NAVAIR Instruction 4200.31E
Justification and Approvals/Determination And Findings for Procurement Actions Utilizing Other then Full and Open Competition
24 July 2006
From: Commander, Naval Air Systems Command
Subj: Justification and Approvals/Determination And Findings for Procurement Actions Utilizing Other then Full and Open Competition
- Competition in Contracting Act of 1984 (CICA), 10 U.S.C. 5 2304
- Federal Acquisition Regulation (FAR) Part 6
- Defense Federal Acquisition Regulation Supplement (DEARS) Part 206
- Navy Marine Corps Acquisition Regulation Supplement (NMCARS), Subpart 5206.3
- ASN(RDA) Memo of 1 May 0.6, Processing of Justification and Approvals (J&As) Requiring ASN(RDA) Approval
- DFARS Subpart 207.70
- Navy Marine Corps Acquisition Guide (NMCAG), Subpart 5207.70
1. Purpose. To establish policies, procedures, and responsibilities for preparing written Justifications and Approvals (J&As) or Determinations and Findings (D&Fs) when a procurement is to be made using other than full and open competition.
2. Cancellation. This instruction cancels and supersedes NAVAIR Instruction 4200.31D. Since this is a major revision changes are not indicated.
3. Scope. This instruction applies to all J&As/D&Fs under reference (a) that are processed by the Naval Air Systems Command (NAVAIR), its Naval Air Warfare Centers (NAVAIRWARCENs), its Naval Air Depots (NAVAIRDEPOTs), its Business Units (BUS), and the Naval Aviation Program Executive Officers (PEOs) supported by NAVAIR Headquarters (NAVAIRHQ).
4. Policy. In order to satisfy the statutory mandate set forth in reference (a), NAVAIR must use competitive acquisition procedures to the maximum extent practicable. Except as provided in paragraph 7 below, whenever a procurement is conducted using other than full and open competition, a J&A or, as appropriate, a D&F is required.
5. Other than Full and Open Competition - J&As.
- Procurement Actions Requiring a J&A. Per references (a) through (d), a J&A is required whenever an acquisition will be conducted using other than full and open competition, unless an exception applies (see paragraph 7 below) or a D&F is appropriate (see paragraph 6 below). An acquisition is considered to be made pursuant to "Full and Open Competition" when all responsible sources are permitted to compete.
- J&A Approval Levels. The estimated dollar value of the base effort and all options shall be considered in determining the appropriate approval level.
- Approval levels for J&As are as follows:
|Not exceeding $500K||Procuring Contracting Officer (PCO) Certification (No additional approvals required) Navy Senior Procurement Executive (Assistant Secretary of the Navy, Research, Development and Acquisition (ASN(RDA))|
|Over $500K But not exceeding $10M||Procuring Activity Competition Advocate (PACA)* or Flag/Senior Executive Service (SES) in Contracting**|
|Over $10M But not exceeding $75M||Flag/SES in Contracting**|
|Over $75M||Navy Senior Procurement Executive (Assistant Secretary of the Navy, Research, Development and Acquisition (ASN(RDA))|
*By approval of this instruction, the Assistant Commander for Contracts (AIR-2.0) is hereby designated as the PACA for NAVAIRHQ. AIR-2.0 is delegated authority to designate PACAs for contracting offices at the BUS.
**By approval of this instruction, per Federal Acquisition Regulation (FAR) 6-304(a) ( 3 ), persons occupying SES positions in AIR-2.0 are hereby designated as the appropriate approval authority.
- J&As up to $75 Million. The J&A shall be prepared using the Technical and Contracts Templates and shall contain signatures from the Program Manager (PM), Deputy Program Manager (DPM), or project manager, Counsel, and the PCO. For J&As up to this dollar threshold, the final J&A will consist of the two completed templates. There are six versions of the Technical Documentation Template, each addressing a separate statutory authority. The Requiring Activity, after coordinating with the PC0 to determine the appropriate statutory authority, shall complete the appropriate Technical Documentation Template. The Contracts Documentation Template shall be completed by the Contract Specialist. All templates, with Frequently Asked Questions on completing the Templates, can be downloaded at – https://contracts.navair.navy.mil/index.cfm?fuseaction=library.form&id=&grouptype=Justification_and_Approval. J&As that are for follow-on actions shall be routed with a copy of the previous J&A. Written acquisition planning documents associated with the J&A, such as Acquisition Plans or acquisition strategy documents, shall be provided to Contracts and Counsel.
- J&As greater than $75 Million. The final J&A shall be prepared on NAVAIR letterhead and contain signatures from the PM, DPM or project manager, Counsel, and the PCO. Such signatures shall be obtained prior to submission for higher level approval than the PCO. Per reference (e), the justification shall be forwarded with an action memo for the ASN(RDA). The action memo will be signed by the cognizant AIR- 2.0 SES department head or by the Deputy Assistant Commander for Contracts (AIR-2.0A) or AIR-2.0 for departments without an SES. Following signature, it will be submitted electronically by the Contract Specialist to the Deputy Assistant Secretary of the Navy, Acquisition Management (DASN(ACQ1)) via e-mail at email@example.com, with a courtesy copy to the cognizant PEO. Following reference (e), include the names and phone numbers for the PEO, PM and PC0 in the forwarding message. Also provide a copy of the planning documentation described at NMCARS 5206.303- 2 and a copy of any prior, related justifications, if approved within NAVAIR, or identification of the J&A number if approved by ASN(RDA). To facilitate processing, the electronic J&A package should be provided to the NAVAIR point of contact at DASN(ACQ) upon release of the J&A package from AIR-2.0. Additional instructions for content, structure and method of submission, together with DASN(ACQ) templates for both the forwarding memo and J&A, are posted at (https://contracts.navair.navy.mil/index.cfm?fuseaction=library.form&id=&grouptype=Justification_and_Approval)
- Non-headquarters contracting offices shall route J&A documents through their AIR-2.0 chain of command when approval is required above the PACA level in accordance with the table in paragraph 5b(1)
- Content of J&As. Each justification shall be written following EAR 6.303-2, DEARS 206.303-2 and NMCARS 5206.303-2. Justifications shall cite only one exception to other than full and open competition. The respective Integrated Product Teams (IPTs)/cognizant requirements personnel are responsible for providing and certifying all necessary data required to satisfy and support their recommendation to proceed with a procurement using other than full and open competition. Include sufficient information in the justification to permit its approval as a stand-alone document.
- Primary J&A Responsibilities. While the J&A is an IPT product, responsibility for various aspects of the J&A is as follows:
- Requiring Activity.
- For requirements up to $75 million, program officials will complete the appropriate Technical Documentation Template. The Template will be signed and dated by the PM, DPM, or project manager, and forwarded to the Contract Specialist using the J&A Route Sheet (which can be obtained at the same location as the Templates). If any applicable portion of the Template is not completed, it will be returned for correction and re-certification.
- For requirements greater than $75 million, in coordination with the IPT, program officials originate the justification. Following the detailed instructions in the DASN J&A template contained in https://contracts.navair.navy.mil/index.cfm?fuseaction=library.form&id=&grouptype=Justification_and_Approval, prepare information in narrative form for paragraphs 2, 3, 5 and 8. Coordination amongst the IPT members regarding the authority to be cited in paragraph 4 is advisable prior to drafting paragraph 5.
- For requirements up to $75 million, the Contract Specialist will review the Technical Documentation Template to ensure that the J&A contains sufficient facts and rationale to justify the use of the specific authority cited, returning the Template with no action if it is not complete. The Contract Specialist will prepare the Contracts Template and will forward the two signed templates comprising the J&A to the PC0 for signature and further processing, as required. The Contract Specialist is responsible for obtaining Counsel review of the J&A prior to submission to the approving official.
- For requirements greater than $75 million, following the detailed guidance in the DASN J&A template in https://contracts.navair.navy.mil/index.cfm?fuseaction=library.form&id=&grouptype=Justification_and_Approval, the Contract Specialist prepares justification paragraphs 1, 4, 6, and 7. Contracting officials are responsible for obtaining the review of Counsel and for processing the final J&A and tracking J&A status from submission to DASN(ACQ) to approval.
- Technical Personnel. Technical personnel from appropriate competencies shall support and assist the IPT in preparing the J&A.
- Office of Counsel. Counsel must review every justification for legal sufficiency, and shall sign the justification to document this review. Legal review will be accomplished prior to submission to the approval authority.
- Class J&As (CJ&As). CJ&As accommodate many types of acquisitions. Examples include a "class of similar acquisitions" covered under a provisioned contract line item(s), and "all orders" to be issued under the terms of a Basic Ordering Agreement (BOA) (however, use of class J&As for BOAS is not mandatory). Use of a CJ&A is often desirable in that it saves administrative time and effort by avoiding duplicative document processing. Per FAR 6.303-1(c), the contracting officer is responsible for ensuring that each contract action taken pursuant to the authority of a CJ&A is within the scope of the CJ&A, including dollar value and effective time period. The contracting officer is also responsible for documenting the contract file for each contract action taken.
- Content. The content requirements for CJ&As are the same as for individual J&As (per paragraph 5(c) above). To perform the scope assessment required by FAR 6.303-1(c), it is especially important that the type(s) of contract actions covered by the CJ&A be clearly defined in paragraph T5 of the Technical Documentation Template or paragraph 2 of the DASN justification.
- CJ&A Approval Levels. CJ&As shall be approved in the same manner as individual J&As. The cumulative dollar amount of all actions contemplated under the CJ&A shall be used to determine the approval level.
- Synopsis Requirements. The FAR 5.203 synopsis time requirements should pass prior to completion of the contracts template; approval o; routing to ASN(RDA) shall not occur unless an exception, such as urgent and compelling, is cited.
6. Other than Full and Open Competition - D&Fs
- Procurement Actions Requiring a D&F. A D&F (rather than a J&A) is required under the following circumstances:
- Establish or Maintain Alternative Source(s). A D&F is processed to partially or totally exclude a particular source(s) from a contract action in order to establish or maintain alternative source(s). A full and open competition follows exclusion of the particular source(s). The various bases for excluding a source(s) are set forth at FAR 6.202(a).
- Public Interest Exception. A D&F is prepared to invoke the public interest exception set forth at FAR 6.302-7.
- Optional Usage. Although FAR 6.302-4 exempts the Department of Defense (DoD) from the requirement for a written justification when relying upon the international agreement exception, DEARS 206.302-4 requires the head of the contracting activity to prepare a document describing the terms of an agreement, treaty or other written direction (such as a Letter of Offer and Acceptance) that have the effect of requiring the use of other than full and open competition. This requirement may be satisfied by existing documentation that: a) was endorsed by the PCO; b) describes the terms of an agreement, treaty or other written direction that have the effect of requiring the use of other than full and open competition; c) was reviewed by Counsel in accordance with NMCARS 5201.602-1, and, d) was approved and is incorporated within the official contract file. Adequate existing documentation may include, for example, an Acquisition Plan or an Acquisition Strategy document. In lieu of documentation meeting the above criteria, a D&F may be used to obtain approval for foreign military sales acquisitions using other than full and open competition. A sample D&F for providing for other than full and open competition pursuant to an international agreement is in https://contracts.navair.navy.mil/index.cfm?fuseaction=library.form&id=&grouptype=Justification_and_Approval.
- D&F Approval Levels. The estimated dollar value of the base effort and all options shall be considered in determining the appropriate approval level. The same transmittal requirements apply to D&Fs that apply to J&As requiring approval outside NAVAIR.
|Establish/Maintain Alternative Source Not Exceeding $75||Flag/SES in Contracting*|
|Establish/Maintain Alternative Source Over $75M||Navy Senior Procurement Executive|
|Any $ value citing FAR 6.302-4 (Int'l Agmt)||AIR-2.0 or AIR-2.0A**|
|Any $ value citing FAR 6.302-7 (Public Interest)||Secretary of the Navy|
* By approval of this instruction and per NMCARS 5206.202, persons occupying SES positions in AIR-2.0 are hereby designated as the appropriate approval authority.
** By approval of this instruction, the authority granted to the Head of the Contracting Activity at DFARS 206.302-4 is hereby delegated to AIR-2.0 and/or AIR-2.0A.
- Content. FAR 1.704 provides general policy on D&F content. DFARS Procedures, Guidance and Information (PGI) 206.202 provides specific policy on D&F content and the approved agency format for excluding a source. D&Fs shall be prepared on NAVAIR letterhead.
- Class D&Fs. Requirements for drafting a class D&F are set forth at FAR part 1.703. Per FAR 1.706, expiration dates are required for class D&Fs.
7. Procurements Not Requiring a J&A/D&F. The following classes of procurements do not require a J&A or D&F:
- Only One Proposal Received Under Otherwise Competitive Process. If a full and open competition is conducted and only one proposal is received from a responsive and responsible offeror, a J&A need not be prepared.
- Simplified Acquisitions. Contracts awarded under FAR part 13, simplified acquisition procedures, do not require a J&A, except for sole source acquisitions pursuant to FAR 13.5.
- Modifications. A J&A is not required for contract modifications, including the exercise of options that were evaluated as part of the initial competition, provided the modification is within the scope and under the terms and conditions of the contract.
- Orders. Orders placed under requirements, definite quantity, or indefinite delivery, indefinite quantity (IDIQ) contracts in which the basic contract was awarded using full and open competition do not require a J&A provided the order is within the scope and under the terms and conditions of the awarded contract. Orders placed against such contracts in which the basic contract was awarded using other than full and open competition do not require a separate J&A provided the original J&A adequately covers the requirements in the order.
- Procurements made under the Small Business Innovative Research Program (Phases I, I1 and 111). FAR 6.102(d)(2) provides policy on when the selection of a basic-research proposal is considered a competitive procedure and therefore no J&A is required.
- Set Asides. Per FAR 6.203, 6.204 and 6.205, a separate J&A or D&F is not required to set aside a contracting action to allow only small business concerns to compete, to limit competition to eligible Section 8(a) contractors, or to set aside a contracting action for qualified HUB Zone small business concerns.
- International Agreements. If international requirements are included as a minor part of a larger purchase excluded from competition under one of the exceptions found in FAR 6.302, the required justification will cite only the single predominant exception. The international requirements shall be discussed as part of the larger overall acquisition and the documentation addressed in DFARS 206.302-4 is not required.
- BOAs. Modifications resulting from the annual review directed by FAR 16.703(c)(2) do not require a new class J&A unless there is a change in scope or the dollar threshold of the original justification approval authority has been reached under the previous class J&A.
8. Price/Quantity Variances.
- Price Variation. In drafting a J&A or D&F, the IPT must estimate the dollar value of the particular contract action. Because a J&A or D&F simply provides the authority to proceed using other than full and open competition and does not approve awarding a contract action at a particular dollar amount, some variance above the J&A/D&F estimate is permissible. However, per NMCARS 5206.304, if the dollar value of the negotiated contract exceeds the dollar threshold of the original approval authority, new approval must be obtained from the appropriate authority prior to award. In the event the variance does not exceed the dollar threshold of the original approval authority, the variance must nonetheless be reasonable. As a general rule, a variance not exceeding the lesser of 30 percent of the original estimated J&A/D&F value or $50 million is reasonable. The contracting competency department head and counsel should be consulted in the event the negotiated contract action exceeds the original estimate.
- Quantity Variation. In addition to price variances, variations in quantities are permissible under limited circumstances described at DFARS 207.70, justified in a D&F submitted via DASN(ACQ) for approval by ASN(RDA), in accordance with references (f) and (g).
9. J&A and D&F Distribution. The contracting officer is responsible for ensuring copies of approved documents are distributed to functional codes and Administrative Contracting Officers having a need to know. Originals of each J&A/D&F shall be retained in the official contract file.
10. Review. The Contracts Competency Policy and Process Management Division, AIR-2.1.1, shall annually review the contents herein and provide recommendations for changes and deletions to the Commander.
W. B. MASSENBURG