Contracts & Legal

Sole Soure – Justification and Approval

A sole source procurement (called an Other than Full & Open Competition) is when the government enters into a contract with a contractor without going through the typical competitive process as required by law because it deems that the contractor is the only source available to meet government requirements.

A Justification and Approval (J&A) is a document required by the Federal Acquisition Regulation (FAR) (Subpart 6.3) that justifies and obtains approval for a sole-source contract.

Definition of Sole Source: 10 U.S.C. 2304(c) authorizes, under certain conditions, contracting without providing for full and open competition. Contracting without providing for full and open competition or full and open competition after exclusion of sources is a violation of statute unless permitted by one of the exceptions in 6.302.

Definition of Justification and Approval (J&A) “A document required to justify and obtain appropriate level approvals to contract without providing for full and open competition as required by the Federal Acquisition Regulation (FAR) (Subpart 6.3).”

Key Takeaways About Sole Source Justifications

A Sole Source Justification is a document that explains why a certain vendor or contractor should be chosen for a project even though they didn’t have to go through a bidding process. Here are some important things for a government project manager to keep in mind when making a Sole Source Justification:

  • Follow the government’s rules and regulations: Each government agency has its own rules and regulations for sole source justifications, and it’s important to follow these rules to ensure the justification is properly prepared and approved. Find out what makes the vendor special. To justify a sole source procurement, the project manager must be able to show that the chosen vendor has special skills or qualifications that make them the best fit for the project. This could be specialized knowledge, technical expertise, or technology that isn’t available anywhere else.
  • Explain why it’s not possible to have multiple bids: The project manager must be able to explain why a competitive bidding process is not possible or right for the project. This could be because of a lack of time, the work being very specialized, or something else that makes a single-source procurement necessary.
  • Get the necessary permissions: Before the procurement can happen, the Sole Source Justification must be approved by the right people in the government agency. Before moving forward, the project manager must follow the agency’s approval process and get all the necessary approvals.
  • Clearly explain the justification: It’s important to have a well-documented Sole Source Justification to ensure the procurement process is clear and can stand up to scrutiny. The project manager should include all relevant information and explanations in the justification for choosing the vendor through a sole source procurement.

Circumstances Permitting Sole Source Awards (FAR 6.302)

The following statutory situations permit contracting without providing for full and open competition:

  • Only One Responsible Source [10 U.S.C. 2304(c)(1), FAR 6.302-1]
    • The acquisition will be conducted under a follow-on contract for the continued development/production of a major system or highly specialized equipment (or major components thereof).
    • Award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition or unacceptable delays in fulfilling the requirement.
    • Unique supplies or services are available from only one or a limited number of sources.
  • Unusual and Compelling Urgency [10 U.S.C. 2304(c)(2), FAR 6.302-2, DFARS 206.302-2]
    •  Unusual and compelling urgency (e.g., fire, flood, explosion, disaster), and §  Delay in the award of a contract would result in serious injury (financial or other) to the Government unless the competition is limited.
  • Industrial Mobilization [10 U.S.C. 2304(c)(3), FAR 6.302-3, DFARS 206.302-3]
    • Government finds it necessary to establish or maintain facilities, producers, manufacturers, or other suppliers in case of a national emergency.
    • Government deems it important to retain the services of an expert or neutral person for any current or anticipated litigation or dispute.
    • Government deems it important to establish or maintain essential engineering, developmental, or research capabilities by an educational or other nonprofit institution or a federally funded research and development center.
  •  International Agreement [10 U.S.C. 2304(c)(4), FAR 6.302-4, DFARS 206.302-4]
    •  Acquisition will be reimbursed by a foreign government that requires that the supplies/services be obtained from a particular firm as specified in the official written direction, e.g., Letter of Offer and Acceptance.
    • A treaty or international agreement between the U.S. and a foreign government or international organization specifies or limits the sources to be solicited.
  • Authorized or Required by Statute [10 U.S.C. 2304(c)(5), FAR 6.302-5, DFARS 206.302-5]
    • A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source.
    • The agency’s need is for a brand-name commercial item for authorized resale.
  • National Security [10 U.S.C. 2304(c)(5) or 41 U.S.C 253(c)(5), FAR 6.302-6]
    • Disclosure of the Government’s needs would compromise national security.
  • Public Interest [10 U.S.C. 2304(c)(7), FAR 6.302-7, DFARS 206.302-7]
    • The Secretary of the (Agency) determines that it is not in the public interest in the particular acquisition concerned to provide for full and open competition.

Sole Source Justifications Requirements (FAR 6.303)

A contracting officer shall not commence negotiations for a sole source contract, commence negotiations for a contract resulting from an unsolicited proposal, or award any other contract without providing for full and open competition unless the contracting officer:

  •  A contracting officer shall not commence negotiations for a sole source contract, commence negotiations for a contract resulting from an unsolicited proposal, or award any other contract without providing for full and open competition unless the contracting officer:
    • Justifies the use of such actions in writing;
    • Certifies the accuracy and completeness of the justification and
    • Obtains the approval.
  • Technical and requirements personnel are responsible for providing and certifying accurate and complete necessary data to support their recommendation for other than full and open competition.
  • Justifications may be made on an individual or class basis. Any justification for contracts awarded under the authority of FAR 6.302-7 shall only be made on an individual basis. Whenever a justification is made and approved on a class basis, the contracting officer must ensure that each contract action taken pursuant to the authority of the class justification and approval is within the scope of the class justification and approval and shall document the contract file for each contract action accordingly.
  • The justifications for contracts awarded under the authority may be prepared and approved within a reasonable time after contract award when preparation and approval prior to award would unreasonably delay the acquisitions

Sole Source Justification Content (FAR 6.303-2)

Each justification shall contain sufficient facts and rationale to justify the use of the specific authority cited. As a minimum, each justification shall include the following information:

  1. Identification of the agency and the contracting activity, and specific identification of the document as a “Justification for other than full and open competition.”
  2. Nature and/or description of the action being approved.
  3. A description of the supplies or services required to meet the agency’s needs (including the estimated value).
  4. An identification of the statutory authority permitting other than full and open competition.
  5. A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires the use of the authority cited.
  6. A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable, including whether a notice was or will be publicized as required by Subpart 5.2 and, if not, which exception under 5.202 applies.
  7. A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.
  8. A description of the market research conducted and the results or a statement of the reason market research was not conducted.
  9. Any other facts supporting the use of other than full and open competition, such as:
    • Explanation of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available.
    • For follow-on acquisitions as described (FAR 6.302-1(a)(2)(ii)) an estimate of the cost to the Government that would be duplicated and how the estimate was derived.
    • When (FAR 6.302-2) is cited, data, estimated cost, or other rationales as to the extent and nature of the harm to the Government.
  10. A listing of the sources, if any, that expressed, in writing, an interest in the acquisition.
  11. A statement of the actions the agency may take to remove or overcome any barriers to competition before any subsequent acquisition of the required supplies or services.
  12. Contracting officer certification that the justification is accurate and complete to the best of the contracting officer’s knowledge and belief.

Difference Between Justification & Approval (J&A) and Determinations and Findings (D&F)

The Competition in Contracting Act (CICA) (10 U.S.C. 2304 and 41 U.S.C. 253) establishes the need for a J&A. In that it lays forth the information submitted to an approving authority for their particular examination and conclusion, it is comparable. Although the FAR mentions completing a D&F several times, a J&A is only mentioned in relation to a contracting officer’s desire to engage in a sole-source procurement.

The Determinations and Findings (D&F) (FAR Subpart 1.7) is a special form of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions. The “determination” is a conclusion or decision supported by the “findings.’’ The findings are statements of fact or rationale essential to support the determination and must cover each requirement of the statute or regulation. A D&F is normally for an individual contract action.

Blog: Navigating the Procurement Maze: J&A vs. D&F in Government Contracting

As a contracting officer for the government, it’s crucial to understand and navigate the complex landscape of procurement regulations. Two key documents play a pivotal role in ensuring transparency and compliance: the Justification and Approval (J&A) for a sole source procurement and the Determination and Findings (D&F) for a normal contract action.

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Updated: 12/23/2023

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