[Federal Register Volume 71, Number 128 (Wednesday, July 5, 2006)]
[Rules and Regulations]
[Pages 38247-38250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5964]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 18

[FAC 2005-11; FAR Case 2005-038; Item II;Docket 2006-0020, Sequence 5]
RIN 9000-AK50


Federal Acquisition Regulation; FAR Case 2005-038, Emergency 
Acquisitions

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

ACTION:  Interim rule with request for comments.

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SUMMARY:  The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to provide a 
single reference to acquisition flexibilities that may be used to 
facilitate and expedite acquisitions of supplies and services during 
emergency situations.

DATES: Effective Date: July 5, 2006.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before September 5, 2006 to be considered in 
the formulation of a final rule.

ADDRESSES:  Submit comments identified by FAC 2005-11, FAR case 2005-
038, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov/far. Follow the instructions for submitting comments.
     Agency Web Site: http://www.acquisition.gov/comp/far/ProposedRules/comments.htm. Click on the FAR case number to submit 
comments.
     E-mail: [email protected]. Include FAC 2005-11, FAR 
case 2005-038 in the subject line of the message.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-11, FAR 
case 2005-038, in all correspondence related to this case. All comments 
received will be posted without change to http://www.acquisition.gov/comp/far/ProposedRules/comments.htm,

[[Page 38248]]

including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT:  For clarification of content, contact 
Ms. Gloria Sochon, Procurement Analyst, at (202) 219-0311. Please cite 
FAC 2005-11, FAR case 2005-038. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    The 2005 Atlantic hurricane season was a record one in terms of the 
number of hurricanes and their strength. The size and strength of 
Hurricane Katrina resulted in one of the largest natural disasters to 
strike the United States. As a result of last year's hurricane season, 
Federal agencies are looking for methods to expedite their responses 
during an emergency. Emergency situations, however, go beyond natural 
disasters and include contingency operations as defined in FAR 2.101 
and actions to facilitate the defense against or recovery from nuclear, 
biological, chemical, or radiological attack against the United States.
    This rule revises FAR Part 18 to provide a single reference to the 
acquisition flexibilities already available in the FAR to facilitate 
and expedite acquisitions of supplies and services during all types of 
emergencies. For clarity and ease of use, the flexibilities are divided 
into two main groups. The first group titled ``Available Acquisition 
Flexibilities'' identifies the flexibilities that may be used anytime 
and do not require an emergency declaration. The second group titled 
``Emergency acquisition flexibilities'' identifies the flexibilities 
that may be used only after an emergency declaration or designation has 
been made by the appropriate official. The second group is further 
divided into three subgroups: contingency operation; defense or 
recovery from certain attacks; and incidents of national significance, 
emergency declaration, or major disaster declarations.
    In May 2003, the Office of Federal Procurement Policy (OFPP) 
published guidance on the use of emergency procurement flexibilities to 
help ensure agencies were well positioned to effectively meet the 
demands associated with fighting terrorism. The OFPP is currently 
updating its guidance to also address flexibilities that can be used in 
other emergency situations such as national emergencies. The final rule 
will include a reference to the updated OFPP guidance. The Councils 
would like to hear the views of interested parties on the sufficiency 
of these provisions.
    In particular, the Councils are interested in input on whether the 
provisions sufficiently clarify the existing FAR flexibilities that can 
be used in emergency situations or whether more detailed, comprehensive 
coverage is needed.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The interim rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act,5 U.S.C. 601, et seq., because the rule 
makes no change to contracting policy. Therefore, an Initial Regulatory 
Flexibility Analysis has not been performed. The Councils will consider 
comments from small entities concerning the affected FAR Part 18 in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C 601, et seq. (FAC 2005-11, 
FAR case 2005-038), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary to improve the Government's ability to expedite 
acquisitions of supplies and services during emergency situations. 
However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will 
consider public comments received in response to this interim rule in 
the formation of the final rule.

List of Subjects in 48 CFR Part 18

    Government procurement.

    Dated: June 28, 2006.
Ralph De Stefano,
Director,Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR part 18 as set forth below:
0
1. The authority citation for 48 CFR part 18 is revised to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

0
2. Add Part 18 to read as follows:

PART 18-EMERGENCY ACQUISITIONS

Sec.
18.000 Scope of part.
18.001 Definition.
Subpart 18.1-Available Acquisition Flexibilities
18.101 General.
18.102 Central contractor registration.
18.103 Synopses of proposed contract actions.
18.104 Unusual and compelling urgency.
18.105 Federal Supply Schedules (FSSs), multi-agency blanket 
purchase agreements (BPAs), and multi-agency indefinite delivery 
contracts.
18.106 Javits-Wagner O' Day (JWOD) specification changes.
18.107 Qualifications requirements.
18.108 Priorities and allocations.
18.109 Soliciting from a single source.
18.110 Oral requests for proposals.
18.111 Letter contracts.
18.112 Interagency acquisitions under the Economy Act.
18.113 Contracting with the Small Business Administration (The 8(a) 
Program).
18.114 HUBZone sole source awards.
18.115 Service-disabled Veteran-owned Small Business (SDVOSB) sole 
source awards.
18.116 Overtime approvals.
18.117 Use of patented technology under the North American Free 
Trade Agreement.
18.118 Bid guarantees.
18.119 Advance payments.
18.120 Assignment of claims.
18.121 Electronic funds transfer.
18.122 Protest to GAO.
18.123 Contractor rent-free use of Government property.
18.124 Extraordinary contractual actions.
Subpart 18.2--Emergency Acquisition Flexibilities
18.201 Contingency operation.
18.202 Defense or recovery from certain attacks.
18.203 Incidents of national significance, emergency declaration, or 
major disaster declaration.
18.204 Resources.

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).


18.000  Scope of part.

    (a) This part identifies acquisition flexibilities that are 
available for emergency acquisitions. These

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flexibilities are specific techniques or procedures that may be used to 
streamline the standard acquisition process. This part includes--
    (1) Generally available flexibilities; and
    (2) Emergency acquisition flexibilities that are available only 
under prescribed circumstances.
    (b) The acquisition flexibilities in this part are not exempt from 
the requirements and limitations set forth in FAR Part 3, Improper 
Business Practices and Personal Conflicts of Interest.


18.001   Definition.

    Emergency acquisition flexibilities, as used in this part, means 
flexibilities provided with respect to any acquisition of supplies or 
services by or for an executive agency that, as determined by the head 
of an executive agency, may be used--
    (a) In support of a contingency operation as defined in 2.101;
    (b) To facilitate the defense against or recovery from nuclear, 
biological, chemical, or radiological attack against the United States; 
or
    (c) When the President declares an incident of national 
significance, emergency declaration, or a major disaster declaration.

Subpart 18.1-- Available Acquisition Flexibilities


18.101  General.

    The FAR includes many acquisition flexibilities that are available 
to the contracting officer when certain conditions are met. These 
acquisition flexibilities do not require an emergency declaration or 
designation of contingency operation.


18.102  Central contractor registration.

    Contracts awarded to support unusual and compelling needs or 
emergency acquisitions are exempt from the requirements pertaining to 
Central Contractor Registration. (See 4.1102.)


18.103  Synopses of proposed contract actions.

    Contracting officers need not submit a synopsis notice when there 
is an unusual and compelling urgency and the Government would be 
seriously injured if the agency complied with the notice time periods. 
(See 5.202(a)(2).)


18.104  Unusual and compelling urgency.

    Agencies may limit the number of sources and full and open 
competition need not be provided for contracting actions involving 
urgent requirements. (See 6.302-2.)


18.105  Federal Supply Schedules (FSSs), multi-agency blanket purchase 
agreements (BPAs), and multi-agency indefinite delivery contracts.

    Streamlined procedures and a broad range of goods and services may 
be available under Federal Supply Schedule contracts (see Subpart 8.4), 
multi-agency BPAs (See 8.405-3(a)(4)), or multi-agency, indefinite-
delivery contracts (see 16.505(a)(7)). These contracting methods may 
offer agency advance planning, pre-negotiated line items, and special 
terms and conditions that permit rapid response.


18.106   Javits-Wagner-O'Day (JWOD) specification changes.

    Contracting officers are not held to the notification required when 
changes in JWOD specifications or descriptions are required to meet 
emergency needs. (See 8.712(d).)


18.107  Qualifications requirements.

    Agencies may determine not to enforce qualification requirements 
when an emergency exists. (See 9.206-1.)


18.108  Priorities and allocations.

    The Defense Priorities and Allocations System (DPAS) supports 
authorized national defense programs and was established to facilitate 
rapid industrial mobilization in case of a national emergency. (See 
11.6.)


18.109   Soliciting from a single source.

    For purchases not exceeding the simplified acquisition threshold, 
contracting officers may solicit from one source under certain 
circumstances. (See 13.106-1(b).)


18.110  Oral requests for proposals.

    Oral requests for proposals are authorized under certain 
conditions. (See 15.203(f).)


18.111   Letter contracts.

    Letter contracts may be used when contract performance must begin 
immediately. (See 16.603.)


18.112  Interagency acquisitions under the Economy Act.

    Interagency acquisitions are authorized under certain conditions. 
(See Subpart 17.5.)


18.113  Contracting with the Small Business Administration (The 8(a) 
Program).

    Contracts may be awarded to the Small Business Administration (SBA) 
for performance by eligible 8(a) firms on either a sole source or 
competitive basis. (See Subpart 19.8.)


18.114  HUBZone sole source awards.

    Contracts may be awarded to Historically Underutilized Business 
Zone (HUBZone) small business concerns on a sole source basis. (See 
19.1306.)


18.115   Service-disabled Veteran-owned Small Business (SDVOSB) sole 
source awards.

    Contracts may be awarded to Service-disabled Veteran-owned Small 
Business (SDVOSB) concerns on a sole source basis. (See 19.1406.)


18.116  Overtime approvals.

    Overtime approvals may be retroactive if justified by emergency 
circumstances. (See 22.103-4(i).)


18.117  Use of patented technology under the North American Free Trade 
Agreement.

    Requirement to obtain authorization prior to use of patented 
technology may be waived in circumstances of extreme urgency or 
national emergency. (See 27.208.)


18.118   Bid guarantees.

    The chief of the contracting office may waive the requirement to 
obtain a bid guarantee for emergency acquisitions when a performance 
bond or a performance bond and payment bond is required. (See 28.101-
1(c).)


18.119   Advance payments.

    Agencies may authorize advance payments to facilitate the national 
defense for actions taken under Public Law 85-804 (see Part 50, 
Extraordinary Contractual Actions). These advance payments may be made 
at or after award of sealed bid contracts, as well as negotiated 
contracts. (See 32.405.)


18.120  Assignment of claims.

    The use of the no-setoff provision may be appropriate to facilitate 
the national defense in the event of a national emergency or natural 
disaster. (See 32.803(d).)


18.121  Electronic funds transfer.

    Electronic funds transfer payments may be waived for acquisitions 
to support unusual and compelling needs or emergency acquisitions. (See 
32.1103(e).)


18.122  Protest to GAO.

    When urgent and compelling circumstances exist, agency protest 
override procedures allow the head of the contracting activity to 
determine that the contracting process may continue after GAO has 
received a protest. (See 33.104(b) and (c).)


18.123  Contractor rent-free use of Government property.

    Rental requirements do not apply to items of Government production 
and research property that are part of a

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general program approved by the Federal Emergency Management Agency and 
meet certain criteria. (See 45.404(a)(3) and (4).)


18.124   Extraordinary contractual actions.

    Part 50 prescribes policies and procedures for entering into, 
amending, or modifying contracts in order to facilitate the national 
defense under the extraordinary emergency authority granted by Public 
Law 85-804 (50 U.S.C. 1431-1434). This includes--
    (a) Amending contracts without consideration (see 50.302-1);
    (b) Correcting or mitigating mistakes in a contract (see 50.302-2); 
and
    (c) Formalizing informal commitments (See 50.302-3).

Subpart 18.2--Emergency Acquisition Flexibilities


18.201  Contingency operation.

    (a) Contingency operation is defined in 2.101.
    (b) Micro-purchase threshold. The threshold increases when the head 
of the agency determines the supplies or services are to be used to 
support a contingency operation. (See 2.101 and 13.201(g).)
    (c) Simplified acquisition threshold. The threshold increases when 
the head of the agency determines the supplies or services are to be 
used to support a contingency operation. (See 2.101.)
    (d) SF 44, Purchase Order-Invoice-Voucher. The normal threshold for 
the use of the SF 44 is at or below the micro-purchase threshold. 
Agencies may, however, establish higher dollar limitations for 
purchases made to support a contingency operation. (See 13.306.)
    (e) Test program for certain commercial items. The threshold limits 
authorized for use of the test program may be increased for 
acquisitions to support a contingency operation. (See 13.500(e).)


18.202   Defense or recovery from certain attacks.

    (a) Micro-purchase threshold. The threshold increases when the head 
of the agency determines the supplies or services are to be used to 
facilitate defense against or recovery from nuclear, biological, 
chemical, or radiological attack. (See 2.101.)
    (b) Simplified acquisition threshold. The threshold increases when 
the head of the agency determines the supplies or services are to be 
used to facilitate defense against or recovery from nuclear, 
biological, chemical, or radiological attack. (See 2.101.)
    (c) Commercial items to facilitate defense and recovery. 
Contracting officers may treat any acquisition of supplies or services 
as an acquisition of commercial items if the head of the agency 
determines the acquisition is to be used to facilitate the defense 
against or recovery from nuclear, biological, chemical, or radiological 
attack. (See 12.102(f)(1) and 13.500(e).)
    (d) Test program for certain commercial items. The threshold limits 
authorized for use of the test program may be increased when it is 
determined the acquisition is to facilitate defense against or recovery 
from nuclear, biological, chemical, or radiological attack. (See 
13.500(e).)


18.203  Incidents of national significance, emergency declaration, or 
major disaster declaration.

    (a) Authorized or required by statute. Agencies may limit the use 
of full and open competition when statutes authorize or require that 
the acquisition be made through another agency or from a specified 
source. This includes the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act. (See 6.302-5 and Subpart 26.2.)
    (b) Disaster or emergency assistance activities. Preference will be 
given to local organizations, firms, and individuals when contracting 
for major disaster or emergency assistance activities when the 
President has made a declaration under the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act. (See Subpart 26.2 and 6.302-
5(b)(5).)
    (c) Ocean transportation by U.S. flag vessels. The provisions of 
the Cargo Preference Act of 1954 may be waived in emergency situations. 
(See 47.502(c).)


18.204  Resources.

    (a) National Response Plan. The National Response Plan (NRP) 
provides a single, comprehensive framework for the management of 
domestic incidents where Federal involvement is necessary as required 
by the Homeland Security Act of 2002 (Public Law 107-296). The NRP only 
applies to incidents of national significance, defined as an actual or 
potential high-impact event that requires a coordinated and effective 
response by an appropriate combination of Federal, State, local, 
tribal, nongovernmental, and/or private-sector entities in order to 
save lives, minimize damage, and provide for long-term community 
recovery and mitigation activities. The Department of Homeland Security 
is responsible for the NRP. The NRP is available at http://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