Competition in Federal Contracting: An
Overview of the Legal Requirements
Kate M. Manuel
Legislative Attorney
January 21, 2010
Congressional Research Service
7-5700
www.crs.gov
R40516
CRS Report for Congress
P
repared for Members and Committees of Congress
Competition in Federal Contracting: An Overview of the Legal Requirements
Summary
This report describes the legal requirements pertaining to competition that presently apply to
federal procurement contracts. Among other things, it discusses (1) what contracts are subject to
competition requirements; (2) what constitutes full and open competition for government
contracts; (3) what is meant by “full and open competition after exclusion of sources”; (4)
circumstances permitting agencies to award contracts on the basis of other than full and open
competition; (5) “special simplified procedures for small purchases”; and (6) competition
requirements for task and delivery order (TO/DO) contracts.
Any procurement contract not entered into through the use of procurement procedures expressly
authorized by a particular statute is subject to the Competition in Contracting Act (CICA). CICA
requires that contracts be entered into after “full and open competition through the use of
competitive procedures” unless certain circumstances exist that would permit agencies to use
noncompetitive procedures. Full and open competition can be obtained through the use of sealed
bids, competitive proposals, or other procures defined as competitive under CICA (e.g.,
procurement of architectural or engineering services under the Brooks Act). Full and open
competition under CICA also encompasses “full and open competition after exclusion of
sources,” such as results when agencies engage in dual sourcing or set aside acquisitions for small
businesses. Any contract entered into without full and open competition is noncompetitive, but
noncompetitive contracts can still be in compliance with CICA when circumstances permitting
other than full and open competition exist. CICA recognizes seven such circumstances, including
(1) single source for goods or services; (2) unusual and compelling urgency; (3) maintenance of
the industrial base; (4) requirements of international agreements; (5) statutory authorization or
acquisition of brand-name items for resale; (6) national security; and (7) contracts necessary in
the public interest. CICA also allows agencies to use “special simplified procedures” when
acquiring goods or services whose expected value is less than $100,000, or commercial goods or
services whose expected value is less than $5.5 million ($11 million in emergencies).
Issuance of orders under task order and delivery order (TO/DO) contracts is not subject to CICA,
although award of TO/DO contracts is. However, the Federal Acquisition Streamlining Act of
1994 establishes a preference for multiple-award TO/DO contracts and requires that agencies
provide contractors “a fair opportunity” to compete for orders in excess of $2,500 under multiple-
award contracts. The National Defense Authorization Act for FY2008 (P.L. 110-181) strengthened
these requirements by limiting the use of single-award TO/DO contracts; specifying what
constitutes a “fair opportunity to be considered” for orders in excess of $5 million under multiple-
award TO/DO contracts; and granting the Government Accountability Office (GAO) temporary
jurisdiction to hear protests of task and delivery orders in excess of $10 million.
Competition in federal procurement contracting has become a topic of increased congressional
and public interest, in part because of alleged misconduct involving noncompetitive contracts and
reports that the number of noncompetitive contract actions has increased. The 111th Congress has
enacted several statutes addressing competition requirements (e.g., P.L. 111-5, P.L. 111-8, P.L.
111-23, P.L. 111-80, P.L. 111-83, P.L. 111-84, P.L. 111-85, P.L. 111-88, P.L. 111-117, P.L. 111-
118) and is considering additional legislation (e.g., H.R. 1665, H.R. 2200, H.R. 2269, H.R. 2998,
H.R. 3310, H.R. 3221, H.R. 3783, H.R. 4221, S. 454, S. 1420, S. 1677, S. 2800). The Obama
Administration has also called for a 10% reduction in, among other things, the number of
noncompetitive contracts awarded in FY2010 and issued guidance on limiting federal spending
under noncompetitive contracts.
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Competition in Federal Contracting: An Overview of the Legal Requirements
Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 2
Contracts Not Subject to CICA ................................................................................................... 5
Contracts Subject to CICA .......................................................................................................... 7
Full and Open Competition Defined ...................................................................................... 7
Competitive Procedures Resulting in Full and Open Competition .......................................... 7
“Full and Open Competition After Exclusion of Sources”................................................ 9
Circumstances Permitting Other Than Full and Open Competition ...................................... 10
Justifications & Approvals ............................................................................................ 12
“Special Simplified Procedures for Small Purchases” .......................................................... 14
Other Competition Requirements ........................................................................................ 18
Competition Requirements for Task and Delivery Order Contracts ............................................ 19
Legislation in the 111th Congress ............................................................................................... 22
Legislation Enacted in the 111th Congress............................................................................ 23
Legislation Proposed in the 111th Congress.......................................................................... 25
Recent Executive Branch Policies ............................................................................................. 27
Figures
Figure 1. Contracts Subject and Not Subject to CICA.................................................................. 6
Figure 2. Simplified Acquisition Procedures: Competition Requirements at Various Price
Thresholds ............................................................................................................................. 16
Figure 3. TO/DO Contracts: Competition Requirements at Various Price Thresholds ................. 22
Tables
Table 1. Approving Officials for Noncompetitive Contracts in General...................................... 13
Table 2. Approving Officials for Noncompetitive Contracts Under the Simplified
Acquisition Procedures .......................................................................................................... 17
Table 3. Types of Competition Under CICA .............................................................................. 17
Table A-1. Potential Applications and Limitations ..................................................................... 29
Table B-1. Federal Contract Awards by Extent of Competition: FY2002-FY2009 ...................... 32
Appendixes
Appendix A. Circumstances Permitting Other Than Full and Open Competition Under
CICA ..................................................................................................................................... 29
Appendix B. Statistical Data on Competition in Federal Contracting ......................................... 32
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Competition in Federal Contracting: An Overview of the Legal Requirements
Contacts
Author Contact Information ...................................................................................................... 33
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Competition in Federal Contracting: An Overview of the Legal Requirements
Introduction
“Procurement” describes the process whereby the government obtains from private parties goods
and services that it does not produce or provide for itself. Competition in government
procurement means that the government determines from whom to buy goods and services—and
thus with whom to contract—by “solicit[ing] or entertain[ing] offers from two or more
competitors, compar[ing] them, and accept[ing] one based on its relative value.”1 Competition in
federal procurement contracting has recently become a topic of increased congressional and
public interest, in part because of high-profile incidents of alleged misconduct by contractors or
agency officials involving noncompetitive contracts and reports that the number of
noncompetitive contract actions by the federal government has increased.2 Hearings in the 110th
and 111th Congresses have addressed agencies’ alleged failures to compete contracts properly;3
Members have proposed and enacted legislation addressing reported deficiencies in the laws
governing competition in federal contracting, or agencies’ compliance with these laws,4 and
commentators have advocated numerous reforms.5
This report describes the competition requirements currently governing the procurement activities
of federal agencies. It addresses (1) what contracts are subject to competition requirements; (2)
what constitutes full and open competition for government contracts; (3) what is meant by “full
and open competition after exclusion of sources”; (4) the circumstances permitting agencies to
award contracts on the basis of other than full and open competition; (5) the “special simplified
procedures for small purchases”; (6) the competition requirements for task order and delivery
order (TO/DO) contracts; (7) recent executive branch policies promoting competition in federal
procurement contracting; and (8) possible legislative reforms relating to competition. It also
1 Ralph C. Nash, Jr., Steve L. Schooner, Karen R. O’Brien-DeBakey, and Vernon J. Edwards, The Government
Contracts Reference Book: A Comprehensive Guide to the Language of Procurement 109-110 (2d ed. 2007).
2 See, e.g., Robert O’Harrow, Jr., FDA Takes End Run to Award Contract to PR Firm, Wash. Post, Oct. 2, 2008,
available at http://www.washingtonpost.com/wp-dyn/content/article/2008/10/01/AR2008100103061.html (reporting
that the U.S. Food and Drug Administration made a noncompetitive award to “ensure the work would go to a
Washington public relations firm with ties to the FDA official arranging the deal”); Alice Lipowicz, Agencies Spent
Billions of Stimulus Money on Noncompetitive Contracts, Fed. Computer Week, Oct. 15, 2009, available at
http://fcw.com/Articles/2009/10/15/Agencies-spent-billions-from-stimulus-on-noncompetitive-nonfixedprice-
contracts.aspx (reporting widespread use of noncompetitive contracts under the American Recovery and Reinvestment
Act).
3 See, e.g., Failed Homeland Security Contracts: Hearings Before the Subcomm. on Mgmt., Investigations & Oversight
of the House Comm. on Homeland Security, 110th Cong. (Sept. 17, 2008) (testimony of James L. Taylor, Deputy
Inspector General, DHS) (noting that DHS did not comply with federal regulations when it awarded a sole-source
contract to Chenega Technology Services Corporation); Contracting Revision Bills: Hearing before the Subcomm. on
Government Mgmt., Organization & Procurement of the H. Comm. on Oversight & Government Reform, 110th Cong.
(Feb. 27, 2008) (testimony of Paul A. Denett, Administrator, Office of Federal Procurement Policy) (highlighting
recent executive branch efforts to increase competition in contracting).
4 See, e.g., P.L. 111-5, § 1554, 123 Stat. 302 (Feb. 17, 2009) (“To the maximum extent possible, contracts funded under
this Act shall be awarded as fixed-price contracts through the use of competitive procedures.”); H.R. 4221, § 7
(establishing a complaint process for “restricted competitions” at the Department of Veterans Affairs).
5 See, e.g., Center for American Progress, A Return to Competitive Contracting: Congress Needs to Clean Up the
Procurement Process Mess, May 2007, available at https://www.policyarchive.org/handle/10207/7772 (proposing,
among other things, reforms relating to blanket purchase agreements and TO/DO contracts); Contracting Revision
Bills, supra note 3 (testimony of Marcia Madsen, Chair, Acquisition Advisory Panel) (proposing to enhance
competition through requirements definition and planning).
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Competition in Federal Contracting: An Overview of the Legal Requirements
briefly describes the benefits and drawbacks of competition, situates recent reform efforts within
their historical context, and discusses how the policy debates surrounding competition in federal
contracting can shape legislative responses. It does not directly address so-called “public-private
competitions” or “competitive sourcing targets” under the Federal Activities Inventory Reform
(FAIR) Act or Office of Management and Budget (OMB) Circular A-76.6 Public-private
competitions are conducted to determine whether government employees or private contractors
will perform functions formerly performed by the government that have been identified as
commercial and suitable for contracting out. Such competitions are generally subject to the
requirements described here.7
Background
The federal government has promoted competition between offerors seeking to meet its needs
since at least 1781, when the Superintendent of Finance advertised in a local newspaper for
proposals from potential suppliers of food for federal employees in Philadelphia.8 Then, as now,
the government encouraged competition because of its reported benefits to the government and
the general public. Proponents of competition note that when multiple offerors compete for the
government’s business, the government can acquire higher quality goods and services at lower
prices than it would acquire if it awarded contracts without competition. Proponents also note that
competition helps to curb fraud because it allows for periodic changes in the vendors from which
the government acquires goods and services, thereby limiting opportunities for government
employees to enter into collusive agreements with their regular suppliers. Competition is
similarly said to promote accountability by ensuring that contracts are entered into on their merits
and not upon any other basis (e.g., familial or other relationships between contracting officers and
contractors). Because the government is said to acquire the highest quality goods and services at
the lowest prices, proponents of competition further note that competition helps government
officials reassure citizens that their tax dollars are not spent wastefully. Finally, proponents of
competition claim that citizens are less likely to perceive contracts as being awarded because of
favoritism when there is competition.
Competition is not considered an unmitigated good by all, however, as is noted by those who
advocate for certain limits on competition. Such commentators point out that ensuring eligible
suppliers are aware of government needs and have time to prepare offers and evaluating
competing offers take time and can delay agency operations. Such delays are reportedly
especially harmful when agencies are contracting for goods or services for disaster responses or
military operations. Moreover, because there are costs involved in agencies’ soliciting and
evaluating offers, these commentators note that there comes a point when the government’s costs
6 See FAIR Act, P.L. 105-270, 112 Stat. 2382 (1998) (codified at 31 U.S.C. § 501 note); Executive Office of the
President, OMB, Performance of Commercial Activities: Circular A-76 Revised, May 29, 2003, available at http://a-
76.nih.gov/a76_rev2003.pdf.
7 The Omnibus Appropriations Act for 2009 prohibited agencies from conducting new public-private competitions
under OMB Circular A-76 through September 30, 2009. P.L. 111-8, Title VII, Transfer for Funds, § 737, 123 Stat. 691
(Mar. 11, 2009). Subsequent legislation limited agencies’ ability to conduct public-private competitions in FY2010 and
beyond by requiring that certain studies be completed before competitions can be conducted. See P.L. 111-117, §
743,—Stat.—(Dec. 16, 2009) (civilian agencies); P.L. 111-84, § 325, 123 Stat. 2253-54 (Oct. 28, 2009) (defense
agencies). For more on public-private competitions generally, see CRS Report RL32079, Federal Contracting of
Commercial Activities: Competitive Sourcing Targets, by L. Elaine Halchin.
8 James F. Nagle, A History of Government Contracting, 49 (2d ed. 1999).
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Competition in Federal Contracting: An Overview of the Legal Requirements
in competing contracts are greater than the savings it realizes from the lower price, higher quality
goods it obtains through competition. It was, in part, for this reason that the drafters of the
Competition in Contracting Act (CICA) of 19849 opted to require full and open competition
rather than maximum competition. They reportedly considered language calling for “maximum
competition,”10 but rejected it, in part, because “there is a point of diminishing return” with
competition.11 Proponents of limits on competition further note that competition can increase the
risk that government contractors will be unable to perform by allowing new contractors—who do
not have experience meeting agencies’ needs or complying with the accounting and paperwork
requirements imposed on federal contractors—to win government contracts. Agencies reportedly
would prefer to deal with their incumbent contractors, assuming these contractors are competent,
because they represent “known quantities” for the agencies.12
As the accompanying chronology illustrates, the federal government’s requirements for
competition in contracting have periodically shifted as the government has variously sought to
realize the benefits of competition or to further other goals, such as the protection of national
security in times of war or efficiency in agency operations, in its procurement activities. Armed
conflicts, in particular, typically lead to relaxation of competition requirements, but often result in
alleged abuses—such as “war profiteering” by contractors and waste of money on overpriced
goods and services—that later lead to increased competition requirements.13
Chronology
1809
Congress passes the first law requiring competition in federal procurement
contracting. This law established what came to be known as “formal advertising” as
the preferred method for federal procurements by specifying that “al purchases and
contracts for supplies or services … shal be made by open purchases, or by
previously advertising for proposals.” (2 Stat. 536 (1809)).
1861
Congress reaffirms its commitment to formal advertising by passing a statute stating
that “all purchases and contracts for supplies and services, ... except for personal
services, ... shall be made by advertising a sufficient time previously for proposals
respecting the same” unless immediate delivery is required due to “public
exigencies.” (12 Stat. 220 (1861)).
1914-1918
The War Industries Board authorizes negotiated procurements, or procurements
9 CICA was enacted as part of the Deficit Reduction Act of 1984, P.L. 98-369, §§ 2701-2753, 98 Stat. 1175 (1984). It
amended the Armed Services Procurement Act of 1947; Federal Property and Administrative Services Act of 1949;
Office of Federal Procurement Policy Act of 1974; and Truth in Negotiation Act (TINA) of 1962. It also created a
statutory basis for the bid-protest function of the GAO. CICA’s competition requirements took effect on April 1, 1985.
10 Competition in Contracting Act of 1983: Hearings Before the Senate Comm. on Armed Services, 98th Cong., 1st Sess.
260-61 (1983). The guidelines for implementing some of President Obama’s recently proposed procurement reforms
similarly call for “maximum practicable competition,” rather than “maximum competition.” See Executive Office of
the President, Office of Management and Budget, Updated Implementing Guidance for the American Recovery and
Reinvestment Act of 2009, at 52 (Apr. 3, 2009), available at http://www.whitehouse.gov/omb/assets/
memoranda_fy2009/m09-15.pdf.
11 Competition in Contracting Act of 1983, supra note 10, at 304 (testimony of John Cibinic, Jr., Government Contracts
Program, National Law Center, The George Washington University).
12 William S. Cohen, The Competition in Contracting Act, 14 Pub. Cont. L.J. 20-21 (1983/1984) (“Generally, agency
officials have an easier time if they stay with the same contractor throughout the procurement process.”).
13 See id. at 6 (describing allegations of “war profiteering” in the aftermath of WWI); Competition in Contracting Act of
1984: Hearings on H.R. 5184 Before the Subcomm. on Legis. & Nat’l Security of the House Comm. on Gov’t
Operations, 98th Cong., at 2 (1984) (statement by Representative Brooks) (describing how DOD spent $435 for “an
ordinary claw hammer”).
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involving bargaining with the offerors after receipt of proposals. Such procurements
are classified as noncompetitive.
1930
The War Policies Commission recommends that formal advertising be replaced by
negotiated procurement during times of war. Congress does not enact this
proposed change, but does recognize additional exceptions allowing use of
negotiated procurement instead of formal advertising.
1939-1945
In December 1941, Congress passes the First War Powers Act, which authorizes
the President to grant agencies that are “involved in the war” authority to enter into
contracts “without regard to the provision of law relating to the making,
performance, amendment, or modifications of contracts.” (55 Stat. 838 (1941)).
Later in the war, the War Production Board prohibits agencies from using formal
advertising without specific authorization to do so.
1945
A task force of the Procurement Policy Board, consisting of officers from the federal
procuring agencies, recommends relaxing competition requirements to support the
growth and sustainability of the industrial base.
1947
Congress passes the Armed Services Procurement Act (ASPA), which general y
requires use of formal advertising but al ows use of negotiated procurements when
any of seventeen exceptions apply. These exceptions address things such as
medicines or medical property; property purchased for authorized resale; perishable
or nonperishable subsistence supplies; and property and services for which it is
impracticable to secure competition. ASPA only applies to the procurement
contracts of defense agencies.
1949
Congress passes the Federal Property and Administrative Services Act (FPASA),
subjecting civilian agencies to requirements like those in ASPA. FPASA recognizes
fifteen exceptions to formal advertising.
1982 Senators
William V. Roth, Jr., Carl Levin, and William S. Cohen first introduce the
Competition in Contracting Act (CICA) (S. 2127). Increased competition in
contracting is also among the “Carlucci Initiatives,” 32 steps for reforming defense
acquisitions announced by then Deputy Secretary of Defense Frank Carlucci.
1984
Congress passes CICA, requiring agencies to obtain “full and open competition
through the use of competitive procedures” in their procurement activities unless
otherwise authorized by law.
1990-1991
Military agencies experience difficulties in procuring commercial items for use during
the Gulf War. In one high-profile incident, the Air Force’s attempt to purchase $10
million worth of commercially available mobile radios for the troops falls through
because the supplier, Motorola, is not used to dealing with the government and
does not have a government-approved cost-accounting program in place to justify
its price. Motorola sells the radios to Japan, which gives them to the Air Force.
1994
Congress passes the Federal Acquisition Streamlining Act (FASA), which establishes
a “preference” for the acquisition of commercial items in meeting agencies’
procurement needs. FASA also articulates competition requirements for task order
and delivery order (TO/DO) contracts.
1996
Congress passes the Federal Acquisition Reform Act (FARA), which requires that
agencies “obtain full and open competition ... in a manner that is consistent with the
need to efficiently fulfill the Government’s requirements.” FARA also relaxes the
rules imposed on agencies’ purchases of commercial items.
2003
Congress passes the Services Acquisition Reform Act (SARA). SARA further relaxes
the rules imposed upon procurement of commercial services.
2008
Section 843 of the National Defense Authorization Act for FY2008 limits the use of
single-award task order/delivery order (TO/DO) contracts in excess of $100
million; grants GAO temporary jurisdiction over protests involving orders of $10
million or more; and specifies what constitutes a “fair opportunity to be considered”
for orders in excess of $5 million.
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The current interest in competition in contracting is perhaps to be expected given developments in
the 25 years since the enactment of CICA. CICA itself requires that agencies “obtain full and
open competition through the use of competitive procedures” in all procurements not involving
the use of procedures expressly authorized by a particular statute.14 CICA remains the foundation
for the current competition requirements, but has been amended or supplemented by later laws
that place efficiency in agency operations or other public benefits on par with competition, or
expand agencies’ ability to use “special simplified methods” for contracting for commercial
items. The Federal Acquisition Streamlining Act (FASA) of 1994, for example, establishes a
“preference” for the procurement of commercial items, which are generally not subject to full and
open competition under CICA.15 FASA was followed by the Federal Acquisition Reform Act
(FARA) of 1996, which placed increasing emphasis on efficiency in agency operations by
requiring that the Federal Acquisition Regulation (FAR) be amended to “ensure that the
requirement to obtain full and open competition is implemented in a manner that is consistent
with the need to efficiently fulfill the Government’s requirements.”16 FARA and the Services
Acquisition Reform Act (SARA) of 200317 also relaxed the rules governing agencies’ acquisition
of commercial items. More recently, the Emergency Economic Stabilization Act (EESA) of 2008
authorizes the Secretary of the Treasury to use other than full and open competition upon
determining “that urgent and compelling circumstances make compliance with [the competition]
provisions contrary to the public interest.”18 This provision is designed to ensure that competition
requirements, among other things, do not slow the Treasury Department’s formation of contracts
for services that would help stabilize U.S. financial markets and the banking system.19
Contracts Not Subject to CICA
Not all contracts—or even all procurement contracts—that agencies lawfully enter into are the
result of full and open competition, or an “exception” to it, under CICA.20 Non-procurement
contracts, such as those resulting from agencies’ use of other transaction authority (OTA) or
14 10 U.S.C. § 2304(a)(1)(A) & 41 U.S.C. § 253(a)(1)(A). Citations to CICA’s codification generally reference two
titles of the United States Code: Title 10 governing procurements by defense agencies, NASA, and the Coast Guard,
and Title 41 governing procurements by civilian agencies. The numbering and language of these sections are often—
but not always—identical.
15 P.L. 103-355, § 8104, 108 Stat. 3391 (codified at 10 U.S.C. § 2377(a)-(b)); P.L. 103-355, § 8203, 108 Stat. 3391
(codified at 41 U.S.C. § 264b(a)-(b)) (“The head of each executive agency shall ensure that procurement officials in
that executive agency, to the maximum extent practicable, acquire commercial items or nondevelopmental items other
than commercial items to meet the needs of the executive agency.”).
16 P.L. 104-106, § 4101, 110 Stat. 642 (Feb. 10, 1996) (codified at 41 U.S.C. § 251 note).
17 P.L. 108-136, §§ 1401-1433, 117 Stat. 1664-1676 (Nov. 23, 2003) (codified, in part, at 41 U.S.C. § 264 note and 41
U.S.C. § 403).
18 P.L. 110-343, Title I, § 107(a), 122 Stat. 3773 (Oct. 3, 2008). The Secretary must transmit his or her determination,
and its accompanying justification, to several congressional committees within 7 days.
19 Some contracts entered into without full and open competition under the EESA have been of types traditionally
“considered high risk for the government.” Gov’t Accountability Office, Troubled Asset Relief Program: Additional
Actions Needed to Better Ensure Integrity, Accountability, and Transparency 38 (Dec. 2008), available at
http://www.gao.gov/products/GAO-09-161.
20 In introducing the circumstances permitting use of noncompetitive procedures, CICA does not speak of “exceptions”
to its competition requirements. See 10 U.S.C. § 2304(c) & 41 U.S.C. § 253(c). However, it uses the term “exception”
in reference to these circumstances in its requirement for justifications and approvals of contracts awarded using other
than full and open competition, and commentators commonly refer to the “CICA exceptions” when describing these
circumstances. See 10 U.S.C. § 2304(f)(3)(B) & 41 U.S.C. § 253(f)(3)(B).
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similar authorities, are not subject to CICA because they are not procurement contracts, and CICA
only applies to “procurement procedures.”21 OTA refers to agencies’ authority to enter into an
“other transaction,” or “a form of contract ... that is not a procurement contract, grant, or
cooperative agreement.”22 Only a few agencies, most notably the Departments of Defense,
Transportation, Homeland Security, Health and Human Services, and Energy, have been granted
OTA on a permanent or temporary basis so that they can contract for research and development
(R&D) or prototypes of promising new technologies without full and open competition.23
Contracting for R&D or prototypes can be difficult because the uncertainties inherent in the
development of new technologies make it hard to establish contract prices. Additionally, the
companies best able to perform such contracts are often not regular government vendors and may
be unwilling or unable to comply with the government’s procurement regulations. OTA helps to
avoid these difficulties.
Also not subject to the requirement for full and open competition under CICA are those
procurement contracts entered into through the “use of procurement procedures ... expressly
authorized by statute.”24 There are numerous statutory provisions that allow agencies to use
specific procurement procedures in certain circumstances, or otherwise allow them to limit
competition for procurement contracts. One provision of the Consolidated Appropriations Act for
FY2005, for example, allows the U.S. Agency for International Development to place task orders
with small or small disadvantaged businesses in lieu of providing a “fair opportunity” for all
eligible firms to compete.25 Other provisions of this law allow agencies to limit competition to
certain groups or entities, notwithstanding CICA, or to enter into contracts without competition.26
Figure 1. Contracts Subject and Not Subject to CICA
Source: Congressional Research Service
21 10 U.S.C. § 2304(a)(1)(A) & 41 U.S.C. § 253(a)(1)(A).
22 Government Contracts Reference Book, supra note 1, at 414.
23 For more on OTA generally, see CRS Report RL34760, Other Transaction (OT) Authority, by L. Elaine Halchin.
24 10 U.S.C. § 2304(a)(1)(A); 41 U.S.C. § 253(a)(1)(A). CICA also does not apply to contract modifications, including
the exercise of price options evaluated as part of the initial competition, that are within the scope and under the terms of
existing contracts, or orders under requirements contracts or definite-quantity contracts. 48 C.F.R. § 6.001(a)-(f).
25 P.L. 108-447, Division D, § 534(e), 118 Stat. 2809, 3006 (Dec. 8, 2004).
26 Id. at Division E, Title I, 118 Stat. 3040 (allowing the Bureau of Land Management to limit competition for contracts
for hazardous fuel reduction activities to specified groups or entities, notwithstanding CICA); id. at Division E, Title II,
118 Stat. 3089 (allowing the National Gallery of Art to contract for the restoration and repair without competition).
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Competition in Federal Contracting: An Overview of the Legal Requirements
Contracts Subject to CICA
Any procurement contract not entered into through the use of procedures expressly authorized by
a particular statute, such as those described above, is subject to CICA.27 CICA requires that these
contracts be entered into after “full and open competition through the use of competitive
procedures” unless certain circumstances exist that would permit agencies to use noncompetitive
procedures.28
Full and Open Competition Defined
Under CICA, “full and open competition” results when “all responsible sources are permitted to
submit sealed bids or competitive proposals.”29 A responsible source is a prospective contractor
who (1) has adequate financial resources to perform the contract, or the ability to acquire such
resources; (2) is able to comply with the required or proposed delivery or performance schedule;
(3) has a satisfactory performance record; (4) has a satisfactory record of integrity and business
ethics; (5) has the necessary organization, experience, technical skills, and accounting and
operational controls, or the ability to obtain them; (6) has the necessary production, construction,
and technical equipment and facilities, or the ability to obtain them; and (7) is otherwise qualified
and eligible to receive an award under applicable laws and regulations.30
Competitive Procedures Resulting in Full and Open Competition
Agencies meet CICA’s requirement for full and open competition by using one of the
“competitive procedures” recognized under the act.31 CICA recognizes the following procedures
as competitive:
1. Sealed bids. Sealed bids are offers submitted in response to invitations for bids
(IFBs); opened publicly at a specified time and place; and evaluated without
discussions with the bidders, with the contract being awarded to the lowest-
priced responsible bidder.32 CICA requires that agencies solicit sealed bids if (1)
time permits their solicitation, submission, and evaluation; (2) the award will be
made on the basis of price and other price-related factors; (3) it is not necessary
to conduct discussions with bidders about their bids; and (4) there is a reasonable
expectation of receiving more than one sealed bid.33
27 10 U.S.C. § 2304(a)(1)(A) & 41 U.S.C. § 253(a)(1)(A).
28 10 U.S.C. § 2304(a)(1)(A) & 41 U.S.C. § 253(a)(1)(A) (requirement for full and open competition); 10 U.S.C. §
2304(c) & 41 U.S.C. § 243(c) (circumstances allowing use of other than competitive procedures).
29 41 U.S.C. § 403(6).
30 41 U.S.C. § 403(7). For more information on the “responsibility” requirements applicable to prospective federal
contractors, see CRS Report R40633, Responsibility Determinations Under the Federal Acquisition Regulation: Legal
Standards and Procedures, by Kate M. Manuel, Responsibility Determinations Under the Federal Acquisition
Regulation: Legal Standards and Procedures, by Kate M. Manuel.
31 CICA defines “competitive procedures” as those under which an agency enters into a contract pursuant to full and
open competition. 41 U.S.C. § 403(5).
32 48 C.F.R. § 14.101(a)-(e).
33 10 U.S.C. § 2304(a)(2)(A)(i)-(iv) & 41 U.S.C. § 253(a)(2)(A)(i)-(iv).
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2. Competitive Proposals. Agencies are to use competitive proposals whenever
“sealed bids are not appropriate” in light of the previous four factors.34
Competitive proposals are offers received in response to requests for proposals
(RFPs). RFPs generally provide for discussion or negotiation between the
government and at least those offerors within the “competitive range,” with the
contract being awarded to the responsible offeror whose proposal represents the
“best value” for the government.35
3. Combinations of competitive procedures. This includes procedures like two-step
sealed bidding. With two-step sealed bidding, the first step consists of the
submission, evaluation and, potentially, discussion of technical proposals from
each bidder with no pricing involved. In the second step, sealed bids are
submitted only by those who submitted technically acceptable proposals during
the first step.
4. Procurement of architectural or engineering services conducted in accordance
with the requirements of the Brooks Act (40 U.S.C. §§ 541-559). The Brooks Act
allows the selection of architects and engineers based upon their qualifications
without consideration of the proposed price for the work. Awards must be made
to the highest-ranked offeror unless a reasonable price cannot be agreed upon.
5. Competitive selection of basic research proposals resulting from a general
solicitation and peer or scientific review of proposals, or from a solicitation
conducted pursuant to 15 U.S.C. § 638 (research and development contracts for
small businesses).
6. Procedures established by the General Services Administration (GSA) for its
multiple awards schedule program. Such procedures are recognized as
competitive so long as participation in the GSA program is open to all
responsible sources and orders and contracts under GSA’s procedures result in
the lowest overall cost alternative to meet the government’s needs.
7. Procurements conducted in pursuant to 15 U.S.C. § 644. Section 644 addresses
set-asides for small businesses, among other things. Such set-asides are
competitive so long as all responsible businesses entitled to submit offers under
Section 644 are permitted to compete.36
The sixth of these provisions is particularly significant because it allows agencies to use the so-
called “Federal Supply Schedules” (FSS) or “GSA schedules.” These schedules enable agencies
to take advantage of a “simplified process” for obtaining commercial supplies and services by
issuing task or delivery orders directly to contractors listed on the schedules without issuing IFBs
or RFPs.37
34 10 U.S.C. § 2304(a)(2)(B) & 41 U.S.C. § 253(a)(2)(B).
35 48 C.F.R. §§ 15.000-15.102. “Best value” is determined by considering price and other factors included in the
solicitation. The “competitive range” consists of those proposals having the greatest likelihood of award based on the
factors and significant subfactors of the solicitation. FARA allows agencies to limit the competitive range to those
offerors rated most highly based upon the solicitation’s criteria when “the number of offers that would otherwise be
included in the competitive range ... exceeds the number at which an efficient competition can be conducted.” P.L. 104-
106, § 4103, 110 Stat. 643-44 (Feb. 10, 1996) (codified at 10 U.S.C. § 2305(b) & 41 U.S.C. § 253b(d)).
36 41 U.S.C. § 259(b)(1)-(5).
37 48 C.F.R. § 8.402(a).
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“Full and Open Competition After Exclusion of Sources”
Some competitions in which only certain contractors can compete nonetheless meet CICA’s
requirement for full and open competition because CICA provides for “full and open competition
after exclusion of sources.”38 “Full and open competition after exclusion of sources” occurs in
two contexts: agencies’ “dual sourcing” initiatives and set-asides for small businesses.39
The defense agencies, in particular, have a lengthy history of dual sourcing, or distributing their
contracts for particular goods or services among multiple manufacturers or suppliers in order to
ensure that their operations are not vulnerable to the fortunes of individual companies.40 CICA
recognizes this history, and the agency concerns underlying it, by stating that agencies
... may provide for the procurement of property or services covered by this section using
competitive procedures but excluding a particular source in order to establish or maintain any
alternative source or sources of supply for that property or service if the agency head
determines that to do so—
(A) would increase or maintain competition and would likely result in reduced overall costs
for such procurement, or for any anticipated procurement, of such property and services;
(B) would be in the interest of national defense in having a facility (or a producer,
manufacturer, or other supplier) available for furnishing the property or service in the case of
a national emergency or industrial mobilization;
(C) would be in the interest of national defense in establishing or maintaining an essential
engineering, research, or development capability to be provided by an educational or other
nonprofit institution or a federally funded research and development center;
(D) would ensure the continuous availability of a reliable source of supply of such property
or service;
(E) would satisfy projected needs for such property or service determined on the basis of a
history of high demand for the property or service; or
(F) in the case of medical supplies, safety supplies, or emergency supplies, would satisfy a
critical need for such supplies.41
Recently, Congress has sometimes mandated dual sourcing, especially by the Department of
Defense (DOD), in order to ensure competition in future procurements.42
38 10 U.S.C. § 2304(b) & 41 U.S.C. § 253(b).
39 10 U.S.C. § 2304(b)(1)-(2) & 41 U.S.C. § 253(b)(1)-(2). In practice, there is one important distinction between “full
and open competition after exclusion of sources” for purposes of dual sourcing and for small business set-asides.
Agencies engaged in dual sourcing need justifications and approvals for their awards, which are discussed in more
detail below, while those setting aside procurements for small businesses generally do not. Compare 48 C.F.R. §
6.202(b)(1) (dual sourcing) with 48 C.F.R. § 6.203(b), § 6.204(b), § 6.205(b), § 6.206(b), and § 6.207(b) (small
business set-asides). Only when agencies make sole-source awards in excess of $20 million under the authority of
Section 8(a) of the Small Business Act are justifications and approvals required. See P.L. 111-84, § 811, 123 Stat.
2405-06 (Oct. 28, 2009).
40 See, e.g., Competition in Contracting Act, supra note 12, at 25-26.
41 10 U.S.C. § 2304(b)(1)(A)-(F) & 41 U.S.C. § 253(b)(1)(A)-(F). CICA added the provisions currently in subsections
(A)-(C) of these statutes, while FARA added those in (D)-(F).
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CICA similarly recognizes the history of setting aside acquisitions for competitions limited to
small businesses in general, or to specific subcategories of small businesses, by allowing
“procurement of property or services ... using competitive procedures, but excluding other than
small business concerns.”43 The Small Business Act provides for such set-asides for small
businesses generally; HUBZone, women-owned, and service-disabled veteran-owned small
businesses; and small businesses owned and controlled by socially and economically
disadvantaged individuals that are participating in the Business Development Program under
Section 8(a) of the act.44 Set-asides can also be made for local firms during major disasters or
emergencies under the authority of the Stafford Act (42 U.S.C. § 5150).45
Circumstances Permitting Other Than Full and Open Competition
By definition, under CICA, any procurement contract entered into without full and open
competition is noncompetitive.46 This is not to say, however, that every procurement contract
entered into without using competitive procedures is in violation of CICA. This is because CICA
recognizes seven circumstances wherein agencies can use other than competitive procedures
without violating the act’s competition requirements.47 Such circumstances involve the following:
1. Single source for goods or services: The property or services needed by the
agency are available from only one responsible source and no other type of
property or service satisfies the agency’s needs.
2. Unusual and compelling circumstances: The agency’s need for property or
services is of such an unusual and compelling urgency that the government
would be seriously injured unless the agency is permitted to limit the number of
sources from which it solicits bids or proposals.48
(...continued)
42 See, e.g., P.L. 110-181, § 213, 122 Stat. 36 (Oct. 14, 2008) (requiring DOD to “ensure the obligation and expenditure
in each such fiscal year of sufficient annual amounts for the continued development and procurement of 2 options for
the propulsion system for the Joint Strike Fighter in order to ensure the development and competitive production for the
propulsion system for the Joint Strike Fighter.”); Gates Says Tanker Competition May Resume in Late Spring; Murtha
Endorses “Split Buy,” 91 Fed. Contr. R. 75 (Feb. 3, 2009).
43 10 U.S.C. § 2304(b)(2) & 41 U.S.C. § 253(b)(2).
44 See 15 U.S.C. §637(a) (set-asides for small disadvantaged businesses participating in the 8(a) Business Development
Program); 15 U.S.C. § 637(m) (set-asides for women-owned small businesses); 15 U.S.C. § 644 (set-asides for small
businesses generally); 15 U.S.C. § 657a (set-asides for HUBZone small businesses); 15 U.S.C. § 657f (set-asides for
service-disabled veteran-owned small businesses).
45 The Stafford Act provides that “[i]n the expenditure of Federal funds for debris clearance, distribution of supplies,
reconstruction, and other major disaster or emergency assistance activities ... carried out by contract or agreement with
private [entities], preference shall be given, to the extent feasible and practicable, to those organizations, firms, and
individuals residing or doing business primarily in the area affected by such major disaster or emergency.”).
46 10 U.S.C. § 2304(c) & 41 U.S.C. § 253(c).
47 10 U.S.C. § 2304(c) & 41 U.S.C. § 253(c).
48 An amendment made to CICA by Section 862 of the Duncan Hunter National Defense Authorization Act for FY2009
limits the duration of contracts awarded in reliance on this exception. The term of such contracts may not exceed the
time necessary (1) to meet the unusual and compelling requirements of the work to be performed under the contract and
(2) for the executive agency to enter into another contract for the required goods and services through the use of
competitive procedures. Such contracts may not last longer than one year unless the head of the agency entering into
the contract determines that exceptional circumstances apply. P.L. 110-417, § 862, 122 Stat. 4546 (Oct. 14, 2008).
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3. Maintenance of the industrial base: It is necessary to award the contract to a
particular source or sources in order (1) to maintain a facility, producer,
manufacturer, or other supplier so that the maintained entity will be available to
furnish property or services in the case of a national emergency or to achieve
industrial mobilization, or (2) to establish or maintain an essential engineering,
research, or development capability to be provided by an educational or other
nonprofit institution or a federally funded research and development center.
4. Requirements of international agreements: The terms of an international
agreement or treaty between the United States and a foreign government or
international organization, or the written directions of a foreign government
reimbursing a federal agency for the cost of procuring property or services,
effectively require the use of procedures other than competitive procedures.
5. Statutory authorization or acquisition of brand-name items for resale: A statute
expressly authorizes or requires that the procurement be made through another
executive agency or from a specified source, or the agency’s need is for brand-
name commercial items for authorized resale.
6. National security: Disclosure of the agency’s procurement needs would
compromise national security unless the agency is permitted to limit the number
of sources from which it solicits bids or proposals.
7. Necessary in the public interest: The head of an executive agency determines
that it is necessary in the public interest to use other than competitive procedures
in the procurement and notifies Congress in writing of this determination no less
than 30 days before the award of the contract.49
These “exceptions” cover common situations where competition is not possible, or where the
government values other objectives (e.g., maintaining the industrial base) more highly than full
and open competition. The first exception, for example, allows what are commonly known as
“sole-source awards.” By law, sole-source awards can be used only when there is a single
responsible source and no other supplies or services will satisfy agency requirements. Although
sole-source awards have been the subject of much reported concern recently, especially among
those worried about the alleged increase in their use since 2000,50 they can help agencies to
efficiently meet their needs for goods and services when circumstances suggest there is little or
no possibility of competition. The first exception also encompasses agencies’ acceptance of
unsolicited research proposals, as well as follow-on contracts for continued development or
production of major systems.51 The second exception covers many so-called contingency
contracting situations, when the government needs to enter into contracts quickly in response to
natural disasters or combat operations. The third exception addresses situations akin to dual
sourcing, when the government attempts to manage the industrial base by ensuring that
companies receive enough orders to stay in business. The fifth exception includes purchases that
49 10 U.S.C. § 2304(c)(1)-(7) & 41 U.S.C. § 253(c)(1)-(7).
50 See, e.g., U.S. House of Representatives, Comm. on Gov’t Reform—Minority Staff, Special Investigations Division,
Dollars, Not Sense: Government Contracting Under the Bush Administration 9 (2006), available at
http://oversight.house.gov/Documents/20060711103910-86046.pdf.
51 10 U.S.C. § 2304(d)(1)(A)-(B) & 41 U.S.C. § 253(d)(1)(A)-(B). A follow-on contract is a new contract awarded on a
sole-source basis to a contractor that previously had a design or manufacturing contract for the same item, or previously
performed the services being procured. It differs from an option under an existing contract, which gives the government
a unilateral right to purchase additional supplies or services under a contract, or otherwise extend a contract.
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agencies are required to make through Federal Prison Industries or qualified nonprofit agencies
for the blind or “severely disabled.” Table A-1 provides additional information on the
circumstances permitting other than full and open competition, including potential application of
and specific limits on these authorities.
Despite covering many common situations, CICA’s exceptions do not grant agencies unfettered
discretion to contract for goods and services without using competitive procedures, however. This
is because other provisions of CICA impose several conditions on agencies’ ability to rely on the
exceptions permitting other than full and open competition. What is arguably the most important
of these conditions—the requirement that agency contracting officials justify and obtain approval
for their use of other than competitive procedures—is discussed in more detail in the following
section. Other conditions (1) specify that poor agency planning cannot give rise to unusual and
compelling urgency;52 (2) bar agencies from obtaining through other agencies goods or services
that were not obtained in compliance with CICA;53 (3) prohibit agency heads from delegating
their authority to determine that use of other than competitive procedures is necessary in the
public interest;54 and (4) require agencies to “request offers from as many potential sources as is
practicable under the circumstances” whenever relying on the exceptions for unusual and
compelling urgency or national security.55 The first condition is especially important because it
precludes agencies from waiting until near the end of the fiscal year to procure items and then
claiming unusual and compelling urgency because their appropriations are about to expire.56
Justifications & Approvals
CICA’s requirement that contracting officers provide justifications of, and obtain approvals for,
all noncompetitive procurements conducted in reliance on a CICA exception further checks
agencies’ discretion in using noncompetitive procedures.57 Agencies can rely on the CICA
exceptions only when contracting officers justify the use of other than competitive procedures in
writing and certify the accuracy and completeness of their justifications.58 These justifications
must then be approved by agency officials of a higher rank than the contracting officer, with the
identity of the approving official determined by the expected value of the contract,59 as Table 1
illustrates.
52 10 U.S.C. § 2304(f)(5)(A) & 41 U.S.C. § 253(f)(5)(A). See, e.g., RBC Bearings Inc., Comp. Gen. Dec. B-401661
(Oct. 27, 2009) (sustaining a protest of sole-source contract award because the procuring agency’s own poor planning
resulted in the need to limit competition).
53 10 U.S.C. § 2304(f)(5)(B) & 41 U.S.C. § 253(f)(5)(B).
54 10 U.S.C. § 2304(d)(2) & 41 U.S.C. § 253(d)(2).
55 10 U.S.C. § 2304(e) & 41 U.S.C. § 253(e). Under the FAR, similar requirements apply to all the CICA exceptions,
although the statutory basis for these requirements is unclear. See 48 C.F.R. § 6.301(d).
56 See, e.g., Competition in Contracting Act, supra note 12, at 16-17 (describing how agencies reportedly abused their
authority, under the pre-CICA competition requirements, to make noncompetitive procurements when “competition is
impracticable” in similar situations).
57 10 U.S.C. § 2304(f) & 41 U.S.C. § 253(f).
58 10 U.S.C. § 2304(f)(1)(A) & 41 U.S.C. § 253(f)(1)(A).
59 10 U.S.C. § 2304(f)(1)(B) & 41 U.S.C. § 253(f)(1)(B).
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Table 1. Approving Officials for Noncompetitive Contracts in General
Contract Value
Approving Official
Under $550,000
Contracting officer’s certification suffices unless higher approval
is required under agency procedures
Over $550,000 and below
Competition advocate for the procuring activity or another
$11.5 million
official as provided under 48 C.F.R. § 6.304(a)(3) or (4)
(authority cannot be delegated)
Over $11.5 million and
Head of the procuring activity or a delegate who, if a member
below $57 million (all
of the armed services, is a general or flag officer or, if a civilian,
agencies other than DOD, is serving in a GS-16 or higher position or a comparable
NASA, and the Coast
position under another schedule
Guard)
Over $11.5 million and
below $78.5 million
(DOD, NASA, and the
Coast Guard)
Over $57 million (all
Senior procurement executive of the agency designated
agencies other than DOD, pursuant to Section 16(3) of the Office of Federal Procurement
NASA, and the Coast
Policy Act (cannot be delegated, other than in the case of the
Guard)
Undersecretary of Defense for Acquisition, Technology &
Logistics acting as the senior procurement executive of DOD)
Over $78.5 million (DOD,
NASA, and the Coast
Guard)
Source: Congressional Research Service, based on 48 C.F.R. § 6.304
Written justifications and approvals must normally precede the contract award.60 They may
follow the award only when the agency relies on the exception for unusual and compelling
urgency, and, even then, the agency must have determined the existence of usual and compelling
urgency prior to making the award.61 Justifications can be omitted only when an agency (1) relies
upon an agency head’s determination that it is necessary, in the public interest, to use other than
competitive procedures; (2) conducts a procurement under the authority of the Javits-Wagner-
O’Day Act, or makes competitive or certain noncompetitive awards under the authority of Section
8(a) of the Small Business Act;62 or (3) purchases brand-name items for authorized resale.63 The
omission of justifications when the agency relies upon the agency head’s determination that it is
necessary, in the public interest, to use other than competitive procedures can be explained, in
part, by the requirement that agency heads must themselves document the existence of such
circumstances in writing and notify Congress. Purchase of brand-name items for authorized resale
involves purchases for use in commissaries or similar facilities, where the purchased articles are
60 10 U.S.C. § 2304(f)(2) & 41 U.S.C. § 253(f)(2).
61 48 C.F.R. § 6.303-1(d).
62 Justifications, approvals, and notices are, however, required when agencies make sole-source awards valued in
excess of $20 million under the authority of Section 8(a) of the Small Business Act. See P.L. 111-84, § 811, 123 Stat.
2405-06 (Oct. 28, 2009).
63 10 U.S.C. § 2304(f)(2)(A)-(E) & 41 U.S.C. § 253(f)(2)(A)-(D).
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“desired or preferred by customers of the selling activities.”64 It does not include agencies’
purchase of brand-name commercial items for their own use.65
Justifications must include (1) a description of agency needs; (2) an identification of the statutory
exception upon which the agency relied and a demonstration of the reasons for using the
exception that is based upon the proposed contractor’s qualifications or the nature of the
procurement; (3) a determination that the anticipated cost will be fair and reasonable; (4) a
description of any market survey conducted, or a statement of the reasons for not conducting a
market survey; (5) a listing of any sources that expressed interest in the procurement in writing;
and (6) a statement of any actions that the agency may take to remove or overcome barriers to
competition before subsequent procurements.66
CICA originally required agencies to make their justifications for noncompetitive awards, as well
as “any related information,” available to the general public under the Freedom of Information
Act (FOIA),67 but it has since been amended to require that justifications and approvals be posted
on FedBizOpps (http://www.fedbizopps.gov) within 14 days of contract award.68 Agencies are
also required, under CICA, to publish notices regarding certain noncompetitive contracts that they
propose to award on FedBizOpps prior to their award.69 These notices identify the intended
recipient of the noncompetitive contract award and state the agencies’ reasons for making a
noncompetitive award.70 Because notice of these proposed awards precedes the awards, other
contractors could submit proposals to the agency or protest the proposed award.
“Special Simplified Procedures for Small Purchases”
In addition to authorizing the use of noncompetitive procedures in certain circumstances, CICA
authorizes the use of “special simplified procedures” when agencies make “small purchases.”71
CICA’s drafters included this provision because they recognized that the costs of conducting
competitions can exceed the savings resulting from competition when agencies procure items
with low prices.72 CICA itself defined a “small purchase” as one whose expected value was less
than $25,000,73 but was later amended to include purchases whose expected value was below the
simplified acquisition threshold (currently, $100,000).74 Moreover, since 1996, under an
64 48 C.F.R. § 6.302-5(c)(3).
65 Such purchases are governed by other authorities. See 48 C.F.R. § 11.105.
66 10 U.S.C. § 2304(f)(3)(A)-(F) & 41 U.S.C. § 253(f)(3)(A)-(F).
67 P.L. 98-369, § 2711, 98 Stat. 1178 (civilian agencies); id., at § 2723, 98 Stat. 1190 (defense agencies).
68 P.L. 110-181, § 844, 122 Stat. 236-39 (Oct. 14, 2008). When the noncompetitive award is made on the basis of
unusual and compelling urgency, agencies have up to 30 days after the award to post it on FedBizOpps.
69 10 U.S.C. § 2304(f)(1)(C) & 41 U.S.C. § 253(f)(1)(C). See generally 41 U.S.C. § 416(b)(5) (notice requirements).
70 Id.
71 10 U.S.C. § 2304(g)(1)(A) & 41 U.S.C. § 253(g)(1)(A).
72 See, e.g., Competition in Contracting Act of 1984, supra note 13, at 226. For example, spending $50 to achieve full
and open competition saves money when the competition reduces by 10% the price of goods or services costing
$100,000, but not when it reduces by 10% the price of goods or services costing $10.
73 P.L. 98-369 at § 2711 and § 2723.
74 10 U.S.C. § 2304(g)(1)(A) & 41 U.S.C. § 253(g)(1)(A). The simplified acquisition threshold is presently set at
$100,000 unless there is an emergency. See 41 U.S.C. § 403(11) (simplified acquisition threshold generally) & 41
U.S.C. § 428a(b)(2) (increasing the threshold to $250,000, for contracts to be awarded or performed within the United
States, and $500,000, for contracts to be awarded or performed outside the United States, in emergencies).
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amendment to CICA, agencies have also had authority to use simplified acquisition procedures in
purchasing commercial items whose expected value exceeds the simplified acquisition threshold
but is below $5.5 million (or $11 million in the case of goods or services purchased in support of
contingency operations, or for defense against or recovery from nuclear, biological, chemical or
radiological attack).75 Agencies can rely on this latter authority only when their contracting
officers reasonably expect, based upon market research and the nature of the goods or services
sought, that offers will include only commercial items.76 This authority to use simplified
procedures in purchases of commercial items valued at between $100,000 and $5.5 million is
temporary, under what the Federal Acquisition Regulation (FAR) calls a “test program,” and will
expire on January 1, 2012, unless renewed. 77 Although the Bush Administration’s reliance on this
authority proved controversial,78 the Obama Administration has signaled its intent to rely on it.79
CICA prohibits agencies from dividing proposed purchases in excess of the “small purchase”
threshold into several purchases in order to take advantage of the simplified procedures, and it
requires agencies to promote competition “to the maximum extent practicable” when using
simplified procedures.80
CICA otherwise leaves the articulation of the simplified acquisition procedures to the FAR, which
prescribes somewhat different regulations for acquiring different prices and types of goods and
services (i.e., commercial or noncommercial). See Figure 2. Under the FAR, purchases whose
expected value is below the simplified acquisition threshold ($100,000) are further subdivided
into (1) those below the micropurchase threshold (generally $3,000) and (2) those above it.81
When making “micropurchases,” or purchases at or below $3,000, agencies are to promote
competition, to at least a limited degree, by distributing their purchases “equitably” among
qualified suppliers “[t]o the extent practicable.”82 They may make micropurchases without
soliciting competitive quotations only if the contracting officer, or other duly appointed official,
considers the price to be reasonable.83 When purchases are above the micropurchase threshold but
75 48 C.F.R. § 13.500(a) & (e).
76 10 U.S.C. § 2304(g)(1)(B) & 41 U.S.C. § 253(g)(1)(B).
77 48 C.F.R. § 13.500(d). FARA created this authority, which has been repeatedly renewed. See P.L. 104-106, at § 4202
(establishing the authority); National Defense Authorization Act for FY2000, P.L. 106-65, § 806 (extension through
January 1, 2002); National Defense Authorization Act for FY2002, P.L. 107-107, § 823 (extension through January 1,
2003); Bob Stump National Defense Authorization Act for FY2003, P.L. 107-314, § 812 (extension through January 1,
2004); National Defense Authorization Act for FY2004, P.L. 108-136, § 1442 (extension through January 1, 2006); and
Ronald W. Reagan National Defense Authorization Act for FY2005, P.L. 108-375, § 817 (extension through January 1,
2008); National Defense Authorization Act for FY2008, P.L. 110-181, § 822 (extension through January 1, 2010);
National Defense Authorization Act for FY2010, P.L. 111-84, § 816 (extension through January 1, 2012).
78 Dollars, Not Sense, supra note 50, at 18.
79 Executive Office of the President, Office of Management and Budget, Initial Implementing Guidance for the
American Recovery and Reinvestment Act of 2009, at 42 (Feb. 18, 2009), available at http://www.recovery.gov/files/
Initial%20Recovery%20Act%20Implementing%20Guidance.pdf.
80 10 U.S.C. § 2304(g)(3) & 41 U.S.C. § 253(g)(4).
81 The micropurchase threshold can be lower or higher than $3,000, depending on the goods or services acquired and
the circumstances of the acquisition. Micropurchases for construction services subject to the Davis-Bacon Act or other
services subject to the Service Contract Act have lower limits: $2,000 and $2,500, respectively. Those for goods or
services that the agency head has determined will be used to support a contingency operation or facilitate defense
against or recovery from nuclear, biological, chemical, or radiological attack have higher limits: $15,000 in the case of
contracts to be awarded or performed, or purchases to be made, inside the United States and $25,000 in the case of
contracts to be awarded or performed, or purchases to be made, outside the United States. 48 C.F.R. § 13.201(g)(1)(i)-
(ii).
82 48 C.F.R. § 13.202(a)(1).
83 48 C.F.R. § 13.202(a)(2).
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below the simplified acquisition threshold, agencies “shall use simplified acquisition procedures
to the maximum extent practicable.”84 These purchases are set aside for small businesses,85
making them “full and open competitions after the exclusion of sources” under CICA. In such
purchases, and in purchases of commercial items whose expected value exceeds the simplified
acquisition threshold but is below $5.5 million (or $11 million in emergencies), agencies “must
promote competition to the maximum extent practicable to obtain supplies and services from the
source whose offer is the most advantageous to the Government considering the administrative
cost of the purchase.”86 This generally means that agencies “must consider solicitation of at least
three sources,” two of which were not included in the previous solicitation.87 Contracting officers
are prohibited from soliciting quotations based on personal preferences or restricting solicitations
to suppliers of well-known and widely distributed makes or brands.88
Sole-source solicitations for purchases below the simplified acquisition threshold are permissible
only if contracting officers determine that the circumstances of the contract action are such that
only one source can be reasonably deemed available (e.g., urgency, exclusive licensing
agreements, brand-name goods, industrial mobilization).89 Sole-source solicitations for purchases
of commercial items whose expected costs exceed the simplified acquisition threshold are
permissible only if (1) they are justified in writing; (2) they are approved at the levels specified in
Table 2; and (3) notice of the proposed award is provided at the government-wide point of entry,
FedBizOpps.
Figure 2. Simplified Acquisition Procedures: Competition Requirements at Various
Price Thresholds
Source: Congressional Research Service
84 48 C.F.R. § 13.003(a). This provision does not apply if agencies can meet their requirements using (1) required
sources of supply under Part 8 of the FAR (addressing Federal Prison Industries; the Committee for Purchase from
People Who Are Blind or Severely Disabled, and FSS contracts); (2) existing indefinite delivery/indefinite quantity
contracts; or (3) other existing contracts. 48 C.F.R. § 13.003(a)(1)-(3).
85 48 C.F.R. § 13.003(b)(1).
86 48 C.F.R. § 13.104.
87 48 C.F.R. § 13.104(b). When not providing notice of proposed contract actions and solicitation information through
the government-wide point of entry, FedBizOpps, agencies can “ordinarily” obtain the “maximum practicable
competition ... by soliciting quotations or offers from sources within the local trade area.”
88 48 C.F.R. § 13.104(a)(1)-(2).
89 48 C.F.R. § 13.106-1(b)(1).
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Table 2. Approving Officials for Noncompetitive Contracts Under the Simplified
Acquisition Procedures
Contract Value
Approving Official
Over $100,000 and below $550,000
Contracting officer’s certification serves as approval
unless agency regulations require higher-level approval
Over $550,000 and below $11.5 million
Competition advocate for the procuring activity, or an
official described in 48 C.F.R. § 6.304(a)(3)-(4) (cannot
be delegated)
Over $11.5 million and below $57 million Head of the procuring activity, or an official described in
(all agencies other than DOD, NASA, and 48 C.F.R. § 6.304(a)(3)-(4) (cannot be delegated)
the Coast Guard)
Over $11.5 million and below $78.5
million (DOD, NASA, and the Coast
Guard)
Over $57 million (all agencies other than Official described in 48 C.F.R. § 6.304(a)(4) (cannot be
DOD, NASA, and the Coast Guard)
delegated other than as provided in 48 C.F.R. §
6.304(a)(4))
Over $78.5 million (DOD, NASA, and
the Coast Guard)
Source: Congressional Research Service, based on 48 C.F.R. § 13.501
Table 3. Types of Competition Under CICA
Competition Type
Includes
Full and Open Competition
Sealed bids
Competitive proposals
Other competitive procedures (e.g., GSA’s Federal Supply
Schedule)
Full and open competition after the exclusion of sources
Dual sourcing
Set-asides for smal businessesa
Permissibly Noncompetitive
Sole source (including sole-source awards to smal businesses)a
Unusual and compelling urgency
Maintenance of the industrial base
International agreements
Statutory requirements or brand-name items for resale
National security
Necessary in the public interest
Special Simplified Procedures
Micropurchases (noncommercial or commercial items)
Purchases above the micropurchase threshold but below the
simplified acquisition threshold ($100,000) (noncommercial or
commercial items) → set aside for smal businesses
Purchases of commercial items whose prices are between
$100,000 and $5.5 million (or $11 million in emergencies)
Source: Congressional Research Service
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a. CICA classifies contracts with smal businesses in two different ways, depending upon whether the contract
is a sole-source award. Under CICA, sole-source awards to small businesses are permissible in light of the
circumstances permitting other than full and open competition, while other awards to small businesses
result from “full and open competition after exclusion of sources.”
Other Competition Requirements
In keeping with its drafters’ belief that effective competition in government procurement involves
more than just the mechanisms that agencies use to solicit offers, CICA also contains other
provisions that promote competition by, among other things, barring agencies from using
restrictive specifications and requiring them to give advance notice of upcoming solicitations.90
These provisions are not the primary focus of this report, but are briefly summarized below in
order to provide a complete sense of CICA’s competition requirements.
1. Planning and solicitation requirements: Under CICA, agencies must specify
their needs and solicit bids or offers “in a manner designed to achieve full and
open competition”; use advanced procurement planning and market research; and
“develop specifications in such a manner as is necessary to obtain full and open
competition.”91 Specifications may be stated in terms of function, performance,
or design requirements, but can include restrictive provisions or conditions only
to the extent necessary to satisfy agency needs or as authorized by law.92 These
requirements derive from the fact that competitive mechanisms for submitting
bids or offers are of limited effectiveness if agencies can craft their procurement
specifications in such a way as to effectively exclude contractors from the pool of
potential offerors.93
2. Evaluation and award requirements: Agencies must evaluate sealed bids and
competitive proposals based solely on the factors specified in the solicitation.94
This requirement supports the competitive mechanisms for submitting bids and
offers by ensuring that agencies properly consider bids and offers once they are
received, rather than award contracts to favored companies on the basis of factors
not disclosed to other competitors.
3. Competition advocates: CICA requires the head of each executive agency to
designate, both for the agency as a whole and for each procuring activity within
the agency, one officer or employee to serve as the “advocate for competition.”95
Agency competition advocates are responsible, among other things, for
challenging barriers to and promoting full and open competition in agency
procurement activities.96 CICA initially required agency competition advocates to
make annual reports to each chamber of Congress identifying actions the agency
90 See, e.g., Competition in Contracting Act, supra note 12, at 2 (“It is important to understand ... that competition is not
a procurement procedure, but an objective which a procedure is designed to attain.”).
91 10 U.S.C. § 2305(a)(1)(A)(i)-(iii) & 41 U.S.C. § 253a(a)(1)(A)-(C).
92 10 U.S.C. § 2305(a)(1)(B)(i)-(ii) & 41 U.S.C. § 253a(a)(2)(B) & (3)(A)-(C).
93 See, e.g., Competition in Contracting Act, supra note 12, at 19 (describing specifications as the “cornerstone of
competitive procurement” because they “serve initially as the fundamental expression of the agency’s need and, in the
contract award, as the baseline for the evaluation of offers.”).
94 10 U.S.C. § 2305(b); 41 U.S.C. § 253b.
95 41 U.S.C. § 418.
96 Id.
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intended to take to increase competition for contracts and reduce the number and
value of noncompetitive contracts.97 FASA removed this reporting requirement,98
but Paul A. Denett, the Administrator of the Office of Federal Procurement
Policy (OFPP) in the Bush Administration, required similar reports, albeit for
agencies’ chief acquisition officers and senior procurement executives, not for
Congress.99 The Obama Administration does not appear to have continued this
practice, although it has implemented other policies, described in more detail
below, intended to reduce the number of noncompetitive awards.
4. Procurement notices: Under CICA, agencies are generally required to publish
“procurement notices” announcing upcoming IFBs and RFPs for contracts
exceeding $25,000 and for likely subcontracts on awarded contracts exceeding
$25,000.100 CICA also specifies that agencies may not issue solicitations earlier
than 15 days after the notice is published, or establish a deadline for submission
of bids or offers earlier than 30 days after the solicitation is issued.101 These
requirements promote competition by ensuring that would-be offerors have
ample notice of proposed agency procurement actions and adequate time to
prepare their offers. Notices were originally published in Commerce Business
Daily, but are now posted online at FedBizOpps.102
Competition Requirements for Task and Delivery
Order Contracts
FASA supplemented CICA by, among other things, articulating competition requirements for task
order and delivery order (TO/DO) contracts. TO/DO contracts are contracts for services or goods,
respectively, that do not “procure or specify a firm quantity of supplies (other than a minimum or
maximum quantity),” but rather “provide[] for the issuance of orders for the delivery of supplies
during the period of the contract.”103 Because the time of delivery and the quantity of goods or
services to be delivered are not specified (outside of stated maximums or minimums) in TO/DO
contracts, such contracts are sometimes referred to as indefinite delivery/indefinite quantity
(ID/IQ) contracts.104 TO/DO contracts are also known as single-award or multiple-award
contracts, a designation based upon the number of firms—one or more than one, respectively—
able to compete for task or delivery orders under the contract. Some commentators further refer to
single-award TO/DO contracts as “monopoly contracts,”105 but such usage obscures the fact that
97 Id.
98 P.L. 103-355 § 1031 (repealing subsection (c) of 10 U.S.C. § 2318 and of 41 U.S.C. § 419, which required annual
reports on competition from defense and civilian agencies, respectively).
99 Executive Office of the President, OMB, OFPP, Enhancing Competition in Federal Acquisition: Memorandum, May
31, 2007, available at http://www.dhhs.gov/oamp/policies/competitionmemo053107.pdf (“Your competition advocate
should provide a written report to you with appropriate analysis, including trend analysis, and recommendations. The
report should be completed by December 20, 2007, and annually thereafter.”).
100 41 U.S.C. § 416.
101 Id.
102 Id.
103 48 C.F.R. § 16.501-1.
104 See 48 C.F.R. § 16.501-2(a).
105 See, e.g., Dollars, Not Sense, supra note 50, at 13.
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single-award TO/DO contracts are themselves awarded competitively, even if task or delivery
orders under them are not, and are of limited duration.106
Under FASA, agencies are effectively subject to CICA when awarding TO/DO contracts and can
use other than competitive procedures only when one of the seven exceptions to full and open
competition applies and there are the requisite justifications and approvals.107 FASA also
establishes “a preference” for multiple-award contracts by requiring agencies to use them, as
opposed to single-award contracts, “to the maximum extent practicable.”108 Moreover, FASA
requires agencies using multiple-award contracts to provide contractors “a fair opportunity to be
considered” when issuing task or delivery orders in excess of $2,500 unless
(1) the agency’s need for the services or property is of such unusual urgency that providing
such opportunity to all such contractors would result in unacceptable delays in fulfilling that
need;
(2) only one such contractor is capable of providing the services or property required at the
level of quality required because the services or property ordered are unique or highly
specialized;
(3) the task or delivery order should be issued on a sole-source basis in the interest of
economy and efficiency because it is a logical follow-on to a task or delivery order already
issued on a competitive basis; or
(4) it is necessary to place the order with a particular contractor in order to satisfy a
minimum guarantee.109
FASA did not, however, subject the issuance of task or delivery orders under TO/DO contracts to
CICA, and, even today, such orders remain outside the CICA framework.110 FASA further
requires each agency issuing TO/DO contracts to designate a “task and delivery order
ombudsman” to review contractors’ complaints regarding TO/DO contracts and ensure that all
contractors holding a multiple-award TO/DO contract have a “fair opportunity to be considered”
for orders.111 Finally, FASA grants the Government Accountability Office (GAO) jurisdiction
over protests alleging that the orders increase the scope, period, or maximum value of the
contract.112
The National Defense Authorization Act for FY2008 (NDAA ‘08) further strengthened the
competition requirements for TO/DO contracts established by FASA. See Figure 3. The NDAA
‘08 limits agencies’ ability to use single-award TO/DO contracts by requiring that agency heads
106 Federal contracts are normally for one year, but can be extended to five years through agencies’ use of options. 48
C.F.R. § 17.204(e) (“Unless otherwise approved in accordance with agency procedures, the total of the basic and option
periods shall not exceed 5 years in the case of services, and the total of the basic and option quantities shall not exceed
the requirement for 5 years in the case of supplies.”).
107 10 U.S.C. § 2304a(c) & 41 U.S.C. § 253h(c).
108 10 U.S.C. § 2304a(d)(3) & 41 U.S.C. § 253h(d)(3).
109 10 U.S.C. § 2304c(b)(1)-(4) & 41 U.S.C. § 253j(b)(1).
110 48 C.F.R. § 6.001(e)-(f).
111 10 U.S.C. § 2304c(e) & 41 U.S.C. § 253j(e).
112 10 U.S.C. § 2304c(d) & 41 U.S.C. § 253j(d).
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make the following determinations, in writing, before awarding a single-award TO/DO contract
whose expected value would exceed $100 million, including options:
(i) the task or delivery orders expected under the contract are so integrally related that only a
single source can reasonably perform the work;
(ii) the contract provides only for firm, fixed-price task or delivery orders for (I) products for
which unit prices are established in the contract or (II) services for which prices are
established in the contract for the specific tasks to be performed;
(iii) only one source is qualified and capable of performing the work at a reasonable price to
the government; or
(iv) because of exceptional circumstances, it is necessary in the public interest to award the
contract to a single source.113
The NDAA ‘08 also specifies what constitutes a “fair opportunity to be considered” in
competitions for orders in excess of $5 million under multiple-award TO/DO contracts. Under the
NDAA, for contractors to have a fair opportunity, agencies must provided them with (1) a notice
of the task or delivery order that includes a clear statement of the agency’s requirements; (2) a
reasonable period of time to provide a proposal in response to the notice; (3) disclosure of the
significant factors and subfactors (including cost or price) that the agency expects to consider in
evaluating proposals and their relative importance; (4) a written statement documenting the basis
for the award and the relative importance of quality and price or cost factors, if the award is to be
made on a best-value basis; and (5) an opportunity for post-award debriefing.114 Finally, the
NDAA ‘08 grants the GAO temporary jurisdiction to hear protests alleging improprieties in
agencies’ award of task and delivery orders valued in excess of $10 million.115 GAO’s jurisdiction
over such protests took effect on May 23, 2008 and lasts for three years.116 GAO has held that,
when exercising this jurisdiction, it may “review the agency’s evaluation and award decision” and
is not limited to determining whether the “‘process’ for issuing task orders [was] followed.”117
113 P.L. 110-181, § 843, 122 Stat. 236-39 (Oct. 14, 2008). Agency heads must notify Congress within 30 days after
making a determination to award a single-award TO/DO contract in excess of $100 million. P.L. 110-181 addressed the
TO/DO contracts of both defense and civilian agencies. An earlier law, the National Defense Authorization Act for
Fiscal Year 2002, had addressed only DOD TO/DO contracts. This law required that the Defense Federal Acquisition
Regulation Supplement (DFARS) be updated to (1) require that issuance of orders for services in excess of $100,000
under multiple award contracts be “competitive” unless a CICA exception applies and the agency issues a written
justification and (2) specify what “competitive” means. See P.L. 107-107, § 803, 115 Stat. 1179 (Dec. 28, 2001).
114 Id.
115 Id.
116 Id.
117 Bay Area Travel, Inc.; Cruise Ventures, Inc.; Tzell-AirTrak Travel Group, Inc., B-400442; B-400442.2; B-
400442.3; B-400547; B-400547.2; B-400547.3; B-400564; B-400564.2; B-400564.3 (Comp. Gen. Nov. 5, 2008).
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Figure 3. TO/DO Contracts: Competition Requirements at Various Price Thresholds
Source: Congressional Research Service
Legislation in the 111th Congress
The 111th Congress has enacted or is considering several bills, discussed in more detail below,
that address competition in contracting. In general, such bills either (1) seek to promote
competition and limit agencies’ ability to make noncompetitive awards,118 or (2) restrict
competition to promote policy goals, such as contracting locally, that are more highly valued than
full and open competition, at least in certain circumstances.119 Legislation seeking to promote
competition and limit noncompetitive awards itself can take various forms depending upon
whether agencies are thought to have awarded noncompetitive contracts in defiance of existing
requirements, or in compliance with them. When agencies are seen as acting in defiance of
existing requirements, legislation may restate agencies’ need to comply with the competition
requirements or seek greater disclosure of noncompetitive awards.120 Alternatively, when agencies
are seen as having awarded noncompetitive contracts despite compliance with the competition
requirements, there may be greater emphasis on amending the competition requirements,
particularly their exceptions.121 There are also lingering questions about the extent of
noncompetitive contracting over time (see Appendix B), 122 as well as about the effects of
industry consolidation upon competitive contracting, 123 whose answers can shape legislation.
118 See, e.g., Natural Disaster Fairness in Contracting Act, S. 1420 (limiting agencies’ ability to rely on certain CICA
exceptions when contracting for natural disaster reconstruction efforts).
119 See, e.g., Supplemental Appropriations Act, P.L. 111-32, § 1102, 123 Stat. 1896-97 (June 24, 2009) (authorizing
noncompetitive contracting for “Afghan products and services”).
120 See, e.g., Consumer Protection and Regulatory Enhancement Act, H.R. 3310, § 708 (“Nothing in this paragraph
shall relieve the Commission of the competition requirements set forth in title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.).”).
121 See, e.g., Department of Defense Appropriations Act, 2010, P.L. 111-118, § 8030,—Stat.—(Dec. 19, 2009) (limiting
agencies’ ability to contract in reliance on the CICA exception for single sources for goods or services when they
receive unsolicited research proposals).
122 See, e.g., David Berteau, Guy Ben-Ari, and Gregory Sanders, Structure and Dynamics of the U.S. Federal
Professional Services Industrial Base 1995-2007 xi (2009) (noting that, while the number of noncompetitive awards
has risen over the past five years, the dollar amount of these contracts has been decreasing). As the data in Table B-1
illustrates, the trends in noncompetitive contracting during the Bush Administration are arguably less consistent and
less striking than they are sometimes presented as being. See, e.g., Dollars, Not Sense, supra note 50, at ii (“The dollar
value of [noncompetitive] contracts [during the Bush administration] rose from $67.5 billion in 2000 to $145 billion in
2005, an increase of 115%.”).
123 See, e.g., DOD Study Looks to Quantify Reasons for Single Offers on Competed Contracts, 91 Fed. Contr. R. 231
(continued...)
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Legislation Enacted in the 111th Congress
The first session of the 111th Congress enacted several statutes pertaining to competition in
contracting. Many of these statutes seek to promote competition and limit the number of
noncompetitive awards by
• Subjecting certain “earmarks” or “congressionally directed spending item[s]”
intended for for-profit entities to the competition requirements normally
applicable to federal contracts;124
• Precluding defense agencies from awarding certain noncompetitive contracts for
studies, analysis, or consulting services based on unsolicited research
proposals;125
• Requiring the Department of Defense to take specific steps to “foster
competition” in certain large or high-profile procurements (e.g., major defense
acquisition programs, littoral combat ships, future surface combatants);126
(...continued)
(Mar. 24, 2009) (noting that single offers on competed contracts may reflect insufficiencies in the industrial base);
Vasilis Fervos, Whatever Happened to Competition in Space Agency Procurement? The Case of NASA, 11 J. of
Applied Econ. 221 (2008) (noting that industry consolidation negatively impacts agencies’ ability to engage in
competitive procurements).
124 See, e.g., Department of Defense Appropriations Act, 2010, P.L. 111-118, § 8211,—Stat.—(Dec. 19, 2009) (“Each
congressionally directed spending item specified in this Act or the explanatory statement regarding this Act that is also
identified in S.Rept. 111-74 and intended for award to a for-profit entity shall be subject to acquisition regulations for
full and open competition on the same basis as each spending item intended for a for-profit entity that is contained in
the budget request of the President.”); Agriculture, Rural Development, Food and Drug Administration, and Related
Agencies Appropriations Act, 2010, P.L. 111-80, § 747, 123 Stat. 2131 (Oct. 21, 2009) (“Specific projects contained in
the report of the Committee on Appropriations of the House of Representatives accompanying this Act (H. Rept. 111–
181) that are considered congressional earmarks for purposes of clause 9 of rule XXI of the Rules of the House of
Representatives, when intended to be awarded to a for-profit entity, shall be awarded under a full and open
competition.”). See also Department of Homeland Security Appropriations Act, P.L. 111-83, § 572, 123 Stat. 2188
(Oct. 28, 2009); Energy and Water Development and Related Agencies Appropriations Act, 2010, P.L. 111-85, § 506,
123 Stat. 2880 (Oct. 28, 2009); Consolidated Appropriations Act, 2010, P.L. 111-117, Division A, Title IV, § 419,—
Stat.—(Dec. 16, 2009).
125 P.L. 111-118, § 8039. Defense agencies may generally award such contracts only when agency officials determine
that (1) as a result of thorough technical evaluation, only one source is fully qualified to perform the work; (2) the
purpose of the contract is to explore an unsolicited proposal which offers significant scientific or technological
promise, represents the product of original thinking, and was submitted in confidence by one source; or (3) the purpose
of the contract is to take advantage of unique and significant industrial accomplishment by a specific concern, or to
ensure that a new product or idea of a specific concern is given financial support.
126 See, e.g., Weapon Systems Acquisition Reform Act, P.L. 111-23, § 202(a)(1), 123 Stat. 1720-21 (May 22, 2009)
(calling for the Secretary of Defense to “ensure that the acquisition strategy for each major defense acquisition program
includes … measures to ensure competition, or the option of competition, at both the prime contract level and the
subcontract level … throughout the life-cycle of [the] program as a means to improve contractor performance.”);
Defense Production Act Reauthorization of 2009, P.L. 111-67, § 2, 123 Stat. 2008 (Sept. 30, 2009) (stating that “plans
and programs undertaken to carry out the purposes of this Act should be undertaken with due consideration for
promoting … competition”); National Defense Authorization Act for FY2010, P.L. 111-84, § 121, 123 Stat. 2211 (Oct.
28, 2009) (calling for the Defense Department to ensure that the government’s rights in technical data for the littoral
combat ship are sufficient to permit the government to conduct a competition for a second shipyard as soon as
practicable); id. at § 125, 123 Stat. 2216 (calling for the “technology roadmap” for future surface combatants and fleet
modernization to foster competition); id. at § 353, 123 Stat. 2264 (demonstration programs with open architecture to
promote competition, among other things); id. at § 805, 123 Stat. 2403 (directing the Secretary of Defense to provide
guidance on life-cycle management and other issues related to major weapons systems that maximizes competition); id.
at § 1021, 123 Stat. 2445 (expressing the sense of Congress that the Navy can take other measures to acquire new ships
(continued...)
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• Prohibiting specific agencies from making payments on, or significantly
extending or expanding, certain noncompetitive contracts;127
• Requiring that agencies’ Inspectors General review selected contracts awarded
through other than full and open competition;128
• Requiring additional reporting on the use of authorities allowing other than full
and open competition, including the effect of such use on competition;129 and
• Requiring justifications, approvals, and notices for sole-source awards in excess
of $20 million made under the authority of Section 8(a) of the Small Business
Act, which had previously been exempt from such requirements.130
Other statutes would, however, authorize agencies to make noncompetitive awards in certain
circumstances. The Supplemental Appropriations Act (P.L. 111-32), for example, allows agencies
to use funds appropriated under Section 1102 of the act, or under prior acts appropriating funds
for the Department of State, foreign operations and related programs, to conduct procurements in
which (1) competition is limited to products, services, or sources from Afghanistan; (2)
noncompetitive procedures are used to award a contract to sources from Afghanistan; or (3) a
“preference” is provided for products, services, or sources from Afghanistan.131 The National
Defense Authorization Act for FY2010 (P.L. 111-84) allows similar noncompetitive contracts for
products and services from one or more countries “along a major route of supply” to Afghanistan.
The Secretary of Defense may set aside procurements for such products or services, or otherwise
grant “preference” to them.132 Likewise, the Department of the Interior, Environment, and Related
(...continued)
and maintain the fleet, including maximizing competition or the option of competition).
127 Omnibus Appropriations Act, 2009, P.L. 111-8, Title III, § 301(a), 123 Stat. 625 (Mar. 11, 2009) (“None of the
funds in this or any other appropriations Act for fiscal year 2009 or any previous fiscal year may be used to make
payments for a noncompetitive management and operating contract, or a contract for environmental remediation or
waste management in excess of $100,000,000 in annual funding at a current or former management and operating
contract site or facility, or to award a significant extension or expansion to an existing management and operating
contract, or other contract covered by this section, unless such contract is awarded using competitive procedures or the
Secretary of Energy grants, on a case-by-case basis, a waiver to allow for such a deviation.”).
128 P.L. 111-83, § 521, 123 Stat. 2171 (Department of Homeland Security contracts).
129 P.L. 111-84, § 819, 123 Stat. 2409-10; P.L. 111-5, § 1552, 123 Stat. 302 (Feb. 17, 2009) (“A summary of any
contract awarded with such funds that is not fixed-price and not awarded using competitive procedures shall be posted
in a special section of the website established in section 1526.”).
130 P.L. 111-84, § 811, 123 Stat. 2405-06.
131 P.L. 111-32, § 1102(c)(2), 123 Stat. 1896-97 (June 24, 2009). The act defines products, services, and sources from
Afghanistan, but it does not specify what “preferences” are permissible. Id. at § 1102(c)(3).
132 P.L. 111-84, § 801, 123 Stat. 2399-400. To rely on this authority, the Secretary of Defense must determine that
(1) the product or service concerned is to be used—
(A) in the country that is the source of the product or service;
(B) in the course of efforts by the United States and the NATO International Security Assistance Force to
ship goods to Afghanistan in support of military or stability operations in Afghanistan; or
(C) by the military forces, police, or other security personnel of Afghanistan;
(2) it is in the national security interest of the United States to limit competition or provide a preference as
described in subsection (a) because such limitation or preference is necessary
(A) to reduce overall United States transportation costs and risks in shipping goods in support of military or
stability operations in Afghanistan;
(B) to encourage countries along a major route of supply to Afghanistan to cooperate in expanding supply
(continued...)
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Agencies Appropriations Act, 2010 (P.L. 111-88) authorizes the Department of Interior to award
contracts for hazardous fuel reduction activities notwithstanding CICA, provided that the
department obtains the “maximum practicable competition” among (1) local private nonprofit or
cooperative entities; (2) Youth Conservation Corps crews; (3) small or micro-businesses; or (4)
other entities that will hire and train locally 50% or more of the contract workforce.133
Legislation Proposed in the 111th Congress
The 111th Congress is also considering a number of bills that would address competition in
contracting. Many of these seek to promote competition and limit the number of noncompetitive
awards, but they would do so by various means, including:
• Reiterating that certain contracts are subject to CICA;134
• Requiring that certain high-profile contracts be competitively awarded;135
• Requiring agencies to conduct competitive sealed bidding in certain
circumstances;136
• Limiting agencies’ ability to rely on the CICA exceptions,137 or requiring that
noncompetitive contracts awarded in reliance on certain CICA exceptions be
performed within specific time periods;138
• Imposing additional competition requirements on the award of certain task or
delivery orders;139
(...continued)
routes through their territory in support of military or stability operations in Afghanistan; or
(C) to help develop more robust and enduring routes of supply to Afghanistan; and
(3) limiting competition or providing a preference as described in subsection (a) will not adversely affect—
(A) military or stability operations in Afghanistan; or
(B) the United States industrial base.
Id., 123 Stat. 2399. This act also does not define what “preferences” are permissible under its authority.
133 Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, P.L. 111-88, Department
Wide Programs, Wildfire Management, 123 Stat. 2923 (Oct. 30, 2009).
134 See, e.g., Consumer Protection and Regulatory Enhancement Act, H.R. 3310, § 708 (“Nothing in this paragraph
shall relieve the Commission of the competition requirements set forth in title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.).”); SEC Delinquent Judgment Collection Act, H.R. 3783,
§ 2 (“Nothing in this paragraph shall relieve the Commission of the competition requirements set forth in title III of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.).”).
135 See, e.g., Transportation Security Administration Authorization Act, H.R. 2200, § 233 (requiring full and open
competition in awarding the contract to process and transmit fingerprint data for background checks for aviation
workers).
136 See, e.g., Gulf Coast Civic Works Act, H.R. 2269, § 107.
137 See, e.g., Natural Disaster Fairness in Contracting Act, S. 1420, § 3 (barring agencies from relying on the exceptions
for circumstances involving (1) maintenance of the industrial base; (2) the requirements of international agreements;
and (3) actions necessary in the public interest when awarding contracts valued at $5 million or more to procure
property or services in connection with natural disaster reconstruction efforts).
138 See, e.g., Natural Disaster Fairness in Contracting Act, S. 1420, § 6 (requiring that noncompetitive contracts for
natural disaster reconstruction efforts awarded in reliance on the CICA exception for unusual and compelling urgency
be performed within six months). Similar prohibitions were imposed under P.L. 110-417, § 862. See supra note 48.
139 See, e.g., American Clean Energy and Security Act, H.R. 2998, § 251 (specifying competition requirements for
(continued...)
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Competition in Federal Contracting: An Overview of the Legal Requirements
• Requiring approvals for certain noncompetitive awards from higher-level
personnel than would otherwise be required under CICA;140
• Mandating that Congress receive notices and justifications for certain
noncompetitive awards;141
• Creating additional requirements for publication and public disclosure of
information about noncompetitive contracts;142
• Providing for third-party oversight of certain noncompetitive contracts;143
• Establishing a complaint process for agencies’ use of “restricted competitions;”144
and
• Creating competition requirements for entities that receive or subcontract federal
funds but are not themselves subject to CICA.145
However, some legislation would allow for noncompetitive awards in certain circumstances. The
Educational Success for Children and Youth Without Homes Act, for example, would authorize
the Secretary of Education to limit competitions for contracts or otherwise give priority to entities
with (1) demonstrated experience in information dissemination and technical assistance activities;
(2) demonstrated experience in the areas of homelessness, serving at-risk youth, and education;
and (3) established networks among, and a history of collaboration with, state and local
educational agencies and national organizations providing services to homeless children, youths,
and families.146
(...continued)
orders under Energy Savings Performance Contracts); American Clean Energy Leadership Act, S. 1462, § 272 (same);
Enhanced Oversight of State and Local Economic Recovery Act, S. 1064, § 3, as reported (requiring the Administrator
of the General Services Administration to ensure maximum competition for task and delivery orders when state and
local governments use the Federal Supply Schedules).
140 See, e.g., Natural Disaster Fairness in Contracting Act, S. 1420, § 4 (requiring the President or his or her designee to
approve in writing noncompetitive contracts for natural disaster reconstruction efforts).
141 See, e.g., Natural Disaster Fairness in Contracting Act, S. 1420, § 4.
142 See, e.g., Natural Disaster Fairness in Contracting Act, S. 1420, § 5(a) (requiring publication and public disclosure
of (1) the amount of the contract; (2) a brief description of the scope of the contract; (3) an explanation of how the
executive agency identified and solicited offers from potential contractors, as well as a listing of potential contractors
that were issued solicitations; and (4) the justification and approval documents, required under CICA, on which the
determination to use noncompetitive procedures was based).
143 See, e.g., Strategic Targeted American Recovery and Transition Act, H.R. 861, § 1223 (establishing an independent
Recovery Act Accountability and Transparency Board that would, among other things, verify that the competition
requirements applicable to contracts under the American Recovery and Reinvestment Act (P.L. 111-5) and other
federal laws are satisfied).
144 Department of Veterans Affairs Acquisition Improvement Act of 2009, H.R. 4221, § 7.
145 See, e.g., Coast Guard Acquisition Reform Act, H.R. 1665, § 101 (requiring that any Coast Guard lead systems
integrators use full and open competition in awarding contracts); Coast Guard Authorization Act for FY2010 and 2011,
S. 1194, § 565 (same); School Building Fairness Act, S. 1121, § 3 (requiring local education agencies that receive
funding for school repair, renovation, or construction under the act ensure “the maximum number of qualified bidders
... through full and open competition” if awarding contracts to perform the work); 21st Century Green High-Performing
Public School Facilities Act, H.R. 2187, § 305 (same); Student Aid and Fiscal Responsibility Act, H.R. 3221, § 335
(same); National Health Information Technology and Privacy Amendment, S. 444, §§ 2 & 5 (requiring that a federally
chartered corporation to be formed under the act maintain “effective competition, including the use of competitive
bidding where appropriate” in procuring goods or services).
146 S. 2800, § 724.
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Competition in Federal Contracting: An Overview of the Legal Requirements
Recent Executive Branch Policies
The executive branch, particularly under the Obama Administration, has signaled its interest in
increasing competition in federal procurement contracting.147 President Obama has said that “the
Federal Government must strive for an open and competitive process,” making noncompetitive
awards only in exigent circumstances and taking steps to minimize the risks associated with
noncompetitive contracts.148 Prominent officials within the DOD, which accounts for some 70%
of federal procurement spending per year,149 have also expressed their commitment to reducing
DOD’s use of noncompetitive contracts.150
President Obama’s March 4, 2009, memorandum on government contracting called for the
Director of the Office of Management and Budget (OMB) to develop guidance to “govern the
appropriate use and oversight of sole-source and other types of noncompetitive contracts and to
maximize the use of full and open competition and other competitive procurement processes.”151
This guidance was issued on October 27, 2009, and calls for agencies to focus on requirements
development and outreach to potential vendors; use performance-based acquisitions and
commercial solutions; evaluate alternative competition strategies for larger and more complex
requirements; use strategic sourcing; ensure consistent maximization of competition at the task
and delivery order level; give maximum practicable consideration to small businesses; limit the
length of any noncompetitive contracts; ensure price reasonableness in noncompetitive contracts;
regularly assess contractor performance under noncompetitive contracts; engage with the
marketplace to determine how barriers to competition can be removed; and analyze the agencies’
largest “spend categories.”152 The October memorandum also reiterates the requirement, first
articulated in an earlier OMB memorandum,153 that agencies “reduce by at least 10 percent the
combined share of dollars obligated through new contracts in FY 2010 that are … awarded non-
competitively and/or receive only one bid in response to a solicitation or request for quote,”
among other things.154 OMB plans to review agencies’ performance in meeting this target at mid-
year and year-end, and it has indicated that agencies that did not meet their targets will be
147 The Bush Administration at times signaled a similar interest. See, e.g., Enhancing Competition in Federal
Acquisition, supra note 99.
148 The White House, Office of the Press Secretary, Government Contracting: Memorandum for the Heads of Executive
Departments and Agencies, Mar. 4, 2009, available at http://www.whitehouse.gov/the_press_office/Memorandum-for-
the-Heads-of-Executive-Departments-and-Agencies-Subject-Government-Contracting.
149 Federal Contract Awards by Major Contracting Agency 2009, available at http://www.usaspending.gov/fpds/
tables.php?tabtype=t1&rowtype=f&subtype=a&sorttype=2008.
150 See, e.g., Gates Cites Acquisition Reform as One of Defense Department’s Greatest Challenges, 91 Fed. Cont. R. 71
(Feb. 3, 2009) (Gates’ mentioning “seeking increased competition” as one strategy for reforming DOD procurement);
Office of the Undersecretary of Defense for Acquisition, Technology and Logistics, Review Criteria for the Acquisition
of Services: Memorandum, Feb. 18, 2009, available at http://www.acq.osd.mil/dpap/policy/policyvault/USA002735-
08-DPAP.pdf (memorandum from Shay D. Assad, Director of Defense Procurement, stating that the requirements of
service contracts should be articulated in such a way as to provide for “maximum competition,” in general, and for
“meaningful competition” for orders under multiple award contracts).
151 Government Contracting, supra note 148.
152 Executive Office of the President, Office of Management and Budget, Increasing Competition and Structuring
Contracts for Best Results, Oct. 27, 2009, available at http://www.whitehouse.gov/omb/assets/
procurement_gov_contracting/increasing_competition_10272009.pdf.
153 Executive Office of the President, Office of Management and Budget, Improving Government Acquisition, July 29,
2009, at 2, available at http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m-09-25.pdf.
154 Increasing Competition, supra note 152.
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Competition in Federal Contracting: An Overview of the Legal Requirements
required to develop “corrective action plans.”155 OMB will reportedly establish new targets for
FY2011.156
OMB also issued separate guidance to agencies on contracting under the American Recovery and
Reinvestment Act (ARRA) of 2009.157 This guidance calls for agencies to use competitive
procedures to “the maximum extent practicable.”158 When contracts or task or delivery orders are
not competitively awarded, agencies must post summaries of them, including descriptions of
required products and services, on a website (http://www.recovery.gov).159 Despite this guidance,
however, there have been some reported concerns regarding the number of noncompetitively
awarded ARRA contracts.160
155 Executive Office of the President, Office of Management and Budget, Acquisition and Contracting Improvement
Plans and Pilots: Saving Money and Improving Government, Dec. 2009, at 6, available at http://www.whitehouse.gov/
omb/assets/reports/2009_acquisition_contracting_improvement.pdf.
156 Id.
157 See Updated Implementing Guidance, supra note 10.
158 Id. at 53. Prior guidance from OMB had cautioned agencies that the act’s mandate to expend funds quickly does not,
in itself, justify noncompetitive awards. See Initial Implementing Guidance, supra note 79, at 38.
159 Id.
160 See, e.g., Alice Lipowicz, No-bid Contracts Used Too Much for Stimulus Projects, GAO Says, Wash. Tech., Dec. 3,
2009, available at http://www.washingtontechnology.com/Articles/2009/12/03/Agencies-spending-stimulus-funds-
noncompetitively.aspx (reporting that 68% of SBA contracts under ARRA were awarded noncompetitively; 37% of
NASA contracts; 35% of Department of Housing and Urban Development contracts; 30% of Department of
Agriculture contracts; 29% of Department of Commerce contracts; 25% of Department of Homeland Security
contracts; 24% of Environmental Protection Agency contracts; 22% of Department of Transportation contracts; and
20% of Department of Defense contracts); Gov’t Accountability Office, Recovery Act: Contract Oversight Activities of
the Recovery Accountability and Transparency Board and Observations on Contract Spending in Selected States,
GAO-10-216R, available at http://www.gao.gov/new.items/d10216r.pdf.
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Appendix A. Circumstances Permitting Other Than Full and Open
Competition Under CICA
Table A-1. Potential Applications and Limitations
Circumstance Potential
Applications
Limitations
Sole source for goods or
Authority here to be used, if appropriate, in preference to that al owing
Contracts must be supported by written justifications and
services
procurement contracts necessary in the public interest
approvals
Reasonable basis to conclude that the agency’s minimum needs can only be
Synopses of proposed contract actions must be published,
satisfied by (1) unique supplies or services available from only one source or
and any resultant bids, proposals, etc. must be considered
supplier with unique capabilities, or (2) for DOD, NASA, and the Coast Guard,
unique supplies or services available from only one or a limited number of
An acquisition that uses a brand name description or other
sources or from only one or a limited number of suppliers with unique
purchase description to specify a particular brand name,
capabilities
product, or feature of a product peculiar to one
manufacturer does not provide for ful and open
Existence of rights in data, patent rights, copyrights, or trade secrets; control of
competition regardless of the number of sources solicited
raw materials; or similar circumstances make supplies and services available from
only one source
When acquiring utility services, if circumstances dictate that only one supplier can
furnish the service, or when the contract is for construction of a part of a utility
system and the utility company is the only source available to work on the
system
When the agency head determines, in accordance with an agency’s
standardization program, that only specified makes and models of equipment or
parts satisfy the agency’s needs for additional units or replacement items, and
only one source is available
Unusual and compelling
Unusual and compelling urgency precludes full and open competition, and delay in Contracts must be supported by written justifications and
urgency
award of a contract would result in serious financial or other injury to the
approvals; justifications may be made and approved after
government
contract award when preparation and approval prior to
award would unreasonably delay the acquisition
Agencies must still request offers from as many potential
sources as practicable under the circumstances
Maintenance of the industrial Keep vital facilities or suppliers in business or make them available in the event of Contracts must be supported by written justifications and
base
a national emergency
approvals
Train selected suppliers in the furnishing of critical supplies or services; prevent
the loss of a supplier’s ability and employees’ skills; or maintain active engineering,
CRS-29
Circumstance Potential
Applications
Limitations
research, or development work
Maintain properly balanced sources of supply for meeting the requirements of
acquisition programs in the interest of industrial mobilization
Limit competition for current acquisition of selected supplies or services
approved for production planning under the DOD Industrial Preparedness
Program to planned producers with whom industrial preparedness agreements
for those items exist, or limit award to offerors who agree to enter into
industrial preparedness agreements
Create or maintain the required domestic capability for production of critical
supplies by limiting competition to items manufactured in the United States or its
outlying areas or Canada
Continue in production contractors that are manufacturing critical items, when
there would otherwise be a break in production
Divide current production requirements among two or more contractors to
provide for an adequate industrial mobilization base
Establish or maintain an essential capability for theoretical analyses, exploratory
studies, or experiments in any field of science or technology
Establish or maintain an essential capability for engineering or developmental
work calling for the practical application of investigative findings and theories of a
scientific or technical nature
Acquiring the services of either an expert to use in litigation or neutral persons
(e.g., mediators, arbitrators) to facilitate alternative dispute resolution processes
Requirements of
When a contemplated acquisition is to be reimbursed by a foreign country that
Except for DOD, NASA, and the Coast Guard, contracts
international agreements
requires that the product be obtained from a particular firm as specified in official must be supported by written justifications and approvals
written directions
When a contemplated acquisition is for services to be performed, or supplies to
be used, in the sovereign territory of another country and the terms of a treaty
or agreement specify or limit the sources to be solicited
Statutory authorization or
Federal Prison Industries (UNICOR) (18 U.S.C. § 4124)
Not to be used when a provision of law requires an agency
acquisition of brand-name
to award a new contract to a specified non-federal
items for authorized resale
Qualified Nonprofit Agencies for the Blind or other Severely Disabled (41 U.S.C.
government entity unless the law specifically identifies the
§ 46-48c)
entity involved; refers to 10 U.S.C. § 2304(j) (for the armed
Government Printing and Binding (44 U.S.C. §§ 501-504, 1121)
services) or section 303(h) of the FPASA (for civilian
agencies); and states that award shall be made in
Sole source awards under the 8(a) Program (15 U.S.C. § 637)
contravention of the procedures in CICA
CRS-30
Circumstance Potential
Applications
Limitations
Sole source awards under the HUBZone Act of 1997 (15 U.S.C. § 657a)
Contracts must be supported by written justifications and
approvals unless the statute expressly requires that
Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. § 657f)
procurement be made from specified sources
May be used only for purchases of brand-name commercial
items for resale through commissaries or similar facilities
National security
Disclosure of the Government’s needs would compromise the national security
Not to be used merely because the acquisition is classified,
or because access to classified matter will be necessary to
submit a proposal or perform the contract
Contracts must be supported by written justifications and
approvals
Synopses of proposed contract actions must be published
Agencies must request offers from as many potential
sources as is practicable under the circumstances
Necessary in the public
Used when none of the other authorities apply
Need written determination of the agency head; authority
interest
may not be delegated
Congress must be notified in writing of such determination
not less than 30 days before award of the contract
This determination and finding shall not be made on a class
basis
Source: Congressional Research Service, based on 48 C.F.R. § 6.302
CRS-31
Appendix B. Statistical Data on Competition in Federal Contracting
Table B-1. Federal Contract Awards by Extent of Competition: FY2002-FY2009
Competition
Category
FY 2002
FY 2003
FY 2004
FY 2005
FY 2006
FY 2007
FY 2008
FY 2009
Available for everyone
45.251% 44.307% 34.926% 35.090% 32.905% 33.749% 36.307% 34.598%
for competition
Not competed for an
24.932% 25.348% 32.102% 27.611% 28.753% 27.615% 26.805% 26.775%
allowable reason
Competition within a
11.261% 11.859% 14.357% 16.396% 17.885% 18.632% 18.686% 18.823%
limited pool
Everyone could compete,
6.636% 7.002% 11.128% 10.273% 9.849% 9.617% 8.831% 9.756%
but only one bid or offer
was received
Available only for groups
9.293% 6.621% 4.221% 5.389% 4.849% 4.937% 4.743% 5.040%
such as disabled persons
and prisoners
Not identified, soon to
0.068% 0.526% 1.790% 3.754% 4.614% 4.560% 3.835% 4.186%
be addressed
Actions necessary to
2.557% 4.335% 1.475% 1.487% 1.145% 0.890% 0.792% 0.823%
continue existing
competitive contracts for
continuity
Total
100.000% 100.000% 100.000% 100.000% 100.000% 100.000% 100.000% 100.000%
Source: http://usaspending.gov, last visited January 19, 2010.
Note: These categories reflect changes made to USASpending.gov by the Obama Administration. Previously, the categories were: (1) full and open competition; (2) not
competed; (3) competed after exclusion of sources; (4) full and open competition but only one bid; (5) unknown; (6) not available for competition; and (7) follow-on to
previous contract. The Obama Administration also removed tables showing the percentage and dollar values of federal contract awards by type of competition and by
reason not competed from USASpending.gov.
CRS-32
Competition in Federal Contracting: An Overview of the Legal Requirements
Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
Congressional Research Service
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