[Federal Register: August 17, 2007 (Volume 72, Number 159)]
[Rules and Regulations]
[Page 46342-46345]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17au07-24]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 18
[FAC 2005-19; FAR Case 2005-038; Item VI; Docket 2006-0020; Sequence 5]
RIN 9000-AK50
Federal Acquisition Regulation; FAR Case 2005-038, Emergency
Acquisitions
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 to adopt the
interim rule published in the Federal Register at 71 FR 38247 on July
5, 2006, as a final rule with changes. The final rule amends the
Federal Acquisition Regulation (FAR) to provide a single reference to
acquisition flexibilities that may be used to facilitate and expedite
acquisitions of supplies and services during emergency situations.
DATES: Effective Date: September 17, 2007.
FOR FURTHER INFORMATION CONTACT Mr. William Clark, Procurement Analyst,
at (202) 219-1813 for clarification of content. For information
pertaining to status or publication schedules, contact the FAR
Secretariat at (202) 501-4755. Please cite FAC 2005-19, FAR case 2005-
038.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the FAR to provide a single reference to
acquisition flexibilities that may be used to facilitate and expedite
acquisitions of supplies and services during emergency situations.
DoD, GSA, and NASA published an interim rule in the Federal
Register at 71 FR 38247 on July 5, 2006, that created a new FAR Part 18
to provide a single reference to acquisition flexibilities available to
facilitate contracting during emergencies. Five sources submitted
comments on the interim rule. A discussion of those comments is
provided below.
(1) More detailed approach. Two commenters were very supportive of
the rule. However, one of those commenters recommended developing a
more detailed, comprehensive approach. The commenter also said
including the full text of every associated emergency authority could
be unwieldy and might be counterproductive to the ``ease of use'' goal.
Another commenter expressed support for the interim rule but
recommended developing more detailed, comprehensive coverage, including
guidance related to the proper administration and oversight of federal
spending.
Response: Repeating the full text of every emergency acquisition
flexibility in Part 18 would be redundant and difficult to maintain.
More detailed, comprehensive procedures are better suited to
guidebooks, not the acquisition regulations. The Councils note OFPP has
updated its guidance on emergency acquisition flexibilities. That
guidance includes more detailed, comprehensive procedures for emergency
acquisitions.
(2) Stress small business participation. Two commenters recommended
that the rule address the overall opportunities for small businesses in
emergency acquisitions instead of just addressing the additional
flexibilities unique to certain categories of small businesses (i.e.,
ability to award on a sole source basis to 8(a) firms, Historically
Underutilized Business Zone (HUBZone) small business
[[Page 46343]]
concerns, and service-disabled veteran-owned small business). The
commenter stated that all small businesses should enjoy the same
preferences under the rule to ensure the Government has access to the
broadest base of qualified small businesses, and recommended revising
the rule to encourage agencies to provide the maximum practicable
opportunities to all small businesses as required by Part 19.
Response: The rule is not intended to give preference to any
category of small businesses. However, it is intended to specify
contracting tools available in emergencies and lists those applicable
to certain small business categories. The Councils do not have the
authority to extend these preferences to all small business categories.
(3) Additional acquisition flexibilities. Two commenters
recommended referencing the additional flexibilities authorized by the
Local Community Recovery Act of 2006 (Pub. L. 109-218) in FAR Part 18,
noting that the Councils implemented the Local Community Recovery Act
of 2006 at 70 FR 44546 on August 4, 2006. One of those commenters also
recommended identifying the exceptions for mandatory sources of
supplies and services for Federal Prison Industries, Inc. (FPI) at FAR
8.605 because FPI is not a mandatory source when public exigency
requires immediate delivery or performance and certain other conditions
are met. The commenter also recommended identifying the exceptions for
Trade Agreements because the requirements of FAR 25.4, Trade
Agreements, do not apply to acquisitions awarded using other than full
and open competition (FAR Subparts 6.2 and 6.3) when the limitation of
competition would preclude use of the Free Trade procedures or sole
source acquisitions justified in accordance with FAR 13.501(a).
Response: The final rule addresses these additional acquisition
flexibilities.
(4) Reference Buy American Act. One commenter recommended revising
the rule to include a reference to the Buy American Act so contracting
officers have a ready reference to the requirements even though
emergency acquisitions are not exempt from the Buy American Act.
Response: The rule highlights additional acquisition flexibilities
that can be used to facilitate and expedite emergency acquisitions. The
rule is not intended to identify the acquisition policies and
procedures that are not unique to emergency acquisitions.
(5) Leasing motor vehicles. One commenter recommended revising the
rule to identify the ability to lease motor vehicles for a period of
less than 60 days without obtaining the certification required by FAR
8.1102(a) since this flexibility may be of interest in the immediate
response to an emergency.
Response: The rule does not identify the exception to the
certification because the exception is not affected by urgency. The
referenced certification is required unless the lease is for types of
motor vehicles that have been defined as fuel efficient or an agency
has established procedures for advance approvals for leases of larger
vehicles on a case-by-case basis.
(6) Javits-Wagner-O'Day. One commenter recommended revising FAR
18.106, Javits-Wagner-O'Day (JWOD) specification changes, to say
``contracting officers need not comply with the notification
requirements'' instead of ``contracting officers are not held to the
notification required.''
Response: The commenter provided no rationale to justify the
recommended change. The Councils believe the terminology used in the
rule sufficiently conveys the intent of the requirement and therefore,
did not revise the terminology.
(7) Other acquisition flexibilities. One commenter recommended
revising the rule to also address the following in FAR Part 18--
(a) FAR 6.302-1, Only One Responsible Source and No Other Supplies
or Services Will Satisfy Agency Requirements,
(b) FAR Part 12, Acquisition of Commercial Items,
(c) FAR Part 13, Simplified Acquisition Procedures,
(d) FAR Part 14, Sealed Bidding,
(e) FAR 16.505(a)(3), Use of performance based acquisition methods
to the maximum extent possible for orders under indefinite delivery
contracts,
(f) Applicable provisions of the Homeland Security Act of 2002, and
(g) Modification of existing contracts.
Response: The commenter did not specify why these items should be
addressed in FAR Part 18. The Councils are unaware of any additional
flexibilities in the referenced parts and sections that should be
addressed in Part 18. The authority under ``Only One Responsible Source
and No Other Supplies or Services Will Satisfy Agency Requirements'' is
a valid exception to competition whether an emergency is declared or
not. The use of FAR Part 12 procedures is not dependent on urgency. FAR
Part 13 is addressed in 18.109. FAR Part 14 would not lend itself to
Part 18, since sealed bidding procedures are extremely inflexible.
Performance based orders could be issued under indefinite delivery
contracts whether an emergency was declared or not. The Homeland
Security Act is addressed in FAR 18.204(a). Finally, modifying a
contract is not dependent on an emergency or public exigency.
(8) FAR supplements. One commenter asked whether DoD and the
military departments will need to develop supplemental coverage for
their FAR supplements.
Response: DOD and civilian agencies that have additional
acquisition flexibilities should address those in their FAR supplements
in accordance with agency procedures.
(9) DoD unique statutory acquisition limitations. One commenter
asked how DoD will ensure less experienced contracting officers are
aware of, and will follow, the DoD unique statutory acquisition
limitations such as the requirement imposed by Section 854 of the
National Defense Authorization Act for Fiscal Year 2005 (Public Law
107-107) which requires DoD agencies to comply with certain review and
approval requirements before using a non-DoD contract to procure
supplies or services in amounts exceeding the simplified acquisition
threshold. The commenter said contracting officers may rely on FAR Part
18 unaware that the Defense Federal Acquisition Regulation Supplement
(DFARS) includes additional statutory limitations on the acquisition of
supplies and services.
Response: FAR Part 18 is not a stand-alone document. Contracting
officers must follow all the applicable requirements in the parts and
sections cross referenced in Part 18.
(10) Emergency acquisition flexibilities not covered in FAR. One
commenter recommended modifying Part 18 to also address the emergency
acquisition flexibilities that are available to the United States
Agency International Development (USAID) and other civilian agencies
with foreign emergency responsibilities.
Response: As stated in the preamble to the interim rule, the rule
provides a single reference to the acquisition flexibilities already
available in the FAR. The international humanitarian and contingency
operation flexibilities are not already available in the FAR. Any
proposed FAR revisions to incorporate foreign emergency acquisition
flexibilities should be prepared and forwarded to the Civilian Agency
Acquisition Council in accordance with agency procedures.
(11) Defense Production Act and the Defense Priorities and
Allocations System. One commenter supported the
[[Page 46344]]
reference to the Defense Production Act and the Defense Priorities and
Allocations System (DPAS) in connection with emergency acquisitions
because contracting officers are not aware of this flexibility. The
commenter also recommended revising the rule to advise contracting
officers that DPAS can also be used for protection and restoration of
critical infrastructure pursuant to 50 U.S.C. App. 2152(14).
Response: The rule provides a single reference to the acquisition
flexibilities already available in the FAR. The changes referenced
above are not already available in the FAR and are therefore, beyond
the scope of this rule. However, the Councils will consider whether
additional changes are needed to implement the amended DPAS
Regulations.
(12) Miscellaneous. (a) One commenter recommended revising the
thresholds for the Davis Bacon Act and Service Contract Act to be
consistent with other emergency threshold increases instead of waiving
the requirements of these Acts during emergencies. The commenter said
increasing the thresholds would not require further legislation. Two
commenters recommended establishing pre-positioned contracts for
registered small businesses. These commenters said the pre-positioned
contracts should be open to all small businesses, and not just the ones
with additional emergency acquisition flexibilities. Two commenters
said the rule does not extend the same emergency acquisition
flexibilities to prime contractors. One commenter said the FAR and the
rule use multiple terms for urgent needs including ``urgent and
compelling needs,'' ``urgent and compelling,'' and ``unusual and
compelling urgency'' which is confusing. The commenter recommended
selecting and using one term consistently in the rule and throughout
the FAR. One commenter recommended supplementing FAR Part 18 with
guidance regarding hiring adequate staff to meet increased acquisition
demands, improving training for when and how to use emergency
flexibilities, and providing comprehensive contract administration and
oversight to reduce waste, fraud, and abuse during emergency
acquisitions.
Response: The rule provides a single reference to the acquisition
flexibilities already available in the FAR. The recommended policy
changes are not included in the FAR and are therefore, beyond the scope
of this rule. However, the Councils will consider the advisability of
pursuing these recommendations to ensure all appropriate flexibilities
are available to respond to emergency acquisitions.
(b) Two commenters recommended providing regulatory authority for
agencies to suspend small business contracting goals during the first
180 days following an emergency declaration or start of a contingency
operation because being able to contract with a firm that can do the
work should be the more urgent and compelling need in the immediate
aftermath of a domestic disaster or contingency operation.
Response: The small business contracting goal is statutory and the
Councils have no authority to suspend the program.
(13) OFPP Guidebook. One commenter said OFPP should promptly update
their May 2003 ``Guidance on the Use of Emergency Procurement
Flexibilities.''
Response: OFPP has updated the Guide.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 the rule makes no
change to contracting policy.
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 Part 18
Government procurement.
Dated: July 30, 2007.
Al Matera,
Acting Director, Contract Policy Division.
Interim Rule Adopted as Final With Changes
0
Accordingly, the interim rule amending 48 CFR part 18, which was
published in the Federal Register at 71 FR 38247, July 5, 2006, is
adopted as a final rule with changes.
PART 18--EMERGENCY ACQUISITIONS
0
1. The authority citation for 48 CFR part 18 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
0
2. Amend section 18.000 by adding paragraph (c) to read as follows:
18.000 Scope of part.
* * * * *
(c) Additional flexibilities may be authorized in an executive
agency supplement to the FAR.
18.117 through 18.124 [Redesignated as 18.119 through 18.126]
18.106 through 18.116 [Redesignated as 18.107 through 18.117]
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3. Redesignate sections 18.117 through 18.124 as 18.119 through 18.126,
respectively, and 18.106 through 18.116 as 18.107 through 18.117,
respectively.
18.106 and 18.118 [Added]
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4. Add new section 18.106 to read as follows:
18.106 Acquisitions from Federal Prison Industries, Inc. (FPI).
Purchase from FPI is not mandatory and a waiver is not required if
public exigency requires immediate delivery or performance (see
8.605(b)).
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5. Add new section 18.118 to read as follows:
18.118 Trade agreements.
The policies and procedures of FAR 25.4 may not apply to
acquisitions not awarded under full and open competition (see
25.401(a)(5)).
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6. Revise paragraph (b) of section 18.203 to read as follows:
18.203 Incidents of national significance, emergency declaration, or
major disaster declaration.
* * * * *
(b) Disaster or emergency assistance activities. Preference will be
given to local organizations, firms, and individuals when contracting
for major disaster or emergency assistance activities when the
President has made a declaration under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act. In addition, contracting officers
may set aside solicitations to allow only offerors residing or doing
business primarily in the area affected by such major disaster or
emergency to compete. (See Subparts 6.6 and 26.2.)
* * * * *
0
7. Amend section 18.204 by adding paragraph (b) to read as follows:
[[Page 46345]]
18.204 Resources.
* * * * *
(b) OFPP Guidelines. The Office of Federal Procurement Policy
(OFPP) ``Emergency Acquisitions Guide'' is available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.whitehouse.gov/omb/procurement/guides/emergency_acquisitions_guide.pdf
.
[FR Doc. 07-3797 Filed 8-16-07; 8:45 am]
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