Federal Acquisition Regulation; FAR Case 2005-038, Emergency Acquisitions, 38247-38250 [06-5964]
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Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations
offeror shall submit a comprehensive
plan for compliance with the EVMS
guidelines.
(1) The plan shall—
(i) Describe the EVMS the offeror
intends to use in performance of the
contracts;
(ii) Distinguish between the offeror’s
existing management system and
modifications proposed to meet the
guidelines;
(iii) Describe the management system
and its application in terms of the
EVMS guidelines;
(iv) Describe the proposed procedure
for administration of the guidelines, as
applied to subcontractors; and
(v) Provide documentation describing
the process and results of any thirdparty or self-evaluation of the system’s
compliance with the EVMS guidelines.
(2) The offeror shall provide
information and assistance as required
by the Contracting Officer to support
review of the plan.
(3) The Government will review and
approve the offeror’s plan for an EVMS
before contract award.
(4) The offeror’s EVMS plan must
provide milestones that indicate when
the offeror anticipates that the EVM
system will be compliant with the
ANSI/EIA Standard -748 guidelines.
(c) Offerors shall identify the major
subcontractors, or major subcontracted
effort if major subcontractors have not
been selected, planned for application
of the guidelines. The prime Contractor
and the Government shall agree to
subcontractors selected for application
of the EVMS guidelines.
(End of provision)
52.234–4
System.
Earned Value Management
As prescribed in 34.203(c), insert the
following clause:
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EARNED VALUE MANAGEMENT
SYSTEM (JUl 2006)
(a) The Contractor shall use an earned
value management system (EVMS) that
has been determined by the Cognizant
Federal Agency (CFA) to be compliant
with the guidelines in ANSI/EIA
Standard - 748 (current version at the
time of award) to manage this contract.
If the Contractor’s current EVMS has not
been determined compliant at the time
of award, see paragraph (b) of this
clause. The Contractor shall submit
reports in accordance with the
requirements of this contract.
(b) If, at the time of award, the
Contractor’s EVM System has not been
determined by the CFA as complying
with EVMS guidelines or the Contractor
does not have an existing cost/schedule
control system that is compliant with
the guidelines in ANSI/EIA Standard –
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748 (current version at time of award),
the Contractor shall—
(1) Apply the current system to the
contract; and
(2) Take necessary actions to meet the
milestones in the Contractor’s EVMS
plan approved by the Contracting
Officer.
(c) The Government will conduct an
Integrated Baseline Review (IBR). If a
pre-award IBR has not been conducted,
a post award IBR shall be conducted as
early as practicable after contract award.
(d) The Contracting Officer may
require an IBR at—
(1) Exercise of significant options; or
(2) Incorporation of major
modifications.
(e) Unless a waiver is granted by the
CFA, Contractor proposed EVMS
changes require approval of the CFA
prior to implementation. The CFA will
advise the Contractor of the
acceptability of such changes within 30
calendar days after receipt of the notice
of proposed changes from the
Contractor. If the advance approval
requirements are waived by the CFA,
the Contractor shall disclose EVMS
changes to the CFA at least 14 calendar
days prior to the effective date of
implementation.
(f) The Contractor shall provide access
to all pertinent records and data
requested by the Contracting Officer or
a duly authorized representative as
necessary to permit Government
surveillance to ensure that the EVMS
conforms, and continues to conform,
with the performance criteria referenced
in paragraph (a) of this clause.
(g) The Contractor shall require the
subcontractors specified below to
comply with the requirements of this
clause: [Insert list of applicable
subcontractors.]
llllllllll
llllllllll
llllllllll
(End of clause)
[FR Doc. 06–5966 Filed 7–3–06; 8:45 am]
BILLING CODE 6820–EP–S
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38247
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
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCIES:
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: https://
www.regulations.gov/far. Follow the
instructions for submitting comments.
• Agency Web Site: https://
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 https://
www.acquisition.gov/comp/far/
ProposedRules/comments.htm,
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including any personal and/or business
confidential information provided.
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.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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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
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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.
Dated: June 28, 2006.
Ralph De Stefano,
Director,Contract Policy Division.
B. Regulatory Flexibility Act
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.
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
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Government procurement.
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Therefore, DoD, GSA, and NASA
amend 48 CFR part 18 as set forth
below:
I 1. The authority citation for 48 CFR
part 18 is revised to read as follows:
I
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
I
2. Add Part 18 to read as follows:
PART 18–EMERGENCY ACQUISITIONS
Sec.
18.000
18.001
Scope of part.
Definition.
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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38249
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.
18.105 Federal Supply Schedules (FSSs),
multi-agency blanket purchase agreements
(BPAs), and multi-agency indefinite delivery
contracts.
Zone (HUBZone) small business
concerns on a sole source basis. (See
19.1306.)
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.
18.115 Service-disabled Veteran-owned
Small Business (SDVOSB) sole source
awards.
18.001
18.106 Javits-Wagner-O’Day (JWOD)
specification changes.
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.
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
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).)
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.)
18.103 Synopses of proposed contract
actions.
Interagency acquisitions are
authorized under certain conditions.
(See Subpart 17.5.)
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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.)
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18.112 Interagency acquisitions under the
Economy Act.
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
PO 00000
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
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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
18.110
Contracts awarded to support unusual
and compelling needs or emergency
acquisitions are exempt from the
requirements pertaining to Central
Contractor Registration. (See 4.1102.)
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).)
18.116
Qualifications requirements.
Agencies may determine not to
enforce qualification requirements when
an emergency exists. (See 9.206–1.)
18.108
Contracts may be awarded to Servicedisabled Veteran-owned Small Business
(SDVOSB) concerns on a sole source
basis. (See 19.1406.)
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.
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(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
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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,
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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 https://www.dhs.gov/
dhspublic/interapp/editorial/
editoriall0566.xml.
(b) [Reserved]
[FR Doc. 06–5964 Filed 7–3–06; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR—2006—0023]
Federal Acquisition Regulation;
Federal Acquisition Circular 2005–11;
Small Entity Compliance Guide
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Small Entity Compliance Guide.
AGENCIES:
SUMMARY: This document is issued
under the joint authority of the
Secretary of Defense, the Administrator
of General Services and the
Administrator of the National
Aeronautics and Space Administration.
This Small Entity Compliance Guide
has been prepared in accordance with
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996. It consists of a summary of rules
appearing in Federal Acquisition
Circular (FAC) 2005–11 which amend
the FAR. An asterisk (*) next to a rule
indicates that a regulatory flexibility
analysis has been prepared. Interested
parties may obtain further information
regarding these rules by referring to FAC
2005–11 which precedes this document.
These documents are also available via
the Internet at https://
www.acquisition.gov/far.
FOR FURTHER INFORMATION CONTACT:
Laurieann Duarte, FAR Secretariat, (202)
501–4225. For clarification of content,
contact the analyst whose name appears
in the table below.
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]]>Agencies
[Federal Register Volume 71, Number 128 (Wednesday, July 5, 2006)]
[Rules and Regulations]
[Pages 38247-38250]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5964]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://www.regulations.gov/
far. Follow the instructions for submitting comments.
Agency Web Site: https://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 https://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
[[Page 38249]]
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 https://www.dhs.gov/
dhspublic/interapp/editorial/editorial_0566.xml.
(b) [Reserved]
[FR Doc. 06-5964 Filed 7-3-06; 8:45 am]
BILLING CODE 6820-EP-S
