1. Does utilizing the procedures in FAR & DFAR Part(s) 18 in a declared contingency environment exempt a Contracting Officer from CICA requirements?
2. Example: If the Contracting Officer is using the SF44 in a declared contingency environment for an action above the MPT, but below the SAT and manual contracting procedures are used, does the contract file have to include a J&A?
3. Under FAR 18.104 -- Unusual and Compelling Urgency, states, agencies may limit the number of sources and full and open competition need not be provided for contracting actions involving urgent requirements. (See 6.302-2.)
4. Then 6.302-2 refers to how the J&A should be posted 30 days after contract award of FBO. Yes, it also states, competition should be exercised to the maximum extent practicable too.
We haven’t answered this in a while here at AAP, so now is a good time for a reminder.
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Note: I will respond to your example 2 last.
1) In a word “NO”! Contracting officers are never “exempt” from Competition in Contracting Act (CICA) of 1984 requirements. The key is knowing what flexibilities may be available for use in a contingency environment or when supporting a contingency operation. In your case, you do have some flexibilities.
3) The citation at FAR 18.104 is nothing more than a reminder that there is guidance at FAR 6.302-2 because, when you think about it, often times in a contingency environment time is really of the essence and a purchase request may be urgent and compelling to save lives, property, or equipment. It is also meant for actions when you are not using simplified acquisition procedures; I’ll explain why in “2)” below.
4) Correct, many people assume that Urgent and Compelling means you can go “sole source”. That is not true; it only allows you to minimize the number of sources you solicit (e.g. 2, 3, 4,etc.) the actual number you do solicit from is scenario and case-by-case dependent. It is FAR 6.305(b) that requires you to post your J&A “within” 30 days. But this is only if a J&A is needed.
Now let’s dive into your example #2:
But first, a few CICA Basics for educational purposes: FAR 6.1, 6.2, and 6.3 (should only take about 5 to 10 minutes to read) together explain what the FAR determines competition to be and when we are authorized to use “other than full and open completion”
However; see FAR 6.001 which states that “This part 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 items under Subpart 13.5);” note: bold and italics added for emphasis.
Because you mentioned MPT (micro purchase threshold), SAT (simplified acquisition procedures threshold), and the SF44… we will turn our attention to SAP (simplified acquisition procedures) – at FAR 13 and DFARS 213. Our question then becomes “If I can’t use full and open competition: 1) what is my justification, 2) how do I get approval to do so, and 3) how does it need to be documented and posted?”
In your scenario, the SF44 is being used as a Purchase Order which is a simplified acquisition method (see FAR 13.302). This is authorized because of DFARS 213.306 and associated PGI.
FAR 13.106-1 discusses competition requirements when using SAP.
13.106-1(a)(1)(iii) mentions “urgency of the proposed purchase”.
13.106-1(b) gives the guidance on when it may be appropriate and authorized to solicit from a single source.
13.106-1(b)(1)(i) again provides guidance on soliciting from just one source if only one source is available because of urgency.
13.106-1(b)(2): Sends you to 13.501 when you are using the commercial contract or order format.
Remember; if it is a declared contingency the elevated threshold does actually change the MPT and SAT; whereas FAR 13.5 does not change the SAT of $150,000, it merely lets you use SAP if buying commercial goods or services using the commercial contract format (SF1449).
13.106-1(b)(3) provides guidance on the justification and documentation required when only using one source.
Don’t forget that soliciting a brand name item is considered “sole source” despite the fact a gazillion businesses may sell it. You must also check your Agency’s FAR Supplement to see if there is additional guidance and requirements for justification, approval and documentation.
Finally: 13.106-3(b) discusses documentation and retention of documentation, see 13.106-3(b)(3)(i) for limiting competition. Also, take a look at FAR 5.202(a)(12).
Bottom Line: Because you are using SAP, you do not need a formal J&A IAW 6.302-2, you do not need to post your documentation to the FBO. The only documentation you need in your file is enough to explain why you limited the amount of competition you solicited. This is important, most contingency environments are transient by nature… you’ll want your successors and auditors to know why you did what you did and that it was based on sound judgement and correct application of the FAR/DFARS and agency supplements if necessary.
Editorial comment: Because the overwhelming majority of contract actions accomplished supporting a contingency are below the SAT, the best way to become a good CCO is to be an expert at ALL simplified acquisition procedures. DAU has some great learning assets associated with Simplified Acquisition Procedures; I encourage you to look into it. They are CLC 005 and CON 237.