Standard Provisions for Non-U.S. Nongovernmental Organizations

Standard Provisions for Nongovernmental Organizations

A Mandatory Reference for ADS Chapter 303

Partial Revision Date: 05/22/2017
Responsible Office:  M/OAA/P
File Name: 303mab_052217

Excerpts:

PAGE 12

M6. USAID ELIGIBILITY RULES FOR PROCUREMENT OF COMMODITIES AND SERVICES (JUNE 2012)

1. Ineligible Commodities and Services. The recipient must not, under any circumstances, procure any of the following under this award:
   1. Military equipment,
   2. Surveillance equipment,
   3. Commodities and services for support of police or other law enforcement activities,
   4. Abortion equipment and services,
   5. Luxury goods and gambling equipment, or
   6. Weather modification equipment.
2. Ineligible Suppliers. Any firms or individuals that do not comply with the requirements in Standard Provision “Debarment and Suspension” and Standard Provision “Preventing Terrorist Financing” must not be used to provide any commodities or services funded under this award.
3. Restricted Commodities. The recipient must obtain prior written approval of the Agreement Officer (AO) or comply with required procedures under an applicable waiver, as provided by the AO when procuring any of the following commodities:
   1. Agricultural commodities,
   2. Motor vehicles,
   3. Motor vehicles,
   4. Pharmaceuticals,
   5. Pesticides,
   6. Used equipment,
   7. U.S. Government-owned excess property, or
   8. Fertilizer.

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M16. VOLUNTARY POPULATION PLANNING ACTIVITIES – MANDATORY REQUIREMENTS (MAY 2006)

1. Requirements for Voluntary Sterilization Programs
   1. Funds made available under this award must not be used to pay for the performance of involuntary sterilization as a method of family planning or to coerce or provide any financial incentive to any individual to practice sterilization.
2. Prohibition on Abortion-Related Activities:
   1. No funds made available under this award will be used to finance, support, or be attributed to the following activities: (i) procurement or distribution of equipment intended to be used for the purpose of inducing abortions as amethod of family planning; (ii) special fees or incentives to any person to coerce or motivate them to have abortions; (iii) payments to persons to perform abortions or to solicit persons to undergo abortions; (iv) information, education, training, or communication programs that seek to promote abortion as a method of family planning; and (v) lobbying for or against abortion. The term “motivate,” as it relates to family planning assistance, must not be construed to prohibit the provision, consistent withlocal law, of information or counseling about all pregnancy options.
   2. No funds made available under this award will be used to pay for any biomedical research which relates, in whole or in part, to methods of, or the performance of, abortions or involuntary sterilizations as a means of family planning. Epidemiologic or descriptive research to assess the incidence, extent, or consequences of abortions is not precluded.

[END OF PROVISION]

M17. EQUAL PARTICIPATION BY FAITH-BASED ORGANIZATIONS (JUNE 2016)

1. Faith-Based Organizations Encouraged

   Faith-based organizations are eligible, on the same basis as any other organization, to participate in any USAID program for which they are otherwise eligible. Neither USAID nor entities that make and administer subawards of USAID funds shall discriminate for or against an organization on the basis of the organization’s religious character or affiliation. Additionally, religious organizations shall not be disqualified from participating in USAID programs because such organizations are motivated or influenced by religious faith to provide social services, or because of their religious character or affiliation.

   Decisions about awards of USAID financial assistance must be free from political interference or even the appearance of such interference. Awards must be made on the basis of merit, not the basis of the religious affiliation of an applicant, or lack thereof. A faith-based organization may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, within the limits contained in this provision. For more information, see the USAID Faith- Based and Community Initiatives Web site and 22 CFR 205.1.

2. Explicitly Religious Activities Prohibited.
   1. Explicitly religious activities include activities that involve overt religious content such as worship, religious instruction, prayer, or proselytization.
   2. The recipient must not engage in explicitly religious activities as part of the programs or services directly funded with financial assistance from USAID. If the recipient engages in explicitly religious activities, the activities must be offered separately, in time or location, from any programs or services directly funded by this award, and participation must be voluntary for beneficiaries of the programs or services funded with USAID assistance.
   3. These restrictions apply equally to religious and secular organizations. All organizations that participate in USAID programs, as recipients or subawardees, including religious ones, must carry out eligible activities in accordance with all program requirements and other applicable requirements governing USAID- funded activities.
   4. Notwithstanding the restrictions of b.(1) and (2), a religious organization that participates in USAID-funded programs or services:
      1. May retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct financial assistance from USAID to support or engage in any explicitly religious activities or in any other manner prohibited by law;
      2. May use space in its facilities, without removing religious art, icons, scriptures, or other religious symbols; and
      3. May retains its authority over its internal governance, and may retain religious terms in its organization’s name, select its board members on a religious basis, and include religious references in its organization's mission statements and other governing documents.
3. Implementation in accordance with the Establishment Clause: Nothing in this provision shall be construed as authorizing the use of USAID funds for activities that are not permitted by Establishment Clause jurisprudence or otherwise by law.
4. Discrimination Based on Religion Prohibited: The recipient must not, in providing services, discriminate against a program beneficiary or potential program beneficiary on the basis of religion or religious belief, refusal to hold a religious belief or a refusal to attend or participate in a religious practice.
5. A religious organization's exemption from the Federal prohibition on employment discrimination on the basis of religion, set forth in Sec. 702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e–1 is not forfeited when the organization receives financial assistance from USAID.
6. The Secretary of State may waive the requirements of this section in whole or in part, on a case-by-case basis, where the Secretary determines that such waiver is necessary to further the national security or foreign policy interests of the United States.
7. This provision must be included in all subawards under this award.

[END OF PROVISION]

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RAA22. VOLUNTARY POPULATION PLANNING ACTIVITIES – SUPPLEMENTAL REQUIREMENTS (JANUARY 2009)

APPLICABLITY: This provision is applicable to all awards involving any aspect of voluntary population planning activities.

VOLUNTARY POPULATION PLANNING ACTIVITIES – SUPPLEMENTAL REQUIREMENTS (JANUARY 2009)

1. Voluntary Participation and Family Planning Methods:
   1. The recipient agrees to take any steps necessary to ensure that funds made available under this award will not be used to coerce any individual to practice methods of family planning inconsistent with such individual's moral, philosophical, or religious beliefs. Further, the recipient agrees to conduct its activities in a manner which safeguards the rights, health, and welfare of all individuals who take part in the program.
   2. Activities which provide family planning services or information to individuals, financed, in whole or in part, under this award, must provide a broad range of family planning methods and services available in the country in which the activity is conducted or must provide information to such individuals regarding where such methods and services may be obtained.
2. Requirements for Voluntary Family Planning Projects
   1. A family planning project must comply with the requirements of this paragraph.
   2. A project is a discrete activity through which a governmental or nongovernmental organization or Public International Organization (PIO) provides family planning services to people and for which funds obligated under this award, or goods or services financed with such funds, are provided under this award, except funds solely for the participation of personnel in short-term, widely attended training conferences or programs.
   3. Service providers and referral agents in the project must not implement or be subject to quotas or other numerical targets of total number of births, number of family planning acceptors, or acceptors of a particular method of family planning. Quantitative estimates or indicators of the number of births, acceptors, and acceptors of a particular method that are used for the purpose of budgeting, planning, or reporting with respect to the project are not quotas or targets under this paragraph, unless service providers or referral agents in the project are required to achieve the estimates or indicators.
   4. The project must not include the payment of incentives, bribes, gratuities or financial rewards to (i) any individual in exchange for becoming a family planning acceptor, or (ii) any personnel performing functions under the project for achieving a numerical quota or target of total number of births, number of family planning acceptors, or acceptors of a particular method of contraception. This restriction applies to salaries or payments paid or made to personnel performing functions under the project if the amount of the salary or payment increases or decreases based on a predetermined number of births, number of family planning acceptors, or number of acceptors of a particular method of contraception that the personnel affect or achieve.
   5. A person must not be denied any right or benefit, including the right of access to participate in any program of general welfare or health care, based on the person’s decision not to accept family planning services offered by the project.
   6. The project must provide family planning acceptors comprehensible information about the health benefits and risks of the method chosen, including those conditions that might render the use of the method inadvisable and those adverse side effects known to be consequent to the use of the method. This requirement may be satisfied by providing information in accordance with the medical practices and standards and health conditions in the country where the project is conducted through counseling, brochures, posters, or package inserts.
   7. The project must ensure that experimental contraceptive drugs and devices and medical procedures are provided only in the context of a scientific study in which participants are advised of potential risks and benefits.
   8. With respect to projects for which USAID provides, or finances the contribution of, contraceptive commodities or technical services and for which there is no subaward or contract under this award, the organization implementing a project for which such assistance is provided must agree that the project will comply with the requirements of this paragraph while using such commodities or receiving such services.
   9. 1. The recipient must notify USAID when it learns about an alleged violation in a project of the requirements of subparagraphs b.(3), b.(4), b.(5), or b.(7).
      2. The recipient must investigate and take appropriate corrective action, if necessary, when it learns about an alleged violation in a project of subparagraph b.(6) and must notify USAID about violations in a project affecting a number of people over a period of time that indicate there is a systemic problem in the project.
      3. The recipient must investigate and take appropriate corrective action, if necessary, when it learns about an alleged violation in a project of subparagraph b.(6) and must notify USAID about violations in a project affecting a number of people over a period of time that indicate there is a systemic problem in the project.
      4. The recipient must provide USAID such additional information about violations as USAID may request.
3. Additional Requirements for Voluntary Sterilization Programs
   1. Funds made available under this award must not be used to pay for the performance of involuntary sterilization as a method of family planning or to coerce or provide any financial incentive to any individual to practice sterilization.
   2. The recipient must ensure that any surgical sterilization procedures supported, in whole or in part, by funds from this award are performed only after the individual has voluntarily appeared at the treatment facility and has given informed consent to the sterilization procedure. Informed consent means the voluntary, knowing assent from the individual after being advised of the surgical procedures to be followed, the attendant discomforts and risks, the benefits to be expected, the availability of alternative methods of family planning, the purpose of the operation and its irreversibility, and the option to withdraw consent any time prior to the operation. An individual's consent is considered voluntary if it is based upon the exercise of free choice and is not obtained by any special inducement or any element of force, fraud, deceit, duress, or other forms of coercion or misrepresentation.
   3. Further, the recipient must document the patient's informed consent by (i) a written consent document in a language the patient understands and speaks, which explains the basic elements of informed consent, as set out above, and which is signed by the individual and by the attending physician or by the authorized assistant of the attending physician; or (ii) when a patient is unable to read adequately a written certification by the attending physician or by the authorized assistant of the attending physician that the basic elements of informed consent above were orally presented to the patient, and that the patient thereafter consented to the performance of the operation. The receipt of this oral explanation must be acknowledged by the patient's mark on the certification and by the signature or mark of a witness who speaks the same language as the patient.
   4. The recipient must retain copies of informed consent forms and certification documents for each voluntary sterilization for a period of three years after performance of the sterilization procedure.
4. Prohibition on Abortion-Related Activities:
   1. No funds made available under this award will be used to finance, support, or be attributed to the following activities: (i) procurement or distribution of equipment intended to be used for the purpose of inducing abortions as a method of family planning; (ii) special fees or incentives to any person to coerce or motivate them to have abortions; (iii) payments to persons to perform abortions or to solicit persons to undergo abortions; (iv) information, education, training, or communication programs that seek to promote abortion as a method of family planning; and (v) lobbying for or against abortion. The term “motivate,” as it relates to family planning assistance, must not be construed to prohibit the provision, consistent with local law, of information or counseling about all pregnancy options.
   2. No funds made available under this award will be used to pay for any biomedical research which relates, in whole or in part, to methods of, or the performance of, abortions or involuntary sterilizations as a means of family planning. Epidemiologic or descriptive research to assess the incidence, extent or consequences of abortions is not precluded.
5. The recipient must insert this provision in all subsequent subagreements, including subawards and contracts, involving family planning or population activities that will be supported, in whole or in part, from funds under this award.

[END OF PROVISION]

RAA23. CONSCIENCE CLAUSE IMPLEMENTATION (ASSISTANCE) (FEBRUARY 2012)

APPLICABILITY: This provision must be included in any new assistance award or amendment to an existing award (if not already incorporated into the agreement) obligating FY04 or later funds made available for HIV/AIDS activities, regardless of the program account.  Further guidance is found in AAPD 14-04, Section 2.D.

CONSCIENCE CLAUSE IMPLEMENTATION (ASSISTANCE) (FEBRUARY 2012)

An organization, including a faith-based organization, that is otherwise eligible to receive funds under this agreement for HIV/AIDS prevention, treatment, or care—

1. Shall not be required, as a condition of receiving such assistance—
   1. To endorse or utilize a multisectoral or comprehensive approach to combating HIV/AIDS; or
   2. To endorse, utilize, make a referral to, become integrated with, or otherwise participate in any program or activity to which the organization has a religious or moral objection; and
2. Shall not be discriminated against in the solicitation or issuance of grants, contracts, or cooperative agreements for refusing to meet any requirement described in paragraph (a) above.

[END OF PROVISION]

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RAA29. PROTECTING LIFE IN GLOBAL HEALTH ASSISTANCE (MAY 2017)

APPLICABLITY: This provision is applicable to those awards using federal funding predictably for international health activities with a primary purpose or effect of benefitting a foreign country, typically funded from the GHP, ESF, AEECA, or successor accounts, as applicable, including awards reported on under the Health category of the Foreign Assistance Standardized Program Structure, except those under program area HL.8, Water Supply and Sanitation, the American Schools and Hospitals Abroad Program, or programs funded by Food for Peace. This provision applies whenever implementation of the activity involves assistance to or implemented by foreign non-governmental organizations.

PROTECTING LIFE IN GLOBAL HEALTH ASSISTANCE (MAY 2017)`

1. Ineligibility of Foreign Non-governmental Organizations that Perform or Actively Promote Abortion as a Method of Family Planning

   is provision is in two parts: I, applicable to foreign non-governmental organizations; and II, applicable to U.S. non-governmental organizations. Both part I and part II should be included in awards.

   1. Grants and Cooperative Agreements with Foreign Non-governmental Organizations
      1. The recipient agrees that it will not, during the term of this award, perform or actively promote abortion as a method of family planning in foreign countries or provide financial support to any other foreign non-governmental organization that conducts such activities. For purposes of this paragraph (a), a foreign non- governmental organization is a for-profit or not-for-profit non-governmental organization that is not organized under the laws of the United States, any State of the United States, the District of Columbia, or the Commonwealth of Puerto Rico, or any other territory or possession of the United States.  
      2. The recipient agrees that authorized representatives of USAID may, at any reasonable time, announced or unannounced, consistent with 2 CFR Part 200: (i) inspect the documents and materials maintained or prepared by the recipient in the usual course of its operations that describe the health activities of the recipient, including reports, brochures, and service statistics; (ii) observe the health activities conducted by the recipient, (iii) consult with healthcare personnel of the recipient; and (iv) obtain a copy of audited financial statements or reports of the recipient, as applicable.
      3. In the event USAID has reasonable cause to believe that the recipient may have violated its undertaking not to perform or actively promote abortion as a method of family planning, the recipient must make available to USAID such books and records and other information as USAID may reasonably request to determine whether a violation of that undertaking has occurred, consistent with 2 CFR Part 200.
      4. Health assistance furnished to the recipient under this award must be terminated if the recipient violates any undertaking required by this paragraph (a), and the recipient must refund to USAID any unexpended amounts furnished to the recipient under this award, plus an amount equivalent to that used by the recipient to perform or actively promote abortion as a method of family planning while receiving funding under this award. The amount to be refunded to USAID under this subparagraph (4) may not exceed the total amount of health assistance furnished under this award.
      5. The recipient may not furnish health assistance under this award to another foreign non-governmental organization (the subrecipient) unless: (i) subrecipient agrees, by entering into such subaward, that it does not perform or actively promote abortion as a method of family planning in foreign countries and will not provide financial support to any other foreign non-governmental organization that conducts such activities; and (ii) such foreign non-governmental organization’s agreement contains the same terms and conditions as described in subparagraph (6) below.  
      6.  Prior to entering into an agreement to furnish health assistance to a foreign non-governmental organization under this award, the recipient must ensure that such agreement with the subrecipient includes the following terms:
         1. The subrecipient will not, while receiving assistance under this award, perform or actively promote abortion as a method of family planning in foreign countries or provide financial support to other foreign non-governmental organizations that conduct such activities;
         2. The recipient and authorized representatives of USAID may, at any reasonable time, announced or unannounced, consistent with 2 CFR Part 200: (A) inspect the documents and materials maintained or prepared by the subrecipient in the usual course of its operations that describe the health activities of the subrecipient, including reports, brochures, and service statistics;  (B)  observe  health  activities  conducted  by  the  subrecipient; (C) consult with healthcare personnel of the subrecipient; and (D) obtain a copy of audited financial statements or reports of the subrecipient, as applicable;  
         3.  In the event that the recipient or USAID has reasonable cause to believe that a subrecipient may have violated its undertaking not to perform or actively promote abortion as a method of family planning, the recipient will review the health program of the subrecipient to determine whether a violation of such undertaking has occurred. The subrecipient must make available to the recipient such books and records and other information as may be reasonably requested to conduct the review. USAID may review the health program of the subrecipient under these circumstances, and the subrecipient must provide access on a timely basis to USAID to such books and records and other information upon request, consistent with 2 CFR Part 200;
         4. Health assistance provided to the subrecipient under this award must be terminated if the subrecipient violates any award terms under subparagraphs (6)(i)-(iii), above, and the subrecipient must refund to the recipient any unexpended amounts furnished to the subrecipient under this award, plus an amount equivalent to that used by the subrecipient to perform or actively promote abortion as a method of family planning while receiving funding under this award, up to the total amount of health assistance furnished to the subrecipient under this award; and
         5. The subrecipient may furnish health assistance under this award to another foreign non-governmental organization only if: (A) such foreign non- governmental organization agrees, by entering into such agreement, that it will not perform or actively promote abortion as a method of family planning in foreign countries and will not provide financial support to any other foreign non-governmental organization that conducts such activities, and (B) such foreign non-governmental organization’s agreement contains the same terms and conditions as those provided by the subrecipient to the recipient as described in subparagraphs (6)(i)-(iv), above
      7. Where the terms and conditions of the award require USAID approval of subawards, the recipient must include a description of the due diligence performed by the recipient on the subrecipient before furnishing health assistance under this award.
      8. The recipient is liable to USAID for a refund for a violation by the subrecipient of any requirement of this paragraph (a) only if: (i) the recipient knowingly furnishes health assistance under this award to a subrecipient that performs or actively promotes abortion as a method of family planning, or (ii) the subrecipient did not abide by its award terms required by subparagraphs (6)(i)-(iii), above, and the recipient failed to make reasonable due diligence efforts prior to furnishing health assistance to the subrecipient, or (iii) the recipient knows or has reason to know, by virtue of the monitoring that the recipient is required to perform under the terms of this award, that a subrecipient has violated any of the award terms required by subparagraphs (6)(i)-(iii), above, and the recipient fails to terminate health assistance to the subrecipient, or fails to require the subrecipient to terminate assistance furnished under a subaward that violates any award terms required by subparagraphs (6)(i)-(iii), above.
      9. The recipient acknowledges that USAID may make independent inquiries in the community served by the recipient or a subrecipient under this award regarding whether it performs or actively promotes abortion as a method of family planning.
      10. The following definitions apply for purposes of paragraph (a):
          1.  Abortion is a method of family planning when it is for the purpose of spacing births. This includes, but is not limited to, abortions performed for the physical or mental health of the mother and abortions performed for fetal abnormalities, but does not include abortions performed if the life of the mother would be endangered if the fetus were carried to term or abortions performed following rape or incest.
          2. “To perform abortions” means to operate a facility where abortions are provided as a method of family planning. Excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, post-abortion care.
          3. “To actively promote abortion” means for an organization to commit resources, financial or other, in a substantial or continuing effort to increase the availability or use of abortion as a method of family planning.
             1. This includes, but is not limited to, the following activities:
                1. Operating a service-delivery site that provides, as part of its regular program, counseling, including advice and information, regarding the benefits and/or availability of abortion as a method of family planning;
                2. Providing advice that abortion as a method of family planning is an available option or encouraging women to consider abortion (passively responding to a question regarding where a safe, legal abortion may be obtained is not considered active promotion if a woman who is already pregnant specifically asks the question, she clearly states that she has already decided to have a legal abortion, and the healthcare provider reasonably believes that the ethics of the medical profession in the host country requires a response regarding where it may be obtained safely and legally);
                3. Lobbying a foreign government to legalize or make available abortion as a method of family planning or lobbying such a government to continue the legality of abortion as a method of family planning; and
                4. Conducting a public information campaign in foreign countries regarding the benefits and/or availability of abortion as a method of family planning.
             2. Excluded from the definition of active promotion of abortion as a method of family planning are referrals for abortion as a result of rape or incest, or if the life of the mother would be endangered if she were to carry the fetus to term. Also excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, post- abortion care. 
             3. Action by an individual acting in the individual’s capacity shall not be attributed to an organization with which the individual is associated, provided that the individual is neither on duty nor acting on the organization’s premises, and the organization neither endorses nor provides financial support for the action and takes reasonable steps to ensure that the individual does not improperly represent that he or she is acting on behalf of the organization.
          4. Furnishing health assistance to a foreign non-governmental organization includes the transfer of funds made available under this award or goods or services financed with such funds, but does not include the purchase of goods or services from an organization or the participation of an individual in the general training programs of the recipient or subrecipient.
          5. To “control” an organization means to possess the power to direct, or cause the direction of, the management and policies of an organization.
      11.  In determining whether a foreign non-governmental organization is eligible to be a recipient or subrecipient of health assistance under this award, the action of separate non-governmental organizations shall not be imputed to the recipient or subrecipient, unless, in the judgment of USAID, a separate non-governmental organization is being used purposefully to avoid the provisions of this paragraph (a). Separate non-governmental organizations are those that have distinct legal existence in accordance with the laws of the countries in which they are organized. Foreign organizations that are separately organized shall not be considered separate, however, if one is controlled by the other. The recipient may request the USAID Agreement Officer’s approval to treat as separate the health activities of two or more organizations, which would not be considered separate under the preceding sentence. The recipient must provide a written justification to USAID that the health activities of the organizations are sufficiently distinct to warrant not imputing the activity of one to the other.
      12. Health assistance may be furnished under this award by a recipient or subrecipient to a foreign government or parastatal even though the government or parastatal includes abortion in its health program, provided that no such assistance may be furnished under this award in support of the abortion activity of the government or parastatal and any funds transferred to the government or parastatal must be placed in a segregated account to ensure that such funds may not be used to support the abortion activity of the government or parastatal.
      13. For the avoidance of doubt, in the event of a conflict between a term of this paragraph (a) and an affirmative duty of a healthcare provider required under local law to provide counseling about and referrals for abortion as a method of family planning, compliance with such law shall not trigger a violation of this paragraph (a).
   2. Grants and Cooperative Agreements with U.S. Non-governmental Organizations 
      1. The recipient (A) agrees that it will not furnish health assistance under this award to any foreign non-governmental organization that performs or actively promotes abortion as a method of family planning in foreign countries; and (B) further agrees to require that such subrecipients do not provide financial support to any other foreign non-governmental organization that conducts such activities. For purposes of this paragraph (a), a foreign non-governmental organization is a for-profit or not-for-profit non-governmental organization that is not organized under the laws of the United States, any State of the United States, the District of Columbia, or the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
      2. Prior to entering into an agreement to furnish health assistance to a foreign non-governmental organization (subrecipient) under this award, the recipient must ensure that such agreement with the subrecipient includes the following terms:
         1. The subrecipient will not, while receiving assistance under this award, perform or actively promote abortion as a method of family planning in foreign countries or provide financial support to other foreign non-governmental organizations that conduct such activities;
         2. The recipient, and authorized representatives of USAID may, at any reasonable time, announced or unannounced, consistent with 2 CFR Part 200: (A) inspect the documents and materials maintained or prepared by the subrecipient in the usual course of its operations that describe the health activities of the subrecipient, including reports, brochures, and service statistics; (B) observe the health activities conducted by the subrecipient; (C) consult with healthcare personnel of the subrecipient; and (D) obtain a copy of audited financial statements or reports of the subrecipient, as applicable;
         3.  In the event that the recipient or USAID has reasonable cause to believe that a subrecipient may have violated its undertaking not to perform or actively promote abortion as a method of family planning, the recipient will review the health program of the subrecipient to determine whether a violation of such undertaking has occurred. The subrecipient must make available to the recipient such books and records and other information as may be reasonably requested to conduct the review. USAID may review the health program of the subrecipient under these circumstances, and the subrecipient must provide access on a timely basis to USAID to such books and records and other information upon request, consistent with 2 CFR part 200;
         4. Health assistance provided to the subrecipient under this award must be terminated if the subrecipient violates any award terms required by subparagraphs (2)(i)-(iii), above, and the subrecipient must refund to the recipient any unexpended amounts furnished to the subrecipient under this award, plus an amount equivalent to that used by the subrecipient to perform or actively promote abortion as a method of family planning while receiving funding under this award, up to the total amount of health assistance furnished to the subrecipient under this award; and
         5.  The subrecipient may furnish health assistance under this award to another foreign non-governmental organization only if: (A) such foreign non- governmental organization agrees, by entering into such agreement, that it will not perform or actively promote abortion as a method of family planning in foreign countries and will not provide financial support to any other foreign non-governmental organization that conducts such activities; and (B) such foreign non-governmental organization’s agreement contains the same terms and conditions as those provided by the subrecipient to the recipient as described in subparagraphs (2)(i)-(iv), above.
      3. Where the terms and conditions of the award require USAID approval of subawards, the recipient must include a description of the due diligence performed by the recipient on the subrecipient before furnishing health assistance under this award.
      4.  The recipient is liable to USAID for a refund for a violation by the subrecipient of any requirement of this paragraph (a) only if: (i) the recipient knowingly furnishes health assistance under this award to a subrecipient that performs or actively promotes abortion as a method of family planning; or (ii) the subrecipient did not abide by its award terms required by subparagraphs (2)(i)-(iii), above, and the recipient failed to make reasonable due diligence efforts prior to furnishing health assistance to the subrecipient; or (iii) the recipient knows or has reason to know, by virtue of the monitoring that the recipient is required to perform under the terms of this award, that a subrecipient has violated any of the award terms required by subparagraphs (2)(i)-(iii), above, and the recipient fails to terminate health assistance to the subrecipient, or fails to require the subrecipient to terminate assistance furnished under a subaward that violates any award terms required by subparagraphs (2)(i)-(iii), above.
      5. The recipient acknowledges that USAID may make independent inquiries in the community served by a subrecipient under this award regarding whether such subrecipient performs or actively promotes abortion as a method of family planning.
      6. The following definitions apply for purposes of this paragraph (a):
         1. Abortion is a method of family planning when it is for the purpose of spacing births. This includes, but is not limited to, abortions performed for the physical or mental health of the mother and abortions performed for fetal abnormalities, but does not include abortions performed if the life of the mother would be endangered if the fetus were carried to term or abortions performed following rape or incest.
         2. “To perform abortions” means to operate a facility where abortions are provided as a method of family planning. Excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, post-abortion care.
         3. “To actively promote abortion” means for an organization to commit resources, financial or other, in a substantial or continuing effort to increase the availability or use of abortion as a method of family planning.
            1. This includes, but is not limited to, the following activities:
               1. Operating a service-delivery site that provides, as part of its regular program, counseling, including advice and information, regarding the benefits and/or availability of abortion as a method of family planning;
               2. Providing advice that abortion as a method of family planning is an available option or encouraging women to consider abortion (passively responding to a question regarding where a safe, legal abortion may be obtained is not considered active promotion if a woman who is already pregnant specifically asks the question, she clearly states that she has already decided to have a legal abortion, and the healthcare provider reasonably believes that the ethics of the medical profession in the host country requires a response regarding where it may be obtained safely and legally);
               3. Lobbying a foreign government to legalize or make available abortion as a method of family planning or lobbying such a government to continue the legality of abortion as a method of family planning; and
               4. Conducting a public-information campaign in foreign countries regarding the benefits and/or availability of abortion as a method of family planning.
            2. Excluded from the definition of active promotion of abortion as a method of family planning are referrals for abortion as a result of rape or incest, or if the life of the mother would be endangered if she were to carry the fetus to term. Also excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, post- abortion care. 
            3. Action by an individual acting in the individual’s capacity shall not be attributed to an organization with which the individual is associated, provided that the individual is neither on duty nor acting on the organization’s premises, and the organization neither endorses nor provides financial support for the action and takes reasonable steps to ensure that the individual does not improperly represent that he or she is acting on behalf of the organization.
         4. Furnishing health assistance to a foreign non-governmental organization includes the transfer of funds made available under this award or goods or services financed with such funds, but does not include the purchase of goods or services from an organization or the participation of an individual in the general training programs of the recipient or subrecipient.
         5. To “control” an organization means to possess the power to direct, or cause the direction of, the management and policies of an organization.
      7. In determining whether a foreign non-governmental organization is eligible to be a subrecipient of health assistance under this award, the action of separate non-governmental organizations shall not be imputed to the sub-ecipient, unless, in the judgment of USAID, a separate non-governmental organization is being used purposefully to avoid the provisions of this paragraph (a). Separate non- governmental organizations are those that have distinct legal existence in accordance with the laws of the countries in which they are organized. Foreign organizations that are separately organized shall not be considered separate, however, if one is controlled by the other. The recipient may request the USAID Agreement Officer’s approval to treat as separate the health activities of two or more organizations, which would not be considered separate under the preceding sentence. The recipient must provide a written justification to USAID that the health activities of the organizations are sufficiently distinct to warrant not imputing the activity of one to the other.
      8. Health assistance may be furnished under this award by a recipient or subrecipient to a foreign government or parastatal even though the government or parastatal includes abortion in its health program, provided that no such assistance may be furnished under this award in support of the abortion activity of the government or parastatal and any funds transferred to the government or parastatal must be placed in a segregated account to ensure that such funds may not be used to support the abortion activity of the government or parastatal.
      9. For the avoidance of doubt, in the event of a conflict between a term of this paragraph (a) and an affirmative duty of a healthcare provider required under local law to provide counseling about and referrals for abortion as a method of family planning, compliance with such law shall not trigger a violation of this paragraph (a).
2. This provision shall be inserted verbatim in subawards in accordance with the termsof paragraph (a).

[END OF PROVISION]