Does the Brand Name or Equal J&A requirement apply to the DoD using Federal Supply Schedules? Put another way, does DFARS 211.104 apply to DoD's use of Federal Supply Schedules?
FAR 8.405-6 explicitly states BPA's established under Federal Supply Schedules are exempt from the requirements in Part 6. FAR 8.405-6 only requires justification for Brand Name only.
DFARS 208.405 only calls out the limitations and prohibitions on use of LPTA, which ARE applicable to FSS. But is silent on the incorporation or applicability of section 888(a) of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328).
DFARS 213.501(a)(ii) and DFARS 206.302-1(c)(2) address section 888(a) of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the justification and approval addressed in FAR 6.303 is required in order to use brand name or equal descriptions.
This response is based on the information provided. We suggest you discuss with your contracting team, program manager and/or legal department as appropriate.
We believe ordering from a Federal Supply Schedule does not remove the need for a Justification and Approval (J&A).
"FAR 8.405-6 Limiting sources.
Orders placed or BPAs established under Federal Supply Schedules are exempt from the requirements in part 6. However, an ordering activity must justify its action when restricting consideration in accordance with paragraph (a) or (b) of this section— ...
(b) Items peculiar to one manufacturer. An item peculiar to one manufacturer can be a particular brand name, product, or a feature of a product, peculiar to one manufacturer. A brand name item, whether available on one or more schedule contracts, is an item peculiar to one manufacturer.
(1) Brand name specifications shall not be used unless the particular brand name, product, or feature is essential to the Government’s requirements, and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs.
(2) Documentation.
(i) For proposed orders or BPAs with an estimated value exceeding the micro-purchase threshold, but not exceeding the simplified acquisition threshold, the ordering activity contracting officer shall document the basis for restricting consideration to an item peculiar to one manufacturer.
(ii) For proposed orders or BPAs with an estimated value exceeding the simplified acquisition threshold, see paragraph (c) of this section.
(iii) The documentation or justification must be completed and approved at the time the requirement for a brand-name item is determined. In addition, the justification for a brand-name item is required at the order level when a justification for the brand-name item was not completed for the BPA or does not adequately cover the requirements in the order.
...
(4) When applicable, the documentation and posting requirements in paragraphs (b)(2) and (3) of this section apply only to the portion of the order or BPA that requires a brand-name item. If the justification and approval is to cover only the portion of the acquisition which is brand-name, then it should so state; the approval level requirements will then only apply to that portion.
(c) An order or BPA with an estimated value exceeding the simplified acquisition threshold. (1) For a proposed order or BPA exceeding the simplified acquisition threshold, the requiring activity shall assist the ordering activity contracting officer in the preparation of the justification. The justification shall cite that the acquisition is conducted under the authority of the Multiple-Award Schedule Program (see 8.401)."
Our reading of the FAR is that items peculiar to one manufacturer need a J&A.
DFARS 208.405-6 Limiting sources, addresses action required when the order is a follow-on.
As yours is a Space Force unit we also looked at the AFFARS:
"AFFARS 5308.405-6 Limited Sources
(b)(3)(ii)(C) See MP5301.601-90. Submit determinations through the SCO to SAF/AQC for approval.
(d) Justification Approvals
See 5306.304 Approval of the Justification for the approving officials for proposed orders or BPAs using the limited or sole source justification at FAR 8.405-6(a)-(c). See the tailorable Limited Sources Justification and Approval (J&A) template.”
We see nothing supporting the position and J&A is not needed when using "Items peculiar to one manufacturer/Brand Name."
