[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
48
Chapters 7 to 14
Revised as of October 1, 2004
Federal Acquisition Regulations System
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 7--Agency for International Development 3
Chapter 8--Department of Veterans Affairs 135
Chapter 9--Department of Energy 273
Chapter 10--Department of the Treasury 539
Chapter 12--Department of Transportation 557
Chapter 13--Department of Commerce 625
Chapter 14--Department of the Interior 659
Finding Aids:
Table of CFR Titles and Chapters........................ 679
Alphabetical List of Agencies Appearing in the CFR...... 697
List of CFR Sections Affected........................... 707
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 701.105
refers to title 48, part
701, section 105.
----------------------------
[[Page v]]
EXPLANATION
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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
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OMB CONTROL NUMBERS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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Raymond A. Mosley,
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Office of the Federal Register.
October 1, 2004.
[[Page ix]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
seven volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and
chapter 29 to end. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2004.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The first volume, containing chapter 1 (parts 1 to 51), includes an
index to the Federal acquisition regulations.
For this volume, Robert J. Sheehan was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
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--Agency for International Development............. 701
chapter 8--Department of Veterans Affairs................... 801
chapter 9--Department of Energy............................. 901
chapter 10--Department of the Treasury...................... 1033
chapter 12--Department of Transportation.................... 1201
chapter 13--Department of Commerce.......................... 1301
chapter 14--Department of the Interior...................... 1401
[[Page 3]]
CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT
--------------------------------------------------------------------
Editorial Note: Nomenclature changes to chapter 7 appear at 62 FR
40466, July 29, 1997, and corrected at 62 FR 45334, August 27, 1997.
SUBCHAPTER A--GENERAL
Part Page
701 Federal Acquisition Regulation System....... 5
702 Definitions of words and terms.............. 10
703 Improper business practices and personal
conflicts of interest................... 12
704 Administrative matters...................... 12
SUBCHAPTER B--ACQUISITION PLANNING
705 Publicizing contract actions................ 13
706 Competition requirements.................... 13
707 Acquisition planning........................ 16
709 Contractor qualifications................... 16
711 Describing agency needs..................... 16
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
713 Simplified acquisition procedures........... 18
714 Sealed bidding.............................. 18
715 Contracting by negotiation.................. 18
716 Types of contracts.......................... 22
717 Special contracting methods................. 23
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
719 Small business programs..................... 24
722 Application of labor laws to government
acquisition............................. 28
724 Protection of privacy and freedom of
information............................. 31
725 Foreign acquisition......................... 32
726 Other socioeconomic programs................ 33
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
728 Bonds and insurance......................... 37
[[Page 4]]
731 Contract cost principles and procedures..... 38
732 Contract financing.......................... 42
733 Protests, disputes, and appeals............. 44
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
734 Major system acquisition.................... 47
736 Construction and architect-engineer
contracts............................... 47
737 [Reserved]
SUBCHAPTER G--CONTRACT MANAGEMENT
742 Contract administration..................... 49
745 Government property......................... 49
747 Transportation.............................. 50
749 Termination of contracts.................... 50
750 Extraordinary contractual actions........... 51
SUBCHAPTER H--CLAUSES AND FORMS
752 Solicitation provisions and contract clauses 57
753 Forms....................................... 85
Appendixes A-C to Chapter 7 [Reserved]
Appendix D to Chapter 7--Direct USAID Contracts With a U.S.
Citizen or a U.S. Resident Alien for Personal Services
Abroad.................................................... 85
Appendix E to Chapter 7 [Reserved]
Appendix F to Chapter 7--Use of Collaborative Assistance
Method for Title XII Activities........................... 110
Appendixes G-H to Chapter 7 [Reserved]
Appendix I to Chapter 7--USAID's Academic Publication Policy 114
Appendix J to Chapter 7--Direct USAID Contracts With a
Cooperating Country National and With a Third Country
National for Personal Services Abroad..................... 115
[[Page 5]]
SUBCHAPTER A_GENERAL
PART 701_FEDERAL ACQUISITION REGULATION SYSTEM--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
701.301 Policy.
701.303 Publication and codification.
Subpart 701.4_Deviations from the FAR or AIDAR
701.402 Policy.
701.470 Procedure.
Subpart 701.6_Career Development, Contracting Authority, and
Responsibilities
701.601 General.
701.602-1 Authority of contracting officers in resolving audit
recommendations.
701.602-3 Ratification of unauthorized commitments.
701.603 Selection, appointment, and termination of appointment.
701.603-70 Designation of contracting officers.
Subpart 701.7_Determinations and Findings
701.704 Content.
701.707 Signatory authority.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13236, Apr. 3, 1984, unless otherwise noted.
Subpart 701.1_Purpose, Authority, Issuance
701.105 OMB approval under the Paperwork Reduction Act.
(a) The following information collection and record keeping
requirements established by USAID have been approved by OMB, and
assigned an OMB control number and approval/expiration dates as
specified below:
------------------------------------------------------------------------
Burden
OMB control Expiration hours
AIDAR segment No. date per
report
------------------------------------------------------------------------
733.7003(c)......................... 0412-0520 08/31/2000 40
752.209-70.......................... 0412-0520 08/31/2000 4
752.219-8........................... 0412-0520 08/31/2000 1
752.245-70.......................... 0412-0520 08/31/2000 .5
752.245-71.......................... 0412-0520 08/31/2000 1
752.7001(a)......................... 0412-0520 08/31/2000 .5
752.7001(b)......................... 0412-0520 08/31/2000 .5
752.7002(j)......................... 0412-0520 08/31/2000 1
752.7003............................ 0412-0520 08/31/2000 8
752.7004(b)(4)...................... 0412-0520 08/31/2000 .5
752.7032............................ 0412-0520 08/31/2000 2
752.7033............................ 0412-0536 08/31/2000 4
------------------------------------------------------------------------
(b) The information requested by the AIDAR sections listed in
paragraph (a) is necessary to allow USAID to prudently administer pubic
funds. It lets USAID make reasonable assessments of contractor
capabilities and responsibility of costs. Information is required in
order for a contractor and/or its employee to obtain a benefit-usually
taking the form of payment under a government contract.
(c) Public reporting burden for these collections of information is
estimated as shown in paragraph (a) of this section. The estimated
burden includes the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. Send comments regarding the
burden estimates or any other aspects of these collections of
information, including suggestions for
[[Page 6]]
reducing the burden, to: U.S. Agency for International (USAID), Office
of Procurement, Policy Division (M/OP/P), Room 7.08-082U, 1300
Pennsylvania Avenue, N.W. Washington, D.C. 20523-7801; and Office of
Management and Budget (OMB), Paperwork Reduction Project (0412-0520),
Washington, D.C. 20503.
[59 FR 33445, June 29, 1994, as amended at 61 FR 39090, July 26, 1996;
62 FR 40466, July 29, 1997; 64 FR 16648, Apr. 6, 1999]
Subpart 701.3_U.S. Agency for International Development Acquisition
Regulation
Source: 64 FR 42040, Aug. 3, 1999, unless otherwise noted.
701.301 Policy.
(a) Responsibility. Subject to the direction of the Administrator,
the Director, Office of Procurement (``M/OP Director'') is responsible
for:
(1) Developing and maintaining necessary uniform procurement
policies, procedures, and standards;
(2) Providing assistance to the contracting activities as
appropriate;
(3) Keeping the Administrator and Executive Staff fully informed on
procurement matters which should be brought to their attention; and
(4) All agency head duties and authorities stated in (48 CFR) FAR
subpart 1.3, in accordance with (48 CFR) AIDAR 701.601. These
responsibilities include but are not limited to developing, issuing, and
maintaining the USAID Acquisition Regulation (``AIDAR'', 48 CFR chapter
7), USAID's supplement to the Federal Acquisition Regulation (48 CFR
Chapter 1), in coordination with the General counsel and such other
offices as may be appropriate.
(b) Applicability. (1) Unless a deviation is specifically authorized
in accordance with subpart 701.4, or unless otherwise provided, the FAR
and AIDAR apply to all contracts (regardless of currency of payment, or
whether funds are appropriated or non-appropriated) to which USAID is a
direct party.
(2) At Missions where joint administrative services are arranged,
procuring offices may apply the Department of State Acquisition
Regulation (48 CFR chapter 6) for all administrative and technical
support contracts except in defined areas. The Office of Administrative
Services will furnish the defined areas and administrative guidelines
for procurement to the overseas Missions. Administrative and local
support services include the procurement accountability, maintenance and
disposal of all office and residential equipment and furnishings,
vehicles and expendable supplies purchased with administrative and/or
technical support funds, either dollars or local currency.
701.303 Publication and codification.
(a) The AIDAR is USAID's Acquisition Regulation supplementing the
FAR (48 CFR chapter 1) and is published as chapter 7 of Title 48, Code
of Federal Regulations. AIDAR Circulars shall be used to promulgate
changes to the AIDAR and shall be published in compliance with (48 CFR)
FAR part 1.
(b) Appendices. Significant procurement policies and procedures that
do not correspond to or conveniently fit into the FAR system described
in FAR 1.1 and 1.303 may be published as Appendices to the AIDAR.
Appendices follow the main text of the AIDAR in a section entitled
``Appendices to Chapter 7'' and contain a table of contents and the
individual appendices identified by letter and subject title (e.g.,
``Appendix D--Direct USAID Contracts with a U.S. Citizen or a U.S.
Resident Alien for Personal Services Abroad'').
(c) Only the M/OP Director has the authority to issue internal
agency guidance applicable to all agency contracts. The heads of the
various USAID contracting activities (see subparts 701.6 and 702.10) may
issue operating instructions and procedures consistent with the FAR,
AIDAR, and other Agency regulations, policies, and procedures for
application within their organizations. One copy of each such issuance
shall be forwarded to the Office of Procurement, Policy Division (M/OP/
POL). Insofar as possible, such material will be numerically keyed to
the AIDAR.
[[Page 7]]
Subpart 701.4_Deviations from the FAR or AIDAR
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.
701.470 Procedure.
(a) Deviation from the FAR or AIDAR affecting one contract or
transaction.
(1) Deviations which affect only one contract or procurement will be
made only after prior approval by the head of the contracting activity.
Deviation requests containing the information listed in paragraph (c) of
this section shall be submitted sufficiently in advance of the effective
date of such deviation to allow adequate time for consideration and
evaluation by the head of the contracting activity.
(2) Requests for such deviations may be initiated by the responsible
USAID contracting officer who shall obtain clearance and approvals as
may be required by the head of the contracting activity. Prior to
submission of the deviation request to the head of the contracting
activity for approval, the contracting officer shall obtain written
comments from the Office of Procurement, Policy Division (M/OP/P),
hereinafter referred to as ``M/OP/P''. The M/OP/P shall normally be
allowed 10 working days prior to the submission of the deviation request
to the head of the contracting activity to review the request and to
submit comments. If the exigency of the situation requires more
immediate action, the requesting office may arrange with the M/OP/P for
a shorter review period. In addition to a copy of the deviation request,
the M/OP/P shall be furnished any background or historical data which
will contribute to a more complete understanding of the deviation. The
comments of the M/OP/P shall be made a part of the deviation request
file which is forwarded to the head of the contracting activity.
(3) Coordination with the Office of General Counsel, as appropriate,
should also be effected prior to approval of a deviation by the head of
the contracting activity.
(b) Class deviations from the FAR or AIDAR: Class deviations are
those which affect more than one contract or contractor.
(1) Class deviations from the AIDAR will be processed in the same
manner as prescribed in paragraph (a) of this section. Individual heads
of contracting activities have authority to approve class deviations
affecting only contracts within their own contracting activities, except
that the Director, M/OP, has authority to approve class deviations that
affect more than one contracting activity.
(2) Class deviations from the FAR shall be considered jointly by
USAID and the Chairperson of the Civilian Agency Acquisition Council (C/
CAAC) (FAR 1.404) unless, in the judgement of the head of the
contracting activity, after due consideration of the objective of
uniformity, circumstances preclude such consultation. The head of the
contracting activity shall certify on the face of the deviation the
reason for not coordinating with the C/CAAC. In such cases, the M/OP/P,
shall be responsible for notifying the C/CAAC of the class deviation.
(3) Class deviations from the FAR shall be processed as follows:
(i) The request shall be processed in the same manner as paragraph
(a) of this section, except that the M/OP/P, shall be allowed 15 working
days prior to the submission of the deviation request to the head of the
contracting activity to effect the necessary coordination with the C/
CAAC and to submit comments. If the exigency of the situation requires
more immediate action, the requesting office may arrange with the M/OP/P
for a shorter review and coordination period. The comments of the C/CAAC
and the M/OP/P shall be made a part of the deviation request file which
is forwarded to the head of the contracting activity.
(ii) The request shall be processed in the same manner as paragraph
(a) of this section if the request is not being jointly considered by
USAID and the C/CAAC.
[[Page 8]]
(4) Deviations involving basic agreements or other master type
contracts are considered to involve more than one contract.
(5) Unless the approval is sooner rescinded, class deviations shall
expire 2 years from the date of approval provided that deviation
authority shall continue to apply to contracts or task orders which are
active at the time the class deviation expires. Authority to continue
the use of such deviation beyond 2 years may be requested in accordance
with the procedures prescribed in paragraph (a) of this section.
(6) Expiration dates shall be shown on all class deviations.
(c) Requests for deviation shall contain a complete description of
the deviation, the effective date of the deviation, the circumstances in
which the deviation will be used, a specific reference to the regulation
being deviated from, an indication as to whether any identical or
similar deviations have been approved in the past, a complete
justification of the deviation including any added or decreased cost to
the Government, the name of the contractor, and the contract or task
order number.
(d) Register of deviations: Separate registers shall be maintained
by the procuring activities of the deviations granted from the FAR and
AIDAR. Each deviation shall be recorded in its appropriate register and
shall be assigned a control number as follows: the symbol of the
procuring activity, the abbreviation ``DEV'', the fiscal year, the
serial number [issued in consecutive order during each fiscal year]
assigned to the particular deviation and the suffix ``c'' if it is a
class deviation, e.g. CM-DEV-85-1, CM-DEV-85-2c. The control number
shall be embodied in the document authorizing the deviation and shall be
cited in all references to the deviation.
(e) Central record of deviations: Copies of approved deviations
shall be furnished promptly to the M/OP/P, who shall be responsible for
maintaining a central record of all deviations that are granted.
(f) Semiannual report of class deviations:
(1) USAID contracting officers shall submit a semiannual report to
the M/OP/P of all contract actions effected under class deviations to
the FAR and AIDAR which have been approved pursuant to paragraph (b) of
this section.
(2) The report shall contain the applicable deviation control
number, the contractor's name, contract number and task order number (if
appropriate).
(3) The report shall cover the 6-month periods ending June 30 and
December 31, respectively, and shall be submitted within 20 working days
after the end of the reporting period.
[49 FR 13236, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 55
FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33445, June
29, 1994; 61 FR 39090, July 26, 1996]
Subpart 701.6_Career Development, Contracting Authority, and
Responsibilities
701.601 General
(a) (1) Pursuant to the delegations in ADS 103.5.10, the M/OP
Director is authorized to act as the Head of the Agency for all purposes
described in the Federal Acquisition Regulation (FAR, 48 CFR Chapter 1),
except for the authority in (48 CFR) FAR sections 6.302-7(a)(2), 6.302-
7(c)(1), 17.602(a), 19.201(c), 27.306(a), 27.306(b), and 30.201-5, or
where the ``head of the agency'' authority is expressly not delegable
under the FAR or AIDAR. Further, the M/OP Director is responsible for
implementing the procurement related aspects of the Foreign Assistance
Act, Executive Order 11223, the Office of Federal Procurement Policy
Act, and other statutory and Executive Branch procurement policies and
requirements applicable to USAID operations, except for those
authorities and responsibilities delegated to the Procurement Executive
as specified in ADS 103.5.10f.
(2) The M/OP Director has specified authority to:
(i) Select and appoint contracting officers and terminate their
appointments in accordance with section 1.603 of the Federal Acquisition
Regulation; and
(ii) Exercise in person or by delegation the authorities stated in
subpart 1.4 of the Federal Acquisition Regulation with regard to
deviations from that regulation.
(b) Except as otherwise prescribed, the head of each contracting
activity
[[Page 9]]
(as defined in 702.170) is responsible for the procurement of supplies
and services under or assigned to the procurement cognizance of his or
her activity. The heads of USAID contracting activities are vested with
broad authority to carry out the programs and activities for which they
are responsible. This authority includes authority to execute contracts
and the establishment of procurement policies, procedures, and standards
appropriate for their programs and activities, subject to government-
wide and USAID requirements and restrictions, such as those found at
701.376-4 and particularly 701.603-70, the USAID policy regarding the
direct-hire status of contracting officers.
(c) The authority of heads of contracting activities to execute
contracts is limited as follows:
(1) Director, Office of U.S. Foreign Disaster Assistance. Authority
to execute contracts for disaster relief purposes during the first 72
hours of a disaster in a cumulative total amount not to exceed $500,000.
Authority to execute simplified acquisitions up to $50,000 at any time.
May issue warrants for simplified acquisitions up to $50,000 to
qualified individuals on his or her staff.
(2) Director, Center for Human Capacity Development (G/HCD).
Authority to execute simplified acquisitions up to $10,000. Unlimited
authority for procuring participant training based on published catalog
prices, using M/OP/E approved forms. May issue warrants for simplified
acquisitions up to $10,000 to qualified individuals on his or her staff.
(3) Overseas heads of contracting activities. Authority to sign
contracts where the cumulative amount of the contract, as amended, does
not exceed $250,000 (or local currency equivalent) for personal services
contracts or $100,000 (or local currency equivalent) for all other
contracts. May issue warrants for simplified acquisitions up to $50,000
to qualified individuals on his or her staff.
[53 FR 4980, Feb. 19, 1988, as amended at 55 FR 6802, Feb. 27, 1990; 56
FR 67224, Dec. 30, 1991; 58 FR 8702, Feb. 17, 1993; 59 FR 33445, June
29, 1994; 60 FR 11912, Mar. 3, 1995; 61 FR 39090, July 26, 1996; 62 FR
40466, July 29, 1997; 64 FR 42041, Aug. 3, 1999]
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]
701.602-3 Ratification of unauthorized commitments.
(a) [Reserved]
(b) Policy. (1) [Reserved]
(2) In order to maintain management oversight and controls on
unauthorized commitments, authority to ratify unauthorized commitments
within USAID is reserved to the M/OP Director.
[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 42040, Aug. 3, 1999]
701.603 Selection, appointment, and termination of appointment.
701.603-70 Designation of contracting officers.
A contracting officer represents the U.S. Government through the
exercise of his/her delegated authority to negotiate, sign, and
administer contracts on behalf of the U.S. Government. The contracting
officer's duties are sensitive, specialized, and responsible. In order
to insure proper accountability, and to preclude possible security,
conflict of interest, or jurisdiction problems, it is USAID policy that
USAID
[[Page 10]]
contracting officers must be U.S. citizen direct-hire employees of the
U.S. Government.
[49 FR 13236, Apr. 3, 1984, as amended at 61 FR 39091, July 26, 1996]
Subpart 701.7_Determinations and Findings
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]
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 [Reserved]
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.
Source: 49 FR 13238, Apr. 3, 1984, unless otherwise noted.
Subpart 702.170_Definitions
702.170-1 USAID.
USAID means the U.S. Agency for International Development and its
predecessor agencies, including the International Cooperation
Administration (ICA).
702.170-2 Administrator.
Administrator means the Administrator or Deputy Administrator of the
U.S. Agency for International Development.
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]
702.170-4 Cooperating country.
Cooperating country means a foreign country in which there is a
program or activity administered by USAID.
[[Page 11]]
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.
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.
702.170-7 Foreign Assistance Act.
Foreign Assistance Act means the Foreign Assistance Act of 1961, as
amended (22 U.S.C., Chapter 32).
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.
702.170-9 Head of agency.
Head of agency means, for USAID, the Administrator, and the Deputy
Administrator, and in accordance with the responsibilities and
limitations set forth in 701.601(a)(1), the M/OP Director.
[50 FR 52780, Dec. 26, 1985, as amended at 64 FR 42041, Aug. 3, 1999]
702.170-10 Head of the contracting activity.
(a) The heads of USAID contracting activities are listed below. The
limits of their contracting authority are set forth in 701.601.
(1) USAID/Washington Heads of Contracting Activities:
(i) Director, Office of Procurement;
(ii) Director, Office of U.S. Foreign Disaster Assistance; and
(iii) Director, Center for Human Capacity Development (G/HCD).
(2) Overseas Heads of Contracting Activities: Each Mission Director
or principal USAID officer at post (e.g. USAID Representative, USAID
Affairs Officer, etc.)
(b) Individuals serving in the positions listed in (a)(1) and (a)(2)
of this section in an ``Acting'' capacity may exercise the authority
delegated to that position.
[53 FR 4980, Feb. 19, 1988, as amended at 56 FR 67224, Dec. 30, 1991; 61
FR 39091, July 26, 1996; 62 FR 40466, July 29, 1997]
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.
702.170-12 Overseas.
Overseas means outside the United States, its possessions, and
Puerto Rico.
702.170-13 Procurement Executive.
``Procurement Executive'' is synonymous with ``Senior Procurement
Executive'' as defined in FAR 2.101 and means the USAID official who is
responsible for the management direction of USAID's assistance and
acquisition (``A&A'') system, as so delegated and more fully described
in ADS 103.5.10f.
[64 FR 42041, Aug. 3, 1999]
702.170-14 [Reserved]
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]
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]
702.170-17 Automated Directives System.
``Automated Directives System'' (``ADS'') sets forth the Agency's
policies and essential procedures, as well as
[[Page 12]]
supplementary informational references. It contains six functional
series, interim policy updates, valid USAID handbook chapters, a
resource library, and a glossary. References to ``ADS'' throughout this
chapter 7 are references to the Automated Directives System.
Procurement-related sections of this system are accessible to the
general public at the following internet address: http://
www.info.usaid.gov/pubs/ads. The entire ADS is available on the ADS
Compact Disk (ADS CD), which may be purchased from the Agency at cost by
submitting a completed ADS CD order form. To request a fax copy of the
ADS CD order form, send an e-mail with your fax number to [email protected].
[64 FR 42041, Aug. 3, 1999]
Subpart 702.270_Definitions Clause
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
information.
703.104-10.1 Violations or possible violations.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Subpart 703.1_Safeguards
703.104-5 Disclosure, protection, and marking of proprietary and source
information.
A Contracting Office may authorize release of proprietary and/or
source selection information outside the Government for evaluation
purposes pursuant to FAR 15.305(c) and (AIDAR) 48 CFR 715.305(c).
[64 FR 16648, Apr. 6, 1999]
703.104-10.1 Violations or possible violations.
Requests for concurrence under paragraph (a)(1) of FAR 3.104-10
shall be forwarded to one level above the Contracting Officer.
[64 FR 16648, Apr. 6, 1999]
PART 704_ADMINISTRATIVE MATTERS--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.
Subpart 704.4_Safeguarding Classified Information Within Industry
704.404 Contract clause.
If the contract involves access to classified (``Confidential'',
``Secret'', or ``Top Secret''), or administratively controlled
(``Sensitive But Unclassified'') information, use the contract clause in
752.204-2.
[49 FR 13239, Apr. 3, 1984. Redesignated at 54 FR 16122, Apr. 21, 1989,
as amended at 62 FR 40467, July 29, 1997]
Subpart 704.8--Contract Files [Reserved]
[[Page 13]]
SUBCHAPTER B_ACQUISITION PLANNING
PART 705_PUBLICIZING CONTRACT ACTIONS--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.
705.502 Authority.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381),
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp.,
p. 435; 40 U.S.C. 474.
705.002 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
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]
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]
705.502 Authority.
(a) The M/OP Director, acting as head of the Agency under the
authority of 701.601(a)(1), hereby authorizes USAID contracting officers
to place paid advertisements and notices in newspapers and periodicals.
Contracting officers shall document the contract file to reflect
consideration of the requirements of (48 CFR) FAR 5.101(b)(4).
[64 FR 5006, Feb. 2, 1999, as amended at 64 FR 42042, Aug. 3, 1999]
PART 706_COMPETITION REQUIREMENTS--Table of Contents
Sec.
706.003 Definitions.
Subparts 706.1-706.2 [Reserved]
[[Page 14]]
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.
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
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]
706.302-70 Impairment of foreign aid programs.
(a) Authority. (1) Citation: 40 U.S.C. 474.
(2) Full and open competition need not be obtained when it would
impair or otherwise have an adverse effect on programs conducted for the
purposes of foreign aid, relief, and rehabilitation.
(b) Application. This authority may be used for:
(1) An award under section 636(a)(3) of the Foreign Assistance Act
of 1961, as amended, involving a personal services contractor serving
abroad;
(2) An award of $250,000 or less by an overseas contracting
activity;
(3)(i) An award for which the Assistant Administrator responsible
for the project or program makes a formal written determination, with
supporting findings, that compliance with full and open competition
procedures would impair foreign assistance objectives, and would be
inconsistent with the fulfillment of the foreign assistance program; or
(ii) Awards for countries, regions, projects, or programs for which
the Administrator of USAID makes a formal written determination, with
supporting findings, that compliance with full and open competition
procedures would impair foreign assistance objectives, and would be
inconsistent with the fulfillment of the foreign assistance program.
(4) Awards under AIDAR 715.370-1 (Title XII selection procedure--
general) or 715.370-2 (Title XII selection procedure--collaborative
assistance).
(5) An award for the continued provision of highly specialized
services when award to another resource would result in substantial
additional costs to the government or would result in unacceptable
delays.
(c) Limitations. (1) Offers shall be requested from as many
potential offerors as is practicable under the circumstances. While the
authority at 706.302-70(b)(5) is for use when the contracting officer
determines that the incumbent contractor is the only practicable,
potential offeror, the requirement to publicize the intended award, as
required in FAR 5.201, still applies.
(2) The contract file must include appropriate explanation and
support justifying the award without full and open competition, as
provided in FAR 6.303, except that determinations made under 706.302-
70(b)(3) will not be subject to the requirement for contracting officer
certification or to approvals in accord with FAR 6.304.
(3) The authority in 706.302-70(b)(3)(i) shall be used only when no
other authority provided in FAR 6.302 or AIDAR 706.302 is suitable. The
specific foreign assistance objective which would be impaired must be
identified and explained in the written determination and finding. Prior
consultation with the Agency Competition Advocate (see 706.501) is
required before executing the written determination and finding, and
this consultation must
[[Page 15]]
be reflected in the determination and finding.
(4) Use of the authority in 706.302-70(b)(5) for proposed follow-on
amendments in excess of one year or over $250,000 is subject to the
approval of the Agency Competition Advocate. For all other follow-on
amendments using this authority, the contracting officer's certification
required in FAR 6.303-2(a)(12) will serve as approval.
[50 FR 40976, Oct. 8, 1985, and 50 FR 51395, Dec. 17, 1985, as amended
at 54 FR 28069, July 5, 1989; 54 FR 46389, Nov. 3, 1989; 57 FR 5235,
Feb. 13, 1992; 61 FR 39091, July 26, 1996; 62 FR 40467, July 29, 1997;
64 FR 42042, Aug. 3, 1999]
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]
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
706.501 Requirement.
The USAID Administrator delegated the authority to designate the
agency competition advocate and a competition advocate for each agency
procuring activity (see 706.003 of this part) to the M/OP Director. The
M/OP Director, under the Administrator's delegation, has designated the
M/OP Deputy Director for Policy, Evaluation and Support as the Agency's
competition advocate and the deputy head of each
[[Page 16]]
contracting activity as the competition advocate for each activity. The
competition advocate for M/OP is the Deputy Director for Operations. If
there is no deputy, the head of the contracting activity is designated
the competition advocate for that activity. The competition advocate's
duties may not be redelegated, but can be exercised by persons serving
as acting deputy (or acting head) of the contracting activity. For
definitions of contracting activity and head of contracting activity,
see 702.170-3 and 702.170-10, respectively.
[59 FR 33446, June 29, 1994, as amended at 64 FR 5006, Feb. 2, 1999; 64
FR 42040, Aug. 3, 1999]
PART 707_ACQUISITION PLANNING--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
709.403 Definitions.
Debarring official in USAID is the M/OP Director.
Suspending official in USAID is the M/OP Director.
[62 FR 40467, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]
Subpart 709.5_Organizational Conflicts of Interest
709.503 Waiver.
For purposes of approving waivers or further delegating the
authority to approve waivers pursuant to FAR 9.503, the M/OP Director is
the Agency head (see AIDAR 701.601(a)(1)). The M/OP Director hereby
delegates the authority to approve waivers pursuant to FAR 9.503 to the
heads of USAID contracting activities, as defined in AIDAR 702.170-10.
[64 FR 42042, Aug. 3, 1999]
709.507-2 Contract clause.
(a)-(b) [Reserved]
(c) In order to avoid problems from organizational conflicts of
interest that may be discovered after award of a contract, the clause
found at 752.209-71 shall be inserted in all contracts whenever the
solicitation or resulting contract or both include a provision in
accordance with (48 CFR) FAR 9.507-1, or a clause in accordance with (48
CFR) FAR 9.507-2, establishing a restraint on the contractor's
eligibility for future contracts.
[58 FR 42255, Aug. 9, 1993, as amended at 64 FR 5006, Feb. 2, 1999]
PART 711_DESCRIBING AGENCY NEEDS--Table of Contents
Sec.
711.002-70 Metric system waivers.
711.002-71 Solicitation provisions and contract clauses.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
711.002-70 Metric system waivers.
(a) Criteria. The FAR 11.002(b) requirement to use the metric system
of measurement for specifications and quantitative data that are
incorporated in or required by USAID contracts may be waived when USAID
determines in writing that such usage is impractical or is likely to
cause U.S. firms to experience significant inefficiencies or the loss of
markets.
(b) Authorization. (1) The USAID Metric Executive (as designated in
ADS
[[Page 17]]
chapter 323), the contracting officer, and the USAID official who
approves the procurement requirement are authorized to waive the metric
requirement for one of the above reasons. The USAID Metric Executive is
authorized to overrule a decision to grant a waiver, or to nullify a
blanket waiver made by another approving official so long as a
contractor's rights under an executed contract are not infringed upon.
(2) A blanket waiver for a class of multiple transactions may be
issued for a term not to exceed three years.
(3) When a waiver will be based upon the adverse impact on U.S.
firms, clearance from the USAID Metric Executive and the Office of Small
and Disadvantaged Business Utilization (SDB) will be obtained prior to
authorization.
(c) Records and reporting. (1) The basis for each waiver and any
plans to adapt similar requirements to metric specifications in future
procurements should be documented in the contract file.
(2) Each procurement activity will maintain a log of the waivers
from the metric requirements which are authorized for its procurements.
The logs shall list the commodity/service being procured, total dollar
value of the procured item(s), waiver date, authorizing official, basis
for waiver, and USAID actions that can promote metrication and lessen
the need for future waivers.
(3) Within 30 days of the closing of each fiscal year, each USAID/W
procurement activity and each Mission will submit a copy of the metric
waiver log for the year to the USAID Metric Executive. (Mission logs are
to be consolidated in a Mission report for the procurement activity and
for the nonprocurement activities maintaining such logs under the USAID
Metric Transition Plan.) Repetitive purchases of commercially produced
and marketed items and classes of items may be consolidated in reporting
procurements that do not exceed $10,000 cumulatively during the
reporting period.
[57 FR 23321, June 3, 1992, as amended at 59 FR 33446, June 29, 1994.
Redesignated and amended at 61 FR 39091, July 26, 1996. Redesignated and
amended at 62 FR 40467, July 29, 1997]
711.002-71 Solicitation provisions and contract clauses.
The contracting officer shall insert the clause at 752.211-70 in all
USAID-direct solicitations and contracts.
[57 FR 23321, June 3, 1992. Redesignated and amended at 61 FR 39091,
July 26, 1996]
[[Page 18]]
SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES
PART 713_SIMPLIFIED ACQUISITION PROCEDURES--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.
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
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
714.406-3 Other mistakes disclosed before award.
The M/OP Director is the designated central authority to make the
determinations described in FAR 14.406-3.
[49 FR 13240, Apr. 3, 1984, as amended at 54 FR 46389, Nov. 3, 1989; 64
FR 42040, Aug. 3, 1999]
714.406-4 Disclosure of mistakes after award.
The M/OP Director is the designated central authority to make the
determinations described in FAR 14.406-4.
[49 FR 13240, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999]
PART 715_CONTRACTING BY NEGOTIATION--Table of Contents
Subpart 715.3_Source Selection
Sec.
715.303 Responsibilities.
715.303-70 Responsibilities of USAID evaluation committees.
715.305 Proposal evaluation.
715.370 Alternative source selection procedures.
715.370-1 Title XII selection procedure--general.
715.370-2 Title XII selection procedure--collaborative assistance.
Subpart 715.6_Unsolicited Proposals
715.602 Policy.
715.604 Agency points of contact.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13240, Apr. 3, 1984, unless otherwise noted.
[[Page 19]]
Subpart 715.3_Source Selection
715.303 Responsibilities.
715.303-70 Responsibilities of USAID evaluation committees.
(a) Establishment and composition of USAID evaluation committees. A
technical evaluation committee shall be established for each proposed
procurement. In each case, the committee shall be composed of a chair
representing the cognizant technical office, a representative of the
contracting office (who shall be a non-voting member of the committee),
and representatives from other concerned offices as appropriate.
(b) Technical evaluation procedures. (1) The contracting officer
will receive all proposals and provide to the chair a listing and copies
of the technical proposals and instructions for conducting the
evaluation.
(2) The chair will promptly call a meeting of the committee to
evaluate the proposals received. The evaluation shall be based on the
evaluation factors set forth in the solicitation document.
(3) The chair shall prepare and provide to the Contracting Officer
written documentation summarizing the results of the evaluation of each
proposal, including an assessment of past performance information in
accordance with FAR 15.305(a)(2). The documentation shall include
narrative justification of the evaluation results.
(4) The contracting officer is responsible for reviewing the
documentation justifying the evaluation results to determine that it is
adequate and complete. The contracting officer shall return a
justification determined to be inadequate to the chair for revision.
(5) No member of the USAID evaluation committee shall hold
discussions with any offeror before or during the USAID evaluation
committee's proceedings, nor shall any information about the proposals
be provided to anyone not on the committee without first obtaining the
contracting officer's consent.
[61 FR 39091, July 26, 1996. Redesignated and amended at 64 FR 16648,
Apr. 6, 1999]
715.305 Proposal evaluation.
(a)(1) [Reserved]
(2) USAID shall use the information on offerors made available from
the NIH Contractor Performance System to evaluate past performance.
(Access to the system by USAID contracting office personnel is
authorized by the USAID Past Performance Coordinator, E-mail address:
AIDNET: Past [email protected]@aidw/Internet:
[email protected].)
(b) A justification is to be written by the Contracting Officer and
placed in the official file to support the decision to reject all
proposals and to cancel the procurement.
(c) The Contracting Officer may authorize release of proposals
outside the Government for evaluation--
(1) When an Evaluation Assistance Contract (EAC) is required to
provide technical advisory or other services relating to the evaluation
of proposals; or
(2) When an individual other than a government employee, known as a
Non-Government Evaluator (NGE), is selected to serve as a member of a
USAID technical evaluation committee, the Contracting Officer shall
obtain a signed and dated certification and agreement from each NGE and
EAC that they will safeguard the proposals and information therein and
that they perceive no actual or potential conflict of interests. (An
acceptable certification appears under ADS Chapter 302).
[64 FR 16648, Apr. 6, 1999; 64 FR 25405, May 11, 1999, as amended at 65
FR 36642, June 9, 2000]
715.370 Alternative source selection procedures.
The following selection procedures may be used, when appropriate,
for activities covered under Title XII of the Foreign Assistance Act of
1961, as amended.
[64 FR 16649, Apr. 6, 1999]
715.370-1 Title XII selection procedure--general.
(a) General. The Deputy Administrator has determined, as provided in
AIDAR 706.302-70(b)(3)(ii) that use of this Title XII source selection
procedure is necessary so as not to impair or affect USAID's ability to
administer Title XII of the Foreign Assistance
[[Page 20]]
Act. This determination is reflected in AIDAR 706.302-70(b)(4). This
constitutes authority for other than full and open competition when
selecting Title XII institutions to perform Title XII projects.
(b) Scope of subsection. This subsection prescribes policies and
procedures for the selection of institutions eligible under Title XII of
the Foreign Assistance Act of 1961, as amended, to perform activities
authorized under Title XII.
(c) Applicability. The provisions of this subsection are applicable
when the project office certifies that the activity is authorized under
Title XII, and determines that use of the Title XII selection procedure
is appropriate.
(d) Solicitation, evaluation, and selection procedures. (1)
Competition shall be sought among eligible Title XII institutions to the
maximum practicable extent; this requirement shall be deemed satisfied
when a contractor is selected under the procedures of this subsection.
(2) The project office shall--
(i) Prepare selection criteria for evaluation of eligible
institutions for use in preparing the source list, determining
predominantly qualified sources, and selecting the contractor;
(ii) Prepare an initial list of eligible institutions considered
qualified to perform the proposed activity;
(iii) Provide a statement describing qualifications and areas of
expertise considered essential, a statement of work, estimate of
personnel requirements, special requirements (logistic support,
government furnished property, and so forth) for the contracting
officer's use in preparing the request for technical proposal (RFTP).
(iv) Send a memorandum incorporating the certification and
determination required by paragraph (c) of this section, together with
the information required by paragraphs (d)(2) (i) through (iii) of this
section, with the ``Action'' copy of the PIO/T to the contracting
officer, requesting him/her to prepare and distribute the RFTP.
(3) Upon receipt and acceptance of the project officer's request,
the contracting officer shall prepare the RFTP. The RFTP shall contain
sufficient information to enable an offeror to submit a responsive and
complete technical proposal. This includes a definitive statement of
work, an estimate of the personnel required, and special provisions
(such as logistic support, government furnished equipment, and so
forth), a proposed contract format, and evaluation criteria. No cost or
pricing data will be requested or required by the RFTP. The RFTP will be
distributed to the eligible institutions recommended by the project
office. The RFTP will be synopsized, as required by FAR 5.201, and will
normally allow a minimum of 60 days for preparation and submission of a
proposal.
(4) Upon receipt of responses to the RFTP by the contracting
officer, an evaluation committee will be established as provided for in
715.608 of this subpart.
(5) The evaluation committee will evaluate all proposals in
accordance with the criteria set forth in the RFTP, and will prepare a
selection memorandum which shall:
(i) State the evaluation criteria;
(ii) List all of the eligible institutions whose proposals were
reviewed;
(iii) Report on the ranking and rationale therefor for all
proposals;
(iv) Indicate the eligible institution or institutions considered
best qualified.
(6) The evaluation committee will submit the selection memorandum to
the contracting officer for review and approval.
(7) The contracting officer will either approve the selection
memorandum, or return it to the evaluation committee for reconsideration
for specified reasons.
(8) If the selection memorandum is approved, the contracting officer
shall obtain cost, pricing, and other necessary data from the
recommended institution or institutions and shall conduct negotiations.
If a satisfactory contract cannot be obtained, the contracting officer
will so advise the evaluation committee. The evaluation committee may
then recommend an alternate institution or institutions.
[52 FR 6158, Mar. 2, 1987, as amended at 54 FR 28069, July 5, 1989; 55
FR 6802, Feb. 27, 1990. Redesignated at 64 FR 16648, Apr. 6, 1999]
[[Page 21]]
715.370-2 Title XII selection procedure--collaborative assistance.
(a) General. (48 CFR) AIDAR 706.302-70(b)(4) provides authority for
other than full and open competition when selecting Title XII
institutions to perform Title XII activities.
(b) Scope of subsection. This subsection prescribes policies and
procedures for the selection of institutions eligible under Title XII of
the Foreign Assistance Act of 1961, as amended, to perform activities
authorized under Title XII, where USAID has determined, in accordance
with paragraph (c) of this subsection, that use of the collaborative
assistance contracting system is appropriate. See AIDR Appendix F (of
this chapter)--Use of Collaborative Assistance Method for Title XII
Activities for a more complete definition and discussion of the
collaborative assistance method.
(c) Determinations. The following findings and determinations must
be made prior to initiating any contract actions under the collaborative
assistance method:
(1) The cognizant technical office makes a preliminary finding that
an activity:
(i) Is authorized by Title XII; and
(ii) Should be classed as collaborative assistance because a
continuing collaborative relationship between USAID, the host country,
and the contractor is required from design through completion of the
activity, and USAID, host country, and contractor participation in a
continuing review and evaluation of the activity is essential for its
proper execution.
(2) Based upon this preliminary finding, the cognizant technical
office shall establish an evaluation panel consisting of a
representative of the cognizant technical office as chairman, a
representative of the contracting officer, and any other representatives
considered appropriate by the chairman to review the proposed activity
for its appropriateness under the collaborative assistance method.
(3) If supported by the panel's findings, the chairman will make a
formal written determination that the collaborative assistance method is
the appropriate contracting method for the Title XII activity in
question.
(d) Evaluation and selection. (1) Competition shall be sought among
eligible Title XII institutions to the maximum practicable extent; this
requirement shall be deemed satisfied when a contractor is selected
under the procedures of this section.
(2) The evaluation panel shall:
(i) Prepare evaluation and selection criteria;
(ii) Prepare an initial source list of eligible institutions
considered qualified to perform the proposed project; and
(iii) Evaluate the list, using the evaluation criteria previously
determined, for the purpose of making a written determination of the
sources considered most capable of performing the project.
(3) The chairman of the evaluation panel will prepare a memorandum
requesting the contracting officer to prepare a request for expressions
of interest from qualified sources and setting forth:
(i) The formal determinations required by paragraph (c) of this
section;
(ii) The evaluation criteria which have been determined; and
(iii) The recommended source list and the rationale therefor.
(4) The contracting officer will prepare a request for an expression
of interest (REI), containing sufficient information to permit an
offeror to determine its interest in the project, and to discuss the
project with USAID representatives, if appropriate. The REI should
include a concise statement of the purpose of the activity, any special
conditions or qualifications considered important, a brief description
of the selection procedure and evaluation criteria which will be used,
the proposed contract format, and any other information considered
appropriate. The REI will be issued to the sources recommended by the
panel, and to others, as appropriate; it will be synopsized, as required
by FAR 5.201, and it will normally allow a minimum of 60 days for
preparation of an expression of interest. Guidelines for preparation of
expressions of interest are contained in attachment 1 to AIDAR appendix
F.
(5) The contracting officer will transmit all expressions of
interest to the evaluation panel for evaluation and selection
recommendation. The panel
[[Page 22]]
may conduct on site evaluations at its discretion, as part of the
evaluation process.
(6) The chairman of the evaluation panel will prepare a written
selection recommendation with supporting justification, recommending
that negotiations be conducted with the prospective contractor(s)
selected by the evaluation panel. The selection recommendation shall be
transmitted to the contracting officer together with the complete
official file on the project which was being maintained by the
evaluation panel.
(7) The contracting officer will review the selection
recommendation, obtain necessary cost and other data, and proceed to
negotiate with the recommended sources.
[52 FR 6159, Mar. 2, 1987, as amended at 54 FR 28069, July 5, 1989; 55
FR 6802, Feb. 27, 1990; 62 FR 40467, July 29, 1997; 62 FR 45334, Aug.
27, 1997; 62 FR 47532, Sept. 9, 1997. Redesignated at 64 FR 16648, Apr.
6, 1999]
Subpart 715.6_Unsolicited Proposals
715.602 Policy.
(a) USAID encourages the submission of unsolicited proposals which
contribute new ideas consistent with and contributing to the
accomplishment of the Agency's objectives. However, the requirements for
contractor resources are normally quite program specific, and thus
widely varied, and must be responsive to host country needs. Futher,
USAID's projects are usually designed in collaboration with the
cooperating country. These factors can limit both the need for, and
USAID's ability to use unsolicited proposals. Therefore, prospective
offerors are encouraged to contact USAID to determine the Agency's
technical and geographical requirements as related to the offeror's
interests before preparing and submitting a formal unsolicited proposal.
(b) USAID's basic policies and procedures regarding unsolicited
proposals are those established in FAR subpart 15.6 and this subpart.
(c) For detailed information on unsolicited proposals, see 715.604;
for initial contact point within USAID, see 715.604(c).
[49 FR 13240, Apr. 3, 1984. Redesignated and amended at 64 FR 16648,
16649, Apr. 6, 1999; 64 FR 25405, May 11, 1999]
715.604 Agency points of contact.
(a) Information concerning USAID's policies for unsolicited
proposals is available from the U.S. Agency for International
Development, Evaluation Division, Room 7.08-005, 1300 Pennsylvania
Avenue, NW., Washington, DC 20523-7803.
(b) The information available concerns:
(1) Contact points within USAID;
(2) Definitions;
(3) Characteristics of a suitable proposal;
(4) Determination of contractor responsibility;
(5) Organizational conflict of interest;
(6) Cost sharing; and
(7) Procedures for submission and evaluation of proposals.
(c) Initial inquiries and subsequent unsolicited proposals should be
submitted to the address specified in paragraph (a) of this section.
[49 FR 13240, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 52
FR 21058, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 56 FR 67224, Dec. 30,
1991; 59 FR 33446, June 29, 1994. Redesignated and amended at 64 FR
16648, 16649, Apr. 6, 1999]
PART 716_TYPES OF CONTRACTS--Table of Contents
Subpart 716.3_Cost Reimbursement Contracts
Sec.
716.303 Cost-sharing contracts.
716.306 [Reserved]
709.406 Contract clauses.
Subpart 716.5 [Reserved]
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381)
as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Subpart 716.3_Cost Reimbursement Contracts
716.303 Cost-sharing contracts.
(a)-(b) [Reserved]
[[Page 23]]
(c) Limitations. In addition to the limitations specified in FAR
16.301-3, prior approval of the M/OP Director (see 701.601(a)(1)) is
required in order to use a cost-sharing contract with an educational
institution.
[54 FR 46390, Nov. 3, 1989, as amended at 64 FR 42042, Aug. 3, 1999]
716.306 [Reserved]
716.406 Contract clauses.
The Contracting Officer shall include the clause at 752.216-70,
Award Fee, in solicitations and contracts when an award-fee contract is
contemplated.
[64 FR 5007, Feb. 2, 1999]
Subpart 716.5 [Reserved]
PART 717_SPECIAL CONTRACTING METHODS--Table of Contents
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Subpart 717.70_Pharmaceutical Products
717.700 General.
Section 606(c) of the Foreign Assistance Act bars procurement by the
Government of drug and pharmaceutical products manufactured outside the
United States if their manufacture involves the use of or is covered by
an unexpired U.S. patent which has not been held invalid by an
unappealed or unappealable court decision unless the manufacture is
expressly authorized by the patent owner. Applicable policies and
procedures are set forth in USAID Automated Directive System Chapter
312.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]
[[Page 24]]
SUBCHAPTER D_SOCIOECONOMIC PROGRAMS
PART 719_SMALL BUSINESS PROGRAMS--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
719.270 Small business policies.
(a) In keeping with section 602 of the Foreign Assistance Act of
1961 (22 U.S.C. 2352), as amended, USAID shall, insofar as practicable
and to the maximum extent consistent with the accomplishment of the
purposes of said Act, assist United States small business to participate
equitably in the furnishing of supplies and services for Foreign
Assistance activities.
(b) It is the policy of USAID to:
(1) Fully endorse and carry out the Government's small business
program for placing a fair proportion of its purchases and contracts for
supplies, construction (including maintenance and repair), research and
development, and services (including personal, professional, and
technical services) with small business, including minority small
business concerns; and
(2) Increase their participation in USAID procurement.
(c) In furtherance of this policy:
(1) Cognizant technical officers shall make positive efforts (see
719.271-5) to identify potentially qualified small and minority business
firms during precontract development of activities and shall, with the
responsible contracting officers, assure that such firms are given full
opportunity to participate equitably;
(2) Small business set-asides shall be made for all contracts to be
executed in USAID/Washington which qualify for small business set-aside
action under Part 19 of the FAR; and
(3) Consideration shall be given in appropriate cases to the award
of the contract to the Small Business Administration for subcontracting
to small business firms pursuant to section 8(a) of the Small Business
Act (15 U.S.C. 637(a)).
(d) This program shall be implemented by all USAID/Washington
contracting activities in order to attain these policy objectives. In
accordance with 719.271, all USAID/Washington direct-procurement
requirements which exceed the simplified acquisition threshold shall be
screened for small business opportunities by the Office of Small and
Disadvantaged Business Utilization (SDB) except those exempted by
719.271-6(a).
(e) Where practicable and desirable, small business and minority
business enterprise award goals will be established for the respective
USAID/Washington procuring activities to provide incentive for
contracting personnel to increase awards to small firms. The goals will
be set by SDB after consultation with the respective head of the
contracting activity (see subsection 702.170-10).
(f) In the event of a disagreement between SDB and the contracting
officer concerning: (1) A recommended set-aside, or (2) a request for
modification or withdrawal of a class or individual set-aside, complete
documentation of the case including the reasons for disagreement shall
be transmitted within five working days to the head of the contracting
activity (see 719.271-6(e)) for a decision. Procurement action shall be
suspended pending a decision.
[[Page 25]]
(g) The above suspension shall not apply where the contracting
officer:
(1) Certifies in writing, with supporting information, that in order
to protect the public interest award must be made without delay;
(2) Promptly provides a copy of said certification to SDB; and
(3) Includes a copy of the certification in the contract file.
(h) SDB shall be the Small Business Advisor and Minority Business
Procurement Policy Manager for all USAID/Washington procuring
activities.
(i) The details on the Agency's direction and operation of the small
business program are set forth in 719.271.
(j) No decision rendered, or action taken, under the coverage set
forth in 719.271 shall preclude the Small Business Administration from
appealing directly to the USAID Administrator as provided for in part 19
of the FAR.
[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 56
FR 67224, Dec. 30, 1991; 61 FR 39092, July 26, 1996; 62 FR 40468, July
29, 1997]
719.271 Agency program direction and operation.
719.271-1 General.
The purpose of this section is to prescribe responsibilities and
procedures for carrying out the small business program policy set forth
in 219.270, and in part 19 of the 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.
719.271-2 The USAID Office of Small and Disadvantaged Business Utilization
(SDB).
(a) SDB is responsible for administering, implementing, and
coordinating the Agency's small business (including minority business
enterprises) program.
(b) SDB, headed by the Director SDB, who also serves as the Minority
Business Procurement Manager, shall be specifically responsible for:
(1) Developing policies, plans, and procedures for a coordinated
Agency-wide small business and minority business enterprise procurement
program;
(2) Advising and consulting regularly with USAID/Washington
procuring activities on all phases of their small business program,
including, where practicable and desirable, the establishment of small
business and minority business enterprise award goals;
(3) Collaborating with officials of the Small Business
Administration (SBA), other Government Agencies, and private
organizations on matters affecting the Agency's small business program;
(4) Developing and maintaining an USAID Consultant Registry
Information System (ACRIS) of bidders/offerors (annotated to identify
small business and minority business enterprise firms) capable of
furnishing services for use by the USAID contracting activities;
(5) Cooperating with contracting officers in administering the
performance of contractors subject to the Small Business and Minority
Business Enterprises Subcontracting Program clauses;
(6) Developing a plan of operation designed to increase the share of
contracts awarded to small business concerns, including small minority
business enterprises;
(7) Establishing small business class set-aside for types and
classes of items of services where appropriate;
(8) Reviewing each procurement requisition to make certain
individual or class set-asides are initiated on all suitable USAID/
Washington proposed contract actions in excess of the simplified
acquisition threshold which are subject to screening (see 719.271-6);
(9) Maintaining a program designed to:
(i) Locate capable small business sources for current and future
procurements through GSA and other methods;
(ii) Utilize every source available to determine if an item is
obtainable from small business; and
[[Page 26]]
(iii) Develop adequate small business competition on all appropriate
procurements;
(10) Taking action to assure that unnecessary qualifications,
restrictive specifications, or other features (such as inadequate
procurement lead time) of the programming or procurement process, which
may prevent small business participation in the competitive process, are
modified to permit such participation where an adequate product or
service can be obtained;
(11) Recommending that portions of large planned procurements or
suitable components of end items or services be purchased separately so
small firms may compete;
(12) On proposed non-competitive procurements, recommending to the
contracting officer that the procurement be made competitive when, in
the opinion of SDB, there are small business or minority business
enterprises believed competent to furnish the required goods or
services, and supplying the contracting officer a list of such firms;
(13) Assisting small business concerns with individual problems;
(14) Promoting increased awareness by the technical staff of the
availability of small business firms;
(15) Making available to GSA copies of solicitations when so
requested;
(16) Counseling non-responsive or non-responsible small business
bidders/offerors to help them participate more effectively in future
solicitations; and
(17) Examining bidders lists to make certain small business firms
are appropriately identified and adequately represented for both
negotiated and advertised procurements.
[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61
FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997]
719.271-3 USAID contracting officers.
With respect to procurement activities within their jurisidiction,
contracting officers are responsible for:
(a) Being thoroughly familiar with part 19 of the FAR and this
section dealing with the small business program;
(b) Screening abstracts of bids and other award data to determine
set-aside potential for future procurements;
(c) Assuring that small business concerns and minority business
enterprises are appropriately identified on source lists and abstracts
of bids or proposals by an ``S'' and ``M'', respectively, or other
appropriate symbol;
(d) Reviewing types and classes of items and services to determine
where small business set-asides can be applied;
(e) Recommending that portions of large planned procurements of
suitable components of end items or services be purchased separately so
small firms may compete;
(f) Making a unilateral determination for total or partial small
business set-asides in accordance with Subpart 19.5 of the Federal
Acquisition Regulations;
(g) Submitting proposed procurement actions for USAID/Washington
contracts to SDB for screening (see 719.271-6);
(h) Taking action to assure that unnecessary qualifications,
restrictive specifications or other features (such as inadequate
procurement lead time) of the programming or procurement process which
may prevent small business participation in the competitive process are
modified to permit such participation where an adequate product or
service can be obtained;
(i) Prior to rendering a final decision on a proposed non-
competitive procurement action, and as part of his/her findings and
determinations, the contracting officer shall consider the
recommendations, if any, of SDB together with the latter's list of
additional sources;
(j) As appropriate, referring small business concerns, including
small minority business enterprises, to SDB for information and advice;
(k) Promoting increased awareness by the technical staff of the
availability of small business concerns;
(l) Making available to SDB copies of solicitations when requested;
(m) Assisting SDB in counseling non-responsive or non-responsible
small business bidders/offerors to help them to participate more
effectively in future solicitations; and
[[Page 27]]
(n) Including the Small Business and Minority Business Enterprises
Subcontracting Program clauses in all contracts where required by part
19 of the FAR.
[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996; 62
FR 40468, July 29, 1997]
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]
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]
719.271-6 Small business screening procedure.
(a) General. All USAID/Washington proposed contract actions in
excess of the simplified acquisition threshold shall be screened by SDB,
with the exception of:
(1) Class set-asides and those unilaterally set-aside by contracting
officers (719.271-3(f));
(2) Those where the contracting officer certifies in writing that
the public exigency will not permit the delay incident to screening
(719.271-7(b));
(3) ``Institution building'' contracts (contracts for development of
a counterpart capability in the host country) with educational or
nonprofit institutions; or collaborative assistance contracts pursuant
to AIDAR 715.370-2.
(4) Those involving the payment of tuition and fees for participant
training at academic institutions; and
(5) Personal services contract requirements (see 719.270).
(b) Preparation of Form USAID 1410-14 (the Small Business/Minority
Business Enterprise Procurement Review Form). (1) The contracting
officer shall prepare the subject form in an original and 3 copies and
forward the original and 2 copies to SDB within one working day of
receipt by the contracting activity of a procurement requisition.
(2) The contracting officer will attach to his/her transmittal a
complete copy of the procurement request and a copy of the recommended
source list as furnished by the technical office and supplemented by
him/her.
(3) The contracting officer shall complete blocks 2, 3, 4, 5, 9, and
10 (when appropriate) prior to submittal to SDB.
(c) Screening of Form USAID 1410-14 by SDB. (1) SDB will screen the
contracting officer's recommendations on set-aside potential, small
business subcontracting opportunities, and section 8(a) subcontracting,
and furnish him/her with either a written concurrence in his/her
recommendations or written counter-recommendations on the original and
duplicate copy within five working days from receipt of the form from
the contracting officer.
(2) SDB will complete Blocks 1, 6, 7, 8, 11, and 12 (when
appropriate) prior to returning the screened form to the contracting
officer.
(d) Concurrence or rejection procedure. (1) The contracting officer
shall complete Block 13 upon receipt of the original and duplicate copy
of the screened form from SDB.
[[Page 28]]
(2) If the contracting officer rejects the SDB counter-
recommendation, he/she shall return the original and duplicate forms
with his/her written reasons for rejection to SDB within two working
days.
(3) Upon receipt of the contracting officer's rejection, SDB may:
(i) accept, or (ii) appeal, the rejection. In the case of acceptance of
the contracting officer's rejection, SDB shall annotate Block 14 when it
renders a decision and return the original form to the contracting
officer within two working days.
(e) Appeal procedure. (1) When informal efforts fail to resolve the
set-aside disagreement between the contracting officer and SDB, the
latter official may appeal the contracting officer's decision to the
head of the contracting activity. Such an appeal will be made within
five working days after receipt of the contracting officer's rejection.
(2) In the case of an appeal, SDB will send the original and
duplicate form, with the appeal noted in Block 14, directly to the head
of the contracting activity with its written reasons for appealing. The
contracting officer will be notified of SDB's appeal by means of a copy
of the written reasons for appealing.
(3) The head of the contracting activity shall render a decision on
the appeal (complete Block 15) within three working days after receipt
of same and return the original to SDB and the duplicate to the
contracting officer.
[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61
FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997; 64 FR 42042, Aug.
3, 1999]
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.
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.
[[Page 29]]
722.103-3 [Reserved]
722.103-4 Approvals.
722.170 Employment of third country nationals (TCN's) and cooperating
country nationals (CCN's).
Subpart 722.8_Equal Employment Opportuntity
722.805-70 Procedures.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13246, Apr. 3, 1984, unless otherwise noted.
Subpart 722.1_Basic Labor Policies
722.103 Overtime.
722.103-1 Definitions.
Compensatory time off means leave equal to overtime worked, which,
unless otherwise authorized in a contract or approved by a contracting
officer, must be taken not later than the end of the calendar month
following that in which the overtime is worked.
722.103-2 Policy.
(a) Most contracts covered by this regulation call for the
performance of professional or technical services overseas on a cost-
reimbursement basis. The compensation for employees performing such
services is normally fixed on a monthly or annual basis, and the
contracts usually state minimum work week hours. It is not expected that
these employees will receive additional pay, overtime or shift premiums,
or compensatory time off.
(b) When the contracting officer determines it is in the best
interests of the Government, specific provision may be made in contracts
to permit such benefits for non-technical and non-professional employees
serving overseas, subject to approvals to be required in the contract.
[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]
722.103-3 [Reserved]
722.103-4 Approvals.
The contracting officer may make the determinations referred to in
FAR 22.103-4.
[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]
722.170 Employment of third country nationals (TCN's) and cooperating
country nationals (CCN's).
(a) General. It is USAID policy that cooperating country nationals
(CCN's) and third country nationals (TCN's), who are hired abroad for
work in a cooperating country under USAID-direct contracts, generally be
extended the same benefits, and be subject to the same restrictions as
TCN's and CCN's employed as direct hires by the USAID Mission.
Exceptions to this policy may be granted either by the Mission Director
or the Assistant Administrator having program responsibility for the
project. (TCN's and CCN's who are hired to work in the United States
shall be extended benefits and subject to restrictions on the same basis
as U.S. citizens who work in the United States.)
(b) Compensation. Compensation, including merit or promotion
increases paid to TCN's and CCN's may not, without the approval of the
Mission Director or the Assistant Administrator having program
responsibility for the project, exceed the prevailing compensation paid
to personnel performing comparable work in the cooperating country as
determined by the USAID Mission. Unless otherwise authorized by the
Mission Director or the Assistant Administrator having program
responsibility for the project, the compensation of such TCN and CCN
employees shall be paid in the currency of the cooperating country.
(c) Allowances and differentials. TCN's and CCN's, hired abroad for
work in a cooperating country, are not eligible for allowances or
differentials under USAID-direct contracts, unless authorized by the
Mission Director or the Assistant Administrator having program
responsibility for the project.
(d) Country and security clearances. The contractor shall insure
that the
[[Page 30]]
necessary clearances, including security clearances, if required, have
been obtained for TCN and CCN employees in accordance with any such
requirements set forth in the contract or required by the USAID Mission,
prior to the TCN or CCN starting work under the contract.
(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
722.805-70 Procedures.
(a) The procedures in this section apply, as appropriate, for all
contracts excluding construction, which shall be handled in accordance
with (48 CFR) FAR 22.804-2. Contracting officers are responsible for
ensuring that the requirements of (48 CFR) FAR 22.8 and related clauses
are met before awarding any contracts or consenting to subcontracts
subject to these requirements.
(b) Representations and Certifications. The first step in ensuring
compliance with these requirements is to obtain all necessary
representations and certifications (Reps and Certs) required by FAR
22.810. The contracting officer must review the Reps and Certs to
determine whether they have been completed and signed as required, and
are acceptable.
(1) If any of these Reps and Certs are incomplete or unsigned, the
contracting officer must request that the offeror(s) complete and sign
them, as necessary, unless the initial evaluation of the offeror's
proposal results in the contracting officer's concluding that the
offeror would not, in any event, be within a competitive range
determined in accordance with (48 CFR) FAR 15.306(c), or would not be
selected if award is to be made without discussions. A request as
described in this paragraph (b)(1) constitutes either a clarification
per (48 CFR) FAR 15.306(a) (``resolving minor or clerical errors'',
paragraph (a)(2)), or a communication before establishment of
competitive range per (48 CFR) FAR 15.306(b), not a discussion per (48
CFR) FAR 15.306(d).
(2) If completed and signed Reps and Certs raise questions
concerning the offeror's compliance with EEO requirements, or if the
contracting officer has information from any other source which calls
into question the offeror's eligibility for award based on this section
and (48 CFR) FAR 22.8, the contracting officer must refer the matter to
the cognizant regional Department of Labor Office of Federal Contract
Compliance Programs (OFCCP) regardless of the estimated value of the
contract; only OFCCP may make a determination of non-compliance with EEO
requirements.
(c) OFCCP's National Preaward Registry. If the Reps and Certs are
complete, signed, and deemed acceptable, and the contracting officer has
no reason to doubt their accuracy, the contracting officer must then
consult the OFCCP's National Preaward Registry at the internet website
in 48 CFR 22.805(a)(4) (i) to see if the offeror is listed.
(1) If the conditions stated in FAR 22.805(a) (4) are met (including
the contract file documentation requirement
[[Page 31]]
in paragraph (a)(4)(iii)), then the Contracting Officer does not need to
take any further action in verifying the offeror's compliance with the
requirements of this subpart and (48 CFR) FAR 22.8.
(2) If the offeror does not appear in the National Preaward
Registry, and the estimated amount of the contract or subcontract is
expected to be under $10 million then the contracting officer may rely
on the Reps and Certs as sufficient verification of the offeror's
compliance.
(3) If the offeror does not appear in the National Preaward Registry
and the estimated amount of the contract or subcontract is $10 million
or more, then the contracting officer must request a preaward clearance
from the appropriate OFCCP regional office, in accordance with 48 CFR
22.805(a). If the initial contact with OFCCP is by telephone, the
contracting officer and OFCCP are to mutually determine what information
is to be included in the written verification request. The contracting
officer may need to provide the following information in addition to the
items listed in FAR 22.805(a)(5), if so requested by the OFCCP regional
office:
(i) Name, title, address, and telephone number of a contract person
for the prospective contractor;
(ii) A description of the type of organization (university,
nonprofit, etc.) and its ownership (private, foreign, state, etc.).
(iii) Names and addresses of the organizations in a joint venture
(if any).
(iv) Type of procurement (new contract--RFP or IFB, amendment, etc.)
and the period of the contract.
(v) Copy of approved Reps and Certs.
(d) In the event that OFCCP reports that the offeror is not in
compliance, negotiations with the offeror shall be terminated.
(e) Documentation for the contract file. Every contract file must
contain completed and signed Reps and Certs. The file must clearly show
that these documents have been reviewed and accepted by the contracting
officer. If the Reps and Certs were revised to make them acceptable (see
paragraph (b) of this section), the file must also document what changes
were required and why, and verify that the changes were made. The
contracting officer shall also document the OFCCP National Preaward
Registry review (see paragraph (c)(1) of this section), and, if the
Registry does not include the offeror:
(1) For contracts or modifications over $10,000 but less than $10
million, the file must contain a statement from the contracting officer
that the contractor is considered in compliance with EEO requirements,
and giving the basis for this statement (see paragraph (c)(2) of this
section). This statement may be in a separate memorandum to the file or
in the memorandum of negotiation.
(2) For contracts or modifications of $10 million or more, the file
must document all communications with OFCCP regarding the offeror's
compliance. Such documentation includes copies of any written
correspondence and a record of telephone conversations, specifying the
name, address, and telephone number of the person contacted, a summary
of the information presented, and any advice given by OFCCP.
(f) Documentation in the event of non-compliance. In the event OFCCP
determines that a prospective contractor is not in compliance, a copy of
OFCCP's written determination, and a summary of resultant action taken
(termination of negotiations, notification of offeror and cognizant
technical officer, negotiation with next offeror in competitive range,
resolicitation, etc.) will be placed in the contract file for any
contract which may result, together with other records related to
unsuccessful offers, and retained for at least six months following
award.
[64 FR 5007, Feb. 2, 1999; 64 FR 18481, Apr. 14, 1999]
PART 724_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION--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.
[[Page 32]]
Source: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.
Subpart 724.2_Freedom of Information Act
724.202 Policy.
The U.S. Agency for International Development's policies concerning
implementation of the Freedom of Information Act are codified in 22 CFR
part 212 (USAID Regulation 12).
PART 725_FOREIGN ACQUISITION--Table of Contents
Subpart 725.1_Buy American Act_Supplies
Sec.
725.170 Exceptions for Foreign Assistance Act functions.
Subpart 725.4_Trade Agreements
725.403 Exceptions.
Subpart 725.70_Source, Origin, and Nationality
725.701 General.
725.702 Designation of authorized geographic code.
725.703 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
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
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
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]
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.
[[Page 33]]
(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]
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]
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]
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]
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
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 34]]
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]
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]
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]
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.]
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 35]]
from under the provisions of subpart 701.4. By statute, the
Administrator or designee may determine that these requirements do not
apply to a particular contract or category of contracts. The M/OP
Director has been designated to make such determinations. One such
determination concerning subcontracting is set out in 726.7007.
[58 FR 8702, Feb. 17, 1993. Redesignated at 61 FR 39093, July 26, 1996,
as amended at 62 FR 40468, July 29, 1997; 64 FR 42040, Aug. 3, 1999]
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]
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]
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
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
[[Page 36]]
and indicates that when the PD applies to a contract, appropriate
provisions covering the subject matter are to be included. When the
provisions of PD 20 do apply to a contract, the cognizant technical
office shall provide to the contracting officer appropriate language
tailored to the specific circumstances for the contract statement of
work, or if applicable to the circumstances, the provision included in
the PD (see 726.7102) may be used as a clause in the contract. The
provision is not required in subcontracts.
[61 FR 39093, July 26, 1996]
726.7102 PD 20 provision.
Relocation of U.S. Businesses, Assistance to Export Processing Zones,
Internationally Recognized Workers' Rights (JAN 1994)
No funds or other support provided hereunder may be used in an
activity reasonably likely to involve the relocation or expansion
outside of the United States of an enterprise located in the United
States if non-U.S. production in such relocation or expansion replaces
some or all of the production of, and reduces the number of employees
at, said enterprise in the United States.
No funds or other support provided hereunder may be used in an
activity the purpose of which is the establishment or development in a
foreign country of any export processing zone or designated area where
the labor, environmental, tax, tariff, and safety laws of the country
would not apply, without the prior approval of USAID.
No funds or other support provided hereunder may be used in an
activity which contributes to the violation of internationally
recognized rights of workers in the recipient country, including those
in any designated zone or area in that country.
[61 FR 39093, July 26, 1996]
[[Page 37]]
SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS
PART 728_BONDS AND INSURANCE--Table of Contents
Subpart 728.1_Bonds
Sec.
728.105-1 Advance payment bonds.
Subpart 728.3_Insurance
728.305-70 Overseas worker's compensation and war-hazard insurance--
waivers and USAID insurance coverage.
728.307-2 Liability.
728.307-70 Medical Evacuation (MEDEVAC) Services (Mar 1993).
728.309 Contract clause for worker's compensation insurance.
728.313 Contract clauses for insurance of transportation or
transportation-related services.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13249, Apr. 3, 1984, unless otherwise noted.
Subpart 728.1_Bonds
728.105-1 Advance payment bonds.
(a) Generally, advance payment bonds will not be required in
connection with USAID contracts containing an advance payment provision.
In lieu thereof, contracting officers will follow procedures set forth
in 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
728.305-70 Overseas worker's compensation and war-hazard insurance--waivers
and USAID insurance coverage.
(a) Upon the recommendation of the USAID Administrator, the
Secretary of Labor may waive the applicability of the Defense Base Act
(DBA) with respect to any contract, subcontract, or subordinate
contract, work location, or classification of employees. Either the
contractor or USAID can request a waiver from coverage. Such a waiver
can apply to any employees who are not U.S. citizens, not residents of,
or not hired in the United States. Waivers requested by the contractor
are submitted to the contracting officer for approval and further
submission to the Department of Labor, which grants the waiver.
Application for a waiver is submitted on Labor Department Form BEC 565.
USAID has a number of blanket waivers already in effect for certain
countries that are applicable to its direct contracts with contractors
performing in such countries. Where such waivers are granted from
coverage under the DBA, the waiver is conditioned on providing other
worker's compensation coverage to employees to which the waiver applies.
Usually this takes the form of securing worker's compensation coverage
of the country where work will be performed
[[Page 38]]
or of the country of the employee's nationality, whichever offers
greater benefits. The Department of Labor has granted partial blanket
waivers of DBA coverage applicable to USAID-financed contracts performed
in certain countries, subject to two conditions:
(1) Employees hired in the United States by the contractor, and
citizens or residents of the United States are to be provided DBA
insurance coverage;
(2) Waived employees (i.e., employees who are neither U.S. citizens
nor U.S. resident aliens, and who were hired outside the United States)
will be provided worker's compensation benefits as required by the laws
of the country in which they are working or the laws of their native
country, whichever offers greater benefits. Information as to whether a
DBA Waiver has been obtained by USAID for a particular country may be
obtained from the cognizant USAID contracting officer.
(b) To assist contractors in securing insurance at minimal rates for
the workmen's compensation insurance required under the DBA, and to
facilitate meeting insurance requirements for such coverage, USAID,
after open and competitive negotiation, has entered into a contract with
an insurance carrier to provide such coverage at a specified rate. The
terms of this contract require the insurance carrier to provide
coverage, and the contractor to make payments to and handle its claims
with that insurance carrier. Contracting officers are responsible for
explaining and advising contractors of the details of securing such
insurance.
[49 FR 13249, Apr. 3, 1984, as amended at 52 FR 4144, Feb. 10, 1987.
Redesignated at 53 FR 50630, Dec. 16, 1988, and amended at 54 FR 16122,
Apr. 21, 1989; 56 FR 67224, Dec. 30, 1991]
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]
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]
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]
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 39]]
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.
731.205-71 Salary supplements for Host Government employees.
Subpart 731.3_Contracts With Educational Institutions
731.370 Predetermined fixed rates for indirect costs.
731.371 Compensation for personal services.
731.372 Fringe benefits.
731.373 Overseas recruitment incentive.
Subpart 731.7_Contracts With Nonprofit Organizations
731.770 OMB Circular A-122; cost principles for nonprofit organizations;
USAID implementation.
731.771 Bid and proposal costs.
731.772 Compensation for personal services.
731.773 Independent research and development costs.
731.774 Overseas recruitment incentive.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13250, Apr. 3, 1984, unless otherwise noted.
Subpart 731.1_Applicability
731.109 Advance agreements.
Advance agreements on selected costs may be negotiated with USAID
contractors by the 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
731.205-6 Compensation for personal services.
(a) General. When establishing the workweek for employees overseas
the contractor will take local and USAID Mission practice into account
and will insure that the workweek is compatible with that of those USAID
Mission and Cooperating Country employees with whom the contractor will
be working.
(b) Reasonableness. ADS Chapter 302.5.3 states USAID policy
regarding personnel compensation exceeding the maximum annual rate for
an Executive Service level ES-6. Consistent with this policy, any
employee's or consultant's base salary plus overseas recruitment
incentive, if any (see 731.205-70), subject to this policy will be
allowable under USAID-direct contracts only if approved in accordance
with the essential procedures in ADS chapter E302.5.3. USAID policies on
compensation of third country national or cooperating country national
employees are set forth in AIDAR 722.170.
(d)-(l) [Reserved]
(m) Fringe benefits. USAID's policies on certain fringe benefits
related to overseas service, including but not limited to leave,
holidays, differentials and allowances, etc. are set forth in the
appropriate contract clauses in AIDAR subpart 752.70.
[57 FR 5235, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62
FR 40468, July 29, 1997; 64 FR 5008, Feb. 2, 1999]
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]
731.205-70 Overseas recruitment incentive.
Note: the term employee as used in this section means an employee
who is a U.S. citizen or a U.S. resident alien.)
(a) If a contractor employee serving overseas under a contract does
not qualify for the exemption for overseas income provided under section
911 of the U.S. Internal Revenue Code (26 U.S.C. 911), such employee is
eligible to receive an overseas recruitment incentive (ORI), to the
extent the ORI: Is authorized by the contractor's normal policy and
practice; is deemed necessary by the contractor to recruit and retain
qualified employees for overseas services; and does not exceed 10% of
[[Page 40]]
the base salary of the employee from date of arrival at overseas post to
begin assignment to date of departure from post at the end of
assignment. ORI is to be paid as a single payment at the end of the
employee tour of duty overseas. The contractor shall take all reasonable
and prudent steps to ensure that ORI is not paid to any employee who has
received the IRS section 911 exemption.
(b) In the event that an employee subsequently receives a section
911 exclusion for any part of the base salary upon which this supplement
has been paid, such supplement or appropriate portion thereof shall be
reimbursed by the contractor to USAID with interest. The interest shall
be calculated at the average U.S. Treasury rate in effect for the period
that the contractor or his employee had the funds. Neither the
contractor's nor the subcontractor's inability to collect refunds from
eligible employees shall be used as a basis to excuse subsequent refunds
by the contractor to USAID.
[57 FR 5236, Feb. 13, 1992]
731.205-71 Salary supplements for Host Government employees.
(a) Definitions. (1) A Host Government (HG) employee is a person
paid by the HG, occupying an established position, either temporary or
permanent, part-time or full-time, within a HG institution.
(2) An HG institution is an organization in which the government
owns at least a fifty percent share or receives at least fifty percent
of its financial support from the government.
(b) General. Salary supplement occurs when payments are made that
augment an HG employee's base salary or premiums, overtime, extra
payments, incentive payment and allowances for which the HG employee
would qualify under HG rules or practices for the performance of his/
hers regular duties or work performed during his/hers regular office
hours. Per diem, invitational travel, honoraria and payment for work
carried out outside of normal working hours are not considered to be
salary supplements subject to the provisions in USAID policy referenced
in paragraph (c) of this section.
(c) Salary supplements are eligible for USAID financing only when
authorized in accordance with USAID policy established in the cable
State 119780 dated April 15, 1988 (on ADS-CD under USAID Handbooks,
Handbook 1). If salary supplements have been authorized in a particular
case, the Contracting Officer shall provide written approval to the
contractor in order for such costs to be eligible. Any specific
requirements or limitations shall be specified in the approval.
(d) Contracting Officers shall insert the Clause at 752.231-71 in
all contracts in which there is a possibility of the need of HG
employees. It should also be inserted in all subsequent subcontracts.
[64 FR 16649, Apr. 6, 1999]
Subpart 731.3_Contracts With Educational Institutions
731.370 Predetermined fixed rates for indirect costs.
Section 635(k) of the Foreign Assistance Act of 1961, as amended,
authorizes USAID to use predetermined fixed rates in determining the
indirect costs applicable under contracts with educational institutions.
731.371 Compensation for personal services.
(a) General. When establishing the workweek for employees overseas
the contractor will take local and USAID Mission practice into account
and will ensure that the workweek is compatible with that of those USAID
Mission and Cooperating Country employees with whom the contractor will
be working.
(b) Salaries and wages. (1) ADS Chapter 302.5.3 states USAID policy
regarding personnel compensation exceeding the maximum annual rate for
an Executive Service level ES-6. Consistent with this policy, any
employee's or consultant's base salary plus overseas recruitment
incentive, if any (see 731.205-70), subject to this policy will be
allowable under USAID-direct contracts only if approved in accordance
with the essential procedures in ADS chapter E302.5.3.
[[Page 41]]
(2) In considering consulting income as a factor when determining
allowable salary for service under a contract:
(i) For faculty members working under annual appointments, salary
for service under the contract may include the employee's on-campus
salary plus ``consulting income'' (that is, income from employment other
than the employee's regular on-campus appointment, excluding business or
other activities not connected with the employee's profession) earned
during the year preceding employment under the contract.
(ii) For faculty members working under academic year appointments,
salary for service under the contract may include the employee's on-
campus academic year salary plus ``consulting income'' as defined above
earned during the year proceeding employment under the contract, or
salary for service under the contract may be derived by annualizing the
academic year salary (in which case ``consulting income'' may not be
included).
(3) USAID policies and compensation of third country national or
cooperating country national employees are set forth in AIDAR 722.170.
[57 FR 5236, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62
FR 40469, July 29, 1997; 64 FR 5008, Feb. 2, 1999]
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]
731.373 Overseas recruitment incentive.
USAID's policies regarding overseas recruitment incentives are set
forth in AIDAR 731.205-70. These policies are also applicable to
contracts with an educational institution.
[57 FR 5236, Feb. 13, 1992]
Subpart 731.7_Contracts With Nonprofit Organizations
731.770 OMB Circular A-122, cost principles for nonprofit organizations;
USAID implementation.
(a) Paragraph 6 of the transmittal letter for OMB Circular A-122
specifies that ``Agencies shall designate a liaison official to serve as
the agency representative on matters relating to the implementation of
this Circular.'' The Director, Office of Procurement, has been so
designated. The Overhead and Special Cost and Contract Close-Out Branch,
Office of Procurement (OCC) provides staff assistance to the Director
concerning OMB Circular A-122. OCC is also responsible for obtaining
cognizance under the criteria in the transmittal letter for OMB Circular
A-122; for liaison with other cognizant agencies; for authorizing
exclusion of OMB Circular A-122 coverage for a particular nonprofit
organization pursuant to paragraph 5 of the OMB Circular A-122
transmittal letter; and for advice and assistance in applying OMB
Circular A-122 cost principles.
(b) Paragraph 4b of the OMB Circular A-122 transmittal letter
contains a definition of prior approval as follows:
Prior approval means securing the awarding agency's permission in
advance to incur costs for those items that are designated as requiring
prior approval by OMB Circular A-122. Generally, this permission will be
in writing. Where an item of cost requiring prior approval is specified
in the budget of an award, approval of the budget constitute approval of
that cost.
Consequently, an award containing a budget constitutes prior approval of
the direct cost item in the budget, unless otherwise annotated.
Accordingly, award budgets should be appropriately annotated
substantially as follows:
Inclusion of any cost in the line item budget of this award does not
obviate the requirement for prior approval of cost items designated as
requiring prior approval by OMB Circular A-122 ; or
In accordance with the requirements to OMB Circular No. A-122,
approval is granted to incur costs for (name specific item or
[[Page 42]]
items) which are included in the budget of this award.
[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51
FR 20651, June 6, 1986; 56 FR 67225, Dec. 30, 1991]
731.771 Bid and proposal costs.
Pending the establishment of Government-wide principles in
Attachment B of OMB Circular A-122, USAID will treat bid and proposal
costs as follows:
(a) Bid and proposal costs are the costs of preparing bids,
proposals, and applications for potential activities such as Government
and non-Government grants, contracts and other agreements, including the
development of scientific, cost, and other data needed to support such
bids, proposals, and applications. Except as provided in (b) below, bid
and proposal costs of the current accounting period of both successful
and unsuccessful bids and proposals normally should be treated as
indirect costs for allocation to all current activities, and no bid and
proposal costs of past accounting periods will be allocable to the
current period. However, if the organization's established practice is
to treat bid and proposal costs by some other method, the results
obtained may be accepted only if found to be reasonable and equitable.
(b) Bid and proposal costs incurred by the organization to obtain
unrestricted funds are to be treated as fund raising and allocated an
appropriate share of indirect costs under the conditions described in
paragraph B.3 of Attachment A to OMB Circular A-122.
731.772 Compensation for personal services.
The policies set for in AIDAR 731.205-6 are also applicable to
contracts with a nonprofit organization.
[57 FR 5236, Feb. 13, 1992]
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.
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_General
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
732.111 Contract clauses.
(a) [Reserved]
(b) USAID may obtain short term and (less frequently) long-term
indefinite quantity professional services through Agency-specific
indefinite quantity contracts that are a combination of contract types.
Rather than using the fixed-price payment clauses for indefinite
quantity contracts, when these IQCs provide for fixed daily rates (which
may include wages, overhead, general and administrative expenses, fringe
benefits, and profit) for services and reimbursement of other direct
costs (such as travel and transportation) at cost, then the payment
clause at 752.232-7 shall be used in the contract.
[61 FR 39094, July 26, 1996]
Subpart 732.4_Advance Payments
Source: 56 FR 67225, Dec. 30, 1991, unless otherwise noted.
[[Page 43]]
732.401 Statutory authority.
(a) Sections 635 (b) of the Foreign Assistance Act and Executive
Order 11223, May 12, 1965, 30 FR 6635, permit the making of advance
payments with respect to functions authorized by the Foreign Assistance
Act. Advance payments may also be made under section 305 of the Federal
Property and Administrative Services Act of 1949, which provides
authority, not otherwise available to USAID, to take a paramount lien.
(b) The Act of August 28, 1968, Public Law 85-804 does not apply to
USAID.
[56 FR 67225, Dec. 30, 1991, as amended at 62 FR 40469, July 29, 1997]
732.402 General.
(a)-(d) [Reserved]
(e)(1) U.S. Dollar advances to for-profit organizations, including
advances for disbursement to grantees, shall be processed and approved
in accordance with ADS 583.5.6b.
(2) All local currency advances to for-profit organizations require
the approval of the Head of the Contracting Activity, after consultation
with the Mission Controller.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996;
64 FR 5008, Feb. 2, 1999; 64 FR 42042, Aug. 3, 1999]
732.403 Applicability.
References to nonprofit contracts with nonprofit educational or
research institutions for experimental, research and development work
include nonprofit contracts with nonprofit institutions for: (a)
technical assistance services provided to or for another country or
countries, and (b) projects which concern studies, demonstrations and
similar activities related to economic growth or the solution of social
problems of developing countries.
732.406-70 Agency-issued letters of credit.
This subsection provides guidance on use of USAID issued letters of
credit (LOC) for advance payments.
732.406-71 Circumstances for use of an LOC.
An LOC shall be used under the following circumstances:
(a) The contracting officer has determined that an advance payment
is necessary and appropriate in accordance with this subpart and the
guidance provided in FAR 32.4;
(b) USAID has, or expects to have, a continuing relationship of at
least one year with the organization, and the annual amount required for
advance financing will be at least $50,000; and
(c) The Office of Financial Management, Cash Management and Payment
Division (FM/CMP) agrees that the LOC payment method is appropriate.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996]
732.406-72 Establishing an LOC.
(a) While the contract will provide for the use of an LOC when it is
justified under subsection 732.406-71, the LOC is a separate agreement
between the contractor and FM/CMP, acting on behalf of the USAID
Controller. The terms and conditions of the LOC are established by FM/
CMP/GIB.
(b) In order to establish or amend an LOC, the contracting officer
shall provide FM/CMP with the following information:
(1) The name of the Contractor;
(2) The official USAID contract number;
(3) The obligated amount of the contract;
(4) The budget plan code for the obligated funds;
(5) The effective date and estimated completion date.
(6) The contractor Federal Tax Identification Number.
This information should be provided in writing to FM/CMP together
with a request to establish or amend an LOC as early in the negotiation
cycle as possible.
(c) FM/CMP will prepare the LOC in accordance with USAID's LOC
procedures; issue or amend and maintain the LOC in accordance with its
terms and USAID procedures and regulations; and provide the contracting
officer(s) a copy of each LOC and any other material governing its use
at the time the LOC is issued or when it is amended or modified.
[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996;
64 FR 42042, Aug. 3, 1999]
[[Page 44]]
732.406-73 LOC contract clause.
(a) If payment is to be provided by LOC, the contract shall contain
the clause in subsection 752.232-70.
(b) Contracting offices shall ensure that an appropriate (48 CFR)
FAR payment clause is also included in the contract, in the event that
the LOC is revoked pursuant to 732.406-74.
[56 FR 67225, Dec. 30, 1991, as amended at 64 FR 5008, Feb. 2, 1999]
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 Protests 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.
733.101 Definitions.
(a) All ``days'' referred to in this subpart are deemed to be
``calendar days'', in accordance with FAR 33.101. In the case of USAID
overseas offices with non-Saturday/Sunday weekend schedules, the
official post weekend applies in lieu of Saturday and Sunday.
(b) All other terms defined in FAR 33.101 are used herein with the
same meaning.
[61 FR 39094, July 26, 1996, as amended at 64 FR 42042, Aug. 3, 1999]
733.103-70 Protests to the agency.
USAID follows the agency protest procedures in FAR 33.103, as
supplemented by this section.
733.103-71 Filing of protest.
(a) Protests must be in writing and addressed to the Contracting
Officer for consideration by the M/OP Director.
(b) A protest shall include, in addition to the information required
in FAR 33.103(d)(2), the name of the issuing Mission or office.
(c) Material submitted by a protester will not be withheld from any
interested party outside the government or from any government agency if
the M/OP Director decides to release such material, except to the extent
that the withholding of such information is permitted or required by law
or regulation.
[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64
FR 42040, Aug. 3, 1999]
733.103-72 Responsibilities.
(a) M/OP Director. The decision regarding an agency protest shall be
made by the M/OP Director within 30 days from the date a proper protest
is filed unless the M/OP Director determines that a longer period is
necessary to resolve the protest, and so notifies the protester in
writing. The M/OP Director shall make his or her decision after
personally reviewing and considering all aspects of the case as
presented in the protest itself and in any documentation provided by the
contracting officer, and after obtaining input and clearance from the
Assistant General Counsel for Litigation and Enforcement (GC/LE). The
decision shall be in writing and constitutes the final decision of the
Agency.
[[Page 45]]
(b) Contracting Officer. The Contracting Officer is responsible for
requesting an extension of the time for acceptance of offers as
described in FAR 33.103(f)(2).
[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64
FR 42040, Aug. 3, 1999]
733.103-73 Protests excluded from consideration.
(a) Contract administration. Disputes between a contractor and USAID
are resolved pursuant to the disputes clause of the contract and the
Contract Disputes Act of 1978.
(b) Small business size standards and standard industrial
classification. Challenges of established size standards or the size
status of particular firms, and challenges of the selected standard
industrial classification are for review solely by the Small Business
Administration.
(c) Procurement under Section 8(a) of the Small Business Act.
Contracts are let under Section 8(a) of the Small Business Act to the
Small Business Administration solely at the discretion of the
Contracting Officer, and are not subject to review.
(d) Protests filed in the General Accounting Office (GAO). Protests
filed with the GAO will not be reviewed.
(e) Procurements funded by USAID to which USAID is not a party. No
protest of a procurement funded by USAID shall be reviewed unless USAID
is a party to the acquisition agreement.
(f) Subcontractor protests. Subcontractor protests will not be
considered.
(g) Judicial proceedings. Protests will not be considered when the
matter involved is the subject of litigation before a court of competent
jurisdiction or when the matter involved has been decided on the merits
by a court of competent jurisdiction.
(h) Determinations of responsibility by the contracting officer. A
determination by the contracting officer that a bidder or offeror is or
is not capable of performing a contract will not be reviewed by the M/OP
Director.
(i) Small Business Certificate of Competency Program. Any referral
made to the Small Business Administration pursuant to section 8(b)(7) of
the Small Business Act, or any issuance of, or refusal to issue, a
certificate of competency under that section will not be reviewed by the
M/OP Director.
[61 FR 39094, July 26, 1996, as amended at 64 FR 42040, Aug. 3, 1999]
Subpart 733.27_USAID Procedures for Disputes and Appeals
733.270-1 Designation of Armed Services Board of Contract Appeals (ASBCA)
to hear and determine appeals under USAID contracts.
(a) The ASBCA is hereby designated the authorized representative of
the Administrator of the U.S. Agency for International Development
(USAID) in hearing, considering, and determining as fully and finally as
might the Administrator, appeals by contractors from decisions on
disputed questions taken pursuant to the provisions of contracts
requiring the determination of such appeals by the Administrator or his/
her duly authorized representative or Board.
(b) In acting under this designation, the ASBCA will follow such
rules and procedures as are or may be prescribed for the conduct of
Defense Department contract appeal cases, except for the rules entitled
``Forwarding of Appeals'' (Rule 3) and ``Duties of the Contracting
Officer'' (Rule 4), which subjects will be governed by procedures to be
promulgated by the General Counsel of USAID with approval of the
Chairman of the ASBCA.
(c) The General Counsel of USAID will assure representation of the
interests of the Government in proceedings before the ASBCA.
(d) All officers and employees of USAID will cooperate with the
ASBCA and Government counsel in the processing of appeals so as to
assure their speedy and just determination.
[53 FR 4980, Feb. 19, 1988. Redesignated at 61 FR 39095, July 26, 1996;
61 FR 51235, Oct. 1, 1996]
733.270-2 Special procedures regarding contract disputes appeals
promulgated pursuant to paragraph 2 of the Administrator's designation.
(a) The following rules will apply, in lieu of Rules 3 and 4(a) of
the ASBCA,
[[Page 46]]
to contract dispute appeals to the Administrator of the USAID or his/her
authorized representative which are docketed with that Board.
(b) Rule 3 (USAID)--Forwarding of Appeals. When a notice of appeal
in any form has been received by the contracting officer, he/she shall
endorse thereon the date of mailing (or date of receipt, if otherwise
conveyed) and within 10 days shall forward said notice of appeal to the
Board with a copy to the USAID General Counsel in Washington, DC.
Following receipt by the Board of the original notice of an appeal
(whether through the contracting officer or otherwise), the contractor,
the contracting officer, and the USAID General Counsel will be promptly
advised of its receipt, and the contractor will be furnished a copy of
these rules.
(c) Rule 4 (USAID). Preparation, Contents, Organization, Forwarding,
and Status of Appeal File (Supersedes Rule 4, ``Duties of Contracting
Officer'' of the ASBCA rules in effect on April 1, 1980).
(d) Duties of Contracting Officer. Within 30 days of receipt of an
appeal or advice that an appeal has been filed, the contracting officer
shall assemble and transmit to the USAID General Counsel in Washington,
DC, two copies of all documents pertinent to the appeal, including:
(1) The decision and findings of fact from which appeal is taken;
(2) The contract, including specifications and pertinent amendments,
plans and drawings;
(3) All correspondence between the parties pertinent to the appeal,
including the letter or letters of claim in response to which the
decision was issued;
(4) All transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witnesses on the matter
in dispute made prior to the filing of the notice of appeal with the
Board; and
(5) Any additional information considered pertinent.
(e) The General Counsel will compile the appeal file from such
documents, which file must contain the items enumerated in paragraphs
(d) (1) through (5) of this section and will promptly, and in any event
within 65 days after the appeal is docketed by the Board, transmit the
appeal file to the Board. The General Counsel will notify the appellant
when he/she has compiled the appeal file, will provide him/her with a
list of its contents, and will afford him/her an opportunity to examine
the complete file at the office of the Board and, if the General Counsel
deems it appropriate, at any overseas location, for the purpose of
satisfying himself/herself as to the contents, and furnishing or
suggesting any additional documentation deemed pertinent to the appeal.
After receipt of the foregoing file, as it may be augmented at the time
of receipt, the Board will promptly advise the parties.
[53 FR 4980, Feb. 19, 1988. Redesignated at 61 FR 39095, July 26, 1996;
61 FR 51235, Oct. 1, 1996; 62 FR 40469, July 29, 1997]
[[Page 47]]
SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING
PART 734_MAJOR SYSTEM ACQUISITION--Table of Contents
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381),
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp.,
p. 435.
734.002-70 USAID policy.
In order for an USAID acquisition to be considered a major system
acquisition it must meet the criteria of OMB Circular A-109 and FAR part
34, and must have an estimated value of $15 million or more during the
first year of the contract. All major systems acquisition must be
approved in advance by the M/OP Director.
[55 FR 39976, Oct. 1, 1990, as amended at 64 FR 42040, Aug. 3, 1999]
PART 736_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS--Table of Contents
Subpart 736.6_Architect-Engineer Services
Sec.
736.602-2 Evaluation boards.
736.602-3 Evaluation board functions.
736.602-4 Selection authority.
736.602-5 Short selection process for procurements not to exceed the
simplified acquisition threshold.
736.603 Collecting data on and appraising firms' qualifications.
736.605 Government cost estimate for architect-engineer work.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13254, Apr. 3, 1984, unless otherwise noted.
Subpart 736.6_Architect-Engineer Services
736.602-2 Evaluation boards.
(a)-(b) [Reserved]
(c) Each evaluation board will include a representative of the
Contracting Officer and, as appropriate, the cognizant bureau.
[54 FR 46391, Nov. 3, 1989]
736.602-3 Evaluation board functions.
Agency architect-engineer evaluation boards shall perform the
following functions:
(a) Prepare a selection memorandum recommending no less than three
firms which are considered most highly qualified to perform the required
services for submission to the head of the contracting activity for his/
her approval. This selection memorandum shall include the information
specified in 736.602-3(c).
(b) In evaluating architect-engineer firms, the architect-engineer
evaluation board shall apply the following criteria, other criteria
established by Agency regulations, and any criteria set forth in the
public notice on a particular contract:
(1) Specialized experience of the firm (including each member of
joint venture or association) with the type of service required;
(2) Capacity of the firm to perform the work (including any
specialized services) within the time limitations;
(3) Past record of performance on contracts with USAID or other
Government agencies and private industry with respect to such factors as
control of costs, quality of work, and ability to meet schedules, to the
extent such information is available;
(4) Ability to assign an adequate number of qualified key personnel
from the organization, including a competent supervising representative
having considerable experience in responsible positions on work of a
similar nature;
(5) The portions of the work the architect-engineer is able to
perform with its own forces when required;
(6) Ability of the architect-engineer to furnish or to obtain
required materials and equipment;
(7) If the geographical or topographical aspects of the project are
deemed vital, familiarity with the locality where the project is
situated;
(8) Financial capacity;
(9) Responsibility of the architect-engineer under standards
provided in FAR subpart 9.1. No contract may be
[[Page 48]]
awarded to a contractor that does not meet these standards;
(10) Volume of work previously awarded to the firm by the Agency,
with the object of effecting an equitable distribution of architect-
engineer contracts among qualified firms. Each architect-engineer
evaluation board shall give favorable consideration, to the fullest
extent practicable to the most highly qualified firms that have not had
prior experience on Government projects (including small business firms
and firms owned by the socially and/or economically deprived).
(c) The evaluation board shall prepare a selection memorandum for
the approval of the head of the contracting activity. The selection
memorandum will be signed by the board chairman and cleared by each
board member. The selection memorandum shall include the following
information:
(1) A listing by name of all firms reviewed by the board;
(2) A listing of the evaluation criteria applied;
(3) An analysis of the selection showing the rationale for the
board's recommendation;
(4) The board's recommendation of the three most highly qualified
firms, in order of preference;
(5) An independent Government cost estimate. The evaluation board
shall require the project engineer to develop an independent Government
estimate of the cost of the required architect-engineer services.
Consideration shall be given to the estimated value of the services to
be rendered, the scope, complexity, and the nature of the project and
the estimated costs expected to be generated by the work. The
independent Government estimate shall be revised as required during
negotiations to correct noted deficiencies and reflect changes in or
clarification of, the scope of the work to be performed by the
architect-engineer. A cost estimate based on the application of
percentage factors to cost estimates of the various segments of the work
involved, e.g., construction project, may be developed for comparison
purposes, but such a cost estimate shall not be used as a substitute for
the independent Government estimate.
736.602-4 Selection authority.
(a) The head of the contracting activity or his/her authorized
designee shall review the selection memorandum and shall either approve
it or return it to the board for reconsideration for specified reasons.
(b) Approval of the selection memorandum by the head of the
contracting activity or his/her authorized designee shall serve as
authorization for the contracting office to commence negotiation.
736.602-5 Short selection process for procurements not to exceed the
simplified acquisition threshold.
References to FAR 36.602-3 and 36.602-4 contained in FAR 36.602-5
shall be construed as references to 736.602-3 and 736.602-4 of this
subpart.
[49 FR 13254, Apr. 3, 1984, as amended at 61 FR 39095, July 26, 1996]
736.603 Collecting data on and appraising firms' qualifications.
An USAID Consultant Registry Information System (ACRIS) is
maintained in Washington by the USAID Office of Small and Disadvantaged
Business Utilization. Architect-engineers wishing to perform contracts
for USAID should file the appropriate form with that office, as provided
in section 705.002. Procurements are publicized in the Commerce Business
Daily, as provided in FAR part 5.
[49 FR 13254, Apr. 3, 1984, as amended at 52 FR 21059, June 4, 1987; 53
FR 50631, Dec. 16, 1988]
736.605 Government cost estimate for architect-engineer work.
See 736.602-3(c)(5).
PART 737 [RESERVED]
[[Page 49]]
SUBCHAPTER G_CONTRACT MANAGEMENT
PART 742_CONTRACT ADMINISTRATION--Table of Contents
Subpart 742.7_Indirect Cost Rates
Sec.
742.770 Negotiated indirect cost rate agreement.
Subpart 742.15_Contractor Performance Information
742.1501 [Reserved]
742.1502 Policy.
742.1503 Procedures.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Subpart 742.7_Indirect Cost Rates
742.770 Negotiated indirect cost rate agreement.
Except for educational institutions having a cognizant agency (as
defined in OMB Circular A-88, 44 FR 70094, 12/5/79) other than USAID,
USAID may establish negotiated overhead rates in a Negotiated Indirect
Cost Rate Agreement, executed by both parties. The Negotiated Indirect
Cost Rate Agreement is automatically incorporated in each contract
between the parties and shall specify: (a) The final rate(s), (b) the
base(s) to which the rate(s) apply, (c) the period(s) for which the
rate(s) apply, (d) the items treated as direct costs, and (e) the
contract(s) to which the rate(s) apply. The Negotiated Indirect Cost
Rate Agreement shall not change any monetary ceiling, obligation, or
specific cost allowance or disallowance provided for in each contract
between the parties.
[49 FR 13256, Apr. 3, 1984; 53 FR 50631, Dec. 16, 1988]
Subpart 742.15_Contractor Performance Information
Source: 65 FR 36642, June 9, 2000, unless otherwise noted.
742.1501 [Reserved]
742.1502 Policy.
(a) USAID contracting officers shall report contractor performance
information at least annually, employing the procedures prescribed by
the NIH Contractor Performance System. (Access to the system by USAID
contracting office personnel is authorized by the USAID Past Performance
Coordinator, E-mail address: AIDNET: Past [email protected]@aidw/
Internet: [email protected].)
(b) Performance for personal services contracts awarded under AIDAR
Appendices D and J shall not be evaluated under the contractor
performance reporting procedures prescribed in FAR subpart 42.15.
[65 FR 36642, June 9, 2000; 65 FR 39470, June 26, 2000]
742.1503 Procedures.
(a) [Reserved]
(b) Personal services contractors shall be recognized as Government
personnel for the purposes of the restriction on access to contractor
performance information in FAR 42.1503(b).
PART 745_GOVERNMENT PROPERTY--Table of Contents
Authority: Sec. 621, Pub. L. 787-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp.,
p. 435.
Subpart 745.1_General
745.106 Contract clauses.
(a) The contracting officer shall insert the clause at 752.245-71 in
all contracts under which the contractor will acquire property for use
overseas and the contract funds were obligated under a Strategic
Objective agreement (or similar agreement) with the cooperating country.
(b) The contracting officer shall insert the applicable clause as
required in (48 CFR) FAR 45.106 in all contracts
[[Page 50]]
under which the contractor will acquire property with funds not already
obligated under a Strategic Objective agreement (or similar agreement)
with the cooperating country.
[64 FR 5008, Feb. 2, 1999]
PART 747_TRANSPORTATION--Table of Contents
Authority: Sec. 621, Pub. L. 98-195, 75 Stat. 445 (22 U.S.C. 2381),
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp.,
p. 435.
Subpart 747.5_Ocean Transportation by U.S.-Flag Vessels
747.507 Contract clauses.
Contracting officers shall insert the clause at 752.247-70 in
solicitations and contracts solely for ocean transportation services,
and in solicitations and contracts for goods and ocean transportation
services when the ocean transportation will be fixed at the time the
contract is awarded. Contracting Officers shall use (48 CFR) FAR 52.247-
64 as prescribed in (48 CFR) FAR 27.507(a) in other situations.
[64 FR 5008, Feb. 2, 1999]
PART 749_TERMINATION OF CONTRACTS--Table of Contents
Subpart 749.1_General Principles
Sec.
749.100 Scope of subpart.
749.111 Review of proposed settlements.
749.111-70 Termination settlement review boards.
749.111-71 Required review and approval.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13256, Apr. 3, 1984, unless otherwise noted.
Subpart 749.1_General Principles
749.100 Scope of subpart.
The Foreign Aid and Related Agencies Appropriation Act, 1963, and
subsequent appropriation Acts, have imposed the following requirement:
None of the funds appropriated or made available pursuant to this
Act for carrying out the Foreign Assistance Act of 1961, as amended, may
be used for making payments on any contract for procurement to which the
United States is a party entered into after the date of enactment of
this Act which does not contain a provision authorizing the termination
of such contract for the convenience of the United States.
See, for example, section 110 of the Foreign Assistance and Related
Agencies Appropriation Act, 1965.
749.111 Review of proposed settlements.
749.111-70 Termination settlement review boards.
(a) The USAID Settlement Review Board shall be composed of the
following members or their delegates (except as provided under 749.111-
71(b)):
(1) M/OP Director;
(2) Controller;
(3) General Counsel.
(b) The M/OP Director or his/her delegate shall be designated as
chairman of the board. Delegate members of the board shall have broad
business and contracting experience and shall be senior USAID officials.
Each member or his/her delegate must be in attendance in order to
conduct business, and the board shall act by majority vote. No
individual shall serve as a member of a board for the review of a
proposed settlement if he/she has theretofore reviewed, approved or
disapproved or recommended approval, disapproval or other action with
respect to any substantive element of such settlement proposal.
(c) The chairman shall appoint a nonvoting recorder who shall be
responsible for receiving cases, scheduling and recording the
proceedings at meetings, maintaining a log of all cases received by him/
her for the board, and other duties as assigned by the board.
[49 FR 13256, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999]
749.111-71 Required review and approval.
(a) When required. The USAID Settlement Review Board shall receive
and approve all USAID/W and Mission proposed settlements or
determinations if:
[[Page 51]]
(1) The amount of settlement, by agreement or determination,
involves $100,000 or more;
(2) The settlement or determination is limited to adjustment of the
fee of a cost-reimbursement contract or subcontract and: (i) In the case
of complete termination, the fee, as adjusted, with respect to the
terminated portion of the contract or subcontract is $100,000 or more;
or (ii) in the case of a partial termination, the fee, as adjusted, with
respect to the terminated portion of the contract or subcontract is
$100,000 or more;
(3) The head of the contracting activity concerned determines that a
review of a specific case or class of cases is desirable; or
(4) The contracting officer, in his/her discretion, desires review
by the board.
(b) Level of review. Proposed settlements in excess of $5 million
shall be reviewed and approved by a board consisting of the M/OP
Director, the General Counsel, and the Controller, without power of
redelegation.
(c) Submission of information. The contracting officer shall submit
to the board a statement of the proposed settlement agreement or
determination, supported by such detailed information as is required for
an adequate review. This information should normally include copies of:
(1) The contractor's or subcontractor's settlement proposal, (2) the
audit report, (3) the property disposal report and any required
approvals in connection therewith, and (4) the contracting officer's
memorandum explaining the settlement. The board may, in its discretion,
require the submission of additional information.
[49 FR 13256, Apr. 3, 1984, as amended at 57 FR 5236, Feb. 13, 1992; 59
FR 33446, June 29, 1994; 64 FR 42040, Aug. 3, 1999]
PART 750_EXTRAORDINARY CONTRACTUAL ACTIONS--Table of Contents
Sec.
750.000 Scope of part.
Subpart 750.70 [Reserved]
Subpart 750.71_Extraordinary Contractual Actions To Protect Foreign
Policy Interests of the United States
750.7100 Scope of subpart.
750.7101 Authority.
750.7102 General policy.
750.7103 Definitions.
750.7104 Types of actions.
750.7105 Approving authorities.
750.7106 Standards for deciding cases.
750.7106-1 General.
750.7106-2 Amendments without consideration.
750.7106-3 Mistakes.
750.7106-4 Informal commitments.
750.7107 Limitations upon exercise of authority.
750.7108 Contractual requirements.
750.7109 Submission of requests by contractors.
750.7109-1 Filing requests.
750.7109-2 Form of requests by contractors.
750.7109-3 Facts and evidence.
750.7110 Processing cases.
750.7110-1 Investigation.
750.7110-2 Office of General Counsel coordination.
750.7110-3 Submission of cases to the M/OP Director.
750.7110-4 Processing by M/OP Director.
750.7110-5 Contract files.
750.7110-6 Inter-agency coordination.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381)
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,
p. 435.
Source: 49 FR 13257, Apr. 3, 1984, unless otherwise noted.
750.000 Scope of part.
USAID is not among the agencies named in the Act or authorized by
the President to take actions under it; however, see Subpart 750.71--
Extraordinary Contractual Actions to Protect Foreign Policy Interests of
the United States.
Subpart 750.70 [Reserved]
Subpart 750.71_Extraordinary Contractual Actions To Protect Foreign
Policy Interests of the United States
750.7100 Scope of subpart.
This subpart sets forth the standards and the procedures for
disposition of
[[Page 52]]
requests for extraordinary contractual actions under Executive Order
11223.
750.7101 Authority.
Under section 633 of the Foreign Assistance Act of 1961, 75 Stat.
454 (22 U.S.C. 2933), as amended; Executive Order 11223, dated May 12,
1965 (30 FR 6635), as amended; and Executive Order 12163, dated
September 29, 1979 (44 FR 56673), as amended, the Administrator of the
U.S. Agency for International Development has been granted authority to
provide extraordinary contractual relief. The Authority is set forth in
sections 3 and 4 of Executive Order 11223, as follows:
Section 3. With respect to cost-type contracts heretofore or
hereafter made with non-profit institutions under which no fee is
charged or paid, amendments or modifications of such contracts may be
made with or without consideration and may be utilized to accomplish the
same things as any original contract could have accomplished,
irrespective of the time or circumstances of the making, or of the form
of the contract amended or modified, or of the amending or modifying
contract and irrespective of rights which may have accrued under the
contract or the amendments or modifications thereof.
Section 4. With respect to contracts heretofore or hereafter made,
other than those described in section 3 of this order, amendments and
modifications of such contracts may be made with or without
consideration and may be utilized to accomplish the same things as any
original contract could have accomplished, irrespective of the time or
circumstances of the making, or the form of the contract amended or
modified, or of the amending or modifying contract, and irrespective of
rights which may have accrued under the contract or the amendments or
modifications thereof, if the Secretary of State or the Director of the
United States International Development Cooperation Agency (with respect
to functions vested in or delegated to Director) determines in each case
that such action is necessary to protect the foreign policy interests of
the United States.
[49 FR 49472, Dec. 20, 1984, as amended at 62 FR 40469, July 29, 1997;
64 FR 42042, Aug. 3, 1999]
750.7102 General policy.
Extra-contractual claims arising from foreign assistance contracts
will be processed in accordance with this subpart, which is similar to
that utilized to process claims for extraordinary relief under FAR Part
50, as modified to meet the circumstances involved under the Foreign
Assistance Act and the different authority involved.
750.7103 Definitions.
(a) The term approving authority as used in this subpart means an
officer or official having been delegated authority to approve actions
under the Executive Order. This authority is distinguished from
authority to take appropriate contractual action pursuant to such
approval.
(b) The term the Executive Order shall mean Executive Order 11223
(30 FR 6635) as amended, unless otherwise stated.
(c) The term the Act shall mean the Foreign Assistance Act of 1961,
as amended.
[49 FR 13257, Apr. 3, 1984, as amended at 49 FR 49472, Dec. 20, 1984]
750.7104 Types of actions.
Three types of actions may be taken by or pursuant to the direction
of an approving authority under the Executive Order. These are
contractual adjustments such as amendments without consideration,
correction of mistakes, and formalization of informal commitments.
750.7105 Approving authorities.
All authority to approve actions under this subpart has been
delegated to the M/OP Director.
[50 FR 16086, Apr. 24, 1985, as amended at 64 FR 42040, Aug. 3, 1999]
750.7106 Standards for deciding cases.
750.7106-1 General.
The mere fact that losses occur under a Government contract is not,
by itself, a sufficient basis for the exercise of the authority
conferred by the Executive Order. Whether, in a particular case,
appropriate action such as amendment without consideration, correction
of a mistake or ambiguity in a contract, or formalization of an informal
commitment, will protect the foreign policy interests of the United
States is a matter of sound judgment to be made on the basis of all of
the
[[Page 53]]
facts of such case. Although it is obviously impossible to predict or
enumerate all the types of cases with respect to which action may be
appropriate, examples of certain cases or types of cases where action
may be proper are set forth in sections 750.7106-2 through 750.7106-4.
Even if all of the factors contained in any of the examples are present,
other factors or considerations in a particular case may warrant denial
of the request. These examples are not intended to exclude other cases
where the approving authority determines that the circumstances warrant
action.