Terrorist Attacks Trigger Federal Procurement Initiatives
December 26, 2001
David Dempsey - Northern Virginia
In the wake of the September 11th terrorist attacks, the federal government
has taken steps to streamline federal procurement policies in order to react to
this national emergency. These initiatives do not change procurement policies
and procedures, but they do emphasize the flexibility inherent in the
procurement regulations to react to emergency situations.
President Bush's proclamation of a national emergency after the terrorist
attacks, and the ongoing efforts of U.S. military forces engaged in the
anti-terrorist campaign make it clear that the federal government is not
conducting "business as usual." Federal agencies are immersed in
assessing vulnerabilities to terrorist attacks and taking rapid action to
mitigate risks. These unprecedented events permit the federal government to make
procurement decisions based on "unusual and compelling urgency," the
result of which is, in many cases, a relaxation of procurement policies and
requirements, which allow federal agencies to contract quickly in response to
the nation's security and defense needs.
On October 9, 2001, the Under Secretary of Defense authorized the use of
"contingency operations" contracting procedures for Operation
"Enduring Freedom." Contingency operations begin when the President
decides to commit U.S. military forces to respond to developing world conditions
that, in his judgment, affect U.S. interests. Emergency and supplemental funding
are made available to support the costs associated with contingency operations.
On October 25, 2001, the Department of Defense (DoD) announced that the Under
Secretary of Defense for Acquisition, Technology and Logistics and the Combating
Terrorism Technology Support Office Technical Support Working Group are jointly
sponsoring a Broad Agency Announcement (BAA) seeking assistance in fighting
terrorism. The Pentagon is looking for concepts that can be developed into
full-scale contracts to meet four general requirements:
- combating terrorism
- location and defeat of hard or difficult targets
- protracted operations in remote locations
- countermeasures to weapons of mass destruction
Each requirement further defines specific areas of expertise being sought,
including, among others, computer and information operations; image and voice
recognition; physical security; advanced distributed learning; early warning
capability; and chemical, biological, radiological and nuclear countermeasures.
The BAA provides for a three-phase process in which interested parties were
to submit an initial one-page description of their concept by December 23, 2001.
In Phase II, the DoD will ask for a more detailed concept description (up to 12
pages) for those submissions in which there is significant interest. In Phase
III, offerors of the most promising concepts will be invited to submit full
proposals that may form the basis for a contract. The earliest contract awards
for submittals under this BAA are anticipated to occur late in the third quarter
of Fiscal Year 2002.
On October 5, 2001, the U. S. Air Force issued a memorandum calling for
"rapid, agile contracting support" during "Enduring
Freedom," and specifically identified the following authorities and methods
available to Air Force "acquisition warriors" in support of the
Campaign:
- A contracting officer need not submit a synopsis of proposed contract
action when such disclosure would compromise national security; or when
contracting without full and open competition (or for purchases conducted
using simplified acquisition procedures, if unusual or compelling urgency
precludes competition to the maximum extent practicable) and the government
would be seriously injured if an agency complies with proposed contracting
action notice requirements. See Federal Acquisition Regulation (FAR), §§
5.202, 5.203, 6.302.
- A contracting officer may look to authorized exemptions to competitive
contracting when necessitated by an "unusual and compelling
urgency," and when full and open competition is determined not to be in
the interest of national security or the public interest. See FAR §§
6.302, 6.303.
- Letter contracts may be used when the government's interests demand that a
contractor be given a binding commitment so that work can begin immediately.
See FAR § 16.603.
- Oral requests for proposals are authorized when processing a written
solicitation would delay the acquisition of supplies or services to the
detriment of the government. See § FAR 15.203.
- The use of Indefinite Delivery/Indefinite Quantity task orders allows for
the placement of orders using any medium specified in a contract. Also, when
an agency's need for supplies or services is urgent, the agency may utilize
the fair opportunity process exception when placing an order in excess of
$2,500. See FAR § 16.505.
Under the Defense Production Act of 1950, the Defense Priorities and
Allocation System (DPAS) has immediate significance-any contract in furtherance
of "Enduring Freedom" receives a priority over all contracts (defense
and commercial) if so directed by a contracting officer. See 15 C.F.R. § 700 et
seq. The Defense Production Act explicitly encourages small businesses to
"make the greatest possible contribution" to the national defense (see
50 U.S.C. App. § 2151), so small businesses are very definitely a part of the
contingency contracting equation.
Under the Anti-Deficiency Act (31 U.S.C. § 1341), a contracting officer is
prohibited from making or authorizing an expenditure or obligation exceeding an
appropriation. An exception, however, is found at 41 U.S.C. § 11, The Food and
Forage Act, which permits a DoD contracting officer to incur an obligation in
excess of an appropriation for food, fuel, forage, and related items necessary
to meet current year needs. For contracts related to "Enduring
Freedom," companies should be mindful of this authority when discussing
with, or proposing solutions to, contracting officers during the government's
acquisition planning, market research, acquisition of commercial items, or use
of Simplified Acquisition Procedures for items covered by The Food and Forage
Act.
For more information, contact David Dempsey or Dorothy Slovak at
1-888-688-8500 or via e-mail at ddempsey@hklaw.com or
dslovak@hklaw.com,
respectively.