In Case of Emergency
There are federal procurement rules and regulations — and exceptions to those same rules — that must be sorted through when the government buys goods and services, including security products, integrated access control systems and guard services. These regulations can be confusing and time-consuming enough on any given day, but the problems are magnified when an emergency arises and the government needs the goods “yesterday.”
Several exceptions have been defined in the regulations over the years in order to provide a contracting officer with flexibility in the event of an emergency. However, typically even the savviest contracting officer was not always aware of the exceptions or did not understand when they were applied.
To increase awareness of available and legal procurement shortcuts, the Federal Acquisition Regulations (FAR) were revised this past summer to include a new chapter to highlight in one location the pre-existing exceptions or so-called “acquisition flexibilities” for quick and easy reference. The result is FAR Part 18 — Emergency Acquisitions. To be clear, the addition of FAR Part 18 did not create any new rules or regulations, but rather pulled together all emergency type exceptions that already existed in the FAR and put them in one chapter. It is emergency procurement in a nutshell.
FAR Part 18 is broken up into two groups of acquisition flexibilities. The first group, Available Acquisition Flexibilities, contains exceptions and procurement shortcuts that can be used anytime, whether there is an emergency or not. Examples include the use of sole-source awards and GSA Schedule contracts. While these procurement vehicles still have restrictions, the overall procurement process can be expedited by using these methods.
The second group, Emergency Acquisition Flexibilities, sets forth those flexibilities that can only be used during a contingency operation; for the defense or recovery from nuclear, biological, chemical or radiological attacks; or in response to declared national emergencies or major disasters. As defined in FAR 2.101, a contingency operation is a military operation that:
Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations or hostilities against an enemy of the United States or against an opposing military force; or
That results in the call or order to, or retention on active duty of members of the uniformed services during a war or during a national emergency, declared by the President or Congress. In the past, operations in the Persian Gulf, Haiti, Bosnia, Kosovo and Iraq have been declared contingency operations. The rescue and recovery efforts after Hurricane Katrina were also performed as a contingency operation.
In general, more procurement exceptions or flexibilities are available for smaller-dollar procurements that do not exceed specified monetary thresholds. That is, under the FAR, various standard procurement requirements do not apply when the cost of the sought-after goods or services falls below certain monetary thresholds. In particular, most procurement requirements are triggered at one of two monetary thresholds — the Micro-purchase threshold or the Simplified Acquisition Threshold.
The precise amount of the Micro-purchase and Simplified Acquisition thresholds, however, varies greatly depending on the type of operation the goods and services will support and where the goods or services will be used. For example, purchases of supplies or services under the Micro-purchase threshold do not have to be set-aside for small businesses and may be awarded without soliciting competitive quotations if the contracting officer considers the price to be reasonable [FAR 13.202(a)(2)]. Similarly, procurements under the Simplified Acquisition Threshold can be conducted using the Simplified Acquisition Procedures of FAR Part 13, which generally requires the solicitation of three quotes. Knowing where these lines are drawn can drastically reduce the amount of work a contracting officer needs to document and justify a procurement decision.
For a standard, routine procurement, the Micro-purchase threshold is $2,500, but this threshold rises to $15,000 if the purchase is in support of a contingency operation or will facilitate defense against or recovery from nuclear, biological, chemical or radiological attacks and the contract is awarded and performed inside the United States. For contracts awarded and performed outside the United States, the threshold is even higher at $25,000 [FAR 2.101]. Similarly, for a standard procurement, the simplified acquisition threshold is $100,000, but jumps to $250,000 if the purchase is in support of a contingency operation or will facilitate defense against or recovery from nuclear, biological, chemical or radiological attacks and the contract is awarded and performed inside the United States. It will jump even higher to $1,000,000 for contracts awarded outside the United States. The table above shows each threshold.
Of course, Micro-purchase and Simplified Acquisition Thresholds are based on the aggregate amount of the purchase. Requirements should not be broken down into several purchases that are less than the applicable thresholds in order to circumvent procurement regulations.
In addition to these higher emergency thresholds, additional flexibilities exist for contingency operation purchases and those for defense or recovery from certain attacks. For example, contracting officers may treat any acquisition of supplies or services as an acquisition of commercial items if the acquisition is to be used to facilitate the defense against certain attacks [FAR 18.202(c)]. Allowing an acquisition to be treated as a commercial item acquisition eliminates several time-consuming requirements, such as the need for contractors to provide certified cost and pricing data that the federal government would need to then review before awarding a contract.
These increased thresholds and other flexibilities were first deemed necessary to streamline the acquisition process for products and services that are urgently needed to promote Homeland security, combat terrorism and support U.S. troops in times of war. Hurricane Katrina demonstrated a further need to let all contracting officers and contractors know that these flexibilities are available and, when used properly, will make it possible to get critical supplies and services as soon as they are needed. Pass the word.
|Routine Purchases||$2,500||Micro-purchases are not set-aside for small business and may be awarded without soliciting competitive quotations if the contracting officer considers the price to be reasonable. FAR 13.202(a)(2).|
|Contingency Operation Purchases and Purchases for Defense or Recovery from Certain Attacks||For Award, Performance or Purchase Inside the US||$15,000||For the purchase of supplies or services that are used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical or radiological attack.|
|For Award, Performance or Purchase Outside the US||$25,000|
|SIMPLIFIED ACQUISITION THRESHOLD (“SAT”)|
|Routine Purchases||$100,000||Set aside for small businesses, when possible. Agencies must use Simplified Acquisition Procedures by soliciting and comparing quotes from three sources.|
|Contingency Operation Purchases and Purchases for Defense or Recovery from Certain Attacks||For Award, Performance or Purchase Inside the US||$250,000||For the purchase of supplies or services that are used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack. Simplified Acquisition Procedures must still be used.|
|For Award, Performance or Purchase Outside the US||$1,000,000|
About the Author
Andrew Mohr is a partner in the law firm of Cohen Mohr LLP and a Professorial Lecturer at American University in Washington, D.C. Mohr specializes in government and commercial contracts, including GSA schedules, security clearance, contract administration and compliance, teaming agreements, subcontracts, dealer contracts, regulatory analysis and compliance, bid protests and claims. Mohr’s email is [email protected]; he can be reached at (202) 342-2550, fax (202) 342-6147, and on the Internet at www.cohenmohr.com.