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Radu C.

Geo Code waiver and CO's approval of procurement of motor vehicles

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A question for AIDAR connoisseurs

My company has always interpreted that the U.S.-made requirement for vehicle purchases and long term leases (22 CFR 228.19) is IN ADDITION to the requirements governing procurement of restricted commodities (AIDAR 752.225-70). In other words,

  • even if a vehicle is manufactured in the U.S. , prior CO approval is needed per the referenced AIDAR.
  • if a vehicle is made outside the U.S., a waiver is needed to waive the geo code requirements AND CO’s approval is needed per AIDAR
  • If it is a RHD vehicle and the blanket geo code waiver from ADS 312.3.3.2 applies, CO’s approval is STILL needed per AIDAR.

 

The language in AIDAR 752.225-70 is somewhat ambiguous. It hints that CO's approval OR compliance with a waiver is required, but not both: 

(c) Restricted goods. The contractor must obtain prior written approval of the contracting officer or comply with required procedures under an applicable waiver as provided by the contracting officer when procuring any of the following goods or services:

 (1) Agricultural commodities;

(2) Motor vehicles;

(3) Pharmaceuticals and contraceptive items;

(4) Pesticides;

(5) Fertilizer;

(6) Used equipment; or

(7) U.S. Government-owned excess property.

 If USAID determines that the contractor has procured any of these specific restricted goods under this contract without the prior written authorization of the contracting officer or fails to comply with required procedures under an applicable waiver as provided by the contracting officer, and has received payment for such purposes, the contracting officer may require the contractor to refund the entire amount of the purchase.

The question is: is it common in the industry to interpret the above AIDAR to mean that the blanket waiver from ADS 312.3.3.2 (b)(2) (in case of RHD vehicles) is sufficient and prior CO approval is NOT necessary as long as we are “complying with required procedures under an applicable waiver….”?

Procurement of motor vehicles is a political and sensitive issue and, in my experience, contractors don't take chances and stay on the conservative side when it comes to approvals for these goods. Do you have a different experience?  

Your thoughts are appreciated,

 

Radu

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2 hours ago, Radu C. said:

The question is: is it common in the industry to interpret the above AIDAR to mean that the blanket waiver from ADS 312.3.3.2 (b)(2) (in case of RHD vehicles) is sufficient and prior CO approval is NOT necessary as long as we are “complying with required procedures under an applicable waiver….”?

I'm not in the industry, but I understand a little about reading contract clauses. 

You shortened the applicable phrase--

  • comply with required procedures under an applicable waiver...

from--

  • comply with required procedures under an applicable waiver as provided by the contracting officer

It seems to me that the applicable waiver only counts if the contracting officer provided it to you. 

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3 hours ago, Radu C. said:

The question is: is it common in the industry to interpret the above AIDAR to mean that the blanket waiver from ADS 312.3.3.2 (b)(2) (in case of RHD vehicles) is sufficient and prior CO approval is NOT necessary as long as we are “complying with required procedures under an applicable waiver….”?

What is ADS 312.3.3.2 (b)(2)?

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On 6/12/2019 at 2:20 PM, ji20874 said:

I'm not in the industry, but I understand a little about reading contract clauses. 

You shortened the applicable phrase--

  • comply with required procedures under an applicable waiver...

from--

  • comply with required procedures under an applicable waiver as provided by the contracting officer

It seems to me that the applicable waiver only counts if the contracting officer provided it to you. 

Yes, this makes sense. ADS 312 references a blanket waiver. What is not clear to me is if AIDAR references the blanket waiver from ADS or not, but, of course, we cannot make such assumptions without CO's confirmation. Thank you for your input. 

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On 6/12/2019 at 4:44 PM, Don Mansfield said:

@Radu C.,

Does the contract say (or did the CO tell you) that you have to comply with USAID directives (i.e., ADS Chapter 312) in performing the contract?

The contract does not say this. The contract references AIDAR 752.225-70 which references 22 CFR 228 "Rules on Procurement of Commodities and Services Financed by USAID". This CFR states that vehicles must be manufactured in the U.S.. ADS (USAID's policy manual) 312 states that there is a blanket waiver for certain types of vehicles.  

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