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G E N E R A L      S E C R E T A R I A T

EXECUTIVE ORDER No. 86-1
SUBJECT: PERFORMANCE CONTRACTS (CPRs)

 

THE SECRETARY GENERAL,

In exercise of the powers conferred upon him by article 115 of the Charter and articles 8, 11, and 95 of the General Standards, and

CONSIDERING:

That the Secretary General is authorized to initiate, award, and execute performance contracts under Articles 11, 67, and 71 of the General Standards, and

That the existing rules, regulations, and operational procedures governing CPRs require substantial revision and modification to satisfy the current needs of the General Secretariat,

RESOLVES:

I. RULES FOR PERFORMANCE CONTRACTS

That the Rules for Performance Contracts appended to this Executive Order shall apply to all CPRs in the General Secretariat.

II. AMENDMENTS AND REPEALS

This Executive Order supersedes all present norms, rules, regulations, and practices of the General Secretariat to the contrary and expressly repeals Executive Order 84-3 and Secretary General Memorandum No. 170/84, D-16.

III. EFFECT

This Executive Order shall take effect on the date on which it is signed.

 

Joao Clemente Baena Soares
Secretary General

 

Date: May 5, 1986
Original: English
Attachments

51571/241

APPENDIX
RULES FOR PERFORMANCE CONTRACTS
TABLE OF CONTENTS

I. THE NATURE OF THE PERFORMANCE CONTRACT: DEFINITIONS AND CONCEPTS

I.1 Performance Contract (CPR)

I.2 Parties

I.3 Differences Between Staff Members and Independent Contractors

II. AUTHORITY TO CONTRACT

II.1 Authority of the Secretary General

II.2 Delegated Authority and Responsibility

II.3 Subdelegation of Authority and Responsibility to Directors of Offices of the General Secretariat in Member States

II.4 Applicable Rules

III. PROHIBITIONS

III.1 Prohibitions Related to Persons

III.2 Prohibitions Related to Time

III.3 Prohibitions Related to Cost and Fund Availability

III.4 Prohibitions Related to Nature of Activities

III.5 Prohibitions Related to Corrections, Amendments, Modifications, and Extensions

IV. RESPONSIBILITIES AND LIABILITIES OF STAFF MEMBERS INVOLVED WITH INITIATING, AWARDING, AND EXECUTING CPRs

IV.1 Conflict of Interest

IV.2 Responsibilities

IV.3 Liabilities and Disciplinary Measures

V. RESPONSIBILITIES OF INDEPENDENT CONTRACTORS

V.1 Legal Responsibilities

V.2 Proprietary Rights

V.3 Information and Files

V.4 Emoluments

V.5 Quality of Performance

V.6 Work Permits

V.7 Status

V.8 OAS Travel Document

V.9 Travel Arrangements

V.10 Check In With National Offices

VI. PAYMENT

VI.1 Level of Compensation

VI.2 Time of Payment

VI.3 Certification

VI.4 Evaluation for Final Payment

VI.5 Local Currency

VII. SETTLEMENT OF DISPUTES ARISING FROM PERFORMANCE CONTRACTS

VII.1 Arbitration

VII.2 Judicial Recourse

VIII. TERMINATION OF CPRs

VIII.1 Termination for Cause

VIII.2 Termination for Unforeseen Circumstances

VIII.3 Termination Disputes

IX. IMPLEMENTATION AND ADMINISTRATION

IX.1 Regulations

IX.2 Administration

IX.3 Legal Review

X. EXEMPTIONS AND EXCEPTIONS

XI. PUBLIC NOTICE

 

APPENDIX

RULES FOR PERFORMANCE CONTRACTS

 

 

I. THE NATURE OF THE PERFORMANCE CONTRACT:

 

DEFINITIONS AND CONCEPTS

I.1 Performance Contract (CPR). A CPR is an agreement to obtain a specific service, product or result for approved programs and projects in areas of specialization in which the General Secretariat does not have internal staff resources available.

I.2 Parties. The parties to a CPR are the General Secretariat and an independent contractor.

a. An independent contractor is a natural or legal person who, in the pursuit of an independent business, renders specific services to the General Secretariat using his own means and methods Without subordinating himself to General Secretariat staff members' control over the specific details of his work and services.

b. A Consultant is an independent contractor who is a natural person contracted in an advisory or consultative capacity to a member government or in a project of the General Secretariat in a member state or the General Secretariat.

I.3 Differences Between Staff Members and Independent Contractors.

a. Exclusivity. Staff members are subject to Staff Rules that prevent them from taking other remunerative employment without the Secretary General's express permission. An independent contractor may work for as many employers as he has the means to serve.

b. Remuneration. A staff member is paid a monthly salary in accordance with time and attendance reports. An independent contractor's remuneration is linked specifically to the service, product, or result that is the object of the performance contract. Payment may be based upon the completion of various stages of the service, product, or result, or upon time expended for that purpose, as certified by a staff member of the General Secretariat, and is rendered upon the presentation of an invoice (see Chapter VI).

c. Other Emoluments. The General Secretariat provides social security, including health insurance, vacation leave, sick leave, tax reimbursement and retirement benefits to eligible staff members. An independent contractor receives no tax reimbursements and must furnish all such benefits, where required by law or otherwise, for himself and his employees.

d. Subordination. The General Secretariat may exercise complete supervision and control over the details of the work performed by a staff member. Supervision and control over an independent contractor does not extend to the details of work performance but is directed to ensuring that the desired service, product, or result is obtained within an established time frame and in accordance with quality standards. An independent contractor may not supervise an OAS staff member or direct a project or mission that includes OAS staff members.

e. Assignment. A staff member may not assign his employment contract, or parts thereof, to another. An independent contractor may, if permitted under his contract, exercise rights of assignment.

f. Work Schedule. A staff member must observe regular working hours as determined by the Staff Rules. An independent contractor establishes his own working hours as required to complete the particular service, product, or result within the time frame specified by the contract.

g. Legal Personality. All staff members must be natural persons. An independent contractor may be either a legal or a natural person.

h. Duties and Obligations. Staff members must subscribe to the General Secretariat's loyalty oath and observe certain standards of conduct as established in the Staff Rules. Independent Contractors and their employees take no such loyalty oath and are not bound to adhere to the Staff Rules of the General Secretariat. They are expected, however, to observe certain standards of conduct in the performance of their contracts, as set forth in Chapter V of these Rules.

II. AUTHORITY TO CONTRACT

II.1 Authority of the Secretary. The Secretary General is authorized to negotiate, award, and execute CPRs under articles 11, 67, and 71 of the General Standards.

II.2 Delegated Authority and Responsibility. The Secretary General delegates to the Assistant Secretary General, the Executive and Assistant Secretaries, the Directors of Offices of the General Secretariat in Member States and the Director General of the Inter-American Children's Institute the authority to initiate, award, and execute CPRs in their respective areas, in accordance with the following guidelines:

Amount of CPR Authorization Level Authorization Level

Up to US$ 3,000 Directors of Offices of the General Secretariat in Member States against their Office Accounts only

Up to US$ 20,000 Assistant Secretary General, Executive and Assistant Secretaries, Director General of the Inter-American Children's Institute

Over US$ 20,000 Secretary General

II.3 Contracting Authority of Directors of Offices of the General Secretariat in Member States against accounts other than their office accounts. The Secretary General, the Assistant Secretary General, and the Executive and Assistant Secretaries may authorize the Directors of Offices of the General Secretariat in Member States to initiate, award and execute CPRs oh their behalf of up to US$ 3,000. For each CPR, such authorizations must be conveyed in advance and in writing by memorandum, letter or telex.

II.4 Applicable Rules. All delegation of authority under this Executive Order shall be subject to Chapter IV, "Delegation of Authority and Responsibility and Accountability" of the Budgetary and Financial Rules of the General Secretariat (OEA/Ser.P, AG/INF.62/76, May 12, 1976). Under these rules, the person receiving the Authority also assumes responsibility for the exercise of the authority.

III. PROHIBITIONS

III.1 Prohibitions Related to Persons.

a. No CPR shall be awarded to the following:

(1) A staff member of the General Secretariat;

(2) Any person who has held the post of Secretary General or Assistant Secretary General, or a position of trust unless he has ceased to hold such post for at least two years;

(3) Any delegate, diplomatic representative, or other government employee of a member state;

(4) Any relative of a staff member of the General Secretariat, a relative of a representative or delegate of a member state, or a relative of any other person involved directly in the execution of OAS projects;

(5) Any person who has entered into a CPR terminated by the General Secretariat for cause under Chapter VIII.1 of these Rules;

(6) Any person employed by an institution that is receiving funds from the OAS as part of an OAS project;

(7) Any person either legally incompetent, on trial in a criminal court of any of the member states, or convicted of a serious criminal offense in one of the member states;

(8) Any person who has defaulted on and/or failed to perform satisfactorily an existing or previous CPR;

(9) Any person who does not have a valid visa to work in the country where the CPR is to be performed;

(10) A national of the country in which the CPR is to be performed, unless approved by the responsible Executive Secretary, in accordance with Executive Order No. 81-4.

b. Notwithstanding the above prohibitions a government of a member state may be awarded a CPR provided all of the following conditions are satisfied:

(1) The employee is authorized in writing by his government to accept the proposed CPR;

(2) The services will not be performed for the country that employs the expert; and

(3) The Department of Human Resources concludes that there is no conflict of interest.

c. For the purposes of these Rules, the term "relative" shall mean spouse, son or daughter, stepson or stepdaughter, father or mother, stepfather or stepmother, brother or sister, half brother or half sister, stepbrother or stepsister, father- or mother-in-law, son- or daughter-in-law, brother- or sister-in-law.

III.2 Prohibitions Related to Time.

a. No independent contractor may perform any work or service for the General Secretariat on a CPR prior to signing the contract forms.

b. No CPR based on length of time shall normally exceed a period of one year.

c. No CPR, whether in original or amended form, shall have retroactive effect.

d. No CPR shall be extended or renewed as such. In all cases, a new contract document that satisfies the requirements for a CPR under these Rules shall be executed.

e. No independent contractor shall be awarded more than one CPR during a given period of time if it is deemed that the additional contract will adversely affect his performance on any other contract.

III.3 Prohibitions Related to Cost and Fund Availability.

a. The cost of the CPR is the amount to be paid for the service or product required under the contract and shall not exceed the value of such service or product.

b. Compensation provided under a CPR must be consistent with OAS guidelines provided by the Assistant Secretary for Management.

c. No CPR for more than US$ 50,000 shall be awarded without prior review by the Assistant Secretary for Legal Affairs. For this purpose, an additional CPR to the same independent contractor for identical functions shall be considered as one contract.

d. No CPR shall be awarded unless it complies with the approved budget and the required funds are available.

III.4 Prohibitions Related to Nature of Activities.

No CPR shall be awarded for activities customarily performed by General Secretariat staff members.

III.5 Prohibitions Related to Corrections, Amendments, Modifications, and Extensions. Changes to proposed or on-going CPRs (due to corrections, amendments, modifications, and extensions) shall be processed in accordance with the Rules contained herein and the procedures governing them in the performance contract procedures, issued in accordance with Chapter IX.

IV. RESPONSIBILITIES AND LIABILITIES OF STAFF MEMBERS INVOLVED WITH INITIATING, AWARDING, AND EXECUTING CPRs

IV.1 Conflict of Interest.

a. No staff member who owns or has any title, stock, share, interest, or other proprietary right in a firm, enterprise, or any other business entity that furnishes the General Secretariat with a product or service under a CPR shall participate in any capacity in the requisitioning, initiation, award, or execution of such contracts of the General Secretariat.

b. The policies with respect to Ethics of Conduct and Conflicts of Interest set forth in Executive Order No. 85-2 and Administrative Memorandum No. 58, rev. 1 shall be strictly observed by all staff members engaged in negotiating, awarding, or executing CPRs.

IV.2 Responsibilities. Staff members duly authorized to initiate, award, or execute contracts shall:

a. Obtain the most desirable terms of price, quality, and delivery in accordance with the interests of the General Secretariat.

b. Follow the procedures established in the performance contract procedures, issued in accordance with Chapter IX.

IV.3 Liabilities and Disciplinary Measures.

a. Any staff member who participates in the initiation, award, or execution of a CPR without the appropriate authority, as required in these Rules, shall make restitution to the General Secretariat for the entire amount of that contract.

b. In the event that a CPR is invalidated by fraud, negligence, or bad faith on the part of any staff member participating in its initiation, award, or execution, that staff member shall be personally liable for any damages incurred by the General Secretariat resulting from the contract and shall personally make full restitution to the General Secretariat for those damages.

c. Any staff member who fails to observe the prohibitions set forth in Chapter III of these Rules, the conflict of interest policies set forth in Executive Order No. 85-2 and Administrative Memorandum No. 58, rev. 1, or any other provisions of these Rules, shall be subject to the disciplinary procedures set forth in Staff Rules. All disciplinary measures provided for under these Rules are cumulative and not mutually exclusive.

V. RESPONSIBILITIES OF INDEPENDENT CONTRACTORS

V.1 Legal Responsibilities.

a. An independent contractor shall accept legal responsibility for all services or products required under a CPR together with liability for any damages or claims arising from such services or products. Each independent contractor must agree to hold the General harmless from all such claims.

b. An independent contractor may not legally represent the General Secretariat or sign commitments binding the OAS.

c. Other than payment for his services, an independent contractor shall not receive, disburse and/or otherwise handle OAS funds.

V.2 Proprietary Rights. An independent contractor shall not have any title, copyright, patent, or other proprietary rights in any services or products produced under a CPR. All such rights shall lie with the General Secretariat unless otherwise provided in the contract. Any CPR that conveys such rights to the contractor must be expressly approved in writing by the Secretary General.

V.3 Information and Files. All information, files, and documents belonging to the General Secretariat and used by an independent contractor in the performance of the contract shall remain the property of the General Secretariat. Such information, files, and documents, and copies thereof, may not be retained by an independent contractor beyond the termination date of the contract unless otherwise provided in the contract. An independent contractor shall not use such information, files, and documents for any purpose other than completion of his obligations under the contract.

V.4 Emoluments. The General Secretariat shall not be responsible for furnishing social security, worker's compensation, health, accident and life insurance, vacation leave, sick leave, or any other such emoluments for the independent contractor and/or his employees for the term of the contract. The independent contractor bears the responsibility for providing all such emoluments. As a matter of convenience, the General Secretariat may, however, use its good offices to arrange for a private insurance carrier to offer health and life insurance coverage directly to independent contractors. Contracts for such coverage are strictly between the insurance carrier and the independent contractor, and the independent contractor is, therefore, responsible for any and all costs. Coverage offered under these circumstances shall in no way be a part of or associated with any health or life insurance plan provided General Secretariat staff members.

V.5 Quality of Performance. Each independent contractor shall perform the work and services required under the contract in accordance with the highest professional standards and shall conform to all applicable laws, regulations, and ordinances pertaining to such performance.

V.6 Work Permits. The independent contractor, if a natural person, shall have the appropriate work permits required by the member states in which he is to perform the contract. If the independent contractor is a legal person, such as a corporation or partnership, it shall not employ any person in the performance of the contract who does not have the appropriate work permits for the member state or states in which the contract is to be carried out. Required work permits must be obtained prior to traveling to member states.

V.7 Status. Any natural or legal person who performs services under a CPR shall have the legal status of an independent contractor and shall not have any right or claim to status, including immunities and privileges, as a staff member of the General Secretariat.

V.8 OAS Travel Document. A person providing services under a CPR will, upon application, be permitted to use the OAS Official Travel Document in accordance with the provisions regulating this document, provided such use is required for completion of the contract and is permitted under the agreements between the OAS and the member states where the work is to be performed. Use of the OAS Official Travel Document will be limited in all instances to the duration of the CPR.

V.9 Travel Arrangements. The General Secretariat will not be responsible for travel, visa, or customs arrangements related to or required for the performance of any CPRs issued pursuant to these Regulations. Each independent contractor shall have the sole responsibility for securing such arrangements as required. Nevertheless, the office of the General Secretariat located in the member state in which the independent contractor resides or performs the work may facilitate and assist in obtaining the necessary visas.

V.10 Notification of travel and arrival. To insure proper coordination, the official authorizing a CPR shall notify the Director of the Office of the General Secretariat in Member States in advance of the planned arrival of independent contractor personnel in the member state. Likewise, the independent contractor shall notify the Director of the Office of the General Secretariat in Member States as soon as is practically possible of his arrival in the member state.

VI. PAYMENT

VI.1 Level of Compensation. Compensation shall be based on the nature of the service or product rendered in accordance with guidelines provided by the Assistant Secretary for Management.

VI.2 Time of Payment.

a. Payment is to be made upon presentation of the independent contractor's invoice and certification by an authorizing official that the service or product has been satisfactorily provided as stipulated in the contract. Payment for a contract terminated under Chapter VIII of the Rules shall be made in accordance with the termination provisions contained in each contract.

b. The contract may provide for progress payments upon the completion of stages or phases of the work required under the contract. It may also provide for an advance, not to exceed 30 percent of the amount of the contract, plus travel costs if included in the contract, so that the independent contractor may meet start-up and other initial expenses.

VI.3 Certification. No payment, other than the initial advance, shall be made without the appropriate certification either by the staff member of the General Secretariat responsible for the program or project under which the service or product has been contracted, or by the national institution to which the service or product is rendered.

VI.4 Evaluation for Final Payment. Upon completion of a CPR, certification for final payment must be accompanied by an evaluation of the service or product received signed by the official authorizing the contract.

VI.5 Local Currency. While the amount of a CPR may be expressed either in United States dollars or in the official currency of the member state concerned, a performance contract with an independent contractor whose services are to be provided in the country of which he is a national and resident must state that the payments shall be made in the official currency of that state. If the contract has been expressed in dollars, the conversion shall be made at the rate of exchange utilized by the OAS on the day of payment.

VII. SETTLEMENT OF DISPUTES ARISING FROM PERFORMANCE CONTRACTS

VII.1 Arbitration.

a. Any and all disputes arising out of, related to, or pertaining to a CPR shall be settled through generally accepted arbitration procedures except as otherwise provided in the contract.

b. CPRs with contractors domiciled in or having offices in the United States of America may provide for arbitration by either the American Arbitration Association or the Inter-American Commercial Arbitration in accordance with the appropriate procedures.

c. CPRs With independent contractors who neither are domiciled nor have offices in the United States of America shall provide for arbitration by the Inter-American Commercial Arbitration Commission in accordance with its procedures.

d. Unless otherwise specified in the CPR, at the discretion of the Secretary General, all arbitration shall be final and binding on the parties.

VII.2 Judicial Recourse. Any CPR that does not require final and binding arbitration must be approved by the Secretary General and shall contain the appropriate choice-of-law and choice-of-forum clauses.

VIII. TERMINATION OF CPRs

VIII.1 Termination for Cause.

a. Cause for termination of a CPR includes, but is not limited to, failure to adhere to the provisions of the contract; failure to perform work or service in accordance with professional standards; failure to meet deadlines; failure to conform to the standards for independent contractors under these Rules; conduct incommensurate with the requirements of a participant in OAS activities; or conduct that could damage relations between the OAS and the government of a member state.

b. Termination of a CPR for cause, shall be in writing with five days notice.

VIII.2 Termination for Unforeseen Circumstances.

a. Either party may terminate a CPR for unforeseen circumstances by giving at least thirty days notice in writing to the other. In cases where the CPR is awarded for less than one month, five days notice is required.

b. For purposes of this Rule, unforeseen circumstances include, but are not limited to, changes in the Program-Budget of the OAS; lack of approved funds in the Program-Budget; an act of God; or a member state's desire to discontinue a service it has been receiving. For SDAF projects, an unforeseen circumstance may include failure of the Member State for which the CPR is being performed to comply with Article 11 of the SDAF statutes after the CPR has been awarded. For FEMCIECC projects, an unforeseen circumstance may include failure of the Member State for which the CPR is being performed to comply with Article 29 of the Resolution of Maracay.

VIII.3 Termination Disputes. All disputes that arise out of the termination of any CPR and which cannot be remedied by agreement between the parties shall be subject to the provisions of Chapter VII of these Rules.

IX. IMPLEMENTATION AND ADMINISTRATION

IX.1 Regulations.

a. The Assistant Secretary for Management shall issue by Administrative Memorandum regulations establishing the administrative procedures for initiating, awarding, executing, supervising, and processing CPRs in accordance with these Rules.

b. The Assistant Secretary for Legal Affairs shall review those regulations before they are published to ensure their consistency with these Rules.

IX.2 Administration. The Department of Human Resources, in accordance with Executive Order No.82-6, shall administer the rules and regulations governing CPRs, coordinate the processing of such contracts, and review and report on the allocation of CPRs with respect to geographic distribution among member states.

IX.3 Legal Review. The Assistant Secretary for Legal Affairs shall provide legal review of CPRs in accordance with Chapters III.3 (b) and VII.2 of these Rules, and as otherwise needed.

X. EXEMPTIONS & EXCEPTIONS

X.1 Exemptions. The contracting of free-lance interpreters, translators, and other specialized conference staff by the Secretariat to the General Assembly, the Meeting of Consultation, the Permanent Council and Conferences, in accordance with Administrative Memorandum No. 54 rev. 3, dated February 14, 1980, shall be exempt from the provisions of this Executive Order.

X.2 Exceptions. Exceptions to these Rules with regard to any CPR, unless otherwise provided for herein, are permissible only if authorized in writing by the Secretary General. Each request for an exception shall be submitted to the Secretary General in writing and shall contain a clear statement of the reasons requiring the exception sought.

XI. PUBLIC NOTICE

Details concerning the awarding of every CPR will be published in the Bulletin of the Office of the Secretary General.