2011-12993. Department of State Acquisition Regulation; Foreign Nationals and Third Country Nationals

AGENCY:

State Department.

ACTION:

Final rule.

SUMMARY:

This final rule makes one administrative change to the Department of State Acquisition Regulation (DOSAR). It revises the DOSAR to allow the appointment of selected non-U.S. citizen locally employed staff, i.e., Foreign Nationals and Third Country Nationals, as contracting officers for acquisitions at $25,000 and below. This change will permit streamlined procurement processes at applicable Department of State overseas posts.

DATES:

Effective Date: This rule is effective June 24, 2011.

FOR FURTHER INFORMATION CONTACT:

Barbara Latvanas, Procurement Analyst, Department of State, Office of the Procurement Executive, 2201 C Street, NW., Suite 900, State Annex Number 27, Washington, DC 20522; telephone number: 703-516-1755; e-mail address: [e-mail]

SUPPLEMENTARY INFORMATION:

The Department published a proposed rule, Public Notice 5684 at 72 FR 4475, January 31, 2007, with a request for comments to expand contracting authority at applicable overseas posts (Embassies and Consulates) to selected non-U.S. citizen locally employed staff (LES) for acquisitions at $25,000 and below. Because the current DOSAR language indicates that all contracting officers must be U.S. citizens, a change to the regulation is required. By way of background, the Department conducted a pilot program at 15 overseas posts in the following locations: Bridgetown, Barbados; Brussels, Belgium; Ljubljana, Slovenia; Melbourne, Australia; Munich, Germany; Nicosia, Cyprus; Oslo, Norway; Paris, France; Seoul, Korea; Singapore; Tallinn, Estonia; The Hague, Netherlands; Tokyo, Japan; Valletta, Malta; and Vienna, Austria. To ensure adequate rule of law, each of the locations involved in the pilot program had a score of at least 5.0 on the Transparency International Corruption Perceptions Index, available at the following Web site: http://www.transparency.org/​. This successful pilot program resulted in streamlined procurement processes and increased management flexibility in awarding acquisitions at $25,000 and below. As a result of this successful pilot program, the Department wants to adopt the proposed rule as final. As specified in the proposed rule, appropriate enhanced management controls, including review of LES transactions by a U.S. Citizen contracting officer, will be imposed. For example, these controls will incorporate the following mandatory requirements:

• Available only at posts with a score of least 5.0 on the Transparency International Corruption Perceptions Index;
• Available only to selected LES staff with a minimum of five years of Department of State experience, unquestioned integrity, and one week of specified simplified acquisition training;
• Review of LES transactions on a monthly basis by a U.S. citizen contracting officer; and
• Periodic evaluation of LES delegated procurement by the Office of the Procurement Executive.

This DOSAR change is administrative in nature and is intended to provide management flexibility to Department of State overseas posts. The proposed rule was discussed in detail in Public Notice 5684. No public comments were received. The Department is now promulgating a final rule with no changes from the proposed rule.

Regulatory Findings

Administrative Procedure Act

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Regulatory Flexibility Act

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

Executive Order 13563 and Executive Order 12866

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, as amended by Executive Order 13563. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the rule does not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 601

• Government procurement

Accordingly, for reasons set forth in the preamble, title 48, chapter 6 of the Code of Federal Regulations is amended as follows:

Subchapter A—General

PART 601—DEPARTMENT OF STATE ACQUISITION REGULATION SYSTEM

1. The authority citation for 48 CFR part 601 continues to read as follows:

Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

2. Section 601.603-3 is amended by revising paragraph (c) to read as set forth below:

601.603-3

Appointment.

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(c) Non-Federal employees. Only United States Government employees shall be appointed as contracting officers. For acquisitions at $25,000 and below only, this includes locally employed staff (i.e., Foreign Service Nationals and Third Country nationals). Personal services contractors are not eligible for appointment as DOS contracting officers.

* * * * *

Dated: May 19, 2011.

Corey M. Rindner,

Procurement Executive, Bureau of Administration, Department of State.