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SUBPART 206.3--OTHER THAN FULL AND OPEN COMPETITION

(Revised October 01, 2002)

 

 



 206.302 Circumstances permitting other than full and open competition.
 206.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements.
 206.302-2 Unusual and compelling urgency.
 206.302-3 Industrial mobilization; or engineering, development, or research capability.
 206.302-3-70 Solicitation provision.
 206.302-4 International agreement.
 206.302-5 Authorized or required by statute.
 206.302-7 Public interest.
 206.303 Justifications.
 206.303-1 Requirements.
 206.303-2 Content.
 206.304 Approval of the justification.


206.302  Circumstances permitting other than full and open competition.

 

206.302-1  Only one responsible source and no other supplies or services will satisfy agency requirements.

 

      (a)  Authority.

 

              (2)(i)  Section 8059 of Pub. L. 101-511 and similar sections in subsequent defense appropriations acts, prohibit departments and agencies from entering into contracts for studies, analyses, or consulting services (see FAR Subpart 37.2) on the basis of an unsolicited proposal without providing for full and open competition, unless—

 

                            (1)  The head of the contracting activity, or a designee no lower than chief of the contracting office, determines that—

 

                                    (i)  Following thorough technical evaluation, only one source is fully qualified to perform the proposed work;

 

                                    (ii)  The unsolicited proposal offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence; or

 

                                    (iii)  The contract benefits the national defense by taking advantage of a unique and significant industrial accomplishment or by ensuring financial support to a new product or idea;

 

                            (2)  A civilian official of the DoD, whose appointment has been confirmed by the Senate, determines the award to be in the interest of national defense; or

 

                            (3)  The contract is related to improvement of equipment that is in development or production.

 

      (b)  Application.  This authority may be used for acquisitions of test articles and associated support services from a designated foreign source under the DoD Foreign Comparative Testing Program.

 

              (4)  Do not use this authority unless the equipment or parts have been adopted as standard items of supply in accordance with DoDI 5000.2, Defense Acquisition Management Policies and Procedures.

 

206.302-2  Unusual and compelling urgency.

 

      (b)  Application.  The circumstances under which use of this authority may be appropriate include, but are not limited to, the following:

 

              (i)  Supplies, services, or construction needed at once because of fire, flood, explosion, or other disaster;

 

              (ii)  Essential equipment or repair needed at once to—

 

                    (A)  Comply with orders for a ship;

 

                    (B)  Perform the operational mission of an aircraft; or

 

                    (C)  Preclude impairment of launch capabilities or mission performance of missiles or missile support equipment.

 

              (iii)  Construction needed at once to preserve a structure or its contents from damage;

 

              (iv)  Purchase requests citing an issue priority designator under DoD 4140.1-R, DoD Materiel Management Regulation, of 4 or higher, or citing “Electronic Warfare QRC Priority.”

 

206.302-3  Industrial mobilization; or engineering, development, or research capability.

 

206.302-3-70  Solicitation provision.

Use the provision at 252.206-7000, Domestic Source Restriction, in all solicitations that are restricted to domestic sources under the authority of FAR 6.302-3.

 

206.302-4  International agreement.

 

      (c)  Limitations.  Pursuant to 10 U.S.C. 2304(f)(2)(E), the justifications and approvals described in FAR 6.303 and 6.304 are not required if the head of the contracting activity prepares a document that describes the terms of an agreement or treaty or the written directions, such as a Letter of Offer and Acceptance, that have the effect of requiring the use of other than competitive procedures for the acquisition.

 

206.302-5  Authorized or required by statute.

 

      (b)  Application.  Agencies may use this authority to—

 

              (i)  Acquire supplies and services from military exchange stores outside the United States for use by the armed forces outside the United States in accordance with 10 U.S.C. 2424(a) and subject to the limitations of 10 U.S.C. 2424(b).  The limitations of 10 U.S.C. 2424(b)(1) and (2) do not apply to the purchase of soft drinks that are manufactured in the United States.  For the purposes of 10 U.S.C. 2424, soft drinks manufactured in the United States are brand name carbonated sodas, manufactured in the United States, as evidenced by product markings.

 

              (ii)  Acquire police, fire protection, airfield operation, or other community services from local governments at military installations to be closed under the circumstances in 237.7401 (Section 2907 of Fiscal Year 1994 Defense Authorization Act (Pub. L. 103-160)).

 

      (c)  Limitations.

 

              (i)  10 U.S.C. 2361 precludes use of this exception for awards to colleges or universities for the performance of research and development, or for the construction of any research or other facility, unless—

 

                    (A)  The statute authorizing or requiring award specifically—

 

                            (1)  States that the statute modifies or supersedes the provisions of 10 U.S.C. 2361,

 

                            (2)  Identifies the particular college or university involved, and

 

                           (3)  States that award is being made in contravention of 10 U.S.C. 2361(a); and

 

                    (B)  The Secretary of Defense provides Congress written notice of intent to award.  The contract cannot be awarded until 180 days have elapsed since the date Congress received the notice of intent to award.  Contracting activities must submit a draft notice of intent with supporting documentation through channels to the Director of Defense Procurement, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics).

 

              (ii)  The limitation in paragraph (c)(i) of this subsection applies only if the statute authorizing or requiring award was enacted after September 30, 1989.

 

              (iii)  Subsequent statutes may provide different or additional constraints on the award of contracts to specified colleges and universities.  Contracting officers should consult legal counsel on a case-by-case basis.

 

206.302-7  Public interest.

 

      (c)  Limitations.  For the defense agencies, the written determination to use this authority must be made by the Secretary of Defense.

 

206.303  Justifications.

 

206.303-1  Requirements.

 

      (b)  Technical and requirements personnel must obtain any review and approval required by department or agency procedures before submission of a recommendation for other than full and open competition to the contracting officer.

 

      (c)  When conditions warrant, a class justification may provide for award of multiple contracts extending across more than one program phase.

 

206.303-2  Content.

 

      (a)  Include sufficient information in the justification to permit its approval as a stand-alone document, even though agency procedures may require supplementary documentation.

 

206.304  Approval of the justification.

 

      (a)(4)  The Under Secretary of Defense (Acquisition, Technology, and Logistics) may delegate this authority to—

 

                    (A)  An Assistant Secretary of Defense; or

 

                    (B)  For a defense agency, an officer or employee serving in, assigned, or detailed to that agency who¾

 

                            (1)  If a member of the armed forces, is serving in a rank above brigadier general or rear admiral (lower half); or

 

                            (2)  If a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of major general or rear admiral.

 

 

 


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