[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:
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Summary Public Government Total
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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
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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