[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39089-39096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18495]
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INTERNATIONAL DEVELOPMENT COOPERATION AGENCY
Agency for International Development
48 CFR Parts 701, 702, 706, 709, 710, 711, 713, 715, 716, 717, 719,
722, 724, 725, 726, 732, 733, 736, 737, 752 and Appendix A
[AIDAR Notice 96-1]
RIN 0412-AA29
Miscellaneous Amendments to Acquisition Regulations
AGENCY: Agency for International Development (USAID).
ACTION: Final rule.
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SUMMARY: The AID Acquisition Regulation (AIDAR) is being amended to
incorporate administrative changes reflecting USAID's new
organizational structure; to implement the Federal Acquisition
Streamlining Act (FASA); to clarify or simplify certain authorities and
procedures currently in the AIDAR; to implement new or revised Agency
policies resulting from reengineering and its effect on procurement
procedures; and to revise relevant sections to implement USAID's
procurement reform initiatives. This regulatory action was subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993.
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT: M/OP/P, Ms. Diane M. Howard, (703)
875-1310.
SUPPLEMENTARY INFORMATION: The specific changes being made to the AID
Acquisition Regulation (AIDAR) in this amendment are broad in scope,
ranging from changes in basic Agency procurement policy and procedures
to minor administrative corrections.
A. USAID Policy Changes
Two changes are needed to the AIDAR to reflect Agency policy
changes.
(1) A new subpart 726.71 ``Relocation of U.S. Businesses,
Assistance to Export Processing Zones, Internationally Recognized
Workers' Rights'' is added to implement a statutorily required policy
promulgated by USAID on January 3, 1994.
(2) The clause at 752.7012 ``Protection of the Individual as a
Research Subject'' is revised to implement USAID's adoption of the
Common Federal Policy for the Protection of Human Subjects, as found in
22 CFR Part 225.
B. USAID Reengineering
USAID has been serving as a reengineering laboratory under the
National Performance Review (NPR), and as a result has made many
changes in its organizational structure as well as its operational
procedures in recent years. Consequently, the AIDAR is being amended
throughout to reflect changes in office designations and acronyms and
to update or delete references to obsolete regulations, functional
position terms, and documentation requirements. The USAID Handbook
system has been replaced by the Automated Directives System (ADS), and
handbook references in the AIDAR are changed to the corresponding ADS
Chapter. A functional position term that is no longer appropriate is
``project officer''; USAID, as a result of reengineering, will no
longer implement its programs through the former project approval and
implementation system and therefore the terms ``project'' and ``project
officer'' will in the future be, respectively, ``activity'' and
``technical officer'' or ``cognizant technical officer''. Obsolete
documentation requirements are Project Implementation Orders (for
technical services [PIO/Ts], commodities [PIO/Cs], or participant
training [PIO/Ps]), and references to these documents are being
deleted.
Concurrent with the overall Agency reengineering and in conjunction
with Government-wide procurement reform efforts, USAID has also been
reengineering its procurement procedures. AIDAR 706.302-70 is being
revised to provide an additional agency exception to full and open
competition to allow for follow-on award for the continued provision of
highly specialized services when award to another source would result
in substantial additional costs to the government or would result in
unacceptable delays. This exception is very similar to the exception
described in FAR 6.302-1(a)(2)(iii); however, the FAR authority is
available only to DOD, NASA, and the Coast Guard and not to civilian
agencies such as USAID. Therefore, the Administrator of USAID made a
formal written determination in accordance with paragraph (b)(3)(ii) of
AIDAR 706.302-70, Impairment of foreign aid programs. Use of the
authority is limited as stated in the added wording in this section.
Another revision related to Agency procurement reform initiatives
is in the AIDAR's Appendix A, ``Respective Roles of Contracting and
Other Personnel in the AID Procurement Process,'' which is revised to
allow the contracting officer to reveal the amount of funds the Agency
has available for a specific procurement when a performance-based
contract is contemplated.
C. The Federal Acquisition Streamlining Act of 1994 (FASA)
FASA and the resulting changes to the FAR require corresponding
revisions to the AIDAR. The specific changes are as follows:
(1) All references to ``small purchases'' and the $25,000 ceiling
for small purchases are being revised to ``simplified acquisition
procedures'' and the threshold amounts in FAR 13.101 and 13.103(b).
(2) USAID's implementation of FASA requirements for obtaining past
performance information is incorporated into the revised solicitation
provision in 752.209-70, which establishes the procedures for obtaining
past performance information from the offeror (this information
collection has been approved Government-wide by OMB under approval
number 9000-0142). The past performance references submitted in
response to this provision will be used both in making the
responsibility determination required in FAR Subpart 9.1 and to
evaluate the offeror's ability to perform the contract based on its
past performance, as now required in FAR 15.605. Subpart 709.1 was
removed since it is redundant to the FAR.
After reviewing section 715.608, ``Proposal evaluation'', to
determine what, if any, changes would be necessary to implement this
component
[[Page 39090]]
of FASA, we redesignated this section as 715.604-70 and revised the
text. The contracting office's representative is now designated in
paragraph (a) as a non-voting member of the evaluation committee, and
paragraph (b) ``Functions and procedures of AID evaluation committees''
is renamed ``Responsibilities of AID evaluation committees'' and is
revised for clarity. No substantive procedural changes are being made
at this time.
(3) Section 716.301-3 is deleted since FASA deleted the
corresponding requirement in FAR 16.301-3(c) for a determination and
findings prior to issuing a cost-reimbursement type contract.
(4) USAID protest procedures in Subpart 733.7 are revised to
reflect FASA changes and to redesignate the AIDAR subpart as 733.1,
with sections thereunder redesignated to further correspond to FAR
Subpart 33.1. AIDAR subpart 733.71 ``AID Procedures for Disputes and
Appeals'' is also redesignated 733.27 and the sections thereunder are
redesignated accordingly.
In addition, Agency protest procedures formerly described in
section 733.70 and now found in section 733.103-70 are revised in their
entirety to condense and clarify them and to designate the Agency
Procurement Executive as the decision authority for Agency protests,
rather than the Head of the Contracting Activity. This latter change is
being made to better ensure consistency and objectivity in the decision
process.
(5) AIDAR subpart 737.2 ``Advisory and Assistance Services'' is
deleted, since the implementation of FASA in FAC 90-33 removed approval
requirements addressed in this subpart, and any other evaluation and
reporting requirements are either no longer necessary or are adequately
addressed in the FAR.
(6) AIDAR 752.203-1 ``Officials Not to Benefit'' is deleted, since
the requirement in FAR 3.102-2 it modified was deleted.
D. Administrative Changes and Clarifications
Such changes include the following:
(1) The authority of individual heads of contracting activities to
approve class deviations in 701.470(b)(1) is clarified.
(2) A new definition for ``accessorial costs'' is added to section
713.101 to clarify types of costs to be included as part of the base
costs under the simplified acquisition threshold.
(3) The sections under Subpart 722.8, ``Equal Employment
Opportunity,'' are redesignated to correspond to the FAR; the subpart
is also revised in its entirety in order to remove coverage that is
redundant to the FAR and to simplify and clarify the remaining
procedures.
(4) Subpart 724.1, ``Protection of Individual Privacy,'' is deleted
in its entirety because it is redundant to FAR coverage.
(5) Subpart 725.4, ``Trade Agreements,'' is revised to include the
North American Free Trade Agreement and to clarify the applicability of
trade agreements to USAID's contracts.
(6) Subpart 732.4 is revised to clarify that local-currency
advances to for-profit organizations must be approved by the Head of
the Contracting Activity (such advances were previously not addressed).
(7) The clause at 752.7007, ``Personnel Compensation,'' is revised
to reflect Agency policy on salary limitations implemented elsewhere in
the AIDAR in Notice 95-1, published on March 3, 1995 (60 FR 11911).
This clause was inadvertently omitted from that Notice.
(8) The clause at 752.7019, ``Participant Training,'' is revised in
paragraph (d)(2) to clarify allowable costs for participants.
(9) The clause at 752.7028, ``Differentials and Allowances,'' is
revised to change the term ``temporary lodging allowance'' to
``temporary quarters subsistence allowance'' (TQSA) in accordance with
the corresponding change in the Standardized Regulations (Government
Civilians, Foreign Areas), to provide for Mission Director approved
extensions to the period of time when TQSA can be paid, and to clarify
that post differential is paid from the date of arrival at post only
for regular employees of the contractor (short term employees are still
only entitled to post differential beginning with the forty-third day
at the post).
The changes being made by this Notice are not considered
``significant'' under FAR 1.301 or FAR 1.501, and public comments have
not been solicited. This Notice 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 Notice, 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
Notice 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, 706, 709, 710, 711, 713,
715, 716, 717, 719, 722, 724, 725, 726, 732, 733, 736, 737 and 752
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, 706, 709, 710, 711,
713, 715, 716, 717, 719, 722, 724, 725, 726, 732, 733, 736, 737, 752,
and Appendix A 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.
PART 701--FEDERAL ACQUISITION REGULATION SYSTEM
701.105 [Amended]
2. Paragraph (a) of section 701.105 is amended by removing the
expiration date ``05/31/95'' shown for OMB Control Number 0412-0536 and
replacing it with ``09/30/96''.
701.370 [Amended]
3. Section 701.370 is amended by removing the comma after
``Executive Order 11223'' and by removing ``and established AID
policies on contracting as set forth in supplement B to AID Handbook
1'' from the first sentence.
701.470 [Amended]
4. Section 701.470 is amended by adding the following sentence to
the end of paragraph (b)(1):
701.470 Procedure.
* * * * *
(b) * * *
(1) * * * Individual heads of contracting activities have authority
to approve class deviations affecting only contracts within their own
contracting activities, except that the Director, M/OP, has authority
to approve class deviations that affect more than one contracting
activity.
* * * * *
701.601 [Amended]
5. Section 701.601, paragraph (b) is revised to read as follows:
701.601 General.
* * * * *
(b) The authority of heads of contracting activities to execute
contracts is limited as follows:
(1) Director, Office of Procurement. Unlimited authority to execute
contracts. May issue warrants for simplified acquisitions up to the
amount permitted by FAR 13.101 and 13.103(b) to individuals on his or
her
[[Page 39091]]
staff (subject to termination in accordance with FAR 1.603-4).
(2) Director, Office of U.S. Foreign Disaster Assistance. Authority
to execute contracts for disaster relief purposes during the first 72
hours of a disaster in a cumulative total amount not to exceed
$500,000. Authority to execute simplified acquisitions up to the amount
permitted by FAR 13.101 and 13.103(b) at any time. May issue warrants
for simplified acquisitions up to the amount permitted by FAR 13.101
and 13.103(b) to qualified individuals on his or her staff.
(3) Director, Office of Administrative Services. Authority to
execute simplified acquisitions up to the amount permitted by FAR
13.101 and 13.103(b) for supplies and services, except professional
non-personal services and personal services. Unlimited authority when
ordering against GSA or other established U.S. Government ordering
agreements. May issue warrants for simplified acquisitions up to the
amount permitted by FAR 13.101 and 13.103(b) to qualified individuals
on his or her staff.
(4) Director, Center for Human Capacity Development (G/HCD).
Authority to execute simplified acquisitions up to $10,000. Unlimited
authority for procuring participant training based on published catalog
prices, using M/OP/E approved forms. May issue warrants for simplified
acquisitions up to $10,000 to qualified individuals on his or her
staff.
(5) Overseas heads of contracting activities. Authority to sign
contracts where the cumulative amount of the contract, as amended, does
not exceed $250,000 (or local currency equivalent) for personal
services contracts or $100,000 (or local currency equivalent) for all
other contracts. May issue warrants for simplified acquisitions up to
the amount permitted by FAR 13.101 and 13.103(b) to qualified
individuals on his or her staff.
701.603-70 [Amended]
6. Section 701.603-70 is amended by adding ``direct-hire'' before
``employees'' in the last sentence.
PART 702--DEFINITIONS OF WORDS AND TERMS
702.170 [Amended]
7. Paragraph (a) of section 702.170-3 is amended by removing
``Office of International Training'' from the first full sentence and
inserting ``Center for Human Capacity Development (G/HCD)'' in its
place.
8. Paragraph (a)(1)(iv) of section 702.170-10 is amended by
removing ``Office of International Training'' and replacing it with
``Center for Human Capacity Development (G/HCD)''.
PART 706--COMPETITION REQUIREMENTS
706.302-70 [Amended]
9. In section 706.302-70, a new paragraph (b)(5) is added, a
sentence is added to the end of paragraph (c)(1) and a new paragraph
(c)(4) is added to read as follows:
706.302-70 Impairment of foreign aid programs.
* * * * *
(b) * * *
(5) An award for the continued provision of highly specialized
services when award to another resource would result in substantial
additional costs to the government or would result in unacceptable
delays.
(c) * * *
(1) * * * While the authority at 706.302-70(b)(5) is for use when
the contracting officer determines that the incumbent contractor is the
only practicable, potential offeror, the requirement to publicize the
intended award, as required in FAR 5.201, still applies.
* * * * *
(4) Use of the authority in 706.302-70(b)(5) is subject to the
approvals required in FAR 6.304. In addition, for proposed awards in
excess of one year or over $250,000, approval of the Agency Competition
Advocate is required.
PART 709--CONTRACTOR QUALIFICATIONS
Subpart 709.1--[Removed]
10. Subpart 709.1 is removed.
11. Part 710 is redesignated as Part 711, and the heading is
revised to read as follows:
PART 711--DESCRIBING AGENCY NEEDS
711.011 [Redesignated and amended]
12. Newly designated section 711.011 is further redesignated as
section 711.002-71 and amended to remove ``752.210-70'' and replace it
with ``752.211-70''.
711.070 [Redesignated and amended]
13. Newly designated section 711.070 is further redesignated as
section 711.022-70; paragraph (a) is amended by removing ``10.002(c)''
and replacing it with ``11.002(b)''; and paragraph (b)(1) is amended by
removing ``(by signing a PIO/T or equivalent document)''.
14. Part 713 is revised to read as follows:
PART 713--SIMPLIFIED ACQUISITION PROCEDURES
713.000 Scope of part.
Subpart 713.1--General
713.101 Definitions.
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.
713.000 Scope of part.
The simplified acquisition threshold applies to the cost of
supplies and services, exclusive of the cost of transportation and
other accessorial costs if their destination is outside the United
States.
Subpart 713.1--General
713.101 Definitions.
Accessorial costs means the cost of getting supplies or services to
their destination in the cooperating country (and the travel costs of
returning personnel to the U.S. or other point of hire). It does not
include costs such as allowances or differentials related to
maintaining personnel at post which are to be considered as part of the
base costs within the simplified acquisition threshold.
PART 715--CONTRACTING BY NEGOTIATION
715.605-70 [Removed]
15. Section 715.605-70 is removed.
715.608 [Redesignated and revised]
16. Section 715.608-70 is redesignated as section 715.604-70 and
revised; and section 715.604 is added to read as follows:
715.604 Responsibilities.
715.604-70 Responsibilities of AID evaluation committees.
(a) Establishment and composition of AID evaluation committees. A
technical evaluation committee shall be established for each proposed
procurement. In each case, the committee shall be composed of a chair
representing the cognizant technical office, a representative of the
contracting office (who shall be a non-voting member of the committee),
and representatives from other concerned offices as appropriate.
(b) Technical evaluation procedures. (1) The contracting officer
will receive all proposals and provide to the chair a listing and
copies of the technical proposals and instructions for conducting the
evaluation.
[[Page 39092]]
(2) The chair will promptly call a meeting of the committee to
evaluate the proposals received. The evaluation shall be based on the
evaluation factors set forth in the solicitation document.
(3) The chair shall prepare and provide to the contracting officer
written documentation summarizing the results of the evaluation of each
proposal, including an assessment of past performance information in
accordance with FAR 15.608(a)(2) and section 752.209-70. The
documentation shall include narrative justification of the evaluation
results and shall reflect the requirements of FAR 15.608(a)(3).
(4) The contracting officer is responsible for reviewing the
documentation justifying the evaluation results to determine that it is
adequate and complete. The contracting officer shall return a
justification determined to be inadequate to the chair for revision.
(5) No member of the AID evaluation committee shall hold
discussions with any offeror before or during the AID evaluation
committee's proceedings, nor shall any information about the proposals
be provided to anyone not on the committee without first obtaining the
contracting officer's consent.
PART 716--TYPES OF CONTRACTS
716.301-3 [Removed]
17. Section 716.301-3 is removed.
716.501 [Removed]
18. Section 716.501 is removed.
PART 717--SPECIAL CONTRACTING METHODS
717.700 [Amended]
19. Section 717.700 is amended by revising the last sentence to
read as follows:
717.700 General.
* * * Applicable policies and procedures are set forth in AID
Automated Directive System Chapter 312.
PART 719--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
719.270 [Amended]
20. Section 719.270 is amended in paragraph (c)(1) by removing
``Program/project'' and replacing it with ``Cognizant technical'' and
by removing ``programs/projects'' and replacing it with ``activities''
and in paragraph (d) by removing ``$25,000'' in the second sentence and
replacing it with ``the simplified acquisition threshold [FAR 13.101
and 13.103(b)]''.
719.271-2 [Amended]
21. Section 719.271-2 is amended in paragraph (b)(8) by removing
``(PIO/T, PIO/C or other requisitioning document)'' and by removing
``$25,000'' and replacing it with ``the simplified acquisition
threshold [FAR 13.101 and 13.103(b)]''.
718.271-3 [Amended]
22. Section 719.271-3 is amended in paragraph (g) by removing
``PIO/Ts, PIO/Cs, or other requisitioning documents)''.
719.271-4 [Amended]
23. Section 719.271-4 is amended in paragraph (c) by replacing
``program/project'' with ``cognizant technical''.
24. Section 719.271-5 is amended by revising the heading
introductory text, and paragraph (b) to read as follows:
719.271-5 Cognizant technical officers.
Since the procurement process starts with the establishment of a
requirement, the actions of the cognizant technical officers can affect
the opportunity of small business to participate equitably; therefore,
each cognizant technical officer shall, during the formulation of
activities which will require contractual implementation:
* * * * *
(b) Provide sufficient procurement lead time in the activity
implementation schedule to allow potential small business
participation.
719.271-6 [Amended]
25. Section 719.271-6 is amended by removing ``(PIO/Ts, PIO/Cs, or
other requisitioning documents)'', and removing ``$25,000'' and
replacing it with ``the simplified acquisition threshold (FAR 13.101
and 13.103(b))'' in the introductory text of paragraph (a); and by
removing ``(PIO/T, PIO/C, or other requisitioning document, such as an
approved Noncapital Project Paper (PROP), which may be substituted for
the PIO/T or PIO/C if required by the urgency of the procurement)'' in
paragraph (b)(1).
PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
722.103-70, 722.103-71, 722.103-72 [Redesignated as 722.103-1,
722.103-2, 722.103.4]
26. Sections 722.103-70, 722.103-71, and 722.103-72 are
redesignated as 722.103.-1, 722.103-2, and 722.103-4 respectively and
section 722.103-3 is added and reserved.
27. Subpart 722.8 is revised to read as follows:
Subpart 722.8--Equal Employment Opportunity
722.805-70 Procedures.
The following procedures apply, as appropriate, for all contracts:
(a) General. (1) When all necessary representations and
certifications (Reps and Certs) as required by FAR 22.810 are received,
the contracting officer must review them to determine that they have
been completed and signed as required, and are acceptable. Acceptable
Reps and Certs are the first step in the EEO clearance process.
(2) If the Reps and Certs are not deemed acceptable on technical
grounds (e.g. incomplete, not signed, etc.) the contracting officer
must decide if they can be made acceptable within a reasonable period
by corrective action on the part of the offeror, or if the fault is
such that it renders the offer nonresponsive. In the first case,
necessary corrective action should be taken; in the second case,
negotiations with the non-responsive offeror will be terminated. If the
Reps and Certs raise questions concerning EEO compliance, and this
would be the basis for finding the offeror non-responsive, the matter
must be referred to the cognizant regional Department of Labor Office
of Federal Contract Compliance Programs (OFCCP) regardless of the
estimated value of the contract; only OFCCP may make a determination of
non-compliance with EEO requirements.
(b) Contracts for $1,000,000 or more. (1) In addition to the
requirement for obtaining acceptable Reps and Certs in paragraph (a) of
this section, contracts and modifications with an estimated value of
$1,000,000 or more (including any modification which increases the
total estimated value of a contract to $1,000,000 or more, or any
modification which is itself $1,000,000 or more), must, in accordance
with FAR 22.8, have OFCCP verification of EEO compliance before award.
The contracting officer shall follow the procedures for obtaining EEO
compliance in FAR 22.805(a). In requesting a preaward review from
OFCCP, the contracting officer may need to provide the following
information in addition to the items listed in FAR 22.805(a)(4):
(i) Name, title, address, and telephone number of a contract person
for the prospective contractor;
(ii) A description of the type of organization (university,
nonprofit, etc.) and its ownership (private, foreign, state, etc.).
(iii) Names and addresses of organizations joint venture (if any).
[[Page 39093]]
(iv) Type of procurement (new contract--RFP or IFB, amendment,
etc.) and estimated dollar amount, and term.
(v) Copy of approved Reps and Certs.
(2) If the initial contact with OFCCP is by telephone, the
contracting officer and OFCCP should mutually determine what
information is to be included in the written verification request. In
the event that OFCCP reports that the offeror is not in compliance,
negotiations with the offeror shall be terminated.
(c) Contracts over $10,000, but less than $1,000,000. Contracts and
amendments within this range do not require formal verification by
OFCCP. The method used to verify compliance is at the discretion of the
contracting officer. The contracting officer may rely on the
documentation submitted by the offeror (the Reps and Certs--see
Sec. 722.805-70(a)), unless he or she is aware of some reason to doubt
the documentation submitted. In case of doubt, then an informal check
with OFCCP should be made. In the event that evidence of non-compliance
is developed, the contracting officer must contact OFCCP for
confirmation of EEO status; only OFCCP may determine non-compliance
with EEO requirements. If OFCCP confirms non-compliance, negotiations
with the offeror or contractor shall be terminated.
(d) Documentation for the contract file. (1) Every contract file
must contain completed signed Reps and Certs. The file must clearly
show that these documents have been reviewed and accepted by the
contracting officer. If the Reps and Certs were revised to make them
acceptable (see Sec. 722.805-70(a)), the file must show what changes
were required and certify that the changes were made.
(2) For contracts or amendments of $1,000,000 or more, the file
must contain:
(i) A record of the initial contact with OFCCP, specifying the
name, address, and telephone number of the person contacted, a summary
of the information presented, and the advice given by OFCCP;
(ii) A copy of the written follow-up request for EEO compliance
verification to OFCCP; and
(iii) A copy of the compliance verification from OFCCP.
(3) For contracts or amendments over $10,000 but less than
$1,000,000, the file must contain a statement from the contracting
officer that the contractor is considered in compliance with EEO
requirements, and giving the basis for this statement (see
Sec. 722.805-70(c)). This statement may be in a separate memorandum to
the file or in the memorandum of negotiation (see 704.803(a)).
(4) Documentation in the event of non-compliance. In the event that
OFCCP determines that a prospective contractor is not in compliance, a
copy of OFCCP's written determination, and a summary of resultant
action taken (termination of negotiations, notification of offeror and
cognizant technical officer, negotiation with next offeror in
competitive range, resolicitation, etc.) will be placed in the contract
file for any contract which may result, together with other records
related to unsuccessful offers, and retained for at least six months
following award.
PART 724--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
724.1--[Removed]
28. Subpart 724.1 is removed.
PART 725--FOREIGN ACQUISITION
29. Subpart 725.4 is revised to read as follows:
Subpart 725.4--Trade Agreements
Sec. 725.403 Exceptions.
FAR 25.4 establishes procedures for purchases under the Trade
Agreements Act of 1979 (including GATT's Agreement on Government
Procurement) and the North American Free Trade Agreement (NAFTA). Under
both such agreements, USAID's contracts for the purpose of providing
foreign assistance are not subject to the procedures set forth in FAR
25.4. In contrast, USAID's operating expense-type administrative
purchases (i.e., purchases for the direct benefit and use of USAID) are
subject to the procedures in FAR 25.4, unless otherwise exempted by one
of the exemptions specified in FAR 25.4.
725.701 [Amended]
30. Section 725.701 is amended by removing ``AID Handbook 1,
Supplement B, primarily in Chapter 5'', replacing it with ``Chapter 310
of the AID Automated Directive System (ADS)'', and by removing the
second sentence.
725.702 [Amended]
31. Section 725.702 is amended by removing ``Attachment A-11,
Section III, of Appendix D to AID Handbook 18'' in paragraph (b) and
replacing it with ``the Agency Geographic Code Book''.
725.705 [Amended]
32. Section 725.705 is amended by removing ``Chapter 18 of AID
Handbook 1, Supplement B'' and replacing it with ``Chapter 311 of the
AID ADS'' in paragraph (a).
725.706 [Amended]
33. Section 725.706 is amended by revising paragraph (a) to read as
follows:
725.706 Geographic source waivers.
(a) Authority to waive source, origin, nationality, and
transportation service requirements is set forth in Sec. 310.5.9 of the
ADS. Additional guidance is available in ADS Sec. 310.5.8.
* * * * *
PART 726--OTHER SOCIOECONOMIC PROGRAMS
34. Subpart heading 726.70 is added to read as follows:
Subpart 726.70--Disadvantaged Enterprises Program
726.000 [Redesignated as 726.7001 and amended]
35. Sec. 726.000 is redesignated as section 726.7001, and the
heading and first sentence are amended by replacing ``part'' with
``subpart''.
726.1 [Removed]
36. The heading ``Subpart 726.1--GENERAL'' is removed.
726.101-726.310 [Redesignated]
37. Sections 726.101 through 726.301 are redesignated as follows:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
726.101.................................................... 726.7002
726.102.................................................... 726.7003
726.103.................................................... 726.7004
726.104.................................................... 726.7005
726.201.................................................... 726.7006
726.301.................................................... 726.7007
------------------------------------------------------------------------
37a. Subpart 726.2 is removed.
38. Subpart 726.71 is added to read as follows:
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
Sec.
726.7101 Policy.
726.7102 PD 20 provision.
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
726.7101 Policy.
USAID Policy Determination (PD) 20, ``Guidelines to Assure USAID
Programs do not Result in the Loss of Jobs in the U.S.'' implemented
statutory prohibitions on expenditure of appropriated funds. The PD
contains a
[[Page 39094]]
standard provision for inclusion in USAID-funded grants and inter-
agency agreements and indicates that when the PD applies to a contract,
appropriate provisions covering the subject matter are to be included.
When the provisions of PD 20 do apply to a contract, the cognizant
technical office shall provide to the contracting officer appropriate
language tailored to the specific circumstances for the contract
statement of work, or if applicable to the circumstances, the provision
included in the PD (see Sec. 726.7102) may be used as a clause in the
contract. The provision is not required in subcontracts.
726.7102 PD 20 provision.
Relocation of U.S. Businesses, Assistance to Export Processing
Zones, Internationally Recognized Workers' Rights (Jan 1994)
No funds or other support provided hereunder may be used in an
activity reasonably likely to involve the relocation or expansion
outside of the United States of an enterprise located in the United
States if non-U.S. production in such relocation or expansion
replaces some or all of the production of, and reduces the number of
employees at, said enterprise in the United States.
No funds or other support provided hereunder may be used in an
activity the purpose of which is the establishment or development in
a foreign country of any export processing zone or designated area
where the labor, environmental, tax, tariff, and safety laws of the
country would not apply, without the prior approval of USAID.
No funds or other support provided hereunder may be used in an
activity which contributes to the violation of internationally
recognized rights of workers in the recipient country, including
those in any designated zone or area in that country.
PART 732--CONTRACT FINANCING
39. Subpart 732.1 is added to read as follows:
Subpart 732.1--General
732.111 Contract clauses.
(a) [Reserved]
(b) AID may obtain short term and (less frequently) long-term
indefinite quantity professional services through Agency-specific
indefinite quantity contracts that are a combination of contract types.
Rather than using the fixed-price payment clauses for indefinite
quantity contracts, when these IQCs provide for fixed daily rates
(which may include wages, overhead, general and administrative
expenses, fringe benefits, and profit) for services and reimbursement
of other direct costs (such as travel and transportation) at cost, then
the payment clause at 752.232-7 shall be used in the contract.
732.402 [Revised]
40. Paragraph (e) of section 732.402 is revised to read as follows:
732.402 General.
* * * * *
(e)(1) All U.S. Dollar advances to for-profit organizations require
the approval of the Procurement Executive; all such approvals are
subject to prior consultation with the AID/W Controller.
(2) All local currency advances to for-profit organizations require
the approval of the Head of the Contracting Activity, after
consultation with the Mission Controller.
732.406-71 [Amended]
41. Section 732.406-71 is amended by revising paragraphs (a) and
(b) to read as follows:
732.406-71 Circumstances for use of an LOC.
* * * * *
(a) The contracting officer has determined that an advance payment
is necessary and appropriate in accordance with this subpart and the
guidance provided in FAR 32.4;
(b) AID has, or expects to have, a continuing relationship of at
least one year with the organization, and the annual amount required
for advance financing will be at least $50,000; and
* * * * *
732.406-72 [Amended].
42. Section 732.406-72 is amended by replacing ``FM/CMP/LC'' with
``FM/CMP/GIB'' in the last sentence of paragraph (a) and adding a new
paragraph (b)(6) to read as follows:
732.406-72 Establishing an LOC.
(a) * * *
(b) * * *
(6) The contractor Federal Tax Identification Number.
* * * * *
PART 733--PROTESTS, DISPUTES, AND APPEALS
43. Subpart 733.70 is redesignated Subpart 733.1 and revised to
read as follows:
733.1--Protests
733.101 Definitions.
(a) ``Procurement Executive'' is defined in AIDAR 702.170-13.
(b) All ``days'' referred to in this subpart are deemed to be
``calendar days'', in accordance with FAR 33.101. In the case of USAID
overseas offices with non-Saturday/Sunday weekend schedules, the
official post weekend applies in lieu of Saturday and Sunday.
(c) All other terms defined in FAR 33.101 are used herein with the
same meaning.
733.103-70 Protests to the agency.
AID follows the agency protest procedures in FAR 33.103, as
supplemented by this section.
733.103-71 Filing of protest.
(a) Protests must be in writing and addressed to the Contracting
Officer for consideration by the Procurement Executive.
(b) A protest shall include, in addition to the information
required in FAR 33.103(b)(3), the name of the issuing Mission or
office.
(c) Material submitted by a protestor will not be withheld from any
interested party outside the government or from any government agency
if the Procurement Executive decides to release such material, except
to the extent that the withholding of such information is permitted or
required by law or regulation.
733.103-72 Responsibilities.
(a) Procurement Executive. The decision regarding an agency protest
shall be made by the Procurement Executive within 30 days from the date
a proper protest is filed unless the Procurement Executive determines
that a longer period is necessary to resolve the protest, and so
notifies the protester in writing. The Procurement Executive shall make
his or her decision after personally reviewing and considering all
aspects of the case as presented in the protest itself and in any
documentation provided by the contracting officer, and after obtaining
input and clearance from the Assistant General Counsel for Litigation
and Enforcement (GC/LE). The decision shall be in writing and
constitutes the final decision of the Agency.
(b) Contracting Officer. The contracting officer may make the
determination in FAR 33.103(a)(2) and is responsible for requesting an
extension of the time for acceptance of officers as described in FAR
33.103(a)(3).
733.103-73 Protests excluded from consideration.
(a) Contract administration. Disputes between a contractor and AID
are resolved pursuant to the disputes clause of the contract and the
Contract Disputes Act of 1978.
(b) Small business size standards and standard industrial
classification. Challenges of established size standards or the size
status of particular firms, and challenges of the selected standard
industrial classification are for review
[[Page 39095]]
solely by the Small Business Administration.
(c) Procurement under Section 8(a) of the Small Business Act.
Contracts are let under Section 8(a) of the Small Business Act to the
Small Business Administration solely at the discretion of the
Contracting Officer, and are not subject to review.
(d) Protests filed in the General Accounting Office (GAO). Protests
filed with the GAO will not be reviewed.
(e) Procurements funded by AID to which AID is not a party. No
protest of a procurement funded by AID shall be reviewed unless AID is
a party to the acquisition agreement.
(f) Subcontractor protests. Subcontractor protests will not be
considered.
(g) Judicial proceedings. Protests will not be considered when the
matter involved is the subject of litigation before a court of
competent jurisdiction or when the matter involved has been decided on
the merits by a court of competent jurisdiction.
(h) Determinations of responsibility by the contracting officer. A
determination by the contracting officer that a bidder or offeror is or
is not capable of performing a contract will not be reviewed by the
Procurement Executive.
(i) Small Business Certificate of Competency Program. Any referral
made to the Small Business Administration pursuant to section 8(b)(7)
of the Small Business Act, or any issuance of, or refusal to issue, a
certificate of competency under that section will not be reviewed by
the Procurement Executive.
733.71--[Redesignated]
44. Subpart 733.71 is redesignated as subpart 733.27 and sections
733.7101 and 733.7102 are redesignated as 733.2701 and 733.2702
respectively.
PART 736--CONSTRUCTION AND ARCHITECT--ENGINEER CONTRACTS
736.602-5 [Amended]
45. The heading for 736.602-5 is revised to read as follows:
736.602-5 Short selection process for procurements not to exceed the
simplified acquisition threshold.
* * * * *
PART 737--SERVICE CONTRACTING
737.2--[Removed]
46. Subpart 737.2 is removed.
PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
752.203-1 [Removed]
47. Section 752.203-1 is removed.
48. Section 752.209-70 is amended by revising the provision date
and the text of the provision itself to read as follows:
752.209-70 Requirement for past performance references.
* * * * *
Requirement for Past Performance References (July 1996)
The offeror shall submit, as part of its proposal, information
on recently completed contracts or on-going contracts that are
similar to the statement of work in the solicitation performed for
federal, state and local governments and for commercial firms. The
number of such contracts, as well as the specific details to be
provided for each, shall be in accordance with the instructions
provided elsewhere in Section L of this solicitation, consistent
with the Government-wide past performance information collection
requirements in the FAR. The offeror is expected to comply with the
instructions in Section L regarding the type and amount of detail to
be provided on past performance and the format to be used to submit
it. If the offeror does not follow the prescribed format, then care
must be taken to ensure that the substance of the requested
information is provided. Failure to do so may seriously impede both
the technical evaluation of the offeror's proposal and the
contracting officer's ability to make a positive responsibility
determination.
USAID may contact representatives from the references provided
by the offeror to obtain information on the offeror's past
performance. The offeror is advised that USAID may obtain past
performance information from other than sources identified by the
offeror. USAID will use past performance information both for the
responsibility determination required in FAR 9.1 and the best value
decision in accordance with the instructions in Section L and the
evaluation criteria in Section M of this solicitation.
752.210-70 [Redesignated]
49. Section 752.210-70 is redesignated as section 752.211-70.
752.219-8 [Amended]
50. Section 752.219-8 is amended by removing ``$25,000'' and
replacing it with ``the simplified acquisition threshold in FAR
13.000'' in the second paragraph.
752.7004 [Amended]
51. Section 752.7004 is amended by removing ``Chapters 4 and 5 of
AID Handbook 1, Supplement B (Procurement Policies)'' and replacing it
with ``Chapter 310 of AID's Automated Directives System (ADS)'' in the
last sentence of paragraph (a) of the clause.
752.7006 [Amended]
52. Section 752.7006 is amended by adding ``U.S.'' before ``Agency
for International Development'' in the paragraph beginning ``To AID:''.
752.7007 [Amended]
53. Section 752.7007 is amended by revising the clause heading and
paragraph (b) of the clause to read as follows:
752.7007 Personnel Compensation.
* * * * *
Personnel Compensation (July 1996)
(a) * * *
(b) Compensation (i.e., the employee's base annual salary plus
overseas recruitment incentive, if any) which exceeds the maximum
payable annual or daily rate for an Executive Service level ES-6, as
published in the Federal Register, will be reimbursed only with the
approval of the Contracting Officer.
752.7012 [Revised]
54. Section 752.7012 is revised to read as follows:
752.7012 Protection of the Individual as a Research Subject.
This clause is for use in any AID contract which involves research
using human subjects.
Protection of the Individual as a Research Subject (August 1995)
(a) Safeguarding the rights and welfare of human subjects in
research conducted under a USAID contract is the responsibility of
the contractor. USAID has adopted the Common Federal Policy for the
Protection of Human Subjects. USAID's Policy is found in Part 225 of
Title 22 of the Code of Federal Regulations (the ``Policy'').
Additional interpretation, procedures, and implementation guidance
of the Policy are found in USAID General Notice entitled
``Procedures for the Protection of Human Subjects in Research
Supported by USAID'', issued April 19, 1995, as from time to time
amended (a copy of which is attached to this contract). USAID's
Cognizant Human Subjects Officer (CHSO) and AID/W has oversight,
guidance, and interpretation responsibility for the Policy.
(b) Contractors must comply with the Policy when humans are the
subject of research, as defined in 22 CFR 225.102(d), performed as
part of the contract, and contractors must provide ``assurance'', as
required by 22 CFR 225.103, that they follow and abide by the
procedures in the Policy. See also Section 5 of the April 19, 1995,
USAID General Notice which sets forth activities to which the Policy
is applicable. The existence of a bona fide, applicable assurance
approved by the Department of Health and Human Services (HHS) such
as the ``multiple project assurance'' (MPA) will satisfy this
requirement. Alternatively, contractors can provide an acceptable
written assurance to USAID as described in 22 CFR 225.103. Such
assurances must be determined by the CHSO to be acceptable prior to
any applicable research being
[[Page 39096]]
initiated or conducted under the contract. In some limited instances
outside the U.S., alternative systems for the protection of human
subjects may be used provided they are deemed ``at least
equivalent'' to those outlined in Part 225 (see 22 CFR 225.101(h)).
Criteria and procedures for making this determination are described
in the General Notice cited in the preceding paragraph.
(c) Since the welfare of the research subject is a matter of
concern to USAID as well as to the contractor, USAID staff,
consultants and advisory groups may independently review and inspect
research, and research processes and procedures involving human
subjects, and based on such findings, the CHSO may prohibit research
which presents unacceptable hazards or otherwise fails to comply
with USAID procedures. Informed consent documents must include the
stipulation that the subject's records may be subject to such
review.
752.7017 [Amended]
55. Section 752.7017 is amended by removing ``Chapter 5 of AID
Handbook 1, Supplement B'' in paragraph (b) and replacing it with
``Chapter 310 of the AID Automated Directives System (ADS)''.
752.7018 [Amended]
56. Section 752.7018 is amended by removing ``Office of
International training, AID'' in paragraph (b) and replacing it with
``Human Capacity Development Center in the Bureau for Global Programs
Field Support and Research (G/HCD0), AID/W'' and by removing ``Office
of International Training'' in both paragraphs (d) and (d)(1) and
replacing it with ``Human Capacity Development Center''.
57. Section 752.7019 is amended by removing paragraph (g), by
revising the reference to ``(g)'' in the introductory paragraph of the
section and in the undesignated paragraph following paragraph (c) of
the clause to read ``(f)'', and by revising the clause date and
paragraphs (b), (c), and (d)(2), to read as follows:
752.7019 Participant Training.
* * * * *
Participant Training (July 1996)
* * * * *
(b) Applicable regulations. Proposals for contracts involving
training of AID participants, and participant training conducted
under an AID contract shall follow the policies established in
Chapter 253 of the AID Automated Directive System (ADS)--``Training
for Development Impact'' except to the extent that specific
exceptions to ADS Chapter 253 have been provided in this contract.
(Chapter 253 may be obtained by submitting a request to the Human
Capacity Development Center (G/HCD), at the address specified in
paragraph (c) of this section.)
(c) Reporting requirement. Once each month the Contractor shall
submit three copies of form AID 1381-4, ``Participant Data Form'' to
the Human Capacity Development Center (G/HCD) Bureau for Global
Programs Field Support and Research, USAID, Washington, DC 20523-
1601.
* * * * *
(d) * * *
(2) Cost of technical preparation and photocopying of papers and
dissertations, allowances for required textbooks, the titles of
which will be approved by the Contractor.
* * * * *
58. Section 752.7028 is amended by revising the date of the clause;
removing ``Contractor employees'' in the third sentence of paragraph
(a) and replacing it with ``regular employees of the Contractor''; by
removing ``living quarters allowance'' in the second and third sentence
of paragraph (b) and replacing it with ``temporary quarters subsistence
allowance''; and revising paragraph (c) to read as follows:
752.7028 Differential and allowances.
* * * * *
Differentials and Allowances (July 1996)
* * * * *
(c) Temporary quarters subsistence allowance. Temporary quarters
subsistence allowance is a quarters allowance granted to an employee
for the reasonable cost of temporary quarters incurred by the
employee and his family for a period not in excess of (i) 90 days
after first arrival at a new post in a foreign area or a period
ending with the occupation of residence (permanent) quarters, if
earlier, and (ii) 30 days immediately preceding final departure from
the post subsequent to the necessary vacating of residence quarters,
unless an extension is authorized in writing by the Mission
Director. The Contractor will be reimbursed for payments made to
employees and authorized dependents for temporary quarters
subsistence allowance, in lieu of living quarters allowance, not to
exceed the amount set forth in the Standardized Regulations
(Government Civilians, Foreign Areas), Chapter 120, as from time to
time amended.
* * * * *
59. Appendix A to Chapter 7 is amended as follows:
(A) In paragraph 2(a), by removing the fourth sentence and
``whether it is to be'' in the sixth sentence, and by removing
``project'' and replacing it with ``activity'' in the last sentence.
(B) By revising paragraph 2(b) to read as follows:
Appendix A--Respective Roles of Contracting and Other Personnel in the
Aid Procurement Process
* * * * *
2. Planning, Competition, Negotiation, and Award
* * * * *
(b) Contracting personnel act upon requirements which are
formulated by the planning, technical, and research offices of the
Agency. Contracting officers obtain the information they need on
technical requirements by questions and discussions with the
planning, technical, and research offices of the Agency. If a
contract is to be tenable, the end result which is desired must be
described with completeness and exactitude. The statement of work
must be explicit; otherwise the contracting officer cannot assure
terms in a contract by which the desired action can be enforced. If
the requiring office cannot provide a point of departure in these
terms and deliver to the contracting officer a clear-cut description
of the purpose and outline the limits of the statement of work,
results may be disappointing and the possibility of deferring the
activity until these elements can be given more concrete dimensions
should be considered. Finally, the requiring office should insure
that the statement of work and funding information are delivered to
the contracting officer with sufficient lead time to allow for
proper preparation and planning of the procurement. Under most
circumstances, the specific amount of funds which the Agency has
available to support a contract shall not be made known to a
prospective contractor; however, when a performance-based contract
is planned, the contracting officer may decide that it is necessary
to reveal in the announcement (CBD notice) and in the solicitation
the Government estimate, or a narrow range of expected costs, in
order to obtain goods and services of the highest affordable
technical quality, and to ensure that offerors do not propose
elaborate programs that cannot be financed by USAID.
* * * * *
(C) In paragraph 2(c), replace ``scopes'' with ``statements'' in
the last sentence.
Dated: May 21, 1996.
Marcus L. Stevenson,
Procurement Executive.
[FR Doc. 96-18495 Filed 7-25-96; 8:45 am]
BILLING CODE 6116-01-M
