Nondiscrimination for Beneficiaries: Frequently Asked Questions

Updated: December 23, 2016

 

OVERVIEW

What are the policy statements regarding nondiscrimination for access to services for beneficiaries?

  • INTERNAL GUIDANCE:  As announced in March 2016, USAID updated its internal guidance on development policy (Automated Directives System (ADS) Chapter 200) regarding “Promoting Nondiscrimination and Inclusive Development in USAID-Funded Programs.”  The exact text is as follows:

In designing and administering USAID programs, pursuant to existing USAID policy, Bureaus/Missions and Operating Units must not discriminate against any beneficiary or potential beneficiary, such as, but not limited to, by withholding, adversely impacting, or denying equitable access to benefits or services on the basis of any non-merit factor. A non-merit factor includes race, color, religion, sex (including gender identity and pregnancy), national origin, disability, age, sexual orientation, genetic information, marital status, parental status, political affiliation, or veteran’s status. Nothing in this requirement is intended to limit the ability of a program to target assistance to certain populations as defined in the project design.

  • ACQUISITIONS (i.e., Contracts): On October 25, 2016, the Federal Register published a final rule to update the Agency for International Development Acquisition Regulation (AIDAR) to include a clause on “Nondiscrimination against End-Users of Supplies or Services.”  This AIDAR clause, which applies to all USAID contracts, explicitly articulates an inherent principle that all beneficiaries should be able to participate in USAID programs without discrimination.  The exact text of the clause (AIDAR 48 CFR 752.7038) is as follows:

(a)   USAID policy requires that the contractor not discriminate against any end-user of the contract supplies or services (i.e., the beneficiaries of the supplies or services) in implementation of this award, such as, but not limited to, by withholding, adversely impacting, or denying equitable access to the supplies or services (benefits) provided through this contract on the basis of any factor not expressly stated in the award. This includes, for example, race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, disability, age, genetic information, marital status, parental status, political affiliation, or veteran's status. Nothing in this clause is intended to limit the ability of the contractor to target activities toward the assistance needs of certain populations as defined in the contract.

(b)   The Contractor must insert this clause, including this paragraph, in all subcontracts under this contract.

  • ASSISTANCE AWARDS (i.e., Grants, Cooperative Agreements): As announced in November 2016, USAID has also approved corresponding changes to the standard provisions for USAID-funded grants and cooperative agreements. The revisions have been implemented through internal Agency policies located in ADS Chapter 303.   The exact text of the provision is as follows:

(a) USAID policy requires that the recipient not discriminate against any beneficiaries in implementation of this award, such as, but not limited to, by withholding, adversely impacting, or denying equitable access to the benefits provided through this award on the basis of any factor not expressly stated in the award. This includes, for example, race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, disability, age, genetic information, marital status, parental status, political affiliation, or veteran’s status. Nothing in this provision is intended to limit the ability of the recipient to target activities toward the assistance needs of certain populations as defined in the award.

(b) The recipient must insert this provision, including this paragraph, in all subawards and contracts under this award.

Why has the Agency pursued these nondiscrimination requirements?

  • While the nondiscrimination requirements do not represent a change in USAID’s approach to development, they explicitly articulate an inherent principle that all beneficiaries should be able to participate in USAID programs without discrimination.  This is aligned with USAID’s commitment to inclusive development.  USAID’s emphasis on inclusive development focuses on expanding rights and opportunities for women and girls; marginalized ethnic and religious populations; indigenous peoples; internally displaced persons; people with disabilities; youth and the elderly; lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals; and other socially marginalized individuals or people unique to the country or regional context.  These nondiscrimination requirements are a best practice and reflect USAID’s principles.

APPLICABILITY

Where will these nondiscrimination policy statements be incorporated?

To which instruments will these nondiscrimination policy statements apply?

  • Collectively, these nondiscrimination policy statements will apply to acquisitions awards (i.e. contracts) and assistance awards (i.e. grants, cooperative agreements) to for-profit and nonprofit organizations.  Further negotiations would be required to apply these policy statements to instruments involving government-to-government assistance, public international organizations (PIOs), or interagency agreements.

Upon their respective effective dates, will the new language be incorporated into new acquisitions (i.e., contracts) and assistance (i.e., grants, cooperative agreements) awards?

  • Yes.

Will the nondiscrimination policy statements flow down to subcontracts and subawards?

  • Yes, the nondiscrimination policy statements will flow down and will apply to all subcontracts and subawards at any tier.  Contractors will be expected to include the clause in all subcontracts, and assistance awards (i.e., grant, cooperative agreement) recipients will be expected to include the provision in all subawards and contracts.

Upon becoming effective, will this language be found in RFPs, RFAs, etc.?

  • Yes.

How will the language impact acquisitions and assistance awards executed prior to the release of this policy statement?

  • The clause/provision will not be incorporated retroactively into the existing awards.  However, USAID’s development approach remains unchanged.  Regardless of the execution date of an acquisitions/assistance award, USAID’s inherent principle is that all beneficiaries should be able to participate in USAID programs (no matter where they are located) without discrimination, whether or not this is explicitly stated in the award.

OPERATIONAL IMPACT

Do these policy statements on nondiscrimination for access to services for beneficiaries have any impact on the Agency’s expectations of the nondiscrimination policies applicable to employees of contractors and awardees?

  • This policy statement is not related to existing Federal and Agency policies and/or Executive Orders on the employment practices of implementers of USAID programs.  Executive Order 13672 and the Federal Acquisition Regulation (FAR) part 22 prohibit Federal contractors and subcontractors performing or recruiting in the United States from discriminating on a variety of bases (including race, color, religion, sex, sexual orientation, gender identity, and national origin) in their employment practices.  For USAID contractors and subcontractors performing overseas, USAID has a nondiscrimination clause in effect which strongly encourages them to develop and enforce nondiscrimination policies that provide similar protections for their employees.  An equivalent provision exists in USAID operational policy for grants and cooperative agreements, and addresses nondiscrimination in employment by USAID implementing partners, including for their subawards and contracts, performing both in the U.S. and overseas.

How will the policy statement impact the operations of new and existing partners with whom USAID works?

  • Any new acquisitions or assistance award, irrespective of whether the partner concerned is a new or existing partner, will contain this language.  The policy statement does not represent a change in USAID’s approach to development but rather explicitly articulates an inherent, longstanding principle and USAID practice and expectation that all beneficiaries should be able to participate in USAID programs without discrimination.  Therefore, the operations of any partner operating according to USAID’s principles should not be impacted.

Will there be any proactive actions that partners need to take to prove compliance with these policy statements?  (i.e., Will an implementing partner and/or recipient be expected to state and/or certify compliance as a standard business practice?)

  • No.  By entering into any new acquisitions or assistance award, the partner agrees to the terms and conditions thereof, including this policy statement.

What additional reporting requirements or monitoring/evaluation expectations will be associated with these policy statements?

  • No additional reporting requirements or monitoring/evaluation expectations are associated with these policy statements.  Consistent with award terms and conditions, USAID may request information to ensure compliance with the terms and conditions of USAID-funded acquisitions and assistance awards.

OVERSIGHT & ENFORCEMENT

What are the consequences of noncompliance with this policy statement?

  • As is the case with other terms or conditions of USAID-funded acquisitions or assistance awards, in the event of noncompliance USAID will seek appropriate remedies as specified in the award terms and conditions.

What mechanism is currently in place to register a complaint of noncompliance with these policy statements?

  • Reports of noncompliance with any of the terms or conditions of a USAID-funded acquisitions or assistance award should be directed to the appropriate USAID official, typically the relevant Contracting Officer/Agreement Officer (CO/AO) or the Contracting Officer’s Representative/Agreement Officer’s Representative (COR/AOR).  Additionally, complaints of waste, fraud, or abuse, including mismanagement or violations of law, rules, or regulations may be made to the USAID Inspector General (IG), as appropriate.

How will USAID address/investigate complaints of noncompliance with this policy statement?

  • Following receipt of claims of noncompliance with any of the terms or conditions of USAID funded acquisitions or assistance awards the CO/AO or COR/AOR, as appropriate, will follow the Agency policies for reporting the alleged noncompliance.  If the claim is substantiated, USAID will seek appropriate remedies for noncompliance as specified above.  Complaints directed to the USAID IG will be resolved though the IG investigatory process.

OTHER

How will these policy statements impact assistance instruments/contracts for projects that target assistance to specific communities?

  • These policy statements do not limit the ability of a recipient or contractor to target assistance to certain populations as defined in the acquisitions or assistance award of a USAID-funded program.  It does remind implementing partners that they are bound by the terms of their awards, which identify the intended beneficiaries.  It has been USAID’s longstanding practice and policy to provide assistance based on need, without further distinctions based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, disability, age, genetic information, marital status, parental status, political affiliation or veteran’s status.

Is there a process for applying for a waiver/exemption to these policy statements?

  • The nondiscrimination policy statements explicitly articulate an inherent, longstanding principle that all beneficiaries should be able to participate in USAID programs without discrimination.  As such, there is no waiver/exemption or process for applying for a waiver/exemption from these policy statements.

Last updated: December 27, 2016

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