Federal Acquisition Regulation; FAR Case 2005-038, Emergency Acquisitions, 46342-46345 [07-3797]
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Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations
(1) Notify its employees of—
(i) The United States Government’s
zero tolerance policy described in
paragraph (b) of this clause; and
(ii) The actions that will be taken
against employees for violations of this
policy. Such actions may include, but
are not limited to, removal from the
contract, reduction in benefits, or
termination of employment; and
(2) Take appropriate action, up to and
including termination, against
employees or subcontractors that violate
the policy in paragraph (b) of this
clause.
(d) Notification. The Contractor shall
inform the Contracting Officer
immediately of—
(1) Any information it receives from
any source (including host country law
enforcement) that alleges a Contractor
employee, subcontractor, or
subcontractor employee has engaged in
conduct that violates this policy; and
(2) Any actions taken against
Contractor employees, subcontractors,
or subcontractor employees pursuant to
this clause.
(e) Remedies. In addition to other
remedies available to the Government,
the Contractor’s failure to comply with
the requirements of paragraphs (c), (d),
or (f) of this clause may render the
Contractor subject to—
(1) Required removal of a Contractor
employee or employees from the
performance of the contract;
(2) Required subcontractor
termination;
(3) Suspension of contract payments;
(4) Loss of award fee, consistent with
the award fee plan, for the performance
period in which the Government
determined Contractor non–compliance;
Document Title
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Document may be obtained from:
[FR Doc. 07–3796 Filed 8–16–07; 8:45 am]
BILLING CODE 6820–EP–S
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
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
sroberts on PROD1PC70 with RULES
AGENCIES:
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed to adopt the
16:40 Aug 16, 2007
Applies Performance to in/at:
llllllll .............................................................................................
llllllll .............................................................................................
[Contracting Officer shall insert title
of directive/notice; indicate the
document is attached or provide source
(such as website link) for obtaining
document; and, indicate the contract
performance location outside the U.S. to
which the document applies.]
VerDate Aug<31>2005
(5) Termination of the contract for
default or cause, in accordance with the
termination clause of this contract; or
(6) Suspension or debarment.
(f) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (f), in all
subcontracts.
(End of clause)
Alternate I (AUG 2007). As prescribed
in 22.1705(b), substitute the following
paragraph in place of paragraph (c)(1)(i)
of the basic clause:
(i)(A) The United States Government’s
zero tolerance policy described in
paragraph (b) of this clause; and
(B) The following directive(s) or
notice(s) applicable to employees
performing work at the contract place(s)
of performance as indicated below:
Jkt 211001
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.
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(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
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concerns, and service-disabled veteranowned 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
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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
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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 standalone 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
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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
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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
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.
I
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PART 18—EMERGENCY
ACQUISITIONS
1. The authority citation for 48 CFR
part 18 continues 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).
2. Amend section 18.000 by adding
paragraph (c) to read as follows:
I
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]
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.
I
18.106 and 18.118
[Added]
4. Add new section 18.106 to read as
follows:
I
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)).
I 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)).
I 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.)
*
*
*
*
*
I 7. Amend section 18.204 by adding
paragraph (b) to read as follows:
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18.204
Resources.
*
*
*
*
*
(b) OFPP Guidelines. The Office of
Federal Procurement Policy (OFPP)
‘‘Emergency Acquisitions Guide’’ is
available at https://www.whitehouse.gov/
omb/procurement/guides/
emergencylacquisitionslguide.pdf.
[FR Doc. 07–3797 Filed 8–16–07; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 19, 52, and 53
[FAC 2005–19; FAR Case 2004–017; Item
VII; Docket 2007–001; Sequence 6]
RIN 9000–AK18
Federal Acquisition Regulation; FAR
Case 2004–017, Small Business Credit
for Alaska Native Corporations and
Indian Tribes
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCIES:
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on a final rule
amending the Federal Acquisition
Regulation (FAR) to implement section
702 of the Emergency Supplemental
Act, 2002, as amended by section 3003
of the 2002 Supplemental
Appropriations Act for Further
Recovery From and Response to
Terrorist Attacks on the United States.
The law permits subcontracts awarded
to Alaska Native Corporations (ANCs)
and Indian tribes to be counted towards
a contractor’s goals for subcontracting
with small business (SB) and small
disadvantaged business (SDB) concerns.
DATES: Effective Date: September 17,
2007.
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FOR FURTHER INFORMATION CONTACT:
Contact Ms. Rhonda Cundiff,
Procurement Analyst, at (202) 501–
0044, 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 2004–017.
SUPPLEMENTARY INFORMATION:
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A. Background
Section 702 of the Emergency
Supplemental Act, 2002 (Public Law
107–117), as amended by section 3003
of the 2002 Supplemental
Appropriations Act for Further
Recovery From and Response to
Terrorist Attacks on the United States
(Public Law 107–206)(43 U.S.C. 1626),
provides that subcontracts awarded to
ANCs that are considered a minority
and economically disadvantaged
concern under the criteria at 43 U.S.C.
1626(e)(1), and any of their direct and
indirect subsidiary corporations, joint
ventures, and partnerships that meet the
requirements of 43 U.S.C. 1626(e)(2),
shall be counted towards the
satisfaction of a contractor’s goal for
subcontracting with SB and SDB
concerns. The law also provides that
subcontracts awarded to Indian tribes
that are recognized by the Bureau of
Indian Affairs in accordance with 25
U.S.C. 1452(c), and Indian-owned
economic enterprises that meet the
requirements of 25 U.S.C. 1452(e), may
be counted towards the satisfaction of a
contractor’s goal for subcontracting with
SB and SDB concerns. Such credit is
taken even where the ANC or Indian
tribe may be ‘‘other than small’’ under
the Small Business Administration
(SBA) regulations.
In addition, section 3003 provides
that where lower-tier subcontracts exist,
the ANC or Indian tribe shall designate
the appropriate contractor or contractors
to receive credit towards their SB and
SDB subcontracting goals. Accordingly,
the rule requires that, where one or
more subcontractors are in the
subcontract tier between the prime
contractor and the ANC or Indian tribe,
the ANC or Indian tribe shall designate
the appropriate contractor(s) to count
the subcontract towards its SB and SDB
subcontracting goals. In most cases, the
appropriate contractor is the contractor
that awarded the subcontract to the
ANC or Indian tribe. To help avoid
possible double counting, the rule
requires the ANC or Indian tribe to
provide a copy of its written designation
to the contracting officer, the prime
contractor, and any subcontractors
between the prime contractor and ANC
or Indian tribe within 30 days of date of
award to the ANC or Indian tribe. If the
contracting officer does not receive a
copy of the ANC or Indian tribe’s
written designation within 30 days of
the subcontract award, the contractor
that awarded the subcontract to the
ANC or Indian tribe will be considered
the designated contractor.
The law does not require the ANC or
Indian tribe to be eligible for SDB or 8(a)
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46345
certification. Similarly, the law does not
provide for contractors to count
subcontracts awarded to such an entity
toward the evaluation of the extent of
the participation of SDB concerns in the
performance of certain North American
Industry Classification System (NAICS)
Industry codes unless the entity is
certified as an SDB by SBA (FAR
Subpart 19.12).
The Councils initially interpreted
section 702 of Public Law 107–117, as
amended by section 3003 of Public Law
107–206, to allow Indian tribes to be
counted towards a contractor’s goal for
subcontracting with SB concerns but not
SDB concerns. Upon further
consideration, the Councils believe their
initial interpretation was incorrect.
Nothing in the plain language of the
statute or the legislative history
indicates that Congress intended to treat
Indian tribes differently than ANCs. In
addition, the Councils believe
interpreting the statute to treat Indian
tribes differently contradicts the intent
of other laws (e.g., Small Business Act
and Technical Corrections Act of 1994
(Public Law 103–263)) and longstanding
Government policy that attempts to
eliminate distinctions between the
various Indian tribes, including ANCs
and Indian-owned economic
enterprises. Therefore, the rule allows
Indian tribes to also be counted as SDBs.
In addition, the Councils initially
interpreted the statute to allow certain
entities owned and controlled by ANCs
to also be counted towards a
contractor’s goal for subcontracting with
SB and SDB concerns but did not
believe the statute authorized entities
owned and controlled by Indian tribes
to be counted towards a contractor’s
goal for subcontracting with SB and
SDB concerns. Upon further
consideration, the Councils believe their
initial interpretation was also incorrect.
Section 16 of the Indian Reorganization
Act of 1934 (25 U.S.C. 476), as
amended, prohibits departments or
agencies from promulgating any
regulation or making any decision or
determination that classifies, enhances,
or diminishes the privileges and
immunities available to an Indian tribe
relative to other federally recognized
tribes. Excluding entities owned and
controlled by Indian tribes from the
treatment afforded by section 702 of
Public Law 107–117, as amended by
section 3003 of Public Law 107–206 (43
U.S.C. 1626) to other federally
recognized tribes diminishes the
privileges available to entities owned
and controlled by Indian tribes and
enhances the privileges available to
entities owned and controlled by ANCs.
Therefore, the rule provides the same
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]]>Agencies
[Federal Register Volume 72, Number 159 (Friday, August 17, 2007)]
[Rules and Regulations]
[Pages 46342-46345]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3797]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
0
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]
0
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)).
0
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)).
0
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 https://
www.whitehouse.gov/omb/procurement/guides/emergency_acquisitions_
guide.pdf.
[FR Doc. 07-3797 Filed 8-16-07; 8:45 am]
BILLING CODE 6820-EP-S
