2. 1 Acquisition vs. Assistance, A Comparison Of Its Differences as Used In The International Arena Breakout Session # WC11-941 Rodney Matsushima, Fellow, Suntiva LLC Jean Horton, USAID Date: Tuesday, July 12, 2011 Time: 2:30 – 3:45 pm

3. 2 Acquisition vs. Assistance Agenda Introduction Principal Purpose Comparison as Legal Instruments General Overview Comparison by phases in the Lifecycle Relevant GAO Cases Conclusion – “Take Aways”

4. 3 Acquisition vs. Assistance Grantor Organizations There are 26 federal agencies that award both Acquisition Instruments and Assistance Instruments More dollars are obligated on Assistance Instruments than on Acquisition Instruments. The Top Three Grantor Agencies are: Department of Health and Human Services Department of Education Department of Transportation

5. 4 Acquisition vs. Assistance U.S. Agency for Int’l Development U.S. foreign assistance has always had the twofold purpose of furthering America's foreign policy interests in expanding democracy and free markets while improving the lives of the citizens of the developing world. Spending less than one-half of 1 percent of the federal budget, USAID works around the world to achieve these goals. In 1961, the Foreign Assistance Act was signed into law and USAID was created by executive order.

6. 5 Acquisition vs. Assistance U.S. Agency for Int’l Development Since 1961, USAID has been the principal U.S. agency to extend assistance to countries recovering from disaster, trying to escape poverty, and engaging in democratic reforms. Provide Assistance in five regions of the world Sub-Saharan Africa Asia Latin America and the Caribbean Europe and Eurasia Middle East

7. 6 Acquisition vs. Assistance Defined by their Principal Purpose Acquisition “To ACQUIRE (by purchase, lease, or barter) property or services for the direct benefit or use of the U.S. Government.” Assistance “The TRANSFER of money, property, services or anything of value to the recipient in order to accomplish a Public purpose of support or stimulation authorized by federal statute.”

8. 7 Acquisition vs. Assistance Examples Acquisition Purchase Orders Personal Services Contracts (PSCs) Contracts Indefinite Quantity Contracts (IQCs) –Can be single or multiple awards –Task orders –Delivery orders Assistance Grants Cooperative Agreements Leader with Associate Grants –Associate Awards Global Development Alliance (GDA/PPA) 7

9. 8 8 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) Offer and AcceptanceYes Eligible & Competent Parties Yes Legal & Appropriate Requirement Yes Exchange of Value“Fair and Reasonable” Agreement on the Terms Yes Legal Instrument General Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Phase Award Administration Phase

10. 9 9 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) General NatureAcquisitionAssistance Awardee Nomenclature ContractorRecipient AuthorityConstitutionSpecific Statutes Regulatory SystemFAR System (FAR/AIDARS) Code of Federal Regulations Policies and Procedures OFPPOMB, Agency PurposePurchase for Government’s Direct Benefit or Use Support or stimulate a Public Purpose General Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Phase Award Administration Phase

11. 10 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) RelationshipBuyer-SellerSponsor/Partner Government Involvement Varies with Type of Contract Limited BenefitAgencyPublic ProfitAllowedNot Allowed Conflict of Interest/Ethics Yes USAID’s RolePurchaser/ClientDonor/Funding Agency General Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Phase Award Administration Phase

12. 11 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) SpecificationsMore Precise. SOW/PWS Desire Precise but many variables Public NoticeFBOCFDA and Grants.gov AnnouncementStrict Rules for Posting Required in Grants.gov CompetitionMandated by Statute (CICA) Encouraged by Policy Award InstrumentsFAR Part 16ADS 303 Types Suppliers/VendorsCCRCCR and Registered PVOs Cost SharingInfrequentOften Requirements Development Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

13. 12 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) OfferBid or ProposalApplication OfferorBidder or OfferorApplicant FormOF308, SF26, SF33, SF1449 SF424 Response Date and Time Firm Submission Date and Time Representations and Certifications Yes, ORCAYes ResultsMore SpecificStrive for results Pre-Solicitation and Solicitation Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

14. 13 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) Use of Multi-TiersYes Evaluation Criteria and Process Yes Best Value Source Selection Yes, but more objective Yes, but more subjective Unsolicited ProposalsYes Sole Source Justification FAR ExceptionsAgency Exceptions Past PerformanceCPARS/PPIRSNo Policy Requirement Branding and Marketing USAID ApplicableImportant Element Pre-Solicitation and Solicitation Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

15. 14 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) Cost AnalysisYes Cost RealismYes DocumentationMemorandum Authority to SignContracting Officer Warrant Assistance Officer Warrant Terms and ConditionsFAR ClausesStandard Provisions High Risk AwardsClose Post Award Monitoring Insert Special Provisions Period of Performance Limit 5 Years Unless by Statute 5 Plus 5 Award Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

16. 15 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) Forward FundingAdvance Payment, Infrequent 18 Months if over $2M Severability of Work and Funds Mostly SeverableMostly Non-severable Anti-Deficiency ActApplies ProtestClear Process. Can be filled with USAID, GAO, the Court of Federal Claims, or the Federal District Courts Assistance Officer’s Final Decision Award Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

17. 16 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) Responsibility Determination Yes Award AnnouncementFBOGrants.gov Congressional Notification Yes AuditYes Debarred ListExcluded Parties List System (EPLS) Debriefing PolicyYes Award Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

18. 17 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) FormOF347, SF26, SF1449 Letter Format Technical Representative COTR. Delegation Letter AOTR. Delegation Letter Post-award Orientation Conf Yes Basis of PaymentUsually Fixed Price or Rate, or Cost Costs Timing of PaymentReimbursement, Normally After Expense Incurred Reimbursement, Normally in Advance Award Administration Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

19. 18 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) Government Property Real and Intellectual Yes Sub-awardSubcontractorSub-recipient / Procurement Contract. Disputes and AppealsCO Final Decision may be Appealed to ASBCA or Court of Federal Claims AO Decision may be Appealed within USAID Only Performance Remedies Yes Award Administration Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

20. 19 Acquisition vs. Assistance Acquisition (Contracts) Assistance (Grants) Termination RightsFor Default or for Convenience For Cause, Mutually, or Changed Circumstances Capture Lessons Learned Optional by Agency – Less Formal More Formal Process CloseoutYes Award Administration Phase Legal InstrumentGeneral Requirements Development Phase Pre-Solicitation and Solicitation Phase Award Administration Phase Award Phase

21. 20 Acquisition vs. Assistance Summary Acquisition and Assistance Instruments: Serve Different Purposes; Have Different Procedures; Carry Different Conditions;

22. 21 Acquisition vs. Assistance, A Comparison Of Its Differences as Used In The International Arena Questions