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CONSIDERING COMPETITION REQUIREMENTS
While conducting market research, contracting and program officials need to be aggressive in collecting competitive data by:
Finding out the competitive history of a procurement
Identifying and using required sources of supply
Obtaining competitive sources for the new procurement.
The COR may recommend to the CO the data-gathering strategy or strategies that would be optimal in terms of the mission and the market and that would yield the maximum number of responsible offers. Any selected method or strategy should:
Consider industry-wide performance capabilities
Not rule out the availability of commercial items or nondevelopmental items.
What are required supply sources?
Although the government purchases many of the items and services it needs on the open market, there are statutory and regulatory sources that have priority over other sources and must be used prior to soliciting commercial sources.
The following sources are listed in the required order of priority for supply requirements:
1. Agency inventories
2. Excess from other agencies
3. Federal Prison Industries, Inc. (UNICOR)
4. Products available from the Committee for Purchase From People Who Are Blind or Severely Disabled
5. Stock programs:
General Services Administration
Defense Logistics Agency
Department of Veterans Affairs
Military inventory control points
6. Mandatory Federal Supply Schedules
7. Optional use Federal Supply Schedules
8. Commercial sources (including educational and nonprofit institutions).
For service requirements, sources must be consulted in this order:
1. Services on the Procurement List maintained by the Committee for Purchase from People Who Are Blind or Severely Disabled
2. Mandatory Federal Supply Schedules
3. Optional use Federal Supply Schedules
4. Federal Prison Industries, Inc. (UNICOR) or commercial sources (including educational and nonprofit institutions).
What are the three types of competition?
The Competition in Contracting Act (CICA) established three types of competition:
Full and open competition
Full and open competition after exclusion of sources
Other than full and open competition.
In full and open competition, all responsible sources are permitted to compete. The term responsible sources, in this context, means that the potential contractor meets the standards of responsibility set forth in FAR 9.104. In everyday terms, it simply means that the prospective contractor has the capacity and capability, in all respects, to perform the contract.
The method of full and open competition after exclusion of sources has two different applications. The head of an agency can elect full and open competition after excluding certain sources in order to obtain and maintain alternate sources. Also, sources may be excluded in order to use small business set-asides; when sources are excluded for this reason, the decision to do so may be made by the CO and does not have to be authorized by the head of the agency.
The method of other than full and open competition requires one of the following exceptions to support its use, but by statute a CO cannot use other than full and open competition if the underlying reason for its use is lack of advanced acquisition planning or the possibility of losing expiring funds.
What are the exceptions to full and open competition?
The Competition in Contracting Act (CICA) permits contracting without providing for full and open competition when the following conditions exist:
1. Only one responsible source is available to provide services or supplies.
2. Unusual and compelling urgency.
3. Industrial mobilization (e.g., the need to maintain a facility or a producer in case of a national emergency).
4. International agreements such as the North American Free Trade Agreement (NAFTA); foreign military sales are also covered by this exception.
5. The procurement is expressly authorized or required by statute (i.e., procurement from a certain source, such as the Federal Prisons Industries, government printing, or qualified nonprofit agencies for the blind or other severely handicapped persons, is expressly authorized/required).
6. National security concerns (i.e., circumstances in which simply publicizing the procurement would compromise classified information).
7. Public interest concerns (e.g., a situation in which the head of an agency determines that it would be best to use other than competitive procedures in a particular procurement). (A recent relevant example involved cleanup of hazardous waste that endangered public health. The type of environmental hazard posed by the waste necessitated the use of one particular source, with specialized skills and facilities, for the cleanup. This situation was similar to one in which only one responsible source was available to perform contract work. Because significant public health and safety risks were involved, this exception was used so that congressional review and approval would be a part of the approval process.)
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