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USAID required notification of procurements under grants

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USAID regs require grantees to notify USAID OSDBU 45 days before making purchases, so that USAID can satisfy a statutory obligation to increase US small businesses' access to these opportunities. The reference is below, with the difficult language in bold.

What does "small business threshold" mean and how much is it?

Later in this reg, at 22 CFR 226.44(e)(2), in another context, USAID refers to "the small business threshold fixed at 41 USC 403(11)."

That would be the SAT, correct, "small business threshold" in 41 USC 403(11) was changed to "simplified acquisition threshold"? So the threshold is $100,000, until USAID changes to $150,000 in this reg?

Or is it $100,000?

Why do many people think it is $25,000?

Any help much appreciated.

22 CFR 226.44 (B) Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of USAID awards shall take all of the following steps to further this goal.

(1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable.

(2) Make information on forthcoming opportunities available and arrange time frames for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises. To permit USAID, in accordance with the small business provisions of the Foreign Assistance Act of 1961, as amended, to give United States small business firms an opportunity to participate in supplying commodities and services procured under the award, the recipient shall to the maximum extent possible provide the following information to the Office of Small Disadvantaged Business Utilization (OSDBU/MRC), USAID Washington, DC 20523, at least 45 days prior to placing any order or contract in excess of the small purchase threshold:

(i) Brief general description and quantity of goods or services;

<a name="b_2_ii">(ii) Closing date for receiving quotations, proposals or bids; and

(iii) Address where solicitations or specifications can be obtained.

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What does "small business threshold" mean and how much is it?

The small business threshold you may be refering to is probably FAR 19.203(B). It is currently $150,000.00

Later in this reg, at 22 CFR 226.44(e)(2), in another context, USAID refers to "the small business threshold fixed at 41 USC 403(11).

22 CFR 226.44(e)(2) states "The procurement is expected to exceed the small purchase threshold fixed at 41 U.S.C. 403(11) and is to be awarded without competition or only one bid or offer is received in response to a solicitation."

I do not see small business threshold anywhere.

That would be the SAT, correct, "small business threshold" in 41 USC 403(11) was changed to "simplified acquisition threshold"?

First that reference to 41 USC 403(11) does not exist anymore. The link it takes you to is a volume of the USC printied in 1994. The new reference would be 41 USC 134. It still states that the simplified acquisition threshold is $100,000.00. The FAR council changed the SAT to $150,000.00. Unless USAID changes their regulations or Congress changes the law, you are stuck with $100,000.00.

So the threshold is $100,000, until USAID changes to $150,000 in this reg?

Until USAID changes the regulation, it appears you are stuck at $100,000.00.

Or is it $100,000?

See above.

Why do many people think it is $25,000?

My only answer for this one is they are probably ignorant. Nowhere in either of the references does it state $25,000.00. This is the threshold for synopsizing [FAR 5.101(a)].

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contractor100 used the term "small business threshold." The regulation he cited actually uses the term "small purchase threshold."

For many years, what we now call "simplified acquisitions" were called "small purchases." The small purchase threshold was $25,000 when the Federal Acquisition Streamlining Act renamed it "simplified acquisition" and raised the threshold to $100,000. Today, the simplified acquisition threshold is either $150,000, $300,000, or $1,000,000, depending on the circumstances. See the definition of "simplified acquisition threshold" in FAR 2.101.

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Thanks for the helpful responses, and sorry for typing "small business" not "small purchase," and the truncated citation. The entire reg is now pasted at the end of this message.

The issue is that 226.44(B)(2) requires grantees to make a notification when making a purchase "in excess of the small purchase threshold."

(B)(2) does not define what dollar value that is. But later, 226.44(e)(2), which outlines an entirely different requirement - making certain documentation available to USAID for purchases over the "small purchase threshold" - refers to the "small purchase threshold fixed at 41 U.S.C. 403(11)."

So can the requirement at (B)(2) kick in at the FAR SAT level ($150,000 etc,) because the "small purchase threshold" in the regulation was renamed "simplified acquisition threshold (SAT)" in FASA, while the requirement at (e)(2) clearly has to kick in at $100,000, because 41 USC 403(11) /41 USC 134 specifically says $100,000? (thanks dude77)

It doesn't seem right for the words "small purchase threshold" in the same reg to mean two different numbers.

Title 22: Foreign Relations

CHAPTER II: AGENCY FOR INTERNATIONAL DEVELOPMENT

PART 226: ADMINISTRATION OF ASSISTANCE AWARDS TO U.S. NON-GOVERNMENTAL ORGANIZATIONS

Subpart C: Post-award Requirements

: Procurement Standards

226.44 - Procurement procedures.

(a) All recipients shall establish written procurement procedures. These procedures shall provide, at a minimum, that:

(1) Recipients avoid purchasing unnecessary items,

(2) Where appropriate, an analysis is made of lease and purchase alternatives to determine which would be the most economical and practical procurement for the Federal Government, and

(3) Solicitations for goods and services provide for all of the following.

(i) A clear and accurate description of the technical requirements for the material, product or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition.

(ii) Requirements which the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals.

(iii) A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards.

(iv) The specific features of ?brand name or equal? descriptions that bidders are required to meet when such items are included in the solicitation.

(v) The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement.

(vi) Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient.

(B) Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of USAID awards shall take all of the following steps to further this goal.

(1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable.

(2) Make information on forthcoming opportunities available and arrange time frames for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises. To permit USAID, in accordance with the small business provisions of the Foreign Assistance Act of 1961, as amended, to give United States small business firms an opportunity to participate in supplying commodities and services procured under the award, the recipient shall to the maximum extent possible provide the following information to the Office of Small Disadvantaged Business Utilization (OSDBU/MRC), USAID Washington, DC 20523, at least 45 days prior to placing any order or contract in excess of the small purchase threshold:

(i) Brief general description and quantity of goods or services;

(ii) Closing date for receiving quotations, proposals or bids; and

(iii) Address where solicitations or specifications can be obtained.

(3) Consider in the contract process whether firms competing for larger contracts intend to subcontract with small businesses, minority-owned firms, and women's business enterprises.

(4) Encourage contracting with consortiums of small businesses, minority-owned firms and women's business enterprises when a contract is too large for one of these firms to handle individually.

(5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce's Minority Business Development Agency in the solicitation and utilization of small businesses, minority-owned firms and women's business enterprises.

© The type of procuring instruments used (e.g., fixed price contracts, cost reimbursable contracts, purchase orders, and incentive contracts) shall be determined by the recipient but shall be appropriate for the particular procurement and for promoting the best interest of the program or project involved. The ?cost-plus-a-percentage-of-cost? or ?percentage of construction cost? methods of contracting shall not be used.

(d) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted by agencies' implementation of E.O.s 12549 and 12689, ?Debarment and Suspension.?

(e) Recipients shall, on request, make available for USAID, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc., when any of the following conditions apply.

(1) A recipient's procurement procedures or operation fails to comply with the procurement standards in this part.

(2) The procurement is expected to exceed the small purchase threshold fixed at 41 U.S.C. 403(11) and is to be awarded without competition or only one bid or offer is received in response to a solicitation.

(3) The procurement, which is expected to exceed the small purchase threshold, specifies a ?brand name? product.

(4) The proposed award over the small purchase threshold is to be awarded to other than the apparent low bidder under a sealed bid procurement.

(5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the amount of the small purchase threshold.

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It doesn't seem right for the words "small purchase threshold" in the same reg to mean two different numbers.

A basic principle of regulatory interpretation is that when the same term is used more than once in a part of the regulation, it is presumed to have the same meaning each time it is used unless there is clear language indicating otherwise. I do not see anything in the regulation that indicates "small purchase threshhold" has two different meanings. Therefore, I think you would be justified in assuming that it means the same both times.

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So can the requirement at ( B)(2) kick in at the FAR SAT level ($150,000 etc,) because the "small purchase threshold" in the regulation was renamed "simplified acquisition threshold (SAT)" in FASA, while the requirement at (e)(2) clearly has to kick in at $100,000, because 41 USC 403(11) /41 USC 134 specifically says $100,000? (thanks dude77)

It doesn't seem right for the words "small purchase threshold" in the same reg to mean two different numbers.

contractor100:

41 U.S.C. 403(11) has been 41 U.S.C. 134 since 2011, when the title was enacted into positive law and recodified. The statute still says $100,000. However, in 2010, pursuant to Pub. L. 108-375, the FAR councils made an inflation-related regulatory adjustment to the simplified acquisition threshold, raising it to $150,000. See, generally, FAR 1.109 and, specifically, FAC 2005-45, published on August 30, 2010, effective October 1, 2010. The inflation-related adjustment is authorized by statute. The right number is $150,000, not $100,000. j_dude77 is wrong about USAID needing to change its regulation. Their regulation clearly refers to the SAT. If you doubt that, just ask the USAID grant officer, which is what you should have done in the first place.

contractor100 -- You last posted on March 20. You haven't responded to the posters who tried to help you since then. You went all this time without answering your own question, which is ridiculous. Then you come back here in June and unnecessarily paste a long regulatory passage into the forum -- most of which has nothing to do with the issue -- presumably so people will read it in another effort to help you. That's brilliant.

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