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(2) If the contracting officer rejects the SDB counter-recommendation, hel she shall return the original and duplicate forms with his/her written reasons for rejection to SDB within two working days.

(3) Upon receipt of the contracting officer's rejection, SDB may: (i) accept, or (ii) appeal, the rejection. In the case of acceptance of the contracting officer's rejection, SDB shall annotate Block 14 when it renders a decision and return the original form to the contracting officer within two working days.

(e) Appeal procedure. (1) When informal efforts fail to resolve the set-aside disagreement between the contracting officer and SDB, the latter official may appeal the contracting officer's decision to the head of the contracting activity. Such an appeal will be made within five working days after receipt of the contracting officer's rejection.

(2) In the case of an appeal, SDB will send the original and duplicate form, with the appeal noted in Block 14, directly to the head of the contracting activity with its written reasons for appealing. The contracting officer will be notified of SDB's appeal by means of a copy of the written reasons for appealing.

(3) The head of the contracting activity shall render a decision on the appeal (complete Block 15) within three working days after receipt of same and return the original to SDB and the duplicate to the contracting officer. [49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61 FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997; 64 FR 42042, Aug. 3, 1999]

tion 8(a) subcontracting, it shall so advise the contracting officer in writing within five days after receipt of such material.

(2) Such advice shall be considered a counter-recommendation and shall be processed in accordance with 719.271-6 (d) and (e).

(b) Public exigency exemption. The contracting officer shall prepare Form USAID 1410–14 as stated in 719.271-6, but forward only the duplicate copy with the documentation required by Block 5 of the form to SDB. In addition to the documentation called for in 719.271-6, the contracting officer shall furnish a copy of his/her written determination exempting the procurement from screening. The determination shall cite the pertinent facts which led to his/her decision. This exemption is not intended to be used as substitute for good procurement planning and lead-time; SDB will report abuses of this exemption to the head of the contracting activity for appropriate action in accordance with 719.271-4(c).

(c) Institution building contract (IBC) exemption. The contracting officer shall prepare Form USAID 1410-14 as stated in 719.271-6, but forward only the duplicate copy with the documentation required by Block 5 of the form to SDB.

(d) Personal services contract exemption. Preparation of Form USAID 141014 is not required for personal services contracts.

719.272 Small disadvantaged business

policies. In addition to the requirements in FAR part 19, part 726 provides for contracting and subcontracting with small disadvantaged businesses and other disadvantaged enterprises based on provisions of the foreign assistance appropriations acts. [58 FR 8702, Feb. 17, 1993]

719.271-7 Reports on procurement ac

tions that are exempted from

screening. (a) Unilateral and class set-asides. The contracting officer shall prepare Form USAID 1410–14 as stated in 719.271-6, but forward only the duplicate copy with the documentation required by Block 5 of the form to SDB. The original will be filed in the contract file.

(1) If, upon review of the material submitted under 719.271-7(a) above, SDB concludes that it would be practicable to accomplish all or a portion of the procurement involved under sec

PART 722-APPLICATION OF

LABOR LAWS TO GOVERNMENT ACQUISITION

Subpart 722.1-Basic Labor Policies

Sec. 722.103 Overtime. 722.103-1 Definitions. 722.103–2 Policy.

722.103–3 (Reserved]

722.103-3 (Reserved] 722.10344 Approvals. 722.170 Employment of third country na

tionals (TCN's) and cooperating country nationals (CCN's).

722.1034 Approvals.

The contracting officer may make the determinations referred to in FAR 22.103 4. [49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]

Subpart 722.8—Equal Employment

Opportuntity

722.805–70 Procedures.

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.

SOURCE: 49 FR 13246, Apr. 3, 1984, unless otherwise noted.

Subpart 722.1-Basic Labor

Policies

722.103 Overtime.

722.103–1 Definitions.

Compensatory time off means leave equal to overtime worked, which, unless otherwise authorized in a contract or approved by a contracting officer, must be taken not later than the end of the calendar month following that in which the overtime is worked.

722.170 Employment of third country

nationals (ICN's) and cooperating

country nationals (CCN's). (a) General. It is USAID policy that cooperating country nationals (CCN's) and third country nationals (TCN's), who are hired abroad for work in a cooperating country under USAID-direct contracts, generally be extended the same benefits, and be subject to the same restrictions as TCN's and CCN's employed as direct hires by the USAID Mission. Exceptions to this policy may be granted either by the Mission Director or the Assistant Administrator having program responsibility for the project. (TCN's and CCN's who are hired to work in the United States shall be extended benefits and subject to restrictions on the same basis as U.S. citizens who work in the United States.)

(b) Compensation. Compensation, including merit or promotion increases paid to TCN's and CCN's may not, without the approval of the Mission Director or the Assistant Administrator having program responsibility for the project, exceed the prevailing compensation paid to personnel performing comparable work in the cooperating country as determined by the USAID Mission. Unless otherwise authorized by the Mission Director or the Assistant Administrator having program responsibility for the project, the compensation of such TCN and CCN employees shall be paid in the currency of the cooperating country.

(c) Allowances and differentials. TCN's and CCN's, hired abroad for work in a cooperating country, are not eligible for allowances or differentials under USAID-direct contracts, unless authorized by the Mission Director or the Assistant Administrator having program responsibility for the project.

722.103–2 Policy.

(a) Most contracts covered by this regulation call for the performance of professional or technical services over

on a cost-reimbursement basis. The compensation for employees performing such services is normally fixed on a monthly or annual basis, and the contracts usually state minimum work week hours. It is not expected that these employees will receive additional pay, overtime or shift premiums, or compensatory time off.

(b) When the contracting officer determines it is in the best interests of the Government, specific provision may be made in contracts to permit such benefits for non-technical and non-professional employees serving overseas, subject to approvals to be required in the contract.

seas

[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996)

or

con

(d) Country and security clearances. contracts subject to these requireThe contractor shall insure that the ments. necessary clearances, including secu (b) Representations and Certifirity clearances, if required, have been

cations. The first step in ensuring comobtained for TCN and CCN employees

pliance with these requirements is to in accordance with any such require

obtain all necessary representations ments set forth in the contract or re

and certifications (Reps and Certs) required by the USAID Mission, prior to

quired by FAR 22.810. The contracting the TCN or CCN starting work under

officer must review the Reps and Certs the contract.

to determine whether they have been (e) Physical fitness. Contractors are

completed and signed as required, and required to insure that prospective

are acceptable. TCN and CCN employees are examined prior to employment to determine

(1) If any of these Reps and Certs are whether the

incomplete prospective employee

unsigned, the meets the minimum physical require

tracting officer must request that the ments of the position and is free from

offeror(s) complete and sign them, as any contagious disease.

necessary, unless the initial evaluation (f) Workweek, holidays, and leave. The

of the offeror's proposal results in the workweek, holidays, and leave for TCN contracting officer's concluding that and CCN employees shall be the same

the offeror would not, in any event, be as for all other employees of the con

within a competitive range determined tractor, under the terms of the con

in accordance with (48 CFR) FAR tract; however, TCN and CCN employ

15.306(c), or would not be selected if ees are not eligible for home leave or

award is to be made without discusmilitary leave unless authorized by the sions. A request as described in this Mission Director or the Assistant Ad paragraph (b)(1) constitutes either a ministrator having program responsi clarification per (48 CFR) FAR 15.306(a) bility for the project.

(resolving minor or clerical errors”, (8) Travel and transportation for TCN's paragraph (a)(2)), or a communication and CCN's. Travel and transportation

before establishment of competitive shall be provided TCN and CCN em range per (48 CFR) FAR 15.306(b), not a ployees on the same basis as for all discussion per (48 CFR) FAR 15.306(d). other employees of the contractor, (2) If completed and signed Reps and under the terms of the contract.

Certs raise questions concerning the (h) Household effects and motor vehi offeror's compliance with EEO requirecles. USAID will not provide household ments, or if the contracting officer has effects to TCN and CCN employees; information from any other source such employees may ship their house which calls into question the offeror's hold effects and motor vehicles to their eligibility for award based on this secplace of employment on the same basis tion and (48 CFR) FAR 22.8, the conas for all other employees of the con tracting officer must refer the matter tractor, under the terms of the con to the cognizant regional Department tract unless they are residents of the of Labor Office of Federal Contract cooperating country.

Compliance Programs (OFCCP) regard

less of the estimated value of the conSubpart 722.8-Equal Employment tract; only OFCCP may make a deterOpportunity

mination of non-compliance with EEO

requirements. 722.805–70 Procedures.

(c) OFCCP's National Preaward Reg(a) The procedures in this section istry. If the Reps and Certs are comapply, as appropriate, for all contracts plete, signed, and deemed acceptable, excluding construction, which shall be and the contracting officer has no reahandled in accordance with (48 CFR) son to doubt their accuracy, the conFAR 22.804–2. Contracting officers are tracting officer must then consult the responsible for ensuring that the re OFCCP's National Preaward Registry quirements of (48 CFR) FAR 22.8 and at the internet website in 48 CFR related clauses are met before award 22.805(a)(4) (i) to see if the offeror is ing any contracts or consenting to sub listed.

(1) If the conditions stated in FAR 22.805(a) (4) are met (including the contract file documentation requirement in paragraph (a)(4)(iii)), then the Contracting Officer does not need to take any further action in verifying the offeror's compliance with the requirements of this subpart and (48 CFR) FAR 22.8.

(2) If the offeror does not appear in the National Preaward Registry, and the estimated amount of the contract or subcontract is expected to be under $10 million then the contracting officer may rely on the Reps and Certs as sufficient verification of the offeror's compliance.

(3) If the offeror does not appear in the National Preaward Registry and the estimated amount of the contract or subcontract is $10 million or more, then the contracting officer must request a preaward clearance from the appropriate OFCCP regional office, in accordance with 48 CFR 22.805(a). If the initial contact with OFCCP is by telephone, the contracting officer and OFCCP are to mutually determine what information is to be included in the written verification request. The contracting officer may need to provide the following information in addition to the items listed in FAR 22.805(a)(5), if so requested by the OFCCP regional office:

(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 the organizations in a joint venture (if any).

(iv) Type of procurement (new contract-RFP or IFB, amendment, etc.) and the period of the contract.

(v) Copy of approved Reps and Certs.

(d) In the event that OFCCP reports that the offeror is not in compliance, negotiations with the offeror shall be terminated.

(e) Documentation for the contract file. Every contract file must contain completed and 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 paragraph (b) of this section), the file must also document what changes were required and why, and verify that the changes were made. The contracting officer shall also document the OFCCP National Preaward Registry review (see paragraph (c)(1) of this section), and, if the Registry does not include the offeror:

(1) For contracts or modifications over $10,000 but less than $10 million, 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 paragraph (c)(2) of this section). This statement may be in a separate memorandum to the file or in the memorandum of negotiation.

(2) For contracts or modifications of $10 million or more, the file must document all communications with OFCCP regarding the offeror's compliance. Such documentation includes copies of any written correspondence and record of telephone conversations, specifying the name, address, and telephone number of the person contacted, a summary of the information presented, and any advice given by OFCCP.

(f) Documentation in the event of non-compliance. In the event 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.

a

[64 FR 5007, Feb. 2, 1999; 64 FR 18481, Apr. 14, 1999]

PART 724—PROTECTION OF PRI

VACY AND FREEDOM OF INFOR-
MATION

Subpart 724.2-Freedom of Information Act

Sec. 724.202 Policy.

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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.

SOURCE: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.

procurement restrictions are applied by USAID, however, as shown elsewhere in this part. These restrictions are generally tighter than the Buy American Act. As a general rule, the tighter USAID restrictions will be used. In the case of certain procurements for use within the United States, the Buy American provision may be used instead in the interest of uniformity among Federal Agencies procuring for domestic use.

Subpart 724.2—Freedom of

Information Act

724.202 Policy.

The U.S. Agency for International Development's policies concerning implementation of the Freedom of Information Act are codified in 22 CFR part 212 (USAID Regulation 12).

PART 725-FOREIGN ACQUISITION

on

Subpart 725.1-Buy American Act,

Supplies

Sec. 725.170 Exceptions for Foreign Assistance

Act functions.

Subpart 725.4-Trade Agreements 725.403 Exceptions.

FAR 25.4 establishes procedures for purchases under the Trade Agreements Act of 1979 (including GATT'S Agreement 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. [61 FR 39093, July 26, 1996)

Subpart 725.4—Trade Agreements 725.403 Exceptions. Subpart 725.70—Source, Origin, and

Nationality

of

Subpart 725.70—Source, Origin,

and Nationality

725.701 General. 725.702 Designation authorized geo

graphic code. 725.703 Contractor employees. 725.704 Source, origin and nationality re

quirementsContract clause. 725.705 Local procurement contract clause. 725.706 Geographic source waivers.

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.

SOURCE: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.

725.701 General.

USAID's source, origin and nationality requirements for program-funded contracts and subcontracts are established in 22 CFR part 228, Rules on Source, Origin and nationality for Commodities and Services Financed by USAID. These policies as they apply to subcontracts and purchases under USAID program-funded contracts have been incorporated into the contract clauses referenced in 725.704 and 725.705 of this subpart. (62 FR 40468, July 29, 1997]

Subpart 725.1-Buy American

Act-Supplies 725.170 Exceptions for Foreign Assist

ce Act functions. In addition to the exception stated in FAR 25.102 for purchases for use outside the United States, there is an exception for economic assistance functions performed under authority of the Foreign Assistance Act. This exception is stated in Executive Order 11223, dated May 12, 1965 (30 FR 6635). U.S.

725.702 Designation of authorized geo

graphic code. (a) The authorized geographic code or codes for an USAID contract shall be specified in the Schedule of each contract and shown on its cover page. If no

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