The government’s response to the coronavirus pandemic implicates a host of authorities of interest to contractors, from those under the Stafford Act to its recently invoked Defense Production Act powers. The government has another critical, and perhaps under-examined, set of tools at its disposal to meet the demands of the pandemic: FAR Part 18, “Emergency Acquisitions,” catalogues authorities that give the government greater ability to acquire goods in a streamlined, accelerated manner. Contractors should take note of FAR Part 18 given the government’s urgent needs for COVID-19 related supplies and services.FAR Part 18 is divided into two main sections. The first, Subpart 18.1, catalogues a number of acquisition flexibilities that are generally available to the government if specified conditions are met. While the below is not exhaustive, some of the key provisions include:
- Waiver of SAM registration requirement. Contractors are not required to register in the System for Award Management (“SAM”) at the time they submit offers provided that certain circumstances are met. This registration requirement is not waived, however, for contractors seeking to gain access to the Disaster Response Registry. See FAR 4.1102; FAR 6.302-2.
- Waiver of full and open competition. Agencies are not required to provide full and open competition for “contracting actions involving urgent requirements.” See FAR 6.302-2.
- Non-enforcement of qualification requirements. Agencies may decline to enforce certain qualification requirements during an emergency in accordance with FAR 9.206-1.
- Single source solicitation. Contracting officers can solicit from a single source for purchases under the simplified acquisition threshold, see FAR 13.106-1, and, as discussed below, those thresholds are increased in response to declarations of emergency or major disaster.
- Patents. Agencies may waive the requirement to obtain authorization prior to use of patented technology in circumstances of extreme urgency or national emergency. See FAR 27.204-1.
- Assignment of Claims. A no-setoff provision may be included in contracts to facilitate national defense in the event of an emergency. See FAR 32.803(d).
- Bid Protest Override Procedures. Under “urgent and compelling circumstances,” agencies can allow a contract award or contract performance to continue even after GAO receives a pre-award or post-award bid protest. See FAR 33.104(b) & (c). Likewise — although not expressly mentioned in FAR Part 18 — when “[c]ontract performance will be in the best interests of the United States,” agencies can allow contract performance to continue even after a post-award protest. See FAR 33.104(c).
The second half of FAR Part 18 describes additional acquisition flexibilities that become available when there is “an emergency declaration, or a major disaster declaration” among other occurrences. See FAR 18.001(a)-(d). The FAR defines those declarations as declarations by the President pursuant to the Stafford Act, see FAR 2.101, and the President issued such a declaration on March 13.
That declaration triggers the availability of a few provisions particularly relevant to COVID-19 contractors. FAR 18.202 raises the simplified acquisition limit to $750,000, and also raises the limit for use of FAR Part 13 simplified acquisition procedures for commercial items to $13 million. These increased limits allow agencies to streamline affected procurements — and to make greater use of single-source procurements. See FAR 13.106-1; FAR 13.501. In addition, FAR 18.203 provides that in the event of a declaration under the Stafford Act, “[p]reference will be given to local businesses, firms, and individuals when contracting for major disaster or emergency assistance activities. . . .”
Some agencies have already begun invoking the emergency acquisition flexibilities at FAR Part 18 in response to COVID-19. On March 15, the Department of Veterans Affairs issued a memorandum that authorizes contracting officers to raise acquisition thresholds to their respective upper limits in order to “expedite the delivery of critical goods and services.” And on March 31, the Department of Defense issued a memorandum with an attachment from the Defense Contract Management Agency that makes commercial-item determinations for critical coronavirus-related supplies and encourages contracting officers to review FAR Part 18 for applicable emergency flexibilities.
It is likely that other federal agencies will similarly exercise authorities under FAR Part 18, and that companies competing for federal business will see an increased use of these procedures in the weeks and months ahead.