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(2) If the contracting officer rejects tion 8(a) subcontracting, it shall so adthe SDB counter-recommendation, he/ vise the contracting officer in writing she shall return the original and dupli- within five days after receipt of such cate forms with his/her written reasons material. for rejection to SDB within two work (2) Such advice shall be considered a ing days.

counter-recommendation and shall be (3) Upon receipt of the contracting processed in accordance with 719.271-6 officer's rejection, SDB may: (i) accept, (d) and (e). or (ii) appeal, the rejection. In the case (b) Public exigency exemption. The conof acceptance of the contracting offi- tracting officer shall prepare Form cer's rejection, SDB shall annotate USAID 1410-14 as stated in 719.271-6. Block 14 when it renders a decision and but forward only the duplicate copy return the original form to the con with the documentation required by tracting officer within two working Block 5 of the form to SDB. In addition days.

to the documentation called for in (e) Appeal procedure. (1) When infor- 719.271-6, the contracting officer shall mal efforts fail to resolve the set-aside furnish a copy of his/her written deterdisagreement between the contracting mination exempting the procurement officer and SDB, the latter official may from screening. The determination appeal the contracting officer's deci- shall cite the pertinent facts which led sion to the head of the contracting ac- to his/her decision. This exemption is tivity. Such an appeal will be made not intended to be used as substitute within five working days after receipt for good procurement planning and of the contracting officer's rejection. lead-time; SDB will report abuses of

(2) In the case of an appeal, SDB will this exemption to the head of the consend the original and duplicate form, tracting activity for appropriate action with the appeal noted in Block 14, di- in accordance with 719.271-4(c). rectly to the head of the contracting (c) Institution building contract (IBC) activity with its written reasons for exemption. The contracting officer shall appealing. The contracting officer will prepare Form USAID 1410-14 as stated be notified of SDB's appeal by means of in 719.271-6, but forward only the duplia copy of the written reasons for ap- cate copy with the documentation repealing.

quired by Block 5 of the form to SDB. (3) The head of the contracting activ (d) Personal services contract exempity shall render a decision on the ap tion. Preparation of Form USAID 1410 peal (complete Block 15) within three 14 is not required for personal services working days after receipt of same and contracts. return the original to SDB and the duplicate to the contracting officer.

719.272 Small disadvantaged business

policies. (49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61 FR 39092, July 26,

In addition to the requirements in 1996; 62 FR 40468, July 29, 1997; 64 FR 42042,

FAR part 19, part 726 provides for conAug. 3, 1999]

tracting and subcontracting with small

disadvantaged businesses and other dis719.271-7 Reports on procurement ac advantaged enterprises based on provi

tions that are exempted from sions of the foreign assistance approscreening.

priations acts. (a) Unilateral and class set-asides. The

(58 FR 8702, Feb. 17, 1993] contracting officer shall prepare Form USAID 1410-14 as stated in 719.271-6,

PART 722-APPLICATION OF but forward only the duplicate copy

LABOR LAWS TO GOVERNMENT with the documentation required by Block 5 of the form to SDB. The origi

ACQUISITION nal will be filed in the contract file. (1) If, upon review of the material

Subpart 722.1-Basic Labor Policies submitted under 719.271-7(a) above,

Sec. SDB concludes that it would be prac

722.103 Overtime. ticable to accomplish all or a portion 722.103–1 Definitions. of the procurement involved under sec- 722.103-2 Policy.

722.103-3 (Reserved]

722.103–3 [Reserved) 722.1034 Approvals. 722.170 Employment of third country na- 722.1034 Approvals. tionals (TCN's) and cooperating country

The contracting officer may make nationals (CCN's).

the determinations referred to in FAR Subpart 722.8 Equal Employment

22.103-4. Opportuntity

[49 FR 13246, Apr. 3, 1984. Redesignated at 61

FR 39092, July 26, 1996) 722.805–70 Procedures. AUTHORITY: Sec. 621, Pub. L. 87–195, 75 Stat.

722.170 Employment of third country

nationals (ICN's) and cooperating 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp.,

country nationals (CCN's). p. 435.

(a) General. It is USAID policy that

cooperating country nationals (CCN's) SOURCE: 49 FR 13246, Apr. 3, 1984, unless otherwise noted.

and third country nationals (TCN's), who are hired abroad for work in a co

operating country under USAID-direct Subpart 722.1-Basic Labor

contracts, generally be extended the Policies

same benefits, and be subject to the

same restrictions as TCN's and CCN's 722.103 Overtime.

employed as direct hires by the USAID

Mission. Exceptions to this policy may 722.103–1 Definitions.

be granted either by the Mission DirecCompensatory time off means leave tor or the Assistant Administrator equal to overtime worked, which, un having program responsibility for the less otherwise authorized in a contract project. (TCN's and CCN's who are or approved by a contracting officer,

hired to work in the United States must be taken not later than the end of

shall be extended benefits and subject the calendar month following that in

to restrictions on the same basis as which the overtime is worked.

U.S. citizens who work in the United

States.) 722.103–2 Policy.

(b) Compensation. Compensation, in

cluding merit or promotion increases (a) Most contracts covered by this

paid to TCN's and CCN's may not, regulation call for the performance of

without the approval of the Mission Diprofessional or technical services over

rector or the Assistant Administrator seas, on a cost-reimbursement basis.

having program responsibility for the The compensation for employees per

project, exceed the prevailing comforming such services is normally fixed pensation paid to personnel performing on a monthly or annual basis, and the comparable work in the cooperating contracts usually state minimum work country as determined by the USAID week hours. It is not expected that Mission. Unless otherwise authorized these employees will receive additional by the Mission Director or the Assistpay, overtime or shift premiums, or ant Administrator having program recompensatory time off.

sponsibility for the project, the com(b) When the contracting officer de pensation of such TCN and CCN emtermines it is in the best interests of ployees shall be paid in the currency of the Government, specific provision

the cooperating country. may be made in contracts to permit

(c) Allowances and differentials. TCN's such benefits for non-technical and

and CCN's, hired abroad for work in a

cooperating country, are not eligible non-professional employees serving

for allowances or differentials under overseas, subject to approvals to be re

USAID-direct contracts, unless authorquired in the contract.

ized by the Mission Director or the As[49 FR 13246, Apr. 3, 1984. Redesignated at 61 sistant Administrator having program FR 39092, July 26, 1996]

responsibility for the project.

(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

incomplete or unsigned, the CODwhether the prospective employee meets the minimum physical require

tracting officer must request that the

offeror(s) complete and sign them, as ments of the position and is free from

necessary, unless the initial evaluation any contagious disease. (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", (g) 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 them acceptable (see paragraph (b) of 22.805(a) (4) are met (including the con this section), the file must also docutract file documentation requirement ment what changes were required and in paragraph (a)(4)(iii)), then the Con- why, and verify that the changes were tracting Officer does not need to take made. The contracting officer shall any further action in verifying the also document the OFCCP National offeror's compliance with the require Preaward Registry review (see paraments of this subpart and (48 CFR) graph (c)(1) of this section), and, if the FAR 22.8.

Registry does not include the offeror: (2) If the offeror does not appear in (1) For contracts or modifications the National Preaward Registry, and over $10,000 but less than $10 million, the estimated amount of the contract the file must contain a statement from or subcontract is expected to be under the contracting officer that the con$10 million then the contracting officer tractor is considered in compliance may rely on the Reps and Certs as suf with EEO requirements, and giving the ficient verification of the offeror's basis for this statement (see paragraph compliance.

(c)(2) of this section). This statement (3) If the offeror does not appear in may be in a separate memorandum to the National Preaward Registry and the file or in the memorandum of negothe estimated amount of the contract tiation. or subcontract is $10 million or more,

(2) For contracts or modifications of then the contracting officer must re

$10 million or more, the file must docuquest a preaward clearance from the

ment all communications with OFCCP appropriate OFCCP regional office, in

regarding the offeror's compliance. accordance with 48 CFR 22.805(a). If the

Such documentation includes copies of initial contact with OFCCP is by tele

any written correspondence and a phone, the contracting officer and

record of telephone conversations, OFCCP are to mutually determine

specifying the name, address, and telewhat information is to be included in

phone number of the person contacted, the written verification request. The

a summary of the information precontracting officer may need to pro- sented, and any advice given by vide the following information in addi

OFCCP. tion to the items listed in FAR

(f) Documentation in the event of 22.805(a)(5), if so requested by the

non-compliance. In the event OFCCP OFCCP regional office:

determines that a prospective con(i) Name, title, address, and tele

tractor is not in compliance, a copy of phone number of a contract person for

OFCCP's written determination, and a the prospective contractor;

summary of resultant action taken (ii) A description of the type of orga

(termination of negotiations, notificanization (university, nonprofit, etc.)

tion of offeror and cognizant technical and its ownership (private, foreign,

officer, negotiation with next offeror in state, etc.).

competitive range, resolicitation, etc.) (iii) Names and addresses of the orga

will be placed in the contract file for nizations in a joint venture (if any).

any contract which may result, to(iv) Type of procurement (new con

gether with other records related to tract-RFP or IFB, amendment, etc.)

unsuccessful offers, and retained for at and the period of the contract.

least six months following award. (v) Copy of approved Reps and Certs.

(d) In the event that OFCCP reports (64 FR 5007, Feb. 2, 1999; 64 FR 18481, Apr. 14, that the offeror is not in compliance, 1999) negotiations with the offeror shall be terminated.

PART 724—PROTECTION OF PRI(e) Documentation for the contract VACY AND FREEDOM OF INFORfile. Every contract file must contain

MATION completed and signed Reps and Certs. The file must clearly show that these

Subpart 724.2—Freedom of Information Act documents have been reviewed and accepted by the contracting officer. If the Sec. Reps and Certs were revised to make 724.202 Policy.

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

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 on 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 725.701 General. 725.702 Designation of authorized geo

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

quirements Contract 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.

Subpart 725.1-Buy American

Act-Supplies 725.170 Exceptions for Foreign Assist

ance Act functions. In addition to the exception stated in FAR 25.102 for purchases for use outside the United States, there is an ex

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.

Subpart 725.70—Source, Origin,

and Nationality 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] 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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