ARMY AL&T
Full and open competition is the rule of the Competition in Contracting Act when soliciting offers for government contracts.
approval unreasonably relied on a finding that the classified information to which L3 has access could not be shared with other contractors. Boeing pointed out in its protest that it had the personnel and facilities to receive the classified informa- tion and further pointed out that classified work it had performed for the government on previous contracts involved informa- tion classified at levels far higher than the secret level applied to the levels applied to the justification and approval.
The GAO denied Boeing’s protest regarding the justification and approval, concluding that the Air Force reasonably made a need-to-know determination that precluded the transfer of classified infor- mation to an additional contractor. See B-414706; B-414380.2, Aug 25, 2017.
Persons are allowed access to classified information only if they (1) possess a valid and appropriate security clearance, (2) have executed an appropriate nondis- closure agreement, (3) have a valid need to know the information in order to perform a lawful and authorized govern- ment function. According to AR 380-5, Army personnel are personally responsi- ble for determining that all three are true.
It is a fallacy to believe that just because someone has a clearance means they have a need to know. Need to know is a deter- mination made by an authorized holder of classified information that a prospective recipient requires access to specific clas- sified information in order to perform or assist in a lawful and authorized govern- mental function.
Need-to-know provisions may preclude the clearance of additional sources for the purpose of solicitation and perfor- mance of work, even to those sources that might possess access to information classi- fied at equivalent or higher levels on other programs.
When limiting competition based on the national security exception and need-to- know provisions apply, the justification and approval must explain the need-to- know restriction when access to classified information to commercial sources is fundamental to contract performance and disclosure of classified information is limited on a need-to-know basis.
CONCLUSION Fallaciously invoking the national security exception to limit full and open competi- tion comes with risk of expending agency resources and delays in awarding and executing contracts.
Limiting competition for federal contract- ing opportunities based on national security isn’t solely a matter of keep- ing secrets safe, but by recognizing what actions or omissions may or may not constitute a compromise of national secu- rity when soliciting for the government’s procurement needs.
Te security classification guide is the primary document that identifies and regulates disclosure of classified infor- mation for purposes of soliciting bids or proposals. Understanding need-to- know requirements before disclosing the government’s classified procurement
requirements will avoid an unlimited and unauthorized release of classified infor- mation to any potential offeror that may possess a clearance level equivalent to the information being disclosed.
For more information, view the Competi- tion in Army Contracting course at https://
go.usa.gov/xvy7z. This Common Access Card.
site requires a
DENNIS P. LONGO is the advocate for competition, task and delivery order ombudsman
and senior procurement
analyst for Army Contracting Command at Aberdeen Proving Ground, Maryland. A member of the Army Acquisition Corps, he holds a bachelor's degree from the University of Baltimore and is Level III certified in contracting. His assignments include acquisition specialist at the Program Manager for Chemical Demilitarization within the U.S. Army Chemical Materials Activity and procurement analyst at U.S. Army Legal Services Agency. He served in the military from 1971 to 1973 at the Southern European Task Force,
Italy,
and was deployed to Iraq as a civilian in 2003. He authored the DAU Continuous Learning DOD Purchase Card Tutorial in 2002 and the DASA (P) Competition in Army Contracting course in 2019 and the Defense Acquisition University CON 0160 Competition in Contracting
course. He
has been teaching courses on competition in contracting since 2004. Te first of the author's On Contracting articles appeared in the Winter 2020 edition of Army AL&T.
https://asc.ar my.mil
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