• R.D. Lieberman,Consultant

Lack of Advance Planning Is An Improper Reason to Use Noncompetitive Procedures

10 U.S.C. § 2304 and 41 U.S.C. 3301 require, with certain limited exceptions that contracting officers promote and provide for full and open competition in soliciting offers and awarding Government contracts. See also FAR 6.101(a). Any contract awarded without full and open competition must be justified, and the FAR prohibits the justification to be based on a “lack of advance planning by the requiring activity.” FAR 6.301(c). The justification for most common awards made without full and open competition are that there are (1) only one responsible source and no other supplies will satisfy agency requirements (FAR 6.302-1); or (2) unusual and compelling urgency (FAR 6.302-2). There are five other less commonly used justifications for awards made with less than full and open competition. See FAR 6.302-3 – 6.302-7.

As noted above, an agency may not justify other than full and open competition if there has been a lack of advance planning. Two recent bid protests demonstrate the two ends of the spectrum. First, in American Sys. Corp., B-412501, March 18, 2016, the Government Accountability Office (“GAO”) found that the Navy properly issued a short-term, sole source contract for professional support services when it encountered some new problems after changing a solicitation. The Navy had to cancel the solicitation and resolicit its requirements, but needed a bridge (short-term contract) in order to continue the services while conducting a new procurement. Although the bridge contract was protested, the GAO found that the Navy had proactively sought to address concerns with the solicitation, but when their efforts introduced new problems, the attempt to correct the solicitation was unsuccessful and they needed to issue a new solicitation. There was no lack of advance planning.

On the other hand, in Xtec, Inc., B-410778.3, Oct. 1, 2015, the GAO sustained a protest because of a clear lack of advance planning. In that protest, the General Services Administration (“GSA”) had to cancel a solicitation for personal identification verification of government employees. As a result, GSA issued a sole source extension of a previously awarded task order to provide the products and services contemplated in the canceled solicitation. The GAO found lack of advance planning because GSA knew of, and had documented the need for detailed solicitation requirements nearly 4 years prior to the solicitation’s cancellation. However, when GSA issued the solicitation it contained only “high level” requirements, which were insufficiently detailed to conduct the procurement. GSA had to cancel the solicitation because it had failed to adequately plan how to address flaws in the solicitation that had been known by the agency for years.

While it may be difficult to show lack of advance planning, when an agency knows its requirements and then doesn’t act on them for four years, a protest is likely to succeed.

#Noncompetitiveprocedures #solesource

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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