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  • Question

    Can a brand name or equal acquisition be completed on a small business set-aside when the brand item named is manufactured by a large business when no class waiver exists? What if all the companies quote a the large, brand name item? Can this feasibly work?


    Answer


    You have two issues.
     
    1. The use of a brand name or equal does not create a problem and a J&A isn't required per FAR Part 6.302-1(c). This will allow you to solicit openly for the item and make a best value decision.

    2. The strategy to set-aside a brand-name or equal for an item manufactured by a Large Business seems questionable but FAR 19.102(f)(5) allows "For a specific solicitation, a contracting officer may request a waiver of that part of the nonmanufacturer rule which requires that the actual manufacturer or processor be a small business concern if no known domestic small business manufacturers or processors can reasonably be expected to offer a product meeting the requirements of the solicitation."

    19.001 -- Definitions.

    FAR 19.001 Definitions defines the “Nonmanufacturer rule” means that a contractor under a small business set-aside or 8(a) contract shall be a small business under the applicable size standard and shall provide either its own product or that of another domestic small business manufacturing or processing concern (see 13 CFR 121.406).


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