2024: The FAR, Federal Acquisition Regulations - Part 6

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THE FAR – PART 6

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FAR PART #6:
Competition Requirements
SPEAKER: Stephen Ruscus
FIRM: Baker Hostetler
EMAIL: sruscus@bakerlaw.com

2024 Webinar Series
THE FAR
FAR PART #6:
SPEAKER: Kaitlyn Toth
EMAIL: ketoth@bakerlaw.com

Agenda
 Competition in Contracting Act
 FAR 6.001 – Applicability
 FAR 6.1 – Full and Open Competition
 FAR 6.2 – Full and Open Competition After Exclusion of Sources
 FAR 6.3 – Other than Full and Open Competition
 FAR 6.4 – Sealed Bidding and Competitive Proposals
 FAR 6.5 – Advocates for Competition

Competition in Contracting Act (“CICA”) – 10 U.S.C. § 3201
 In conducting a procurement for property or services, the head of an
agency shall obtain full and open competition through the use of
competitive procedures in accordance with the FAR.
 The FAR shall ensure that the requirement to obtain full and open
competition is implemented in a manner that is consistent with the need to
efficiently fulfill the Government’s requirements.

Competition in Contracting Act (“CICA”) – 10 U.S.C. § 3201
 In passing CICA, Congress sought to increase competition and
procurement savings by obtaining lower, more competitive pricing.
 ATA Def. Indus., Inc. v. United States, 38 Fed. Cl. 489, 500 (1997).
 The premise that underlies the strong preference for “full and open
competition” is the economic premise that has long been recognized
as the basis for a free market economic system—that full and open
competition brings consumers the widest variety and the lowest
possible prices.
 Congress expresses a willingness to yield the benefits of full and
open competition only when the alternative is serious injury to the
United States.

FAR 6.001 – Applicability
 Part 6 applies to all acquisitions except—
 (a) Contracts awarded using the simplified acquisition procedures of
part 13 (but see 13.501 for requirements pertaining to sole-source
acquisitions of commercial products or services under subpart 13.5);
 Micro-purchases – generally, $10,000
 Acquisitions below SAT – generally, $250,000

FAR 6.001 – Applicability, cont’d
 (b) Contracts awarded using contracting procedures (other than those
addressed in this part) that are expressly authorized by statute;
 (c) Contract modifications, that are within the scope of the contract,
including the exercise of priced options that were evaluated as part of
the original competition (see 17.207(f));
 Out of scope modification issues

FAR 6.001 – Applicability, cont’d
 (d) Orders placed under requirements contracts or definite-quantity contracts;
 (e) Orders placed under indefinite-quantity contracts that were entered into
pursuant to this part when—
 (1) The contract was awarded under subpart 6.1 or 6.2 and all
responsible sources were realistically permitted to compete for the
requirements contained in the order; or
 (2)The contract was awarded under subpart 6.3 and the required
justification and approval covers the requirements contained in the order;
or
 (f) Orders placed against task order and delivery order contracts entered into
pursuant to subpart 16.5.

FAR Subpart 6.1 – Full and Open Competition
 Competitive procedures available for use in fulfilling the requirement for full
and open competition are as follows:
 Sealed bids.
 Competitive proposals.
 If sealed bids are not appropriate, contracting officers shall request
competitive proposals or use other specified competitive procedures.
 Competition of competitive procedures.
 If sealed bids are not appropriate, contracting officers may use any
combination of competitive procedures (e.g., two-step sealed
bidding).

FAR Subpart 6.1 – Full and Open Competition, cont’d
 Other competitive procedures:
 Selection of sources for architect-engineer contracts.
 Competitive selection of basic and applied research and that part of
development not related to the development of a specific system or
hardware procurement is a competitive procedure if award results from—
 (i) A broad agency announcement that is general in nature
identifying areas of research interest, including criteria for selecting
proposals, and soliciting the participation of all offerors capable of
satisfying the Government’s needs; and
 (ii) A peer or scientific review.
 Use of multiple award schedules issued under the procedures
established by GSA for the MAS schedule program.

 Unduly Restrictive Terms
 American Safety Council, Inc. v. United States, 122 Fed. Cl. 426
(2015).
 Agencies are allowed to include restrictive requirements only in a
solicitation only to the extent they are necessary to satisfy the
agency’s legitimate needs.
 If a Court finds a solicitation’s terms are unduly restrictive and
serve no legitimate agency need, the Court will find the agency’s
decision to include those terms in the solicitation to be arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.

 Favoring the Incumbent
 Samsara Inc. v. United States, No. 23-361, 2024 WL 228081 (Fed.
Cl. Jan. 4, 2024).
 A federal procuring agency may not unduly tip the scales in favor
of an incumbent contractor.
 However, an agency is not required to ignore the benefits or
advantages derived from an offeror’s incumbency, and it likewise
need not attempt to level the playing field for all other offerors.

 Acquisition Planning
 FirstLine Transp. Sec., Inc. v. United States, 107 Fed. Cl. 189 (2012).
 Agencies must perform acquisition planning and conduct market
research for all acquisitions to promote and provide for full and
open competition.
 Agencies must use the results of market research to determine if
sources capable of satisfying the agency’s requirements exist.

FAR Subpart 6.2 – Full and Open Competition After Exclusion of Sources
 Establishing or maintaining alternative sources:
 Agencies may exclude a particular source to establish or maintain an
alternative source or sources if the agency head determines that to do so
would—
 (1) Increase or maintain competition and likely result in reduced overall
costs;
 (2) Be the interest of national defense in having a source available for
furnishing the supplies or services in case of national emergency or
industrial mobilization;
 (3) Be in the interest of the national defense in establishing or
maintaining 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;

FAR Subpart 6.2 – Full and Open Competition After Exclusion of
Sources
 Agencies may exclude a particular source to establish or maintain an
alternative source or sources if the agency head determines that to
do so would—
 (4) Ensure the continuous availability of a reliable source of
supplies or services;
 (5) Satisfy projected needs based on a history of high demand;
or
 (6) Satisfy a critical need for medical, safety, or emergency
supplies.

FAR Subpart 6.2 – Full and Open Competition After Exclusion of
Sources
 Agency head must make determination.
 Decision must be supported by a written determination and
findings (“D&F”).
 Signed by the head of the agency or designee.
 May not be made on a class basis.
 When reduced cost is the justification, the findings shall
include a description of the estimated reduction in overall
costs and how the estimate was derived.

 Alternative sources – statutory requirements relating to small business concerns:
 Small Business Concerns.
 Small Business Innovation Research Program (“SBIR”).
 8(a) Small Business Program.
 HUBZone Small Business Concerns.
 Service-Disabled Veteran-Owned Small Business Concerns.
 Economically Disadvantaged Women-Owned Small Business Concerns.
 Women-Owned Small Business Concerns.
 Local Firms During Major Disaster or Emergency.
 No separate justification or determination and findings is required.

 Alternative sources – set-asides: GAO Jurisdictional Limits
 Colonial Federal Healthcare, LLC, B-421977, 2023 CPD ¶ 257, 2023 WL
7548221 (Nov. 14, 2023).
 The Small Business Act, 15 U.S.C. § 637(b)(6), gives the Small Business
Administration, not GAO, conclusive authority to determine matters of
small business size status for federal procurements.
 The SBA is the designated authority for determining whether a firm is an
eligible SDVOSB concern, and there are established procedures for
interested parties to challenge a firm’s status as a qualified SDVOSB
concern. GAO will neither make nor review SVDOSB status
determinations.

FAR Subpart 6.3 – Other than Full and Open Competition
 Circumstances permitting other than full and open competition:
 Only One Responsible Source
 Unusual & Compelling Urgency
 Industrial Mobilization; Engineering, Developmental, or Research
Capability; or Expert Services
 International Agreement
 Authorized or Required by Statute
 National Security
 Public Interest

 Before an agency can issue a sole-source award, the contracting officer must
justify the award in writing.
 Justifications are closely scrutinized by protestors, the GAO, and the Court.
 The justification must strictly comply with the specific requirements in the
FAR—the requirements are not merely “check the box” in nature.
 The justification must include:
 Description of supplies or services required to meet agency needs;
 Demonstration that proposed contractor’s unique qualifications or
nature of acquisition requires use of authority cited;
 Description of efforts to ensure offers are solicited from as many
potential sources as is practicable;
 Description of market research.

 Contracting without providing for full and open competition shall not be
justified on the basis of—
 A lack of advance planning by the requiring agency; or
 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.

FAR Subpart 6.3 – Other than Full and Open Competition, Cont.
 Innovation Dev. Enters. of Am., Inc. v. United States, 108 Fed. Cl. 711
(2013).
 An agency conducting a sole-source procurement must support that
action by written justifications and approvals.
 Sole-source procurements are generally subject to a variety of
restrictions designed to foster competition, such as requirements that
agencies conduct market research and give notice to potentially
responsible contractors.
 The agency’s decision to award a sole-source contract involved a
lack of advance planning, irrational reasoning, and numerous
violations of procurement law and regulations.

 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 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.
 Unsolicited Proposals.
 For DoD, NASA, and the Coast Guard, certain follow-on supply
contracts.
 Limitation on brand-name procurements
 Requirement for J&A and publication

 AGMA Sec. Serv., Inc. v. United States, 152 Fed. Cl. 706 (2021).
 An exception to “full and open competition” may be appropriate when
there is a reasonable basis to conclude that the agency’s minimum
needs can be satisfied by unique supplies or services from only one
source or supplier with unique capabilities.
 However, the procuring agency still must request offers from as many
sources as is practicable under the circumstances.

 Unusual and Compelling Urgency
 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.
 Delay in award of a contract would result in serious injury, financial or
other, to the Government.
 Requirement for J&A—may be after contract award as necessary to avoid
unreasonable delay.

 The total period of performance of a contract awarded or modified using this
authority—
 May not exceed the time necessary—
 To meet the unusual and compelling requirements of the work to be
performed under the contract; and
 For the agency to enter into another contract for the required goods
and services through the use of competitive procedures;
 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.

 SSI Tech., Inc. v. United States, 148 Fed. Cl. 147 (2020).
 An agency is permitted to use procedures other than competitive
procedures when the agency’s need for the property or services is of
such an unusual and compelling urgency that the United States
would be seriously injured unless the agency is permitted to limit the
number of sources from which it solicits bids or proposals.
 The total period of performance of a contract awarded under this
authority may not exceed one year, including all options, unless the
head of the agency determines that exception circumstances apply.

 Industrial Mobilization
 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;
 Onshoring
 Maintenance of critical industrial capabilities
 (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.

 Industrial Mobilization
 Coulson Aviation (USA) Inc.; Tanker Air Carrier, LLC; Minden Air Corp., B-
409356.2, 2014 CPD ¶ 106, 2014 WL 1308781 (Mar. 31, 2014).
 Where a federal agency makes a sole-source award for purposes of
maintaining a particular source for an item or service, concern for
maximizing competition is secondary to the agency’s industrial
mobilization needs.
 Decisions as to which suppliers should be included in a mobilization
base, and which restrictions are required to meet the needs of industrial
mobilization, involve complex judgments that are generally left to the
discretion of federal agencies. The GAO will question those decisions
only if the evidence shows that the agency has abused its discretion.

 International Agreement
 E.g., FMS customers may request that a defense article or defense
service be obtained from a particular contractor—in such cases, FAR
6.302-4 provides authority to contract without full and open competition.
 Authorized or Required by Statute
 E.g., 38 U.S.C. § 8127 – small business concerns owned and controlled
by veterans.
 National Security
 Disclosure of the agency’s needs would compromise national security
unless the agency is permitted to limit the number of sources from which
it solicits bids or proposals.

 Public Interest
 Only used when none of the other authorities apply.
 Limitations:
 A written determination to use this authority shall be made 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.
 The Congress shall be notified in writing of such determination not less than
30 days before award of the contract.
 If required by the head of the agency, the contracting officer shall prepare a
justification to support the determination above.

FAR Subpart 6.4 – Sealed Bidding and Competitive Proposals
 CO shall solicit sealed bids if:
 Time permits;
 Award will be made on basis of price and other price-related factors;
 It is not necessary to conduct discussions with responding offerors
about bids; and
 Reasonable expectation of receiving more than one sealed bid
 CO may request competitive proposals if sealed bids are not appropriate

FAR Subpart 6.5 – Advocates for Competition
 Advocates for competition are designated by the head of each executive
agency and are responsible for:
 Promoting full and open competition and challenging barriers to the
acquisition of full and open competition
 Reviewing the contracting operations and identifying opportunities to
achieve full and open competition
 Preparing and submitting an annual report to the agency describing
the advocate’s activities

2024 Webinar Series
THE FAR
THANK YOU FOR ATTENDING!
FAR PART #6:
SPEAKER: Stephen Ruscus
EMAIL: sruscus@bakerlaw.com

2024 Webinar Series
THE FAR
THANK YOU FOR ATTENDING!
FAR PART #6:
SPEAKER: Kaitlyn Toth
EMAIL: ketoth@bakerlaw.com

2024 Webinar Series
THE FAR
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2024: The FAR, Federal Acquisition Regulations - Part 6

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2024: The FAR, Federal Acquisition Regulations - Part 6