6.302-5 Authorized or required by statute
Source: FAR 6.302-5 on acquisition.gov
FAR 6.302-5 allows agencies to limit competition and make sole source awards when expressly authorized or required by statute, but strict documentation and statutory limitations apply.
Overview
FAR 6.302-5 outlines the circumstances under which agencies may limit competition and award contracts without full and open competition when authorized or required by statute. This section provides the legal basis for sole source or directed acquisitions when a statute specifically mandates or authorizes procurement from a particular source or through another agency. It also covers brand name commercial product purchases for resale and lists specific statutory programs (e.g., UNICOR, AbilityOne, 8(a), HUBZone, WOSB, Veterans Benefits Act) where this authority applies. The section details limitations, including when such authority cannot be used, and specifies requirements for written justifications and approvals, with certain exceptions for specific programs and contract values.
Key Rules
- Statutory Authorization or Requirement
- Agencies may bypass full and open competition if a statute expressly authorizes or requires acquisition from a specified source or through another agency, or for brand name commercial products for resale.
- Application to Specific Programs
- Applies to acquisitions from UNICOR, AbilityOne, Government Printing Office, and sole source awards under 8(a), HUBZone, WOSB, and Veterans Benefits Act programs.
- Limitations on Use
- Cannot be used for contracts to non-Federal entities unless the law specifically identifies the entity, references the correct statute, and allows bypassing merit-based selection, with limited exceptions.
- Justification and Approval Requirements
- Written justifications and approvals are generally required unless the statute mandates the source, or for certain programs and contract values (e.g., 8(a) contracts ≤ $30 million).
- Brand Name Resale Purchases
- Authority for brand name purchases is limited to resale through commissaries or similar facilities, typically for customer-preferred items.
Responsibilities
- Contracting Officers: Must verify statutory authority, ensure compliance with justification and approval requirements, and apply limitations appropriately.
- Contractors: Should understand eligibility for sole source or directed awards under applicable statutes and be prepared to provide supporting documentation if required.
- Agencies: Must oversee proper application of statutory authorities and maintain records of justifications and approvals.
Practical Implications
- This section enables agencies to fulfill statutory mandates or policy objectives by directing contracts to specific sources, but requires careful documentation and adherence to limitations. Contractors should be aware of the programs and statutes that may allow for noncompetitive awards and ensure compliance with all procedural requirements. Common pitfalls include failing to obtain required justifications or misapplying statutory authority.
(a) Authority.
(1) Citations: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3204&num=0&edition=prelim" target="_blank">10 U.S.C. 3204(a)(5) or http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304(a)(5)&num=0&edition=prelim" target="_blank">41 U.S.C. 3304(a)(5).
(2) Full and open competition need not be provided for when–
(i) A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source; or
(ii) The agency’s need is for a brand name commercial product for authorized resale.
(b) Application. This authority may be used when statutes, such as the following, expressly authorize or require that acquisition be made from a specified source or through another agency:
(1) Federal Prison Industries (UNICOR) http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section4124&num=0&edition=prelim" target="_blank">18 U.S.C. 4124 (see subpart 8.6).
(2) Qualified nonprofit agencies for the blind or other severely disabled http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title41-chapter85&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU0MC1jaGFwdGVyMzctZnJvbnQ%3D%7C%7C%7C0%7Cfalse%7Cprelim&edition=prelim" target="_blank">41 U.S.C. chapter 85, Committee for Purchase From People Who Are Blind or Severely Disabled (see subpart 8.7).
(3) Government Printing and Binding http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section501&num=0&edition=prelim" target="_blank">44 U.S.C. 501-http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section504&num=0&edition=prelim" target="_blank">504, 1121 (see subpart 8.8).
(4) Sole source awards under the 8(a) Program (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section637&num=0&edition=prelim" target="_blank">15 U.S.C. 637), but see 6.303 for requirements for justification and approval of sole-source 8(a) awards over $30 million. (See subpart 19.8).
(5) Sole source awards under the HUBZone Act of 1997-http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section657a&num=0&edition=prelim" target="_blank">15 U.S.C. 657a (see 19.1306).
(6) Sole source awards under the Veterans Benefits Act of 2003 (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section657f&num=0&edition=prelim" target="_blank">15 U.S.C. 657f).
(7) Sole source awards under the WOSB Program– http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section637(m)&num=0&edition=prelim" target="_blank">15 U.S.C. 637(m) (see 19.1506).
(c) Limitations.
(1) This authority shall not be used when a provision of law requires an agency to award a new contract to a specified non-Federal Government entity unless the provision of law specifically—
(i) Identifies the entity involved;
(ii) Refers to https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3201&num=0&edition=prelim" target="_blank">10 U.S.C. 3201(e) for armed services acquisitions or http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3105&num=0&edition=prelim" target="_blank">41 U.S.C. 3105 for civilian agency acquisitions; and
(iii) States that award to that entity shall be made in contravention of the merit-based selection procedures in http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section2304(k)&num=0&edition=prelim" target="_blank">10 U.S.C. 2304(k) or http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3105&num=0&edition=prelim" target="_blank">41 U.S.C. 3105, as appropriate. However, this limitation does not apply–
(A) When the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract; or
(B) To any contract requiring the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an executive agency and to report on those matters to the Congress or any agency of the Federal Government.
(2) Contracts awarded using this authority shall be supported by the written justifications and approvals described in 6.303 and 6.304, except for–
(i) Contracts awarded under (a)(2)(ii) or (b)(2) of this section;
(ii) Contracts awarded under (a)(2)(i) of this section when the statute expressly requires that the procurement be made from a specified source. (Justification and approval requirements apply when the statute authorizes, but does not require, that the procurement be made from a specified source); or
(iii) Contracts less than or equal to $30 million awarded under (b)(4) of this section.
(3) The authority in (a)(2)(ii) of this section may be used only for purchases of brand name commercial products for resale through commissaries or other similar facilities. Ordinarily, these purchases will involve articles desired or preferred by customers of the selling activities (but see 6.301(d)).