[Federal Register Volume 62, Number 145 (Tuesday, July 29, 1997)]
[Rules and Regulations]
[Pages 40464-40471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18603]
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INTERNATIONAL DEVELOPMENT COOPERATION AGENCY
Agency for International Development
48 CFR Parts 701, 702, 703, 704, 705, 706, 708, 709, 711, 715, 716,
717, 719, 722, 724, 725, 726, 728, 731, 732, 733, 734, 736, 749,
750, 752, 753, and Appendices A, C, G, and H to Chapter 7
[AIDAR Notice 97-1]
RIN 0412-AA30
Miscellaneous Amendments to Acquisition Regulations
AGENCY: Agency for International Development (USAID), IDCA.
ACTION: Final rule.
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SUMMARY: The USAID Acquisition Regulation (AIDAR) is being amended to
implement the Agency's new regulation on Source, Origin, and
Nationality; to reflect the omission of authority for the Agency's
Disadvantaged Enterprises Program in the 1996 and 1997 Appropriations
Acts; to remove certification requirements not approved by the Head of
the Agency in accordance with the Federal Acquisition Reform Act of
1996 (now known as the Clinger-Cohen Act of 1996); and to incorporate
numerous administrative changes which correct mistakes, clarify or
simplify policies or procedures currently in the AIDAR, and bring the
AIDAR into compliance with Agency policies. This regulatory action was
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993.
EFFECTIVE DATE: August 28, 1997.
FOR FURTHER INFORMATION CONTACT: M/OP/P, Ms. Diane M. Howard, (703)
875-1310.
SUPPLEMENTARY INFORMATION: The specific changes being made to the USAID
Acquisition Regulation (AIDAR) in this amendment are broad in scope,
ranging from correcting typographical errors published over the past
several years to implementing statutory requirements such as the loss
of the Agency's Disadvantaged Enterprises Program (DEP) and removing
unnecessary certification requirements.
A. Source, Origin, and Nationality
USAID published its final rule on Source, Origin, and Nationality,
22 CFR Part 228, on October 15, 1996 (61 FR 53615, corrected at 61 FR
54849 and 55361, and 62 FR 314). The AIDAR implements this regulation
by revising section 702.170-15 and several sections in subpart 725.70,
removing the clauses at 752.7004 (this number is used for a new clause
as described in amendment 63) and 752.7017, and by adding clauses
752.255-70 and 752.225-71.
B. Disadvantaged Enterprises Program (DEP)
For years, USAID was required by law to ensure that at least 10% of
its funds for development assistance or for assistance for famine
recovery and development in Africa went to small disadvantaged business
enterprises; however, not until FY 1990 did Congress provide the Agency
with statutory authority to limit full and open competition solely for
the purpose of meeting this set-aside requirement. AIDAR 706.302-71 was
amended to implement the statutory authority. Statutory authority
continued to be provided each year after that until FY 1996, when
Congress did not provide the Agency with the statutory authority or
impose the 10% ``set-aside'' requirement. Since the FY 1997
Appropriations Act did not include the authority, either, and
indications are that the authority is not expected to be reinstated, we
are amending the AIDAR to restrict the use of the authority in 706.302-
71 to use other than full and open competition to award contracts to
eligible disadvantaged business concerns (as defined in 726.7002) only
to contracts funded from those fiscal years for which the statutory
authority was provided. Subparts 706.302-71 and 726.70, and sections
705.207, 706.302-5, 726.7001, 726.7003, and 726.7007 are amended
accordingly.
C. Contractor Certification Requirements
Section 4301 of the Clinger-Cohen Act required the removal of
contractor and offeror certification requirements that are not: (1)
Specifically imposed by statute, or (2) justified by the Senior
Procurement Executive and approved by the Agency Head. On October 10,
1996, the USAID Administrator approved the retention of the AIDAR
certifications found at sections 715.413-2 (which is also amended to
remove paragraph (c) since the Procurement Integrity Certification
requirement was removed from the FAR), 752.7001, and 752.7016(c)(3)
(other certifications required in AIDAR Appendices D and J are
addressed in a separate Final Rule). The certifications in 752.226-
2(c)(3) and 752.7004(b)(5) are removed as described in B and A above,
respectively (for the latter, the entire clause is removed and a new
clause without certification requirements is added at 752.225-70).
Section 752.7033(a) is amended to remove the physician's certification
and
[[Page 40465]]
replace it with a ``statement of medical opinion''.
D. Administrative Changes
(1) The most pervasive administrative change to the AIDAR at this
time is the conversion of the Agency's acronym from ``AID'' to
``USAID'' and the Agency's name from ``Agency for International
Development'' to ``U.S. Agency for International Development''. the
first seven amendments and Amendment 13 below are solely to effect this
change, which is also part of several other amendments.
(2) In an effort to be comprehensive in implementing the simplified
acquisitions procedures of the Federal Acquisition Streamlining Act of
1994 (FASA), when we amended the AIDAR on July 26, 1996 (AIDAR Notice
96-1, 61 FR 39089), we included both FAR 13.101 and 13.103(b) in
several references to the simplified acquisition threshold. FAC 90-40
(61 FR 39185, published on the same day as the aforementioned AIDAR
amendment) amended the FAR to delete ``interim FACNET certification''
(previously required in FAR 13.103(b)) and to allow all agencies to use
$100,000 as the simplified acquisition threshold until December 31,
1999, after which time those agencies who have not certified full
FACNET capability will be reduced to the $50,000 threshold, in
accordance with the Clinger-Cohen Act of 1996. This FAC also moved the
definition of ``simplified acquisition threshold'' to FAR 2.101 from
section 13.101 (thereby rendering our AIDAR amendment inaccurate). To
be consistent with the FAR, which doesn't include references to either
section after most mentions of the simplified acquisition threshold, we
are removing references to sections 13.101 and 13.103(b) when using the
terms ``simplified acquisitions'' or ``the simplified acquisition
threshold'' in the AIDAR.
(3) Prior to AIDAR Notice 96-1, the heads of the various Agency
contracting activities had authority to redelegate small purchase
contracting authority to persons on his or her staff; reflecting the
conversion from ``small purchases'' to ``simplified acquisitions'',
AIDAR Notice 96-1 increased the amount of contracting authority the
HCAs can redelegate to the simplified acquisition threshold. However,
in view of the change in the simplified acquisition threshold resulting
from the Clinger-Cohen Act and the fact that few of the Agency HCAs
have exercised this particular authority, we determined that limiting
to $50,000 the level of contracting authority that they may redelegate
would be an equitable balance between empowering the contracting
activities and keeping prudent controls over the Agency's contracting
authority; section 701.601 is amended accordingly.
(4) Because of a reorganization within the Agency, the Office of
Administrative Services (M/AS) is no longer a contracting activity, nor
is its Director the Metric Executive. Sections 702.170-3, 702.170-10,
and 711.022-70 are amended to reflect this change.
(5) Sections 704.404 and 752.204-2 are amended to replace the term
``Limited Official Use'' with ``Sensitive But Unclassified'' in
accordance with the State Department's revised policy found in Volume
12 of the Foreign Affairs Manual, Chapter 540.
(6) Section 705.002 is amended to state USAID policy to include all
Commerce Business Daily notices and solicitations on the internet.
(7) Section 706.302-70 was amended in AIDAR Notice 96-1 to add a
new Agency exception to full and open competition for follow-on awards;
however, the actual wording was ambiguous as to whether the Agency
Competition Advocate's approval was required concurrent with the
approvals in FAR 6.304 or was the sole approval required for the new
exception. The AIDAR is hereby amended to clarify that the use of this
follow-on authority is subject only to the Agency Competition
Advocate's approval if the action is over $250,000 or for more than one
year, and to the contracting officer's certification for all other
cases.
(8) Subpart 709.4 is amended to remove the Policy statement in
709.402, since it is redundant to other regulations (the FAR and 22
CFFR Part 208) on debarment and suspension of organizations under
government procurement and non-procurement programs; however, we are
adding a new section 709.403 to define the Agency's debarring and
suspending official as the Procurement Executive.
(9) Section 715.613-71 is being amended to clarify procedures to be
followed prior to processing a contract using the collaborative
assistance method for activities authorized under Title XII of the
Foreign Assistance Act of 1961.
(10) Section 752.209-70, entitled ``Requirement for Past
Performance References'', is removed since it is redundant to FAR
Subpart 9.1 and Agency procedures described elsewhere and is not needed
in this Regulation.
(11) Several clause prescriptions in Subpart 752.70 are amended to
clarify that these clauses are not to be used for commercial item
contracts; the specific sections are 752.245-70, 752.245-71, 752.7008,
752.7070, 752.7015, and 752.7029. Other clauses being amended to
clarify their prescriptions are 752.7001, which is being divided into
two separate clauses because of the difference in the applicability of
paragraphs (a) and (b) (the latter paragraph is now designated as
section 752.7004), and section 752.7027, which is only to be used with
services contracts.
(12) Over the past few years, the Agency has instituted a new
system of internal directives, regulations and procedures to replace
the old ``Handbook'' system. Since the new system (the Automated
Directives System or ADS), when completed, will be a comprehensive
reference source for all Agency policies and procedures, we are looking
carefully at policies and procedures located in the AIDAR to determine
if they should continue to be located in this published regulation or
if they should instead be located only in the ADS. Consequently, we are
removing several Appendices to the AIDAR and will be incorporating them
in the near future into the ADS system, with reference to the
appropriate ADS chapter in the AIDAR as needed. Specifically, Appendix
A (``Respective Roles of Contracting and Other Personnel in the USAID
Procurement Process''), Appendix C (``Logistics Support Overseas to
USAID-Direct Contractors''), Appendix G (`Approval Procedures for
Contractor Salaries''), and Appendix H (``Response to audit
Recommendations'') are removed and reserved. A new section 701.602-1 is
added to state the authority of contracting officers to negotiate and
enter into settlements with contractors for costs questioned under
audit reports, or to issue a contracting officer's final decision, and
to refer to the appropriate ADS Chapters for policies and procedures
for resolving audit recommendations. References to these appendices are
revised elsewhere in the AIDAR, and section 701.376-3 is revised to
more accurately describe the purpose of the remaining appendices to
Chapter 7.
(13) Other administrative changes amend the expiration date of the
OMB Control Number for all the information collections listed in
701.105; add a new section 703.104-11 to clarify to whom the
contracting officer shall forward information and documentation on
possible procurement integrity violations; remove Subpart 703.4
(``Contingent Fees'') to be consistent with the revisions to FAR 3.404
resulting from FAC 90-40; remove section 704.803 because it is internal
procedural guidance better handled
[[Page 40466]]
outside published regulations; remove Part 708 because there is no
longer an excess property handbook in the Agency; amend sections
731.205-6, 731.371, and 752.7007 to clarify the contracting officer's
responsibility in approving salaries over the ES-6 threshold; revise
750.711 to update the procedures for processing cases of Extraordinary
Contractual Relief; amend sections 752.228-7 and 752.7003 to update
reference to the appropriate audit clause in the FAR; and to update the
office acronym in section 753.107.
(14) Numerous errors and omissions were identified in Chapter 7 as
published and are corrected in this rule, specifically in sections
701.373, 709.503, 711.022-70 (now redesignated as 711.002-70), 715.613-
71, 719.271-3, 726.7005, 726.7006, 732.401, 733.270-2, 750.7101,
750.7109-3, 752.200, 752.219-8, 752.225-9, 752.226-1, 752.226-2,
752.226-3, 752.7027, and 752.7033.
The changes being made by this rule are not considered
``significant'' under FAR 1.301 or FAR 1.501, and public comments have
not been solicited. This rule will not have an impact on a substantial
number of small entities nor does it establish a new collection of
information as contemplated by the Regulatory Flexibility Act and the
Paperwork Reduction Act. Because of the nature and subject matter of
this rule, use of the proposed rule/public comment approach was not
considered necessary. We decided to issue as a final rule; however, we
welcome public comment on the material covered by this rule or any
other part of the AIDAR at anytime. Comments or questions may be
addressed as specified in the FOR FURTHER INFORMATION CONTACT section
of the Preamble.
List of Subjects in 48 CFR Parts 701, 702, 703, 704, 705, 706, 708,
709, 711, 715, 716, 717, 719, 722, 724, 725, 726, 728, 731, 732, 733,
734, 736, 749, 750, 752, and 753
Government procurement.
For the reasons set out in the Preamble, 48 CFR Chapter 7 is
amended as set forth below.
1. The authority citations in Parts 701, 702, 703, 704, 705, 706,
708, 709, 711, 715, 716, 717, 719, 722, 724, 725, 726, 728, 731, 732,
733, 734, 736, 749, 750, 752, and 753 continue to read as follows:
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.
CHAPTER 7--[AMENDED]
2. Chapter 7 is amended by revising the acronym ``AID'' wherever it
appears to read ``USAID''
3. Chapter 7 is amended by revising the possessive acronym ``AID's
wherever is appears to read ``USAID's''.
4. Chapter 7 is amended by adding ``U.S.'' in front of ``Agency for
International Development'' wherever it appears.
5. Chapter 7 is amended by revising ``AID/Washington'' wherever it
appears in the following sections to read ``USAID/Washington'':
719.270, 719.271-6, 719.271-2, 752.7002.
6. Chapter 7 is amended by revising ``AID-direct'' wherever it
appears in each of the following sections to read ``USAID-direct'':
711.002-71, 728.309, 752.7002, 722.170, 728.313, 752.7003, 728.307-2,
752.211-70.
7. Chapter 7 is amended by revising ``AID-financed'' wherever it
appears in each of the following sections to read ``USAID-financed'':
725.703, 752.7004, 728.305-70, 752.7009.
PART 701--FEDERAL ACQUISITION REGULATION SYSTEM
701.105 [Amended]
8. The chart in paragraph (a) of section 701.105 is amended by
revising the date ``09/30/96'' wherever it appears to read ``06/30/
97''.
701.373 [Amended]
9. Paragraph (b) of section 701.373 is amended by revising ``69''
wherever it appears to read ``53''.
701.376-3 [Revised]
10. Section 701.376-3 is revised to read as follows:
701.376-3 Appendices
Significant procurement policies and procedures which do not
correspond to or conveniently fit into the FAR system (described in FAR
1.1 and this subpart) may be published as Appendices to the AIDAR.
Appendices follow the main text of the AIDAR in a section entitled
``Appendices to Chapter 7'' and contain the individual appendices
identified by letter and subject title (e.g., ``Appendix D--Direct
USAID Contracts with a U.S. Citizen or a U.S. Resident Alien for
Personal Services Abroad'').
701.601 [Amended]
11. Section 701.601 is amended in paragraph (a) by revising the
parenthetical phrase ``(see 701.376-4)'' at the end of the paragraph to
read ``, such as those found at 701.376-4 and particularly 701.603-70,
the USAID policy regarding the direct-hire status of contracting
officers''; and in paragraph (b) by removing the phrase ``the amount
permitted by FAR 13.101 and 13.103(b)'' wherever it appears and
inserting in its place ``$50,000'', by removing paragraph (b)(3), and
by redesignating paragraphs (b)(4) and (5) as (b)(3) and (4),
respectively.
12. A new Section 701.602-1 is added to read as follows:
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 settlements with contractors for costs
questioned under audit reports, or to issue a contracting officer's
final decision pursuant to the disputes clause (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.
701.704 [Amended]
13. Section 701.704 is amended by adding ``US'' to the beginning of
``AID-prescribed''.
PART 702--DEFINITIONS OF WORDS AND TERMS
702.170-3 [Amended]
14. Paragraph (a) of section 702.170-3 is amended by removing ``,
Office of Administrative Services'' in the first sentence.
702.170-10 [Amended]
15. Paragraph (a)(1) of section 702.170-10 is amended by revising
``AID/Washington'' to read ``USAID/Washington'', by removing paragraph
(a)(1)(ii) and by redesignating paragraphs (a)(1)(iii) and (a)(1)(iv)
as (a)(1)(ii) and (a)(1)(iii), respectively.
702.170-15 [Amended]
16. Section 702.170-15 is amended by revising ``a Free World
Country (i.e., Geographic Code 935)'' to read ``a country included in
Geographic Code 935 (see 22 CFR 228.3)''.
16-A. A new subsection 702.170-17 is added reading as follows:
702.170-17 Automated Directives System. Automated Directives System
(``ADS'') means USAID's system of internal directives, regulations, and
procedures.
[[Page 40467]]
References to ``ADS'' throughout this chapter 7 are references to the
Automated Directives System. Procurement-related sections of this
system are accessible to the general public at internet address: http:/
/www.info.usaid.gov/ftp__data/pub/handbooks/index.html. The entire ADS
is available on the Directives Resource Compact Disk (DR-CD), which may
be purchased from the Agency at cost by submitting a completed DR-CD
order form. To request a fax copy of the DR-CD order form, send an e-
mail with your fax number to [email protected].
PART 703--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
17. A new section 703.104-11 is added to read as follows;
703.104-11 Processing violations or possible violations.
The individual to whom the contracting officer should forward
information and documentation as required in FAR 3.104-10 is the
contracting officer's supervisor.
703.4 [Removed]
18. Subpart 703.4 is removed.
PART 704--ADMINISTRATION MATTERS
704.404 [Amended]
19. Section 704.404 is amended by revising ``Limited Official Use''
to read ``Sensitive But Unclassified''.
704.803 [Removed]
20. Section 704.803 is removed and Subpart 704.8 is reserved (the
subpart heading is retained).
PART 705--PUBLICIZING CONTRACT ACTIONS
705.002 [Amended]
21. Section 705.002 is amended by designating the existing text as
paragraph (a) and by adding the following paragraph (b):
705.002 Policy.
* * * * *
(b) USAID policy is to include all Commerce Business Daily Notices
and solicitations on the Internet.
705.207 [Amended]
22. Section 705.207 is amended in paragraph (a) by revising ``made
available for development assistance or for assistance for famine
recovery and development in Africa'' to read ``referred to in section
706.302-71(a)'', and by removing ``726.104'' in the last sentence of
the section and inserting in its place ``726.7005''.
PART 706--COMPETITIVE REQUIREMENTS
706.302-5 [Amended]
23. Section 706.302-5 is amended by adding ``Certain'' to the
beginning of the first sentence.
706.302-70 [Revised]
24. Paragraph (c)(4) of section 706.302-70 is revised to read as
follows:
706.302-70 Impariment of foreign aid programs.
* * * * *
(c) * * *
(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.
706.302-71 [Amended]
25. Section 706.302-71 is amended by removing ``(2)'' after ``in
paragraph (a)'' in paragraph (b)(1) and by revising paragraph (a) to
read as follows:
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, Pub. 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 extend otherwise determined by the Administrator,
not less than ten percent of 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
this 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.
* * * * *
PART 708--REQUIRED SOURCES OF SUPPLIES AND SERVICES
PART 708--[REMOVED]
26. Part 708 is removed.
PART 708--CONTRACTOR QUALIFICATIONS
709.402 [Removed]
27. Section 709.402 is removed.
28. A new section 709.403 is added to read as follows:
709.403 Definitions.
Debarring official in USAID is the Procurement Executive.
Suspending official in USAID is the Procurement Executive.
709.503 [Amended]
29. The first sentence of section 709.503 is amended by revising
``(AIDR 702.170-13(c)(4)'' to read ``((48 CFR) AIDAR 702.170-
13(c)(4))''.
PART 711--DESCRIBING AGENCY NEEDS
711.022-70 [Redesignated and amended]
30. Section 711.022-70 is amended by redesignating it as 711.002-
70; by revising ``(M/AS)'' in paragraph (b)(1) to read ``(as designated
in ADS chapter 323)''; and by removing ``(M/AS)'' from paragraph
(b)(3).
PART 715--CONTRACTING BY NEGOTIATION
715.415 [Amended]
31. Section 715.413-22 amended by removing paragraph (c)
introductory left; by removing paragraph (2) at the end of the section;
and by revising paragraph (b) to read as follows:
715.413-2 Alternate II
* * * * *
(b) Prior to releasing proposals outside the Government for
evaluation, the contracting officer shall obtain a signed and dated
copy of a certification and agreement from each NGE and EAC
substantially as follows:
* * * * *
715.613-71 [Amended]
32. Section 715.613-71 is amended by removing paragraphs (d) and
(e), by redesignating paragraph (f) as paragraph (d), by revising
``(b)(1)'' in newly-designated (d)(3)(i) to read ``(c)'', by revising
``request for expression of interest'' and ``project'' in the second
sentence of newly-designated (d)(4) to
[[Page 40468]]
read ``REI'' and ``activity'', respectively, and by revising paragraphs
(a), (b), and (c) to read as follows:
715.613-71 Title XII selection procedure--collaborative assistance.
(a) General. (48 CFR) AIDAR 706.302-70(b)(4) provides authority for
other than full and open competition when 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 AIDAR
Appendix F (of this chapter)--Use of Collaborative Assistance Method
for Title XII Activities for a more complete definition and discussion
of the collaborative assistance method.
(c) Determinations. The following findings and determinations must
be made prior to initiating any contract actions under the
collaborative assistance method:
(1) The cognizant technical office makes a preliminary finding
that:
(i) An activity 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 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.
* * * * *
PART 719--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
719.270 [Amended]
33. Section 719.270 is amended by removing ``[FAR 13.101 and
13.103(b)]'' from paragraph (d) and by removing paragraph (k).
719.271-2 [Amended]
34. Paragraph (b)(8) of section 719.271-2 is amended by removing
``[FAR 13.101 and 13.103(b)]''.
719.271-3 [Amended]
35. Paragraph (j) of section 719.271-3 is amended by adding ``to''
between the third comma and ``SDB''.
719.271-6 [Amended]
36. Paragraph (a) introductory text of section 719.271-6 is amended
by removing ``(FAR 13.101 and 13.103(b))'' and ``and AIDAR Appendix F''
is removed from paragraph (a)(3).
PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
722.805-70 [Amended]
37. At the end of paragraph (d)(3) in section 722.805-70, remove
``(see 704.803(a))''.
PART 725--FOREIGN ACQUISITION
725.701 [Amended]
38. Section 725.701 is revised to read as follows:
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.
725.704 [Revised]
39. Section 725.704 is revised to read as follows:
725.704 Source, origin and nationality requirements--Contract clause.
The clause in 752.225-70 is required in all USAID program-funded
solicitations and in all program-funded contracts under which the
contractor may procure goods or services.
725.705 [Revised]
40. Section 725.705 is revised to read as follows:
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.
725.706 [Amended]
41. Section 725.706 paragraph (a) is revised to read as follows:
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
* * * * *
PART 726--OTHER SOCIOECONOMIC PROGRAMS
726.7001 [Amended]
42. Section 726.7001 is amended by revising the second ``the'' in
the first sentence to read ``certain'', and by adding ``(see section
706.302-71(a))'' between ``acts'' and ``concerning'' in the same
sentence.
726.7003 [Amended]
43. Section 726.7003 is amended by revising ``for development
assistance and for famine recovery and development in Africa'' in the
introductory paragraph to read ``from the appropriations cited in
section 706.302-71(a)(1)'', and in paragraph (c) by revising ``subpart
726.3'' to read ``section 726.7007''.
726.7005 [Amended]
44. Section 726.7005 is amended by revising ``726.301'' in the
first sentence to read ``726.7007'' and by revising ``726.301(b)'' in
the last sentence to read ``726.7007''.
726.7006 [Amended]
45. Section 726.7006 is amended by revising ``726.101'' in the
first sentence of paragraph (a) to read ``726.7002''.
726.7007 [Amended]
46. In section 726.7007, paragraph (a) is amended by revising
``726.101'' to read ``726.7002'' and by revising ``for development
assistance or for assistance for famine recovery and development in
Africa'' to read ``from the appropriations cited in section 706.302-
71(a)(1)''; paragraph (b) is amended by revising ``726.104'' to read
``716.7005''.
PART 731--CONTRACT COST PRINCIPLES AND PROCEDURES
731.205-6 [Amended]
47. Section 731.205-6 is amended by revising the parenthetical
sentence in paragraph (d) to read ``The Contracting Officer shall only
provide such approval after internal Agency procedures for review/
approval of salaries in excess of the ES-6 rate have been followed.''
[[Page 40469]]
731.371 [Amended]
48. Paragraph (b)(1) of section 731.371 is amended by removing the
second sentence and inserting in its place ``The Contracting Officer
shall only provide such approval after internal Agency procedures for
review/approval of salaries in excess of the ES-6 rate have been
followed.''
PART 732--CONTRACT FINANCING
732.401 [Amended]
49. Paragraph (a) of section 732.401 is amended by revising ``May
12, 1955'' to read ``May 12, 1965''.
PART 733--PROTESTS, DISPUTES AND APPEALS
733.270-2 [Amended]
50. Section 733.270-2 is amended by removing the ``s'' at the end
of the word ``furnishings'' in the second sentence of paragraph (e).
PART 750--EXTRAORDINARY CONTRACTUAL ACTIONS
750.7101 [Amended]
51. Paragraph (a) of section 750.7101 is amended by capitalizing
``agency'' in ``International Development Cooperation agency Delegation
of Authority'' in the middle of the first sentence.
750.7109-3 [Amended]
52. Section 750.7109-3 is amended by revising ``dsecribed'' to read
``described''.
750.7110 [Amended]
53. Section 750.7110 and subsections 750.7110-1 through 750.7110-5
are revised as follows:
750.7110 Processing cases.
750.7110-1 Investigation.
The Evaluation Division of the Office of Procurement (M/OP/E) shall
be responsible for assuring that the case prepared by the cognizant
contracting officer makes a thorough investigation of all facts and
issues relevant to each situation. Facts and evidence shall be obtained
from contractor and Government personnel and shall include signed
statements of material facts within the knowledge of the individuals
where documentary evidence is lacking and audits where considered
necessary to establish financial or cost related facts. The
investigation shall establish the facts essential to meet the standards
for deciding the particular case and shall address the limitations upon
exercise of the Procurement Executive's authority to approve the
request.
750.7110-2 Office of General Counsel coordination.
Prior to the submission of a case to the Procurement Executive
recommending extraordinary contractual relief, the claim shall be fully
developed by the cognizant contracting officer and concurrences or
comments shall be obtained from the Office of General Counsel for the
proposed relief to be granted. Such concurrences or comments shall be
incorporated in or accompany the action memorandum submitted for
consideration to the Procurement Executive in accordance with 750.7110-
3.
750.7110-3 Submission of cases to the Procurement Executive.
Cases to be submitted for consideration by the Procurement
Executive shall be prepared and forwarded by the cognizant contracting
officer through M/OP/E to the Procurement Executive by means of an
action memorandum. M/OP/E will review the action memorandum for
accuracy and completeness. The action memorandum shall provide for
approval or disapproval by the Procurement Executive of the disposition
recommended by the contracting officer. The action memorandum shall
address:
(a) The nature of the case;
(b) The basis for authority to act under section 750.7101;
(c) The findings of fact essential to the case (see 750.7109-3)
arranged chronologically with cross references to supporting
enclosures;
(d) The conclusions drawn from applying the standards for deciding
cases, as set forth in 750.7106, to the findings of fact;
(e) Compliance with the limitations upon exercise of authority, as
set forth in section 750.7107 (for informal commitments, include
statements addressing each of the limitations in paragraph (d) of
750.7107):
(f) Concurrences or comments obtained from the Office of General
Counsel;
(g) Verification of funds availability and the contracting
officer's determination of cost/price reasonableness when the
disposition recommended requires payment to a contractor;
(h) The disposition recommended and, if contractual action is
recommended with respect to cases falling within Section 4 of the
Executive Order, the opinion of the contracting officer that such
action is necessary to protect the foreign policy interest of the
United States; and
(i) The action memorandum shall enclose all evidentiary materials,
including the reports and comments of all cognizant Government or other
officials, and a copy of the contractor's request. The action
memorandum should provide the following information related to the
contractor's request, as applicable:
(1) Date of request;
(2) Date request received by USAID:
(3) Contract number;
(4) Contractor's name and address;
(5) Name, address, and phone number of contractor's representative;
(6) Name, office symbol, and phone number of cognizant contracting
officer;
(7) Amount of request.
750.7110-4 Processing by Procurement Executive.
When the action memorandum has been determined to be as accurate
and complete as possible and has been prepared in accordance with this
subpart, M/OP/E will forward the action memorandum to the Procurement
Executive. The Procurement Executive will sign and date the action
memorandum indicating approval or disapproval of the disposition
recommended by the contracting officer.
750.7110-5 Contract files.
The fully executed action memorandum indicating approval/
disapproval and a copy of the contractual document implementing any
approval contractual action shall be placed in the contract file.
PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
752.200 [Amended]
54. The first sentence of section 752.200 is corrected by adding an
``s'' to the end of ``contract''.
752.204-2 [Amended]
55. Section 752.204-2 is amended by revising ``Volume 5, Foreign
Affairs Manual, Chapter 900'' to read ``Volume 12, Foreign Affairs
Manual, Chapter 540'', and by revising ``Limited Official use''
wherever it appears to read ``Sensitive But Unclassified''.
752.209-70 [Removed]
56. Section 752.209-70 is removed.
752.219-8 [Amended]
57. Section 752.219-8 is amended by revising ``FAR 19.7008(a)'' in
the second sentence to read ``FAR 19.708(a)'', by removing ``in FAR
13.000'' in the introductory text of the clause after ``simplified
acquisition threshold'', and by removing the quotation mark at the end
of the section.
[[Page 40470]]
752.225-9 [Amended]
58. Section 752.225-9 is amended by revising ``subpart'' at the end
of the first sentence to read ``chapter'', and by revising ``752.7004''
to read ``752.225-70'' in the last sentence.
59. New section 752.225-70 is added as follows:
752.225-70 Source, origin and nationality requirements.
The following clause is required as prescribed in 725.704.
Source, Origin and Nationality Requirements (May 1997)
(a) Except as may be specifically approved by the Contracting
Officer, all commodities (e.g., equipment, materials, vehicles,
supplies) and services (including commodity transportation services)
which will be financed under this contract with U.S. dollars shall
be procured in accordance with the requirements in 22 CFR part 228,
``Rules on Source, Origin and Nationality for Commodities and
Services Financed by USAID.'' The authorized source for procurement
is Geographic Code 000 unless otherwise specified in the schedule of
this contract. Guidance on eligibility of specific goods or services
may be obtained from the Contracting Officer.
(b) Ineligible goods and services. The Contractor shall not
procure any of the following goods or services under this contract:
(1) Military equipment,
(2) Surveillance equipment,
(3) Commodities and services for support of police and other law
enforcement activities,
(4) Abortion equipment and services,
(5) Luxury goods and gambling equipment, or
(6) Weather modification equipment.
(c) Restricted goods. The Contractor shall not procure any of
the following goods or services without the prior written approval
of the Contracting Officer:
(1) Agricultural commodities,
(2) Motor vehicles,
(3) Pharmaceuticals and contraceptive items,
(4) Pesticides,
(5) Fertilizer,
(6) Used equipment, or
(7) U.S. government-owned excess property.
If USAID determines that the Contractor has procured any of
these specific restricted goods under this contract without the
prior written authorization of the Contracting Officer, and has
received payment for such purposes, the Contractor agrees to refund
to USAID the entire amount of the purchase.
60. New Section 752.225-71 is added to read as follows:
752.225-71 Local procurement.
For use in any USAID contract involving performance overseas.
Local Procurement (May 1997)
(a) Local procurement involves the use of appropriated funds to
finance the procurement of goods and services supplied by local
businesses, dealers or producers, with payment normally being in the
currency of the cooperating country.
(b) All locally-financed procurements must be covered by source/
origin and nationality waivers as set forth in subpart F of 22 CFR
part 238 except as provided for in 22 CFR 228.40, Local procurement.
752.226-1 [Amended]
61. Section 752.226-1 is amended by revising ``726.201'' in the
introductory paragraph to read ``726.7006(a)''.
752.226-2 [Amended]
62.Section 752.226-2 is amended by revising ``726.301'' in the
introductory paragraph to read ``726.7007'', by revising the date of
the clause ``(April 1991)'' to read ``(April 1997)'', and by removing
the second sentence of paragraph (c)(3).
752.226-3 [Amended]
63. Section 752.226-3 is amended by revising ``726.302'' in the
introductory paragraph to read ``726.7008''.
752.228-7 [Amended]
64. Section 752.228-7 is amended by revising the last sentence to
read as follows:
752.228-7 Insurance--liability to third persons.
* * * * *
( ) Insurance on private automobiles. * * * Copies of such
insurance policies shall be preserved and made available as part of the
Contractor's records which are required to be preserved and made
available by the ``Audit and Records--Negotiation'' clause of this
contract.
752.245-70 [Amended]
65. Section 752.245-70 is amended by adding'', except for those for
commercial items,'' between ``contracts'' and ``must'' in the
introductory paragraph, by revising ``AID-Contractor'' to read ``USAID-
Contractor'' in item B.2.b. in the form entitled ``Annual Report of
Government Property in Contractor's Custody'', and by revising ``or''
to read ``for'' in the second attestation in the paragraph entitled
``Property Inventory Verifications''.
752.245-71 [Amended]
66. The introductory text of section 752.245-71 is revised to read
as follows:
752.245-71 Title to and care of property.
The following clause shall be included in all non-commercial
contracts when the contractor will acquire property under the contract
for use overseas and the property will be titled to the Cooperating
Country.
* * * * *
752.7001 [Revised]
67. Section 752.7001 is revised to read as follows:
752.7001 Biographical data.
The following clause is to be included in all USAID cost
reimbursement contracts.
Biographical Data (May 1997)
The Contractor agrees to furnish to the Contracting Officer and
AID Form 1420-17, ``Contractor Employee Biographical Data Sheet'',
biographical information on the following individuals to be employed
in the performance of the contract: (1) All individuals to be sent
outside of the United States, or (2) any employees designated as
``key personnel''. Biographical data in the form usually maintained
by the Contractor on the other individuals employed under the
contract shall be available for review by USAID at the Contractor's
headquarters. A supply of AID Form 1420-17 will be provided with
this contract. The Contractor may reproduce additional copies as
necessary.
752.7004 [Revised]
68. Section 752.7004 is revised to read as follows.
752.7004 Emergency locator information.
The following clause is required to be included in all contracts
requiring travel overseas.
Emergency Locator Information (May 1997)
The Contractor agrees to provide the following information to
the Mission Administrative Officer on or before the arrival in the
host country of every contract employee or dependent:
(1) The individual's full name, home address, and telephone
number.
(2) The name and number of the contract, and whether the
individual is an employee or dependent.
(3) The contractor's name, home office address, and telephone
number, including any after-hours emergency number(s), and the name
of the contractor's home office staff member having administrative
responsibility for the contract.
(4) The name, address, and telephone number(s) of each
individual's next of kin.
(5) Any special instructions pertaining to emergency situations
such as power of attorney designees or alternate contact persons.
752.7007 [Amended]
69. Section 752.7007 is amended by adding ``, as prescribed in
731.205-6(d) or 731.371(b), as applicable'' after ``Contracting
Officer'' in paragraph (b).
752.7008 [Amended]
70. The introductory paragraph in section 752.7008 is amended by
adding ``non-commercial'' before the word ``contracts''.
752.7010 [Amended]
71. The introductory paragraph in section 752.7010 is amended by
adding
[[Page 40471]]
``non-commercial'' before the word ``contracts''.
752.7015 [Amended]
72. Section 752.7015 is amended by revising the introductory
paragraph, the clause heading, paragraph (a)(2), and paragraph (a)(4)
of the clause to read as follows:
752.7015 Use of pouch facilities.
For use in all USAID non-commercial contracts exceeding the
simplified acquisition threshold and involving performance overseas.
Use of Pouch Facilities (April 1996)
(a) * * *
(2) U.S. citizen employees of U.S. contractors are authorized
use of the pouch for personal mail up to a maximum of one pound per
shipment (but see paragraph (a)(3) of this clause).
* * * * *
(4) Official mail as authorized by paragraph (a)(1) of this
clause should be addressed as follows: Individual or Organization
name, followed by the symbol ``C'', city Name of Post, U.S. Agency
for International Development, Washington, DC 20523-0001.
* * * * *
752.7017 [Removed]
73. Section 752.7017 is removed and reserved.
752.7027 [Amended]
74. Section 752.7027 is amended by adding ``services'' before the
word ``contracts'' in the first sentence of the introductory paragraph
and by revising ``or'' to read ``of'' in the heading of paragraph (c)
of the clause.
752.7029 [Amended]
75. Section 752.7029 is amended by adding ``non-commercial'' before
the word ``contracts'' in the introductory paragraph.
752.7033 [Amended]
76. Section 752.7033 is amended by revising ``, and assigned
Control No. 0412-0356'' in the second sentence of paragraph (b) to read
``(see 701.105(a))'', and by revising the clause heading and paragraph
(a) to read as follows:
752.7033 Physical Fitness.
* * * * *
Physical Fitness (May 1997)
* * * * *
(a) Assignments of less than 60 days in the Cooperating Country.
The contractor shall require employees being assigned to the
Cooperating Country for less than 60 days to be examined by a
licensed doctor of medicine. The contractor shall require the doctor
to provide to the contractor a written statement that in his/her
medical opinion, the employee is physically qualified to engage in
the type of activity for which he/she is employed and the employee
is physically able to reside in the country to which he/she is
assigned. Under a cost reimbursement contract, if the contractor has
no written statement of medical opinion on file prior to the
departure for the Cooperating Country of any employee and such
employee is unable to perform the type of activity for which he/she
is employed or cannot complete his/her tour of duty because of any
physical disability (other than physical disability arising from an
accident while employed under this contract), the contractor shall
be responsible for returning the disabled employee to his/her point
of hire and providing a replacement at no additional cost to the
Government. In addition, in the case of a cost reimbursement
contract, the contractor shall not be entitled to reimbursement for
any additional costs attributable to delays or other circumstances
caused by the employee's inability to complete his/her tour of duty.
* * * * *
PART 753--FORMS
753.107 [Amended]
77. Section 753.107 is amended by revising ``M/AS/PP/PP'' to read
``M/AS/ISS''.
78. Chapter 7 is amended by removing Appendices A, C, G, and H and
reserving each.
Dated: May 13, 1997.
Marcus L. Stevenson,
Procurement Executive.
[FR Doc. 97-18603 Filed 7-28-97; 8:45 am]
BILLING CODE 6116-01-M