30494 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Proposed Rules 

Flexibility Act does not apply. However, 

this proposed rule is being published in 

order to elicit comments and to provide 

transparency in the promulgation of 

federal policies. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed changes 

to the FMR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

E. Small Business Regulatory 

Enforcement Fairness Act 

This proposed rule is exempt from 

Congressional review under 5 U.S.C. 

801 since it relates solely to agency 

management and personnel. 

List of Subjects in 41 CFR Part 102–39 

Government property management 

and Personal property. 

Dated: May 26, 2009. 

Stan Kaczmarczyk, 

Acting Associate Administrator, Office of 

Governmentwide Policy. 

For the reasons set forth in the 

preamble, GSA proposes to amend 41 

CFR part 102–39 as set forth below: 

PART 102–39—REPLACEMENT OF 

PERSONAL PROPERTY PURSUANT 

TO THE EXCHANGE/SALE AUTHORITY 

1. The authority citation for 41 CFR 

part 102–39 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 40 U.S.C. 503. 

2. Amend § 102–39.60— 

a. In paragraph (a) by removing the 

fifth entry ‘‘15 Aircraft and airframe 

structural components (except FSC 

Class 1560 Airframe Structural 

Components).’’; 

b. Revising paragraph (e); and 

c. Adding paragraph (m). 

The revision and addition read as 

follows: 

§ 102–39.60 What restrictions and 

prohibitions apply to the exchange/sale of 

personal property? 

* * * * * 

(e) Property with a condition code of 

scrap, as defined at FMR 102–36.40, 

except: 

(1) Property that has utility and value 

at the point in time when a 

determination is made to use the 

exchange/sale authority; or 

(2) Scrap gold for fine gold. 

* * * * * 

(m) Aircraft and aircraft parts, unless 

there is full compliance with all aircraft 

and aircraft parts restrictions and 

limitations in FMR part 102–33 (41 CFR 

part 102–33). 

§ 102–39.80 [Amended] 

3. Amend § 102–39.80, second 

sentence, by adding ‘‘exchanged or’’ 

before ‘‘sold’’. 

[FR Doc. E9–15157 Filed 6–25–09; 8:45 am] 

BILLING CODE 6820–14–P 

AGENCY FOR INTERNATIONAL 

DEVELOPMENT 

48 CFR Parts 704, 713, 714, 715, 744, 

and 752 

RIN 0412–AA63 

Partner Vetting in USAID Acquisitions 

AGENCY: United States Agency for 

International Development. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Agency for 

International Development (USAID) is 

considering implementation of 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. In order to 

apply the Partner Vetting System to 

USAID acquisitions, USAID is 

proposing to amend 48 CFR Chapter 7. 

The agency will not apply the Partner 

Vetting System to USAID acquisitions 

until after review of the public 

comments submitted under this 

proposed rule and promulgation of a 

final rule by USAID. 

DATES: Submit comments on or before 

August 25, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN number 0412–AA63, 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: 

AIDARPartnerVetting@usaid.gov. 

Include RIN number 0412–AA63 in the 

subject line of the message. 

• Fax: 202–216–3135. 

• Mail: U.S. Agency for International 

Development, Office of Acquisition & 

Assistance, Policy Division, 1300 

Pennsylvania Avenue, NW., Room 7.9– 

8, Washington, DC 20523–0001. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

rulemaking. All comments received will 

be included in the public docket 

without change and will be made 

available online at http:// 

www.regulations.gov, including any 

personal information provided. For 

detailed instructions on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Norling, Telephone: 202–712– 

1807, E-mail: 

AIDARPartnerVetting@usaid.gov. 

SUPPLEMENTARY INFORMATION: 

Public Participation: USAID 

welcomes all comments on this 

proposed rule, but would most 

particularly appreciate comments 

addressing the proposed process for 

separating source selection from vetting. 

Additionally, we would appreciate 

comments on the proposed timing for 

vetting. 

Because security screening 

precautions have slowed the delivery 

and dependability of surface mail and 

hand delivery to USAID/Washington, 

USAID recommends sending all 

comments to the Federal eRulemaking 

Portal. The e-mail address and fax 

number listed above are provided in the 

event that submission to the Federal 

eRulemaking Portal is not convenient 

(all comments must be in writing to be 

reviewed). You may submit comments 

by electronic mail, avoiding the use of 

any special characters and any form of 

encryption. 

A. Background 

In accordance with the Privacy Act of 

1974, 5 U.S.C. 552a, USAID established 

a new system of records (see 72 FR 

39042), entitled the ‘‘Partner Vetting 

System’’ (PVS) to support the vetting of 

key individuals of non-governmental 

organizations (NGOs) who apply for 

USAID contracts, grants, cooperative 

agreements, or other funding and of 

NGOs who apply for registrations with 

USAID as Private and Voluntary 

Organizations. In January 2009, USAID 

published a final rule (74 FR 9) to add 

PVS to its Privacy Act regulation, 22 

CFR 215, and to exempt portions of this 

system of records from one or more 

provisions of the Privacy Act. The 

supplementary information to this final 

rule provided a comprehensive 

discussion of the legal basis for partner 

vetting. 

The effective date for the PVS Privacy 

Act final rule has been extended three 

times, most recently on May 4, 2009 (see 

74 FR 20871) and at this time, USAID 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Proposed Rules 30495 

has not yet made a final decision 

whether to implement PVS. If and when 

USAID decides to implement PVS, it 

will be implemented incrementally, 

with an initial pilot program in several 

USAID locations worldwide. 

USAID intends to apply PVS to both 

assistance and acquisitions. In order to 

apply PVS to USAID acquisitions, 

USAID must amend 48 CFR Chapter 7, 

which is USAID’s procurement 

regulation. As required by 41 U.S.C. 

Chapter 7, Section 418b, agencies must 

publish a notice in the Federal Register 

when a proposed procurement 

regulation has a significant effect 

beyond the internal operating 

procedures of the agency and provide 

for a public comment period for 

receiving and considering the views of 

all interested parties. 

USAID seeks comments through this 

proposed rule to help ensure successful 

implementation of PVS to USAID 

acquisitions that minimizes the impact 

on our programs and contractors while 

still protecting against the possibility 

that USAID funds could benefit terrorist 

groups. USAID will only finalize this 

rule if USAID approves PVS and after 

reviewing public comments received in 

response to this proposed rule. 

Need for partner vetting. Consistent 

with applicable law and agency policy, 

USAID already has taken a number of 

steps to help ensure that agency funds 

and other resources do not inadvertently 

benefit individuals or entities that are 

terrorists, supporters of terrorists or 

affiliated with terrorists. USAID 

recognizes, however, that more can be 

done to ensure adequate due diligence 

in certain situations. Accordingly, to 

complement its requirements for 

terrorist financing clauses, terrorist 

financing certifications, and review of 

public lists of designated groups and 

individuals, USAID established PVS. 

Among other things, PVS will 

facilitate the management and collection 

of information from individuals, 

officers, employees, or other officials of 

organizations that seek to receive 

USAID funding. The information will be 

used to conduct national security 

screening of such individuals and 

organizations to ensure that USAID 

funds do not inadvertently or otherwise 

provide support to entities or 

individuals associated with terrorism. 

To properly conduct this screening, it is 

necessary to collect information on ‘‘key 

individuals’’—the principal officers and 

other key employees and personnel of 

USAID contractors. 

To minimize the risk that USAID 

funds will be diverted to terrorists or for 

terrorist activities, USAID must take 

into account the range of activities it 

carries out and the range of 

circumstances under which those 

activities are implemented. Safeguards 

and scrutiny should be correlated with 

risk. Accordingly, USAID will perform a 

risk based assessment to determine the 

likelihood that the funds, goods, 

services, or other benefits to be provided 

could intentionally or inadvertently 

benefit terrorists or their supporters, 

including people or organizations who 

are not specifically designated by the 

U.S. Government but who may 

nevertheless be linked to terrorist 

activities. Key factors that USAID will 

consider in this assessment will 

include, but are not limited to, the 

nature of what is being provided (e.g., 

cash, goods, services), the type of entity 

that will be implementing the activity 

(e.g., U.S. Non-Governmental 

Organization (NGO), U.S. contractor, 

foreign NGO, foreign contractor, 

international organization), the 

geographic location of the activity, the 

safeguards available and how easily 

funds could be diverted or misused. 

Other considerations, while not 

necessarily factors in the risk 

assessment, include the urgency of the 

activity and the foreign policy 

importance of the activity. 

Vetting and source selection. If PVS is 

approved and if this rule is finalized, 

USAID intends to apply PVS to 

acquisitions in a manner that protects 

the integrity of the source selection 

process and also ensures that USAID’s 

Office of Security (SEC) is able to obtain 

information necessary to vet key 

individuals and protect that information 

from unnecessary disclosure. To 

accomplish this, no individual involved 

in the source selection process, 

including the contracting officer, will 

have access to the information offerors 

submit for partner vetting, other than to 

confirm the key individuals the offerors 

have submitted. 

When an acquisition is subject to 

vetting, a provision in the solicitation 

will notify offerors of the vetting 

requirements and procedures. The 

contracting officer will instruct offerors 

when to submit the completed USAID 

Partner Information Form, USAID Form 

500–13 (‘‘the Form’’), to the vetting 

official identified in the solicitation. 

Each Mission or office will have 

flexibility in determining the 

appropriate individual to be the vetting 

official, but the vetting official will be 

a U.S. citizen employee of USAID who 

is not involved in the source selection 

process. In addition to receiving the 

completed Forms, the vetting official 

will be responsible for responding to 

questions from offerors about 

information to be included on the Form, 

coordinating with SEC, and conveying 

the vetting determination to each vetted 

offeror and the contracting officer. 

The Form identifies the information 

required for the key individuals of the 

offeror and required subcontractors. Key 

individuals include 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), the principal officer 

and deputy principal officer of the 

organization (e.g., executive director, 

deputy director, president, vice 

president), the program manager or 

chief of party for the USG-financed 

program, and any other person with 

significant responsibilities for 

administration of the USG-financed 

activities or resources, including key 

personnel. The terms ‘‘key individual’’ 

and ‘‘key personnel’’ are not 

synonymous; all key personnel will be 

key individuals, but not vice versa. 

Key personnel are those personnel 

directly responsible for management of 

the contract or whose professional/ 

technical skills are certified by the 

requiring office as being essential for 

successful implementation of the 

activity. They are designated in the 

contract and require USAID approval as 

described in Automated Directives 

System Chapter 302—USAID Direct 

Contracting. All key personnel, whether 

or not they are employees of the offeror, 

are considered key individuals and 

must be vetted. 

The contracting officer determines the 

appropriate stage of the acquisition 

cycle for offerors to submit the Form to 

the vetting official as specified in the 

solicitation. 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)). 

For other acquisitions including those 

under FAR Part 13—Simplified 

Acquisition Procedures, FAR Part 14— 

Sealed Bidding, and task orders issued 

under Indefinite Quantity Contracts 

(IQCs) under FAR Part 16, this stage will 

most likely be just prior to award. 

Regardless of the point at which vetting 

begins, source selection proceeds 

separately from vetting. An offeror must 

pass vetting in order to be eligible for a 

USAID award, but this is not a source 

selection factor, nor a standard for 

determining the offeror’s responsibility. 

When vetting at the competitive range 

stage, after all vetting determinations are 

received from SEC, the vetting official 

notifies offerors that they either have 

passed or have not passed vetting. For 

offerors who have not passed, the 

vetting official will include in the 

notification as detailed a written 

30496 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Proposed Rules 

explanation of the basis of the vetting 

determination as SEC determines 

releasable. In determining what 

information may be released, SEC will 

take into consideration the classification 

or sensitivity of the information, the 

need to protect sources and methods, 

and status of ongoing law enforcement 

and intelligence community 

investigations or operations. 

Concurrently, the vetting official also 

notifies the contracting officer that all 

vetting determinations have been 

provided to the offerors. The vetting 

official indicates to the contracting 

officer whether or not all offerors have 

passed vetting but will not provide the 

contracting officer with specific vetting 

information. The contracting officer may 

then request final revised proposals 

when discussions are completed. If not 

all offerors have passed vetting, then the 

contracting officer may provide as much 

time as is practicable for offerors to 

submit their revised final proposals. The 

additional time is intended to allow 

offerors to make changes to their 

proposals to accommodate any changes 

in key individuals and to request 

reconsideration of the vetting 

determination if appropriate. Offerors 

who change any key individuals for any 

reason, including but not limited to 

failure to pass vetting or for reasons 

related to their technical proposals, 

must submit their revised Form to the 

vetting official as soon as possible to 

allow for vetting of individuals not 

previously vetted. 

The contracting officer makes the 

source selection decision independently 

from the vetting process. The 

contracting officer then confirms with 

the vetting official that the apparently 

successful offeror has passed vetting 

and proceeds with award. Only offerors 

who have passed the vetting process are 

eligible for award. When the contracting 

officer is ready to make award but the 

vetting official is unable to confirm that 

the apparently successful offeror has 

passed vetting, the contracting officer 

will wait as long as is practicable for the 

vetting official’s confirmation. However, 

at such time as the Government’s need 

for the contract precludes delaying the 

award any longer, the contracting officer 

will proceed with award to the next 

offeror(s) who represents the best value 

in accordance with the evaluation 

criteria of the solicitation and passes 

vetting. 

Subcontracts. Partner vetting would 

also apply to subcontractors. In most 

circumstances, only those subcontracts 

for which consent is required in 

accordance with FAR clause 52.244–2 

will be vetted. The contracting officer 

will not consent to a subcontract until 

the subcontractor’s key individuals have 

passed vetting. When the agency 

considers it appropriate, additional 

subcontracts for certain classes of items 

(supplies and services) that are 

considered higher risk will also be 

vetted, even if consent is not required. 

The contracting officer will identify 

these classes of items in the solicitation 

and the contractor will be responsible 

for ensuring that these subcontracts at 

any tier are vetted before placing the 

subcontracts. 

In the pre-award stage, offerors may 

instruct their prospective subcontractors 

who are subject to vetting to begin the 

process at any time after the contracting 

officer notifies them to submit their 

Form. After contract award, the 

contractor is responsible for directing 

prospective subcontractors to submit the 

Form as soon as possible after selecting 

them, in order to have the vetting 

determination from the vetting official 

in time to place the subcontract. 

Subcontractors will submit their Form 

directly to the vetting official, who will 

notify the subcontractor of the vetting 

determination and provide any 

releasable information from SEC. The 

vetting official will inform the 

contractor, or a subcontractor entering 

into a lower tier subcontract subject to 

vetting, of the vetting determination 

only. The prospective subcontractor 

may choose to share the information 

provided by the vetting official to the 

contractor. 

Post-award vetting. As stated in the 

proposed clause at section (48 CFR) 

752.204–71(c), contractors must 

resubmit the Form annually or when 

they replace key individuals with 

individuals who have not been 

previously vetted for that contract. 

In order to implement partner vetting, 

USAID proposes to add a new subpart 

704.70 to (48 CFR) AIDAR, with an 

associated solicitation provision and 

contract clause in (48 CFR) AIDAR part 

752. Additionally, USAID proposes to 

amend (48 CFR) AIDAR parts 713, 714, 

and 715, and add new part 744 to 

include reference to the requirements at 

(48 CFR) AIDAR subpart 704.70. 

B. Regulatory Planning and Review 

Under Executive Order (E.O.) 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 

Proposed 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 proposed rule is 

a ‘‘significant regulatory action’’ under 

Section 3(f)(4) of the E.O., USAID will 

submit it to OMB for review. 

C. 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 determined that its 

provisions would not have a significant 

economic impact on a substantial 

number of small entities. 

D. Paperwork Reduction Act 

The proposed 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 August 19, 2008 (OMB 

Control Number 0412–0577). 

List of Subjects in 48 CFR Parts 704, 

713, 714, 715, 744, and 752 

Government procurement. 

For the reasons set forth in the 

preamble, the U.S. Agency for 

International Development proposes to 

amend 48 CFR chapter 7 as follows: 

1. The authority citation for 48 CFR 

parts 704, 713, 714, 715, 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 

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. 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Proposed Rules 30497 

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 partner vetting. 

In that case, USAID will require vetting 

of the key individuals of certain 

offerors, including key personnel 

whether or not they are employees of 

the offeror, and first tier subcontractors. 

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 vetting 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 immediately prior to 

award and require only the apparently 

successful offeror to submit the 

completed Form. 

(c) For other acquisitions including 

those under FAR Parts 13 and 14, and 

task orders issued under Indefinite 

Quantity Contracts under FAR Part 16, 

the contracting officer determines the 

appropriate time to require potential 

awardee(s) to submit the completed 

Partner Information Form to the vetting 

official. 

(d) 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. 

(e) The contracting officer may only 

award to an offeror who has passed 

partner vetting. 

704.7004–2 Post-award requirements. 

For those acquisitions the agency has 

determined are subject to vetting, the 

contractor must submit the completed 

Form annually and any time it changes: 

(a) Key individuals, including all key 

personnel, and 

(b) Subcontractors for which vetting is 

required. 

704.7004–3 Subcontracts. 

(a) Vetting is required for all 

subcontracts 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 partner vetting 

until that subcontractor has passed 

vetting. 

(c) Vetting may be required for 

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 partner vetting to submit the 

Form to the vetting official as soon as 

the contractor submits the 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 Partner Vetting. 

(b)(1) The contracting officer will 

insert the clause at 752.204–71 Partner 

Vetting, in all solicitations and contracts 

USAID identifies as subject to partner 

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. 

PART 713—SIMPLIFIED ACQUISITION 

PROCEDURES 

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 Partner Vetting, see (48 CFR) 

AIDAR 704.70 for the applicable 

procedures and requirements. 

PART 714—SEALED BIDDING 

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 Partner Vetting, see (48 CFR) 

AIDAR 704.70 for the applicable 

procedures and requirements. 

PART 715—CONTRACTING BY 

NEGOTIATION 

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 Partner Vetting, see (48 CFR) 

AIDAR 704.70 for the applicable 

procedures and requirements. 

6. Add Part 744 to read as follows: 

PART 744—SUBCONTRACTING 

POLICIES AND PROCEDURES 

Subpart 744.2—Consent to 

Subcontracts 

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 

7. Amend part 752 by adding sections 

752.204–70 and 752.204–71, to read as 

follows: 

752.2 Texts of Provisions and Clauses. 

* * * * * 

30498 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Proposed Rules 

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 (XXXX 2009) 

(a) USAID has determined that any 

contract resulting from this solicitation is 

subject to partner 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 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 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 Form 

to 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) 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). 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 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 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 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), insert the following clause 

in all contracts subject to vetting: 

Partner Vetting (XXXXX 2009) 

(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: 

(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 paragraph (e) 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 period— 

(1) Annually by the anniversary date of 

contract award, and 

(2) 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: lllllllllllll

Address: llllllllllllllll

lllllllllllllllllllll

E-mail: lllllllllllllllll

(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 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 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 (XXX 2009). As prescribed in 

704.7005(b)(2), substitute paragraphs (h) 

and (i) below for paragraphs (h) and (i) 

of the basic clause: 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Proposed Rules 30499 

1Federal Transit Administration, Notice of 

Proposed Rulemaking on School Bus Operations, 73 

FR 68375 (Nov. 18, 2008). 

2Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for Users 

(SAFETEA–LU) sec. 3023, 49 U.S.C. 5323(f) (2006). 3 531 F.Supp.2d 494 (W.D.N.Y. 2008). 

(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): 

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

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. 

Maureen A. Shauket, 

Director, Office of Acquisition and Assistance, 

U.S. Agency for International Development. 

[FR Doc. E9–15012 Filed 6–25–09; 8:45 am] 

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DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

49 CFR Part 605 

[Docket No. FTA–2008–0044] 

RIN 2132–AB00 

School Bus Operations 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

ACTION: Notice of proposed rulemaking; 

withdrawal. 

SUMMARY: The Federal Transit 

Administration (FTA) hereby withdraws 

a notice of proposed rulemaking 

(NPRM) regarding school bus operations 

published in the Federal Register on 

November 18, 2008. FTA has 

determined that withdrawal of the 

NPRM is appropriate in consideration of 

public misperceptions with FTA’s 

regulatory proposal. 

DATES: Effective Date: The proposed 

rule, published on November 18, 2008 

(73 FR 68375), is withdrawn as of June 

26, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Michael L. Culotta, Attorney, Office of 

Chief Counsel, Federal Transit 

Administration, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., East Building-5th Floor, 

Washington, DC 20590. E-mail: 

Michael.Culotta@dot.gov. Telephone: 

(202) 366–1936. Facsimile: (202) 366– 

3809. 

SUPPLEMENTARY INFORMATION: 

Background 

On November 18, 2008, FTA issued a 

Notice of Proposed Rulemaking (NPRM) 

to amend its school bus operations 

regulations at 49 CFR part 605.1 FTA 

issued the NPRM to make the 

regulations consistent with the changes 

to the Agency’s authorization statute, 49 

U.S.C. 5323(f), as amended by Section 

3023(f) of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA– 

LU); 2 to provide clarification about the 

regulations in the context of the recent 

decision by the U.S. District Court for 

the Western District of New York in 

Rochester-Genesee Regional 

Transportation Authority v. HynesCherin; 3 and generally, to update the 

regulation based on experience and 

industry practice. Through the NPRM, 

FTA intended to provide its grantees 

with a regulatory basis which would 

allow them to continue to provide the 

service that FTA historically has 

allowed through administrative 

adjudications, while simultaneously 

satisfying the statutory requirements of 

49 U.S.C. 5323(f). 

The comment period for the NPRM 

closed on February 18, 2009. FTA has 

received and considered all 233 written 

comments in response to the NPRM. 

Although FTA received a good deal of 

support for the NPRM, many 

commenters opposed it. Generally, 

critics of the NPRM believed that FTA 

was attempting to restrict opportunities 

for its grantees to provide 

transportation, when in fact, FTA was 

attempting to allow its grantees to 

provide service it historically has 

allowed. FTA finds, moreover, that 

many commenters misunderstood FTA’s 

objectives to rectify a significantly 

outdated regulatory scheme. 

The Withdrawal 

In consideration of the foregoing, FTA 

hereby withdraws its NPRM on school 

bus operations for FTA Docket Number 

FTA–2008–0044, as published in the 

Federal Register on November 18, 2008 

(73 FR 68375). FTA will revisit the 

issues addressed in the NPRM in the 

near future. 

Issued in Washington, DC, on this 23rd day 

of June 2009. 

Peter M. Rogoff, 

Administrator. 

[FR Doc. E9–15346 Filed 6–24–09; 4:15 pm] 

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