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    On a Brand Name Justification, can you have multiple items requiring different brand names?


    Answer

    Thank you for your question!

    The short answer is: Yes, you can have multiple items requiring different brand names, you would just need to have justifications for each brand name. 

    In accordance with DFARS 206.302-1(c)(2), Before issuing a brand name or equal solicitation, DoD contracting officers would need to execute a written justification and approval (“J&A”) in accordance with FAR 6.303 and FAR 6.304.  Additionally, FAR 6.304(a) also requires DoD contracting officers to seek the approval of a senior agency official before finalizing a J&A, including the approval of the “senior procurement executive” for acquisitions over $93 million.  FAR 6.304(a)(4); DFARS 206.304(a)(4). 

    Federal procurement law requires agencies to draft competitive solicitations that describe the Government’s needs generally, rather than referencing a specific type of product.  FAR 11.104.  However, “under certain circumstances,” agencies may request a specific brand name product or its equal.  An off-brand product is “equal” if it shares the same the same salient characteristics as the brand name product. 

    Contractors have at times challenged, through pre-award bid protests, agency decisions to reference a brand name product as unfair and unduly restrictive of competition, contrary to the Competition in Contracting Act of 1984’s (“CICA”) requirement for full and open competition. Despite that, the FAR provides that a brand name or equal solicitation is normally deemed to satisfy CICA’s competition requirement.  FAR 6.302-1(c)(2).

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