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.

When submitting proposals for federal contracts, offerors must ensure the complete proposal is delivered to the government on time, following the delivery instructions in the solicitation. In electronic submissions, the “late is late” rule places the responsibility on the offeror to ensure that its proposal is submitted ahead of the closing deadline. Notably, a limited exception to the “late is late” rule at Federal Acquisition Regulation (FAR) 15.208(b)(1)(i) permits procuring agencies to consider an electronically submitted proposal if it is received at the initial point of entry to the government servers no later than 5:00 PM one working day before the date specified for receipt of proposals. However, contractors should be mindful that the government control exception at FAR 15.208(b)(1)(ii), applicable to physical deliveries, does not apply to electronic submissions. Thus, when solicitations require proposals to be submitted electronically via email, a web-based portal, or other electronic methods, offerors must ensure that their proposals are delivered to the procuring agency via the solicitation’s designated electronic method before the time for submissions specified in the solicitation, or are received at the initial point of entry to the government servers no later than 5:00 PM, one working day before the date specified for the submission of proposals. The government may also consider a late electronically submitted proposal under FAR 15.208(b)(1)(iii) if it is the only proposal received in response to the solicitation.

The federal government may only enter into contracts through the authorized actions of its officials possessing actual authority, with the contractor bearing the burden of proving that the government official upon whose statements and actions it relied had the necessary authority to bind the government. In certain situations, however, unauthorized commitments by government officials may be subsequently ratified. In federal contracting parlance, an unauthorized commitment refers to an agreement that is not binding on the government solely because the government official who made the commitment lacked the authority to enter into that agreement on behalf of the government. Such unauthorized commitments may later be authorized by government officials with the authority to bind the government. Thus, even when a government official does not possess the express or implied actual authority to bind the government, the government may still be bound by the contract if the official’s unauthorized commitment is subsequently ratified by an official with the necessary authority. Notably, while contract disputes adjudicative forums may determine whether ratification has taken place, they do not have the authority to ratify unauthorized commitments. Ratification may be express or implicit and may occur at the individual or institutional level.