[Federal Register Volume 68, Number 190 (Wednesday, October 1, 2003)]
[Rules and Regulations]
[Pages 56681-56682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24585]
[[Page 56681]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 10, 12, 13, 19, and 25
[FAC 2001-16; FAR Cases 2002-026 and 2002-003; Item IV]
RINS 9000-AJ54 and 9000-AJ40
Federal Acquisition Regulation; Procurements for Defense Against
or Recovery From Terrorism or Nuclear, Biological, Chemical or
Radiological Attack, and Temporary Emergency Procurement Authority
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 on a final rule
amending the Federal Acquisition Regulation (FAR) to implement section
836 of the Fiscal Year 2002 National Defense Authorization Act and
sections 852 through 856 and section 858 of the Homeland Security Act.
Those sections increase the amount of the micro-purchase threshold and
the simplified acquisition threshold and provide expanded access to
streamlined procedures for procurements of supplies or services by or
for an executive agency that are to be used to facilitate defense
against or recovery from terrorism or nuclear, biological, chemical, or
radiological attack.
DATES: Effective Date: October 1, 2003.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-
6091. Please cite FAC 2001-16, FAR cases 2002-026 and 2002-003.
SUPPLEMENTARY INFORMATION:
A. Background
FAR Case 2002-026, Procurements for Defense Against or Recovery
From Terrorism or Nuclear, Biological, Chemical or Radiological Attack.
An interim rule implementing sections 852 through 856 and section 858
of the Homeland Security Act (Public Law 107-296) was published in the
Federal Register at 68 FR 4048, January 27, 2003. The interim rule
provided Federal emergency procurement flexibilities by increasing the
amount of the micro-purchase threshold and the simplified acquisition
threshold for procurements and provided expanded access to streamlined
procedures for acquisitions of supplies or services by or for an
executive agency that, as determined by the head of the executive
agency, are to be used to facilitate defense against or recovery from
terrorism or nuclear, biological, chemical, or radiological attack. The
special increased thresholds and authorities under the Act apply to
acquisitions resulting from solicitations issued before November 25,
2003.
A total of four comments from five commentors was received in
response to the interim rule. Two commentors suggested that
micropurchases should be subject to the small business reservation.
This comment was not accepted.
Micropurchase authority is designed to enable agencies to make
purchases in a highly simplified manner, generally without application
of provisions and clauses and with minimal application of Government-
unique requirements. While agencies should always actively consider the
products and services of small businesses, irrespective of the size of
the purchase, the Councils believe that imposition of a Government-
unique regulatory buying mandate is generally inconsistent with the
overall purpose of micropurchase authority. The Councils note that 41
U.S.C. 428(b) states that micro-purchases not be subject to the small
business reservation: ``(b) Exclusion for micro-purchases. A purchase
by an executive agency with an anticipated value of the micro-purchase
threshold or less is not subject to section 15(j) of the Small Business
Act (15 U.S.C. 644(j)) and the Buy American Act (41 U.S.C. 10a-10c).''
Two commentors suggested that orders against GSA Schedules be
subject to small business set-aside. This comment was not accepted as
it was outside the scope of this case.
One commentor suggested that FAR 10.001 be revised to include
language from the statute requiring use of commercially available
market research methods, including use of commercial databases. This
comment was partially accepted and a change was made to FAR 10.002 to
add querying commercial databases as a market research technique. The
balance of the recommendation was not accepted because the regulation
already provides for using various market research methods.
This final rule finalizes the interim rule with the one change
addressed above.
FAR Case 2002-003, Temporary Emergency Procurement Authority. This
final rule also finalizes the interim rule issued in the Federal
Register at 67 FR 56116, August 30, 2002, to implement section 836 of
the Fiscal Year 2002 National Defense Authorization Act. That interim
rule increased the amount of the micropurchase threshold and the
simplified acquisition threshold for procurements of supplies or
services by or for DoD during Fiscal Years 2002 and 2003, where those
procurements are to facilitate the defense against terrorism or
biological or chemical attack against the United States. Also, the rule
provided that contracting officers acquiring biotechnology supplies or
biotechnology services, for use to facilitate the defense against
terrorism or biological or chemical attack against the United States,
may treat the supplies or services as commercial items. No comments
were received in response to that interim rule.
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 rule may 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 it affects the pool of
acquisitions that are reserved for small businesses. We have prepared a
Final Regulatory Flexibility Analysis. The analysis is summarized as
follows:
This rule finalizes two interim rules that amend the Federal
Acquisition Regulation (FAR) to implement Section 836 of the Fiscal
Year 2002 National Defense Authorization Act and Sections 852
through 856 and Section 858 of the Homeland Security Act (Public Law
107-296). Those sections increase the amount of the micro-purchase
threshold and the simplified acquisition threshold and provide
expanded access to streamlined procedures for procurements of
supplies or services by or for an executive agency that are to be
used to facilitate defense against or recovery from terrorism or
nuclear, biological, chemical, or radiological attack. The rule
affects the pool of acquisitions subject to the small business
reservation by raising the threshold for application of the
reservation for specified acquisitions to the increased micro-
purchase threshold (from $2,500 to $7,500/$15,000) and
correspondingly increasing the limitation to the increased
simplified acquisition threshold (from $100,000 to
[[Page 56682]]
$200,000/$250,000). No comments were received in response to the
Initial Regulatory Flexibility Analysis for either case. The
increased thresholds are limited to specified procurements. In
addition, the special authorities are only available for a short
period of time. There are no data available on the number of
procurements that will be eligible. However, we expect the number of
small entities that will be impacted by the increased thresholds to
this limited class of procurements to be very small.
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 Parts 2, 10, 12, 13, 19, and 25
Government procurement.
Dated: September 24, 2003.
Laura G. Auletta,
Director, Acquisition Policy Division.
Interim Rules Adopted as Final With Changes
0
Accordingly, DoD, GSA, and NASA adopt the interim rules amending 48 CFR
parts 2, 10, 12, 13, 19, and 25, which were published in the Federal
Register at 67 FR 56116, August 30, 2002, and 68 FR 4048, January 27,
2003, as a final rule with the following change:
PART 10--MARKET RESEARCH
0
1. The authority citation for 48 CFR part 10 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).
10.002 [Amended]
0
2. Amend section 10.002 in paragraph (b)(2)(iv) by removing
``Government'' and adding ``Government and commercial'' in its place.
[FR Doc. 03-24585 Filed 9-30-03; 8:45 am]
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