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awarded to a contractor that does not construction project, may be developed meet these standards;

for comparison purposes, but such a (10) Volume of work previously cost estimate shall not be used as a awarded to the firm by the Agency, substitute for the independent Governwith the object of effecting an equi ment estimate. table distribution of architect-engineer contracts among qualified firms. Each 736.602-4 Selection authority. architect-engineer evaluation board

(a) The head of the contracting activshall give favorable consideration, to ity or his/her authorized designee shall the fullest extent practicable to the review the selection memorandum and most highly qualified firms that have shall either approve it or return it to not had prior experience on Govern

the board for reconsideration for speciment projects (including small busi- fied reasons. ness firms and firms owned by the so (b) Approval of the selection memocially and/or economically deprived).

randum by the head of the contracting (c) The evaluation board shall pre

activity or his/her authorized designee pare a selection memorandum for the

shall serve as authorization for the approval of the head of the contracting

contracting office to commence negoactivity. The selection memorandum

tiation. will be signed by the board chairman and cleared by each board member. The 736.602-5 Short selection process for selection memorandum shall include procurements not to exceed the the following information:

simplified acquisition threshold. (1) A listing by name of all firms re References to FAR 36.602–3 and 36.602 viewed by the board;

4 contained in FAR 36.602–5 shall be (2) A listing of the evaluation criteria

construed as references to 736.602–3 and applied;

736.602–4 of this subpart. (3) An analysis of the selection showing the rationale for the board's rec

[49 FR 13254, Apr. 3, 1984, as amended at 61

FR 39095, July 26, 1996) ommendation;

(4) The board's recommendation of · 736.603 Collecting data on and apthe three most highly qualified firms,

praising firms' qualifications. in order of preference; (5) An independent Government cost

An USAID Consultant Registry Inforestimate. The evaluation board shall

mation System (ACRIS) is maintained

in Washington by the USAID Office of require the project engineer to develop an independent Government estimate

Small and Disadvantaged Business Uti

lization. Architect-engineers wishing of the cost of the required architect-engineer services. Consideration shall be

to perform contracts for USAID should given to the estimated value of the

file the appropriate form with that of

fice, as provided in section 705.002. Proservices to be rendered, the scope, com

curements are publicized in the Complexity, and the nature of the project and the estimated costs expected to be

merce Business Daily, as provided in

FAR part 5. generated by the work. The independent Government estimate shall be [49 FR 13254, Apr. 3, 1984, as amended at 52 revised as required during negotiations FR 21059, June 4, 1987; 53 FR 50631, Dec. 16, to correct noted deficiencies and re 1988] flect changes in or clarification of, the

736.605 Government cost estimate for scope of the work to be performed by

architect-engineer work. the architect-engineer. A cost estimate based on the application of percentage

See 736.602–3(c)(5). factors to cost estimates of the various segments of the work involved, e.g.,

PART 737 [RESERVED]

PART 742–CONTRACT

ADMINISTRATION

Subpart 742.7-Indirect Cost Rates

Sec. 742.770 Negotiated indirect cost rate agree

ment.

Subpart 742.15—Contractor Performance

Information

742.1501 [Reserved] 742.1502 Policy.

(a) USAID contracting officers shall report contractor performance information at least annually, employing the procedures prescribed by the NIH Contractor Performance System. (ACcess to the system by USAID contracting office personnel is authorized by the USAID Past Performance Coordinator, E-mail address: AIDNET: Past Performance@op.spu@aidw/Internet: pastperformance@usaid.gov.)

(b) Performance for personal services contracts awarded under AIDAR Appendices D and J shall not be evaluated under the contractor performance reporting procedures prescribed in FAR subpart 42.15. [65 FR 36642, June 9, 2000; 65 FR 39470, June 26, 2000)

742.1501 [Reserved]
742.1502 Policy.
742.1503 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.

Subpart 742.7-Indirect Cost Rates

742.1503 Procedures.

(a) [Reserved]

(b) Personal services contractors shall be recognized as Government personnel for the purposes of the restriction on access to contractor performance information in FAR 42.1503(b).

PART 745—GOVERNMENT

PROPERTY

742.770 Negotiated indirect cost rate

agreement. Except for educational institutions having a cognizant agency (as defined in OMB Circular A-88, 44 FR 70094, 12/5/ 79) other than USAID, USAID may establish negotiated overhead rates in a Negotiated Indirect Cost Rate Agreement, executed by both parties. The Negotiated Indirect Cost Rate Agreement is automatically incorporated in each contract between the parties and shall specify: (a) The final rate(s), (b) the base(s) to which the rate(s) apply, (c) the period(s) for which the rate(s) apply, (d) the items treated as direct costs, and (e) the contract(s) to which the rate(s) apply. The Negotiated Indirect Cost Rate Agreement shall not change any monetary ceiling, obligation, or specific cost allowance or disallowance provided for in each contract between the parties. [49 FR 13256, Apr. 3, 1984; 53 FR 50631, Dec. 16, 1988]

AUTHORITY: Sec. 621, Pub. L. 787–195, 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 745.1-General

745.106 Contract clauses.

(a) The contracting officer shall insert the clause at 752.245–71 in all contracts under which the contractor will acquire property for use overseas and the contract funds were obligated under a Strategic Objective agreement (or similar agreement) with the cooperating country.

(b) The contracting officer shall insert the applicable clause as required in (48 CFR) FAR 45.106 in all contracts

Subpart 742.15–Contractor Performance Information

SOURCE: 65 FR 36642, June 9, 2000, unless otherwise noted.

under which the contractor will acquire property with funds not already obligated under a Strategic Objective agreement (or similar agreement) with the cooperating country. [64 FR 5008, Feb. 2, 1999)

quent appropriation Acts, have imposed the following requirement: None of the funds appropriated or made available pursuant to this Act for carrying out the Foreign Assistance Act of 1961, as amended, may be used for making payments on any contract for procurement to which the United States is a party entered into after the date of enactment of this Act which does not contain a provision authorizing the termination of such contract for the convenience of the United States. See, for example, section 110 of the Foreign Assistance and Related Agencies Appropriation Act, 1965.

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749.111 Review of proposed settle

ments.

747.507 Contract clauses.

Contracting officers shall insert the clause at 752.247–70 in solicitations and contracts solely for ocean transportation services, and in solicitations and contracts for goods and ocean transportation services when the ocean transportation will be fixed at the time the contract is awarded. Contracting Officers shall use (48 CFR) FAR 52.247–64 as prescribed in (48 CFR) FAR 27.507(a) in other situations.

[64 FR 5008, Feb. 2, 1999]

PART 749-TERMINATION OF

CONTRACTS

749.111-70 Termination settlement re

view boards. (a) The USAID Settlement Review Board shall be composed of the following members or their delegates (except as provided under 749.111-71(b)):

(1) M/OP Director;
(2) Controller;
(3) General Counsel.

(b) The MJOP Director or his/her delegate shall be designated as chairman of the board. Delegate members of the board shall have broad business and contracting experience and shall be senior USAID officials. Each member or his/her delegate must be in attendance in order to conduct business, and the board shall act by majority vote. No individual shall serve as a member of a board for the review of a proposed settlement if he/she has theretofore reviewed, approved or disapproved or recommended approval, disapproval or other action with respect to any substantive element of such settlement proposal.

(c) The chairman shall appoint a nonvoting recorder who shall be responsible for receiving cases, scheduling and recording the proceedings at meetings, maintaining a log of all cases received by him/her for the board, and other duties as assigned by the board. [49 FR 13256, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999)

Subpart 749.1-General Principles

Sec. 749.100 Scope of subpart. 749.111 Review of proposed settlements. 749.111-70 Termination settlement review

boards. 749.111-71 Required review and approval.

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 13256, Apr. 3, 1984, unless otherwise noted.

Subpart 749.1-General Principles

749.100 Scope of subpart.

The Foreign Aid and Related Agencies Appropriation Act, 1963, and subse

749.111-71 Required review and ap

proval. (a) When required. The USAID Settlement Review Board shall receive and

Subpart 750.71-Extraordinary Contractual

Actions To Protect Foreign Policy Interests of the United States

approve all USAID/W and Mission proposed settlements or determinations if:

(1) The amount of settlement, by agreement or determination, involves $100,000 or more;

(2) The settlement or determination is limited to adjustment of the fee of a cost-reimbursement contract or subcontract and: (i) In the case of complete termination, the fee, as adjusted, with respect to the terminated portion of the contract or subcontract is $100,000 or more; or (ii) in the case of a partial termination, the fee, as adjusted, with respect to the terminated portion of the contract or subcontract is $100,000 or more;

(3) The head of the contracting activity concerned determines that a review of a specific case or class of cases is desirable; or

(4) The contracting officer, in his/her discretion, desires review by the board.

(b) Level of review. Proposed settlements in excess of $5 million shall be reviewed and approved by a board consisting of the MJOP Director, the General Counsel, and the Controller, without power of redelegation.

(c) Submission of information. The contracting officer shall submit to the board a statement of the proposed settlement agreement or determination, supported by such detailed information as is required for an adequate review. This information should normally include copies of: (1) The contractor's or subcontractor's settlement proposal, (2) the audit report, (3) the property disposal report and any required approvals in connection therewith, and (4) the contracting officer's memorandum explaining the settlement. The board may, in its discretion, require the submission of additional information.

750.7100 Scope of subpart. 750.7101 Authority. 750.7102 General policy. 750.7103 Definitions. 750.7104 Types of actions. 750.7105 Approving authorities. 750.7106 Standards for deciding cases. 750.7106-1 General. 750.7106-2 Amendments without consider

ation, 750.7106-3 Mistakes. 750.71064 Informal commitments. 750.7107 Limitations upon exercise of au

thority. 750.7108 Contractual requirements. 750.7109 Submission of requests by contrac

tors. 750.7109-1 Filing requests. 750.7109_2 Form of requests by contractors. 750.71093 Facts and evidence. 750.7110 Processing cases. 750.7110–1 Investigation. 750.7110–2 Office of General Counsel coordi

nation. 750.71103 Submission of cases to the MOP

Director. 750.7110 4 Processing by MJOP Director. 750.7110-5 Contract files. 750.7110-6 Inter-agency coordination.

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 13257, Apr. 3, 1984, unless otherwise noted.

750.000 Scope of part.

USAID is not among the agencies named in the Act or authorized by the President to take actions under it; however, see Subpart 750.71—Extraordinary Contractual Actions to Protect Foreign Policy Interests of the United States.

Subpart 750.70 [Reserved]

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750.7101 Authority.

Under section 633 of the Foreign Assistance Act of 1961, 75 Stat. 454 (22 U.S.C. 2933), as amended; Executive Order 11223, dated May 12, 1965 (30 FR 6635), as amended; and Executive Order 12163, dated September 29, 1979 (44 FR 56673), as amended, the Administrator of the U.S. Agency for International Development has been granted authority to provide extraordinary contractual relief. The Authority is set forth in sections 3 and 4 of Executive Order 11223, as follows:

Section 3. With respect to cost-type contracts heretofore or hereafter made with non-profit institutions under which no fee is charged or paid, amendments or modifications of such contracts may be made with or without consideration and may be utilized to accomplish the same things as any original contract could have accomplished, irrespective of the time or circumstances of the making, or of the form of the contract amended or modified, or of the amending or modifying contract and irrespective of rights which may have accrued under the contract or the amendments or modifications thereof.

Section 4. With respect to contracts heretofore or hereafter made, other than those described in section 3 of this order, amendments and modifications of such contracts may be made with or without consideration and may be utilized to accomplish the same things as any original contract could have accomplished, irrespective of the time or circumstances of the making, or the form of the contract amended or modified, or of the amending or modifying contract, and irrespective of rights which may have accrued under the contract or the amendments or modifications thereof, if the Secretary of State or the Director of the United States International Development Cooperation Agency (with respect to functions vested in or delegated to Director) determines in each case that such action is necessary to protect the foreign policy interests of the United States.

[49 FR 49472, Dec. 20, 1984, as amended at 62 FR 40469, July 29, 1997; 64 FR 42042, Aug. 3, 1999]

750.7102 General policy.

Extra-contractual claims arising from foreign assistance contracts will be processed in accordance with this subpart, which is similar to that utilized to process claims for extraordinary relief under FAR Part 50, as modified to meet the circumstances in

The mere fact that losses occur under

Government contract is not, by itself, a sufficient basis for the exercise of the authority conferred by the Executive Order. Whether, in a particular case, appropriate action such as amendment without consideration, correction of a mistake or ambiguity in a contract, or formalization of an informal commitment, will protect the foreign policy interests of the United States is a matter of sound judgment to be made on the basis of all of the

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