AC 09-11
DARS Part 6 Competition Requirements
PART 6 -- COMPETITION REQUIREMENTS
TABLE OF CONTENTS
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
6.302-4 International Agreement
6.302-7 Public Interest
6.303-1 Requirements
6.303-2 Content
6.303-90 Format & Amended Justification
6.304 Approval Of The Justification
6.304-90 Required Signatures/Coordinations for Justification for OTFAOC
6.90 Brand Name Justifications
PART 6 -- COMPETITION 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:
Dollar Threshold Approval Authority
$0 - $78.5 M Head of Contracting Activity (HCA)
Over $78.5 M Senior Procurement Executive (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
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.
(c)(1) Follow the format under FAR 1.7 for the written determination. Approval authority for D&F follows:
● Secretary of Defense (see DFARS Subpart 206.302-7)
● Required coordination: Legal counsel, PL2, PACA/ACA, HCA, and SPE
● 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.
(b) Requirement certification shall be accomplished by the head of the requirements office (or the acting head of the requirement office in their absence). Technical certification shall be one level below the individual responsible for requirements certification.
(S-90) The contracting officer shall provide a copy of the approved Justification for Other Than Full And Open Competition (OTFAOC) to the HCA, for submission to the OUSD (AT&L/DP), Foreign Contracting Office whenever the Justification for OTFAOC cites FAR Subpart 6.302-3(a)(2)(i) or 6.302-7 as the authority for not providing for full and open competition in procurements subject to the Trade Agreements Act. The OUSD (AT&L/DP) office listed above shall provide copies to the Office of the United States Trade Representative as required by FAR Subpart 6.303-1(d). The Foreign Contracting Office web address is http://www.acq.osd.mil/dp/fc/ .
(S-91) 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-92) 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.
(S-93) PL2 review/coordination is required on all Justifications for OTFAOC over $11.5M and Legal Counsel review/coordination is required on all Justifications for OTFAOC over $550K prior to approval by the approving authority as determined by DARS 6.304. KO or HCO can request legal review for $550K or below for possible contentious issues. Procedures for signatures and approvals are located in DARS 6.304-90.
(a) Each Justification for OTFAOC shall also include:
(S-90) The delivery schedule and/or the period of performance (inclusive of all option periods), and the estimated life-cycle costs of the procurement in the “Description of Supplies/Services.”
(S-91) Whether or not a written Acquisition Plan (AP) is required, and if so, attach a copy of the approved AP to the Justification for OTFAOC.
(a) All items shall be included in the sequence set forth in FAR Subpart 6.303-2 and DARS Subpart 6.303-90 (follows). All documents must be submitted for review in Word. Those items determined to be not applicable shall state “not applicable” with a brief supporting rationale unless the reason is self-evident.
(b) Certification, review, and approval signatures shall be provided on a separate page at the end of the text of the Justification for OTFAOC. This is intended to facilitate making changes to the Justification for OTFAOC without impacting the signature page.
(c) Amended Justifications are required if prior to award of the contract, the approved J&A contents changed in the following areas:
(1) An increase in the dollar value of the prospective contract beyond the authority of the previous approving official;
(2) A change in the competitive strategy that further reduces competition; or
(3) A change in requirements that affects the basis for the justification.
(d) An amended Justification for OTFAOC is required with a new signature page to include approval via the original coordination chain. The Justification should clearly reflect the amendments/changes. Include the original approved Justification for OTFAOC as an attachment to the amended Justification for OTFAOC.
(e) Identify changes by change lines in the margin.
(f) The amended Justification approval thresholds remain the same as with the original Justifications thresholds.
(g) The title of the Justification should read: “Amended Justification” and reference the original Justifications number.
(h) The Justification posting requirements remain unchanged from the original Justification posting requirements.
(i) When routing the amended Justification for approval, include a copy of the approved original J&A.
(j) Electronic submission is encouraged. The required format is set forth in Appendix G.
6.304 Approval of the Justification.
(a) The approving official for each Justification for OTFAOC shall be determined based on the table provided below:
Estimated Value of Justification Approving Official
$550K and below Contracting Officer
Over $550K to $11.5M Procuring Activity Competition Advocate *
Over $11.5M to $78.5M HCA (or Acting HCA in the absence of HCA)
Over $78.5M SPE
* The Agency Competition Advocate, HCA, or SPE can approve Justifications for OTFAOC at this level in the absence of the Procuring Activity Competition Advocate.
(S-90) If the dollar value of the contract at the time of award exceeds the estimated value of the Justification for OTFAOC but within the approval level of the original approving official, amend the justification to reflect the actual contract value and coordinate with the signatories to ensure that they concur with the changes. However, if 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 new Justification for OTFAOC and obtain the signatures of the reviewers and the new approving official. The new Justification for OTFAOC will also require new signatures from all of the previous signatories, which are inclusive of the DISA Form 9.
6.304-90 Required Signatures/Coordinations 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(b) for description of officials). For Justifications for OTFAOC submitted via TSR or TSO, the official’s name, organization, phone, and date will suffice.
(b) Contracting officer certification.
(c) Policy Compliance. All justifications for OTFAOC over $11.5M must have the concurrence of PL2 policy compliance prior to routing to the final approving authority. Request for PL2 review shall be emailed with DISA Form 9 to the “PL22 Policy Compliance Review Requests” outlook mailbox.
(d) Legal Counsel. All justifications for OTFAOC over $550K must have concurrence of legal counsel prior to routing to the final approving authority. Request for Legal Counsel review shall be emailed with the DISA Form 9 to the “DITCO Legal Office” outlook mailbox for DITCO Scott and to the “Acquisition Law Team” outlook mailbox for the NCR.
(e) Procuring Activity Competition Advocate (PACA). All justifications for OTFAOC over $550K up to $11.5M must be routed to the PACA for review and approval. Request for PACA review and approval shall be emailed with the DISA Form 9 to “DITCO Competition Advocated Review” outlook mailbox.
(f) Justifications for OTFAOC must be routed to the required certification, review, and approval officials using a DISA Form 9. Accordingly, the contract specialist/contracting officer shall prepare DISA Form 9 in accordance with the sample provided as Appendix G. This sample DISA Form 9 is based on a Justification for OTFAOC requiring approval by the SPE. The routing of a specific DISA Form 9 is to be based on the required approving official.
(g) Required coordination on DISA Form 9
● Contracting officer (coordinates on Justifications for OTFAOC over $550K; approval authority for Justifications for OTFAOC from $100K to $550K)
● PL2 Policy Compliance (coordinates on all Justifications for OTFAOC over $11.5M)
● Legal Counsel (coordinates on all Justifications for OTFAOC over $550K )
● Procuring Activity Competition Advocate (approval authority for Justifications for OTFAOC over $550K but not exceeding $11.5M and coordination above $11.5M)
● Agency Competition Advocate (coordinates on Justifications for OTFAOC over $11.5M)
● HCA (coordinates on Justifications for OTFAOC over $78.5M; approval authority for Justifications for OTFAOC over $11.5M but not exceeding $78.5M))
● SPE (approval authority for Justifications for OTFAOC over $78.5M)
For Sample Form 9, Justification for OTFAOC, see Appendix G
6.90 Brand Name Justifications.
(a) Federal Acquisition Regulation (FAR) 11.105 requires all agencies to prepare justifications when brand name specifications are used. Solicitations should limit the use of brand name specifications; contract specifications should emphasize the necessary physical, functional, and performance characteristics of a product, not brand names.
(b) For acquisitions exceeding $25,000 that use brand name specifications, including simplified acquisitions and sole source procurements agencies are required to post the brand name justification or documentation to:
1) For non-FSS acquisitions, including simplified acquisitions, posting to the Federal Business Opportunities website, the Government wide Point of Entry (GPE) system at www.fedbizopps.gov with the solicitation; or
2) For brand name orders against the FSS program, the documentation or justification required by FAR 8.405-6 are to be posted with the Request For Quotation (RFQ).
3) The rule also restricts the use of oral orders over $25,000 against the FSS that contain brand specifications.
i) Contracting officers must be sensitive when dealing with proprietary information when posting justifications. FAR 6.305 requires 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.
6.91 Set-Asides For Local Firms During A Major Disaster Or Emergency.
(a) The use of the Act is based on a declaration made by the President of the United States under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5150).
(b) Applies to major disaster(s) or emergency(ies) as defined under the Stafford Act, which includes natural catastrophes (fire, flood, or explosion [regardless of cause]) or any other occasion or instance for which the President determines that federal assistance is needed to supplement state and local efforts and capabilities.
(c) Any reference to a disaster, major disaster, or emergency generally means a presidentially declared major disaster or emergency under the Stafford Act. In the expenditure of Federal funds for debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities which may be carried out by contract or agreement with private organizations, firms, or individuals, preference shall be given, to the extent feasible and practicable, to those organizations, firms, and individuals residing or doing business primarily in the area affected by such disaster or emergency.