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DARS PART 6 -- COMPETITION REQUIREMENTS



PART 6 -- COMPETITION REQUIREMENTS

TABLE OF CONTENTS

SUBPART 206.000 – SCOPE OF PART

206.000 Scope of part.

SUBPART 6.2 — FULL AND OPEN COMPETITION AFTER EXCLUSION OF SOURCES

6.202 Establishing or maintaining alternative sources.

SUBPART 6.3 — OTHER THAN FULL AND OPEN COMPETITION

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

6.302-4 International agreement.

6.302-7 Public Interest.

6.303-1 Requirements.

6.303-90 Amendment/Modification Justification format.

206.304 Approval of the justification.

6.90 Brand Name Justifications.

PART 6 -- COMPETITION REQUIREMENTS

SUBPART 206.000 – SCOPE OF PART

206.000 Scope of part.

See OSD AT&L’s Guidelines for Creating and Maintaining a Competitive Environment for Supplies and Services in the Department of Defense for information on various approaches that may be used to competitively fulfill DoD requirements.

SUBPART 6.2 — FULL AND OPEN COMPETITION AFTER EXCLUSION OF SOURCES

6.202 Establishing or maintaining alternative sources.

(b)(1) Approval authority for determinations and findings (D&Fs) under this subpart follows:

Estimated Value of Justification Approving Official

$700K and below Contracting Officer

Over $700K to $13.5M COCO

Over $13.5M to $93M HCA

Over $93M SPE

See DFARS 206.2 for D&F format. Legal Counsel and Procuring Activity Competition Advocate (PACA)/Agency Competition Advocate (ACA) coordination is required before approval. Provide the Agency Competition Advocate with a copy of the approved D&F.

SUBPART 6.3 — OTHER THAN FULL AND OPEN COMPETITION

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

(d) Limitations. In accordance with DFARS PGI 206-302-1, when utilizing the authority at FAR 6.302-1, the contracting officer shall post a request for information (RFI) or a sources sought (SS) notice, and shall include the results of this inquiry in the justification required by FAR 6.303, at paragraphs 8 and 10 of the J&A document. This requirement to post a RFI or SS notice may be waived by the HCA, or designee. The waiver authority to post a RFI or SS notice may not be delegated lower than a general or flag officer or a member of the Senior Executive Service.

If use of an RFI or SS notice as a market research method (see DARS 210.001 (S-90)), is inappropriate or unnecessary for a particular procurement, the contracting officer shall prepare a determination and findings waiver for the HCA approval prior to submitting the J&A for concurrent coordination review, see Table 6-1. Once the waiver is approved, it shall accompany the J&A for coordination reviews and signature.

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.

6.302-4 International agreement.

(c) Limitations. The waiver of the justifications and approvals made effective by the Head of the Contracting Activity (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.

6.302-7 Public Interest.

(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 Agency Competition Advocate with a copy of the approved D&F.

(3) If a justification is required to support the determination, follow DARS Part 6.

6.303-1 Requirements.

(c) Requirement certification shall be accomplished by the head of the requirements office (or the acting head of the requirement office). New language: 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 set forth in DARS Subpart 6.303-90.

(S-91) A class justification for OTFAOC shall be approved in writing. 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 duplicate original copy including the signature page of the class Justification for OTFAOC, or a statement referring to its location. Add the following: 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 as determined by DARS 6.304. Contracting Officer or HCO can request legal review for justifications at $700K or below for possible contentious issues. Procedures for signatures and approvals are located in DARS 6.304-90.

Legal reviews require a minimum of four (4) business days and both the PACA and

ACA reviews require a minimum of three (3) business days.

(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, then the contracting officer shall amend the justification to reflect the actual contract value and coordinate with the signatories to ensure that they concur with the changes.

(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 paragraph (2) or (3) applies, then a new signature page will be routed in accordance with (S-92) and the procedures for signatures and approvals located in DARS 6.304-90.

(S-94) A modification to an approved Justification is required if, within 6 months after award of the contract, there is an increase in the dollar value of the prospective 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 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

(1) If the dollar value of the contract after award exceeds the estimated value of the Justification for OTFAOC but within the approval level of the original approving official, modify the justification to reflect the actual contract value and coordinate with the signatories to ensure that they concur with the changes. When the dollar value of the contract at the time of

award exceeds the estimated value of the Justification for OTFAOC and the approval level of the original approving official, prepare a modified Justification for OTFAOC and obtain the signatures of the reviewers and the new approving official. The modified Justification for OTFAOC will also require new signatures from all of the previous signatories. Both the initial justification and the modified justification shall be included in the official contract file.

(2) 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.

(3) If a justification was processed for the same contract within six months of contract award, the cumulative contract value will be in effect. The cumulative value will supersede the estimated individual contract value for all previous justifications. If the cumulative amount requires a higher approving official’s signature, a new signature page will be generated.

6.303-90 Amendment/Modification Justification format.

(1) The Justification should clearly reflect the amendment/modification/changes by track change lines in the margin.

(2) Include the original approved Justification for OTFAOC as an attachment to the modification Justification for OTFAOC.

(3) 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.

(4) The Justification posting requirements remain unchanged from the original Justification posting requirements.

(5) Provide the track changes version, accepted changes version, and the original Justification version when routing for approval.

(6)Electronic submission is encouraged. The required format is set forth in the DITCO Contracting Templates website at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=j_a_templates.

206.304 Approval of the justification.

(S-70) In accordance with DFARS PGI 206-304, for a non-competitive follow-on to a previous award for the same supply or service supported by a J&A citing the authority at FAR 6.302-1—

(i) The justification shall include a copy of the previous justification to assist the approval authority in determining whether the planned actions to remove any barriers to competition cited on the previous justification were completed; and

(ii) The approval authority shall determine whether the planned actions were completed. If the actions were not completed, the justification for the follow-on acquisition shall be approved by the approval authority one-level above the approval authority for the previous justification (see DARS 6.304(a). If the previous justification was approved by the Senior Procurement Executive (SPE), the approval remains at the SPE level.

6.304-90 Required Signatures/Coordination for Justification for OTFAOC.

(a) Technical and requirements certification. Justifications for OTFAOC provided to DITCO contracting offices shall include the signatures of the Technical Cognizance Official and the Requirements Cognizance Official, unless the justification is for a telecommunication service submitted via a Telecommunication Service Request (TSR) or Telecommunication Service Order (TSO), (see section 6.303-1(c) for description of officials). For Justifications for OTFAOC submitted via TSR or TSO, the official’s name, organization, phone, and date will suffice.

(b) Justifications for OTFAOC must be routed to the required certification, (excluding the requirements and technical certifications) review.

(c) Concurrent Coordination. The KO shall prepare the following concurrent coordination email located at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=j_a_templates , along with the Justification for OTFAOC and supporting documentation to obtain concurrent coordination on the Justification for OTFAOC from the offices shown in Table 6-1 below.

Table 6-1 J&A Concurrent Coordination

Justification for

OTFAOC Estimated $ Value

Approving

Official

Concurrent Coordination Offices

with Email Address

Below $700K

Contracting

Officer

N/A

Over $700K to $13.5M

PACA*

Legal: “DISA Scott AFB DITCO

Mailbox Legal Office” for PL7 and PL8 and “DISA Ft Meade GC Mailbox Acquisition Law Team” for PL5 and PL6

Branch Chief

Over $13.5M to $93M

HCA**

PACA: “DISA Scott AFB DITCO Mailbox Competition Advocate Review”

Legal: “DISA Scott AFB DITCO

Mailbox Legal Office” for PL7 and PL8 and “DISA Ft Meade GC Mailbox Acquisition Law Team” for PL5 and PL6

COCO

Over $93M

SPE

PACA: “DISA Scott AFB DITCO Mailbox Competition Advocate Review”

Legal: “DISA Scott AFB DITCO

Mailbox Legal Office” for PL7 and PL8 and “DISA Ft Meade GC Mailbox Acquisition Law Team” for PL5 and PL6

COCO

* The Agency Competition Advocate, HCA, or SPE can approve Justifications for OTFAOC at this level in the absence of the Procuring Activity Competition Advocate.

** In the absence of the HCA, the SPE must approve in accordance with FAR 6.304(a)(3).

(1) The coordinating offices shall either non-concur, concur or concur with comments. If the coordinating office non-concurs or concurs with comments, the comments shall be inserted into the Justification for OTFAOC using track changes and returned to the contract specialist/contracting officer.

(2) Upon receipt of the email and comments within the coordination email and comments in document using Track Changes from the concurrent reviewers, the contract specialist/contracting officer shall first determine if any offices non-concurred with the Justification for OTFAOC. If non-concurrence is received, the contract specialist/contracting officer shall notify their immediate supervisor.

The contract specialist/contracting officer along with their immediate supervisor will contact the office that non-concurred and adjudicate as appropriate. The contract specialist/contracting

officer shall provide the track changes to the coordinator to ensure that comments are resolved appropriately.

(3) If all offices concurred or concurred with comments, then the contract specialist/contracting officer shall file the emails and the track changes in Tab 6 (IT) and Tab A05 (IQO) in EDMS and incorporate any necessary changes into the Justification for OTFAOC.

(d) Competition Advocate approval. After concurrent coordination, see Table 6-1, the contract specialist/contracting officer will send the ACA or PACA approval email with the Justification for OTFAOC and the coordination email or Track Changes comments within the document (and the Acquisition Plan, if applicable) to the Branch Chief to obtain ACA or PACA review and approval. The template is located at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=j_a_templates. The Branch Chief, over $700K to $13.5M and the COCO, above $13.5M, will forward the required document to the ACA or PACA via their mailbox “DISA Scott AFB DITCO Mailbox Competition Advocate Review” mailbox. See DARS Routing Procedures.

(e) HCA Approval. After concurrent coordination, the contract specialist/contracting officer will then send the HCA approval email for HCA approval with concurrent coordination (templates located at located at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=j_a_templates) to the HCO to obtain HCA review and approval. The Justification for OTFAOC and the coordination email or Track Changes comments within document (and the Acquisition Plan if applicable) shall also be attached to the email. When sending to the HCA for approval, the COCO will send to the HCO who will send the HCA approval email and attachments to the PSD Front Office staff, including the Director, Deputy Director and administrative staff. See DARS Routing Procedures.

(f) SPE Approval. When the approving official is the SPE, the contract specialist/contracting officer shall follow the process at 6.304-90 (c) to obtain concurrent coordination via (Internal) J&A for HCA approval in accordance with Table 6-1. After all concurrent coordination’s are obtained and track changes are adjudicated, the contracting officer/contract specialist shall prepare the Justification for OTFAOC package and email it to the HCO. The Justification for OTFAOC package shall consist of a second DISA SPE (Senior Level/External) prepared in accordance with the template at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=j_a_templates, the

(Internal J&A DISA Form 9 for HCA approval, the Justification for OTFAOC, and the coordination email and track changes within document. See DARS Routing Procedures.

(1) The COCO will send to the HCO who will forward the Justification for OTFAOC package to the ACA. After verifying that all comments received by reviewers are properly addressed, the ACA will coordinate and obtain HQs legal (GC) coordination and forward the Justification for OTFAOC package to the HCA for review/coordination. See DARS Routing Procedures.

(2) Once the HCA has coordinated on the Justification for OTFAOC package, it will be sent to the SPE for approval. Once approved, the DISA Form 9 and approved Justification for OTFAOC will be emailed to the contract specialist/contracting officer.

For Justification for OTFAOC, see DISA Contracting and Acquisition Templates, Samples, and Guides J&A Templates located at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=j_a_templates

6.90 Brand Name Justifications.

(a) Federal Acquisition Regulation (FAR) 11.105 requires all agencies to prepare justifications when brand name purchase descriptions are used.

(b) For acquisitions exceeding $25,000 that use brand name purchase descriptions, including simplified acquisitions and sole source procurements, brand name justification or documentation is required to be posted. (See 5.102(a)(6)).

(1) Justifications for acquisitions that require justification pursuant to FAR 6.303-1, including simplified acquisitions, shall be made publicly available via the Government wide Point of Entry (GPE) system at https://www.fbo.gov/ within 14 days after contract award.

(a) For contracts awarded under FAR 6.302-2, Unusual and Compelling Urgency, the justification shall be posted within 30 days after contract award

(b) For contracts awarded under FAR 6.302-1(c) Only one responsible source for brand name specifications, the approved justification shall be posted with the solicitation and redacted as necessary.

(2) For brand name orders against the FSS program, the documentation or justification required by FAR 8.405-6 shall be posted with the Request for Quotation (RFQ) to GSA’s electronic RFQ system known as e-Buy.

(3) The use of oral orders over $25,000 against the FSS that contain brand name purchase descriptions is prohibited.

(i) Contracting Officers must be sensitive when dealing with proprietary information when posting justifications. FAR 6.305 require contracting officers to carefully screen all justifications for contractor proprietary information and remove such information before making available to the public. Contracting Officers are to adhere to the exemptions on disclosure of information contained in the Freedom of Information Act (5 U.S.C. 552) and the prohibitions against disclosure in FAR 24.202 in determining the information that should be removed.

(ii) The use of non-DoD contracts is encouraged when it is the best method of procurement to meet DoD requirements. Use of this or other actions to circumvent the brand name posting requirement is barred.

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