When is competition not required in federal contracting

This website is not intended for users located within the European Economic Area. While aspiring to use full and open competition in purchasing goods and services to support its mission of delivery services to the American taxpayer, the current federal process is today, in practice, anti-competitive. President Joe Biden issued Executive Order , Promoting Competition in the American Economy, on July 9, calling for the federal government to revisit how competition is used and to promote competition across the American economy and around the world.

The Secretary of Defense is charged under EO with improving competition in the defense industrial base in government procurements. As the secretary approaches his tasker under EO he needs to take a broader look at competition and afford all responsible companies in the marketplace the opportunity to compete for government requirements. The current federal contracting process requires full and open competition and is derived from the Competition in Contracting Act CICA.

Today, however, the competitive processes in the federal contracting system actually serve to limit competition, to the point where the number of companies doing business with the federal government has shrunk for the last several years while the number of dollars awarded to companies has increased. Fewer companies do business with the federal government today even though the federal government has a stated goal of increasing the number of contractors with which it does business.

Critically, the lack of competition adversely impacts small businesses. The government does not normally, even when it has knowledge of other capable companies, reach out to those companies, and consider those companies in making its award decision.

Insight by Tanium: In this exclusive executive briefing, executives will discuss their approach to building a flexible and dynamic zero trust network. The tool should then publish the contract file, less any proprietary data there should not be any , immediately following award of the resulting contract.

Currently, no federal agency is doing this. Supply chain managers in the private sector have tools to do some of what I suggest, and those tools are currently available in the marketplace. The President is not going to succeed in improving competition, doing more business with American companies, and in particular diverse companies, unless the way in which competitions are conducted by the federal government are completely revised with a view toward increasing government outreach in the contracting process and improving transparency into government contracting transactions.

The new tools envisioned above will capture data as transactions are performed, ending the need for the reentry of data by either the government and industry and providing contemporaneous data for managing the contracting process. Changing how the federal government promotes competition in federal contracting is no small undertaking.

The Advisory Panel on Streamlining and Codifying Acquisition Regulations Section Panel provided recommendations on how to change competition, increase the companies with which the federal government does business and at the same time protecting the integrity of the contracting process. Competition is essential to obtaining quality products and services and to protecting the integrity of the contracting process.

The federal government needs to update its definition of competition and the processes by which it obtains competition.

Read more: Commentary. Requirements for justifications to support the use of these authorities are in 6. A Demonstrates a unique and innovative concept see definition at 2. B Offers a concept or services not otherwise available to the Government; and. C Does not resemble the substance of a pending competitive acquisition.

See 10 U. A Substantial duplication of cost to the Government that is not expected to be recovered through competition; or. This authority shall be used, if appropriate, in preference to the authority in 6. 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 :. 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;.

C The justification shall be posted with the solicitation see 5. This authority applies in those situations where—. These justifications may be made and approved after contract award when preparation and approval prior to award would unreasonably delay the acquisition. 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.

But see 6. The set-aside area specified by the contracting officer shall be a geographic area within the area identified in a Presidential declaration s of major disaster or emergency and any additional geographic areas identified by the Department of Homeland Security.

This subpart prescribes policies and procedures, and identifies the statutory authorities, for Contracting without providing for full and open competition. Other executive agencies are subject to 41 U. 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. Contracting officers shall use the U. Code citation applicable to their agency.

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. A Demonstrates a Unique and innovative concept see definition at 2. B Offers a concept or services not otherwise available to the Government; and.

C Does not resemble the substance of a pending competitive acquisition. See 10 U. A Substantial duplication of cost to the Government that is not expected to be recovered through competition; or.

This authority shall be used, if appropriate, in preference to the authority in 6. 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 :.

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;. C The justification shall be posted with the solicitation see 5.

This authority applies in those situations where-. These justifications may be made and approved after contract award when preparation and approval prior to award would unreasonably delay the acquisition. 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.

This determination must be documented in the contract file. 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 paragraph d 1 ii of this section.

A The United States or its outlying areas ; or. B The United States , its outlying areas , or Canada. 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.