(b)(1) Approval authority for determinations and findings (D&Fs) under this subpart follows: Estimated Value of Justification Approving Official of D&F
$700K and below
Over $700K to $13.5M
Over $13.5M to $93M
See DFARS 206.2 for D&F format. Legal Counsel and Procuring Activity Competition Advocate (PACA) or Agency Competition Advocate (ACA) coordination is required before approval. Provide the PACA with a copy of the approved D&F.
(S-90) The HCA has waived the requirement to issue a Request for Information (RFI) or Sources Sought (SS) notice as a market research method (see DARS 210.001 (S-90)) for procurement actions to increase the ceiling amount of a contract, bridge actions, or procurement actions as a result of a protest.
(S-91) Use of a SS notice meets the requirement at FAR 5.201 for making notices of proposed contract actions, when the SS notice also includes the information required at FAR 5.207(c)(15) and (16) and FAR 6.302-1(d)(2). Use of an RFI does not meet the requirements at FAR 5.207(c)(15), (16) and FAR 6.302-1(d)(2), a separate notice of proposed contract action is required if a sole source procurement will result from the requirement described in an RFI.
(c) Limitations. The waiver of the justifications and approvals made effective by the HCA document described in DFARS 206.302-4(c) shall only suffice in cases when the host country requests and documents in the agreement the specific company and supplies/services to be procured. If a proposed acquisition is to support NATO, then the agreement must state the specific company and supplies/services being procured.
(c)(1) Follow the format under FAR 1.7 for the written determination. Approval authority for D&F follows:
(i) Secretary of Defense (see DFARS Subpart 206.302-7)
(ii) Required coordination: Legal counsel, PL2, PACA/ACA, HCA, and SPE
(iii) Provide the PACA with a copy of the approved D&F.
(3) If a justification is required to support the determination, follow DARS Part 6.
(c) The Technical and Requirement certification may be accomplished by the same certifying official on the OTFAOC Justification.
(S-90) The requirements office, in close coordination with the contracting officer, shall develop the Justification for OTFAOC using the required format located in DARS PGI 6.303-1(S-90). Templates are updated periodically, therefore a new template must be used for each new J&A.
(S-91) The approval level shall be determined by the estimated total value of the class. For each acquisition covered by a class justification, the contract file must include a copy of the class Justification and signature page, or a statement referring to its location. Only one statutory and associate regulatory authority is permissible to support a class justification.
(S-92) Legal Counsel review/coordination is required on all Justifications for OTFAOC over
$700K prior to approval by the approving official. The contracting officer can request legal review for justifications at $700K or below. Procedures for signatures and approvals are located at DARS PGI 1.9003.
Legal reviews will be conducted within four (4) business days NTE. The PACA/ACA reviews will be conducted within three (3) business days NTE.
(S-93) An amendment to an approved J&A is required if, prior to award of the contract, the approved J&A contents change in any of the following areas:
(1) If the dollar value of an approved J&A changes (increases) prior to award but remains within the original approving official approval level.
(2) An increase in the dollar value of the prospective contract that results in a change of the applicable approving official;
(3) A change in the competitive strategy; or
(4) A change in requirements that affects the basis for the justification.
If paragraph (1) applies, then a new signature page will be routed only to the initial approving official as well as the applicable approving official. If paragraphs (2), (3) or (4) apply, then a new signature page will be routed in accordance with (S-92).
(S-94) A modification to an approved J&A is required if, within six (6) months after award of the contract, there is an increase in the dollar value of the contract that results in a change of the applicable approving official.
A modification to an approved J&A shall be based on the value of the modification alone, except the estimated amount shall be cumulative if processed within six (6) months of an awarded contract action.
If the cumulative amount requires a higher approving official’s signature, a new signature page will be routed only to the initial approving official as well as the applicable approving official.
(S-95) Determining contract value.
Proposed out-of-scope contract modifications and new task orders or delivery orders for new requirements require new OTFAOC Justifications. The estimated value of the proposed out-of- scope contract modification or new task/delivery order J&A shall be based on the value of the modification or new task/delivery order requirement, not cumulative contract value, except if justifications were processed within six months of contract award.
(a) The J&A shall clearly reflect the amendment/modification/changes in bold and separate from the original approved J&A.
(b) The title of the Justification should read: If prior to award “Amendment Justification”; if after award “Modification Justification” and reference the original Justification’s number.
(c) The Justification posting requirements remain unchanged from the original Justification posting requirements.
(d) Electronic submission is encouraged.