Software Mntc Services - Can a Service be "Brand Name"

[govt2310]

In the context of software maintenance services, are they considered a supply/product or a service for purposes of Brand Name Restriction?

FAR 11.105 concerns "Items" peculiar to one manufacturer, and allows for a brand name restriction only when "the particular brand name, product, or feature is essential to the Government's requirements . . . ". I have seen this interpreted to mean that FAR 11.105 only applies to "items," meaning tangible products/supplies, and that FAR 11.105 does not apply to services.

But what happens with a software maintenance services contract? What if the agency requires a brand name restriction: for example, what if the agency has Oracle software on its work stations and needs to obtain software maintenance services for the next year. Only Oracle, and Oracle resellers, are capable of performing such maintenance services. How does the agency restrict the procurement to only Oracle and Oracle resellers?

At my previous agency, we did it this way: we believed FAR 11.105 did not apply to services, so we used FAR 6.302-1, Only One Responsible Source. Of course, I worked at DOD/Army, so the language at FAR 6.302-1(a)(2), which says DOD is allowed to justify limiting competition to "one or a limited number of responsible sources," allowed us to limit the procurement to Oracle and Oracle resellers.

Now I work at a civilian agency, and this language does not apply to us. It appears that FAR 6.302-1 allows civilian agencies to justify limiting competition to "only one responsible source" - but there is more than one responsible source: Oracle and Oracle resellers. So what can a civilian agency do?

I'm curious to hear how other agencie are handling this situation. Also, just FYI, GSA lists software maintenance as both a service and a product on its Special Item Numbers (SIN), see http://www.gsa.gov/portal/content/188085. SIN 132-32 and 132-33 are consider "Maintenance of Software as a Product," and SIN 132-34 is considered "Maintenance of Software as a Service."

Here are the FAR clauses:

FAR 11.105 -- Items Peculiar to One Manufacturer.

Agency requirements shall not be written so as to require a particular brand-name, product, or a feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product manufactured by another company, unless --

(a)

(1) 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 can not be modified to meet, the agency?s needs;

(2)

(i) The authority to contract without providing for full and open competition is supported by the required justifications and approvals (see 6.302-1); or

(ii) The basis for not providing for maximum practicable competition is documented in the file (see 13.106-1() or justified (see 13.501) when the acquisition is awarded using simplified acquisition procedures.

(3) The documentation or justification is posted for acquisitions over $25,000. (See 5.102(a)(6).)

( For multiple award schedule orders, see 8.405-6.

and

FAR 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.

(a) Authority.

(1) Citations: 10 U.S.C. 2304©(1) or 41 U.S.C. 253©(1).

(2) When the supplies or services required by the agency are available from only one responsible source, or, for DOD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be provided for.

(i) Supplies or services may be considered to be available from only one source if the source has submitted an unsolicited research proposal that --

(A) Demonstrates a unique and innovative concept (see definition at 2.101), or, demonstrates a unique capability of the source to provide the particular research services proposed;

( Offers a concept or services not otherwise available to the Government; and,

© Does not resemble the substance of a pending competitive acquisition. (See 10 U.S.C. 2304(d)(1)(A) and 41 U.S.C. 253(d)(1)(A).)