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.
(a) 41 U.S.C. 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. 3304. 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).
(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.
6.302 Circumstances permitting other than full and open competition.
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.
(i) Supplies or services may be considered to be available from only one source if the source has submitted an unsolicited research proposal that
(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;
(B) Offers a concept or services not otherwise available to the Government; and
(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
(A) Substantial duplication of cost to the Government that is not expected to be recovered through competition; or
(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
(A) Substantial duplication of cost to the Government that is not expected to be recovered through competition; or
(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; 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):
(1) When there is a reasonable basis to conclude that the agency’s minimum needs can only be satisfied by
(i) Unique supplies or services available from only one source or only one supplier with unique capabilities; or
(ii) For DoD, NASA, and the Coast Guard, unique supplies or services available from only one or a limited number of sources or from only one or a limited number of suppliers with unique capabilities.
(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).
(3) When acquiring utility services (see 41.101), circumstances may dictate that only one supplier can furnish the service (see 41.202); 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.
(1) An acquisition or portion of 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
(i) Does not provide for full and open competition, regardless of the number of sources solicited; and
(A) If only a portion of the acquisition is for a brand-name product or item peculiar to one manufacturer, the justification and approval is to cover only the portion of the acquisition which is brand-name or peculiar to one manufacturer. The justification should state it is covering only the portion of the acquisition which is brand-name or peculiar to one manufacturer, and the approval level requirements will then only apply to that portion;
(B) The justification should indicate that the use of such descriptions in the acquisition or portion of an acquisition is essential to the Government’s requirements, thereby precluding consideration of a product manufactured by another company; and
(C) The justification shall be posted with the solicitation (see 5.102(a)(6)).
(2) 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 shall have been published and any bids, proposals, quotations, or capability statements must have been considered.
6.302-2 Unusual and compelling urgency.
(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.
(b) Application. This authority applies in those situations where
(1) An unusual and compelling urgency precludes full and open competition; and
(2) Delay in award of a contract would result in serious injury, financial or other, to the Government.
(1) Contracts awarded using this authority shall be supported by the written justifications and approvals described in 6.303 and 6.304. These justifications may be made and approved after contract award when preparation and approval prior to award would unreasonably delay the acquisition.
(2) This statutory authority requires that agencies shall request offers from as many potential sources as is practicable under the circumstances.
(d) Period of Performance.
(1) The total period of performance of a contract awarded or modified using this authority
(i) May not exceed the time necessary
(A) To meet the unusual and compelling requirements of the work to be performed under the contract; and
(B) For the agency to enter into another contract for the required goods and services through the use of competitive procedures; and
(ii) May not exceed one year, including all options, unless the head of the agency determines that exceptional circumstances apply. This determination must be documented in the contract file.
(2)(i) Any subsequent modification using this authority, which will extend the period of performance beyond one year under this same authority, requires a separate determination. This determination is only required if the cumulative period of performance using this authority exceeds one year. This requirement does not apply to the exercise of options previously addressed in the determination required at (d)(1)(ii) of this section.
(ii) The determination shall be approved at the same level as the level to which the agency head authority in (d)(1)(ii) of this section is delegated.
(3) The requirements in paragraphs (d)(1) and (d)(2) of this section shall apply to any contract in an amount greater than the simplified acquisition threshold.
(4) The determination of exceptional circumstances is in addition to the approval of the justification in 6.304.
(5) The determination may be made after contract award when making the determination prior to award would unreasonably delay the acquisition.
6.302-3 Industrial mobilization; engineering, developmental, or research capability; or expert services.
(2) Full and open competition need not be provided for when it is necessary to award the contract to a particular source or sources in order
(i) To maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization;
(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
(iii) To acquire the services of an expert or neutral person for any current or anticipated litigation or dispute.
(1) Use of the authority in paragraph (a)(2)(i) of this subsection may be appropriate when it is necessary to
(i) Keep vital facilities or suppliers in business or make them available in the event of a national emergency;
(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) Create or maintain the required domestic capability for production of critical supplies by limiting competition to items manufactured in
(A) The United States or its outlying areas; or
(B) The United States, its outlying areas, or Canada.
(v) Continue in production, contractors that are manufacturing critical items, when there would otherwise be a break in production; or
(vi) Divide current production requirements among two or more contractors to provide for an adequate industrial mobilization base.
(2) Use of the authority in paragraph (a)(2)(ii) of this subsection may be appropriate when it is necessary to
(i) Establish or maintain an essential capability for theoretical analyses, exploratory studies, or experiments in any field of science or technology;
(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
(iii) Contract for supplies or services as are necessary incident to paragraphs (b)(2)(i) or (ii) of this subsection.
(3) Use of the authority in paragraph (a)(2)(iii) of this subsection may be appropriate when it is necessary to acquire the services of either
(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
(ii) A neutral person, e.g., mediators or arbitrators, to facilitate the resolution of issues in an alternative dispute resolution process.
6.302-4 International agreement.
(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.
(b) Application. This authority may be used in circumstances such as
(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.
6.302-5 Authorized or required by statute.
(2) Full and open competition need not be provided for when
(i) A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source; or
(ii) The agency’s need is for a brand name commercial item for authorized resale.
(b) Application. This authority may be used when statutes, such as the following, expressly authorize or require that acquisition be made from a specified source or through another agency:
(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. 657f).
(1) This authority shall not be used when a provision of law requires an agency to award a new contract to a specified non-Federal Government entity unless the provision of law specifically
(i) Identifies the entity involved;
(iii) States that award to that entity shall be made in contravention of the merit-based selection procedures in 10 U.S.C. 2304(k) or 41 U.S.C. 3105, as appropriate. However, this limitation does not apply
(A) When the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract; or
(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.
(i) Contracts awarded under (a)(2)(ii) or (b)(2) of this subsection;
(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); or
(iii) Contracts less than or equal to $22 million awarded under (b)(4) of this subsection.
(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)).
6.302-6 National security.
(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(a)(1) for synopsis requirements.
(3) This statutory authority requires that agencies shall request offers from as many potential sources as is practicable under the circumstances.
6.302-7 Public interest.
(2) Full and open competition need not be provided for when the agency head determines that it is not in the public interest in the particular acquisition concerned.
(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, 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
(ii) The head of any other executive agency. This authority may not be delegated.
(2) The Congress shall be notified in writing of such determination not less than 30 days before award of the contract.
(3) If required by the head of the agency, the contracting officer shall prepare a justification to support the determination under paragraph (c)(1) of this subsection.
(4) This Determination and Finding (D&F) shall not be made on a class basis.
(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;
(2) Certifies the accuracy and completeness of the justification; and
(3) Obtains the approval required by 6.304.
(b) The contracting officer shall not award a sole-source contract under the 8(a) authority (15 U.S.C. 637(a)) for an amount exceeding $22 million unless
(1) The contracting officer justifies the use of a sole-source contract in writing in accordance with 6.303-2;
(2) The justification is approved by the appropriate official designated at 6.304; and
(3) The justification and related information are made public after award in accordance with 6.305.
(c) Technical and requirements personnel are responsible for providing and certifying as accurate and complete necessary data to support their recommendation for other than full and open competition.
(d) 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 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.
(e) The justifications for contracts awarded under the authority cited in 6.302-2 may be prepared and approved within a reasonable time after contract award when preparation and approval prior to award would unreasonably delay the acquisitions.
(a) Each justification shall contain sufficient facts and rationale to justify the use of the specific authority cited.
(b) As a minimum, each justification, except those for sole-source 8(a) contracts over $22 million (see paragraph (d) of this section), shall include the following information:
(1) Identification of the agency and the contracting activity, and specific identification of the document as a “Justification for other than full and open competition.”
(2) Nature and/or description of the action being approved.
(3) A description of the supplies or services required to meet the agency’s needs (including the estimated value).
(4) An identification of the statutory authority permitting other than full and open competition.
(5) A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited.
(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 and, if not, which exception under 5.202 applies.
(7) A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.
(8) A description of the market research conducted (see Part 10) and the results or a statement of the reason market research was not conducted.
(9) Any other facts supporting the use of other than full and open competition, such as:
(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 is cited, data, estimated cost, or other rationale as to the extent and nature of the harm to the Government.
(10) A listing of the sources, if any, that expressed, in writing, an interest in the acquisition.
(11) A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required.
(12) Contracting officer certification that the justification is accurate and complete to the best of the contracting officer’s knowledge and belief.
(c) 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.
(d) As a minimum, each justification for a sole-source 8(a) contract over $22 million shall include the following information:
(1) A description of the needs of the agency concerned for the matters covered by the contract.
(2) A specification of the statutory provision providing the exception from the requirement to use competitive procedures in entering into the contract (see 19.805-1).
(3) A determination that the use of a sole-source contract is in the best interest of the agency concerned.
(4) A determination that the anticipated cost of the contract will be fair and reasonable.
(5) Such other matters as the head of the agency concerned shall specify for purposes of this section.
6.304 Approval of the justification.
(a) Except for paragraph (b) of this section, the justification for other than full and open competition shall be approved in writing
(1) For a proposed contract not exceeding $700,000, the contracting officer’s certification required by 6.303-2(b)(12) will serve as approval unless a higher approving level is established in agency procedures.
(2) For a proposed contract over $700,000 but not exceeding $13.5 million, by the advocate for competition for the procuring activity designated pursuant to 6.501 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 $13.5 million, but not exceeding $68 million, or, for DoD, NASA, and the Coast Guard, not exceeding $93 million, by the head of the procuring activity, or a designee who
(i) If a member of the armed forces, is a general or flag officer; or
(ii) If a civilian, is serving in a position in a grade above GS-15 under the General Schedule (or in a comparable or higher position under another schedule).
(4) For a proposed contract over $68 million or, for DoD, NASA, and the Coast Guard, over $93 million, by the senior procurement executive of the agency designated pursuant to 41 U.S.C. 1702(c) 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.
(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.
(d) The estimated dollar value of all options shall be included in determining the approval level of a justification.
6.305 Availability of the justification.
(a) The agency shall make publicly available the justification required by 6.303-1 as required by 10 U.S.C. 2304(l) and 41 U.S.C. 3304(f). Except for the circumstances in paragraphs (b) and (c) of this section, the justification shall be made publicly available within 14 days after contract award.
(b) In the case of a contract award permitted under 6.302-2, the justification shall be posted within 30 days after contract award.
(d) The justifications shall be made publicly available
(1) At the Government Point of Entry (GPE) www.fedbizopps.gov;
(2) On the website of the agency, which may provide access to the justifications by linking to the GPE; and
(3) Must remain posted for a minimum of 30 days.
(e) 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 the justification, or portions of it, are exempt from posting. Although the submitter notice process set out in EO 12600, entitled “Predisclosure Notification Procedures for Confidential Commercial Information,” does not apply, if the justification appears to contain proprietary data, the contracting officer should provide the contractor that submitted the information an opportunity to review the justification for proprietary data, before making the justification available for public inspection, redacted as necessary. This process must not prevent or delay the posting of the justification in accordance with the timeframes required in paragraphs (a) through (c).
(f) The requirements of paragraphs (a) through (d) do not apply if posting the justification would disclose the executive agency’s needs and disclosure of such needs would compromise national security or create other security risks.