[Federal Register Volume 85, Number 40 (Friday, February 28, 2020)]
[Rules and Regulations]
[Pages 11859-11861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03408]
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AGENCY FOR INTERNATIONAL DEVELOPMENT
48 CFR Chapter 7
RIN 0412-AA94
U.S. Agency for International Development Acquisition Regulation
(AIDAR): Designation of Personal Services Contractors (PSCs) as
Contracting Officers and Agreement Officers
AGENCY: U.S. Agency for International Development.
ACTION: Final rule.
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SUMMARY: The U.S. Agency for International Development (USAID) is
issuing a final rule amending the Agency for International Development
Acquisition Regulation (AIDAR) to streamline the procedures for issuing
contracting officer and agreement officer warrants to U.S. Personal
Services Contractors (US PSCs) and Cooperating Country National
Personal Services Contractors (CCN PSCs).
DATES: This final rule is effective March 30, 2020.
FOR FURTHER INFORMATION CONTACT: Anne Sattgast, Telephone: 202-916-2623
or Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Agency for International Development (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 working towards its
long term mission of reducing poverty, strengthening democratic
governance, and helping people emerge from humanitarian crises and
progress beyond assistance.
The Agency's warranted work force is critical to managing these
efforts. A shortage of warranted contracting/agreement officers
requires that the Agency be able to designate highly qualified US
Personal Services Contractors (US PSCs) and Cooperating Country
National Personal Services Contractors (CCN PSCs) as contracting/
agreement officers in an expeditious manner. The delegation of limited
contracting/agreement officer authorities to a select number of CCN
PSCs will also bolster the Agency to succeed in terms of building long-
term, host country technical capacity to materially assist the Missions
with procurement responsibility.
Currently, a US PSC can be designated as a contracting officer only
when a deviation from AIDAR 701.603-70 is approved; and when the
Assistant Administrator for the Bureau for Management (AA/M) approves
an exception in accordance with AIDAR Appendix D 4(b)(3)e.
Additionally, the Agency currently allows for the delegation of
certain limited contracting officer authorities to highly qualified CCN
PSCs. The CCN warrant program ran as a pilot from 2011-2014. The
program became permanent in September 2014, when USAID issued a two-
year class deviation from 48 CFR AIDAR 701.603-70. In conjunction with
the approval of the class deviation, the Assistant Administrator for
the Bureau for Management (AA/M) approved a class exception to the
limitations in AIDAR Appendix J 4(b)(3). Subsequent two-year class
deviations were issued for the permanent CCN warrant program in
September 2016 and September 2018.
USAID published a proposed rule in the Federal Register at 84 FR
27745 on June 14, 2019, to amend the AIDAR to allow for the designation
of US PSCs and CCN PSCs as contracting officers and agreement officers.
The proposed rule's supplementary information contains additional
background on the designation of US PSCs and CCN PSCs as contracting
and agreement officers, including more details on the permanent CCN
warrant program and an analysis of the risks associated with
designating non-U.S. citizens as contracting and agreement officers.
This final rule amends the AIDAR to streamline the procedures for
issuing contracting officer and agreement officer warrants to US PSCs
and CCN PSCs. Thirteen respondents submitted comments related to the
proposed rule.
II. Discussion and Analysis
USAID reviewed and considered the public comments before the
issuance of this final rule. No changes were made to the proposed rule
as a result of the comments. A discussion of the comments is provided
below.
A. General Support for the Rule
Comment: Eleven of the thirteen respondents expressed explicit
support for the proposed rule. For example, several respondents stated
that the rule helps PSCs and highlights their contributions to the
Agency. Several other respondents noted that the current process for
securing warrants for PSCs, which requires an exception from AA/M, was
difficult and cumbersome and that the improvements in the proposed rule
will result in a more efficient process, allowing the Agency to issue
warrants to PSCs in a timely manner. Others noted that this rule will
help address a shortage of contracting officers and is a positive
change for an overburdened workforce.
Response: USAID agrees with these comments. PSCs are an important
part of the Agency's workforce.
B. Designating CCN PSCs as Contracting Officers
Comment: One respondent was concerned that the delegation of
warrant CCN PSCs would be in conflict with regulations relating to
inherently governmental functions.
Response: USAID CCN PSCs are able to perform inherently
governmental functions under federal law and USAID policy. (48 CFR) FAR
subpart 7.5 exempts PSCs from the restrictions on
[[Page 11860]]
contracts for inherently governmental functions. (48 CFR) FAR does not
specify that contracting officers must be U.S. citizen direct-hire
employees of the Federal government.
Comment: One respondent stated that providing CCN warrants was an
inherent conflict, given that USAID is distributing US taxpayer funds
in a foreign environment and the possibility for corruption when
approving subcontracts.
Response: USAID has had a permanent CCN warrant program in place
for five years, and over that time period, the program has been
extensively reviewed on multiple occasions. This final rule streamlines
warrant issuance procedures. The Agency does not view the issuance of
administrative warrants with limited authorities to CCN PSCs as a
conflict. Concerning the possibility for corruption, warranted CCN PSCs
do not provide subcontract approvals in isolation, as the Agency's
procurement systems have a built-in segregation of duties, even for
administrative contracting duties. When approving subcontracts, the
Contracting Officer's Representative (COR) initiates the process and
provides technical clearance. The warranted CCN PSC then reviews and
executes the COR's request. This system applies to all staff, including
US direct hires, US PSCs, and CCN PSCs, and is an important risk
mitigation measure against fraud, waste, and abuse in USAID's
procurement system.
Comment: Two respondents expressed concerns relating to the
training, certification, and oversight of CCN PSCs.
Response: The Agency has built stringent qualifications and
oversight measures into the warrant program to mitigate risk. The
current training, certification and experience requirements for CCN
PSCs to receive a limited, administrative warrant exceed those required
for US citizens to receive a warrant to ensure that CCN PSCs understand
the complexities associated with U.S. regulations and policies. CCN
PSCs are required to have a Federal Acquisition Certification--
Contracting (FAC-C) Level II certification along with seven years of
Agency experience, and at least five years of that experience must be
in the area of acquisition and assistance. As noted in the preamble to
the proposed rule, the CCN warrant 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. The review
includes an assessment of all actions where the warrant was used. 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.
Comment: One respondent expressed a desire for more information
about the CCN warrant program, including information relating to the
design, scope, duration, and results of the program, including
information related to the State Department's program.
Response: This comment is outside the scope of the streamlined
warrant issuance procedures in the final rule. The Agency provided some
historical information in the preamble of the proposed rule to provide
context for the rule. However, the warrant program is internal to the
Agency and not contained in federal regulation.
C. Recommendation of an Independent Ombudsman
Comment: One respondent recommended an independent Ombudsman to
investigate complaints related to the behavior of CCN PSCs and their
ability to manage US funds.
Response: USAID agrees that an independent Ombudsman is important
to support the integrity of its procurement system. The Agency has had
a Personal Services Contractor Ombudsman since 2016.
D. Support for a ``Limited'' Program
Comment: One respondent provided support of a limited program to
provide a temporary alternative solution to the direct-hire of full-
time USAID employees as contracting and agreement officers, with
appropriate limitations on the scope of warrants issued to these
individuals.
Response: USAID agrees that certain limitations on PSC warrants are
appropriate. US PSCs must meet the same requirements as US direct hires
to receive a warrant. The CCN PSC warrant program has more stringent
training, certification, and experience requirements than those
required for US citizens and only allows for the delegation of limited
contract administration functions. Warranted CCN PSCs are not delegated
authority to make new awards or execute any actions or awards related
to personal services contracts or public international organizations
(PIOs). 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) are not
redelegated to CCN PSC contracting officers.
Comment: One respondent expressed concern that issuing warrants to
PSCs would dilute the Agency's position in advocating for increasing
funding for direct-hire contracting staff.
Response: USAID continues to advocate strongly for more operational
expense funding for direct-hire staff. The US PSC and CCN PSC warrant
programs could not and are not intended to be a permanent solution to
the shortage of direct-hire contracting staff. These warrant programs
are significantly limited in scope and are only available to overseas
Missions with a demonstrated need for additional warranted individuals.
The Agency does not view the issuance of these warrants to PSCs as
diluting the argument for both a larger direct-hire acquisition
workforce and the funding necessary to support that workforce.
E. Number of PSCs at USAID Missions
Comment: One respondent commented on the number of PSCs with
warrants and inquired if the positions noted in the preamble of the
proposed rule were a fixed number designated to be filled or if they
were the only ones that the Agency was able to fill.
Response: This comment is outside the scope of the streamlined
warrant issuance procedures in the rule. At the time of the issuance of
the proposed rule, there were 21 PSCs with warrants. However, this is
not a fixed number. The Agency only issues warrants to US PSCs and CCN
PSCs when there is a demonstrated need for such warrants.
III. Regulatory Findings
Executive Orders 12866, 13563, and 13771
This final rule has been drafted in accordance with Executive
Orders (E.O.s) 12866 and 13563, which direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential
[[Page 11861]]
economic, environmental, public health and safety effects, distributive
impacts, and equality). E.O. 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. USAID has reviewed the regulation
to ensure its consistency with the regulatory philosophy and principles
set forth in E.O.s 12866 and 13563 and finds that the benefits of
issuing this rule outweigh any costs, which the Agency assesses to be
minimal. The Office of Management and Budget's Office of Information
and Regulatory Affairs (OMB/OIRA) has determined that this regulatory
action is ``significant'' and therefore subject to the requirements of
the E.O. and subject to review by OMB. OMB/OIRA has determined that
this rule is not an ``economically significant regulatory action''
under Section 3(f)(1) of E.O. 12866. This final rule is not subject to
the requirements of E.O. 13771 because this rule is related to agency
organization, management, or personnel.
Regulatory Flexibility Act
USAID certifies that this rule will not have a significant economic
impact on a substantial number of small entities. Consequently, the
Agency has not prepared a regulatory flexibility analysis.
Small Business Regulatory Enforcement Fairness Act
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is not required.
List of Subjects in 48 CFR Part 701
Government procurement.
For the reasons stated in the preamble, USAID amends 48 CFR Chapter
7 as set forth below:
0
1. The authority citation for 48 CFR part 701 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. Revise 701.603-70 to read as follows:
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. To ensure
proper accountability, and to preclude possible security, conflict of
interest, or jurisdiction problems, USAID contracting officers must be
U.S. citizen direct-hire employees of the U.S. Government. However,
Director, Bureau for Management, Office of Acquisition and Assistance
(M/OAA Director) may also designate a U.S. Personal Services Contractor
(USPSC) or a Cooperating Country National Personal Services Contractor
(CCNPSC) as a contracting officer with a specific level of warrant
authority. To qualify for a designation as a contracting officer, an
individual must meet the requirements in FAR subpart 1.6 and the
Agency's applicable warrant program.
0
3. In appendix D to chapter 7, in section 4 ``Policy'', revise
paragraph (b)(3)b. and add paragraph (b)(4) and revise the 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
* * * * *
(b) * * *
(3) * * *
b. They may not be delegated authority to sign obligating or
subobligating documents except when specifically designated as a
contracting officer or an agreement officer in accordance with FAR
subpart 1.6 and the Agency's applicable warrant program.
* * * * *
(4) Exceptions. The Assistant Administrator, Bureau for
Management (AA/M) must approve exceptions to the limitations in
(b)(3). Approval of an exception by the AA/M is not required when
the Director, Bureau for Management, Office of Acquisition and
Assistance (M/OAA Director) designates a USPSC as a contracting
officer or an agreement officer.
* * * * *
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; and 3 CFR 1979 Comp., p. 435)
0
4. In appendix J to chapter 7, in section 4 ``Policy'', revise
paragraphs (b)(3)b. and (b)(4) and the authority citation at the end of
the appendix 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) * * *
(3) * * *
b. They may not be delegated authority to sign obligating or
subobligating documents except when a cooperating country national
personal services contractor is specifically designated as a
contracting officer or an agreement officer in accordance with FAR
subpart 1.6 and the Agency's applicable warrant program.
* * * * *
(4) Exceptions. The Assistant Administrator, Bureau for
Management (AA/M) must approve exceptions to the limitations in
(b)(3). Approval of an exception by the AA/M is not required when
the Director, Bureau for Management, Office of Acquisition and
Assistance (M/OAA Director) designates a cooperating country
national personal services contractor as a contracting officer or an
agreement officer.
* * * * *
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; and 3 CFR 1979 Comp., p. 435)
Mark Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2020-03408 Filed 2-27-20; 8:45 am]
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