Federal Acquisition Regulation: Special Emergency Procurement Authority, 19835-19837 [2019-06620]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 84, Number 87 (Monday, May 6, 2019)]
[Rules and Regulations]
[Pages 19835-19837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06620]



[[Page 19835]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 10, 12, 13, 18, and 26

[FAC 2019-02; FAR Case 2017-009; Item I; Docket No. 2017-0009, Sequence 
No. 1]
RIN 9000-AN45


Federal Acquisition Regulation: Special Emergency Procurement 
Authority

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement sections of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 to 
expand special emergency procurement authorities for acquisitions of 
supplies or services that facilitate defense against or recovery from 
cyber attack, provide international disaster assistance under the 
Foreign Assistance Act of 1961, or support response to an emergency or 
major disaster under the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act.

DATES: Effective Date: June 5, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Camara Francis, Procurement 
Analyst, at 202-550-0935, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2019-02, FAR Case 
2017-009.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 83 FR 29736 on June 26, 2018, to implement sections 816 and 
1641 of the NDAA for FY 2017 (Pub. L. 114-328). Sections 816 and 1641 
modify 41 U.S.C. 1903, Special Emergency Procurement Authority. The 
revisions to 41 U.S.C. 1903 establish special emergency procurement 
authorities to allow for higher micro-purchase threshold (MPT) and 
simplified acquisition threshold (SAT) for acquisitions of supplies or 
services that facilitate defense against or recovery from cyber attack; 
support a request from the Secretary of State or the Administrator of 
the United States Agency for International Development to facilitate 
provision of international disaster assistance pursuant to 22 U.S.C. 
2292 et seq.; or support responses to an emergency or major disaster 
(42 U.S.C. 5122), except that this new authority allows treatment of 
acquisitions, for property or a service, as a commercial item only for 
acquisitions to facilitate the defense against or recovery from a cyber 
attack against the United States.

II. Discussion and Analysis

    No public comments were submitted in response to the proposed rule. 
Therefore, there are no changes made to the final rule.

III. Expected Impact of the Final Rule and Proposed Cost Savings

    Prior to enactment of the NDAA for FY 2017, for acquisitions of 
supplies or services that are to be used to support a contingency 
operation, or to facilitate defense against or recovery from nuclear, 
biological, chemical, or radiological attack, agencies had the 
authority, as provided in FAR part 13, to utilize the higher MPT of 
$20,000 in lieu of $3,500 in the case of any contract to be awarded and 
performed, or purchase to be made, inside the United States; and 
$30,000 in the case of any contract to be awarded and performed, or 
purchase to be made, outside the United States (except for acquisitions 
of construction subject to 40 U.S.C. chapter 31, subchapter IV, Wage 
Rate requirements (Construction)). Additionally, prior to the enactment 
of the NDAA for FY 2017, agencies had the authority, as provided in FAR 
part 13, to utilize the higher SAT of $750,000 in lieu of $150,000 for 
any contract to be awarded and performed, or purchase to be made, 
inside the United States; and $1.5 million for any contract to be 
awarded and performed, or purchase to be made, outside the United 
States; and utilize the higher threshold of $13 million in lieu of $7 
million for use of simplified acquisition procedures (SAP) for the 
acquisition of commercial items (including acquisitions treated as 
acquisitions of commercial items to facilitate defense against or 
recovery from nuclear, biological, chemical or radiological attack).
    This final rule expands the use of the special emergency 
procurement authorities to apply to acquisitions of supplies or 
services that facilitate defense against or recovery from a cyber 
attack; support a request from the Secretary of State or the 
Administrator of the United States Agency for International Development 
to facilitate provision of international disaster assistance pursuant 
to 22 U.S.C. 2292 et seq.; or support a response to an emergency or 
major disaster (42 U.S.C. 5122).
    This rule will impact all businesses that submit offers in response 
to Federal solicitations for supplies or services covered by the 
expanded special emergency procurement authorities. Acquisitions with 
an estimated value between the MPT or SAT and the higher thresholds for 
the expanded special emergency procurement authorities will use 
simplified procedures, thereby reducing the requirements imposed on the 
offerors when responding to the solicitation.
    DoD, GSA, and NASA have performed a regulatory cost analysis on 
this final rule. The following is a summary of the estimated public 
cost savings calculated in 2016 dollars at a 7-percent discount rate 
and in perpetuity:

----------------------------------------------------------------------------------------------------------------
                             Summary                                  Public        Government         Total
----------------------------------------------------------------------------------------------------------------
Present Value...................................................    -$18,969,086     -$3,342,671    -$22,311,757
Annualized Costs................................................      -1,327,836        -233,987      -1,561,823
Annualized Value Costs (as of 2016 if Year 1 is 2019)...........      -1,083,909        -191,003      -1,274,912
----------------------------------------------------------------------------------------------------------------

    To access the full regulatory cost analysis for this rule, go to 
the Federal eRulemaking Portal at www.regulations.gov, search for ``FAR 
Case 2017-009,'' click ``Open Docket,'' and view ``Supporting 
Documents.''

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not add any new solicitation provisions or clauses, 
or impact any existing provisions or contract clauses.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory

[[Page 19836]]

alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). E.O. 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This is not a significant regulatory action and, 
therefore, was not subject to review under section 6(b) of E.O. 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

VI. Executive Order 13771

    This final rule is considered to be an E.O. 13771 deregulatory 
action. The total annualized value of the cost savings is -$1,274,912 
(as of 2016 if Year 1 is 2019). Details on the estimated cost savings 
can be found in Section III of this preamble.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    This final rule implements sections 816 and 1641 of the NDAA for 
FY 2017 (Pub. L. 114-328), which amend 41 U.S.C. 1903.
    The objective of this rule is to expand special emergency 
procurement authorities for acquisitions of supplies or services 
that--
     Facilitate defense against or recovery from cyber 
attack;
     Provide international disaster assistance under the 
Foreign Assistance Act of 1961; or
     Support response to an emergency or major disaster 
under the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act.
    There were no public comments. The requirements in the rule are 
not expected to have a significant economic impact on a substantial 
number of small entities because the rule merely expands existing 
flexibilities associated with contracting under the SAT to include 
defense against or recovery from cyber attacks, international 
disaster assistance, and response to emergencies or major disasters, 
in which a smaller percentage of small entities participate, as 
compared to other than small entities. Based on an average of 
contract actions reported in the Federal Procurement Data System 
data for fiscal years 2014--2016, this rule applies to less than 100 
small entities that submit offers in response to solicitations for 
the acquisition of supplies or services--
     Between $150,000 and $750,000 to facilitate defense 
against or recovery from cyber attacks.
     Between $3,500 and $30,000 or between $150,000 and $1.5 
million, to provide international disaster assistance under the 
Foreign Assistance Act of 1961; and
     Between $3,500 and $20,000 or between $150,000 and 
$750,000, to support response to emergencies or major disasters in 
the U.S.;
    This rule reduces compliance requirements on small entities, 
resulting in estimated savings to affected small entities of 
approximately $650,330 in the first year.
    The rule contains no reporting, recordkeeping, or other 
compliance requirements on the vendor community.
    DoD, GSA, and NASA have not identified any significant 
alternatives consistent with the statute that would further reduce 
impact on small entities.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VIII. Paperwork Reduction Act

    This final rule does not contain any information collection 
requirements that would require the approval of the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 
chapter 35).

List of Subjects in 48 CFR Parts 2, 10, 12, 13, 18, and 26

    Government procurement.

    Dated: March 19, 2019.
William F. Clark,
Director, Office of Government-Wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-Wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 10, 12, 13, 18, 
and 26 as set forth below:

0
1. The authority citation for 48 CFR parts 2, 10, 12, 13, 18, and 26 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 2.101 in paragraph (b)(2) by--
0
a. Adding in alphabetical order the definitions ``Emergency'' and 
``Major disaster'';
0
 b. Revising paragraph (3) introductory text of the definition ``Micro-
purchase threshold''; and
0
c. Revising paragraph (1) introductory text of the definition 
``Simplified acquisition threshold''.
    The additions and revisions read as follows:


2.101   Definitions.

* * * * *
    (b) * * *
    (2) * * *
    Emergency, as used in 6.208, 13.201, 13.500, 18.001, 18.202, 
18.203, and subpart 26.2, means any occasion or instance for which, in 
the determination of the President, Federal assistance is needed to 
supplement State and local efforts and capabilities to save lives and 
to protect property and public health and safety, or to lessen or avert 
the threat of a catastrophe in any part of the United States (42 U.S.C. 
5122).
* * * * *
    Major disaster, as used in 6.208, 13.201, 13.500, 18.001, 18.202, 
18.203, and subpart 26.2, means any natural catastrophe (including any 
hurricane, tornado, storm, high water, winddriven water, tidal wave, 
tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, 
or drought), or regardless of cause, any fire, flood, or explosion, in 
any part of the United States, which, in the determination of the 
President, causes damage of sufficient severity and magnitude to 
warrant major disaster assistance under the Stafford Act to supplement 
the efforts and available resources of States, local governments, and 
disaster relief organizations in alleviating the damage, loss, 
hardship, or suffering caused thereby (42 U.S.C. 5122).
* * * * *
    Micro-purchase threshold * * *
    (3) For acquisitions of supplies or services that, as determined by 
the head of the agency, are to be used to support a contingency 
operation; to facilitate defense against or recovery from cyber, 
nuclear, biological, chemical or radiological attack; to support a 
request from the Secretary of State or the Administrator of the United 
States Agency for International Development to facilitate provision of 
international disaster assistance pursuant to 22 U.S.C. 2292 et seq.; 
or to support response to an emergency or major disaster (42 U.S.C. 
5122), as described in 13.201(g)(1), except for construction subject to 
40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements 
(Construction) (41 U.S.C. 1903)--
* * * * *
    Simplified acquisition threshold * * *
    (1) Acquisitions of supplies or services that, as determined by the 
head of the agency, are to be used to support a contingency operation; 
to facilitate defense against or recovery from cyber, nuclear, 
biological, chemical, or radiological attack; to support a request from 
the Secretary of State or the Administrator of the United States Agency 
for International Development to facilitate provision of international 
disaster assistance pursuant to 22 U.S.C. 2292 et seq.; or to support 
response to an emergency or major disaster (42

[[Page 19837]]

U.S.C. 5122), (41 U.S.C. 1903), the term means--
* * * * *

PART 10--MARKET RESEARCH


10.001   [Amended]

0
3. Amend section 10.001 by removing from paragraph (a)(2)(vi)(A) 
``recovery from'' and adding ``recovery from cyber,'' in its place.

PART 12--ACQUISITION OF COMMERCIAL ITEMS


12.102   [Amended]

0
4. Amend section 12.102 by removing from paragraph (f)(1) ``recovery 
from'' and adding ``recovery from cyber,'' in its place.

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

0
5. Amend section 13.201 by revising paragraphs (g)(1) introductory text 
and (g)(2) to read as follows:


13.201   General.

* * * * *
    (g)(1) For acquisitions of supplies or services that, as determined 
by the head of the agency, are to be used to support a contingency 
operation; to facilitate defense against or recovery from cyber, 
nuclear, biological, chemical, or radiological attack; to support a 
request from the Secretary of State or the Administrator of the United 
States Agency for International Development to facilitate provision of 
international disaster assistance pursuant to 22 U.S.C. 2292 et seq.; 
or to support response to an emergency or major disaster (42 U.S.C. 
5122), the micro-purchase threshold is--
* * * * *
    (2) Purchases using this authority must have a clear and direct 
relationship to the support of a contingency operation; or the defense 
against or recovery from cyber, nuclear, biological, chemical, or 
radiological attack; international disaster assistance; or an emergency 
or major disaster.
* * * * *

0
6. Amend section 13.500 by revising paragraph (c)(1) to read as 
follows:


13.500   General.

* * * * *
    (c) * * *
    (1) The acquisition is for commercial items that, as determined by 
the head of the agency, are to be used in support of a contingency 
operation; to facilitate the defense against or recovery from cyber, 
nuclear, biological, chemical, or radiological attack; to support a 
request from the Secretary of State or the Administrator of the United 
States Agency for International Development to facilitate provision of 
international disaster assistance; or to support response to an 
emergency or major disaster, or
* * * * *

PART 18--EMERGENCY ACQUISITIONS

0
7. Amend section 18.001 by--
0
a. Revising paragraph (b);
0
 b. Redesignating paragraph (c) as paragraph (d); and
0
c. Adding a new paragraph (c).
    The revision and addition read as follows:


18.001   Definition.

* * * * *
    (b) To facilitate the defense against or recovery from cyber, 
nuclear, biological, chemical, or radiological attack against the 
United States;
    (c) In support of a request from the Secretary of State or the 
Administrator of the United States Agency for International Development 
to facilitate the provision of international disaster assistance; or
* * * * *

0
8. Revise section 18.202 to read as follows:


18.202   Defense or recovery from certain events.

    (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 cyber, nuclear, biological, 
chemical, or radiological attack; to facilitate provision of 
international disaster assistance; or to support response to an 
emergency or major disaster. (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 cyber, nuclear, 
biological, chemical, or radiological attack; to facilitate provision 
of international disaster assistance; or to support response to an 
emergency or major disaster. (See 2.101.)
    (c) Treating certain items as commercial. 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 cyber, 
nuclear, biological, chemical, or radiological attack. (See 
12.102(f)(1) and 13.500(c)(2).)
    (d) Simplified procedures for certain commercial items. The 
threshold limits authorized for use of this authority may be increased 
when it is determined the acquisition is to facilitate defense against 
or recovery from cyber, nuclear, biological, chemical, or radiological 
attack; to facilitate provision of international disaster assistance; 
or to support response to an emergency or major disaster. (See 
13.500(c).)

PART 26--OTHER SOCIOECONOMIC PROGRAMS

0
9. Revise the heading for subpart 26.2 to read as follows:

Subpart 26.2--Major Disaster or Emergency Assistance Activities

* * * * *

0
10. Amend section 26.202 by designating the undesignated paragraph as 
paragraph (a) and adding paragraph (b) to read as follows:


26.202   Local area preference.

* * * * *
    (b) When using the authority under the Stafford Act, see the 
definitions of ``micro-purchase threshold'' and ``simplified 
acquisition threshold'' in 2.101 for the authority to use an increased 
micro-purchase threshold and simplified acquisition threshold.

[FR Doc. 2019-06620 Filed 5-3-19; 8:45 am]
 BILLING CODE 6820-EP-P