As part of Operation “Enduring Freedom,” Under Secretary of Defense for Acquisition Pete Aldridge issued a memo stating the current national emergency meets the definition of “contingency operation” that allows for a raft of emergency contracting procedures aimed at maintaining the industrial base and expediting the flow of essential supplies to support the war on terrorism.  Expediting procurements of essential supplies and services is the watchword that warrants relaxation or even abandonment of otherwise sacrosanct principles of “full and open competition.”  For example, FAR 6.302-3(a)(2)(I) and other provisions in the DFARS state full and open competition need not be provided when one or more designated sources decide it is necessary to maintain a facility, producer, manufacturer or other supplier during a national emergency.  Other departures from “business as usual” along with regulatory references to meet the emergency include (we obtained these from the October 17 issue of The Government Contractor):

1.  The government can force contractors to perform defense contracts on a preferential or priority basis even if this causes them to lose money or breach their commercial contracts (FAR 11.602; DFARS 211.602).

2.  Debarred or suspended contractors may still be eligible to provide services and supplies for emergencies (Federal Property Management Regulations 105-68.200).

3.  Standard Form 44, “Purchase Order-Invoice-Voucher”, a multipurpose purchase order form commonly used for on-the-spot, over-the-counter purchases at or below the micro-purchase threshold of $2,500 may be used for purchases over that threshold (FAR 13.306(a)(1).

4.  Oral requests for proposals are authorized when delays associated with a written solicitation would hurt the government.  Also, agencies need not publicize proposed contract actions (FAR 15-203(f), 5.202).

5.  The government need not provide payments through electronic funds transfers (FAR 32.1103(e).

6.  Prospective contractors need not register in the Central Contractor Registration database before award of a contract, basic ordering agreement or blanket purchase agreement (DFARS 204.7302(d).

7.  Alternative provisions for default terminating a fixed price contract for construction or demolition (FAR 49.504, 52.249-10).

8.  Agencies are authorized, but not required, to include a “no set-off” commitment in contracts awarded during an national emergency.  Such commitments prevent the government from applying against payments to an assignee (e.g. a financial institution) any liability of the contractor to the government (FAR 32.803(d), (e); DFARS 232.803(d).

In addition, the Defense Department is raising the threshold to use the government-wide purchase card to $200,000 per transaction for “stand-alone” purchases.  Stand-alone purchases are those that include both purchase and payment and will not apply to payments for items or goods acquired through other contract vehicles.  Conditions for using the purchase card are subject to the DFARS and (1) the supplies or services must be immediately available and (2) only one delivery and one payment will be made.  

Also, Principle Deputy Assistant Secretary for Acquisition and Management Darleen Druyan issued a memo authorizing considerably more flexibility in awarding new contracts and administering existing ones to meet the needs of the war on terrorism.  Example cited include “liberal use of Undefinitized Contract Actions, urgent and compelling Justifications and Authorizations, options for increased quantities, accelerated delivery options, etc.”

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