Competition in Federal Contracting: Legal Overview
Released: 2015-01-21T00:00:00

The term "procurement" describes the process whereby government agencies acquire supplies or services for their own "direct benefit or use." Competition in government procurement means that the government determines from whom to buy supplies or services—and thus with whom to contract—by "solicit[ing] or entertain[ing] offers from two or more competitors, compar[ing] them, and accept[ing] one based on its relative value."

Competition in federal procurement contracting has long been of interest to Congress and the executive branch, in part because of the belief that increased competition among potential vendors results in lower prices for the government. President Obama issued a memorandum calling for increased competition in federal contracting on March 4, 2009, shortly after taking office, and his Administration has sought to reduce the number of "noncompetitive" contracts by various means, including by issuing guidance on "Increasing Competition and Structuring Contracts for Best Results" in October 2009. Subsequently, in 2012, the Department of Defense (DOD), which accounts for 60% to 70% of federal procurement spending per year, amended its regulations to require that contracting officers re-solicit agency requirements if a solicitation allowed fewer than 30 days for the receipt of proposals and resulted in only one bid or offer. Most recently, in 2014, DOD issued guidance that calls for contracting officers to take additional steps, including issuing requests for information (RFIs) prior to soliciting sole-source acquisitions.

Recent Congresses have also sought to promote competition in federal contracting by enacting legislation that

limits the use of appropriated funds to procure certain items until the procuring agency certifies to Congress that its acquisition strategy meets certain requirements pertaining to competition; requires agencies to establish goals for competition for certain contracts, plans for competing certain acquisitions, processes for measuring competition for certain contracts, and/or annual reviews of certain contracts; precludes defense agencies from awarding noncompetitive contracts based on unsolicited research proposals; requires DOD to take further steps to foster competition in the procurement of "major defense acquisition programs"; and requires that certain recipients of federal grants or financial assistance obtain competition when awarding contracts.

This report describes the competition requirements currently governing the procurement activities of federal agencies. Specifically, it addresses (1) what contracts are subject to competition requirements; (2) what constitutes full and open competition for government contracts; (3) what is meant by "full and open competition after exclusion of sources"; (4) the circumstances permitting agencies to award contracts on the basis of other than full and open competition; (5) the "special simplified procedures for small purchases"; and (6) the competition requirements for task order and delivery order (TO/DO) contracts. The report does not address so-called "public-private competitions" or "competitive sourcing targets" under the Federal Activities Inventory Reform (FAIR) Act or Office of Management and Budget (OMB) Circular A-76. Public-private competitions are conducted to determine whether government employees or private contractors will perform functions formerly performed by the government that have been identified as commercial and suitable for contracting out.

Background

The federal government has promoted competition between offerors seeking to meet its needs since at least 1781, when the Superintendent of Finance advertised in a local newspaper for proposals from potential suppliers of food for federal employees in Philadelphia. Then, as now, the government encouraged competition because of its reported benefits to the government and the general public. Among other things, an argument can be made that, when multiple offerors compete for the government's business, the government can acquire higher quality goods and services at lower prices than it would acquire if it awarded contracts without competition. An argument can also be made that competition helps to curb fraud because it allows for periodic changes in the vendors from which the government acquires goods and services, thereby limiting opportunities for government employees to enter into collusive agreements with their regular suppliers. Competition can similarly be said to promote accountability by ensuring that contracts are entered into on their merits and not upon any other basis (e.g., familial or other relationships between contracting officers and contractors). Further, because the government is said to acquire the highest quality goods and services at the lowest prices, competition can be said to help government officials reassure citizens that their tax dollars are not spent wastefully. Finally, an argument can be made that citizens are less likely to perceive contracts as being awarded because of favoritism when there is competition.

Competition is not considered an unmitigated good by all, however, as is noted by those who suggest that not all procurements need to be competed to the maximum extent possible. An argument can be made that agency operations can be delayed by the time it takes to solicit and evaluate offers from eligible suppliers. These delays are reportedly especially harmful when agencies are contracting for goods or services for disaster responses or military operations. Moreover, because there are costs involved in agencies' soliciting and evaluating offers, an argument can also be made that there comes a point when the government's costs in competing contracts are greater than the savings it realizes from the lower price, higher quality goods it may obtain through competition. It was, in part, for this reason that the drafters of the Competition in Contracting Act (CICA) of 1984 opted to require full and open competition rather than maximum competition. They reportedly considered language calling for "maximum competition," but rejected it, in part, because "there is a point of diminishing return" with competition. Competition could also be said to increase the risk that government contractors will be unable to perform by allowing new contractors—who may not have experience meeting agencies' needs or complying with the accounting and paperwork requirements imposed on federal contractors—to win government contracts. Agencies reportedly would prefer to deal with their incumbent contractors, assuming these contractors are competent, because they represent "known quantities" for the agencies.

As the accompanying chronology illustrates, the federal government's requirements for competition in contracting have periodically shifted as the government has variously sought to realize the benefits of competition or further other goals—such as the protection of national security in times of war or efficiency in agency operations—in its procurement activities. Armed conflicts, in particular, typically lead to relaxation of competition requirements, but often result in alleged abuses (e.g., "war profiteering" by contractors and waste of money on overpriced goods and services). These abuses, in turn, can lead to the enactment of competition requirements.

The current interest in competition in contracting is perhaps to be expected given developments in the 25 years since the enactment of CICA. CICA itself requires that agencies "obtain full and open competition through the use of competitive procedures" in all procurements not involving the use of procedures expressly authorized by a particular statute. CICA remains the foundation for the current competition requirements, but has been amended or supplemented by later laws that place efficiency in agency operations or other public benefits on par with competition, or expand agencies' ability to use "special simplified methods" for contracting for commercial items. The Federal Acquisition Streamlining Act (FASA) of 1994, for example, establishes a "preference" for the procurement of commercial items, which generally may be acquired using simplified methods, as opposed to full and open competition. FASA was followed by the Federal Acquisition Reform Act (FARA) of 1996, which placed increasing emphasis on efficiency in agency operations by requiring that the Federal Acquisition Regulation (FAR) be amended to "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." FARA and the Services Acquisition Reform Act (SARA) of 2003 also relaxed the rules governing agencies' acquisition of commercial items. More recently, the Emergency Economic Stabilization Act (EESA) of 2008 authorized the Secretary of the Treasury to use other than full and open competition upon determining "that urgent and compelling circumstances make compliance with [the competition] provisions contrary to the public interest." This provision was designed to ensure that competition requirements, among other things, did not slow the Treasury Department's contracting for services that would help stabilize U.S. financial markets and the banking system.

Contracts Not Subject to CICA

Not all contracts—or even all procurement contracts—that agencies lawfully enter into are the result of full and open competition under CICA or an "exception" to it. Non-procurement contracts, such as those resulting from agencies' use of other transaction authority (OTA) or similar authorities, are not subject to CICA because they are not procurement contracts, and CICA only applies to "procurement procedures." OTA refers to agencies' authority to enter into an "other transaction," or "a form of contract ... that is not a procurement contract, grant, or cooperative agreement." Only certain agencies, most notably the Departments of Defense, Transportation, Homeland Security, Health and Human Services, and Energy have, at various times, been granted OTA so that they can contract for research and development (R&D) or prototypes of promising new technologies without being subject to the requirements as to full and open competition. Contracting for R&D or prototypes can be difficult because the uncertainties inherent in the development of new technologies make it hard to establish contract prices. Additionally, the companies best able to perform such contracts are often not regular government vendors and may be unwilling or unable to comply with the government's procurement regulations. OTA helps to avoid these difficulties.

Also not subject to the requirement for full and open competition under CICA are those procurement contracts entered into through the "use of procurement procedures ... expressly authorized by statute." There are numerous statutory provisions that allow agencies to use specific procurement procedures in certain circumstances, or otherwise allow them to limit competition for procurement contracts. One provision of the Consolidated Appropriations Act for FY2005, for example, allowed the U.S. Agency for International Development (USAID) to place task orders with small businesses or small disadvantaged businesses (SDBs) in lieu of providing a "fair opportunity" for all eligible firms to compete. Other provisions of this law allowed agencies to limit competition to certain groups or entities, notwithstanding CICA, or to enter into contracts without competition. For example, the Bureau of Land Management is expressly authorized to limit competition for contracts for hazardous fuel reduction activities to specified groups or entities, while the National Gallery of Art may contract for restoration and repair without competition.

Contracts Subject to CICA

Any procurement contract not entered into through the use of procedures expressly authorized by a particular statute, such as those described above, is subject to CICA. CICA requires that these 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" Defined

Under CICA, "full and open competition" results when "all responsible sources are permitted to submit sealed bids or competitive proposals." A "responsible source" is a prospective contractor who (1) has adequate financial resources to perform the contract, or the ability to acquire such resources; (2) is able to comply with the required or proposed delivery or performance schedule; (3) has a satisfactory performance record; (4) has a satisfactory record of integrity and business ethics; (5) has the necessary organization, experience, technical skills, and accounting and operational controls, or the ability to obtain them; (6) has the necessary production, construction, and technical equipment and facilities, or the ability to obtain them; and (7) is otherwise qualified and eligible to receive an award under applicable laws and regulations.

Competitive Procedures Resulting in Full and Open Competition

Agencies meet CICA's requirement for full and open competition by using one of the "competitive procedures" recognized under the act. CICA recognizes the following procedures as competitive:

1. Sealed bids . Sealed bids are offers submitted in response to invitations for bids (IFBs); opened publicly at a specified time and place; and evaluated without discussions with the bidders, with the contract being awarded to the lowest-priced responsible bidder. CICA requires that agencies solicit sealed bids if (1) time permits their solicitation, submission, and evaluation; (2) the award will be made on the basis of price and other price-related factors; (3) it is not necessary to conduct discussions with bidders about their bids; and (4) there is a reasonable expectation of receiving more than one sealed bid. 2. Competitive Proposals . Agencies are to use competitive proposals whenever "sealed bids are not appropriate" in light of the previous four factors. Competitive proposals are offers received in response to requests for proposals (RFPs). RFPs generally provide for discussion or negotiation between the government and at least those offerors within the "competitive range," with the contract being awarded to the responsible offeror whose proposal represents the "best value" for the government. 3. Combinations of competitive procedures . These include procedures like two-step sealed bidding. With two-step sealed bidding, the first step consists of the submission, evaluation and, potentially, discussion of technical proposals from each bidder with no pricing involved. In the second step, sealed bids are submitted only by those who submitted technically acceptable proposals during the first step. 4. Procurement of architectural or engineering services conducted in accordance with the requirements of the Brooks Act (40 U.S.C. §§541-559). The Brooks Act allows the selection of architects and engineers based upon their qualifications without consideration of the proposed price for the work. Awards must be made to the highest-ranked offeror unless a reasonable price cannot be agreed upon. 5. Competitive selection of basic research proposals resulting from a general solicitation and peer or scientific review of proposals, or from a solicitation conducted pursuant to 15 U.S.C. Section 638 (research and development contracts for small businesses). 6. Procedures established by the General Services Administration (GSA) for its multiple awards schedule program . Such procedures are recognized as competitive so long as participation in the GSA program is open to all responsible sources, and orders and contracts under GSA's procedures result in the lowest overall cost alternative to meet the government's needs. 7. Procurements conducted pursuant to 15 U.S.C. Section 644 . Section 644 addresses set-asides for small businesses, among other things. Such set-asides are competitive so long as all responsible businesses entitled to submit offers under Section 644 are permitted to compete.

The sixth of these provisions is particularly significant because it allows agencies to use the so-called "Federal Supply Schedules" (FSS) or "GSA schedules." These schedules enable agencies to take advantage of a "simplified process" for obtaining commercial supplies and services by issuing task or delivery orders directly to contractors listed on the schedules without issuing IFBs or RFPs. The seventh provision is also significant because it authorizes "set-asides" for small businesses, which constitute "full and open competition after exclusion of sources" and are discussed below.

"Full and Open Competition After Exclusion of Sources"

Some competitions in which only certain contractors can compete nonetheless meet CICA's requirement for full and open competition because CICA provides for "full and open competition after exclusion of sources." "Full and open competition after exclusion of sources" occurs in two contexts: agencies' "dual sourcing" initiatives and set-asides for small businesses.

The defense agencies, in particular, have a lengthy history of dual sourcing, or distributing their contracts for particular goods or services among multiple manufacturers or suppliers in order to ensure that their operations are not vulnerable to the fortunes of individual companies. CICA recognizes this history, and the agency concerns underlying it, by stating that agencies:

may provide for the procurement of property or services covered by this section using competitive procedures but excluding a particular source in order to establish or maintain any alternative source or sources of supply for that property or service if the agency head determines that to do so—

(A) would increase or maintain competition and would likely result in reduced overall costs for such procurement, or for any anticipated procurement, of such property and services;

(B) would be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in the case of a national emergency or industrial mobilization;

(C) would be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center;

(D) would ensure the continuous availability of a reliable source of supply of such property or service;

(E) would satisfy projected needs for such property or service determined on the basis of a history of high demand for the property or service; or

(F) in the case of medical supplies, safety supplies, or emergency supplies, would satisfy a critical need for such supplies.

Recently, Congress has sometimes mandated dual sourcing, especially by the Department of Defense (DOD), in order to ensure competition in future procurements.

CICA similarly recognizes the history of setting aside acquisitions for competitions limited to small businesses in general, or to specific subcategories of small businesses, by allowing "procurement of property or services ... using competitive procedures, but excluding other than small business concerns." The Small Business Act provides for such set-asides for small businesses generally; women-owned, service-disabled veteran-owned and Historically Underutilized Business Zone (HUBZone) small businesses; and small businesses owned and controlled by socially and economically disadvantaged individuals that are participating in the Business Development Program under Section 8(a) of the act. Set-asides can also be made for local firms during major disasters or emergencies under the authority of the Stafford Act (42 U.S.C. §5150).

Circumstances Permitting Other Than Full and Open Competition

By definition, under CICA, any procurement contract entered into without full and open competition is noncompetitive. This is not to say, however, that every procurement contract entered into without using competitive procedures is in violation of CICA. To the contrary, CICA recognizes seven circumstances wherein agencies can use other than competitive procedures without violating the act's competition requirements. Such circumstances involve the following:

1. Single source for goods or services : The property or services needed by the agency are available from only one responsible source and no other type of property or service satisfies the agency's needs. 2. Unusual and compelling circumstances : The agency's need for property or services is of such an unusual and compelling urgency that the government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. 3. Maintenance of the industrial base : It is necessary to award the contract to a particular source or sources in order (1) to maintain a facility, producer, manufacturer, or other supplier so that the maintained entity will be available to furnish property or services in the case of a national emergency or to achieve industrial mobilization; or (2) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center. 4. Requirements of international agreements : The terms of an international agreement or treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing a federal agency for the cost of procuring property or services, effectively require the use of procedures other than competitive procedures. 5. Statutory authorization or acquisition of brand-name items for resale : A statute expressly authorizes or requires that the procurement be made through another executive agency or from a specified source, or the agency's need is for brand-name commercial items for authorized resale. 6. National security : Disclosure of the agency's procurement needs would compromise national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. 7. Necessary in the public interest : The head of an executive agency determines that it is necessary in the public interest to use other than competitive procedures in the procurement and notifies Congress in writing of this determination no less than 30 days before the award of the contract.

These "exceptions" cover common situations where competition is not possible, or where the government values other objectives (e.g., maintaining the industrial base) more highly than full and open competition. The first exception, for example, allows what are commonly known as "sole-source awards." By law, sole-source awards can be used only when there is a single responsible source and no other supplies or services will satisfy agency requirements. Although sole-source awards have been reported to be the subject of much concern recently, especially among those worried about the reported increase in their use since FY2000, they can help agencies to efficiently meet their needs for goods and services when circumstances suggest there is little or no possibility of competition. The first exception also encompasses agencies' acceptance of unsolicited research proposals, as well as follow-on contracts for continued development or production of major systems. The second exception covers many so-called contingency contracting situations, when the government needs to enter into contracts quickly in response to natural disasters or combat operations. The third exception addresses situations akin to dual sourcing, when the government attempts to manage the industrial base by ensuring that companies receive enough orders to stay in business. The fifth exception includes purchases that agencies are required to make through Federal Prison Industries or qualified nonprofit agencies for the blind or "severely disabled."

Despite covering many common situations, CICA's exceptions do not grant agencies unfettered discretion to contract for goods and services without using competitive procedures. This is because other provisions of CICA impose several conditions on agencies' ability to rely on the exceptions permitting other than full and open competition. What is arguably the most important of these conditions—the requirement that agency contracting officials justify and obtain approval for their use of other than competitive procedures—is discussed in more detail in the following section. Other conditions (1) specify that poor agency planning cannot give rise to unusual and compelling urgency; (2) bar agencies from obtaining through other agencies goods or services that were not obtained in compliance with CICA; (3) prohibit agency heads from delegating their authority to determine that use of other than competitive procedures is necessary in the public interest; and (4) require agencies to "request offers from as many potential sources as is practicable under the circumstances" whenever relying on the exceptions for unusual and compelling urgency or national security. The first condition is especially important because it precludes agencies from waiting until near the end of the fiscal year to procure items and then claiming unusual and compelling urgency because annual appropriations are about to expire.

Justifications & Approvals

CICA's requirement that contracting officers provide justifications of, and obtain approvals for, all noncompetitive procurements conducted in reliance on a CICA exception further checks agencies' discretion in using noncompetitive procedures. Agencies can rely on the CICA exceptions only when contracting officers justify the use of other than competitive procedures in writing and certify the accuracy and completeness of their justifications. These justifications must then be approved by agency officials of a higher rank than the contracting officer, with the identity of the approving official determined by the expected value of the contract, as Table 1 illustrates.

Written justifications and approvals must normally precede the contract award. They may follow the award only when the agency relies on the exception for unusual and compelling urgency, and, even then, the agency must have determined the existence of unusual and compelling urgency prior to making the award. Justifications can be omitted only when an agency (1) relies upon an agency head's determination that it is necessary, in the public interest, to use other than competitive procedures; (2) conducts a procurement under the authority of the Javits-Wagner-O'Day Act, or makes competitive or certain noncompetitive awards under the authority of Section 8(a) of the Small Business Act; or (3) purchases brand-name items for authorized resale. The omission of justifications when the agency relies upon the agency head's determination that it is necessary, in the public interest, to use other than competitive procedures can be explained, in part, by the requirement that agency heads must themselves document the existence of such circumstances in writing and notify Congress. Purchase of brand-name items for authorized resale involves purchases for use in commissaries or similar facilities, where the purchased articles are "desired or preferred by customers of the selling activities." It does not include agencies' purchase of brand-name commercial items for their own use.

Justifications must include (1) a description of agency needs; (2) an identification of the statutory exception upon which the agency relied and a demonstration of the reasons for using the exception that is based upon the proposed contractor's qualifications or the nature of the procurement; (3) a determination that the anticipated cost will be fair and reasonable; (4) a description of any market survey conducted, or a statement of the reasons for not conducting a market survey; (5) a listing of any sources that expressed interest in the procurement in writing; and (6) a statement of any actions that the agency may take to remove or overcome barriers to competition before subsequent procurements.

CICA originally required agencies to make their justifications for noncompetitive awards, as well as "any related information," available to the general public under the Freedom of Information Act (FOIA). However, it has since been amended to require that justifications and approvals be posted on FedBizOpps ( http://www.fedbizopps.gov ) within 14 days of contract award. Agencies are also required, under CICA, to publish notices regarding certain noncompetitive contracts that they propose to award on FedBizOpps prior to their award. These notices identify the intended recipient of the noncompetitive contract award and state the agencies' reasons for making a noncompetitive award. Because notice of these proposed awards precedes the awards, other contractors could submit proposals to the agency or protest the proposed award.

"Special Simplified Procedures for Small Purchases"

In addition to authorizing the use of noncompetitive procedures in certain circumstances, CICA authorizes the use of "special simplified procedures" when agencies make "small purchases." CICA's drafters included this provision because they recognized that the costs of conducting competitions can exceed the savings resulting from competition when agencies procure items with low prices. CICA itself defined a "small purchase" as one whose expected value was less than $25,000, but was later amended to include purchases whose expected value was below the simplified acquisition threshold (currently, generally $150,000). Moreover, since 1996, under an amendment to CICA, agencies have also had authority to use simplified acquisition procedures in purchasing commercial items whose expected value exceeds the simplified acquisition threshold but is below $6.5 million (or $12 million in the case of goods or services purchased in support of contingency operations, or for defense against or recovery from nuclear, biological, chemical, or radiological attack). Agencies can rely on this latter authority only when their contracting officers reasonably expect, based upon market research and the nature of the goods or services sought, that offers will include only commercial items. CICA prohibits agencies from dividing proposed purchases in excess of the "small purchase" threshold into several purchases in order to take advantage of the simplified procedures, and it requires agencies to promote competition "to the maximum extent practicable" when using simplified procedures.

CICA otherwise leaves the articulation of the simplified acquisition procedures to the FAR, which prescribes somewhat different regulations for acquiring different prices and types of goods and services (i.e., commercial or noncommercial). See Figure 1 . Under the FAR, purchases whose expected value is below the simplified acquisition threshold ($150,000) are further subdivided into (1) those below the micropurchase threshold (generally $3,000) and (2) those above it. When making "micropurchases," or purchases at or below $3,000, agencies are to promote competition, to at least a limited degree, by distributing their purchases "equitably" among qualified suppliers "[t]o the extent practicable." They may make micropurchases without soliciting competitive quotations only if the contracting officer, or other duly appointed official, considers the price to be reasonable. When purchases are above the micropurchase threshold but below the simplified acquisition threshold, agencies "shall use simplified acquisition procedures to the maximum extent practicable." These purchases are "reserved exclusively" for small businesses, making them "competitive procedures" under CICA. In such purchases, and in purchases of commercial items whose expected value exceeds the simplified acquisition threshold but is below $6.5 million (or $12 million in emergencies), agencies "must promote competition to the maximum extent practicable to obtain supplies and services from the source whose offer is the most advantageous to the Government, considering the administrative cost of the purchase." This generally means that agencies "must consider solicitation of at least three sources," two of which were not included in the previous solicitation. Contracting officers are prohibited from soliciting quotations based on personal preferences or restricting solicitations to suppliers of well-known and widely distributed makes or brands.

Sole-source solicitations for purchases below the simplified acquisition threshold are permissible only if contracting officers determine that the circumstances of the contract action are such that only one source can be reasonably deemed available (e.g., urgency, exclusive licensing agreements, brand-name goods, industrial mobilization). Sole-source solicitations for purchases of commercial items whose expected costs exceed the simplified acquisition threshold are permissible only if (1) they are justified in writing; (2) they are approved at the levels specified in Table 2 ; and (3) notice of the proposed award is provided at the government-wide point of entry, FedBizOpps.

Other Competition Requirements

In keeping with its drafters' belief that effective competition in government procurement involves more than just the mechanisms that agencies use to solicit offers, CICA also contains other provisions that promote competition by, among other things, barring agencies from using restrictive specifications and requiring them to give advance notice of upcoming solicitations. These provisions are not the primary focus of this report, but are briefly summarized below in order to provide a more comprehensive picture of CICA's competition requirements.

1. Planning and solicitation requirements : Under CICA, agencies must specify their needs and solicit bids or offers "in a manner designed to achieve full and open competition"; use advanced procurement planning and market research; and "develop specifications in such a manner as is necessary to obtain full and open competition." Specifications may be stated in terms of function, performance, or design requirements, but can include restrictive provisions or conditions only to the extent necessary to satisfy agency needs or as authorized by law. These requirements derive from the fact that competitive mechanisms for submitting bids or offers are of limited effectiveness if agencies can craft their procurement specifications in such a way as to effectively exclude contractors from the pool of potential offerors. 2. Evaluation and award requirements : Agencies must evaluate sealed bids and competitive proposals based solely on the factors specified in the solicitation. This requirement supports the competitive mechanisms for submitting bids and offers by ensuring that agencies properly consider bids and offers once they are received, rather than award contracts to favored companies on the basis of factors not disclosed to other competitors. 3. Competition advocates : CICA requires the head of each executive agency to designate, both for the agency as a whole and for each procuring activity within the agency, one officer or employee to serve as the "advocate for competition." Agency competition advocates are responsible, among other things, for challenging barriers to full and open competition, and promoting the use of full and open competition, in agency procurement activities. CICA initially required agency competition advocates to make annual reports to each chamber of Congress identifying actions the agency intended to take to increase competition for contracts and reduce the number and value of noncompetitive contracts. However, FASA removed thi s reporting requirement. 4. Procurement notices : Under CICA, agencies are generally required to publish "procurement notices" announcing upcoming IFBs and RFPs for contracts exceeding $25,000 and for likely subcontracts on awarded contracts exceeding $25,000. CICA also specifies that agencies may not issue solicitations earlier than 15 days after the notice is published, or establish a deadline for submission of bids or offers earlier than 30 days after the solicitation is issued. These requirements promote competition by ensuring that would-be offerors have ample notice of proposed agency procurement actions and adequate time to prepare their offers. Notices were originally published in Commerce Business Daily , but are now posted online at FedBizOpps.

Competition Requirements for Task and Delivery Order Contracts

FASA supplemented CICA by, among other things, articulating competition requirements for task order and delivery order (TO/DO) contracts. TO/DO contracts are contracts for services or goods, respectively, that do not "procure or specify a firm quantity of supplies (other than a minimum or maximum quantity)," but rather "provide[] for the issuance of orders for the delivery of supplies during the period of the contract." Because the time of delivery and the quantity of goods or services to be delivered are not specified (outside of stated maximums or minimums) in TO/DO contracts, such contracts are sometimes referred to as indefinite delivery/indefinite quantity (ID/IQ) contracts. TO/DO contracts can also be described as "single-award" or "multiple-award" contracts, depending upon the number of firms—one or more than one, respectively—able to compete for task or delivery orders under the contract. Some commentators further refer to single-award TO/DO contracts as "monopoly contracts," but such usage could obscure the fact that single-award TO/DO contracts are themselves awarded competitively, even if task or delivery orders under them are not, and are of limited duration.

Under FASA, agencies are effectively subject to CICA when awarding TO/DO contracts and can use other than competitive procedures only when one of the seven exceptions to full and open competition applies and there are the requisite justifications and approvals. FASA also establishes "a preference" for multiple-award contracts by requiring agencies to use them, as opposed to single-award contracts, "to the maximum extent practicable." Moreover, FASA requires agencies using multiple-award contracts to provide contractors "a fair opportunity to be considered" when issuing task or delivery orders in excess of $3,000 unless

(1) the agency's need for the services or property is of such unusual urgency that providing such opportunity to all such contractors would result in unacceptable delays in fulfilling that need;

(2) only one such contractor is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;

(3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or

(4) it is necessary to place the order with a particular contractor in order to satisfy a minimum guarantee.

FASA did not, however, subject the issuance of task or delivery orders under TO/DO contracts to CICA, and, even today, such orders remain outside the CICA framework. FASA further requires each agency issuing TO/DO contracts to designate a "task and delivery order ombudsman" to review contractors' complaints regarding TO/DO contracts and ensure that all contractors holding a multiple-award TO/DO contract have a "fair opportunity to be considered" for orders. Finally, FASA grants the Government Accountability Office (GAO) jurisdiction over protests alleging that the orders increase the scope, period, or maximum value of the contract.

The National Defense Authorization Act for FY2008 (NDAA '08) further strengthened the competition requirements for TO/DO contracts established by FASA. See Figure 2 . The NDAA '08 limits agencies' ability to use single-award TO/DO contracts by requiring that agency heads make the following determinations, in writing, before awarding a single-award TO/DO contract whose expected value would exceed $103 million, including options:

(i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;

(ii) the contract provides only for firm, fixed-price task or delivery orders for (I) products for which unit prices are established in the contract or (II) services for which prices are established in the contract for the specific tasks to be performed;

(iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or

(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.

The NDAA '08 also specifies what constitutes a "fair opportunity to be considered" in competitions for orders in excess of $5.5 million under multiple-award TO/DO contracts. Under the NDAA, for contractors to have a fair opportunity, agencies must provide them with (1) a notice of the task or delivery order that includes a clear statement of the agency's requirements; (2) a reasonable period of time to provide a proposal in response to the notice; (3) disclosure of the significant factors and subfactors (including cost or price) that the agency expects to consider in evaluating proposals and their relative importance; (4) a written statement documenting the basis for the award and the relative importance of quality and price or cost factors, if the award is to be made on a best-value basis; and (5) an opportunity for post-award debriefing.

Finally, the NDAA '08 granted GAO exclusive authority to hear protests alleging improprieties in agencies' award of task and delivery orders valued in excess of $10 million that do not increase the scope, period, or maximum value of the underlying contract. When granting such authority, Congress initially included a "sunset" provision, stating that the "subsection" granting this authority would be "in effect for three years, beginning on the date that is 120 days after [its] date of enactment" (i.e., May 27, 2011). However, the 112th Congress subsequently granted GAO permanent jurisdiction over the protests of "large" orders issued under defense contracts. It also extended GAO's jurisdiction over similar orders issued under civilian contracts through September 30, 2016.