[Federal Register Volume 72, Number 159 (Friday, August 17, 2007)]
[Rules and Regulations]
[Pages 46342-46345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3797]


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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.

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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 http://www.whitehouse.gov/omb/procurement/guides/emergency_acquisitions_guide.pdf.
[FR Doc. 07-3797 Filed 8-16-07; 8:45 am]
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