The Federal Government encourages full and open competition because it generally reduces the price and increases innovation. However, it does not apply to:
- Micropurchases which are contracts up to $10,000;
- Contracts awarded for between $10,000-$250,000 under the Simplified Acquisition Threshold (SAT);
- Contract modifications that were previously evaluated in the initial award (e.g. option years, optional services);
- Orders placed under Indefinite Delivery/Indefinite Quantity (IDIQ) contracts;
- Orders placed under Task Order or Delivery Order contracts; and
- Orders placed under Definite-Quantity contracts.
In addition, there are seven circumstances that permit the Government to use other than full and open competition.
1.FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy the requirements. One example is a company that produced a new pharmaceutical drug that has a patent or is applying for a patent.
2. FAR 6.302-2 Unusual and compelling urgency. Unfortunately, we hear about one unusual and compelling circumstance on the news every day — the COVID-19 pandemic. Natural disasters are another unusual and compelling circumstance.
3. FAR 6.302-3 Industrial mobilization, engineering, development, research capability or expert services. The Government may use this when they need a specific expert witness to testify at a trial.
4. FAR 6.302-4 International Agreement. This exception is used when the U.S. has a treaty to purchase products or goods from another country.
5. FAR 6.302-5 Authorized or Required by Statute. This statute provides the Government the opportunity to award directly to a program that has a specific socioeconomic status including Women Owned Small Businesses (WOSB) or Service-Disabled Veteran Owned Small Businesses (SDVOSB).
6. FAR 6.302-6 National Security. This circumstance is used when the work includes classified information and a security clearance is required.
7. FAR 6.302-7 Public Interest. This statute is rarely used. More rigorous requirements pertain including it shall be approved by the Head of the Agency and notify Congress at least 30 days prior to contract award.
From a Contractor perspective, it is important to know who the competition may be when bidding on a Request for Proposal (RFP). If an exception is used for full and open competition, there must be a Justification and Approval, (J&A), which the Contracting Officer usually writes, and it remains part of the permanent file. If there is a question, the public may use the Freedom of Information Act (FOIA) to request the J&A unless it contains national security information or a company’s proprietary information. While the Government fosters competition in most cases, there are appropriate times to limit it.
For questions or comments, please contact Streamline at KLong@StreamlineGovCon.com or 240-644-5314. We welcome your feedback including other topics of interest.
This blog is for informational purposes only. None of the content is, or will be deemed to constitute legal opinions or legal advice.