Public Disclosure Requirements for Buyers
and
B Y W i l l i a m A . C ox
44
Contract Management | February 2010
Sellers:
Justifications for Other than Full
A review of the documentation
requirements for justifications, as
well as information for industry
review of the posted justifications.
and
Open
Competition
Contract Management | February 2010
45
Effective February 17, 2009,
Federal Acquisition Regulation
(FAR ) 6.305 mandates buying
agencies to post justifications
and approvals for other than
full and open competition to the
Federal Business Opportunities
System (FedBizOpps)1 and
agency Web sites after award.
Justifications based on “unusual
and compelling urgency” must
be posted within 30 days
after award, while all other
justifications must be posted
within 14 days after award.
Background
The United States Code (U.S.C.) requires
buying agencies to promote and provide for
full and open competition in soliciting offers
and awarding government contracts with
specific, limited exceptions.2 Contracting
officers must execute properly approved
justifications before limiting the number
of sources, commencing negotiations, or
awarding sole-source contracts and modifications that do not provide for full and
open competition. However, justifications
based on “unusual and compelling urgency”
may be prepared and approved within a
reasonable time after contract award when
preparation and approval prior to award
would unreasonably delay the acquisitions.3
Although the mandatory posting requirements are new, the FAR has always provided
for the availability of justifications.4 The
Competition in Contracting Act (CICA)5
mandates the documents to be available
for public inspection if requested under the
46
Contract Management | February 2010
Freedom of Information Act (FOIA).6
Also, in addition to requiring the
removal of information that is exempt
from disclosure by the FOIA, the FAR
requires contracting officers to screen
justifications before posting and to
remove any proprietary data and its
associated references and citations.
Since September 2006, the FAR has also
required the posting of justifications
for other than full and open competition for brand-name procurements to
FedBizOpps before award, along with
the solicitation documents. Similarly,
limited source justifications approved
for brand-name procurements through
Federal Supply Schedules orders must
be posted to e-Buy7 before award, along
with the request for quotations.8
The posting requirements were conceived in proposed oversight legislation
relating to contracts in response to
Hurricane Katrina and to military operations in Iraq. Even though these contracts were authorized due to the “unusual
emergency” circumstances, proponents
of acquisition transparency in Congress
believed that the posting of justifications
should also be extended to other noncompetitive procurements.9
Buyers
Buyers must ensure that the information in
justifications is accurate before posting. The
minimum required content for justifications
exceeding the simplified acquisition threshold includes the following:
ƒƒ
Identification of the agency and the
contracting activity, as well as specific
identification of the document as a
“justification for other than full and
open competition” (FAR Part 6 and Subpart 13.5) or “limited source justification” (FAR 8.405-6);
ƒƒ
Nature and/or description of the action
being approved;
ƒƒ
A description of the supplies or services
required to meet the agency’s needs
(including the estimated value);
ƒƒ
An identification of the statutory
authority permitting other than full
and open competition (FAR 6.302 and
Subpart 13.501(a)(1)(ii)) or justification
rationale (FAR 8.405-6(a) and (b));
ƒƒ
A demonstration that the proposed
contractor’s unique qualifications or
the nature of the acquisition requires
use of the authority cited, which
may or may not be applicable to FAR
8.405-6;
ƒƒ
A description of efforts made to ensure
that officers are solicited from as many
potential sources as is practicable, including whether a notice was or will be
publicized as required by FAR Subpart
5.2 and, if not, which exception under
FAR 5.202 applies (not applicable to
FAR 8.405-6; however, it is advisable to
include an explanation about soliciting
as many sources as is practicable and
publication information in e-Buy);
ƒƒ
A determination by the contracting
officer that the anticipated cost to the
government will be fair and reasonable
(FAR Part 6 and Subpart 13.5), or determination that the order represents the
best value (FAR 8.404(d));
FIGURE 1 on page 47 summarizes the posting requirements for justifications.
Impact of Posting
Requirements on Buying
Agencies and Sellers
These posting requirements will change the
behavior of both buyers and sellers. Buyers
will have to better manage the accuracy
and completeness of justifications because
sellers now have easy access to the justifications. Sellers who may not have reviewed
any justifications in the past are now more
likely to do so because they are readily
available and easily found with the FedBizOpps search page and through various
online search engines. Also, buying agency
documents will be subject to even more
seller scrutiny, as well as subject to internal
reviews and audits.
Public Disclosure Requirements for buyers and sellers: Justifications for other than full and open competition
ƒƒ
A description of the market research
conducted and the results or a statement of the reason market research
was not conducted;
ƒƒ
Any other facts supporting the use of
other than full and open competition,
such as:
{{ An explanation of why technical
data packages, specification, engineering descriptions, statements
of work, or purchase descriptions
suitable for full and open competition have not been developed or
are not available;
{{ When FAR 6.302-2 is cited, data,
estimated cost, or other rationale
as to the extent and nature of the
harm to the government;
ƒƒ
Contracting officer certification
that the justification is accurate and
complete to the best of the contracting
officer’s knowledge and belief;
ƒƒ
A listing of the sources, if any, that
express, in writing, an interest in the
acquisition;
ƒƒ
ƒƒ
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 (FAR Part 6 and Subpart
13.5), or a statement of the actions,
if any, the agency may take to remove or overcome any barriers that
led to the restricted consideration
before any subsequent acquisition
for the supplies or services is made
(FAR 8.405-6);
Evidence that any supporting data
that is the responsibility of technical or
requirements personnel (e.g., verifying
the government’s minimum needs or
requirements or other rationale for limited sources), and which form a basis for
the justification, have been certified as
complete and accurate by the technical
or requirements personnel; and
ƒƒ
Approval by the appropriate authority
(FAR 6.304).10
{{ When FAR 6.302-1 is cited for follow-on acquisitions as described in
FAR 6.302-1(a)(2)(ii), an estimate of
the cost to the government that
would be duplicated, and how the
estimate was derived; and
Buyers should ensure that the content
completely justifies the sourcing decision. In addition to the prescribed minimum content, buyers should include
the names of the proposed sources and
FIGURE 1. Summary for Posting
Requirements of Justifications
Exception to Full and Open Competition
ƒƒ
FAR 6.302-1, “Only One Responsible Source and No Other Supplies or Services
Will Satisfy Agency Requirements.”
ƒƒ
FAR 6.302-3, “Industrial Mobilization; Engineering, Developmental, or Research
Capability; or Expert Services.”
ƒƒ
FAR 6.302-4, “International Agreement.”
ƒƒ
FAR 6.302-5, “Authorized or Required by Statute.”
ƒƒ
FAR 6.302-6, “National Security.”
ƒƒ
FAR 6.302-7, “Public Interest.”
ƒƒ
FAR 6.302-2, “Unusual and Compelling Urgency.”
Posting Site
Posting Date
FedBizOpps
Within 14 days after award.
FedBizOpps
Within 30 days after award.
ƒƒ
FAR 8.405-6(f) and (g), “Non-Brand Name.”
Posting Not Required
N/A
ƒƒ
FAR 13.106-1(b), “Non-Brand Name.”
Posting Not Required
N/A
ƒƒ
FAR 13.501(a), “Non-Brand Name.”
Posting Not Required
N/A
Brand Name and Items and Services Peculiar to One Manufacturer or Origin
ƒƒ
FAR 6.302-1(c), “Brand Name Descriptions.”
FedBizOpps
ƒƒ
FAR 13.106-1(b), “Only One Source Reasonably Available.”
FedBizOpps
ƒƒ
FAR 13.501(a), “Test Program for Commercial Items (Section 4202 of the
Clinger-Cohen Act of 1996) or the Authority of the Services Acquisition Reform
Act of 2003 (41 U.S.C. 428a).”
FedBizOpps
The solicitation posting date.
ƒƒ
FAR 8.405-6(a)(2), “Item Peculiar to One Manufacturer and Brand Name Items.”
e-Buy
The solicitation posting date.
Contract Management | February 2010
47
C P CM
C F CM
CERTIFIED PROFESSIONAL CONTRACTS MANAGER
C P CM
C F CM
CERTIFIED PROFESSIONAL CONTRACTS MANAGER
C P CM
C F CM
Certification Program
CERTIFIED PROFESSIONAL CONTRACTS MANAGER
CERTIFIED FEDERAL CONTRACTS MANAGER
CERTIFIED FEDERAL CONTRACTS MANAGER
CERTIFIED FEDERAL CONTRACTS MANAGER
CCCM
CERTIFIED COMMERCIAL CONTRACTS MANAGER
CCCM
CERTIFIED COMMERCIAL CONTRACTS MANAGER
CCCMDistinguish yourself with a
.
profes
sional certification from NCMA
CERTIFIED COMMERCIAL CONTRACTS MANAGER
NCMA certification means recognition—steal the spotlight in job interviews, add thousands to your salary,
boost your career potential, and earn
the recognition you deserve!
Our annual salary surveys have found
that contract management professionals who hold an NCMA certification earn an average of $10,000 to
$25,000 more than those who are
uncertified.
To be eligible for NCMA certification,
you must first meet specific education
and experience requirements and agree
to adhere to a code of professional
conduct. You must also successfully
complete an objective-type, competency
based exam designed to measure your
knowledge of contract management.
Choice of Exam Venues
Once your application for certification
is approved, when and where you take
the exam is up to you. NCMA now offers
several options.
To learn more, visit
www.ncmahq.org/certification
call 800-344-8096, or e-mail us at [email protected].
Public Disclosure Requirements for buyers and sellers: Justifications for other than full and open competition
the form of the action (purchase order,
contract, order, modification, blanket
purchase agreement, or other type).
Buyers also need to review the justification to redact any information that is
exempt from disclosure under the FOIA
before posting.
In addition, buyers should ensure that
the individual elements of the justification are in harmony with each other. For
example, the market research information will indicate the existence of sources,
and this source information should
harmonize with the description of efforts
made to ensure that offers are solicited
from as many potential sources as is
practicable. Additionally, the information
from these sections can support a proposed contractor’s unique qualifications.
Buying agencies can also review other
agency justifications that are posted to
FedBizOpps to verify market research for
similar acquisitions.
Because agencies have to promote full
and open competition, buyers need to
carefully document the statement of
actions to overcome any barriers to
competition or restricted consideration.
Circumstances are rare when there are
no actions to take for the removal of
competition barriers, and successive
justifications for the same products or
services may lose credibility if no actions
are stated to remove the barriers.
Buying agencies should ensure that
the justifications are accurate and of
high quality in order to avoid rework
or protests. Protestors usually prevail
against the government where there is a
lack of advance planning and of adequate
justification for unusual and compelling
urgency.11 If market research is not thorough enough or did not even take place,
or if any barriers to competition could
have been overcome for the acquisition, the justification may violate CICA’s
advance planning requirement. “Where
in Federal Contracting,” popularly known
as Wifcon.com, is an excellent Internet
resource that compiles categories of
protests relating to justifications.
Sellers
Sellers can use search features in FedBizOpps to find justifications for supplies and
services in their industries, enabling sellers
to contact the agency with questions about
the information in the justifications. For
example, a seller may find a justification
describing a product or service with equal
functionality to one of its own, having the
opportunity to respond to the solicitation or
respond with questions about the validity
of the information. Sellers may also request
copies of justifications because agencies
inadvertently do not post the required
justifications with pre-solicitation notices or
with solicitations.
Sellers may ask the buying agency about the
validity of any part of the market research
and the appropriateness of the authority.
Buyers who forget to post the award notice
may be prompted by sellers who anticipate
the notice in order to see the justification.
Sellers should also review justifications for
acquisitions that individual agencies are
repeatedly awarding without competition.
Contract Management | February 2010
49
Public Disclosure Requirements for buyers and sellers: Justifications for other than full and open competition
For these documents, sellers should verify if
agencies are taking action to overcome the
barriers to competition. The lack of action
may indicate the lack of advance planning.
Sellers also may compare the content of
justifications to the types of content that
were subject to prior protests. As a result,
some sellers may have standing to file both
pre-award and post-award protest actions.
Sellers may also discover that agencies solicited one source even though the agency
market research revealed more than one
source. Sellers should always make inquiries
to the agency to find out why no more than
one source was solicited if the agency had
the opportunity to solicit other sources.
tion that are posted to FedBizOpps and to
e-Buy are meant to promote competition,
but the posting of the documents may also
reveal less-than-desirable practices and
disciplines on the part of buying agencies. Agencies can improve the quality of
justifications by reviewing protests relating
to justifications, as well as borrowing best
practices from the postings of other agencies. Sellers can increase the opportunity for
contracts by carefully reading the justifications and by providing competing supplies
and services. CM
About the Author
Endnotes
1.
The governmentwide point of entry, www.fbo.
gov.
2.
The Department of Defense, Coast Guard, and
National Aeronautics and Space Administration
are subject to 10 U.S.C 2304. All other agencies
are subject to 41 U.S.C. 253.
3.
FAR 6.303-1.
4.
The availability requirements were included in
FAR 6.305(a) through the effective period of
changes in Federal Acquisition Circular (FAC)
2005-29, Amendment-1, dated January 14,
2009.
5.
41 U.S.C. 253.
6.
Public Law 89-554, 80 Stat. 383.
7.
www.ebuy.gsa.gov.
8.
FAC 2005-13, dated September 28, 2006.
9.
See Rep. Henry A. Waxman, “Democratic Truth
Squad Introduces ‘Clean Contract Act’” (September 13, 2006), available at http://oversight.house.gov/story.asp?ID=1103.
10.
FAR 6.303-2, FAR 13.5(a)(1)(ii), and FAR
8.405-6(g).
11.
Decisions in favor of the protestor include the
comptroller general decisions Major Contracting Services, Inc., B-401472, September 14,
2009; eFedBudget Corporation, B-298627,
November 15, 2006; and HEROS Inc., B-292043,
June 9, 2003. A decision in favor of the government includes the Court of Federal Claims
decision L-3 Communications Eotech, Inc., v. U.S.
and Aimpoint, Inc., No. 08-871C, February 18,
2009.
WILLIAM A. COX, CPCM, is a member of the
Lone Star Chapter of NCMA in Austin, Texas.
Finally, sellers should request justifications
through the FOIA for acquisitions posted
prior to February 17, 2009.
ment of Veterans Affairs.
Conclusion
Send comments about this article to cm@
ncmahq.org. To discuss this article with
your peers online, go to www.ncmahq.org/
cm0210/Cox and click on “Join Discussion.”
The emphasis on transparency in government has reached into the CICA. Justifications for other than full and open competi-
50
Contract Management | February 2010
He is a procurement analyst for the Depart-