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maintenance, operation and use of such equipment.

(p) Purchase contract. "Purchase contract" means any contract or similar arrangement under which a supplier furnishes commodities and/or commodity-related services financed under this part.

(q) Source. "Source" means the country from which a commodity is shipped to the cooperating country, or the cooperating country if the commodity is located therein at the time of the purchase. Where, however, a commodity is shipped from a free port or bonded warehouse in the form in which received therein, "source"

means the country from which the commodity was shipped to the free port or bonded warehouse.

(r) Supplier. "Supplier" means any person or organization, governmental or otherwise, who furnishes commodities and/or commodity-related services financed under this Part 201.

(s) Supplier's Certificate. "Supplier's Certificate" means AID Form 282 (178) "Supplier's Certificate and Agreement with the Agency for International Development”, including the “Invoice-and-Contract Abstract" on the reverse of such form (Appendix A to this Part 201), or any substitute form which may be prescribed in the letter of commitment, request for the opening of a special letter of credit, or other pertinent implementing document.

(t) United States. "United States" means the United States of America, any State, territory, or possession thereof, Puerto Rico and the District of Columbia.

(u) US AID. “US AID" means the A.I.D. mission or representative to any cooperating country.

(v) [Reserved]

(w) Commodity Approval Application. "Commodity Approval Application" means the Application for Approval by the Agency for International Development of Commodity Eligibility (A.I.D. Form 11) which appears as Appendix D to this Part 201.

(x) Schedule B. "Schedule B" means "Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States" issued and amended from time to time

by the U.S. Bureau of the Census, Department of Commerce, and published in 15 CFR 30.92.

[36 FR 7096, Apr. 14, 1971, as amended at 37 FR 12792, June 29, 1972; 38 FR 13641, May 24, 1973; 38 FR 18016, July 6, 1973; 43 FR 25998, June 16, 1978; 45 FR 71798, Oct. 30, 1980]

§ 201.02 Scope and application.

The appropriate implementing document will indicate whether and the extent to which this Part 201 shall apply to the procurement of commodities or commodity-related services or both. Whenever this Part 201 is applicable, those terms and conditions of this part will govern which are in effect on the date of issuance of an irrevocable letter of credit under which payment is made or is to be made from funds made available under the Act or, if no such letter of credit has been issued, on the date payment instructions for payment from funds made available under the Act are received by the paying bank.

(a) The borrower/grantee is responsible for compliance with the applicable and suppliers and for assuring that importers and suppliers are informed of the extent to which this part applies.

(b) Subpart B sets forth conditions governing the eligibility for A.I.D. financing of transactions covering commodities and commodity-related services.

(c) Subpart C prescribes procedures which importers shall follow in purchasing commodities.

(d) Subpart D sets forth the responsibilities of suppliers.

(e) Subpart E contains provisions relating to:

(1) The diversion of shipments and the vesting in A.I.D. of title to commodities:

(2) The effect of termination or modification of any loan, grant or implementing document; and

(3) A.I.D. audit and inspection rights.

(f) Subpart F describes the financing process and prescribes the documents which shall be submitted to banks and to A.I.D.

(g) Subpart G contains the price tests which shall be met and limitations on amounts and types of payments which A.I.D. will finance.

(h) Subpart H defines the rights and responsibilities of banks.

(i) Subpart I sets out the rights and remedies which are reserved to A.I.D. and provides for the waiver under special circumstances of the provisions of this Part 201.

(j) Unless otherwise indicated, references in this Part 201 to subparts or to sections relate to subparts or sections of this Part 201.

[36 FR 7096, Apr. 14, 1971, as amended at 37 FR 12792, June 29, 1972]

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Appendix A (OMB No. 0412-0012, expiration 11/30/88).

Appendix D (OMB No. 0412-0004, expiration 5/31/91).

The information requested will be used to verify compliance with statutory and regulatory requirements and to assist in administration of A.I.D.-financed commodity programs. The submission of the information is required in order to receive payment for commodities or commodity-related services. The public reporting burden for this collection of information is estimated to average 30 minutes per response, except for the forms at Appendices A and D which are estimated to average 15 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing

the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Chief, Procurement Planning, Policy and Evaluation Staff, A.I.D., Washington, DC 20523-1435, and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503. [53 FR 31317, Aug. 18, 1988]

Subpart B-Conditions Governing the Eligibility of Procurement Transaction for A.I.D. Financing

§ 201.10 Purpose.

This subpart sets forth requirements for A.I.D. financing applicable to transactions for the procurement of commodities and/or commodity-related services.

§ 201.11 Eligibility of commodities.

To qualify for A.I.D. financing, a commodity procurement transaction shall satisfy the following requirements:

(a) Description and condition of the commodity. The commodity shall conform to the description in the implementing document. Unless otherwise authorized by AID/W in writing, the commodity shall be unused, and may not have been disposed of as surplus by any governmental agency.

(b) Source (1) General rule. The source of the commodity shall be a country authorized in the implementing document by name or by reference to an A.I.D. geographic code. In addition, the commodity shall have been mined, grown, or through manufacturing, processing, or assembly produced in a source country authorized in the implementing document.

(2) Exceptions. A produced commodity will not be eligible for A.I.D. financing if:

(i) It contains any component from countries other than free world countries as described in A.I.D. Geographic Code 935; or

(ii) It contains components which were imported into the country of production from such free world countries

other than authorized source countries; and

(a) Such components were acquired by the producer in the form in which they were imported;

(b) The total cost of such components (delivered at the point of production) amounts to more than 50 percent, or such other percentage as A.I.D. may prescribe, of the lowest price (excluding the cost of ocean transportation and marine insurance) at which the supplier makes the commodity available for export sale (whether or not financed by A.I.D.)

(c) For the purpose of calculating eligible components under this paragraph (b)(2)(ii), “authorized source countries" shall include the cooperating country itself whenever AID has authorized procurement from a geographic code other than AID Geographic Code 000.

(3) Waiver provision. AID/W_may from time to time waive or modify the requirements of paragraph (b)(2)(ii) of this section in appropriate cases.

(4) Identification of principal geographic code numbers. The A.I.D. Geographic Code Book sets forth the official description of all geographic codes used by A.I.D. to designate the authorized source for procurement. Following are summaries of the principal codes:

The

or

Code 000-"The United States": states of the United States, the District of Columbia, and areas of U.S. associated sovereignty, including the trust territories. Code 899-"Free World": Any area country, except the cooperating country itself and the following countries: Afghanistan, Albania, Bulgaria, Cambodia, Cuba, Czechoslovakia, German Democratic Republic, Hungary, Iran, Laos, Libya, Mongolia, North Korea, People's Democratic Republic of Yemen (South Yemen), People's Republic of China, Poland, Romania, Syria, Union of Soviet Socialist Republic (USSR), and Vietnam.

Code 935-"Special Free World": Any area or country in the Free World, including the cooperating country.

Code 941-"Selected Free World": The United States and any independent country in the Free World, except the cooperating country itself and the following: Andorra, Angola, Australia, Austria, Bahamas, Bahrain, Belgium, Canada, Cyprus, Denmark, Federal Republic of Germany, Finland, France, Gabon, Greece, Hong Kong, Iceland, Iraq, Ireland, Italy, Japan, Kuwait,

Liechenstein, Luxembourg, Malta, Monaco, Mozambique, Netherlands, New Zealand, Norway, Portugal, Qatar, Saudi Arabia, San Marino, Singapore, South Africa, Spain, Sweden, Switzerland, Taiwan (Republic of China), United Arab Emirates, United Kingdom, Vatican City, and Yugoslavia.

(c) Date of shipping documents. The documents required as evidence of shipment under § 201.52(a)(4) shall show that the date of shipment was within the shipping period, if any, specified in the implementing document.

(d) Medium of transportation. Shipment shall not be effected.

(1) By a transportation medium owned, operated or under the control of any country not included within A.I.D. Geographic Code 935; or

(2) On a vessel which A.I.D. has designated ineligible; or

(3) Under any ocean or air charter which has not received prior approval by AID/W.

(e) Marine insurance. If A.I.D. determines that the government of a cooperating country, by statute, decree, rule, or regulation, discriminates with respect to A.I.D.-financed procurement against any marine insurance company authorized to do business in any State of the United States, then any A.I.D. financed commodity shipped to the cooperating country shall be insured against marine risks and such insurance shall be placed in the United States with a company or companies authorized to do a marine insurance business in a State of the United States. "Discrimination" within the meaning of this paragraph may be found to exist whenever the effect of governmental action by a cooperating country is to hinder an importer in entering into a c.i.f. contract with a U.S. supplier or in instructing a U.S. supplier to place marine insurance in the United States.

(f) Timely submission of documents. All documents required under § 201.52 to be submitted by a supplier in order to receive payment or reimbursement shall be submitted to A.I.D. or to a designated bank, whichever is appropriate, on or before the terminal date specified in the letter of commitment, the request for the opening of a spe

cial letter of credit, or other imple- ships which fit any of the foregoing menting document.

(g) U.S. Treasury Department regulations. Procurement transactions shall comply with the requirements of the Foreign Assets Control Regulation and Cuban Assets Control Regulation of the U.S. Treasury Department.

(h) Commodities shipped out of free port or bonded warehouse. No commodity shipped out of a free port or bonded warehouse is eligible for A.I.D. financing if it was shipped to the free port or bonded warehouse without compliance with the requirements set forth in paragraphs (d) (1) and (2) of this section or if it was shipped from the free port or bonded warehouse without compliance with the requirements set forth in paragraphs (d) (1), (2) and (3) of this section.

(i) Purchase price. The purchase price for the commodity shall satisfy the requirements of Subpart G.

(j) Purchases from eligible suppliers. Commodities procured with funds made available under this Part 201 shall be purchased from eligible suppliers. A supplier shall not be eligible to receive A.I.D. funds if:

(1) The supplier has been suspended or debarred by A.I.D. pursuant to A.I.D. Regulation 8, Part 208 of this chapter; or

(2) The supplier has been placed by A.I.D. on prior review and approval pursuant to § 201.33 of this part and A.I.D. has not, in fact, given its prior approval to the supplier for the furnishing of specific goods; or

(3) The supplier is not an individual, resident in a country included in the authorized source code; a nonresident citizen of a country included in the authorized source code; a corporation or partnership organized under the laws of a country included in the authorized source code; or a controlled foreign corporation (within the meaning of section 957 et seq. of the Internal Revenue Code) as attested by current information on file with the Internal Revenue Service of the United States (on IRS Form 959, 2952, 3646, or on substitute or successor forms) submitted by shareholders of the corporation; or a joint venture or unincorporated association consisting entirely of individuals, corporations, or partner

categories.

(k) Determination of commodity eligibility. The commodity shall be approved in writing by A.I.D. for each sale transaction as eligible for A.I.D. financing. Such approval shall be indicated on the Commodity Approval Application submitted to A.I.D. by the supplier.

[36 FR 7096, Apr. 14, 1971, as amended at 46 FR 27104, May 18, 1981; 48 FR 10056, Mar. 10, 1983; 48 FR 49233, Oct. 25, 1983; 52 FR 38405, Oct. 16, 1987; 53 FR 31317, Aug. 18, 1988]

§ 201.12 Eligibility of incidental services.

Incidental services may be financed under the same implementing document which makes funds available for the procurement of equipment only if:

(a) Such services are specified in the purchase contract relating to the equipment;

(b) The price satisfies the requirements of § 201.68; and

(c) The portion of the total purchase contract price attributable to such services does not exceed 25 percent. [53 FR 31318, Aug. 18, 1988]

§ 201.13 Eligibility of delivery services.

(a) General. Delivery of AID-financed commodities may be financed under the implementing document provided the delivery services meet the requirements in this section.

(b) Transportation costs—(1) Ocean transportation costs. (i) Unless otherwise authorized, AID will finance only those ocean transportation costs which meet the requirements of this paragraph (b)(1) of this section.

(a) When Geographic Code 000 is the authorized source for procurement, AID will finance only those costs incurred on vessels under U.S. flag registry.

(b) When Geographic Code 941 is the authorized source for procurement, AID will finance only those costs incurred on vessels under flag registry of countries included in Code 941 and the cooperating country.

(c) AID will finance costs incurred on vessels under flag registry of any free world country if the costs are part of the total cost on a through bill of

lading paid to a carrier for initial carriage on a vessel which is authorized in accordance with paragraph (b)(1)(i) (a) or (b) of this section.

(ii) When an eligible flag vessel is not available for shipment, a supplier may request a waiver of the eligibility requirements prior to shipment from the Office of Procurement, Transportation Division, A.I.D., Washington, DC 20523, telephone (703) 875-1300.

(2) International air transportation costs. (i) A.I.D. will finance only those international air transportation costs which meet the requirements of this paragraph (b)(2). For the purposes of this paragraph, the term "U.S. flag air carrier" means one of a class of air carriers holding a certificate under section 401 of the Federal Aviation Act of 1958 (49 U.S.C. 1371) authorizing operations between the U.S. or its territories and one or more foreign countries.

(ii)(a) Under all A.I.D. grants and under A.I.D. loans when the authorized source for procurement is Geographic Code 000, A.I.D. will finance only those costs incurred on U.S. flag air carriers unless such service is not available.

(b) Under A.I.D. loans when the authorized source for procurement is Geographic Code 941, A.I.D. will finance only those cost incurred on U.S., cooperating country, or Geographic Code 941 flag air carriers unless such service is not available.

(c) A.I.D. will finance international air transportation costs incurred on aircraft under flag registry of any free world country if the costs are part of the total cost on a through bill of lading paid to an eligible carrier for initial international carriage on an aircraft which is eligible in accordance with paragraph (b)(2)(ii) (a) or (b) of this section.

(iii)(a) Expenditures for international air transportation furnished by air carriers which are not eligible under the provisions of paragraph (b)(2)(ii) of this section will be financed by A.I.D. only when service by eligible air carriers is unavailable. Criteria for determining when service by eligible air carriers is unavailable are the same as those published at 48 CFR 47.403-1 for determining when U.S. flag air car

riers are unavailable. Additional guidance on determining when service is unavailable may be obtained from the Office of Procurement, Transportation Division, telephone (703) 8751300.

(b) When service by eligible flag air carriers is unavailable, any code 935 flag air carrier may be used.

(c) In the event the supplier selects an air carrier other than an eligible flag carrier for international air transportation, it must include a certification on invoices which include such transportation costs as follows:

CERTIFICATION OF UNAVAILABILITY OF
ELIGIBLE FLAG AIR CARRIERS

I hereby certify that transportation service by eligible flag air carriers was unavailable for the following reason(s): (state reason(s)).

(3) Other Conditions and Limitations. Notwithstanding paragraphs (b)(1) and (b)(2) of this section, unless otherwise authorized, AID will not finance transportation costs

(i) For shipment beyond the point of entry in the cooperating country except when intermodal transportation service covering the carriage of cargo from point of origin to destination is used, and the point of destination, as stated in the carrier's through bill of lading, is established in the carrier's tariff; or

(ii) On a transportation medium owned, operated or under the control of any country not included in Code 935; or

(iii) On any vessel designated by AID as ineligible to carry AID-financed cargo; or

(iv) Under any ocean or air charter covering full or part cargo (whether for a single voyage, consecutive voyages, or a time period) which has not received prior approval by AID/W (Office of Procurement); or

(v) Which are attributable to brokerage commissions which exceed the limitations specified in § 201.65(1) or to address commissions, dead freight, or demurrage.

(c) Inspection services. AID will finance inspection of AID-financed commodities if such inspection is specified in the purchase contract, performed by independent inspectors at the re

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