NFS part 1806

PART 1806

COMPETITION REQUIREMENTS

SUBPART 1806.2

FULL AND OPEN COMPETITION

AFTER EXCLUSION OF SOURCES

1806.202 Establishing or maintaining alternative sources.

(a) The authority of FAR 6.202 is to be used to exclude one source only. If, for example, FAR 6.202(a)(3) appears to be applicable, but all for-profit concerns as well as the current source will be excluded, then FAR 6.302-3 shall be used instead.

(b) The authority to sign the D&F required by FAR 6.202(b)(1) is hereby delegated to the approval levels specified in FAR 6.304 and 1806.304.

1806.202-70 Determination and findings.

(a) Procedure.

(1) Each determination and findings (D&F) shall be dated at the time of signature.

(2) Each request for approval of a D&F over $10,000,000 under 10 U.S.C. 2304(b)(1) (FAR 6.202) shall consist of--

(i) A memorandum from the procurement officer to the Associate Administrator for Procurement (Code HS) recommending D&F approval; and

(ii) An original and three copies of the D&F in the format required by paragraph (b) of this section.

(3) The Associate Administrator for Procurement (Code HS) shall return the signed D&F, if approved, to the contracting office, retaining the copies in Headquarters files.

(b) Content. When the authority of FAR 6.202(a) is proposed for use, it must be shown clearly that the necessity for excluding a particular source arises from genuine considerations pertinent to the authority of FAR 6.202(a). The supporting data and the D&F must name the source to be excluded and shall include the following information as applicable and any other relevant information:

(1) The specific purpose to be served in excluding the source; i.e., to increase or maintain competition, the interest of national defense in having a facility available in case of a national emergency or industrial mobilization, or the interest of national defense in establishing or maintaining an essential engineering, research, or development capability.

(2) The acquisition history of the supplies or services, including sources, prices, quantities, and dates of award.

(3) The circumstances making it necessary to exclude a particular source from the contract action:

(i) Reasons for lack of sources; e.g., the technical complexity and criticality of the item.

(ii) Current annual requirement and prospective needs for the supplies and services.

(iii) Projected future requirements.

(4) Whether the existing source must be totally excluded action or whether a partial exclusion is sufficient.

(5) The potential effect of exclusion on the excluded source in terms of any loss of capability to furnish the supplies or services in subsequent contract actions.

(6) When the authority of FAR 6.202(a)(1) is cited, the basis for--

(i) Assumptions regarding future competition; and

(ii) The determination that exclusion of a particular source will likely result in reduced overall costs

for anticipated future acquisitions, including (as a minimum) discussion of start-up costs, costs associated with facilities, duplicative administration costs (such as for additional inspection or testing), economic order quantities, and life-cycle-cost considerations.

(7) When an additional source or additional sources must be established to provide production capacity to meet current and mobilization requirements--

(i) The current annual and the mobilization requirements for the item, citing the source of, or the basis for, the planning data;

(ii) A comparison of current production capacity with current and mobilization requirements; and

(iii) The hazards of relying on the present source and the time required for new sources to acquire the necessary facilities and skills and achieve the production capacity necessary to meet requirements.

(c) Formats. A sample format for D&Fs citing the authority of FAR 6.202(a) follows:

National Aeronautics and Space

Administration

Washington, DC 20546

Determination and Findings

Authority to Exclude a Source

On the basis of following findings and determination, which I make under the authority of 10 U.S.C. 2304(b)(1) as implemented by FAR 6.202, the proposed contract action described below may be awarded using full and open competition after exclusion of (1) .

Findings

1. It is proposed that the following requirement be acquired using full and open competition after exclusion of the source identified above.

2. The source identified above can be expected to receive an award for this requirement unless excluded.

3. It is necessary to establish or maintain an alternative source or sources.

4. The exclusion of this source will increase or maintain competition and is likely to result in reduction of (2) in overall costs for any anticipated acquisition of the supplies or services being acquired. This estimate is based on (3) .

(See Note 4 for the use of Alternates I and II below.)

Alternate I: The exclusion of this source will serve the national defense interest by having an alternative supplier available for furnishing the supplies or services being acquired, in case of a national emergency or industrial mobilization, because (5) .

Alternate II: The exclusion of this source will serve the national defense interest by establishing or maintaining an essential engineering, research, or development capability of an educational or other nonprofit institution or a federally funded research and development center, because (5) .

Determination

The exclusion of the source identified above will increase or maintain competition and is likely to result in reduced overall costs for any anticipated acquisition of the supplies or services being acquired.

(See Note 4 for the use of Alternates I and II below.)

Alternate I: It is in the interest of the national defense to exclude the source identified above in order to have an alternative supplier available for furnishing the supplies or services being acquired, in case of a national emergency or industrial mobilization.

Alternate II: It is in the interest of national defense to exclude the source identified above in order to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center.

Date

NOTES:

1. Name of source to be excluded.

2. Description of estimated reduction in overall costs.

3. Description of how estimate was derived.

4. In paragraph 4 and in the Determination, the basic wording is appropriate when FAR 6.202(a)(1) applies; Alternate I is appropriate when FAR 6.202(a)(2) applies; and Alternate II is appropriate when FAR 6.202(a)(3) applies.

5. Description of circumstances necessitating the exclusion of the identified source.

1806.203 Contracting under the SBIR program.

No separate justification or determination and finding is required under this part to limit competition to eligible contractors in connection with procurement conducted under any of the three phases of the Small Business Innovation Research (SBIR) program (see 15 U.S.C. 638(e)(4)).

SUBPART 1806.3

OTHER THAN FULL AND

OPEN COMPETITION

1806.301 Policy.

For NASA, the appropriate statutory authorities relative to FAR 6.302 are in Title 10 of the United States Code.

1806.302 Circumstances permitting other than full and open competition.

1806.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements.

1806.302-170 Technical equipment requiring standardization and interchangeability of parts.

(a) The contracting officer shall review actions taken under the authority of FAR 6.302-1(b)(4) at least once every two years to determine whether use of this authority should be continued, revised, or cancelled.

(b) This authority may be used when (1) only one or a limited quantity of a particular item is to be purchased and (2) compatibility with existing equipment and interchangeability of parts are essential. Use of this authority in such a case does not mean that subsequent purchases of similar equipment will necessarily require the use of less than full and open competition for purposes of standardization. The contracting officer must examine the facts involved in each case to determine whether compatibility with other equipment and interchangeability of parts are essential objectives.

1806.302-2 Unusual and compelling urgency.

1806.302-270 Support services contracts.

It may become necessary to extend the performance period of an existing support services contract to avoid a lapse in services pending completion of a full and open competition for the succeeding period. Under these circumstances, the authority at FAR 6.302-1 is not appropriate, because of the pending competition and because it does not cover follow-on contracts for services. However, if the contemplated action otherwise conforms to the requirements at FAR 6.302-2 and the additional documentation at 1806.303-271 is included in the justification for other than full and open competition, then the existing contract may be extended under this authority.

1806.302-4 International agreement.

1806.302-470 Documentation.

Pursuant to 10 U.S.C. 2304(f)(2)(E), an individual justification for other than full and open competition under the authority of FAR 6.302-4 is not required when the procurement officer signs a Memorandum for the Record that:

(a) describes the specific terms of the international agreement or treaty that limit procurements in support of, or as a result of, the agreement or treaty to less than full and open competition;

(b) is reviewed and approved by the appropriate competition advocate in accordance with NFS 1806.304; and

(c) is included in each official contract file in the place for filing a Justification for Other than Full and Open Competition (see NASA Form 1098).

1806.302-7 Public interest.

1806.302-770 Determination and findings.

(a) Procedure. The contracting officer shall prepare the D&F required by FAR 6.302-7(c)(1), using the format provided in paragraph (b) below. The original and three copies of the D&F shall be submitted to the Associate Administrator for Procurement (Code HS) for concurrence and coordination up to the Administrator for signature.

(b) Format. The following format shall be used for the D&F:

National Aeronautics and Space Administration

Washington, DC 20546

Determination and Findings

Authority To Use Less Than Full

and Open Competition

On the basis of the following findings and determination, which I make under the authority of 10 U.S.C. 2304(c)(7) as implemented by FAR 6.302-7, it is in the public interest to provide for less than full and open competition in the contract action described below.

Findings

1. The (1) proposes to enter into a contract for the acquisition of (2) .

2. Use of the authority cited above is necessary in the public interest for the following reasons: (3) .

Determination

For the reasons described above, it is necessary in the public interest to use procedures other than competitive procedures in the proposed acquisition.

Date

NOTES:

(1) Name of contracting activity.

(2) Brief description of supplies or services.

(3) Explain the need for use of the authority.

(c) Notice to Congress. The notice to Congress required by 10 U.S.C. 2304(c)(7)(B) and FAR 6.302-7(c)(2) shall be made by NASA Headquarters, Office of Legislative Affairs (Code LC). Code HS shall request the notice to be made immediately upon approval of a D&F under paragraph (a) above and shall advise the contracting activity of the date upon which the notification period ends.

1806.303 Justifications.

1806.303-1 Requirements.

(a) Justifications for using less than full and open competition may be prepared by the technical office initiating the contract action when it is recommending the use of the justification authority, or by the contracting officer if the technical office does not make such a recommendation.

(b) The contracting officer shall send a copy of each approved justification or D&F that cites the authority of FAR 6.302-3(a)(2)(i) or FAR 6.302-7 to NASA Headquarters, International Relations Division (Code IR), unless one of the exceptions at FAR 25.403 applies to the procurement. The transmittal shall indicate that the justification is being furnished under FAR 6.303-1(d).

(c) Before using the authority of FAR 6.303-1(e), the contracting officer shall informally discuss the reasons for the proposed use of less than full and open competition under FAR 6.302-2 with the justification approving authority, except that if that authority is NASA Headquarters (Code H), the discussion shall be between the procurement officer and the Associate Administrator for Procurement.

(d) Each approved justification shall be retained in the contract file.

1806.303-170 Sole-source purchases by contractors.

The requirements of FAR Part 6 and NFS Part 1806 apply if NASA directs a prime contractor (by specifications, drawings, parts lists, or otherwise) to purchase items on a sole-source basis. Accordingly, procurement officers shall take necessary actions to ensure that such sole-source acquisitions are properly justified. Where "brand name or equal" purchase descriptions list the salient physical, functional, or other characteristics of the item being procured and are properly used under 1810.004-71, the justification requirements of FAR Part 6 and NFS Part 1806 do not apply.

1806.303-2 Content.

1806.303-270 NASA employees or former NASA employees.

If any contract with a NASA employee or an individual employed by NASA within the past two years is proposed on the basis of other than full and open competition, the justification shall state that the proposed contractor is a NASA or former NASA employee and shall explain why it is in the best interest of the Government to take this action (see FAR Subpart 3.6 and NFS 1803.602 and 1803.7001(a)).

1806.303-271 Use of unusual and compelling urgency authority.

If the authority at FAR 6.302-2 is used for extending the performance period of an existing support services contract under the circumstances described at 1806.302-270, the justification shall contain, in addition to the information required by FAR 6.303-2 --

(a) Documentation that the procurement process for the successor contract was started early enough to allow for adequately planning and conducting a full and open competition, together with a description of the circumstances that prevented award in a timely manner; and

(b) Documentation of the reasons why no other source could practicably compete for the interim requirement.

1806.304 Approval of the justification.

(a) All justifications for contract actions over $100,000 shall be submitted to the procurement officer for concurrence before being forwarded for approval. Justifications over $1,000,000 shall also be submitted to the installation's Competition Advocate for concurrence, and those over $10,000,000 shall be further submitted for the concurrence of the installation's Director, before being forwarded for approval. For actions requiring Headquarters approval, the contracting officer shall include signature blocks for the concurrence of the NASA Competition Advocate and the approval of the Associate Administrator for Procurement in the same section of the document where signatures are obtained evidencing certification or concurrence by installation personnel. A separate Headquarters signature page shall not be used.

(b) The authority of FAR 6.304(a)(3) may not be delegated to other than the installation's Deputy Director.

(c) For proposed contract actions over $10,000,000, the original justification and three copies shall be forwarded to the Associate Administrator for Procurement (Code HS). After approval by the Associate Administrator for Procurement, the signed original will be returned to the procurement officer. The copies will be retained in Headquarters files.

(d) Regardless of dollar value, class justifications shall be concurred in and

approved as if they were individual justifications over $10,000,000.

1806.305 Availability of the justification.

(a) Requests for inspection of justifications should be submitted in writing and should identify the particular procurement involved. Requestors making oral requests should be encouraged to submit them in writing but are not required to do so.

(b) The contracting officer should consult counsel regarding disclosure exemptions and deletion and protection of proprietary data. Requests should be processed promptly.

SUBPART 1806.5

COMPETITION ADVOCATES

1806.570 NASA competition advocacy program.

NASA's implementation of FAR Subpart 6.5 is in NMI 1210.2, NASA Competition Advocacy Program.