Lesson 1: Introduction and DPAS Review
Prerequisite Training

Before beginning this course, it is recommended that you complete the introductory-level course, IS-245.a, Introduction to DPAS.

IS-245.a introduces the Defense Priorities and Allocations System (DPAS), a regulation to help ensure the priority performance of contracts and orders for the timely delivery of critical materials and services to meet program requirements. The course describes how the DPAS supports the FEMA mission.

If you have not yet done so, select this link to complete IS-245.a, Introduction to DPAS.

Or if you are ready to proceed, select the right arrow to begin IS-0246, Implementing DPAS.

Course Overview

The purpose of this course is to provide detailed information about how to implement DPAS in support of FEMA programs in order to meet program requirements and critical supply needs in a timely manner.

The course is challenging. However, through this course, you will:

  • Gain an understanding of the roles and interactions between key parties involved in implementing DPAS.
  • Learn the DPAS process and procedures at a FEMA program level, including how to place rated orders, address problems if they arise, and comply with DPAS reporting requirements.
  • Apply your understanding of DPAS procedures to FEMA program case studies.

Target Audience

  • Mandatory for Defense Priorities and Allocations System (DPAS) Officers—FEMA personnel who are designated by FEMA management to fulfill DPAS Officer functions.
  • Strongly recommended for:
    • Program officials responsible for directing the placement of DPAS rated orders and making FEMA program and procurement policy and decisions,
    • Contracting Officers/Specialists who will be primary points of contact with prime contractors on DPAS issues and who may be responsible for determining DPAS activity eligibility, and
    • Anyone interested in learning more about DPAS.

Select this link to learn more about DPAS roles and interactions.

Course Topics

This course is divided into four main topic areas:
  • Introduction and DPAS Review
  • The Typical DPAS Process
  • Resolving DPAS Issues
  • Course Summary
In order to receive credit for this course you must pass the final exam. Once the exam has been passed, DPAS Officers will be qualified to independently perform DPAS Officer functions.

Lesson Objectives

Upon completing this lesson you should be able to:
  • Describe the purpose of DPAS.
  • Describe the DPAS authorities and regulation.
  • Understand critical DPAS terms.
At the end of this lesson, you will take a knowledge review on DPAS basics.

What Is DPAS?

DPAS helps ensure the timely performance of contracts and orders placed in support of FEMA programs and provides an operating system to support rapid industrial response in times of emergency.

In general, the following FEMA programs are eligible for DPAS support:

  • Federal emergency preparedness, response, and recovery
  • Similar activities to support State, local, and tribal governments
  • Critical infrastructure protection and restoration
Each of these program areas will be described in more detail later in this course.

Authorities

DPAS authority has been delegated from the President to designated FEMA component heads, through the following authorities:

  • Defense Production Act (DPA) of 1950 authorizes the President to expedite critical resources from the U.S. industrial base to support the national defense and homeland security.
  • Executive Order 13603 delegates the President’s priorities and allocations authority under the DPA to six Federal agencies (Agriculture, Energy, Health and Human Services, Transportation, Defense, and Commerce).
  • DPAS Delegation 4, from the Department of Commerce, authorizes the Secretary of Homeland Security to place DPAS priority ratings on contracts and orders.
  • DHS Delegation 9001.1 re-delegates the Secretary’s DPA authorities and responsibilities under E.O. 13603 and DPAS Delegation 4 to the FEMA Administrator.
  • FEMA DPAS Delegation re-delegates certain of the FEMA Administrator’s DPAS authorities and responsibilities to designated FEMA component heads. This authority may be re-delegated to subordinate program officials.

Select this link to learn more about these delegations of authority.

DPAS Delegations of Authority

FEMA’s authority to issue rated orders is set forth in the following three delegations:
  • DPAS Delegation 4 delegates authority from the Secretary of Commerce to the Secretary of Homeland Security for the implementation of the DPAS regulation. It includes specifics on rating authority for DHS programs; Special Priorities Assistance; re-delegation of authority; compliance, audits, and training; and limitations of authority.
  • DHS Delegation 9001.1 delegates the DPAS authorities and responsibilities from the Secretary of Homeland Security to the FEMA Administrator. The FEMA Administrator re-delegates the authority to provide oversight and responsibility for DPAS functions and duties to the Director of OPPA.
  • FEMA DPAS Delegation re-delegates DPAS authority delegated to the FEMA Administrator under DHS Delegation 9001.1 to designated FEMA component heads. This authority may be re-delegated to subordinate FEMA program officials.

Office of Policy and Program Analysis

Based on the delegated authority to FEMA, OPPA is responsible for determining which DHS programs are eligible for DPAS support and providing oversight, guidance, and procedures for use of DPAS priority ratings in support of FEMA programs. OPPA also:
  • Issues the DPAS directive and manual.
  • Provides additional guidance and procedures for use of DPAS priority ratings in support of FEMA programs.
  • Designates the Lead DPAS Officer.

DPAS Regulation

DPAS policy and procedures are provided in the DPAS regulation (15 CFR Part 700). The regulation provides for the use of priority ratings on contracts and orders for industrial resources to ensure timely delivery of items and performance of services to meet program requirements.

Select this link to review 15 CFR Part 700 Subpart B – Overview.DPAS is one of the regulations that comprise the Federal Priorities and Allocations System (FPAS). Pursuant to section 101(d) of the Defense Production Act, each of the six resource agencies delegated priorities and allocations authority by the president under section 201(a) of E.O. 13603 (including the Department of Commerce) are required to promulgate priorities and allocations regulations pertaining to the resources under their respective jurisdiction. Accordingly, the departments of Agriculture, Defense, Energy, Health and Human Services, and Transportation are in the process of developing consistent and unified regulations similar in format to the DPAS and appropriate delegations of authority under these regulations. If such authority is delegated to DHS, this training will be augmented as needed.

For further information about the FPAS, please contact OPPA.

FEMA DPAS Directive

The FEMA DPAS Directive establishes policy and assigns responsibilities for use of the DPAS in support of FEMA programs. The directive includes definitions, responsibilities, and policies and procedures for DPAS.

The directive applies to all FEMA personnel in Headquarters, regional offices, and field establishments responsible for actions involving the use of DPAS priority ratings in support of FEMA programs.

Select this link to view the FEMA DPAS Directive.

Note: The FEMA DPAS Directive will soon be updated. When available, please contact OPPA to obtain a revised copy.

FEMA DPAS Manual

The FEMA DPAS Manual provides additional guidance and procedures for use of the DPAS priority ratings in support of FEMA programs. Key sections of the manual include:
  • Guiding Information – purpose, applicability and scope, authorities, references, definitions, responsibilities, and policies.
  • Use of Priority Ratings – how to determine if a contract or order may be rated and how to obtain rating authority for uses limited by the DPAS regulation.
  • Resolution of Issues Resulting From Use of Priority Ratings – Special Priorities Assistance (SPA), conflicts involving rated orders, records and reports, and rescheduling deliveries under rated orders.
Select this link to view the FEMA DPAS Manual.

Note: The FEMA DPAS Manual will soon be updated. When available, please contact OPPA for a revised copy.

Critical DPAS Terms

Some definitions of critical terms are intentionally broad in the DPAS regulation, to allow for flexibility of interpretation.

Program

Program: Describes a wide variety of activities supporting the FEMA mission of preparedness, response, and recovery.

Approved Program

Approved program: A program determined as necessary or appropriate for priorities and allocations support to promote the national defense. The Office of Policy and Program Analysis (OPPA) determines DPAS program eligibility for FEMA and all DHS components.

Activity

Activity: An ongoing task that is being performed as part of assigned duties and responsibilities that are required to accomplish the FEMA mission.

Measure

Measure: A planned action or project required to accomplish the FEMA mission having a finite beginning and ending. Measures may be used to achieve the FEMA objectives or support the emergency preparedness program established by Title VI of the Stafford Act.

Emergency Preparedness

Emergency preparedness: Includes all those activities and measures designed or undertaken to prepare for or minimize the effects of a hazard upon the civilian population, to deal with the immediate emergency conditions which would be created by the hazard, and to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by the hazard. The term includes the following:
  • Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the non-military evacuation of the civilian population).
  • Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).
  • Measures to be undertaken following a hazard (including activities for firefighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).

Industrial Resources

Industrial resources: Includes all materials (including construction materials), services, and facilities, except the following: (1) food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; (2) all forms of energy; (3) health resources; (4) all forms of civil transportation; and (5) water resources.

Materials

Materials: Includes (1) any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and (2) any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.

Rated Order

Rated order: A contract or order containing a priority rating, in accordance with the DPAS.

What Is a Priority Rating?

DPAS provides for the use of contract terms to ensure timely delivery of materials and services.
A priority rating used by FEMA consists of a priority level of DO and a program identification symbol (PIS).
Priority rating = priority level + PIS (example: DO-N1)

The example shows “DO-N1”, where DO is the priority level used by FEMA and N1 is the most common PIS used by FEMA.

Select this link for more detail on priority ratings.

Placing a Rated Order

If the program is eligible:
  • A FEMA program official with DPAS authority directs a FEMA Contracting Officer/Specialist to place rated orders for the materials or services.
  • The Contracting Officer/Specialist includes DPAS-specific, required language in the solicitation and contract.
  • The program official reports quarterly on the use of DPAS priority rating authority in support of FEMA programs.

Contractor Responsibilities

A contract or order containing a DPAS priority rating requires all contractors and suppliers to provide preferential treatment to fulfill the delivery requirements. The contractor or supplier must:
  • Accept or reject the rated order within 15 working days after receipt of the order.
  • Give rated orders preferential treatment, as needed, to achieve timely delivery.
  • Schedule production to ensure delivery by the required date.
  • Place rated orders with suppliers.
A DPAS priority rating is a means to ensure that materials or services in a rated order will be delivered or performed on time.

Limitations

DPAS priority ratings may not be used to support contracts and orders for:
  • Food (except for emergency food rations such as MREs), energy, water, healthcare, or civil transportation services.
  • Contracts of employment. D6F9205241531F22238E1301000091F8
  • Items for administrative use.
  • “Common use” items.
More detail on these limitations is presented in Lesson 2 of this course.

Select this link to view section 201 of E.O. 13603 for limitations on food, energy, water, healthcare, or civil transportation services.

Select this link to view Section 101 (a) of the Defense Production Act for limitations on contracts of employment.

Select this link to view Section G of DPAS Delegation 4, “Limitations of Authority,” for more information on administrative and common use item limitations.

Special Priorities Assistance (SPA)

If problems arise with a rated order, SPA is available to assist FEMA components and contractors in obtaining timely delivery of needed items. SPA also may be used to request:
  • Authority to use a priority rating for items not normally eligible.
  • Expedited deliveries.
  • Assistance in locating suppliers.
  • Assistance in placing rated orders.
  • Resolution of delivery conflicts.
SPA requests are documented using Form BIS-999 and are submitted to a DPAS Officer.

Select this link to view a copy of the Form BIS-999.

DPA Web Site

The FEMA OPPA DPA Program Division Web site provides you with a variety of documents, job aids, templates, samples, and frequently asked questions (FAQs) to assist you in performing your responsibilities related to DPAS.

Select this link to review the OPPA DPA Web resources.

Knowledge Review

This knowledge review is to refresh you on basic DPAS information provided in the introductory-level course, IS-245.a, Introduction to DPAS. The knowledge review has 10 questions. If you do not recall information from the introductory course, select the link above to view it before taking the knowledge review.

Lesson 2: The Typical DPAS Process
Lesson Overview

This lesson presents details on how to implement DPAS under typical circumstances.

Upon completing this lesson, you should be able to:

  • Describe key DPAS roles and interactions.
  • Determine DPAS eligibility.
  • State the steps for placing rated orders.
  • Describe the DPAS reporting requirements.

OPPA

As described in the previous lesson, the FEMA Administrator delegated the authority to provide oversight and responsibility for the functions and duties of DPAS to the Director of FEMA’s Office of Policy and Program Analysis (OPPA).

The Director, OPPA, administers the DPAS program. In support of DPAS, OPPA:

  • Provides policy, guidance, and procedures.
  • Determines which Department of Homeland Security (DHS) programs are eligible for DPAS support.
  • Designates the Lead DPAS Officer.

FEMA Component Heads

The FEMA Administrator delegates authority to certain FEMA component heads to approve FEMA operational programs for DPAS support. Authorized FEMA component heads:
  • Direct the use of DPAS priority ratings to ensure timely delivery of materials and services to meet program requirements. This authority may be delegated to subordinate FEMA officials (e.g., program managers).
  • Ensure that subordinates responsible for DPAS actions are thoroughly familiar with the FEMA DPAS Directive, the FEMA DPAS Manual, the DPAS regulation, and other published guidance on DPAS priority ratings in support of FEMA.
  • Monitor the use of DPAS priority ratings in support of their programs to ensure compliance with FEMA DPAS policies and procedures. This authority may be delegated to subordinate FEMA officials (e.g., program managers).
  • Designate DPAS Officers to support the use of DPAS priority ratings.

Lead DPAS Officer

OPPA designates a Lead DPAS Officer who supports program officials and DPAS Officers on implementation, administration, and interpretation of DPAS authority. He or she helps to determine if program and acquisition activities are eligible for DPAS support. In addition, the Lead DPAS Officer:
  • Develops and implements DPAS training for FEMA personnel.
  • Attempts to resolve DPAS issues and requests for Special Priorities Assistance (SPA).
  • Monitors FEMA use of DPAS priority ratings and notifies the Department of Commerce (DOC) of any alleged violations.
  • Resolves conflicts among FEMA programs involving DPAS priority ratings.
  • Assists in addressing or resolving DPAS issues.
  • Provides coordination/liaison with FEMA, DHS, DOC, and other Federal agencies.

DPAS Officers

A FEMA component head delegated DPAS authority appoints a FEMA DPAS Officer to address DPAS issues within his or her component. The DPAS Officer is responsible for implementation, administration, and training of DPAS within his/her component organization. DPAS Officer functions are generally performed as collateral duties. DPAS Officers:
  • Attempt to resolve SPA issues, in coordination with the Contracting Officers/Specialists.
  • Assist FEMA program officials, representatives of State, local, and tribal governments, and representatives of critical infrastructure operations in developing and submitting requests for DPAS authority and SPA.
  • Assist private sector contractors and suppliers in preparing and submitting SPA requests, when requested.
  • Provide information and training for FEMA, other government, and private-sector personnel involved in use of rated orders for FEMA programs.
  • Forward unresolved SPA requests to FEMA’s Lead DPAS Officer.
  • Attempt to resolve DPAS problems at the program level.

COTRs and Contracting Staff

Two other roles supporting the FEMA DPAS process are:
  • FEMA Contracting Officers/Specialists, who:
    • Are the primary points of contact with prime contractors regarding DPAS issues,
    • Provide information to the DPAS Officer regarding issues and actions taken to address them, and
    • Determine DPAS eligibility for each acquisition activity, with assistance from the DPAS Officer.
  • FEMA program managers and/or Contracting Officer’s Technical Representatives (COTRs), who:
    • Identify consequences to a program if timely delivery or performance is not addressed or resolved, and
    • Provide information to the DPAS Officer on any actions taken to resolve the issue.

Contractors and Suppliers

Prime contractors, subcontractors, and suppliers fulfill contracts and orders to meet national defense and emergency preparedness needs. A contract or order containing a DPAS priority rating requires the prime contractor and the contractor’s supply chain to provide preferential treatment as necessary to fulfill the delivery or performance requirements.

Key roles include:

  • The prime contractor, with whom FEMA places the rated order, serves as a source of information to the DPAS Officer on issues or concerns with a rated order, provides possible resolutions for any issues regarding the order, and provides the DPAS Officer with information on actions taken to resolve any issues or problems with the order.
  • The subcontractor/supplier provides components, parts, materials, or services to the prime contractor.
  • Lower-tier supplier provides components, parts, materials, or services to the subcontractor.
Three arrows.  First arrow:  FEMA places rated order with prime contractor.  Second arrow: prime contractor places rated order with subcontractor/supplier.  Third arrow: subcontractor/supplier places rated order with other lower-tier suppliers.

If a problem arises where a subcontractor/supplier is not able to provide the supplies or services needed to fulfill program procurement needs, another business may serve as an alternate source of supply.

Communicating With Contractors

It may be necessary for the DPAS Officer or Contracting Officer/Specialist to contact parties in the supply chain when issues arise. In such cases, careful coordination is required because subcontractors and suppliers are not under privity of contract with FEMA.

Communication with:

  • The prime contractor should be coordinated with the COTR.
  • Subcontractors and suppliers should be conducted in conjunction with or through the prime contractor.
  • Lower-tier suppliers should be conducted in conjunction with or through the supplier’s customer.
Select this link to learn more about DPAS roles and interactions.

Let’s look at an example of how the DPAS roles interact when rated orders have been requested.

Transcript – DPAS Interaction Scenario

Flooding this spring has drastically depleted necessary stocks of specialized equipment and related supplies. In preparation for the upcoming hurricane season, the program official for the Logistics Management Directorate has secured funding and ordered that the equipment and supplies be fully replaced by June 15.

The program official has determined that these requirements fall under an eligible DPAS program. She has directed a Contracting Officer to place DPAS rated orders, to ensure timely delivery of the equipment and supply items. The program official and Contracting Officer work together to determine that all requested items are DPAS eligible. If a hurricane does make landfall and there is a declared emergency or disaster, then procurement of necessary supplies that normally would be considered common use items, may also be supported by the use of DPAS rated orders.

The Contracting Officer places rated orders with prime contractors. He includes in the rated orders: the priority rating of DO-N1, the delivery date of June 15, his signature, and the required statement from the DPAS regulation. Once received, the prime contractors must accept the rated orders, adjust schedules, as needed, to meet the delivery dates specified in the rated order; and place rated orders with subcontractors and suppliers to obtain materials or services needed to satisfy the orders.

If any of the prime contractors are unfamiliar with the DPAS requirements, the DPAS Officer coordinates with the COTR and explains to the prime contractors the obligations and benefits of accepting a rated order. If any contractor or supplier reports that the ordered items cannot be delivered as required, the Contracting Officer and DPAS Officer should initiate a Special Priorities Assistance action. If needed, the DPAS Officer may contact the Lead DPAS Officer for assistance.

Working together, the program official, Contracting Officer, DPAS Officer, COTR, and Lead DPAS Officer can assure the timely delivery of needed equipment and supplies in support of a critical programs for disaster preparedness, response, and recovery.

Eligible Programs

Now that you know the roles and interactions that support DPAS in FEMA, it is important to know what FEMA programs are eligible for DPAS support.

Most often FEMA uses DPAS in support of Federal emergency preparedness, response, and recovery activities.

DPAS can also be used for:

  • Federal support of State, local or tribal governments. This use is rare, and DPAS Officers should coordinate with OPPA when considering DPAS support of these programs.
  • Critical infrastructure protection and restoration programs. This type of support generally requires Department of Commerce involvement, and the DPAS Officer should coordinate with OPPA in support of these programs.
DPAS Officers are responsible for supporting program officials and may be asked to help determine program eligibility for DPAS use.

Select this link to learn more about determining program eligibility for DPAS support.

Examples of Eligible Programs

As you learned in the “Introduction to DPAS” course, DPAS could be used for FEMA emergency preparedness and response programs. For example:
  • Radio System Upgrades: FEMA receives funding to upgrade its emergency radio system with a mandated deadline. The Deputy Administrator for National Preparedness and Protection directs the use of priority ratings, allowing the program to place rated orders to help ensure timely delivery and installation of the radio equipment.
  • Communication and Power Equipment Upgrades: The National Response Coordination Center has been advised that its computer equipment and emergency power systems are aging and subject to failure, and need to be upgraded prior to hurricane season. The Associate Administrator of Operations directs the use of priority ratings on rated orders for this equipment.
  • Emergency Response: Just after landfall of a hurricane, the Director of the Logistics Management Directorate identifies a list of critical items to procure. In support of response to a declared disaster under the Stafford Act, the placement of priority-rated contracts and orders to acquire the items is authorized, and DPAS priority rated orders may be used whether or not the required items are common use items. This is the only exception to the restriction on the use of DPAS priority ratings to acquire common use items.

DPAS Priority Ratings

Once a program has been determined to be DPAS eligible, the FEMA program official who has been delegated DPAS authority will assign a priority rating and direct the placement of rated orders by the Contracting Officer/Specialist.A priority rating has two elements:

 

Box with Priority level and plus sign and box with PIS, arrow box pointing to priority level box indicating DO, arrow box pointing to PIS box indicating N1

Most FEMA DPAS programs will use a priority rating of DO-N1 indicating DPAS support for Federal emergency preparedness, response, and recovery programs.

Program Identification Symbols For FEMA

Priority Level Program Identification Symbol
  • DO (for all FEMA programs)
  • N1: Federal emergency preparedness, mitigation, response, and recovery
  • N2: State, local, and tribal government emergency preparedness, mitigation, response, and recovery
  • N3: Intelligence and warning systems
  • N4: Border and transportation security
  • N5: Domestic counter-terrorism, including law enforcement
  • N6: Chemical, biological, radiological, and nuclear countermeasures
  • N7: Critical infrastructure protection and restoration
  • N8: Miscellaneous

Authorized Use

The process for placing a rated order under DPAS involves both a program official and a Contracting Officer/Specialist. A program official, who has been delegated DPAS authority, directs a Contracting Officer/Specialist to include a priority rating in contracts and orders for eligible materials and services.

Remember that DPAS is only used to support contracts and orders to procure “industrial resources.” In general, priority ratings under DPAS may not be used for:

  • Food, energy, water, healthcare, or civil transportation services.
  • Contracts of employment.
  • Items for administrative use.
  • “Common use” items.
Each of these limitations will be described on the next screens.

To support program officials, Contracting Officers/Specialists and/or DPAS Officers may be asked to help determine the DPAS eligibility of a specific acquisition activity under an approved DPAS program.

Limitations – Food, Energy, Water, Healthcare, Civil Transportation

Under E.O. 13603, the President has delegated priorities and allocations authority to the:
  • Department of Agriculture for food resources (including potable water packaged in commercially marketable containers);
  • Department of Energy for all forms of energy;
  • Department of Health and Human Services for health resources;
  • Department of Transportation for all forms of civil transportation;
  • Department of Defense for water resources; and
  • Department of Commerce for all other materials, services, and facilities, including construction materials.

E.O. 13603, Section 201

Sec. 201. Delegations of Priorities and Allocations. (a) The authority of the President conferred by section 101 of the Act to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense, is delegated to the following agency heads:

(1) The Secretary of Agriculture with respect to food resources (including potable water packaged in commercially marketable containers), food resource facilities, livestock resources, veterinary resources, plant health resources, and the domestic distribution of farm equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to health resources;
(4) The Secretary of Transportation with respect to all forms of civil transportation;
(5) The Secretary of Defense with respect to water resources (excluding potable water); and
(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.

However, there is an exception for FEMA placement of rated orders to procure emergency food rations under DPAS. By agreement between the Departments of Agriculture and Commerce, FEMA is delegated the authority to use rated orders for the purchase of emergency food rations such as MREs. For further information on this exception, contact the Lead DPAS Officer at OPPA.

For DPAS, FEMA is under the jurisdiction of the Department of Commerce. To obtain priorities authority to procure resources outside of this jurisdiction [except for emergency food rations (e.g., MREs)], the OPPA Lead DPAS Officer would work with the appropriate agency.

The other Departments with delegated priorities and allocations authority are required by section 101(d) of the DPA to develop consistent and unified priorities and allocations regulations to cover the resources for which each agency is responsible. Along with the DPAS, these regulations will constitute the Federal Priorities and Allocations System (FPAS).If priorities and allocations authority under these regulations is delegated to DHS, this DPAS training will be supplemented accordingly.

Next, let’s look at an example of when it might be necessary to procure items under the jurisdiction of another agency.

Transcript – Limitations Case Studies

It’s late spring, and forecasters have predicted that the upcoming hurricane season will be worse than usual. In preparation, a FEMA program is responsible for acquiring fuel oil for evacuation buses. Since fuel oil is an energy resource under the authority of DOE, the program official asks the DPAS Officer for assistance to get approval to place priority-rated orders for the fuel oil.

The program official explains that the fuel oil is urgently needed to prepare for the immediate evacuation of people in harm’s way due to the predicted severity of the upcoming hurricane season. He also says that the supplier companies have stated they have competing Department of Defense orders for the fuel oil in the same timeframe, and cannot meet the FEMA requirements until mid-summer, which may be too late.

The DPAS Officer requests that the program official document the FEMA requirements, including why the fuel oil is urgently needed, information on market availability of the fuel oil, and the competing DOD fuel oil orders.

The DPAS Officer forwards all this information to the Lead DPAS Officer, who requests priorities authority from DOE, works with DOD to ensure minimal conflicts, and keeps the DPAS Officer and program official advised of the progress.

Once the Lead DPAS Officer has resolved the issues, the rated orders are placed and the fuel oil is procured.

Limitations – Contracts of Employment and Administrative Use Items

There are two limitations that have no exceptions under DPAS:
  • Contracts of Employment: It is prohibited to use a rated order to support contracts of employment, such as hiring to replace striking workers.
  • Administrative Use Items: A rated order cannot be used to procure items to be used primarily for administrative purposes, such as for personnel or financial management. Examples of administrative use items include file cabinets, office furniture, and office supplies.

Section 101 (a) of the Defense Production Act

Sec. 101. PRIORITY IN CONTRACTS AND ORDERS [50 U.S.C. App. § 2071]
(a) Allocation of materials, services, and facilities
The President is authorized (1) to require that performance under contracts or orders (other than contracts of employment) which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, to require acceptance and performance of such contracts or orders in preference to other contracts or orders by any person he finds to be capable of their performance, and (2) to allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to promote the national defense.

DPAS Delegation 4, Section G. Limitations of Authority

This delegated authority shall not be used to support the procurement of:
  • Any items that (a) are commonly available in commercial markets for general consumption; (b) do not require major modification when purchased for approved program use; and (c) are readily available in sufficient quantity so as to cause no delay in meeting approved program requirements; or
  • Any items to be used primarily for administrative purposes, such as for personnel or financial management.

Limitations – Common Use (1 of 2)

Generally, common use items cannot be procured using a rated order. Common use items meet all three of the following criteria:
  • Commonly available in commercial markets for general consumption,
  • Do not require major modification when purchased for program use, AND
  • Are readily available in sufficient quantity as to cause no delay in meeting program requirements.
Examples of “common use” items include blankets, cots, tarps, and tents. Next, let’s learn about an exception allowing the procurement of some common use items.

Limitations – Common Use (2 of 2)

There is an exception to the common use limitation. In the event of a declared emergency or disaster under the Stafford Act, a Contracting Officer/Specialist may assume that common use items needed for emergency preparedness activities are not available in sufficient quantities and may procure the items with a rated order (not with purchase cards).

The declared emergency or disaster being addressed by the procurement action should be documented in the contract file.

DPAS Delegation 4, Section G. Limitations of Authority

This delegated authority shall not be used to support the procurement of:
  • Any items that (a) are commonly available in commercial markets for general consumption; (b) do not require major modification when purchased for approved program use; and (c) are readily available in sufficient quantity so as to cause no delay in meeting approved program requirements; or
  • Any items to be used primarily for administrative purposes, such as for personnel or financial management.

Exceptions For Declared Emergency or Disaster Under the Stafford Act

Section 602(a)(3) of the Stafford Act provides a definition of emergency preparedness activities. Subsection (b) of the section defines emergency preparedness activities conducted pursuant to Title VI of the Stafford Act as an element of the national defense as defined in the Defense Production Act, thus enabling use of the DPA priorities and allocations authority to support emergency preparedness activities.

The FEMA DPAS Manual (Section 3.2.II.A.3) states that “In the event of a declared emergency or disaster under the Stafford Act, it may be assumed that common use items needed for emergency preparedness activities cannot be procured in sufficient quantity to meet delivery requirements without using a rated contract or order. In such cases, a Contracting Officer should note in the contract file the declared emergency or disaster that is being addressed in the procurement action.”

Limitations: Common Use Items – Transcript

A catastrophic hurricane has hit the southeastern part of the United States, and the President has declared a Federal disaster.

Required survival items include cots, blankets, and tarps, which are normally considered “common use” items.

However, because it is a declared disaster, it can be assumed that the items are in short supply.

The program official directs the Contracting Specialist to procure the items with a rated order.

The Contracting Specialist notes the declared disaster in the contract file and places the rated orders.

The items are delivered in time to the survivors at the disaster site.

Elements of a Rated Order

Once the Contracting Officer/Specialist has identified that the requested item(s) are eligible for DPAS support, a rated order can be placed with a contractor or supplier. The rated order must include four required elements:
  • The program’s authorized priority rating (e.g., DO-N1 for most FEMA programs).
  • A specific required delivery date or dates. The words ‘‘immediately’’ or ‘‘as soon as possible’’ do not constitute a delivery date.
  • The signature (written or digital) of the Contracting Officer/Specialist.
  • A contract clause/statement indicating that it is a rated order certified for national defense use and subject to the provisions of the DPAS regulation.

Contractor Responsibilities (1 of 2)

The prime contractor is generally required to accept the rated order, give it preferential scheduling, and extend the rating to its subcontractors and suppliers.

A rated order can be rejected by the prime contractor, subcontractor, or supplier when:

  • The order cannot be filled by the specified delivery or performance date(s). The earliest delivery or performance date(s) possible must be offered for those orders that cannot be delivered in the requested timeframe.
  • The order would interfere with the delivery or performance against previously-accepted rated orders. The earliest delivery or performance date(s) possible must be offered for those orders that cannot be delivered in the requested timeframe.
  • The contractor/supplier is unable to fill all the rated orders of equal priority status received on the same day. The contractor/supplier must accept, based on the earliest delivery or performance date(s), only those orders that can be filled and reject the others. The earliest delivery or performance date(s) possible must be offered for those orders that cannot be delivered in the requested timeframe.
  • The person placing the order is unwilling or unable to meet established terms of sale or payment.
  • The order is for an item or service not supplied.
  • The item is produced for the supplier’s own use.

Contractor Responsibilities (2 of 2)

Unless specific priority rating authority has been obtained from FEMA or the Department of Commerce, contractors and suppliers may not use rated orders to support the procurement of:
  • Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
  • Production or construction equipment or items to be used for the manufacture of production equipment.
If any contractor or supplier requests priority rating authority for these purposes, immediately refer them to the Lead DPAS Officer, OPPA.

Limitations on placing rated orders in section 700.18 of the DPAS

a) General limitations.
(1) A person may not place a DO or DX rated order unless entitled to do so under this regulation.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;
(iii) Items in advance of the receipt of a rated order, except as specifically authorized by Commerce (see §700.51(c) for information on obtaining authorization for a priority rating in advance of a rated order); or
(iv) Any of the following items unless specific priority rating authority has been obtained from a Delegate Agency or Commerce:
(A) Items for plant improvement, expansion or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see §700.51.]
If a contractor or supplier willfully violates any provisions of the Defense Production Act, the DPAS Regulation, or any official action issued to the contractor or supplier by the Department of Commerce, they are subject to a criminal penalty of imprisonment, a fine, or both.

Any suspicion or evidence of a violation should be immediately referred to the Lead DPAS Officer, OPPA.

DPAS compliance provisions in sections 700.70 – 700.75

§ 700.70 General provisions.

(a) Compliance actions may be taken for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action. Such actions include audits, investigations, or other inquiries.

(b) Any person who places or receives a rated order should be thoroughly familiar with, and must comply with, the provisions of this regulation.

(c) Willful violation of any of the provisions of Title I or section 705 of the Defense Production Act, this regulation, or an official action of the Department of Commerce, is a criminal act, punishable as provided in the Defense Production Act and as set forth in §700.74 of this regulation.

§ 700.71 Audits and investigations.

(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act, the Selective Service Act and related statutes, this regulation, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this regulation.

(b) When undertaking an audit, investigation, or other inquiry, the Department of Commerce shall:

(1) Define the scope and purpose in the official action given to the person under investigation, and

(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.

(c) In administering this regulation, Commerce may issue the following documents which constitute official actions:

(1) Administrative Subpoenas. An Administrative Subpoena requires a person to appear as a witness before an official designated by the Department of Commerce to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or official actions. An Administrative Subpoena may also require the production of books, papers, records, documents and physical objects or property.

(2) Demand for Information. A Demand for Information requires a person to furnish to a duly authorized representative of the Department of Commerce any information necessary or appropriate to the enforcement or the administration of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or official actions.

(3) Inspection Authorizations. An Inspection Authorization requires a person to permit a duly authorized representative of Commerce to interview the person’s employees or agents, to inspect books, records, documents, other writings and information in the person’s possession or control at the place where that person usually keeps them, and to inspect a person’s property when such interviews and inspections are necessary or appropriate to the enforcement or the administration of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or official actions.

(d) The production of books, records, documents, other writings and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of Commerce is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Commerce as to the content of the material.

(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand for Information, or Inspection Authorization will describe them with particularity.

(f) Service of documents shall be made in the following manner:

(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail—Return Receipt Requested at the person’s last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone of suitable age and discretion at the person’s last known dwelling or place of business.

(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.

(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.

§ 700.72 Compulsory process.

(a) If a person refuses to permit a duly authorized representative of Commerce to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or official actions, the Commerce representative may seek compulsory process. Compulsory process means the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction.

(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Director of the Office of Strategic Industries and Economic Security, U.S. Department of Commerce, in consultation with the Chief Counsel for Industry and Security, U.S. Department of Commerce, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.

§ 700.73 Notification of failure to comply.

(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, Commerce may inform the person in writing where compliance with the requirements of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action were not met.

(b) In cases where Commerce determines that failure to comply with the provisions of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willfull violation of the Defense Production Act, this regulation, or an official action.

§ 700.74 Violations, penalties, and remedies.

(a) Willful violation of the provisions of Title I or Sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes, this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalty provided by the Defense Production Act is a $10,000 fine, or one year in prison, or both. The maximum penalty provided by the Selective Service Act and related statutes is a $50,000 fine, or three years in prison, or both.

(b) The government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this regulation, or an official action.

(c) In order to secure the effective enforcement of the Defense Production Act, this regulation, and official actions, the following are prohibited (see section 704 of the Defense Production Act; see also, for example, sections 2 and 371 of Title 18, United States Code):

(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act, this regulation, or an official action.

(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act, this regulation, or an official action.

(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act, this regulation, or an official action. In such instances, the person must immediately notify the Department of Commerce that, in accordance with this provision, delivery has not been made.

§ 700.75 Compliance conflicts.

If compliance with any provision of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act, this regulation, or an official action, the person must immediately notify the Department of Commerce for resolution of the conflict.

DPAS Reporting Process

DPAS Officers are responsible for knowing who is using DPAS within their program or organization (e.g., program office or region). DPAS Officers should ensure that the Report of DPAS Use is completed and submitted in a timely manner through the chain of command to the Director, OPPA.

In addition, if the DPAS Officer is required to report DPAS usage to other FEMA officials (e.g., Region DPAS Officer, OPPA Lead DPAS Officer, HQ/Region Cadre Manager, JFO command staff), he/she will be responsible for ensuring that such reporting occurs in a timely manner. Further information about this can be found in the document link below.

Summary

You have now completed the Typical DPAS Process lesson. You should now be able to describe:
  • Key DPAS roles and interactions.
  • How to determine DPAS eligibility of programs and acquisition activities.
  • How to place a rated order.
  • The quarterly reporting requirements for DPAS rated orders.
This lesson described the top half of the DPAS flowchart, showing the typical DPAS process. In the next lesson, the bottom portion of the flowchart will be discussed along with how to address unusual DPAS circumstances.

Lesson 3: Resolving DPAS Issues
Lesson Overview

This lesson presents details on how to resolve DPAS conflicts and issues.

Upon completing this lesson, you should be able to:

  • Describe possible DPAS issues after placing a rated order.
  • Describe how to gather information on the issues.
  • Describe the process for identifying the course of action to resolve issues.
  • Describe how to request Special Priorities Assistance (SPA).

Review of Placing a Rated Order

The primary purpose of placing a rated order with a prime contractor is to obtain timely delivery of items to meet program requirements.

Once received by the prime contractor, rated orders are placed with subsequent subcontractors/suppliers and lower-tier suppliers throughout the entire industrial chain of supply thus ensuring timely delivery of all needed items.

Three arrows.  First arrow:  FEMA places rated order with prime contractor.  Second arrow: prime contractor places rated order with subcontractor/supplier.  Third arrow: subcontractor/supplier places rated order with other lower-tier suppliers.

Problems With Rated Orders

What if something happens and the item or service cannot be delivered as required by the rated order, for example when:
  • A need to expedite deliveries or performance exists.
  • Delivery problems or delays occur anywhere in the supply chain.
  • Problems finding a supplier or critical component arise.
  • Production or delivery conflicts between or among rated orders exist.
  • Rated orders are not receiving necessary preferential treatment.
  • A need for assistance in placing a rated order is identified.

Special Priorities Assistance (SPA)

When a problem with the rated order is identified, action needs to be taken by the DPAS Officer to attempt to resolve the issue and get the item delivered or the services performed on schedule. Under DPAS this action is called Special Priorities Assistance (SPA).

It is critical that the program official, the DPAS Officer, the Contracting Officer/Specialist, the Lead DPAS Officer, and the prime contractor work together to identify and solve problems that may affect the timely delivery of items or services to meet emergency preparedness needs.

Requesting SPA

Once a problem or issue with a rated order has been identified, SPA needs to be requested to begin the process of resolving the issue. SPA can be requested by:
  • A prime contractor, subcontractor, or supplier
  • Program official
  • Contracting Officer/Specialist
  • DPAS Officer

SPA Process

Based on the nature of the problem or issue, the DPAS Officer will work to resolve the matter either informally or formally.
  • Informal SPA process: Work with the parties involved to come to a resolution that enables the item to be delivered or service to be performed as required by the rated order.
  • Formal SPA process: When unable to resolve the problem or issue informally, document the need for SPA using the Form BIS-999. This process will be discussed later in this lesson.

SPA Steps

For both an informal or formal SPA process, the DPAS Officer:
  • Gathers information about the problem or issue from those involved with the rated order (government and/or private sector).
  • Determines the best course of action for a positive resolution (informal, if possible or formal).
  • Contacts the Lead DPAS Officer, OPPA, if necessary for advice or assistance.

Gathering Information

The DPAS Officer gathers pertinent information from:
  • Contracting Officer/Specialist,
  • COTR,
  • Prime contractor,
  • Program official,
  • Subcontractor, and
  • Suppliers.

Gathering Information: Government Officials

The type of information gathered by the DPAS Officer from the Contracting Officer/Specialist, COTR, and program official includes:
  • What program is at issue?
  • Is this a DPAS-eligible program?
  • If the program is DPAS eligible, what is the priority rating?
  • What is the nature of the problem and its urgency?
  • A detailed description of the issue or problem.
  • Actions taken so far for resolution.
  • What is the importance of the program to the FEMA mission?
  • What items are being procured?
  • What is the delivery or performance requirement?
  • Can the problem be resolved informally?
  • Who else has information pertinent to the issue?
  • Who are points of contact for the prime contractor and any subcontractors or suppliers involved?
  • What are likely or possible consequences if the issue is not resolved?

The information obtained above should be fully documented.

Gathering Information: Private Sector

The DPAS Officer may need to gather information from the prime contractor, the subcontractor, and suppliers. Each of these contacts requires permission and/or coordination.

The DPAS Officer coordinates with the COTR to contact the prime contractor. When necessary, the DPAS Officer gets permission from the prime contractor to contact the subcontractor and then permission from the subcontractor to contact suppliers.

Remember that subcontractors and suppliers are not under privity of contract with FEMA. Types of questions asked to the prime contractor, subcontractor, and suppliers include:

  • Is the person familiar with DPAS and its requirements?
  • Has the company received a rated order? (If yes, what is the priority rating?)
  • Does this person have authority to speak on behalf of the private-sector company?
  • What is the nature of the problem with the DPAS rated order? (What is being acquired, delivery or performance requirement, procurement or performance lead time?)
  • Can the problem be resolved informally?
  • Is there anyone else who has relevant information on the problem?

The information obtained above should be fully documented.

Privity of Contract

Privity of contract refers to a direct contract relationship between parties. It prevents any person from seeking the enforcement of a contract, unless they are a party to that contract.

A subcontractor’s or supplier’s representative may refuse to speak with the FEMA representative. Subcontractors and lower-tier suppliers are not in privity of contract with FEMA and therefore are under no obligation to talk to the FEMA representative. If this happens, the FEMA representative should tell the person that someone from the Department of Commerce will be contacting them and politely terminate the telephone call. Then, the call should be documented and a BIS-999 form prepared with any relevant information and documentation. The BIS-999 should be promptly forwarded through the program COTR to the Lead DPAS Officer, OPPA. If the subcontractor representative agrees to speak with the FEMA representative then he/she should ask the pertinent questions and document the responses.

Course of Action

Once the DPAS Officer has:
  • Gathered all the information on the problem,
  • Ensured all reasonable efforts to resolve the problem have been made, and
  • Confirmed the prime contractor, subcontractor, or supplier is unable to deliver the items or services in the required timeframe, then
He/she determines the course of action to resolve the problem.

Course of Action Options

The DPAS Officer considers ways to resolve the problem:
  • Informally by:
    • Providing education on the DPAS process,
    • Obtaining assurance of priority performance or preferential treatment of the rated order,
    • Finding other suppliers, outsourcing, equipment repair, etc.,
    • Requesting support from OPPA for guidance, coordination, etc.
  • Formally by documenting the SPA with the Form BIS-999 when the situation cannot be easily or informally resolved in a timely manner.

SPA Process Flowchart

This portion of the DPAS process flowchart summarizes the steps the DPAS Officer takes when a problem has been identified.
A decision point asks, "Have delivery or timeline problems been identified?" If problems have not been identified, The DPAS priority rating serves as an "insurance policy" and the rated order is fulfilled as required.  If problems have been identified, anyone involved with the rated order may report the problem to the DPAS Officer. The DPAS Officer gathers information about the nature of the problem. Another decision point asks, "Can the problem be resolved informally?" If so, the prime contractor, subcontractor, or supplier provides priority performance, as needed, to deliver on schedule. If not, the DPAS Officer coordinates with all relevant parties to resolve the issue. The person with the most knowledge of the problem, with support from the DPAS Officer, completes Form BIS-999. If the problem is not or cannot be resolved, the DPAS Officer promptly forwards the Special Priorities Assistance (SPA) request to OPPA.
Now let’s look at a scenario where SPA is needed.

Transcript – Video Scenario: Rated Order Rejection

The Contracting Officer supporting a DPAS program receives a frantic call from the prime contractor stating that the rated order recently placed is in jeopardy of late delivery.

The prime contractor explains that a key supplier has refused to accept the rated order for materials critical to production.

The Contracting Officer immediately contacts the DPAS Officer for assistance.

The DPAS Officer begins to gather information about the problem.

Transcript – Video Scenario: Rated Order Rejection (Part 2)

Now let’s see how the scenario was resolved.

The DPAS Officer coordinates with the prime contractor to contact the supplier. First, he confirms that the rated order was received, and then asks for a reason for the refusal of the order.

The supplier explains the refusal was because her company does not do business under government contracts.

The DPAS Officer explains that this refusal is not a valid reason to reject the order under the DPAS provisions. He further explains that acceptance of a rated order is mandatory under DPAS and that there are criminal penalties for noncompliance.

After getting nowhere with the supplier, the DPAS Officer politely ends the call. He provides assistance to the prime contractor in preparing and filing a form BIS-999 to request SPA, and lets the prime contractor know that this SPA request will be treated as a compliance action.

When To Prepare a BIS-999 SPA Request

As demonstrated in the scenario, when it is determined that formal action is needed to resolve a DPAS problem or issue, a BIS-999 SPA Request, including any supporting documentation, must be prepared.

The BIS-999 SPA Request is generally prepared by the person with the most information on the issue, with support from the DPAS Officer. While there is no firm procedure as to who would prepare the SPA Request (as long as it gets done), the request may be:

  • FEMA initiated: When problems arise obtaining timely delivery of items or performance of a service from a prime contractor. These requests can be completed by the DPAS Officer, or by the program official, Contracting Officer/Specialist, or COTR, with assistance from the DPAS Officer.
  • Private sector initiated: When a prime contractor, subcontractor or supplier has a problem achieving timely delivery of items or performance of a service. These requests can be completed by the prime contractor, subcontractor, or supplier, with assistance as needed from the DPAS Officer.
Note: Any assistance provided to contractors or suppliers, other than to the prime contractor, must comply with the privity of contract provisions presented earlier in this course.

Completing the BIS-999 SPA Request

The SPA is completed as soon as possible by the DPAS Officer or with the assistance of the DPAS Officer:

The DPAS Officer:

  • Keeps the program official and the Contracting Officer/Specialist fully informed throughout the SPA process.
  • Fully documents the problem.
  • Directs DPAS questions to, or requests advice or assistance from, the Lead DPAS Officer, OPPA.
Form BIS-999 is important because it documents the issue and is a vehicle for informing OPPA and the Department of Commerce of issues and provides the basis for the Department of Commerce to take action to resolve the problem.

Documenting Information

Whether an informal or formal SPA resolution is determined as the best course of action, the DPAS Officer must fully document the information gathered, including, but not limited to:
  • Urgent or critical need for the item.
  • Consequences of failure to obtain timely delivery.
  • Confirmation that the required item(s) cannot be replaced by other items.
  • A detailed description of the issue or problem.
  • Unusual events or circumstances.
  • Actions taken to resolve the issue.
  • Copies of external and internal correspondence, documents, and records related to the issue.
If the Form BIS-999 is prepared, the form must be completed to the fullest extent possible.

Submitting the BIS-999 SPA Request

The process to submit the BIS-999 SPA Request is:

DPAS Officer submission:

  • Obtain COTR or program official signature on the Form BIS-999
  • Submit BIS-999 SPA Request with any additional documentation or information to the Lead DPAS Officer, OPPA

Prime Contractor submission:

  • Prime contractor official signs the Form BIS-999
  • Submit BIS-999 SPA Request with any additional documentation or information to the DPAS Officer directly or through the Contracting Officer/Specialist
  • DPAS Officer obtains COTR or program official signature on the Form BIS-999
  • DPAS Officer submits the BIS-999 SPA Request with additional documentation or information to the Lead DPAS Officer, OPPA

If the BIS-999 SPA Request cannot be resolved by the Lead DPAS Officer, OPPA, it may be forwarded to the Department of Commerce for action.

Case Studies

As described earlier in this lesson, SPA may be needed for many different reasons. The next two scenarios demonstrate what might occur when there are:
  • Delivery problems or delays in the supply chain, and
  • Production or delivery conflicts between or among rated orders.

Transcript – Video Scenario: Failure to Perform

A prime contractor for FEMA receives notification from his subcontractor of a manufacturing problem which has caused a delay in their ability to deliver critical component parts.

The prime contractor immediately calls the Contracting Officer to explain that he will not be able to meet the delivery schedule specified in the rated order.

The Contracting Officer expresses concern because the order is for urgently needed specialized communications equipment. Not being sure how to proceed, she contacts the DPAS Officer for assistance.

The DPAS Officer begins by gathering background information from the Contracting Officer, COTR, and prime contractor. After receiving permission to contact the subcontractor, the DPAS Officer confirms that the rated order was received and the DPAS requirements are understood. The subcontractor explains that a critical piece of manufacturing equipment has failed and this has caused a significant delay in production.The DPAS Officer ends the call and then discusses options with the Contracting Officer. They decide that a formal SPA action is required and document it using the form BIS-999, then forward the form and supporting documentation to the Lead DPAS Officer.

Working with the prime contractor and subcontractor, the Lead DPAS Officer determines that use of a rated order needs to be authorized by the Department of Commerce in order to ensure timely delivery of replacement equipment. He notifies the Contracting Officer, the program official, and the COTR of the decision and that the SPA matter will be resolved by forwarding the BIS-999 and other supporting information to DOC.

Transcript – Video – Scenario: Competing Rated Orders

The Department of Defense has placed a DO rated order for satellite communications equipment. FEMA also placed a rated order for the same equipment.

Only one prime contractor can supply the equipment, and it does not have the production capability to meet both the DOD and FEMA requirements.

Once alerted to the problem, the Contracting Officer requests assistance from the DPAS Officer. The DPAS Officer collects and documents the pertinent information from the Contracting Officer, COTR, and prime contractor, and then prepares the form BIS-999, and forwards the SPA request to the Lead DPAS Officer, with copies to the Contracting Officer and COTR.

The Department of Commerce issues a directive with a delivery schedule to meet the competing needs of both FEMA and the Department of Defense.

Summary

You have now completed the Resolving DPAS Issues lesson. You should now be able to describe:
  • What DPAS issues may result after placing a rated order.
  • What questions to ask to gather information when issues arise.
  • What steps to take to resolve issues.
  • How to request SPA.