HIV-AIDS_Expedited_Procedures_Package.pdf

SAID

December 23,2013

ACTION MEMORANDUM FOR THE ADMINISTRATOR

FROM: ANGH - Ariel Pablos-Mendez lsi

SUBJECT: Expedited Procurement Procedures for Prevention, Care, and Treatment of HIV

Recommendations

That you approve an extension of the expedited procedures for HIV I AIDS activities such as waivers of competition for contracts and grants and waiver of source and nationality requirements. This extension will be effective through December 31, 2019.

1. Authorization for exceptio to competition for the modification or award of acquisition and assistan s. (Tab 1)

FEB 11 2014

Approve Disapprove ________ _

2. A general source and nationality waiver authorizing procurement of goods and services, including restricted commod' ies, from geographic code 935 (any area or country but excluding prohibited so ces). (T

FEB 11 Disapprove ________ _

Background Administrator J. Brady Anderson approved the original HIV / AIDS expedited procedures on December 19, 2000, and Administrator Henrietta Fore extended the procedures in February 2008 to cover the period through December 31, 2013 . The Agency approved the procedures based on the urgent need to meet ambitious targets set forth in the HIV / AIDS and Infectious Disease Initiatives. The Agency continued them to allow USAID to work towards the rigorous HIV I AIDS goals set by the President under PEPF AR and the unprecedented resources dedicated to those goals by Congress in the Leadership Act. The decisions and authorities within the procedures have been essential to USAID's ability to respond quickly and effectively in meeting the critical needs of all agency HIV I AIDS activities and programs, including PEPF AR activities and programs, as demonstrated by the examples and discussion in Tabs 1 and 2. Multiple missions and operating units have requested extension of these procedures, some indicating an imminent need for the authorities herein.

Extension of these expedited procedures is essential to USAID s ability to maintain vigilance, flexibility, and responsiveness in HIV I AIDS activities through December 31, 2019. In many circumstances, delay or inflexibility in assistance could compromise the ability to provide life-saving medicines and treatment to those affected by HIV I AIDS; the ability to reach stringent Congressional and Administration targets for treatment and prevention; and the ability to adapt to shifting strategies and initiatives. President Obama and the Secretary of State have announced a commitment by the United States to creating an "AIDS-free generation" and called on PEPF AR agencies to create a blueprint for reaching this goal. As we enter a third phase of PEPF AR, we anticipate continuing high levels of resources to be dedicated to HIV I AIDS programs, at the same time that USAID is committed to sustainability and country ownership, all the while host country and programs are rapidly shifting strategies and priorities. While operating units will continue to utilize standard competition procedures wherever possible, the flexibility provided by these expedited procedures is necessary to avoid impainnent of US AID's foreign assistance objectives and goals. The decisions and authorities that you approve in this action memo will be the basis for these critical HIV I AIDS expedited procedures.

Authority AIDAR 706.302-70, Impainnent of Foreign Aid Programs (for contracts), and ADS

303.3.6.6(a)(2)(f), Critical Objectives of the Foreign Assistance Program (for assistance agreements).

Attachments:

Tab 1 - Authorization for Exceptions to Competition Tab 2 - Source and Nationality Waiver Tab 3 - Guidance for Documentation and Use Tab 4 - Previous Expedited Procedures (December 2000 and February 2008) Tab 5 - Usage Tables (2008, 2009, 2010 and 2011)

CLEARANCE PAGE FOR ACTION MEMORANDUM on Expedited Procurement Procedures for Prevention, Care, and Treatment of HIV

Drafter:

GC/GH:TBates, 2-4256, 11/2013 P:/GH.OHA.PUB/OHA's-Program-DocsIHIV EPP November 2013

Clearances:

Bureau Level Clearances Initials Clearance Status Date (Not Cleared, Info, Clear, Clear wi comments)

GHlOHA:DStanton DS cleared 11125/13 GHlOHA:BGustafson BG cleared 11/15/13 GHlP3 : MZeilinger MZ cleared 12/9/13 GC:MMcLaughlin MM cleared 12110/13 GCI A&A:GGirod GG cleared 12/19/13 LP A:BBennett BB cleared 12/18/13 MlOAAlGH:SMcElrath SM cleared 12112/13 MlOAAlGH:DStephens DS cleared 12/12113 MlOAAlOD:MWalther MW cleared 12/13/13 Comp.Advocate:DBroderick CB cleared 12/19/13 DAAlGH:RClay RC cleared 12/20/13 SDAAlGH:WWarren WW cleared 12/23/13

ACTS No.: ES201400718 ES/Spec.Asst: JVanSandt

TABl

Authorization for Exceptions to Competition in the Modification or Award of Contracts.

Grants. and Cooperative Agreements for "IV/AIDS Activities and Programs

Pursuant to the authority set forth in AIDAR §706.302-70(b)(3)(ii) and ADS 303.3.6.6.a(2)(f), I have determined that it is necessary to provide for the following exceptions to competition in the modification and award of contracts, grants, and cooperative agreements in support of US AID's HIV/AIDS activities and programs 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 from this date until December 31, 2019.

1. This document sets forth the facts and rationale justifying the following exceptions to competition:

a. Class justification and authorization (J&A) for the use of other than full and open competition in the solicitation, award, and modification of contracts for HIV/AIDS activities and programs, in accordance with AIDAR §706.302- 70(b)(3)(ii); and

b. Blanket justification for the use of an exception to competition (lEC) for the modification and award of grants and cooperative agreements for HIV / AIDS activities and programs, in accordance with ADS 303.3.6.6.a.(2)(f).

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

As a matter of law and policy, USAID's normal practice is to follow standard competitive procedures in the award and modification of contracts and assistance agreements. However, in exceptional circumstances, these interests must give way to the overriding objective of providing humanitarian assistance on a timely basis. Extension of this authority for exceptions to competition is necessary to provide the flexibility that is essential to USAID's ability to implement HIV/AIDS activities in a timely and vigilant manner in response to the humanitarian crisis, especially in the context of new and ambitious targets and shifting mandates and priorities.

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, grants, and cooperative agreements using less than fully competitive procedures. It also authorizes non-competitive amendments to existing contracts, grants and cooperative agreements for additional work similar to that performed under the initial agreement.

Prior to using this authority for a particUlar procurement, implementing officers will consider the feasibility of using full and open competitive procedures as described in the Federal Acquisition Regulation or agency policies, as well as using small business Section 8(a) procurement authorities and minority serving institutions. While formal posting of opportunities would not be required, applications should be solicited from as many sources as practicable under the circumstances, though there may be circumstances in which sole source awards are necessary.

Each time this authority is used, the pertinent award officer will document and report the action using the procedures described in Tab 3. The procedures at Tab 3 include public disclosure of the action where appropriate, as well as internal tracking procedures.

Because these exceptions to competition are being approved at the Administrator level, awards made hereunder are not subject to the approval requirements of ADS 303.3.6.6.a(3), relating to follow-on awards and extensions in excess of$5 miIlion.

3. A description of the supplies or services (including an estimated value):

USAID has utilized the authority in the Expedited Procedures judiciously over the past six years, programming the majority of its assistance through competed or existing mechanisms. At the same time, some urgent and vital USAID assistance activities have needed to rely on the exceptions to competition. With the expedited award authority, USAID missions were able to quickly adapt their portfolios to respond to new and ambitious targets, rapidly scale-up programs to meet demand, and respond to dynamic priorities and strategies. Because of changing circumstances and unknown factors, the total value of contracts and cooperative agreements falling within this action cannot be determined at this time.

4. An identification of the authority providing for exceptions to competition:

a. Contracts: 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 with supported findings 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."

b. Grants and Cooperative Agreements: ADS 303.3.6.6.a(2)(f) permits an exception to competition when it is critical to the objectives of the foreign assistance program.

This authority must be used to support critical U.S. foreign policy objectives and applies when no other exception to competition applies.

5. Facts and rationale that justify exceptions to competition:

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 HIV / AIDS pandemic and to save lives. At times, it is imperative that assistance can flow immediately to the areas where it is needed most, without following the standard competitive procedures. The timeframe required by fully competitive award procedures, if followed, will not enable USAID to act in a manner consonant with U.S. foreign policy. The magnitude of the HIV I AIDS pandemic and the need for urgent assistance, coupled with the anticipated continuing high levels in authorized funding and the continued need to reach targets set by the Administration and Congress, necessitate the availability and use of expedited procedures.

Under previous expedited procedures, USAID has used the exceptions to competition in appropriate situations where assistance is needed to respond quickly to urgent and critical demands of HIV I AIDS programs and to avoid unacceptable delays in program implementation. For example, one mission used the expedited procedures to increase the ceiling of a Voluntary Male Medical Circumcision (VMMC) prevention award, which was necessary to allow for rapid scale-up of activities to meet significant and unexpected increase in demand and funding. Without an exception to competition, the mission would have been unable to promptly and effectively fund critical HIV I AIDS prevention activities. As another example, after newly introduced usa and USAID priorities resulted in missions revising their existing procurement plans, the expedited procedures were invoked for a I-year, no cost extension of a technical assistance task order under the AIDST AR award. Without this critical extension, the expiration of the Task Order would have resulted in cessation of services; gaps in vital prevention, care and treatment support to governments; and a lack of continuity in programming.

While it is impossible to list all of the circumstances that justify the authority provided by these exceptions to competition, the following are some of the most common situations where the authority is needed:

First, there may be a need to extend existing programs and their implementing instruments beyond their present scopes to bridge gaps between existing programs and activities and the establishment of new programs and activities. The provision of commodities and services must not be interrupted during programmatic switches.

Continuation of treatment regimes such as AR V s is of utmost importance during program changeovers. Expedited procedures authorizing the extension of programs beyond their present scopes will enable USAID to maintain treatment regimes, patient relations, information systems, and other programmatic components while moving the goals of the HIV I AIDS program forward.

As funding levels for newly emerging priority areas increase and programs expand to meet demand, partners sometimes meet the total estimated cost ceilings in their awards more quickly than anticipated, sometimes years before the original completion date in the award. When this happens, it is not necessarily in the best interest of USAID, PEPFAR, or u.S. foreign policy to stop programs prematurely or re-compete the award, and USAID needs the tools to flexibly respond and conduct expedited procurements. When such rapid scale-ups are called for, existing implementing partners may be unable to absorb all of the allocated funding or demand, and new activities and partners may need to be added in an urgent manner.

As HIV I AIDS priorities continue to evolve, there are often significant and unanticipated changes in the supplies and services that are needed to carry out activities and initiatives.

Several PEPF AR countries are in the process of transitioning service delivery and other programmatic components to host country systems, and when transition schedules experience delays and modifications, USAID programs need the flexibility to respond and ensure continuity of services.

Finally, there may be other urgent or critical situations where it is necessary to rely upon this authority providing for exceptions to competition.

6. Other facts and rationale supporting the use of exceptions to competition:

(circumstances that require using the exception; other options USAID explored; no other exception applies)

None of the other exceptions to competition are adequate to address the urgent and overwhelming needs that come from the ambitious targets set for HIV I AIDS treatment and prevention, the vast quantity of resources dedicated to interventions, and the shifting strategies and priorities of the US Government and the governments of countries where we support HIV I AIDS programs. 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 life saving medicines and treatment to those affected by HIV/AIDS.

Authorization of exceptions to competition is also essential to USAID's ability to contribute to the promise of an "AIDS-free generation," an ambitious but reachable goal of the United States and the global AIDS community. The US Government's roadmap for meeting this goal, the PEPF AR Blueprint, makes clear that our approach must be strong, comprehensive, and driven by science. The Blueprint emphasizes that country ownership and donor coordination are key to the United States' approach and focuses on working with faith-based organizations, civil society, the private sector, foundations, and multilateral institutions. Without flexibility to utilize less than fully competitive procedures for PEPF AR and other HIV I AIDS activities and programs, we will be hindered in our efforts to provide effective and durable interventions that incorporate the principles and approaches directed by the Blueprint.

TAB 2

Source and Nationality Waiver for HIV/AIDS Activities and Programs

In the two previous HIV I AIDS Expedited Procedure Packages, the Administrator approved a source and nationality waiver establishing Geographic Code 935 (which includes any country except foreign policy restricted countries) for the procurement of goods and services for HIV/AIDS activities and programs. Those waivers were critical to the agency's ability to ensure the ready availability of services and commodities in the implementation of many of our HIV/AIDS activities and programs, including PEPFAR. Absent this waiver, the Program would experience significant barriers in providing services in a timely manner and would have to expend significant time and resources to address source and nationality issues. For these reasons, we recommend that Code 935 be maintained as the applicable source and nationality code for HIV/AIDS activities and programs.

Background

Per 22 CFR §228.11 and ADS 310, the Principal Geographic Code for US AID procurement of goods and commodities is Code 937 (the United States, the recipient country, and developing countries other than advanced developing countries, but excluding any country that is a prohibited source). Source and nationality waivers to Code 935 may be authorized under 22 CFR §228.30(a)(3) based on a determination that such a waiver will "promote efficiency in the use of United States foreign assistance resources, including to avoid impairment of foreign assistance objectives." Such waivers may be approved on a regional, country, or program basis.

In the 2000 Expedited Procedures Package, a source and nationality waiver was approved for the procurement of any goods and services procured under the HIV I AIDS and Infectious Disease Strategy, including motor vehicles but excluding pharmaceuticals, which were handled by a separate waiver process. The 2008 Expedited Procedures Package also included a source and nationality waiver for goods and services procured in support of US AID's HIV/AIDS activities and programs, specifically including motor vehicles, anti-retroviral (ARV) medications, and other pharmaceuticals.

Recommendation

We recommend that you approve this source and nationality waiver for goods and services procured in support of US AID's HIV/AIDS activities and programs so we can continue to implement our HIV/AIDS programs and activities in a timely, flexible, and cost effective manner. Permitting USAID and its HIV/AIDS implementing partners to use Code 935 sources ensures that activities can procure a sufficient quantity of high quality goods and services at competitive pricing, allowing the rapid flow of assistance to the areas where it is needed most. It also increases the effectiveness of our programs in reaching prevention, care, and treatment targets and responding to rapidly shifting mandates and priorities.

Although other source and nationality waivers may cover some goods procured for HIV I AIDS programs, this source and nationality waiver would be applicable to any goods and services procured in support of HIV I AIDS activities and is thus necessary to meet overall program objectives. Further, although Code 937 now includes the recipient country and other developing countries, capacity, quality, and other considerations require that HIV/AIDS programs maintain the option to source commodities and services beyond 937, on a worldwide basis.

This waiver makes Code 935 fully applicable for procurement at both the prime contract and subcontract level (including procurements under grants and cooperative agreements). This waiver covers unrestricted and restricted commodities, including motor vehicles and pharmaceuticals. Except for motor vehicles discussed below, it does not apply to the additional "restricted commodity" approvals required in ADS 312. For example, pharmaceuticals must meet the "restricted commodity" requirements for quality in ADS 312.

Any invocation of this waiver will be documented as indicated in in the Tab 3 guidance.

Motor Vehicles

Motor vehicles are included in the Code 935 waiver above. In addition to 22 CFR §228 source and nationality restrictions, Section 636(i) of the Foreign Assistance Act (FAA) requires that USAID-financed motor vehicles be manufactured in the United States, but states that this requirement can be waived based on the existence of "special circumstances." ADS 312.3.3.2.b.3 further provides that blanket waivers for procurement of non-U.S. manufactured motor vehicles may be issued on a regional, country, or program basis if the waiver documents the special circumstances and provides adequate supporting justification. ADS 312 provides that special circumstances which merit waiving the requirement include, but are not limited to:

(a) The inability of U.S. manufacturers to provide a particular type of needed motor vehicle;

(b) The present or projected lack of adequate service facilities and supply of spare parts for U.S.-manufactured motor vehicles in the country or region within a country where the vehicle will be used; or

(c) An emergency requirement for motor vehicle(s) that can be met in time only by purchase of non-U.S.-manufactured motor vehicle(s) and for which no non-USAID funds are available.

The emergency nature of the HIV / AIDS epidemic continues to meet the "special circumstances" requirement in Section 636(i). The approval process for the purchase of non U.S. procured motor vehicles adds additional time and costs, diverting critical USAID and implementing partner staff attention and resources from critical prevention, treatment, and care activities. In most of the areas where USAID is conducting HIV I AIDS activities, service and maintenance facilities for U.S. procured vehicles are not readily available, and it is difficult or impossible to obtain spare parts for such vehicles.

Overall procurement of non-U .S. produced motor vehicles will be held to a minimum and carried out only when necessary. Missions and implementing partners will be required to document a special circumstance for each purchase in the same way they have in the past, per the documentation guidance in Tab 3. Your approval of this source and nationality waiver constitutes the required "special circumstance" finding required for non-U.S. manufactured motor vehicles under ADS 312 and section 636(i) of the Foreign Assistance Act of 1961, as amended.

TAB 3

Guidance for Documentation and Use of "IV/AIDS EPP Authorities

General Applicability

• It is initially the responsibility of the requesting technical office to identify the activities and instruments to which the authorities within this Expedited Procedures Package (EPP) may apply. If the technical office considers using any of the authorities under this EPP, they should meet with their COlAO and General Counsel (GC)lRegional Legal Advisor (RLA) as far in advance as possible to discuss how they intend to use the authorities, applications, and requirements.

• This EPP applies to HIV I AIDS activities implemented under contracts, grants, and cooperative agreements funded from any account (Global Health Programs and other accounts). It does NOT apply to tuberculosis or malaria activities.

• This EPP includes two separate approval authorities for HIV / AIDS activities:

1. Authorization for exceptions to competition for the modification and award of contracts, grants, and cooperative agreements.

2. Source and nationality waiver.

• If the funding for the HIV / AIDS activities equals MORE THAN 50% of the total estimated amount of the contract, grant, or cooperative agreement, both the above authorities apply to the agreement. If the funding for the HIV / AIDS activities equals 50% OR LESS of the total estimated cost of the contract, grant, or cooperative agreement, only the source and nationality waiver applies, and such waiver only applies to the goods or services procured for the HIV / AIDS activities.

• The authorities within this EPP will expire on January 1, 2020, and cannot be invoked after December 31, 2019 unless the authorities are extended by the Administrator.

Awards and modifications relying on the authorization for exceptions to competition are authorized if the CO or AO approves in writing before January 1, 2020. The source and nationality waiver within this EPP can be applied to awards made prior to January 1, 2020, or where the waiver is not applied to the entire instrument, to purchases made prior to January 1, 2020. When the source and nationality waiver is properly applied to an award prior to January 1, 2020, Code 935 remains fully applicable for the life of the award.

Authorization for Exceptions to Competition

Before modifying or awarding a contract, grant, or cooperative agreement using this authority, the activity and cognizant contracting officer (CO) or agreement officer (AO) must document the specific circumstances under which the class justification is being used. In addition to a copy of this class justification, the CO or AO will also need to include in the award file a written memorandum explaining the reason for relying on the class justification instead of utilizing full and open competition. The memorandum should follow the templates provided as references to ADS 302 (contracts) or ADS 303 (grants and cooperative agreements). Where required by the ADS, COs and AOs must clear the memorandum with their Regional Legal Advisor (RLA) or General Counsel (GC/A&A) before finalization. Contracting officer certification in accordance with FAR §6.303-2(a)(l2) and approvals in accordance with FAR §6.304 are not required. The CO or AO should include the memorandum in the award file and send an information copy to HIVEPP@usaid.gov for tracking purposes. This email will also serve as notification to the Agency Competition Advocate for purposes of reporting to Congress.

Additionally, for contracts, ADS 302.3.4.5.g.(2) states that USAID policy is to post a copy of each J&A publicly in accordance with FAR 6.305. To ensure quality control of public postings, COs must submit all J&As/memoranda to the mailbox JustificationsandA@usaid.gov after obtaining all clearances (including GC or RLA), but before signature by the CO.

Source and Nationality Waiver

For awards and purchases relying on this source and nationality waiver, the CO or AO should document the applicability of this waiver in the award file. For motor vehicle procurements, in accordance with ADS 312.3.3.2.b.3, operating units and implementing partners relying on this source and nationality waiver must document the reason for each use of the waiver and provide an information copy to the USAID CORI AOR within 90 days after each such procurement, for inclusion in the award file.