NAVAIR Instruction 4200.31F
Justification And Approvals And Determinations And Findings for Procurement Actions Utilizing Other than Full and Open Competition
6 March 2014
From: Commander, Naval Air Systems Command
Subj: Justification And Approvals And Determinations And Findings for Procurement Actions Utilizing Other than Full and Open Competition
- Competition in Contracting Act of 1984 (CICA), 10 U.S.C. § 2304
- Federal Acquisition Regulation (FAR) Part 6
- Defense Federal Acquisition Regulation Supplement (DFARS) Part 206
- Navy Marine Corps Acquisition Regulation Supplement (NMCARS), Subpart 5206.3
- FAR Subpart 8.4
- FAR Subpart 16.5
- DFARS Subpart 207.70/li>
- NMCARS Subpart 5207.70
- Freedom of Information Act, 5 USC § 552
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. NAVAIRINST 4200.31E. This is a major revision and should be reviewed in its entirety.
3. Scope and Applicability. This instruction applies to all Naval Air Systems Command (NAVAIR), which includes NAVAIR Headquarters (NAVAIRHQ), Competencies, the Program Executive Officers (PEOs), Program Managers, AIR (PMA), Joint Strike Fighter supported by NAVAIR, subordinate commands, and field activities.
4. Background. 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 8 below, whenever a procurement is conducted using other than full and open competition following references (a) through (d), a J&A or D&F, as appropriate, is required. As noted in paragraph 8 below, there are also competition requirements to be followed per references (e) and (f). The circumstances requiring justification to limit competition are described in this instruction. This will ensure appropriately justified and approved documentation in each respective circumstance. Documentation format and content are guided by NAVAIR's web-based electronic J&A tool application, which is based upon reference (d) and its associated annexes (see paragraph 6b below for further information).
5. Responsibilities. While the J&A or D&F is an Integrated Program Team (IPT) product, responsibility for various aspects of the J&A or D&F is as follows:
- Requiring Activity. In coordination with the IPT, program officials originate the justifying document and prepare information in narrative form.
- Contracting Office. The contracting officer or the contract specialist will review and validate requiring activity inputs. The contract specialist will review the documentation supplied by the requiring activity to ensure that the J&A or D&F contains sufficient facts and rationale to justify the use of the specific authority cited. The contracting officer is responsible for obtaining the assigned counsel's review and for processing the final J&A or D&F from submission through approval.
- Technical Personnel. Technical personnel from appropriate competencies shall support and assist the IPT in preparing the J&A or D&F.
- Office of Counsel. The assigned counsel must review every J&A or D&F for legal sufficiency, and shall sign the J&A to document J&A review and concurrence.
6. Other than Full and Open Competition - J&As.
- Procurement Actions Requiring a J&A. Per references (a) through (d), a J&A is required when a contract action will be solicited, negotiated, and awarded using other than full and open competitive procedures, unless an exception applies (see paragraph 8 below) or a D&F is appropriate (see paragraph 7 below). A contract is considered to be made pursuant to "Full and Open Competition" when all responsible sources are permitted to compete. Bridge contracts or bridge modifications are noncompetitive actions to ensure continuation of services pending award of a competitive follow-on contract and they require both
a J&A and a separate approval for a bridge contract action per reference (d). Note: use of FAR 52.217-8, Option to Extend Services, when option pricing has been evaluated as part of the original competitive source selection, is not a sole source option and thus it is not a bridge and does not require either bridge approval or a J&A.
- Format and Review. The J&A should be prepared using the J&A web-based tool accessible in ePower directly (https://teamworkflow.navair.navy.mil/epwfactivator), or accessible from the myNAVAIR website by clicking on J&A Submission under Acquisition Resources. The web-based tool provides several variations allowing customization for type of justification or unique circumstances (e.g., Small Business Innovative Research (SBIR) Phase III J&A). A tutorial is also available to assist new users. If any applicable portion of the application located in the web-based tool is not complete or contains insufficient information, it will be returned to the requiring activity for correction. Justifications and Approvals that are for follow-on actions shall be routed to the approving authority for signature with a copy of the previous J&A, as applicable. Written acquisition planning documents associated with the J&A, such as Acquisition Plans or Acquisition Strategy documents, shall be provided to the contracting officer and the assigned counsel.
- Content of J&As. Each justification shall be written per FAR 6.303-2 and NMCARS 5206.303-2. Justifications shall cite only one statutory exception to other than full and open competition. The respective IPTs and 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. Sufficient information shall be included in the justification to permit its approval as a standalone document. Justifications may be made on an individual or class basis, except any justification for contracts awarded under the authority of FAR 6.302-7 shall only be made on an individual basis.
- Individual (Stand-alone) J&A - An individual J&A provides authority to solicit, negotiate and award a single contract or contract action without providing for full and open competition. An individual J&A covers a basic quantity, period, or maximum order quantity (for indefinite delivery indefinite quantity (IDIQ) contracts) and includes all options or orders thereunder. Individual J&As shall be used for multiyear
contracts, contracts with priced options, and IDIQ contracts. The total estimated value of the contract or contract action for which competition is being limited, including options, determines the approval authority for the individual J&A. Once the contract or contract action that the individual J&A authorized has been awarded, inclusive of covered options or maximum quantities, an individual J&A is no longer operable (see
also paragraph 9a)
- Class J&As (CJ&As). The CJ&As are appropriate when a class of contract actions will be executed for the same or related supplies or services that require essentially identical justification. 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(d), 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 of the CJ&A) . The contracting officer is also responsible for documenting the contract file for each contract action taken. Do not utilize a CJ&A for multiyear contracts, contracts with priced options, and IDIQ contracts, since these are considered individual contract actions. A class of contracts includes, but is not limited to:
- Orders to be issued under a Basic Ordering Agreement (BOA) (however, use of CJ&As for orders under BOAs is not mandatory);
- Consecutive years of production buys to be solicited as separate contract actions, and,
- Multiple contracts to provide Government Furnished Equipment for assembly into an end item.
- CJ&A Content. The content requirements for CJ&As are the same as for individual J&As (per paragraph 6c above). To perform the scope assessment required by FAR 6.303-1(d), it is especially important that the type(s) of contract actions covered by the CJ&A be clearly defined in paragraph 2 of the CJ&A. Each CJ&A must include an expiration date, expressed as a calendar date, after which authority to issue new contracts or
contract actions ceases.
- J&A Approval Levels. The estimated dollar value of the maximum quantity of the basic contract and all options are included in determining the appropriate approval level. Class Justifications and Approvals shall be approved in the same manner as individual J&As. The cumulative dollar amount of all contract actions contemplated under the CJ&A shall be used to determine the approval level.
- Approval levels for J&As are as follows:
|Not exceeding $650K||Contracting Officer Certification (No additional approvals required)|
|Over $650K But not exceeding $12.5M||Procuring Activity Competition Advocate (PACA), * Flag or Senior Executive Service (SES) in Contracting**|
|Over $12.5M But not exceeding $85.5M||Flag or SES in Contracting**|
|Over $85.5M||Navy Senior Procurement Executive (NSPE))|
*By approval of this instruction, the Commander, NAVAIR hereby appoints the Assistant Commander for Contracts (AIR-2.0) as the PACA for NAVAIRHQ and delegates to AIR-2.0 the authority to designate PACAs for contracting offices at the Naval Air Warfare Centers.
**By approval of this instruction, per FAR 6-304(a) (3), persons occupying SES positions in AIR-2.0 are hereby designated as the appropriate approval authority.
- Navy Senior Procurement Executive Approval. The J&As greater than $85.5 million require NSPE approval. The J&As requiring NSPE approval shall be forwarded using an action memo for Assistant Secretary of the Navy (Research, Development and Acquisition (ASN (RD&A)). The action memo will be signed by the cognizant AIR-2.0 SES department head or, for departments without an SES, by the Assistant Commander for Contracts (AIR-2.0) or Deputy Assistant Commander(s) for Contracts. Following signature, the action memo and J&A will be submitted electronically to the Deputy Assistant Secretary of the Navy, Acquisition and Procurement (DASN(AP)) at RDAJ&As@navy.mil, with a courtesy copy to the cognizant PEO. Following reference (d), include the names and phone numbers for the PEO, Program Manager, and contracting officer 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(RD&A). To facilitate processing, the electronic J&A package should be provided to the NAVAIR point of contact at DASN(AP) upon release of the J&A package from AIR-2.0.
- Non-NAVAIRHQ contracting offices shall route J&A documents through their AIR-2.0 chain of command when approval is required above the PACA level per the table in paragraph 6d(l).
- Synopsis Requirements. Unless an exception applies, the FAR 5.203 synopsis time requirements shall pass prior to formal routing of a J&A. Routing J&As to ASN(RD&A) shall not occur prior to elapse of synopsis time requirements unless an exception to synopsis is cited.
7. 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 exclude partially or totally a particular source(s) from a competed contract action in order to establish or maintain alternative source(s). A competition follows exclusion of the particular source(s) . The various bases for excluding a source(s) are set forth at FAR 6.202(a). This D&F shall not be used on a class basis.
- Public Interest Exception. D&F is processed to document the public interest exception set forth at FAR 6.302-7. This D&F shall not be made on a class basis.
International Agreement Exception. Although FAR 6.302-4 exempts the Department of Defense from the requirement for a written justification when relying upon the international agreement exception, DFARS 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 (e.g. a Letter of Offer and Acceptance) that have the effect of
requiring the use of other than full and open competition. A D&F shall be used for contracts using other than full and open competition under the international agreement exception (e.g., foreign military sales) provided that the agreement, treaty, or other written direction specifies a source by name or that competition be limited. Such D&Fs shall be accompanied by the agreement, treaty, or other written direction or applicable segment thereof. See sample D&F for this at https://contracts.navair.navy.mil/index.cfm?fuseaction=home.guideSection§ion_id=194.
- D&F Approval Levels. The estimated dollar value of the maximum quantity of the base contract 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 or Maintain Alternative Source Not Exceeding $85.5||Flag or SES in Contracting*|
|Establish or Maintain Alternative Source Over $85.5M||NSPE|
|Any dollar value citing FAR 6.302-4 (Int'l Agmt)||Contracting Officer**|
|Any dollar value citing FAR 6.302-7 (Public Interest)||Secretary of the Navy|
* By approval of this instruction and per NMCARS 5206.202, the Commander, NAVAIR hereby designates persons occupying SES positions in AIR-2.0 as the appropriate approval authority.
** By approval of this instruction, the Commander, NAVAIR hereby delegates the authority granted to the Head of the Contracting Activity at DFARS 206.302-4 to NAVAIR contracting officers.
- Content. Federal Acquisition Regulation 1.704 provides general policy on D&F content. Defense Federal Acquisition Regulation Supplement Procedures, Guidance, and Information 206.202 provides specific policy on D&F content and the approved agency format for excluding a source. Determinations and Findings shall be prepared on NAVAIR letterhead.
- Class D&Fs. Requirements for drafting a class D&F are set forth at FAR 1.703. Per FAR 1.706, expiration dates are required for class D&Fs.
8. 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.
- 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. Similarly, a J&A is not required for within-scope change orders (i.e., a written order, signed by the contracting officer, directing the contractor to make a within
scope change that the Changes clause authorizes the contracting officer to order unilaterally). Change orders are contract modifications executed on the SF 30 (REV. 10-83), Amendment of Solicitation/Modification of Contract, and are not "orders" pursuant to references (e) or (f))
- Orders Under Federal Supply Schedules (FAR 8.4). Orders and Blanket Purchase Agreements under the multiple award schedules program (i.e., Federal Supply Schedules), using the procedures in FAR Subpart 8.4, are competitive procedures and are exempt from the J&A requirements in Part 6. However, each order exceeding the Simplified Acquisition Threshold (as defined in FAR 2.101), currently $150,000, shall be placed on a
competitive basis unless this requirement is waived on the basis of a Limited Sources Justification (LSJ) per FAR 8.405-6. Utilize the web-based tool to appropriately select a FAR 8.4 LSJ format and obtain approval per paragraph 6d(1) above (Note: these thresholds and approval levels are the same as J&A thresholds and approval levels).
- Orders under IDIQ Contracts (FAR 16.5)
- Orders placed under single award requirements, definite quantity, or IDIQ contracts in which the basic contract was awarded using full and open competition do not require a J&A or D&F provided the order is within the scope and under the terms and conditions of the competitively awarded contract.
- Orders placed under single award IDIQ contracts in which the basic contract was awarded using other than full and open competition pursuant to the authority of an approved J&A or D&F do not require a separate J&A or D&F for the order provided the original J&A or D&F adequately covers the requirements in the order (see also paragraph 6c(1))
- Orders placed under multiple award IDIQ contracts do not require justification when fair opportunity competition has been conducted for the order. Otherwise, a Justification for an Exception to Fair Opportunity (JEFO) must be prepared and approved for the order. Utilize the web-based tool to appropriately select a FAR Subpart 16.51 JEFO format and obtain approval per paragraph 6d(1) above (Note: these thresholds and
approval levels are the same as J&A thresholds and approval levels)
- Procurements made under the SBIR Program. Federal Acquisition Regulation 6.102(d) (2) provides policy regarding when the selection of a basic research proposal is considered a competitive procedure; under this authority, the SBIR Phases I and II do not require a J&A. However, per NMCARS 5206.302-5, a J&A is required for contracts awarded under SBIR Phase III. Utilize the web-based tool referred to in paragraph 4 to
appropriately select an SBIR format.
- Set Asides. Per FAR 6.203 through 6.207, a 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 (except a J&A is required for sole source 8(a) acquisitions exceeding $20 million), to set aside a contracting action for qualified HUB Zone small business concerns, service-disabled veteran-owned small business concerns, economically disadvantaged women-owned small business (WOSB) concerns or WOSB concerns eligible under the WOSB Program. Utilize the web-based tool referred to in paragraph 4
to appropriately select an SS8A format.
- Set-asides for Local Firms During a Major Disaster or Emergency. Per FAR 6.208, no separate J&A or D&F is required to set aside a contract action for local firms within an area identified in a Presidential declaration(s) of major disaster or emergency and any additional geographic areas identified by the Department of Homeland Security.
- International Agreements. If international requirements are included in a contract as a minor part of a larger domestic requirement excluded from competition under one of the exceptions found in FAR 6.302, the required justification will cite only the predominant exception related to the domestic requirement. The international requirement shall be discussed as part of the larger overall contract and the documentation
addressed in DFARS 206.302-4 is not required.
- Basic Ordering Agreements. Modifications resulting from the annual BOA review directed by FAR 16.703(c) (2) do not require a new CJ&A unless there is a change in scope or the dollar threshold of the original CJ&A approval authority has been reached under the previous CJ&A. (See paragraph 6c(2) (a).)
- Simplified Acquisitions. Contracts awarded under FAR Part 13, simplified acquisition procedures, do not require a J&A, except a J&A is required for sole source acquisitions pursuant to the test program at FAR Subpart 13.5.
9. Price/Quantity Variances.
- Price Variation. In drafting a J&A or D&F, the IPT must estimate the dollar value of the proposed contract or 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 or contract action at a particular dollar amount, some variance above the J&A or D&F estimate is permissible. As a general rule, a variance not exceeding 30 percent of the original estimated J&A or D&F value is reasonable provided the increased amount does not breach the threshold of the original approval authority. This variance applies to the instant acquisition only, not to future acquisitions. (See paragraph 6c(l)). Once the instant acquisition is awarded, the permissible variance is no longer operable. Further regarding the variance, per NMCARS 5206.304, if the dollar value of the contract or action is negotiated at a level that exceeds the authority of the official who approved the original J&A or D&F, new approval must be obtained from the appropriate authority prior to award. The price variation factor does not apply to CJ&As or class D&Fs.
- Quantity Variation. Where the quantity of an end item is set in a law providing funding for that end item, it may be permissible to exceed that quantity using the funding available for that end item (i.e., buy to budget) under the limited circumstances described in DFARS Subpart 207.70, if justified in a D&F submitted, via DASN(AP), for approval by ASN(RD&A), per references (g) and (h)
10. Public Availability.
- Posting. The contracting officer is responsible for ensuring that J&As under FAR Part 6, LSJs under FAR Subpart 8.4, Justification for Exceptions to Fair Opportunity under FAR Subpart 16.5 and J&As (when needed) under FAR Subpart 13.5 are published by posting to the government-wide point of entry (GPE) www.fedbizopps.gov within 14 days after contract award or within 30 days after contract award if the J&A is based on unusual and compelling urgency. However, per FAR 5.102 (a) (6), for acquisitions containing brand name specifications, the J&A must be posted to the GRE with the solicitation. Class Justifications and Approvals supporting each order under a BOA also requires posting subsequent to order issuance following the above deadlines.
- Redacting. Information exempt from public disclosure under reference (i) is excluded from the above posting requirement. Hence, FAR 6.305(e) requires redacting, as necessary, to preclude disclosure of proprietary information or information that would otherwise compromise national security. In consultation with assigned counsel, as necessary, contracting officers shall carefully screen J&As for contractor proprietary data and redact such data before publishing the J&A, LSJ, or JEFO, as applicable. In addition, the posted J&A document need only include the names that the FAR requires for certification and approval (see FAR 6.303-2(b) (12) and (c)). Finally, this review, screening, and redaction process shall not prevent or delay posting per the timeframes in paragraph 10a.
11. 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 document shall be retained in the official contract file.
12. Review. The Contracts Competency Policy and Process Management Division shall annually review the contents herein and provide recommendations for changes and deletions to the Commander.
13. Forms. SF 30 (REV.10-83) Amendment of Solicitation/Modification of Contract can be downloaded at http://www.gsa.gov/portal/forms/download/116158
D. A. DUNAWAY