DandF_EPP_Extension.pdf

Tab 1 - Determination and Findings (D&F): Authorization for Use of Other than Full and Open Competition in the Award or Modification of Contracts

Pursuant to the authority set forth in §706.302-70(b)(3)(ii) of the USAID Acquisition Regulations (AIDAR), I have determined that it is necessary to authorize the following exceptions to competition in the award and modification of contracts in support of USAID’s Ukraine, Belarus, and Moldova programming to avoid the impairment of U.S. foreign assistance and foreign policy and programmatic objectives. This determination is made in consideration of the supporting findings set forth below and will remain in force and effect through March 6, 2026.

1. The nature and/or description of the action being approved.

As a matter of law and policy, USAID's practice is to follow full and open competition in the awarding of contracts, including where a proposed modification to an existing contract triggers competition requirements. Approval of this authority for exceptions to full and open competition is necessary to provide the flexibility that is essential to USAID's ability to continue to implement programming to swiftly mobilize technical, financial, and other resources to support programming related to, and to provide assistance to people affected by, the war in Ukraine.

Specifically, this will enable USAID to respond to changes in its various operating environments while responsibly delivering assistance related to Ukraine, Belarus, and Moldova.

This authority covers activities funded from all sources of Agency funding, including prior year funding, as well as current and future fiscal year appropriations, unless special rules for these appropriations are enacted by Congress. This action authorizes the award of new contracts using other than full and open competition procedures. It also authorizes non-competitive modifications to existing contracts.

Given the ongoing uncertainty caused by the war, expeditiously providing assistance in a responsive manner takes priority over other options that would delay such assistance, especially where delay or inflexibility could compromise USAID's ability to provide necessary support.

The timeframe required by fully competitive award procedures is inconsistent with USAID’s ability to continuously achieve U.S. foreign policy assistance objectives for Ukraine, Belarus, and Moldova. The availability and use of expedited procurement procedures would significantly abbreviate the procurement timeline and facilitate USAID’s provision of urgently needed supplies and services.

2. Citation of the appropriate statute and/or regulation upon which the D&F is based.

Under 40 USC §113(e)(2), competition requirements shall not impair or affect the authorities of an executive branch agency with respect to “any program conducted for purposes of...transfer to foreign governments, or foreign aid, relief, or rehabilitation.” USAID has implemented this provision through 48 CFR §706.302-70(b)(3)(ii), which provides an exception to competition for “awards for countries, regions, projects, or programs for which the Administrator of USAID makes a formal written Determination and Findings (D&F), that compliance with full and open competition procedures would impair foreign assistance objectives, and would be inconsistent with the fulfillment of the foreign assistance program.”

Under 48 CFR 706.302-70(c)(1), determinations under the authority used herein will not be subject to the requirement for contracting officer certification or to approvals in accordance with

FAR 6.304.

3. Findings that detail the particular circumstances, facts, or reasoning essential to support the determination. Necessary supporting documentation shall be obtained from appropriate requirements and technical personnel.

While it is impossible to list all of the circumstances that justify the use of this authority, the following are some of the most common situations where the authority continues to be necessary, and examples of how the exception to competition would continue to be utilized to support U.S.

foreign assistance objectives for operating units implementing programming related to Ukraine, Belarus, and Moldova.

Ukraine stopped and repulsed what experts believed was a numerically and qualitatively superior force after the Kremlin launched its full-scale war on February 24, 2022, thanks in part to Western-supplied security assistance. Currently, the most intense front remains in the east and the south, where Ukrainian forces have begun a long-anticipated counteroffensive that has seen nascent territorial gains amid heavy fighting. Russia continues relentless missile and short-range munition attacks on Ukraine-controlled areas close to Russian forces, especially in Kherson, as well as in Sumy, Kharkiv, Zaporizhzhya, Dnipropetrovsk, and Mykolayiv oblasts. Russia now seems to be preparing for a long-term campaign of territorial occupation but is known to have made rapid and unexpected changes in tactics, such as the specific targeting of energy infrastructure. It is critical to the objectives of the U.S. foreign assistance program that USAID be able to maintain flexibility to respond rapidly and effectively to the fluctuating regional operating environment and the consequences of the Russian invasion of Ukraine. The timeframe required by fully competitive award procedures, if followed, will not enable USAID to act continuously in a manner consistent with U.S. foreign assistance objectives. The complexities of the ongoing environment of uncertainty and risk, and the expected ongoing need for urgent assistance, and in particular, as Embassy Kyiv reestablishes in-person operations and builds up sufficient staff, necessitate the availability and use of expedited procedures. Successful implementation of new and adapted programming in a rapidly fluctuating environment with enormous needs requires that USAID expedite its normal planning and competitive award processes. Moldova and Belarus are instrumental to these efforts, and programming related to these countries also needs to continue to be adapted to respond to the ongoing and unforeseeable events in Ukraine.

As the situation in Ukraine continues to evolve, potentially significant and unanticipated changes in USAID programs will be necessary to carry out activities and initiatives. At this time, USAID/Ukraine is in the process of starting to develop a new Strategic Framework, determining whether programs need to be rescoped, reassessing sectors and awards, and continuing to wind down those activities that are no longer viable. In parallel to USAID/Ukraine's continuous response and ongoing reevaluation of its activities, the GOU’s current priorities are estimated at $15 billion based on a GOU estimate from July 2023 and include a broad spectrum of critical needs, such as:

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● Restoration and repair of power transmission and distribution lines, as well as strengthening the protection of the power grid;

● Restoration and decentralization of power generation;

● District heating, service delivery restoration needs including water supply and sanitation and other social infrastructure;

● Education and capacity development of relevant Ukrainian state institutions and non-governmental operators;

● Stimulation of export-import operations with particular focus on transportation infrastructure;

● Reestablishment and strengthening of telecommunications and digital infrastructure.

For example, USAID/Ukraine’s use of this D&F enabled an existing partner to begin procurement of critically needed generators, boilers, autotransformers, and other equipment in preparation for the coming winter. Had USAID/Ukraine used competitive procedures for this equipment, Ukraine would be much less prepared for the coming winter facing renewed Russian military attacks on critical infrastructure. As another example, USAID/Ukraine has been able to quickly respond to Russia’s abandonment of the Black Sea Grain initiative by supporting Ukraine to expand export opportunities to the West, which involved infrastructure upgrades at border control points to allow for quicker export of goods - the rapid response by USAID would have been delayed without the use of the EPP. USAID/Ukraine expects similar needs to arise in subsequent winters beyond 2024 as the war situation fluctuates. Russia may also shift tactics, such as Ukraine’s energy infrastructure. In Moldova, the Mission modified a tourism project to house more than 6,500 and feed more than 10,000 Ukrainian refugees while working to find additional shelter and food for incoming refugees. More broadly, Moldova is facing a severe energy crisis, which is being exacerbated by Russia’s invasion of Ukraine and attacks on Ukrainian energy infrastructure, threatening Moldova’s stability, security, and European future.

The root causes of the crisis primarily stem from: (1) Russia’s willingness to use Moldova’s dependence on them for energy supplies to extract political concessions; and (2) a once-in-a-generation energy price increase across Europe that is simultaneously stressing Moldova’s national budget and further limiting Moldova’s access to alternate energy sources.

USAID/Belarus combats disinformation originating from the Kremlin and disseminated through Belarusian state media and the Lukashenka regime that aims to convince Belarusians that the use of their territory and state-owned enterprises to support the invasion should be permitted.

USAID/Belarus also works against the continued russification of Belarusians and elimination of any opportunities for free thinking and dissent. USAID/Belarus used the EPP to pivot programming to support anti-war messaging and solidarity efforts with Ukrainians as well as provide Belarusian youth opportunities to learn critical thinking and entrepreneurship skills while Belarusian private schools were closed and school curriculums were further repressed. The flexibility afforded by the EPP remains necessary as USAID continues to receive large supplement funding in order to meet USG foreign assistance and host government priorities.

As stated in an August 10 letter from the Office of Management and Budget to House Speaker Kevin McCarthy, “the President has reaffirmed that we will stand with Ukraine as it defends its sovereignty for as long as it takes, a strategy that has successfully united our allies and partners and equipped Ukraine to defend itself against Russian aggression. Previous supplemental appropriations for direct military aid, economic and humanitarian assistance, and other support

[November 22, 2023] 7 have been committed or nearly committed. The Administration is requesting supplemental security, economic, and humanitarian assistance funding that would support Ukraine, as well as countries and vulnerable populations worldwide impacted by Russia’s unprovoked and brutal invasion of Ukraine.”

One of USAID’s primary humanitarian assistance goals is continuing to respond quickly to the immediate needs of the Ukrainian people. USAID’s humanitarian partners remain operational and are providing food, shelter, medical services, protection, and other critical humanitarian assistance to the Ukrainian people. The scope and scale of need continues to increase. At the same time, the number of people in need has continued to rise due to both conflict-related displacements, and newly accessible populations who can be reached once a conflict ceases.

Expedited procedures that authorize the extension of programs beyond their present scopes of work will enable USAID to further provide current beneficiaries with a consistent level of services as received in previous years while responsibly expanding to assist newly vulnerable or newly accessible populations. More than six million refugees from Ukraine remain in other countries, according to the UN High Commissioner for Refugees, with another 5.1 million internally displaced across the country, according to the International Organization for Migration.

Displaced persons face increased shelter, economic, health, and protection risks, as well as life-threatening winter conditions.

In staffing, the flexibility provided by these expedited procedures is necessary to respond rapidly to a fluctuating operating environment, the consequences of the USG’s evacuation, and the cap on in-country USAID American personnel currently set at just 25 out of 46 approved positions at Embassy Kyiv. The determination and findings, decisions, and authorities that you approve will be the basis for these critical expedited procedures for urgent and fluctuating programming needs in pursuit of critical foreign policy objectives. USAID has the daunting task of reestablishing staffing to facilitate its objectives in Ukraine. Specifically, in order to counter the difficulties in attracting many of the necessary Foreign Service Officers required to fill essential posts in Ukraine, this D&F will enable the Mission to continue hiring Personal Services Contractor (PSC) staff in an expedited manner as programs pivot and operational needs change quickly. This D&F will also continue to permit expeditious hiring of Ukrainian Cooperating Country National PSCs and also enable the Mission to put in place new or modify existing institutional support contracts (ISCs) as circumstances require. The Mission is presently filling 56 positions. While following standard contracting procedures for PSCs could take up to one year, use of limited competition to hire PSCs would allow USAID to obtain the services of new qualified staff and/or transition existing staff in a more expeditious manner.

There may be other urgent or critical situations where it is necessary to rely upon this authority.

This D&F provides the flexibility necessary for USAID/Washington and field Missions, especially USAID/Ukraine and Belarus, and USAID/Moldova, to respond appropriately to these situations and without undue procedural constraints that would negatively impact program results.

4. A determination, based on the findings, that the proposed action is justified under the applicable statute or regulation.

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I have determined that it is critical to the objectives of the U.S. foreign assistance program that USAID be able to maintain flexibility to respond rapidly and effectively to the fluctuating operating environment and provide critical assistance to the Ukrainian people, including those most vulnerable.

The need for this D&F is great, given the rapid pace with which the situation in Ukraine continues to evolve and to also impact Belarus and Moldova. The availability and use of expedited procedures will allow USAID to quickly modify, pivot, accelerate, and/or develop new and existing programming as conditions require or permit, helping to mitigate the impact of the emerging crises on the Ukrainian people. In light of such needs, Administrator approval of the use of the cited authority to expedite procurement procedures will give USAID the flexibility to effectively respond to the changing landscape as the situation in Ukraine evolves and potentially worsens. Failure to do so will result in an impairment of USAID’s foreign assistance objectives in the region.

5. Expiration date of the D&F, if required.

This new D&F is effective March 6, 2024, upon expiration of the D&F from the EPP approved on March 6, 2022, and will remain in effect through March 6, 2026.

6. The signature of the official authorized to sign the D&F and the date signed.

In accordance with AIDAR 706.302-70(b)(3)(ii), this class D&F is signed by the appropriate official, the Administrator of USAID, in accordance with Agency regulations.

Samantha Power Administrator

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