USAID may waive the rules contained in subparts A, B, and C of this part (except for prohibited sources as defined in §228.01, and §§228.21 and 228.22), in order to accomplish project or program objectives. Except for paragraph (e) of this section, for any waivers authorized, the principal geographic code shall be Code 935, any area or country but excluding prohibited sources. All waivers must be in writing, and where applicable, are limited to the term established by the waiver. All waiver decisions will be made solely on the basis of the following criteria:

(a) Waivers to permit procurement outside of Code 937 or 110 must be based on a case by case determination that:

(1) The provision of assistance requires commodities or services of the type that are not produced in and available for purchase in Code 937 or 110;

(2) It is important to permit procurement from a country not specified in Code 937 or 110 to meet unforeseen circumstance; or

(3) To promote efficiency in the use of United States foreign assistance resources, including to avoid impairment of foreign assistance objectives.

(b) Case by case waivers under paragraph (a) of this section may be made on the basis of a commodity or service type or category, rather than processing repeat, individual waivers for an identical or substantially similar commodity or service. Such waivers may be approved on a regional, country, or program basis. For purposes of paragraph (a)(1) of this section, “produced in and available for purchase in” shall have the same meaning as the definition of “available for purchase” in §228.01. A waiver under paragraph (a)(1) of this section may also be based on the fact that a commodity is not available for purchase in Code 937 or 110 in sufficient, reasonable, and available quantities or sufficient and reasonable quality that is fit for the intended purpose.

(c) A waiver to authorize procurement from outside the United States of agricultural commodities, motor vehicles, and pharmaceuticals must meet the requirements of §228.19.

(d) Any individual transaction not exceeding $25,000 (excluding essential medical supplies purchased to address the COVID-19 pandemic), excluding those covered by special procurement rules in §228.19, and excluding procurements from prohibited sources) does not require a waiver and is hereby authorized.

(e) For purchases of essential medical supplies to address the COVID-19 pandemic, waivers shall be authorized to the United States only, to the cooperating/recipient country, and/or to a nearby country. Nearby country means any bordering country or any country that is in the same geographical region as the country receiving assistance, as defined by the Department of State's regional system. If, as determined by USAID on a case by case basis, essential medical supplies are unavailable from the United States, the cooperating/recipient country, and a nearby country, or are unavailable in sufficient, reasonable, and available quantities or sufficient and reasonable quality that is fit for the intended purpose, procurement from Code 935 is authorized.

[85 FR 67445, Oct. 23, 2020]