Most government solicitations start off with some form of market research, including, but not limited to, Sources Sought Notices (SSNs), or Requests for Information (RFI), where the government generally will state their requirements and see how industry responds. This allows the government to ‘define’ their requirement, but also determine availability from commercial providers and how the agency can set up competition requirements at the solicitation/Task Order level.
Except for certain limitations, which we will cover later in this blog post, Contracting Officers must promote and provide for full and open competition in solicitating offers and awarding government contracts. In other words, competition isn’t the alternative, it’s required in most cases.
If you are in the world of government contracting, you are probably familiar with the Federal Acquisition Regulation (FAR). The Federal Acquisition Regulation, also known as the ‘FAR’, establishes the rules the federal government and contractors have to follow to purchase and sell goods and services through contracts. The FAR also sets guidelines on competition and sets standards for federal government acquisition competition requirements. Let’s review how the government decides competition and what the acquisition process looks like from a Contracting Officer’s perspective.
Why Does the Federal Government Have Acquisition Competition Requirements?
The federal government seeks to drive competition as much as possible in contracting. There are many key benefits that the government and taxpayers benefit from when competition is at the forefront of contracting. As mentioned earlier, competition requirements are generally required, but there are specific reasons for this. Some benefits of competition in federal government contracting include:
Cost Savings
- Competition drives cost savings and increases the likelihood of efficiencies and innovations.
Fairness and Transparency
- Competition drives fairness and openness, which in result leads to public trust.
Prevents Waste, Fraud, and Abuse
- Contracts are expected to preform at a high level, or face replacement/contract cancellation.
Improved Quality Product/Service
- Healthy competition is the lifeblood of free markets and helps drive improved outcomes, product quality, and customer service.
What is the Federal Government Acquisition Process?
The federal government, including GSA Schedule buyers are large agencies and organizations, meaning they must abide to the competition requirements as prescribed in the FAR. The FAR can be an overwhelming book of rules to peruse, so we’ll break down some key competition requirements. These requirements include, but are not limited to:
FAR Part 6 – Competition Requirements
- According to Far Part 6, the scope is to prescribes policies and procedures to promote full and open competition in the acquisition process and to provide for full and open competition, full and open competition after exclusion of sources, other than full and open competition, and advocates for competition.
Defense FAR Supplement (DFARS) - Part 206
- DFARS Part 206 lays out the various approaches that may be used to competitively fulfill DoD requirements. For more information on DoD purchasing at large, we invite you to review the following Defense Pricing & Contracting - Contract Policy.
The Competition in Contracting Act (CICA) of 1984
- The Competition in Contracting Act, otherwise known as ‘CICA’, became law in 1984 and was introduced to promote cost savings through increased competition and competitive prices. This act requires agencies to maximize competition and works to ensure that small and socially and economically disadvantaged businesses are not precluded.
Depending on the agency, size, and scope of the subject requirement you are responding to, you will more than likely be held to the above competition requirements highlighted in FAR Part 6, DFARS Part 206, and/or CICA.
It’s important to understand this process as a contractor because if you are found to be non-compliant with any of the government requirements, your bid, or even current contract, could be terminated by the federal government due to non-compliance.
When Are Competition Requirements Not Required in the Acquisition Process?
While competition is often at the forefront of the federal government’s acquisition requirements, it cannot always be achieved. The FAR covers circumstances permitting other than full and open competition under FAR Subpart 6.3, which prescribes policies and procedures, and identifies the statutory authorities, for contracting without providing for full and open competition.
Per FAR Part 6.302, circumstances permitting other than full and open competition, following statutory authorities (including applications and limitations) permit contracting without providing for full and open competition include:
FAR Part: 6.302-1 - Only one responsible source and no other supplies or services will satisfy agency requirements
- This allows agencies to procure when they determine from market research that there are only one, or a limited number of commercially available vendors, to satisfy agency supply or services requirements.
FAR Part: 6.302-2 - Unusual and compelling urgency
- This is used 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.
FAR Part: 6.302-3 - Industrial mobilization; engineering, developmental, or research capability; or expert services
- This is to justify that full and open competition is not requirement when acquiring a particular source(s). The use-case for this FAR clause at large is for in case of national emergency or to achieve industrial mobilization. In these cases, the government is looking to maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services.
FAR Part: 6.302-4 – International Agreements
- This is used to justify that full and open competition is not requirement when/if precluded by the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or when/if there are written directions of a foreign government reimbursing the agency.
FAR Part: 6.302-5 - Authorized or required by statute
- This allows for the application of several statues, included, but not limited to: 8(a) program, HUBZone Act, WOSB Program, Veterans Benefits Act, or UICOR. Note that a statute is needed to expressly authorize or require that the acquisition be made through another agency or from a specified source. This also applies if the agency’s need is for a brand name commercial product for authorized resale direct or with a GSA reseller.
FAR Part: 6.302-6 - National Security
- This is used to justify that full and open competition may not be needed when/if 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.
FAR Part: 6:302-7 – Public Interest
- This is used to justify that full and open competition may not be needed when/if the agency head determines that it is not in the public interest in the particular acquisition concerned.
At surface value, it may seem that the FAR provides a lot of avenues for non-competitive direct awards. However, FAR Part 6.303, Justifications, states that a Contracting Officer (CO) cannot begin negotiations for a sole source contract, start negotiations for a contract resulting from an unsolicited proposal, or award any other contract without providing for full and open competition.
Far Part 6,303-1 highlights the requirements for a Justification, which are:
- Justification is provided in writing, as required per FAR Part: 6.302.
- CO certifies that accuracy and completeness of the subject justification.
- CO obtains the approval required per FAR Part: 6.304.
Preparing Solicitation Responses for Government Agencies
The majority of the government opportunities you’ll be responding to will be competitive opportunities, meaning you won’t be the only contractor in the mix and you may be competing against the incumbent contractor.
It’s important for contractors to understand that the CO will rely on technical requirements to certify technical responses as accurate and complete in response to their requirements stated in a solicitation. These are generally the same people assisting with drafting the requirements for the subject solicitation and speaks volumes on the importance of following the provided instructions.
If you do not follow the instructions, your bid, even on a sole source basis, could be thrown out for non-compliance. So, it’s important you read through all the requirements in both the contract terms as well as in your response. Answering a solicitation with the wrong font or too many pages can also get your response disqualified.
Do you Still Have Questions on Federal Government Acquisition Requirements?
Whether it be the FAR, DFARS, or any other government contracting or government acquisition question, the Winvale team is here to support. Our dedicated team is here to help and has the experience and expertise that can support your government contracting needs. For future government contracting updates, make sure to subscribe to our weekly blog recap and our monthly government contracting newsletter.
