Agency for International Development Acquisition Regulation (AIDAR): Revisions to the Incentive Awards Program for Personal Services Contractors (PSCs), 61832-61835 [2019-20501]
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Federal Register / Vol. 84, No. 220 / Thursday, November 14, 2019 / Rules and Regulations
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2019–24657 Filed 11–13–19; 8:45 am]
BILLING CODE 6712–01–P
AGENCY FOR INTERNATIONAL
DEVELOPMENT
48 CFR Chapter 7
RIN 0412–AA93
Agency for International Development
Acquisition Regulation (AIDAR):
Revisions to the Incentive Awards
Program for Personal Services
Contractors (PSCs)
U.S. Agency for International
Development.
ACTION: Final rule.
AGENCY:
The rule amends the AIDAR’s
provisions that pertain to incentive
awards for personal services contracts
with individuals.
DATES: Effective Date: December 16,
2019.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Richard E. Spencer, Procurement
Analyst, Telephone: (202) 567–4781 or
email: rspencer@usaid.gov for
clarification of content or information
pertaining to status or publication
schedules. All communications
regarding this rule must cite AIDAR RIN
No. 0412–AA93.
SUPPLEMENTARY INFORMATION:
A. Proposed Rule and Requests for
Comment
USAID published a proposed rule in
the Federal Register at 84 FR 9739 on
March 18, 2019. The public comment
period ended May 17, 2019, and the
Agency received no comments on the
proposed rule. Therefore, USAID is
publishing this final rule without
change.
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B. Background
Over the last 27 years, USAID has
awarded personal services contracts to
individuals as necessary for the Agency
to carry out its mission in the United
States and overseas. USAID awards
PSCs with individuals based on
multiple authorities: (1) Section
636(a)(3) of the Foreign Assistance Act
of 1961, as amended (FAA, Section 2396
of Title 22 of the United States Code
[U.S.C.]), for personal services abroad;
(2) annual appropriations for Foreign
Operations for a maximum number of
PSCs in the United States (e.g., Section
7057(g) of Division K of Pub. L. 114–113
for Fiscal Year 2016); or (3) program-
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specific provisions of the FAA, the Food
for Peace Act, or an appropriations act
that authorizes the use of a broad range
of implementation authorities toward
those programmatic purposes
‘‘notwithstanding any other provision of
law’’ (e.g., FAA Section 491, Section
2292 of Title 22 of the U.S.C., which
authorizes international assistance ‘‘to
alleviate human suffering caused by
natural and manmade disasters . . .’’).
As of September 2015, approximately
eight (8) percent of USAID’s total
workforce were U.S. PSCs, and 47
percent were cooperating-country or
third-country national (CCN or TCN)
PSCs. The Agency’s overseas local staff
are CCNPSCs, with the exception of a
very few remaining Foreign Service
National (FSN) direct-hire employees.
Since the Agency depends on PSCs as
part of its workforce for its operations,
USAID seeks to recognize and motivate
excellence in the performance of their
contracts. Because PSCs are not
authorized to participate in programs
administered by the Office of Personnel
Management (OPM), in May 2004, thenAdministrator Andrew Natsios used the
Agency’s discretionary authority to
establish a separate incentive-awards
program for PSCs, distinct from the
Agency’s incentive awards program
authorized by OPM for the Agency’s
U.S. Direct-Hire (USDH) employees (see
5 U.S.C. 4501 et seq. regarding
incentive-awards programs for ‘‘superior
accomplishment’’ by employees within
the definitions of 5 U.S.C. 2105 and 5
CFR part 451). The Administrator
approved a deviation from Appendix D
of the AIDAR to expand the nonmonetary incentive-awards program for
PSCs to include limited monetary
awards such as ‘‘On The Spot’’ or
Special Act cash and Time-Off awards.
The Agency implemented the revised
monetary incentive-awards program for
PSCs under USAID Acquisition and
Assistance Policy Directive (AAPD 04–
15) issued on October 15, 2004, which
authorized USPSCs, and certain
TCNPSCs on an exceptional basis, to be
eligible for these three types of
monetary incentive awards under
programs managed by USAID’s
Missions, Bureaus, or Independent
Offices (M/B/IOs).
In March 2015, USAID’s Special
Awards Committee (SAC) conducted a
review of the Agency’s awards program
for its USDH employees. Following that
review, on December 22, 2015, thenActing Administrator Alfonso Lenhardt
approved a deviation to further expand
the Agency’s PSC Incentive Awards
program to include additional types of
monetary and non-monetary awards
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similar to those provided to USAID’s
USDH employees.
To implement the incentive-awards
programs for PSCs as approved by the
Agency in 2004 and 2015, this final rule
revises Appendices D and J of the
AIDAR to replace the deviations
approved in 2004 and 2015 and make
them permanent.
C. Discussion
This final rule amends the AIDAR to
establish a separate monetary and nonmonetary incentive-awards program to
recognize and reward individual PSCs
for their contributions to the
accomplishment of USAID’s mission,
goals, and objectives.
Based on Statute—Section 636(a)(3) of
the FAA, as amended; and by
regulation—Appendices D and J of the
AIDAR, PSCs are not allowed to
participate in any program administered
by OPM. Recognition of individual
accomplishments by PSCs has been
limited to non-monetary incentive
awards and certificates of appreciation.
However, based on deviations and
policy directives signed by the
Administrator and Acting Administrator
in 2004 and 2015, respectively, USAID
established an interim, separate
incentive-awards program to make PSCs
eligible to receive incentive awards
similar to those available under the
Agency’s incentive-awards program for
USDH employees.
USAID implements its incentiveawards program for USDH employees
under parameters set in Chapter 491 of
the Agency’s Automated Directives
System (ADS). The Agency will
incorporate the new PSC incentiveawards program authorized by this final
rule into Appendices D and J of the
AIDAR and implement it as described in
USAID’s PSC policy in ADS Chapter
309. Where appropriate, this incentiveawards program will closely parallel the
program for USDH employees. The
Agency will make any incentive award
payments from the same source of
funding used for each individual PSC’s
contract, and in all cases separately
from the pool of funds maintained for
incentive awards for USAID USDH
employees. Recognizing that PSCs
receive an annual pay-comparability
adjustment similar to what U.S. DirectHires receive, as well as an annual
within-grade salary increase for work
evaluated at the ‘‘satisfactory
performance’’ level, Agency policy
requires that these incentive awards be
for performance or a special act that
goes above and beyond the minimum
satisfactory performance required under
a contract. USAID will recognize and
encourage exceptional performance by
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Federal Register / Vol. 84, No. 220 / Thursday, November 14, 2019 / Rules and Regulations
PSCs when they perform special acts or
create innovations that contribute to
efficiency, economy, or other
improvements in U.S. Government
operations, in the same way USAID
recognizes superior performance by its
USDH employees. The proportion of
PSCs who receive cash awards at a M/
B/IO or at the Agency level, and the
total amount of the incentive awards,
will be consistent with, and will not
exceed, the Agency’s existing policy for
incentive awards to USDH employees,
as set by USAID’s Senior Management.
The Agency’s internal policies in ADS
Chapter 309 describe the criteria for
each incentive award, any cash or other
limitations associated with each
incentive award, how a PSC’s
supervisor(s) or others may nominate
individuals, and how such nominations
are reviewed and recommended for
approval. Nominations for the annual
Agency-level incentive awards generally
follow the same procedures, and use the
same documentation, as currently
required for USAID’s USDH employees.
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Regulatory Basis
Since the Agency depends on PSCs
and their contributions, and as the
statute, Section 636(a)(3) of the FAA of
1961, as amended, and the regulation,
Appendix D of the AIDAR, do not
permit PSCs to participate in OPMadministered programs, the
Administrator has decided to use the
Agency’s discretionary authority to
establish a separate monetary incentiveawards program for its PSCs. This
incentive-awards program is distinct
and separate from the Agency’s
incentive-awards program for USDH
employees described in ADS Chapter
491. Additionally, this final AIDAR rule
establishes an incentive-awards program
that is different from FAR Subpart 16.4
(Incentive Contracts), as the Agency’s
PSC contracts are with individuals, and
these contracts do not provide profit or
fees. The details of this incentive award
program are available in a Mandatory
Reference to ADS Chapter 309,
309mab—‘‘Incentive Awards Program
for Personal Services Contracts with
Individuals,’’ accessible on the Agency
website.
D. Impact Assessment
(1) Regulatory Planning and Review.
Under Executive Order (E.O.) 12866, the
Office of Information and Regulatory
Affairs (OIRA) has designated the final
rule ‘‘not significant,’’ and therefore it is
not subject to review by the Office of
Management and Budget (OMB). OMB/
OIRA has determined that this Rule is
not an ‘‘economically significant
regulatory action’’ under Section 3(f)(1)
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of E.O. 12866. This final rule is not a
major rule under Section 804 of Title 5
of the U.S.C.
This rule codifies the Agency’s
deviations to date from the current rule
in the Code of Federal Regulations
(CFR). The costs calculated in this
section are based on upper-end
estimates to illustrate the potential
impact of this final rule from the
baseline costs of the current rule. Under
this final rule, incentive awards paid to
USPSCs at the level of USAID’s
Missions, Bureaus, and Independent
Offices (M/B/IO), and TCNPSCs with
exceptions to be paid on the General
Schedule (GS) scale (i.e., ‘‘excepted
TCNPSCs’’) for FY 2014–2015 averaged
$86,158 per year based on historical
data provided by the Office of the Chief
Financial Officer (M/CFO) in the Bureau
for Management. The administrative
and processing costs for these awards
averaged $47,865. Therefore, the total
estimated cost for M/B/IO awards is
estimated at $134,023 per Fiscal Year.
For ‘‘Agency-level’’ incentive awards
issued from USAID headquarters, the
total estimated amount that could be
paid to all selected PSCs (U.S., TCN,
and CCN) is $160,000 per Fiscal Year,
assuming nominations are approved for
every incentive award. This figure is
based on an estimated payout for all of
31 possible cash-award amounts listed
in ADS 309mab.
As the Agency-level headquarters
incentive awards program is new, and
there are no historical data for such
incentive awards paid to PSCs, USAID
used historical data for incentive awards
to U.S. Direct-Hires, as provided by
USAID’s Office of Human Capital and
Talent-Management (HCTM) for
estimating the administrative and
processing costs. On that basis,
administrative and processing costs are
estimated at $118,525 per Fiscal Year
labor for nominations, selection panels,
and the processing of incentive awards,
plus the costs of ceremony events for a
volume of PSC incentive awards
equivalent to those given to USDH
employees. Also, as PSCs are eligible for
fewer categories of Agency-level
incentive awards than are USDH staff,
the Agency pro-rated the costs
accordingly. Therefore, the total
estimated cost for Agency-level
incentive awards from headquarters is
$278,525 per Fiscal Year.
Based on the above, the M/B/IO
awards and Agency-level incentive
award issues at headquarters are
estimated together estimated to cost
$412,547 per Fiscal Year.
Note that for incentive awards at the
Mission level for CCN and TCN PSCs,
AIDAR Appendix J authorizes such
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awards in accordance with the local
compensation plan at each USAID
Mission overseas through the ‘‘Joint
Special Embassy’’ awards program.
While this final rule revises the title of
the Mission incentive-awards program
by using current terminology, this rule
does not otherwise affect the authority
for this long-established incentive
awards program for CCN and TCN PSCs.
Therefore, there are no increased cost
implications for such incentive awards
under this rule, as it only updates the
title of the program under AIDAR
Appendix J.
Overall, USAID’s awards program
affects approximately 5,200 individual
PSCs based on USAID’s staffing
numbers for FY2015 (i.e., 775 PSCs and
more than 4,470 CCNand TCN PSCs).
The costs to implement this rule are
justified, as the Agency depends on
PSCs as large part of its workforce.
Given that USAID PSCs are an
important and flexible supplement for
the Agency’s dynamic operations, this
rule provides the Agency the ability to
recognize and motivate excellence in
the performance of its contractors.
Additionally, because these incentives
were previously approved at the highest
levels of Agency management, USAID
deemed the costs to implement this rule
as a necessary business decision to
promote excellent performance by PSCs.
As a regulatory matter, the cost of the
rule-making process to incorporate this
final rule into the regulation is also
justified. The AIDAR appendices
include all the compensation and
benefits available under personal
services contracts. Therefore, the
Agency needs this rule to keep the
regulation consistent, complete, and
transparent to industry, other U.S.
Government Departments and Agencies,
and the general public.
(2) Regulatory Flexibility Act. This
final rule will not have an impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, Section 601 of Title 5 of
the U.S.C., et seq. Therefore, USAID has
not performed an Initial Regulatory
Flexibility Analysis.
(3) Paperwork Reduction Act. This
final rule does not establish a new
collection of information that requires
the approval of OMB under the
Paperwork Reduction Act (Chapter 35 of
Title 44 of the U.S.C.).
List of Subjects in Appendices D and J
of Chapter 7 of Title 48 of the CFR
Government procurement.
For the reasons discussed in the
preamble, USAID amends Chapter 7 of
Title 48 of the CFR under the authority
of Section 621 of Public Law 87–195, 75
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10. Form USAID 1420–36, ‘‘Cover Page’’ and
‘‘Schedule’’.
Stat. 445, (Section 2381 of Title 22 of
the U.S.C.), as amended; E.O. 12163,
Sept. 29, 1979, 44 Federal Register
56673; and Title 3 of the CFR, 1979
Comp., p. 435, as follows:
*
CHAPTER 7—AGENCY FOR
INTERNATIONAL DEVELOPMENT
*
1. Appendix D is amended as follows:
a. In Section 4, by revising paragraph
(f);
■ b. In Section 10 entitled, ‘‘Form
USAID 1420–36, ‘‘Cover Page’’ and
‘‘Schedule’’, in the Table of Contents
under the heading General Provisions,
reserve numbers 27 and 28, and add 29
to the list of provisions;
■ c. In Section 11 entitled, ‘‘Optional
Schedule With a U.S. Citizen or U.S.
Resident Alien’’, in the Table of
Contents, under the heading General
Provisions, reserve numbers 27 and 28,
and add 29 to the list of provisions;
■ d. In Section 12:
■ i. Revise the heading, ‘‘General
Provisions’’;
■ ii. Remove the heading, ‘‘Contract
with a U.S. Citizen or a U.S. Resident
Alien for Personal Services Abroad’’;
■ iii. Amend the Index of Clauses by
reserving clause numbers 27 and 28,
and add clause 29, ‘‘Incentive Awards’’;
and
■ e. By adding a parenthetical authority
citation at the end of the appendix.
The revision and addition 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
*
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4. Policy
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*
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(f) Incentive awards. U.S. personal services
contractors are not eligible to participate in,
or be funded under, the incentive-awards
program administered by the Office of
Personnel Management (OPM) for USAID
U.S. direct-hire employees in accordance
with section 636(a) of the Foreign Assistance
Act of 1961, as amended. U.S. personal
services contractors are eligible to receive
certain monetary and non-monetary
incentive awards as authorized under this
section. All nominations for incentive awards
must be approved by a U.S. direct-hire
employee, who is either the contractor’s
supervisor or is at the next higher level
within the Mission/Bureau/Independent
Office (M/B/IO). The list of incentive awards
and detailed eligibility, nomination, and
approval processes are specified in internal
Agency policies in Chapter 309 of Automated
Directive System (ADS), available on the
USAID website. These awards will be funded
from the authorizations used to fund the
specific contract.
*
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27. [Reserved]
28. [Reserved]
29. Incentive Awards
*
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11. Optional Schedule With a U.S. Citizen or
U.S. Resident Alien
*
*
*
*
*
27. [Reserved]
28. [Reserved]
29. Incentive Awards
*
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*
*
*
12. General Provisions for a Contract With a
U.S. Citizen or a U.S. Resident Alien for
Personal Services Abroad
*
*
*
*
*
place ‘‘CCN and TCN personal services
contractors,’’ removing the words
‘‘Contracting Officer,’’ and adding in
their place the words ‘‘contracting
officer.’’
■ b. In section 12, General Provisions for
a Contract with a Cooperating Country
National or with a Third-Country
National for Personal Services, revise
item 19.
■ c. By adding a parenthetical authority
citation at the end of the appendix.
The revisions and addition read as
follows:
Appendix J—Direct USAID Contracts
With a Cooperating Country National
and With a Third-Country National for
Personal Services Abroad
Index of Clauses
*
*
4. Policy
*
*
*
*
27. [Reserved]
28. [Reserved]
29. Incentive Awards
*
*
*
*
*
*
29. Incentive Awards
[Insert the following clause in all USPSC
contracts.]
Incentive Awards (Date)
The contractor is eligible to receive certain
monetary and non-monetary USAID
incentive awards in accordance with the
AIDAR and USAID internal policy.
*
*
*
*
*
(Authority: Section 621 of Public Law. 87–
195, 75 Stat. 445, (Section 2381 of Title 22
of the U.S.C.), as amended; E.O. 12163, Sept.
29, 1979, 44 Federal Register 56673; and
Title 3 of the CFR, 1979 Comp., p. 435)
2. Appendix J is amended as follows:
a. In section 4:
i. By revising paragraph (c)(1);
ii. In paragraph (c)(2)(i), by removing
‘‘TCN or CCN’’ and adding in its place
‘‘CCN or TCN’’ and removing the
reference ‘‘4c(2)(ii)’’ and adding in its
place the reference ‘‘4(c)(2)(ii)’’;
■ iii. In paragraph (c)(2)(ii) introductory
text, by removing the words ‘‘FSNs
which includes CCNs and TCNs,’’
adding in their place ‘‘CCNs and TCNs,’’
and revising the second sentence.
■ iv. In paragraph (c)(2)(ii)(A), by
removing the words ‘‘foreign national
employee’’ and adding in its place the
words ‘‘CCN or TCN personal services
contractor’’;
■ v. In paragraph (c)(2)(ii)(B), by
revising the first sentence;
■ vi. In paragraph (c)(2)(iii), by
removing the words ‘‘compensation
plan for each’’ and adding in its place
the words ‘‘local compensation plan for
each Mission’’;
■ vii. By revising paragraphs (c)(2)(v)
and (vii) and (c)(3); and
■ viii. In Paragraph (c)(4), by removing
‘‘CCN and TCN PSCs’’ and adding in its
■
■
■
■
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(c) * * *
(1) General. For the purpose of any law
administered by the U.S. Office of Personnel
Management (OPM), USAID personal
services contractors are not to be regarded as
employees of the U.S. Government, are not
included under any retirement or pension
program of the U.S. Government, and are not
eligible for the Incentive-Awards Program
covered by Uniform Department of State/
USAID regulations. Each USAID Mission is
expected to participate in an interagency
Mission incentive awards program.
Additionally, CCN and TCN personal
services contractors are eligible to receive
certain USAID monetary and non-monetary
incentive awards as authorized under this
section. See paragraph (3) of this section for
incentive awards.
(2) * * *
(ii) * * * The plan is each post’s official
system of position classification and pay,
which consists of the local salary schedule
including salary rates, statements that
authorize fringe benefit payments, and other
pertinent facets of compensation for CCNs
and TCNs. * * *
*
*
*
*
*
(B) Section 4 of Appendix D of this
chapter, entitled, ‘‘Policy,’’ sections (c)
‘‘Withholdings and Fringe Benefits,’’ (d)
‘‘Resident Hire U.S. Personal Services
Contractors,’’ (e) ‘‘Determining Salary for
Personal Services Contractors,’’ (f) ‘‘Incentive
Awards,’’ (g) ‘‘Annual Salary Increase,’’ (h)
‘‘Pay Comparability Adjustment,’’ and (i)
‘‘Subcontracting.’’ * * *
*
*
*
*
*
(v) CCN and TCN personal services
contractors are eligible for allowances and
differentials as provided under the post’s
local compensation plan.
*
*
*
*
*
(vii) CCNs and TCNs retired from the U.S.
Government may be awarded personal
services contracts without any reduction in,
or offset against, their U.S. Government
annuity.
(3) Incentive Awards. (i) All CCN and TCN
personal services contractors of the Foreign
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Affairs Community are eligible for an
interagency Mission incentive awards
program. The Joint Country Awards
Committee administers each post’s (Embassy)
awards program, including the establishment
of procedures for submission, review, and
approval of proposed awards.
(ii) CCN and TCN personal services
contractors are also eligible to receive certain
monetary and non-monetary USAID
incentive awards. The list of incentive
awards, eligibility, nomination, and approval
processes are specified in internal Agency
policies in ADS Chapter 309, available on the
USAID website. These awards will be funded
from the authorizations used to fund the PSC
contract, and not from funds allocated for the
OPM-administered awards program for
USAID U.S. direct-hire employees.
(iii) Meritorious step increases for USAID
CCN and TCN personal services contractors
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may be authorized provided the granting of
such increases is the general practice locally.
*
*
*
*
*
12. General Provisions for a Contract With a
Cooperating Country National or With a
Third Country National for Personal Services
*
*
*
*
*
19. Incentive Awards
[Insert the following clause in all CCN and
TCN contracts paid under the local
compensation plan.]
Incentive Awards (Date)
(a) CCN and TCN personal services
contractors of the Foreign Affairs Community
are eligible for an interagency Mission
incentive awards program. The program is
administered by each post’s (Embassy) Joint
Country Awards Committee.
(b) CCN and TCN personal services
contractors are also eligible to receive certain
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61835
monetary and non-monetary USAID
incentive awards in accordance with the
AIDAR and USAID internal policy.
(c) Meritorious Step Increases.
CCNs and TCN personal services
contractors paid under the local
compensation plan are eligible to receive
meritorious step increases provided the
granting of such increases is the general
practice locally.
*
*
*
*
*
(Authority: Section 621 of, Public Law. 87–
195, 75 Stat. 445, (Section 2381 of Title 22
of the U.S.C. 2381), as amended; E.O. 12163,
Sept. 29, 1979, 44 Federal Register 56673;
and Title 3 of the CFR, 1979 Comp., p. 435)
Mark A. Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2019–20501 Filed 11–13–19; 8:45 am]
BILLING CODE 6116–01–P
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]]>Agencies
[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)]
[Rules and Regulations]
[Pages 61832-61835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20501]
=======================================================================
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AGENCY FOR INTERNATIONAL DEVELOPMENT
48 CFR Chapter 7
RIN 0412-AA93
Agency for International Development Acquisition Regulation
(AIDAR): Revisions to the Incentive Awards Program for Personal
Services Contractors (PSCs)
AGENCY: U.S. Agency for International Development.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The rule amends the AIDAR's provisions that pertain to
incentive awards for personal services contracts with individuals.
DATES: Effective Date: December 16, 2019.
FOR FURTHER INFORMATION CONTACT: Richard E. Spencer, Procurement
Analyst, Telephone: (202) 567-4781 or email: [email protected] for
clarification of content or information pertaining to status or
publication schedules. All communications regarding this rule must cite
AIDAR RIN No. 0412-AA93.
SUPPLEMENTARY INFORMATION:
A. Proposed Rule and Requests for Comment
USAID published a proposed rule in the Federal Register at 84 FR
9739 on March 18, 2019. The public comment period ended May 17, 2019,
and the Agency received no comments on the proposed rule. Therefore,
USAID is publishing this final rule without change.
B. Background
Over the last 27 years, USAID has awarded personal services
contracts to individuals as necessary for the Agency to carry out its
mission in the United States and overseas. USAID awards PSCs with
individuals based on multiple authorities: (1) Section 636(a)(3) of the
Foreign Assistance Act of 1961, as amended (FAA, Section 2396 of Title
22 of the United States Code [U.S.C.]), for personal services abroad;
(2) annual appropriations for Foreign Operations for a maximum number
of PSCs in the United States (e.g., Section 7057(g) of Division K of
Pub. L. 114-113 for Fiscal Year 2016); or (3) program-specific
provisions of the FAA, the Food for Peace Act, or an appropriations act
that authorizes the use of a broad range of implementation authorities
toward those programmatic purposes ``notwithstanding any other
provision of law'' (e.g., FAA Section 491, Section 2292 of Title 22 of
the U.S.C., which authorizes international assistance ``to alleviate
human suffering caused by natural and manmade disasters . . .'').
As of September 2015, approximately eight (8) percent of USAID's
total workforce were U.S. PSCs, and 47 percent were cooperating-country
or third-country national (CCN or TCN) PSCs. The Agency's overseas
local staff are CCNPSCs, with the exception of a very few remaining
Foreign Service National (FSN) direct-hire employees.
Since the Agency depends on PSCs as part of its workforce for its
operations, USAID seeks to recognize and motivate excellence in the
performance of their contracts. Because PSCs are not authorized to
participate in programs administered by the Office of Personnel
Management (OPM), in May 2004, then-Administrator Andrew Natsios used
the Agency's discretionary authority to establish a separate incentive-
awards program for PSCs, distinct from the Agency's incentive awards
program authorized by OPM for the Agency's U.S. Direct-Hire (USDH)
employees (see 5 U.S.C. 4501 et seq. regarding incentive-awards
programs for ``superior accomplishment'' by employees within the
definitions of 5 U.S.C. 2105 and 5 CFR part 451). The Administrator
approved a deviation from Appendix D of the AIDAR to expand the non-
monetary incentive-awards program for PSCs to include limited monetary
awards such as ``On The Spot'' or Special Act cash and Time-Off awards.
The Agency implemented the revised monetary incentive-awards program
for PSCs under USAID Acquisition and Assistance Policy Directive (AAPD
04-15) issued on October 15, 2004, which authorized USPSCs, and certain
TCNPSCs on an exceptional basis, to be eligible for these three types
of monetary incentive awards under programs managed by USAID's
Missions, Bureaus, or Independent Offices (M/B/IOs).
In March 2015, USAID's Special Awards Committee (SAC) conducted a
review of the Agency's awards program for its USDH employees. Following
that review, on December 22, 2015, then-Acting Administrator Alfonso
Lenhardt approved a deviation to further expand the Agency's PSC
Incentive Awards program to include additional types of monetary and
non-monetary awards similar to those provided to USAID's USDH
employees.
To implement the incentive-awards programs for PSCs as approved by
the Agency in 2004 and 2015, this final rule revises Appendices D and J
of the AIDAR to replace the deviations approved in 2004 and 2015 and
make them permanent.
C. Discussion
This final rule amends the AIDAR to establish a separate monetary
and non-monetary incentive-awards program to recognize and reward
individual PSCs for their contributions to the accomplishment of
USAID's mission, goals, and objectives.
Based on Statute--Section 636(a)(3) of the FAA, as amended; and by
regulation--Appendices D and J of the AIDAR, PSCs are not allowed to
participate in any program administered by OPM. Recognition of
individual accomplishments by PSCs has been limited to non-monetary
incentive awards and certificates of appreciation. However, based on
deviations and policy directives signed by the Administrator and Acting
Administrator in 2004 and 2015, respectively, USAID established an
interim, separate incentive-awards program to make PSCs eligible to
receive incentive awards similar to those available under the Agency's
incentive-awards program for USDH employees.
USAID implements its incentive-awards program for USDH employees
under parameters set in Chapter 491 of the Agency's Automated
Directives System (ADS). The Agency will incorporate the new PSC
incentive-awards program authorized by this final rule into Appendices
D and J of the AIDAR and implement it as described in USAID's PSC
policy in ADS Chapter 309. Where appropriate, this incentive-awards
program will closely parallel the program for USDH employees. The
Agency will make any incentive award payments from the same source of
funding used for each individual PSC's contract, and in all cases
separately from the pool of funds maintained for incentive awards for
USAID USDH employees. Recognizing that PSCs receive an annual pay-
comparability adjustment similar to what U.S. Direct-Hires receive, as
well as an annual within-grade salary increase for work evaluated at
the ``satisfactory performance'' level, Agency policy requires that
these incentive awards be for performance or a special act that goes
above and beyond the minimum satisfactory performance required under a
contract. USAID will recognize and encourage exceptional performance by
[[Page 61833]]
PSCs when they perform special acts or create innovations that
contribute to efficiency, economy, or other improvements in U.S.
Government operations, in the same way USAID recognizes superior
performance by its USDH employees. The proportion of PSCs who receive
cash awards at a M/B/IO or at the Agency level, and the total amount of
the incentive awards, will be consistent with, and will not exceed, the
Agency's existing policy for incentive awards to USDH employees, as set
by USAID's Senior Management.
The Agency's internal policies in ADS Chapter 309 describe the
criteria for each incentive award, any cash or other limitations
associated with each incentive award, how a PSC's supervisor(s) or
others may nominate individuals, and how such nominations are reviewed
and recommended for approval. Nominations for the annual Agency-level
incentive awards generally follow the same procedures, and use the same
documentation, as currently required for USAID's USDH employees.
Regulatory Basis
Since the Agency depends on PSCs and their contributions, and as
the statute, Section 636(a)(3) of the FAA of 1961, as amended, and the
regulation, Appendix D of the AIDAR, do not permit PSCs to participate
in OPM-administered programs, the Administrator has decided to use the
Agency's discretionary authority to establish a separate monetary
incentive-awards program for its PSCs. This incentive-awards program is
distinct and separate from the Agency's incentive-awards program for
USDH employees described in ADS Chapter 491. Additionally, this final
AIDAR rule establishes an incentive-awards program that is different
from FAR Subpart 16.4 (Incentive Contracts), as the Agency's PSC
contracts are with individuals, and these contracts do not provide
profit or fees. The details of this incentive award program are
available in a Mandatory Reference to ADS Chapter 309, 309mab--
``Incentive Awards Program for Personal Services Contracts with
Individuals,'' accessible on the Agency website.
D. Impact Assessment
(1) Regulatory Planning and Review. Under Executive Order (E.O.)
12866, the Office of Information and Regulatory Affairs (OIRA) has
designated the final rule ``not significant,'' and therefore it is not
subject to review by the Office of Management and Budget (OMB). OMB/
OIRA has determined that this Rule is not an ``economically significant
regulatory action'' under Section 3(f)(1) of E.O. 12866. This final
rule is not a major rule under Section 804 of Title 5 of the U.S.C.
This rule codifies the Agency's deviations to date from the current
rule in the Code of Federal Regulations (CFR). The costs calculated in
this section are based on upper-end estimates to illustrate the
potential impact of this final rule from the baseline costs of the
current rule. Under this final rule, incentive awards paid to USPSCs at
the level of USAID's Missions, Bureaus, and Independent Offices (M/B/
IO), and TCNPSCs with exceptions to be paid on the General Schedule
(GS) scale (i.e., ``excepted TCNPSCs'') for FY 2014-2015 averaged
$86,158 per year based on historical data provided by the Office of the
Chief Financial Officer (M/CFO) in the Bureau for Management. The
administrative and processing costs for these awards averaged $47,865.
Therefore, the total estimated cost for M/B/IO awards is estimated at
$134,023 per Fiscal Year.
For ``Agency-level'' incentive awards issued from USAID
headquarters, the total estimated amount that could be paid to all
selected PSCs (U.S., TCN, and CCN) is $160,000 per Fiscal Year,
assuming nominations are approved for every incentive award. This
figure is based on an estimated payout for all of 31 possible cash-
award amounts listed in ADS 309mab.
As the Agency-level headquarters incentive awards program is new,
and there are no historical data for such incentive awards paid to
PSCs, USAID used historical data for incentive awards to U.S. Direct-
Hires, as provided by USAID's Office of Human Capital and Talent-
Management (HCTM) for estimating the administrative and processing
costs. On that basis, administrative and processing costs are estimated
at $118,525 per Fiscal Year labor for nominations, selection panels,
and the processing of incentive awards, plus the costs of ceremony
events for a volume of PSC incentive awards equivalent to those given
to USDH employees. Also, as PSCs are eligible for fewer categories of
Agency-level incentive awards than are USDH staff, the Agency pro-rated
the costs accordingly. Therefore, the total estimated cost for Agency-
level incentive awards from headquarters is $278,525 per Fiscal Year.
Based on the above, the M/B/IO awards and Agency-level incentive
award issues at headquarters are estimated together estimated to cost
$412,547 per Fiscal Year.
Note that for incentive awards at the Mission level for CCN and TCN
PSCs, AIDAR Appendix J authorizes such awards in accordance with the
local compensation plan at each USAID Mission overseas through the
``Joint Special Embassy'' awards program. While this final rule revises
the title of the Mission incentive-awards program by using current
terminology, this rule does not otherwise affect the authority for this
long-established incentive awards program for CCN and TCN PSCs.
Therefore, there are no increased cost implications for such incentive
awards under this rule, as it only updates the title of the program
under AIDAR Appendix J.
Overall, USAID's awards program affects approximately 5,200
individual PSCs based on USAID's staffing numbers for FY2015 (i.e., 775
PSCs and more than 4,470 CCNand TCN PSCs). The costs to implement this
rule are justified, as the Agency depends on PSCs as large part of its
workforce. Given that USAID PSCs are an important and flexible
supplement for the Agency's dynamic operations, this rule provides the
Agency the ability to recognize and motivate excellence in the
performance of its contractors. Additionally, because these incentives
were previously approved at the highest levels of Agency management,
USAID deemed the costs to implement this rule as a necessary business
decision to promote excellent performance by PSCs.
As a regulatory matter, the cost of the rule-making process to
incorporate this final rule into the regulation is also justified. The
AIDAR appendices include all the compensation and benefits available
under personal services contracts. Therefore, the Agency needs this
rule to keep the regulation consistent, complete, and transparent to
industry, other U.S. Government Departments and Agencies, and the
general public.
(2) Regulatory Flexibility Act. This final rule will not have an
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, Section 601 of Title 5 of the U.S.C.,
et seq. Therefore, USAID has not performed an Initial Regulatory
Flexibility Analysis.
(3) Paperwork Reduction Act. This final rule does not establish a
new collection of information that requires the approval of OMB under
the Paperwork Reduction Act (Chapter 35 of Title 44 of the U.S.C.).
List of Subjects in Appendices D and J of Chapter 7 of Title 48 of
the CFR
Government procurement.
For the reasons discussed in the preamble, USAID amends Chapter 7
of Title 48 of the CFR under the authority of Section 621 of Public Law
87-195, 75
[[Page 61834]]
Stat. 445, (Section 2381 of Title 22 of the U.S.C.), as amended; E.O.
12163, Sept. 29, 1979, 44 Federal Register 56673; and Title 3 of the
CFR, 1979 Comp., p. 435, as follows:
CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT
0
1. Appendix D is amended as follows:
0
a. In Section 4, by revising paragraph (f);
0
b. In Section 10 entitled, ``Form USAID 1420-36, ``Cover Page'' and
``Schedule'', in the Table of Contents under the heading General
Provisions, reserve numbers 27 and 28, and add 29 to the list of
provisions;
0
c. In Section 11 entitled, ``Optional Schedule With a U.S. Citizen or
U.S. Resident Alien'', in the Table of Contents, under the heading
General Provisions, reserve numbers 27 and 28, and add 29 to the list
of provisions;
0
d. In Section 12:
0
i. Revise the heading, ``General Provisions'';
0
ii. Remove the heading, ``Contract with a U.S. Citizen or a U.S.
Resident Alien for Personal Services Abroad'';
0
iii. Amend the Index of Clauses by reserving clause numbers 27 and 28,
and add clause 29, ``Incentive Awards''; and
0
e. By adding a parenthetical authority citation at the end of the
appendix.
The revision and addition 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
* * * * *
(f) Incentive awards. U.S. personal services contractors are not
eligible to participate in, or be funded under, the incentive-awards
program administered by the Office of Personnel Management (OPM) for
USAID U.S. direct-hire employees in accordance with section 636(a)
of the Foreign Assistance Act of 1961, as amended. U.S. personal
services contractors are eligible to receive certain monetary and
non-monetary incentive awards as authorized under this section. All
nominations for incentive awards must be approved by a U.S. direct-
hire employee, who is either the contractor's supervisor or is at
the next higher level within the Mission/Bureau/Independent Office
(M/B/IO). The list of incentive awards and detailed eligibility,
nomination, and approval processes are specified in internal Agency
policies in Chapter 309 of Automated Directive System (ADS),
available on the USAID website. These awards will be funded from the
authorizations used to fund the specific contract.
* * * * *
10. Form USAID 1420-36, ``Cover Page'' and ``Schedule''.
* * * * *
27. [Reserved]
28. [Reserved]
29. Incentive Awards
* * * * *
11. Optional Schedule With a U.S. Citizen or U.S. Resident Alien
* * * * *
27. [Reserved]
28. [Reserved]
29. Incentive Awards
* * * * *
12. General Provisions for a Contract With a U.S. Citizen or a U.S.
Resident Alien for Personal Services Abroad
* * * * *
Index of Clauses
* * * * *
27. [Reserved]
28. [Reserved]
29. Incentive Awards
* * * * *
29. Incentive Awards
[Insert the following clause in all USPSC contracts.]
Incentive Awards (Date)
The contractor is eligible to receive certain monetary and non-
monetary USAID incentive awards in accordance with the AIDAR and
USAID internal policy.
* * * * *
(Authority: Section 621 of Public Law. 87-195, 75 Stat. 445,
(Section 2381 of Title 22 of the U.S.C.), as amended; E.O. 12163,
Sept. 29, 1979, 44 Federal Register 56673; and Title 3 of the CFR,
1979 Comp., p. 435)
0
2. Appendix J is amended as follows:
0
a. In section 4:
0
i. By revising paragraph (c)(1);
0
ii. In paragraph (c)(2)(i), by removing ``TCN or CCN'' and adding in
its place ``CCN or TCN'' and removing the reference ``4c(2)(ii)'' and
adding in its place the reference ``4(c)(2)(ii)'';
0
iii. In paragraph (c)(2)(ii) introductory text, by removing the words
``FSNs which includes CCNs and TCNs,'' adding in their place ``CCNs and
TCNs,'' and revising the second sentence.
0
iv. In paragraph (c)(2)(ii)(A), by removing the words ``foreign
national employee'' and adding in its place the words ``CCN or TCN
personal services contractor'';
0
v. In paragraph (c)(2)(ii)(B), by revising the first sentence;
0
vi. In paragraph (c)(2)(iii), by removing the words ``compensation plan
for each'' and adding in its place the words ``local compensation plan
for each Mission'';
0
vii. By revising paragraphs (c)(2)(v) and (vii) and (c)(3); and
0
viii. In Paragraph (c)(4), by removing ``CCN and TCN PSCs'' and adding
in its place ``CCN and TCN personal services contractors,'' removing
the words ``Contracting Officer,'' and adding in their place the words
``contracting officer.''
0
b. In section 12, General Provisions for a Contract with a Cooperating
Country National or with a Third-Country National for Personal
Services, revise item 19.
0
c. By adding a parenthetical authority citation at the end of the
appendix.
The revisions and addition read as follows:
Appendix J--Direct USAID Contracts With a Cooperating Country National
and With a Third-Country National for Personal Services Abroad
* * * * *
4. Policy
* * * * *
(c) * * *
(1) General. For the purpose of any law administered by the U.S.
Office of Personnel Management (OPM), USAID personal services
contractors are not to be regarded as employees of the U.S.
Government, are not included under any retirement or pension program
of the U.S. Government, and are not eligible for the Incentive-
Awards Program covered by Uniform Department of State/USAID
regulations. Each USAID Mission is expected to participate in an
interagency Mission incentive awards program. Additionally, CCN and
TCN personal services contractors are eligible to receive certain
USAID monetary and non-monetary incentive awards as authorized under
this section. See paragraph (3) of this section for incentive
awards.
(2) * * *
(ii) * * * The plan is each post's official system of position
classification and pay, which consists of the local salary schedule
including salary rates, statements that authorize fringe benefit
payments, and other pertinent facets of compensation for CCNs and
TCNs. * * *
* * * * *
(B) Section 4 of Appendix D of this chapter, entitled,
``Policy,'' sections (c) ``Withholdings and Fringe Benefits,'' (d)
``Resident Hire U.S. Personal Services Contractors,'' (e)
``Determining Salary for Personal Services Contractors,'' (f)
``Incentive Awards,'' (g) ``Annual Salary Increase,'' (h) ``Pay
Comparability Adjustment,'' and (i) ``Subcontracting.'' * * *
* * * * *
(v) CCN and TCN personal services contractors are eligible for
allowances and differentials as provided under the post's local
compensation plan.
* * * * *
(vii) CCNs and TCNs retired from the U.S. Government may be
awarded personal services contracts without any reduction in, or
offset against, their U.S. Government annuity.
(3) Incentive Awards. (i) All CCN and TCN personal services
contractors of the Foreign
[[Page 61835]]
Affairs Community are eligible for an interagency Mission incentive
awards program. The Joint Country Awards Committee administers each
post's (Embassy) awards program, including the establishment of
procedures for submission, review, and approval of proposed awards.
(ii) CCN and TCN personal services contractors are also eligible
to receive certain monetary and non-monetary USAID incentive awards.
The list of incentive awards, eligibility, nomination, and approval
processes are specified in internal Agency policies in ADS Chapter
309, available on the USAID website. These awards will be funded
from the authorizations used to fund the PSC contract, and not from
funds allocated for the OPM-administered awards program for USAID
U.S. direct-hire employees.
(iii) Meritorious step increases for USAID CCN and TCN personal
services contractors may be authorized provided the granting of such
increases is the general practice locally.
* * * * *
12. General Provisions for a Contract With a Cooperating Country
National or With a Third Country National for Personal Services
* * * * *
19. Incentive Awards
[Insert the following clause in all CCN and TCN contracts paid
under the local compensation plan.]
Incentive Awards (Date)
(a) CCN and TCN personal services contractors of the Foreign
Affairs Community are eligible for an interagency Mission incentive
awards program. The program is administered by each post's (Embassy)
Joint Country Awards Committee.
(b) CCN and TCN personal services contractors are also eligible
to receive certain monetary and non-monetary USAID incentive awards
in accordance with the AIDAR and USAID internal policy.
(c) Meritorious Step Increases.
CCNs and TCN personal services contractors paid under the local
compensation plan are eligible to receive meritorious step increases
provided the granting of such increases is the general practice
locally.
* * * * *
(Authority: Section 621 of, Public Law. 87-195, 75 Stat. 445,
(Section 2381 of Title 22 of the U.S.C. 2381), as amended; E.O.
12163, Sept. 29, 1979, 44 Federal Register 56673; and Title 3 of the
CFR, 1979 Comp., p. 435)
Mark A. Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2019-20501 Filed 11-13-19; 8:45 am]
BILLING CODE 6116-01-P
