81 FR 48715 - Various Administrative Changes and Clauses to the USAID Acquisition Regulation

AGENCY FOR INTERNATIONAL DEVELOPMENT

Federal Register Volume 81, Issue 143 (July 26, 2016)

Page Range		48715-48719
FR Document		2016-16643
The U.S. Agency for International Development (USAID) is issuing a final rule amending the Agency for International Development Acquisition Regulation (AIDAR) to maintain consistency with Federal and Agency regulations and incorporate current and new USAID clauses into the regulation.
Federal Register, Volume 81 Issue 143 (Tuesday, July 26, 2016)
[Federal Register Volume 81, Number 143 (Tuesday, July 26, 2016)]
[Rules and Regulations]
[Pages 48715-48719]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-16643]


=======================================================================
-----------------------------------------------------------------------

AGENCY FOR INTERNATIONAL DEVELOPMENT

48 CFR Parts 722, 729, 731, and 752

RIN 0412-AA78


Various Administrative Changes and Clauses to the USAID 
Acquisition Regulation

AGENCY: U.S. Agency for International Development.

ACTION: Final rule.

-----------------------------------------------------------------------

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

DATES: Effective Date: August 25, 2016.

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

SUPPLEMENTARY INFORMATION:

A. Background

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

[[Page 48716]]

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

B. Discussion and Analysis

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

C. Regulatory Planning and Review

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

D. Regulatory Flexibility Act

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

E. Paperwork Reduction Act

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

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

    Government procurement.

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

CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

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

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 
1979 Comp., p. 435.

Subpart 722.8--Equal Employment Opportunity

0
2. Revise section 722.810 to read as follows:


722.810  Solicitation provisions and contract clauses.

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

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

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

PART 729--TAXES

Subpart 729.4--Contract Clauses


729.402-70  Foreign contracts.

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

Subpart 729.4--Contract Clauses


729.402-70  Foreign contracts.

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

PART 731--CONTRACT COST PRINCIPLES AND PROCEDURES

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

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 
1979 Comp., p. 435.

Subpart 731.2--Contracts With Commercial Organizations

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


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

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

[[Page 48717]]

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

SUBCHAPTER H--CLAUSES AND FORMS

PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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

    Authority:  Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 
1979 Comp., p. 435.


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


752.222-71  Nondiscrimination.

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

Nondiscrimination (June 2012)

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

(End of clause)


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


752.229-71  Reporting of foreign taxes.

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

Reporting of Foreign Taxes (July 2007)

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

(End of clause)


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


752.231-72  Conference planning and required approvals.

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

Conference Planning and Required Approvals (Aug 2013)

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

[[Page 48718]]

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


0
10. Add section 752.7036 to read as follows:


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

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

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

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

(End of clause)


0
11. Add section 752.7037 to read as follows:


752.7037  Child safeguarding standards.

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

Child Safeguarding Standards (Aug. 2016)

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

[[Page 48719]]

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

(End of clause)

    Dated: June 29, 2016.
Roy Plucknett,
Chief Acquisition Officer.
[FR Doc. 2016-16643 Filed 7-25-16; 8:45 am]
 BILLING CODE 6116-01-P
Federal Register / Vol. 81, No. 143 / Tuesday, July 26, 2016 / Rules and Regulations 48715

Priority Mail & First-Class Package Service Inbound Direct Entry Contracts with Acquisition Regulation (AIDAR) to
Contract 16 Customers maintain consistency with Federal and
Priority Mail & First-Class Package Service Inbound Direct Entry Contracts with Agency regulations and incorporate
Contract 17 Foreign Postal Administrations
current and new USAID clauses into the
Priority Mail & First-Class Package Service Inbound Direct Entry Contracts with
Contract 18 Foreign Postal Administrations regulation.
Priority Mail & First-Class Package Service Inbound Direct Entry Contracts with DATES: Effective Date: August 25, 2016.
Contract 19 Foreign Postal Administrations 1 FOR FURTHER INFORMATION CONTACT:
Priority Mail & Parcel Select Contract 1 Inbound EMS Lyudmila Bond, Telephone: 202–567–
Outbound International* Inbound EMS 2
4753 or Email: lbond@usaid.gov.
Global Expedited Package Services (GEPS) Inbound Air Parcel Post (at non-UPU rates)
Contracts Royal Mail Group Inbound Air Parcel Post SUPPLEMENTARY INFORMATION:
GEPS 3 Agreement
A. Background
GEPS 5 Inbound Competitive Multi-Service
GEPS 6 Agreements with Foreign Postal USAID published a proposed rule in
Global Bulk Economy (GBE) Contracts Operators the Federal Register at 80 FR 69930 on
Global Plus Contracts Inbound Competitive Multi-Service November 12, 2015 soliciting public
Global Plus 1C Agreements with Foreign Postal comments on the inclusion of several
Global Plus 1D Operators 1 agency-specific clauses into the Agency
Global Plus 2C Special Services*
Global Plus 3 Address Enhancement Services
for International Development
Global Reseller Expedited Package Greeting Cards, Gift Cards, and Stationery Acquisition Regulation (AIDAR). The
Contracts International Ancillary Services highlights of the changes are as follows:
Global Reseller Expedited Package Services International Money Transfer Service— • Sections 722.810 and 752.222–71
1 Outbound are added to encourage all USAID
Global Reseller Expedited Package Services International Money Transfer Service— contractors performing and recruiting
2 Inbound entirely outside the United States to
Global Reseller Expedited Package Services Premium Forwarding Service develop and enforce employment
3 Shipping and Mailing Supplies nondiscrimination policies with regard
Global Reseller Expedited Package Services Post Office Box Service
4 Competitive Ancillary Services
to race, color, religion, sex (including
Global Expedited Package Services Nonpostal Services* pregnancy and gender identity), sexual
(GEPS)—Non-Published Rates Advertising orientation, marital status, parental
Global Expedited Package Services Licensing of Intellectual Property other status, political affiliation, national
(GEPS)—Non-Published Rates 2 than Officially Licensed Retail Products origin, disability, age, genetic
Global Expedited Package Services (OLRP) information, veteran status or any other
(GEPS)—Non-Published Rates 3 Mail Service Promotion conduct that does not adversely affect
Global Expedited Package Services Officially Licensed Retail Products (OLRP) the performance of the employee.
(GEPS)—Non-Published Rates 4 Passport Photo Service • New part 729, subpart 729.4,
Global Expedited Package Services Photocopying Service
(GEPS)—Non-Published Rates 5
sections 729.204–70 and 752.229–70
Rental, Leasing, Licensing or other Non-
Global Expedited Package Services Sale Disposition of Tangible Property require contractors to report the
(GEPS)—Non-Published Rates 6 Training Facilities and Related Services amounts of foreign taxes assessed by a
Global Expedited Package Services USPS Electronic Postmark (EPM) Program foreign government on commodities
(GEPS)—Non-Published Rates 7 Market Tests* financed with U.S. Foreign Assistance
Global Expedited Package Services International Merchandise Return Service funds. The reporting is used to require
(GEPS)—Non-Published Rates 8 (IMRS)—Non-Published Rates the countries to reimburse the taxes or
Global Expedited Package Services Customized Delivery duties imposed on U.S. foreign
(GEPS)—Non-Published Rates 9 Global eCommerce Marketplace (GeM) assistance funds and for certain
Global Expedited Package Services
(GEPS)—Non-Published Rates 10 Stacy L. Ruble, reporting to Congress.
Priority Mail International Regional Rate Secretary. • Sections 731.205–43 and 752.231–
Boxes—Non-Published Rates [FR Doc. 2016–17632 Filed 7–25–16; 8:45 am]
72 are added to mitigate the risk of
Outbound Competitive International inappropriate spending, as mandated by
BILLING CODE 7710–FW–P
Merchandise Return Service Agreement Executive Order 13589 ‘‘Promoting
with Royal Mail Group, Ltd. Efficient Spending’’ dated November 9,
Priority Mail International Regional Rate 2011. Contractors are required to obtain
Boxes Contracts Priority Mail AGENCY FOR INTERNATIONAL USAID written approval prior to
International Regional Rate Boxes DEVELOPMENT committing costs related to USAID-
Contracts 1
Competitive International Merchandise 48 CFR Parts 722, 729, 731, and 752 funded conferences that meet the
Return Service Agreements with Foreign criteria provided in section 731.205–43.
Postal Operators RIN 0412–AA78 • New section 752.7036 directs
Competitive International Merchandise contractors to register with the
Return Service Agreements with Foreign Various Administrative Changes and Implementing Partner Notices (IPN)
Postal Operators 1 Clauses to the USAID Acquisition Portal, where USAID uploads contract
Competitive International Merchandise Regulation modifications that affect multiple
Return Service Agreements with Foreign awards and provides notices to
AGENCY: U.S. Agency for International
Postal Operators 2 contractors.
rmajette on DSK2TPTVN1PROD with RULES

Inbound International* Development.
ACTION: Final rule. • Section 752.7037 is added to
International Business Reply Service
(IBRS) Competitive Contracts promote child safeguarding when
International Business Reply Service SUMMARY: The U.S. Agency for implementing USAID programs. The
Competitive Contract 1 International Development (USAID) is clause complements the USAID Counter
International Business Reply Service issuing a final rule amending the Trafficking in Persons (C–TIP) Code of
Competitive Contract 3 Agency for International Development Conduct by expanding the range of

VerDate Sep<11>2014 13:45 Jul 25, 2016 Jkt 238001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\26JYR1.SGM 26JYR1
48716 Federal Register / Vol. 81, No. 143 / Tuesday, July 26, 2016 / Rules and Regulations

actions prohibited by USAID to include C. Regulatory Planning and Review PART 729—TAXES
abuse, exploitation, or neglect of This rule has been determined to be
children. Subpart 729.4—Contract Clauses
‘‘nonsignificant’’ under the Executive
B. Discussion and Analysis Order 12866, Regulatory Planning and 729.402–70 Foreign contracts.
Review, dated September 30, 1993 and,
One comment was received in Authority: Sec. 621, Pub. L. 87–195, 75
therefore, is not subject to review. This
response to the proposed rule, which Stat. 445 (22 U.S.C. 2381), as amended; E.O.
rule is not a major rule under 5 U.S.C. 12163, 44 FR 56673, 3 CFR 1979 Comp., p.
USAID reviewed in the development of
804. 435.
the final rule. No other comments were
received. D. Regulatory Flexibility Act
A discussion of the comment received Subpart 729.4—Contract Clauses
The rule will not have an impact on
and the resulting changes are provided 729.402–70 Foreign contracts.
a substantial number of small entities
as follows: (a) Section 579 of the Foreign
Comment: One respondent within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. Operations, Export Financing, and
recommended that USAID clarify the Related Programs Appropriations Act of
impact of the transfer of the Therefore, an Initial Regulatory
Flexibility Analysis has not been FY 2003 requires certain steps to
requirements for prior written approval prevent countries from imposing taxes
of conference costs from Agency performed.
[defined as Value Added Tax (VAT) or
internal policies into the AIDAR section E. Paperwork Reduction Act customs duties] on U.S. foreign
731.205–43. The respondent correctly The proposed rule does not establish assistance, or if imposed, requires the
pointed out that the intent of including a new collection of information that countries to reimburse the assessed
these requirements in section 731.205– requires the approval of the Office of taxes or duties. The Act also requires
43 was to make the costs associated Management and Budget under the certain reporting to Congress. The
with a conferences meeting the criteria Paperwork Reduction Act (44 U.S.C. Department of State has published
in the subpart unallowable, if the chapter 35). guidance for implementing this section
contractor did not obtain the required of the Act. See http://2001-
prior written approval. To minimize List of Subjects in 48 CFR Parts 722, 2009.state.gov/s/d/rm/c10443.htm for
potential disagreement between the 729, 731, and 752 further information.
contractors and the Government, and to Government procurement. (b) Contracting Officers (COs) must
mitigate the risk of litigations, the insert the clause at 752.229–71,
For the reasons discussed in the
respondent recommended including a Reporting of Foreign Taxes in section I
preamble, USAID amends 48 CFR
statement in the section 731.205–43 to of solicitations and resulting contracts
chapter 7 as set forth below:
clarify this point. Doing so would also that obligate or subobligate FY 2003 or
ensure that such costs are expressly CHAPTER 7—AGENCY FOR later funds except for the following:
unallowable and thus subject to the INTERNATIONAL DEVELOPMENT
(1) Contracts funded with Operating
penalties provided in FAR 42.709. SUBCHAPTER D—SOCIOECONOMIC Expense, Public Law 83–480 funds, or
Response: We concur with the PROGRAMS trust funds; or
respondent’s recommendation. Based on (2) Contracts where there will be no
this public comment, USAID is revising PART 722—APPLICATION OF LABOR commodity transactions in a foreign
section 731.205–43 to include a new LAWS TO GOVERNMENT country over the amount of $500.
paragraph stating that costs associated ACQUISITION
with a conference, meeting the criteria PART 731—CONTRACT COST
in the subpart, are unallowable, when ■ 1. The authority citation for 48 CFR PRINCIPLES AND PROCEDURES
the required prior written approval for part 722 continues to read as follows:
such costs is not obtained. Authority: Sec. 621, Pub. L. 87–195, 75 ■ 4. The authority citation for 48 CFR
In addition, the final rule includes the Stat. 445, (22 U.S.C. 2381) as amended; E.O. part 731 continues to read as follows:
following minor editorial changes from 12163, Sept. 29, 1979, 44 FR 56673; and 3 Authority: Sec. 621, Pub. L. 87–195, 75
the proposed rule, based on further CFR 1979 Comp., p. 435. Stat. 445, (22 U.S.C. 2381) as amended; E.O.
Agency review and comments from 12163, Sept. 29, 1979, 44 FR 56673; and 3
OMB and other agencies: Subpart 722.8—Equal Employment CFR 1979 Comp., p. 435.
• A new paragraph was added to Opportunity
section 731.205–43 to specify that Subpart 731.2—Contracts With
■ 2. Revise section 722.810 to read as Commercial Organizations
contracting Officers or the contracting
follows:
officer’s representatives will provide ■ 5. Add section 731.205–43 to read as
conference cost approvals following 722.810 Solicitation provisions and follows:
Agency internal procedures in contract clauses.
Automated Directive System (ADS) (a) The contracting officer must insert 731.205–43 Trade, business, technical and
Chapter 580. the clause at 752.222–70, USAID professional activity costs—USAID
• The clause at 752.231–72 is revised Disability Policy in section I of all conference approval requirements.
to make clear that contractors must solicitations and resulting contracts. (a) The contractor must obtain prior
obtain the required approvals for (b) The contracting officer must insert written approval from the contracting
conferences from the contracting officer the clause at 752.222–71, officer, or the contracting officer’s
rmajette on DSK2TPTVN1PROD with RULES

or contracting officer’s representative. Nondiscrimination in section I of all representative (COR), if delegated in the
• The definition of the universal solicitations and resulting contracts. Contracting Officer’s Representative
bilateral modification at 752.3036 has Designation Letter, for costs related to
been slightly edited to conform to the SUBCHAPTER E—GENERAL conferences funded in whole or in part
CONTRACTING REQUIREMENTS
plain language requirements. with USAID funds when:
• The clause at 752.222–71 is revised ■ 3. Add part 729 to subchapter E to (1) Twenty (20) or more USAID
for clarity. read as follows: employees are expected to attend.

VerDate Sep<11>2014 13:45 Jul 25, 2016 Jkt 238001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\26JYR1.SGM 26JYR1
Federal Register / Vol. 81, No. 143 / Tuesday, July 26, 2016 / Rules and Regulations 48717

(2) The net conference expense FAR. In addition, the Agency strongly point of contact at the Embassy, Mission, or
funded by USAID will exceed $100,000 encourages all its contractors (at all tiers) to CFO/CMP as appropriate].
(excluding salary of employees), develop and enforce nondiscrimination (e) Subagreements. The contractor must
policies consistent with USAID’s approach to include this reporting requirement in all
regardless of the number of USAID applicable subcontracts and other
workplace nondiscrimination as described in
participants. this clause, subject to applicable law. subagreements.
(b) The contracting officer or the (f) For further information see http://2001–
(End of clause)
contracting officer’s representative will 2009.state.gov/s/d/rm/c10443.htm.
follow the internal Agency procedures ■ 8. Add section 752.229–71 to read as (End of clause)
for review and approval of conference follows:
costs, as specified in Automated ■ 9. Add section 752.231–72 to read as
Directive System (ADS) chapter 580, 752.229–71 Reporting of foreign taxes. follows:
prior to providing such approval to the As prescribed in (48 CFR) AIDAR 752.231–72 Conference planning and
contractor. 729.402–70, insert the following clause required approvals.
(c) Costs associated with a conference in section I of applicable solicitations
As prescribed in (48 CFR) AIDAR
that meets the criteria above, incurred and resulting contracts. The contracting
731.205–43, insert the following clause
without USAID prior written approval, officer must insert address and point of
in section I of all solicitations and
are unallowable. contact at the Embassy, Mission, or M/
resulting contracts anticipated to
(d) Contracting officers must insert CFO/CMP as appropriate under
include a requirement for a USAID-
the clause at 752.231–72 in all USAID- paragraph (d) of this clause.
funded conference, as defined in the
funded solicitations and contracts Reporting of Foreign Taxes (July 2007) clause.
anticipated to include a requirement for
(a) The contractor must annually submit a Conference Planning and Required
a USAID-funded conference. See (48
report by April 16 of the next year. Approvals (Aug 2013)
CFR) AIDAR 752.231–72 for the (b) Contents of report. The report must
definition of a conference and specific contain: (a) Definitions. Conference means a
requirements and procedures. seminar, meeting, retreat, symposium,
(1) Contractor name.
workshop, training activity or other such
SUBCHAPTER H—CLAUSES AND FORMS (2) Contact name with phone, fax number
event that requires temporary duty travel of
and email address.
USAID employees. For the purpose of this
PART 752—SOLICITATION (3) Contract number(s).
policy, an employee is defined as a U.S.
(4) Amount of foreign taxes assessed by a
PROVISIONS AND CONTRACT direct hire; personal services contractor,
foreign government [each foreign government
CLAUSES including U.S. PSCs, Foreign Service
must be listed separately] on commodity
National (FSN)/Cooperating Country
purchase transactions valued at $500 or more
■ 6. The authority citation for 48 CFR National (CCN) and Third Country National
financed with U.S. foreign assistance funds (TCN); or a Federal employee detailed to
part 752 continues to read as follows: under this agreement during the prior U.S. USAID from another government agency.
Authority: Sec. 621, Pub. L. 87–195, 75 fiscal year. (b) The contractor must obtain approval
Stat. 445, (22 U.S.C. 2381) as amended; E.O. (5) Only foreign taxes assessed by the from the contracting officer or the contracting
12163, Sept. 29, 1979, 44 FR 56673; and 3 foreign government in the country receiving officer’s representative (COR), if delegated in
CFR 1979 Comp., p. 435. U.S. assistance are to be reported. Foreign the Contracting Officer’s Representative
taxes by a third party foreign government are Designation Letter, as prescribed in 731.205–
■ 7. Add section 752.222–71 to read as not to be reported. For example, if a
follows: 43, prior to committing costs related to
contractor performing in Lesotho using conferences funded in whole or in part with
foreign assistance funds should purchase USAID funds when:
752.222–71 Nondiscrimination.
commodities in South Africa, any taxes (1) Twenty (20) or more USAID employees
As prescribed in (48 CFR) AIDAR imposed by South Africa would not be are expected to attend.
722.810(b), insert the following clause included in the report for Lesotho (or South (2) The net conference expense funded by
in section I of all solicitations and Africa). USAID will exceed $100,000 (excluding
resulting contracts. (6) Any reimbursements received by the salary of employees), regardless of the
contractor during the period in paragraph number of USAID participants.
Nondiscrimination (June 2012) (b)(4) of this clause regardless of when the (c) Conferences approved at the time of
FAR part 22 and the clauses prescribed in foreign tax was assessed and any award will be incorporated into the award.
that part prohibit contractors performing in reimbursements on the taxes reported in Any subsequent requests for approval of
or recruiting from the U.S. from engaging in paragraph (b)(4) of this clause received conferences must be submitted by the
certain discriminatory practices. through March 31. contractor to the USAID contracting officer
USAID is committed to achieving and (7) Report is required even if the contractor representative (COR). The contracting officer
maintaining a diverse and representative did not pay any taxes during the reporting representative will obtain the required
workforce and a workplace free of period. agency approvals and communicate such
discrimination. Based on law, Executive (8) Cumulative reports may be provided if approvals to the contractor in writing.
Order, and Agency policy, USAID prohibits the contractor is implementing more than (d) The request for conference approval
discrimination in its own workplace on the one program in a foreign country. must include:
basis of race, color, religion, sex (including (c) Definitions. As used in this clause— (1) A brief summary of the proposed event;
pregnancy and gender identity), national (1) Agreement includes USAID direct and (2) A justification for the conference and
origin, disability, age, veteran’s status, sexual country contracts, grants, cooperative alternatives considered, e.g., teleconferencing
orientation, genetic information, marital agreements and interagency agreements. and videoconferencing;
status, parental status, political affiliation, (2) Commodity means any material, article, (3) The estimated budget by line item (e.g.,
and any other conduct that does not supply, goods, or equipment. travel and per diem, venue, facilitators,
adversely affect the performance of the (3) Foreign government includes any meals, equipment, printing, access fees,
rmajette on DSK2TPTVN1PROD with RULES

employee. USAID does not tolerate any type foreign governmental entity. ground transportation);
of discrimination (in any form, including (4) Foreign taxes means value-added taxes (4) A list of USAID employees attending
harassment) of any employee or applicant for and customs duties assessed by a foreign and a justification for each; and the number
employment on any of the above-described government on a commodity. It does not of other USAID-funded participants (e.g.,
bases. include foreign sales taxes. institutional contractors);
Contractors are required to comply with (d) Where. Submit the reports to: (5) The venues considered (including
the nondiscrimination requirements of the [contracting officer must insert address and government-owned facility), cost

VerDate Sep<11>2014 13:45 Jul 25, 2016 Jkt 238001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\26JYR1.SGM 26JYR1
Document Created: 2018-02-08 08:01:17
Document Modified: 2018-02-08 08:01:17
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective Date: August 25, 2016.
Contact		Lyudmila Bond, Telephone: 202-567-4753 or Email: [email protected]
FR Citation		81 FR 48715
RIN Number		0412-AA78
CFR Citation		48 CFR 722 48 CFR 729 48 CFR 731 48 CFR 752