JA F-16 Intl Trng CSTOs not Available.pdf

Justification and Approval (J&A) for Other Than Full and Open Competition

CONTROLLED UNCLASSIFIED INFORMATION

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Was a J&A approved for the preceding acquisition where that acquisition required a J&A? Yes No

Is this a new or amended J&A Document? New Amended ( Prior to Award Only! )

Is this a Bridge Action as defined at AFFARS 5302.101? Yes No

Dollar Value of this Acquisition: < $750K > $750K and < $15M > $15M and < $100M > $100M

Contracting Activity: Dept of Air Force, Air Force Installation Contracting Agency, 338 ESS/PKB

Purchase Request (if available) / Local ID Number: F3PH31

Program / Project (and PE, if applicable): International F-16 Training Program

Program Type (PEO, Enterprise, of Operational): Other Contracting

Authority:

6.302-1 – 10 USC 3204(a)(1), Only One Responsible Source - No Other Supplies or Services Will Satisfy Agency Requirements Estimated Contract Cost (including options): $ 100,000,000.00 J&A Type: Class Individual

! ! Provide estimated cost of all contracts.

COORDINATION ( AFFARS 5306.304(a) ) Sign and Save Procedure

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Date

07 Feb 2023

Project Lead / Program Mgr / Requiring Activity David W. Hammack, GS-13

AFSAT/MSR

Signature

X

Date

07 Feb 2023

Contracting Officer Samuel T. McDuffey, NH-04

338 ESS/PKB

Signature

X

Date

07 Feb 2023

Chief, International Training A. Ryan Rodriguez, NH-04

338 ESS/PKB

Signature

X

Date

21 Feb 2023

Chief, Policy and Pricing Audrey E. Talamantez

338 ESS/PKPP

Signature

X

Date

09 Mar 2023

Local Legal Reviewer Cynthia Hemmer, GS-14

HQ AETC/JA

Signature

X

Date

21 Mar 2023

Chief of the Contracting Office (COCO) Deborah E. Aguirre, NH-04

338 ESS/CD

Signature

X

Date

21 Mar 2023

Competition Advocate David E. Jones, NH-04

AFICC/KT

Signature

X

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APPROVAL ( AFFARS 5306.304(a) )

Date

22 Mar 2023

PEO / Head of Procuring Activity / Designated Alternate George R. Gagnon, SES HQ AETC/IA, Director, International Training and Education

Signature

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I. Agency and Contracting Activity.

Department of the Air Force, Air Force Installation Contracting Center (AFICC) 338th Enterprise Sourcing Squadron/PKB 2021 First Street West Joint Base San Antonio-Randolph, TX 78150-4302

II. Nature and/or description of the action being approved.

This Foreign Military Sales (FMS) sole source class Justification and Approval (J&A) is for modification to and for task orders under contract number FA3002-23-D-0004, a single award Indefinite Delivery Indefinite Quantity (IDIQ) contract for International F-16 aircrew and maintenance training in support of FMS F-16 training for multiple partner nations' air forces (PNAFs) to the Original Equipment Manufacturer (OEM). This class J&A may also be used to acquire these services under other contracts as necessary. Specifically, this class J&A provides F-16 pre-ferry/ pre-delivery OEM international academic and hands-on training for country specific F-16 aircraft when the Air Force has not yet received draft or final Country Standard Technical Orders (CSTOs). CSTOs are required to create training courseware to provide international academics and hands-on training for PNAF's new country specific F-16 Block 70/72, F-16 upgrades, and F-16V models. Courseware development and training takes approximately eight-nine months meaning that CSTOs would have to be available to any contractor other than the OEM approximately 12 months prior to aircraft delivery when considering additional time for training.

This class J&A is for limited situations in which the PNAF requires training prior to aircraft ferry/delivery and the Air Force has not received draft or final CSTOs. During this time, Lockheed Martin Corporation - Rotary and Mission Systems (LM-RMS), is the only vendor that has access to the F-16 proprietary information (CSTOs) and has the capability to provide pre-delivery courseware and training to meet required PNAF's needs and timelines. The OEM is LM-RMS, 100 Global Innovation CIR, Orlando FL, 32825-5002.

III. Description of supplies/services required to meet agency needs.

This is a class J&A to provide the services described herein under contract FA3002-23-D-0004 and other contracts as necessary. The total estimated value of this class J&A will not exceed $100,000,000 across all contracts. This total estimated value takes into account known and unknown requirements over the next 3 years. By contracting with the OEM, there are no intellectual property barriers to provide these training services. The program's requirements for IP and IP rights in the Request for Proposals (RFP) will be consistent with the program's acquisition strategy for each contract. The contract unit price book will include IP deliverables under the courseware development line items and Contract Data Requirements List.

The Air Force needs to support training for multiple FMS countries purchasing new country specific F-16 Block 70/72 and F-16V models or countries purchasing upgrade modifications to the Block 70/72 and F-16V models with requirements for contracted differences training and support services. These required services include F-16 aircraft maintenance and pilot differences training; associated courseware development; student support services; and aircraft refurbishment after training. Upgrade modification processes require parallel courseware development and training.

These training services require the OEM capability to utilize proprietary engineering data and draft CSTOs early in the aircraft production schedule to provide courseware development and training prior to aircraft delivery.

Funding for requirements contracted for under this class J&A will be exclusively FMS Case Funded.

Countries may require pre-delivery training so that they will be mission capable when their aircraft are delivered, averting mission failure in their region. If the Air Force is unable to provide this minimum operational capability to these and other PNAFs (unknown due to uncertain world events), it would create unacceptable risks of the PNAFs receiving aircraft they are not qualified to maintain or fly for sovereign defense. This would

11 Jul 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 4 of 711 Jul 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 4 of 7 be contrary to US defense policy of delivering Total Package Approach (TPA) capability under Foreign Military Sales (FMS).

Pre-delivery training of a minimum contingent of personnel, to deliver at least a partial operational capability in the F-16 Block 70/72 or upgraded aircraft, is a stated requirement for multiple countries, reflected in several country expedited operational capability timelines. Air Force Security Assistance Training Squadron (AFSAT) has confirmed that, for some countries, F-16 Block 70/72 or aircraft upgrade CSTOs will not be delivered to the Air Force under the AFMC production contract until after or just before the aircraft is ferried to country. In this limited training situation, the only entity which will have or has access to the pre-delivered proprietary information and technical data to effectuate courseware development and training is the OEM's training entity, LM-RMS.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

Lockheed Martin is the sole provider of the F-16V, upgraded aircraft modifications, and F-16 Block 70/72 aircraft systems to Partner Nation Countries. These country specific aircraft and upgrade modifications are purchased as directed in a country provided Letter of Authorization under Air Force production contracts with the OEM, Lockheed Martin. Under these production aircraft contracts, the Air Force requires delivery of draft and/or final CSTOs immediately prior to or at delivery of the aircraft as required in the Contract Data Requirement List (CDRL) and Section F of the production contract.

The development of the courseware and services described in Section III takes approximately eight-nine months meaning that CSTOs would have to be delivered to the Air Force and made available to any contractor other than the OEM approximately 12 months prior to aircraft delivery when considering additional time for training.

Lockheed Martin is the only vendor that has access to the proprietary information (CSTOs) prior to aircraft delivery/ ferry and therefore, the only contractor with the capability to provide pre-delivery courseware and training to meet Defense Security Cooperation Agency's Total System Performance Responsibility to Partner Nations and Partner Nation needs and timelines.

At this time and in this case, inclusion of the Deferred Ordering clause (DFARS 252.227-7027) is not applicable. The Air Force is under contract to acquire sufficient deliverables and IP rights under the production contract, however the receipt of the IP, draft/final CSTOs, will not be provided prior to aircraft delivery. The Air Force anticipates that CSTO deliverables will be marked as Unlimited Rights, IAW DFARS 252.227-7013 and the CDRL will be transferred to the Government with no restrictions on the CSTOs. Due to the revolving production environment the delivery of CSTOs may continue to be delayed. Finally, the Government cannot reverse engineer the undelivered aircraft to create CSTOs.

Under these circumstances, the only entity capable of achieving international training for FMS partners within the country's required pre-delivery training timeline is the airframe's Original Equipment Manufacturer (OEM) Lockheed Martin Corporation - Rotary and Mission Systems.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

A Sources Sought notification (FA3002_F-16_International_Training_Program) was posted to SAM.gov on 10 March 2023 to identify vendors capable of obtaining F-16 new-production/upgrade CSTOs prior to aircraft ferry/delivery with the assumption that GFI will not be provided IAW DFARSPGI 206.302-1. Two responses were received (LM- RMS and Valiant Global Defense Services). LM-RMS responded and stated that they have unrestricted access to F-16 CSTOs for all blocks and country specific configurations of the F-16, including the F-16V and Block 70/72.

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Valiant Global Defense Services responded and stated that they cannot obtain CSTOs prior to aircraft delivery.

Additionally, Amentum expressed interest, but did not formally respond to the posted notice. Of these responses, only the response from the OEM stated they are capable of obtaining CSTOs prior to aircraft delivery/ferry.

Proposed contracts/modifications under this class J&A will require a Notice of proposed Contract Action IAW FAR

5.201. IAW FAR 5.203, this notice will be published at least 15 days before issuance of the first contract action.

Additionally, a full and open competition was conducted this past year for the same services described in Section III.

above after receipt of CSTOs and the Government awarded the F-16 International Aircraft Maintenance & Pilot Differences Training Contract, FA3002-22-D-0005 to Valiant Global Defense, Inc. in June 2022. This contract will be utilized whenever possible to meet PNAFs training needs.

VI. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

On 22 March 2023, LM-RMS was awarded an Indefinite Quantity Indefinite Delivery (IDIQ) contract for source directed International F-16 Training Program requirements IAW 10 USC 2304(c)(4), FAR 6.302-4, and AFFARS 5306.302-4 (International Agreement for Competitive Restriction). This contract vehicle is primarily firm-fixed-price (FFP) with some cost reimbursable line items. As a $25 million Indefinite Delivery Indefinite Quantity (IDIQ), it will be modified to accommodate issuance of future Task Orders in accordance with this approved class J&A. IAW FAR 6.303(1)(d), the contracting officer "will ensure that each contract action taken pursuant to the authority of this class justification and approval is within the scope of the class justification and approval and shall document the contract file for each contract action accordingly." The period of performance for this acquisition includes a three (3) year ordering period (no options). Under this IDIQ, FFP unit prices will be established at the basic contract level, and all cost reimbursable line items will require costs be reviewed/ approved at the Task Order level. The FFP unit prices will be determined fair and reasonable IAW FAR 15.404-1(c)(2)(i), and a Certificate of Current Cost or Pricing Data will be required at the conclusion of negotiations. Any subsequent Task Orders issued against this IDIQ will be subject to the basic contract's terms and conditions.

If it is later determined a separate contract is required for work within the scope of this J&A, FFP unit prices will be established, and all cost reimbursable line items will require costs be reviewed/negotiated. The FFP unit prices will be determined fair and reasonable IAW FAR 15.404-1(c)(2)(i), and a Certificate of Current Cost or Pricing Data will be required at the conclusion of negotiations as applicable.

Based upon (1) certified cost or pricing data provided in the offeror's proposal, (2) the program office's technical analysis of the offeror's Basis of Estimates (BOE), and (3) inputs from the Defense Contract Management Agency, including from the Administrative Contracting Officer, the contracting officer expects to be able to determine that the anticipated cost to the Government will be fair and reasonable.

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

Market research was conducted in 2022 that resulted in a full and open competition for the same/similar services described in Section III. above resulting in award of an Indefinite Delivery Indefinite (IDIQ) F-16 International Aircraft Maintenance & Pilot Differences Training contract number FA3002-22-D-0005 to Valiant Global Defense, Inc. in June 2022 with a ceiling of $255M over a 10-Year Program Life-cycle based on known requirements at that time. Market research for that requirement determined that multiple vendors were capable of providing the services and that access to CSTOs was required to develop tailored courseware at the task order level. At that time, market research also supported CSTO delivery prior to aircraft delivery leading to more than one source determined to be capable.

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Recently, AFSAT was informed that the F-16 production milestones were delaying delivery of draft or final CSTOs until just before aircraft ferry to country for new buy countries or just prior to aircraft delivery during upgrade modifications. This, along with the volatile international landscape, drives the need for pre-ferry/pre-delivery training using OEM CSTOs that was not anticipated during market research and award for the competitive IDIQ.

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

It is imperative for our mission partners to receive timely training to support aircraft delivery. If the timeline is not met, the objective of building partnership capacity and the total package approach will not be met. If personnel are not trained to fly or maintain the aircraft, the mission partner would be required to either store the aircraft in the US or ferry them in country where they would be unusable. This would pose substantial cost and unacceptable risk to the partner nations.

IX. List of any sources that expressed, in writing, an interest in the acquisition.

LM-RMS and Valiant Global Defense Services responded to the posted RFI. (see Section V above).

As evidenced throughout this class J&A, the OEM training entity, LM-RMS is the only source with access to the required OEM proprietary data to train and develop training materials within the required timelines for country specific new buy or upgraded aircraft. This applies to any training occurring prior to the Air Force receipt of draft or final CSTOs under the relevant procurement contracts, since the OEM is the only source with access to F-16 country specific CSTOs and technical data.

Although Valiant Global Defense, Inc. was awarded FA300222D0005 on a competitive basis, they do not have an agreement with Lockheed Martin. In accordance with that contract, the Air Force may provide the CSTOs when they become available, and in this case they will not be delivered in a timely enough manner under the production contracts to enable training material development under FA300222D0005 for these specific training services.

X. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisitions for the supplies or services required.

The Air Force awarded a competitive acquisition for these services based on CSTOs delivery prior to aircraft delivery. However, as part of the definitization of the Air Force production contract, delivery of draft and final CSTOs were determined to be at the time of aircraft delivery. The 338 ESS and AFSAT will coordinate with JA and AFLCMC for delivery of draft unrestricted CSTOs to the Air Force prior to aircraft delivery on the production contracts. Ultimately, the Air Force production contract draft or final CSTO delivery dates, and whether they enable compliance with country-specific courseware development and training timelines, will determine the Air Force's ability to overcome any barriers in the future.

This is not a follow-on acquisition to a previous award for the same supply or service supported by a previous J&A citing the authority at FAR 6.302-1.

XI. Certification by the Contracting Officer.

As evidenced by my signature above, I certify that this justification is accurate and complete to the best of my knowledge and belief.

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XII. Certification by the technical/requirements personnel.

As evidenced by my (our) signature(s) above, I (we) certify that any supporting data contained herein, which is my (our) responsibility, is both accurate and complete.

Remove the Guidance pages below. Remove the IACR pages below.

11 Jul 2022 Page of International Agreement Competitive Restrictions (IACR) Page of 13 May 2022 Was a J&A approved for the preceding acquisition where that acquisition required a J&A?

!! Attach the preceding J&A in the staff package for this J&A. The preceding J&A will be used as a reference document.

Is this a new or amended J&A Document?

Is this a Bridge Action as defined at AFFARS 5302.101?

Dollar Value of this Acquisition:

J&A Type:

!! Provide estimated cost of all contracts.

COORDINATION ( AFFARS 5306.304(a)) ** The text in the signature blocks below is editable, including the title.

** To remove a row, click the "X" next to the signature block. CAUTION: Once removed, it can only be restored by downloading the BLANK FORM again.

APPROVAL ( AFFARS 5306.304(a)) NOTE 1: A signature block will appear here (replacing these notes) based on the "Dollar Value of this Acquisition" selected above. Since most digital signatures that include date/time-stamps are redacted before they are made publicly available, always insert the date in the “Date” cell when affixing a digital signature to this document.

NOTE 2: Some types of acquisitions awarded under circumstances where full and open competition is not required by statute do not have to be supported by a written justification and approval. See 10 U.S.C. § 3204(e)(7); FAR 6.302-5(c)(2). For Class J&As, all contracts within the class must fall within the same statutory authority.

NOTE 3: Users of this template are directed to SAF/AQC Policy Memo 22-C-02 (when it's published), or latest issuance, which provides detailed instructions on how to complete each section of a J&A. The memo will be posted at the following location:

https://usaf.dps.mil/sites/AFCC/KnowledgeCenter/Documents/Contracting_Memos/Policy/22-C-02.pdf (See "Specific Guidance for Completing this Template" after item XII below.)

I. Agency and Contracting Activity.

II. Nature and/or description of the action being approved.

III. Description of supplies/services required to meet agency needs.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

VI. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

IX. List of any sources that expressed, in writing, an interest in the acquisition.

X. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisitions for the supplies or services required.

XI. Certification by the Contracting Officer.

XII. Certification by the technical/requirements personnel.

Specific Guidance for Completing this Template I. Agency and Contracting Activity. (FAR 6.303-2(b)(1)) Self-explanatory II. Nature and description of the action being processed. (FAR 6.303-2(b)(2)) An individual J&A is for a single contract. State whether the action is a new contract or a modification to an existing contract (identify contract number) and identify the contract type(s) planned (e.g., firm-fixed-price, cost-plus-incentive-fee). If exception 2 is cited (unusual or compelling urgency), include the date of UCA/contract/modification issuance and amount.

An individual J&A cannot be used to support more than one contract action irrespective of the quantities or the dollar value stated therein. If a proposed contract will contain unpriced options (including NTE prices), those options must be supported by a separate J&A prior to option exercise. Stoehner Security Services, Inc., 248077.3, Oct. 27, 1992, 92-2 CPD ¶ 286 at 6. This principle applies with equal force and effect whenever a contracting officer seeks to exercise FAR 52.217-8 (Option to Extend Services) if the contract that incorporated that clause by reference is not a Service Contract Labor Standards-covered contract, as such contracts do not include wage determinations that establish “prevailing labor rates provided by the Secretary of Labor.” FAR 52.217-8. See Major Contracting Services, Inc., B-401472, Sep. 14, 2009, 2009 CPD ¶ 170 at 6, mot. for reconsid. den., Department of the Army --Reconsideration, B-401472.2, Dec. 7. 2009, 2009 CPD ¶ 250 at 5-6. In the alternative, the J&A supporting the basic contract must be a Class J&A. Although a Class J&A may be written for multiple awards to a single source, or multiple awards to various sources, it must describe each proposed contract action separately so it is clear that each such action is within scope of that Class J&A. FAR 6.303-1(d).

III. Description of the supplies/services required to meet agency needs. (FAR 6.303-2(b)(3)) Describe the supplies, services, or supplies and services to be acquired. Identify the quantities of each item, the estimated delivery dates/periods of performance, the type of appropriation(s) that will acquire those supplies/services, the total estimated value of the acquisition (including options), and the methodology used to arrive at that total estimated value. Provide sufficient information to demonstrate to the approving official that the acquisition of intellectual property (IP) and associated IP rights will satisfy the program's requirements, acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan.

The program's requirements for IP and IP rights in the Request for Proposals (RFP) must be consistent with the program's acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan. Accordingly, approving officials will ensure this section of the J&A:

(1) States whether the CLIN structure will include separately-priced CLINs for intellectual property (IP) and IP rights. Once the DFARS is revised to implement 10 U.S.C. § 4236, Air Force contracting officers will be required to negotiate a fair and reasonable price for IP and associated IP rights. Air Force contracting officers must start thinking now how they will do so during sole-source and competitive negotiations and how the resulting contract will reflect the results of those negotiations. Otherwise, they may be caught flat-footed if the RFP did not include such separately-priced CLINs and the Director of Defense Pricing and Contracting issues the final rule implementing 10 U.S.C. § 4236 --the effective date of which occurs one day prior to the award date. See also FAR 7.105(b)(14)(iii) and DFARS 215.470(a);

(2) Lists the titles of all such IP (including digital models) to be to be acquired contained in Exhibits A-N of the draft Request for Proposals; and

(3) Identifies the type of IP rights to be acquired to those deliverables (including the IP rights to be acquired to contract administration information since the standard DFARS clauses do not grant the Air Force any license rights to that type of IP).

Mission-focused business leaders are encouraged to engage early in the acquisition life-cycle with industry regarding the subjects of IP and IP rights. They are also encouraged to consult with approving officials, designees, or both, regarding those subjects well in advance of submitting a draft J&A to the appropriate approving official.

For Class J&As, identify each contract action (contract, modification) to be authorized by the proposed J&A for each potential offeror. If the same information applies to more than one contract, it need only be stated once.

For ID/IQ or requirements contracts, use the maximum dollar value of the total estimated orders as the total estimated value of the acquisition.

IV. Demonstration that the contractor's unique qualifications or nature of the acquisition requires the use of the authority cited above. (FAR 6.303-2(b)(5)) Provide detailed facts sufficient to justify the use of the particular authority cited. Contracting without providing for full and open competition shall not be justified on the basis of a lack of advance planning or concerns relating to the amount of funds available (e.g., expiring funds). (FAR 6.301(c)).

Check the applicable box below. Checking a box will display the text for that section.

In the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, the rationale must first justify the supplies/services as either associated with a “major system” or “highly specialized equipment”. It must then justify either “substantial duplication of cost to the Government that is not expected to be recovered through competition” or “unacceptable delays in fulfilling the agency's requirements”, whichever situation applies. If both of those situations apply, the rationale can be based upon either or both of those two situations. This authority shall not be used when any of the other authorities apply.

Sub-subsection 1. FAR 6.302-1(a)(2)(ii) and (iii) require that the J&A demonstrate that specific conditions have been satisfied. Therefore, this sub-section must deconstruct the specific words in those provisions and demonstrate to the appropriate approving official how the proposed acquisition satisfies those words.

For example, this sub-subsection must demonstrate the proposed acquisition is a “follow-on contract” by identifying the current contract number of the contract the intended awardee of that “follow-on contract” is currently performing, the basis of award for that contract (competitive, sole-source), the purpose of that contract, the date of contract award, and the date that contract will expire. PTC, Inc., B-416863, Dec. 20, 2018, 2019 CPD ¶ 48 at 6-7. This subsection must also demonstrate the proposed acquisition will continue “development” or “production” of a “major system” or “highly specialized equipment, including major components thereof” or provide “highly specialized services.” In the case of the former, this subsection must either identify the ACAT I or II program --since the legal definition of a “major system” includes ACAT I and II programs --or explain why the equipment sought to be acquired is “highly specialized” for which the proposed acquisition will “continue[ ] development or production”. In the alternative, this subsection must explain why the services sought to be acquired are “highly specialized”.

If the planned acquisition will result in a “bridge” contract that contains options, this subsection must explain why options are necessary. If significant lead time is required prior to approval of the J&A in order to acquire the supplies or services described in Section III, this subsection should mention that fact and explain why that is the case.

Next, this sub-subsection should add a concluding sentence to the end of this subsection, suitably tailored; e.g., “Therefore, this acquisition will be a follow-on contract for the continued development of a major system.”

“Therefore, this acquisition will be a follow-on contract for the continued production of a major system.”, “Therefore, this acquisition will be a follow-on contract for the continued development of highly specialized equipment.”

“Therefore this acquisition will be a follow-on contract for the continued production of highly specialized equipment.”

“Therefore, this acquisition will be a follow-on contract for the continued provision of highly specialized services.”

The purpose of that sentence is to bring the approving official back to the regulatory requirements the preceding paragraphs of this section of the J&A have discussed to demonstrate the J&A satisfies those requirements.

Sub-subsection 2. Thoroughly describe the contractor's unique/highly specialized capabilities and qualifications (e.g., facilities, personnel, special tooling acquired), (FAR 6.303-2(b)(5)), and why no other type of supplies or services will satisfy the agency requirements.

Sub-subsection 3. This subsection should begin with the following sentence, suitably tailored:

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition.”

“The __[insert program office name]__ has determined that award to any other source would result in unacceptable delays in fulfilling the agency's requirements.”

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition and unacceptable delays in fulfilling the Government's requirements.”

The purpose of this opening sentence is to direct the approving official's attention to which specific words in FAR 6.302-1(a)(2)(ii) and (iii) will be the basis for going sole-source.

Next, when the rationale for going sole-source is based upon substantial duplication of cost, this sub-subsection must include an estimate of the amount of cost that would be duplicated (e.g., training required so that another source could acquire the skills necessary to perform the work, equipment, facilities) less the estimated cost to run a competition. (For example, the development costs the Government incurred under the existing contract or similar programs may provide insight into the amount of cost duplication were the proposed acquisition to be competed.) This sub-subsection should also identify the organization(s) that/who performed the analyses that supports those estimates, and describe the analysis that/those organization(s) performed to arrive at both estimates. The methodology must account for inflation during the projected remaining life cycle of the acquisition. (FAR 6.302-1(a)(2)(ii)(A) and (iii)(A); FAR 6.303-2(b)(9)(ii)).

When, however, the rationale for going sole-source is based upon unacceptable delay, this sub-subsection must state how long it would take someone else to obtain this capability (in months/years) and why, and provide a detailed explanation of the impact or problem caused by the delay. When describing the impact or problem caused by the delay, the rationale must identify all nodes on the critical path between the failure to acquire the supplies and services described in Section III and the delivery date(s)/period(s) of performance identified in that section, and the reduction (or frustration) of the warfighter's ability to accomplish specific missions. The explanation provided must be commensurate with the delivery date(s)/period(s) of performance identified in Section III (e.g., longer delivery date(s)/period(s) of performance necessitate a more detailed explanation). (FAR 6.302-1(a)(2)(ii)(B) & (iii)(B)).

Although the existence of IP rights retained by the developer make the supplies and services available from only once source, the mere existence of such rights does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Therefore, if the program office will use that rationale to justify going sole-source, this sub-subsection must demonstrate the program office performed sufficient due diligence to validate the developer retains such IP rights that require the use of this authority to acquire the supplies and services described in Section III. Specifically, this sub-subsection must explain:

(1) What IP rights the Government acquired to what IP deliverables under predecessor contracts described in Subsection 1 of this section and why those rights are insufficient to compete acquisition of the supplies or services described in Section III;

(2) What IP clauses (include the month/year of issuance) or applicable commercial computer software licenses were included into all of those predecessor contracts described in Subsection 1 of this section;

(3) Whether those predecessor contracts included the Deferred Ordering clause (DFARS 252.227-7027) and if so, why the program office did not exercise its rights to acquire needed IP deliverables by exercising its rights under that clause;

(4) Why the Government did not acquire sufficient IP deliverables and IP rights under that/those predecessor contract(s) that would have precluded the need to go sole-source for the proposed acquisition (e.g., acquisition strategies for those predecessor contracts were based upon the Total System Performance Responsibility (TSPR) initiative);

(5) What IP deliverables did the program office acquire under that/those predecessor contract(s) and what restrictive markings did the developer affix to those deliverables;

(6) What pre-challenge requests for information or formal challenges the program office initiated in response to a developer's assertions of development at private expense (DFARS 252.227-7019, DFARS 252.227-7037) and what analysis the program office performed of the information it received in response to that request or formal challenge;

(7) What investigation the program office conducted to determine whether the IP deliverables provided under that/those predecessor contract(s) was/were developed in whole or in part at Government expense (e.g., reviewing the developer's IR&D project approvals and accounting records, reviewing earned value management data and integrated program management reports);

(8) Assuming the results of that investigation validate the developer's assertion of development at private expense, what if any steps did the contracting officer take to request the developer propose a price to furnish the IP deliverables and IP licenses needed to compete the proposed acquisition; and

(9) The extent to which the program office considered reverse engineering any subsystems or components of the end item described in Section III (and summarize the estimated cost to reverse engineer those subsystems or components and the time it would take to complete such reverse engineering activities); or considered use of a modular open system approach to acquire those subsystems or components consistent with the program's capability development document, acquisition strategy, and system engineering plan. (DFARS 207.106(S-72)(2)(v); DFARS 227.7103-5(d)(2)(iii)).

Although the control of basic raw material makes the supplies or services available from only once source, the mere existence of such rights or circumstances does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Under such circumstances, this sub-section must identify how the intended source acquired a monopoly on those raw materials.

When acquiring utility services, circumstances may dictate that only one supplier can furnish the service, or when the contemplated contract is for construction of a part of a utility system and the utility company itself is the only source available to work on the system. (FAR 6.302-1(b)(3)).

When the agency head has determined in accordance with the agency's standardization program that only specified makes and models of technical equipment and parts will satisfy the agency's needs for additional units or replacement items and only one source is available, (FAR 6.302-1(b)(4)), this sub-section must identify the relevant standardization program.

Notwithstanding FAR 6.302-1(c)(2), a justification and approval is required in order to use brand name or equal descriptions or the use of proprietary specifications or standards. (DFARS 206.302-1(c)(2) and (S-70)).

Sub-subsection 4. When using the rationale described in sub-subsection 3 above, conclude this subsection by including one of the following sentences, as applicable:

“Accordingly, ___[insert company name]___ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be recovered through competition.”, “Accordingly, __[insert company name]__ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing unacceptable delays in fulfilling its requirements.”

“Accordingly, __[insert company name]__, is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be expected to be recovered through competition and unacceptable delays in fulfilling its requirements.”

The purpose of this sentence is to restate for the approving official's benefit which rationale(s) is/are the basis for going sole-source, thereby sensitizing them to the fact the author will now turn to discussing a different topic.

Contracting Officers must notify SAF/AQC as soon as practicable when contemplating the use of this authority for a J&A requiring SPE approval.

Provide an explanation why the supplies or services are needed at once due to, e.g., fire, flood, explosion, other disaster, emergency) or essential equipment or repairs to that equipment are needed at once to facilitate meeting critical mission needs of the Government. Identify the nature of the urgency, the reasons for it occurring, and the extent of the anticipated serious injury to the Government -- thereby demonstrating why the Government's need for the supplies or services described in Section III is of “unusual and compelling urgency” to preclude adverse impact to military readiness. (FAR 6.303-2(b)(9)(iii)). In other words, identify all nodes on the critical path between the failure to acquire the supplies or services described in Section III and the reduction (or elimination) of the warfighter's ability to accomplish specific missions. Merely citing a Joint Urgent Operational Need (JUON), Force Activity Designator (FAD) rating, Program Management Directive (PMD)/Program Action Directive (PAD) guidance, or DX priority rating is not in and of itself sufficient reason to use this exception from the requirement to obtain full and open competition. Note that only the minimum quantity required to satisfy the unusual and compelling urgency qualifies for this exception. In addition, the period of performance CANNOT exceed one year, including all options unless the head of the agency determines that exceptional circumstances apply (FAR 6.302-2(d)(ii)); thus, the inclusion of options when using this authority is not advised.

Note: This statutory authority requires that agencies request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-2(c)(2)).

Justifications citing this authority must demonstrate the need to maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization; 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; or to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute. If the proposed contract will require the contractor to keep vital facilities or suppliers in business or make them available in the event of a national emergency, train a supplier in the furnishing of critical supplies or services, prevent the loss of a supplier's ability and employees' skills, or maintain active engineering, research, or development work, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, or continue in production where there would otherwise be a break in production, or divide current production requirements among two or more contractors, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(1)). If the proposed contract will establish or maintain an essential engineering, research, or development capability to be provided by an education or other nonprofit institution or a federally funded research and development center for theoretical analyses, exploratory studies, experiments in any field of science of technology, or engineering or development work calling for the practical application of investigative findings and theories of a scientific or technical nature, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(a)(2)(ii) and (b)(2)). If the proposed contract will acquire the services of an expert to use in any litigation, dispute, or alternative dispute resolution proceedings involving the Government, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(3)).

Identify the applicable statute explicitly authorizing other than full and open competition. (FAR 6.302-5(b); DFARS 206.302-5(b)). The following is a non-exclusive list of statutes lifted from FAR 6.302-5(b) that authorize acquiring supplies and services from specified sources or through another agency:

(1) Federal Prison Industries (UNICOR) (18 U.S.C. § 4124 (see FAR Subpart 8.6).

(2) Qualified nonprofit agencies for the blind or other severely disabled (41 U.S.C. Chapter 85) Committee for Purchase From People Who Are Blind or Severely Disabled (see FAR Subpart 8.7).

(3) Government Printing and Binding (44 U.S.C. §§ 501-504, 1121 (see FAR Subpart 8.8)).

(4) Sole source awards under the 8(a) Program (15 U.S.C. § 637), but see FAR 6.303 for requirements for justification and approval of sole-source 8(a) awards over $25 million. (See FAR Subpart 19.8).

(5) Sole source awards under the HUBZone Act of 1997 (15 U.S.C. § 657a)(see FAR 19.1306).

(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. § 657f).

(7) Sole source awards under the WOSB Program (15 U.S.C. § 637(m)(see FAR 19.1506).

Note: Some statutes do not require a written J&A.

Full and open competition need not be provided for when the disclosure of the agency's needs would compromise the national security (e.g., would violate security requirements) unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. Accordingly, if this authority is used, this section shall explain how these conditions are satisfied.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by FAR 5.2 and, if not, indicate which exception under FAR 5.202 applies. (FAR 6.303-2(b)(6); FAR 6.303-2(b)(8); FAR 6.303-2(b)(10)) The contracting officer shall issue a sources sought synopsis or an RFI, provide the date the synopsis was issued, the synopsis number, and a brief description of its content. Identify the number of responses received, the names of the respondents, the results of the screening process, and the rationale for determining the unacceptability of any respondents, unless exempted by the MAJCOM SCO or Operating Location SCO with rank of GO or SES, otherwise approval by the HCA is required. (FAR 6.302-1(d)(2); DFARS 206.302-1(d); DFARS PGI 206.302-1(d); AFFARS 6306.302-1(d); AFFARS MP5301.601(a)(i)).

Specify whether this acquisition will require a Notice of proposed Contract Action (NOCA) IAW FAR 5.201 and if not, provide the exception IAW FAR 5.202. If a NOCA was or will be publicized provide the dates or expected dates of publication of the NOCA. Address any other actions taken or planned to facilitate competition for this acquisition.

When using the authority granted by FAR 6.302-1, an RFI or Sources Sought Synopsis is mandatory. (DFARS PGI 206.303-2(b)(i)).

When using the authority granted by FAR 6.302-2, agencies must request offers from as many potential sources as is practicable under the circumstances unless the Government would be seriously injured if the agency complied with the time periods specified in FAR 5.203. (FAR. 5.202(a)(2); FAR 603.2-2(b)(2)).

When using the authority granted by FAR 6.302-3, no synopsis is required if the proposed contract action is for utility services other that telecommunications services and only one source is available. (FAR 5.202(a)(5)).

When using the authority granted by FAR 6.302-5, no synopsis is required if the proposed contract action results from acceptance of a proposal under the Small Business Innovative Research (SBIR) program. (FAR 5.202(a)(7)).

When using the authority granted by FAR 6.302-6, agencies must request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-6(c)(3)). The fact that a proposed solicitation or contact action contains classified information, or that access to classified information may be necessary to submit a proposal or perform the contract does not, in itself exempt that proposed contract action from the synopsis requirement. (FAR 52.202(a)(1)). Under such circumstances, this section must identify what alternatives the program office used to compete this requirement (e.g., accessing the National Reconnaissance Office's (NRO) Acquisition Research Center's Central Contractor Registry database or the National Security Agency's (NSA) Acquisition Resource Center's Business Registry database to identify potential cleared offerors and summarize what outreach the program office conducted with those potential cleared offerors to determine their interest in the proposed acquisition).

If qualifying country sources have expressed interest, but will be excluded, provide supporting rationale.

VI. Determination by the contracting officer that the anticipated cost to the government will be fair and reasonable. (FAR 6.303-2(b)(7)) Include the following text, suitably tailored: “Based upon (1) certified cost or pricing data provided in the offeror's proposal, (2) the program office's technical analysis of the offeror's Basis of Estimates (BOE), and (3) inputs from the Defense Contract Management Agency, including from the Administrative Contracting Officer, the contracting officer expects they will be able to determine that the anticipated cost to the Government will be fair and reasonable.”

VII. Description of the market research conducted and the results, or explain why market research was not conducted. (FAR 6.303-2(b)(8)) Discuss any market research conducted pursuant to FAR Part 10 (in addition to any actions described in Section VI above) and describe the results of that research. When other exceptions from the requirement to obtain full and open competition are relied upon, the market research might be limited to an examination of the acquisition history and experience with the marketplace under previous acquisitions for the same or similar items.