THE LURE OF URGENCY
Te Federal Acquisition Regulation (FAR) identifies such an urgency as “unusual and compelling urgency,” and one where the United States would be “seriously injured” unless the number of sources solicited is limited, according to FAR 6.302-2. (B-243382.3 Durodyne Inc.)
Restricting competition because an unusual and compelling urgency exists is an authorized exception to the full and open competition requirements of the Competition in Contracting Act, imple- mented at FAR 6.302-2. However, federal procurement regulations don’t define urgency as it relates to restricting compe- tition for the government’s procurement requirements. One may reason that, if one can simply explain the need to procure a particular item or service quickly, compe- tition requirements may be waived.
Te Government Accountability Office (GAO) has provided some guidance as to what circumstances may result in an unusual and compelling urgency and as we’ll see in each of the following exam- ples, unusual compelling urgency is not always defensible.
RULE NO. 1 Limiting full and open competition must not be based on a lack of advance procure- ment planning.
FAR 7.102 requires federal agencies to perform acquisition planning and conduct market research for all acquisitions. Typi- cally, acquisition planning should begin as soon as the agency need is identified, pref- erably well in advance of the fiscal year in which contract award or order placement is necessary. (FAR 7.104(a).)
Example 1. Te Navy had been working on the performance requirements for a replacement contract, issued a solicitation, realized the solicitation requirements were
74 Army AL&T Magazine Fall 2021
REMOVE BEFORE FLIGHT
The Cessna T-37 is a trainer aircraft used by the Air Force for more than 50 years, until it was retired in 2008. In 1990, the service awarded sole-source contracts to two suppliers for replacement fuel cells, but GAO determined that the contract provisions included unnecessary standards for extensive flight testing of the parts. (Photo by Harry Toneman, U.S. Air Force)
not adequately defined, and canceled the solicitation. Because these contracts would expire within a matter of weeks, perfor- mance under both contracts was extended on the basis of “urgent and compelling circumstances.”
In 1996, New Breed Leasing submitted a protest to the GAO, complaining that there was no rational basis for the sole- source extensions, and that the sole-source contract extensions resulted from a lack of planning.
In response to the protest, the Navy claimed it hadn’t realized that both solici- tations' requirements were not adequately defined until the end of July 1996. Conse- quently, because both contracts would expire Sept. 30, 1996, both required an extension for an entire year because the requirement must undergo "a thorough and comprehensive review and rewrite."
It turns out that the solicitation require- ments for the follow-on contract were identified in July 1994, the acquisition
plan was approved June 1995, proposals submitted in response to the solicitation were submitted by October 1995, and the proposal evaluation was completed by June 1996. When the contracting offi- cer sought approval from headquarters in July 1996 to proceed with negotiations, headquarters expressed its concern that the request for proposal lacked definitive task descriptions. Te Navy canceled the solici- tations on Aug. 8, 1996, and subsequently extended both contracts. In essence, the Navy realized that the solicitations were flawed more than a year after the solici- tations were issued and more than eight months after proposals were submitted.
Te protest of the Navy’s action to the GAO was sustained because the contract action resulted from a lack of advance plan- ning. (B-274201 New Breed Leasing.)
“Advance procurement planning” may appear redundant. One could reason that all planning is done in advance. But the FAR intends procurement plan- ning to be conducted well in advance;
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