§ 706.302-70 - Impairment of foreign aid programs.

706.302-70 Impairment of foreign aid programs.

Cross Reference

Link to an amendment published at 89 FR 4205, Jan. 23, 2024.

(a) Authority.

(1) Citation: The authority is 40 U.S.C. 113.

(2) Full and open competition need not be obtained when it would impair or otherwise have an adverse effect on programs conducted for the purposes of foreign aid, relief, and rehabilitation.

(b) Application. This authority may be used for:

(1) An award under Personal services performed abroad by an individual under the authorities of section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, involving a personal services contractor serving abroad;

(2) An award Supplies or services with a total value of $250,000 or less by an overseas contracting activity;

(3)

(i) An award for which the Assistant Administrator responsible for the project or program Supplies or services when the cognizant Assistant Administrator makes a formal written determination, with supporting findings, Determination and Findings (D&F)(see FAR subpart 1.7), that compliance with full and open competition procedures to procure the goods or services through one or more contract actions would impair foreign assistance objectives , and would be inconsistent with the fulfillment of the one or more foreign assistance programprograms for which the Assistant Administrator is responsible; or

(ii) Awards Supplies or services for countries, regions, projects, or programs for which the Administrator of USAID makes a formal written determination, with supporting findings, D&F (see FAR subpart 1.7) that compliance with full and open competition procedures would impair foreign assistance objectives, and would be inconsistent with the fulfillment of the foreign assistance program.programs;

(4) Awards under (48 CFR) AIDAR Supplies or services awarded under 715.370-1 (Title XII selection procedure—general) or 715.370-2 (Title XII selection procedure—collaborative assistance).

(5) An award

; and

(5) A specific contract for the continued provision of highly-specialized services when an award to another resource contractor would result in substantial additional costs to the Government or would result in cause unacceptable delays.

(c) Limitations.

(1) A contract awarded using the authority in paragraph (a) of this section must be supported by a written justification and approval (J&A) meeting the requirements of FAR 6.303 and 6.304, except that a determination made under paragraph (b)(3) of this section will not be subject to the requirement for contracting officer certification or to approvals required in FAR 6.304.

(2) Proposals must be requested from as many potential offerors as is practicable under the circumstances.

Additionally, as required in (48 CFR) FAR 5.201, the contracting officer must publicize the intended award when using the exceptions above, including when using the authority at 706.302-70

(3) When using the authorities in paragraphs (b)(4) and (5)

where

of this section the contracting officer

has determined that the incumbent contractor is the only practicable, potential offeror.

(2) The contract file must include appropriate explanation and support justifying the award without full and open competition, as provided in (48 CFR) FAR 6.303, except that determinations made under 706.302-70(b)(3) will not be subject to the requirement for contracting officer certification or to approvals in accord with (48 CFR) FAR 6.304.

(3) The authority in 706.302-70must publicize the advance notice of the proposed contract action as required in FAR 5.201. However, when the authorities at paragraphs (b)(1) through (3) of this section are used, advance notice of proposed contract action is not required in accordance with AIDAR 705.202.

(4) The authority in paragraph (b)(3)

(i)

of this section shall be used only when no other authority provided in

(48 CFR)

FAR 6.302 or

(48 CFR)

AIDAR 706.302 is suitable. The specific foreign assistance objective

which

that would be impaired must be identified and explained in

the written determination and finding

a written D&F. Prior consultation with the Agency Competition Advocate (see 706.501) is required before executing the written

determination and finding

D&F, and this consultation must be reflected in the

determination and finding.

(4) D&F. In addition, the contracting activity must prepare a J&A as required in paragraph (c)(1) of this section.

(5) Use of the authority in

706.302-70

paragraph (b)(5) of this section for proposed follow-on

amendments

contracts or modifications to extend contracts for the continued provision of highly-specialized services in excess of one year or over $250,000 is subject to the approval of the Agency Competition Advocate. For all other extensions and follow-on

amendments using this authority

contracts relying on the authority in paragraph (b)(5), the contracting officer's certification required in

(48 CFR)

FAR 6.303-2(b)(12) will serve as approval.

[50 89 FR 409764205, OctJan. 8, 1985, and 50 FR 51395, Dec. 17, 1985, as amended at 54 FR 28069, July 5, 1989; 54 FR 46389, Nov. 3, 1989; 57 FR 5235, Feb. 13, 1992; 61 FR 39091, July 26, 1996; 62 FR 40467, July 29, 1997; 64 FR 42042, Aug. 3, 1999; 79 FR 74988, 74992, Dec. 16, 201423, 2024]