With government contracts, the Competition in Contract Act (CICA contracting ) provides that when conducting procurements for property and services, agencies are required to obtain full and open competition requirements through the use of competitive procedures, by statute 10 USC 2304 (a)(1)(A). However, there are still many problems with full and open competition compliance and small business set asides in federal government contracting.
What Can You Do?
When you think that the government may not be following the rules, there are few options. One would be to file a bid protest either at GAO or the U.S. Court of Federal Claims. However, one question you may want to ask is whether the agency has justification for other than full and open competition. Simply because full and open rules have not been met does not mean that the government does not have support of its actions. If you file a bid protest, it would likely be considered a pre-award protest.
If companies are contemplating filing a GAO protest that challenges the agency’s sole source justification decision, they should be well aware of the government’s latitude under CICA. Failure to understand the complex nuances increases the chances of losing the case.
Competition in Contracting Act CICA Competition Definition
The Competition in Contracting Act was established to promote competition for federal government contracts. Since the federal government uses taxpayer dollars to buy services and products, agencies are required to procure goods and services through full and open competition to the maximum extent possible.
What is the Competition in Contract Act? CICA Sole Source Exceptions Under 10 USC 2304
When filing a bid protest, contractors may wonder under what circumstances constitute justification for other than full and open competition authorized. Contractors must be aware that there are exceptions that allow the agency to go to a single source without an urgent and compelling circumstance.
One exception to the CICA contracting requirement for full and open competition is if the head of the agency determines that it is necessary for the public interest to use other than competitive procedures in any “particular procurement.” 10 USC 2304 (c)(7). See also information about FAR sole source justification and approval awards.
Without the exceptions, a federal government contract entered into without full and open competition is noncompetitive. There are seven CICA full and open competition exceptions, including
- Single source for goods or services;
- Unusual urgent and compelling circumstances;
- Maintenance of the industrial base;
- International agreements requirements;
- Statutory authorization or acquisition of brand-name or equal items for resale;
- National security; and
- Government contracts necessary in the public interest.
The Competition in Contract Act also allows federal government agencies to use “special simplified procedures” when acquiring goods or services where the expected procurement value is less than $150,000, or the purchase of commercial goods or services where the expected procurement value is less than $6.5 million ($12 million in emergencies). Get information about improper past performance evaluations in government contracting.
Under what circumstances is other than full and open competition authorized?
The authorizing contracting official must make a written justification and approval and a finding supporting the use of the public interest CICA exception that “set[s] forth enough facts and circumstances to clearly and convincingly justify the specific decision made.”
- Full and open competition and FAR sole source justification requirements are touchy subjects for small business set aside companies.
- It is critical to understand the legal analysis under CICA contracting when launching a government contract protest.
- Where an agency’s needs are of such an unusual and compelling urgency that the government would be seriously injured if the agency is not permitted to limit the number of sources from which it solicits bids or proposals, the agency may use noncompetitive procedures according to the authority set forth at 10 USC 2304 (c)(2).
FAR 206.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements.
(2)(i) Section 8059 of Pub. L. 101-511 and similar sections in subsequent defense appropriations acts, prohibit departments and agencies from entering into contracts for studies, analyses, or consulting services (see FAR Subpart 37.2) on the basis of an unsolicited proposal without providing for full and open competition, unless—
(1) The head of the contracting activity, or a designee no lower than chief of the contracting office, determines that—
(i) Following thorough technical evaluation, only one source is fully qualified to perform the proposed work;
(ii) The unsolicited proposal offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence; or
(iii) The contract benefits the national defense by taking advantage of a unique and significant industrial accomplishment or by ensuring financial support to a new product or idea;
(2) A civilian official of the DoD, whose appointment has been confirmed by the Senate, determines the award to be in the interest of national defense; or
(3) The contract is related to improvement of equipment that is in development or production.
(b) Application. This authority may be used for acquisitions of test articles and associated support services from a designated foreign source under the DoD Foreign Comparative Testing Program.
CICA Contracting & Sole Source Contract Requirements
- Under GAO bid protest regulations, when using other than full and open competition requirement and procedures under 10 USC 2304 (c)(2), federal procurement agencies are required to execute a written justification and approval letter with sufficient facts and rationale to support the use of the cited authority under CICA contracting rules. See 10 USC 2304 (f)(1)(A), (B); FAR 6.302-2(c)(1), (d)(3), 6.303, 6.304.
- Other than full and open procedures under Competition in Contracting Act rules may not properly be used where the agency created the urgent need through a lack of planning. Also, find out more about claims and adjustments under the Davis Bacon Act wages requirements.
- Competition in Contracting Act violations goes against congressional mandates.
Watson’s Bid protest lawyers can guide you through the complex CICA Contracting regulations.
When filing a bid protest, GAO will review the agency’s full and open competition justification to see if the document issued by the agency, on its face, provides a clear and convincing explanation that the restricted competition and furthers the public interest. See also information about bid protest procedures and process.
Find out how we can help you to appeal adverse decisions to the US Court of Appeals for the Federal Circuit.
Call our CICA lawyers for a free initial consultation at 1-866-601-5518.
Get Immediate Help: For help in a bid protest that challenges small business set aside decisions, CPARS Ratings, full and open competition requirements, or CICA Contracting and Competition in Contracting Act disputes under 10 USC 2304, please call Watson & Associates, LLC’s GAO bid protest lawyers at 1-866-601-5518.