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Diplomacy in Action

V. Evaluation of the Use of "Notwithstanding" Authority


U.S. Government Assistance to and Cooperative Activities with Eurasia
Bureau of European and Eurasian Affairs
January 2003
Report
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In FY 2002, the U.S. Government continued to use "notwithstanding" authority to respond to unanticipated needs and to provide assistance to the Eurasian states. While U.S. Government agencies have been careful to limit their use of "notwithstanding" authority for Eurasian assistance programs, this authority has given them the flexibility to carry out their respective missions in the difficult working environment of the Eurasian countries. Provided below are descriptions of uses of "notwithstanding" authority during FY 2002:

AGENCY  DATE ACTIVITY AMOUNT
USAID Throughout FY 2002 Personal Services Contracts Various

USAID exercised "notwithstanding" authority throughout FY 2002 to waive legislation prohibiting federal agencies from employing individuals under personal services contracts (PSCs) to work in Washington. Since USAID-Washington has substantial management responsibilities for Eurasian programs, it has been necessary for the Bureau for Europe and Eurasia to employ Washington-based PSCs, especially technical specialists, to ensure adequate program management.

AGENCY  DATE ACTIVITY AMOUNT
U.S. Department of State Throughout FY 2002 Cooperative Grants Various

Throughout FY 2002, the Humanitarian Programs Division of the Office of the Coordinator of U.S. Assistance to Europe and Eurasia (EUR/ACE) exercised "notwithstanding authority" to award non-competitive follow-on grants to the following U.S. private voluntary organizations (PVOs) to provide continued emergency and transitional assistance to the Eurasian countries: Counterpart International, CitiHope, United Methodist Committee on Relief (UMCOR), Heart-to-Heart, International Relief and Development (IRD), Project Hope, A Call to Serve, Global Transitions and the World Council of Hellenes. EUR/ACE uses "notwithstanding authority" to meet emergency needs on a real-time basis, providing critically needed emergency commodities to displaced and/or suffering populations in partnership with U.S. PVOs in places like Azerbaijan, Georgia, Tajikistan, the North Caucasus, Ukraine and the Russian Far East.

AGENCY  DATE ACTIVITY AMOUNT
U.S. Department of State September 5, 2002 Moldovan Humanitarian Assistance $530,000

USAID, in consultation with the State Department, exercised "notwithstanding" authority to rehabilitate a prison hospital in Moldova to avert a potential tuberculosis (TB) epidemic. Funds provided were used to make needed physical improvements to a hospital in order to turn it into the detention center for TB infected prisoners. The program will improve prisoner health conditions through medical treatment and monitoring and a nine-month, limited duration nutrition supplement program to support directly observed treatment, short-course (DOTS). Because section 660 of the FAA prohibits assistance to prisons, subject to a small number of exceptions that do not apply in this case, USAID used the notwithstanding authority provided by section 498(j) of the Foreign Assistance Act of 1961, as amended, in conjunction with Public Law 106-429 to effect payment of this debt.

AGENCY  DATE ACTIVITY AMOUNT
USAID FY 2002 Georgia Winter Heat
Assistance Program V
$10 million

USAID, in consultation with the State Department, exercised "notwithstanding" authority in the case of GWHAP V (Georgia Winter Heat Assistance Program V). Funds provided under GWHAP V were used to cover the current energy debts of the most vulnerable households and institutions to the electricity sector. The need for debt relief was based in part on the expectation that these people and institutions would be deprived of electricity (cut off) if their debts were not paid, resulting in unrest and a loss of critical services. Because payment of previous debts is not allowed by Federal Acquisition Regulation (FAR) sections 31.205-3 and 32.702, USAID used the notwithstanding authority provided by section 498(j) of the Foreign Assistance Act of 1961, as amended, in conjunction with Public Law 106-429 to effect payment of this debt.

AGENCY  DATE ACTIVITY AMOUNT
U.S. Department of State  Throughout FY 2002 International Narcotics and Law Enforcement police training Various

Throughout FY 2002, under FREEDOM Support Act funding and in consultation with the U.S. Coordinator of Assistance to Europe and Eurasia (EUR/ACE), the Department of State, Bureau of International Narcotics and Law Enforcement (INL) exercised "notwithstanding authority" to carry out programs which provide forms of assistance to police forces in the former Soviet Union generally prohibited by section 660 of the Foreign Assistance Act. These programs include support for counternarcotics efforts, procurement of equipment, basic police training, academy development and human rights training for police.

AGENCY  DATE ACTIVITY AMOUNT
U.S. Customs Service Throughout FY 2002 Export Control and Related Border Security (EXBS) Program Various

As the State Department's executive agent for significant portions of the Export Control and Related Border Security (EXBS) Program, the U.S. Customs Service (USCS), after consultation with the State Department, exercised "notwithstanding" authority for the following:

  • awarding a contract for urgently required purchase of 2 refurbished MI-8 helicopters for patrol of Kyrgyzstan's border from a single source, Aviaimpex, Limited, which had critical equipment available in time sensitive period and had familiarity with Russian aviation technology and training requirements.
  • expediting the procurement of a critical piece of Weapons of Mass Destruction detection equipment for Ukraine to address weapons proliferation threats at Ukraine's port of Odessa.

AGENCY  DATE ACTIVITY AMOUNT
U.S. Customs Service Throughout FY 2002 Georgia Border Security and Law Enforcement (BSLE) Program Various

As the State Department's executive agent for the Georgia Border Security and Law Enforcement (BSLE) Program, the U.S. Customs Service (USCS), after consultation with the State Department, used "notwithstanding" authority for the following:

  • expediting solicitation procedures in the award of a contract to a company immediately available and capable of providing an AN-28 aircraft and refurbishing 2 MI-8 helicopter engines needed urgently to ensure time sensitive ability to patrol Georgia's borders;
  • expediting the procurement, delivery and installation of converters and test equipment to repair and maintain aviation assets procured to quickly transport personnel and supplies to remote border posts.

AGENCY  DATE ACTIVITY AMOUNT
U.S. Department of State October 2001-August 2002 Assistance to the Government of Russia  Various

In May 2001, pursuant to an ongoing sanctions issue, the Coordinator of U.S. Assistance to Europe and Eurasia invoked notwithstanding authority to allow continued obligation of FREEDOM Support Act funds for assistance programs with the Government of Russia.



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