Filing a Pre-Award Bid Protest Due to Lack of Full & Open Competition

Full and open competition is a fundamental tenet of the U.S. Federal Procurement system. The Competition in Contracting Act (CICA), guarantees full and open competition in soliciting offers and awarding federal government contracts. Federal Acquisition Regulations (FAR) Subpart 6.2 provides full and open competition after set-asides are implemented to narrow sources. In contrast, FAR Subpart 6.3 provides seven limited exceptions to full and open competition listed in subsections 6.302-1 through 6.302-7.

Issues arising from the Government’s implementation of exceptions to full and open competition listed in FAR 6.3 are most relevant to bid protests. When seeking to forego full and open competition by implicating one of the seven narrow exceptions provided in FAR 6.302-1 to 6.302-7 in circumstances that allow it, contracting officers and government officials must meet specific procedural requirements outlined in the FAR. While the exemptions listed in FAR 6.302-1 through FAR 6.302-6 require compliance with FAR 6.303, the public interest exception in FAR 6.303-7 does not – instead requiring a written determination made under FAR Subpart 1.7.

In invoking a FAR 6.302 exception, agencies must execute a Justification and Approval (J&A) or Determination and Findings (D&F) document setting forth the basis for the subject procurement being an exception to full and open competition. Contractors looking to file a pre-award protest due to a lack of full and open competition may challenge the agency’s rationale in the J&A and D&F documents as legally insufficient. Agencies need not provide full and open competition mandated by CICA under the following narrowly interpreted exceptions.

o In procurements where there is only one responsible source. Under FAR 6.302-1, agencies may avoid competing contracts on a full and open basis when the products or services required are available from only one responsible source or, for DoD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements.

o In procurements with unusual and compelling urgency. Under FAR 6.302-2, agencies need not provide full and open competition in situations in which doing so would seriously injure the Government’s interests due to circumstances requiring unusual and compelling urgency in acquisition. The period of performance of contracts awarded or modified using this exception may not exceed the time necessary to meet the unusual or compelling urgency and make a competitive award. In addition, the contract's period of performance, including all options under this exception, may only exceed one year under exceptional circumstances.

o In procurements involving industrial mobilization, specialized research capabilities, or expert services. Under FAR 6.302-3, agencies need not provide full and open competition to maintain a supply of products or services in case of a national emergency or to achieve industrial mobilization. Additionally, agencies may avoid full and open competition under this section in establishing or maintaining essential engineering research or development capabilities and in acquiring the services of an expert or neutral person for a current or anticipated litigation.

o In procurements subject to international agreements. FAR 6.302-4 permits agencies to use other than competitive procedures when the terms of an international agreement or treaty preclude full and open competition. Under this section, an exception to full and open competition applies when a foreign sovereign reimburses the implementing agency costs of acquiring goods or services and in projects funded with nonrepayable foreign military funds.

o In procurements expressly authorized or required by statute. Under FAR 6.302-5, agencies need not provide full and open competition when a statute expressly requires or allows procuring products or services from a specified source or another agency. The exception under this section also permits non-competitive procurement procedures for brand-name commercial products for authorized resale.

o In procurements where disclosure of the agency’s needs would compromise national security. Under the exception to full and open competition outlined in FAR 6.302-6, agencies are not required to utilize competitive procedures in procurements in which disclosing the agency’s needs would compromise the national security interests of the United States. However, the exception states that this authority shall not be used merely because the acquisition is classified.

o In procurements involving the public interest exception. FAR 6.302-7 provides agency heads the non-delegable authority to circumvent full and open competition with their written authorization, a D&F document, and at least a 30-day notice to Congress of the public interest determination.

Full and open competition, as guaranteed by CICA, is a cornerstone of federal procurement, ensuring the best value for taxpayer dollars. However, limited exceptions exist under FAR Subpart 6.3, allowing agencies to forego competition in specific circumstances. These exceptions involve situations with only one viable source, urgent needs, specialized requirements, international agreements, statutory mandates, national security concerns, and the rare public interest justification. While some of these exceptions are invoked and protested more often than others, understanding these exceptions and their procedural requirements is critical for contractors navigating the federal procurement process. Contractors may protest non-competitive procurements for not meeting the exceptions criteria or by alleging a lack of procedural compliance and legal insufficiency in the Government’s issuance of J&A and D&F documentation.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.