81 FR 73352 - Requirement for Nondiscrimination Against End-Users of Supplies or Services (“Beneficiaries”) Under USAID-Funded Contracts
AGENCY FOR INTERNATIONAL DEVELOPMENT Federal Register Volume 81, Issue 206 (October 25, 2016)
Federal Register Volume 81, Issue 206 (October 25, 2016)
| Page Range | 73352-73354 | |
| FR Document | 2016-25881 |
[Federal Register Volume 81, Number 206 (Tuesday, October 25, 2016)] [Rules and Regulations] [Pages 73352-73354] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-25881] ======================================================================= ----------------------------------------------------------------------- AGENCY FOR INTERNATIONAL DEVELOPMENT 48 CFR Part 752 RIN 0412-AA81 Requirement for Nondiscrimination Against End-Users of Supplies or Services (``Beneficiaries'') Under USAID-Funded Contracts AGENCY: U.S. Agency for International Development. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Foreign Assistance Act of 1961, as amended (FAA), authorizes the U.S. Agency for International Development (USAID) to provide foreign assistance in the form of development and humanitarian assistance that reflect American ideals. To help emphasize USAID's intent and expectation of non-discrimination of beneficiaries in USAID- funded activities, USAID is issuing a final rule to amend its Agency for International Development Acquisition Regulation (AIDAR) to include a new clause entitled ``Nondiscrimination against End-Users of Supplies or Services.'' This clause expressly states that USAID-funded contractors must not discriminate among end-users of supplies or services (referred to in this rule as beneficiaries and potential beneficiaries) in any way that is contrary to the scope of the activity as defined in the statements of work (SOWs). DATES: Effective: October 25, 2016. FOR FURTHER INFORMATION CONTACT: Todd Larson Telephone: 202-712-4969 or Email: [email protected]. SUPPLEMENTARY INFORMATION: I. Background USAID published a proposed rule in the Federal Register at 81 FR 56572 on August 22, 2016 to amend its Agency for International Development Acquisition Regulation (AIDAR) to include a new clause entitled ``Nondiscrimination against End-Users of Supplies or Services.'' USAID seeks to improve the lives of people around the world by being inclusive in its development and humanitarian assistance efforts. In so doing, USAID recognizes that every person is instrumental in the transformation of their own societies, with the end result that each and every person is recognized and equally valued without regard to artificial and discriminatory distinctions. The inclusion, protection, and empowerment of all persons is critical because drawing on the full contributions of the entire population leads to more effective, comprehensive, and sustainable development results. Nondiscrimination is the basic foundation of USAID's inclusive development approach; as such, all USAID programs seek to ensure access for all potential beneficiaries within the scope of the contract without discrimination. Contractors must adhere to this by implementing the activities as outlined in the contract SOWs. Nondiscrimination is a critical foundation for protecting and promoting the human rights of all persons. In addition, nondiscrimination ensures equitable access to USAID programs. Effective nondiscrimination practices support USAID's principles of inclusion and equal access and help to ensure that USAID programs empower and effectively reach women and girls; marginalized ethnic and religious populations; indigenous peoples; internally displaced persons; persons with disabilities; youth and the elderly; lesbian, gay, bisexual, transgender, and intersex individuals; and other socially marginalized individuals and peoples unique to the country or regional context. In recent years, the Government has made multiple pronouncements of policy in many areas reflecting its emphasis on equity, fairness, and human dignity--effective nondiscrimination is a means toward achieving all of these. For example, in 2011, the White House issued E.O. 13563, ``Improving Regulation and Regulatory Review,'' to update all agencies on factors to consider when issuing rules; in addition to quantitative factors, it advised that the qualitative values of equity, fairness, and human dignity are important considerations. Additionally, a 2011 Presidential Memorandum, ``International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons,'' directs all agencies engaged abroad to advance nondiscrimination. This rule addressing discrimination in the provision of supplies or services is consistent with the values that animate the above. II. Discussion This rulemaking revises (48 CFR) AIDAR to add a new clause at 752.7038 entitled ``Nondiscrimination against End-Users of Supplies or Services.'' The clause, applicable to all solicitations, contracts, and subcontracts at any tier, prohibits contractors and subcontractors from discriminating against beneficiaries or potential beneficiaries (i.e., those individuals intended to [[Page 73353]] receive the benefits of the award, whether goods or services) on the basis of any characteristics not expressly stated in the award. The purpose of this rulemaking is to ensure adherence to the intent and authorities in the FAA, and other statutes related to humanitarian assistance and international development. The intent of the FAA is to help people, without regard to irrelevant and discriminatory distinctions among them. This intent is reflected in many places in the statute. The first words of the Act set out that it seeks to promote United States interests ``by assisting peoples of the world.'' Congress explained its intent thusly in FAA section 101: ``[T]he Congress reaffirms the traditional humanitarian ideals of the American people and renews its commitment to assist people in developing countries to eliminate hunger, poverty, illness, and ignorance.'' A survey of FAA provisions relevant to USAID awards reflects that they focus on development and humanitarian assistance needs and effectiveness toward meeting them. For example, FAA section 103, on agriculture, rural development, and nutrition, suggests assistance should focus on alleviating poverty. FAA section 104, on health-related assistance, suggests limited targeting of activities to the specialized health needs of children, infants, and mothers. FAA section 491, on international disaster assistance, contemplates ``prompt United States assistance to alleviate human suffering'' and emphasizes that the implementing agency ``shall insure that the assistance provided by the United States shall, to the greatest extent possible, reach those most in need of relief and rehabilitation as a result of natural and manmade disaster.'' In some contexts, such as assistance for child survival, the foreign assistance authorities contemplate a focus on women and children, but that is a matter of programmatic need and effectiveness. USAID has identified no context where excluding individuals from assistance based on any of the types of discrimination proscribed by this clause, outside the scope of the award, would have a positive effect on implementing USAID's foreign assistance authorities. The main effect of this clause is to ensure that USAID's policy and practice of non-discrimination in planning projects and activities is followed through to completion by the contractors that implement them. Its impact on contractors and offerors is to remind them to follow the terms and conditions of the contract, including the implementation of the SOW as designed, and to refrain from the types of discrimination described in the clause. In itself, the clause serves as a reminder to contractors and offerors of USAID's long-standing, pre-existing expectations based on USAID's programmatic and planning priorities and authorities. III. Summary of Comments and Explanation of Revisions The proposed rule was published for public comment pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 1707). In total, six public comments were received. All six comments were supportive in nature. Five commenters recommended minor edits to the second sentence of subsection (a) of the rule to clarify that all of the listed categories are included among the factors, which if not expressly stated in the award, are precluded from being used as a basis for discrimination by the contractor. The second sentence of this final rule has accordingly been clarified in response to these comments to eliminate any potential ambiguity. Four commenters suggested that the rule be modified to apply to USAID grantees and be included in USAID grant and cooperative agreement awards. One commenter also urged that the rule be clarified to apply to subcontracts and subgrants. These comments did not warrant any changes to the final rule. The AIDAR only applies to contracts. USAID will address assistance awards (i.e., grants and cooperative agreements) and subawards separately from this rulemaking. Additionally, the new clause already specifies in subsection (b) that it must be inserted in all subcontracts at any tier. One commenter recommended the inclusion of language in the third sentence of the new clause to specify that targeted activities by the contractor toward the assistance needs of certain populations specified in the contract must serve a ``legitimate programmatic purpose.'' This change was not included in the final rule, as the programmatic purpose of USAID contracts is already considered as part of the contract SOWs. On its own initiative, USAID made a minor editorial revision to better clarify the regulation, replacing the article ``a'' with ``the'' in the third sentence of the clause to clearly refer to the contractor receiving a USAID funded contract. Finally, USAID also received a comment outside the scope of this rule from one commenter urging the Agency to examine its reporting and verification procedures to ensure compliance with the rule, and urging the government-wide harmonization of nondiscrimination policies for beneficiaries of foreign assistance. IV. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess the costs and benefits of the intended regulation. E.O. 13563 allows that in making this assessment, an agency ``may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.'' The estimated costs of this rulemaking do not exceed the threshold of economic significance (i.e., an annual effect on the economy of $100 million or more). However, the rule has been designated a ``significant regulatory action'' under section 3(f) of Executive Order 12866 and therefore it has been reviewed by the Office of Management and Budget. This rule provides a benefit by promoting non-discrimination, which itself promotes programmatic efficiency, with very little additional administrative burden for the affected entities, USAID contractors. It does not ask them to carry out activities beyond those in their contract SOWs and terms and conditions; it does not ask them to alter the manner in which they conduct the work as set out in their contracts. In fact, it reminds them to stay within those instructions. The only potential cost the Agency could identify for contractors and subcontractors is for minimal training, to the extent that contractors do not already proscribe discrimination as part of the normal conduct of their business. USAID awards approximately 1,300 contracts/task orders annually. As a practical matter for these current contracts, even absent this clause, if for example a contract specified the provision of food parcels in a certain community, the contractor could not, on its own, decide that only certain members of that community should receive the food parcels or that certain members should be excluded. Including this clause in all new contracts and subcontracts going forward provides an explicit reminder of USAID's expectation that its contractors not discriminate against any protected group or individual, and is particularly important in countries where stigma and discrimination toward certain groups is tolerated or officially endorsed by the government. The benefits of the rule would be to [[Page 73354]] expressly reinforce notions of equity, fairness, and human dignity under Federal Government contracts. Contractors responding to a solicitation (e.g. request for proposals (RFP) or invitation for bid (IFB)) would further be on notice not to include any discriminatory criteria in their response to a solicitation, absent specific programmatic justification in the SOW to do so. V. Regulatory Flexibility Act Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. It requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. In fiscal year 2015, 330 small businesses received USAID funds. In fiscal years 2011, 2012, 2013, and 2014 the 391, 384, 349, and 363 small businesses received USAID funds, respectively. The requirement this rule would impose on small businesses is no different than the requirement for other entities: Contracts or subcontracts awarded to them will include a provision reminding them not to discriminate. Beyond adding a brief reminder or discussion of this now explicit requirement to existing trainings on business ethics and conduct they provide to their staff, as already required by FAR 3.10, we do not estimate that this will impose a significant additional cost. As with all contractors, the employees of small businesses will be expected to be mindful of the principles of equity, fairness, and human dignity when performing the work under their contracts; as they have always been. The additional effort by small businesses (a matter of a few minutes of discussion) is so de minimis that we do not estimate that this will impose more than a negligible cost. There are no reporting or recordkeeping requirements associated with this rule. The rule does not duplicate, overlap, or conflict with any other Federal rules. There is currently no other Federal rule addressing discrimination of recipients of supplies or services pursuant to a Federal Government contract. There were no significant alternatives identified that would meet the objective of the rule. In light of the above analysis, the USAID Chief Acquisition Officer certifies that this rule would not have a significant economic impact on a substantial number of small entities. VI. Paperwork Reduction Act This rule does not include a reporting or information collection requirement. Therefore, USAID has determined that this rule does not impose any new or revised reporting or disclosure requirements that would be considered collections of information requiring Office of Management and Budget approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. List of Subjects in 48 CFR Part 752 Government procurement. For the reasons discussed in the preamble, USAID amends 48 CFR Chapter 7 as set forth below: PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 1. The authority citation for 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. PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 2. Add section 752.7038 to read as follows: Sec. [thinsp]752.7038 Nondiscrimination against End-Users of Supplies or Services. The following clause must be inserted in section I of all solicitations and resulting contracts. Nondiscrimination Against End-Users of Supplies or Services (OCT 2016) (a) USAID policy requires that the contractor not discriminate against any end-user of the contract supplies or services (i.e., the beneficiaries of the supplies or services) in implementation of this award, such as, but not limited to, by withholding, adversely impacting, or denying equitable access to the supplies or services (benefits) provided through this contract on the basis of any factor not expressly stated in the award. This includes, for example, race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, disability, age, genetic information, marital status, parental status, political affiliation, or veteran's status. Nothing in this clause is intended to limit the ability of the contractor to target activities toward the assistance needs of certain populations as defined in the contract. (b) The Contractor must insert this clause, including this paragraph, in all subcontracts under this contract. (End of clause) Dated: October 18, 2016. Roy Plucknett, Chief Acquisition Officer. [FR Doc. 2016-25881 Filed 10-24-16; 8:45 am] BILLING CODE P
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submitted as supplements thereto are AGENCY FOR INTERNATIONAL because drawing on the full
referenced as part of the authorized DEVELOPMENT contributions of the entire population
hazardous waste management program leads to more effective, comprehensive,
under subtitle C of RCRA, 42 U.S.C. 48 CFR Part 752 and sustainable development results.
6921 et seq. Nondiscrimination is the basic
RIN 0412–AA81
foundation of USAID’s inclusive
■ 3. Appendix A to part 272 is amended development approach; as such, all
Requirement for Nondiscrimination
by revising the listing for ‘‘Oklahoma’’ Against End-Users of Supplies or USAID programs seek to ensure access
to read as follows: Services (‘‘Beneficiaries’’) Under for all potential beneficiaries within the
USAID-Funded Contracts scope of the contract without
Appendix A to part 272—State
discrimination. Contractors must adhere
Requirements AGENCY: U.S. Agency for International to this by implementing the activities as
* * * * * Development. outlined in the contract SOWs.
ACTION: Final rule. Nondiscrimination is a critical
Oklahoma
foundation for protecting and promoting
The statutory provisions include: SUMMARY: The Foreign Assistance Act of the human rights of all persons. In
Oklahoma Hazardous Waste Management 1961, as amended (FAA), authorizes the addition, nondiscrimination ensures
Act, as amended, 27A Oklahoma Statute U.S. Agency for International equitable access to USAID programs.
(O.S.) 2011 Main Volume, Sections 2–7–103, Development (USAID) to provide Effective nondiscrimination practices
2–7–108(A), 2–7–108(B)(1), 2–7–108(B)(3), 2– foreign assistance in the form of support USAID’s principles of inclusion
7–108(C), 2–7–110(B), 2–7–110(C), 2–7– development and humanitarian and equal access and help to ensure that
111(A), 2–7–111(B), 2–7–111(C)(1), 2–7– assistance that reflect American ideals. USAID programs empower and
111(C)(2)(a), 2–7–111(D), 2–7–111(E), 2–7– To help emphasize USAID’s intent and effectively reach women and girls;
112, 2–7–116(B) through 2–7–116(F), 2–7– expectation of non-discrimination of marginalized ethnic and religious
116(H)(2), 2–7–118, 2–7–124, 2–7–125, 2–7– beneficiaries in USAID-funded populations; indigenous peoples;
127, and 2–10–301(G), as published by West activities, USAID is issuing a final rule internally displaced persons; persons
Publishing Company, 610 Opperman Drive, to amend its Agency for International with disabilities; youth and the elderly;
P.O. Box 64526, St. Paul, Minnesota 55164 Development Acquisition Regulation lesbian, gay, bisexual, transgender, and
0526; Phone: 1–800–328–4880; Web site: (AIDAR) to include a new clause intersex individuals; and other socially
http://west.thomson.com. entitled ‘‘Nondiscrimination against marginalized individuals and peoples
The regulatory provisions include: End-Users of Supplies or Services.’’ unique to the country or regional
The Oklahoma Administrative Code This clause expressly states that USAID- context.
(OAC), Title 252, Chapter 205, effective July funded contractors must not In recent years, the Government has
1, 2013 (2011 Edition, as amended by the discriminate among end-users of made multiple pronouncements of
2013 Supplement): Subchapter 1, Sections supplies or services (referred to in this policy in many areas reflecting its
252:205–1–1(a), 252:205–1–1(c) introductory rule as beneficiaries and potential emphasis on equity, fairness, and
paragraph, 252:205–1–1(c)(1), 252:205–1–2 beneficiaries) in any way that is human dignity—effective
introductory paragraph, 252:205–1–2 nondiscrimination is a means toward
contrary to the scope of the activity as
‘‘OHWMA’’, 252:205–1–2 ‘‘Post-closure achieving all of these. For example, in
defined in the statements of work
permit’’, 252:205–1–3(c); Subchapter 3, 2011, the White House issued E.O.
(SOWs).
Sections 252:205–3–1 (2013 Supplement), 13563, ‘‘Improving Regulation and
252:205–3–2(a)(2), 252:205–3–2(b)–(n), DATES: Effective: October 25, 2016.
Regulatory Review,’’ to update all
252:205–3–4, 252:205–3–5 and 252:205–3–6; FOR FURTHER INFORMATION CONTACT: agencies on factors to consider when
Subchapter 5, Sections 252:205–5–1 (except Todd Larson Telephone: 202–712–4969 issuing rules; in addition to quantitative
252:205–5–1(4)), 252:205–5–2 through or Email: tlarson@usaid.gov. factors, it advised that the qualitative
252:205–5–5; Subchapter 7, Sections SUPPLEMENTARY INFORMATION: values of equity, fairness, and human
252:205–7–2 and 252:205–7–4 (except the dignity are important considerations.
phrase ‘‘or in accordance with 252:205–15– I. Background
Additionally, a 2011 Presidential
1(d)); Subchapter 9, Sections 252:205–9–1 USAID published a proposed rule in Memorandum, ‘‘International Initiatives
through 252:205–9–4; Subchapter 11, the Federal Register at 81 FR 56572 on to Advance the Human Rights of
Sections 252:205–11–1(a) (except the word August 22, 2016 to amend its Agency for Lesbian, Gay, Bisexual, and Transgender
‘‘recycling’’), 252:205–11–1(b)–(e), and International Development Acquisition Persons,’’ directs all agencies engaged
252:205–11–2; and Subchapter 13, Sections Regulation (AIDAR) to include a new abroad to advance nondiscrimination.
252:205–13–1(a)–(e), as published by the clause entitled ‘‘Nondiscrimination
State’s Office of Administrative Rules,
This rule addressing discrimination in
against End-Users of Supplies or the provision of supplies or services is
Secretary of State, P.O. Box 53390, Oklahoma Services.’’
City, OK 73152–3390; Phone number: 405–
consistent with the values that animate
USAID seeks to improve the lives of the above.
521–4911; Web site: https://www.sos.ok.gov/
people around the world by being
oar/Default.aspx. II. Discussion
inclusive in its development and
* * * * * humanitarian assistance efforts. In so This rulemaking revises (48 CFR)
[FR Doc. 2016–25300 Filed 10–24–16; 8:45 am] doing, USAID recognizes that every AIDAR to add a new clause at 752.7038
BILLING CODE 6560–50–P person is instrumental in the entitled ‘‘Nondiscrimination against
transformation of their own societies, End-Users of Supplies or Services.’’ The
ehiers on DSK5VPTVN1PROD with RULES
with the end result that each and every clause, applicable to all solicitations,
person is recognized and equally valued contracts, and subcontracts at any tier,
without regard to artificial and prohibits contractors and subcontractors
discriminatory distinctions. The from discriminating against
inclusion, protection, and beneficiaries or potential beneficiaries
empowerment of all persons is critical (i.e., those individuals intended to
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receive the benefits of the award, conditions of the contract, including the procedures to ensure compliance with
whether goods or services) on the basis implementation of the SOW as the rule, and urging the government-
of any characteristics not expressly designed, and to refrain from the types wide harmonization of
stated in the award. of discrimination described in the nondiscrimination policies for
The purpose of this rulemaking is to clause. In itself, the clause serves as a beneficiaries of foreign assistance.
ensure adherence to the intent and reminder to contractors and offerors of
authorities in the FAA, and other IV. Executive Orders 12866 (Regulatory
USAID’s long-standing, pre-existing
statutes related to humanitarian Planning and Review) and 13563
expectations based on USAID’s
assistance and international (Improving Regulation and Regulatory
programmatic and planning priorities
development. The intent of the FAA is Review)
and authorities.
to help people, without regard to Executive Orders (E.O.s) 12866 and
irrelevant and discriminatory III. Summary of Comments and 13563 direct agencies to assess the costs
distinctions among them. This intent is Explanation of Revisions and benefits of the intended regulation.
reflected in many places in the statute. The proposed rule was published for E.O. 13563 allows that in making this
The first words of the Act set out that public comment pursuant to the Office assessment, an agency ‘‘may consider
it seeks to promote United States of Federal Procurement Policy Act (41 (and discuss qualitatively) values that
interests ‘‘by assisting peoples of the U.S.C. 1707). In total, six public are difficult or impossible to quantify,
world.’’ Congress explained its intent comments were received. All six including equity, human dignity,
thusly in FAA section 101: ‘‘[T]he comments were supportive in nature. fairness, and distributive impacts.’’ The
Congress reaffirms the traditional Five commenters recommended estimated costs of this rulemaking do
humanitarian ideals of the American minor edits to the second sentence of not exceed the threshold of economic
people and renews its commitment to subsection (a) of the rule to clarify that significance (i.e., an annual effect on the
assist people in developing countries to all of the listed categories are included economy of $100 million or more).
eliminate hunger, poverty, illness, and among the factors, which if not However, the rule has been designated
ignorance.’’ expressly stated in the award, are a ‘‘significant regulatory action’’ under
A survey of FAA provisions relevant precluded from being used as a basis for section 3(f) of Executive Order 12866
to USAID awards reflects that they focus discrimination by the contractor. The and therefore it has been reviewed by
on development and humanitarian second sentence of this final rule has the Office of Management and Budget.
assistance needs and effectiveness accordingly been clarified in response to This rule provides a benefit by
toward meeting them. For example, these comments to eliminate any promoting non-discrimination, which
FAA section 103, on agriculture, rural potential ambiguity. itself promotes programmatic efficiency,
development, and nutrition, suggests Four commenters suggested that the with very little additional
assistance should focus on alleviating rule be modified to apply to USAID administrative burden for the affected
poverty. FAA section 104, on health- grantees and be included in USAID entities, USAID contractors. It does not
related assistance, suggests limited grant and cooperative agreement ask them to carry out activities beyond
targeting of activities to the specialized awards. One commenter also urged that those in their contract SOWs and terms
health needs of children, infants, and the rule be clarified to apply to and conditions; it does not ask them to
mothers. FAA section 491, on subcontracts and subgrants. These alter the manner in which they conduct
international disaster assistance, comments did not warrant any changes the work as set out in their contracts. In
contemplates ‘‘prompt United States to the final rule. The AIDAR only fact, it reminds them to stay within
assistance to alleviate human suffering’’ applies to contracts. USAID will address those instructions. The only potential
and emphasizes that the implementing assistance awards (i.e., grants and cost the Agency could identify for
agency ‘‘shall insure that the assistance cooperative agreements) and subawards contractors and subcontractors is for
provided by the United States shall, to separately from this rulemaking. minimal training, to the extent that
the greatest extent possible, reach those Additionally, the new clause already contractors do not already proscribe
most in need of relief and rehabilitation specifies in subsection (b) that it must discrimination as part of the normal
as a result of natural and manmade be inserted in all subcontracts at any conduct of their business.
disaster.’’ tier. USAID awards approximately 1,300
In some contexts, such as assistance One commenter recommended the contracts/task orders annually. As a
for child survival, the foreign assistance inclusion of language in the third practical matter for these current
authorities contemplate a focus on sentence of the new clause to specify contracts, even absent this clause, if for
women and children, but that is a that targeted activities by the contractor example a contract specified the
matter of programmatic need and toward the assistance needs of certain provision of food parcels in a certain
effectiveness. USAID has identified no populations specified in the contract community, the contractor could not, on
context where excluding individuals must serve a ‘‘legitimate programmatic its own, decide that only certain
from assistance based on any of the purpose.’’ This change was not included members of that community should
types of discrimination proscribed by in the final rule, as the programmatic receive the food parcels or that certain
this clause, outside the scope of the purpose of USAID contracts is already members should be excluded.
award, would have a positive effect on considered as part of the contract SOWs. Including this clause in all new
implementing USAID’s foreign On its own initiative, USAID made a contracts and subcontracts going
assistance authorities. minor editorial revision to better clarify forward provides an explicit reminder
The main effect of this clause is to the regulation, replacing the article ‘‘a’’ of USAID’s expectation that its
ensure that USAID’s policy and practice with ‘‘the’’ in the third sentence of the contractors not discriminate against any
ehiers on DSK5VPTVN1PROD with RULES
of non-discrimination in planning clause to clearly refer to the contractor protected group or individual, and is
projects and activities is followed receiving a USAID funded contract. particularly important in countries
through to completion by the Finally, USAID also received a where stigma and discrimination toward
contractors that implement them. Its comment outside the scope of this rule certain groups is tolerated or officially
impact on contractors and offerors is to from one commenter urging the Agency endorsed by the government. The
remind them to follow the terms and to examine its reporting and verification benefits of the rule would be to
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![73354 Federal Register / Vol. 81, No. 206 / Tuesday, October 25, 2016 / Rules and Regulations
expressly reinforce notions of equity, performing the work under their Authority: Sec. 621, Pub. L. 87–195, 75
fairness, and human dignity under contracts; as they have always been. The Stat. 445 (22 U.S.C. 2381), as amended; E.O.
Federal Government contracts. additional effort by small businesses (a 12163, Sept. 29, 1979, 44 FR 56673; and 3
matter of a few minutes of discussion) CFR 1979 Comp., p. 435.
Contractors responding to a
solicitation (e.g. request for proposals is so de minimis that we do not estimate PART 752—SOLICITATION
(RFP) or invitation for bid (IFB)) would that this will impose more than a PROVISIONS AND CONTRACT
further be on notice not to include any negligible cost. CLAUSES
discriminatory criteria in their response There are no reporting or
to a solicitation, absent specific recordkeeping requirements associated ■ 2. Add section 752.7038 to read as
programmatic justification in the SOW with this rule. The rule does not follows:
to do so. duplicate, overlap, or conflict with any
other Federal rules. There is currently § 752.7038 Nondiscrimination against
V. Regulatory Flexibility Act no other Federal rule addressing End-Users of Supplies or Services.
Congress enacted the Regulatory discrimination of recipients of supplies The following clause must be inserted
Flexibility Act of 1980, as amended, 5 or services pursuant to a Federal in section I of all solicitations and
U.S.C. 601–612, to ensure that Government contract. There were no resulting contracts.
Government regulations do not significant alternatives identified that
unnecessarily or disproportionately would meet the objective of the rule. Nondiscrimination Against End-Users
burden small entities. It requires a In light of the above analysis, the of Supplies or Services (OCT 2016)
regulatory flexibility analysis if a rule USAID Chief Acquisition Officer (a) USAID policy requires that the
would have a significant economic certifies that this rule would not have a contractor not discriminate against any end-
impact, either detrimental or beneficial, significant economic impact on a user of the contract supplies or services (i.e.,
on a substantial number of small substantial number of small entities. the beneficiaries of the supplies or services)
entities. in implementation of this award, such as, but
VI. Paperwork Reduction Act not limited to, by withholding, adversely
In fiscal year 2015, 330 small impacting, or denying equitable access to the
This rule does not include a reporting
businesses received USAID funds. In supplies or services (benefits) provided
or information collection requirement.
fiscal years 2011, 2012, 2013, and 2014 through this contract on the basis of any
Therefore, USAID has determined that
the 391, 384, 349, and 363 small factor not expressly stated in the award. This
this rule does not impose any new or
businesses received USAID funds, includes, for example, race, color, religion,
revised reporting or disclosure sex (including gender identity, sexual
respectively. The requirement this rule
requirements that would be considered orientation, and pregnancy), national origin,
would impose on small businesses is no
collections of information requiring disability, age, genetic information, marital
different than the requirement for other
Office of Management and Budget status, parental status, political affiliation, or
entities: Contracts or subcontracts
approval under the Paperwork veteran’s status. Nothing in this clause is
awarded to them will include a intended to limit the ability of the contractor
Reduction Act, 44 U.S.C. 3501 et seq.
provision reminding them not to to target activities toward the assistance
discriminate. Beyond adding a brief List of Subjects in 48 CFR Part 752 needs of certain populations as defined in the
reminder or discussion of this now Government procurement. contract.
explicit requirement to existing (b) The Contractor must insert this clause,
For the reasons discussed in the including this paragraph, in all subcontracts
trainings on business ethics and
preamble, USAID amends 48 CFR under this contract.
conduct they provide to their staff, as
Chapter 7 as set forth below:
already required by FAR 3.10, we do not (End of clause)
estimate that this will impose a PART 752—SOLICITATION
significant additional cost. As with all Dated: October 18, 2016.
PROVISIONS AND CONTRACT Roy Plucknett,
contractors, the employees of small CLAUSES
businesses will be expected to be Chief Acquisition Officer.
mindful of the principles of equity, ■ 1. The authority citation for part 752 [FR Doc. 2016–25881 Filed 10–24–16; 8:45 am]
fairness, and human dignity when continues to read as follows: BILLING CODE P
ehiers on DSK5VPTVN1PROD with RULES
VerDate Sep<11>2014 14:10 Oct 24, 2016 Jkt 241001 PO 00000 Frm 00022 Fmt 4700 Sfmt 9990 E:\FR\FM\25OCR1.SGM 25OCR1](https://thefederalregister.org/doc/81_FR_73558/page/3.svg)
Document Created: 2018-02-13 16:38:37
Document Modified: 2018-02-13 16:38:37
| 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: October 25, 2016. | |
| Contact | Todd Larson Telephone: 202-712-4969 or Email: [email protected] | |
| FR Citation | 81 FR 73352 | |
| RIN Number | 0412-AA81 |
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