Various Administrative Changes and Clauses to the USAID Acquisition Regulation, 48715-48719 [2016-16643]

Agencies

• Agency for International Development

[Federal Register Volume 81, Number 143 (Tuesday, July 26, 2016)]
[Rules and Regulations]
[Pages 48715-48719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16643]


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AGENCY FOR INTERNATIONAL DEVELOPMENT

48 CFR Parts 722, 729, 731, and 752

RIN 0412-AA78


Various Administrative Changes and Clauses to the USAID 
Acquisition Regulation

AGENCY: U.S. Agency for International Development.

ACTION: Final rule.

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SUMMARY: The U.S. Agency for International Development (USAID) is 
issuing a final rule amending the Agency for International Development 
Acquisition Regulation (AIDAR) to maintain consistency with Federal and 
Agency regulations and incorporate current and new USAID clauses into 
the regulation.

DATES: Effective Date: August 25, 2016.

FOR FURTHER INFORMATION CONTACT: Lyudmila Bond, Telephone: 202-567-4753 
or Email: lbond@usaid.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    USAID published a proposed rule in the Federal Register at 80 FR 
69930 on November 12, 2015 soliciting public comments on the inclusion 
of several agency-specific clauses into the Agency for International 
Development Acquisition Regulation (AIDAR). The highlights of the 
changes are as follows:
     Sections 722.810 and 752.222-71 are added to encourage all 
USAID contractors performing and recruiting entirely outside the United 
States to develop and enforce employment nondiscrimination policies 
with regard to race, color, religion, sex (including pregnancy and 
gender identity), sexual orientation, marital status, parental status, 
political affiliation, national origin, disability, age, genetic 
information, veteran status or any other conduct that does not 
adversely affect the performance of the employee.
     New part 729, subpart 729.4, sections 729.204-70 and 
752.229-70 require contractors to report the amounts of foreign taxes 
assessed by a foreign government on commodities financed with U.S. 
Foreign Assistance funds. The reporting is used to require the 
countries to reimburse the taxes or duties imposed on U.S. foreign 
assistance funds and for certain reporting to Congress.
     Sections 731.205-43 and 752.231-72 are added to mitigate 
the risk of inappropriate spending, as mandated by Executive Order 
13589 ``Promoting Efficient Spending'' dated November 9, 2011. 
Contractors are required to obtain USAID written approval prior to 
committing costs related to USAID-funded conferences that meet the 
criteria provided in section 731.205-43.
     New section 752.7036 directs contractors to register with 
the Implementing Partner Notices (IPN) Portal, where USAID uploads 
contract modifications that affect multiple awards and provides notices 
to contractors.
     Section 752.7037 is added to promote child safeguarding 
when implementing USAID programs. The clause complements the USAID 
Counter Trafficking in Persons (C-TIP) Code of Conduct by expanding the 
range of

[[Page 48716]]

actions prohibited by USAID to include abuse, exploitation, or neglect 
of children.

B. Discussion and Analysis

    One comment was received in response to the proposed rule, which 
USAID reviewed in the development of the final rule. No other comments 
were received.
    A discussion of the comment received and the resulting changes are 
provided as follows:
    Comment: One respondent recommended that USAID clarify the impact 
of the transfer of the requirements for prior written approval of 
conference costs from Agency internal policies into the AIDAR section 
731.205-43. The respondent correctly pointed out that the intent of 
including these requirements in section 731.205-43 was to make the 
costs associated with a conferences meeting the criteria in the subpart 
unallowable, if the contractor did not obtain the required prior 
written approval. To minimize potential disagreement between the 
contractors and the Government, and to mitigate the risk of 
litigations, the respondent recommended including a statement in the 
section 731.205-43 to clarify this point. Doing so would also ensure 
that such costs are expressly unallowable and thus subject to the 
penalties provided in FAR 42.709.
    Response: We concur with the respondent's recommendation. Based on 
this public comment, USAID is revising section 731.205-43 to include a 
new paragraph stating that costs associated with a conference, meeting 
the criteria in the subpart, are unallowable, when the required prior 
written approval for such costs is not obtained.
    In addition, the final rule includes the following minor editorial 
changes from the proposed rule, based on further Agency review and 
comments from OMB and other agencies:
     A new paragraph was added to section 731.205-43 to specify 
that contracting Officers or the contracting officer's representatives 
will provide conference cost approvals following Agency internal 
procedures in Automated Directive System (ADS) Chapter 580.
     The clause at 752.231-72 is revised to make clear that 
contractors must obtain the required approvals for conferences from the 
contracting officer or contracting officer's representative.
     The definition of the universal bilateral modification at 
752.3036 has been slightly edited to conform to the plain language 
requirements.
     The clause at 752.222-71 is revised for clarity.

C. Regulatory Planning and Review

    This rule has been determined to be ``nonsignificant'' under the 
Executive Order 12866, Regulatory Planning and Review, dated September 
30, 1993 and, therefore, is not subject to review. This rule is not a 
major rule under 5 U.S.C. 804.

D. Regulatory Flexibility Act

    The rule will not have an impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 
601, et seq. Therefore, an Initial Regulatory Flexibility Analysis has 
not been performed.

E. Paperwork Reduction Act

    The proposed rule does not establish a new collection of 
information that requires the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 722, 729, 731, and 752

    Government procurement.

    For the reasons discussed in the preamble, USAID amends 48 CFR 
chapter 7 as set forth below:

CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

0
1. The authority citation for 48 CFR part 722 continues to read as 
follows:

    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; and 3 CFR 
1979 Comp., p. 435.

Subpart 722.8--Equal Employment Opportunity

0
2. Revise section 722.810 to read as follows:


722.810  Solicitation provisions and contract clauses.

    (a) The contracting officer must insert the clause at 752.222-70, 
USAID Disability Policy in section I of all solicitations and resulting 
contracts.
    (b) The contracting officer must insert the clause at 752.222-71, 
Nondiscrimination in section I of all solicitations and resulting 
contracts.

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

0
3. Add part 729 to subchapter E to read as follows:

PART 729--TAXES

Subpart 729.4--Contract Clauses


729.402-70  Foreign contracts.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 
2381), as amended; E.O. 12163, 44 FR 56673, 3 CFR 1979 Comp., p. 
435.

Subpart 729.4--Contract Clauses


729.402-70  Foreign contracts.

    (a) Section 579 of the Foreign Operations, Export Financing, and 
Related Programs Appropriations Act of FY 2003 requires certain steps 
to prevent countries from imposing taxes [defined as Value Added Tax 
(VAT) or customs duties] on U.S. foreign assistance, or if imposed, 
requires the countries to reimburse the assessed taxes or duties. The 
Act also requires certain reporting to Congress. The Department of 
State has published guidance for implementing this section of the Act. 
See https://2001-2009.state.gov/s/d/rm/c10443.htm for further 
information.
    (b) Contracting Officers (COs) must insert the clause at 752.229-
71, Reporting of Foreign Taxes in section I of solicitations and 
resulting contracts that obligate or subobligate FY 2003 or later funds 
except for the following:
    (1) Contracts funded with Operating Expense, Public Law 83-480 
funds, or trust funds; or
    (2) Contracts where there will be no commodity transactions in a 
foreign country over the amount of $500.

PART 731--CONTRACT COST PRINCIPLES AND PROCEDURES

0
4. The authority citation for 48 CFR part 731 continues to read as 
follows:

    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; and 3 CFR 
1979 Comp., p. 435.

Subpart 731.2--Contracts With Commercial Organizations

0
5. Add section 731.205-43 to read as follows:


731.205-43  Trade, business, technical and professional activity 
costs--USAID conference approval requirements.

    (a) The contractor must obtain prior written approval from the 
contracting officer, or the contracting officer's representative (COR), 
if delegated in the Contracting Officer's Representative Designation 
Letter, for costs related to conferences funded in whole or in part 
with USAID funds when:
    (1) Twenty (20) or more USAID employees are expected to attend.

[[Page 48717]]

    (2) The net conference expense funded by USAID will exceed $100,000 
(excluding salary of employees), regardless of the number of USAID 
participants.
    (b) The contracting officer or the contracting officer's 
representative will follow the internal Agency procedures for review 
and approval of conference costs, as specified in Automated Directive 
System (ADS) chapter 580, prior to providing such approval to the 
contractor.
    (c) Costs associated with a conference that meets the criteria 
above, incurred without USAID prior written approval, are unallowable.
    (d) Contracting officers must insert the clause at 752.231-72 in 
all USAID-funded solicitations and contracts anticipated to include a 
requirement for a USAID-funded conference. See (48 CFR) AIDAR 752.231-
72 for the definition of a conference and specific requirements and 
procedures.

SUBCHAPTER H--CLAUSES AND FORMS

PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. The authority citation for 48 CFR part 752 continues to read as 
follows:

    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; and 3 CFR 
1979 Comp., p. 435.


0
7. Add section 752.222-71 to read as follows:


752.222-71  Nondiscrimination.

    As prescribed in (48 CFR) AIDAR 722.810(b), insert the following 
clause in section I of all solicitations and resulting contracts.

Nondiscrimination (June 2012)

    FAR part 22 and the clauses prescribed in that part prohibit 
contractors performing in or recruiting from the U.S. from engaging 
in certain discriminatory practices.
    USAID is committed to achieving and maintaining a diverse and 
representative workforce and a workplace free of discrimination. 
Based on law, Executive Order, and Agency policy, USAID prohibits 
discrimination in its own workplace on the basis of race, color, 
religion, sex (including pregnancy and gender identity), national 
origin, disability, age, veteran's status, sexual orientation, 
genetic information, marital status, parental status, political 
affiliation, and any other conduct that does not adversely affect 
the performance of the employee. USAID does not tolerate any type of 
discrimination (in any form, including harassment) of any employee 
or applicant for employment on any of the above-described bases.
    Contractors are required to comply with the nondiscrimination 
requirements of the FAR. In addition, the Agency strongly encourages 
all its contractors (at all tiers) to develop and enforce 
nondiscrimination policies consistent with USAID's approach to 
workplace nondiscrimination as described in this clause, subject to 
applicable law.

(End of clause)


0
8. Add section 752.229-71 to read as follows:


752.229-71  Reporting of foreign taxes.

    As prescribed in (48 CFR) AIDAR 729.402-70, insert the following 
clause in section I of applicable solicitations and resulting 
contracts. The contracting officer must insert address and point of 
contact at the Embassy, Mission, or M/CFO/CMP as appropriate under 
paragraph (d) of this clause.

Reporting of Foreign Taxes (July 2007)

    (a) The contractor must annually submit a report by April 16 of 
the next year.
    (b) Contents of report. The report must contain:
    (1) Contractor name.
    (2) Contact name with phone, fax number and email address.
    (3) Contract number(s).
    (4) Amount of foreign taxes assessed by a foreign government 
[each foreign government must be listed separately] on commodity 
purchase transactions valued at $500 or more financed with U.S. 
foreign assistance funds under this agreement during the prior U.S. 
fiscal year.
    (5) Only foreign taxes assessed by the foreign government in the 
country receiving U.S. assistance are to be reported. Foreign taxes 
by a third party foreign government are not to be reported. For 
example, if a contractor performing in Lesotho using foreign 
assistance funds should purchase commodities in South Africa, any 
taxes imposed by South Africa would not be included in the report 
for Lesotho (or South Africa).
    (6) Any reimbursements received by the contractor during the 
period in paragraph (b)(4) of this clause regardless of when the 
foreign tax was assessed and any reimbursements on the taxes 
reported in paragraph (b)(4) of this clause received through March 
31.
    (7) Report is required even if the contractor did not pay any 
taxes during the reporting period.
    (8) Cumulative reports may be provided if the contractor is 
implementing more than one program in a foreign country.
    (c) Definitions. As used in this clause--
    (1) Agreement includes USAID direct and country contracts, 
grants, cooperative agreements and interagency agreements.
    (2) Commodity means any material, article, supply, goods, or 
equipment.
    (3) Foreign government includes any foreign governmental entity.
    (4) Foreign taxes means value-added taxes and customs duties 
assessed by a foreign government on a commodity. It does not include 
foreign sales taxes.
    (d) Where. Submit the reports to: [contracting officer must 
insert address and point of contact at the Embassy, Mission, or CFO/
CMP as appropriate].
    (e) Subagreements. The contractor must include this reporting 
requirement in all applicable subcontracts and other subagreements.
    (f) For further information see https://2001-2009.state.gov/s/d/rm/c10443.htm.

(End of clause)


0
9. Add section 752.231-72 to read as follows:


752.231-72  Conference planning and required approvals.

    As prescribed in (48 CFR) AIDAR 731.205-43, insert the following 
clause in section I of all solicitations and resulting contracts 
anticipated to include a requirement for a USAID-funded conference, as 
defined in the clause.

Conference Planning and Required Approvals (Aug 2013)

    (a) Definitions. Conference means a seminar, meeting, retreat, 
symposium, workshop, training activity or other such event that 
requires temporary duty travel of USAID employees. For the purpose 
of this policy, an employee is defined as a U.S. direct hire; 
personal services contractor, including U.S. PSCs, Foreign Service 
National (FSN)/Cooperating Country National (CCN) and Third Country 
National (TCN); or a Federal employee detailed to USAID from another 
government agency.
    (b) The contractor must obtain approval from the contracting 
officer or the contracting officer's representative (COR), if 
delegated in the Contracting Officer's Representative Designation 
Letter, as prescribed in 731.205-43, prior to committing costs 
related to conferences funded in whole or in part with USAID funds 
when:
    (1) Twenty (20) or more USAID employees are expected to attend.
    (2) The net conference expense funded by USAID will exceed 
$100,000 (excluding salary of employees), regardless of the number 
of USAID participants.
    (c) Conferences approved at the time of award will be 
incorporated into the award. Any subsequent requests for approval of 
conferences must be submitted by the contractor to the USAID 
contracting officer representative (COR). The contracting officer 
representative will obtain the required agency approvals and 
communicate such approvals to the contractor in writing.
    (d) The request for conference approval must include:
    (1) A brief summary of the proposed event;
    (2) A justification for the conference and alternatives 
considered, e.g., teleconferencing and videoconferencing;
    (3) The estimated budget by line item (e.g., travel and per 
diem, venue, facilitators, meals, equipment, printing, access fees, 
ground transportation);
    (4) A list of USAID employees attending and a justification for 
each; and the number of other USAID-funded participants (e.g., 
institutional contractors);
    (5) The venues considered (including government-owned facility), 
cost

[[Page 48718]]

comparison, and justification for venue selected if it is not the 
lowest cost option;
    (6) If meals will be provided to local employees (a local 
employee would not be in travel status), a determination that the 
meals are a necessary expense for achieving Agency objectives; and
    (7) A certification that strict fiscal responsibility has been 
exercised in making decisions regarding conference expenditures, the 
proposed costs are comprehensive and represent the greatest cost 
advantage to the U.S. Government, and that the proposed conference 
representation has been limited to the minimum number of attendees 
necessary to support the Agency's mission.
(End of clause)


0
10. Add section 752.7036 to read as follows:


752.7036  USAID Implementing Partner Notices (IPN) portal for 
acquisition.

    Insert the following clause in section I of all solicitations and 
resulting contracts, except for orders under indefinite delivery 
contracts issued pursuant to (48 CFR) FAR subpart 16.5; orders under 
Federal Supply (GSA) Schedules issued pursuant to (48 CFR) FAR subpart 
8.4; and contracts and purchase orders awarded under the simplified 
acquisitions procedures of (48 CFR) FAR part 13.

USAID Implementing Partner Notices (IPN) Portal FOR Acquisition 
(July 2014)

    (a) Definitions. As used in this clause--
    ``Universal'' bilateral modification means a bilateral 
modification, as defined in FAR subpart 43.1, that updates or 
incorporates new FAR or AIDAR clauses, other terms and conditions, 
or special requirements, affecting all USAID awards or a class of 
awards, as specified in the Agency notification of such 
modification.
    USAID Implementing Partner Notices (IPN) Portal for Acquisition 
(IPN Portal) means the single point where USAID uploads universal 
bilateral modifications, which can be accessed electronically by 
registered USAID contractors. The IPN Portal is located at https://sites.google.com/site/ipnforacquisitions/.
    IPN Portal Administrator means the USAID official designated by 
the M/OAA Director, who has overall responsibility for managing the 
USAID Implementing Partner Notices Portal for Acquisition.
    (b) By submission of an offer and execution of a contract, the 
Offeror/Contractor acknowledges the requirement to:
    (1) Register with the IPN Portal if awarded a contract resulting 
from this solicitation; and
    (2) Receive universal bilateral modifications of this contract 
and general notices through the IPN Portal.
    (c) Procedure to register for notifications. Go to: https://sites.google.com/site/usaidipnforacquisitions/ and click the 
``Register'' button at the top of the page. Contractor 
representatives must use their official organization email address 
when subscribing, not personal email addresses.
    (d) Processing of IPN portal modifications. (1) The contractor 
may access the IPN Portal at any time to review all IPN Portal 
modifications; however, the system will also notify the contractor 
by email when the USAID IPN Portal Administrator uploads a universal 
bilateral modification for contractor review and signature. Proposed 
IPN Portal modifications distributed through the IPN Portal are 
applicable to all awards, unless otherwise noted in the proposed 
modification.
    (2) Within 15 calendar days from receipt of the notification 
email from the IPN Portal, the contractor must do one of the 
following:
    (i)(A) Verify applicability of the proposed modification to 
their award(s) per the instructions provided with each modification;
    (B) Download the modification and incorporate the following 
information on the SF30 form: contract number, organization name, 
and organization mailing address as it appears in the basic award;
    (C) Sign the hardcopy version; and
    (D) Send the signed modification (by email or hardcopy) to the 
contracting officer for signature;
    Note to paragraph (d)(2)(i): The contractor must not incorporate 
any other changes to the IPN Portal modification.
    (ii) Notify the Contracting Officer in writing if the 
modification requires negotiation of the additional changes to terms 
and conditions of the contract; or
    (iii) Notify the contracting officer that the contractor 
declines to sign the modification.
    (3) Within 30 calendar days of receipt of a signed modification 
from the contractor, the contracting officer must provide the fully 
executed modification to the contractor or initiate discussions with 
the contractor. Bilateral modifications provided through the IPN 
Portal are not effective until both the contractor and the 
contracting officer sign the modification.

(End of clause)


0
11. Add section 752.7037 to read as follows:


752.7037  Child safeguarding standards.

    Insert the following clause in section I of all solicitations and 
contracts other than those for commercial items.

Child Safeguarding Standards (Aug. 2016)

    (a) Implementation of activities under this award may involve 
children, or personnel engaged in the implementation of the award 
may come into contact with children, which could raise the risk of 
child abuse, exploitation, or neglect within this award. The 
contractor agrees to abide by the following child safeguarding core 
principles:
    (1) Ensure compliance with host country and local child welfare 
and protection legislation or international standards, whichever 
gives greater protection, and with U.S. law where applicable;
    (2) Prohibit all personnel from engaging in child abuse, 
exploitation, or neglect;
    (3) Consider child safeguarding in project planning and 
implementation to determine potential risks to children that are 
associated with project activities and operations;
    (4) Apply measures to reduce the risk of child abuse, 
exploitation, or neglect, including, but not limited to, limiting 
unsupervised interactions with children; prohibiting exposure to 
pornography; and complying with applicable laws, regulations, or 
customs regarding the photographing, filming, or other image-
generating activities of children;
    (5) Promote child-safe screening procedures for personnel, 
particularly personnel whose work brings them in direct contact with 
children; and
    (6) Have a procedure for ensuring that personnel and others 
recognize child abuse, exploitation, or neglect; mandating that 
personnel and others report allegations; investigating and managing 
allegations; and taking appropriate action in response to such 
allegations, including, but not limited to, dismissal of personnel.
    (b) The contractor must also include in the code of conduct for 
all personnel implementing USAID-funded activities, the child 
safeguarding principles in paragraphs (a)(1) through (6) of this 
clause.
    (c) The following definitions apply for purposes of this clause:
    (1) Child. A child or children are defined as persons who have 
not attained 18 years of age.
    (2) Child abuse, exploitation, or neglect. Constitutes any form 
of physical abuse; emotional ill-treatment; sexual abuse; neglect or 
insufficient supervision; trafficking; or commercial, transactional, 
labor, or other exploitation resulting in actual or potential harm 
to the child's health, well-being, survival, development, or 
dignity. It includes, but is not limited to: Any act or failure to 
act which results in death, serious physical or emotional harm to a 
child, or an act or failure to act which presents an imminent risk 
of serious harm to a child.
    (3) Emotional abuse or ill treatment. Constitutes injury to the 
psychological capacity or emotional stability of the child caused by 
acts, threats of acts, or coercive tactics. Emotional abuse may 
include, but is not limited to: Humiliation, control, isolation, 
withholding of information, or any other deliberate activity that 
makes the child feel diminished or embarrassed.
    (4) Exploitation. Constitutes the abuse of a child where some 
form of remuneration is involved or whereby the perpetrators benefit 
in some manner. Exploitation represents a form of coercion and 
violence that is detrimental to the child's physical or mental 
health, development, education, or well-being.
    (5) Neglect. Constitutes failure to provide for a child's basic 
needs within USAID-funded activities that are responsible for the 
care of a child in the absence of the child's parent or guardian.
    (6) Physical abuse. Constitutes acts or failures to act 
resulting in injury (not necessarily visible), unnecessary or 
unjustified pain or suffering without causing injury, harm or risk 
of harm to a child's health or welfare, or death. Such acts may 
include, but are not limited to: Punching, beating, kicking, biting, 
shaking, throwing, stabbing, choking, or hitting (regardless of 
object used), or burning. These acts are considered abuse regardless 
of whether they were intended to hurt the child.

[[Page 48719]]

    (7) Sexual abuse. Constitutes fondling a child's genitals, 
penetration, incest, rape, sodomy, indecent exposure, and 
exploitation through prostitution or the production of pornographic 
materials.
    (d) The contractor must insert this clause in all subcontracts 
under this award.

(End of clause)

    Dated: June 29, 2016.
Roy Plucknett,
Chief Acquisition Officer.
[FR Doc. 2016-16643 Filed 7-25-16; 8:45 am]
 BILLING CODE 6116-01-P