While the fundamental requirement for competition is based on law, there are different types and degrees of competition, which are also defined by law. Further, there are different points during the acquisition life cycle when competition can occur.
The foundation for competitive requirements is the Competition in Contracting Act (CICA), implemented in FAR Part 6, which establishes three standards of competition:
- Full and open competition
- Full and open competition after exclusion of sources
- Other than full and open competition
Congress, in the Federal Acquisition Reform Act, moderated the full and open competition mandate by indicating: "The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the government's requirements."
The FAR now (1) provides additional exceptions to the CICA competitive mandates and (2) allows for the implementation of techniques that can be used in negotiated procurements to provide for efficient competition.
Although CICA is still the foundation for competitive requirements, law and regulation make certain exceptions to CICA's competitive mandates and establish other competitive requirements. "Full and open competition" is not the only competitive mandate.
For example, CICA does not apply to contract modifications that are within the scope and under the terms of an existing contract--or to the exercise of priced options that were evaluated as part of the initial competition. Also, CICA does not apply to orders against existing
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contracts. The general principle is that, because the contract itself was publicized and competed, ensuing orders against such a contract need not be competed. Therefore, CICA does not apply to:
- Orders placed under single-award requirements contracts or definite-quantity contracts
- Orders placed under single-award indefinite-quantity contracts that were entered into pursuant to the provisions of CICA
- Orders placed against a single-award task order and delivery order contracts entered into pursuant to FAR Subpart 16.5
In addition, the CICA competitive standards do not apply to prospective contracts that will be awarded using simplified acquisition procedures of FAR Part 13 or other contracting procedures that are expressly authorized by statute. Law and regulation establish other competitive requirements, as stated below.
There are competitive procedures (including special ordering procedures for services) that apply to orders placed under the Federal Supply Service (FSS) multiple award schedule (MAS) program.
There are also fair-opportunity competitive procedures that apply to orders placed against multiple award, task order and delivery order contracts, such as Government-wide Agency (or Acquisition) Contracts (GWACs) or Multiple Agency (or Acquisition) Contracts (MACs).
In addition, there are different competitive standards for micro-purchases and for acquisitions conducted under the special test program for certain commercial items above the simplified acquisition threshold not exceeding $5.5 million. So, indeed, there are many degrees, types, and methods of competition authorized by law and regulation today.
In addition to the exceptions to the CICA competitive mandates, law and the FAR today include techniques that can be used in negotiated procurements to provide for efficient competition. These include, for example, the use of oral presentations, advisory multi-step process, limiting the competitive range for purposes of efficiency, and bargaining.
The point is that agencies can and should craft the degree and method of competition as part of their overall acquisition strategy.
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