U. S. Agency for International Development Acquisition Regulation (AIDAR): Designation of Personal Services Contractors (PSCs) as Contracting Officers and Agreement Officers, 27745-27749 [2019-12270]
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Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Proposed Rules
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this
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effects of this rule elsewhere in this
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F. Environment
We have analyzed this proposed rule
under Department of Homeland
Security Directive 023–01 and
Environmental Planning COMDTINST
5090.1 (series), which guide the Coast
Guard in complying with the National
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U.S.C. 4321–4370f), and have made a
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on September 7, 2019. The Special
Local Regulations would be effective on
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Mississippi River between MM 839 and
MM 840. Normally such actions are
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under ADDRESSES. We seek any
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G. Protest Activities
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V. Public Participation and Request for
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16:49 Jun 13, 2019
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water),
Reporting and recordkeeping
requirements, Waterways.
For the reasons discussed in the
preamble, the Coast Guard is proposing
to amend 33 CFR part 100 as follows:
PART 100—SAFETY OF LIFE ON
NAVIGABLE WATERS
1. The authority citation for part 100
continues to read as follows:
■
Authority: 46 U.S.C. 70041; 33 CFR 1.05–
1.
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considered spectators. The ‘‘official
patrol vessels’’ consist of any Coast
Guard, state or local law enforcement
and sponsor provided vessels assigned
or approved by the Captain of the Port
Sector Upper Mississippi River, to
patrol the event.
(3) Spectator vessels desiring to
transit the regulated area may do so only
with prior approval of the Patrol
Commander and when so directed by
that officer and will be operated at a no
wake speed in a manner which will not
endanger participants in the event or
any other craft.
(4) No spectator shall anchor, block,
loiter, or impede the through transit of
participants or official patrol vessels in
the regulated area during the effective
dates and times, unless cleared for entry
by or through an official patrol vessel.
(5) The Patrol Commander may forbid
and control the movement of all vessels
in the regulated area. When hailed or
signaled by an official patrol vessel, a
vessel shall come to an immediate stop
and comply with the directions given.
Failure to do so may result in expulsion
from the area, citation for failure to
comply, or both.
(6) Any spectator vessel may anchor
outside the regulated area specified in
Table 1 of this section, but may not
anchor in, block, or loiter in a navigable
channel.
(7) The Patrol Commander may
terminate the event or the operation of
any vessel at any time it is deemed
necessary for the protection of life or
property.
(8) The Patrol Commander will
terminate enforcement of the special
regulations at the conclusion of the
event.
2. Add § 100.T08–0437 to read as
follows:
S.A. Stoermer,
Captain, U.S. Coast Guard, Captain of the
Port Sector Upper Mississippi River.
§ 100.T08–0437 Special Local Regulations;
Upper Mississippi River, Mile Markers 839
to 840 St. Paul, MN
[FR Doc. 2019–12484 Filed 6–13–19; 8:45 am]
■
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VerDate Sep<11>2014
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27745
(a) Location. The following Special
Local Regulations are in effect for all
navigable waters of the Upper
Mississippi River between mile marker
(MM) 839 and MM 840.
(b) Period of enforcement. This
section will be enforced from 10 a.m.
through 5 p.m. on September 7, 2019.
(c) Regulations. (1) The Coast Guard
may patrol the event area under the
direction of a designated Coast Guard
Patrol Commander. The Patrol
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(2) All persons and vessels not
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BILLING CODE 9110–04–P
AGENCY FOR INTERNATIONAL
DEVELOPMENT
48 CFR Chapter 7
RIN 0412–AA94
U. S. Agency for International
Development Acquisition Regulation
(AIDAR): Designation of Personal
Services Contractors (PSCs) as
Contracting Officers and Agreement
Officers
U.S. Agency for International
Development.
ACTION: Proposed rule.
AGENCY:
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Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Proposed Rules
The U.S. Agency for
International Development (USAID)
proposes to amend the Agency for
International Development Acquisition
Regulation (AIDAR) to allow for the
designation of U.S. Personal Services
Contractors (US PSCs) and Cooperating
Country National Personal Services
Contractors (CCN PSCs) as contracting
officers and agreement officers. The
proposed revisions will address a
shortage of U.S. direct-hire staff by
delegating the proposed authorities to
qualified US and CCN PSCs. The
delegation of limited contracting/
agreement officer authorities to a select
number of CCN PSCs will also bolster
the Agency to succeed in terms of
building long-term, host country
technical capacity to materially assist
the Missions with procurement
responsibility.
DATES: Comments must be received no
later than August 13, 2019.
ADDRESSES: Address all comments
concerning this notice to Anne Sattgast,
Bureau for Management, Office of
Acquisition and Assistance, Policy
Division (M/OAA/P), Room 867–D, SA–
44, Washington, DC 20523–2052.
Submit comments, identified by title of
the action and Regulatory Information
Number (RIN) by any of the following
methods:
1. Through the Federal eRulemaking
Portal at https://www.regulations.gov by
following the instructions for submitting
comments.
2. By Mail addressed to: USAID,
Bureau for Management, Office of
Acquisition & Assistance, Policy
Division, Room 867–D, SA–44, 1300
Pennsylvania Ave. NW, Washington, DC
20523–2052.
FOR FURTHER INFORMATION CONTACT:
Anne Sattgast, Telephone: 202–567–
5094 or Email: asattgast@usaid.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
A. Instructions
All comments must be in writing and
submitted through one of the methods
specified in the Addresses section
above. All submissions must include the
title of the action and RIN for this
rulemaking. Please include your name,
title, organization, postal address,
telephone number, and email address in
the text of the message.
Please note that USAID recommends
sending all comments to the Federal
eRulemaking Portal because security
screening precautions have slowed the
delivery and dependability of surface
mail to USAID/Washington.
At the end of the comment period and
until finalization of the action, all
comments will be made available at
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16:49 Jun 13, 2019
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https://www.regulations.gov for public
review without change, including any
personal information provided. We
recommend you do not submit
information that you consider
Confidential Business Information (CBI)
or any information that is otherwise
protected from disclosure by statute.
USAID will only address substantive
comments on the rule. Comments that
are insubstantial or outside the scope of
the rule may not be considered.
B. Background
On August 19, 2016 USAID published
a proposed rule at 81 FR 55405 revising
the U.S. Agency for International
Development Acquisition Regulation
(AIDAR) to incorporate the USAID
Cooperating Country National Warrant
Program into the regulation. The
proposed rule was subsequently
withdrawn on June 23, 2017, at 82 FR
28617, due to changes in the regulatory
requirements and processes.
USAID has further analyzed the need
for contracting/agreement officers and
has determined that the ability to
designate both US PSCs and CCN PSCs
as contracting/agreement officers would
be a benefit to the Agency. It would
relieve USAID staff from the
administrative burden of processing
deviations and exceptions currently
required in Agency regulation and
ultimately result in cost savings to the
Agency.
USAID is seeking comments on the
proposed rule as described below:
Designation of U.S. personal services
contractors as contracting officers and
agreement officers.
The U.S. Agency for International
Development (USAID) is located in
offices in over 80 countries with
programs in over 100 nations. USAID
operates in a fluid environment
responding to a myriad of crises such as
war, natural disasters, epidemics, as
well as working towards its long term
mission of reducing poverty,
strengthening democratic governance,
and helping people emerge from
humanitarian crises and progress
beyond assistance.
The current warranted work force to
manage these efforts consists of 120 US
direct-hire foreign service officers
overseas, 84 direct-hire civil service
officers, 63 warranted foreign service
executive officers, 10 warranted US
PSCs, and eleven warranted CCN PSCs.
Additionally, the foreign service
contracting staff has one of the highest
attrition rates in USAID’s work force
that needs to be supplemented by
additional personnel. There has been a
decrease of over 20% in the Agency’s
direct-hire contracting officer staff from
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2016 to 2018. The ability to designate
US PSCs as contracting/agreement
officers will help offset this decrease in
the number of warranted direct-hire
civil service and foreign service
employees and increase the capacity of
the Agency’s acquisition workforce to
process actions in an expeditious
manner.
Currently, a US PSC can be
designated as a contracting officer only
when a deviation from AIDAR 701.603–
70 is approved; and when the Assistant
Administrator for the Bureau for
Management (AA/M) approves an
exception in accordance with AIDAR
Appendix D 4(b)(3)e. The proposed rule
will also reduce the administrative
burden on Management Bureau
employees in processing requests for
deviations and exceptions, allowing
them to focus on other priorities.
US PSCs will be designated as
contracting/agreement officers similar to
the direct-hire employees upon meeting
the requirements in FAR subpart 1.6
and the Agency’s warrant program
requirements.
Designation of Cooperating Country
Nationals personal services contractors
as contracting officers and agreement
officers.
In 2011, USAID approved a two-year
Worldwide CCN Administrative
Contracting and Agreement Officer
(ACO/AAO) Pilot Warrant Program. The
purposes of this program were to
address the shortage of USAID
contracting/agreement officers, alleviate
the workload of contracting/agreement
officers, and build long-term, host
country technical capacity to materially
assist the Missions with procurement
responsibility.
USAID made a strategic decision to
create a cadre of highly qualified CCN
PSCs, who demonstrated high potential
for assuming responsibilities to serve as
administrative contracting/agreement
officers within designated Missions. The
program evolved into a permanent
program in 2014, as detailed below.
During the two phases of the program,
USAID has issued a total of 12 CCN
warrants. Currently, there are eight
warranted CCN administrative
contracting/agreement officers. By the
end of calendar year 2018, the Agency
anticipates that there will be
approximately 10 warranted CCN PSCs
contracting/agreement officers. While a
seemingly small number, it would
represent a five percent increase in
USAID’s overseas US direct-hire
warranted contracting/agreement
officers.
When designing the CCN Pilot
Warrant Program, USAID consulted
with the Senior Procurement Executive
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at the State Department and the USAID
employee unions. The State
Department’s SPE advised that State
conducted a similar pilot several years
ago, to great success. They now have a
permanent program that extends limited
authority to their locally-employed staff
in selected countries. The vice president
of the American Foreign Service
Association concurred with the Pilot,
and was pleased by several of its
protections.
Based on that two-year pilot program,
revisions were made to the program
structure to better suit the Agency’s
needs before the permanent program
was launched in September 2014.
USAID eliminated the portion of the
program that allowed for third country
nationals to receive warrants.
Participation was broadened by the
revision of qualifications and inclusion
of full obligation warrant authority up to
the simplified acquisition threshold of
$150,000 per transaction and an annual
cumulative amount of $1 million at the
potential CCN Grade 13 Level to assist
the Missions’ procurement function. To
mitigate CCN inexperience from leading
to mistakes or malfeasance, the revised
2014 CCN Warrant Program included
three levels of obligation authority and
non-monetary administrative
responsibility correlating to CCN grade/
experience within the acquisition
backstop. Increasing degrees of
responsibility and/or obligation
authority, as applicable, were granted.
The levels of contracting/agreement
officer responsibilities designated to a
CCN was based on the needs of each
mission, complexity and dollar value of
the acquisitions, and the individual’s
experience, training, education,
business acumen, judgment, reputation
and grade level.
After implementing the 2014 CCN
PSC warrant program for almost six
years (including the pilot period before
2014), USAID is further revising the
program based on Agency needs,
experience with the current program,
and in response to public comments
received under the proposed rule at 81
FR 55405 published in the Federal
Register on August 19, 2016. The new
program will have a single warrant level
that will combine the first two warrant
levels from the 2014 program. This new
warrant level will be available to
qualified CCN PSCs at specific grade
levels who meet training, years of
experience, and education
requirements. This warrant authority
delegates select contract administration
functions listed in (48 CFR) FAR
42.302(a), including, for example,
conducting post-award orientation
conferences, approving contractors’
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requests for payments under the
progress payments or performancebased payments clauses. This warrant
authority will also include the ability to
obligate incremental funding of any
amount within the scope and total
estimated cost of a contract (to include
task orders and purchase orders). This
change in the CCN warrant program also
responds to a request from some USAID
Missions, where assistance with
incremental-funding actions is needed.
The revised warrant program also
eliminates the third warrant level set at
the simplified acquisition threshold.
This change responds to several public
comments received under the proposed
rule at 81 FR 55405 published in the
Federal Register on August 19, 2016.
Authorizing CCNs to execute new
awards on behalf of the U.S.
Government had inherent risks that
could not be sufficiently mitigated. As
such, USAID decided to eliminate the
simplified acquisition threshold
warrant. Additionally, no simplified
acquisition threshold warrants had been
issued under the 2014 CCN warrant
program.
Analysis of risk associated with
designating Non-U.S. citizens as
contracting and agreement officers.
While many CCNs that work for
USAID do so for many years with
demonstrated commitment to the
United States mission in their country,
non-U.S. citizens with contracting
officer authorities inherently present
additional risks, including litigation risk
for the Government. Since CCNs are
ingrained in their communities and
economic markets, there can be greater
risk of procurement integrity issues with
taxpayer funds or local suits brought
directly against the CCN for actions
taken in their official capacity. In suits
against the U.S., a CCN might have less
incentive to act as a witness for the
Government’s defense as a non-citizen.
Prior to establishing the permanent CCN
warrant program, the Agency reviewed
additional risks associated with issuing
contracting/agreement officer warrants
to non-U.S. citizens who are not directhire employees of USAID. In particular,
such factors as proper accountability,
adequate security considerations,
conflicts of interest, and appropriate
legal jurisdiction over the employee
were considered. Adequate management
controls and warrant limitations
established under the CCN PSC warrant
program, as discussed below, were
established to mitigate such risks.
To address the risks associated with
adequate accountability, commitment to
USAID, and conflict of interest, the
warrant program requires candidates for
the CCN PSC warrant program to show
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27747
commitment to the profession and
USAID by meeting stringent acquisition
competencies, education and training
requirements. In addition to meeting
these requirements, potential candidates
must have extensive experience in
direct U.S. Federal Government
contracting/assistance and clearly
demonstrate professional and ethical
behavior. When reviewing applications
for a CCN PSC warrant, the Agency
contacts past performance references
(typically, the candidate’s last three
Supervisory Contracting Officers) and
any other sources deemed appropriate
for signs of potential risks or cautions
that may be detrimental to the
responsibilities inherent in this
Program. The candidate’s supervisor
must also attest to the candidate’s
education, training, experience,
business acumen, judgment, character,
reputation and ethical behavior.
Additionally, the Program requires
the CCN contracting officer’s supervisor
to closely and frequently monitor the
CCN PSC’s work and review
performance and progress every six
months. The review includes an
assessment of all actions where the
warrant was used. This review is
followed by periodic reviews conducted
by the Bureau for Management, Office of
Acquisition and Assistance, Evaluation
Division, which is responsible for the
program implementation.
Warranted CCN PSCs will support the
functions of the overseas Mission’s
Office of Acquisition & Assistance
(A&A), which typically include
acquisition and assistance awards
implementing the Agency’s foreign
assistance programs and activities. In
part to mitigate litigation risks,
warranted CCN PSCs are currently not
delegated authority to make new awards
or execute any personal services
contracts. The program also limits
delegated authority for select contract
administration functions listed in (48
CFR) FAR 42.302(a), specifically, the
contracting officer functions in which
disputes or possible legal challenges
may arise due to decisions of the
contracting officer, functions related to
novation and contractor name changes,
which may be a result of changes in a
contractor’s business structure as
governed under applicable U.S. state
law and other functions based on U.S.
state laws, functions related to small
business contracting matters and those
requiring extensive knowledge of
specific U.S. laws and government-wide
policies not specifically related to
contracting. Accordingly, the functions
specified in items 5–7, 9–12, 18, 21–26,
29, 32, 50, 52–55, 62–63, 66 and 68–71
of (48 CFR) FAR 42.302(a) will not be
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redelegated to CCN PSC contracting
officers.
To address conflict of interest and
procurement integrity concerns, the
program relies on the standard clause
entitled ‘‘Compliance with Laws and
Regulations Applicable Abroad’’,
included in all personal services
contracts with CCNs, that mandates
compliance with the Standards of
Conduct for Executive Branch
Employees. These standards, available
at https://www2.oge.gov/web/oge.nsf/
All%20Documents/5D633072D0B2D
B5085257E96006A90E7?opendocument,
contain two provisions addressing
financial interests that conflict with an
individual’s official duties. The first
provision, entitled ‘‘Disqualifying
financial interests,’’ prohibits an
employee from participating in an
official government capacity in a matter
in which he has a financial interest or
in which his spouse, minor child,
employer, or any one of several other
specified persons has a financial
interest. The second provision, entitled
‘‘Prohibited financial interests,’’
contains authority by which agencies
may prohibit employee from acquiring
or retaining certain financial interests.
To address the security concerns, the
Program uses the current process, in
which the USAID Office of Security and
Department of State Office of Security
conduct background checks on potential
personal service contractors.
Recognizing the fact that some
countries may not have adequate legal
systems or may be unwilling to provide
assistance in prosecuting or defending
their citizens for alleged U.S.
procurement infractions, the CCN PSC
Warrant Program established the
following management controls
designed to minimize the risk that such
legal actions might be necessary:
—Stringent eligibility criteria,
—Inability for CCN PSCs to enter into
new awards,
—CCN participation in this program is
limited to two candidates per overseas
mission. This limitation may be
expanded only if it is deemed by the
Senior Procurement Executive to be in
the best interest of the Agency.
—Ongoing risk assessments are
performed throughout the Program
implementation to assure compliance
with the program requirements. The
warrant program may be revised as a
result of these assessments.
Regulatory authorities and
limitations.
(48 CFR) FAR part 1 establishes the
authority for Agency heads to select and
appoint contracting officers and it does
not specify that contracting officers
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must be U.S. citizen direct-hire
employees of the Federal government.
(48 CFR) FAR subpart 7.5 includes
contracting officer duties in the list of
inherently governmental functions or
functions that must be treated as such,
but does not exclude personal services
contractors hired under a statutory
authority from performing such
functions.
(48 CFR) AIDAR 701.603–70 currently
limits delegations of contracting officer
authorities to U.S. citizen direct-hire
employees of the U.S. Government as a
matter of Agency policy. However,
section 4(b)(3) of (48 CFR) AIDAR
Appendix D and the corresponding
section of Appendix J contain an
exception for PSCs to be delegated
authority to sign obligating and
subobligating documents with approval
from the Assistant Administrator for the
Bureau of Management.
In September 2014, USAID issued a
two-year class deviation from 48 CFR
AIDAR 701.603–70 to establish the
permanent CCN PSC warrant program to
allow a limited number of selected and
qualified CCN PSCs to be delegated
contracting officer authorities. In
conjunction with the approval of the
class deviation described above, the
Assistant Administrator for the Bureau
for Management (AA/M) approved a
class exception to the limitations in (48
CFR) AIDAR Appendix J4(b)(3).
Subsequent two-year class deviations
were issued for the CCN warrant
program in September 2016 and
September 2018. The September 2018
class deviation also allows for the
designation of US PSCs as contracting
officers without requiring prior approval
from AA/M. By this rule USAID is
proposing to revise (48 CFR) AIDAR to
permanently authorize delegation of
contracting/agreement officer
authorities to a limited number of
selected and qualified US PSCs and
CCN PSCs.
USAID is seeking public comments on
the proposed changes to the AIDAR.
These proposed changes will eliminate
the need for an exception from AA/M
currently required before the Director,
Bureau for Management, Office of
Acquisition and Assistance (M/OAA
Director) can designate qualified US and
CCN PSCs as contracting/agreement
officers. The proposed changes also
eliminate the need for a class deviation
from AIDAR 701.603–70. As the
M/OAA Director both approves AIDAR
class deviations and delegates
individual warrant authority this
proposed change will eliminate a
redundancy in the designation of
qualified US and CCN PSCs as
contracting/agreement officers.
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C. Impact Assessment
(1) Regulatory Planning and Review.
Under E.O. 12866, the Office of
Information and Regulatory Affairs
(OIRA) has determined this regulatory
action is ‘‘significant’’ and therefore
subject to the requirements of the E.O.
and subject to review by the Office of
Management and Budget (OMB). OIRA
has determined that this Rule is not an
‘‘economically significant regulatory
action’’ under Section 3(f)(1) of E.O.
12866. This proposed rule is not a major
rule under 5 U.S.C. 804.
This rule codifies the Agency’s
deviation from the current rule in the
CFR. The costs calculated in this section
are based on conservative estimates to
illustrate the impact of these revisions
from the baseline costs of the current
rule. The proposed rule’s cost benefit is
due to the ability to designate CCN PSCs
as Contracting Officers, eliminating the
need to assign a warranted Foreign
Service Officers (FSOs) to a Mission. It
costs the Agency approximately an
average of $250,000 per year to post a
warranted FSO to a Mission. This figure
is based upon the Foreign Service pay
scale and data from the Department of
State’s Office of Allowances.
The Agency’s warranted FSO staff is
comprised of individuals at the FS–4 to
the FS–1 grade levels with the majority
at the FS–2 and FS–3 grade levels. The
$250,000 figure assumes a base salary of
$100,000, which is within an average
range of the FS–2 and FS–3 grade levels.
An FSO’s annual compensation and
benefits package easily exceeds this base
salary and can vary based upon the
FSO’s number of dependents and a
variety of allowances that may be
claimed including cost of living
allowance, post differential, danger pay,
separate maintenance allowance,
housing allowance, education
allowance, home leave, etc. Based upon
data pulled from the Department of
State’s Office of Allowances, $250,000
per annum is considered a conservative
estimate of the cost to field a warranted
FSO. Given that the Agency currently
has eleven warranted CCN PSCs, this
eliminates the need to post the
equivalent number of warranted FSOs,
resulting in annual cost savings to the
Agency of approximately $2.75 million.
The ability to issue a warrant to PSCs
does not result in any increase in costs
to the Agency. Eligible CCN PSCs live
in country and are already working at
the Missions. There is also no additional
cost to the Agency to process a PSC
warrant as compared to a US direct-hire
employee.
As a regulatory matter, the cost of the
rule making process to incorporate these
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revisions into the regulation is justified.
The Agency requires these revisions in
order to eliminate the administrative
burden of processing deviations and
exceptions and to realize a cost savings
resulting from the ability to issue CCN
PSCs warrants.
(2) 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.
(3) 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 701 and
Appendices D and J to Chapter 7
Government procurement.
For the reasons discussed in the
preamble, USAID proposes to amend 48
CFR Chapter 7 as set forth below:
1. The authority citation for 48 CFR 7
part 701 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.
PART 701—FEDERAL ACQUISITION
REGULATION SYSTEM
Subpart 701.6—Career Development,
Contracting Authority, and
Responsibilities
2. Revise 701.603–70 to read as
follows:
jbell on DSK3GLQ082PROD with PROPOSALS
■
VerDate Sep<11>2014
16:49 Jun 13, 2019
Jkt 247001
701.603–70
officers.
Designation of contracting
A contracting officer represents the
U.S. Government through the exercise of
his/her delegated authority to negotiate,
sign, and administer contracts on behalf
of the U.S. Government. The contracting
officer’s duties are sensitive,
specialized, and responsible. To ensure
proper accountability, and to preclude
possible security, conflict of interest, or
jurisdiction problems, USAID
contracting officers must be U.S. citizen
direct-hire employees of the U.S.
Government. However, Director, Bureau
for Management, Office of Acquisition
and Assistance (M/OAA Director) may
also designate a U.S. Personal Services
Contractor (USPSC) or a Cooperating
Country National Personal Services
Contractor (CCNPSC) as a contracting
officer with a specific level of warrant
authority. To qualify for a designation as
a contracting officer, an individual must
meet the requirements in FAR subpart
1.6 and the Agency’s applicable warrant
program.
■ 3. In appendix D to chapter 7, revise
paragraph 4(b)(3)b. and add paragraph
(b)(4) to read as follows:
Appendix D to Chapter 7—Direct
USAID Contracts With a U.S. Citizen or
a U.S. Resident Alien for Personal
Services Abroad
4—Policy * * *
(b) * * *
(3) * * *
b. They may not be delegated authority to
sign obligating or subobligating documents
except when specifically designated as a
contracting officer or an agreement officer in
accordance FAR subpart 1.6 and the
Agency’s applicable warrant program.
*
*
*
*
*
(4) Exceptions. The Assistant
Administrator Bureau for Management
PO 00000
Frm 00007
Fmt 4702
Sfmt 9990
(AA/M) must approve exceptions to the
limitations in paragraph (b)(3). Approval of
an exception by the AA/M is not required
when the Director, Bureau for Management,
Office of Acquisition and Assistance (M/
OAA Director) designates a USPSC as a
contracting officer or an agreement officer.
*
*
*
*
*
4. In appendix J to chapter 7, under
the heading ‘‘4. Policy,’’ revise
paragraphs (b)(3)b. and (b)(4) to read as
follows:
■
Appendix J to Chapter 7—Direct USAID
Contracts With a Cooperating Country
National and With a Third Country
National for Personal Services Abroad
*
*
*
*
*
*
*
*
4—Policy
*
*
(b) * * *
(3) * * *
b. They may not be delegated authority to
sign obligating or subobligating documents
except when a cooperating country national
personal services contractor is specifically
designated as a contracting officer or an
agreement officer in accordance FAR subpart
1.6 and the Agency’s applicable warrant
program.
*
*
*
*
*
(4) Exceptions. The Assistant
Administrator Bureau for Management
(AA/M) must approve exceptions to the
limitations in paragraph (b)(3). Approval of
an exception by the AA/M is not required
when the Director, Bureau for Management,
Office of Acquisition and Assistance
(M/OAA Director) designates a cooperating
country national personal services contractor
as a contracting officer or an agreement
officer.
*
*
*
*
*
Mark Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2019–12270 Filed 6–13–19; 8:45 am]
BILLING CODE 6116–01–P
E:\FR\FM\14JNP1.SGM
14JNP1
Agencies
[Federal Register Volume 84, Number 115 (Friday, June 14, 2019)]
[Proposed Rules]
[Pages 27745-27749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12270]
=======================================================================
-----------------------------------------------------------------------
AGENCY FOR INTERNATIONAL DEVELOPMENT
48 CFR Chapter 7
RIN 0412-AA94
U. S. Agency for International Development Acquisition Regulation
(AIDAR): Designation of Personal Services Contractors (PSCs) as
Contracting Officers and Agreement Officers
AGENCY: U.S. Agency for International Development.
ACTION: Proposed rule.
-----------------------------------------------------------------------
[[Page 27746]]
SUMMARY: The U.S. Agency for International Development (USAID) proposes
to amend the Agency for International Development Acquisition
Regulation (AIDAR) to allow for the designation of U.S. Personal
Services Contractors (US PSCs) and Cooperating Country National
Personal Services Contractors (CCN PSCs) as contracting officers and
agreement officers. The proposed revisions will address a shortage of
U.S. direct-hire staff by delegating the proposed authorities to
qualified US and CCN PSCs. The delegation of limited contracting/
agreement officer authorities to a select number of CCN PSCs will also
bolster the Agency to succeed in terms of building long-term, host
country technical capacity to materially assist the Missions with
procurement responsibility.
DATES: Comments must be received no later than August 13, 2019.
ADDRESSES: Address all comments concerning this notice to Anne
Sattgast, Bureau for Management, Office of Acquisition and Assistance,
Policy Division (M/OAA/P), Room 867-D, SA-44, Washington, DC 20523-
2052. Submit comments, identified by title of the action and Regulatory
Information Number (RIN) by any of the following methods:
1. Through the Federal eRulemaking Portal at https://www.regulations.gov by following the instructions for submitting
comments.
2. By Mail addressed to: USAID, Bureau for Management, Office of
Acquisition & Assistance, Policy Division, Room 867-D, SA-44, 1300
Pennsylvania Ave. NW, Washington, DC 20523-2052.
FOR FURTHER INFORMATION CONTACT: Anne Sattgast, Telephone: 202-567-5094
or Email: [email protected].
SUPPLEMENTARY INFORMATION:
A. Instructions
All comments must be in writing and submitted through one of the
methods specified in the Addresses section above. All submissions must
include the title of the action and RIN for this rulemaking. Please
include your name, title, organization, postal address, telephone
number, and email address in the text of the message.
Please note that USAID recommends sending all comments to the
Federal eRulemaking Portal because security screening precautions have
slowed the delivery and dependability of surface mail to USAID/
Washington.
At the end of the comment period and until finalization of the
action, all comments will be made available at https://www.regulations.gov for public review without change, including any
personal information provided. We recommend you do not submit
information that you consider Confidential Business Information (CBI)
or any information that is otherwise protected from disclosure by
statute. USAID will only address substantive comments on the rule.
Comments that are insubstantial or outside the scope of the rule may
not be considered.
B. Background
On August 19, 2016 USAID published a proposed rule at 81 FR 55405
revising the U.S. Agency for International Development Acquisition
Regulation (AIDAR) to incorporate the USAID Cooperating Country
National Warrant Program into the regulation. The proposed rule was
subsequently withdrawn on June 23, 2017, at 82 FR 28617, due to changes
in the regulatory requirements and processes.
USAID has further analyzed the need for contracting/agreement
officers and has determined that the ability to designate both US PSCs
and CCN PSCs as contracting/agreement officers would be a benefit to
the Agency. It would relieve USAID staff from the administrative burden
of processing deviations and exceptions currently required in Agency
regulation and ultimately result in cost savings to the Agency.
USAID is seeking comments on the proposed rule as described below:
Designation of U.S. personal services contractors as contracting
officers and agreement officers.
The U.S. Agency for International Development (USAID) is located in
offices in over 80 countries with programs in over 100 nations. USAID
operates in a fluid environment responding to a myriad of crises such
as war, natural disasters, epidemics, as well as working towards its
long term mission of reducing poverty, strengthening democratic
governance, and helping people emerge from humanitarian crises and
progress beyond assistance.
The current warranted work force to manage these efforts consists
of 120 US direct-hire foreign service officers overseas, 84 direct-hire
civil service officers, 63 warranted foreign service executive
officers, 10 warranted US PSCs, and eleven warranted CCN PSCs.
Additionally, the foreign service contracting staff has one of the
highest attrition rates in USAID's work force that needs to be
supplemented by additional personnel. There has been a decrease of over
20% in the Agency's direct-hire contracting officer staff from 2016 to
2018. The ability to designate US PSCs as contracting/agreement
officers will help offset this decrease in the number of warranted
direct-hire civil service and foreign service employees and increase
the capacity of the Agency's acquisition workforce to process actions
in an expeditious manner.
Currently, a US PSC can be designated as a contracting officer only
when a deviation from AIDAR 701.603-70 is approved; and when the
Assistant Administrator for the Bureau for Management (AA/M) approves
an exception in accordance with AIDAR Appendix D 4(b)(3)e. The proposed
rule will also reduce the administrative burden on Management Bureau
employees in processing requests for deviations and exceptions,
allowing them to focus on other priorities.
US PSCs will be designated as contracting/agreement officers
similar to the direct-hire employees upon meeting the requirements in
FAR subpart 1.6 and the Agency's warrant program requirements.
Designation of Cooperating Country Nationals personal services
contractors as contracting officers and agreement officers.
In 2011, USAID approved a two-year Worldwide CCN Administrative
Contracting and Agreement Officer (ACO/AAO) Pilot Warrant Program. The
purposes of this program were to address the shortage of USAID
contracting/agreement officers, alleviate the workload of contracting/
agreement officers, and build long-term, host country technical
capacity to materially assist the Missions with procurement
responsibility.
USAID made a strategic decision to create a cadre of highly
qualified CCN PSCs, who demonstrated high potential for assuming
responsibilities to serve as administrative contracting/agreement
officers within designated Missions. The program evolved into a
permanent program in 2014, as detailed below. During the two phases of
the program, USAID has issued a total of 12 CCN warrants. Currently,
there are eight warranted CCN administrative contracting/agreement
officers. By the end of calendar year 2018, the Agency anticipates that
there will be approximately 10 warranted CCN PSCs contracting/agreement
officers. While a seemingly small number, it would represent a five
percent increase in USAID's overseas US direct-hire warranted
contracting/agreement officers.
When designing the CCN Pilot Warrant Program, USAID consulted with
the Senior Procurement Executive
[[Page 27747]]
at the State Department and the USAID employee unions. The State
Department's SPE advised that State conducted a similar pilot several
years ago, to great success. They now have a permanent program that
extends limited authority to their locally-employed staff in selected
countries. The vice president of the American Foreign Service
Association concurred with the Pilot, and was pleased by several of its
protections.
Based on that two-year pilot program, revisions were made to the
program structure to better suit the Agency's needs before the
permanent program was launched in September 2014. USAID eliminated the
portion of the program that allowed for third country nationals to
receive warrants. Participation was broadened by the revision of
qualifications and inclusion of full obligation warrant authority up to
the simplified acquisition threshold of $150,000 per transaction and an
annual cumulative amount of $1 million at the potential CCN Grade 13
Level to assist the Missions' procurement function. To mitigate CCN
inexperience from leading to mistakes or malfeasance, the revised 2014
CCN Warrant Program included three levels of obligation authority and
non-monetary administrative responsibility correlating to CCN grade/
experience within the acquisition backstop. Increasing degrees of
responsibility and/or obligation authority, as applicable, were
granted. The levels of contracting/agreement officer responsibilities
designated to a CCN was based on the needs of each mission, complexity
and dollar value of the acquisitions, and the individual's experience,
training, education, business acumen, judgment, reputation and grade
level.
After implementing the 2014 CCN PSC warrant program for almost six
years (including the pilot period before 2014), USAID is further
revising the program based on Agency needs, experience with the current
program, and in response to public comments received under the proposed
rule at 81 FR 55405 published in the Federal Register on August 19,
2016. The new program will have a single warrant level that will
combine the first two warrant levels from the 2014 program. This new
warrant level will be available to qualified CCN PSCs at specific grade
levels who meet training, years of experience, and education
requirements. This warrant authority delegates select contract
administration functions listed in (48 CFR) FAR 42.302(a), including,
for example, conducting post-award orientation conferences, approving
contractors' requests for payments under the progress payments or
performance-based payments clauses. This warrant authority will also
include the ability to obligate incremental funding of any amount
within the scope and total estimated cost of a contract (to include
task orders and purchase orders). This change in the CCN warrant
program also responds to a request from some USAID Missions, where
assistance with incremental-funding actions is needed.
The revised warrant program also eliminates the third warrant level
set at the simplified acquisition threshold. This change responds to
several public comments received under the proposed rule at 81 FR 55405
published in the Federal Register on August 19, 2016. Authorizing CCNs
to execute new awards on behalf of the U.S. Government had inherent
risks that could not be sufficiently mitigated. As such, USAID decided
to eliminate the simplified acquisition threshold warrant.
Additionally, no simplified acquisition threshold warrants had been
issued under the 2014 CCN warrant program.
Analysis of risk associated with designating Non-U.S. citizens as
contracting and agreement officers.
While many CCNs that work for USAID do so for many years with
demonstrated commitment to the United States mission in their country,
non-U.S. citizens with contracting officer authorities inherently
present additional risks, including litigation risk for the Government.
Since CCNs are ingrained in their communities and economic markets,
there can be greater risk of procurement integrity issues with taxpayer
funds or local suits brought directly against the CCN for actions taken
in their official capacity. In suits against the U.S., a CCN might have
less incentive to act as a witness for the Government's defense as a
non-citizen. Prior to establishing the permanent CCN warrant program,
the Agency reviewed additional risks associated with issuing
contracting/agreement officer warrants to non-U.S. citizens who are not
direct-hire employees of USAID. In particular, such factors as proper
accountability, adequate security considerations, conflicts of
interest, and appropriate legal jurisdiction over the employee were
considered. Adequate management controls and warrant limitations
established under the CCN PSC warrant program, as discussed below, were
established to mitigate such risks.
To address the risks associated with adequate accountability,
commitment to USAID, and conflict of interest, the warrant program
requires candidates for the CCN PSC warrant program to show commitment
to the profession and USAID by meeting stringent acquisition
competencies, education and training requirements. In addition to
meeting these requirements, potential candidates must have extensive
experience in direct U.S. Federal Government contracting/assistance and
clearly demonstrate professional and ethical behavior. When reviewing
applications for a CCN PSC warrant, the Agency contacts past
performance references (typically, the candidate's last three
Supervisory Contracting Officers) and any other sources deemed
appropriate for signs of potential risks or cautions that may be
detrimental to the responsibilities inherent in this Program. The
candidate's supervisor must also attest to the candidate's education,
training, experience, business acumen, judgment, character, reputation
and ethical behavior.
Additionally, the Program requires the CCN contracting officer's
supervisor to closely and frequently monitor the CCN PSC's work and
review performance and progress every six months. The review includes
an assessment of all actions where the warrant was used. This review is
followed by periodic reviews conducted by the Bureau for Management,
Office of Acquisition and Assistance, Evaluation Division, which is
responsible for the program implementation.
Warranted CCN PSCs will support the functions of the overseas
Mission's Office of Acquisition & Assistance (A&A), which typically
include acquisition and assistance awards implementing the Agency's
foreign assistance programs and activities. In part to mitigate
litigation risks, warranted CCN PSCs are currently not delegated
authority to make new awards or execute any personal services
contracts. The program also limits delegated authority for select
contract administration functions listed in (48 CFR) FAR 42.302(a),
specifically, the contracting officer functions in which disputes or
possible legal challenges may arise due to decisions of the contracting
officer, functions related to novation and contractor name changes,
which may be a result of changes in a contractor's business structure
as governed under applicable U.S. state law and other functions based
on U.S. state laws, functions related to small business contracting
matters and those requiring extensive knowledge of specific U.S. laws
and government-wide policies not specifically related to contracting.
Accordingly, the functions specified in items 5-7, 9-12, 18, 21-26, 29,
32, 50, 52-55, 62-63, 66 and 68-71 of (48 CFR) FAR 42.302(a) will not
be
[[Page 27748]]
redelegated to CCN PSC contracting officers.
To address conflict of interest and procurement integrity concerns,
the program relies on the standard clause entitled ``Compliance with
Laws and Regulations Applicable Abroad'', included in all personal
services contracts with CCNs, that mandates compliance with the
Standards of Conduct for Executive Branch Employees. These standards,
available at https://www2.oge.gov/web/oge.nsf/All%20Documents/5D633072D0B2DB5085257E96006A90E7?opendocument, contain two provisions
addressing financial interests that conflict with an individual's
official duties. The first provision, entitled ``Disqualifying
financial interests,'' prohibits an employee from participating in an
official government capacity in a matter in which he has a financial
interest or in which his spouse, minor child, employer, or any one of
several other specified persons has a financial interest. The second
provision, entitled ``Prohibited financial interests,'' contains
authority by which agencies may prohibit employee from acquiring or
retaining certain financial interests.
To address the security concerns, the Program uses the current
process, in which the USAID Office of Security and Department of State
Office of Security conduct background checks on potential personal
service contractors.
Recognizing the fact that some countries may not have adequate
legal systems or may be unwilling to provide assistance in prosecuting
or defending their citizens for alleged U.S. procurement infractions,
the CCN PSC Warrant Program established the following management
controls designed to minimize the risk that such legal actions might be
necessary:
--Stringent eligibility criteria,
--Inability for CCN PSCs to enter into new awards,
--CCN participation in this program is limited to two candidates per
overseas mission. This limitation may be expanded only if it is deemed
by the Senior Procurement Executive to be in the best interest of the
Agency.
--Ongoing risk assessments are performed throughout the Program
implementation to assure compliance with the program requirements. The
warrant program may be revised as a result of these assessments.
Regulatory authorities and limitations.
(48 CFR) FAR part 1 establishes the authority for Agency heads to
select and appoint contracting officers and it does not specify that
contracting officers must be U.S. citizen direct-hire employees of the
Federal government. (48 CFR) FAR subpart 7.5 includes contracting
officer duties in the list of inherently governmental functions or
functions that must be treated as such, but does not exclude personal
services contractors hired under a statutory authority from performing
such functions.
(48 CFR) AIDAR 701.603-70 currently limits delegations of
contracting officer authorities to U.S. citizen direct-hire employees
of the U.S. Government as a matter of Agency policy. However, section
4(b)(3) of (48 CFR) AIDAR Appendix D and the corresponding section of
Appendix J contain an exception for PSCs to be delegated authority to
sign obligating and subobligating documents with approval from the
Assistant Administrator for the Bureau of Management.
In September 2014, USAID issued a two-year class deviation from 48
CFR AIDAR 701.603-70 to establish the permanent CCN PSC warrant program
to allow a limited number of selected and qualified CCN PSCs to be
delegated contracting officer authorities. In conjunction with the
approval of the class deviation described above, the Assistant
Administrator for the Bureau for Management (AA/M) approved a class
exception to the limitations in (48 CFR) AIDAR Appendix J4(b)(3).
Subsequent two-year class deviations were issued for the CCN warrant
program in September 2016 and September 2018. The September 2018 class
deviation also allows for the designation of US PSCs as contracting
officers without requiring prior approval from AA/M. By this rule USAID
is proposing to revise (48 CFR) AIDAR to permanently authorize
delegation of contracting/agreement officer authorities to a limited
number of selected and qualified US PSCs and CCN PSCs.
USAID is seeking public comments on the proposed changes to the
AIDAR. These proposed changes will eliminate the need for an exception
from AA/M currently required before the Director, Bureau for
Management, Office of Acquisition and Assistance (M/OAA Director) can
designate qualified US and CCN PSCs as contracting/agreement officers.
The proposed changes also eliminate the need for a class deviation from
AIDAR 701.603-70. As the M/OAA Director both approves AIDAR class
deviations and delegates individual warrant authority this proposed
change will eliminate a redundancy in the designation of qualified US
and CCN PSCs as contracting/agreement officers.
C. Impact Assessment
(1) Regulatory Planning and Review. Under E.O. 12866, the Office of
Information and Regulatory Affairs (OIRA) has determined this
regulatory action is ``significant'' and therefore subject to the
requirements of the E.O. and subject to review by the Office of
Management and Budget (OMB). OIRA has determined that this Rule is not
an ``economically significant regulatory action'' under Section 3(f)(1)
of E.O. 12866. This proposed rule is not a major rule under 5 U.S.C.
804.
This rule codifies the Agency's deviation from the current rule in
the CFR. The costs calculated in this section are based on conservative
estimates to illustrate the impact of these revisions from the baseline
costs of the current rule. The proposed rule's cost benefit is due to
the ability to designate CCN PSCs as Contracting Officers, eliminating
the need to assign a warranted Foreign Service Officers (FSOs) to a
Mission. It costs the Agency approximately an average of $250,000 per
year to post a warranted FSO to a Mission. This figure is based upon
the Foreign Service pay scale and data from the Department of State's
Office of Allowances.
The Agency's warranted FSO staff is comprised of individuals at the
FS-4 to the FS-1 grade levels with the majority at the FS-2 and FS-3
grade levels. The $250,000 figure assumes a base salary of $100,000,
which is within an average range of the FS-2 and FS-3 grade levels. An
FSO's annual compensation and benefits package easily exceeds this base
salary and can vary based upon the FSO's number of dependents and a
variety of allowances that may be claimed including cost of living
allowance, post differential, danger pay, separate maintenance
allowance, housing allowance, education allowance, home leave, etc.
Based upon data pulled from the Department of State's Office of
Allowances, $250,000 per annum is considered a conservative estimate of
the cost to field a warranted FSO. Given that the Agency currently has
eleven warranted CCN PSCs, this eliminates the need to post the
equivalent number of warranted FSOs, resulting in annual cost savings
to the Agency of approximately $2.75 million.
The ability to issue a warrant to PSCs does not result in any
increase in costs to the Agency. Eligible CCN PSCs live in country and
are already working at the Missions. There is also no additional cost
to the Agency to process a PSC warrant as compared to a US direct-hire
employee.
As a regulatory matter, the cost of the rule making process to
incorporate these
[[Page 27749]]
revisions into the regulation is justified. The Agency requires these
revisions in order to eliminate the administrative burden of processing
deviations and exceptions and to realize a cost savings resulting from
the ability to issue CCN PSCs warrants.
(2) 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.
(3) 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 701 and Appendices D and J to
Chapter 7
Government procurement.
For the reasons discussed in the preamble, USAID proposes to amend
48 CFR Chapter 7 as set forth below:
0
1. The authority citation for 48 CFR 7 part 701 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.
PART 701--FEDERAL ACQUISITION REGULATION SYSTEM
Subpart 701.6--Career Development, Contracting Authority, and
Responsibilities
0
2. Revise 701.603-70 to read as follows:
701.603-70 Designation of contracting officers.
A contracting officer represents the U.S. Government through the
exercise of his/her delegated authority to negotiate, sign, and
administer contracts on behalf of the U.S. Government. The contracting
officer's duties are sensitive, specialized, and responsible. To ensure
proper accountability, and to preclude possible security, conflict of
interest, or jurisdiction problems, USAID contracting officers must be
U.S. citizen direct-hire employees of the U.S. Government. However,
Director, Bureau for Management, Office of Acquisition and Assistance
(M/OAA Director) may also designate a U.S. Personal Services Contractor
(USPSC) or a Cooperating Country National Personal Services Contractor
(CCNPSC) as a contracting officer with a specific level of warrant
authority. To qualify for a designation as a contracting officer, an
individual must meet the requirements in FAR subpart 1.6 and the
Agency's applicable warrant program.
0
3. In appendix D to chapter 7, revise paragraph 4(b)(3)b. and add
paragraph (b)(4) to read as follows:
Appendix D to Chapter 7--Direct USAID Contracts With a U.S. Citizen or
a U.S. Resident Alien for Personal Services Abroad
4--Policy * * *
(b) * * *
(3) * * *
b. They may not be delegated authority to sign obligating or
subobligating documents except when specifically designated as a
contracting officer or an agreement officer in accordance FAR
subpart 1.6 and the Agency's applicable warrant program.
* * * * *
(4) Exceptions. The Assistant Administrator Bureau for
Management (AA/M) must approve exceptions to the limitations in
paragraph (b)(3). Approval of an exception by the AA/M is not
required when the Director, Bureau for Management, Office of
Acquisition and Assistance (M/OAA Director) designates a USPSC as a
contracting officer or an agreement officer.
* * * * *
0
4. In appendix J to chapter 7, under the heading ``4. Policy,'' revise
paragraphs (b)(3)b. and (b)(4) to read as follows:
Appendix J to Chapter 7--Direct USAID Contracts With a Cooperating
Country National and With a Third Country National for Personal
Services Abroad
* * * * *
4--Policy
* * * * *
(b) * * *
(3) * * *
b. They may not be delegated authority to sign obligating or
subobligating documents except when a cooperating country national
personal services contractor is specifically designated as a
contracting officer or an agreement officer in accordance FAR
subpart 1.6 and the Agency's applicable warrant program.
* * * * *
(4) Exceptions. The Assistant Administrator Bureau for
Management (AA/M) must approve exceptions to the limitations in
paragraph (b)(3). Approval of an exception by the AA/M is not
required when the Director, Bureau for Management, Office of
Acquisition and Assistance (M/OAA Director) designates a cooperating
country national personal services contractor as a contracting
officer or an agreement officer.
* * * * *
Mark Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2019-12270 Filed 6-13-19; 8:45 am]
BILLING CODE 6116-01-P