§ 200.319 - Competition.

§ 200.319 Competition.

(a) All procurement transactions for the acquisition of property or services required under a under the Federal award must be conducted in a manner providing that provides full and open competition and is consistent with the standards of this section and § 200.320.

(b) In order to To ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such on those procurements. Some

(c) Examples of

the situations considered to be restrictive of

situations that may restrict competition include, but are not limited to:

(1) Placing unreasonable requirements on firms

in order

for them to qualify to do business;

(2) Requiring unnecessary experience and excessive bonding;

(3) Noncompetitive pricing practices between firms or between affiliated companies;

(4) Noncompetitive contracts to consultants that are on retainer contracts;

(5) Organizational conflicts of interest;

(6) Specifying only a “brand name” product instead of allowing “an equal” product to be offered and describing the performance or other relevant requirements of the procurement; and

(7) Any arbitrary action in the procurement process.

(

c

d) The

non-Federal entity must conduct procurements in a manner that prohibits the use of statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts state licensing laws. When contracting for architectural and engineering (A/E) services, geographic location may be a selection criterion provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.

(d) The non-Federal entity recipient or subrecipient must have written procedures for procurement transactions. These procedures must ensure that all solicitations:

(1) Are made in accordance with § 200.319(b);

(2) Incorporate a clear and accurate description of the technical requirements for the

material

property,

product

equipment, or service

to be

being procured.

Such description must not, in competitive procurements, contain features which unduly restrict competition.

The description may include a statement of the qualitative nature of the

material

property,

product

equipment, or service to be procured

and, when

. When necessary, the description must

set forth those

provide minimum essential characteristics and standards to which

it

the property, equipment, or service must conform

if it is to satisfy its intended use

. Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to

make a clear and accurate description of

clearly and accurately describe the technical requirements, a “brand name or equivalent” description of features may be used

as a means to define the performance or other salient requirements of procurement

to provide procurement requirements. The specific features of the named brand

which

must be

met by offers must be

clearly stated; and

(

2

3) Identify

all

any additional requirements which the offerors must fulfill and all other factors

to

that will be used in evaluating bids or proposals.

(e) The non-Federal entity recipient or subrecipient must ensure that all prequalified lists of persons, firms, or products which are used in acquiring goods and services procurement transactions are current and include enough qualified sources to ensure maximum open and free competition. AlsoWhen establishing or amending prequalified lists, the non-Federal entity must recipient or subrecipient must consider objective factors that evaluate price and cost to maximize competition. The recipient or subrecipient must not preclude potential bidders from qualifying during the solicitation period.

(f) To the extent consistent with established practices and legal requirements applicable to the recipient or subrecipient, this subpart does not prohibit recipients or subrecipients from developing written procedures for procurement transactions that incorporate a scoring mechanism that rewards bidders that commit to specific numbers and types of U.S. jobs, minimum compensation, benefits, on-the-job-training for employees making work products or providing services on a contract, and other worker protections. This subpart also does not prohibit recipients and subrecipients from making inquiries of bidders about these subjects and assessing the responses. Any scoring mechanism must be consistent with the U.S. Constitution, applicable Federal statutes and regulations, and the terms and conditions of the Federal award.

(g) Noncompetitive procurements can only be awarded in accordance with § 200.320(c).