[Federal Register: July 5, 2006 (Volume 71, Number 128)]
[Rules and Regulations]
[Page 38247-38250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jy06-23]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 18
[FAC 2005-11; FAR Case 2005-038; Item II;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: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending 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: July 5, 2006.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before September 5, 2006 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-11, FAR case 2005-
038, by any of the following methods:
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov/far.
Follow the instructions for submitting comments.
Agency Web Site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acquisition.gov/comp/far/ProposedRules/comments.htm.
Click on the FAR case number to submit
comments.
E-mail: farcase.2005-038@gsa.gov. Include FAC 2005-11, FAR
case 2005-038 in the subject line of the message.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-11, FAR
case 2005-038, in all correspondence related to this case. All comments
received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acquisition.gov/comp/far/ProposedRules/comments.htm
,
[[Page 38248]]
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Gloria Sochon, Procurement Analyst, at (202) 219-0311. Please cite
FAC 2005-11, FAR case 2005-038. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
The 2005 Atlantic hurricane season was a record one in terms of the
number of hurricanes and their strength. The size and strength of
Hurricane Katrina resulted in one of the largest natural disasters to
strike the United States. As a result of last year's hurricane season,
Federal agencies are looking for methods to expedite their responses
during an emergency. Emergency situations, however, go beyond natural
disasters and include contingency operations as defined in FAR 2.101
and actions to facilitate the defense against or recovery from nuclear,
biological, chemical, or radiological attack against the United States.
This rule revises FAR Part 18 to provide a single reference to the
acquisition flexibilities already available in the FAR to facilitate
and expedite acquisitions of supplies and services during all types of
emergencies. For clarity and ease of use, the flexibilities are divided
into two main groups. The first group titled ``Available Acquisition
Flexibilities'' identifies the flexibilities that may be used anytime
and do not require an emergency declaration. The second group titled
``Emergency acquisition flexibilities'' identifies the flexibilities
that may be used only after an emergency declaration or designation has
been made by the appropriate official. The second group is further
divided into three subgroups: contingency operation; defense or
recovery from certain attacks; and incidents of national significance,
emergency declaration, or major disaster declarations.
In May 2003, the Office of Federal Procurement Policy (OFPP)
published guidance on the use of emergency procurement flexibilities to
help ensure agencies were well positioned to effectively meet the
demands associated with fighting terrorism. The OFPP is currently
updating its guidance to also address flexibilities that can be used in
other emergency situations such as national emergencies. The final rule
will include a reference to the updated OFPP guidance. The Councils
would like to hear the views of interested parties on the sufficiency
of these provisions.
In particular, the Councils are interested in input on whether the
provisions sufficiently clarify the existing FAR flexibilities that can
be used in emergency situations or whether more detailed, comprehensive
coverage is needed.
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 interim rule is not expected to 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. Therefore, an Initial Regulatory
Flexibility Analysis has not been performed. The Councils will consider
comments from small entities concerning the affected FAR Part 18 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 2005-11,
FAR case 2005-038), 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.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary to improve the Government's ability to expedite
acquisitions of supplies and services during emergency situations.
However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will
consider public comments received in response to this interim rule in
the formation of the final rule.
List of Subjects in 48 CFR Part 18
Government procurement.
Dated: June 28, 2006.
Ralph De Stefano,
Director,Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 18 as set forth below:
0
1. The authority citation for 48 CFR part 18 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).
0
2. Add Part 18 to read as follows:
PART 18-EMERGENCY ACQUISITIONS
Sec.
18.000 Scope of part.
18.001 Definition.
Subpart 18.1-Available Acquisition Flexibilities
18.101 General.
18.102 Central contractor registration.
18.103 Synopses of proposed contract actions.
18.104 Unusual and compelling urgency.
18.105 Federal Supply Schedules (FSSs), multi-agency blanket
purchase agreements (BPAs), and multi-agency indefinite delivery
contracts.
18.106 Javits-Wagner O' Day (JWOD) specification changes.
18.107 Qualifications requirements.
18.108 Priorities and allocations.
18.109 Soliciting from a single source.
18.110 Oral requests for proposals.
18.111 Letter contracts.
18.112 Interagency acquisitions under the Economy Act.
18.113 Contracting with the Small Business Administration (The 8(a)
Program).
18.114 HUBZone sole source awards.
18.115 Service-disabled Veteran-owned Small Business (SDVOSB) sole
source awards.
18.116 Overtime approvals.
18.117 Use of patented technology under the North American Free
Trade Agreement.
18.118 Bid guarantees.
18.119 Advance payments.
18.120 Assignment of claims.
18.121 Electronic funds transfer.
18.122 Protest to GAO.
18.123 Contractor rent-free use of Government property.
18.124 Extraordinary contractual actions.
Subpart 18.2--Emergency Acquisition Flexibilities
18.201 Contingency operation.
18.202 Defense or recovery from certain attacks.
18.203 Incidents of national significance, emergency declaration, or
major disaster declaration.
18.204 Resources.
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
18.000 Scope of part.
(a) This part identifies acquisition flexibilities that are
available for emergency acquisitions. These
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flexibilities are specific techniques or procedures that may be used to
streamline the standard acquisition process. This part includes--
(1) Generally available flexibilities; and
(2) Emergency acquisition flexibilities that are available only
under prescribed circumstances.
(b) The acquisition flexibilities in this part are not exempt from
the requirements and limitations set forth in FAR Part 3, Improper
Business Practices and Personal Conflicts of Interest.
18.001 Definition.
Emergency acquisition flexibilities, as used in this part, means
flexibilities provided with respect to any acquisition of supplies or
services by or for an executive agency that, as determined by the head
of an executive agency, may be used--
(a) In support of a contingency operation as defined in 2.101;
(b) To facilitate the defense against or recovery from nuclear,
biological, chemical, or radiological attack against the United States;
or
(c) When the President declares an incident of national
significance, emergency declaration, or a major disaster declaration.
Subpart 18.1-- Available Acquisition Flexibilities
18.101 General.
The FAR includes many acquisition flexibilities that are available
to the contracting officer when certain conditions are met. These
acquisition flexibilities do not require an emergency declaration or
designation of contingency operation.
18.102 Central contractor registration.
Contracts awarded to support unusual and compelling needs or
emergency acquisitions are exempt from the requirements pertaining to
Central Contractor Registration. (See 4.1102.)
18.103 Synopses of proposed contract actions.
Contracting officers need not submit a synopsis notice when there
is an unusual and compelling urgency and the Government would be
seriously injured if the agency complied with the notice time periods.
(See 5.202(a)(2).)
18.104 Unusual and compelling urgency.
Agencies may limit the number of sources and full and open
competition need not be provided for contracting actions involving
urgent requirements. (See 6.302-2.)
18.105 Federal Supply Schedules (FSSs), multi-agency blanket purchase
agreements (BPAs), and multi-agency indefinite delivery contracts.
Streamlined procedures and a broad range of goods and services may
be available under Federal Supply Schedule contracts (see Subpart 8.4),
multi-agency BPAs (See 8.405-3(a)(4)), or multi-agency, indefinite-
delivery contracts (see 16.505(a)(7)). These contracting methods may
offer agency advance planning, pre-negotiated line items, and special
terms and conditions that permit rapid response.
18.106 Javits-Wagner-O'Day (JWOD) specification changes.
Contracting officers are not held to the notification required when
changes in JWOD specifications or descriptions are required to meet
emergency needs. (See 8.712(d).)
18.107 Qualifications requirements.
Agencies may determine not to enforce qualification requirements
when an emergency exists. (See 9.206-1.)
18.108 Priorities and allocations.
The Defense Priorities and Allocations System (DPAS) supports
authorized national defense programs and was established to facilitate
rapid industrial mobilization in case of a national emergency. (See
11.6.)
18.109 Soliciting from a single source.
For purchases not exceeding the simplified acquisition threshold,
contracting officers may solicit from one source under certain
circumstances. (See 13.106-1(b).)
18.110 Oral requests for proposals.
Oral requests for proposals are authorized under certain
conditions. (See 15.203(f).)
18.111 Letter contracts.
Letter contracts may be used when contract performance must begin
immediately. (See 16.603.)
18.112 Interagency acquisitions under the Economy Act.
Interagency acquisitions are authorized under certain conditions.
(See Subpart 17.5.)
18.113 Contracting with the Small Business Administration (The 8(a)
Program).
Contracts may be awarded to the Small Business Administration (SBA)
for performance by eligible 8(a) firms on either a sole source or
competitive basis. (See Subpart 19.8.)
18.114 HUBZone sole source awards.
Contracts may be awarded to Historically Underutilized Business
Zone (HUBZone) small business concerns on a sole source basis. (See
19.1306.)
18.115 Service-disabled Veteran-owned Small Business (SDVOSB) sole
source awards.
Contracts may be awarded to Service-disabled Veteran-owned Small
Business (SDVOSB) concerns on a sole source basis. (See 19.1406.)
18.116 Overtime approvals.
Overtime approvals may be retroactive if justified by emergency
circumstances. (See 22.103-4(i).)
18.117 Use of patented technology under the North American Free Trade
Agreement.
Requirement to obtain authorization prior to use of patented
technology may be waived in circumstances of extreme urgency or
national emergency. (See 27.208.)
18.118 Bid guarantees.
The chief of the contracting office may waive the requirement to
obtain a bid guarantee for emergency acquisitions when a performance
bond or a performance bond and payment bond is required. (See 28.101-
1(c).)
18.119 Advance payments.
Agencies may authorize advance payments to facilitate the national
defense for actions taken under Public Law 85-804 (see Part 50,
Extraordinary Contractual Actions). These advance payments may be made
at or after award of sealed bid contracts, as well as negotiated
contracts. (See 32.405.)
18.120 Assignment of claims.
The use of the no-setoff provision may be appropriate to facilitate
the national defense in the event of a national emergency or natural
disaster. (See 32.803(d).)
18.121 Electronic funds transfer.
Electronic funds transfer payments may be waived for acquisitions
to support unusual and compelling needs or emergency acquisitions. (See
32.1103(e).)
18.122 Protest to GAO.
When urgent and compelling circumstances exist, agency protest
override procedures allow the head of the contracting activity to
determine that the contracting process may continue after GAO has
received a protest. (See 33.104(b) and (c).)
18.123 Contractor rent-free use of Government property.
Rental requirements do not apply to items of Government production
and research property that are part of a
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general program approved by the Federal Emergency Management Agency and
meet certain criteria. (See 45.404(a)(3) and (4).)
18.124 Extraordinary contractual actions.
Part 50 prescribes policies and procedures for entering into,
amending, or modifying contracts in order to facilitate the national
defense under the extraordinary emergency authority granted by Public
Law 85-804 (50 U.S.C. 1431-1434). This includes--
(a) Amending contracts without consideration (see 50.302-1);
(b) Correcting or mitigating mistakes in a contract (see 50.302-2);
and
(c) Formalizing informal commitments (See 50.302-3).
Subpart 18.2--Emergency Acquisition Flexibilities
18.201 Contingency operation.
(a) Contingency operation is defined in 2.101.
(b) Micro-purchase threshold. The threshold increases when the head
of the agency determines the supplies or services are to be used to
support a contingency operation. (See 2.101 and 13.201(g).)
(c) Simplified acquisition threshold. The threshold increases when
the head of the agency determines the supplies or services are to be
used to support a contingency operation. (See 2.101.)
(d) SF 44, Purchase Order-Invoice-Voucher. The normal threshold for
the use of the SF 44 is at or below the micro-purchase threshold.
Agencies may, however, establish higher dollar limitations for
purchases made to support a contingency operation. (See 13.306.)
(e) Test program for certain commercial items. The threshold limits
authorized for use of the test program may be increased for
acquisitions to support a contingency operation. (See 13.500(e).)
18.202 Defense or recovery from certain attacks.
(a) Micro-purchase threshold. The threshold increases when the head
of the agency determines the supplies or services are to be used to
facilitate defense against or recovery from nuclear, biological,
chemical, or radiological attack. (See 2.101.)
(b) Simplified acquisition threshold. The threshold increases when
the head of the agency determines the supplies or services are to be
used to facilitate defense against or recovery from nuclear,
biological, chemical, or radiological attack. (See 2.101.)
(c) Commercial items to facilitate defense and recovery.
Contracting officers may treat any acquisition of supplies or services
as an acquisition of commercial items if the head of the agency
determines the acquisition is to be used to facilitate the defense
against or recovery from nuclear, biological, chemical, or radiological
attack. (See 12.102(f)(1) and 13.500(e).)
(d) Test program for certain commercial items. The threshold limits
authorized for use of the test program may be increased when it is
determined the acquisition is to facilitate defense against or recovery
from nuclear, biological, chemical, or radiological attack. (See
13.500(e).)
18.203 Incidents of national significance, emergency declaration, or
major disaster declaration.
(a) Authorized or required by statute. Agencies may limit the use
of full and open competition when statutes authorize or require that
the acquisition be made through another agency or from a specified
source. This includes the Robert T. Stafford Disaster Relief and
Emergency Assistance Act. (See 6.302-5 and Subpart 26.2.)
(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. (See Subpart 26.2 and 6.302-
5(b)(5).)
(c) Ocean transportation by U.S. flag vessels. The provisions of
the Cargo Preference Act of 1954 may be waived in emergency situations.
(See 47.502(c).)
18.204 Resources.
(a) National Response Plan. The National Response Plan (NRP)
provides a single, comprehensive framework for the management of
domestic incidents where Federal involvement is necessary as required
by the Homeland Security Act of 2002 (Public Law 107-296). The NRP only
applies to incidents of national significance, defined as an actual or
potential high-impact event that requires a coordinated and effective
response by an appropriate combination of Federal, State, local,
tribal, nongovernmental, and/or private-sector entities in order to
save lives, minimize damage, and provide for long-term community
recovery and mitigation activities. The Department of Homeland Security
is responsible for the NRP. The NRP is available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0566.xml
.
(b) [Reserved]
[FR Doc. 06-5964 Filed 7-3-06; 8:45 am]
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