Is the Foreign Military Sales (FMS) Letter of Offer & Acceptance (LOA) considered an International Agreement for purposes of using the Other Than Full & Open Competition citation at Federal Acquisition Regulations (FAR) 6.302-4, Intentional Agreement?
The Defense Security Cooperation Agency's Security Assistance Management Manual (SAMM), Chapter 6, paragraph C6.3.4 provides policy guidance regarding the use of the Competition and Contracting Act 'International Agreement exception' for DoD FAR/DFARS contracts awarded to implement FMS Letters of Offer and Acceptance (LOAs).
"C6.3.4. Requests for Other than Full and Open Competition. The competitive procurement process is used to the maximum extent possible when procuring articles or services. The Competition in Contracting Act (CICA) (10 U.S.C. section 2304), however, provides certain limited circumstances in which the contracting activity can consider FMS purchaser requests for procurement using other than full and open competition (commonly referred to as “sole source”) when the contract to be awarded is expected to exceed the simplified acquisition threshold (Federal Acquisition Regulation (FAR) 2.101 and FAR Part 6). Contracts expected not to exceed that threshold are contracted for under FAR Part 13. One of CICA’s exceptions to full and open competition at 10 U.S.C. section 2304(c)(4) is implemented as the “International Agreement” exception in FAR 6.302-4 and the DoD FAR Supplement (DFARS) Subpart 206.302-4. An authorized official of the purchasing government may submit a written request [normally included in the FMS Letter of Request (LOR)], generally through the Security Cooperation Organization (SCO), that the Implementing Agency with procurement responsibility for the required item and/or service procure a defense article(s) and/or service(s) from a specific organization or entity, or that competition be limited to specific organizations or entities. The Defense Attaché or comparable purchaser’s representative in the United States may also submit these requests to the Implementing Agency. FMS customers need not provide a rationale for the request."
The last subparagraph of para C6.3.4, states:
"C18.104.22.168. LOA Note for Other than Full and Open Competition. The applicable LOA document must identify the designated source. See Appendix 6 for the LOA note wording."
Based on the information provided in Question Background, it appears that these all of these SAMM policy requirements have been met and that use of the CICA 'International Agreement exeception would be justified. However, DAU recommends you confirm this assessment with the Requiring Activity's Foreign Military Sales (FMS) organization and/or Navy International Programs Office prior to contracting process implementation.