DoD Class Deviations Allow for Greater Contracting Flexibility in Times of Crisis
The Department of Defense (“DoD”) has issued two Class Deviations that provide defense agencies with greater flexibility when procuring in times of crisis. These Class Deviations allow for the use of simplified acquisition procedures and excuse certain procurement obligations when DoD is responding to a cyber-attack or providing relief in support of domestic or international disasters.
On November 8, 2017, DoD issued Class Deviation 2018-O0001, which expands the types of procurements treated as commercial item acquisitions and exempts acquisitions in support of cyber-attacks, international disaster assistance, and “emergency or major disaster” relief from requirements to (i) comply with item unique identification, (ii) receive two offers, and (iii) limit the use of time and materials contracts. This Class Deviation also delegates authority for determinations relating to these acquisitions from the Secretary of Defense to the various heads of contracting activities within DoD.
There appears to be a typographical error in the attachment accompanying the November 8, 2017 Class Deviation memorandum. FAR section 12.102 permits agencies to treat acquisitions “used to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack” as an acquisition of commercial items. In the Class Deviation, DoD expands this exception to include defense against cyber-attacks. However, section 212.102 in the attachment leaves off the key phrase “as an acquisition of commercial items.” From context, however, it appears this is what DoD intended.
This Deviation is a follow-up to Class Deviation 2017-O0007, which implements amendments to 41 U.S.C. § 1903 imposed by sections 816 and 1641 of the National Defense Authorization Act (“NDAA”) of 2017. Section 816 increased the micro-purchase threshold (from $5,000 to up to $30,000) and the simplified acquisition threshold (from $150,000 to up to $1.5 million) for acquisitions that “facilitate international disaster assistance or in support of response to an emergency or major disaster.” Section 1641 incorporated cyber-attacks as an additional basis for special emergency procurement authority. These changes also authorize DoD to add cyber-attacks, international disasters, and emergency or major disasters as grounds for procuring up to $13 million in commercial items under simplified acquisition processes pursuant to FAR 13.5.
Together, these changes provide DoD, and it contractors, with greater flexibility to respond to emergencies and times of crisis and subjects contractors to reduced procurement obligations when time is of the essence.