ADS Chapter 312 - Eligibility Of Commodities

06/17/2020 Partial RevisionADS 312mac, Agricultural Commodity Eligibility and RequirementsRelating to Quality and Safety indicates whether agricultural commodities areeligible for financing and describes requirements relating to quality and safety forcertain types of commodities. ADS 312mac, Agricultural Commodity Eligibilityand Requirements Relating to Quality and Safety supersedes the USAIDCommodity Eligibility Listing requirements (see section 312.3.1), specifically,Chapters 1-21, Part II.A (Agricultural Commodities), Part III Special Provision 1(Seeds), and Part III Special Provision 4 (Grains, Rice, Beans and Soybeans). Ifan agricultural commodity is ineligible or does not conform to eligibility, quality orsafety requirements, the AOR/COR or OU may request a waiver or modificationof these requirements by sending an email toagcommoditiesapprovals@usaid.gov. The Bureau for Resilience and FoodSecurity (RFS) Chief Scientist, or any other person designated by the Assistantto the Administrator for RFS, is authorized to approve these requests.b. Special Requirements for Financing Non-U.S. Agricultural CommoditiesIn accordance with Section 604(e) of the FAA and 22 CFR 228.19, USAID willnot finance the procurement of non-U.S. agricultural commodities or productsunder FAA authority when the U.S. price is below “parity” (as defined in section312.6) unless the commodity cannot reasonably be produced in the U.S. infulfilment of the objectives of the assistance program under which theprocurement is to be financed.The following procedures implement the requirements of FAA Section 604(e) forproposed USAID-financed procurement of non-U.S. agricultural commodities:1) Checking Parity Price: The AOR/COR or OU must determinewhether there is a “parity price” for the item listed on the U.S.Department of Agriculture (USDA) Agricultural Prices Report. If theU.S. price for that item is below the parity price, procurement of theitem outside of the U.S. may not be financed by USAID without priorapproval. If no parity price exists or if the U.S. price is equal to orabove the parity price, then further approval pursuant to this section,ADS 312.3.3.1(b), is not required.2) Requesting Prior Approval: If the U.S. price for an item is below the“parity price”, USAID may only approve non-U.S. procurement if thecommodity to be financed could not reasonably be produced in theU.S. in fulfillment of the objectives of the particular assistance program.The procedure for obtaining such approval is as follows:i.When Financing Exceeds 1 Million: The Bureau AssistantAdministrator having program responsibility, in consultation withRFS and the cognizant GC attorney, must approve financingprocurements of non-U.S. agricultural commodities or productsText highlighted in yellow indicates that the adjacent material is new or substantively revised.8ADS Chapter 312

06/17/2020 Partial Revisionexceeding U.S. 1 million in aggregate value per fiscal year percommodity per award, pursuant to the following process:a. The AOR/COR or OU prepares and submits an actionmemorandum, cleared by the Mission/Office Director, toRFS through the agcommoditiesapprovals@usaid.govmailbox for technical review;b. RFS convenes a panel to review the technical merits of therequest and, if it concurs with the Mission’s/Office’s analysis,provides a “concurrence memorandum” to theMission/Office; andc. The Mission/Office attaches the RFS concurrencememorandum to its action memorandum and submits the fullpackage for approval by the cognizant Bureau AssistantAdministrator pursuant to relevant Bureau procedures.ii.When Financing Does Not Exceed 1 Million: MissionDirectors and USAID/W Office Directors with programresponsibility have the authority to approve financingprocurements of non-U.S. agricultural commodities or productsnot exceeding U.S. 1 million in aggregate value per fiscal yearper commodity per award. Mission Directors and USAID/WOffice Directors must obtain RLO or GC clearance, asapplicable, prior to approving such financing, and must submit acopy of the authorizing documents to RFS through theagcommoditiesapprovals@usaid.gov mailbox. For purposesof seeking approval, Missions and USAID/W staff areencouraged to use the Template of Approval Request forAgricultural Commodity Financing Under ADS Chapter 312.c. Approval of Agricultural Commodities Also Available through Food forPeaceIn accordance with Section 604(c) of the FAA, USAID will only approve theprocurement of agricultural commodities and products that are also available fordisposition under the Food for Peace Act (P.L. 480), from outside the U.S. whenprocuring those commodities from the U.S. would be impracticable and not infurtherance of USAID’s purpose, or when the commodities are not available insufficient quantities in the U.S. to supply emergency requirements.The following procedures implement the requirements of FAA Section 604(c) forproposed USAID-financed procurements of agricultural commodities andproducts that are also available for disposition under the Food for Peace Act, asText highlighted in yellow indicates that the adjacent material is new or substantively revised.9ADS Chapter 312

06/17/2020 Partial Revisionlisted by the Bureau for Humanitarian Assistance (BHA) in its Commodity andOcean Freight Price Estimates.For purposes of seeking approval, Missions and USAID/W staff are encouragedto use the Template of Approval Request for Agricultural CommodityFinancing Under ADS Chapter 312.1) Review of Availability: The AOR/COR or OU must conduct a review ofthe proposed procurement including an examination of the eligibilityand availability of the commodity under an existing Food for Peace Actagreement or award in the same country, or the possibility of a newagreement in the same country. Food for Peace Act financing, ifavailable, is the preferred means of supply, except that USAID mayconsider financing additional quantities of the commodity if the Foodfor Peace Act amount is deemed inadequate and there are no otherreasons for excluding the commodity from the USAID award. Based ontheir review, the AOR/COR or OU submits a request for approval asdetailed below.2) Required Approvals:a. When Financing Exceeds 1 Million: Based on the review ofavailability described above, the cognizant Bureau AssistantAdministrator, in consultation with the BHA(dcha.ffppolicygroup@usaid.gov), must approve all proposedUSAID-financed procurements of agricultural commodities thatare also currently available under the Food for Peace Act, aslisted on the USAID Web site, exceeding U.S. 1 million inaggregate value per fiscal year per commodity per award.b. When Financing Does Not Exceed 1 Million: Based on thereview described above, Mission Directors and USAID/W OfficeDirectors with program responsibility, in consultation with FFP,have the authority to approve procurements not exceeding U.S. 1 million in aggregate value per fiscal year per commodity peraward.312.3.3.2Motor VehiclesEffective Date: 02/06/2012As stated at 22 CFR 228.19, special manufacturing rules requiring procurement fromthe United States apply when obtaining motor vehicles with program funds. OperatingExpense (OE) funded motor vehicles are also subject to the requirements of this section(see ADS Chapter 536); for additional policy and procedures for motor vehiclespurchased under CIPs, see paragraph c. below. This section provides policy andText highlighted in yellow indicates that the adjacent material is new or substantively revised.10ADS Chapter 312

06/17/2020 Partial Revisionprocedures on obtaining motor vehicles and requesting waivers to this requirementwhen justified. 22 CFR 228.01 provides the definition of motor vehicles for purposes ofthis section; as a matter of policy, all-terrain vehicles (ATVs) are considered to be motorvehicles; ambulances, snowmobiles, and motorboats are not.a. General RequirementsUSAID funds may be used to finance the procurement of passenger cars that arenecessary for an activity and are not otherwise available (e.g., provided by otherdonors).Passenger cars may include air conditioning (installed as original equipment or aftermarket), provided the requesting office justifies the need in the activity file. Factors thatshould be considered in justifying air conditioning include: The climate in which the motor vehicle will operate,The capabilities for servicing air conditioning equipment, andThe need for austerity and economy in implementation.b. Manufacture RequirementsIn accordance with Section 636(i) of the Foreign Assistance Act of 1961 (FAA), asamended, and the special source rules at 22 CFR 228.19, motor vehicles must bemanufactured in the United States to be eligible for USAID financing, unless a waiver isapproved. This requirement applies to motor vehicles that are purchased, obtainedunder a long-term lease, or where the sale is guaranteed by USAID. A long-term leasefor the purpose of this section is defined at 22 CFR 228.01, as, specifically, “a) a singlelease of more than 180 calendar days; or b) repetitive or intermittent leases under asingle award within a one-year period, which cumulatively total more than 180 calendardays.”However, Section 496(n) of the FAA on the Development Fund for Africa (DFA)authorizes the purchase or long-term lease of non-U.S.-manufactured motor vehiclesfinanced with development assistance (DA), child survival and health (CSH), and similarfunds for Africa, whether or not as part of a worldwide program. This DFA procurementauthority does not apply to economic support funds (ESF) or OE funds. Procurement ofmotor vehicles is discussed in Memorandum to Africa Field Posts on SpecialProcurement Policy Rules Governing the Development Fund for Africa, datedFebruary 1, 1993.1. General Waiver RequirementsA program office may request a waiver to the requirement for manufacture in the UnitedStates under Subpart D of 22 CFR 228 and the procedures in this section.Text highlighted in yellow indicates that the adjacent material is new or substantively revised.11ADS Chapter 312

06/17/2020 Partial Revision For waivers processed prior to award of any implementing instrument, the officein the Mission or Bureau with program responsibility is responsible for processingrespective waivers in accordance with policies and procedures of this chapter. Once an implementing instrument is awarded, the Contracting Officer’s TechnicalRepresentative/Agreement Officer’s Technical Representative (COR/AOR) isresponsible for reviewing waiver requests submitted by contractors or recipientsfor accuracy and compliance before processing the waiver in accordance withthe policies and procedures of this chapter.The requirement to purchase or lease only U.S.-manufactured motor vehicles may bewaived on a case-by-case basis when special circumstances exist and those specialcircumstances are supported by market research and adequate documentation.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 neededmotor vehicle;(b)The present or projected lack of adequate service facilities and supply ofspare parts for U.S.-manufactured motor vehicles in the country or regionwithin a country where the vehicle will be used; or(c)An emergency requirement for motor vehicle(s) that can be met in timeonly by purchase of non-U.S.-manufactured motor vehicle(s) and for whichno non-USAID funds are available.Waivers based on special circumstances other than the ones listed above requireclearance by the cognizant GC attorney or RLA. Note: Higher costs associated withprocuring a U.S.-manufactured motor vehicle are not special circumstances. Inaddition, delays in receipt associated with shipping a U.S.-manufactured motor vehicleto a cooperating country are not special circumstances. In the event of such delays, theimplementer may use short-term leases of motor vehicles until receipt of the U.S.manufactured motor vehicle.For a summary of the statutory basis and content requirements of waiver requests, see312sab, Source/Manufacture Motor Vehicle Waiver Request Template, and somehelpful tips, see 312sac, Source/Manufacture Vehicle Waiver Request Guide.2. Blanket Waiver for Right-Hand Drive (RHD) Motor Vehicles andLightweight/Mediumweight Two-Wheel and Three-Wheel Motor VehiclesThe Agency recognizes the continuing lack of available types of right-hand drive (RHD)motor vehicles and lightweight/mediumweight two-wheel and three-wheel motorvehicles manufactured in the United States. Accordingly, the Administrator hasapproved a blanket waiver for the limited models of such vehicles manufactured in theText highlighted in yellow indicates that the adjacent material is new or substantively revised.12ADS Chapter 312

06/17/2020 Partial RevisionUnited States do not suit project needs or are not locally serviceable. The waiverrequires implementing partners or the Mission (for Operational-Expense fundedprocurements) to document the reason for each use of the waiver. Implementingpartners must provide, within 90 days after each such procurement, an informationalcopy of such documentation to the USAID COR or AOR to be included in the contract oraward file.Currently, this waiver applies to: RHD motor vehicles, in circumstances where a Jeep Cherokee or Jeep Wranglerwould not suit project needs or be locally serviceable; and Lightweight and mediumweight (below 600 cubic centimeters (cc)) two-wheel andthree-wheel motor vehicles, in circumstances where a Rokon motorcycle wouldnot suit project needs or be locally serviceable.Where local serviceability is determined by the availability of adequate service facilitiesand supply of spare parts for such motor vehicles in the country or region within acountry were the motor vehicle will be used.RHD Motor VehiclesMarket research and experience indicate that the only U.S.-manufactured RHD motorvehicles currently available are the Jeep Cherokee and Jeep Wrangler. When programactivities require a RHD motor vehicle, only U.S.-manufactured Jeep Cherokees or JeepWranglers are eligible for purchase or lease, unless the implementer or Missiondetermines that the Jeeps are not adequate for project demands. For example, aprogram activity may require a RHD motor vehicle with greater cargo space and/orpassenger capability (that is, a cargo or passenger van), or may require a smaller sedancar with greater fuel efficiency. Additionally, the waiver applies where there is a lack ofadequate service facilities and/or spare parts for the U.S.-manufactured Jeeps in thecountry or region within a country where the motor vehicle will be used.Lightweight/Mediumweight Two-Wheel and Three-Wheel Motor VehiclesCurrently, U.S.-based Rokon is the only known manufacturer oflightweight/mediumweight motorcycles in the United States. When program activitiesrequire a lightweight/mediumweight motorcycle, only U.S.-manufactured Rokon modelsare eligible for purchase or lease, unless the implementer determines that they are notsuitable or adequate for project demands. Rokons are all-terrain motorcycles built forrugged terrain, which may be suitable for some applications under USAID activities inthe field. However, in other cases such as more urban applications, Rokon motorcyclesare not well-suited to project demands. Additionally, the waiver applies where there is alack of adequate service facilities and/or spare parts for Rokon motorcycles in thecountry or region within a country were the vehicle will be used.Text highlighted in yellow indicates that the adjacent material is new or substantively revised.13ADS Chapter 312

06/17/2020 Partial Revision3. Regional, Country, and Program WaiversBlanket waivers for procurement or long-term lease of non-U.S.-manufactured motorvehicles may be issued on a regional, country, or program basis. Such waivers mustmeet the following criteria:(a)The waiver documents completion of a market survey demonstrating thateither special circumstance outlined in subparagraph 1, section (a) or (b)above exists and has been historically consistent for the particular country.In the case of special circumstances, in subparagraph 1, section (c) orother special circumstances, the waiver provides adequate supportingjustification.(b)The waiver states the specific period of time for the waiver to be in effect,and that it will be reviewed and market research updated annually to verifythat the original conditions supporting the waiver still exist.(c)The waiver requires implementing partners or the Mission (for OE-fundedprocurements) to document the reason for each use of the waiver.Implementing partners must provide, within 90 days after each suchprocurement, an information copy of such documentation to the USAIDCOR/AOR to be included in the contract or award file.USAID Missions and Bureaus may determine the appropriateness of regional, country,or program-specific waivers to address country conditions that require the use ofparticular needed types of non-U.S.-manufactured motor vehicles.4. Waiver ApprovalDelegations of authority to waive source and nationality requirements for theprocurement of goods and services are set forth in ADS Chapter 103; waivers must alsocomply with the procedures outlined in ADS Chapter 310, if applicable.c. Commodity Import ProgramsUnder CIPs, USAID must not finance cars principally intended to carry passengers.Even the least expensive cars are luxury

3) If eligibility is based on a requirement in sections 312.3.3 – 312.3.5, the official designated in