ing the use of other than competitive procedures for the acquisition. The fifth exception is authorized or required by statute per 10 U.S.C. 3204(a)(5). This exception may be used when acquiring items from another agency or specified source (such as Federal Prison Industries/ Unicor or certain nonprofit agen- cies for the severely disabled [Ability One]). It may be used when buying brand name commercial products for commercial resale (e.g., for a military exchange or commissary). It also is used for statutorily authorized sole source awards to certain socio- economic groups such as WOSB, SD- VOSB, and 8(a) small businesses. This is different from the authority previ - ously discussed allowing us to use FAOC after exclusion of sources for many of these same programs. This actually allows, under specific con - ditions, sole source awards to these types of businesses. RFO DFARS pro- vides additional examples and exclu- sions. For the most part, J&As are not required for these actions, but check for exceptions, especially regarding 8(a) sole source awards. The sixth exception to FAOC is na- tional security per 10 U.S.C. 3204(a) (6). This may be used when disclosure of the agency’s needs would compro- mise national security if we provide for FAOC. Note that the mere fact that an action is classified or has classified aspects does not qualify for this ex- ception. (There is a similar exception to the requirement to publicize con- tract actions.) Use of this authority also requires a J&A. The seventh exception to FAOC is Public interest per 10 U.S.C. 3204(a) (7). This may at first seem like the “no other justification applies, but every - thing we do is in the public interest” rationale. The reality is that if none of the other six exclusions apply, it is very unlikely it can be justified generi - cally as public interest. This is used when none of the other exceptions applies. The Secretary of War is the approval authority for this exception and must notify Congress at least 30
Newport News Shipbuilding (NNS) contractor John Fines, from Newport News, Va., uses an arc welder on the flight deck aboard the aircraft carrier USS John C. Stennis (CVN 74), in Newport News, Va. John C. Stennis is in Newport News Shipyard working alongside NNS, Naval Sea Systems Command, and contractors conducting Refueling and Complex Overhaul as part of the mission to deliver the warship back in the fight, on time and on budget, to resume its duty of defending the United States. Source: U.S. Navy photo by Mass Communication Specialist 3rd Class Crayton Agnew
after the fact. Someone who worked for me once forgot and had to be dis- ciplined and counseled.) Examples of when this FAOC ex- ception authority may be appropri- ate follow: y Example 1 is including repairs to comply with orders for a ship or to perform the operational mission of an aircraft. y Example 2 would be actions based on purchase requests that cite a pri - ority of four or higher. The third exception to FAOC is industrial mobilization, engineering, development or research capabil- ity, or expert services per 10 U.S.C. 3204(a)(3). This is like the prior dis- cussion of maintaining alternative sources but was expanded to include experts, mediators, or arbitrators. As
with the other exceptions, you must do a J&A before citing this exception. The fourth exception is inter- national agreement per 10 U.S.C. 3204(a)(4). This is often used for for - eign military sales. But I once used this when contracting for services in Iceland. The Status of Forces Agree- ment between the United States and Iceland allowed the Icelandic gov- ernment to identify the sources with whom we could contract. So, we cited that agreement to restrict competi- tion. RFO DFARS 206.103-4(c) does not require a J&A, per se, but does re- quire a document that describes the terms of the international agreement or treaty or the written directions, such as a Letter of Offer and Accep - tance, that have the effect of requir -
20 DEFENSE ACQUISITION MAGAZINE | MARCH – APRIL 2026
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