2011-18380. Defense Federal Acquisition Regulation Supplement; Simplified Acquisition Threshold for Humanitarian or Peacekeeping Operations (DFARS Case 2011-D032)

AGENCY:

Defense Acquisition Regulations System, Department of Defense (DOD).

ACTION:

Interim rule.

SUMMARY:

DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the authority provided by 10 U.S.C. 2302(7) to invoke a simplified acquisition threshold that is two times the amount specified at 41 U.S.C. 134 (formerly 41 U.S.C. 403(11)), as amended by section 807 of the National Defense Authorization Act for Fiscal Year 2005, to support a humanitarian or peacekeeping operation. The current simplified acquisition threshold is $150,000 as specified in Federal Acquisition Regulation 2.101.

DATES:

Effective Date: July 25, 2011.

Comment Date: Comments on the interim rule should be submitted in writing to the address shown below on or before September 23, 2011 to be considered in the formation of the final rule.

ADDRESSES:

Submit comments identified by DFARS Case 2011-D032, using any of the following methods:

• Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting “DFARS Case 2011-D032” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2011-D032.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2011-D032” on your attached document. Follow the instructions for submitting comments.

• E-mail: [e-mail]. Include DFARS Case 2011-D032 in the subject line of the message.
• Fax: [phone].
• Mail: Defense Acquisition Regulations System, ATTN: Meredith Murphy, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov,, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT:

Meredith Murphy, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

United States laws provide for special emergency procurement authorities to be used—

(a) In support of a contingency operation;

(b) To facilitate the defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States; and

(c) In support of a humanitarian or peacekeeping operation.

The first two of the authorities above were made available for use by agencies in addition to DoD by placing them at 41 U.S.C. 1903 (formerly 41 U.S.C. 428a). The latter authority resides solely in DoD.

The three special emergency procurement authorities are specified in statute:

• Contingency operation: 10 U.S.C. 101(13) and 41 U.S.C. 1903 (formerly 41 U.S.C. 428a).
• Defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States: 41 U.S.C. 1903 (formerly 41 U.S.C. 428a).
• Humanitarian or peacekeeping operation: 10 U.S.C. 2302(7).

After September 11, 2001, the Governmentwide special emergency procurement authorities were enacted (41 U.S.C. 1903 (formerly 41 U.S.C. 428a). These authorities provided for increases in the simplified acquisition threshold and/or micropurchase threshold depending on what type of special emergency is declared. The Federal Acquisition Regulation (FAR) was revised to implement the authority to increase thresholds when supporting a contingency operation or facilitating the defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States.

While the definition of a humanitarian or peacekeeping operation is included in the FAR at 2.101, 41 U.S.C. 1903 does not provide Governmentwide authority for raising the simplified acquisition threshold in support of such operations. Therefore, its authority is included in the DFARS. Specific to the authority to support a humanitarian or peacekeeping operation, the simplified acquisition threshold can be increased to double the current basic simplified acquisition threshold, currently $150,000 as specified in FAR 2.101, but only when the purchase is made, or the contract is awarded and performed, outside the United States. There is no comparable authority to increase the micropurchase threshold for acquisitions in support of a humanitarian or peacekeeping operation.

II. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory 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 a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This is not a major rule under 5 U.S.C. 804.

III. Regulatory Flexibility Act

DoD does not expect this interim rule to 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 the rule does not impose any requirements on U. S. small businesses. The statute applies only to purchases made, or contracts awarded and performed, outside the United States and only to those acquisitions that directly support a humanitarian or peacekeeping operation. Therefore, an initial regulatory flexibility analysis has not been performed.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2011-D032) in correspondence.

IV. Paperwork Reduction Act

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

V. Determination To Issue an Interim Rule

Pursuant to 41 U.S.C. 1707 (formerly 41 U.S.C. 418b) and FAR 1.501-3(b), a determination has been made under the authority of the Secretary of Defense (DoD) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the statutory authority for doubling the simplified acquisition threshold in support of a humanitarian or peacekeeping operation is not included in the DFARS currently, and is, therefore, generally not known to be available. It is imperative that DoD contracting officers be aware of this threshold for immediate implementation in DoD acquisitions. However, DoD 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 202 and 218

• Government procurement

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 202 and 218 are amended as follows:

1. The authority citation for 48 CFR parts 202 and 218 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 202—DEFINITIONS OF WORDS AND TERMS

2. In section 202.101, add in alphabetical order the definition “ Simplified acquisition threshold” to read as follows:

202.101

Definitions.

* * * * *

Simplified acquisition threshold, in addition to the meaning at FAR 2.101, means $300,000 when soliciting or awarding contracts to be awarded and performed outside the United States, or making purchases outside the United States, for acquisitions of supplies and services that, as determined by the head of the contracting activity, are to be used to support a humanitarian or peacekeeping operation, as defined at FAR 2.101.

PART 218—EMERGENCY ACQUISITIONS

218.270

[Redesignated as 218.271]

3. Redesignate section 218.270 as section 218.271 and add new section 218.270 to read as follows:

218.270

Humanitarian or peacekeeping operation.

The term “humanitarian or peacekeeping operation” is defined at FAR 2.101. In accordance with 10 U.S.C. 2302(7), when a humanitarian or peacekeeping operation is declared, the simplified acquisition threshold is raised to $300,000 for DoD purchases that are awarded and performed, or purchases that are made, outside the United States in support of that operation. See 202.101.