U.S. Agency for International Development Acquisition Regulation (AIDAR): Revised and Expanded Fringe Benefits for U.S. Personal Services Contracts With Individuals, 2104-2107 [2021-27944]

Agencies

• Agency for International Development

[Federal Register Volume 87, Number 9 (Thursday, January 13, 2022)]
[Proposed Rules]
[Pages 2104-2107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27944]


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AGENCY FOR INTERNATIONAL DEVELOPMENT

48 CFR Chapter 7

RIN 0412-AA98


U.S. Agency for International Development Acquisition Regulation 
(AIDAR): Revised and Expanded Fringe Benefits for U.S. Personal 
Services Contracts With Individuals

AGENCY: U.S. Agency for International Development.

ACTION: Proposed rule.

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SUMMARY: The U.S. Agency for International Development (USAID) seeks 
public comment on a proposed rule to revise AIDAR in order to expand 
fringe benefits for personal services contracts with individuals who 
are U.S. nationals (USPSCs). Specifically, this rulemaking will provide 
a paid parental leave benefit comparable to what is available to 
USAID's U.S. direct-hire employees and provide a relocation expense 
reimbursement similar to the benefit provided to USAID's direct-hire 
Foreign Service Officer (FSO) employees.

DATES: Comments must be received no later than March 14, 2022.

ADDRESSES: Address all comments concerning this proposed rule, 
identified by title of the action and Regulatory Information Number 
(RIN), through the Federal eRulemaking Portal at https://www.regulations.gov by following the instructions for submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Richard E. Spencer, Procurement 
Analyst, by phone at 202-916-2629 or via email at 
[email protected] for clarification of content or information 
pertaining to status or publication schedules. Communications regarding 
this rule must cite the rule title and its Regulatory Information 
Number (RIN).

SUPPLEMENTARY INFORMATION:

I. Submission Instructions

    Comments on this proposed rule must be in writing and submitted by 
the method specified in the ADDRESSES section above. Comment 
submissions must include the title and RIN of this proposed rule. 
Please include your name, title, organization, postal address, 
telephone number, and email address in the text of the message.
    All comments will be made available for public review at https://www.regulations.gov without changes, including the identifying 
information of the commenter, if provided. We recommend that commenters 
do not submit information that is considered confidential business 
information (CBI) or any information that is otherwise protected from 
disclosure by statute.
    USAID will only address substantive comments on the rule that are 
relevant and within the scope of the proposed rule.

II. Background

    USAID relies heavily on the USPSC mechanism to advance its foreign 
assistance mission and mandate. Approximately ten percent of USAID's 
total workforce is USPSCs, of which about half perform under contracts 
where the place of performance is a USAID cooperating country abroad. 
The PSC Association, an Agency employee resource group representing 
USAID USPSCs, raised concerns to USAID's leadership about the equity of 
fringe benefits between U.S. direct-hire employees (USDH) and USPSCs. 
As a result, USAID has determined, as a matter of policy, to revise the 
AIDAR to provide the following changes as part of the Agency's standard 
USPSC fringe benefits package.

A. Paid Parental Leave

    On December 20, 2019, the President signed the National Defense 
Authorization Act (NDAA) for Fiscal Year 2020, which includes the 
provisions of the new Federal Employee Paid Leave Act (FEPLA), making 
paid parental leave available to certain categories of Federal civilian 
employees. (Pub. L. 116-92.) FEPLA amended the Family and Medical Leave 
Act (FMLA) provisions in Title 5, United States Code (U.S.C.) to 
provide up to 12 weeks of paid parental leave to covered Federal 
employees in connection with the birth or placement (for adoption or 
foster care) of a child occurring on or after October 1, 2020. Paid 
parental leave granted in connection with a qualifying birth or 
placement under FEPLA is substituted for unpaid FMLA leave and is 
available during the 12-month period following the birth or placement. 
This particular benefit does not apply to contractors, including 
personal service contractors, of Federal agencies.
    The Department of State (DoS) recently revised its policies in the 
Foreign Affairs Manual (3 FAM 9116) to authorize, as a matter of 
policy, paid parental leave for its USPSCs based on Title 1 of the 
Family Medical Leave Act (28 U.S.C. 2601). In USAID's meetings with the 
PSC Association earlier this year, Agency leadership indicated its 
intention to pursue several improvements to benefits for USPSCs, 
including paid parental leave.
    On October 1, 2021, the USAID Administrator approved, as a matter 
of Agency policy, the provision of a similar paid parental leave 
benefit for USAID USPSCs to serve as an indicator of the Agency's 
commitment to equity for USPSCs. Eligible USPSCs may be granted up to 
12 workweeks (using the term ``workweek'' as described in appendix D, 
section 12, clause 4) of paid parental leave in connection with the 
birth of a child, or a new placement of a child for adoption or foster 
care, for which the USPSC assumes a parental role. USAID's paid 
parental leave benefit for its USPSCs is based on (1) the paid parental 
leave benefit provided to certain categories of Federal civilian 
employees under the FEPLA, and (2) the paid parental leave benefit 
policy that the Department of State (DoS) recently approved for its 
American personal service contractors.

B. Relocation Expense Benefit

    In its discussions with the Agency, the PSC Association raised a 
concern that ``USPSCs are not eligible for the Foreign-Transfer 
Allowance (FTA) and Home-Service Transfer Allowances (HSTA) and yet 
incur the same costs as Foreign Service Officers (FSOs) when moving 
from one post of assignment to another.'' The PSC Association

[[Page 2105]]

requested that the Agency ``[allow] these costs to be included in the 
Travel Authorizations of USPSCs [who are] moving between posts (or to/
from Washington) when their contracts are consecutive.''
    In accordance with 5 U.S.C. 5924(2), an employee assigned to a 
foreign area may be granted a transfer allowance. Using this authority, 
USAID grants FTA and HSTA to its direct-hire employees under its 
policies in Automated Directives System (ADS) 477, particularly FSOs, 
following Department of State Standardized Regulations (DSSR) 240 and 
250 respectively, to offset expenses incurred by the employee incident 
to establishing oneself at any ``post of assignment'' abroad, or back 
in the U.S. for a new assignment after returning from a post abroad, 
subject to the employee fulfilling a requirement for continued service.
    Based on the applicable definition of ``employee'' in 5 U.S.C. 
5921(3), the Agency determined that USPSCs are not entitled to these 
allowances. The AIDAR has never authorized a benefit analogous to the 
FTA, HSTA, or any similar allowance in DSSR for USPSCs, because the 
Agency does not transfer a USPSC to another Mission under a directed 
assignment, unlike FSOs who are subject to worldwide availability and 
are thus required to move as a condition of continued employment.
    In October 2020, USAID's Acting Administrator exercised the 
Agency's policy discretion to authorize the creation of a ``relocation 
expense'' benefit, as proposed by this rule, that mirrors applicable 
elements of the FSO transfer allowances. The proposed relocation 
expense benefit addresses two of the four portions of the FTA that the 
Agency has adapted appropriately to the PSC mechanism: (1) The 
miscellaneous-expense portion; and, (2) the pre-departure subsistence 
portion (similar to Sections 242.1 and 242.3 of the DSSR, 
respectively). The miscellaneous expense is a flat amount, calculated 
based on family size, to offset common relocation expenses such as are 
identified and estimated in the DSSR. The subsistence portion offsets 
temporary lodging costs incurred for up to 10 days before travel to 
post, using per-diem rates based on the U.S. locality of the USPSCs 
legal place of residence.
    There are two contexts in which persons will be eligible for the 
two portions of the USAID USPSC relocation expense benefit: (1) An 
individual located in the U.S. who enters into a new contract for 12 
consecutive months or more of continuous service abroad qualifies for 
both the miscellaneous and pre-departure subsistence expense portions 
(paragraphs (a) and (b) of the proposed regulatory text); and (2) a 
contractor currently performing services abroad as a USAID USPSC who 
undertakes a new, 12-month minimum USPSC contract for continuous 
service abroad at a different Mission immediately following their 
current contract qualifies only for the miscellaneous expense portion 
(paragraph (a)). The relocation benefit will not be authorized for 
USPSCs who are returning to the U.S. for a new USPSC contract with 
USAID because the Agency does not pay relocation costs for any new 
position in the U.S. under any of its staffing mechanisms.
    The Agency determined that the principal rationale for the 
relocation benefit for USPSCs is equity between its USDH employees and 
USPSCs. Thus, the change in policy will provide USPSCs with a 
relocation benefit that is similar to that received by USAID's USDH to 
the practicable extent possible. USAID's provision of this benefit will 
establish a precedent among other U.S. Government departments and 
agencies that also contract for personal services.

III. AIDAR Changes

A. Paid Parental Leave

    This proposed rule will revise appendix D, section 12, clause 5, 
``Leave and Holidays,'' specifically to update the provision of family 
and medical leave to allow for any prior federal service to align with 
the provision of paid parental leave, and to add a separate new 
paragraph for the provision of paid parental leave itself.

B. Relocation Expense Benefit

    AIDAR appendix D contains the Agency's standard contract terms and 
conditions for USAID's USPSCs, and this proposed rule amends section 
12, General Provisions, with a new clause to provide the relocation 
expense fringe benefit authorized for USPSCs abroad.

IV. Regulatory Considerations and Determinations

A. Executive Orders 12866 and 13563

    This proposed 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 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 determined that addressing the Agency's workforce equity 
concerns justifies the cost impacts of the changes proposed by this 
rule. This is not a significant regulatory action and, therefore, was 
not subject to review under section 6(b) of E.O. 12866, Regulatory 
Planning and Review, dated September 30, 1993.

B. Expected Cost Impact on the Public

    As a regulatory matter, the cost of the rule-making process to 
incorporate these revisions into the regulation is also justified. The 
AIDAR's appendices include all the compensation and benefits available 
to personal services contractors. Therefore, the Agency needs these 
revisions to keep the regulation consistent, complete, and transparent 
to industry, other U.S. Government agencies, and the general public.
    There are no costs to the public associated with this rulemaking. 
The Agency's direct costs for each benefit proposed by this revision is 
as follows:
1. Paid Parental Leave (PPL)
    It is estimated that the average annual incremental cost to the 
Agency to provide the PPL benefit is $1.2 million starting in Year 1. 
This estimated cost assumes a base of 1,193 USPSCs and, over a 10-year 
period, an average of 47 USPSCs will make use of the PPL benefit each 
year. It further assumes each of the 47 USPSCs will take full advantage 
of 12 weeks of PPL paid leave for an average approximate cost of 
$25,600 per USPSC. The annual increase in cost to the Agency of 
providing the PPL benefit is 2.70% of the previous year's dollar cost. 
This 2.70% increase is a function of the assumed annual growth in the 
number of USPSCs and their salary and benefits.
2. Relocation Expense Benefit
    The costs calculated for this benefit are based on upper end 
estimates to illustrate the potential impact of this added fringe 
benefit. The estimated average Year 1 cost to the Agency for the 
proposed relocation benefit, based on 537 USPSCs performing abroad, is 
$1.29 million. The estimated average cost over a five-year period is 
$6.45 million.

C. Regulatory Flexibility Act

    The Director of the Office of Acquisition and Assistance in USAID's 
Bureau for Management, acting as the Head of the Agency for purposes of 
the

[[Page 2106]]

Federal Acquisition Regulation (FAR), certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 
601, et seq. Consequently, the Agency has not prepared a regulatory 
flexibility analysis.

D. 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 Chapter 7 Appendix D

    Government procurement.

    For the reasons discussed in the preamble, USAID proposes to amend 
48 CFR chapter 7 as follows:

CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT

0
1. The authority citation for 48 CFR chapter 7, appendix D, 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; 3 CFR, 
1979 Comp., p. 435.

0
2. Amend appendix D to chapter 7 as follows:
0
a. In sections 10 and 11, add provision number 30 to the list of 
General Provisions in the contract formats;
0
b. In section 12, under the Index of Clauses, add provision number 30;
0
c. In section 12, under General Provision number 5:
0
i. In the first sentence of paragraph (h), remove the word ``under'' 
and add in its place the words ``consistent with'';
0
ii. Revise paragraph (i)(3);
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iii. In the fourth sentence of paragraph (i)(5), remove ``CO'' and add 
in its place the words ``contracting officer'';
0
iv. Redesignate paragraph (j) as paragraph (k); and
0
v. Add new paragraph (j); and
0
d. In section 12, add provision number 30.
    The revisions and additions 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

* * * * *

10. Form USAID 1420-36, ``Cover Page'' and ``Schedule''

* * * * *
    General Provisions:
* * * * *

30. Relocation Expense

* * * * *

11. Optional Schedule With a U.S. Citizen or U.S. Resident Alien

* * * * *
    General Provisions:
* * * * *

30. Relocation Expense

* * * * *

12. General Provisions for a Contract With a U.S. Citizen or a U.S. 
Resident Alien for Personal Services Abroad

* * * * *

Index of Clauses

* * * * *

30. Relocation Expense

* * * * *

5. Leave and Holidays (NOV 2020)

* * * * *
    (i) * * *
    (3) In accordance with 29 CFR 825.110, to be eligible for family 
and medical leave, the contractor must have--
    (i) Been employed or under contract for at least twelve (12) 
months with a U.S. federal agency as a direct-hire or a personal 
services contractor; and
    (ii) Performed at least 1,250 hours of service with a U.S. 
federal agency as a direct hire or a personal services contractor 
during the previous 12-month period immediately preceding the 
commencement of family and medical leave.
* * * * *
    (j) Paid Parental Leave. (1) If the contractor is eligible for 
family and medical leave in accordance with paragraph (i) ``Family 
and Medical Leave'' of this clause, then instead of family and 
medical leave, the contractor may be authorized to take paid 
parental leave as specified in this paragraph, similar to that 
provided to USAID direct-hire employees. When authorized to do so by 
the contracting officer, the contractor may elect to substitute paid 
parental leave for up to twelve (12) workweeks of family and medical 
leave, as specified in paragraph (i) of this clause. The contractor 
may take such paid parental leave after the occurrence of the birth 
or placement of a child which results in the contractor assuming and 
continuing a parental role with respect to the newly born or placed 
child in accordance with the requirements of this paragraph (j).
    (2) Paid parental leave may be taken intermittently or on a 
reduced leave schedule, subject to the mutual agreement of the 
contractor and their supervisor. Paid parental leave must be used no 
later than the end of the 12-month period beginning on the date of 
the birth or placement involved. At the end of that 12-month period, 
any unused balance of paid parental leave expires and is not 
available for future use. No payment will be made for unused or 
expired paid parental leave. Paid parental leave is not annual 
leave, and thus will not be included in any lump-sum payment for 
annual leave following completion or termination of the contract.
    (3) To establish eligibility for paid parental leave, the 
contracting officer may require the contractor to provide 
documentation of entitlement and a signed certification. Appropriate 
documentation of entitlement is to show that the contractor's use of 
paid parental leave is directly connected with a birth or placement 
that has occurred, such as a birth certificate or a document from an 
adoption or foster care agency regarding the placement. By the 
signed certification, the contractor is attesting that the paid 
parental leave is being taken by the contractor in connection with 
the documented birth or placement, and that the contractor has a 
continuing parental role with respect to the newly born or placed 
child.
    (4)(i) The contractor may not use any paid parental leave unless 
the contractor agrees in writing, before commencement of the leave, 
to return immediately after completing paid parental leave to 
continue performance under this contract for at least 12 workweeks. 
This 12-workweek period of performance obligation begins on the 
contractor's first scheduled workday after the contractor concludes 
taking such leave, whether taken consecutively or intermittently, 
regardless of the amount of leave taken. The period of performance 
obligation by the contractor is fixed at 12 workweeks regardless of 
the amount of leave used by the contractor.
    (ii) Due to this 12-workweek mandatory period of performance 
obligation, the contracting officer will not authorize paid parental 
leave for use by the contractor within the last 12 workweeks before 
the contract end date, including option periods if any, regardless 
whether exercised. Within the last 24 workweeks of the contract, 
because of the mandatory 12-week period of obligation, the 
contracting officer will only authorize paid parental leave for any 
time remaining before the contract end date beyond the 12-week 
mandatory period of performance. Any paid parental leave taken by 
the contractor as well as the 12-week period of performance 
obligation must be completed by the contract end date, including any 
option periods, regardless of whether exercised.
    (iii) If the contractor is eligible for paid parental leave, but 
is physically or mentally incapable of entering into the period of 
performance obligation agreement before the period of leave, such 
leave may be temporarily authorized, or retroactively invoked upon 
return to duty, subject to a determination that, in the Agency's 
judgment, the contractor was incapable of entering into such 
agreement in accordance with the requirements of this paragraph at 
the time of the commencement of the leave entitlement.
    (5)(i) If, during the period of paid parental leave or of the 
required 12-workweek period of performance obligation, the 
contractor learns, or decides, they will not be able or willing to 
complete the period of performance obligation, the contractor must 
notify their supervisor and contracting officer of the situation as 
soon as possible. After receiving such notice, the contracting 
officer will coordinate with the supervisor to determine whether 
reimbursement is required in accordance with this paragraph.
    (ii) If the contractor fails to return to work for the required 
12-week obligation, the Agency will require reimbursement from the 
contractor of an amount equal to the total

[[Page 2107]]

amount of the Government contributions paid by the Agency to or on 
behalf of the contractor to maintain the contractor's health 
insurance coverage during the period of paid parental leave.
    (iii) The contracting officer may waive the reimbursement 
requirement of this paragraph if the contractor is unable to fulfill 
the required 12-workweek obligation for any of the following 
reasons:
    (A) In the Agency's judgment, the contractor is unable to return 
to work because of the continuation, recurrence, or onset of a 
serious health condition (including mental health) of the contractor 
or the newly born or placed child--but only if the condition is 
related to the applicable birth or placement; or
    (B) in the Agency' judgment, the contractor is unable to return 
to work due to circumstances beyond the contractor's control that 
precludes performance under the contract; or
    (C) the contracting officer terminates the contract for 
convenience in accordance with the clause entitled ``Termination'', 
or does not exercise any option period.
* * * * *

30. Relocation Expense Benefit

    [Insert the following clause in contracts with USPSCs based 
abroad except Resident Hire USPSCs.]

Relocation Expense Benefit (DATE)

    If the contractor's period of performance abroad is for twelve 
consecutive months or more, USAID may provide a one-time payment to 
assist the contractor with extraordinary relocation expenses as 
follows:
    (a) A contractor legally residing in, and relocating from the 
U.S., its commonwealth, possessions or territories to an overseas 
post; or a personal services contractor relocating immediately from 
a prior USAID overseas post to the USAID overseas post under this 
contract, may receive a miscellaneous relocation expense payment 
of--
    (1) $750 or the equivalent of one week's pay, whichever is the 
lesser amount, if the contractor is unaccompanied; or
    (2) $1,500 or the equivalent of two weeks' pay, whichever is the 
lesser amount, if the contractor is accompanied with eligible family 
members.
    (b) In addition, a contractor legally residing in, and 
relocating from the U.S., its commonwealth, possessions or 
territories to the cooperating country pursuant to this personal 
services contract may receive a pre-departure subsistence expense 
reimbursement for the contractor and each eligible family member for 
up to 10 days before final departure to the cooperating country 
abroad, beginning not more than 30 days after the contractor has 
vacated their residence, using the following partial flat rate 
method:
    (1) An actual lodging amount (excluding lodging tax) up to the 
lodging portion of the per diem of the U.S. locality of the 
contractor's legal place of residence, and a flat amount equal to 
the meal and incidental expense (M&IE) portion of the per diem 
according to the formula below. In addition, the contractor may be 
reimbursed separately for taxes imposed on actual lodging expenses, 
if any. Receipts are required only for lodging.
    (2) For the initial occupant, whether the contractor or 
accompanying eligible family member age 12 or over, a daily lodging 
amount not in excess of the published lodging portion of the per 
diem rate for the U.S. locality at which the occupant normally 
resides, and a flat amount equal to the meal and incidental expense 
portion of the referenced per diem rate to defray costs for meals, 
laundry and dry cleaning.
    (3) For each additional occupant, whether the contractor or 
accompanying eligible family member age 12 or over, a daily lodging 
amount not in excess of 75% of the published lodging portion of the 
per diem rate for the U.S. locality at which the occupant normally 
resides, and a flat amount equal to 75% of the meal and incidental 
expense portion of the referenced per diem rate to defray costs for 
meals, laundry and dry cleaning.
    (4) For each accompanying eligible family member occupant under 
age 12, a daily lodging amount not in excess of 50% of the published 
lodging portion of the per diem rate for the U.S. locality at which 
the occupant normally resides, and a flat amount equal to 50% of the 
meal and incidental expense portion of the referenced per diem rate 
to defray costs for meals, laundry and dry cleaning.
    (5) A contractor and any accompanying eligible family member 
relocating from a place other than the U.S., its commonwealth, 
possessions or territories to the cooperating country, will not be 
eligible for the pre-departure subsistence expense portion of the 
relocation expenses.
    (6) Expenses of local transportation are not allowable.
    (c) The contractor must obtain approval for what is authorized 
in paragraphs (a) and (b) of this clause in the Travel Authorization 
(TA) issued by USAID to the contractor, in accordance with the 
Travel and Transportation Expenses clause. The contractor must claim 
reimbursement under the TA only after the contractor and all 
accompanying eligible family members, if any, have arrived in the 
cooperating country.
    (d) If the contractor does not complete twelve consecutive 
months in the cooperating country, except for reasons beyond the 
contractor's control, the contractor will be liable to reimburse 
USAID for the amount of the relocation expense benefit received.

Mark Walther,
Chief Acquisition Officer.
[FR Doc. 2021-27944 Filed 1-12-22; 8:45 am]
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