22 C.F.R. Subpart B—Conditions Governing the Eligibility of Procurement Transactions for USAID Financing
Title 22 - Foreign Relations
This subpart sets forth requirements for USAID financing applicable to transactions for the procurement of commodities and/or commodity-related services. To qualify for USAID financing, a commodity procurement transaction shall satisfy the following requirements: (a) Description and condition of the commodity. The commodity shall conform to the description in the implementing document. Unless otherwise authorized by USAID/W in writing, the commodity shall be unused, and may not have been disposed of as surplus by any governmental agency. (b) Source. The authorized source for procurement shall be a country or countries authorized in the implementing document by name or by reference to a USAID geographic code. The source and origin of a commodity must be an authorized source country. The applicable rules on source, origin and nationality for commodities and commodity-related services are in subparts (B), (C), and (F) of part 228 of this chapter. (c) Date of shipping documents. The documents required as evidence of shipment under §201.52(a)(4) shall show that the date of shipment was within the shipping period, if any, specified in the implementing document. (d) Medium of transportation. Shipment shall not be effected: (1) By a transportation medium owned, operated or under the control of any country not included within USAID Geographic Code 935; or (2) Under any ocean or air charter which has not received prior approval by USAID/W, Office of Procurement (Transportation Division). (e) Marine insurance. In accordance with the provisions of §228.23 of this chapter, USAID may require that any USAID-financed commodity shipped to the cooperating country shall be insured against marine risks and that such insurance shall be placed in the United States with a company or companies authorized to do marine insurance business in a State of the United States. (f) Timely submission of documents. All documents required under §201.52 to be submitted by a supplier in order to receive payment or reimbursement shall be submitted to USAID under direct letters of commitment or to a designated bank under bank letters of credit on or before the terminal date specified in the letter of commitment or letter of credit, respectively. (g) U.S. Treasury Department regulations. Procurement transactions shall comply with the requirements of the U.S. Treasury Department Foreign Assets, Sanctions, Transactions and Funds Control Regulations published in 31 CFR parts 500 through 599, as from time to time amended. (h) Commodities shipped out of a free port or bonded warehouse. No commodity shipped out of a free port or bonded warehouse is eligible for USAID financing if it was shipped to the free port or bonded warehouse without compliance with the requirements set forth in paragraph (d)(1) of this section, or if it was shipped from the free port or bonded warehouse without compliance with the requirements set forth in paragraphs (d) (1) and (2) of this section. (i) Purchase price. The purchase price for the commodity shall satisfy the requirements of subpart G. (j) Purchases from eligible suppliers. Commodities procured with funds made available under this part 201 shall be purchased from eligible suppliers. The rules on the nationality of suppliers of commodities are in section 228.14 of this chapter. (k) Determination of commodity eligibility. The commodity shall be approved in writing by USAID for each purchase transaction as eligible for USAID financing. Such approval shall be indicated on the Application for Approval of Commodity Eligibility (Form AID 11) submitted to USAID by the supplier. [55 FR 34232, Aug. 22, 1990, as amended at 58 FR 48797, Sept. 20, 1993; 62 FR 38027, July 16, 1997] Incidental services may be financed under the same implementing document which makes funds available for the procurement of equipment only if: (a) Such services are specified in the purchase contract relating to the equipment; (b) The price satisfies the requirements of §201.68; (c) The portion of the total purchase contract price attributable to such services does not exceed 25 percent; and (d) The supplier of such services, prior to approval of the USAID Commodity Approval Application, has neither been suspended or debarred by USAID under part 208 of this chapter, nor has been placed on the “Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs,” published by the U.S. General Services Administration. (e) The supplier of such services meets the requirements of §228.25 of this chapter. [55 FR 34232, Aug. 22, 1990, as amended at 62 FR 38027, July 16, 1997] (a) General. Delivery of USAID-financed commodities may be financed under the implementing document provided the delivery services meet the requirements of this section and the applicable provisions in part 228, subpart C of this chapter. (b) Transportation costs. USAID will not finance transportation costs: (1) For shipment beyond the point of entry in the cooperating country except when intermodal transportation service covering the carriage of cargo from point of origin to destination is used, and the point of destination, as stated in the carrier's through bill of lading, is established in the carrier's tariff; or (2) On a transportation medium owned, operated or under the control of any country not included in Geographic Code 935; or (3) Under any ocean or air charter covering full or part cargo (whether for a single voyage, consecutive voyages, or a time period) which has not received prior approval by USAID/W, Office of Procurement, Transportation Division); or (4) Which are attributable to brokerage commissions which exceed the limitations specified in §201.65(h) or to address commissions, dead freight, demurrage or detention. (c) Inspection services. USAID will finance inspection of USAID-financed commodities when inspection is required by USAID, or in those cases where inspection is required by the importer and such inspection is specified in the purchase contract, performed by independent inspectors and is either customary in export transactions for the commodity involved or is necessary to determine conformity of the commodities to the contract. Section 228.24 of this chapter covers the nationality requirements for suppliers of inspection services. (d) Marine insurance. (1) Unless otherwise authorized, USAID will finance premiums for marine insurance including war risk on USAID-financed commodities only if: (i) The insurance is placed in a country included in the authorized Geographic Code: Provided, that if the authorized Geographic Code is any other than USAID Geographic Code 000, the cooperating country itself shall be recognized as an eligible source; and (ii) Such insurance is placed either in accordance with the terms of the commodity purchase contract or on the written instructions of the importer; and (iii) Insurance coverage relates only to the period during which the commodities are in transit to the cooperating country, except that it may include coverage under a warehouse-to-warehouse clause; and (iv) The premiums do not exceed the limitations contained in §201.68; and (v) The insurance provides that loss payment proceeds shall be paid in U.S. dollars or other freely convertible currency. (2) Within the meaning of §201.11(e), as well as this paragraph, insurance is placed in a country only if payment of the insurance premium is made to, and the insurance policy is issued by, an insurance company office located in that country. (e) Suspension and debarment. In order to be eligible for USAID financing, the costs of any delivery services must be paid to carriers, insurers, or suppliers of inspection services who, prior to approval of the USAID Commodity Approval Application, have neither been suspended nor debarred under USAID Regulation 8, 22 CFR part 208, nor included on the “Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs” published by the U.S. General Services Administration. [55 FR 34232, Aug. 22, 1990, as amended at 62 FR 38027, July 16, 1997] The cost of any bid bond or guaranty posted by a successful bidder or of any performance bond or guaranty posted by a supplier is eligible for financing under the implementing document, provided that the bond or guaranty conforms to the requirements of the invitation for bids or the contract, as applicable, and to the extent that the principal amount of the bond or guaranty does not exceed the amount customary in international trade for the type of transaction and commodity involved. Bonds or guaranties may be payable in U.S. dollars, or a freely convertible currency or local currency, and shall be posted in favor of the purchaser. Nationality requirements for sureties, insurance companies or banks who issue bonds or guaranties under USAID-financed transactions are set forth in §228.38(b) of this chapter. [55 FR 34232, Aug. 22, 1990, as amended at 62 FR 38027, July 16, 1997] (a) General requirements. Unless USAID determines that privately owned U.S. flag commercial ocean vessels are not available at fair and reasonable rates for such vessels: (1) At least fifty percent (50%) of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers from each of two geographic areas—the U.S. and all other countries) of all goods financed by USAID which are transported on ocean vessels shall be transported on privately owned U.S. flag commercial vessels; and (2) At least fifty percent (50%) of the gross freight revenue generated by all shipments of USAID-financed commodities which are transported to the territory of the borrower/grantee on dry cargo liners shall be paid to or for the benefit of privately owned U.S. flag commercial vessels. (b) Methods of compliance. (1) Compliance with these requirements with respect to dry cargo liner vessels shall be achieved for the total of liner shipments made during the term of the loan or grant agreement. If USAID determines at any time during the term of the agreement that compliance may not be achieved, USAID may require that all subsequent shipments be made on U.S. flag liners until compliance is assured. (2) Compliance with these requirements with respect to dry bulk carriers and tankers shall be achieved for each quantitative unit of cargo. A quantitative unit of cargo is the total tonnage of a commodity or commodities included in one invitation for bids or other solicitation of offers from ocean carriers for the transportation of cargo which may move in full shipload lots. USAID shall approve a charter or other contract of affreightment for a non-U.S. flag vessel only if USAID has determined that at least 50% of the quantitative unit will move on U.S. flag vessels, to the extent that such vessels are available at fair and reasonable rates for such vessels. U.S. flag dry cargo liners whose offers are responsive to the terms of the invitation for bids or other solicitation of vessels may be used for achieving compliance for the quantitative unit. (c) Nonavailability of U.S. flag vessels. Upon application of the borrower/grantee or the supplier, USAID/W, Office of Procurement, Transportation Division, shall determine and advise the applicant whether or not privately owned U.S. flag vessels are available for any specific shipment of commodities at fair and reasonable rates. A determination that U.S. flag vessels are not available does not carry with it the authorization for USAID to finance freight on a vessel not otherwise authorized; this requires a separate waiver approval in accordance with §201.13(b)(1)(ii). (d) Responsibility. The borrower/grantee is responsible for compliance with the requirements of this section and for imposing upon subborrowers, contractors and importers such requirements regarding shipping arrangements with suppliers as will assure discharge of this responsibility. (e) Privately owned U.S. flag commercial vessels. For purposes of this section the term “privately owned U.S. flag commercial vessels” shall not include any vessel which, subsequent to September 21, 1961, shall have been either built outside the U.S., rebuilt outside the U.S. or documented under any foreign registry until such vessel shall have been documented under the laws of the U.S. for a period of 3 years.
Title 22: Foreign Relations
PART 201—RULES AND PROCEDURES APPLICABLE TO COMMODITY TRANSACTIONS FINANCED BY USAID
Subpart B—Conditions Governing the Eligibility of Procurement Transactions for USAID Financing
§ 201.10 Purpose.
§ 201.11 Eligibility of commodities.
§ 201.12 Eligibility of incidental services.
§ 201.13 Eligibility of delivery services.
§ 201.14 Eligibility of bid and performance bonds and guaranties.
§ 201.15 U.S. flag vessel shipping requirements.
