Full and open competition is a fundamental tenet of the U.S. Federal Procurement system. The Competition in Contracting Act (CICA) of 1984 guarantees full and open competition to contractors competing for federal government contracts. Federal Acquisition Regulation (FAR) part 6 and its various subparts implement CICA. Notably, FAR subpart 6.2 provides for full and open competition after set-asides are implemented to narrow sources. Meanwhile, 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 application of exceptions to full and open competition listed in FAR 6.3 form the basis for bid protests. When avoiding full and open competition by implicating one of the seven narrow exceptions provided in FAR 6.302, contracting officers (COs) and government officials must meet specifically enumerated procedural requirements. For instance, when invoking an exception listed in FAR 6.302, agencies must execute a Justification and Approval (J&A) or Determination and Findings (D&F) document setting forth the basis for the procurement not being subject 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.

The Competition in Contracting Act (CICA) governs competition in federal contracting and is designed to guarantee full and open competition amongst competing offerors. Although the federal government generally prefers full and open competition, certain contracts are awarded on a sole-source basis without going through the standard competitive process. Such sole-source contracts may be of particular interest to specialized or small business contractors. The Federal Acquisition Regulation (FAR) provides seven limited exceptions to full and open competition listed in FAR subsections 6.302-1 through 6.302-7. Even if one of these exceptions is applicable, the FAR requires contracting officers to solicit offers from as many potential sources as practicable under the circumstances.

The sole-source exception to full and open competition is provided in FAR 6.302-1 and applies in situations where only one responsible source exists to satisfy agency requirements. Sole-source decisions must be supported with written justifications and approvals. Notably, the government may not issue sole-source awards due to a lack of advance planning or concerns relating to the expiration of appropriated funds. Pursuant to FAR 5.201, contracting officers are also required to publish notifications of sole-source solicitations, giving prospective contractors interested in such procurements an opportunity to respond. FAR 6.302-1 outlines three specific scenarios in which contracting officers are permitted to conduct procurements on a sole-source basis.

Acquisition planning on U.S. federal contracts requires the contracting activity to coordinate and integrate the efforts of all personnel responsible for the acquisition via a comprehensive plan that fulfills the government’s requirements in a timely manner and at reasonable cost. The Competition in Contracting Act (CICA) of 1984, implemented by Federal Acquisition Regulation (FAR) Part 6, mandates full and open competition in federal procurement. Consequently, while there are limited exceptions enumerated in FAR § 6.3, federal agencies must generally use competitive procedures in procuring products and services. Furthermore, federal agencies are expressly prohibited from entering contracts for property or services by utilizing non-competitive procedures when they have failed to properly plan the procurement in advance.

Contractors looking to challenge the Government’s use of non-competitive procedures in such improperly planned procurements must be prepared to demonstrate that the agency’s decision was unreasonable under the particular circumstances of that procurement. In 2014, the Bureau of Indian Affairs (BIA), an agency under the Department of Interior (DOI), was involved in a procurement contract for technology services. The procurement at issue was a Buy Indian Set-Aside conducted under the Buy Indian Act of 1910, and the eventual contract was awarded to an eligible non-incumbent contractor. However, a week before the conclusion of the predecessor contract, the incumbent contractor timely protested the award at the Government Accountability Office (GAO). In response, the BIA informed the GAO that it intended to take corrective action and requested that the GAO dismiss the incumbent’s protest.

Protests alleging the government’s violation of the Competition in Contracting Act’s (CICA) full and open competition mandate may be styled in various forms, with allegations of improper competition restrictions varying depending on the specific circumstances of the procurement. Despite this, to be successful, the protestor’s allegations must always be factually and legally sufficient. Protestors may face difficulties providing a sound factual or legal basis for their protests when challenging the classified status of a procurement, especially when they do not have access to the solicitation. Bid protest adjudicative forums, such as the Government Accountability Office (GAO), will typically dismiss protests lacking such support by citing speculation, factual inaccuracies, or flawed legal assumptions. Notably, when rejecting such protests, the GAO does not require the government to submit an agency report, further disincentivizing protestors from filing such protests.

In B-422653, a decision issued on August 6, 2024, the GAO dismissed such a bid protest for failing to state a valid legal or factual basis. The protest challenged the “classified” status of a request for proposal (RFP) issued by the Department of Energy (DOE) for the procurement of intelligence and counterintelligence services. The protestor, a service-disabled veteran-owned small business (SDVOSB), essentially asserted that the DOE’s issuance of a classified RFP for the subject procurement made it unduly restrictive of competition. The protestor discovered the existence of the classified solicitation when it came across the name of its RFP on a National Reconnaissance Office (NRO) website. Since the RFP was only available by accessing the NRO’s Joint Worldwide Intelligence Communication System (JWICS), the protestor emailed the NRO to request an unclassified version of the RFP. Since JWICS is a secure intranet system that hosts classified information, accessing JWICS requires a sensitive compartmented information facility (SCIF), which the protestor did not possess. When the agency refused to provide the sanitized version of the RFP, the protestor filed a protest with the GAO, alleging a lack of full and open competition in violation of CICA.