Miscellaneous Amendments to Acquisition Regulations

Federal RegisterJul 26, 1996

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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

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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.

(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.

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.

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.

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.

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.

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.)

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)

* * * * *

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.

* * * * *

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

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