Justification for Other than Full and Open Competition
6.300 Scope of subpart.
(a) Title 41- Public Contracts, U.S.C. 253(c) and Title 10- Armed Forces, 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 statute, unless permitted by one of the exceptions in 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 6.302).
(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.
The following statutory authorities (including applications and limitations) permit contracting without providing for full and open competition. Requirements for justifications to support the use of these authorities are in 6.303.
6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements.
(2) When the supplies or services required by the agency are available from only one responsible source, or, for DoD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be provided for.
(A) Demonstrates a unique and innovative concept (see definition at 2.101), or, demonstrates a unique capability of the source to provide the particular research services proposed;
(ii) Supplies may be deemed to be available only from the original source in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, including major components thereof, when it is likely that award to any other source would result in—
(iii) For DoD, NASA, and the Coast Guard, services may be deemed to be available only from the original source in the case of follow-on contracts for the continued provision of highly specialized services when it is likely that award to any other source would result in—
(B) Unacceptable delays in fulfilling the agency’s requirements. (See 10 U.S.C. 2304(d)(1)(B).)
(b) Application. This authority shall be used, if appropriate, in preference to the authority in 6.302-7 Public Interest; it shall not be used when any of the other circumstances is applicable. Use of this authority may be appropriate in situations such as the following (these examples are not intended to be all inclusive and do not constitute authority in and of themselves):
(2) The existence of limited rights in data, patent rights, copyrights, or secret processes; the control of basic raw material; or similar circumstances, make the supplies and services available from only one source (however, the mere existence of such rights or circumstances does not in and of itself justify the use of these authorities) (see Part 27-Patents, Data, and Copyright).
(3) When acquiring utility services (see41.101-Definitions), circumstances may dictate that only one supplier can furnish the service (see 41.202- Procedures for Acquiring Utility Servies); or when the contemplated contract is for construction of a part of a utility system and the utility company itself is the only source available to work on the system.
(4) When the agency head has determined in accordance with the agency’s standardization program that only specified makes and models of technical equipment and parts will satisfy the agency’s needs for additional units or replacement items, and only one source is available.
(c) Application for brand name descriptions. An acquisition that uses a brand name description or other purchase description to specify a particular brand name, product, or feature of a product, peculiar to one manufacturer does not provide for full and open competition regardless of the number of sources solicited. It shall be justified and approved in accordance with FAR 6.303-Justification and 6.304- Approval of the Justification. The justification should indicate that the use of such descriptions in the acquisition is essential to the Government’s requirements, thereby precluding consideration of a product manufactured by another company. See 5.102-Availability of Solicitations(a)(6) for the requirement to post the brand name justification. (Brand-name or equal descriptions, and other purchase descriptions that permit prospective contractors to offer products other than those specifically referenced by brand name, provide for full and open competition and do not require justifications and approvals to support their use.)
(2) For contracts awarded using this authority, the notices required by 5.201-Synopses of Proposed Contract Actions shall have been published and any bids, proposals, quotations, or capability statements must have been considered.
(2) When the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals, full and open competition need not be provided for.
(1) Contracts awarded using this authority shall be supported by the written justifications and approvals described in 6.303-Justification and 6.304-Approval of the Justification. These justifications may be made and approved after contract award when preparation and approval prior to award would unreasonably delay the acquisition.
(3) The determination of exceptional circumstances is in addition to the approval of the justification in 6.304-Approval of the Justification.
6.302-3 Industrial mobilization; engineering, developmental, or research capability; or expert services.
(ii) To establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; or
(ii) Train a selected supplier in the furnishing of critical supplies or services; prevent the loss of a supplier’s ability and employees’ skills; or maintain active engineering, research, or development work;
(iii) Maintain properly balanced sources of supply for meeting the requirements of acquisition programs in the interest of industrial mobilization (when the quantity required is substantially larger than the quantity that must be awarded in order to meet the objectives of this authority, that portion not required to meet such objectives will be acquired by providing for full and open competition, as appropriate, under this part);
(iv) Limit competition for current acquisition of selected supplies or services approved for production planning under the Department of Defense Industrial Preparedness Program to planned producers with whom industrial preparedness agreements for those items exist, or limit award to offerors who agree to enter into industrial preparedness agreements;
(ii) Establish or maintain an essential capability for engineering or developmental work calling for the practical application of investigative findings and theories of a scientific or technical nature; or
(i) An expert to use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Government in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, whether or not the expert is expected to testify. Examples of such services include, but are not limited to:
(A) Assisting the Government in the analysis, presentation, or defense of any claim or request for adjustment to contract terms and conditions, whether asserted by a contractor or the Government, which is in litigation or dispute, or is anticipated to result in dispute or litigation before any court, administrative tribunal, or agency; or
(B) Participating in any part of an alternative dispute resolution process, including but not limited to evaluators, fact finders, or witnesses, regardless of whether the expert is expected to testify; or
(2) Full and open competition need not be provided for when precluded by the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the acquisition of the supplies or services for such government.
(1) When a contemplated acquisition is to be reimbursed by a foreign country that requires that the product be obtained from a particular firm as specified in official written direction such as a Letter of Offer and Acceptance; or
(2) When a contemplated acquisition is for services to be performed, or supplies to be used, in the sovereign territory of another country and the terms of a treaty or agreement specify or limit the sources to be solicited.
(1) Federal Prison Industries (UNICOR)—Title 18-Crimes and Criminal Procedures, U.S.C. 4124 (see Subpart 8.6- Acquisition from Federal Prison Industries, Inc.).
(2) Qualified Nonprofit Agencies for the Blind or other Severely Disabled—Title 41- Public Contracts, U.S.C. 46-48c (see Subpart 8.7-Acquisition from Nonprofit Agencies Employing People who are Blind or Severely Disabled.
(3) Government Printing and Binding—44 U.S.C. 501-504, 1121 (see Subpart 8.8-Acquisition of Printing and Related Supplies).
(4) Sole source awards under the 8(a) Program Title 15-Coast Guard, U.S.C. 637 (see Subpart 19.8-Contracting with the Small Business Administration).
(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. 657f).
(ii) Refers to 10 U.S.C. 2304(j) for armed services acquisitions or section 303(h) of the Federal Property and Administrative Services Act of 1949 for civilian agency acquisitions; and
(iii) States that award to that entity shall be made in contravention of the merit-based selection procedures in 10 U.S.C. 2304(j) or section 303(h) of the Federal Property and Administrative Services Act, as appropriate. However, this limitation does not apply—
(B) To any contract requiring the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an executive agency and to report on those matters to the Congress or any agency of the Federal Government.
(ii) Contracts awarded under (a)(2)(i) of this subsection when the statute expressly requires that the procurement be made from a specified source. (Justification and approval requirements apply when the statute authorizes, but does not require, that the procurement be made from a specified source.)
(3) The authority in (a)(2)(ii) of this subsection may be used only for purchases of brand-name commercial items for resale through commissaries or other similar facilities. Ordinarily, these purchases will involve articles desired or preferred by customers of the selling activities (but see 6.301(d)).
(2) Full and open competition need not be provided for when the disclosure of the agency’s needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals.
(b) Application. This authority may be used for any acquisition when disclosure of the Government’s needs would compromise the national security (e.g., would violate security requirements); it shall not be used merely because the acquisition is classified, or merely because access to classified matter will be necessary to submit a proposal or to perform the contract.
(2) See 5.202-Exceptions(a)(1) for synopsis requirements.
(b) Application. This authority may be used when none of the other authorities in 6.302 apply.
(1) A written determination to use this authority shall be made in accordance with Subpart 1.7-Determinations and Findings, by—
(i) The Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Homeland Security for the Coast Guard, or the Administrator of the National Aeronautics and Space Administration; or
(a) A contracting officer shall not commence negotiations for a sole source contract, commence negotiations for a contract resulting from an unsolicited proposal, or award any other contract without providing for full and open competition unless the contracting officer—
(1) Justifies, if required in 6.302, the use of such actions in writing;
(3) Obtains the approval required by 6.304.
(c) Justifications required by paragraph (a) of this section may be made on an individual or class basis. Any justification for contracts awarded under the authority of 6.302-7 Public Interest shall only be made on an individual basis. Whenever a justification is made and approved on a class basis, the contracting officer must ensure that each contract action taken pursuant to the authority of the class justification and approval is within the scope of the class justification and approval and shall document the contract file for each contract action accordingly.
(d) The justifications for contracts awarded under the authority cited in 6.302-2 Content may be prepared and approved within a reasonable time after contract award when preparation and approval prior to award would unreasonably delay the acquisitions.
(6) A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable, including whether a notice was or will be publicized as required by Subpart 5.2-Synopses of Proposed Contract Actions and, if not, which exception under 5.202 applies.
(8) A description of the market research conducted (see Part 10-Market Research) and the results or a statement of the reason market research was not conducted.
(i) Explanation of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available.
(iii) When 6.302-2 Unusual and Compelling Urgency is cited, data, estimated cost, or other rationale as to the extent and nature of the harm to the Government.
(b) Each justification shall include evidence that any supporting data that is the responsibility of technical or requirements personnel (e.g., verifying the Government’s minimum needs or schedule requirements or other rationale for other than full and open competition) and which form a basis for the justification have been certified as complete and accurate by the technical or requirements personnel.
(1) For a proposed contract not exceeding $550,000, the contracting officer’s certification required by 6.303-2(a)(12) will serve as approval unless a higher approving level is established in agency procedures.
(2) For a proposed contract over $550,000 but not exceeding $11.5 million, by the competition advocate for the procuring activity designated pursuant to 6.501- Competition Advocates Requirement or an official described in paragraph (a)(3) or (a)(4) of this section. This authority is not delegable.
(3) For a proposed contract over $11.5 million, but not exceeding $57 million, or, for DoD, NASA, and the Coast Guard, not exceeding $78.5 million, by the head of the procuring activity, or a designee who—
(4) For a proposed contract over $57 million or, for DoD, NASA, and the Coast Guard, over $78.5 million, by the senior procurement executive of the agency designated pursuant to the OFPP Act (Title 41-Public Contracts, U.S.C. 414(3)) in accordance with agency procedures.This authority is not delegable except in the case of the Under Secretary of Defense for Acquisition, Technology, and Logistics, acting as the senior procurement executive for the Department of Defense.
(b) Any justification for a contract awarded under the authority of 6.302-7 Public Interest, regardless of dollar amount, shall be considered approved when the determination required by 6.302-7(c)(1) is made.
(c) A class justification for other than full and open competition shall be approved in writing in accordance with agency procedures. The approval level shall be determined by the estimated total value of the class.
(a) Except for paragraph (b) of this section, the agency shall make publicly available within 14 days after contract award the justification required by 6.303-1 as required by Title 10- Armed Forces, U.S.C. 2304(f)(4) and Title 41-Public Contracts U.S.C. 253(f)(4)—
(1) At the GPE www.fedbizopps.gov; and
(b) In the case of a contract award permitted under 6.302-2 Unusual and Compelling Urgency, the justification shall be posted within 30 days after contract award.
(c) Contracting officers shall carefully screen all justifications for contractor proprietary data and remove all such data, and such references and citations as are necessary to protect the proprietary data, before making the justifications available for public inspection. Contracting officers shall also be guided by the exemptions to disclosure of information contained in the Freedom of Information Act (5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in determining whether other data should be removed.
Last Modified: April 5th, 2010