Department of State Acquisition Regulation: Nondiscrimination in Foreign Assistance

DEPARTMENT OF STATE <CFR>48 CFR Parts 625 and 652</CFR> <DEPDOC>[Public Notice: 12058]</DEPDOC> <RIN>RIN 1400-AF65</RIN> <SUBJECT>Department of State Acquisition Regulation: Nondiscrimination in Foreign Assistance</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of State. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking; request for comment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Foreign Assistance Act of 1961 (FAA) and other related statutes, such as the FREEDOM Support Act, the Migration and Refugee Assistance Act of 1962, and the SEED Act of 1989, authorize the U.S. Department of State (Department of State, State, or Department) to provide foreign assistance that seeks to support efforts that would have the effect of protecting and promoting U.S. security, prosperity, and democratic values and shape an international environment to improve the lives of people around the world. To implement the Department's expectation of nondiscrimination against beneficiaries of Department-funded foreign assistance activities, the Department is proposing to amend its Department of State Acquisition Regulation (DOSAR) to include a new contract clause entitled “Nondiscrimination in Foreign Assistance.” The proposed clause expressly states that contractors and subcontractors receiving Department-funded foreign assistance funds must not discriminate on specified bases against end-users of supplies or services (also referred to in this rule as beneficiaries and potential beneficiaries) or in certain employment decisions involving persons employed in the performance of this contract and funded in whole or in part with foreign assistance funds except where target populations are specified in the relevant statement of work (SOW) or as otherwise required by U.S. law. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The Department of State will accept comments until March 19, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments, identified by title of the action and Regulatory Information Number (RIN) by any of the following methods: • Through the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov</E> and search for docket DOS-2023-0014 or RIN 1400-AF65. • <E T="03">By Email:</E> Submit electronic comments to <E T="03">acquisitionpolicy@state.gov</E> and/or <E T="03">schroederhr@state.gov.</E> • The summary of this rule can be found at <E T="03">www.regulations.gov/DOS-2023-0014.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Direct requests for additional information regarding this notice to Hilary Schroeder, who may be reached at (202) 890-9798 or at <E T="03">schroederhr@state.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> The inclusion and equitable treatment of all individuals, organizations, and communities relevant to Department foreign assistance programs is critical to achieving effective, comprehensive, and sustainable foreign assistance results because it enhances the participation, contributions, and access of the target population. As such, the Department seeks to ensure access for all eligible beneficiaries of the target population within the scope of its foreign assistance contracts without discrimination. Because of this premise, which underpins all of the Department's programs, the Department is embedding equity across its foreign affairs work and raising the visibility of inequities globally by providing equal opportunities for all eligible individuals, including members of minority groups and members of other underserved communities, through its foreign assistance programs. The Department seeks to improve the lives of people around the world by being inclusive and equitable in its foreign assistance efforts, including its evaluation of responses to requests for proposal, solicitations, etc. The Department is committed to a nondiscrimination policy in its projects and activities and welcomes proposals irrespective of an offeror's race, ethnicity, color, religion, sex, gender, sexual orientation, gender identity or expression, sex characteristics, pregnancy, national origin, disability, age, genetic information, indigeneity, marital status, parental status, political affiliation, or veteran's status. The Department seeks to ensure that foreign assistance proposals that demonstrate that the recipients would not, in implementation of a potential contract, discriminate against any beneficiaries of foreign assistance funds based on any of the factors listed above—unless otherwise expressly authorized in the contract or otherwise required by U.S. law in implementation of a potential contract. Discrimination in implementation of an award could include adversely impacting, or denying equitable access to the benefits provided through the contract. Establishing clear and meaningful nondiscrimination protections in Department of State foreign assistance awards advances U.S. foreign policy by ensuring that U.S. foreign assistance is inclusive and equitable by reaching all intended beneficiaries, and efficiently accomplishing its intended objectives. U.S. foreign assistance funding is less effective and efficient when discrimination prevents assistance from reaching those who might most benefit from such assistance—which hinders U.S. foreign policy by excluding individuals that the United States intended to receive such assistance. Nondiscrimination protections require a tangible incentive for organizations to take affirmative steps to commit to nondiscrimination and extend protection to employees and beneficiaries of foreign assistance. Nondiscrimination protections send a strong signal to people around the world that equity and inclusion are values that the United States takes seriously. They complement and affirm other commitments to equality in U.S. foreign policy, maximizing their coherence and effectiveness. Nondiscrimination principles and protections are essential in protecting and advancing the human rights of all persons and ensuring equitable access to foreign assistance programs. Contractors must adhere to this requirement by performing the activities as outlined in the contract SOWs. In recent years, the U.S. government has issued multiple policy pronouncements emphasizing equity, fairness, and human dignity. Effective nondiscrimination protections for beneficiaries of foreign assistance are a means toward achieving these objectives. For example, in 2021, the President issued Executive Order (E.O.) 13985 on “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” which mandates embedding equity in government programming and decision-making processes of every department and agency in the Executive Branch”; and in 2023, the President issued E.O. 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. Furthermore, in 2011, the President issued E.O. 13563, “Improving Regulation and Regulatory Review,” which, in addition to quantitative factors, advised that the qualitative values of equity, fairness, and human dignity are important considerations in agencies' rulemaking. This rulemaking proposes to revise (48 CFR) DOSAR Part 625 to add new requirements, at 625.7101, 625.7102, and 625.7103 outlining the policy against nondiscrimination in Department of State foreign assistance contracts. In addition, the rulemaking proposes to add a clause at 652.225-72, entitled “ <E T="03">Nondiscrimination in Foreign Assistance.</E> ” The clause, applicable to all solicitations, contracts, and subcontracts awarded with Department of State foreign assistance funds at any tier, prohibits contractors and subcontractors from discriminating against beneficiaries or potential beneficiaries ( <E T="03">i.e.,</E> those individuals intended to receive the benefits of the award, whether goods or services) or persons employed in the performance of the award on the basis of any listed characteristics not expressly stated in the award. The purpose of this proposed rulemaking is to ensure effective implementation of foreign assistance programs consistent with U.S. foreign policy and the purposes of the FAA. Section 101 of the FAA provides that: “[T]he Congress reaffirms the traditional humanitarian ideals of the American people and renews its commitment to assist people in developing countries to eliminate hunger, poverty, illness, and ignorance.” 22 U.S.C. 2151(a). The main effect of the proposed clause is to ensure that contractors adhere to State's policy and practice of nondiscrimination in planning foreign assistance projects and activities, and State's policy and practice of nondiscrimination is followed through to completion by the contractors that implement them. The impact of the clause on contractors and offerors is to require them to refrain from the discrimination described in the clause. Under the statutory regime governing foreign assistance, and consistent with his responsibilities regarding the conduct of U.S. foreign affairs, the President has broad discretion to set the terms and conditions on which the United States provides such assistance. Many of the authorities provided under the Foreign Assistance Act of 1961, and similar statutes, explicitly allow for the provision of assistance “on such terms and conditions as [the President] may determine.” <E T="03">See, e.g.,</E> section 104(c)(1) of the FAA (22 U.S.C. 2151b(c)(1)) (health assistance); section 481(a)(4) of the FAA (22 U.S.C. 2291(a)(4)) (counternarcotics and anti-crime assistance); section 531 of the FAA (22 U.S.C. 2346) (assistance to promote economic or political stability); section 541(a) of the FAA (22 U.S.C. 2347) (International Military Education and Training assistance); section 551 of the FAA (22 U.S.C. 2348) (Peacekeeping Operations); section 571 of th ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 33k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━