Peer 1 (Derek): It depends on what agency the requirement is coming from, which circumstance under FAR 6.2 or 6.302 is applicable, the dollar threshold, the acquisition method, and contract type. Also, the required information for this justification is explained in FAR Part 6.302.
But I found a GSA Sample Justification for Other Than Full and Open Competition, Succeeding Lease, it is an eleven paragraph document.
The document begins with standard header data identifying the contracting activity, the agency supported, and the project name.
1.) Nature and or description of the action being approved. This paragraph provides an introduction to what required activity is being excepted from the full and open competition as well as the nature of the type of CICA exclusion.
2.) Description of the supplies or services required to meet the agency’s needs, including estimated value. In this paragraph, the required activity is described in terms that describe not only the operational requirements, performance parameters, or technical specifications but also the estimated value. These factors set the stage for explaining which exception from the full and open competition will be required based on the solicitation type, acquisition type, type of award, and dollar threshold.
3.) Identification of Statutory Authority permitting other than full and open competition. FAR part 6. 301 explains the policies under the US codes of law that apply to the application for other than full and open competition. In this paragraph, the requiring activity, as well as the contracting activity based on what agency they represent, demonstrate a proper understanding of the right statute that applies to their organization. 10 U.S.C.2304(c) is applicable to DOD, NASA, and Coast Guard. 41 U.S.C.3304 is applicable to other executive agencies.
4.)Demonstration that the proposed contractor’s unique qualifications or nature of the acquisition require the use of the authority cited. In this paragraph, agency FAR supplements, policies, and standard operating procedures, which would support a narrative for the use of Other Than Full and Open Competition, would be cited. Along with a cost-benefit analysis that shows that competitive discounts would not recover the costs of competition and hiring a new contractor. As well as any hindrance in the application of OPSEC, operational readiness, safety, or any other national security concerns that might be threatened by the application of Full and Open Competition.
5. Description of efforts made to ensure that offers are solicited from as many potential sources as practical. In this paragraph, the contracting activity explains that the conducted market research, as well as RFI’s that would entertain the idea of Full and Open Competition, demonstrates that the decision to seek justification for other than Full and Open Competition was not done so arbitrarily or in a vacuum. But was made so with consideration for the market and with transparency it also shows how the market responded to the RFI.
6.) Demonstration by the contracting officer that the anticipated cost to the government will be fair and reasonable. In this paragraph, the contracting officer is directly required to make his own certification of the cost benefits of engaging in other than Full and Open Competition.
7.) Description of Market Research Conducted and the results. In this paragraph, the contracting officer shows the method and results of his market research conducted in accordance with FART pat 10. It can also be used to justify why market research was not conducted.
8.)Other facts supporting the use of other than full and open competition. In this paragraph, the FAR recommends an explanation for why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions have not been developed. The FAR also requires a cost-benefit analysis, and data supporting rationale be added in FAR part 6.302-1 or 6.302-2 are being cited for justification.
9.)List of sources, if any, that express, in writing, an interest in the acquisition.
10.) Statement of actions, if any, the agency may take to remove or overcome barriers to competition before any subsequent acquisition. Despite having the ability to use other than full and open competition, CICA requires agencies to transition the acquisition method to full and open competition eventually. In fact, contracts can become Congressional special interest items when agencies can not satisfy this requirement.
11.) Contracting Officer certification of technical requirements for completion, accuracy government best interest. In this paragraph, the contracting officer is certifying that all data used in support of the justification is complete and accurate also that the use of other than full and open competition is in the government’s best interest. FAR part 6.304 stipulates based on dollar threshold what level or rank requirement the signature authority must-have.
Peer 2 (Reed):
Fulfilling a requirement without the use of full and open competition is only allowed in seven different circumstances, which are described in the FAR. The one justification that I see the most in my office out of all of the ones listed is FAR 6.302-1 “Only one responsible source and no other supplies or services will satisfy agency requirements.” Its pretty clearly stated, however, this is when the government has a requirement that can only be filled by one source. The FAR states ” (2) 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 a 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.
(i) Supplies or services may be considered to be available from only one source if the source has submitted an unsolicited research proposal that-
(A) Demonstrates a unique and innovative concept (see definition at 2.101), or, demonstrates a unique capability of the source to provide the particular research services proposed;
(B) Offers a concept or services not otherwise available to the Government; and
(C) Does not resemble the substance of a pending competitive acquisition.”
We usually do the justification for this via a memorandum for the record (MFR) with the subject as “Justification for an exception to fair oppurtunity”. In this MFR, we state the item description along with the reason we are not pursuing full and open competition. We also reference exactly which part of the FAR is backing our stance and it is signed and attached to each contract file applicable.
Peer 3 (Dee): As stated in FAR 6.303-1, contracting officers are not allowed to award a contract “without providing for full and open competition” unless certain conditions are met and approval is given to do so. The justification for other than FOC has to be solid and in writing. It has to be clear as to why the requirement cannot be competed and it must fall into one of the seven authorities outlined in the FAR. Those seven categories are (1) only one responsible source; (2) unusual and compelling urgency; (3) industrial mobilization; (4) international agreement; (5) authorized or required by statute; (6) national security; (7) public interest.
FAR 6.303-2 list out the minimum required information needed on a JOFOC. The facts of the situation and rationale as to why a contract should not be awarded under FOC is required when writing a JOFOC. The authority permitting the other than FOC must also be annotated. Other information such as the description of supplies or services, cost estimates, market research information, etc., are also included on the JOFOC. The justification must be certified by the contracting officer as accurate.
The FAR provides a few reason why a JOFOC should not be used, such as lack of planning by the requiring activity. I would also add to that it should not be used just because the customer wants a certain brand of item or a certain company to provide a service. Anyone that has ever worked for a hospital can tell you how, for lack of a better word, spoiled doctors can be. I often ran into situations where my customers would actually try to convince me that something was sole source just for me to do some research and find out that it was not. Then I was given the excuse of it’s what doctor so and so wants. For reasons such as these, my office always did our own research before submitting an JOFOC to our contracting office. We verified their request and helped out contracting office as much as possible stay in compliance when dealing with JOFOCs.