[Federal Register: December 20, 2004 (Volume 69, Number 243)]
[Rules and Regulations]
[Page 76350-76352]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de04-29]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 12, 13, and 15
[FAC 2001-26; FAR Case 2003-022; Item III]
RIN 9000-AJ88
Federal Acquisition Regulation; Special 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 to convert the
interim rule published in the Federal Register at 69 FR 8312, February
23, 2004, to a final rule with changes. The rule amends the Federal
Acquisition Regulation (FAR) to implement the special emergency
procurement authorities of Section 1443 of the Services Acquisition
Reform Act of 2003 (Pub. L. 108-136, Title XIV, codified at 41 U.S.C.
428a), and section 822 of the Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005.
Section 1443 increases the amount of the micro-purchase threshold
and the simplified acquisition threshold for procurements of supplies
or services by or for an executive agency that, as determined by the
head of the agency, are to be used in support of a contingency
operation or to facilitate the defense against or the recovery from
nuclear, biological, chemical or radiological attack. Section 822 of
the Fiscal Year 2005 Defense Authorization Act further increased the
threshold amounts for any contract to be awarded and performed, or
purchases to be made, outside the United States.
Also, under section 1443, the head of the contracting activity
carrying out a procurement of supplies or services to facilitate
defense against or recovery from nuclear, biological, chemical, or
radiological attack may treat such supplies or services as a commercial
item.
DATES: Effective Date:January 19, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (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 2001-26, FAR case 2003-022.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule implements Section 1443 of the Services Acquisition
Reform Act of 2003 (SARA) (41 U.S.C. 428a) and section 822 of the
Ronald W. Reagan National Defense Authorization Act for Fiscal Year
2005. Section 1443 increases the amount of the micro-purchase threshold
and the simplified acquisition threshold for procurements of supplies
or services by or for an executive agency that, as determined by the
head of the agency, are to be used in support of a contingency
operation or to facilitate the defense against or the recovery from
nuclear, biological, chemical or radiological attack. Section 1443 also
authorizes the expanded use of Simplified Acquisition and Commercial
Items procedures. Section 822 authorized a higher micro-purchase and
simplified acquisition threshold for any contract to be awarded and
performed, or purchases to be made, outside the United States, for the
same purposes as authorized under section 1443 of SARA.
DoD, GSA, and NASA published an interim rule in the Federal
Register at 69 FR 8312, February 23, 2004. The 60-day comment period
for the interim rule ended April 23, 2004. Three comments were
received; they are addressed below. Section 822 of the Fiscal Year 2005
Defense Authorization Act was enacted after publication of the interim
rule. As a result, this final rule incorporates the increased
thresholds provided by section 822.
One commenter recommended that the Councils seek a Governmentwide
waiver from the Secretary of Labor from application of FAR clauses
52.222-26, Equal Opportunity, and 52.222-36, Affirmative Action for
Workers With Disabilities, so that the purchase card could be used
without having to also issue a purchase order with these clauses. The
final rule does not adopt this suggestion because the FAR already
authorizes the agency head to waive the inclusion of these clauses when
deemed to be in the interest of national security (FAR 22.807(a)(1) and
22.1403(b), respectively).
The same commenter suggested that the final rule address the fact
that the Service Contract Act requires clauses in all service contracts
above $2,500. The final rule does not adopt this suggestion because
neither SARA nor the Fiscal Year 2005 Defense Authorization Act
suggested that these acquisitions are exempt from statutory
requirements.
Another commenter questioned why the interim rule did not include
contingency operations in the increased limitation on use of simplified
acquisition procedures, as authorized by Section 1443. The final rule
has been amended to include the procurement of commercial supplies and
services in support of contingency operations in the increased
limitation on use of simplified acquisition procedures. However,
services and supplies procured in support of a contingency operation
must meet the definition of a commercial item in FAR 2.101 for the
increased limitation to apply.
This is not a significant regulatory action and, therefore, is 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
This final 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. However, the
increased limitations are limited to procurements that are entered into
in support of a contingency operation or to facilitate the defense
against or the recovery from nuclear, biological, chemical or
radiological attack. There are no data available on the number of
procurements that will be eligible. We expect the increased thresholds
to this limited class of procurements will apply to a very small number
of small entities.
This final rule does not impose any data collection requirements on
small business concerns. The rule does not duplicate, overlap, or
conflict with other relevant Federal rules. There is no significant
alternative to the final rule that would accomplish the stated
beneficial objective.
The Councils prepared a Final Regulatory Flexibility Analysis
(FRFA) as follows:
1. Description of the reasons why action by the agency is being
considered. This final rule revises the Federal Acquisition
Regulation (FAR) in order to implement
[[Page 76351]]
Section 1443 of the Services Acquisition Reform Act of 2003 (41
U.S.C. 428a) and section 822 of the Ronald W. Reagan National
Defense Authorization Act for Fiscal Year 2005. Section 1443
increases the amount of the micro-purchase threshold and the
simplified acquisition threshold for procurements of supplies and
services to support a contingency operation or to facilitate defense
against or recovery from nuclear, biological, chemical, or
radiological attack. Section 822 increases the micro-purchase
threshold and simplified acquisition threshold for any contract to
be awarded and performed, or purchases to be made, outside the
United States.
2. Succinct statement of the objectives of, and legal basis for,
the final rule. This final rule implements Section 1443 of the
Services Acquisition Reform Act of 2003 (41 U.S.C. 428a) and section
822 of the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005.
3. Description of, and, where feasible, estimate of the number
of small entities to which the final rule will apply. The increased
thresholds are limited to procurements that are to support a
contingency operation or to facilitate defense against or recovery
from nuclear, biological, chemical, or radiological attack. 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. In addition, although not required by
the statute, the final rule raises the small business set-aside
ceilings for purchases made under the authority of Section 1443 of
the Services Acquisition Reform Act of 2003 (41 U.S.C. 428a).
Section 822 of the Ronald W. Reagan National Defense Authorization
Act for Fiscal Year 2005 is unlikely to affect small businesses in
the United States as it applies outside the United States.
4. Description of projected reporting, record keeping, and other
compliance requirements of the final rule, including an estimate of
the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record. There are no reporting, record
keeping, or other compliance requirements for this final rule.
5. Identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap, or conflict with the
final rule. This rule does not duplicate, overlap, or conflict with
other relevant Federal rules.
6. Description of any significant alternatives to the final
rule, which accomplish the stated objectives of applicable statutes
and which minimize any significant economic impact of the final rule
on small entities. There are no significant alternatives to the
final rule that would accomplish the stated objectives yet further
reduce impact on small entities. The rule includes only FAR text
revisions required to implement the statute.
The FAR Secretariat has submitted a copy of the Final Regulatory
Flexibility Analysis to the Chief Counsel for Advocacy of the Small
Business Administration. Interested parties may obtain a copy from the
FAR Secretariat. The Councils will consider comments from small
entities concerning the affected FAR subparts in accordance with 5
U.S.C. 610. Interested parties must submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAC 2001-26, FAR case 2003-022) in
correspondence.
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, 12, 13, and 15
Government procurement.
Dated: December 9, 2004.
Laura Auletta,
Director, Contract Policy Division.
Interim Rule Adopted as Final With Changes
0
Accordingly, DoD, GSA, and NASA adopt the interim rule amending 48 CFR
parts 2, 10, 12, 13, 15, 19, and 25 which was published in the Federal
Register at 69 FR 8312, February 23, 2004, as a final rule with the
following changes:
0
1. The authority citation for 48 CFR parts 2, 12, 13, and 15 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).
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by revising the definitions
``Micro-purchase threshold'' and ``Simplified acquisition threshold''
to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Micro-purchase threshold means $2,500, except it means--
(1) For construction subject to the Davis-Bacon Act, $2,000; and
(2) For acquisitions of supplies or services that, as determined by
the head of the agency, are to be used to support a contingency
operation or to facilitate defense against or recovery from nuclear,
biological, chemical, or radiological attack, as described in
13.201(g)(1), except for construction subject to the Davis-Bacon Act
(41 U.S.C. 428a)--
(i) $15,000 in the case of any contract to be awarded and
performed, or purchase to be made, inside the United States; and
(ii) $25,000 in the case of any contract to be awarded and
performed, or purchase to be made, outside the United States.
* * * * *
Simplified acquisition threshold means $100,000, except for
acquisitions of supplies or services that, as determined by the head of
the agency, are to be used to support a contingency operation or to
facilitate defense against or recovery from nuclear, biological,
chemical, or radiological attack (41 U.S.C. 428a), the term means--
(1) $250,000 for any contract to be awarded and performed, or
purchase to be made, inside the United States; and
(2) $1 million for any contract to be awarded and performed, or
purchase to be made, outside the United States.
* * * * *
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
3. Amend section 12.203 by revising the last sentence to read as
follows:
12.203 Procedures for solicitation, evaluation, and award.
* * * For acquisitions of commercial items exceeding the simplified
acquisition threshold but not exceeding $5 million ($10 million for
acquisitions as described in 13.500(e)), including options, contracting
activities shall employ the simplified procedures authorized by Subpart
13.5 to the maximum extent practicable.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
4. Amend section 13.000 by revising the second sentence to read as
follows:
13.000 Scope of part.
* * * Subpart 13.5 provides special authority for acquisitions of
commercial items exceeding the simplified acquisition threshold but not
exceeding $5 million ($10 million for acquisitions as described in
13.500(e)), including options. * * *
0
5. Amend section 13.003 by revising paragraphs (c)(1)(ii) and (g)(2) to
read as follows:
13.003 Policy.
* * * * *
(c)(1) * * *
(ii) $5 million ($10 million for acquisitions as described in
13.500(e)), including options, for acquisitions of commercial items
using Subpart 13.5.
* * * * *
(g) * * *
(2) $5 million ($10 million for acquisitions as described in
13.500(e)),
[[Page 76352]]
for commercial items, use any appropriate combination of the procedures
in Parts 12, 13, 14, and 15 (see paragraph (d) of this section).
* * * * *
0
6. Amend section 13.201 by removing ``$15,000.'' from the end of
paragraph (g)(1) and adding ``--'' in its place; and adding paragraphs
(g)(1)(i) and (g)(1)(ii) to read as follows:
13.201 General.
* * * * *
(g)(1) * * *
(i) $15,000 in the case of any contract to be awarded and
performed, or purchase to be made, inside the United States; and
(ii) $25,000 in the case of any contract to be awarded and
performed, or purchase to be made, outside the United States.
* * * * *
0
7. Amend section 13.303-5 by revising paragraph (b)(2) to read as
follows:
13.303-5 Purchases under BPAs.
* * * * *
(b) * * *
(2) The limitation for individual purchases for commercial item
acquisitions conducted under Subpart 13.5 is $5 million ($10 million
for acquisitions as described in 13.500(e)).
* * * * *
0
8. Amend section 13.500 by revising the first sentence of paragraph
(a); and adding paragraph (e) to read as follows:
13.500 General.
(a) This subpart authorizes, as a test program, use of simplified
procedures for the acquisition of supplies and services in amounts
greater than the simplified acquisition threshold but not exceeding $5
million ($10 million for acquisitions as described in 13.500(e)),
including options, if the contracting officer reasonably expects, based
on the nature of the supplies or services sought, and on market
research, that offers will include only commercial items. * * *
* * * * *
(e) Under 41 U.S.C. 428a, the simplified acquisition procedures
authorized by this test program may be used for acquisitions that do
not exceed $10 million when--
(1) The acquisition is for commercial items that, as determined by
the head of the agency, are to be used in support of a contingency
operation or to facilitate the defense against or recovery from
nuclear, biological, chemical, or radiological attack; or
(2) The acquisition will be treated as an acquisition of commercial
items in accordance with 12.102(f)(1).
0
9. Amend section 13.501 by revising paragraph (a)(1)(ii) to read as
follows:
13.501 Special documentation requirements.
(a) * * *
(1) * * *
(ii) Prepare sole source justifications using the format at 6.303-
2, modified to reflect an acquisition under the authority of the test
program for commercial items (section 4202 of the Clinger-Cohen Act of
1996) or the authority of the Services Acquisition Reform Act of 2003
(41 U.S.C. 428a).
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
15.403-1 [Amended]
0
10. Amend section 15.403-1 in paragraph (c)(3)(ii) by removing ``(Pub.
L. 108-136, Sec. 1443)'' and adding ``(41 U.S.C. 428a)'' in its place.
[FR Doc. 04-27635 Filed 12-17-04; 8:45 am]