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its part, increases the cost of performance, considerations of fairness may make appropriate some adjustment in the contract.
A contract may be amended or modified to corrrect or mitigate the effect of a mistake, including the following examples:
(a) A mistake or ambiguity which consists of the failure to express or to express clearly in the written contract the agreements as both parties understood them;
(b) A mistake on the part of the contractor which is so obvious that it was or should have been apparent to the contracting officer; and
(c) A mutual mistake as to a material fact. Amending contracts to correct mistakes with the least possible delay normally will protect the foreign policy interests of the United States by expediting the procurement program and by giving contractors proper assurance that such mistakes will be corrected expeditiously and fairly. 750.7106-4 Informal commitments.
Informal commitments may be formalized under certain circumstances to permit payment to persons who have taken action without a formal contract; for example, where any person, pursuant to written or oral instructions from an officer or official of the Agency and relying in good faith upon the apparent authority of the officer or official to issue such instructions, has arranged to furnish or has furnished property or services to the agency and or to a foreign assistance contractor or subcontractor without formal contractual coverage for such property or services. Formalization of commitments under such circumstances normally will protect the foreign policy interests of the United States by assuring persons that they will be treated fairly and paid expeditiously.
(2) The making of any contract in violation of existing law relating to limitation on profit or fees;
(3) The waiver of any bid, payment performance or other bond required by law.
(b) No amendments, or modifications shall be entered into under the authority of the Executive Order:
(1) Unless, with respect to cases falling within Section 4 of the Executive Order, a finding is made that the action is necessary to protect the foreign policy interests of the United States;
(2) Unless other legal authority in the Agency is deemed to be lacking or inadequate;
(3) Except within the limits of the amounts appropriated and the statutory contract authorization.
(c) No contract shall be amended or modified unless the request therefor has been filed before all obligations (including final payment) under the contract have been discharged.
(d) No informal commitment shall be formalized unless:
(1) A request for payment has been filed within six months after arranging to furnish or furnishing property or services in reliance upon the commitment;
(2) USAID has received the services satisfactorily performed, or has accepted property furnished in reliance on the commitment;
(3) The USAID employees alleged to have made the informal commitment have accepted responsibility for making the informal commitment in question; and
(4) USAID has taken appropriate action to prevent recurrence. [49 FR 13257, Apr. 3, 1984, as amended at 50 FR 16088, Apr. 24, 1985; 53 FR 4982, Feb. 19, 1988]
750.7107 Limitations upon exercise of
authority. (a) The Executive Order is not authority for:
(1) The use of the cost-plus-a-percentage-of-cost system of contracting;
750.7108 Contractual requirements.
Every contract amended or modified pursuant to this subpart shall contain:
(a) A citation of the Act and Executive Order.
(b) A brief statement of the circumstances justifying the action;
(c) A recital of the finding, with respect to cases falling within Section 4 of the Executive Order, that the action is necessary to protect the foreign policy interests of the United States.
750.7109 Submission of requests by of the M/OP Director to approve the recontractors.
quest. 750.7109-1 Filing requests.
[62 FR 40469, July 29, 1997, as amended at 61
FR 42042, Aug. 3, 1999] Any person (hereinafter called the “contractor”) seeking an adjustment 750.7110-2 Office of General Counsel under standards set forth in 750.7106 coordination. may file a request in duplicate with the
Prior to the submission of a case to cognizant contracting officer or his/her
the M/OP Director recommending exduly authorized representative. If such
traordinary contractual relief, the filing is impracticable, requests will be
claim shall be fully developed by the deemed to be properly filed if filed with
cognizant contracting officer and conthe Chief of the Office of Procurement, Evaluation Division (M/OP/E) for for
currences or comments shall be ob
tained from the Office of General Counwarding to the cognizant contracting
sel for the proposed relief to be grantofficer.
ed. Such concurrences or comments [49 FR 13257, Apr. 3, 1984, as amended at 50 shall be incorporated in or accompany FR 50303, Dec. 10, 1985; 55 FR 6802, Feb. 27,
the action memorandum submitted for 1990; 56 FR 67225, Dec. 30, 1991; 59 FR 33446,
consideration to the M/OP Director in June 29, 1994)
accordance with 750.7110_3. 750.7109–2 Form of requests by con (62 FR 40469, July 29, 1997, as amended at 64 tractors.
FR 42040, Aug. 3, 1999] The contractor's request shall normally consist of a letter to the con
750.7110_3 Submission of cases to the tracting officer providing the informa
M/OP Director. tion specified in FAR 50.303.
Cases to be submitted for consider
ation by the M/OP Director shall be 750.7109-3 Facts and evidence.
prepared and forwarded by the cogThe contracting officer or the ap nizant contracting officer through M proving authority may, where consid- OP/E to the MOP Director by means of ered appropriate, request the con an action memorandum. M/OP/E will tractor to furnish the facts and evi review the action memorandum for acdence as described in FAR 50.304.
curacy and completeness. The action (49 FR 13257, Apr. 3, 1984, as amended at 62
memorandum shall provide for apFR 40469, July 29, 1997)
proval or disapproval by the MOP Di
rector of the disposition recommended 750.7110 Processing cases.
by the contracting officer. The action
memorandum shall address: 750.7110-1 Investigation.
(a) The nature of the case; The Evaluation Division of the Office (b) The basis for authority to act of Procurement (M/OP/E) shall be re- under section 750.7101; sponsible for assuring that the case (c) The findings of fact essential to prepared by the cognizant contracting the case (see 750.7109–3) arranged chronofficer makes a thorough investigation ologically with cross references to supof all facts and issues relevant to each porting enclosures; situation. Facts and evidence shall be (d) The conclusions drawn from apobtained from contractor and Govern- plying the standards for deciding cases, ment personnel and shall include as set forth in 750.7106, to the findings signed statements of material facts of fact; within the knowledge of the individ- (e) Compliance with the limitations uals where documentary evidence is upon exercise of authority, as set forth lacking and audits where considered in section 750.7107 (for informal comnecessary to establish financial or cost mitments, include statements addressrelated facts. The investigation shall ing each of the limitations in paraestablish the facts essential to meet graph (d) of 750.7107): the standards for deciding the par- (f) Concurrences or comments obticular case and shall address the limi- tained from the Office of General Countations upon exercise of the authority sel;
complete as possible and has been prepared in accordance with this subpart, M/OP/E will forward the action memorandum to the M/OP Director. The M/ OP Director will sign and date the action memorandum indicating approval or disapproval of the disposition recommended by the contracting officer. [62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999]
(g) Verification of funds availability and the contracting officer's determination of cost/price reasonableness when the disposition recommended requires payment to a contractor;
(h) The disposition recommended and, if contractual action is recommended with respect to cases falling within Section 4 of the Executive Order, the opinion of the contracting officer that such action is necessary to protect the foreign policy interest of the United States; and
(i) The action memorandum shall enclose all evidentiary materials, including the reports and comments of all cognizant Government or other officials, and a copy of the contractor's request. The action memorandum should provide the following information related to the contractor's request, as applicable:
(1) Date of request;
(5) Name, address, and phone number of contractor's representative;
(6) Name, office symbol, and phone number of cognizant contracting officer;
(7) Amount of request. [62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999)
750.7110-5 Contract files.
The fully executed action memorandum indicating approval/disapproval and a copy of the contractual document implementing any approved contractual action shall be placed in the contract file. [62 FR 40469, July 29, 1997; 62 FR 47532, Sept. 9, 1997]
750.7110-6 Inter-agency coordination.
(a) General. Where a case involves matters of interest to more than one department or agency, USAID should maintain liaison with other departments and agencies of the Government and take such joint action as may be proper under the circumstances, including holding joint meetings.
(b) Cases involving funds of other departments or agencies. Requests for adjustment within any category, involving the funds of another department or agency, shall not be approved by USAID until advice is requested and received from the department or agency whose funds are involved.
PART 752—SOLICITATION PROVISIONS AND CONTRACT CLAUSES Subpart 752.2—Texts of Provisions and
Sec. 752.200 Scope of subpart. 752.202–1 Definitions. 752.204–2 Security requirements. 752.209–71 Organizational conflicts of inter
est discovered after award. 752.211-70 Language and measurement. 752.216–70 Award fee. 752.219-8 Utilization of small business con
cerns and small disadvantaged business
concerns. 752.225–9 Buy American Act-Trade Agree
ments Act--Balance of Payments Pro
gram. 725.225–70 Source, origin and nationality re
quirements. 725.225–71 Local procurement. 752.226-1 Determination of status as dis
advantaged enterprise. 752.226–2 Subcontracting with disadvan
taged enterprises. 752.226_3 Limitation on subcontracting. 752.228–3 Worker's compensation insurance
(Defense Base Act). 752.228–7 Insurance-liability to third per
sons 752.228-9 Cargo insurance. 752.228–70 Medical Evacuation (MEDEVAC)
Services 752.229-70 Federal, state and local taxes. 752.231-71 Salary supplements for HG em
ployees. 752.232–7 Payments under time-and-mate
rials and labor-hour contracts. 752.232–70 Letter of credit advance payment. 752.245–70 Government property-USAID re
porting requirements. 752.245–71 Title to and care of property. 752.247–70 Preference for privately owned
U.S.-flag commercial vessels.
752.7010 Conversion of U.S. dollars to local
currency. 752.7011 Orientation and language training. 752.7012 Protection of the individual as a re
search subject. 752.7013 Contractor-mission relationships. 752.7014 Notice of changes in travel regula
tions. 752.7015 Use of pouch facilities. 752.7016 Family planning and population as
sistance activities. 752.7017 (Reserved] 752.7018 Health and accident coverage for
USAID participant trainees. 752.7019 Participant training. 752.7020 [Reserved] 752.7021 Changes in tuition and fees. 752.7022 Conflicts between contract and
catalog. 752.7023 Required visa form for USAID par
ticipants. 752.7024 Withdrawal of students. 752.7025 Approvals. 752.7026 (Reserved] 752.7027 Personnel. 752.7028 Differential and allowances. 752.7029 Post privileges. 752.7030 Inspection trips by contractor's of
ficers and executives. 752.7031 Leave and holidays. 752.7032 International travel approval and
notification requirements. 752.7033 Physical fitness. 752.7034 Acknowledgement and disclaimer. 752.7035 Public notices.
Subpart 752.3-70-USAID Clause Matrices
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 13259, Apr. 3, 1984, unless otherwise noted.
Subpart 752.70--Texts of USAID Contract
Subpart 752.2-Texts of Provisions
752.7000 Scope of subpart. 752.7001 Biographical data. 752.7002 Travel and transportation. 752.7003 Documentation for payment. 752.7004 Emergency locator information. 752.7005 Submission requirements for devel
opment experience documents. 752.7006 Notices. 752.7007 Personnel compensation. 752.7008 Use of Government facilities or per
sonnel. 752.7009 Marking.
752.200 Scope of subpart.
None of the clauses specified in this subpart are for use in USAID personal services contracts. For personal services contract clauses, see AIDAR Appendix D-Direct USAID Contracts with U.S. Citizens or U.S. Residents for Personal Services Abroad and AIDAR Appendix J-Direct USAID Contracts with Cooperating Country Nationals and with Third Country Nationals for Personal Services Abroad. (49 FR 13259, Apr. 3, 1984, as amended at 51 FR 11450, Apr. 3, 1986; 51 FR 12706, Apr. 15, 1986; 57 FR 5236, Feb. 13, 1992; 62 FR 40469, July 29, 1997)
(a) As prescribed in 702.270 and in FAR Subpart 2.2, USAID contracts use the Definitions clause in FAR 52.202–1 and its Alternate I, as appropriate, and the following additional definitions.
(b) Alternate 70. For use in all USAID contracts. Use in addition to the clause in FAR 52.202–1.
USAID DEFINITIONS CLAUSE-GENERAL SUP
PLEMENT FOR USE IN ALL USAID CONTRACTS (JAN 1990)
(a) USAID shall mean the U.S. Agency for International Development.
(b) Administrator shall mean the Administrator or the Deputy Administrator of USAID.
(c) When this contract is with an educational institution Campus Coordinator shall mean the representative of the Contractor at the Contractor's home institution, who shall be responsible for coordinating the activities carried out under the contract.
(d) When this contract is with an educational institution Campus Personnel shall mean representatives of the Contractor performing services under the contract at the Contractor's home institution and shall include the Campus Coordinator.
(e) Consultant shall mean any especially well qualified person who is engaged, on a temporary or intermittent basis to advise the Contractor and who is not an officer or employee of the Contractor who performs other duties for the Contractor.
(1) Contractor employee shall mean an employee of the Contractor assigned to work under this contract.
(g) Cooperating Country or Countries shall mean the foreign country or countries in or for which services are to be rendered hereunder.
(h) Cooperating Government shall mean the government of the Cooperating Country.
(i) Federal Acquisition Regulations (FAR), when referred to herein shall include U.S. Agency for International Development Acquisition Regulations (AIDAR).
() Government shall mean the United States Government.
(k) Mission shall mean the United States AID Mission to, or principal USAID office in, the Cooperating Country
(1) Mission Director shall mean the principal officer in the Mission in the Cooperating
Country, or his/her designated representative.
(c) Alternate 71. For use in USAID contracts with an educational institution for participant training. Use in addition to the clauses in FAR 52.202–1 and in 752.202–1(b) of this chapter. USAID DEFINITIONS CLAUSE-SUPPLEMENT
FOR CONTRACTS WITH AN EDUCATIONAL INSTITUTION FOR PARTICIPANT TRAINING (APR 1984)
(a) Catalog shall mean any medium by which the Institution publicly announces terms and conditions for enrollment in the Institution, including tuition and fees to be charged. This includes “bulletins," "announcements," or any other similar word the Institution may use.
(b) Director shall mean the individual who fills the USAID position of Director, Center for Human Capacity Development (G/HCD), or his/her authorized representative acting within the limits of his/her authority.
(c) Fees shall mean those applicable charges directly related to enrollment in the Institution. This shall not include any permit charge (e.g., parking, vehicle registration), or charges for services of a personal nature (e.g., food, housing, laundry) unless specifically called for in this contract.
(d) Institution shall mean the educational institution providing services hereunder. The terms “Institution" and "Contractor" are synonymous.
(e) Tuition shall mean the amount of money charged by an institution for instruction, not including fees as described in this section.
(d) Alternate 72. For use in all USAID contracts which involve any performance overseas. Use in addition to the clauses in FAR 52.202-1 and in 752.2021(b) of this chapter. USAID DEFINITIONS CLAUSE-SUPPLEMENT
FOR USAID CONTRACTS INVOLVING PERFORMANCE OVERSEAS (DEC 1986)
(a) Contractor's Chief of Party shall mean the representative of the Contractor in the Cooperating Country who shall be responsible for supervision of the performance of all duties undertaken by the Contractor in the Cooperating Country.
(b) Cooperating Country National (CCN) employee means an individual who meets the citizenship requirements of 48 CFR 702.170-5 and is hired while residing outside the United States for work in a cooperating country.
(c) Dependents shall mean: (1) Spouse;
(2) Children (including step and adopted children) who are unmarried and under 21