[Federal Register: October 1, 2003 (Volume 68, Number 190)]
[Rules and Regulations]               
[Page 56681-56682]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc03-21]                         


[[Page 56681]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 10, 12, 13, 19, and 25

[FAC 2001-16; FAR Cases 2002-026 and 2002-003; Item IV]
RINS 9000-AJ54 and 9000-AJ40

 
Federal Acquisition Regulation; Procurements for Defense Against 
or Recovery From Terrorism or Nuclear, Biological, Chemical or 
Radiological Attack, and Temporary Emergency Procurement Authority

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to implement section 
836 of the Fiscal Year 2002 National Defense Authorization Act and 
sections 852 through 856 and section 858 of the Homeland Security Act. 
Those sections increase the amount of the micro-purchase threshold and 
the simplified acquisition threshold and provide expanded access to 
streamlined procedures for procurements of supplies or services by or 
for an executive agency that are to be used to facilitate defense 
against or recovery from terrorism or nuclear, biological, chemical, or 
radiological attack.

DATES: Effective Date: October 1, 2003.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-
6091. Please cite FAC 2001-16, FAR cases 2002-026 and 2002-003.

SUPPLEMENTARY INFORMATION:

A. Background

    FAR Case 2002-026, Procurements for Defense Against or Recovery 
From Terrorism or Nuclear, Biological, Chemical or Radiological Attack. 
An interim rule implementing sections 852 through 856 and section 858 
of the Homeland Security Act (Public Law 107-296) was published in the 
Federal Register at 68 FR 4048, January 27, 2003. The interim rule 
provided Federal emergency procurement flexibilities by increasing the 
amount of the micro-purchase threshold and the simplified acquisition 
threshold for procurements and provided expanded access to streamlined 
procedures for acquisitions of supplies or services by or for an 
executive agency that, as determined by the head of the executive 
agency, are to be used to facilitate defense against or recovery from 
terrorism or nuclear, biological, chemical, or radiological attack. The 
special increased thresholds and authorities under the Act apply to 
acquisitions resulting from solicitations issued before November 25, 
2003.
    A total of four comments from five commentors was received in 
response to the interim rule. Two commentors suggested that 
micropurchases should be subject to the small business reservation. 
This comment was not accepted.
    Micropurchase authority is designed to enable agencies to make 
purchases in a highly simplified manner, generally without application 
of provisions and clauses and with minimal application of Government-
unique requirements. While agencies should always actively consider the 
products and services of small businesses, irrespective of the size of 
the purchase, the Councils believe that imposition of a Government-
unique regulatory buying mandate is generally inconsistent with the 
overall purpose of micropurchase authority. The Councils note that 41 
U.S.C. 428(b) states that micro-purchases not be subject to the small 
business reservation: ``(b) Exclusion for micro-purchases. A purchase 
by an executive agency with an anticipated value of the micro-purchase 
threshold or less is not subject to section 15(j) of the Small Business 
Act (15 U.S.C. 644(j)) and the Buy American Act (41 U.S.C. 10a-10c).''
    Two commentors suggested that orders against GSA Schedules be 
subject to small business set-aside. This comment was not accepted as 
it was outside the scope of this case.
    One commentor suggested that FAR 10.001 be revised to include 
language from the statute requiring use of commercially available 
market research methods, including use of commercial databases. This 
comment was partially accepted and a change was made to FAR 10.002 to 
add querying commercial databases as a market research technique. The 
balance of the recommendation was not accepted because the regulation 
already provides for using various market research methods.
    This final rule finalizes the interim rule with the one change 
addressed above.
    FAR Case 2002-003, Temporary Emergency Procurement Authority. This 
final rule also finalizes the interim rule issued in the Federal 
Register at 67 FR 56116, August 30, 2002, to implement section 836 of 
the Fiscal Year 2002 National Defense Authorization Act. That interim 
rule increased the amount of the micropurchase threshold and the 
simplified acquisition threshold for procurements of supplies or 
services by or for DoD during Fiscal Years 2002 and 2003, where those 
procurements are to facilitate the defense against terrorism or 
biological or chemical attack against the United States. Also, the rule 
provided that contracting officers acquiring biotechnology supplies or 
biotechnology services, for use to facilitate the defense against 
terrorism or biological or chemical attack against the United States, 
may treat the supplies or services as commercial items. No comments 
were received in response to that interim rule.
    This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The rule may have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., because it affects the pool of 
acquisitions that are reserved for small businesses. We have prepared a 
Final Regulatory Flexibility Analysis. The analysis is summarized as 
follows:

    This rule finalizes two interim rules that amend the Federal 
Acquisition Regulation (FAR) to implement Section 836 of the Fiscal 
Year 2002 National Defense Authorization Act and Sections 852 
through 856 and Section 858 of the Homeland Security Act (Public Law 
107-296). Those sections increase the amount of the micro-purchase 
threshold and the simplified acquisition threshold and provide 
expanded access to streamlined procedures for procurements of 
supplies or services by or for an executive agency that are to be 
used to facilitate defense against or recovery from terrorism or 
nuclear, biological, chemical, or radiological attack. The rule 
affects the pool of acquisitions subject to the small business 
reservation by raising the threshold for application of the 
reservation for specified acquisitions to the increased micro-
purchase threshold (from $2,500 to $7,500/$15,000) and 
correspondingly increasing the limitation to the increased 
simplified acquisition threshold (from $100,000 to

[[Page 56682]]

$200,000/$250,000). No comments were received in response to the 
Initial Regulatory Flexibility Analysis for either case. The 
increased thresholds are limited to specified procurements. In 
addition, the special authorities are only available for a short 
period of time. There are no data available on the number of 
procurements that will be eligible. However, we expect the number of 
small entities that will be impacted by the increased thresholds to 
this limited class of procurements to be very small.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Parts 2, 10, 12, 13, 19, and 25

    Government procurement.

    Dated: September 24, 2003.
Laura G. Auletta,
Director, Acquisition Policy Division.

Interim Rules Adopted as Final With Changes

0
Accordingly, DoD, GSA, and NASA adopt the interim rules amending 48 CFR 
parts 2, 10, 12, 13, 19, and 25, which were published in the Federal 
Register at 67 FR 56116, August 30, 2002, and 68 FR 4048, January 27, 
2003, as a final rule with the following change:

PART 10--MARKET RESEARCH

0
1. The authority citation for 48 CFR part 10 is revised to read as 
follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).


10.002  [Amended]

0
2. Amend section 10.002 in paragraph (b)(2)(iv) by removing 
``Government'' and adding ``Government and commercial'' in its place.

[FR Doc. 03-24585 Filed 9-30-03; 8:45 am]