contracting agencies must resort to full and open competition procurements. Many contractors often want to challenge the agency’s decision either at the bridge contract stage or even for traditional FAR sole source contracts.
Many contractors fail at the bid protest and litigation stage because 65% do not apply the required legal standard in their protest. Therefore, the government wins.
When complying with FAR 6.303-2 justification and approval process, and the underlying FAR sole source requirements for full and open competition, the agency’s procurement head must make a finding of urgent and compelling circumstances that will significantly affect the government’s interests.
The head of the government procurement agency must also document in the justification and approval document that the government’s mission is so critical that it cannot wait for the court’s decision in a bid protest. You should also be mindful of basic ordering agreement vs. idiq requirements.
The underlying CICA principles shown under FAR competition allows for justification and approval for other than full and open competition by way of FAR sole source justification contracts are limited. To say otherwise would go against the Competition in Contract Act. Under FAR 6.302-2, the exceptions to the full and open competition rules require the contracting officer to show that:
To say otherwise would go against the Competition in Contract Act. Under FAR 6.302, the exceptions to other than full and open competition rules require the contracting officer to show that:
FAR Subpart 6.3 — Other Than Full and Open Competition
6.300 — Scope of Subpart.
This subpart prescribes policies and procedures, and identifies the statutory authorities, for contracting without providing for full and open competition.
FAR 6.301 — Policy.
(a) 41 USC 3304 and 10 U.S.C. 2304(c) each authorize, under certain conditions, contracting without providing for full and open competition. The Department of Defense, Coast Guard, and National Aeronautics and Space Administration are subject to 10 U.S.C. 2304(c). Other executive agencies are subject to 41 U.S.C. 253(c). Contracting without providing for full and open competition or full and open competition after exclusion of sources is a violation of the statute, unless permitted by one of the exceptions in FAR 6.302.
(b) Each contract awarded without providing for full and open competition shall contain a reference to the specific authority under which it was so awarded. Contracting officers shall use the U.S. Code citation applicable to their agency (see FAR 6.302).
(c) Contracting without providing for full and open competition shall not be justified on the basis of —
(1) A lack of advance planning by the requiring activity or
(2) Concerns related to the amount of funds available (e.g., funds will expire) to the agency or activity for the acquisition of supplies or services.
(d) When not providing for full and open competition, the contracting officer shall solicit offers from as many potential sources as is practicable under the circumstances.
(e) For contracts under this subpart, the contracting officer shall use the contracting procedures prescribed in 6.102(a) or (b), if appropriate, or any other procedures authorized by this regulation.
At each federal government contracting agency, the contracting officer must fully document the FAR competition justification and approval report when sole sourcing government contracts. The J&A must include enough facts and details for the contracting officer’s justification for other than full and open competition. It must also include the legal authority that allows for the sole source contract.
If your company is considering filing a GAO protest, it might be helpful to understand the level of review exceptions to full and open competition that GAO follows.
When GAO reviews a bid protest that challenges an agency’s use of other than full and open competition under CICA, it will only review the justification and approval FAR documentation for the adequacy of the rationale and conclusions that the agency makes. See information on FAR Part 13.
For help filing a bid protest related to FAR 6.302 2, or intervening in a case about the justification for other than full and open competition in FAR sole source justification contracts, call Watson’s GAO protest lawyers. Call 1-866-601-5518.
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