[Federal Register Volume 81, Number 161 (Friday, August 19, 2016)]
[Proposed Rules]
[Pages 55405-55408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19709]
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AGENCY FOR INTERNATIONAL DEVELOPMENT
48 CFR Parts 701, 722 and Appendix J
RIN 0412-AA80
Agency for International Development Acquisition Regulation
(AIDAR): Agency Warrant Program for Individual Cooperating Country
National Personal Services Contractors (CCNPSCs)
AGENCY: U.S. Agency for International Development.
ACTION: Proposed rule.
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SUMMARY: The U.S. Agency for International Development (USAID) proposes
to amend the Agency for International Development Acquisition
Regulation (AIDAR) to incorporate a warrant program for cooperating
[[Page 55406]]
country national personal service contractors (CCN PSCs) into the
regulation. The purpose of the CCN PSC warrant program is not only to
address a shortage of U.S. direct-hire contracting officers by
delegating limited contracting officer authorities to a select number
of Cooperating Country National personal services contractors, but also
to bolster the Agency to succeed in terms of building long-term, host
country technical capacity to materially assist the Missions with
procurement responsibility. In addition, USAID is proposing to clarify
that third country nationals (TCNs) and cooperating country nationals
(CCNs) employment requirements, contained in section 722.170, do not
apply to consultants.
DATES: Comments must be received no later than October 18, 2016.
ADDRESSES: Address all comments concerning this notice to Lyudmila
Bond, Bureau for Management, Office of Acquisition and Assistance,
Policy Division (M/OAA/P), Room 867, SA-44, Washington, DC 20523-2052.
Submit comments, identified by title of the action and Regulatory
Information Number (RIN) by any of the following methods:
1. Through the Federal eRulemaking Portal at http://www.regulations.gov by following the instructions for submitting
comments.
2. By Mail addressed to: USAID, Bureau for Management, Office of
Acquisition & Assistance, Policy Division, Room 867J, SA-44, 1300
Pennsylvania Ave. NW., Washington, DC 20523-2052.
FOR FURTHER INFORMATION CONTACT: Lyudmila Bond, Telephone: 202-567-4753
or Email: [email protected].
SUPPLEMENTARY INFORMATION:
A. Instructions
All comments must be in writing and submitted through one of the
methods specified in the Addresses section above. All submissions must
include the title of the action and RIN for this rulemaking. Please
include your name, title, organization, postal address, telephone
number, and email address in the text of the message.
Please note that USAID recommends sending all comments to the
Federal eRulemaking Portal because security screening precautions have
slowed the delivery and dependability of surface mail to USAID/
Washington.
After receipt of a comment and until finalization of the action,
all comments will be made available at http://www.regulations.gov for
public review without change, including any personal information
provided. We recommend you do not submit information that you consider
Confidential Business Information (CBI) or any information that is
otherwise protected from disclosure by statute. USAID will only address
substantive comments on the rule. Comments that are insubstantial or
outside the scope of the rule may not be considered.
B. Background
USAID is seeking comments on the proposed rule as described below:
(1) 722.170 Employment of Third Country Nationals (TCN's) and
Cooperating Country Nationals (CCN's)
In response to numerous inquiries, USAID is proposing a revision of
this section of the AIDAR to clarify that employment requirements for
TCN and CCN employees of a contractor do not apply to consultants. It
is the responsibility of a contractor to determine whether an
individual being hired is an employee or a consultant.
(2) Cooperating Country National (CCN) Warrant Program
Background
In 2011, the U.S. Agency for International Development (USAID)
approved a two-year Worldwide CCN Administrative Contracting and
Agreement Officer (ACO/AAO) Pilot Warrant Program. The purpose of this
program was to address the shortage of USAID contracting officers and
build long-term, host country technical capacity to materially assist
the Missions with procurement responsibility.
USAID is located in offices in over 80 countries with programs in
over 100 nations. USAID operates in a fluid environment responding to a
myriad of crises such as war, natural disasters, epidemics, as well as
its long term mission of ending extreme poverty, promoting resilient,
democratic societies while advancing our security and prosperity. The
warranted contracting force to manage this effort consists of 150 US
direct hire foreign service contracting officers overseas, 105 direct
hire civil service contract officers, 83 warranted foreign service
executive officers, 3 warranted US personal service contractors
managing mission's acquisition portfolio, and 4 warranted US personal
service contractors serving as executive officers. In addition to, and
perhaps partially because of having such a relatively small warranted
work force to manage a portfolio that is large and varied with a global
footprint, the foreign service contracting staff has one of the highest
attrition rates in USAID's work force.
USAID made a strategic decision to create a cadre of highly
qualified Cooperating Country Nationals, who have demonstrated high
potential for assuming responsibilities to serve as administrative
contracting officers within designated Missions. The purpose was to
alleviate some of the workload of our contracting officer staff. During
the two phases of the program, USAID added 6 warranted CCN
administrative contracting officers. Currently, by the end of fiscal
year 2016, we anticipate that there will be approximately 12 warranted
CCN contracting officers. While a seemingly small number, that would
represent an 8 percent increase of our overseas US direct hire
warranted contracting officer staff.
When designing the CCN Pilot Warrant Program, USAID consulted with
the Senior Procurement Executive at the State Department and the
unions. The State Department's SPE advised that State conducted a
similar pilot several years ago, to great success. They now have a
permanent program that extends limited authority to their locally-
employed staff in selected countries. The vice president of the
American Foreign Service Association concurred with the Pilot, and was
pleased by several of its protections.
Based on that two-year pilot program, revisions were made to the
program structure to better suit the Agency's needs before the
permanent program was launched in September 2014. USAID eliminated the
portion of the program that allowed for third country nationals to
receive warrants. A comprehensive review of the CCN Pilot Warrant
Program underscored a need to broaden participation through among other
things, revision of qualifications and inclusion of full obligation
warrant authority up to $150,000 per transaction and an annual
cumulative amount of $1 million at the CCN Grade 13 Level to assist the
Missions' procurement function. A better understanding of CCN grades
and the grading process allowed for better clarity of expectations for
Missions and warrant applicants. To help mitigate CCN inexperience from
leading to mistakes or malfeasance, the revised CCN Warrant Program
includes several levels of obligation authority and non-monetary
administrative responsibility correlating to CCN grade/experience
within the acquisition backstop. Increasing degrees of responsibility
and/or obligation authority, as applicable, are granted.
The permanent CCN Warrant Program currently establishes three
levels of
[[Page 55407]]
contracting officer responsibilities that can be designated to a CCN
personal services contractor depending on the needs of each mission,
complexity and dollar value of the acquisitions, and the individual's
experience, training, education, business acumen, judgment, reputation
and grade level.
At the first level, a CCN PSC may be delegated authority for select
contract administration functions listed in (48 CFR) FAR 42.302(a),
including, for example, conducting post-award orientation conferences,
approving contractors' requests for payments under the progress
payments or performance-based payments clauses.
At the second level, in addition to performing the administrative
functions discussed above, a CCN PSC contracting officer may be
delegated authority to obligate incremental funding of any amount
within the scope and total estimated cost of a contract (to include
task orders and purchase orders).
At the third and highest participating grade level, in addition to
the incremental funding obligation authority and post-award
administration duties described in levels one and two above, a CCN PSC
contracting officer may be delegated authority to execute new awards
for a total award amount not to exceed one hundred fifty thousand
dollars ($150,000). This authority is further subject to a new award
cumulative obligation limit of one million dollars ($1 million) per
Fiscal Year. No deviation from these limitations is authorized.
Regulatory Authorities and Limitations
(48 CFR) FAR part 1 establishes the authority for Agency heads to
select and appoint contracting officers and it does not specify that
contracting officers must be U.S. citizen direct-hire employees of the
Federal government. (48 CFR) FAR part 7.5 includes contracting officer
duties in the list of inherently governmental functions or functions
that must be treated as such, but does not exclude personal services
contractors hired under a statutory authority from performing such
functions.
(48 CFR) AIDAR 701.603-70 currently limits delegations of
contracting officer authorities to U.S. citizen direct-hire employees
of the U.S. Government as a matter of Agency policy. However, section
4(b)(3) of (48 CFR) AIDAR Appendix D and the corresponding section of
Appendix J contain an exception for PSCs to be delegated contracting
officer authority with approval from the Assistant Administrator for
the Bureau of Management.
In September 2014, USAID issued a two-year class deviation from 48
CFR) AIDAR 701.603-70 to establish the permanent CCN PSC warrant
program to allow a limited number of selected and qualified CCN PSCs to
be delegated contracting officer authorities. In conjunction with the
approval of the class deviation described above, the Assistant
Administrator for the Bureau for Management approved a class exception
to the limitations in (48 CFR) AIDAR Appendix J 4(b)(3). By this rule
USAID is proposing to revise (48 CFR) AIDAR to permanently authorize
delegation of contracting officer authorities to a limited number of
selected and qualified CCN PSCs.
Discussion
Prior to establishing the permanent CCN warrant program, the Agency
reviewed the risks associated with issuing CO warrants to Non-U.S.
citizens who are not direct-hire employees of USAID. In particular,
such factors as proper accountability, adequate security
considerations, conflicts of interest, and appropriate legal
jurisdiction over the employee were considered. Adequate management
controls and warrant limitations established under the CCN PSC warrant
program, as discussed below, were established to mitigate such risks.
To address the risks associated with adequate accountability and
conflict of interest, the warrant program requires candidates for the
CCN PSC warrant program to show commitment to the profession by meeting
stringent acquisition competencies, education and training
requirements. In addition to meeting these requirements, potential
candidates must have extensive experience in Direct U.S. Federal
Government Contracting and clearly demonstrate professional and ethical
behavior. When reviewing applications for a CCN PSC warrant, the agency
contacts past performance references (typically, the candidate's last
three Supervisory Contracting Officers) and any other sources deemed
appropriate for signs of potential risks or cautions that may be
detrimental to the responsibilities inherent in this Program. The
candidate's supervisor must also attest to the candidate's education,
training, experience, business acumen, judgment, character, reputation
and ethical behavior.
Additionally, the Program requires the CCN contracting officer's
supervisor to closely and frequently monitor the CCN PSC's work and
review performance and progress every six months. This review is
followed by periodic reviews conducted by the Bureau for Management,
Office of Acquisition and Assistance, Evaluation Division, which is
responsible for the program implementation.
CCN PSC contracting officers will support the functions of the
overseas Mission's Office of Acquisition & Assistance (A&A), which
typically include acquisition and assistance awards implementing the
Agency's foreign assistance programs and activities. CCN PSC
contracting officers are currently not delegated authority to award any
personal services contracts. The program also limits delegated
authority for select contract administration functions listed in (48
CFR) FAR 42.302(a), specifically, the contracting officer functions in
which disputes or possible legal challenges may arise due to decisions
of the contracting officer, functions related to novation and
contractor name changes, which may be a result of changes in a
contractor's business structure as governed under applicable U.S. state
law and other functions based on U.S. state laws, functions related to
small business contracting matters and those requiring extensive
knowledge of specific U.S. laws and government-wide policies not
specifically related to contracting. Accordingly, the functions
specified in items 5-7, 9-12, 18, 21-26, 29, 32,50, 52-55, 62-63, 66
and 68-71 of (48 CFR) FAR 42.302(a) will not be redelegated to CCN PSC
contracting officers.
To address conflict of interest concerns, the program relies on the
standard clause entitled ``Compliance with Laws and Regulations
Applicable Abroad'', included in all personal services contracts with
CCNs, that mandates compliance with the Standards of Conduct for
Executive Branch Employees. These standards, available at https://www2.oge.gov/web/oge.nsf/All%20Documents/5D633072D0B2DB5085257E96006A90E7?opendocument, contain two provisions
addressing financial interests that conflict with an individual's
official duties. The first provision, entitled ``Disqualifying
financial interests,'' prohibits an employee from participating in an
official government capacity in a matter in which he has a financial
interest or in which his spouse, minor child, employer, or any one of
several other specified persons has a financial interest. The second
provision, entitled ``Prohibited financial interests,'' contains
authority by which agencies may prohibit employee from acquiring or
retaining certain financial interests. To address the security
concerns, the Program uses the current process, in which the USAID
Office of
[[Page 55408]]
Security and Department of State, Office of Security conduct background
checks on potential personal service contractors. Recognizing the fact
that some countries may not have adequate legal systems or may be
unwilling to provide assistance in prosecuting their citizens for U.S.
procurement infractions, the CCN PSC Warrant Program established the
following management controls designed to minimize the risk that such
legal actions might be necessary:
--Stringent eligibility criteria,
--Reasonable single purchase and cumulative annual limits for new
awards.
--CCN participation in this program is limited to one candidate per
contracting officer warrant level per overseas mission. This limitation
may be expanded only if it is deemed by the Senior Procurement
Executive to be in the best interest of the Agency.
--Ongoing risk assessments are performed throughout the Program
implementation to assure compliance with the program requirements.
USAID is seeking public comments on the proposed changes to the
AIDAR to implement the agency CCN PSC Warrant Program.
C. Impact Assessment
(1) Regulatory Planning and Review. Under E.O. 12866, USAID must
determine whether a regulatory action is ``significant'' and therefore
subject to the requirements of the E.O. and subject to review by the
Office of Management and Budget (OMB). USAID has determined that this
Rule is not an ``economically significant regulatory action'' under
Section 3(f)(1) of E.O. 12866. This proposed rule is not a major rule
under 5 U.S.C. 804.
(2) Regulatory Flexibility Act. The rule will not have an impact on
a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Therefore, an Initial
Regulatory Flexibility Analysis has not been performed.
(3) Paperwork Reduction Act. The proposed rule does not establish a
new collection of information that requires the approval of the Office
of Management and Budget under the Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Chapter 7 Parts 701, 722 and Appendix J
Government procurement.
For the reasons discussed in the preamble, USAID amends 48 CFR
Chapter 7 as set forth below:
0
1. The authority citation for 48 CFR Chapter 7 parts 701, 722 and
Appendix J continues 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; and 3 CFR
1979 Comp., p. 435.
PART 701--FEDERAL ACQUISITION REGULATION SYSTEM
Subpart 701.6--Career Development, Contracting Authority, And
Responsibilities
0
2. Amend 701.603-70 by adding two sentences to the end to read as
follows:
701.603-70 Designation of contracting officers.
* * * However, upon approval of an exception by the Assistant
Administrator for the Bureau for Management (AA/M), in accordance with
the limitations in AIDAR Appendix D, the Senior Procurement Executive
may designate a USPSC as a Contracting Officer or delegate the USPSC
authority to sign obligating and subobligating documents. The Senior
Procurement Executive may also delegate limited contracting officer
authority to Cooperating Country National personal service contractors
(CCN PSCs) who meet the requirements in the Agency's warrant program
for CCN PSCs, as specified in Appendix J.
PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
Subpart 722.1--Basic Labor Policies
0
3. Amend 722.170 by adding two sentences at the end of paragraph(a) to
read as follows:
722.170 Employment of third country nationals (TCN's) and cooperating
country nationals (CCN's).
(a) * * * This policy does not apply to consultants, as defined in
AIDAR Clause 752.202-1(e), who are engaged to advise the contractor on
a temporary or intermittent basis and do not receive standard benefits
available to the contractor's employees. It is the contractor's
responsibility to identify if the individual being hired is an employee
or a consultant.
* * * * *
0
4. Revise paragraphs (b)(3)b. and (b)(4) to read as follows:
Appendix J to Chapter 7--Direct USAID Contracts With a Cooperating
Country National and With a Third Country National for Personal
Services Abroad
4--Policy
* * * * *
(b) Limitations on Personal Services Contracts.
(3) * * *
b. They may not be designated as Contracting Officers or
delegated authority to sign obligating or subobligating documents,
unless specifically delegated limited contracting officer authority
by the Senior Procurement Executive. In order to be delegated
limited contracting officer authority, Cooperating Country National
PSCs (CCN PSCs) must meet the requirements in the Agency's warrant
program for CCN PSCs.
* * * * *
(4) Exceptions. Exceptions to the limitations in (b)(3)(a), (c),
(d) and (e) must be approved by the Assistant Administrator for
Management (AA/M).
* * * * *
Dated: July 27, 2016.
Roy Plucknett,
Chief Acquisition Officer.
[FR Doc. 2016-19709 Filed 8-18-16; 8:45 am]
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