[Federal Register Volume 84, Number 52 (Monday, March 18, 2019)]
[Proposed Rules]
[Pages 9739-9742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03840]


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AGENCY FOR INTERNATIONAL DEVELOPMENT

48 CFR Chapter 7

RIN 0412-AA93


Agency for International Development Acquisition Regulation 
(AIDAR): Revisions to the Incentive Awards Program for Personal 
Services Contractors

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 its regulation regarding incentive awards for personal 
services contracts with individuals. In 2004 and 2015, the USAID 
Administrator approved policies to authorize funding for incentive and 
recognition awards for personal services contracts with individuals 
under the Agency's authorities for such contracts. This proposed rule 
will allow USAID to recognize the work of an individual personal 
services contractor (PSC) for extraordinary performance of services 
under their contract by providing them with monetary or non-monetary 
incentive awards.

DATES: Submit comments on or before May 17, 2019.

ADDRESSES: Submit comments, identified by title of the Proposed Action 
and Regulation Identifier 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 Marcelle J. Wijesinghe, USAID, Bureau for 
Management, Office of Acquisition & Assistance, Policy Division, Room 
867-J, SA-44, 1300 Pennsylvania Ave. NW, Washington, DC 20523-2052.

FOR FURTHER INFORMATION CONTACT: Richard Spencer, Telephone: 202-567-
4781 or Email: [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 9740]]

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 in 
Washington, DC.
    All comments will be made available at http://www.regulations.gov 
for public review without change, including any personal information 
provided. We recommend that 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. USAID may 
not consider comments that are insubstantial or outside the scope of 
the proposed rule.

B. Request for Comments

    USAID requests comments on its proposed rule to revise the Agency's 
Acquisition Regulations (AIDAR), appendices D and J to allow an 
individual personal services contractor to be eligible for monetary and 
non-monetary awards for extraordinary performance as described below.

Background

    USAID awards PSCs with individuals based on multiple authorities: 
(1) Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended 
(FAA, 22 U.S.C. 2396), for personal services abroad; (2) annual 
appropriations for Foreign Operations for a maximum number of PSCs in 
the U.S. (e.g., Sec. 7057(g), Division K, Pub. L. 114-113 for fiscal 
year 2016); or (3) program-specific provisions of the FAA, the Food for 
Peace Act, or an appropriations act that authorize use of a broad range 
of implementation authorities toward those program purposes 
``notwithstanding any other provision of law'' (e.g., FAA Section 491, 
22 U.S.C. 2292, which authorizes international assistance ``to 
alleviate human suffering caused by natural and manmade disasters . . 
.'').
    Over the last 27 years, USAID has awarded personal services 
contracts to individuals as necessary for the Agency to carry out its 
mission in the U.S. and overseas.
    As of September 2015, of USAID's total workforce, approximately 8 
percent were U.S. PSCs, and 47 percent were cooperating country, or 
third country, national (CCN or TCN) PSCs. The Agency's overseas local 
staff are CCNPSCs, with the exception of a very few remaining Foreign 
Service National (FSN) direct-hire employees. Because the Agency 
depends on PSCs as part of its workforce for its operations, USAID 
seeks to recognize and motivate excellence in contract performance.
    Because PSCs are not authorized to participate in programs 
administered by the Office of Personnel Management (OPM), in May 2004, 
then Administrator Andrew Natsios used the Agency's discretionary 
authority to establish a separate awards program for PSCs, distinct 
from the Agency's awards program authorized by OPM for the Agency's 
direct-hire employees (see 5 U.S.C. 4501 et seq. regarding incentive 
awards programs for ``superior accomplishment'' by employees within the 
definition of 5 U.S.C. 2105; and 5 CFR part 451). The Administrator 
approved a deviation from the AIDAR appendix D to expand the PSC non-
monetary awards program to include limited monetary awards such as ``On 
The Spot'' or Special Act cash; and Time-Off awards. The revised PSC 
monetary awards program was implemented under USAID Acquisition and 
Assistance Policy Directive (AAPD 04-15) issued on October 15, 2004, 
which authorized USPSCs, and certain TCNPSCs on an exceptional basis, 
to be eligible for these three types of monetary incentive awards under 
USAID Mission, Bureau or Independent Office (M/B/IO) programs.
    In March 2015, USAID's Special Awards Committee (SAC) conducted a 
review of the Agency's Awards program for its direct-hire employees. 
Following that review, on December 22, 2015, Acting Agency 
Administrator Alfonso Lenhardt approved a deviation to further expand 
the Agency's PSC Awards program to include additional types of monetary 
and non-monetary awards similar to those provided to USAID's direct-
hire employees.
    In order to implement the awards programs for PSCs as approved by 
the Agency in 2004 and 2015, this revision to AIDAR appendices D and J 
is being proposed, and will replace the deviations approved in 2004 and 
2015.

Discussion

    This proposed rule will amend the AIDAR to establish a separate 
monetary and non-monetary awards program to recognize and reward 
individual personal services contractors for their contributions to the 
accomplishment of USAID's mission, goals, and objectives.
    Based on Statute--Section 636(a)(3) of the Foreign Assistance Act 
of 1961, as amended; and by regulation--appendices D and J of the 
AIDAR, PSCs are not allowed to participate in any award program 
administered by OPM. Recognition of individual accomplishments by 
USPSCs was limited to non-monetary awards and certificates of 
appreciation. However, based on deviations and policy directives signed 
by the Head of Agency in 2004 and 2015, USAID established an interim 
separate awards program to make PSCs eligible to receive awards similar 
to the Agency's direct-hire employee incentive awards program.
    The Agency's incentive awards program for direct-hire employees is 
implemented in USAID's Automated Directives System (ADS) chapter 491. 
The new PSC awards program proposed in this AIDAR revision will be 
incorporated into appendices D and J and will be implemented as 
described in USAID's PSC policy in ADS chapter 309. Where appropriate, 
this incentive awards program will closely parallel the program for 
U.S. direct-hire employees. Any award payments will be made from the 
same source of funding used for the individual's contract, and in all 
cases separately from the pool of funds maintained for USAID direct-
hire employee awards. Recognizing that USPSCs receive an annual pay 
comparability adjustment similar to direct-hires, as well as an annual 
within-grade salary increase for work evaluated at the ``satisfactory 
performance'' level, the policy requires that these awards be for 
performance or a special act that goes above and beyond the minimum 
satisfactory performance required under the contract. USAID proposes to 
recognize and encourage exceptional performance by PSCs when they 
perform special acts or create innovations that contribute to 
efficiency, economy, or other improvements in government operations, in 
the same way USAID recognizes superior performance by its direct-hire 
employees. The proportion of PSCs receiving cash awards at a M/B/IO or 
at the Agency level, and the total amount of the awards, will be 
consistent with, and will not exceed, the existing Agency policy for 
awards to U.S. direct-hire employees, as set by the Agency's Senior 
Management.
    The Agency's internal policies in ADS 309 will describe the 
criteria for each award, any cash or other limitations associated with 
each award, how the PSC's supervisors or others may nominate 
individuals, and how such

[[Page 9741]]

nominations will be reviewed and recommended for approval. Nominations 
for the annual Agency level awards will generally follow the same 
procedures and use the same documentation as currently required for 
USAID's U.S. direct-hire employees.

Regulatory Basis

    Since the Agency depends so much on PSCs and their contributions to 
the Agency, and as the statute, Section 636(a)(3) of the Foreign 
Assistance Act of 1961, as amended, and the regulation, appendix D of 
the Agency for International Development Acquisition Regulations 
(AIDAR), do not permit PSCs to participate in OPM-administered 
programs, the Administrator has decided to use the Agency's 
discretionary authority to establish a separate monetary awards program 
for its USPSCs. This incentive awards program is distinct and separate 
from the Agency's direct-hire employee incentive awards program found 
in ADS 491. Additionally, this AIDAR revision will establish an 
incentive awards program that is different from FAR Subpart 16.4 
Incentive Contracts, as the Agency's PSC contracts are with individuals 
and profit or fee are not provided under these contracts. The details 
of this award program are available in a Mandatory Reference to ADS 
309, 309mab--``Incentive Awards Program for Personal Services Contracts 
with Individuals'', accessible on the Agency website.

C. Impact Assessment

    (1) Regulatory Planning and Review. Under E.O. 12866, OIRA has 
designated the proposed rule ``significant'' and therefore subject to 
the requirements of the E.O. and subject to review by the Office of 
Management and Budget (OMB). OIRA 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.
    This rule codifies the Agency's deviations to date from the current 
rule in the CFR. The costs calculated in this section are based on 
upper end estimates to illustrate the potential impact of these 
revisions from the baseline costs of the current rule. Under this 
proposed rule, incentive awards at the M/B/IO level paid to USPSCs, and 
TCNPSCs with exceptions to be paid on the GS-scale (i.e., ``excepted 
TCNPSCs'') for fiscal years 2014-2015 averaged $86,158 per year based 
on historical data provided by the Bureau for Management, Office of the 
Chief Financial Officer (M/CFO). The administrative and processing 
costs for these awards averaged $47,865. Therefore, the total estimated 
cost for M/B/IO awards is estimated at $134,023 per fiscal year.
    For the newly proposed ``Agency-level'' incentive awards issued 
from USAID headquarters, the total estimated amount that could be paid 
to all selected PSCs (USN, TCN and CCN) is $160,000 per fiscal year, 
assuming nominations are approved for every award. This figure is based 
on an estimated payout for all of 31 possible cash award amounts listed 
in ADS 309mab.
    As the Agency level headquarters awards program is new and there is 
no historical data for such awards paid to PSCs, USAID used historical 
data for awards to U.S. direct hires, as provided by USAID's Office of 
Human Capital and Talent Management (HCTM) for estimating the 
administrative and processing costs. On that basis administrative and 
processing costs are estimated at $118,525 per fiscal year comprised of 
labor for nominations, selection panels and award processing, plus 
ceremony event costs for a volume PSC awards equivalent to those given 
to direct hires. Also, as PSCs are eligible for fewer categories of 
Agency-level awards than are U.S. direct hires, the costs were pro-
rated accordingly. Therefore, the total estimated cost for Agency-level 
awards from headquarters is $278,525 per fiscal year.
    Based on the above, the M/B/IO awards and Agency level award issues 
at headquarters are estimated together estimated to cost $412,547 per 
fiscal year.
    Note that for incentive awards at the Agency Mission level for 
cooperating country national (CCN) and third country national (TCN) 
PSCs, AIDAR appendix J authorizes such awards in accordance with the 
local compensation plan at each USAID Mission overseas through the 
``Joint Special Embassy'' awards program. While this proposed rule 
revises the title of the Mission incentive awards program using current 
terminology, this rule does not otherwise affect the authority for this 
long-established awards program for CCN and TCN PSCs. Therefore there 
are no increased cost implications for this revision that updates the 
title of the program under AIDAR appendix J.
    Overall, USAID's proposed awards program will impact approximately 
5,200 individual PSCs based on USAID's staffing numbers for fiscal year 
2015 (i.e., 775 USPSCs and over 4,470 cooperating country and third 
country national PSCs). The costs to implement this revision are 
justified as the Agency depends on PSCs as part of its workforce. Given 
that USAID PSCs are an important and flexible supplement for the 
Agency's dynamic operations, this revision provides the Agency the 
ability to recognize and motivate excellence in contractor performance. 
Additionally, since these incentives were previously approved at the 
highest levels of Agency management, the costs to implement these 
revisions were deemed necessary as a business decision about how to 
best promote performance excellence by USAID PSCs.
    As a regulatory matter, the cost of the rule making process to 
incorporate these revisions into the regulation is also justified. The 
AIDAR appendices include all the compensation and benefits available 
under personal services contracts. Therefore, the Agency needs these 
revisions in order to keep the regulation consistent, complete and 
transparent to industry, other government agencies and the general 
public.
    (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, Appendices D and J

    Government procurement.

    For the reasons discussed in the preamble, USAID proposes to amend 
48 CFR chapter 7 as follows:

CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT

0
1. Appendix D is amended by revising Section 4 paragraph (f) and adding 
a parenthetical authority citation at the end of the Appendix to read 
as follows:

Appendix D to Chapter 7--Direct USAID Contracts With a U.S. Citizen or 
a U.S. Resident Alien for Personal Services Abroad

* * * * *

4. Policy

* * * * *
    (f) Incentive awards. U.S. Personal Services Contractors are not 
eligible to participate in, or be funded under, the OPM-administered 
incentive awards program for USAID direct-hire employees in 
accordance with section 636(a) of the Foreign Assistance Act of 
1961, as amended. U.S. Personal Services

[[Page 9742]]

Contractors are eligible to receive certain monetary and non-
monetary incentive awards as authorized under this section. All 
nominations for incentive awards must be approved by a U.S. direct 
hire employee, who is either the contractor's supervisor or is at 
the next higher level within the M/B/IO. The list of incentive 
awards and detailed eligibility, nomination and approval processes 
are specified in internal Agency policies in ADS chapter 309, 
available on the USAID website. These awards will be funded from the 
authorizations used to fund the specific contract.
* * * * *
(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.)

0
2. Appendix J is amended as follows:
0
a. In section 4:
0
i. By revising paragraph (c)(1);
0
ii. In paragraph (c)(2)(i), by removing ``TCN or CCN'' and adding in 
its place ``CCN or TCN'' and removing the reference ``4c(2)(ii)'' and 
adding in its place the reference ``4(c)(2)(ii)'';
0
iii. In paragraph (c)(2)(ii) introductory text, by removing the words 
``FSNs which includes CCNs and TCNs'' and adding in their place ``CCNs 
and TCNs'' and revising the second sentence.
0
iv. In paragraph (c)(2)(ii)(A), by removing the words ``foreign 
national employee'' and adding in its place the words ``CCN or TCN 
personal services contractor'';
0
v. In paragraph (c)(2)(ii)(B), by revising the first sentence;
0
vi. In paragraph (c)(2)(iii), by removing the words ``compensation plan 
for each'' and adding in its place the words ``local compensation plan 
for each Mission'';
0
vii. By revising paragraphs (c)(2)(v) and (vii) and (c)(3); and
0
viii. In paragraph (c)(4), by removing ``CCN and TCN PSCs'' and adding 
in its place ``CCN and TCN personal services contractors'' and removing 
the words ``Contracting Officer'' and adding in their place the words 
``contracting officer''.
0
b. Under section 12, General Provisions for a Contract with a 
Cooperating Country National or with a Third Country National for 
Personal Services, revise item 19.
0
c. By adding a parenthetical authority citation at the end of the 
appendix.
    The revisions and addition read as follows:

Appendix J--Direct USAID Contracts With a Cooperating Country National 
and With a Third Country National for Personal Services Abroad

* * * * *

4. Policy

* * * * *
    (c) * * *
    (1) General. For the purpose of any law administered by the U.S. 
Office of Personnel Management, USAID personal services contractors 
are not to be regarded as employees of the U.S. Government, are not 
included under any retirement or pension program of the U.S. 
Government, and are not eligible for the Incentive Awards Program 
covered by Uniform State/USAID regulations. Each USAID Mission is 
expected to participate in an interagency Mission incentive awards 
program. Additionally, CCN and TCN personal services contractors are 
eligible to receive certain USAID monetary and non-monetary 
incentive awards as authorized under this section. See paragraph (3) 
of this section for incentive awards.
    (2) * * *
    (ii) * * * The plan is each post's official system of position 
classification and pay, consisting of the local salary schedule, 
which includes salary rates, statements authorizing fringe benefit 
payments, and other pertinent facets of compensation for CCNs and 
TCNs.* * *
* * * * *
    (B) Section 4 of appendix D of this chapter, entitled Policy, 
subsections (c) ``Withholdings and Fringe Benefits'', (d) ``Resident 
Hire U.S. Personal Services Contractors'', (e) ``Determining Salary 
for Personal Services Contractors'', (g) ``Annual Salary Increase'', 
(h) ``Pay Comparability Adjustment'', and (i) ``Subcontracting''. * 
* *
* * * * *
    (v) CCN and TCN personal services contractors are eligible for 
allowances and differentials as provided under the post's local 
compensation plan.
* * * * *
    (vii) CCNs and TCNs retired from the U.S. government may be 
awarded personal services contracts without any reduction in or 
offset against their U.S. Government annuity.
    (3) Incentive Awards. (i) All CCN and TCN personal services 
contractors of the Foreign Affairs Community are eligible for an 
interagency Mission incentive awards program. The Joint Country 
Awards Committee administers each post's (Embassy) awards program, 
including establishment of procedures for submission, review and 
approval of proposed awards.
    (ii) CCN and TCN personal services contractors are also eligible 
to receive certain monetary and non-monetary USAID incentive awards. 
The list of incentive awards, eligibility, nomination and approval 
processes are specified in internal Agency policies in ADS chapter 
309, available on the USAID website. These awards will be funded 
from the authorizations used to fund the PSC contract, and not from 
funds allocated for the OPM-administered awards program for USAID 
direct-hire employees.
    (iii) Meritorious Step Increases for USAID CCN and TCN personal 
services contractors may be authorized provided the granting of such 
increases is the general practice locally.
* * * * *

12. General Provisions for a Contract With a Cooperating Country 
National or With a Third Country National for Personal Services

* * * * *

19. Incentive Awards

    [For use in both CCN and TCN Contracts].

Incentive Awards (Date)

    (a) Cooperating Country National (CCN) and Third Country 
National (TCN) personal services contractors of the Foreign Affairs 
Community are eligible for an interagency Mission incentive awards 
program. The program is administered by each post's (Embassy) Joint 
Country Awards Committee.
    (b) CCN and TCN personal services contractors are also eligible 
to receive certain monetary and non-monetary USAID incentive awards 
in accordance with the AIDAR and internal USAID policies.
    (c) Meritorious Step Increases. CCNs and TCN personal services 
contractors paid under the local compensation plan are eligible to 
receive meritorious step increases provided the granting of such 
increases is the general practice locally.
* * * * *
(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.)

    Dated: February 14, 2019.
Mark A. Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2019-03840 Filed 3-15-19; 8:45 am]
 BILLING CODE 6116-01-P