Is a SAP RFQ considered a negotiated procurement even when FAR 15 isn't used? Does the following apply to a SAP RFQ? 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).
Great questions. To answer the first question, you must look at the nuances in the wording. The term “Negotiated Acquisitions” as used in the FAR Part 15 definition concerns whether the acquisition can be negotiated in general, not the type of procedures used. This FAR Part 15 definition is stating that the only acquisition type that is not a negotiated acquisition is FAR Part 14 Sealed Bidding. This means that “Simplified Acquisitions” are negotiated acquisitions. Now, I believe your confusion may be intermixing the terms “Negotiated Acquisitions” and “Negotiation Procedures” as you are interpreting the FAR and DFARS. Negotiation procedures are described in FAR Part 15. This is the only Part of the FAR that describes formal negotiation procedures and these procedures only apply to FAR Part 15 acquisitions, unless another Part or Supplement (i.e. DFARS, AFARS, etc.) state otherwise.
For the second question you are asking whether DFARS 211.104 applies when using FAR Part 13 Simplified Acquisition Procedures (SAP). The answer is “It depends.” Paragraph 1 (DFARS 211.145(1)) does not apply, since it only applies if you are using the “Procedures” in FAR Part 14 – Sealed Bidding or FAR Part 15 – Contracting by Negotiation. You are stating that you are using the procedures in FAR Part 13 – Simplified Acquisition Procedures. Now, paragraph 2 (DFARS 211.145(2)) applies if you are purchasing items that fall under FAR 13.5. If your commercial item(s) apply to the dollar thresholds described FAR 13.500(a), likely you will need a Justification & Approval (J&A). FAR 13.500(a) states, “This subpart authorizes the use of simplified procedures for the acquisition of supplies and services in amounts greater than the simplified acquisition threshold but not exceeding $7.5 million ($15 million for acquisitions as described in 13.500(c)), including options, if the contracting officer reasonably expects, based on the nature of the supplies or services sought, and on market research, that offers will include only commercial products or commercial services.” Long story short, basically, this means that if you are over the Simplified Acquisition Threshold (varies depending on your situation), you will likely be doing the J&A referencing paragraph 2 (DFARS 211.145(2)).