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[Federal Register Volume 77, Number 30 (Tuesday, February 14, 2012)]
[Rules and Regulations]
[Pages 8166-8174]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3239]

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AGENCY FOR INTERNATIONAL DEVELOPMENT

48 CFR Parts 704, 713, 714, 715, 716, 744, and 752

RIN 0412-AA63

Partner Vetting in USAID Acquisitions

AGENCY: United States Agency for International Development.

ACTION: Final rule.

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SUMMARY: The U.S. Agency for International Development (USAID) is 
implementing a pilot for a Partner Vetting System for USAID assistance 
and acquisition awards. The purpose of the Partner Vetting System is to 
help ensure that USAID funds and other resources do not inadvertently 
benefit individuals or entities that are terrorists, supporters of 
terrorists or affiliated with terrorists, while also minimizing the 
impact on USAID programs and its implementing partners. We are amending 
the USAID Acquisition Regulations (AIDAR) regulations in order to apply 
the Partner Vetting System to USAID acquisitions for the pilot and any 
subsequent implementation of PVS that is determined appropriate.

DATES: This final rule is effective on March 15, 2012.

FOR FURTHER INFORMATION CONTACT: Michael Gushue, Telephone: 202-567-
4678, Email: AIDARPartnerVetting@usaid.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    USAID's final rule exempting portions of the Partner Vetting System 
(PVS) from provisions of the Privacy Act of 1974 went into effect on 
August 4, 2009 after several extensions, the most recent of which was 
published on May 6, 2009 (74 FR 20871). Although USAID did not further 
extend the effective date, the agency did not implement PVS at that 
time in order to allow additional input from interested parties and to 
allow PVS to be applied to both assistance and acquisitions. Before the 
agency determines whether to implement PVS on a world-wide basis, USAID 
is launching a PVS pilot program to determine the costs and benefits of 
implementing PVS more broadly. At the conclusion of the pilot program, 
State and USAID will determine whether it is necessary to implement PVS 
more broadly, and/or make changes to the risk-based model it employs. 
In order to apply PVS to USAID acquisitions, USAID is amending 48 CFR 
Chapter 7, which is USAID's procurement regulation. USAID published a 
Notice of Proposed Rulemaking (NPRM) in the Federal Register on June 
26, 2009 (74 FR 30494) with a public comment period of 60 days, closing 
on August 25, 2009. During the 60-day comment period, USAID received 
comments from five separate respondents. All respondents expressed 
concerns about USAID's intent to implement PVS and reiterated 
objections raised during and after the public comment period when USAID 
established the PVS as a new system of records (72 FR 39042) and 
exempted portions of PVS from one or more provisions of the Privacy Act 
(74 FR 9). However, since comments of this nature are outside the scope 
of the Proposed Rule, we are not addressing them in this Final Rule. 
Only those comments directly addressing the proposed amendments to the 
AIDAR and our responses are discussed below.

B. Summary of the Final Rule

    USAID is issuing a final rule amending 48 CFR Chapter 7, as 
described in the proposed rule with some modifications in response to 
the public comments received. This final rule implements the partner 
vetting system for USAID acquisitions by adding a new subpart 704.70 to 
(48 CFR) AIDAR, with an associated solicitation provision and contract 
clause in (48 CFR) AIDAR Part 752. Additionally, this final rule amends 
(48 CFR) AIDAR Parts 713, 714, and 715, 716, and adds a new Part 744 to 
include reference to the requirements at (48 CFR) AIDAR Subpart 704.70.

C. Discussion of Comments

    USAID received comments and suggestions from five organizations on 
its proposed rule to amend 48 CFR Chapter 7, which would enable USAID 
to apply the Partner Vetting System to USAID acquisitions. While some 
of the comments and suggestions received did

[[Page 8167]]

address the proposed amendments, many of the comments and suggestions 
focused instead on the Partner Vetting System itself. Most, if not all, 
of those comments and suggestions previously were responded to when 
USAID published in the Federal Register its Privacy Act final rule for 
the Partner Vetting System. See 74 FR 9 (January 2, 2009). Although 
that final rule exempted from release under the Privacy Act only 
information from other government agencies and related to 
investigations, USAID's discussion of all comments and suggestions 
received, beginning at 74 FR 10, addresses these general comments.
    While not required to respond to comments and suggestions which did 
not expressly address the proposed amendment to 48 CFR Chapter 7, USAID 
nevertheless would like to dispel one major misconception that was 
reiterated in many of those comments and suggestions. Some 
organizations that submitted comments and suggestions erroneously 
referred to the Privacy Act final rule as a rule applicable only to 
``non-profit, non-governmental applicants to USAID.'' That is not an 
accurate description of either the Privacy Act final rule or of any 
other Partner Vetting System notices published by USAID in the Federal 
Register. With the exception of the NPRM for 48 CFR Chapter 7, which is 
specific to acquisition, USAID's notices pertaining to the Partner 
Vetting System were all applicable to all non-governmental 
organizations (NGOs), both for-profit and non-profit, whether they are 
applying for assistance awards or submitting offers/bids for 
acquisition instruments. The term ``NGO'' as used in the following 
notices was comprehensive, covering all organizations that were non-
governmental organizations. These notices established a system of 
records for the Partner Vetting System (72 FR 39042), proposed to 
exempt portions of this system of records from one or more provisions 
of the Privacy Act (72 FR 39768), proposed information collection 
procedures for the Partner Vetting System (72 FR 40110), and included a 
Partner Information Form for information collection purposes (72 FR 
56041). While USAID initially determined that it was not necessary to 
amend its regulation on assistance (22 CFR 226) to implement the 
Partner Vetting System, we did determine, as reflected in the proposed 
rule to amend 48 CFR Chapter 7, that it is necessary to amend the 
AIDAR. We have subsequently determined that rulemaking is appropriate 
for our assistance regulation, 22 CFR Part 226, and will publish 
separate Notices for that purpose.
    The following responses address comments that were specific to the 
proposed rule for Partner vetting in USAID Acquisitions:

Source Selection vs. Vetting

    Comment 1: ``USAID declares that `regardless of the point at which 
vetting begins, source selection proceeds separately from vetting' and 
the contracting officer only confirms with the vetting official whether 
an offeror has `passed' the vetting process. We strongly concur and 
recommend that the declarative statement that `source selection 
proceeds separately from vetting' be included in both the prescriptive 
provisions in Subpart 704.70 as well as in the clauses.''
    Response: USAID concurs with this recommendation. Although the 
proposed rule already stated in sections 704.7004-1(d) and 752.704-
70(c) that the two processes are separate, we agree that the 
recommended declarative statements would strengthen the requirement. We 
have added the recommended statements. USAID also intends to provide 
its contracting officers and negotiators with detailed implementing 
procedures in the Agency's Automated Directives System (ADS) that will 
emphasize the importance of keeping the two processes separate.

Timing of Vetting

    Comment 2: The Professional Services Council (PSC) provided 
extensive discussion on the timing of vetting. It recommended that 
USAID establish an ``open season'' on submissions of the Form to the 
USAID Office of Security (SEC). It also encouraged potential offerors 
to collect their information early and suggested that USAID should 
encourage early submission of the Form to SEC in order to allow for the 
maximum amount of time for vetting to occur. The PSC also suggested 
that untimely vetting could result in a constructive adverse 
''responsibility'' determination.
    Response: USAID appreciates the concern expressed in these comments 
about the need to carefully time vetting and would like to reassure all 
prospective offerors that we share this concern. As stated in the NPRM, 
for FAR Part 15 competitive negotiations, we determined that vetting 
should typically be done at the competitive range stage (see 48 CFR 
15.306(c)), after we carefully weighed the need to allow as much time 
as possible for vetting against the burden to offerors and USAID staff, 
especially SEC, of collecting information from offerors who may have no 
chance of receiving an award. Discussions would therefore occur 
concurrently with vetting. The Rule does allow for contracting officers 
to still have the discretion to request offerors to submit the Form at 
a different stage. And, for procurements using other procedures, 
including IQC task orders, contracting officers will have full 
discretion to decide the most appropriate time, and the Rule allows for 
this flexibility. We considered an ``open season'' approach of allowing 
prospective offerors to decide for themselves when to submit the 
vetting form, but because of the possible impact on the SEC's workload 
and the burden on offerors, we determined that early submission may not 
be practical.
    We also recognize that for many contractors, the key individuals 
who are part of the company's management team are unlikely to change 
from one procurement to another, so most likely these key individuals' 
passing initial vetting will expedite subsequent vetting. For this 
reason, submitting the Vetting Form for key management individuals is 
unlikely to make much difference to the overall amount of time needed 
for vetting. Offerors and contractors may collect the vetting 
information at the time they consider more practical, but USAID will 
request submission at the time the contracting officer considers most 
appropriate, as stated in the solicitation.
    Regarding the comment that should the Office of Security workload 
affect timing and potentially lead to a ``constructive adverse 
`responsibility' determination outside the acquisition process,'' we 
disagree with any characterization of a vetting determination as a 
responsibility determination, constructively or otherwise. USAID views 
vetting as an eligibility requirement.
    Finally, USAID is formalizing plans for a joint pilot conducted 
with the Department of State. This pilot will implement PVS in 5 
countries with varying levels of risk. The pilot will help the Agency 
determine the resource requirements for both the vetting officials and 
the Office of Security, as well as testing our assumptions about 
vetting and its impact on our programs. If the results of the pilot 
indicate that adjustments to improve timing will improve the vetting 
process, then we will certainly make those adjustments, including 
through rule-making if appropriate.

[[Page 8168]]

Definitions of ``Key Individuals'' and ``Key Personnel''

    Comment 3: ``USAID differentiates between `key individuals' and 
`key personnel,' noting that `the terms are not synonymous; all key 
personnel will be key individuals but not all key individuals will be 
key personnel.' Both the Background information accompanying the rule, 
the definition section in Part 704.7002 and the 752.204-71 clause 
define the terms `key individuals' and `key personnel.' All key 
personnel, whether or not they are employees of the offeror, are 
considered key individuals and must be vetted * * * As a technical 
matter, we believe the phrase `key individuals, including all key 
personnel' should be modified to read `all key individuals' since the 
term `key individual' is specifically defined in the clause and 
incorporates all `key personnel.'''
    Response: USAID agrees with this comment and has revised the final 
rule accordingly.

Subpart 704.7004-2: Post-award Requirements--Annual Vetting

    Comment 4: ``This subpart imposes both a new annual vetting 
submission, as well as a continuous vetting submission if there are 
changes in (1) any key individual, including all key personnel, and (2) 
subcontractors for which vetting is required. Neither of these factors 
has been addressed in the Agency's prior paperwork clearance forms or 
in the discussion of the PVS program. Nevertheless, while we can 
appreciate the importance of vetting new key individuals who were not 
part of any prior vetting to achieving the objectives of the PVS 
program, we see little value to USAID, and considerable burden to both 
USAID and its implementing partners, in requiring an annual re-
submission of the PVS Form from those that have already `passed' the 
vetting process. If USAID determines that new issues arise that should 
trigger another review, or if USAID determines to randomly sample 
recipients, we recommend that the regulations reserve for USAID, 
through the contracting officer, the right to require key individuals 
of a specific contractor and/or its covered subcontractors to submit 
the PVS Form for one-time vetting.''
    Response: USAID agrees with this comment and we have revised the 
rule to remove annual submittal of the Form. Contractors will still be 
required to submit the Form any time key individuals change and before 
issuance of covered subcontractors, but will not be required to 
resubmit the form annually if no information has changed. Instead, 
USAID will conduct post-award vetting based on the latest submittal.

Ambiguity Regarding Which Subcontractor Personnel Must Be Vetted

    Comment 5: Subpart 704.7004-2 ``provides that vetting is required 
for all subcontracts for which consent to subcontract is required under 
FAR 52.244-2 and the contracting officer may not consent until the 
subcontractor has `passed' vetting. The Background information 
accompanying the rule makes it clear that `the contracting officer will 
not consent to a subcontract until the subcontractor's key individuals 
have passed vetting' (emphasis added), but the rule itself is silent on 
the vetting of subcontractors. We have assumed, and strongly recommend 
that the rule explicitly state, that subcontractors are required to vet 
only `key individuals' as that term is defined in the proposed rule.''
    Response: USAID agrees with this comment and revised the final rule 
accordingly, in sections 704.7004-2(b), 704.7004-3(a), and 704.7004-
3(c).

Classes of Items Requiring Sub-tier Vetting Should Be Specific

    Comment 6: ``However, subsection (c) of subpart 7004-3 also 
authorizes vetting for subcontracts at any tier (for subcontractors not 
otherwise subject to consent) for `certain classes of items (supplies 
and services)' that the contracting officer identifies in the 
solicitation. While we recognize the flexibility the Agency must have 
to require vetting of any additional `classes of items' based on the 
Agency's internal risk-based assessment, it is also important that any 
of these selected classes of items are described with specificity and, 
if they remain appropriate for vetting at the time of award, that these 
designated `classes of items' are also carried over into the resulting 
contracts--because only if these additional classes of items are 
included in the resulting contract will there be a post-award 
requirement for vetting.
    Response: USAID agrees that a contract must specifically identify 
the classes of items subject to sub-tier vetting and considers 
Alternate I to the clause at 752.204-71 to adequately address this. 
Further, we will emphasize in the separate internal guidance in the ADS 
to contracting officers the need to be specific about the class of 
subcontracts that are subject to vetting at any tier.

Coverage of Subcontractors in the Definition of `Key Individuals'

    Comment 7: ``In addition, there is no coverage for subcontractors 
under the definition of the term `key individual' in 704.7002 or in the 
204-71 clause. The `policy' statement in Subpart 704.7003 notes that 
USAID will require vetting of first tier subcontractors only, although 
the coverage for subcontractors in Subpart 704.7004-3(c) provides that 
vetting may be required at any tier for certain classes of items 
identified in the solicitation; yet neither of the clauses address the 
scope of coverage for subcontractors except in terms of submissions to 
the vetting official and through the requirement in 204-71(i) that the 
prime contractor flow down certain provisions of the 204-71 clause to 
`all subcontracts under this contract.' Furthermore, there is no 
provision in the clauses for the contracting officer to designate any 
additional `classes of items' as authorized in 704.7003. The gaps 
create considerable confusion between the policy and the clause and the 
actions that prime contractors should take during the solicitation 
process and after source selection.''
    Response: USAID agrees in part and disagrees in part. We revised 
the policy statement in section 704.7003 to apply vetting to 
subcontracts for specified classes of items if these subcontracts are 
not subject to contracting officer consent. We did not revise the 
definition of key individual in section 704.7002 since it is not 
specific to the prime offeror, contractor or first tier subcontractor; 
it uses the term ``organization'' which applies to the prime offeror, 
contractor and any subcontractors when vetting applies to such 
subcontractors through subsection (h) of the base clause 752.704-71 and 
its Alternate I. In fact, regarding the comments that neither clause 
addresses the ``scope of coverage for subcontractors'' or that there is 
no provision for the contracting officer to designate any classes of 
items, we disagree since subsection (h) in the base and Alt. I 
specifically applies vetting to subcontracts, and Alt. I provides for 
the contracting officer to designate classes of items subject to 
vetting at any subcontract tier.

Lack of Coverage for Schedules Purchases Under FAR Part 8.4

    Comment 8: ``While the rule addresses the PVS treatment for 
contracts awarded under AIDAR Parts 713 (Simplified Acquisition 
Procedures), 714 (Sealed Bidding), and 715 (Contracting by 
Negotiation), there is no coverage in the proposed rule for

[[Page 8169]]

contracts awarded under Schedules purchases under FAR Part 8.4. While 
there is no current coverage in the AIDAR regarding Schedules 
purchases, and while we cannot foresee that any such awards might be 
subject to the PVS requirements, we believe it easier to address this 
contract type and not use it than to need this contract type and not 
have the appropriate coverage.''
    Response: USAID does not envision applying PVS to GSA Schedule 
Orders as the basic contract would not include the vetting clause and 
the contractors would not have been made aware of the requirement to 
vet prior to award. Should GSA and USAID determine that vetting is 
appropriate for purchases made under FAR Part 8.4, appropriate action 
will be taken at that time.

Lack of Coverage for Commercial Items Awarded Under Part 712

    Comment 9: ``While the rule addresses the PVS treatment for 
contracts awarded under AIDAR Parts 713 (Simplified Acquisition 
Procedures), 714 (Sealed Bidding), and 715 (Contracting by 
Negotiation), there is no coverage in the proposed rule for contracts 
awarded for commercial items under FAR Part 12 (Commercial Items), even 
though there is no current coverage in the AIDAR regarding commercial 
items. In our view, given the policy approach USAID recommends--that 
`key personnel' of the prime contractor and for all subcontracts for 
which consent to subcontract is required under FAR 52.244-2 (but see 
our comments above), we believe it appropriate and consistent with 
USAID's policy to exempt from the PVS requirements solicitations and 
resulting awards entered into pursuant to FAR Part 12 and subcontracts 
for commercial items regardless of the method of procurement of the 
prime contract. Again, while we cannot foresee that any such awards 
might be subject to the PVS requirements, we believe it easier to 
address this contract type and not use it than to need this contract 
type and not have the appropriate coverage.''
    Response: In preparing the Proposed Rule, USAID considered the need 
to address commercial item procurements but determined that such 
coverage was unnecessary since commercial purchases are made through 
either FAR Part 13, Part 14, Part 15, or Part 16.5 (indefinite delivery 
contracts, see Comment 10) procedures. There is no contracting process 
that is unique to commercial items, so we do not consider it necessary 
to address vetting in AIDAR Part 712.

Lack of Coverage for IQCs Awarded Under Part 716

    Comment 10: ``While the rule addresses the PVS treatment for 
contracts awarded under AIDAR Parts 713 (Simplified Acquisition 
Procedures), 714 (Sealed Bidding), and 715 (Contracting by 
Negotiation), there is no coverage for contracts awarded under Part 716 
(relating to IQCs). While the background information recognizes that 
PVS could apply to task orders under IQCs, there are no special 
procedures called out for contracting officers or IQC holders to follow 
when PVS is required after the award of the underlying IQC but during 
the competitive solicitation, evaluation and subsequent award of a task 
order under an IQC. This type of contract still dominates USAID 
contracting and should be specifically addressed.''
    Response: USAID agrees with this comment and has revised AIDAR 
Subpart 716.5 and added a contract clause at 752.216-70 to address the 
procedures for vetting indefinite-delivery contracts and orders placed 
against them. This revised subpart may appear to be a substantial 
addition to the rule but since it merely clarifies procedures we 
intended under the proposed rule and is consistent with the overall 
approach we are taking with PVS, we consider the added coverage to be 
within the scope of the proposed rule. As noted in the comment, the 
proposed rule was clear about applying vetting to IQCs, so this added 
coverage addresses the concern expressed in the comment.

Location of the Treatment of Indefinite Quantity Contracts and Task 
Orders

    Comment 11: ``Task order competitions under Indefinite Quantity 
Contracts (IQC) always come `post-award' of the underlying contracts 
but are more likely to trigger a new vetting requirement. Subpart 7004-
1(c) is the only other place in the proposed rule where IQCs are 
addressed, but it covers only `potential awardee(s)' and does not 
address competition for task orders under awarded contracts or 
modifications to existing contracts. We strongly recommend that the 
treatment of task orders under IQCs be addressed in this post-award 
requirements section. Here, too, we strongly support an `open season' 
for submission of the Form to USAID's Office of Security to minimize 
the risk that vetting will not be completed in a timely manner to meet 
the timeliness requirements of the acquisition process.''
    Response: Regarding the timing of vetting for IQC task orders, we 
stand by our position discussed above (Comment 2) and will allow the 
task order contracting officer to determine the appropriate stage to 
vet. However, USAID agrees that the rule must more clearly address how 
partner vetting will apply to IQC task orders. Task orders are placed 
after the basic IQC has been awarded, but the task orders themselves 
are ``awards'' in their own right and for that reason we included them 
in the pre-award section. The process for vetting task orders is more 
similar to pre-award vetting for contracts rather than to post-award 
vetting, since the key individuals for each task order must pass 
vetting before the contracting officer may place the order. However, in 
acknowledgement of the ``post-award'' nature of task orders, we have 
added a contract clause at 752.216-70 which includes the standard post 
award vetting requirements and also addresses the procedures for 
vetting orders against Indefinite Delivery contracts.

D. Impact Assessment

Regulatory Planning and Review

    Under Executive Orders (E.O.) 13563 and 12866, USAID must determine 
whether a regulatory action is ``significant'' and therefore subject to 
the requirements of the E.O. and subject to review by the Office of 
Management and Budget (OMB).
    USAID has determined that this Rule is not an ``economically 
significant regulatory action'' under Section 3(f)(1) of E.O.12866. The 
application of the Partner Vetting System to USAID acquisitions will 
not have an economic impact of $100 million or more. The regulation 
will not adversely affect the economy or any sector thereof, 
productivity, competition, jobs, the environment, nor public health or 
safety in a material way. However, as this rule is a ``significant 
regulatory action'' under Section 3(f)(4) of the E.O., USAID submitted 
it to OMB for review.

Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.), USAID has considered the economic 
impact of the rule and has certified that its provisions would not have 
a significant economic impact on a substantial number of small 
entities.

Paperwork Reduction Act

    The changes to the (48 CFR) AIDAR use information collected via 
USAID Partner Information Form, USAID Form 500-13, which was approved 
in accordance with 44 U.S.C. 3501 by the Office of Management and 
Budget on

[[Page 8170]]

August 19, 2015 (OMB Control Number 0412-0577).

List of Subjects in 48 CFR Parts 704, 713, 714, 715, 744, and 752

    Government procurement.

Regulatory Text

    For the reasons set forth in the preamble, the U. S. Agency for 
International Development amends 48 CFR chapter 7 as follows:
    1. The authority citation for 48 CFR Parts 704, 713, 714, 715, 744, 
and 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; 3 CFR 
1979 Comp., p. 435.

PART 704--ADMINISTRATIVE MATTERS

0
2. Add Subpart 704.70 to read as follows:

Subpart 704.70--Partner Vetting
Sec.
704.7001 Scope of subpart.
704.7002 Definitions.
704.7003 Policy.
704.7004 Procedures.
704.7004-1 Preaward requirements.
704.7004-2 Post award requirements.
704.7004-3 Subcontracts.
704.7005 Solicitation provision and contract clause.

Subpart 704.70--Partner Vetting

704.7001  Scope of subpart.

    This subpart prescribes the policies and procedures to apply 
partner vetting to USAID acquisitions.

704.7002  Definitions.

    As used in this subpart--
    Key individual means:
    (1) Principal officers of the organization's governing body (e.g., 
chairman, vice chairman, treasurer and secretary of the board of 
directors or board of trustees);
    (2) The principal officer and deputy principal officer of the 
organization (e.g., executive director, deputy director, president, 
vice president);
    (3) The program manager or chief of party for the USG-financed 
program; and
    (4) Any other person with significant responsibilities for 
administration of the USG-financed activities or resources, such as key 
personnel as described in Automated Directives System Chapter 302. Key 
personnel, whether or not they are employees of the prime contractor, 
must be vetted.
    Vetting official means the USAID employee identified in the 
solicitation or contract as having responsibility for receiving vetting 
information, responding to questions about information to be included 
on the Partner Information Form, coordinating with the USAID Office of 
Security (SEC), and conveying the vetting determination to each 
offeror, potential subcontractors subject to vetting, and the 
contracting officer. The vetting official is not part of the 
contracting office and has no involvement in the source selection 
process.

704.7003  Policy.

    In the interest of national security, USAID may determine that a 
particular acquisition is subject to vetting. In that case, USAID will 
require vetting of all key individuals of offerors, first tier 
subcontractors, and any other class of subcontracts if identified in 
the solicitation and resulting contract. When USAID conducts partner 
vetting, it will not award a contract to any offeror who does not pass 
vetting.

704.7004  Procedures.

704.7004-1  Preaward requirements.

    (a) When USAID determines an acquisition to be subject to vetting, 
the contracting officer determines the appropriate stage of the 
acquisition cycle to require offerors to submit the completed USAID 
Partner Information Form, USAID Form 500-13, to the vetting official 
identified in the solicitation. The contracting officer must specify in 
the solicitation the stage at which the offerors will be required to 
submit the USAID Partner Information Form.
    (b) For negotiated procurements using FAR part 15, this stage will 
typically be when the contracting officer establishes the competitive 
range (48 CFR 15.306(c)). However, the contracting officer may 
determine that vetting is more appropriate at a different stage of the 
source selection process, such as immediately prior to award, and then 
require only the apparently successful offeror to submit the completed 
USAID Partner Information Form.
    (c) For Indefinite Delivery contracts under FAR subpart 16.5, 
vetting will occur prior to award of the basic contract if the 
contracting officer anticipates placing orders subject to vetting under 
that contract. Vetting will also occur before USAID places any orders 
subject to vetting. The contracting officer will notify awardees of the 
appropriate timing for vetting in the request for task or delivery 
order proposals. See AIDAR subpart 716.5 for vetting procedures for 
task and delivery orders.
    (d) For all other acquisitions, including those under FAR parts 13 
and 14, the contracting officer determines the appropriate time to 
require potential awardee(s) to submit the completed USAID Partner 
Information Form to the vetting official.
    (e) Source selection proceeds separately from vetting. The source 
selection authority makes the source selection determination separately 
from the vetting process and without knowledge of vetting-related 
information other than that the apparently successful offeror has 
passed or not passed vetting.
    (f) The contracting officer may only award to an offeror who has 
passed vetting.

704.7004-2  Post award requirements.

    (a) For those contracts and task orders the agency has determined 
are subject to vetting, the contractor must submit the completed USAID 
Partner Information Form any time it changes:
    (1) Key individuals, and
    (2) Subcontractors for which vetting is required.
    (b) USAID may vet key individuals of the contractor and any 
required subcontractors periodically during contract performance using 
the information already submitted on the Form.

704.7004-3  Subcontracts.

    (a) When the prime contract is subject to vetting, vetting is 
required for key individuals of all subcontracts under that contract 
for which consent is required under FAR clause 52.244-2, Subcontracts.
    (b) The contracting officer must not consent to a subcontract with 
any subcontractor subject to vetting until that subcontractor has 
passed vetting.
    (c) Vetting may be required for key individuals of subcontracts at 
any tier for certain classes of items (supplies and services). The 
contracting officer must identify these classes of items in the 
solicitation.
    (d) The contractor may instruct prospective subcontractors who are 
subject to vetting to submit the USAID Partner Information Form to the 
vetting official as soon as the contractor submits the USAID Partner 
Information Form for its key individuals.

704.7005  Solicitation provision and contract clause.

    (a) The contracting officer will insert the provision at 752.204-70 
Partner Vetting Pre-Award Requirements, in all solicitations USAID 
identifies as subject to vetting.

[[Page 8171]]

    (b) Except for awards made under FAR part 16, the contracting 
officer will--
    (1) Insert the clause at 752.204-71 Partner Vetting, in all 
solicitations and contracts USAID identifies as subject to vetting, or
    (2) Use the clause with its Alternate I when USAID determines that 
subcontracts at any tier for certain classes of supplies or services 
are subject to vetting.
    (c) For awards made under FAR part 16, see (48 CFR) subpart 716.5.

PART 713--SIMPLIFIED ACQUISITION PROCEDURES

0
3. Add section 713.106-370 to subpart 713.1 to read as follows:

713.106-370  Partner vetting.

    If an acquisition is identified as subject to vetting, see (48 CFR) 
AIDAR 704.70 for the applicable procedures and requirements.

PART 714--SEALED BIDDING

0
4. Add section 714.408-170 to subpart 714.4 to read as follows:

714.408-170  Partner vetting.

    If an acquisition is identified as subject to vetting, see (48 CFR) 
AIDAR 704.70 for the applicable procedures and requirements.

PART 715--CONTRACTING BY NEGOTIATION

0
5. Add subpart 715.70 to read as follows:

Subpart 715.70--Partner Vetting

715.70  Partner vetting.

    If an acquisition is identified as subject to vetting, see (48 CFR) 
AIDAR 704.70 for the applicable procedures and requirements.

PART 716--TYPES OF CONTRACTS

0
6. Add subpart 716.5 to read as follows:

Subpart 716.5 Indefinite-Delivery Contracts

Sec.
716.501-270 Partner vetting--indefinite-delivery contracts.
716.505-70 Vetting orders under indefinite delivery contracts.
716.506 Solicitation provision and contract clause.

716.501-270  Partner vetting--indefinite-delivery contracts.

    If a task order or delivery order under an indefinite-delivery 
contract has the potential to be subject to vetting, then the contract 
itself will be subject to the applicable procedures and requirements 
for partner vetting in (48 CFR) AIDAR 704.70.

716.505-70  Vetting orders under indefinite delivery contracts.

    (a) The task order contracting officer will specify in the request 
for task or delivery order proposals whether the order is subject to 
vetting and when awardees must submit the USAID Partner Information 
Form.
    (b) For orders under multiple award contracts, fair opportunity 
selection procedures are conducted separately from vetting. The 
contracting officer for the order must follow the ordering procedures 
in the contract to select the order awardee without knowledge of 
vetting-related information, other than that the contractor has passed 
or not passed vetting.
    (c) The contracting officer may only place an order subject to 
vetting with an awardee that has passed vetting for that order.

716.506  Solicitation provision and contract clause.

    (a) As prescribed in 48 CFR 704.7005(a), the contracting officer 
will insert the provision at 752.204-70 Partner Vetting Pre-Award 
Requirements, in solicitations for indefinite delivery contracts when 
USAID anticipates that any orders placed under the contract will be 
subject to vetting.
    (b)(1) The contracting officer will insert the clause at 752.216-71 
Partner Vetting, in those solicitations and contracts for indefinite-
delivery contracts that USAID identifies as subject to vetting.
    (2) The contracting officer will use the clause with its Alternate 
I when USAID determines that subcontracts at any tier for certain 
classes of supplies or services are subject to vetting.

0
7. Add Part 744 to read as follows:

PART 744--SUBCONTRACTING POLICIES AND PROCEDURES

Subpart 744.2--Consent to Subcontracts

Sec.
744.202-170 Partner vetting.

    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.

744.202-170  Partner vetting.

    If an acquisition is identified as subject to partner vetting, see 
(48 CFR) AIDAR 704.70 for the applicable procedures and requirements.

PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. Amend Part 752 by adding sections 752.204-70 and 752.204-71 to 
subpart 752.2 to read as follows:

752.204-70  Partner vetting pre-award requirements.

    As prescribed in (48 CFR) AIDAR 704.7005(a), insert the following 
provision in all solicitations subject to vetting:

PARTNER VETTING PRE-AWARD REQUIREMENTS (FEB 2012)

    (a) USAID has determined that any contract resulting from this 
solicitation is subject to vetting. Terms used in this provision are 
defined in paragraph (b) of the AIDAR clause at 752.204-71 Partner 
Vetting, of this solicitation. An offeror that has not passed 
vetting is ineligible for award.
    (b) The following are the vetting procedures for this 
solicitation:
    (1) Prospective offerors review the attached USAID Partner 
Information Form, USAID Form 500-13, and submit any questions about 
the USAID Partner Information Form or these procedures to the 
contracting officer by the deadline for questions in the 
solicitation.
    (2) The contracting officer notifies the offeror when to submit 
the USAID Partner Information Form. For this solicitation, USAID 
will vet at [insert in the provision the applicable stage of the 
source selection process at which the Contracting Officer will 
notify the offeror(s) who must be vetted]. Within the timeframe set 
by the contracting officer in the notification, the offeror must 
complete and submit the information on the USAID Partner Information 
Form in accordance with instructions from the vetting official named 
in paragraph (d) of the AIDAR clause at 752.204-71 Partner Vetting, 
of this solicitation.

    Note:  Offerors who submit using non-secure methods of 
transmission do so at their own risk.

    (3) The offerors must notify proposed subcontractors of this 
requirement when the subcontractors are subject to vetting.
    (c) Source selection proceeds separately from vetting. Vetting 
is conducted independently from any discussions the contracting 
officer may have with an offeror. The offeror and any subcontractor 
subject to vetting must not provide vetting information to other 
than the vetting official. The offeror and any subcontractor subject 
to vetting will communicate only with the vetting official regarding 
their vetting submission(s) and not with any other USAID or USG 
personnel, including the contracting officer or his/her 
representatives. Exchanges between the Government and an offeror 
about vetting information submitted by the offeror or any proposed 
subcontractor are clarifications in accordance with FAR 15.306(a) 
(48 CFR

[[Page 8172]]

15.306(a)). The contracting officer designates the vetting official 
as the only individual authorized to clarify the offeror's and 
proposed subcontractor's vetting information.
    (d)(1) The vetting official notifies the offeror that it:
    (i) Has passed vetting,
    (ii) Has not passed vetting, or
    (iii) Must provide additional information, and resubmit the 
USAID Partner Information Form with the additional information 
within the number of days the vetting official specified in the 
notification.
    (2) The vetting official will include in the notification any 
information that USAID's Office of Security(SEC) determines 
releasable. In its determination, SEC will take into consideration 
the classification or sensitivity of the information, the need to 
protect sources and methods, or status of ongoing law enforcement 
and intelligence community investigations or operations.
    (e) Reconsideration. (1) Within 7 calendar days after the date 
of the vetting official's notification, an offeror that has not 
passed vetting may request in writing to the vetting official that 
the Agency reconsider the vetting determination. The request should 
include any written explanation, legal documentation and any other 
relevant written material for reconsideration.
    (2) Within 7 calendar days after the vetting official receives 
the request for reconsideration, the Agency will determine whether 
the offeror's additional information warrants a revised decision.
    (3) The Agency's determination of whether reconsideration is 
warranted is final.
    (f) Revisions to vetting information. (1) Offerors who change 
key individuals, whether the offeror has previously passed vetting 
or not, must submit a revised USAID Partner Information Form to the 
vetting official. This includes changes to key personnel resulting 
from revisions to the technical proposal.
    (2) The vetting official will follow the vetting process in 
paragraph (d) of this clause for any revision of the offeror's Form.
    (g) Award. At the time of award, the contracting officer will 
confirm with the vetting official that the apparently successful 
offeror has passed vetting. The contracting officer may award only 
to an apparently successful offeror that has passed vetting.

752.204-71   Partner vetting.

    As prescribed in (48 CFR) AIDAR 704.7005(b)(1) and 716.506(a), 
insert the following clause in all contracts subject to vetting:

PARTNER VETTING (FEB 2012)

    (a) The contractor must comply with the vetting requirements for 
key individuals under this contract.
    (b) Definitions. As used in this provision--
    Key individual means:
    (i) Principal officers of the organization's governing body 
(e.g., chairman, vice chairman, treasurer and secretary of the board 
of directors or board of trustees);
    (ii) The principal officer and deputy principal officer of the 
organization (e.g., executive director, deputy director, president, 
vice president);
    (iii) The program manager or chief of party for the USG-financed 
program; and
    (iv) Any other person with significant responsibilities for 
administration of the USG-financed activities or resources, such as 
key personnel as described in Automated Directives System Chapter 
302. Key personnel, whether or not they are employees of the prime 
contractor, must be vetted.
    Vetting official means the USAID employee identified in 
paragraph (d) of this clause as having responsibility for receiving 
vetting information, responding to questions about information to be 
included on the USAID Partner Information Form, USAID Form 500-13, 
coordinating with the USAID Office of Security, and conveying the 
vetting determination to each offeror, potential subcontractors 
subject to vetting, and to the contracting officer. The vetting 
official is not part of the contracting office and has no 
involvement in the source selection process.
    (c) The Contractor must submit a USAID Partner Information Form, 
USAID Form 500-13, to the vetting official identified below during 
the contract when the Contractor replaces key individuals with 
individuals who have not been previously vetting for this contract. 
Note: USAID will not approve any key personnel who have not passed 
vetting.
    (d) The designated vetting official is:
    Vetting official:
-----------------------------------------------------------------------
    Address:
-----------------------------------------------------------------------

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

    Email: -------------------- (for inquiries only)
    (e)(1) The vetting official will notify the Contractor that it--
    (i) Has passed vetting,
    (ii) Has not passed vetting, or
    (iii) Must provide additional information, and resubmit the 
USAID Partner Information Form with the additional information 
within the number of days the vetting official specifies.
    (2) The vetting official will include in the notification any 
information that USAID's Office of Security (SEC) determines 
releasable. In its determination, SEC will take into consideration 
the classification or sensitivity of the information, the need to 
protect sources and methods, or status of ongoing law enforcement 
and intelligence community investigations or operations.
    (f) Reconsideration. (1) Within 7 calendar days after the date 
of the vetting official's notification, the contractor or 
prospective subcontractor that has not passed vetting may request in 
writing to the vetting official that the Agency reconsider the 
vetting determination. The request should include any written 
explanation, legal documentation and any other relevant written 
material for reconsideration.
    (2) Within 7 calendar days after the vetting official receives 
the request for reconsideration, the Agency will determine whether 
the contractor's additional information warrants a revised decision.
    (3) The Agency's determination of whether reconsideration is 
warranted is final.
    (g) A notification that the Contractor has passed vetting does 
not constitute any other approval under this contract.
    (h) When the contractor anticipates awarding a subcontract for 
which consent is required under FAR clause 52.244-2, Subcontracts, 
the subcontract is subject to vetting. The prospective subcontractor 
must submit a USAID Partner Information Form, USAID Form 500-13, to 
the vetting official identified in paragraph (d) of this clause. The 
contracting officer must not consent to award of a subcontract to 
any organization that has not passed vetting when required.
    (i) The contractor agrees to incorporate the substance of 
paragraphs (a) through (g) of this clause in all subcontracts under 
this contract.

    (End of clause)
    Alternate I (FEB 2012). As prescribed in 704.7005(b)(2), substitute 
paragraphs (h) and (i) below for paragraphs (h) and (i) of the basic 
clause:

    (h)(1) When the contractor anticipates awarding a subcontract 
for which consent is required under FAR clause 52.244-2, 
Subcontracts, the subcontract is subject to vetting. The prospective 
subcontractor must submit a USAID Partner Information Form, USAID 
Form 500-13, to the vetting official identified in paragraph (d) of 
this clause. The contracting officer must not consent to award of a 
subcontract to any organization that has not passed vetting when 
required.
    (2) In addition, prospective subcontractors at any tier 
providing the following classes of items (supplies and services):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------

must pass vetting. Contractors must not place subcontracts for these 
classes of items until they receive confirmation from the vetting 
official that the prospective subcontractor has passed vetting.
    (i) The contractor agrees to incorporate the substance of this 
clause in all subcontracts under this contract.

0
9. Amend Part 752 by adding section 752.216-71 to subpart 752.2 to read 
as follows:

752.216-71   Partner vetting in indefinite delivery contracts.

    As prescribed in (48 CFR) AIDAR 716.506(b)(1), insert the following 
clause in all indefinite-delivery contracts subject to vetting:

PARTNER VETTING IN INDEFINITE DELIVERY CONTRACTS (FEB 2012)

    (a) The contractor must comply with the vetting requirements for 
key individuals under this contract and in any orders that are 
identified as subject to vetting.
    (b) Definitions. As used in this provision--
    Key individual means:
    (i) Principal officers of the organization's governing body 
(e.g., chairman, vice chairman, treasurer and secretary of the board 
of directors or board of trustees);
    (ii) The principal officer and deputy principal officer of the 
organization (e.g.,

[[Page 8173]]

executive director, deputy director, president, vice president);
    (iii) The program manager or chief of party for the USG-financed 
program; and
    (iv) Any other person with significant responsibilities for 
administration of the USG-financed activities or resources, such as 
key personnel as described in Automated Directives System Chapter 
302. Key personnel, whether or not they are employees of the prime 
contractor, must be vetted.
    Vetting official means the USAID employee identified in 
paragraph (d) of this clause as having responsibility for receiving 
vetting information, responding to questions about information to be 
included on the USAID Partner Information Form, USAID Form 500-13, 
coordinating with the USAID Office of Security, and conveying the 
vetting determination to each contractor, potential subcontractors 
subject to vetting, and to the cognizant contracting officer. The 
vetting official is not part of the contracting office and has no 
involvement in the source selection process.
    (c) The contractor must submit a USAID Partner Information Form, 
USAID Form 500-13 to the designated vetting official:
    (1) when the contractor replaces key individuals under the basic 
contract with individuals who have not been previously vetted.
    (2) when the contractor replaces key individuals under an order 
subject to vetting with individuals who have not been previously 
vetted. For changes to any key individuals associated with both the 
basic contract and any orders subject to vetting, the contractor 
must submit updated vetting forms to each designated vetting 
official. Note: USAID will not approve any key personnel who have 
not passed vetting.
    (d)(1) The designated vetting official for the basic contract 
is:
    Vetting official:
-----------------------------------------------------------------------
    Address:
-----------------------------------------------------------------------

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

    Email: -------------------- (for inquiries only)
    (2) Each order subject to vetting will identify the vetting 
official for that order. The contractor must submit vetting 
information specific to an order to the vetting official identified 
in that order.
    (e)(1) The vetting official will notify the contractor that it--
    (i) Has passed vetting,
    (ii) Has not passed vetting, or
    (iii) Must provide additional information, and resubmit the 
USAID Partner Information Form with the additional information 
within the number of days the vetting official specifies.
    (2) The vetting official will include in the notification any 
information that USAID's Office of Security (SEC) determines 
releasable. In its determination, SEC will take into consideration 
the classification or sensitivity of the information, the need to 
protect sources and methods, or status of ongoing law enforcement 
and intelligence community investigations or operations.
    (f) Reconsideration. (1) Within 7 calendar days after the date 
of the vetting official's notification, the contractor or 
prospective subcontractor that has not passed vetting may request in 
writing to the vetting official that the Agency reconsider the 
vetting determination. The request should include any written 
explanation, legal documentation and any other relevant written 
material for reconsideration.
    (2) Within 7 calendar days after the vetting official receives 
the request for reconsideration, the Agency will determine whether 
the contractor's additional information warrants a revised decision.
    (3) The Agency's determination of whether reconsideration is 
warranted is final.
    (g) A notification that the contractor has passed vetting does 
not constitute any other approval under this contract.
    (h) The request for task or delivery order proposals will 
identify whether the order is subject to vetting. The following are 
the procedures for vetting orders under this contract. Note that the 
term ``awardee'' as used below refers to a contractor under 
multiple-award indefinite-delivery contracts, consistent with the 
use of the term in (48 CFR) FAR 16.505(b):
    (1) The contracting officer will notify the awardees when to 
complete and submit the USAID Partner Information Form to the 
vetting official named in the request for order proposals. Note: 
Awardees who submit using non-secure methods of transmission do so 
at their own risk.
    (2) The awardee must notify proposed subcontractors of this 
requirement when the subcontractors are subject to vetting.
    (3) The fair opportunity process proceeds separately from 
vetting. Vetting is conducted independently from any discussions the 
contracting officer may have with an awardee. The awardee and any 
subcontractor subject to vetting must not provide vetting 
information to other than the vetting official identified in the 
request for order proposal. The awardee and any subcontractor 
subject to vetting will communicate only with the vetting official 
regarding their vetting submission(s) and not with any other USAID 
or USG personnel, including the contracting officer or his/her 
representatives.
    (4)(i) The vetting official notifies the awardee that it:
    (A) Has passed vetting,
    (B) Has not passed vetting, or
    (C) Must provide additional information, and resubmit the USAID 
Partner Information Form with the additional information within the 
number of days the vetting official specified in the notification.
    (ii) The vetting official will include in the notification any 
information that USAID's Office of Security (SEC) determines 
releasable. In its determination, SEC will take into consideration 
the classification or sensitivity of the information, the need to 
protect sources and methods, or status of ongoing law enforcement 
and intelligence community investigations or operations.
    (5) Reconsideration. (i) Within 7 calendar days after the date 
of the vetting official's notification, an awardee that has not 
passed vetting may request in writing to the vetting official that 
the Agency reconsider the vetting determination. The request should 
include any written explanation, legal documentation and any other 
relevant written material for reconsideration.
    (ii) Within 7 calendar days after the vetting official receives 
the request for reconsideration, the Agency will determine whether 
the contractor's additional information warrants a revised decision.
    (iii) The Agency's determination of whether reconsideration is 
warranted is final.
    (6) Revisions to vetting information. (i) Before the order is 
awarded, any awardee who changes key individuals, whether it has 
previously passed vetting or not, must submit a revised USAID 
Partner Information Form to the vetting official. This includes 
changes to key personnel resulting from revisions to the technical 
proposal.
    (ii) The order vetting official will follow the vetting process 
in paragraph (e) of this clause for any revision of the awardee's 
Form.
    (7) Award of order. The contracting officer may award an order 
subject to vetting only to an apparently successful awardee that has 
passed vetting for that order.
    (i) When the contractor anticipates awarding a subcontract for 
which consent is required under FAR clause 52.244-2, Subcontracts, 
the subcontract is subject to vetting. The prospective subcontractor 
must submit a USAID Partner Information Form, USAID Form 500-13, to 
the designated vetting official. The contracting officer must not 
consent to award of a subcontract to any organization that has not 
passed vetting when required.
    (j) The contractor agrees to incorporate the substance of 
paragraphs (a) through (g) of this clause in all subcontracts under 
this contract.

(End of clause)
    Alternate I (FEB 2012). As prescribed in 716.506(b), substitute 
paragraphs (i) and (j) below for paragraphs (i) and (j) of the basic 
clause:

    (i)(1) When the contractor anticipates awarding a subcontract 
for which consent is required under FAR clause 52.244-2, 
Subcontracts, the subcontract is subject to vetting. The prospective 
subcontractor must submit a USAID Partner Information Form, USAID 
Form 500-13, to the designated vetting official. The contracting 
officer must not consent to award of a subcontract to any 
organization that has not passed vetting when required.
    (2) In addition, prospective subcontractors at any tier 
providing the following classes of items (supplies and services):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------

must pass vetting. Contractors must not place subcontracts for these 
classes of items until they receive confirmation from the vetting 
official that the prospective subcontractor has passed vetting.

[[Page 8174]]

    (j) The contractor agrees to incorporate the substance of this 
clause in all subcontracts under this contract.

Aman S. Djahanbani,
Senior Procurement Executive, US Agency For International Development.
[FR Doc. 2012-3239 Filed 2-13-12; 8:45 am]
BILLING CODE 6116-01-P
```