The Competition in Contracting Act (CICA) requires full and open competition in federal procurement. However, under certain circumstances, exceptions to full and open competition may apply, and the procuring agency may conduct the procurement on a sole-source basis or by otherwise limiting competition. The Federal Acquisition Regulation (FAR) 6.302 provides seven limited exceptions to full and open competition. Among those exceptions, FAR 6.302-2 permits using other than full and open competition in procurements with unusual and compelling urgency. As one might expect, the exception is construed narrowly, permitting the agency’s use of other than full and open competition only in situations when the government would be seriously injured unless it limits its sources. Even when foregoing full and open competition by citing an unusual and compelling urgency, the procuring agency must still request offers from as many potential sources as practicable under the circumstances. Additionally, when making contract awards under this authority, agencies must support their decision with justifications and approvals (J&As). In situations where the preparation of a J&A before the award would cause an undue delay to the acquisition, agencies may provide the J&As after the contract award.
For any contract exceeding the simplified acquisition threshold that is awarded or modified using this exception, the total performance period may not exceed the time necessary to meet the unusual and compelling requirements of the work to be performed. Stated another way, such contracts may not be awarded for longer than the period required for the agency to award a new contract using competitive procedures. Additionally, the total period of performance may not exceed one year unless the head of the procuring agency determines that exceptional circumstances apply. In such cases, the agency’s determination of exceptional circumstances is in addition to the justification provided in the J&A and must be documented in the contract file. All subsequent modifications extending the performance period beyond one year using the same unusual and compelling urgency authority require a separate determination. In addition to the limitations on the period of performance, the quantity of products or services obtained under this authority must also be limited to the amounts strictly necessary to meet agency requirements until such time when an award can be made pursuant to full and open competition.
The urgent and compelling urgency exception may be used when there is insufficient time to conduct a full and open competition to meet critical requirements. In B-261431, the Government Accountability Office (GAO) found the sole source award to the original equipment manufacturer (OEM) for a limited quantity of antennas for the F-15 aircraft was reasonable when there was a critical inventory shortage, and the Defense Logistics Agency (DLA) did not have a technical data package available to permit full and open competition. In that case, the DLA ordered 200 antennas on an urgent basis to replenish the critically low inventory of the antennas. The GAO noted that the procuring agency had the authority to limit the procurement to the OEM because it reasonably believed it was the only firm that could perform properly within the available time. In making its determination, the GAO pointed to the record, which demonstrated that the OEM was the only approved source that could qualify for the award. The GAO accepted the need to avoid delay in replenishing the inventory for a critical item as an appropriate basis for making an urgent and compelling non-competitive award and dismissed the protest.
The unusual and compelling urgency exception to the full and open requirements of CICA is applicable when a delay in the contract award would result in serious injury to the government. It is worth noting that the serious injury requirement FAR 6.302-2(b)(2) includes potentially serious financial injuries that the government may suffer if a full and open competition is conducted. However, contractors should be mindful that the unusual and compelling urgency exception is narrowly construed, and the procuring agency may not claim urgency on account of its lack of advanced planning. Similarly, the potential expiration of procurement funds at the end of a fiscal year is not a proper justification for invoking the urgency exception. Furthermore, the FAR places specific procedural limitations on using the urgency exception, including requiring procuring agencies to obtain offers from as many potential sources as practicable under the circumstances. The unusual and compelling urgency exception includes a necessary limitation that requires agencies to take reasonable steps to accurately determine and describe their needs. Contractors may challenge the agencies’ failure to comply with this requirement as a violation of CICA’s mandate for full and open competition.
This Federal Procurement Insight is provided as 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.