Kate M. Manuel
Legislative Attorney
Competition in federal procurement contracting has become a topic of increased congressional and public interest, in part because of alleged misconduct involving noncompetitive contracts and reports that the number of noncompetitive contract actions has increased. President Obama also emphasized competition in his March 4, 2009, memorandum on government contracting. Additionally, prominent officials within the Department of Defense (DOD), which accounts for some 70% of federal procurement spending per year, have expressed their commitment to reducing DOD’s use of noncompetitive contracts.
The Competition in Contracting Act (CICA) of 1984 generally governs competition in federal procurement contracting. Any procurement contract not entered into through the use of procurement procedures expressly authorized by a particular statute is subject to CICA. CICA requires that contracts be entered into after “full and open competition through the use of competitive procedures” unless certain circumstances exist that would permit agencies to use noncompetitive procedures. Full and open competition can be obtained through the use of sealed bids, competitive proposals, or other procures defined as competitive under CICA (e.g., procurement of architectural or engineering services under the Brooks Act). Full and open competition under CICA also encompasses “full and open competition after exclusion of sources,” such as results when agencies engage in dual sourcing or set aside acquisitions for small businesses.
Any contract entered into without full and open competition is noncompetitive, but noncompetitive contracts can still be in compliance with CICA when circumstances permitting other than full and open competition exist. CICA recognizes seven such circumstances, including (1) single source for goods or services; (2) unusual and compelling urgency; (3) maintenance of the industrial base; (4) requirements of international agreements; (5) statutory authorization or acquisition of brand-name items for resale; (6) national security; and (7) contracts necessary in the public interest. CICA also allows agencies to use “special simplified procedures” when acquiring goods or services whose expected value is less than $150,000, or commercial goods or services whose expected value is less than $6.5 million ($12 million in emergencies).
Issuance of orders under task order and delivery order (TO/DO) contracts is not subject to CICA, although award of TO/DO contracts is. However, the Federal Acquisition Streamlining Act of 1994 establishes a preference for multiple-award TO/DO contracts and requires that agencies provide contractors “a fair opportunity” to compete for orders in excess of $3,000 under multipleaward contracts. The National Defense Authorization Act for FY2008 (P.L. 110-181) strengthened these requirements by limiting the use of single-award TO/DO contracts; specifying what constitutes a “fair opportunity to be considered” for orders in excess of $5.5 million under multiple-award TO/DO contracts; and granting the Government Accountability Office (GAO) temporary jurisdiction to hear protests of task and delivery orders in excess of $10 million. While this jurisdiction is set to expire in 2011 for protests involving orders issued by civilian agencies, Section 825 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (P.L. 111- 383) extended it through September 30, 2016, for protests involving orders issued by defense agencies.
Date of Report: January 10, 2011
Number of Pages: 32
Order Number: R40516
Price: $29.95
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Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Legislative Attorney
Competition in federal procurement contracting has become a topic of increased congressional and public interest, in part because of alleged misconduct involving noncompetitive contracts and reports that the number of noncompetitive contract actions has increased. President Obama also emphasized competition in his March 4, 2009, memorandum on government contracting. Additionally, prominent officials within the Department of Defense (DOD), which accounts for some 70% of federal procurement spending per year, have expressed their commitment to reducing DOD’s use of noncompetitive contracts.
The Competition in Contracting Act (CICA) of 1984 generally governs competition in federal procurement contracting. Any procurement contract not entered into through the use of procurement procedures expressly authorized by a particular statute is subject to CICA. CICA requires that contracts be entered into after “full and open competition through the use of competitive procedures” unless certain circumstances exist that would permit agencies to use noncompetitive procedures. Full and open competition can be obtained through the use of sealed bids, competitive proposals, or other procures defined as competitive under CICA (e.g., procurement of architectural or engineering services under the Brooks Act). Full and open competition under CICA also encompasses “full and open competition after exclusion of sources,” such as results when agencies engage in dual sourcing or set aside acquisitions for small businesses.
Any contract entered into without full and open competition is noncompetitive, but noncompetitive contracts can still be in compliance with CICA when circumstances permitting other than full and open competition exist. CICA recognizes seven such circumstances, including (1) single source for goods or services; (2) unusual and compelling urgency; (3) maintenance of the industrial base; (4) requirements of international agreements; (5) statutory authorization or acquisition of brand-name items for resale; (6) national security; and (7) contracts necessary in the public interest. CICA also allows agencies to use “special simplified procedures” when acquiring goods or services whose expected value is less than $150,000, or commercial goods or services whose expected value is less than $6.5 million ($12 million in emergencies).
Issuance of orders under task order and delivery order (TO/DO) contracts is not subject to CICA, although award of TO/DO contracts is. However, the Federal Acquisition Streamlining Act of 1994 establishes a preference for multiple-award TO/DO contracts and requires that agencies provide contractors “a fair opportunity” to compete for orders in excess of $3,000 under multipleaward contracts. The National Defense Authorization Act for FY2008 (P.L. 110-181) strengthened these requirements by limiting the use of single-award TO/DO contracts; specifying what constitutes a “fair opportunity to be considered” for orders in excess of $5.5 million under multiple-award TO/DO contracts; and granting the Government Accountability Office (GAO) temporary jurisdiction to hear protests of task and delivery orders in excess of $10 million. While this jurisdiction is set to expire in 2011 for protests involving orders issued by civilian agencies, Section 825 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (P.L. 111- 383) extended it through September 30, 2016, for protests involving orders issued by defense agencies.
Date of Report: January 10, 2011
Number of Pages: 32
Order Number: R40516
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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