Step Right Up! Get Your USAID and USDA Procurement and Contracting CFR Provisions Here!
For those of you in Federal procurement or contracting, you have some very rigorous standards that you have to abide by; for example, FAR and DFARS. The great thing about these types of standards—regulations, really—is that they’re well thought-out and constructed. Unfortunately, the same doesn’t hold true for other areas of quasi-commercial procurement with some other Federal agencies, specifically the United States Agency for International Development (USAID) and the United States Department of Agriculture (USDA).
What I mean by “quasi-commercial procurement” is the scenario where a recipient of funds from USAID or USDA contracts with other parties for the expenditure of those funds. An example is a USAID grant, where the grantee uses the grant to acquire goods or services in furtherance of a USAID objective. In those cases, the grantee may be required to follow USAID or USDA procurement and contracting regulations. So, it’s not just commercial and not just Federal procurement—it’s a combination of both. Unfortunately, as good as those agencies are, their procurement regulations just don’t rise to the level of sophistication or ease of use of, let’s say, the FAR.
For USAID, the regulations are found at 22 CFR 226. USDA’s can be found at 7 CFR 3019. Beyond the inadequacy of specificity in those CFRs, agency-specific interpretation of the CFRs in agency publications can be even more confusing and difficult to follow. For those of you that have done procurements under USAID’s 22 CFR 226, Handbook 11, ADS, ADAIR et al, you know how confusing and difficult USAID-regulated procurement can get.
For both USAID and USDA, the CFRs require mandatory contract provisions to be included in grantee contracts. Clearly, those provisions are important to ensure that the Government, grantees, and, most importantly, our tax money is protected. My issue isn’t being regulated—my issue is that the provisions are intermingled all throughout the CFRs (not in one nice spot). It takes a deep read to determine when provisions are really required or just nice to have, and, there is only “guidance” on the provisions required and not really any contract language than can be readily copied and pasted into a contract.
What I’ve seen, and it’s wholly incorrect, is grantees take sections of the CFR and just paste into their contracts. For example, for USAID, in 22 CFR 226, Appendix A contains the bulk (but not all) of provision “types” that may need to be included in contracts. The appendix contains only that—the “types” of provisions that may need to be included, but not actual provisions themselves (meaning no actual contract language). But many folks (I’ve seen many examples of this) literally just copy and past Appendix A into their contract templates versus actually constructing the appropriate contract language. That’s doing it wrong! You’re not going to adequately address terrorist financing, debarment and suspension, and anti-kickback by doing that and you could run afoul of the CFR.
Recently, I went through the pain and agony of doing a deep read on both USAID and USDA CFRs, capturing all of the necessary provisions sprinkled throughout, determining when the provisions are required (what triggers the provisions), and drafting all of the associated contract language. Additionally, I included CFR references within the body of the contract language so that one could track back to the specific part of the CFR that required the provision.
All of that blood, sweat, and tears can be found in the attached document which contains contract language that, yes, you can pretty much copy and paste into your contracts. Enjoy!
What I mean by “quasi-commercial procurement” is the scenario where a recipient of funds from USAID or USDA contracts with other parties for the expenditure of those funds. An example is a USAID grant, where the grantee uses the grant to acquire goods or services in furtherance of a USAID objective. In those cases, the grantee may be required to follow USAID or USDA procurement and contracting regulations. So, it’s not just commercial and not just Federal procurement—it’s a combination of both. Unfortunately, as good as those agencies are, their procurement regulations just don’t rise to the level of sophistication or ease of use of, let’s say, the FAR.
For USAID, the regulations are found at 22 CFR 226. USDA’s can be found at 7 CFR 3019. Beyond the inadequacy of specificity in those CFRs, agency-specific interpretation of the CFRs in agency publications can be even more confusing and difficult to follow. For those of you that have done procurements under USAID’s 22 CFR 226, Handbook 11, ADS, ADAIR et al, you know how confusing and difficult USAID-regulated procurement can get.
For both USAID and USDA, the CFRs require mandatory contract provisions to be included in grantee contracts. Clearly, those provisions are important to ensure that the Government, grantees, and, most importantly, our tax money is protected. My issue isn’t being regulated—my issue is that the provisions are intermingled all throughout the CFRs (not in one nice spot). It takes a deep read to determine when provisions are really required or just nice to have, and, there is only “guidance” on the provisions required and not really any contract language than can be readily copied and pasted into a contract.
What I’ve seen, and it’s wholly incorrect, is grantees take sections of the CFR and just paste into their contracts. For example, for USAID, in 22 CFR 226, Appendix A contains the bulk (but not all) of provision “types” that may need to be included in contracts. The appendix contains only that—the “types” of provisions that may need to be included, but not actual provisions themselves (meaning no actual contract language). But many folks (I’ve seen many examples of this) literally just copy and past Appendix A into their contract templates versus actually constructing the appropriate contract language. That’s doing it wrong! You’re not going to adequately address terrorist financing, debarment and suspension, and anti-kickback by doing that and you could run afoul of the CFR.
Recently, I went through the pain and agony of doing a deep read on both USAID and USDA CFRs, capturing all of the necessary provisions sprinkled throughout, determining when the provisions are required (what triggers the provisions), and drafting all of the associated contract language. Additionally, I included CFR references within the body of the contract language so that one could track back to the specific part of the CFR that required the provision.
All of that blood, sweat, and tears can be found in the attached document which contains contract language that, yes, you can pretty much copy and paste into your contracts. Enjoy!
Comments