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Step 9: Prepare Justification and Approval or Limited Source Procurement

A sole source J&A is a document that provides rationale and approvals for a sole source acquisition or for an acquisition to be conducted by less than full competitive procedures. When writing your J&A, you must identify the statutory authority permitting other than full and open competition, followed by the United States Code (U.S.C.) and FAR citation:

Only one responsible source (10 U.S.C. 2304(c)(1), FAR 6.302-1, DFARS 206.302.1)
Link to: FAR 6.302-1, DFARS 206.302.1
  • Supplies or services are available from only one source or a limited number of sources.
  • The procurement will be conducted under a follow-on contract for the continued development/production of a major system or highly specialized equipment (or major components thereof).
  • Award to any other source would result in substantial duplication of cost to the government that is not expected to be recovered through competition, or in unacceptable delays in fulfilling the requirement.
Unusual and compelling urgency (10 U.S.C. 2304(c)(2), FAR 6.302-2, DFARS 206.302-2)
Link to: FAR 6.302-2, DFARS 206.302-2
  • Unusual and compelling urgency (e.g., fire, flood, explosion, disaster)
  • Delay in award of a contract would result in serious injury (financial or other) to the government unless competition is limited.
Industrial mobilization (10 U.S.C. 2304(c)(3), FAR 6.302-3, DFARS 206.302-3)
Link to: FAR 6.302-3, DFARS 206.302-3
  • Government finds it necessary to establish or maintain facilities, producers, manufacturers, or other suppliers in case of national emergency.
  • Government deems it important to retain services of an expert or neutral person for any current or anticipated litigation or dispute.
  • Government deems it important to establish or maintain essential engineering, developmental, or research capabilities by an educational or other nonprofit institution, or a federally funded research and development center.
International agreement (10 U.S.C. 2304(c)(4), FAR 6.302-4, DFARS 206.302-4)
Link to: FAR 6.302-4, DFARS 206.302-4
  • Acquisition will be reimbursed by a foreign government that requires that the supplies/services be obtained from a particular firm as specified in an official written direction; for example, a letter of offer and acceptance.
  • A treaty or international agreement between the U.S. and a foreign government or international organization specifies or limits the sources to be solicited.
Authorized or required by statute (10 U.S.C. 2304(c)(5), FAR 6.302-5, DFARS 206.302-5)
Link to: FAR 6.302-5, DFARS 206.302-5
  • A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source.
  • The agency's need is for a brand name commercial item for authorized resale.
National security (10 U.S.C. 2304(c)(5) or 41 U.S.C 253(c)(5), FAR 6.302-6)
Link to: FAR 6.302-6
  • Disclosure of the government's needs would compromise national security.
Public interest (10 U.S.C. 2304(c)(7), FAR 6.302-7, DFARS 206.302-7)
Link to: FAR 6.302-7, DFARS 206.302-7
  • The Secretary of the Army determines that it is not in the public interest in the particular acquisition concerned to provide for full and open competition.

It is critical that you describe why your particular action requires the use of the authority cited. This involves more than just citing the justification prescribed in the FAR; it requires you to specifically detail how and why the facts surrounding your situation apply to the circumstances authorized by the FAR.

Procedures for Preparing Sole Source J&A

In an effort to obtain competition, the following must occur:
  • The program office must perform market research (or provide the rationale for not conducting market research) to substantiate the technical statements that support the basis for using other than full and open competition procedures.
  • The Sole Source J&A is must be prepared by the customer and the contract officer. The J&A must cite the appropriate statutory authority as described above. The J&A must contain signatures from the technical personnel certifying the accuracy of the technical data in the J&A, and from the KO certifying the accuracy of the whole Sole Source J&A. Sole Source J&A (over $150K) elements include:

Contracting Activity
Specify the contracting activity responsible for this action.

Example:
Ophthalmology Services
Department of Surgery
Walter Reed National Military Medical Center
8901 Rockville Pike
Bethesda, MD 20889-5600
(301) 295-4611; toll-free 1-800-526-7101
www.bethesda.med.navy.mil

U.S. Army Medical Command
HCAA-N, W91YTZ
Walter Reed National Military Medical Center
8901 Rockville Pike
Bethesda, MD 20889-5600
(301) 295-4611; toll-free 1-800-526-7101 www.bethesda.med.navy.mil


Description of Action
State whether approval is being requested for a new contract or a modification to an existing award. Include the type of contract, type(s) of funds to be used (R&D, OPA, OMA) and, when applicable, the estimated share and ceiling arrangements, and fee or profit.

Example:
This is a new sole source procurement for Certified Ophthalmic Technicians (COTs), Certified Ophthalmic Assistants (COAs), and Certified Ophthalmic Medical Technicians (COMTs) for Ophthalmology Services patients. This action will allow for increased patient care with period of performance 1 Oct 20XX through 30 Sep 20XX with three one-year options. Exercise of options will be based on a determination of the appropriate size, location, and quantity of services to be provided. The procurement will be a fixed price services contract.


Description of Supplies/Services
Include the estimated total value, including all options, even the extension of services. ( IAW PL 07-03)

Example:
This new requirement will be funded with Ophthalmology Services APV: 1S18. The contract will provide for four (4) FTE COTs and 4.5 FTE COAs. Estimated value: $755,740.80 for all technicians. Period of performance: 1 Oct 20XX – 30 Sep 20XX, and three (3) one-year option periods.


Authority Cited:
Identify the statutory authority permitting other than full and open competition, followed by the FAR citation and title.

Example:
Statutory authority: 10 U.S.C. 2304(c) (1), FAR 6.302-1. Only one responsible source and no other supplies or services will satisfy agency requirements.


Reason for Authority Cited
Describe how this action requires the use of the authority cited. If applicable, identify the proposed or potential contractor(s), and include a discussion of the proposed contractor's unique qualifications for fulfilling the contract requirements. If the authority is FAR 6.302-1, include the required delivery schedule and lead-time involved. If the authority is FAR 6.302-2, include the required delivery schedule and lead-time involved, as well as a discussion of the serious injury to the Government which would result if award of a contract is delayed. If brand name, explain why it must be the specific brand. Do/will we own the equipment? Do/will we have a commitment to a long term lease?

Example:
In accordance with FAR 6.302-1(a) (2) (i) (A) and (B), the services required by Ophthalmology Services are available only from one responsible source, See Clearly Vision, and open competition cannot be provided for due to its unique nature. See Clearly Vision has demonstrated consistent, professional, and outstanding technician services through the years, demonstrating a unique capability needed by WRAMC's OEF/OIF patients. In addition, See Clearly Vision medicaltechnicians are highly trained and skilled in screening OEF/OIF patients and all other ophthalmology patients, ensuring precise and immediate treatment by staff members. See Clearly Vision is totally committed to providing only the best and well trained technicians to support fully WRAMC and Ophthalmology Services' mission. Unusual and compelling urgency, and no other supplies or services will satisfy agency requirements. The unique skills, education, and experience of the contractor necessitate this requirement.


Efforts to Obtain Competition
Describe efforts to ensure that offers are solicited from as many potential sources as is practicable. Also describe the extent of effective competition anticipated for this acquisition.

Example:
Due to time constraints, seeking other competition is not feasible at this time and will not facilitate continuity of service as is required by the sensitive nature of the Ophthalmology Services.


Actions to Increase Competition
There may be instances when it is not possible to conduct a competitive acquisition. Include a statement of the actions taken, or to be taken, to increase competition (for example, breakout of part of the requirement) before any subsequent acquisition of the supplies or services. If the requirement is for a repair part, address whether or not it has been screened. If it has been screened, provide the Acquisition Method Code (AMC) and Acquisition Method Suffix Code (AMSC). Provide the approximate date the technical data package will be available.

Example:
The follow-on to this action will be solicited from as many capable vendors as possible in the future, as additional vendors become available.


Market Research
Describe the extent and the results of the market research (FAR Part 10) conducted to identify all qualified sources. Research must have been meaningful and conducted within the previous 12 months. How was market research conducted? This is more than just determining if there is/are small business(es) available. Attach supporting documentation.

Example:
The IPT prepared questions for industry vendors, and the contracting officer posted them in a Request for Information on the FedBizOpps web page. The information was used to develop a list of possible sources. Some of the questions included the following:
  • What types of products do you offer that may satisfy this requirement?
  • Have the products been changed recently? If so, how often?
  • What types of discounts do you offer your customers?
  • What are your warranty terms, if any?
  • Are there additional charges for special packing or packaging?
The IPT also conducted an internet search of product literature and vendor catalogs, and the Program Manager attended an Army-sponsored forum for small businesses to ensure that vendors had an opportunity to ask questions about the requirement. This information will be retained and used for the next acquisition of this item.


Interested Sources
Include a listing of the sources that have written to express interest in the acquisition. If applicable, state clearly that "To date, no other sources have written to express an interest." If 10 U.S.C.2304(c)(1) is the authority cited ("…property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency"), explain why other sources were rejected. Also, state that "The notices required by FAR 5.201 shall be (or have been) published, and any bids or proposals received shall be considered." If a FedBizOpps notice will not be published, state which exception in FAR 5.202 applies.

Example:
In accordance with FAR 5.201, this action will be posted in FedBizOpps as a sole source requirement. A Sources Sought notice previously published in FedBizOpps revealed that there is no other contractor with the required skill set that is willing to perform this level of service at a cost below the median income of a professional with like qualifications.


Other Facts as applicable
Discuss any other facts supporting the use of other than full and open competition, such as the following:
  1. Procurement history. Reasonable efforts to retrieve the following items from computer records, contract files, competition advocate office files, or other sources are expected:
    1. Contract numbers and dates of the last several awards for the same services.
    2. Competitive status of these actions.
    3. Authority previously used for other than full and open competition.
    4. If a justification was prepared to support the procurement made before this one, a summary of the contents of paragraph 7 of the justification for that procurement, and an explanation of the results.
    5. If a justification was prepared to support the procurement made before this one, briefly describe the circumstances justifying the buy and whether there have been any significant changes.
    6. If any prior award was accomplished by full and open competition, a detailed explanation of the changed circumstances.
    7. An explanation of any unusual patterns which may be revealed by the history; for example, several consecutive, urgent buys.
  2. Acquisition data availability. Explain why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available. Describe actions taken or planned to remedy this situation.
  3. Unusual and compelling urgency. When FAR 6.302-2 ("…the agency's needs for the supplies 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…") is cited, provide data, estimated cost, or other rationale to explain the nature and extent of the injury to the Government. If the delay associated with the requirement for first article testing is the principal reason for not awarding the contract on a full and open basis, clearly describe the reasons that first article testing is required on this procurement and why other means of assuring quality are not being used.
  4. Subcontracting competition. In sole source situations, address efforts to be taken by the Government to assure that the prime contractor obtains as much competition as possible in its subcontracting.


Example:
This is a new and urgent requirement that requires staff that has completed full Background Investigations and has been cleared to work in a secure Government facility. The proposed contractor has previously performed similar work and is able to provide staff with the required clearances. The contractor is fully credentialed and certified. Full credentialing would be needed for a different contractor and could delay the performance of work by as much as 60 days.


Technical Certification: Include the following statement:
I hereby certify that this Justification and Approval for other than full and open competition is made in good faith, that the supporting data and information are accurate and complete to the best of my knowledge and belief, and that I would not be making this request if it were feasible to compete fully this requirement. I further certify that this request is not the result of a lack of advanced planning or a desire to expend funds while those funds are still available.
Type Name: —————Date: ———— Title: —————Signature: ————


Requirements Certification: Include the following statement:
I certify that the supporting data under my cognizance which are included in the justification are accurate and complete to the best of my knowledge and belief.
Type Name: —————Date: ———— Title: —————Signature: ————


Fair and Reasonable Cost Determine
I hereby determine that the anticipated cost to the Government for this contract action will be fair and reasonable.

Provide the basis for this determination (e.g., describe techniques to be used to determine fair and reasonable price, such as cost analysis, price analysis, audit, should cost, independent Government estimate, etc.). As part of this basis, indicate whether certified cost or price data will be required or if one of the exceptions in FAR Part 15.403 will apply.
(PARC/Policy Alert 07-14)

Example:
The basis for this determination will be from comparison to current contract cost and prices, analysis of market labor rates for the geographic area, and comparison to the independent government cost estimate. The Contracting Officer may request a pre-award audit by the Defense Contract Audit Agency.
Type Name: —————Date: ———— Title: —————Signature: ————


Contracting Officer Certification
This certification shall be made by the contracting officer who will sign the contract resulting from this justification and approval. Include the following statement:

Example:
I certify that this justification is accurate and complete to the best of my knowledge and belief.

Type Name: —————Date: ———— Title: —————Signature: ————


Legal Review
I have reviewed this justification and approval and it is deemed to be legally sufficient.

Type Name: —————Date: ———— Title: —————Signature: ————


Approval Authority (as required by agency procedures)
Based on the foregoing justification, I hereby approve the procurement of (describe supplies or services being procured) on an other than full and open competition basis pursuant to the authority of 10 U.S.C.2304(c)(insert authority), subject to the availability of funds, and provided that the services and supplies herein described have otherwise been authorized for acquisition.

Type Name: —————Date: ———— Title: —————Signature: ————
Although J&As does not apply to Simplified Acquisition Procedures (SAPs), you are required to comply with FAR 13.501, Special Documentation Requirements, for requirements pertaining to sole source acquisitions for commercial items. Consistent with the size and complexity of the acquisition, J&As under FAR 13.5 must generally comply with the same requirements as a FAR Part 6 J&A, including the certifications from the technical personnel and the KO.

Sole Source J&A templates are listed below