Determination and Findings_D and F.pdf

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 Regulation (AIDAR), I have determined that it is necessary to provide for the following exceptions to competition in the award and modification of contracts in support of USAID’s Afghanistan programming in order to avoid the impairment of U.S. foreign assistance and foreign policy objectives. This determination is made in consideration of the supporting findings set forth below and will remain in force and effect for two years from the date of the authorization of the EPP.

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 award of contracts and in instances where a proposed modification to an existing contract triggers competition requirements. However, in exceptional circumstances, these interests must give way to the overriding objective of providing emergency and often life-saving interventions on a timely basis. 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 implement programming to swiftly mobilize technical, financial, and other resources to provide assistance to the Afghan people, to specifically (i) responsibly deliver assistance to the Afghan people, (ii) identify and stand up a reconstituted Mission and (iii) employ staff, including our former USAID/Afghanistan CCNs who were evacuated from Afghanistan.

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.

Authorization of the use of other than full-and-open competition is necessary, given the urgent need for USAID to mobilize technical, financial, and other resources rapidly to address the fluctuating operating environment.

Expeditiously providing assistance in as responsive a manner as possible 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, if followed, would not enable USAID to act in a manner consistent with U.S. foreign policy. The availability and use of expedited procurement procedures would have a significant impact on the procurement timeline and 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)(2), determinations under the authority used herein will not be subject to the requirement for contracting officer certification or approval 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 is necessary, and examples of how the exception to competition would be utilized to support U.S. foreign assistance objectives:

First, the rapidly changing situation in Afghanistan may require the extension of existing contracts beyond their present scopes of work to bridge gaps between existing programs and activities and the establishment of new programs and activities. At this time, one of USAID’s primary humanitarian assistance (HA) goals is to scale up quickly to respond to the immediate needs of the Afghan people. USAID’s humanitarian partners remain operational, providing fo od, shelter, medical services (including COVID-19-assistance), protection, and other critical humanitarian assistance to the Afghan people. The scope and scale of needs is increasing, as the economic contraction increases the cost of providing assistance at the same time as the number of people in need has risen due to new conflict-related displacements through August and, with the cessation of conflict, access to populations previously unreachable behind conflict lines newly opening. Expedited procedures that authorize the extension of programs beyond their present scopes of work will enable USAID to 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.

Additionally, as the situation in Afghanistan continues to evolve, significant and unanticipated changes in USAID programs will be necessary to carry out activities and initiatives. At this time and in regard to the Mission’s development assistance program, the Mission is in the process of restarting programs in several sectors while determining whether they need to be rescoped, reassessing sectors and awards and winding down those activities that are no longer viable given the current situation. This EPP will allow for the swift resumption and modification of USAID programming, as conditions require or permit.

Given the closure of the U.S. Embassy Kabul and evacuation of hundreds of staff, USAID faces the daunting task of re-establishing Mission staffing and infrastructure to facilitate its humanitarian and development objectives in Afghanistan. This will necessitate rapid expansion and reorganization of staffing. In order to utilize the skills and knowledge of the 149 CCN staff members who were evacuated to the United States, as well as to help their resettlement efforts in the United States, the Agency is exploring hiring staff through various mechanisms. These include institutional support contracts (ISCs) and utilizing new authorities granted in the recently-passed Continuing Resolution (CR) to hire such staff directly as USPSCs. The Mission may also need to hire other PSC staff in an expedited manner, depending on programmatic needs, the location of the USAID/Afghanistan as a reconstituted Mission and potential economies of scale. While following standard contracting procedures for PSCs could take up to one year, use of limited competition to issue PSCs would allow USAID to obtain the services of new qualified staff and/or transition existing staff in an expeditious manner to support programming.

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

The EPP provides the flexibility necessary for USAID/Washington and Missions to respond most appropriately to these situations, 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.

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 the consequences of the USG’s evacuation of Kabul and provide critical assistance to the Afghan people, including those most vulnerable.

The need for this EPP is great, given the rapid pace with which the situation in Afghanistan is evolving. The availability and use of expedited procedures will allow USAID to quickly resume, modify, accelerate and/or develop new programming as conditions require or permit, helping to mitigate the impact of the emerging crises on the Afghan people. In light of such needs, Administrator approval of the use of the cited authority to expedite procedures based on the defined approach herein will give USAID the flexibility to effectively respond to the changing landscape as the situation in Afghanistan evolves and potentially worsens. Failure to do so will result in an impairment of USAID’s foreign assistance objectives.

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

This D&F is effective immediately upon my authorization and will remain valid for two years from the date of my authorization.

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.