Public Disclosure Requirements for Buyers. BY William A. Cox. and Sellers:

Transcription

1 Public Disclosure Requirements for Buyers BY William A. Cox and Sellers: 44 Contract Management February 2010

2 Justifications for Other than Full and A review of the documentation requirements for justifications, as well as information for industry review of the posted justifications. Open Competition Contract Management February

3 Effective February 17, 2009, Federal Acquisition Regulation (FAR) mandates buying agencies to post justifications and approvals for other than full and open competition to the Federal Business Opportunities System () 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 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 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-buy 7 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 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 Fed- BizOpps 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. 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: 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 ); Nature and/or description of the action being approved; A description of the supplies or services required to meet the agency s needs (including the estimated value); An identification of the statutory authority permitting other than full and open competition (FAR and Subpart (a)(1)(ii)) or justification rationale (FAR (a) and (b)); 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 ; 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 applies (not applicable to FAR ; however, it is advisable to include an explanation about soliciting as many sources as is practicable and publication information in e-buy); 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)); 46 Contract Management February 2010

4 Public Disclosure Requirements for buyers and sellers: Justifications for other than full and open competition A description of the market research conducted and the results or a statement of the reason market research was not conducted; { When FAR is cited, data, estimated cost, or other rationale as to the extent and nature of the harm to the government; Contracting officer certification that the justification is accurate and complete to the best of the contracting officer s knowledge and belief; 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 is cited for follow-on acquisitions as described in FAR (a)(2)(ii), an estimate of the cost to the government that would be duplicated, and how the estimate was derived; and A listing of the sources, if any, that express, in writing, an interest in the acquisition; 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 ); 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 Approval by the appropriate authority (FAR 6.304). 10 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 Posting Site Posting Date FAR , Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements. FAR , Industrial Mobilization; Engineering, Developmental, or Research Capability; or Expert Services. FAR , International Agreement. FAR , Authorized or Required by Statute. FAR , National Security. FAR , Public Interest. Within 14 days after award. FAR , Unusual and Compelling Urgency. Within 30 days after award. FAR (f) and (g), Non-Brand Name. Posting Not Required N/A FAR (b), Non-Brand Name. Posting Not Required N/A FAR (a), Non-Brand Name. Posting Not Required N/A Brand Name and Items and Services Peculiar to One Manufacturer or Origin FAR (c), Brand Name Descriptions. FAR (b), Only One Source Reasonably Available. FAR (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). The solicitation posting date. FAR (a)(2), Item Peculiar to One Manufacturer and Brand Name Items. e-buy The solicitation posting date. Contract Management February

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6 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 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 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

7 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. Finally, sellers should request justifications through the FOIA for acquisitions posted prior to February 17, Conclusion The emphasis on transparency in government has reached into the CICA. Justifications for other than full and open competition that are posted to 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 WILLIAM A. COX, CPCM, is a member of the Lone Star Chapter of NCMA in Austin, Texas. He is a procurement analyst for the Department of Veterans Affairs. Send comments about this article to cm@ ncmahq.org. To discuss this article with your peers online, go to cm0210/cox and click on Join Discussion. Endnotes 1. The governmentwide point of entry, gov. 2. The Department of Defense, Coast Guard, and National Aeronautics and Space Administration are subject to 10 U.S.C All other agencies are subject to 41 U.S.C FAR The availability requirements were included in FAR 6.305(a) through the effective period of changes in Federal Acquisition Circular (FAC) , Amendment-1, dated January 14, U.S.C Public Law , 80 Stat FAC , dated September 28, See Rep. Henry A. Waxman, Democratic Truth Squad Introduces Clean Contract Act (September 13, 2006), available at FAR , FAR 13.5(a)(1)(ii), and FAR (g). Decisions in favor of the protestor include the comptroller general decisions Major Contracting Services, Inc., B , September 14, 2009; efedbudget Corporation, B , November 15, 2006; and HEROS Inc., B , June 9, 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 C, February 18, Contract Management February 2010