14 FAH-2 H-220
COMPETITION IN CONTRACTING
(CT:COR-30; 03-27-2015)
(Office of Origin: A/OPE)
14 FAH-2 H-221 GENERAL
(CT:COR-30; 03-27-2015)
a. The Public Contracts
Act, 41 U.S.C. 3301, requires, with limited exceptions, that contracting
officers promote and provide for full and open competition in soliciting offers
and awarding U.S. Government contracts over the simplified acquisition
threshold. Maximum competition is desirable from a public perspective because,
if properly administered, it results in timely delivery to the U.S. Government
of quality products and services at reasonable cost.
b. There are three levels of competition in
contracting:
(1) Full and open competition;
(2) Full and open competition after exclusion of
sources; and
(3) Other than full and open competition.
14 FAH-2 H-222 FULL AND OPEN
COMPETITION
(CT:COR-30; 03-27-2015)
a. "Full and open competition" means that all
responsible sources are permitted to submit sealed bids or competitive
proposals on the procurement. It is the preferred form of contracting and
includes contracting by sealed bids, negotiation, and other procedures (reference Federal Acquisition Regulation (FAR), 48
CFR 2.1).
b. When sealed bids or competitive proposals are
selected under full and open competition, there is potentially a large universe
of prospective bidders or offerors. The more bids or proposals received, the greater likelihood that the U.S.
Government will obtain good value.
14 FAH-2 H-223 FULL AND OPEN
COMPETITION AFTER EXCLUSION OF SOURCES
(CT:COR-30; 03-27-2015)
Full and open competition after exclusion of one or more sources is used when the U.S.
Government excludes certain potential sources from consideration for a contract
in order to establish or maintain alternative sources (reference 48 CFR 6.202). The most common use occurs when an
acquisition is set aside for small businesses or for small, disadvantaged
businesses through the Small Business Administration's 8(a) program.
14 FAH-2 H-224 OTHER THAN FULL AND OPEN COMPETITION
(CT:COR-30; 03-27-2015)
Other than full and open competition is the least
competitive, and therefore the least desirable, method of acquiring supplies
and services. Under this method, a bid or proposal is solicited from one, or
very few, sources. Detailed justification and approvals are required to
document the choice of other than full and open competition as a means of
acquisition. These justifications are published
on the Federal Business Opportunities (FedBizOpps) website to ensure transparency in contracting (reference
48 CFR 6.305). For example, publication
includes justifications for limiting competition for hotels used for VIP
travel.
14 FAH-2 H-225 CIRCUMSTANCES PERMITTING
OTHER THAN FULL AND OPEN COMPETITION
(CT:COR-30; 03-27-2015)
a. Contracting without providing for full and open
competition is not permitted unless justified under one of the following
statutory authorities. Examples of the appropriate application of these
authorities are also provided below. The requirements for a justification for other
than full and open competition (JOFOC) to support use of these authorities are
in FAR 48 CFR 6.303 and 48 CFR 6.304 plus the Department
of State Acquisition Regulation DOSAR 48 CFR 606.303 and 48 CFR 606.304.
Samples of JOFOCs are available from the
Office of the Procurement Executive (A/OPE).
b. The seven exceptions listed in 14 FAH-2
H-225.1 through 14 FAH-2 H-225.7
are the only statutory authorities available to restrict competition. To
invoke any of the following exceptions, the contracting officers
representative (COR) prepares the documentation in accordance with the
requirements of the sample JOFOC. The contracting officer will either concur
with the JOFOC and forward it to any other required individuals for approvals
or will not concur with the JOFOC. If the contracting officer does not agree
with the JOFOC, the contracting officer will
discuss the reasons with the COR. All
JOFOCs must be prepared and submitted with the procurement request package with
the exception of those involving "unusual and compelling urgency"
which may be prepared after the fact. All
justifications are published on the FedBizOpps website unless they would compromise national security
(e.g., by the disclosure of classified information). See 48 CFR 5.202, but urgent and compelling justifications may be
published after award.
14 FAH-2 H-225.1 Only One
Responsible Source
(CT:COR-30; 03-27-2015)
a. Citations: 41 U.S.C. 3304 and FAR 48 CFR 6.302-1 apply when the required
supplies or services are available from only one responsible
source. Examples include the following:
(1) Items or services not available from other sources
or no alternate sources were found following market survey. The most effective proof of a lack of other
sources is documented evidence of a widely advertised solicitation that drew
only a single response;
(2) Unique and significant industrial accomplishments
by a specific firm;
(3) Utility services (electric power or energy, gas,
water);
(4) Existence of limited rights in data, patent
rights, copyrights, or secret processes that make
the supplies or services available from
only one source. However, the FAR 48 CFR 6.302-1(b)(2)
provides that the mere existence of these rights does not, in and of
itself, justify use of the authority; and
(5) Use of a "brand name" or other type of
purchase description to specify a particular brand name, product, or product
feature peculiar to one manufacturer does not
provide for open competition regardless of the number of sources
solicited. Brand name only justifications must
be published on the FedBizOpps website to
provide transparency (reference 48 CFR 301-1(c)):
(a) A brand name
purchase description differs from a "brand name or equal"
description. A brand name or equal description permits competition from other
manufacturers products. Because competition by other manufacturers products
is permitted, a brand name or equal description is considered to provide for
full and open competition; and
(b) Brand name or equal
purchase descriptions must include, in addition to the brand name, a general
description of those salient physical, functional, or performance
characteristics of the brand name item that an equal item must meet to be
acceptable for award (reference 48 CFR 11.104).
b. It is inappropriate to assume that only a single
source exists. The contracting officer is
obligated to show evidence of recent advertising. Advertising in FedBizOpps is
required domestically unless a waiver is prepared and approved. A waiver is not required for acquisitions abroad below $150,000 as a blanket waiver has been
provided by the Assistant Secretary for Administration. When the FedBizOpps
notice is not used, local advertisements and market surveys must be conducted
to establish that there are no alternative sources. This authority should be
used, if appropriate, instead of the authority in 48 CFR 6.302-7 (public
interest), but should not be used if any of the other authorities apply. For
contracts using this authority, the notices required by 48 CFR 5.201 must have been published (unless an appropriate
waiver is prepared and approved) and
responses, including any bids and proposals, must be considered.
14 FAH-2 H-225.2 Unusual and
Compelling Urgency
(CT:COR-30; 03-27-2015)
a. Citations: 41 U.S.C. 3304(c) and FAR 48 CFR 6.302-2 apply when the need for
the supplies or services is of such an unusual and compelling urgency that the U.S.
Government would be seriously injured, financially or otherwise, unless the
Department is permitted to limit the number of sources from which it solicits
bids or proposals.
b. The justification for other than full and open competition
(JOFOC) must clearly demonstrate how the Department will be severely damaged
unless it limits the number of sources. This authority cannot be used if the
actual reason for the urgency is either a lack of advance planning by the
requirements office or because of the possible expiration of fiscal year funds.
c. This authority requires that agencies request
offers from as many potential sources as is practicable. It does not justify
request of an offer from only a single source (sole source). The U.S. Government must obtain only its
minimum needs under contracts awarded under this authority. For example, no option quantities or option years may be
procured under this authority. Contract
performance is limited to a single year to allow for competitive follow-ons. The
U.S. Government may contract only for the minimum quantity necessary to fulfill
its needs for the time required to resolicit under full and open competition
for the longer-term requirement.
14 FAH-2 H-225.3 Industrial
Mobilization or Experimental, Developmental, or Research Work
(CT:COR-30; 03-27-2015)
Citations: 41 U.S.C. 3304(a)(3) and FAR 48 CFR 6.302-3 apply when it is
necessary to award the contract to a particular source or sources in order to:
(1) Maintain suppliers for national emergencies or industrial
mobilization; or
(2) Establish or maintain an essential engineering,
research, or developmental capability by an educational or other nonprofit
institution or a federally funded research and development center (FFRDC).
Examples include the following:
(a) To maintain vital facilities for national emergency;
(b) Requirements approved for the Department of Defense
Industrial Preparedness Program;
(c) To create or maintain critical domestic capability
for manufacture in the United States or Canada; and
(d) To train a selected supplier, prevent loss of
capability, or maintain active research and development (R&D) work.
14 FAH-2 H-225.4 International
Agreement
(CT:COR-30; 03-27-2015)
Citations: 41 U.S.C. 3304(a)(4) and FAR 48 CFR 6.302-4 apply when full and open
competition is precluded by the terms of an international agreement or by the
written directions of a foreign government reimbursing the Department for the
cost of the acquisition.
|
Example:
An international
agreement includes terms requiring that services to be performed or supplies
to be used be from a particular firm, or authorizing the other government
party to specify the source of products.
|
14 FAH-2 H-225.5 Authorized or
Required by Statute
(CT:COR-30; 03-27-2015)
Citations: 41 U.S.C. 3304(a)(5) and FAR 48 CFR 6.302-5: Full and open
competition need not be provided when:
(1) A statute expressly authorizes or requires that
the acquisition be made through another agency or from a specified source.
Examples of these sources are:
(a) 8(a) procurements through the Small Business
Administration (and no justification for other than full and open competition
(JOFOC) or approvals are required);
(b) Federal Prison Industries (18 U.S.C 4124);
(c) Blind or severely handicapped (no JOFOC or approvals
are required); or
(d) U.S. Government printing and binding; and
(2) The agency's need is for a brand name commercial
item for authorized resale.
14 FAH-2 H-225.6 National Security
(CT:COR-30; 03-27-2015)
a. Citations: 41 U.S.C. 3304(a)(6) and FAR 48 CFR 6.302-6 apply when disclosure of
the Department's needs would compromise national security if the sources from
which bids or proposals are solicited were not limited. The Department must
request offers from as many potential sources as is practicable under the
circumstances.
b. This authority must not be used merely because the
acquisition is classified or because access to classified matter will be
necessary to submit a proposal or to perform the contract.
c. The contracting officer is required to synopsize
such a proposed acquisition in FedBizOpps unless
the contracting officer determines that the synopsis cannot be worded to
preclude disclosure of the Department's needs and that such disclosure would
compromise the national security.
14 FAH-2 H-225.7 Public Interest
(CT:COR-30; 03-27-2015)
a. Citations: 41 U.S.C. 3304(a)(7) and FAR 48 CFR 6.302-7 apply when the head of
an executive branch agency determines that full and open competition is not in
the public interest in the particular acquisition concerned.
b. Limitations for public interest exception:
(1) Justification: A written determination and finding
(D&F) to use this authority must be made in accordance with FAR 48 CFR 1.7 by
the agency head. The D&F may not be made on a class basis, and may not be
delegated. Congress must be notified in writing of such a determination not
less than 30 days before award of the contract; and
(2) Approval: Any justification for a contract
awarded under the authority of FAR 48 CFR 6.302-7, regardless of dollar amount,
must be considered approved when the
D&F required above is made. Note that the Secretary of State must sign the
D&F, and signature authority is not delegable.
14 FAH-2 H-226 JUSTIFICATIONS,
APPROVALS, AND NOTICE REQUIREMENTS FOR OTHER THAN FULL AND OPEN COMPETITION
(CT:COR-30; 03-27-2015)
a. FAR 48 CFR 6.303 describes
the content and how to write appropriate justifications for other than full
and open competition (JOFOCs). FAR 48 CFR
6.304 and DOSAR 48 CFR 606.304
address the approval of the justification. What follows are
instructions and formats for the collection of necessary information,
recommendations, certifications, and approvals.
b. Justifications:
(1) A contracting officer may not commence
negotiations for a sole-source contract, a contract resulting from an
unsolicited proposal, or award any other contract without providing for full
and open competition unless the contracting
officer justifies such actions in writing, certifies the accuracy and
completeness of the justification, and obtains the necessary approvals; and
(2) The contracting officers representative (COR) is
responsible for providing and certifying, as accurate and complete, data
necessary to support the recommendation
for other than full and open competition. The contracting officer will reject
any JOFOC which lacks the required information or certification. Inadequate
documentation will be returned to the COR for revision prior to initiation of
the acquisition action. A/OPE provides sample
justifications on the A/OPE website. Refer
to the sample of JOFOC for domestic contracting activities or the sample of
JOFOC for contracting activities abroad for a description of the required
information.
c. Approvals: Refer to the sample of JOFOC for
domestic contracting activities or the sample of JOFOC for contracting
activities abroad for information on approval levels; these levels vary
slightly. The estimated dollar value of all options must be included in the dollar threshold to
determine the approval level of a JOFOC.
14 FAH-2 H-227 THROUGH H-229 UNASSIGNED