business Daily Notices
and solicitations on the Internet.
[50 FR 40976, Oct. 8, 1985, and 50 FR 51396, Dec. 17, 1985, as amended
at 52 FR 21058, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 62 FR 40467,
July 29, 1997]
Subpart 705.2--Synopsis of Proposed Contract Actions
Sec. 705.202 Exceptions.
(a) [Reserved]
(b) The head of the U.S. Agency for International Development has
determined after consultation with the Administrator for Federal
Procurement Policy and the Administrator of the Small Business
Administration, that advance notice is not appropriate or reasonable for
contract actions described in 706.302-70(b)(1) through (b)(3).
(c) Advance notice is not required for contract actions undertaken
in accordance with 706.302-71.
[51 FR 42845, Nov. 26, 1986, as amended at 54 FR 28069, July 5, 1989; 55
FR 8469, Mar. 8, 1990; 55 FR 39154, Sept. 25, 1990; 56 FR 27208, June
13, 1991; 57 FR 5235, Feb. 13, 1992]
Sec. 705.207 Preparation and transmittal of certain synopses.
The responsible contracting officer shall notify USAID's Office of
Small and Disadvantaged Business Utilization (OSDBU) at least seven
business days before publicizing a solicitation in the Commerce Business
Daily for an acquisition:
(a) Which is to be funded from amounts referred to in section
706.302-71(a); and
(b) Which is expected to exceed $100,000.
For exceptions, see 726.7005.
[56 FR 27208, June 13, 1991, as amended at 62 FR 40467, July 29, 1997]
PART 706--COMPETITION REQUIREMENTS--Table of Contents
Sec.
706.003 Definitions.
Subparts 706.1-706.2 [Reserved]
Subpart 706.3--Other Than Full and Open Competition
706.302-5 Authorized or required by statute.
706.302-70 Impairment of foreign aid programs.
706.302-71 Small disadvantaged businesses.
706.303-1 Requirements.
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.
[[Page 16]]
Sec. 706.003 Definitions.
Procuring activity means ``contracting activity'', as defined in
702.170-3.
[50 FR 40528, Oct. 4, 1985]
Subparts 706.1-706.2 [Reserved]
Subpart 706.3--Other Than Full and Open Competition
Sec. 706.302-5 Authorized or required by statute.
Certain annual appropriations acts authorize USAID to contract with
certain disadvantaged enterprises using other than full and open
competition. The provisions implementing this authority are set forth in
706.302-71 and part 726.
[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40467, July 29, 1997]
Sec. 706.302-70 Impairment of foreign aid programs.
(a) Authority. (1) Citation: 40 U.S.C. 474.
(2) Full and open competition need not be obtained when it would
impair or otherwise have an adverse effect on programs conducted for the
purposes of foreign aid, relief, and rehabilitation.
(b) Application. This authority may be used for:
(1) An award under section 636(a)(3) of the Foreign Assistance Act
of 1961, as amended, involving a personal services contractor serving
abroad;
(2) An award of $250,000 or less by an overseas contracting
activity;
(3)(i) An award for which the Assistant Administrator responsible
for the project or program makes a formal written determination, with
supporting findings, that compliance with full and open competition
procedures would impair foreign assistance objectives, and would be
inconsistent with the fulfillment of the foreign assistance program; or
(ii) Awards for countries, regions, projects, or programs for which
the Administrator of USAID makes a formal written determination, with
supporting findings, that compliance with full and open competition
procedures would impair foreign assistance objectives, and would be
inconsistent with the fulfillment of the foreign assistance program.
(4) Awards under AIDAR 715.613-70 (Title XII selection procedure--
general) or 715.613-71 (Title XII selection procedure--collaborative
assistance).
(5) An award for the continued provision of highly specialized
services when award to another resource would result in substantial
additional costs to the government or would result in unacceptable
delays.
(c) Limitations. (1) Offers shall be requested from as many
potential offerors as is practicable under the circumstances. While the
authority at 706.302-70(b)(5) is for use when the contracting officer
determines that the incumbent contractor is the only practicable,
potential offeror, the requirement to publicize the intended award, as
required in FAR 5.201, still applies.
(2) The contract file must include appropriate explanation and
support justifying the award without full and open competition, as
provided in FAR 6.303, except that determinations made under 706.302-
70(b)(3) will not be subject to the requirement for contracting officer
certification or to approvals in accord with FAR 6.304.
(3) The authority in 706.302-70(b)(3)(i) shall be used only when no
other authority provided in FAR 6.302 or AIDAR 706.302 is suitable. The
specific foreign assistance objective which would be impaired must be
identified and explained in the written determination and finding. Prior
consultation with the Agency Competition Advocate (see 706.501) is
required before executing the written determination and finding, and
this consultation must be reflected in the determination and finding.
(4) Use of the authority in 706.302-70(b)(5) for proposed follow-on
amendments in excess of one year or over $250,000 is subject to the
approval of the Agency Competition Advocate. For all other follow-on
amendments using this authority, the contracting officer's certification
required in FAR 6.303-2(a)(12) will serve as approval.
[50 FR 40976, Oct. 8, 1985, and 50 FR 51395, Dec. 17, 1985, as amended
at 54 FR 28069, July 5, 1989; 54 FR 46389, Nov. 3, 1989; 57 FR 5235,
Feb. 13, 1992; 61 FR 39091, July 26, 1996; 62 FR 40467, July 29, 1997]
[[Page 17]]
Sec. 706.302-71 Small disadvantaged businesses.
(a) Authority. (1) Citations: Sec. 579, Pub. L. 101-167 (Fiscal Year
(FY) 1990), Sec. 567, Pub. L. 101-513 (FY 1991), Sec. 567, Pbu. L. 102-
145 (FY 1992), Sec. 562, Pub. L. 102-391 (FY 1993), Sec. 558, Pub. L.
103-87 (FY 1994), and Sec. 555, Pub. L. 103-306 (FY 1995).
(2) Except to the extent otherwise determined by the Administrator,
not less than ten percent of the amounts made available through the
appropriations cited in paragraph (a)(1) of this section for development
assistance and for assistance for famine recovery and development in
Africa shall be used only for activities of disadvantaged enterprises
(as defined in 726.7002). In order to achieve its goal, USAID is
authorized in the cited statutes to use other than full and open
competition to award contracts to small business concerns owned and
controlled by socially and economically disadvantaged individuals (small
disadvantaged businesses as defined in 726.7002), historically black
colleges and universities, colleges and universities having a student
body of which more than 40 percent of the students are Hispanic
Americans, and private voluntary organizations which are controlled by
individuals who are socially and economically disadvantaged, as the
terms are defined in 726.7002.
(b) Application. This authority may be used only if the Agency
determines in accordance with 726.7004 that:
(1) The acquisition is to be funded from amounts referred to in
paragraph (a) of this section;
(2) Award of the acquisition to an eligible organization is
appropriate to meet the requirement in paragraph (a)(2) of this section;
and
(3) After considering whether the acquisition can be made under the
authority of section 8(a), award under section 8(a) is not practicable.
(c) Limitations. (1) Offers shall be requested from as many
potential offerors as is practicable under the circumstances.
(2) Use of this authority is not subject to the requirements in FAR
6.303 and FAR 6.304, provided that the contract file includes a
certification by the contracting officer stating that the procurement is
being awarded pursuant to 706.302-71 and that the application
requirements and limitations of 706.302-71 (b) and (c) have been
complied with.
[56 FR 27208, June 13, 1991, as amended at 58 FR 8702, Feb. 17, 1993; 61
FR 51235, Oct. 1, 1996; 62 FR 40467, July 29, 1997]
Sec. 706.303-1 Requirements.
(a)-(c) [Reserved]
(d) USAID project procurements are generally not subject to the
Trade Agreements Acts of 1979 (see 725.403 of this chapter). To the
extent procurements are made under the authority of FAR 6.302-3(a)(2)(i)
or FAR 6.302-7 with Operating Expenses (OE) Funds, the Contracting
Officer shall send a copy of the justification to the Office of the
United States Trade Representative, 600 17th Street, NW., Washington, DC
20506, ATTN: Director, International Procurement Policy.
[50 FR 16086, Apr. 24, 1985]
Subpart 706.5--Competition Advocates
Sec. 706.501 Requirement.
The USAID Administrator delegated the authority to designate the
agency competition advocate and a competition advocate for each agency
procuring activity (see 706.003 of this part) to the USAID Procurement
Executive. The USAID Procurement Executive, under the Administrator's
delegation, has designated the M/OP Deputy Director for Policy,
Evaluation and Support as the Agency's competition advocate and the
deputy head (or equivalent) of each contracting activity as the
competition advocate for each activity. The competition advocate for M/
OP is the Deputy Director for Operations. If there is no deputy or
equivalent, the head of the contracting activity is designated the
competition advocate for that activity. The competition advocate's
duties may not be redelegated, but can be exercised by persons serving
as acting deputy (or acting head) of the contracting activity. For
definitions of contracting activity and head of contracting activity,
see 702.170-3 and 702.170-10, respectively.
[59 FR 33446, June 29, 1994]
[[Page 18]]
PART 707--ACQUISITION PLANNING--Table of Contents
Subpart 707.1--Acquisition Plans [Reserved]
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
Sec. 709.403 Definitions.
Debarring official in USAID is the Procurement Executive.
Suspending official in USAID is the Procurement Executive.
[62 FR 40467, July 29, 1997]
Subpart 709.5--Organizational Conflicts of Interest
Sec. 709.503 Waiver.
For purposes of approving waivers or redelegating the authority to
approve waivers pursuant to FAR 9.503, the USAID Procurement Executive
is the Agency head (see (48 CFR) AIDAR 702.170-13(c)(4)). The
Procurement Executive had redelegated the authority to approve waivers
pursuant to FAR 9.503 to the heads of contracting acitivites in USAID,
as defined in AIDAR 702.170-10.
[54 FR 16122, Apr. 21, 1989, as amended at 62 FR 40467, July 29, 1997]
Sec. 709.507-2 Contract clause.
(a)-(b) [Reserved]
(c) In order to avoid problems from organizational conflicts of
interest that may be discovered after award of a contract, the clause
found at 752.209-71 should be inserted in all contracts whenever the
solicitation includes one of the FAR organizational conflict of interest
solicitation clauses, FAR 52.209-7 or 52.209-8.
[58 FR 42255, Aug. 9, 1993]
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.
Sec. 711.002-70 Metric system waivers.
(a) Criteria. The FAR 11.002(b) requirement to use the metric system
of measurement for specifications and quantitative data that are
incorporated in or required by USAID contracts may be waived when USAID
determines in writing that such usage is impractical or is likely to
cause U.S. firms to experience significant inefficiencies or the loss of
markets.
(b) Authorization. (1) The USAID Metric Executive (as designated in
ADS chapter 323), the contracting officer, and the USAID official who
approves the procurement requirement are authorized to waive the metric
requirement for one of the above reasons. The USAID Metric Executive is
authorized to overrule a decision to grant a waiver, or to nullify a
blanket waiver made by another approving official so long as a
contractor's rights under an executed contract are not infringed upon.
(2) A blanket waiver for a class of multiple transactions may be
issued for a term not to exceed three years.
(3) When a waiver will be based upon the adverse impact on U.S.
firms, clearance from the USAID Metric Executive and the Office of Small
and Disadvantaged Business Utilization (SDB) will be obtained prior to
authorization.
(c) Records and reporting. (1) The basis for each waiver and any
plans to adapt similar requirements to metric specifications in future
procurements
[[Page 19]]
should be documented in the contract file.
(2) Each procurement activity will maintain a log of the waivers
from the metric requirements which are authorized for its procurements.
The logs shall list the commodity/service being procured, total dollar
value of the procured item(s), waiver date, authorizing official, basis
for waiver, and USAID actions that can promote metrication and lessen
the need for future waivers.
(3) Within 30 days of the closing of each fiscal year, each USAID/W
procurement activity and each Mission will submit a copy of the metric
waiver log for the year to the USAID Metric Executive. (Mission logs are
to be consolidated in a Mission report for the procurement activity and
for the nonprocurement activities maintaining such logs under the USAID
Metric Transition Plan.) Repetitive purchases of commercially produced
and marketed items and classes of items may be consolidated in reporting
procurements that do not exceed $10,000 cumulatively during the
reporting period.
[57 FR 23321, June 3, 1992, as amended at 59 FR 33446, June 29, 1994.
Redesignated and amended at 61 FR 39091, July 26, 1996. Redesignated and
amended at 62 FR 40467, July 29, 1997]
Sec. 711.002-71 Solicitation provisions and contract clauses.
The contracting officer shall insert the clause at 752.211-70 in all
USAID-direct solicitations and contracts.
[57 FR 23321, June 3, 1992. Redesignated and amended at 61 FR 39091,
July 26, 1996]
[[Page 20]]
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 713--SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents
Sec.
713.000 Scope of part.
Subpart 713.1--General
713.101 Definitions.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp.,
p. 435.
Source: 61 FR 39091, July 26, 1996, unless otherwise noted.
Sec. 713.000 Scope of part.
The simplified acquisition threshold applies to the cost of supplies
and services, exclusive of the cost of transportation and other
accessorial costs if their destination is outside the United States.
Subpart 713.1--General
Sec. 713.101 Definitions.
Accessorial costs means the cost of getting supplies or services to
their destination in the cooperating country (and the travel costs of
returning personnel to the U.S. or other point of hire). It does not
include costs such as allowances or differentials related to maintaining
personnel at post which are to be considered as part of the base costs
within the simplified acquisition threshold.
PART 714--SEALED BIDDING--Table of Contents
Subpart 714.4--Opening of Bids and Award of Contract
Sec.
714.406-3 Other mistakes disclosed before award.
714.406-4 Disclosure of mistakes after award.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Subpart 714.4--Opening of Bids and Award of Contract
Sec. 714.406-3 Other mistakes disclosed before award.
The Procurement Executive is the designated central authority to
make the determinations described in FAR 14.406-3.
[49 FR 13240, Apr. 3, 1984, as amended at 54 FR 46389, Nov. 3, 1989]
Sec. 714.406-4 Disclosure of mistakes after award.
The Procurement Executive is the designated central authority to
make the determinations described in FAR 14.406-4.
[49 FR 13240, Apr. 3, 1984]
PART 715--CONTRACTING BY NEGOTIATION--Table of Contents
Subpart 715.4--Solicitation and Receipt of Proposals and Quotations
Sec.
715.413-2 Alternate II.
Subpart 715.5--Unsolicited Proposals
715.502 Policy.
715.504 Advance guidance.
715.506 Agency procedures and point of contact.
715.506-1 Receipt, and initial review.
Subpart 715.6--Source Selection
715.604 Responsibilities.
715.604-70 Responsibilities of USAID evaluation committees.
715.605 [Reserved]
715.613-70 Title XII selection procedure--general.
715.613-71 Title XII selection procedure--collaborative assistance.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13240, Apr. 3, 1984, unless otherwise noted.
[[Page 21]]
Subpart 715.4--Solicitation and Receipt of Proposals and Quotations
Sec. 715.413-2 Alternate II.
(a) A contracting officer may, subject to the requirements of this
section and (FAR) 48 CFR 15.413-2, authorize release of proposals
outside the Government for evaluation:
(1) When an evaluation assistance contractor (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 an
USAID technical evaluation committee.
(b) Prior to releasing proposals outside the Government for
evaluation, the contracting officer shall obtain a signed and dated copy
of a certification and agreement from each NGE and EAC substantially as
follows:
Certification and Agreement for the Use and Disclosure of Proposals
With respect to proposals submitted in response to USAID
solicitation no. ________, the undersigned hereby agrees, and/or
certifies, to the following:
1. I will use the proposals, and all information therein other than
information otherwise available without restriction, for evaluation
purposes only. I will safeguard the proposals, and will not remove them
from the site at which the evaluation is conducted unless authorized by
the Contracting Officer. In addition, I will not disclose them, or any
information contained in them (other than information otherwise
available without restriction), except as directed or approved by the
Contracting Officer.
2. I will ensure that any authorized restrictive legends placed on
the proposals by prospective contractors or subcontractors, or USAID,
will be applied to any reproduction, or abstract of information, made by
me.
3. Upon completing the evaluation, I will return all copies of the
proposals, and any abstracts thereof, to the USAID office which
initially furnished them to me.
4. Unless authorized by the contracting officer in advance in
writing, I will not,--whether before, during, or after the evaluation--
contact any prospective contractor or subcontractor, or their employees,
representatives or agents, concerning any aspect of the proposal.
5. I have carefully reviewed my employment (past, present and under
consideration) and financial interests, as well as those of my household
family members. Based on this review, I certify, to the best of my
knowledge and belief as of the date indicated below, that I either (1)
have no actual or potential conflict of interest, personal or
organizational, that could diminish my capacity to perform an impartial
and objective evaluation of the proposals, or that might otherwise
result in an unfair competitive advantage to one or more prospective
contractors or subcontractors, or (2) have fully disclosed all such
conflicts to the contracting officer, and will comply fully, subject to
termination of my evaluation services, with any instructions by the
contracting officer to mitigate, avoid, or neutralize conflicts(s). I
understand that I will also be under a continuing obligation to
disclose, and act as instructed concerning, such conflicts discovered at
any time prior to the completion of the evaluation.
Signature:______________________________________________________________
Name Typed or Printed:__________________________________________________
Date:___________________________________________________________________
[60 FR 11912, Mar. 3, 1995, as amended at 62 FR 40467, July 29, 1997]
Subpart 715.5--Unsolicited Proposals
Sec. 715.502 Policy.
(a) USAID encourages the submission of unsolicited proposals which
contribute new ideas consistent with and contributing to the
accomplishment of the Agency's objectives. However, the requirements for
contractor resources are normally quite program specific, and thus
widely varied, and must be responsive to host country needs. Futher,
USAID's projects are usually designed in collaboration with the
cooperating country. These factors can limit both the need for, and
USAID's ability to use unsolicited proposals. Therefore, prospective
offerors are encouraged to contact USAID to determine the Agency's
technical and geographical requirements as related to the offeror's
interests before preparing and submitting a formal unsolicited proposal.
(b) USAID's basic policies and procedures regarding unsolicited
proposals are those established in FAR 15.5 and this subpart.
(c) For detailed information on unsolicited proposals, see 715.504;
for initial
[[Page 22]]
contact point within USAID, see 715.506.
Sec. 715.504 Advance guidance.
(a) Information concerning USAID's policies for unsolicited
proposals is available from the U.S. Agency for International
Development, Office of Procurement, Evaluation Division, Room 1600H, SA-
14, Washington, DC 20523-1435.
(b) The information available concerns:
(1) Contact points within USAID;
(2) Definitions;
(3) Characteristics of a suitable proposal;
(4) Determination of contractor responsibility;
(5) Organizational conflict of interest;
(6) Cost sharing; and
(7) Procedures for submission and evaluation of proposals.
[49 FR 13240, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 52
FR 21058, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 56 FR 67224, Dec. 30,
1991; 59 FR 33446, June 29, 1994]
Sec. 715.506 Agency procedures and point of contact.
Initial inquiries and subsequent unsolicited proposals should be
submitted to the address specified in section 715.504 of this subpart.
[56 FR 2699, Jan. 24, 1991]
Sec. 715.506-1 Receipt, and initial review.
USAID follows the policies and procedures established on FAR 15.506-
1 and 15.506-2.
Subpart 715.6--Source Selection
Sec. 715.604 Responsibilities.
Sec. 715.604-70 Responsibilities of USAID evaluation committees.
(a) Establishment and composition of USAID evaluation committees. A
technical evaluation committee shall be established for each proposed
procurement. In each case, the committee shall be composed of a chair
representing the cognizant technical office, a representative of the
contracting office (who shall be a non-voting member of the committee),
and representatives from other concerned offices as appropriate.
(b) Technical evaluation procedures. (1) The contracting officer
will receive all proposals and provide to the chair a listing and copies
of the technical proposals and instructions for conducting the
evaluation.
(2) The chair will promptly call a meeting of the committee to
evaluate the proposals received. The evaluation shall be based on the
evaluation factors set forth in the solicitation document.
(3) The chair shall prepare and provide to the contracting officer
written documentation summarizing the results of the evaluation of each
proposal, including an assessment of past performance information in
accordance with FAR 15.608(a)(2) and section 752.209-70. The
documentation shall include narrative justification of the evaluation
results and shall reflect the requirements of FAR 15.608(a)(3).
(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]
Sec. 715.605 [Reserved]
Sec. 715.613 Alternative source selection procedures.
Sec. 715.613-70 Title XII selection procedure--general.
(a) General. The Deputy Administrator has determined, as provided in
AIDAR 706.302-70(b)(3)(ii) that use of this Title XII source selection
procedure is necessary so as not to impair or affect USAID's ability to
administer Title XII of the Foreign Assistance Act. This determination
is reflected in AIDAR 706.302-70(b)(4). This constitutes authority for
other than full and open
[[Page 23]]
competition when selecting Title XII institutions to perform Title XII
projects.
(b) Scope of subsection. This subsection prescribes policies and
procedures for the selection of institutions eligible under Title XII of
the Foreign Assistance Act of 1961, as amended, to perform activities
authorized under Title XII.
(c) Applicability. The provisions of this subsection are applicable
when the project office certifies that the activity is authorized under
Title XII, and determines that use of the Title XII selection procedure
is appropriate.
(d) Solicitation, evaluation, and selection procedures. (1)
Competition shall be sought among eligible Title XII institutions to the
maximum practicable extent; this requirement shall be deemed satisfied
when a contractor is selected under the procedures of this subsection.
(2) The project office shall--
(i) Prepare selection criteria for evaluation of eligible
institutions for use in preparing the source list, determining
predominantly qualified sources, and selecting the contractor;
(ii) Prepare an initial list of eligible institutions considered
qualified to perform the proposed activity;
(iii) Provide a statement describing qualifications and areas of
expertise considered essential, a statement of work, estimate of
personnel requirements, special requirements (logistic support,
government furnished property, and so forth) for the contracting
officer's use in preparing the request for technical proposal (RFTP).
(iv) Send a memorandum incorporating the certification and
determination required by paragraph (c) of this section, together with
the information required by paragraphs (d)(2) (i) through (iii) of this
section, with the ``Action'' copy of the PIO/T to the contracting
officer, requesting him/her to prepare and distribute the RFTP.
(3) Upon receipt and acceptance of the project officer's request,
the contracting officer shall prepare the RFTP. The RFTP shall contain
sufficient information to enable an offeror to submit a responsive and
complete technical proposal. This includes a definitive statement of
work, an estimate of the personnel required, and special provisions
(such as logistic support, government furnished equipment, and so
forth), a proposed contract format, and evaluation criteria. No cost or
pricing data will be requested or required by the RFTP. The RFTP will be
distributed to the eligible institutions recommended by the project
office. The RFTP will be synopsized, as required by FAR 5.201, and will
normally allow a minimum of 60 days for preparation and submission of a
proposal.
(4) Upon receipt of responses to the RFTP by the contracting
officer, an evaluation committee will be established as provided for in
715.608 of this subpart.
(5) The evaluation committee will evaluate all proposals in
accordance with the criteria set forth in the RFTP, and will prepare a
selection memorandum which shall:
(i) State the evaluation criteria;
(ii) List all of the eligible institutions whose proposals were
reviewed;
(iii) Report on the ranking and rationale therefor for all
proposals;
(iv) Indicate the eligible institution or institutions considered
best qualified.
(6) The evaluation committee will submit the selection memorandum to
the contracting officer for review and approval.
(7) The contracting officer will either approve the selection
memorandum, or return it to the evaluation committee for reconsideration
for specified reasons.
(8) If the selection memorandum is approved, the contracting officer
shall obtain cost, pricing, and other necessary data from the
recommended institution or institutions and shall conduct negotiations.
If a satisfactory contract cannot be obtained, the contracting officer
will so advise the evaluation committee. The evaluation committee may
then recommend an alternate institution or institutions.
[52 FR 6158, Mar. 2, 1987, as amended at 54 FR 28069, July 5, 1989; 55
FR 6802, Feb. 27, 1990]
Sec. 715.613-71 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
[[Page 24]]
selecting Title XII institutions to perform Title XII activities.
(b) Scope of subsection. This subsection prescribes policies and
procedures for the selection of institutions eligible under Title XII of
the Foreign Assistance Act of 1961, as amended, to perform activities
authorized under Title XII, where USAID has determined, in accordance
with paragraph (c) of this subsection, that use of the collaborative
assistance contracting system is appropriate. See AIDR Appendix F (of
this chapter)--Use of Collaborative Assistance Method for Title XII
Activities for a more complete definition and discussion of the
collaborative assistance method.
(c) Determinations. The following findings and determinations must
be made prior to initiating any contract actions under the collaborative
assistance method:
(1) The cognizant technical office makes a preliminary finding that
an activity:
(i) Is authorized by Title XII; and
(ii) Should be classed as collaborative assistance because a
continuing collaborative relationship between USAID, the host country,
and the contractor is required from design through completion of the
activity, and USAID, host country, and contractor participation in a
continuing review and evaluation of the activity is essential for its
proper execution.
(2) Based upon this preliminary finding, the cognizant technical
office shall establish an evaluation panel consisting of a
representative of the cognizant technical office as chairman, a
representative of the contracting officer, and any other representatives
considered appropriate by the chairman to review the proposed activity
for its appropriateness under the collaborative assistance method.
(3) If supported by the panel's findings, the chairman will make a
formal written determination that the collaborative assistance method is
the appropriate contracting method for the Title XII activity in
question.
(d) Evaluation and selection. (1) Competition shall be sought among
eligible Title XII institutions to the maximum practicable extent; this
requirement shall be deemed satisfied when a contractor is selected
under the procedures of this section.
(2) The evaluation panel shall:
(i) Prepare evaluation and selection criteria;
(ii) Prepare an initial source list of eligible institutions
considered qualified to perform the proposed project; and
(iii) Evaluate the list, using the evaluation criteria previously
determined, for the purpose of making a written determination of the
sources considered most capable of performing the project.
(3) The chairman of the evaluation panel will prepare a memorandum
requesting the contracting officer to prepare a request for expressions
of interest from qualified sources and setting forth:
(i) The formal determinations required by paragraph (c) of this
section;
(ii) The evaluation criteria which have been determined; and
(iii) The recommended source list and the rationale therefor.
(4) The contracting officer will prepare a request for an expression
of interest (REI), containing sufficient information to permit an
offeror to determine its interest in the project, and to discuss the
project with USAID representatives, if appropriate. The REI should
include a concise statement of the purpose of the activity, any special
conditions or qualifications considered important, a brief description
of the selection procedure and evaluation criteria which will be used,
the proposed contract format, and any other information considered
appropriate. The REI will be issued to the sources recommended by the
panel, and to others, as appropriate; it will be synopsized, as required
by FAR 5.201, and it will normally allow a minimum of 60 days for
preparation of an expression of interest. Guidelines for preparation of
expressions of interest are contained in attachment 1 to AIDAR appendix
F.
(5) The contracting officer will transmit all expressions of
interest to the evaluation panel for evaluation and selection
recommendation. The panel 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
[[Page 25]]
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]
PART 716--TYPES OF CONTRACTS--Table of Contents
Subpart 716.3--Cost Reimbursement Contracts
Sec.
716.303 Cost-sharing contracts.
716.306 Cost-plus-fixed-fee contracts.
Subpart 716.5 [Reserved]
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381)
as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Subpart 716.3--Cost Reimbursement Contracts
Sec. 716.303 Cost-sharing contracts.
(a)-(b) [Reserved]
(c) Limitations. In addition to the limitations specified in FAR
16.301-3, prior approval of the USAID Procurement Executive (see
702.170-13) is required in order to use a cost-sharing contract with an
educational institution.
[54 FR 46390, Nov. 3, 1989]
Sec. 716.306 Cost-plus-fixed-fee contracts.
(a)-(b) [Reserved]
(c) The Contracting Officer is authorized to sign the D&F specified
in FAR 16.306(c)(2).
[58 FR 8702, Feb. 17, 1993]
Subpart 716.5 [Reserved]
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
Sec. 717.700 General.
Section 606(c) of the Foreign Assistance Act bars procurement by the
Government of drug and pharmaceutical products manufactured outside the
United States if their manufacture involves the use of or is covered by
an unexpired U.S. patent which has not been held invalid by an
unappealed or unappealable court decision unless the manufacture is
expressly authorized by the patent owner. Applicable policies and
procedures are set forth in USAID Automated Directive System Chapter
312.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]
[[Page 26]]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 719--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS--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 (SDB).
719.271-3 USAID contracting officers.
719.271-4 Heads of contracting activities.
719.271-5 Cognizant technical officers.
719.271-6 Small business screening procedure.
719.271-7 Reports on procurement actions that are exempted from
screening.
719.272 Small disadvantaged business policies.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13243, Apr. 3, 1984, unless otherwise noted.
Subpart 719.2--Policies
Sec. 719.270 Small business policies.
(a) In keeping with section 602 of the Foreign Assistance Act of
1961 (22 U.S.C. 2352), as amended, USAID shall, insofar as practicable
and to the maximum extent consistent with the accomplishment of the
purposes of said Act, assist United States small business to participate
equitably in the furnishing of supplies and services for Foreign
Assistance activities.
(b) It is the policy of USAID to:
(1) Fully endorse and carry out the Government's small business
program for placing a fair proportion of its purchases and contracts for
supplies, construction (including maintenance and repair), research and
development, and services (including personal, professional, and
technical services) with small business, including minority small
business concerns; and
(2) Increase their participation in USAID procurement.
(c) In furtherance of this policy:
(1) Cognizant technical officers shall make positive efforts (see
719.271-5) to identify potentially qualified small and minority business
firms during precontract development of activities and shall, with the
responsible contracting officers, assure that such firms are given full
opportunity to participate equitably;
(2) Small business set-asides shall be made for all contracts to be
executed in USAID/Washington which qualify for small business set-aside
action under Part 19 of the FAR; and
(3) Consideration shall be given in appropriate cases to the award
of the contract to the Small Business Administration for subcontracting
to small business firms pursuant to section 8(a) of the Small Business
Act (15 U.S.C. 637(a)).
(d) This program shall be implemented by all USAID/Washington
contracting activities in order to attain these policy objectives. In
accordance with 719.271, all USAID/Washington direct-procurement
requirements which exceed the simplified acquisition threshold shall be
screened for small business opportunities by the Office of Small and
Disadvantaged Business Utilization (SDB) except those exempted by
719.271-6(a).
(e) Where practicable and desirable, small business and minority
business enterprise award goals will be established for the respective
USAID/Washington procuring activities to provide incentive for
contracting personnel to increase awards to small firms. The goals will
be set by SDB after consultation with the respective head of the
contracting activity (see subsection 702.170-10).
(f) In the event of a disagreement between SDB and the contracting
officer concerning: (1) A recommended set-aside, or (2) a request for
modification or withdrawal of a class or individual set-aside, complete
documentation of the case including the reasons for disagreement shall
be transmitted within five working days to the head of the contracting
activity (see 719.271-6(e)) for a decision. Procurement action shall be
suspended pending a decision.
[[Page 27]]
(g) The above suspension shall not apply where the contracting
officer:
(1) Certifies in writing, with supporting information, that in order
to protect the public interest award must be made without delay;
(2) Promptly provides a copy of said certification to SDB; and
(3) Includes a copy of the certification in the contract file.
(h) SDB shall be the Small Business Advisor and Minority Business
Procurement Policy Manager for all USAID/Washington procuring
activities.
(i) The details on the Agency's direction and operation of the small
business program are set forth in 719.271.
(j) No decision rendered, or action taken, under the coverage set
forth in 719.271 shall preclude the Small Business Administration from
appealing directly to the USAID Administrator as provided for in part 19
of the FAR.
[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 56
FR 67224, Dec. 30, 1991; 61 FR 39092, July 26, 1996; 62 FR 40468, July
29, 1997]
Sec. 719.271 Agency program direction and operation.
Sec. 719.271-1 General.
The purpose of this section is to prescribe responsibilities and
procedures for carrying out the small business program policy set forth
in 219.270, and in part 19 of the FAR. Small Business concerns are
defined in FAR subpart 19.1; in addition, small business concerns are
concerns organized for profit. Nonprofit organizations are not
considered small business concerns. Small disadvantaged business
enterprises are defined in FAR subpart 19.1. Small disadvantaged
business enterprises are included in the term ``small business'' when
used in this subpart; specific reference to disadvantaged business
enterprises is for added emphasis.
Sec. 719.271-2 The USAID Office of Small and Disadvantaged Business Utilization (SDB).
(a) SDB is responsible for administering, implementing, and
coordinating the Agency's small business (including minority business
enterprises) program.
(b) SDB, headed by the Director SDB, who also serves as the Minority
Business Procurement Manager, shall be specifically responsible for:
(1) Developing policies, plans, and procedures for a coordinated
Agency-wide small business and minority business enterprise procurement
program;
(2) Advising and consulting regularly with USAID/Washington
procuring activities on all phases of their small business program,
including, where practicable and desirable, the establishment of small
business and minority business enterprise award goals;
(3) Collaborating with officials of the Small Business
Administration (SBA), other Government Agencies, and private
organizations on matters affecting the Agency's small business program;
(4) Developing and maintaining an USAID Consultant Registry
Information System (ACRIS) of bidders/offerors (annotated to identify
small business and minority business enterprise firms) capable of
furnishing services for use by the USAID contracting activities;
(5) Cooperating with contracting officers in administering the
performance of contractors subject to the Small Business and Minority
Business Enterprises Subcontracting Program clauses;
(6) Developing a plan of operation designed to increase the share of
contracts awarded to small business concerns, including small minority
business enterprises;
(7) Establishing small business class set-aside for types and
classes of items of services where appropriate;
(8) Reviewing each procurement requisition to make certain
individual or class set-asides are initiated on all suitable USAID/
Washington proposed contract actions in excess of the simplified
acquisition threshold which are subject to screening (see 719.271-6);
(9) Maintaining a program designed to:
(i) Locate capable small business sources for current and future
procurements through GSA and other methods;
(ii) Utilize every source available to determine if an item is
obtainable from small business; and
[[Page 28]]
(iii) Develop adequate small business competition on all appropriate
procurements;
(10) Taking action to assure that unnecessary qualifications,
restrictive specifications, or other features (such as inadequate
procurement lead time) of the programming or procurement process, which
may prevent small business participation in the competitive process, are
modified to permit such participation where an adequate product or
service can be obtained;
(11) Recommending that portions of large planned procurements or
suitable components of end items or services be purchased separately so
small firms may compete;
(12) On proposed non-competitive procurements, recommending to the
contracting officer that the procurement be made competitive when, in
the opinion of SDB, there are small business or minority business
enterprises believed competent to furnish the required goods or
services, and supplying the contracting officer a list of such firms;
(13) Assisting small business concerns with individual problems;
(14) Promoting increased awareness by the technical staff of the
availability of small business firms;
(15) Making available to GSA copies of solicitations when so
requested;
(16) Counseling non-responsive or non-responsible small business
bidders/offerors to help them participate more effectively in future
solicitations; and
(17) Examining bidders lists to make certain small business firms
are appropriately identified and adequately represented for both
negotiated and advertised procurements.
[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61
FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997]
Sec. 719.271-3 USAID contracting officers.
With respect to procurement activities within their jurisidiction,
contracting officers are responsible for:
(a) Being thoroughly familiar with part 19 of the FAR and this
section dealing with the small business program;
(b) Screening abstracts of bids and other award data to determine
set-aside potential for future procurements;
(c) Assuring that small business concerns and minority business
enterprises are appropriately identified on source lists and abstracts
of bids or proposals by an ``S'' and ``M'', respectively, or other
appropriate symbol;
(d) Reviewing types and classes of items and services to determine
where small business set-asides can be applied;
(e) Recommending that portions of large planned procurements of
suitable components of end items or services be purchased separately so
small firms may compete;
(f) Making a unilateral determination for total or partial small
business set-asides in accordance with Subpart 19.5 of the Federal
Acquisition Regulations;
(g) Submitting proposed procurement actions for USAID/Washington
contracts to SDB for screening (see 719.271-6);
(h) Taking action to assure that unnecessary qualifications,
restrictive specifications or other features (such as inadequate
procurement lead time) of the programming or procurement process which
may prevent small business participation in the competitive process are
modified to permit such participation where an adequate product or
service can be obtained;
(i) Prior to rendering a final decision on a proposed non-
competitive procurement action, and as part of his/her findings and
determinations, the contracting officer shall consider the
recommendations, if any, of SDB together with the latter's list of
additional sources;
(j) As appropriate, referring small business concerns, including
small minority business enterprises, to SDB for information and advice;
(k) Promoting increased awareness by the technical staff of the
availability of small business concerns;
(l) Making available to SDB copies of solicitations when requested;
(m) Assisting SDB in counseling non-responsive or non-responsible
small business bidders/offerors to help them to participate more
effectively in future solicitations; and
[[Page 29]]
(n) Including the Small Business and Minority Business Enterprises
Subcontracting Program clauses in all contracts where required by part
19 of the FAR.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996; 62
FR 40468, July 29, 1997]
Sec. 719.271-4 Heads of contracting activities.
In order for the agency small business program to be effective, the
active support of top management is required. The heads of the
contracting activities shall be responsible for:
(a) Rendering decisions in cases resulting from non-acceptances by
their contracting officers of set-aside recommendations made by SDB;
(b) Consulting with SDB in establishing small business and minority
business enterprise award goals, where practicable and desirable; and
(c) Advising cognizant technical officers of their responsibilities
as set forth in 719.271-5.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]
Sec. 719.271-5 Cognizant technical officers.
Since the procurement process starts with the establishment of a
requirement, the actions of the cognizant technical officers can affect
the opportunity of small business to participate equitably; therefore,
each cognizant technical officer shall, during the formulation of
activities which will require contractual implementation:
(a) Consult with SDB on the availability and capabilities of small
business firms to permit making a tentative set-aside determination
where appropriate; and
(b) Provide sufficient procurement lead time in the activity
implementation schedule to allow potential small business participation.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]
Sec. 719.271-6 Small business screening procedure.
(a) General. All USAID/Washington proposed contract actions in
excess of the simplified acquisition threshold shall be screened by SDB,
with the exception of:
(1) Class set-asides and those unilaterally set-aside by contracting
officers (719.271-3(f));
(2) Those where the contracting officer certifies in writing that
the public exigency will not permit the delay incident to screening
(719.271-7(b));
(3) ``Institution building'' contracts (contracts for development of
a counterpart capability in the host country) with educational or
nonprofit institutions; or collaborative assistance contracts pursuant
to AIDAR 715.613-71.
(4) Those involving the payment of tuition and fees for participant
training at academic institutions; and
(5) Personal services contract requirements (see 719.270).
(b) Preparation of Form USAID 1410-14 (the Small Business/Minority
Business Enterprise Procurement Review Form). (1) The contracting
officer shall prepare the subject form in an original and 3 copies and
forward the original and 2 copies to SDB within one working day of
receipt by the contracting activity of a procurement requisition.
(2) The contracting officer will attach to his/her transmittal a
complete copy of the procurement request and a copy of the recommended
source list as furnished by the technical office and supplemented by
him/her.
(3) The contracting officer shall complete blocks 2, 3, 4, 5, 9, and
10 (when appropriate) prior to submittal to SDB.
(c) Screening of Form USAID 1410-14 by SDB. (1) SDB will screen the
contracting officer's recommendations on set-aside potential, small
business subcontracting opportunities, and section 8(a) subcontracting,
and furnish him/her with either a written concurrence in his/her
recommendations or written counter-recommendations on the original and
duplicate copy within five working days from receipt of the form from
the contracting officer.
(2) SDB will complete Blocks 1, 6, 7, 8, 11, and 12 (when
appropriate) prior to returning the screened form to the contracting
officer.
(d) Concurrence or rejection procedure. (1) The contracting officer
shall complete Block 13 upon receipt of the original and duplicate copy
of the screened form from SDB.
[[Page 30]]
(2) If the contracting officer rejects the SDB counter-
recommendation, he/she shall return the original and duplicate forms
with his/her written reasons for rejection to SDB within two working
days.
(3) Upon receipt of the contracting officer's rejection, SDB may:
(i) accept, or (ii) appeal, the rejection. In the case of acceptance of
the contracting officer's rejection, SDB shall annotate Block 14 when it
renders a decision and return the original form to the contracting
officer within two working days.
(e) Appeal procedure. (1) When informal efforts fail to resolve the
set-aside disagreement between the contracting officer and SDB, the
latter official may appeal the contracting officer's decision to the
head of the contracting activity. Such an appeal will be made within
five working days after receipt of the contracting officer's rejection.
(2) In the case of an appeal, SDB will send the original and
duplicate form, with the appeal noted in Block 14, directly to the head
of the contracting activity with its written reasons for appealing. The
contracting officer will be notified of SDB's appeal by means of a copy
of the written reasons for appealing.
(3) The head of the contracting activity shall render a decision on
the appeal (complete Block 15) within three working days after receipt
of same and return the original to SDB and the duplicate to the
contracting officer.
[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61
FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997]
Sec. 719.271-7 Reports on procurement actions that are exempted from screening.
(a) Unilateral and class set-asides. The contracting officer shall
prepare Form USAID 1410-14 as stated in 719.271-6, but forward only the
duplicate copy with the documentation required by Block 5 of the form to
SDB. The original will be filed in the contract file.
(1) If, upon review of the material submitted under 719.271-7(a)
above, SDB concludes that it would be practicable to accomplish all or a
portion of the procurement involved under section 8(a) subcontracting,
it shall so advise the contracting officer in writing within five days
after receipt of such material.
(2) Such advice shall be considered a counter-recommendation and
shall be processed in accordance with 719.271-6 (d) and (e).
(b) Public exigency exemption. The contracting officer shall prepare
Form USAID 1410-14 as stated in 719.271-6, but forward only the
duplicate copy with the documentation required by Block 5 of the form to
SDB. In addition to the documentation called for in 719.271-6, the
contracting officer shall furnish a copy of his/her written
determination exempting the procurement from screening. The
determination shall cite the pertinent facts which led to his/her
decision. This exemption is not intended to be used as substitute for
good procurement planning and lead-time; SDB will report abuses of this
exemption to the head of the contracting activity for appropriate action
in accordance with 719.271-4(c).
(c) Institution building contract (IBC) exemption. The contracting
officer shall prepare Form USAID 1410-14 as stated in 719.271-6, but
forward only the duplicate copy with the documentation required by Block
5 of the form to SDB.
(d) Personal services contract exemption. Preparation of Form USAID
1410-14 is not required for personal services contracts.
Sec. 719.272 Small disadvantaged business policies.
In addition to the requirements in FAR part 19, part 726 provides
for contracting and subcontracting with small disadvantaged businesses
and other disadvantaged enterprises based on provisions of the foreign
assistance appropriations acts.
[58 FR 8702, Feb. 17, 1993]
PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION--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]
[[Page 31]]
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.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13246, Apr. 3, 1984, unless otherwise noted.
Subpart 722.1--Basic Labor Policies
Sec. 722.103 Overtime.
Sec. 722.103-1 Definitions.
Compensatory time off means leave equal to overtime worked, which,
unless otherwise authorized in a contract or approved by a contracting
officer, must be taken not later than the end of the calendar month
following that in which the overtime is worked.
Sec. 722.103-2 Policy.
(a) Most contracts covered by this regulation call for the
performance of professional or technical services overseas on a cost-
reimbursement basis. The compensation for employees performing such
services is normally fixed on a monthly or annual basis, and the
contracts usually state minimum work week hours. It is not expected that
these employees will receive additional pay, overtime or shift premiums,
or compensatory time off.
(b) When the contracting officer determines it is in the best
interests of the Government, specific provision may be made in contracts
to permit such benefits for non-technical and non-professional employees
serving overseas, subject to approvals to be required in the contract.
[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]
Sec. 722.103-3 [Reserved]
Sec. 722.103-4 Approvals.
The contracting officer may make the determinations referred to in
FAR 22.103-4.
[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]
Sec. 722.170 Employment of third country nationals (TCN's) and cooperating country nationals (CCN's).
(a) General. It is USAID policy that cooperating country nationals
(CCN's) and third country nationals (TCN's), who are hired abroad for
work in a cooperating country under USAID-direct contracts, generally be
extended the same benefits, and be subject to the same restrictions as
TCN's and CCN's employed as direct hires by the USAID Mission.
Exceptions to this policy may be granted either by the Mission Director
or the Assistant Administrator having program responsibility for the
project. (TCN's and CCN's who are hired to work in the United States
shall be extended benefits and subject to restrictions on the same basis
as U.S. citizens who work in the United States.)
(b) Compensation. Compensation, including merit or promotion
increases paid to TCN's and CCN's may not, without the approval of the
Mission Director or the Assistant Administrator having program
responsibility for the project, exceed the prevailing compensation paid
to personnel performing comparable work in the cooperating country as
determined by the USAID Mission. Unless otherwise authorized by the
Mission Director or the Assistant Administrator having program
responsibility for the project, the compensation of such TCN and CCN
employees shall be paid in the currency of the cooperating country.
(c) Allowances and differentials. TCN's and CCN's, hired abroad for
work in a cooperating country, are not eligible for allowances or
differentials under
[[Page 32]]
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.
Subpart 722.8--Equal Employment Opportunity
Sec. 722.805-70 Procedures.
The following procedures apply, as appropriate, for all contracts:
(a) General. (1) When all necessary representations and
certifications (Reps and Certs) as required by FAR 22.810 are received,
the contracting officer must review them to determine that they have
been completed and signed as required, and are acceptable. Acceptable
Reps and Certs are the first step in the EEO clearance process.
(2) If the Reps and Certs are not deemed acceptable on technical
grounds (e.g. incomplete, not signed, etc.) the contracting officer must
decide if they can be made acceptable within a reasonable period by
corrective action on the part of the offeror, or if the fault is such
that it renders the offer nonresponsive. In the first case, necessary
corrective action should be taken; in the second case, negotiations with
the non-responsive offeror will be terminated. If the Reps and Certs
raise questions concerning EEO compliance, and this would be the basis
for finding the offeror non-responsive, the matter must be referred to
the cognizant regional Department of Labor Office of Federal Contract
Compliance Programs (OFCCP) regardless of the estimated value of the
contract; only OFCCP may make a determination of non-compliance with EEO
requirements.
(b) Contracts for $1,000,000 or more. (1) In addition to the
requirement for obtaining acceptable Reps and Certs in paragraph (a) of
this section, contracts and modifications with an estimated value of
$1,000,000 or more (including any modification which increases the total
estimated value of a contract to $1,000,000 or more, or any modification
which is itself $1,000,000 or more), must, in accordance with FAR 22.8,
have OFCCP verification of EEO compliance before award. The contracting
officer shall follow the procedures for obtaining EEO compliance in FAR
22.805(a). In requesting a preaward review from OFCCP, the contracting
officer may need to provide the following information in addition to the
items listed in FAR 22.805(a)(4):
(i) Name, title, address, and telephone number of a contact 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 organizations in joint venture (if
any).
[[Page 33]]
(iv) Type of procurement (new contract--RFP or IFB, amendment, etc.)
and estimated dollar amount, and term.
(v) Copy of approved Reps and Certs.
(2) If the initial contact with OFCCP is by telephone, the
contracting officer and OFCCP should mutually determine what information
is to be included in the written verification request. In the event that
OFCCP reports that the offeror is not in compliance, negotiations with
the offeror shall be terminated.
(c) Contracts over $10,000, but less than $1,000,000. Contracts and
amendments within this range do not require formal verification by
OFCCP. The method used to verify compliance is at the discretion of the
contracting officer. The contracting officer may rely on the
documentation submitted by the offeror (the Reps and Certs--see 722.805-
70(a)), unless he or she is aware of some reason to doubt the
documentation submitted. In case of doubt, then an informal check with
OFCCP should be made. In the event that evidence of non-compliance is
developed, the contracting officer must contact OFCCP for confirmation
of EEO status; only OFCCP may determine non-compliance with EEO
requirements. If OFCCP confirms non-compliance, negotiations with the
offeror or contractor shall be terminated.
(d) Documentation for the contract file. (1) Every contract file
must contain completed 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
722.805-70(a)), the file must show what changes were required and
certify that the changes were made.
(2) For contracts or amendments of $1,000,000 or more, the file must
contain:
(i) A record of the initial contact with OFCCP, specifying the name,
address, and telephone number of the person contacted, a summary of the
information presented, and the advice given by OFCCP;
(ii) A copy of the written follow-up request for EEO compliance
verification to OFCCP; and
(iii) A copy of the compliance verification from OFCCP.
(3) For contracts or amendments over $10,000 but less than
$1,000,000, 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 722.805-
70(c)). This statement may be in a separate memorandum to the file or in
the memorandum of negotiation.
(4) Documentation in the event of non-compliance. In the event that
OFCCP determines that a prospective contractor is not in compliance, a
copy of OFCCP's written determination, and a summary of resultant action
taken (termination of negotiations, notification of offeror and
cognizant technical officer, negotiation with next offeror in
competitive range, resolicitation, etc.) will be placed in the contract
file for any contract which may result, together with other records
related to unsuccessful offers, and retained for at least six months
following award.
[61 FR 39092, July 26, 1996; 61 FR 42939, Aug. 19, 1996, as amended at
62 FR 40468, July 29, 1997]]
PART 724--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION--Table of Contents
Subpart 724.2--Freedom of Information Act
Sec.
724.202 Policy.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.
Subpart 724.2--Freedom of Information Act
Sec. 724.202 Policy.
The U.S. Agency for International Development's policies concerning
implementation of the Freedom of Information Act are codified in 22 CFR
part 212 (USAID Regulation 12).
[[Page 34]]
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 Contractor employees.
725.704 Source, origin and nationality requirements--Contract clause.
725.705 Local procurement--contract clause.
725.706 Geographic source waivers.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.
Subpart 725.1--Buy American Act--Supplies
Sec. 725.170 Exceptions for Foreign Assistance Act functions.
In addition to the exception stated in FAR 25.102 for purchases for
use outside the United States, there is an exception for economic
assistance functions performed under authority of the Foreign Assistance
Act. This exception is stated in Executive Order 11223, dated May 12,
1965 (30 FR 6635). U.S. procurement restrictions are applied by USAID,
however, as shown elsewhere in this part. These restrictions are
generally tighter than the Buy American Act. As a general rule, the
tighter USAID restrictions will be used. In the case of certain
procurements for use within the United States, the Buy American
provision may be used instead in the interest of uniformity among
Federal Agencies procuring for domestic use.
Subpart 725.4--Trade Agreements
Sec. 725.403 Exceptions.
FAR 25.4 establishes procedures for purchases under the Trade
Agreements Act of 1979 (including GATT's Agreement on Government
Procurement) and the North American Free Trade Agreement (NAFTA). Under
both such agreements, USAID's contracts for the purpose of providing
foreign assistance are not subject to the procedures set forth in FAR
25.4. In contrast, USAID's operating expense-type administrative
purchases (i.e., purchases for the direct benefit and use of USAID) are
subject to the procedures in FAR 25.4, unless otherwise exempted by one
of the exemptions specified in FAR 25.4.
[61 FR 39093, July 26, 1996]
Subpart 725.70--Source, Origin, and Nationality
Sec. 725.701 General.
USAID's source, origin and nationality requirements for program-
funded contracts and subcontracts are established in 22 CFR part 228,
Rules on Source, Origin and nationality for Commodities and Services
Financed by USAID. These policies as they apply to subcontracts and
purchases under USAID program-funded contracts have been incorporated
into the contract clauses referenced in 725.704 and 725.705 of this
subpart.
[62 FR 40468, July 29, 1997]
Sec. 725.702 Designation of authorized geographic code.
(a) The authorized geographic code or codes for an USAID contract
shall be specified in the Schedule of each contract and shown on its
cover page. If no geographic code is specified, the authorized code will
be deemed to be Geographic Code 000, the U.S.
(b) Individual country and geographic codes are defined in the
Agency Geographic Code Book.
[49 FR 13248, Apr. 3, 1984, as amended at 61 FR 39093, July 26, 1996]
[[Page 35]]
Sec. 725.703 Contractor employees.
(a) Except as specifically provided in paragraph (b) of this
section, there are no nationality restrictions on employees or
consultants of either contractors or subcontractors providing services
under an USAID-financed contract, except that they must be citizens of a
Geographic Code 935 country, or non-U.S. citizens lawfully admitted for
permanent residence in the U.S.
(b) For USAID-financed construction projects where the contract is
awarded to a U.S. firm, at least half of the supervisors, and any other
specified key personnel, working at the project site must be U.S.
citizens or permanent legal residents of the United States. Exceptions
may be authorized by the Mission Director in writing if special
circumstances make compliance impractical.
[51 FR 34985, Oct. 1, 1986]
Sec. 725.704 Source, origin and nationality requirements--Contract clause.
The clause in 752.225-70 is required in all USAID program-funded
contracts under which the contractor may procure goods or services.
[62 FR 40468, July 29, 1997]
Sec. 725.705 Local procurement--contract clause.
Local procurement may be undertaken in accordance with the
provisions of 22 CFR 228.40. All contracts involving performance
overseas shall contain the clause in 752.225-71.
[62 FR 40468, July 29, 1997]
Sec. 725.706 Geographic source waivers.
(a) Authority to waive source, origin, nationality, and
transportation services requirements is set forth in chapters 103 and
310 of the ADS.
(b) The contracting officer shall insert the authorized geographic
code based on an approved geographic source waiver in the Schedule of
the contract as provided for in 725.702. In addition, the contracting
officer shall place a copy of any approved geographic source waiver in
the official contract file.
[49 FR 13248, Apr. 3, 1984, as amended at 52 FR 4144, Feb. 10, 1987; 61
FR 39093, July 26, 1996; 62 FR 40468, July 29, 1997]
PART 726--OTHER SOCIOECONOMIC PROGRAMS--Table of Contents
Subpart 726.70--Disadvantaged Enterprises Program
Sec.
726.7001 Scope of subpart.
726.7002 Definitions.
726.7003 Policy.
726.7004 Determination to use other than full and open competition.
726.7005 Exceptions.
726.7006 Determination of status as a disadvantaged enterprise.
726.7007 Requirement for subcontracting with disadvantaged enterprises.
726.7008 Limitations on subcontracting.
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
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--Disadvantaged Enterprises Program
Sec. 726.7001 Scope of subpart.
This subpart supplements FAR part 19 and implements the provisions
of certain foreign assistance appropriations acts (see section 706.302-
71(a)) concerning disadvantaged enterprises which require, in general,
that not less than ten percent of the aggregate amount made available
for development assistance and for assistance for famine recovery and
development in Africa shall be made available to disadvantaged
enterprises. See part 705 and part 706 for additional provisions on
publicizing contract actions and
[[Page 36]]
using other than full and open competition.
[58 FR 8702, Feb. 17, 1993. Redesignated and amended at 61 FR 39093,
July 26, 1996; 62 FR 40468, July 29, 1997]
Sec. 726.7002 Definitions.
(a) Controlled by socially and economically disadvantaged
individuals means management and daily business are controlled by one or
more such individuals.
(b) Disadvantaged enterprises means U.S. organizations or
individuals that are:
(1) Business concerns (as defined in FAR 19.001) owned and
controlled by socially and economically disadvantaged individuals;
(2) Institutions designated by the Secretary of Education, pursuant
to 34 CFR 608.2, as historically black colleges and universities;
(3) Colleges or universities having a student body in which more
than 40 percent of the students are Hispanic American; or
(4) Private voluntary organizations which are controlled by
individuals who are socially and economically disadvantaged.
(c) Economically disadvantaged individuals has the same meaning as
in FAR 19.001, except that the term includes women.
(d) Owned by socially and economically disadvantaged individuals
means at least 51 percent owned by one or more individuals who are both
socially and economically disadvantaged, or a publicly owned business
having at least 51 percent of its stock owned by one or more socially
and economically disadvantaged individuals.
(e) Small disadvantaged business means a small business concern (as
defined in FAR 19.001) that is at least 51 percent unconditionally owned
by one or more individuals who are both socially and economically
disadvantaged (as defined in this section), or a publicly owned business
that has at least 51 percent of its stock unconditionally owned by one
or more socially and economically disadvantaged individuals (as defined
in this section) and that has its management and daily business
controlled by one or more such individuals.
(f) Socially disadvantaged individuals has the same meaning as in
FAR 19.001, except that the term includes women.
[56 FR 27209, June 13, 1991, as amended at 56 FR 52212, Oct. 18, 1991.
Redesignated at 61 FR 39093, July 26, 1996]
Sec. 726.7003 Policy.
USAID promotes participation in its projects by disadvantaged
enterprises. In order to achieve the goals in foreign assistance
appropriation acts, contracts which are to be funded from amounts made
available from the appropriations cited in section 706.302-71(a)(1) are
subject to the following policies:
(a) Authority in section 8(a) of the Small Business Act (15 U.S.C.
637(a)) shall be used to the maximum practicable extent;
(b) Other than full and open competition in contracting with certain
disadvantaged enterprises shall be authorized in accordance with
706.302-71;
(c) Subcontracting with disadvantaged enterprises shall be carried
out in accordance with section 726.7007;
(d) In accordance with 705.207, the Office of Small and
Disadvantaged Business Utilization (OSDBU) shall be notified at least
seven business days before publicizing a proposed procurement in excess
of $100,000.
[56 FR 27209, June 13, 1991. Redesignated at 61 FR 39093, July 26, 1996,
as amended at 62 FR 40468, July 29, 1997]
Sec. 726.7004 Determination to use other than full and open competition.
The determinations required in order to use the authority under
706.302-71 for other than full and open competition shall be made by the
contracting officer in consultation with the Director of OSDBU. In the
event of a disagreement between the contracting officer and the Director
of OSDBU, the head of the contracting activity shall make the final
determination.
[55 FR 8470, Mar. 8, 1990. Redesignated at 61 FR 39093, July 26, 1996.]
Sec. 726.7005 Exceptions.
The notification requirement in 705.207 and the subcontracting
requirement in 726.7007 are based on statutory requirement and may not
be deviated
[[Page 37]]
from under the provisions of subpart 701.4. By statute, the
Administrator or designee may determine that these requirements do not
apply to a particular contract or category of contracts. The Procurement
Executive has been designated to make such determinations. One such
determination concerning subcontracting is set out in 726.7007.
[58 FR 8702, Feb. 17, 1993. Redesignated at 61 FR 39093, July 26, 1996,
as amended at 62 FR 40468, July 29, 1997]
Sec. 726.7006 Determination of status as a disadvantaged enterprise.
(a) To be eligible for an award under AIDAR 706.302-71 providing for
other than full and open competition, the contractor must qualify, as of
both the date of submission of its offer and the date of contract award,
as a small disadvantaged business (as defined in 726.7002), an
historically black college or university, a college or university in
which more than 40 percent of the students are Hispanic Americans, or a
private voluntary organization controlled by individuals who are
socially and economically disadvantaged. The contracting officer shall
insert the provision at 752.226-1 in any solicitation or contract to be
awarded under the provisions of 706.302-71.
(b) The contracting officer shall accept an offeror's
representations and certifications under the provisions referenced above
that it is a small disadvantaged business unless he or she determines
otherwise based on information contained in a challenge of the offeror's
status by the Small Business Administration or another offeror, or
otherwise available to the contracting officer.
[55 FR 8470, Mar. 8, 1990, as amended at 56 FR 27209, June 13, 1991.
Redesignated at 61 FR 39093, July 26, 1996, as amended at 62 FR 40468,
July 29, 1997]
Sec. 726.7007 Requirement for subcontracting with disadvantaged enterprises.
(a) In addition to the requirements in FAR subpart 19.7, any new
contract or modification which constitutes new procurement (except for a
contract or modification with a disadvantaged enterprise as defined in
726.7002) with respect to which more than $500,000 is to be funded with
amounts made available for development assistance or from the
appropriations cited in section 706.302-71(a)(1) shall contain a
provision requiring that not less than ten percent of the dollar value
of the contract must be subcontracted to disadvantaged enterprises,
including disadvantaged enterprises which are not small.
(b) This requirement does not apply when the contracting officer,
with the concurrence of the Director of OSDBU, certifies there is no
realistic expectation of U.S. subcontracting opportunities and so
documents the file. If the contracting officer and the Director of OSDBU
do not agree, the determination will be made by the head of the
contracting activity. See 726.7005 for guidance on other potential
exceptions.
(c) The contracting officer shall insert the clause in 752.226-2 in
any solicitation or contract as provided in paragraph (a) of this
section, unless exempted in accordance with the provisions of paragraph
(b) of this section.
[55 FR 8470, Mar. 8, 1990, as amended at 56 FR 27209, June 13, 1991; 56
FR 52213, Oct. 18, 1991; 58 FR 42255, Aug. 9, 1993. Redesignated at 61
FR 39093, July 26, 1996, as amended at 62 FR 40468, July 29, 1997; 62 FR
47532, Sept. 9, 1997]
Sec. 726.7008 Limitations on subcontracting.
The contracting officer shall insert the clause at 752.226-3,
Limitations on Subcontracting, in any solicitation and contract for
technical assistance services which is to be awarded under the authority
of 706.302-71.
[58 FR 42255, Aug. 9, 1993. Redesignated at 61 FR 51235, Oct. 1, 1996]
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
Sec. 726.7101 Policy.
USAID Policy Determination (PD) 20, ``Guidelines to Assure USAID
Programs do not Result in the Loss of Jobs 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
[[Page 38]]
the PD applies to a contract, appropriate provisions covering the
subject matter are to be included. When the provisions of PD 20 do apply
to a contract, the cognizant technical office shall provide to the
contracting officer appropriate language tailored to the specific
circumstances for the contract statement of work, or if applicable to
the circumstances, the provision included in the PD (see 726.7102) may
be used as a clause in the contract. The provision is not required in
subcontracts.
[61 FR 39093, July 26, 1996]
Sec. 726.7102 PD 20 provision.
Relocation of U.S. Businesses, Assistance to Export Processing Zones,
Internationally Recognized Workers' Rights (Jan 1994)
No funds or other support provided hereunder may be used in an
activity reasonably likely to involve the relocation or expansion
outside of the United States of an enterprise located in the United
States if non-U.S. production in such relocation or expansion replaces
some or all of the production of, and reduces the number of employees
at, said enterprise in the United States.
No funds or other support provided hereunder may be used in an
activity the purpose of which is the establishment or development in a
foreign country of any export processing zone or designated area where
the labor, environmental, tax, tariff, and safety laws of the country
would not apply, without the prior approval of USAID.
No funds or other support provided hereunder may be used in an
activity which contributes to the violation of internationally
recognized rights of workers in the recipient country, including those
in any designated zone or area in that country.
[61 FR 39093, July 26, 1996]
[[Page 39]]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
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
Sec. 728.105-1 Advance payment bonds.
(a) Generally, advance payment bonds will not be required in
connection with USAID contracts containing an advance payment provision.
In lieu thereof, contracting officers will follow procedures set forth
in FAR 32.409-3.
(b) Whenever a contracting officer considers that an advance payment
bond is necessary, the contracting officer will: (1) Establish a bond
penalty that will adequately protect interests of the Government, (2)
use the USAID Advance Payment Bond format, (3) place bond with a surety
currently approved by the U.S. Treasury Department according to the
latest Treasury Department Circular 570, (4) stipulate that the cost of
the bond shall not exceed a rate of $7.50 per $1,000 per annum based on
the penalty of the bond, without the prior written approval of the
Office of Procurement, Policy Division (M/OP/P).
(c) Where the surety's obligation under an advance payment bond
covers all advances made to the contractor during the term of the
contract, no release should be issued to the surety until all advances
made and to be made under the contract have been fully liquidated in
accordance with the provisions of the contract, such as no-pay vouchers,
reports of expenditures, or by refund. Where the surety's obligation
under the bond is limited to advances made during a specified period of
time, no release should be issued to the surety until all advances made
and to be made during the specified period have been liquidated as
aforesaid.
[49 FR 13249, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 55
FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33446, June
29, 1994]
Subpart 728.3--Insurance
Sec. 728.305-70 Overseas worker's compensation and war-hazard insurance--waivers and USAID insurance coverage.
(a) Upon the recommendation of the USAID Administrator, the
Secretary of Labor may waive the applicability of the Defense Base Act
(DBA) with respect to any contract, subcontract, or subordinate
contract, work location, or classification of employees. Either the
contractor or USAID can request a waiver from coverage. Such a waiver
can apply to any employees who are not U.S. citizens, not residents of,
or not hired in the United States. Waivers requested by the contractor
are submitted to the contracting officer for approval and further
submission to the Department of Labor, which grants the waiver.
Application for a waiver is submitted on Labor Department Form BEC 565.
USAID has a number of blanket waivers already in effect for certain
countries that are applicable to its direct contracts with contractors
performing in such countries. Where such waivers are granted from
coverage under the DBA, the waiver is conditioned on providing other
worker's compensation coverage to employees to which the waiver applies.
Usually this takes the form of securing worker's compensation coverage
of the country where work will be performed
[[Page 40]]
or of the country of the employee's nationality, whichever offers
greater benefits. The Department of Labor has granted partial blanket
waivers of DBA coverage applicable to USAID-financed contracts performed
in certain countries, subject to two conditions:
(1) Employees hired in the United States by the contractor, and
citizens or residents of the United States are to be provided DBA
insurance coverage;
(2) Waived employees (i.e., employees who are neither U.S. citizens
nor U.S. resident aliens, and who were hired outside the United States)
will be provided worker's compensation benefits as required by the laws
of the country in which they are working or the laws of their native
country, whichever offers greater benefits. Information as to whether a
DBA Waiver has been obtained by USAID for a particular country may be
obtained from the cognizant USAID contracting officer.
(b) To assist contractors in securing insurance at minimal rates for
the workmen's compensation insurance required under the DBA, and to
facilitate meeting insurance requirements for such coverage, USAID,
after open and competitive negotiation, has entered into a contract with
an insurance carrier to provide such coverage at a specified rate. The
terms of this contract require the insurance carrier to provide
coverage, and the contractor to make payments to and handle its claims
with that insurance carrier. Contracting officers are responsible for
explaining and advising contractors of the details of securing such
insurance.
[49 FR 13249, Apr. 3, 1984, as amended at 52 FR 4144, Feb. 10, 1987.
Redesignated at 53 FR 50630, Dec. 16, 1988, and amended at 54 FR 16122,
Apr. 21, 1989; 56 FR 67224, Dec. 30, 1991]
Sec. 728.307-2 Liability.
(a)-(b) [Reserved]
(c) Automobile liability. In order to ensure that private
automobiles used by contractor employees stationed overseas under an
USAID contract are properly insured, USAID has established minimum
required coverages as a supplement to the FAR clause at 52.228-7. This
supplemental coverage is specified in AIDAR 752.228-7, and is to be used
in all USAID-direct contracts involving performance overseas.
[53 FR 50630, Dec. 16, 1988]
Sec. 728.307-70 Medical Evacuation (MEDEVAC) Services (Mar 1993).
The Contracting Officer shall insert the clause at 752.228-70 in all
contracts which require performance by contractor employees overseas.
[59 FR 33446, June 29, 1994]
Sec. 728.309 Contract clause for worker's compensation insurance.
(a) Because of the volume of projects performed overseas resulting
in contracts which require worker's compensation insurance, USAID has
contracted with an insurance carrier to provide the required insurance
for all USAID contractors. It is therefore necessary to supplement the
FAR clause at 52.228-3 with the additional coverage specified in AIDAR
752.228-3. The coverage specified in AIDAR 752.228-3 shall be used in
addition to the coverage specified in FAR 52.228-3 in all USAID-direct
contracts involving performance overseas.
[53 FR 50630, Dec. 16, 1988]
Sec. 728.313 Contract clauses for insurance of transportation or transportation-related services.
(a) USAID is required by law to include language in all its direct
contracts and subcontracts ensuring that all U.S. marine insurance
companies have a fair opportunity to bid for marine insurance when such
insurance is necessary or appropriate under the contract. USAID has
therefore established a supplementary preface to the clause at FAR
52.228-9. This supplementary preface is set forth in AIDAR 752.228-9,
and is required for use in any USAID-direct contract where marine
insurance is necessary or appropriate.
[53 FR 50630, Dec. 16, 1988]
PART 731--CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents
Subpart 731.1--Applicability
Sec.
731.109 Advance agreements.
[[Page 41]]
Subpart 731.2--Contracts With Commercial Organizations
731.205-6 Compensation for personal services.
731.205-46 Travel costs.
731.205-70 Overseas recruitment incentive.
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; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13250, Apr. 3, 1984, unless otherwise noted.
Subpart 731.1--Applicability
Sec. 731.109 Advance agreements.
Advance agreements on selected costs may be negotiated with USAID
contractors by the Overhead and Special Cost and Contract Close-Out
Branch, Office of Procurement. Such advance understandings will be
applicable to all USAID contracts with that contractor.
[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51
FR 20651, June 6, 1986]
Subpart 731.2--Contracts With Commercial Organizations
Sec. 731.205-6 Compensation for personal services.
(a) General. When establishing the workweek for employees overseas
the contractor will take local and USAID Mission practice into account
and will insure that the workweek is compatible with that of those USAID
Mission and Cooperating Country employees with whom the contractor will
be working.
(b)-(c) [Reserved]
(d) Salaries and wages. It is USAID policy that if an employee's
base salary plus overseas recruitment incentive, if any (see AIDAR
731.205-70), exceeds the maximum hourly, daily, or annual rate for a
Executive Service level ES-6, 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 ES-6 rate have been followed.)
USAID policies on compensation of third country national or cooperating
country national employees are set forth in AIDAR 722.170.
(e)-(l) [Reserved]
(m) Fringe benefits. USAID's policies on certain fringe benefits
related to overseas service, including but not limited to leave,
holidays, differentials and allowances, etc. are set forth in the
appropriate contract clauses in AIDAR subpart 752.70.
[57 FR 5235, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62
FR 40468, July 29, 1997]
Sec. 731.205-46 Travel costs.
It is USAID policy to require prior written approval of
international travel by the Contacting Officer. See AIDAR 752.7032 for
specific requirements and procedures.
[57 FR 5236, Feb. 13, 1992]
Sec. 731.205-70 Overseas recruitment incentive.
(Note: the term employee as used in this section means an employee who
is a U.S. citizen or a U.S. resident alien.)
(a) If a contractor employee serving overseas under a contract does
not qualify for the exemption for overseas income provided under section
911 of the U.S. Internal Revenue Code (26 U.S.C. 911), such employee is
eligible to receive an overseas recruitment incentive (ORI), to the
extent the ORI: Is authorized by the contractor's normal policy and
practice; is deemed necessary by the contractor to recruit and retain
qualified employees for overseas services; and does not exceed 10% of
the base salary of the employee from
[[Page 42]]
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]
Subpart 731.3--Contracts With Educational Institutions
Sec. 731.370 Predetermined fixed rates for indirect costs.
Section 635(k) of the Foreign Assistance Act of 1961, as amended,
authorizes USAID to use predetermined fixed rates in determining the
indirect costs applicable under contracts with educational institutions.
Sec. 731.371 Compensation for personal services.
(a) General. When establishing the workweek for employees overseas
the contractor will take local and USAID Mission practice into account
and will ensure that the workweek is compatible with that of those USAID
Mission and Cooperating Country employees with whom the contractor will
be working.
(b) Salaries and wages. (1) It is USAID policy that if an employee's
base salary plus overseas recruitment incentive, if any (see AIDAR
731.205-70), exceeds the maximum hourly, daily, or annual rate for a
Executive Service level ES-6, 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 ES-6 rate have been followed.
(2) In considering consulting income as a factor when determining
allowable salary for service under a contract:
(i) For faculty members working under annual appointments, salary
for service under the contract may include the employee's on-campus
salary plus ``consulting income'' (that is, income from employment other
than the employee's regular on-campus appointment, excluding business or
other activities not connected with the employee's profession) earned
during the year preceding employment under the contract.
(ii) For faculty members working under academic year appointments,
salary for service under the contract may include the employee's on-
campus academic year salary plus ``consulting income'' as defined above
earned during the year proceeding employment under the contract, or
salary for service under the contract may be derived by annualizing the
academic year salary (in which case ``consulting income'' may not be
included).
(3) USAID policies and compensation of third country national or
cooperating country national employees are set forth in AIDAR 722.170.
[57 FR 5236, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62
FR 40469, July 29, 1997]
Sec. 731.372 Fringe benefits.
USAID's policies on certain fringe benefits related to overseas
service, including but not limited to leave, holidays, differentials and
allowances, etc. are set forth in the appropriate contract clauses in
AIDAR 752.70.
[57 FR 5236, Feb. 13, 1992]
Sec. 731.373 Overseas recruitment incentive.
USAID's policies regarding overseas recruitment incentives are set
forth in AIDAR 731.205-70. These policies are also applicable to
contracts with an educational institution.
[57 FR 5236, Feb. 13, 1992]
[[Page 43]]
Subpart 731.7--Contracts With Nonprofit Organizations
Sec. 731.770 OMB Circular A-122, cost principles for nonprofit organizations; USAID implementation.
(a) Paragraph 6 of the transmittal letter for OMB Circular A-122
specifies that ``Agencies shall designate a liaison official to serve as
the agency representative on matters relating to the implementation of
this Circular.'' The Director, Office of Procurement, has been so
designated. The Overhead and Special Cost and Contract Close-Out Branch,
Office of Procurement (OCC) provides staff assistance to the Director
concerning OMB Circular A-122. OCC is also responsible for obtaining
cognizance under the criteria in the transmittal letter for OMB Circular
A-122; for liaison with other cognizant agencies; for authorizing
exclusion of OMB Circular A-122 coverage for a particular nonprofit
organization pursuant to paragraph 5 of the OMB Circular A-122
transmittal letter; and for advice and assistance in applying OMB
Circular A-122 cost principles.
(b) Paragraph 4b of the OMB Circular A-122 transmittal letter
contains a definition of prior approval as follows:
Prior approval means securing the awarding agency's permission in
advance to incur costs for those items that are designated as requiring
prior approval by OMB Circular A-122. Generally, this permission will be
in writing. Where an item of cost requiring prior approval is specified
in the budget of an award, approval of the budget constitute approval of
that cost.
Consequently, an award containing a budget constitutes prior approval of
the direct cost item in the budget, unless otherwise annotated.
Accordingly, award budgets should be appropriately annotated
substantially as follows:
Inclusion of any cost in the line item budget of this award does not
obviate the requirement for prior approval of cost items designated as
requiring prior approval by OMB Circular A-122 ; or
In accordance with the requirements to OMB Circular No. A-122,
approval is granted to incur costs for (name specific item or items)
which are included in the budget of this award.
[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51
FR 20651, June 6, 1986; 56 FR 67225, Dec. 30, 1991]
Sec. 731.771 Bid and proposal costs.
Pending the establishment of Government-wide principles in
Attachment B of OMB Circular A-122, USAID will treat bid and proposal
costs as follows:
(a) Bid and proposal costs are the costs of preparing bids,
proposals, and applications for potential activities such as Government
and non-Government grants, contracts and other agreements, including the
development of scientific, cost, and other data needed to support such
bids, proposals, and applications. Except as provided in (b) below, bid
and proposal costs of the current accounting period of both successful
and unsuccessful bids and proposals normally should be treated as
indirect costs for allocation to all current activities, and no bid and
proposal costs of past accounting periods will be allocable to the
current period. However, if the organization's established practice is
to treat bid and proposal costs by some other method, the results
obtained may be accepted only if found to be reasonable and equitable.
(b) Bid and proposal costs incurred by the organization to obtain
unrestricted funds are to be treated as fund raising and allocated an
appropriate share of indirect costs under the conditions described in
paragraph B.3 of Attachment A to OMB Circular A-122.
Sec. 731.772 Compensation for personal services.
The policies set for in AIDAR 731.205-6 are also applicable to
contracts with a nonprofit organization.
[57 FR 5236, Feb. 13, 1992]
Sec. 731.773 Independent research and development costs.
Pending establishment of Government-wide principles in Attachment B
of OMB Circular A-122, USAID will apply the cost principles at FAR
31.205-18 for independent research and development costs.
[[Page 44]]
Sec. 731.774 Overseas recruitment incentive.
USAID's policies regarding overseas recruitment incentives are set
forth in AIDAR 731.205-70. These policies are also applicable to
contracts with a nonprofit organization.
[57 FR 5236, Feb. 13, 1992]
PART 732--CONTRACT FINANCING--Table of Contents
Subpart 732.1--Contract Financing
Sec.
732.111 Contract clauses.
Subpart 732.4--Advance Payments
732.401 Statutory authority.
732.402 General.
732.403 Applicability.
732.406-70 Agency-issued letters of credit.
732.406-71 Circumstances for use of an 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 732.1--General
Sec. 732.111 Contract clauses.
(a) [Reserved]
(b) USAID may obtain short term and (less frequently) long-term
indefinite quantity professional services through Agency-specific
indefinite quantity contracts that are a combination of contract types.
Rather than using the fixed-price payment clauses for indefinite
quantity contracts, when these IQCs provide for fixed daily rates (which
may include wages, overhead, general and administrative expenses, fringe
benefits, and profit) for services and reimbursement of other direct
costs (such as travel and transportation) at cost, then the payment
clause at 752.232-7 shall be used in the contract.
[61 FR 39094, July 26, 1996]
Subpart 732.4--Advance Payments
Source: 56 FR 67225, Dec. 30, 1991, unless otherwise noted.
Sec. 732.401 Statutory authority.
(a) Sections 635 (b) of the Foreign Assistance Act and Executive
Order 11223, May 12, 1965, 30 FR 6635, permit the making of advance
payments with respect to functions authorized by the Foreign Assistance
Act. Advance payments may also be made under section 305 of the Federal
Property and Administrative Services Act of 1949, which provides
authority, not otherwise available to USAID, to take a paramount lien.
(b) The Act of August 28, 1968, Public Law 85-804 does not apply to
USAID.
[56 FR 67225, Dec. 30, 1991, as amended at 62 FR 40469, July 29, 1997]
Sec. 732.402 General.
(a)-(d) [Reserved]
(e)(1) All U.S. Dollar advances to for-profit organizations require
the approval of the Procurement Executive; all such approvals are
subject to prior consultation with the USAID/W Controller.
(2) All local currency advances to for-profit organizations require
the approval of the Head of the Contracting Activity, after consultation
with the Mission Controller.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996]
Sec. 732.403 Applicability.
References to nonprofit contracts with nonprofit educational or
research institutions for experimental, research and development work
include nonprofit contracts with nonprofit institutions for: (a)
technical assistance services provided to or for another country or
countries, and (b) projects which concern studies, demonstrations and
similar activities related to economic growth or the solution of social
problems of developing countries.
Sec. 732.406-70 Agency-issued letters of credit.
This subsection provides guidance on use of USAID issued letters of
credit (LOC) for advance payments.
Sec. 732.406-71 Circumstances for use of an LOC.
An LOC shall be used under the following circumstances:
[[Page 45]]
(a) The contracting officer has determined that an advance payment
is necessary and appropriate in accordance with this subpart and the
guidance provided in FAR 32.4;
(b) USAID has, or expects to have, a continuing relationship of at
least one year with the organization, and the annual amount required for
advance financing will be at least $50,000; and
(c) The Office of Financial Management, Cash Management and Payment
Division (FM/CMP) agrees that the LOC payment method is appropriate.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996]
Sec. 732.406-72 Establishing an LOC.
(a) While the contract will provide for the use of an LOC when it is
justified under subsection 732.406-71, the LOC is a separate agreement
between the contractor and FM/CMP, acting on behalf of the USAID
Controller. The terms and conditions of the LOC are established by FM/
CMP/GIB.
(b) In order to establish or amend an LOC, the contracting officer
shall provide FM/CMP with the following information:
(1) The name of the Contractor;
(2) The official 16 digit USAID contract number;
(3) The obligated amount of the contract;
(4) The budget plan code for the obligated funds;
(5) The effective date and estimated completion date.
(6) The contractor Federal Tax Identification Number.
This information should be provided in writing to FM/CMP together
with a request to establish or amend an LOC as early in the negotiation
cycle as possible.
(c) FM/CMP will prepare the LOC in accordance with USAID's LOC
procedures; issue or amend and maintain the LOC in accordance with its
terms and USAID procedures and regulations; and provide the contracting
officer(s) a copy of each LOC and any other material governing its use
at the time the LOC is issued or when it is amended or modified.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996]
Sec. 732.406-73 LOC contract clause.
If payment is to be provided by LOC, the contract shall contain the
clause in subsection 752.232-70.
Sec. 732.406-74 Revocation of the LOC.
If during the term of the contract FM/CMP believes that the LOC
should be revoked, FM/CMP may, after consultation with the cognizant
contracting officer(s) and GC, revoke the LOC by written notification to
the contractor. A copy of any such revocation notice will immediately be
provided to the cognizant contracting officer(s).
PART 733--PROTESTS, DISPUTES, AND APPEALS--Table of Contents
Subpart 733.1--Protests
Sec.
733.101 Definitions.
733.103-70 Protest to the agency.
733.103-71 Filing of protest.
733.103-72 Responsibilities.
733.103-73 Protests excluded from consideration.
Subpart 733.27--USAID Procedures for Disputes and Appeals
733.270-1 Designation of Armed Services Board of Contract Appeals
(ASBCA) to hear and determine appeals under USAID contracts.
733.270-2 Special procedures regarding contract disputes appeals
promulgated pursuant to paragraph 2 of the Administrator's
designation.
Authority: Sec. 621. Pub. L. 87-195, 73 Stat. 445 (22 U.S.C. 2381),
as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp.
p. 435.
Subpart 733.1--Protests
Source: 61 FR 39094, July 26, 1996, unless otherwise noted.
Sec. 733.101 Definitions.
(a) ``Procurement Executive'' is defined in AIDAR 702.170-13.
(b) All ``days'' referred to in this subpart are deemed to be
``calendar days'', in accordance with FAR 33.101. In the case of USAID
overseas offices with non-Saturday/Sunday weekend schedules, the
official post weekend applies in lieu of Saturday and Sunday.
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(c) All other terms defined in FAR 33.101 are used herein with the
same meaning.
Sec. 733.103-70 Protests to the agency.
USAID follows the agency protest procedures in FAR 33.103, as
supplemented by this section.
Sec. 733.103-71 Filing of protest.
(a) Protests must be in writing and addressed to the Contracting
Officer for consideration by the Procurement Executive.
(b) A protest shall include, in addition to the information required
in FAR 33.103(d)(2), the name of the issuing Mission or office.
(c) Material submitted by a protester will not be withheld from any
interested party outside the government or from any government agency if
the Procurement Executive decides to release such material, except to
the extent that the withholding of such information is permitted or
required by law or regulation.
[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996]
Sec. 733.103-72 Responsibilities.
(a) Procurement Executive. The decision regarding an agency protest
shall be made by the Procurement Executive within 30 days from the date
a proper protest is filed unless the Procurement Executive determines
that a longer period is necessary to resolve the protest, and so
notifies the protester in writing. The Procurement Executive shall make
his or her decision after personally reviewing and considering all
aspects of the case as presented in the protest itself and in any
documentation provided by the contracting officer, and after obtaining
input and clearance from the Assistant General Counsel for Litigation
and Enforcement (GC/LE). The decision shall be in writing and
constitutes the final decision of the Agency.
(b) Contracting Officer. The Contracting Officer is responsible for
requesting an extension of the time for acceptance of offers as
described in FAR 33.103(f)(2).
[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996]
Sec. 733.103-73 Protests excluded from consideration.
(a) Contract administration. Disputes between a contractor and USAID
are resolved pursuant to the disputes clause of the contract and the
Contract Disputes Act of 1978.
(b) Small business size standards and standard industrial
classification. Challenges of established size standards or the size
status of particular firms, and challenges of the selected standard
industrial classification are for review solely by the Small Business
Administration.
(c) Procurement under Section 8(a) of the Small Business Act.
Contracts are let under Section 8(a) of the Small Business Act to the
Small Business Administration solely at the discretion of the
Contracting Officer, and are not subject to review.
(d) Protests filed in the General Accounting Office (GAO). Protests
filed with the GAO will not be reviewed.
(e) Procurements funded by USAID to which USAID is not a party. No
protest of a procurement funded by USAID shall be reviewed unless USAID
is a party to the acquisition agreement.
(f) Subcontractor protests. Subcontractor protests will not be
considered.
(g) Judicial proceedings. Protests will not be considered when the
matter involved is the subject of litigation before a court of competent
jurisdiction or when the matter involved has been decided on the merits
by a court of competent jurisdiction.
(h) Determinations of responsibility by the contracting officer. A
determination by the contracting officer that a bidder or offeror is or
is not capable of performing a contract will not be reviewed by the
Procurement Executive.
(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
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reviewed by the Procurement Executive.