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COMMENTS ON PROPOSED CHANGES TO FAR PART 18 - EMERGENCY ACQUISITIONS Submitted By: Name: [Name] Company: [Company Name] Email: [Email Address] Address: [Full Address] Company Description: [Company Description] EXECUTIVE SUMMARY I submit these comments regarding proposed changes to FAR Part 18 - Emergency Acquisitions, highlighting how these changes exemplify the Revolutionary FAR Overhaul's (RFO) systematic erosion of small business protections and transparent governance. The proposed FAR Part 18 demonstrates the same chaotic, legally questionable methodology that undermines fair competition and places impossible compliance burdens on small businesses. The emergency acquisition framework, which should provide clarity during urgent situations, instead creates additional uncertainty through incomplete regulations, conflicting agency deviations, and circumvention of Administrative Procedure Act (APA) requirements. This approach is particularly harmful to small businesses that depend on clear, consistent regulatory frameworks to compete for federal contracts during emergency situations. CRITICAL ISSUES WITH FAR PART 18 CHANGES A. Elimination of Critical Small Business Safeguards The proposed FAR Part 18 systematically removes explicit small business protections that were previously embedded throughout emergency acquisition procedures: Small Business Administration Consultation (Struck 18.114): The removal of explicit requirements for Small Business Administration (SBA) consultation during emergency acquisitions eliminates a critical safeguard. The struck provision previously required contracting officers to consider small business participation even during emergencies, ensuring the Rule of Two remained viable during urgent procurements. Set-Aside Program Protections (Struck 18.115–18.117): The elimination of specific references to HUBZone, Service-Disabled Veteran-Owned Small Business (SDVOSB), and Women-Owned Small Business (WOSB) set-aside considerations removes explicit pathways for small business participation during emergencies. These provisions previously ensured that urgency did not automatically preclude small business opportunities. Market Research Requirements: The streamlined approach removes specific guidance on conducting market research that considers small business capabilities, shifting from mandatory evaluation to discretionary consideration. B. Shift from Mandatory to Discretionary Language Throughout the proposed Part 18, mandatory language ("shall," "must") is consistently replaced with discretionary terms ("may," "should"), fundamentally altering accountability: Procurement Planning: Previous requirements for systematic consideration of small business capabilities are replaced with optional guidance, removing contracting officer accountability for documenting small business evaluation. Source Selection: The elimination of explicit small business consideration requirements allows contracting officers to bypass small business opportunities without documented justification, even when such businesses could meet emergency requirements. C. Incomplete and Legally Questionable Implementation The proposed FAR Part 18 exemplifies the RFO's flawed "adopt first, finalize later" methodology: Non-APA Compliance: These changes are being implemented without proper notice-and-comment procedures, denying stakeholders meaningful input before rules take effect. Agency Deviation Conflicts: Multiple agencies have already issued conflicting interpretations of emergency acquisition procedures, creating a regulatory maze that small businesses cannot navigate effectively. Regulatory Fragmentation: Small businesses must now track original FAR Part 18, proposed changes, and numerous agency-specific deviations to understand applicable emergency acquisition procedures. SPECIFIC ANALYSIS OF PROPOSED FAR PART 18 CHANGES Positive Aspects: Streamlined Thresholds: The clarification of micro-purchase, simplified acquisition, and other threshold increases for emergency situations provides needed flexibility during urgent operations. Contingency Operation Definitions: Clear definitions of contingency operations, defense/recovery situations, and humanitarian operations provide better framework understanding. Critical Problems: Elimination of Bid Protests and Oversight (Struck 18.125): Removing GAO protest procedures during emergencies eliminates crucial accountability mechanisms. While speed is important during emergencies, completely removing oversight creates opportunities for abuse and excludes small businesses from recourse when unfairly excluded. Removal of Trade Agreement Considerations (Struck 18.119): Eliminating explicit guidance on trade agreement applications during emergencies creates ambiguity about when Buy American and other domestic sourcing preferences apply, potentially disadvantaging domestic small businesses. Sustainable Products and Services (Struck Section): The removal of sustainable products and services requirements eliminates opportunities for small businesses specializing in green technologies and sustainable solutions, even when such products could meet emergency needs without compromising response time. Advance Payments and Electronic Funds (18.122, 18.124): While these provisions provide needed flexibility, they lack explicit guidance on ensuring small businesses can access these mechanisms, potentially creating barriers for companies without established government payment relationships. Workforce and Community Considerations: The proposed changes remove explicit consideration of local workforce and community impact during emergency procurements, eliminating preferences that often benefited local small businesses during disaster response. IMPACT ON SMALL BUSINESS EMERGENCY PARTICIPATION Historical Role: Small businesses have traditionally played crucial roles in emergency response, providing specialized services, local knowledge, and rapid deployment capabilities. The proposed changes systematically undermine these contributions by: Removing Explicit Consideration Requirements: Contracting officers are no longer required to document consideration of small business capabilities during emergency planning and execution. Eliminating Set-Aside Protections: The removal of specific set-aside program references creates presumption against small business participation during emergencies. Reducing Accountability: The shift to discretionary language eliminates protest rights and oversight mechanisms that previously ensured fair treatment of small businesses. Creating Compliance Burdens: The fragmented regulatory approach requires small businesses to master multiple, often conflicting, sources of guidance to participate in emergency contracting. ECONOMIC AND STRATEGIC CONCERNS Emergency Preparedness: Small businesses often provide critical niche capabilities essential for effective emergency response. Systematic exclusion through regulatory barriers undermines national preparedness and resilience. Local Economic Impact: Emergency contracting often occurs in disaster-affected areas where local small businesses are essential for both response and recovery. The proposed changes systematically favor large contractors over local businesses. Innovation and Agility: Small businesses frequently provide innovative solutions and greater agility during emergencies. Regulatory barriers that favor established large contractors reduce the government's access to these capabilities. Competition and Cost: Reduced small business participation leads to less competition, higher costs, and greater dependence on limited numbers of large contractors during critical situations. RECOMMENDATIONS FOR FAR PART 18 1. Restore Explicit Small Business Safeguards: Reinstate mandatory language requiring contracting officers to document consideration of small business capabilities during emergency procurement planning and execution. 2. Maintain Set-Aside Program Integrity: Restore explicit references to HUBZone, SDVOSB, WOSB, and other set-aside programs, ensuring emergency situations do not automatically preclude small business participation. 3. Preserve Oversight and Accountability: Maintain GAO protest procedures and SBA oversight mechanisms with appropriate expedited timelines rather than complete elimination during emergencies. 4. Clarify Market Research Requirements: Establish clear, mandatory requirements for market research that considers small business capabilities, even under emergency conditions. 5. Ensure APA Compliance: Halt implementation of proposed changes until proper notice-and-comment procedures are completed, ensuring transparent and legally compliant rulemaking. 6. Consolidate Guidance: Eliminate conflicting agency deviations by establishing single, authoritative emergency acquisition guidance that all agencies must follow. 7. Maintain Local Business Preferences: Restore provisions that encourage use of local businesses during disaster response and recovery operations. CONCLUSION The proposed changes to FAR Part 18 represent a fundamental retreat from decades of policy supporting small business participation in federal contracting, including during emergency situations. While emergency acquisitions require speed and flexibility, they should not systematically exclude small businesses that often provide critical capabilities, local knowledge, and innovative solutions. The current approach exemplifies the RFO's broader failures: circumvention of legal process, elimination of accountability mechanisms, and creation of impossible compliance burdens for small businesses. Emergency situations demand clear, consistent procedures that enable rapid response while maintaining competitive opportunities for all qualified contractors. The federal government's commitment to small business participation and competitive procurement should not be suspended during emergencies. Instead, emergency acquisition procedures should be streamlined while preserving essential safeguards that ensure fair competition and maintain the industrial base diversity essential for national resilience. Immediate corrective action is required to restore legal compliance, competitive fairness, and small business viability in emergency acquisition procedures. The proposed FAR Part 18 changes should be withdrawn and re-proposed through proper APA procedures with meaningful stakeholder input and explicit preservation of small business protections.