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    FAR PART 6.302-1 requires a J&A for brand name items does this apply to procurements made sole source under the 8a Program when the vendor is not the OEM if requesting a brand name? Does the manufacturing rule apply?


    Answer

    There are few different questions posed here so we will try and answer them one at a time.

    1.  Do you need a brand name J&A for sole source under 8(a) program?  No for actions under $22M. FAR 6.302-1(c) notes that a brand name shall be justified and approved in accordance with FAR 6.303 and 6.304 FAR 6.303-1(b), states that a sole-source 8(a) contract only needs to be justified in writing for an amount exceeding $22M.  Therefore, no J&A needed if amount is under $22M.  Also FAR 6.302-5(b)(4) also notes to see 6.303 for requirements for justification and approval of sole-source 8(a) awards over $22M. 

    2.  Given that you do not need a brand name justification for actions under $22M for 8(a) sole-source, you must still adhere to the nonmanufacturing rule (NMR), which is that a contractor under a small business set-aside, including 8(a) set-aside, shall be a small business under the applicable size standard and shall provide either its own product or that of another domestic small business manufacturing or processing concern (FAR 19.001).  An exception to the NMR is if the requirement is processed under SAP and is under $25K {FAR 19.502-2(c)},then you can do an 8(a) purchase on a brand name item. 

    If it is over $25K, you would not be able to do an 8(a) set-aside on a brand name requirement even if there is an SBA waiver in place to provide any firm's product because you have to have an expectation of receiving offers from at least 2 responsible small businesses, including nonmanufacturers, offering the products of different concerns FAR 19.502-2(c).  How can 2 different small businesses offer the product of different concerns if it is a brand name requirement?  It is unclear how that would be allowable. 

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