b.  Contingency Contracting

Comment: One respondent viewed the exception for contingency contracting as a serious defect. The respondent referenced the Commission on Wartime Contracting as evidence that DoD's non-competitive procurement practices in contingency operations have resulted in billions of dollars of waste. The respondent, therefore, recommended that either the exception be deleted, or a rigorous set of guidelines be included in the final rule, to limit the instances in which such an exception could be granted.

Response: An exception for actions in support of contingency operations is provided due to the urgent nature of actions and the need for flexibility in theater in order to remain responsive. Application of the exception does not eliminate the need for the contracting officer to seek maximum practicable competition and ensure that the price is fair and reasonable. The intent of the proposed rule is to drive behavior to enhance real competition whenever possible and to obtain a fair and reasonable price. To establish a rigorous set of guidelines to limit instances in which an exception could be granted in a contingency environment could severely limit the flexibility of the contracting officer in these instances. DoD is also reviewing the findings/recommendations of the Commission on Wartime Contracting and placement of additional safeguards and remedies to promote competition in a contingency environment.