JandA Memo 25 May 2023 FE.pdf

JUSTIFICATION AND APPROVAL FOR EXPEDITED PROCEDURES PACKAGE

To: Artaveya Carter, Supervisory Contracting Officer, M/OAA/RM/AEM

CC: Deborah Broderick, Agency Competition Advocate

From: Julius Svoboda, Contracting Officer’s Representative, E&E/TSO/EI

Date: May 25, 2023

RE: 1. Contract #7200AA22C00047 “Investments in Developing Energy Assets (IDEA)” with Black & Veatch (BV)

2. Expedited Procedures Package for Ukraine, Belarus, and Moldova dated 3/6/2022

SUBJECT: Justification for Other than Full and Open Competition for Contract Total Estimated Cost (TEC) Increase and Addition of Out-of-Scope Services

1. This document sets forth the facts and rationale justifying the use of other than full and open competition.

Approval is requested for the justification for use of other than full and open competition pursuant to the authorities under the Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova, approved on March 6, 2022. Your approval of this J&A constitutes the justification for other than full and open competition as required by Tab 1 (D&F for the Authorization of Less than Full and Open Competitive Procedures in the Modification or Award of Contracts) of the EPP.

RECOMMENDATION

It is recommended that you approve this justification for use of other than full and open competition pursuant to the Action Memorandum Expedited Procedures Package for Ukraine, Belarus, and Moldova , approved on March 6, 2022. Your approval of this J&A constitutes the justification for other than full and open competition as required by the EPP’s determination and findings (D&F) authorization (see Tab 1).

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

This is a request to approve the addition of out-of-scope work to allow for construction phase services. Under the construction phase services, the contractor will provide construction quality assurance (QA) services, procurement assistance (after action of feasibility studies/assessments), and construction oversight for energy projects in the focus countries.

This action also seeks to increase the Total Estimated Cost (TEC) by $25 million to support efforts aimed at attracting investments in energy assets and provide needed technical assistance to facilitate such investments in Ukraine and Moldova. The surge in demand for services under the IDEA project is due to supplemental funding that has become available to support development of energy assets in Ukraine and Moldova.

The contract period of performance will remain unchanged. The additional funding will allow USAID to continue its assistance to the E&E region (especially the Government of Ukraine (GOU) and Moldova) to attract investments in energy assets with high-quality technical assistance for energy project development from the IDEA implementing partner.

3. Description of the services required, including an estimated value:

USAID is considering construction of energy projects in both Ukraine and Moldova. Under the proposed scope expansion, the services will include activities performed as an owner’s engineer/independent engineer for energy project developments, procurement services, and construction oversight. FAR 36.601-3(c) states that if the statement of work (SOW) includes both architect-engineer services and other services, the CO shall follow the procedures in that subpart if the SOW, substantially or to a dominant extent, specifies performance or approval by a registered or licensed architect or engineer. If the SOW does not specify such performance or approval, the CO shall follow the procedures in parts 13, 14, or 15. The subject contract was awarded using FAR part 15 procedures, which remains appropriate, as the additional construction phase services are a minor portion of the SOW relative to the other tasks. The overall cost of the construction phase services is estimated at $5,000,000, which accounts for approximately 11% of the contract TEC.

The proposed modification will increase the TEC from $19.9 million to $44.9 million in order to accommodate the immediate and long-term services needed by Ukraine and Moldova. The $25 million TEC increase to the IDEA contract will allow USAID to respond to the current needs that have evolved in the E&E region from the time the activity was designed to now, and also cater to emerging technical assistance needs in the region. Therefore, the scope of the contract will be modified to accommodate in-scope and out-of scope changes. This will cover the the following services:

1. Out of Scope

a) Owner’s Engineer/Independent Engineer Services The current contractor, Black and Veatch (BV), is a reputable, internationally recognized engineering company and will now be able to provide USAID with owner’s engineer/ independent engineer services. In this role, the contractor will provide third-party independent reviews of construction documents for cost accuracy, technical appropriateness, environmental and social performance standards, and site assessments of energy projects. It is critical for the USG to provide this service as it will minimize construction risks for energy projects funded by USAID implementing mechanisms.

Estimated Cost to provide Owner’s Engineer/Independent Engineer services is $3 million. The estimate is based on preliminary estimates that have been provided by the respective Missions for these services. These services will be buy-ins and demand driven by the two Missions.

b) Procurement Support Services The contractor shall provide support to build upon feasibility documents and support the host government with their development of solicitation documents. Services will include procurement package document preparation, technical support, and other professional advice during the procurement phase of an energy project development. Providing this service is necessary to ensure that procurements are effective and locally appropriate contract mechanisms that are consistent, balanced, enforceable, and well-understood by the local construction industry.

Estimated Cost to provide procurement support services is $2 million. The estimate is based on preliminary estimates for energy project procurements in both Ukraine and Moldova that have been provided by the respective Missions for these services. These services will be buy-ins and demand driven by the two Missions.

c) Construction Oversight Services The contractor shall provide construction-phase oversight services. Services will include review of construction materials and equipment, site conditions, cost schedules and budgets, legal and regulatory requirements, adherence to environmental and social rules and requirements, change order reviews, requests for equitable adjustments, and other technical aspects of developing and commissioning energy projects. This support to the host government will increase assurance of the successful execution and completion of construction in accordance with established engineering requirements and standards.

Estimated Cost to provide construction oversight/quality assurance services is $2 million. The estimate is based on preliminary estimates that have been provided by the respective Missions to conduct these services during the construction phase for potential energy projects. These services will be buy-ins and demand driven by the two Missions.

2. In-scope

d) Technical Assistance The contractor shall provide targeted technical assistance to Ukraine and Moldova within the current scope of the IDEA mechanism. Specifically, the contractor shall continue to conduct pre-feasibility assessments, feasibility studies, environmental impact assessments, financial modeling, and provide other transaction assistance to the point of commercial closure. Though this service is within the current scope, there will be increased demand to support specifically Ukraine and Moldova. It is expected that the multi-year, technical documents will be the basis for which the respective host governments, USAID or a project sponsor will use for the subsequent engineering, procurement, and construction work for bankable energy projects.

Estimated Cost to expand the technical assistance within the scope that will specifically support Ukraine and Moldova is $18 million. The estimate is based on preliminary estimates for pre-feasibility assessments and feasibility studies for energy projects that have been provided by the respective Missions for these services. These services will be buy-ins and demand driven by the two Missions.

4. Statutory authority permitting other than full and open competition:

AIDAR 706.302-70(b)(3)(ii) and 40 U.S.C. § 113; see Action Memorandum entitled “Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova” approved March 6, 2022. A signed copy of the EPP, including the Determination & Findings approved pursuant to AIDAR §706.302-70(b)(3)(ii), is included as Tab 1 to this document.

5. A discussion of the proposed contractor’s unique qualifications or the nature of the acquisition that requires use of the authority cited.

BV is the current implementer of the IDEA activity, and an increase in the TEC will allow the contractor to provide much needed energy expertise in both Ukraine and Moldova. In particular, BV is uniquely positioned to most effectively and efficiently perform the proposed additional services considering its energy sector experience in the region. BV is a well-renowned international engineering and construction company with the technical expertise in energy project development and management to provide independent engineering services, transaction assistance for procurements, and construction oversight required for the type of work envisioned in E&E focus countries.

BV has implemented a number of energy projects in the E&E region and is already establishing relationships with host government institutions, energy providers and regulators. Expanding the contract scope of work, rather than competing for a new award, would expedite USAID’s ability to provide critical support to the energy sector in the region, especially in the case of Ukraine and Moldova. Considering Russian aggression specifically targeting energy infrastructure in Ukraine and the downstream impacts on Moldova energy sector, this expansion will address the rapidly changing and evolving situation.

6. A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable.

The subject contract was competitively awarded using full and open procedures. At this point, it is impractical to solicit additional sources given the need to immediately respond to critical energy needs in Ukraine and Moldova.

7. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

Prior to award, the Government evaluated the contractor’s cost and found the proposed costs were determined to be realistic and reasonable. For the proposed TEC increase, the contract will continue to incur cost at the same rate as proposed in their original proposal. Cost needs to be reasonable at the time it is estimated and incurred. So far, the cost incurred under the IDEA contract has been reasonable. There is no major variation in cost for the TEC increase.

8. A description of the market research conducted (see FAR Part 10) and the results or a statement of the reason(s) market research was not conducted.

Market research was recently conducted prior to the current award. It would be cost-prohibitive and time consuming to conduct new market research to add incremental and related capabilities to an existing and well researched statement of work/scope that was conducted less than a year ago being performed by a qualified and reputable engineering firm. The same pool of contractors shown in the market research are applicable to the TEC increase scope. As noted, the increase in the TEC is attributed to the unanticipated increased demand for services in Ukraine and Moldova that were previously competed. The additional scope will provide urgently needed technical assistance for the reconstruction of the energy sector in Ukraine and Moldova.

9. Other facts supporting the use of other than full and open competition.

BV is among the largest registered engineering firms in the United States and are well qualified to continue to perform required services. BV has a regional office in Europe that facilitates smooth contract management of projects in all the E&E region countries. Further, BV has established working relationships in the E&E region under the IDEA mechanism. Conducting full and open competition for a new contract, a process that could take several months, would undermine the policy imperative to provide timely energy-related assistance to Ukraine and Moldova. The contractor can leverage the existing relationships with stakeholders in the Ukraine and Moldova respective energy sectors.

10. Sources, if any, that expressed, in writing, an interest in the acquisition.

Not applicable. As noted earlier, sources were sought using full and open competition. No further interest followed the award of the contract.

11. The actions the Agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required:

The Agency intends to compete future requirements through full and open competition when the term of the award expires (5 year award period).

12. Technical or Requirements Personnel Certification:

In accordance with FAR 6.303, I hereby certify that the technical statements included above and which form a basis for the justification are complement and accurate in accordance with the EPP for Ukraine, Belarus, and Moldova, approved on March 6, 2022 (attached).

Julius Svoboda Date Contracting Officer’s Representative (COR)/IDEA Contract

13. General Counsel Clearance:

Andrew Victor Date

GC/A&A

14. Contracting Officer Clearance:

Trenae Bonner-Watson, M/OAA/RM/AEM Date Contracting Officer

15. Supervisory Contracting Officer Approval:

Artaveya Carter, M/OAA/RM/AEM Date Supervisory Contracting Officer cc: Agency Competition Advocate, JustificationsandA@usaid.gov UkraineEPP@usaid.gov Negotiator, Joseph Tembo

Cleared via e-mail (on file) May 25, 2023 mailto:JustificationsandA@usaid.gov mailto:UkraineEPP@usaid.gov

TAB 1 - Expedited Procedures Package for Ukraine, Belarus, and Moldova

ACTION MEMO FOR ADMINISTRATOR POWER

Date: March 4, 2022

From: Margot Ellis, AA/E&E

Subject: Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova

Recommendation: That you approve the following authorities for expedited procedures to allow USAID to respond quickly and effectively in meeting the critical needs of Agency activities and programs regarding Ukraine, Belarus, and Moldova. These expedited procedures will remain in force and effect for two years from the date of the authorization of this EPP.

1. Use of other than full and open competition in the award or modification of contracts (Tab 1).

Approve______________ Disapprove______________

2. Use of restricted eligibility for competition in the award or amendment of assistance instruments (Tab 2).

Approve______________ Disapprove______________

3. A general source and nationality waiver authorizing procurement of goods and services, including medicines and restricted commodities, from geographic code 935 (any area or country but excluding prohibited sources) (Tab 3).

Approve______________ Disapprove______________

BACKGROUND:

The unexpected aggression and rapidity of Russia’s invasion of Ukraine and the increasingly dangerous and unpredictable operating environment in the region have escalated USAID’s need for rapid and flexible programming, both in Ukraine and in neighboring countries affected by the invasion, such as Moldova and Belarus. In only the first few days of the invasion, United Nations Human Rights Council (UNHRC) reported at least 102 civilians had been killed and 304 injured since Russia’s invasion began. More than 500,000 Ukrainians have already fled the country, flooding neighboring countries in the region and overwhelming resources and infrastructure, especially in Moldova. At the same time, the Government of Ukraine announced 210 fatalities and 1,100 wounded. Invading Russian forces have most recently closed in on

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Ukraine’s capital, endangering the physical, social, and economic securities of the Ukrainian people. As these events continue, they negatively affect not only the economy and security of Ukraine, but also those of Moldova, as it is already experiencing a flood of refugees from Ukraine. In Belarus there are urgent needs to further strengthen the work of civil society and the private sector in response to an increasingly authoritarian regime that has sided with Russia in the conflict, provoking new Belarusian protests. Accordingly, there is a need to adapt and/or escalate programming quickly in these countries as a response.

This EPP is needed for awards related to Ukraine, Belarus, and Moldova. The U.S.

government (USG) needs to urgently scale up its humanitarian assistance (HA) and development assistance to the Ukrainian people while simultaneously pivoting its posture to directly contribute to mitigating the impacts of the political and economic crisis on Ukrainians.

Successful implementation of new and modified 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 in these countries also needs to be adapted to respond to Russia’s invasion of Ukraine. In Moldova, nearly 90,000 Ukrainian refugees entered between February 24-March 2 alone, straining already limited resources. In addition, the conflict will have grave implications to the stability of Moldova, in particular related to trade and the economy, energy security, and the media landscape.

In addition to adapting its programming, USAID/Ukraine also needs to quickly shore up its staffing and infrastructure. USAID/Ukraine is a regional Mission that has full oversight over the Belarus Country Office and provides certain financial, executive, legal, and acquisition/assistance support office functions to the Moldova Mission. As a result of the crisis, Embassy Kyiv has closed, and hundreds of USG and partner American and Ukrainian staff have evacuated, many of whom remain offline and unable to work as they take shelter. Both the Ukraine/Belarus Mission and the Moldova Mission may also need to hire new Personal Services Contractor (PSC) staff in an expedited manner to support the programming needs. This EPP will permit expeditious hiring of staff through institutional support contracts (ISCs) or direct PSC contracts urgently needed to provide support to the USAID/Ukraine and Belarus and USAID/Moldova staff and programs.

An EPP gives USAID the flexibility and capability to mobilize technical, financial, and other resources quickly to assist the region responsibly and rapidly. Specifically, an EPP would allow USAID to use other than full and open competition to enter into new or modify existing awards to deliver assistance in the region responsibly and support our staff as the USG posture continues to evolve.

While Operating Units (OUs) will continue to use full and open competition procedures whenever possible, the flexibility provided by these expedited procedures is necessary to respond rapidly to a fluctuating regional operating environment and the consequences of the Russian invasion of Ukraine. The determination and findings, decisions, and authorities that you approve will be critical to respond to the urgent and fluctuating needs related to USAID programming in the region. This includes the issuance and modification of awards to: (i) implement USAID’s

03/06/2022 2 of 13 humanitarian and development efforts in the region and (ii) provide support to the OUs undertaking this programming, including those contracts used to employ staff and support internal operations. The authorities cover activities funded from all sources of Agency funding, including prior-year funding, as well as current and future fiscal year appropriations, unless Congress enacts special rules for these appropriations. The decisions and authorities within this EPP are essential to USAID’s ability to respond quickly and effectively in meeting the critical needs of Agency activities and programs with respect to our USAID/Ukraine programming and our staff, as demonstrated by examples and discussion in Tabs 1, 2, and 3.

AUTHORITIES:

You have the authority to approve this EPP under the following: AIDAR

706.302-70(b)(3)(ii), Impairment of Foreign Aid Programs for contracts; Automated Directives System (ADS) 303.3.6.5, Restrictions to Eligibility for assistance awards; and 22 Code of Federal Regulations (CFR) 228.31 for the source and nationality waiver.

RESOURCE IMPLICATIONS:

Approving this EPP has no resource implications.

Attachments:

Tab 1 - Determination and Findings - Authorization for Use of Other than Full and Open Competition of Contracts Tab 2 - Blanket Determination Restricting Eligibility for Competition for Assistance Instruments Tab 3 - Source and Nationality Waiver Tab 4 - Guidance for Documentation and Use of the EPP Authorities

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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 Ukraine, Belarus, and Moldova operations and programming 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.

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 mobilize technical, financial, and other resources quickly to respond to Russia’s invasion of Ukraine. The invasion of Ukraine negatively affects not only the economy and security of Ukraine, but also those of Moldova, as it faces a flood of refugees from Ukraine, and Belarus as it needs to further strengthen the work of civil society and the private sector in response to an increasingly authoritarian regime that has sided with Russia in the conflict. Accordingly there is a need to adapt the programming in these countries quickly as a response.

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 Congress enacts special rules for these appropriations. This action authorizes the award of new contracts using other than full and open competition procedures. It also authorizes noncompetitive modifications to existing contracts.

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 a contracting officer’s 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.

The rapidly changing situation in the region 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. The USG needs to urgently scale up its humanitarian assistance (HA) to the Ukrainian people while simultaneously directly contributing to mitigating the impacts of the political and economic crisis on Ukrainians. Successful implementation of new and adjusted 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 existing relationships and development programming in these countries needs to be adapted to respond to events in Ukraine. Nearly 90,000 Ukrainian refugees entered Moldova between February 24-March 2, straining already limited resources. In addition, the conflict will have grave implications to the stability of Moldova, in particular related to trade and the economy, energy security, and the media landscape. This EPP will allow for the swift modification of USAID programming, as conditions require or permit.

Given the closure of the U.S. Embassy Kyiv and evacuation of hundreds of staff, USAID faces the daunting task of re-establishing Mission staffing and infrastructure to facilitate the Agency’s humanitarian and development objectives in the region. Both the Ukraine/Belarus Mission and the Moldova Mission may need to hire new Personal Services Contractor (PSC) staff in an expedited manner to support pivots in programming. This EPP will permit expeditious hiring of staff through institutional support contracts (ISCs) and direct PSC contracts, urgently needed to provide support to the USAID/Ukraine and USAID/Moldova staff and programs.

There may be other urgent or critical situations where it is necessary to rely on 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 affect 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 regional operating environment and the consequences of the Russian invasion of Ukraine and provide critical assistance to the Ukrainian people, including those most vulnerable.

The need for this EPP is urgent, given the rapid pace with which the situation in the region is evolving. The availability and use of expedited procedures will allow USAID to resume, modify, accelerate, and/or develop new programming quickly 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 procedures based on the defined approach herein will give USAID the flexibility to respond effectively to the changing landscape as the situation in the region 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.

Samantha Power Administrator

TAB 2

Blanket Determination for Restricting Eligibility in the Award or Amendment of Assistance Instruments

Consistent with the Federal Grant and Cooperative Agreement Act of 1977, USAID encourages unrestricted eligibility in the award of discretionary grants and cooperative agreements. USAID policy regarding these assistance awards requires unrestricted competition unless one of the pre-approved conditions or a programmatic justification to restrict eligibility applies and is documented in accordance with ADS 303 Grants and Cooperative Agreements to Nongovernmental Organizations. One of the seven pre-approved conditions is an award made under an Administrator-approved blanket determination or justification to restrict eligibility for an approved class of awards.

Pursuant to ADS 303, I have determined that it is necessary to provide a blanket authorization to restrict eligibility in the award or amendment of grants and cooperative agreements to respond rapidly and effectively to the fluctuating regional operating environment and the consequences of the Russian invasion of Ukraine. In so doing, USAID will provide critical assistance to the Ukrainian people, including those most vulnerable, and save lives.

This authorization is based on the justifications set forth below and applies to all forms of restricted eligibility, including: (1) a funding opportunity that is limited to a specific type of entity or otherwise narrows the pool of applicants that may compete for a grant or cooperative agreement; (2) an award or other assistance action that is limited to one or a limited number of recipients; and (3) an amendment of a grant or cooperative agreement beyond its original program description and/or ceiling. 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.

Justification

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.

It is imperative that assistance can flow rapidly to the areas where it is needed most. The timeframe required by fully competitive award procedures, if followed, will not enable USAID to act in a manner consistent with U.S. foreign assistance objectives. The complexities of the current environment of uncertainty and risk, and the need for urgent assistance and in particular the re-establishment of infrastructure due to the closure of Embassy Kyiv, necessitate the availability and use of expedited procedures.

While it is impossible to list all of the circumstances that justify the authority to restrict eligibility in the award and amendment of grants and cooperative agreements that may be needed, the following are some of the most common situations where the authority is needed, and examples of how the authority has been previously utilized to support U.S. foreign assistance objectives.

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The rapidly changing situation in the region may require the extension of existing assistance awards beyond their present scopes to bridge gaps between existing programs and activities and the establishment of new programs and activities. The USG needs to urgently scale up its humanitarian assistance (HA) to the Ukrainian people while simultaneously pivoting its civilian assistance posture to directly contribute to mitigating the impacts of the political and economic crisis on Ukrainians. 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 in these countries also needs to be adapted to respond to events in Ukraine. This EPP will allow for a swift response, as conditions require and permit.

Beyond these examples, there may be other urgent or critical situations where it will be necessary to restrict eligibility in the award or amendment of grants or cooperative agreements for activities related to the fluctuating regional operating environment and the consequences of the Russian invasion of Ukraine. This authority will provide the flexibility necessary for USAID/Washington and Missions to respond most appropriately to these situations, without undue procedural constraints that would negatively affect program results. 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.

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TAB 3

Source and Nationality Waiver for Activities and Programs Related to the Fluctuating Regional Operating Environment and the Consequences of the Russian Invasion of

Ukraine

As part of this Expedited Procedures Package, the Administrator is asked to approve 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 activities and programs related to Ukraine, Belarus, and Moldova. Such a waiver is critical to the Agency's ability to ensure the ready availability of services and commodities for programs and activities related to the regional USAID/Ukraine work. Absent such a waiver, the programs 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 utilized as the applicable source and nationality code for USAID programs and activities related to Ukraine, Belarus, and Moldova.

Background

Per 22 CFR §§ 228.03 and 228.11, and ADS 310, the default Principal Geographic Code for USAID 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) or, in certain circumstances, Code 110 (the United States, the independent states of the former Soviet Union, or a developing country, 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.

Recommendation

We recommend that you issue a source and nationality waiver for goods and services procured for USAID programs and activities related to Ukraine, Belarus, and Moldova so that USAID can implement critical programs and activities in a timely, flexible, and cost-effective manner.

Expanding the source and nationality waiver to activities related to Ukraine, Belarus, and Moldova, rather than only to activities in Ukraine, Belarus, and Moldova, is necessary as USAID seeks to continue its USAID/Ukraine and Belarus and USAID/Moldova programming after Embassy Kyiv’s closure. Permitting USAID and its implementing partners to use worldwide sources ensures that the Missions and projects can procure a sufficient quantity of high-quality goods and services at an accelerated pace, regardless of the location of the Mission or where the activities may take place.

This source and nationality waiver would be applicable to any goods and services procured in support of USAID programs and activities related to Ukraine, Belarus, and Moldova. Further, although Code 937 includes the recipient country and other developing countries, and code 110

03/06/2022 9 of 13 includes the independent states of the former Soviet Union and developing countries, capacity, quality, and other considerations require that programs maintain the option to source commodities and services beyond Codes 937 and 110, on a worldwide basis.

This waiver makes Code 935 fully applicable for procurement at both the prime contract and subcontract levels (including procurements under grants and cooperative agreements). This waiver covers unrestricted and restricted commodities, including non-U.S.-manufactured non-armored vehicles. However, the following rules apply:

● For pharmaceuticals, this waiver does not waive the additional "restricted commodity" approvals required in ADS 312; as a result, for example, pharmaceuticals must meet the "restricted commodity" requirements for quality in ADS 312.

● For motor vehicles, additional considerations are set forth below.

For awards and purchases relying on this source and nationality waiver, the Contracting Officer or Agreement Officer should document the applicability of this waiver in the award file. The source and nationality waiver within this EPP may be applied to awards made on or before the date that is two years from the date of this authorization or, where the waiver is not applied to the entire instrument, to purchases made on or before such date. The source and nationality waiver also applies to all sources of Agency funding, including prior-year funding, as well as current and future fiscal year appropriations, unless Congress enacts special rules for these appropriations.

Motor Vehicles

Motor vehicles are included in the Code 935 waiver above. In addition to 22 CFR Part 228 source and nationality restrictions, Section 636(i) of the Foreign Assistance Act, as amended (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 the special circumstances that 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.

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The emergency nature of the situation in Ukraine, Belarus, and Moldova meets the "special circumstances" requirement in FAA Section 636(i). Furthermore, 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 essential programs and activities. In Poland, the service and maintenance facilities for U.S.-procured vehicles may not be readily available, and it may be difficult or impossible to obtain spare parts for such vehicles in a timely manner. A U.S.-manufactured vehicle may also attract undue attention.

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, per ADS 312. Specifically, implementing partners must provide, within 90 days after each such purchase, an information copy of such documentation to the USAID Contracting Officer’s Representative/Agreement Officer’s Representative to be included in the contract or award file. 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 FAA Section 636(i).

We recommend that you allow the waiver to remain valid for two years from the date of authorization of this EPP to align with other authorizations contained herein.

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TAB 4

Guidance for Documentation and Use of the Ukrainian EPP Authorities

This EPP applies to activities related to Ukraine, Belarus, and Moldova, implemented under contracts, grants, and cooperative agreements and funded from any account. The EPP includes three separate approval authorities for Ukraine, Belarus, and Moldova activities:

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

2. Blanket Determination for Restricting Eligibility in the Award or Amendment of Assistance Instruments; and

3. Source and nationality waiver.

The authorities within this EPP will expire two years after the approval date and cannot be invoked after that date unless the Administrator extends the authorities. Awards and modifications relying on the D&F and the Blanket Determination for Restricting Eligibility are authorized if the CO or AO approves in writing before the expiration date. The source and nationality waiver within this EPP can be applied to awards made prior to the expiration date, and Code 935 will remain fully applicable for the life of the award.

When using the EPP for other than full and open competition for acquisition, COs must execute a J&A. COs may use the non-mandatory J&A Template for D&Fs issued under EPPs when issuing J&As based on the authority of the D&F. In addition to the procedures in ADS 302 and ADS 302mbo, Guidance for Use of the Authorities under Expedited Procedures Packages (EPPs), the CO must submit a copy of each J&A to the justificationsanda@usaid.gov mailbox, as well as to UkraineEPP@usaid.gov. For assistance, the AOR must follow procedures in ADS 303 and forward a copy of the documentation to UkraineEPP@usaid.gov for tracking purposes.

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CLEARANCE PAGE FOR ACTION MEMO FOR Expedited Procedures Package for Ukraine, Belarus and Moldova

Drafters: USAID/Ukraine, Brian Woody, Supervisory Regional Contracting Officer

Clearance Clearance Status Date E&E/DAA, Alex Sokolowski Cleared 3/01/2022 E&E/DAA, Lisa Magno Cleared 3/01/2022 E&E/Program Office, Milan Pavlovic Cleared 3/01/2022 E&E/TSO, David Brown Cleared 3/01/2022 USAID/Ukraine, MD: JHope Cleared 3/02/2022 USAID/Ukraine, DMD: SKutor Cleared 3/02/2022 USAID/Ukraine, RLO: MHyland Cleared 03/01/2022 USAID/Moldova, MD: SHocklander Cleared 03/02/2022 USAID/Moldova, DMD: JRiordan Cleared 03/02/2020 USAID/Moldova, RLO: MHyland Cleared 03/01/2022 USAID/Belarus, Country Director: JTajchman Cleared 03/01/2022 GC/AE&E:Priya Cariappa Cleared 3/1/2022 GC/A&A:Greg Marchand Cleared 3/1/2022 GC/FO:Joel Sandefur Cleared 3/1/2022 M/OAA/ACA (acting): JNorling Cleared 3/2/2002 M/OAA/OD (acting): DBroderick Cleared 3/2/2022 DAA/M: RKrzywda Cleared 3/2/2022 AA/M: CAllen Cleared 3/2/2022 ES: EBakely Cleared 3/2/2022 ES: ECarr Cleared 3/2/2022 ES: JBernton Cleared 3/2/2022 DCoS: DVega Cleared 3/3/2022 CoS: GMaltz Cleared 3/3/2022 DA: IColeman Cleared 3/4/2022 DA: PAdamsAllen Cleared 3/3/2022

Info Copy LPA: DRayburn

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J&A Memo using EPP - IDEA