tor. The actual publications provision for a particular contract, then, would be so worded as to reflect the agreement reached in the contract negotations.

AID's concern with noncontract manuscripts is related to the identification of a manuscript with the U.S. Government. This concern will be modified by the passage of time following termination of the contract.

In the normal case of prepublication review for AID comment, the institution will submit a copy of the manuscript not later than the date of submission to the publisher. This gives the Agency time to comment if it is deemed appropriate. However, in the case of review for authorization, timely notification of AID's response will be given, consistent with the size of the manuscript and the number and location of the parties involved.

The Agency will make every effort to expedite this review procedure in accordance with the underlying principle described at the beginning of this policy statement.

(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)

[49 FR 13304, Apr. 3, 1984]

(3) "Non-personal services contract" means a contract which directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task and which establishes an independent contractor relationship between the contractor and the activity contracting for the services.

(4) "Independent contractor relationship" means a contract relationship in which the contractor is not subject to the supervision and control prevailing in relationships between the Government and its employees. Under these relationships, the Government does not normally supervise the performance of the work, the manner in which it is to be performed, the days of the week or hours of the day in which it is to be performed, or the location of performance.

(5) "Contractor" means a cooperating country national or third country national who has entered into a contract pursuant to this Appendix.

(6) "Cooperating country" means the country in which the employing AID mission is located.

(7) "Cooperating country national (CCN)" means an individual who is a cooperating country citizen or a non-cooperating country citizen lawfully admitted for permanent residence in the cooperating country.

(8) Third Country national (TCN)" means an individual (a) who is neither a citizen nor a permanent legal resident alien of the United States nor of the country to which assigned for duty, and (b) who is eligible for return to his/her home country or country of recruitment at U.S. Government expense.

(9) "Resident Alien" means a non-U.S. citizen lawfully admitted for permanent residence in the United States.

2. Legal Basis

(a) Section 635(b) of the Foreign Assistance Act of 1961, as amended, hereinafter referred to as the "FAA", provides the Agency's contracting authority for nonpersonal services.

(b) Section 636(a)(3) of the FAA authorizes the Agency to enter into personal services contracts with individuals for personal services abroad and provides further that such individuals ". . . shall not be regarded as employees of the U.S. Government for the purpose of any law administered by the Civil Service Commission."

3. Applicability

(a) This appendix applies only to personal services contracts with CCNS or TCNS to

The Civil Service Commission is now the Federal Office of Personnel Management.

provide assistance abroad under section 636(a)(3) of the FAA.

(b) This appendix does not apply to: (1) Contracts for non-personal services with TCNS or CCNs; such contracts are covered by the basic text of the FAR and the AIDAR.

(2) Personal services contracts with U.S. citizens or U.S. resident aliens for personal services abroad; such contracts are covered by Appendix D of this Chapter.

(3) Appointments of experts and consultants as AID direct-hire employees, covered by AID Handbook 25, Employment and Promotion.

4. Policy

(a) General. AID may finance, with either program or operating expense funds, the cost of personal services as part of the Agency's program of foreign assistance by entering into a direct contract with a CCN or a TCN for personal services abroad.

(1) Program Funds. Program funds may be obligated for periods up to five years where necessary and appropriate to the accomplishment of the tasks involved.

(2) Operating Expense Funds. Operating funds may be obligated for periods not to exceed twenty-four months where necessary and appropriate to the accomplishment of the tasks involved.

(b) Limitations on personal services contracts.

(1) Personal services contracts may only be used when adequate supervision is available.

(2) Personal services contracts may be used for commercial activities. Commercial activities provide a product or service which could be obtained from a commercial source. See Attachment A of OMB Circular A-76 for a representative list of such activities.

(3) Personal services contracts may be used for Governmental functions (defined by OMB Circular A-76 as functions so intimately related to the public interest as to mandate performance by Government em ployees) except

(1) Negotiating on behalf of the United States with foreign governments and public international organizations.

(ii) Entering into any agreement (eg. loan, grant, contract) on behalf of the United States.

(1) Making decisions involving governmental functions such as planning budget, programming and personnel selection. Serv ices will be limited to making recommenda tions with final decision making authority reserved for authorized AID direct-hire em ployees.

(iv) Supervision of AID direct-hire US. citizen employees

(V) Services which involve security classi fied material

(c) Conditions of Employment.

(1) General

AID PSC contractors are not to be regard ed as employees of the US. Government for the purpose of any law administered by the US. Office of Personnel Management, are not included under any retirement or pension program of the US. Government, and are not eligible for the Incentive Awards Program covered by Uniform State AID USIA regulations. (A USAID may institute its own incentive awards program for PSCX although such a program may not authorize meritorious step increases in salary.) Other than these exceptions, CCNS and TCNs who are hired for work in a cooperating country under PSCs generally will be extended the same benefits and be subject to the same restrictions as Foreign Service Nationals (FSNS) employed as direct hires by the AID Mission.

(2) Compensation.

(1) It is AID's general policy (see AIDAR 722.170) that PSC compensation may not, without the approval of the Mission Direc tor or Assistant Administrator, exceed the prevailing compensation paid to personnel performing comparable work in the cooper ating country. Compensation for TCN or CCN personal service contractors set in ac cordance with the provisions in 4c<2xb) below satisfies this requirement.

(ii) In accordance with section 408(a1) of the Foreign Service Act of 1980, a local com pensation plan forms the basis for all com pensation payments to FSNs which includes CCNS and TCNS. The plan is each post's of ficial system of position classification and pay, consisting of (a) the local salary sched ule which includes salary rates, statements authorizing fringe benefit payments, and other pertinent facets of compensation for TCNs and CCNs, and (b) the local position classification system as reflected in the Local Employee Position Classification Handbook (LEPCH) or equivalent in effect at the Mission. Compensation for PSCs will be in accordance with the local compensation plan, to the extent that it covers em ployees of the type or category being employed, unless the Mission Director deter mines otherwise. If the Mission Director de termines that compensation in accordance with the local plan would be inappropriate in a particular instance, then compensation will be set in accordance with (in order of preference).

(A) Any other Mission policies on foreign national employee compensation, or (B) Paragraph 4 (c) (d) (e) and (f) of AIDAR Appendix D

(HD) The earning of leave (annual and sick), allowances and differential (if applicable), salaries and all other related benefits can not be enumerated in this Appendix as they vary from Mission to Mission and are based upon the compensation plan for each

(iv) Unless otherwise authorized, the currency in which compensation is paid to contractors shall be in accordance with the prevailing local compensation practice of the post.

(v) CCN and TCN contractors are eligible for allowances and differentials on the same basis as direct-hire FSN employees, under the post compensation plan.

(vi) An AID PSC who is a spouse of a current or retired U.S. Civil Service, U.S. Foreign Service, or U.S. military service member, and who is covered by their spouse's government health or life insurance policy, is ineligible for a contribution toward the costs of annual health or life in

surance.

(vi) Retired CCNs or TCNs may be awarded personal services contracts without any reduction in or offset against their Government Annuity.

5. Soliciting for Personal Services Contracts

(a) Project Officer's responsibilities. The Project Officer (or the responsible requiring office), will prepare a written detailed statement of duties and a statement of minimum qualifications to cover the position being recruited for. The statement shall be included in the procurement request; the procurement request shall also include the following additional information as a minimum:

(1) The specific foreign location(s) where the work is to be performed, including any travel requirements (with an estimate of frequency);

(2) The length of the contract, with beginning and ending dates, plus any options for renewal or extension;

(3) The basic education, training, experience, and skills required for the position;

(4) An estimate of what a comparable GS/ PS position should cost, including basic salary, allowances, and differentials, if appropriate;

(5) A list of Government or host country furnished items (e.g., housing); and

(6) If the PSC will be providing consulting services, include the justification required by AIDAR 737.270(b).

(b) Contracting Officer's responsibilities. (1) The Contracting Officer will prepare the solicitation for personal services which shall contain:

(1) Three sets of certified biographical data and salary history. (Upon receipt, one copy of the above information shall be forwarded to the Project Officer.)

(1) A detailed statement of duties or a completed position description for the position being recruited for.

(1) A copy of the prescribed contract Cover Page, Contract Schedule, General Provisions and Additional General Provisions, if applicable, as well as the FAR clauses to be incorporated by reference.

(iv) A copy of Attachment 2C to Chapter 2 of A.I.D. Handbook 24, entitled Employee Responsibilities and Conduct.

(2) The Contracting Officer shall comply with the requirements of AIDAR 706.30270(c) as detailed in paragraph 5(c) below. (c) Competition.

(1) Under AIDAR 706.302-70(b)(1), personal services contracts are exempt from the requirements for full and open competition with two limitations that must be observed by Contracting Officers:

(i) offers are to be requested from as many potential offerors as is practicable under the circumstances, and

(ii) a justification supporting less than full and open competition must be prepared in accordance with FAR 6.303.

(2) A class justification was approved by the A.I.D. Procurement Executive on January 20, 1987 which will satisfy the requirements of AIDAR 706.302-70(c)(2) for a justification in accordance with FAR 6.303 subject to the following condition for use for personal services contracts with Cooperating Country Nationals and Third Country Nationals:

(i) New contracts are publicized consistent with Mission/Embassy practice on announcement of direct hire FSN positions. Renewals or extensions with the same individual for continuing service do not need to be publicized.

(ii) A copy of the class justification (which was distributed to all A.I.D. Contracting Officers via Contract Information Bulletin) must be included in the contract file, together with a written statement, signed by the Contracting Officer, that the contract is being awarded pursuant to AIDAR 706.30270(b)(1); that the conditions for use of this class justification have been met; and that the cost of the contract is fair and reasonable.

(3) Since the award of a personal services contract is based on technical qualifications, not price, and since the biographical data and salary history, are used to solicit for such contracts, FAR Subparts 15.4 and 15.5 and FAR Parts 52 and 53 are inappropriate and shall not be used. Instead, the solicitation and selection procedures outlined in this Appendix shall govern.

(4) If the appropriate competitive procedure in paragraph (2) above is not followed, the Contracting Officer must prepare a separate justification as required under AIDAR 706.302-70(c)(2).

6. Negotiating a Personal Services Contract

Negotiating a personal services contract is significantly different from negotiating a nonpersonal services contract because of the employer-employee relationship; therefore, the selection procedures are more akin to the personnel selection procedures.

(a) Project Officer's responsibilities. The Project Officer shall be responsible for reviewing and evaluating the applications received in response to the solicitation issued by the Contracting Officer. If deemed appropriate, interviews may be conducted with the applicants before the final selection is submitted to the Contracting Officer.

(b) Contracting Officer's responsibilities. (1) The Contracting Officer shall forward a copy of each statement of biographical data and salary history received under the solicitation to the Project Officer for evaluation.

(2) On receipt of the Project Officer's recommendation, the Contracting Officer shall conduct negotiations with the recommended applicant. The terms and conditions of the contract will normally be in accordance with the local compensation plan which forms the basis for all compensation payments paid to FSNs which includes CCNs and TCNs.

(3) The Contracting Officer shall use the certified salary history on the certified statement of biographical data and salary history as the basis for salary negotiations, along with the Project Officer's cost estimate.

(4) The Contracting Officer will obtain necessary data for a security and suitability clearance to the extent required by A.I.D. Handbook 6, Security.

7. Executing a Personal Services Contract Contracting activities may execute person. al services contracts, provided that the amount of the contract does not exceed the amount of contracting authority which has been redelegated to them under Delegation 1103 (formerly Redelegation 148), "To the Assistant to the Administrator for Management. Concerning Acquisition Functions" (50 FR 23842), as amended. In executing a contract, the Contracting Officer shall insure that:

(a) The following clearances, approvals and forms have been obtained and placed in the contract file before the contract is signed by both parties:

(1) Security clearance, to the extent required by AID Handbook 6, Security;

(2) If a TCN is recruited, cooperating country clearance;

(3) Medical clearance(s) based on a full medical examination(s) and certification of same by a licensed physician. If a TCN is recruited, medical clearance requirements apply to the contractor and to each dependent who is authorized to accompany the contractor:

(4) The approval for any salary in excess of FS 1, in accordance with Appendix G of this Chapter.

(5) Appropriate explanation and support required by AIDAR 706 302 70. if applicable;

(6) Any deviation to the policy or proce dures of this appendix, processed and ap proved under AIDAR 701.470;

(7) The memorandum of negotiation; (8) The Contract Negotiator's Checklist: (b) The position description is classified in accordance with the LEPCH, and the pro posed salary is consistent with the local compensation plan or the alternate proce dures established in 4(cX2Xii) above,

(c) In consultation with legal counsel and or the regional contracting officer, the contract is modified by deleting from the Gen eral Provisions (Sections 10. 11. and 12 of this Appendix) the inapplicable clause(s) by a listing in the Schedule:

(d) The facesheet of the contract format is completed, and, if applicable, the block entitled, "Project No.," is filled in by inserting the four-segment project number as prescribed in AID Handbook 18, Information Services;

(e) Necessary deviations from the pre scribed contract format are properly documented and approved by the head of the contracting activity, a record of the nature of each deviation, the justification for it. and the specific approvals are included in the contract file, and a copy is forwarded to the Office of Planning, Policy, and Evalua tion Staff (M/SER/PPE), AID/W, which is responsible for maintaining a central record of all approved deviations;

(f) Funds for the contract are properly obligated to preclude violation of the Anti-Deficiency Act, 31 U.S.C. 1512, and the con tracting officer assures that the contract has been properly recorded by the appropri ate accounting office and is stamped or cleared regarding the reservation of funds prior to its release for signature by the se. lected contractor.

(g) The contractor receives and understands Attachment Chapter 2C of Chapter 2. AID Handbook 24. General Personnel Policy, entitled 'Employee Responsibilities and Conduct", and a copy is attached to each contract, as provided for in paragraph 2(b) of the General Provisions (Sections 10 and 11).

(h) Agency conflict of interest require. ments as set out in Sections 2E and 2F of Chapter 2. AID Handbook 24, are met by the contractor prior to his, her reporting for duty.

& Contract Provisions

(a) The Contract Document.

The prescribed contract Cover Page. Contract Schedule. General Provisions and Ad ditional General Provisions for personal service contracts for TCNs and CCNs covered by this Appendix are included as fol lows