2019 06620

Transcript

1 This document is scheduled to be published in the Federal Register on 05/06/2019 and available online at https://federalregister.gov/d/2019-06620 govinfo.gov , and on DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION , 10 18 , and 26 , s 2 12, 13, 48 CFR Part Docket No. 2017 - Item I; - 02; FAR Case 2017 - [FAC 2019 009; Sequence 0009, No. 1] RIN 9000 - AN45 S pecial Emergency Federal Acquisition Regulation : Procurement Authority : Department of Defense (DoD), General Services AGENCIES Administration (GSA), and National Aeronautics and Space Administration (NA SA). . Final ACTION: rule SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to f the National Defense Authorization s o implement section (FY) 2017 to expand special (NDAA) for Fiscal Year Act for acquisitions of emergency procurement authorities facilitate defense against or supplies or services that international disaster recovery from cyber attack, provide assistance under the Foreign Assistance Act of 1961 , or an nse to major disaster under support respo emergency or Disaster Relief and Emergency Stafford Robert T. the Act. Assistance

2 DATE : Effective Date : [Insert date 30 days after date of S publication in the FEDERAL REGISTER ] . : M s. Camara Francis , FOR FURTHER INFORMATION CONTACT 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 20 19 - 02 , FAR Case 201 7 - 009 . SUPPLEMENTARY INFORMATION : . Background I in the DoD, GSA, and NASA published a proposed rule Federal Register at 83 FR 29736 on June 26 , 2018 , to implement s 816 and 1641 of the NDAA section for F Y 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 su pplies 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 s to pursuant to 22 U.S.C. 2292 et seq. ; or support response 2

3 an emergency or major disaster (42 U.S.C. 5122), except th that new authority allows treatment of acquisitions , is 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. Expected Impact of the Final III. and Proposed Cost Rule 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 ear, biological, chemical, or against or recovery from nucl 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 Un ited 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 Additionally, prior to the n)). requirements (Constructio 3

4 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, insi de 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 apply to acquisitions emergency procurement authorities to of supplies or services that facilitat defense against or e a cyber attack recovery from a request from the ; support Secretary of State or the Administrator of th e 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 em e rgency 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 4

5 services covered by the expanded special emergency authorities. Acquisitions with an estimated procurement value between the MPT or SAT and the hi gher thresholds for the expanded special emergency procurement authorities will , thereby reducing the use simplified procedures 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 Pr esent Value - $18,969,086 - $3,342,671 - $22,311,757 $1,561,823 - Annualized Costs - $1,327,836 - $233,987 Annualized Value $1,274,912 - - $1,083,909 - $191,003 Costs (as of 2016 if Year 1 is 2019) To access the full r egulatory c ost a nalysis for this rule, go to the Federal eRulemaking Portal at , search for www.regulations.gov FAR Case 2017 “ - 00 9 , ” click “ ” and view “ Supporting Documents. ” Open Docket, I V . Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including - Shelf Items Commercially Available Off - the 5

6 rule does not add any new solicitation provisions This , or impact any existing provisions or or clauses contract clauses. V . Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and b enefits of available regulatory a lternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public h ealth 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 not , significant regulatory action a nd therefore , was subject to review under E.O. 12866 , section 6(b) of Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. V I . 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 o f this preamble . Regulatory Flexibility Act V I I . 6

7 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 rule implements section s 816 and 1641 of final NDAA the FY 2017 (Pub . L . 114 - 328), which amend 41 for 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. The re There were no public comments. quirements in not expected to have a significant economic the rule are impact on a substantial number of small entities because the rule merely expands existing flexibilities associated with contra cting under the SAT to include defense against attacks, y from cyber international disaster or recover , assistance, emergenc ies or major disasters and response to in which a smaller percentage of small entities participate, as compared to other than small entities. in the Based on an average of contract actions reported 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 fa cilitate 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 in the U.S.; disaster s 7

8 This rule reduces compliance requirements on small entities, resulting in estimated savings to affected small entities of appr oximately $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 furt her reduce impact on small entities. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division . The Regulatory has submitted a copy of the FRFA to Secretariat Division the Chief Counsel for Advocacy of the Small Business Administration . II I . Paperwork Reduction Act V This final rule does not contain any information collection requirements that would require the approval of the Office of Management and Budget under the Pap erwork 35). Reduction Act (44 U.S.C . chapter 8

9 List of Subjects in 48 CFR Part s 2 , 10 , 12, 13, 18 , and 26 Government p rocurement . March 19, 2019. Dated: William F. Clark , Director, - Office of Government wide Acquisition Policy, Office of Acquisition Policy, Office of Government - wide Policy. 9

10 s 2, Therefore, DoD, GSA, and NASA amend 48 CFR part 10, 12, 13, 18, and 26 as set forth below: s 1. The authority citation for 48 CFR part 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 2. Amend section 2.101 in paragraph (b)(2) by — a. Adding in alphabetical order the de finitions Major disaster ”; “ Emergency ” and “ introductory text of the b. Revising paragraph (3) ition Micro “ defin - purchase threshold” ; and of the c. Revising paragraph (1) introductory text Simplified acquisition threshold ”. definition “ and revisions read as follows: The additions 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 dent, instance for which, in the determination of the Presi Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect 10

11 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 ). * * * * * , as used in 6.208, 13.201, 13.500, Major disaster 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 eru ption, 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 d isaster 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 to facilitate defense support a contingency operation; against or recovery from cyber, nuclear, biological, 11

12 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 ion of international disaster assistance pursuant to provis 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 ge Rate Requirements U.S.C. chapter 31, subchapter IV, Wa (Construction) (41 U.S.C. 1903) — * * * * * Simplified acquisition threshold * * * cquisitions of supplies or services that, as A (1) determined by the head of the agency, are to be used to ; support a contingency operation to facilitate defense cyber, nuclear, biological, against or recovery from ; to support a request from chemical, or radiological attack the Secretary of State or the Administrator of the United States Agency for International Development to facilitate prov ision 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), (41 U.S.C. 1903), the term means — * * * * * MARKET RESEARCH — PART 10 12

13 10.001 [Amended] 3. section 10.001 by removing from paragraph Amend (a)(2)(vi)(A) “recovery from” and adding “recovery from cyber,” in its place. PART 12 — ACQUISITION OF COMMERCIAL ITEMS 1 2 .1 02 [Amended] 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 5. Amend section 13.201 by revising paragraph (g)(1) s introductory text (g) (2) to read as follows: and 13 2 01 General . . * * * * * For acquisitions of supplies or services that, (g)(1) 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 suppo rt 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 seq .; or to support response to an 22 U.S.C. 2292 et 13

14 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. * * * * * 6. Amend section 13.500 by revising paragraph (c)(1) to read as follows: 13 . 50 0 General . * * * * * (c) * * * The acquisition is for commercial items that, (1) 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 a ttack; 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; 14

15 or to support response to an emergency or major disaster, o r * * * * * PART 18 — EMERGENCY ACQUISITIONS 7. Amend section 18.001 by — a. Revising paragraph (b); b. Redesignating paragraph (c) as paragraph (d); and c. Adding a new paragraph (c). The revision and addition read as follows: 18 . 0 01 Definition. * * * * * To facilitate the defense against or recovery (b) 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 Sta tes Agency for International Development to facilitate the provision of international disaster assistance; or * * * * * 8. Revise section 18.202 to read as follows: 18.202 Defense or recovery from certain events. The threshold (a) Micro - purchase threshold . increases when the head of the agency determines the 15

16 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 dis aster 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) mercial Treating certain items as com 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, bio logical, 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 16

17 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 9. Revise the heading for subpart 26.2 to read as follows: Subpart 26.2 — Major Disaster or Emergency Assistance Activities * * * * * 10. Amend section 26.202 by designating the dding a as paragraph (a) undesignated paragraph and 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 rity to use an increased micro - purchase threshold and autho simplified acquisition threshold. Billing Code: 6820 - EP - 06620 Filed: 5/3/2019 8:45 am; Publication Date: 5/6/2019] [FR Doc. 2019 17

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