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construction project, may be developed for comparison purposes, but such a cost estimate shall not be used as a substitute for the independent Government estimate.

736.6024 Selection authority.

(a) The head of the contracting activity or his/her authorized designee shall review the selection memorandum and shall either approve it or return it to the board for reconsideration for specified reasons.

(b) Approval of the selection memorandum by the head of the contracting activity or his/her authorized designee shall serve as authorization for the contracting office to commence negotiation.

awarded to a contractor that does not meet these standards;

(10) Volume of work previously awarded to the firm by the Agency, with the object of effecting an equitable distribution of architect-engineer contracts among qualified firms. Each architect-engineer evaluation board shall give favorable consideration, to the fullest extent practicable to the most highly qualified firms that have not had prior experience on Govern ment projects (including small business firms and firms owned by the socially and/or economically deprived).

(c) The evaluation board shall prepare a selection memorandum for the approval of the head of the contracting activity. The selection memorandum will be signed by the board chairman and cleared by each board member. The selection memorandum shall include the following information:

(1) A listing by name of all firms reviewed by the board;

(2) A listing of the evaluation criteria applied;

(3) An analysis of the selection showing the rationale for the board's recommendation;

(4) The board's recommendation of the three most highly qualified firms, in order of preference;

(5) An independent Government cost estimate. The evaluation board shall require the project engineer to develop an independent Government estimate of the cost of the required architect-engineer services. Consideration shall be given to the estimated value of the services to be rendered, the scope, complexity, and the nature of the project and the estimated costs expected to be generated by the work. The independent Government estimate shall be revised as required during negotiations to correct noted deficiencies and reflect changes in or clarification of, the scope of the work to be performed by the architect-engineer. A cost estimate based on the application of percentage factors to cost estimates of the various segments of the work involved, e.g.,

736.602-5 Short selection process for

procurements not to exceed the

simplified acquisition threshold. References to FAR 36.602–3 and 36.6024 contained in FAR 36.602–5 shall be construed as references to 736.602–3 and 736.602-4 of this subpart. [49 FR 13254, Apr. 3, 1984, as amended at 61 FR 39095, July 26, 1996)

736.603 Collecting data on and ap

praising firms' qualifications. An USAID Consultant Registry Information System (ACRIS) is maintained in Washington by the USAID Office of Small and Disadvantaged Business Utilization. Architect-engineers wishing to perform contracts for USAID should file the appropriate form with that office, as provided in section 705.002. Procurements are publicized in the Commerce Business Daily, as provided in FAR part 5. [49 FR 13254, Apr. 3, 1984, as amended at 52 FR 21059, June 4, 1987; 53 FR 50631, Dec. 16, 1988]

736.605 Government cost estimate for

architect-engineer work. See 736.602–3(c)(5).

PART 737 [RESERVED]

SUBCHAPTER G CONTRACT MANAGEMENT

PART 742–CONTRACT

ADMINISTRATION

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.

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

PART 747—TRANSPORTATION

AUTHORITY: Sec. 621, Pub. L. 98-195, 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 747.5-Ocean Transportation by U.S.-Flag Vessels

Subpart 742.7-Indirect Cost Rates 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)

747.507 Contract clauses.

Contracting officers shall insert the clause at 752.24770 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 745-GOVERNMENT

PROPERTY

PART 749—TERMINATION OF

CONTRACTS

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 749.1-General Principles

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.

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 ceived by him/her for the board, and

other duties as assigned by the board. 749.100 Scope of subpart.

(49 FR 13256, Apr. 3, 1984, as amended at 64 The Foreign Aid and Related Agen- FR 42040, Aug. 3, 1999) cies Appropriation Act, 1963, and subsequent appropriation Acts, have im

749.111-71 Required review and apposed the following requirement:

proval. None of the funds appropriated or made

(a) When required. The USAID Settleavailable pursuant to this Act for carrying

ment Review Board shall receive and out the Foreign Assistance Act of 1961, as approve all USAID/W and Mission proamended, may be used for making payments posed settlements or determinations if: on any contract for procurement to which (1) The amount of settlement, by the United States is a party entered into

agreement or determination, involves after the date of enactment of this Act which

$100,000 or more; does not contain a provision authorizing the

(2) The settlement or determination termination of such contract for the convenience of the United States

is limited to adjustment of the fee of a See, for example, section 110 of the

cost-reimbursement contract or sub

contract and: (i) In the case of comForeign Assistance and Related Agen

plete termination, the fee, as adjusted, cies Appropriation Act, 1965.

with respect to the terminated portion 749.111 Review of proposed settle

of the contract or subcontract is ments.

$100,000 or more; or (ii) in the case of a

partial termination, the fee, as ad749.111-70 Termination settlement re justed, with respect to the terminated view boards.

portion of the contract or subcontract (a) The USAID Settlement Review is $100,000 or more; Board shall be composed of the fol- (3) The head of the contracting activlowing members or their delegates (ex- ity concerned determines that a review cept as provided under 749.111-71(b)): of a specific case or class of cases is de(1) M/OP Director;

sirable; or (2) Controller;

(4) The contracting officer, in his/her (3) General Counsel.

discretion, desires review by the board. (b) The M/OP Director or his/her dele- (b) Level of review. Proposed settlegate shall be designated as chairman of ments in excess of $5 million shall be the board. Delegate members of the reviewed and approved by a board conboard shall have broad business and sisting of the M/OP Director, the Gencontracting experience and shall be eral Counsel, and the Controller, withsenior USAID officials. Each member out power of redelegation. or his/her delegate must be in attend. (c) Submission of information. The conance in order to conduct business, and tracting officer shall submit to the the board shall act by majority vote. board a statement of the proposed setNo individual shall serve as a member tlement agreement or determination, of a board for the review of a proposed supported by such detailed information settlement if he/she has theretofore re- as is required for an adequate review. viewed, approved or disapproved or rec- This information should normally inommended approval, disapproval or clude copies of: (1) The contractor's or other action with respect to any sub subcontractor's settlement proposal, stantive element of such settlement (2) the audit report, (3) the property proposal.

disposal report and any required ap(c) The chairman shall appoint a non provals in connection therewith, and voting recorder who shall be respon

(4) the contracting officer's memosible for receiving cases, scheduling randum explaining the settlement. The and recording the proceedings at meet- board may, in its discretion, require ings, maintaining a log of all cases re

Subpart 750.70 [Reserved]

the submission of additional information. (49 FR 13256, Apr. 3, 1984, as amended at 57 FR 5236, Feb. 13, 1992; 59 FR 33446, June 29, 1994; 64 FR 42040, Aug. 3, 1999)

PART 750—EXTRAORDINARY CONTRACTUAL ACTIONS

Subpart 750.71-Extraordinary

Contractual Actions To Protect
Foreign Policy Interests of the

United States
750.7100 Scope of subpart.

This subpart sets forth the standards and the procedures for disposition of requests for extraordinary contractual actions under Executive Order 11223.

Sec.
750.000 Scope of part.

Subpart 750.70 [Reserved]
Subpart 750.71-Extraordinary Contractual

Actions To Protect Foreign Policy Interests of the United States

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 M/OP

Director. 750.7110-4 Processing by MOP 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.

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 itself, a sufficient basis for the exercise States.

of the authority conferred by the Exec

utive Order. Whether, in a particular (49 FR 49472, Dec. 20, 1984, as amended at 62 FR 40469, July 29, 1997; 64 FR 42042, Aug. 3,

case, appropriate action such as 1999)

amendment without consideration, cor

rection of a mistake or ambiguity in a 750.7102 General policy.

contract, or formalization of an inforExtra-contractual claims arising

mal commitment, will protect the forfrom foreign assistance contracts will eign policy interests of the United be processed in accordance with this States is a matter of sound judgment subpart, which is similar to that uti to be made on the basis of all of the lized to process claims for extraor facts of such case. Although it is obvidinary relief under FAR Part 50, as ously impossible to predict or enumodified to meet the circumstances in- merate all the types of cases with revolved under the Foreign Assistance spect to which action may be approAct and the different authority in priate, examples of certain cases or volved.

types of cases where action may be

proper are set forth in sections 750.7106 750.7103 Definitions.

2 through 750.7106 4. Even if all of the (a) The term approving authority as factors contained in any of the examused in this subpart means an officer or ples are present, other factors or conofficial having been delegated author- siderations in a particular case may ity to approve actions under the Execu warrant denial of the request. These tive Order. This authority is distin- examples are not intended to exclude guished from authority to take appro other cases where the approving aupriate contractual action pursuant to thority determines that the cirsuch approval.

cumstances warrant action. (b) The term the Executive Order shall mean Executive Order 11223 (30 FR 6635) 750.7106-2 Amendments without conas amended, unless otherwise stated.

sideration. (c) The term the Act shall mean the (a) Where an actual or threatened Foreign Assistance Act of 1961, as loss under a foreign assistance conamended.

tract, however caused, will impair the [49 FR 13257, Apr. 3, 1984, as amended at 49 productive ability of a contractor FR 49472, Dec, 20, 1984)

whose continued performance of any

foreign assistance contract or whose 750.7104 Types of actions.

continued operation as a source of supThree types of actions may be taken ply is found to be essential to protect by or pursuant to the direction of an the foreign policy interests of the approving authority under the Execu- United States, the contract may be adtive Order. These are contractual ad- justed but only to the extent necessary justments such as amendments with to avoid such impairment to the conout consideration, correction of mis tractor's productive ability. takes, and formalization of informal (b) Where a contractor suffers a loss commitments.

(not merely a diminution of antici

pated profits) on a foreign assistance 750.7105 Approving authorities.

contract as a result of Government acAll authority to approve actions tion, the character of the Government under this subpart has been delegated action will generally determine whethto the M/OP Director.

er any adjustment in the contract will (50 FR 16086, Apr. 24, 1985, as amended at 64

be made and its extent. Where the GovFR 42040, Aug. 3, 1999)

ernment action is directed primarily at

the contractor and is taken by the 750.7106 Standards for deciding cases. Government in its capacity as the

other contracting party, the contract 750.7106-1 General.

may be adjusted if fairness so requires; The mere fact that losses occur under thus where such Government action, a Government contract is not, by although not creating any liability on

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