Subpart 6.3 - Other Than Full and Open Competition

Overview

FAR Subpart 6.3 outlines the specific statutory authorities, policies, and procedures that allow agencies to award contracts without providing for full and open competition. It establishes that while competition is the standard, agencies may deviate under seven strictly defined circumstances, provided they document the rationale through a formal Justification and Approval (J&A) process.

Key Rules

• Prohibited Justifications: Agencies cannot bypass competition due to a lack of advance planning or concerns regarding the expiration of funds (e.g., "end-of-year" spending).
• The Seven Statutory Exceptions:
  1. 6.302-1: Only one responsible source (and no other supplies/services satisfy requirements).
  2. 6.302-2: Unusual and compelling urgency (limited to the time necessary to bridge to a competitive action, generally not exceeding one year).
  3. 6.302-3: Industrial mobilization; engineering, developmental, or research capability; or expert services.
  4. 6.302-4: International agreement or treaty.
  5. 6.302-5: Authorized or required by statute (e.g., 8(a) sole source, UNICOR, or Blind/Severely Disabled programs).
  6. 6.302-6: National security (when disclosure of needs would compromise security).
  7. 6.302-7: Public interest (requires Agency Head determination and Congressional notification).
• Solicitation Requirement: Even when full competition is not used, Contracting Officers must still solicit offers from as many potential sources as is practicable under the circumstances.
• Brand Name Restrictions: Using a "brand name" specification is considered a restriction on competition and requires a J&A, whereas "brand name or equal" does not.

Responsibilities

• Contracting Officer (CO): Responsible for justifying the use of non-competitive procedures in writing, certifying the accuracy of the J&A, obtaining necessary approvals, and ensuring the final price is fair and reasonable.
• Technical and Requirements Personnel: Responsible for providing and certifying the technical data and rationale that support the claim that only one source can meet the requirement (e.g., documenting unique capabilities or proprietary data).
• Advocate for Competition: Approves J&As for contracts between $900,000 and $20 million.
• Head of the Procuring Activity (HPA): Approves J&As for contracts exceeding $20 million (or $150 million for DoD/NASA/Coast Guard).
• Senior Procurement Executive (SPE): Approves J&As for the highest dollar thresholds (typically over $90 million for civilian agencies or $150 million for DoD).
• Agency Head: Holds non-delegable authority to approve "Public Interest" exceptions (6.302-7).

Practical Implications

• Market Research is Critical: To successfully use the "Only One Responsible Source" authority, the government must prove via market research that no other vendor can satisfy the requirement. A lack of robust market research is a common reason for J&As to be overturned during a protest.
• Strict Time Limits on Urgency: Under "Unusual and Compelling Urgency," the period of performance is strictly capped at one year unless a specific "exceptional circumstances" determination is signed. This prevents "urgent" sole-source contracts from becoming indefinite loopholes.
• Public Scrutiny: J&As (except for National Security or certain statutory exceptions) must be made publicly available on the Government-wide Point of Entry (SAM.gov) after award. This transparency means justifications must be able to withstand public and competitor scrutiny.
• Administrative Lead Time: Non-competitive awards often require significant lead time for the internal "approval chain," especially for high-dollar acquisitions requiring SPE or HPA signatures. Procurement teams must factor this "J&A processing time" into their schedules.