(4) The budget plan code for the obligated funds;

(5) The effective date and estimated completion date.

This information should be provided in writing to FM/CMP together with a request to establish or amend an LOC as early in the negotiation cycle as possible.

(c) FM/CMP will prepare the LOC in accordance with AID's LOC procedures; issue or amend and maintain the LOC in accordance with its terms and AID procedures and regulations; and 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.

Subpart 733.71-A.I.D. Procedures for
Disputes and Appeals

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 contract disputes appeals promulgated pursuant to paragraph 2 of the Administrator'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.

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.

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.

733.7004 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 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.

733.7005 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 con

sideration.

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

(e) 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.

(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.

[54 FR 20597, May 12, 1989, as amended at 58 FR 8703, Feb. 17, 1993]

733.7007 Withholding of award and suspension of contract perform

ance.

(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.

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.

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 Serv

ices 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 Board.

or

(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 Administrator'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) and within 10 days shall forward said notice of appeal to the Board with a copy to the A.I.D. General Counsel in Washington, DC. Following receipt by the Board of the original notice of an appeal (whether through the contracting officer or otherwise), the contractor, the contracting officer, and the A.I.D. General Counsel will be promptly advised of its receipt, and the contractor will be furnished a copy of these rules.

(c) Rule 4 (A.I.D.). Preparation, Contents, Organization, Forwarding, and Status of Appeal File (Supersedes Rule 4, "Duties of Contracting Officer" of the ASBCA rules in effect on April 1, 1980).

(d) Duties of Contracting Officer. Within 30 days of receipt of an appeal or advice that an appeal has been filed, the contracting officer shall assemble and transmit to the A.I.D. General Counsel in Washington, DC, two copies of all documents pertinent to the appeal, including:

(1) The decision and findings of fact from which appeal is taken;

(2) The contract, including specifications and pertinent amendments, plans and drawings;

(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which the decision was issued;

(4) All transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and

(5) Any additional information considered pertinent.

(e) The General Counsel will compile the appeal file from such documents, which file must contain the items enumerated in paragraphs (d) (1) through

(5) of this section and will promptly, and in any event within 65 days after the appeal is docketed by the Board, transmit the appeal file to the Board. The General Counsel will notify the appellant when he/she has compiled the appeal file, will provide him/her with a list of its contents, and will afford him/ her an opportunity to examine the complete file at the office of the Board and, if the General Counsel deems it appropriate, at any overseas location, for the purpose of satisfying himself/ herself as to the contents, and furnishings or suggesting any additional documentation deemed pertinent to the appeal. After receipt of the foregoing file, as it may be augmented at the time of receipt, the Board will promptly advise the parties.

PART 734—MAJOR SYSTEM ACQUISITION

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.

734.002-70 AID policy.

In order for an AID acquisition to be considered a major system acquisition it must meet the criteria of OMB Circular A-109 and FAR part 34, and must have an estimated value of $15 million or more during the first year of the contract. All major systems acquisition must be approved in advance by the Procurement Executive. [55 FR 39976, Oct. 1, 1990]

PART 736-CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

Subpart 736.6-Architect-Engineer Services Sec.

736.602-2 Evaluation boards.

736.602-3 Evaluation board functions. 736.602-4 Selection authority. 736.602-5 Short selection procedure for procurements not to exceed $25,000. 736.603 Collecting data on and appraising firms' qualifications.

736.605 Government cost estimate for architect-engineer work.

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 13254, Apr. 3, 1984, unless otherwise noted.

Subpart 736.6-Architect-Engineer Services

736.602-2 Evaluation boards.

(a) (b) [Reserved]

(c) Each evaluation board will include a representative of the Contracting Officer and, as appropriate, the cognizant bureau.

[54 FR 46391, Nov. 3, 1989]

Evaluation board functions.

736.602-3 Agency architect-engineer evaluation boards shall perform the following functions:

(a) Prepare a selection memorandum recommending no less than three firms which are considered most highly qualified to perform the required services for submission to the head of the contracting activity for his/her approval. This selection memorandum shall include the information specified in 736.602-3(c).

(b) In evaluating architect-engineer firms, the architect-engineer evaluation board shall apply the following criteria, other criteria established by Agency regulations, and any criteria set forth in the public notice on a particular contract:

(1) Specialized experience of the firm (including each member of joint venture or association) with the type of service required;

(2) Capacity of the firm to perform the work (including any specialized services) within the time limitations;

(3) Past record of performance on contracts with AID or other Government agencies and private industry with respect to such factors as control of costs, quality of work, and ability to meet schedules, to the extent such information is available;

(4) Ability to assign an adequate number of qualified key personnel from the organization, including a competent supervising representative having considerable experience in responsible positions on work of a similar nature;

(5) The portions of the work the architect-engineer is able to perform with its own forces when required;

(6) Ability of the architect-engineer to furnish or to obtain required materials and equipment;

(7) If the geographical or topographical aspects of the project are deemed vital, familiarity with the locality where the project is situated; (8) Financial capacity;

(9) Responsibility of the architect-engineer under standards provided in FAR subpart 9.1. No contract may be