2024: The FAR, Federal Acquisition Regulations - Part 6

Jennifer Schaus and Associates hosts a complimentary webinar series on The FAR in 2024. Join the webinars on Wednesdays and Fridays at noon, eastern.
Recordings are on YouTube and the company website.
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1. 2024 Webinar Series The FAR: Federal Acquisition Regulations Understand the rules of the federal contracting game - and play to win ! J Schaus & Associates, WASHINGTON DC – [email protected]

2. 2024 Webinar Series THE FAR ABOUT THE SERIES : We’ll cover each PART of The FAR Typically held Wednesdays and Fridays , 12pm (eastern) Complimentary & Recorded Video Posted on YouTube https://www.youtube.com/@jenniferschaus/videos PPT Posted on SlideShare.net Sponsor/Advertising Options Available [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

3. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – [email protected]

4. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – [email protected]

5. 2024 Webinar Series THE FAR ABOUT US: Services for FEDERAL GOVERNMENT CONTRACTORS: Washington DC based; Professional services for established gov cons; Market Analysis to contract vehicles: GSA Schedules, FedLink , DHS PACTS III & NASA SEWP IV ; Contract Administration, Compliance, Pricing, etc. J Schaus & Associates, WASHINGTON DC – [email protected]

6. 2024 Webinar Series THE FAR ABOUT US: Services for THOSE SELLING TO FED CONTRACTORS: Newsletter Advertising; Webinar Advertising; Social Media (LinkedIn) Advertising; Event Sponsorship; Ask for our MEDIA KIT! J Schaus & Associates, WASHINGTON DC – [email protected]

7. Thursday, February 15 th 2024 10:00AM – 12:00PM EST Marketing 101 For Federal Contractors: Attract The Primes, Attract The Government VIRTUAL CLASS REGISTER: https://virginiaptac.ecenterdirect.com/events/3875

8. REGISTER: https://events.teams.microsoft.com/event/98ad5449-b677-4bd9-8256-53414b75c4fc@e9a70f06-57a6-4c69-b252-8df53ffb7ae1 REGISTER

9. Get Help With DHS PACTS III Contact Us: [email protected]

10. Get Help With NASA SEWP IV Contact Us: [email protected]

11. Our Sponsored Content Webinars Federal Forecasting App – Tuesday MARCH 12 Building Relationships in Federal Contracting https://attendee.gotowebinar.com/register/8814714788105852255 Agile ATS – Thursday MARCH 14 Recruiting Strategies, Systems & Tactics For GovCons https://attendee.gotowebinar.com/register/6242153347226568539 MyGovWatch – Tuesday MARCH 26 RFP Cliches Debunked: What Government Buyers Really Think! https://attendee.gotowebinar.com/register/8990966502126615896

12. Our Sponsored Content Webinars Palmetier Law – Part 1 of 2 - Tuesday JUNE 20 SBIR / STTR Unleashing Small Business Innovations: A Path To Growth & Prosperity https://attendee.gotowebinar.com/register/819675359822707801 Palmetier Law – Part 2 of 2 Thursday JUNE 27 SBIR / STTR Unleashing Small Business Innovations: A Path To Growth & Prosperity https://attendee.gotowebinar.com/register/4351522212519190620

13. 2024 Webinar Series - THE FAR THANK YOU TO OUR WEBINAR SPONSORS J Schaus & Associates, WASHINGTON DC – [email protected]

14. The FAR – Federal Acquisition Regulations - WEBINAR SERIES 2024 JSchaus & Associates – Washington DC – [email protected]

15. Full training calendar: virginiaptac.org & useful links Register for free counseling: https://virginiaptac.org/services/counseling/ Your “one stop” shop for Government Contracting assistance Reach us at [email protected] or 703-277-7750 This APEX Accelerator is funded in part through a cooperative agreement with the Department of Defense. Next Steps?

16. Full training calendar: virginiaptac.org & useful links Register for free counseling: https://virginiaptac.org/services/counseling/ Your “one stop” shop for Government Contracting assistance Reach us at [email protected] or 703-277-7750 This APEX Accelerator is funded in part through a cooperative agreement with the Department of Defense. Next Steps?

17. 2024 Webinar Series THE FAR THE FAR – PART 6 J Schaus & Associates, WASHINGTON DC – [email protected]

18. 2024 Webinar Series THE FAR FAR PART #6: Competition Requirements SPEAKER: Stephen Ruscus FIRM: Baker Hostetler EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

19. 2024 Webinar Series THE FAR FAR PART #6: Competition Requirements SPEAKER: Kaitlyn Toth FIRM: Baker Hostetler EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

20. 2024 Webinar Series - THE FAR Agenda Competition in Contracting Act FAR 6.001 – Applicability FAR 6.1 – Full and Open Competition FAR 6.2 – Full and Open Competition After Exclusion of Sources FAR 6.3 – Other than Full and Open Competition FAR 6.4 – Sealed Bidding and Competitive Proposals FAR 6.5 – Advocates for Competition J Schaus & Associates, WASHINGTON DC – [email protected]

21. 2024 Webinar Series - THE FAR Competition in Contracting Act (“CICA”) – 10 U.S.C. § 3201 In conducting a procurement for property or services, the head of an agency shall obtain full and open competition through the use of competitive procedures in accordance with the FAR. The FAR shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government’s requirements. J Schaus & Associates, WASHINGTON DC – [email protected]

22. 2024 Webinar Series - THE FAR Competition in Contracting Act (“CICA”) – 10 U.S.C. § 3201 In passing CICA, Congress sought to increase competition and procurement savings by obtaining lower, more competitive pricing. ATA Def. Indus., Inc. v. United States , 38 Fed. Cl. 489, 500 (1997). The premise that underlies the strong preference for “full and open competition” is the economic premise that has long been recognized as the basis for a free market economic system— that full and open competition brings consumers the widest variety and the lowest possible prices . Congress expresses a willingness to yield the benefits of full and open competition only when the alternative is serious injury to the United States. J Schaus & Associates, WASHINGTON DC – [email protected]

23. 2024 Webinar Series - THE FAR FAR 6.001 – Applicability Part 6 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 products or services under subpart 13.5); Micro-purchases – generally, $10,000 Acquisitions below SAT – generally, $250,000 J Schaus & Associates, WASHINGTON DC – [email protected]

24. 2024 Webinar Series - THE FAR FAR 6.001 – Applicability, cont’d Part 6 applies to all acquisitions except— (b) Contracts awarded using contracting procedures (other than those addressed in this part) that are expressly authorized by statute; (c) Contract modifications, that are within the scope of the contract, including the exercise of priced options that were evaluated as part of the original competition (see 17.207(f)); Out of scope modification issues J Schaus & Associates, WASHINGTON DC – [email protected]

25. 2024 Webinar Series - THE FAR FAR 6.001 – Applicability, cont’d Part 6 applies to all acquisitions except— (d) Orders placed under requirements contracts or definite-quantity contracts; (e) Orders placed under indefinite-quantity contracts that were entered into pursuant to this part when— (1) The contract was awarded under subpart 6.1 or 6.2 and all responsible sources were realistically permitted to compete for the requirements contained in the order; or (2)The contract was awarded under subpart 6.3 and the required justification and approval covers the requirements contained in the order; or (f) Orders placed against task order and delivery order contracts entered into pursuant to subpart 16.5. J Schaus & Associates, WASHINGTON DC – [email protected]

26. 2024 Webinar Series - THE FAR FAR Subpart 6.1 – Full and Open Competition Competitive procedures available for use in fulfilling the requirement for full and open competition are as follows: Sealed bids. Competitive proposals. If seal ed bids are not appropriate, contracting officers shall request competitive proposals or use other specified competitive procedures. Competition of competitive procedures. If sealed bids are not appropriate, contracting officers may use any combination of competitive procedures (e.g., two-step sealed bidding). J Schaus & Associates, WASHINGTON DC – [email protected]

27. 2024 Webinar Series - THE FAR FAR Subpart 6.1 – Full and Open Competition, cont’d Other competitive procedures: Selection of sources for architect -engineer contracts. Competitive se lection of basic and applied research and that part of development not related to the development of a specific system or hardware procurement is a competitive procedure if award results from— (i) A broad agency announcement that is general in nature identifying areas of research interest, including criteria for selecting proposals, and soliciting the participation of all offerors capable of satisfying the Government’s needs; and (ii) A peer or scientific review. Use of multiple award schedules issued under the procedures established by GSA for the MAS schedule program. J Schaus & Associates, WASHINGTON DC – [email protected]

28. 2024 Webinar Series - THE FAR FAR Subpart 6.1 – Full and Open Competition Unduly Restrictive Terms American Safety Council, Inc. v. United States , 122 Fed. Cl. 426 (2015). Agencies are allowed to include restrictive requirements only in a solicitation only to the extent they are necessary to satisfy the agency’s legitimate needs. If a Court finds a solicitation’s terms are unduly restrictive and serve no legitimate agency need, the Court will find the agency’s decision to include those terms in the solicitation to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. J Schaus & Associates, WASHINGTON DC – [email protected]

29. 2024 Webinar Series - THE FAR FAR Subpart 6.1 – Full and Open Competition Favoring the Incumbent Samsara Inc. v. United States , No. 23-361, 2024 WL 228081 (Fed. Cl. Jan. 4, 2024). A federal procuring agency may not unduly tip the scales in favor of an incumbent contractor. However, an agency is not required to ignore the benefits or advantages derived from an offeror’s incumbency, and it likewise need not attempt to level the playing field for all other offerors. J Schaus & Associates, WASHINGTON DC – [email protected]

30. 2024 Webinar Series - THE FAR FAR Subpart 6.1 – Full and Open Competition Acquisition Planning FirstLine Transp. Sec., Inc. v. United States , 107 Fed. Cl. 189 (2012). Agencies must perform acquisition planning and conduct market research for all acquisitions to promote and provide for full and open competition. Agencies must use the results of market research to determine if sources capable of satisfying the agency’s requirements exist. J Schaus & Associates, WASHINGTON DC – [email protected]

31. 2024 Webinar Series - THE FAR FAR Subpart 6.2 – Full and Open Competition After Exclusion of Sources Establishing or maintaining alternative sources: Agencies may exclude a particular source to establish or maintain an alternative source or sources if the agency head determines that to do so would— (1) Increase or maintain competition and likely result in reduced overall costs; (2) Be the interest of national defense in having a source available for furnishing the supplies or services in case of national emergency or industrial mobilization; (3) Be in the interest of the national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; J Schaus & Associates, WASHINGTON DC – [email protected]

32. 2024 Webinar Series - THE FAR FAR Subpart 6.2 – Full and Open Competition After Exclusion of Sources Establishing or maintaining alternative sources: Agencies may exclude a particular source to establish or maintain an alternative source or sources if the agency head determines that to do so would— (4) Ensure the continuous availability of a reliable source of supplies or services; (5) Satisfy projected needs based on a history of high demand; or (6) Satisfy a critical need for medical, safety, or emergency supplies. J Schaus & Associates, WASHINGTON DC – [email protected]

33. 2024 Webinar Series - THE FAR FAR Subpart 6.2 – Full and Open Competition After Exclusion of Sources Establishing or maintaining alternative sources: Agency head must make determination. Decision must be supported by a written determination and findings (“D&F”). Signed by the head of the agency or designee. May not be made on a class basis. When reduced cost is the justification, the findings shall include a description of the estimated reduction in overall costs and how the estimate was derived. J Schaus & Associates, WASHINGTON DC – [email protected]

34. 2024 Webinar Series - THE FAR FAR Subpart 6.2 – Full and Open Competition After Exclusion of Sources Alternative sources – statutory requirements relating to small business concerns: Small Business Concerns. Small Business Innovation Research Program (“SBIR”). 8(a) Small Business Program. HUBZone Small Business Concerns. Service-Disabled Veteran-Owned Small Business Concerns. Economically Disadvantaged Women-Owned Small Business Concerns. Women-Owned Small Business Concerns. Local Firms During Major Disaster or Emergency. No separate justification or determination and findings is required. J Schaus & Associates, WASHINGTON DC – [email protected]

35. 2024 Webinar Series - THE FAR FAR Subpart 6.2 – Full and Open Competition After Exclusion of Sources Alternative sources – set-asides: GAO Jurisdictional Limits Colonial Federal Healthcare, LLC , B-421977, 2023 CPD ¶ 257, 2023 WL 7548221 (Nov. 14, 2023). The Small Business Act, 15 U.S.C. § 637(b)(6), gives the Small Business Administration, not GAO, conclusive authority to determine matters of small business size status for federal procurements. The SBA is the designated authority for determining whether a firm is an eligible SDVOSB concern, and there are established procedures for interested parties to challenge a firm’s status as a qualified SDVOSB concern. GAO will neither make nor review SVDOSB status determinations. J Schaus & Associates, WASHINGTON DC – [email protected]

36. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Circumstances permitting other than full and open competition: Only One Responsible Source Unusual & Compelling Urgency Industrial Mobilization; Engineering, Developmental, or Research Capability; or Expert Services International Agreement Authorized or Required by Statute National Security Public Interest J Schaus & Associates, WASHINGTON DC – [email protected]

37. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Before an agency can issue a sole-source award, the contracting officer must justify the award in writing. Justifications are closely scrutinized by protestors, the GAO, and the Court. The justification must strictly comply with the specific requirements in the FAR—the requirements are not merely “check the box” in nature. The justification must include: Description of supplies or services required to meet agency needs; Demonstration that proposed contractor’s unique qualifications or nature of acquisition requires use of authority cited; Description of efforts to ensure offers are solicited from as many potential sources as is practicable; Description of market research. J Schaus & Associates, WASHINGTON DC – [email protected]

38. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Contracting without providing for full and open competition shall not be justified on the basis of— A lack of advance planning by the requiring agency; or Concerns related to the amount of funds available (e.g., funds will expire) to the agency or activity for the acquisition of supplies or services. J Schaus & Associates, WASHINGTON DC – [email protected]

39. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition, Cont. Innovation Dev. En ters. of Am., Inc. v. United States , 108 Fed. Cl. 711 (2013). An agency conducting a sole-source procurement must support that action by written justifications and approvals. Sole-source procurements are generally subject to a variety of restrictions designed to foster competition, such as requirements that agencies conduct market research and give notice to potentially responsible contractors. The agency’s decision to award a sole-source contract involved a lack of advance planning, irrational reasoning, and numerous violations of procurement law and regulations. J Schaus & Associates, WASHINGTON DC – [email protected]

40. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Only One Responsible Source When the supplies or services required by the agency are available from only one responsible source, or, for DoD, NASA, and the Coast Guard, from only one or limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be provided for. Unsolicited Proposals. For DoD, NASA, and the Coast Guard, certain follow-on supply contracts. Limitation on brand-name procurements Requirement for J&A and publication J Schaus & Associates, WASHINGTON DC – [email protected]

41. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Only One Responsible Source AGMA Sec. Serv., Inc. v. United States , 152 Fed. Cl. 706 (2021). An exception to “full and open competition” may be appropriate when there is a reasonable basis to conclude that the agency’s minimum needs can be satisfied by unique supplies or services from only one source or supplier with unique capabilities. However, the procuring agency still must request offers from as many sources as is practicable under the circumstances. J Schaus & Associates, WASHINGTON DC – [email protected]

42. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Unusual and Compelling Urgency 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. Delay in award of a contract would result in serious injury, financial or other, to the Government. Requirement for J&A—may be after contract award as necessary to avoid unreasonable delay. J Schaus & Associates, WASHINGTON DC – [email protected]

43. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Unusual and Compelling Urgency The total period of performance of a contract awarded or modified using this authority— May not exceed the time necessary— To meet the unusual and compelling requirements of the work to be performed under the contract; and For the agency to enter into another contract for the required goods and services through the use of competitive procedures; May not exceed one year, including all options, unless the head of the agency determines that exceptional circumstances apply. This determination must be documented in the contract file. J Schaus & Associates, WASHINGTON DC – [email protected]

44. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Unusual and Compelling Urgency SSI Tech., Inc. v. United States , 148 Fed. Cl. 147 (2020). An agency is permitted to use procedures other than competitive procedures when the agency’s need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. The total period of performance of a contract awarded under this authority may not exceed one year, including all options, unless the head of the agency determines that exception circumstances apply. J Schaus & Associates, WASHINGTON DC – [email protected]

45. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Industrial Mobilization Full and open competition need not be provided for when it is necessary to award the contract to a particular source or sources in order— (i) To maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization; Onshoring Maintenance of critical industrial capabilities (ii) To establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; or (iii) To acquire the services of an expert or neutral person for any current or anticipated litigation or dispute. J Schaus & Associates, WASHINGTON DC – [email protected]

46. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Industrial Mobilization Coulson Aviation (USA) Inc.; Tanker Air Carrier, LLC; Minden Air Corp., B-409356.2, 2014 CPD ¶ 106, 2014 WL 1308781 (Mar. 31, 2014). Where a federal agency makes a sole-source award for purposes of maintaining a particular source for an item or service, concern for maximizing competition is secondary to the agency’s industrial mobilization needs. Decisions as to which suppliers should be included in a mobilization base, and which restrictions are required to meet the needs of industrial mobilization, involve complex judgments that are generally left to the discretion of federal agencies. The GAO will question those decisions only if the evidence shows that the agency has abused its discretion. J Schaus & Associates, WASHINGTON DC – [email protected]

47. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition International Agreement E.g., FMS customers may request that a defense article or defense service be obtained from a particular contractor—in such cases, FAR 6.302-4 provides authority to contract without full and open competition. Authorized or Required by Statute E.g., 38 U.S.C. § 8127 – small business concerns owned and controlled by veterans. National Security Disclosure of the agency’s needs would compromise national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. J Schaus & Associates, WASHINGTON DC – [email protected]

48. 2024 Webinar Series - THE FAR FAR Subpart 6.3 – Other than Full and Open Competition Public Interest Only used when none of the other authorities apply. Limitations: A written determination to use this authority shall be made by… (i) the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Homeland Security for the Coast Guard, or the Administrator of the National Aeronautics and Space Administration; or (ii) the head of any other executive agency. This authority may not be delegated. The Congress shall be notified in writing of such determination not less than 30 days before award of the contract. If required by the head of the agency, the contracting officer shall prepare a justification to support the determination above. J Schaus & Associates, WASHINGTON DC – [email protected]

49. 2024 Webinar Series - THE FAR FAR Subpart 6.4 – Sealed Bidding and Competitive Proposals CO shall solicit sealed bids if: Time permits; Award will be made on basis of price and other price-related factors; It is not necessary to conduct discussions with responding offerors about bids; and Reasonable expectation of receiving more than one sealed bid CO may request competitive proposals if sealed bids are not appropriate J Schaus & Associates, WASHINGTON DC – [email protected]

50. 2024 Webinar Series - THE FAR FAR Subpart 6.5 – Advocates for Competition Advocates for competition are designated by the head of each executive agency and are responsible for: Promoting full and open competition and challenging barriers to the acquisition of full and open competition Reviewing the contracting operations and identifying opportunities to achieve full and open competition Preparing and submitting an annual report to the agency describing the advocate’s activities J Schaus & Associates, WASHINGTON DC – [email protected]

51. 2024 Webinar Series THE FAR THANK YOU FOR ATTENDING! FAR PART #6: Competition Requirements SPEAKER: Stephen Ruscus FIRM: Baker Hostetler EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

52. 2024 Webinar Series THE FAR THANK YOU FOR ATTENDING! FAR PART #6: Competition Requirements SPEAKER: Kaitlyn Toth FIRM: Baker Hostetler EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

53. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – [email protected] Please subscribe to our YouTube Channel for Gov Con Content Uploads including THESE WEBINARS! https://www.youtube.com/@jenniferschaus/videos

54. 2024 Webinar Series The FAR: Federal Acquisition Regulations THANK YOU FOR JOINING US! J Schaus & Associates, WASHINGTON DC – [email protected]