• If the orders are over the SAT and a statute authorizes or requires award to a particular source. • If ordering officers are setting aside orders for small business or other socioeconomic programs. • For DoD, NASA, and the Coast Guard—if the order meets an ex- ception to full and open compe- tition in FAR 6.302 (except FAR
6.302-7, public interest, which requires notification of Congress). When using one of these excep- tions, the ordering officer must docu- ment the basis for the decision in a manner and with information similar to that required under FAR 6.303. The justification must identify the agency, describe the requirement and dollar value, cite the exception to fair op-
portunity, determine the price will be reasonable, steps taken to enhance competition, etc. It must be certified by the ordering officer and the re- quirements personnel and approved as follows: • Orders over the MPT to the SAT: The ordering officer must docu- ment and approve proceeding without offering fair opportunity. • Orders over the SAT to $750,000: The ordering officer’s certification that the justification is accurate and complete serves as approval. • Orders over $750,000 to $15 mil- lion: The justification must be ap- proved by the competition advo- cate of the ordering activity. • Orders over $15 million to $75 million (civilian agencies) or $100 million (DoD, NASA, and Coast Guard): These must be approved by the head of the procuring activ- ity or designee that is a general or flag officer, or a civilian ranked at GS-15 or above. • Orders over $75 million ($100 mil- lion for DoD, NASA, Coast Guard) by the Senior Procurement Execu- tive (SPE) of the agency placing the order. These authorities are not delegable. DFARS 216.505(b)(2) requires more steps for logical follow-on requirements to prior orders that themselves were not issued using fair opportunity because they were either specialized items or a logical follow-
Historical Perspective Contracting, like life, tends to trend in a pendulum arc. At some point, contracting becomes difficult enough to trigger a major pushback, and new flexibilities are introduced, as happened in the mid-1990s. But flex- ibilities gradually erode, resulting in greater restrictions and complications until eventually another push to simplify emerges. To illustrate, from 1995 until 2002 Federal Acquisition Regulation (FAR) coverage of this topic totaled about 600 words. In 2010, the regulatory coverage increased to more than 1,000 words and now comes to more than 2,500 words. The added words create requirements for more steps and documentation. Among the changes, there originally was only one level for fair opportu- nity, over the micropurchase threshold. No extra steps were established for higher dollar levels, and the steps were similar to those for actions under the Simplified Acquisition Threshold (SAT) today. Initially, no post- award debriefings were required, and the only basis for protest was that the order exceeded the scope of the contracts, not the placement of or- ders. Also, the approval authority for an exception to fair opportunity originally rested with the ordering officer. On the other hand, the current regulation added three new exceptions to the fair opportunity requirement discussed in the full article—specifi- cally, those about statutorily required sources, set-asides, and whether FAR 6.302 applies.
40 | DEFENSE ACQUISITION | May-June 2025
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