U.S. Agency for International Development Acquisition Regulation (AIDAR): Designation of Personal Services Contractors (PSCs) as Contracting Officers and Agreement Officers, 11859-11861 [2020-03408]
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Federal Register / Vol. 85, No. 40 / Friday, February 28, 2020 / Rules and Regulations
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[FR Doc. 2020–03305 Filed 2–27–20; 8:45 am]
BILLING CODE 1410–72–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: Final rule.
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AGENCY:
The U.S. Agency for
International Development (USAID) is
issuing a final rule amending the
Agency for International Development
SUMMARY:
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15:45 Feb 27, 2020
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Acquisition Regulation (AIDAR) to
streamline the procedures for issuing
contracting officer and agreement officer
warrants to U.S. Personal Services
Contractors (US PSCs) and Cooperating
Country National Personal Services
Contractors (CCN PSCs).
DATES: This final rule is effective March
30, 2020.
FOR FURTHER INFORMATION CONTACT:
Anne Sattgast, Telephone: 202–916–
2623 or Email: asattgast@usaid.gov.
SUPPLEMENTARY INFORMATION:
I. Background
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 Agency’s warranted work force is
critical to managing these efforts. A
shortage of warranted contracting/
agreement officers requires that the
Agency be able to designate highly
qualified US Personal Services
Contractors (US PSCs) and Cooperating
Country National Personal Services
Contractors (CCN PSCs) as contracting/
agreement officers in an expeditious
manner. 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.
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.
Additionally, the Agency currently
allows for the delegation of certain
limited contracting officer authorities to
highly qualified CCN PSCs. The CCN
warrant program ran as a pilot from
2011–2014. The program became
permanent in September 2014, when
USAID issued a two-year class deviation
from 48 CFR AIDAR 701.603–70. In
conjunction with the approval of the
class deviation, the Assistant
Administrator for the Bureau for
Management (AA/M) approved a class
exception to the limitations in AIDAR
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
11859
Appendix J 4(b)(3). Subsequent two-year
class deviations were issued for the
permanent CCN warrant program in
September 2016 and September 2018.
USAID published a proposed rule in
the Federal Register at 84 FR 27745 on
June 14, 2019, to amend the AIDAR to
allow for the designation of US PSCs
and CCN PSCs as contracting officers
and agreement officers. The proposed
rule’s supplementary information
contains additional background on the
designation of US PSCs and CCN PSCs
as contracting and agreement officers,
including more details on the
permanent CCN warrant program and an
analysis of the risks associated with
designating non-U.S. citizens as
contracting and agreement officers.
This final rule amends the AIDAR to
streamline the procedures for issuing
contracting officer and agreement officer
warrants to US PSCs and CCN PSCs.
Thirteen respondents submitted
comments related to the proposed rule.
II. Discussion and Analysis
USAID reviewed and considered the
public comments before the issuance of
this final rule. No changes were made to
the proposed rule as a result of the
comments. A discussion of the
comments is provided below.
A. General Support for the Rule
Comment: Eleven of the thirteen
respondents expressed explicit support
for the proposed rule. For example,
several respondents stated that the rule
helps PSCs and highlights their
contributions to the Agency. Several
other respondents noted that the current
process for securing warrants for PSCs,
which requires an exception from AA/
M, was difficult and cumbersome and
that the improvements in the proposed
rule will result in a more efficient
process, allowing the Agency to issue
warrants to PSCs in a timely manner.
Others noted that this rule will help
address a shortage of contracting officers
and is a positive change for an
overburdened workforce.
Response: USAID agrees with these
comments. PSCs are an important part
of the Agency’s workforce.
B. Designating CCN PSCs as Contracting
Officers
Comment: One respondent was
concerned that the delegation of warrant
CCN PSCs would be in conflict with
regulations relating to inherently
governmental functions.
Response: USAID CCN PSCs are able
to perform inherently governmental
functions under federal law and USAID
policy. (48 CFR) FAR subpart 7.5
exempts PSCs from the restrictions on
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Federal Register / Vol. 85, No. 40 / Friday, February 28, 2020 / Rules and Regulations
contracts for inherently governmental
functions. (48 CFR) FAR does not
specify that contracting officers must be
U.S. citizen direct-hire employees of the
Federal government.
Comment: One respondent stated that
providing CCN warrants was an
inherent conflict, given that USAID is
distributing US taxpayer funds in a
foreign environment and the possibility
for corruption when approving
subcontracts.
Response: USAID has had a
permanent CCN warrant program in
place for five years, and over that time
period, the program has been
extensively reviewed on multiple
occasions. This final rule streamlines
warrant issuance procedures. The
Agency does not view the issuance of
administrative warrants with limited
authorities to CCN PSCs as a conflict.
Concerning the possibility for
corruption, warranted CCN PSCs do not
provide subcontract approvals in
isolation, as the Agency’s procurement
systems have a built-in segregation of
duties, even for administrative
contracting duties. When approving
subcontracts, the Contracting Officer’s
Representative (COR) initiates the
process and provides technical
clearance. The warranted CCN PSC then
reviews and executes the COR’s request.
This system applies to all staff,
including US direct hires, US PSCs, and
CCN PSCs, and is an important risk
mitigation measure against fraud, waste,
and abuse in USAID’s procurement
system.
Comment: Two respondents
expressed concerns relating to the
training, certification, and oversight of
CCN PSCs.
Response: The Agency has built
stringent qualifications and oversight
measures into the warrant program to
mitigate risk. The current training,
certification and experience
requirements for CCN PSCs to receive a
limited, administrative warrant exceed
those required for US citizens to receive
a warrant to ensure that CCN PSCs
understand the complexities associated
with U.S. regulations and policies. CCN
PSCs are required to have a Federal
Acquisition Certification—Contracting
(FAC–C) Level II certification along with
seven years of Agency experience, and
at least five years of that experience
must be in the area of acquisition and
assistance. As noted in the preamble to
the proposed rule, the CCN warrant
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
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15:45 Feb 27, 2020
Jkt 250001
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.
Comment: One respondent expressed
a desire for more information about the
CCN warrant program, including
information relating to the design,
scope, duration, and results of the
program, including information related
to the State Department’s program.
Response: This comment is outside
the scope of the streamlined warrant
issuance procedures in the final rule.
The Agency provided some historical
information in the preamble of the
proposed rule to provide context for the
rule. However, the warrant program is
internal to the Agency and not
contained in federal regulation.
C. Recommendation of an Independent
Ombudsman
Comment: One respondent
recommended an independent
Ombudsman to investigate complaints
related to the behavior of CCN PSCs and
their ability to manage US funds.
Response: USAID agrees that an
independent Ombudsman is important
to support the integrity of its
procurement system. The Agency has
had a Personal Services Contractor
Ombudsman since 2016.
D. Support for a ‘‘Limited’’ Program
Comment: One respondent provided
support of a limited program to provide
a temporary alternative solution to the
direct-hire of full-time USAID
employees as contracting and agreement
officers, with appropriate limitations on
the scope of warrants issued to these
individuals.
Response: USAID agrees that certain
limitations on PSC warrants are
appropriate. US PSCs must meet the
same requirements as US direct hires to
receive a warrant. The CCN PSC warrant
program has more stringent training,
certification, and experience
requirements than those required for US
citizens and only allows for the
delegation of limited contract
administration functions. Warranted
CCN PSCs are not delegated authority to
make new awards or execute any
actions or awards related to personal
services contracts or public
international organizations (PIOs). 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,
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
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) are not redelegated to
CCN PSC contracting officers.
Comment: One respondent expressed
concern that issuing warrants to PSCs
would dilute the Agency’s position in
advocating for increasing funding for
direct-hire contracting staff.
Response: USAID continues to
advocate strongly for more operational
expense funding for direct-hire staff.
The US PSC and CCN PSC warrant
programs could not and are not
intended to be a permanent solution to
the shortage of direct-hire contracting
staff. These warrant programs are
significantly limited in scope and are
only available to overseas Missions with
a demonstrated need for additional
warranted individuals. The Agency does
not view the issuance of these warrants
to PSCs as diluting the argument for
both a larger direct-hire acquisition
workforce and the funding necessary to
support that workforce.
E. Number of PSCs at USAID Missions
Comment: One respondent
commented on the number of PSCs with
warrants and inquired if the positions
noted in the preamble of the proposed
rule were a fixed number designated to
be filled or if they were the only ones
that the Agency was able to fill.
Response: This comment is outside
the scope of the streamlined warrant
issuance procedures in the rule. At the
time of the issuance of the proposed
rule, there were 21 PSCs with warrants.
However, this is not a fixed number.
The Agency only issues warrants to US
PSCs and CCN PSCs when there is a
demonstrated need for such warrants.
III. Regulatory Findings
Executive Orders 12866, 13563, and
13771
This final rule has been drafted in
accordance with Executive Orders
(E.O.s) 12866 and 13563, which direct
agencies to assess all costs and benefits
of available regulatory alternatives and,
if regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
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Federal Register / Vol. 85, No. 40 / Friday, February 28, 2020 / Rules and Regulations
economic, environmental, public health
and safety effects, distributive impacts,
and equality). E.O. 13563 emphasizes
the importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. USAID has reviewed the
regulation to ensure its consistency with
the regulatory philosophy and
principles set forth in E.O.s 12866 and
13563 and finds that the benefits of
issuing this rule outweigh any costs,
which the Agency assesses to be
minimal. The Office of Management and
Budget’s Office of Information and
Regulatory Affairs (OMB/OIRA) has
determined that this regulatory action is
‘‘significant’’ and therefore subject to
the requirements of the E.O. and subject
to review by 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 subject to
the requirements of E.O. 13771 because
this rule is related to agency
organization, management, or
personnel.
Regulatory Flexibility Act
USAID certifies that this rule will not
have a significant economic impact on
a substantial number of small entities.
Consequently, the Agency has not
prepared a regulatory flexibility
analysis.
Small Business Regulatory Enforcement
Fairness Act
This is not a major rule under 5 U.S.C.
804(2), the Small Business Regulatory
Enforcement Fairness Act.
Paperwork Reduction Act
This rule does not contain
information collection requirements,
and a submission to OMB under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is not required.
Subpart 701.6—Career Development,
Contracting Authority, and
Responsibilities
2. Revise 701.603–70 to read as
follows:
■
701.603–70
officers.
3. In appendix D to chapter 7, in
section 4 ‘‘Policy’’, revise paragraph
(b)(3)b. and add paragraph (b)(4) and
revise the authority citation at the end
of the appendix 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
*
*
*
1. The authority citation for 48 CFR
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.
PO 00000
*
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 with 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 (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.
*
*
*
*
*
Authority: (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)
Mark Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2020–03408 Filed 2–27–20; 8:45 am]
BILLING CODE 6116–01–P
*
DEPARTMENT OF COMMERCE
*
*
*
National Oceanic and Atmospheric
Administration
*
*
*
(4) Exceptions. The Assistant
Administrator, Bureau for Management (AA/
M) must approve exceptions to the
limitations in (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.
*
Jkt 250001
*
4. In appendix J to chapter 7, in
section 4 ‘‘Policy’’, revise paragraphs
(b)(3)b. and (b)(4) and the authority
citation at the end of the appendix to
read as follows:
■
*
(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 with FAR subpart 1.6 and the
Agency’s applicable warrant program.
For the reasons stated in the
preamble, USAID amends 48 CFR
Chapter 7 as set forth below:
15:45 Feb 27, 2020
*
Authority: (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)
*
4. Policy
Government procurement.
VerDate Sep<11>2014
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.
*
List of Subjects in 48 CFR Part 701
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PART 701—FEDERAL ACQUISITION
REGULATION SYSTEM
11861
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50 CFR Part 622
[Docket No. 160426363–7275–02]
RTID 0648–XS021
Coastal Migratory Pelagic Resources
of the Gulf of Mexico and Atlantic
Region; 2019–2020 Closure of
Commercial Run-Around Gillnet for
King Mackerel
National Marine Fisheries
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Commerce.
ACTION: Temporary rule; closure.
AGENCY:
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]]>Agencies
[Federal Register Volume 85, Number 40 (Friday, February 28, 2020)]
[Rules and Regulations]
[Pages 11859-11861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03408]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Agency for International Development (USAID) is
issuing a final rule amending the Agency for International Development
Acquisition Regulation (AIDAR) to streamline the procedures for issuing
contracting officer and agreement officer warrants to U.S. Personal
Services Contractors (US PSCs) and Cooperating Country National
Personal Services Contractors (CCN PSCs).
DATES: This final rule is effective March 30, 2020.
FOR FURTHER INFORMATION CONTACT: Anne Sattgast, Telephone: 202-916-2623
or Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
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 Agency's warranted work force is critical to managing these
efforts. A shortage of warranted contracting/agreement officers
requires that the Agency be able to designate highly qualified US
Personal Services Contractors (US PSCs) and Cooperating Country
National Personal Services Contractors (CCN PSCs) as contracting/
agreement officers in an expeditious manner. 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.
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.
Additionally, the Agency currently allows for the delegation of
certain limited contracting officer authorities to highly qualified CCN
PSCs. The CCN warrant program ran as a pilot from 2011-2014. The
program became permanent in September 2014, when USAID issued a two-
year class deviation from 48 CFR AIDAR 701.603-70. In conjunction with
the approval of the class deviation, the Assistant Administrator for
the Bureau for Management (AA/M) approved a class exception to the
limitations in AIDAR Appendix J 4(b)(3). Subsequent two-year class
deviations were issued for the permanent CCN warrant program in
September 2016 and September 2018.
USAID published a proposed rule in the Federal Register at 84 FR
27745 on June 14, 2019, to amend the AIDAR to allow for the designation
of US PSCs and CCN PSCs as contracting officers and agreement officers.
The proposed rule's supplementary information contains additional
background on the designation of US PSCs and CCN PSCs as contracting
and agreement officers, including more details on the permanent CCN
warrant program and an analysis of the risks associated with
designating non-U.S. citizens as contracting and agreement officers.
This final rule amends the AIDAR to streamline the procedures for
issuing contracting officer and agreement officer warrants to US PSCs
and CCN PSCs. Thirteen respondents submitted comments related to the
proposed rule.
II. Discussion and Analysis
USAID reviewed and considered the public comments before the
issuance of this final rule. No changes were made to the proposed rule
as a result of the comments. A discussion of the comments is provided
below.
A. General Support for the Rule
Comment: Eleven of the thirteen respondents expressed explicit
support for the proposed rule. For example, several respondents stated
that the rule helps PSCs and highlights their contributions to the
Agency. Several other respondents noted that the current process for
securing warrants for PSCs, which requires an exception from AA/M, was
difficult and cumbersome and that the improvements in the proposed rule
will result in a more efficient process, allowing the Agency to issue
warrants to PSCs in a timely manner. Others noted that this rule will
help address a shortage of contracting officers and is a positive
change for an overburdened workforce.
Response: USAID agrees with these comments. PSCs are an important
part of the Agency's workforce.
B. Designating CCN PSCs as Contracting Officers
Comment: One respondent was concerned that the delegation of
warrant CCN PSCs would be in conflict with regulations relating to
inherently governmental functions.
Response: USAID CCN PSCs are able to perform inherently
governmental functions under federal law and USAID policy. (48 CFR) FAR
subpart 7.5 exempts PSCs from the restrictions on
[[Page 11860]]
contracts for inherently governmental functions. (48 CFR) FAR does not
specify that contracting officers must be U.S. citizen direct-hire
employees of the Federal government.
Comment: One respondent stated that providing CCN warrants was an
inherent conflict, given that USAID is distributing US taxpayer funds
in a foreign environment and the possibility for corruption when
approving subcontracts.
Response: USAID has had a permanent CCN warrant program in place
for five years, and over that time period, the program has been
extensively reviewed on multiple occasions. This final rule streamlines
warrant issuance procedures. The Agency does not view the issuance of
administrative warrants with limited authorities to CCN PSCs as a
conflict. Concerning the possibility for corruption, warranted CCN PSCs
do not provide subcontract approvals in isolation, as the Agency's
procurement systems have a built-in segregation of duties, even for
administrative contracting duties. When approving subcontracts, the
Contracting Officer's Representative (COR) initiates the process and
provides technical clearance. The warranted CCN PSC then reviews and
executes the COR's request. This system applies to all staff, including
US direct hires, US PSCs, and CCN PSCs, and is an important risk
mitigation measure against fraud, waste, and abuse in USAID's
procurement system.
Comment: Two respondents expressed concerns relating to the
training, certification, and oversight of CCN PSCs.
Response: The Agency has built stringent qualifications and
oversight measures into the warrant program to mitigate risk. The
current training, certification and experience requirements for CCN
PSCs to receive a limited, administrative warrant exceed those required
for US citizens to receive a warrant to ensure that CCN PSCs understand
the complexities associated with U.S. regulations and policies. CCN
PSCs are required to have a Federal Acquisition Certification--
Contracting (FAC-C) Level II certification along with seven years of
Agency experience, and at least five years of that experience must be
in the area of acquisition and assistance. As noted in the preamble to
the proposed rule, the CCN warrant 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.
Comment: One respondent expressed a desire for more information
about the CCN warrant program, including information relating to the
design, scope, duration, and results of the program, including
information related to the State Department's program.
Response: This comment is outside the scope of the streamlined
warrant issuance procedures in the final rule. The Agency provided some
historical information in the preamble of the proposed rule to provide
context for the rule. However, the warrant program is internal to the
Agency and not contained in federal regulation.
C. Recommendation of an Independent Ombudsman
Comment: One respondent recommended an independent Ombudsman to
investigate complaints related to the behavior of CCN PSCs and their
ability to manage US funds.
Response: USAID agrees that an independent Ombudsman is important
to support the integrity of its procurement system. The Agency has had
a Personal Services Contractor Ombudsman since 2016.
D. Support for a ``Limited'' Program
Comment: One respondent provided support of a limited program to
provide a temporary alternative solution to the direct-hire of full-
time USAID employees as contracting and agreement officers, with
appropriate limitations on the scope of warrants issued to these
individuals.
Response: USAID agrees that certain limitations on PSC warrants are
appropriate. US PSCs must meet the same requirements as US direct hires
to receive a warrant. The CCN PSC warrant program has more stringent
training, certification, and experience requirements than those
required for US citizens and only allows for the delegation of limited
contract administration functions. Warranted CCN PSCs are not delegated
authority to make new awards or execute any actions or awards related
to personal services contracts or public international organizations
(PIOs). 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) are not
redelegated to CCN PSC contracting officers.
Comment: One respondent expressed concern that issuing warrants to
PSCs would dilute the Agency's position in advocating for increasing
funding for direct-hire contracting staff.
Response: USAID continues to advocate strongly for more operational
expense funding for direct-hire staff. The US PSC and CCN PSC warrant
programs could not and are not intended to be a permanent solution to
the shortage of direct-hire contracting staff. These warrant programs
are significantly limited in scope and are only available to overseas
Missions with a demonstrated need for additional warranted individuals.
The Agency does not view the issuance of these warrants to PSCs as
diluting the argument for both a larger direct-hire acquisition
workforce and the funding necessary to support that workforce.
E. Number of PSCs at USAID Missions
Comment: One respondent commented on the number of PSCs with
warrants and inquired if the positions noted in the preamble of the
proposed rule were a fixed number designated to be filled or if they
were the only ones that the Agency was able to fill.
Response: This comment is outside the scope of the streamlined
warrant issuance procedures in the rule. At the time of the issuance of
the proposed rule, there were 21 PSCs with warrants. However, this is
not a fixed number. The Agency only issues warrants to US PSCs and CCN
PSCs when there is a demonstrated need for such warrants.
III. Regulatory Findings
Executive Orders 12866, 13563, and 13771
This final rule has been drafted in accordance with Executive
Orders (E.O.s) 12866 and 13563, which direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential
[[Page 11861]]
economic, environmental, public health and safety effects, distributive
impacts, and equality). E.O. 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. USAID has reviewed the regulation
to ensure its consistency with the regulatory philosophy and principles
set forth in E.O.s 12866 and 13563 and finds that the benefits of
issuing this rule outweigh any costs, which the Agency assesses to be
minimal. The Office of Management and Budget's Office of Information
and Regulatory Affairs (OMB/OIRA) has determined that this regulatory
action is ``significant'' and therefore subject to the requirements of
the E.O. and subject to review by 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 subject to
the requirements of E.O. 13771 because this rule is related to agency
organization, management, or personnel.
Regulatory Flexibility Act
USAID certifies that this rule will not have a significant economic
impact on a substantial number of small entities. Consequently, the
Agency has not prepared a regulatory flexibility analysis.
Small Business Regulatory Enforcement Fairness Act
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is not required.
List of Subjects in 48 CFR Part 701
Government procurement.
For the reasons stated in the preamble, USAID amends 48 CFR Chapter
7 as set forth below:
0
1. The authority citation for 48 CFR 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, in section 4 ``Policy'', revise
paragraph (b)(3)b. and add paragraph (b)(4) and revise the authority
citation at the end of the appendix 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 with 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
(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.
* * * * *
Authority: (Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445,
(22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR
56673; and 3 CFR 1979 Comp., p. 435)
0
4. In appendix J to chapter 7, in section 4 ``Policy'', revise
paragraphs (b)(3)b. and (b)(4) and the authority citation at the end of
the appendix 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 with 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
(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.
* * * * *
Authority: (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)
Mark Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2020-03408 Filed 2-27-20; 8:45 am]
BILLING CODE 6116-01-P
