FEMA IS-246: Implementing the Defense Priorities and Allocations System (DPAS) Course Summary

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.

• 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.

• 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.

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.

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.

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.

Select this link to review the OPPA DPA Web resources.

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.

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:

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

(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.

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.

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.

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

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.”

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.

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

(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.

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.

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.

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.

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.

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.

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.

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.

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.

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.