Government Affairs and Advocacy

Dear members: 
While this announcement is welcomed, it likely raises more questions than it answers at this stage particularly where assistance awards are involved. As USAID announced, policy revisions to apply this new waiver to assistance will be forthcoming in the second quarter of FY22. Humentum will continue to monitor these developments, analyze what this means for our members, and advocate with other federal agencies to seek a similar waiver. 

"On September 21, 2021, USAID received a Modified Foreign Assistance (FA) Waiver of the prohibitions under Section 889 of the John S. McCain National Defense Authorization Act (NDAA) for FY 2019. The Modified FA Waiver extends waiver authority through September 30, 2028. Like the original waiver, the modified FA Waiver is meant to support the Agency's foreign assistance mission and only applies to supplies used or services performed overseas.  However, the modified FA Waiver has further limitations and can only be applied in situations where our contractors and recipients aren't able to avoid using covered technology because there are no Section 889 compliant telecommunications service providers in the countries where they are working.  

Acquisition: USAID issued revisions to Chapter 302 of its Automated Directives System (ADS) on December 6, 2021 and has provided internal guidance documents to Contracting Officers regarding solicitation procedures to implement Section 889 and the Modified Foreign Assistance Waiver.  Contractors should be aware of the following:

• The original Foreign Assistance Waiver and the Modified Foreign Assistance Waiver do not alter the FAR requirements for contractors to make a representation, nor do they alter the requirement for contractors to provide the required disclosure information in accordance with the FAR provision at 52.204‐24 and the applicable Section L provision entitled FAR Part 4.2101 Prohibition on Covered Telecommunications and Video Surveillance Services and Equipment.  USAID will make a determination as to whether to apply a waiver to the particular award.
• Due to our Procurement Action Lead Time and the typical length of the award, USAID will use the authority of the Modified FA Waiver, as applicable, and with the limitations described above. COs will no longer use the original FA Waiver authority to make new awards, unless the award's anticipated Period of Performance ends on or before September 30, 2022, or, at the CO's discretion, when the solicitation has closed and the award will be made before March 31, 2022.
• For offerors/contractors that are using covered telecommunications equipment or services, Contracting Officers will only be able to apply the Modified FA Waiver to award or extend a contract, or exercise an option, if the offeror/contractor's disclosure information indicates that a Section 889-compliant alternative is not available in the specific country where the covered technology is being used based on the offeror's/contractor's reasonable inquiry.
• Effective October 1, 2028, USAID will only be able to make awards or continue with existing award if an offeror/contractor does not use covered technology.  
• The waiver does not apply to contracts for goods used or services performed entirely in the United States.

Assistance: Policy revisions to apply the modified FA Waiver to assistance awards (grants and cooperative agreements) will be forthcoming in Q2 FY 2022.  

If you have any questions, please consult with your cognizant Contracting Officer or Agreement Officer."