My question is why is a justification needed for seeking "Brand-name or Equal"?
"FAR 6.302-1 -- Only One Responsible Source and No Other Supplies or
Services Will Satisfy Agency Requirements.
(c) Application for brand name descriptions.
(2) Brand-name or equal descriptions, and other purchase descriptions that
permit prospective contractors to offer products other than those
specifically referenced by brand-name, provide for full and open competition
and do not require justifications and approvals to support their use."
This FAR reference cleary states it is NOT required because it allows for the offer of alternative products. It does NOT restrict competition.
This GEM here is to blame.
Excerpt from the FY2017 NDAA:
"SEC. 888. <> REQUIREMENT AND REVIEW
RELATING TO USE OF BRAND NAMES OR BRAND-
NAME OR EQUIVALENT DESCRIPTIONS IN
(a) Requirement.--The Secretary of Defense shall ensure that
competition in Department of Defense contracts is not limited
through the use of specifying brand names or brand-name or equivalent
descriptions, or proprietary specifications or standards, in
solicitations unless a justification for such specification is provided
and approved in accordance with section 2304(f) of title 10, United
What was the intent of putting the phrase "Brand-name or equal" in the mix? Did the group writing this not understand that the "Or Equal" portion increases the competition.
Am I correct in my understanding, that because someone wasn't paying attention, we now have to have a J&A for EVERY REQUIREMENT that has Salient characteristics. Did
"FAR 11.104 –Use of Brand Name or Equal Purchase Descriptions.
(a) While the use of performance specifications is preferred to encourage offerors to propose innovative solutions, the use of brand name or equal purchase descriptions may be advantageous under certain circumstances.
(b) Brand name or equal purchase descriptions must include, in addition to the brand name, a general description of those salient physical, functional, or performance characteristics of the brand name item that an “equal” item must meet to be acceptable for award. Use brand name or equal descriptions when the salient characteristics are firm requirements."
^ I was taught that salient characteristics are ALWAYS "firm requirements", as they are the only characteristics that make an item technically acceptable.
Base on FAR 11.104, a J&A is required because we are supposed to use a "Brand-name or Equal" description when salient characteristics are firm.
Any guidance is appreciated.
This is a great question. I go back back to the Federal policy on competition, Contracting Officers SHALL promote and provide for full and open competition for so many reasons, i.e. innovation, quality, price and sustainablility of items.
"FAR 6.101 -- Policy.
(a) 10 U.S.C. 2304 and 41 U.S.C. 3301 require, with certain limited exceptions (see Subparts 6.2 and 6.3), that contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts."
On May 31, a final rule was published in the DFARS referencing DFARS 211.104 and DFARS 211.170. I have attached the link for you. Lots of great discussion in the comments received regarding the proposed rule. I think it may address most of your questions and concerns.
SUBPART 211.1--SELECTING AND DEVELOPING REQUIREMENTS DOCUMENTS
(Revised May 31, 2019)
211.104 Use of brand name or equal purchase descriptions.
A justification and approval is required to use brand name or equal purchase descriptions—
(1) When using sealed bidding or negotiated acquisition procedures (see 206.302-1(c)(2) for justification requirements); or
(2) When using the simplified procedures for certain commercial items at FAR 13.5 (see 213.501(a)(ii) for justification requirement).
- 211.105 Items peculiar to one manufacturer.
Follow the publication requirements at PGI 211.105.
Lastly, you are correct FAR 6.302-1(c) provides for a Justification and Approval for the application for brand name description.
(c) Application for brand name descriptions.
(1) An acquisition or portion of an acquisition that uses a brand-name description or other purchase description to specify a particular brand-name, product, or feature of a product, peculiar to one manufacturer—
(2) Brand-name or equal descriptions, and other purchase descriptions that permit prospective contractors to offer products other than those specifically referenced by brand-name, provide for full and open competition and do not require justifications and approvals to support their use.
(i) Does not provide for full and open competition, regardless of the number of sources solicited; and
(ii) Shall be justified and approved in accordance with FAR 6.303 and 6.304.
(A) If only a portion of the acquisition is for a brand-name product or item peculiar to one manufacturer, the justification and approval is to cover only the portion of the acquisition which is brand-name or peculiar to one manufacturer. The justification should state it is covering only the portion of the acquisition which is brand-name or peculiar to one manufacturer, and the approval level requirements will then only apply to that portion;
(B) The justification should indicate that the use of such descriptions in the acquisition or portion of an acquisition is essential to the Government’s requirements, thereby precluding consideration of a product manufactured by another company; andg
(C) The justification shall be posted with the solicitation (see 5.102(a)(6)).
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