07-61. Revision of Department of Homeland Security Acquisition Regulation

AGENCY:

Department of Homeland Security.

ACTION:

Interim rule with requests for comments.

SUMMARY:

The Department of Homeland Security (DHS) is amending its acquisition regulation to reflect a statutorily-mandated jurisdictional change for the agency Board of Contract Appeals from the Department of Transportation Board of Contract Appeals to the Civilian Board of Contract Appeals. DHS is also making several non-substantive amendments to its acquisition regulation in order to reflect organization changes.

DATES:

This rule is effective January 11, 2007. Comments must reach the Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy on or before February 12, 2007, to be considered in the formation of the final rule.

ADDRESSES:

Please submit written comments, identified by agency name and docket number DHS-2007-0001, by one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

(2) By mail to the Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy and Oversight, ATTN: Anne Terry, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT:

Anne Terry, Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy, at [phone].

SUPPLEMENTARY INFORMATION:

I. Request for Comments

II. Background

III. Discussion of Interim Rule

IV. Regulatory Requirements

A. Executive Order 12866 Assessment

B. Regulatory Flexibility Act

C. Good Cause To Issue an Interim Rule

I. Request for Comments

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments should be organized by Homeland Security Acquisition Regulation (HSAR) Part, and address the specific section that is being commented on. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. See ADDRESSES above for information on how to submit comments. If you submit comments by mail, please submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you would like DHS to acknowledge receipt of comments submitted by mail, please enclose a self-addressed, stamped postcard or envelope. DHS will consider all comments and material received during the comment period.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

II. Background

In the National Defense Authorization Act for Fiscal Year 2006, Congress established the Civilian Board of Contract Appeals (CBCA), and terminated every agency Board of Contract Appeals (BCA), except those for the armed services, the Tennessee Valley Authority, and the U.S. Postal Service. Public Law 109-163, Title VIII, section 847.

The General Services Administration (GSA) announced this change by Notice in the Federal Register. See 71 FR 65825 (Nov. 9, 2006). In that Notice, GSA stated that, effective January 6, 2007, jurisdiction would be transferred from the BCAs for GSA and the Departments of Agriculture, Energy, Housing and Urban Development, Interior, Labor, Transportation, and Veterans Affairs to the CBCA.

Through January 5, 2007, DHS contract appeals were handled by the Department of Transportation's BCA. However, on January 6, 2007, BCA jurisdiction for DHS transferred to the CBCA. While the statutory change with regard to BCA jurisdiction was self-executing, this rule is required to ensure that the information contained in the HSAR regarding contract appeals is accurate, and corresponds to the requirements of section 847 of the 2006 National Defense Authorization Act.

This rule also provides technical amendments to correct organizational information reflected in the HSAR.

General changes made to HSAR by this rulemaking are provided in the list below.

III. Discussion of Interim Rule

The interim rule revises HSAR 48 CFR 3001.104, 3002.270, 3033.201, 3033.211 and 3033.214 to implement Public Law 109-163, Title VIII, Section 847 (jurisdictional change for hearing and deciding contract appeals for DHS).

This rule also establishes additional technical amendments at HSAR 48 CFR 3001.105-2 and 3002.101 to correct nomenclature for the Federal Emergency Management Agency in the HSAR.

IV. Regulatory Requirements

A. Executive Order 12866 Assessment

DHS has determined that this interim rule is not a major rule under 5 U.S.C. 804, nor is it a significant regulatory action under Executive Order 12866, Regulatory Planning and Review. It therefore does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order, nor has it been reviewed by the Office of Management and Budget.

B. Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

C. Good Cause To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Homeland Security that urgent and compelling reasons exist to promulgate this interim rule regarding jurisdictional changes to hearing and deciding contract appeals for DHS without prior opportunity for public comment. This action is necessary because the effective date for the transfer of jurisdiction from the DOTBCA to the CBCA for DHS contract appeals was January 6, 2007. While the statute is self-executing, DHS believes that it is important to amend its regulations promptly in order to ensure that the regulation reflects accurate information as to the contract appeals process. Moreover, the jurisdictional changes reflected in this rule are the results of Congressional action, rather than a new DHS policy. Accordingly, providing an opportunity to comment before the change is implemented is impracticable and not in the public interest.

However, pursuant to Public Law 98-577 and Federal Acquisition Regulation (FAR) 48 CFR 1.501, DHS will consider public comments received in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 3001, 3002, and 3033

• Government procurement

Dated: January 4, 2007.

Elaine C. Duke,

Chief Procurement Officer.

Accordingly, DHS amends 48 CFR parts 3001, 3002 and 3033 as follows:

PART 3001—FEDERAL ACQUISITION REGULATION SYSTEM

1. The authority citation for 48 CFR parts 3001, 3002, and 3033 continues to read as follows:

Authority: 41 U.S.C. 418b (a) and (b).

2. Amend Section 3001.104 by revising paragraphs (b) and (c) to read as follows:

3001.104

Applicability.

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(b) The Transportation Security Administration (TSA) exception to this regulation is authorized by the Aviation and Transportation Security Act of 2001 (section 101(a) of Public Law 107-71).

(c) Contracts involving Non-Appropriated Fund Instrumentalities (NAFIs) must contain suitable dispute provisions and may provide for appellate dispute jurisdiction in the Civilian Board of Contract Appeals (CBCA). However, the contract must not attempt to confer court jurisdiction that does not otherwise exist.

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3. Amend Section 3001.105-2 by revising paragraph (a) to read as follows:

3001.105-2

Arrangement of regulations.

(a) General. The HSAR, which encompasses both Department-wide and Component-unique guidance, conforms to the arrangement and numbering system prescribed by 48 CFR 1.105-2. Guidance that is unique to a Component contains the organization's acronym or abbreviation directly following the title. The following acronyms apply:

Bureau of Customs and Border Protection (CBP);

Bureau of Immigration and Customs Enforcement (ICE);

DHS Office of Procurement Operations (OPO);

Federal Emergency Management Agency (FEMA);

Federal Law Enforcement Training Center (FLETC);

Transportation Security Administration (TSA);

U.S. Coast Guard (USCG); and

U.S. Secret Service (USSS).

PART 3002—DEFINITIONS OF WORDS AND TERMS

4. Amend Section 3002.101 by revising the definition for “Component” to read as follows:

3002.101

Definitions.

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Component means the following entities for purposes of this chapter:

(1) Bureau of Customs and Border Protection (CBP);

(2) Bureau of Immigration and Customs Enforcement (ICE);

(3) DHS Office of Procurement Operations (OPO);

(4) Federal Emergency Management Agency (FEMA);

(5) Federal Law Enforcement Training Center (FLETC);

(6) Transportation Security Administration (TSA); (TSA is exempt from the HSAR and HSAM, pursuant to the “Aviation and Transportation Security Act of 2001”);

(7) U.S. Coast Guard (USCG); and

(8) U.S. Secret Service (USSS).

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5. Section 3002.270 is revised to read as follows:

3002.270

Abbreviations.

CBCA Civilian Board of Contract Appeals

CFO Chief Financial Officer

CIO Chief Information Officer

COCO Chief of the Contracting Office

COR Contracting Officer's Representative

COTR Contracting Officer's Technical Representative

CPO Chief Procurement Officer

D&F Determination and Findings

FOIA Freedom of Information Act

HCA Head of Contracting Activity

J&A Justification and Approval for Other than Full and Open Competition

KO Contracting Officer

MD Management Directive

OCPO Office of the Chief Procurement Officer

OIG Office of the Inspector General

OSDBU Office of Small and Disadvantaged Business Utilization

PCR SBA's Procurement Center Representative

RFP Request for Proposal

SBA Small Business Administration

SBS Small Business Specialist

SPE Senior Procurement Executive

PART 3033—PROTESTS, DISPUTES, AND APPEALS

6. Section 3033.201 is revised to read as follows:

3033.201

Definitions.

Agency Board of Contract Appeals means the Civilian Board of Contract Appeals (CBCA).

7. Section 3033.211 is revised to read as follows:

3033.211

Contracting Officer's decision.

For DHS contracts, the Board of Contract Appeals (BCA) noted in (FAR) 33.211 is the Civilian Board of Contract Appeals (CBCA) 1800 F Street, NW., Washington, DC 20405.

8. Section 3033.214(c) introductory text is revised to read as follows:

3033.214

Alternate disputes resolution (ADR).

(c) The Administrative Dispute Resolution Act (ADRA) of 1996, as amended, 5 U.S.C. 571, et seq., authorizes and encourages agencies to use mediation, conciliation, arbitration, and other techniques for the prompt and informal resolution of disputes, and for other purposes. CBCA guidance on ADR may be obtained at http://www.gsbca.gsa.gov/​CBCA-17712-v1-CBCA_​ADR_​INFORMATION.pdf or from the CBCA upon request. ADR procedures may be used—

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