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  • Question

    Based on the FAR, fair and reasonable pricing must be determined, is it feasible to utilize the additional quote to determine F&R? Furthermore, what if a large business provided a quote could the large business pricing be used for analysis as well?


    Answer

    FAR 13.104 requires contracting officers to promote competition to the maximum extent practicable.  FAR 13.104 (a) goes onto further state

          (a) The contracting officer must not-

               (1) Solicit quotations based on personal preference; or

               (2) Restrict solicitation to suppliers of well-known and widely distributed makes or brands.

    Paragraph (b) further clarifies that the contracting officer should “consider solicitation of at least three sources to promote competition to the maximum extent practicable. Whenever practicable, request quotations or offers from two sources not included in the previous solicitation.”

    And in FAR 13.105 Synopsis and posting requirements pay attention to the following:

          (a) The contracting officer must comply with the public display and synopsis requirements of 5.101 and 5.203 unless an exception in 5.202 applies.

          (c) See 5.102(a)(6) for the requirement to post a brand name justification or documentation required by 13.106-1(b) or 13.501.

    And from13.106-1 Soliciting competition, this is also important: .

          (a) Considerations.  In soliciting competition, the contracting officer shall consider the guidance in 13.104 and the following before requesting quotations or offers:

               (1) (i) The nature of the article or service to be purchased and whether it is highly competitive and readily available in several makes or brands, or is relatively noncompetitive.

                    (ii) An electronic commerce method that employs widespread electronic public notice is not available; and

                    (iii) The urgency of the proposed purchase.

                    (iv) The dollar value of the proposed purchase.

                    (v) Past experience concerning specific dealers’ prices.

          (b) Soliciting from a single source. (1) For purchases not exceeding the simplified acquisition threshold. (i) Contracting officers may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand-name or industrial mobilization).

    AND finally consider 13.106-3 Award and documentation which states the following:

          (a) Basis for award. Before making award, the contracting officer must determine that the proposed price is fair and reasonable.

               (1) Whenever possible, base price reasonableness on competitive quotations or offers.

               (2) If only one response is received, include a statement of price reasonableness in the contract file. The contracting officer may base the statement on-

                    (i) Market research;

                    (ii) Comparison of the proposed price with prices found reasonable on previous purchases;

                    (iii) Current price lists, catalogs, or advertisements. However, inclusion of a price in a price list, catalog, or advertisement does not, in and of itself, establish fairness and reasonableness of the price;

                    (iv) A comparison with similar items in a related industry;

                    (v) The contracting officer’s personal knowledge of the item being purchased;

                    (vi) Comparison to an independent Government estimate; or

                    (vii) Any other reasonable basis.

    Bottom line: the background information from your AAP question indicated the requirement is for a brand name specific item that is only available from a single source and the purchase does not exceed the simplified acquisition threshold.  Based on the limited information I have about your acquisition situation and based on my reading of the FAR (more specifically, FAR 5.102(a)(6) and FAR 13.1-6-1(b) or FAR 13.501) , I believe a brand name justification should be posted to the Governmentwide point of entry (GPE). Assuming there is not competition after soliciting/and or posting an approved brand name justification on the GPE, FAR 13.106-3 provides the contracting officer some other alternatives for determining the proposed price is fair and reasonable including market research, comparison to reasonable prices from previous purchases and comparison to an IGE among other things.  Finally, I strongly recommend having a conversation with your legal advisor, requirements owner and contracting officer to ensure the requirement cannot be restated to allow for consideration of other alternatives other than the brand name specific item and that there truly are no other suitable alternatives.  Also, legal should review the brand name justification before the contracting officer signs and posts it on GPE.

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