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into consideration local practices and, in collaboration with the Mission Director, shall be established to coincide with the workweek for those employees of the AID Mission and/or the cooperating country. (49 FR 13250, Apr. 3, 1984, as amended at 49 FR 33668, Aug. 24, 1984; 50 FR 50303, Dec. 10, 1985; 53 FR 50631, Dec. 16, 1988)

731.773 Independent research and devel

opment costs. Pending establishment of Government-wide principles in Attachment B of OMB Circular A-122, AID will apply the cost principles at FAR 31.205-18 for independent research and development costs.

PART 732_CONTRACT FINANCING

Subpart 732.4—Advance Payments

contracting officer's approval will be obtained as specified in 731.205-6.

(b) For policies on compensation of third country national or cooperating country national contractor employees, see 722.170.

(C) Overseas Recruitment Incentive. (The term "employee", as used in this paragraph, means an employee who is a U.S. citizen or resident alien.) (1) Contractor employees serving overseas under a contract, who do not qualify for a U.S. tax exemption for overseas income provided under section 911 of the U.S. Internal Revenue Code (26 U.S.C. 911), are eligible to receive a salary supplement (overseas recruitment incentive). The overseas recruitment incentive (ORI) shall not exceed a maximum of ten percent of the base salary per individual for the period of eligible services. This supplement, if offered by the contractor, shall be paid at the end of an employee's tour of duty overseas. The contractor shall take all reasonable and prudent steps to ensure that any employee who is paid an ORI has not claimed or received the se ion 911 exemption.

(2) This supplement will not be paid in an amount which would cause the employee's salary to exceed the maximum payable annual or daily rate for a Foreign Service Officer Class FS-1 in effect at the time the base salary was earned. The FS-1 rate is set forth in the payment schedule of the Uniform State/AID/USIA Regulations, as from time to time amended. Any exception to the FS-1 limitation must be approved by the Contracting Officer.

(3) In the event that an employee subsequently receives a section 911 exclusion for any part of the base salary upon which this supplement has been paid, such supplement or appropriate portion thereof shall be reimbursed by the contractor to AID with interest. The interest shall be calculated at the average U.S. Treasury rate in effect for the period that the contractor or his employee had the funds. Neither the contractor's nor the subcontractor's inability to collect refunds from eligible employees shall be used as a basis to excuse subsequent refunds by the contractor to AID.

(d) The workweek for the contractor's overseas employees should take

Sec. 732.401 Statutory authority. 732.402 General. 732.403 Applicability. 732.406-70 Letters of Credit (LOC)-AID

procedures. 732.406-70-1 Purpose. 732.406-70-2 Circumstances for use of an

LOC. 732.406-70-3 Establishing an LOC. 732.406-70-4 LOC contract clause. 732.406-70-5 Revocation of the LOC.

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.

Subpart 732.4–Advance Payments

SOURCE: 52 FR 4145, Feb. 10, 1987, unless otherwise noted.

732.401 Statutory authority.

(a) Sections 635(b) of the Foreign Assistance Act and Executive Order 11223, May 12, 1955, 30 FR 6635, permit the making of advance payments with respect to functions authorized by the Foreign Assistance Act. Advance payments may also be made under section 305 of the Property Act, which provides authority, not otherwise available to AID, to take a paramount lien.

(b) The Act of August 28, 1968, Pub. L. 85-804 does not apply to AID.

(c) The Office of Financial Management, Program Accounting and Fi. nance Division (M/FM/PAFD) agrees that the LOC payment method is appropriate; and

(d) The recipient organization's financial institution has entered into an agreement with the U.S. Treasury on the use of the LOC.

732.406-70-3 Establishing an LOC.

(a) An LOC is established by M/FM/ PAFD under rules and procedures issued by the Treasury Department. While the contract will provide for the use of an LOC when it is justified under 732.406-70-2, the LOC is a separate agreement between the contractor and M/FM/PAFD, acting on behalf of the AID Controller. The terms and conditions of the LOC are established by the LOC.

(b) An LOC is established upon the request of the contracting officer, with the consent of M/FM/PAFD. The request to M/FM/PAFD must be made in writing as early in the negotiation cycle as possible, and must include the following information:

(1) The name and address of the contractor, and the name, address, and telephone number of the contractor's representative for matters concerning establishment of the LOC.

(2) The name and address of the contractor's financial institution.

(3) The contracting officer's justification for an advance payment.

(4) The estimated total amount of the contract, and estimated frequency and amount of drawdowns against the LOC.

(5) A copy of the contractor's proposal.

(6) A copy of the PIO/T.

(7) Any other information specified by M/FM/PAFD.

(8) Any special conditions or restrictions to be addressed in the LOC such as subadvances, special approval for subadvances, etc.

(c) M/FM/PAFD will respond to the contracting officer's request within 5 working days of receipt by either: (1) Concurring in the request (either received,

with suggested changes).

(49 FR 13252, Apr. 3, 1984)

732.402 General.

(a)-(d) (Reserved)

(e) All U.S. Dollar advances to profit making organizations require the approval of the Procurement Executive; all such approvals are subject to prior consultation with the A.I.D./W Controller. Interest is charged on such advances at the rate established by the Secretary of the Treasury under Pub. L. 92-41, unless waived by the Procurement Executive.

(52 FR 38097, Oct. 14, 1987)

732.403 Applicability.

References to nonprofit contracts with nonprofit educational or research institutions for experimental, research and development work include nonprofit contracts with nonprofit institutions for: (a) Technical assistance seryices provided to or for another country or countries, and (b) projects which concern studies, demonstrations and similar activities related to economic growth or the solution of social problems of developing countries. (49 FR 13252, Apr. 3, 1984)

732.406-70 Letters of Credit (LOC)-AID

procedures.

732.406-70-1 Purpose.

This subsection provides guidance on use of the Letter of Credit–Treasury Financial Communication System (LOC) for advance payments.

732.406-70-2 Circumstances for use of an

LOC. The LOC shall be used under the following circumstances:

(a) The contracting officer has determined that an advance payment is necessary arid appropriate in accordance with this subpart, the guidance provided in Subpart 32.4 of the FAR, and Chapter 15E of AID Handbook 1, Supplement B;

(b) The agency has, or expects to have, a continuing relationship of at least one year with the recipient organization, and the annual amount required for advance financing will be at least $120,000;

as

or

PART 733—PROTESTS, DISPUTES,

AND APPEALS

Subpart 733.70—A.I.D. Procedures for Protests

Sec. 733.7001 Scope of subpart. 733.7002 Definitions. 733.7003 Filing of protest. 733.7004 Time for filing. 733.7005 Notice of protest. 733.7006 Protests excluded from consider

ation. 733.7007 Withholding of award and sus

pension of contract performance. 733.7008 Time for and notification of the

decision on the protest.

Subpart 733.71-A.I.D. Frocedures for Disputes

and Appeals

(2) Requesting additional information.

(3) Rejecting the request for specified reasons.

(d) Rejection by M/FM/PAFD may be appealed to the head of the contracting activity (HCA) and the AID Controller for a final decision.

(e) If an LOC is to be used:
(1) The contracting officer will:

(i) Prepare the appropriate findings, determination, and authorization for advance payment for signature by the HCA or his/her authorized designee.

(ii) Transmit a signed copy of the findings, determination and authorization to M/FM/PAFD, together with a signed copy of the contract authorizing the LOC (see 732.406-70-4).

(iii) Include the LOC material provided by M/FM/PAFD, under 732.40670 3(e)(2)(iv), in the official contract file.

(2) M/FM/PAFD will:

(i) Prepare the LOC in accordance with the procedures issued by Treasury and implemented by AID.

(ii) Enter into the LOC with the contractor.

(iii) Maintain the LOC in accordance with its terms, and Treasury and AID procedures and regulations.

(iv) Provide the contracting officer(s) a copy of each LOC and any other material governing its use at the time the LOC is issued or when it is amended or modified.

733.7101 Designation of Armed Services

Board of Contract Appeals (ASBCA) to hear and determine appeals under A.I.D.

contracts. 733.7102 Special procedures regarding con

tract disputes appeals promulgated pursuant to paragraph 2 of the Administra

tor's designation. AUTHORITY: Sec. 621. Pub. L. 87-195, 73 Stat. 445 (22 U.S.C. 2381), as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR 1979 Comp. p. 435.

Subpart 733.70—A.I.D. Procedures for

Protests

SOURCE: 54 FR 20597, May 12, 1989, unless otherwise noted.

733.7001 Scope of subpart.

A.I.D. follows the protest procedures in FAR 33.1, as implemented and supplemented by this Subpart.

732.406-70-4 LOC contract clause.

If payment is to be provided by LOC, the contract shall contain the clause in 752.232-70.

732.406-70-5 Revocation of the LOC.

After consultation with the contracting officer, M/FM/PAFD may revoke the LOC by written notification to the contractor. A copy of any su revocation notice will immediately be provided to the cognizant contracting officer(s).

733.7002 Definitions.

(a) “Interested party” is defined in FAR 33.101.

(b) “Head of the Contracting Activity” (HCA), is defined in AIDAR 702.170-10.

(c) All “days” referred to in this subpart are deemed to be “working days” of the federal government. In computing a period of time under this subpart, the time shall begin to run on the first working day after the occurrence of the event which is designated as the beginning of the time period in 733.7004(a)(2) or 733.7008(a). Time for filing any document with the Contracting Officer expires at 5:30 p.m. local time on the last day on which such filing may be made.

(d) The term "filed” means receipt of the protest submission by the Contracting Officer.

known or should have been known whichever is earlier.

(b) The HCA, for good cause shown, may consider a protest which is not timely filed.

733.7003 Filing of protest.

(a) An interested party may protest to A.I.D. a solicitation issued by A.I.D. for the procurement of goods or services, or the proposed award or the award of such a contract, except that if an interested party protests a particular procurement or proposed procurement to the General Accounting Office, or initiates litigation before a court of competent jurisdiction with respect to such procurement, that procurement or proposed procurement may not be the subject of a protest to A.I.D.

(b) Protests must be in writing and addressed to the Contracting Officer for consideration by the HCA. (c) A protest shall:

(1) Include the name, address, and telephone number of the protestor;

(2) Identify the issuing Mission or office and the solicitation and/or contract number;

(3) Set forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents;

(4) Specifically request a decision by A.I.D.; and (5) State the relief requested.

(d) An adverse decision on the protest may be made by the HCA for failure of the protest to comply with any of the requirements of this section.

733.7005 Notice of protest.

(a) When a protest against the making of an award is received and the HCA decides to withhold the award pending disposition of the protest, the offerors whose offers might become eligible for award may be notified of this protest by the Contracting Officer, and may be requested to extend the time for acceptance of their offers to avoid the need for resolicitation.

(b) Material submitted by a protestor will not be withheld from any interested party outside the government or from any government agency if the Contracting Officer decides to release such material, except to the extent that the withholding of such information is permitted or required by law or regulation.

733.7006 Protests excluded from consider.

ation. (a) Contract administration. Disputes between a contractor and A.I.D. 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 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) 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 HCA.

733.7004 Time for filing.

(a)(1) Protests based upon alleged improprieties and/or deficiencies in a solicitation which are apparent prior to bid opening or the closing date for receipt of initial proposals shall be filed prior to bid opening or the closing date for receipt of initial proposals.

(2) In cases other than those covered by paragraph (a)(1) of this section, protests shall be filed not later than 10 days after the basis of the protest is

(e) Protests filed in the General ACcounting Office (GAO). Protests filed with the GAO will not be reviewed.

(f) Procurements funded by A.I.D. to which A.I.D. is not a party. No protest of a procurement funded by A.I.D. shall be reviewed unless A.I.D. is a party to the acquisition agreement.

(g) Subcontractor protests. Subcontractor protests will not be considered.

(h) 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.

733.7007 Withholding of award and sus

pension of contract performance. (a) When a protest is timely filed, an award shall not be made until the matter is resolved unless the HCA first determines that one of the following applies:

(1) The supplies or services to be contracted for are urgently required;

(2) Delivery or performance will be unduly delayed by failure to make award promptly;

(3) A prompt award will otherwise be advantageous to the Government.

(b) When a protest is received after award, the HCA need not decide to suspend contract performance or terminate the awarded contract unless it appears likely that an award may be invalidated and a delay in receiving the supplies or services would not be prejudicial to the Government's interest. In this event, the Contracting Officer shall consider seeking a mutual agreement with the contractor to suspend performance on a no-cost basis.

Subpart 733.71-A.I.D. Procedures for

Disputes and Appeals SOURCE: 53 FR 4980, Feb. 19, 1988, unless otherwise noted. 733.7101 Designation of Armed Services

Board of Contract Appeals (ASBCA) to hear and determine appeals under

A.I.D. contracts. (a) The ASBCA is hereby designated the authorized representative of the Administrator of the Agency for International Development (A.I.D.) in hearing, considering, and determining as fully and finally as might the Administrator, appeals by contractors from decisions on disputed questions taken pursuant to the provisions of contracts requiring the determination of such appeals by the Administrator or his/ her duly authorized representative or Board.

(b) In acting under this designation, the ASBCA will follow such rules and procedures as are or may be prescribed for the conduct of Defense Department contract appeal cases, except for the rules entitled “Forwarding of Appeals” (Rule 3) and “Duties of the Contracting Officer” (Rule 4), which subjects will be governed by procedures to be promulgated by the General Counsel of A.I.D. with approval of the Chairman of the ASBCA.

(c) The General Counsel of A.I.D. will assure representation of the interests of the Government in proceedings before the ASBCA.

(d) All officers and employees of A.I.D. will cooperate with the ASBCA and Government counsel in the processing of appeals so as to assure their speedy and just determination. 733.7102 Special procedures regarding

contract disputes appeals promulgated pursuant to paragraph 2 of the Admin

istrator's designation. (a) The following rules will apply, in lieu of Rules 3 and 4(a) of the ASBCA, to contract dispute appeals to the Administrator of the A.I.D. or his/her authorized representative which are docketed with that Board.

(b) Rule 3 (A.I.D.)— Forwarding of Appeals. When a notice of appeal in any form has been received by the contracting officer, he/she shall endorse thereon the date of mailing (or date of receipt, if otherwise conveyed)

733.7008 Time for and notification of the

decision on the protest. (a) The HCA shall issue a decision on a protest within 45 days from the date a proper protest is filed unless the HCA determines that a longer period is necessary to resolve the protest, and so notifies the protestor in writing.

(b) The HCA shall notify the protestor of his or her decision in writing, which decision shall constitute the final decision of the Agency.

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