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Annex B: Evaluation of the Use of "Notwithstanding" Authority


U.S. Government Assistance to and Cooperative Activities with Eurasia
Bureau of European and Eurasian Affairs
January 2005
Report
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In FY 2004, 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 2004:

AGENCY

DATE

ACTIVITY

AMOUNT

USAID

Throughout FY 2004

Personal Services Contracts

Various

USAID exercised "notwithstanding" authority throughout FY 2004 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

USAID

Throughout FY 2004

Georgia Winter Heating Assistance Program (GWHAP)

Various

USAID exercised "notwithstanding authority" throughout FY 2004 to non-competitively expand the scope of an existing USAID contract with PA Consulting (implementing the USAID/Caucasus Georgia Energy Security Initiative (GESI) program), to permit activities that will implement the Georgia Winter Heating Assistance Program for 2004-2005 (GWHAP VII); and non-competitively obligate $3million of FY2004 carryover funds to increase the ceiling of the USAID contract with PA Consulting from $29.4 to $32.4 million to permit it to carry out the necessary GWAP VII activities.

AGENCY

DATE

ACTIVITY

AMOUNT

USAID, U.S. Department of State

Throughout FY 2004

Assistance to the Central Government of Uzbekistan

3.11 million

The Department of State and USAID exercised "notwithstanding authority" when the Secretary of State was not able to determine that the Government of Uzbekistan (GOU) was meeting the requirements of section 568(a) of the FY 2004 Foreign Operations Appropriations Act, which requires that the GOU make "substantial and continuing progress" in a number of areas, including democratic reform and human rights. Notwithstanding authority was invoked to allow the provision of certain types of U.S. assistance to the central GOU through the FY 2004 FREEDOM Support Act (FSA). Affected programs included technical assistance related to WTO accession and, health care reform, and activities to promote the proper treatment of detainees, and to combat HIV/AIDS, drug trafficking, and trafficking in persons.

AGENCY

DATE

ACTIVITY

AMOUNT

U.S. Department of Homeland Security, Bureau of Customs and Border Protection (CBP)

Throughout FY 2004

Export Control and Related Border Security (EXBS) Program

Various

As the State Department's executive agent for significant portions of the EXBS Program and after consultation with the State Department, CBP exercised "notwithstanding" authority to permit the Department of Homeland Security, U.S. Coast Guard, to procure a vehicle for the official use of the EXBS program maritime advisor assigned to Azerbaijan.

AGENCY

DATE

ACTIVITY

AMOUNT

U.S. Department of State

Throughout FY 2004

Cooperative Grants

Various

Throughout FY 2004, 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, and the World Council of Hellenes. EUR/ACE uses "notwithstanding authority" to provide critically needed commodities to displaced and/or suffering populations in partnership with U.S. PVOs throughout the Eurasian countries.

AGENCY

DATE

ACTIVITY

AMOUNT

U.S. Department of State

Throughout FY 2004

Administrative Contractual Support

Various

The Office of the Coordinator of U.S. Assistance to Europe and Eurasia (EUR/ACE) exercised "notwithstanding" authority throughout FY 2004 to waive legislation prohibiting federal agencies from contracting with individuals to work in Washington. Since EUR/ACE has substantial management responsibilities for Eurasian programs, it has been necessary for the Bureau for Europe and Eurasia to employ Washington-based contract support, especially technical specialists, to ensure adequate program management.

AGENCY

DATE

ACTIVITY

AMOUNT

U.S. Department of State

Throughout FY 2004

International Narcotics and Law Enforcement police training

Various

Throughout FY 2004, in consultation with the U.S. Coordinator of Assistance to Europe and Eurasia (EUR/ACE), the Bureau of International Narcotics and Law Enforcement (INL) Affairs exercised "notwithstanding authority" to implement FREEDOM Support Act-funded programs that provide assistance to police forces in the former Soviet Union, which is 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.



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