SS Justification_Photonwares_Redacted.pdf

U.S. Department of Navy Naval Research Laboratory Small Purchase Branch

USE OF OTHER THAN FULL AND OPEN COMPETITION FOR AN ACQUISITION UNDER

THE SIMPLIFIED ACQUISITION THRESHOLD – (exceeding $10,000 $250,000)

Purchase Request No.

Estimated Cost (including options, if any)

FAR 13.106 1(b)(1)(i) states for purchases not exceeding the simplified acquisition threshold, Contracting Officers may solicit from one source if the Contracting Officer determines that the circumstances of the contract action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand name or industrial mobilization).

As required by FAR 13.106 3(b)(3)(i), this justification explains the absence of competition for this acquisition, as only one source will be solicited for this requirement (or for a portion of the requirement) and the requirement is not expected to exceed the simplified acquisition threshold.

DESCRIPTION OF ITEM OR SERVICE: (Provide a description of the item or service required, to include its intended use, the name of the required source or brand name, and the required delivery date/period of performance.)

THE DETERMINATION FOR USE OF OTHER THAN FULL AND OPEN COMPETITION IS BASED ON THE FOLLOWING (select all that apply):

A. ONLY ONE RESPONSIBLE SOURCE (select all that apply):

1. RESTRICTIVE RIGHTS. The source has established proprietary rights, limited rights in data, patent rights, copyrights or secret processes in the item or service required. (Explain what rights are restricted, why the restrictive rights make the required item or service available from only one source, and why another company could not satisfy the Government’s need.)

2. EXCLUSIVE LICENSING AGREEMENTS. The item or service is only available from the Original Equipment Manufacturer (OEM), or there is only one authorized distributor or technical representative for the OEM. (Identify the OEM and explain the circumstances surrounding why the item or service is only available from the OEM).

The items that we require are a few different electro-optic (EO) field sensors from Photonwares. We invented the EO sensor technology at the Naval Research Laboratory, and the vendor obtained the NRL license through the technology transfer agreement several years ago. The NRL technology transfer office allowed the vendor to manufacture the EO field sensors for us. The items we request to purchase are custom-made to be used for our projects and should be delivered to us in 12 weeks.

More specifically, the items we require are listed below:

8 units of EOFS-0011311321132-DKDP 3 units of EOFS001131132-LN.

3 units of EOFS-111131232 2 units of EOFS-131131232

As Photonwares have the license to produce the items, no other companies are allowed to manufacture them.

We are the inventors and have obtained patents for the EO sensor technologies. Photonwares obtained the NRL license through the technology transfer agreement several years ago. The NRL technology transfer office allowed Photonwares to manufacture the EO sensors exclusively for the Naval Research Laboratory. Presently no other company is allowed to manufacture the item.

GUIDELINES FOR OTHER THAN FULL AND OPEN COMPETITION

Requirements personnel are responsible for providing and certifying as accurate and complete necessary data to support their recommendation for other than full and open competition. The justification must; 1) demonstrate that only one company can perform,

2) State clearly the Government’s requirements, and 3) Explain clearly why the contractor is the only company that can meet the Government’s requirement. The justification cannot be price based alone and incumbency does not justify other than full and open competition.

1. The following are examples of bases for other than full and open acquisitions:

a. The supplies or services to be acquired are unique to a supplier for which there is no comparable competitive product.

b. A component or replacement part for which there is no commercially available substitute, and which can be obtained only from the manufacturer and/or a manufacturer's distributor.

c. An item where compatibility is the overriding consideration, such as computer operating software enhancements for an existing system.

d. A supply, equipment, part, service or supplier that, due to technically constraining factors associated with scientific research, are needed to ensure the fairness and validity of the underlying research.

e. Repair/replacement parts for non competitive equipment.

f. Continuation of an existing contract when work is so closely related to that of the uncompleted basic contract that it would not be feasible to consider another potential contractor.

2. The two most often cited bases for other than full and open competition are uniqueness and timeframe. These are often confused and inappropriately interchanged.

a. If the contractor has a unique capability, whether it be an item or service, it is insufficient to simply say that the supplier is unique. If the item is unique to the supplier, the unique characteristics must be set forth. If the supplier has unique expertise, that expertise must be described. If the supplier has unique equipment or facilities or he/she has proprietary data, it must be explained.

b. If only one supplier can perform within the required timeframe, the timeframe must be explained. Administrative delay or lack of adequate advanced planning does not create an urgency that justifies other than full and open competition. It is not enough that timeliness is “of utmost importance,” as is often stated. The requestor must show that proceeding with a competitive process would cause the Government serious harm.

c. If the justification includes a timeliness reason, the requestor must give an explanation of why timeliness was not addressed through better planning, and what steps will be taken to try to prevent a non competitive process in the future.

i. Provide the date by which the supplies or services must be delivered.

ii. Indicate how that date was determined and its significance.

iii. Indicate the impact of delay beyond that date in terms of program schedules, milestones, etc.

iv. State how long it would take another contractor to acquire the capability to perform (learning period), how much it would cost another contractor to get up to speed, and if appropriate, what it would cost the Government in terms of dollars and man hours to get another contractor up to speed.

v. State the bases for the above estimates.

3. State how the decision to go sole source was reached, (i.e. technical personnel’s knowledge and experience, market research, etc.). The following are examples of documentation supporting this element:

a. Technical Personnel’s Knowledge:

vi. Explain requisition originator’s experience that would indicate that he/she knows that only one source can perform.

vii. Explain what technical publications, symposiums, or conferences clearly indicate that only one company can perform. List publications read and symposiums and conferences attended.

b. Market Research.

viii. State who conducted the survey.

ix. State when it was performed.

x. State what companies are in the industry, if feasible.

xi. State how the companies were contacted.

xii. State what questions were asked, and how the companies responded.

xiii. Name the companies that were contacted. Were all contractors in the relevant industry contacted? If not, why?

xiv. Provide each response from those companies surveyed.

xv. If any company stated that it could meet the requirements, give a justification for excluding that company, if it was not chosen.

xvi. State how it was determined that the contractor was the only one qualified.

xvii. State how requestor will plan better to ensure a full and competitive process the next time

4. In cases where an unsolicited proposal for R&D has been received, the justification limiting acquisition to a single source must verify that the proposal represents the product of original thinking by the submitting contractor and could not be obtained competitively without revealing the original thinking.