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FAC 2005-55; FAR Case 2005-037; Item III

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Quick Reference to FAC 2005-55, Item III - Brand Name Specifications

Can someone clarify the following new FAR change to Subpart 8.405-6(2)(iii) as it relates to a CO establishing a single-award BPA, if the BPA was competed, but the brand-name item was determined post-award at the order level:

* * *

(2) * * *

(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 brandname

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.

For example, if a CO competes a five year BPA per Subpart 8.405-3(1)(ii), with an estimated value of $20 million, receives at least three quotes from contractors who can fulfill the requirement, fairly considers all quotes (let's say three were received), but issues a single-award BPA, seems the justification for brand-name item would come at the BPA order level. What about posting the RFQ and justification or documentation limiting consideration to an item peculiar to one manufacturer to eBuy. I wouldn't have an RFQ per say in a single-award scenario. A CO would send the awardee the order. Which would make me think you should justifiy the brand-name item(s) at the BPA setup level. Confucious says, shed some light on this otherwise clear as mud final decision.

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Perhaps I am missing something in your question. From the way I read it, it appears that a competition was done, and then the quote the contracting officer elected to select is offering product A. In this case, the decision for a specific brand name was not made by the requiring activity prior to release of the RFQ. It is merely the product of the winning quote. If this is the case, I do not see where a brand name justification comes into play.

Now the decision for a Single Award BPA (especially if the RFQ stated it would be Multiple) may be another issue, but that does not appear to be your question. Or is it?

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Perhaps I am missing something in your question. From the way I read it, it appears that a competition was done, and then the quote the contracting officer elected to select is offering product A. In this case, the decision for a specific brand name was not made by the requiring activity prior to release of the RFQ. It is merely the product of the winning quote. If this is the case, I do not see where a brand name justification comes into play.

Now the decision for a Single Award BPA (especially if the RFQ stated it would be Multiple) may be another issue, but that does not appear to be your question. Or is it?

No, you got it right. Let me elaborate a little more:

Scenario: An agency intends to establish a single award BPA against GSA schedule for a supply (laptops). When soliciting for the BPA set-up, the agency does not specify a brand name. Rather, they list the salient characteristics of the laptop we need. Three vendors submit quotes. All offer a different brand name (Dell, HP, and Acer). We review the quotes and make award to, let's say, Dell for laptop model XYZ.

Questions:

1. Do we need a brand name justification every time we issue a call exceeding $25K to Dell under the BPA? If so, where do we post it?

2. Instead of a justification for every order, can we create a brand name justification after we award the BPA (since we now know that all or most of our laptop orders will be for Dell)? If we can do this, where would we post the justification (to eBuy)? And would we need to post an RFQ with it (i.e., the RFQ we used to establish the BPA)?

Reason for questions:

1. Language in 8.405-6 [2][iii] states what I listed above. However, maybe I'm getting hung-up on applying that logic to BPA calls when the BPA itself was "competitive." Then again, as you say, since it was competitive, "it is merely the product of the winning quote."

2. Additionally, aand I know I didn't mention this in my initial post, however, the language at 16.505(a)(4)(II) states "A justification is required unless a justification covering the requirements in the order was previously approved for the contract in accordance with 6.302-1[c] or unless the base contract is a single-award contract awarded under full and open competition." Now, I know FAR Part 16 is not applicable to GSA schedule buys. HOWEVR, the logic in 16.505 seems to be: if you competed the single award contract, and didn't limit the initial contract award to a brand name, there is no need to justify your "brand name" orders against what has now become a "de facto" brand name contract (please see laptop example above). Couldn't we apply the same logic to single award BPAs made against GSA schedule contracts? This is maybe what I was getting at above; but wanted to hear it first.

3. Finally, in the FR Notice text, they discuss several comments they received under the heading "What to Post." In their response, they state: "The justification for use of a brand-name specification and posting of the justification should take place when the requirement for the brand-name item is determined. This will result in different timing for multiple-award contracts from single-award contracts, e.g., requirements contracts. By definition, a requirements contract is with a single source. Therefore the requirement for the source's brand-name item is determined prior to award of the basic contract, and the justification for purchasing a brand-name item should be completed prior to award of the requirements contract."

The language says the justification "should be completed prior to award of the requirements contract," not necessarily prior to issuing the solicitation. Is the purpose of this to say we could write (and post?) the justification after we made the award decision? If we did this, even for an open market award, where would we post the justification? And what would we post for the RFQ?

Sorry for the long-winded follow-up. As a junior wonk, I often over analyze.

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Look at it this way - you never had a brand name requirement. You competed a single award BPA. Now you are placing orders against that BPA which a Dell supplier won. Your requirement when you place an order is what is contained in the winning BPA.

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Based on the scenario provided, I believe once you document the justification for the single-award BPA, you have no obligation to post justifications for calls against that BPA. The BPA was fully competed, so I see no reason you would need to prepare any further justifications.

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If your awardee was a reseller that offered Dell, HP and Acer, and a particular order was for Dells only, would you need to do the brand name justification?

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If your awardee was a reseller that offered Dell, HP and Acer, and a particular order was for Dells only, would you need to do the brand name justification?

Yes. If you specify Dell, what difference does it make that the reseller sells other brands?

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Vern - Would you agree with the other commenters regarding the intial scenario described (and elaborated upon) by GOVCO? In other words, if I did not initally specify a brand name when I competed the BPA set-up among vendors, but I award a single BPA that obviously does specify a brand name, there is no need to justify the brand name requirement when I issue an order?

I do believe the answer is logical (I "competed" the inital BPA based on specifications, not a brand name, therefore I did not have a "brand-name" requirement to begin with), but I too am hung up on the language in FAR 8.405-6(2)(iii).

Thanks for considering the question.

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I had not read the earlier posts when I responded to yours.

Ordinarily, when an agency conducts a procurement for supplies and selects an offeror who proposes a particular brand name product, the agency does not need a brand name justification, because it did not specify a brand name. It did not restrict competition, so it does not have to justify a restriction on competition. Of course, the rules get a little murky when using one of those @&^^%*!^ GSA BPAs.

I think that if you (a) conduct a competition to establish a GSA BPA for the purchase of a laptop, (B) did not specify a particular brand name laptop, ( c) select an offeror that proposed a particular brand name, and (d) specify the brand name in the BPA, saying that all future orders will be for that brand name, then (e) you don't need a brand name justification with each order.

However, if you (1) did not specify the brand name in the resultant BPA, (2) leaving the choice of products to be made when placing each future order (whether or not that was your intention), and then (3) place an order for the brand name, I think (4) you must justify the specification of the brand name in the order.

In other words, I think that if you conduct a competition for a BPA without specifying a brand name and make an award that binds you to buy the brand name that you selected, then you don't need a brand name justification for each order of the brand name. However, if you do not bind yourself and thus have the option to buy something else, then I think a decision to order the brand name must be justified.

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Thanks everyone who responded to my topic.

So, to be crystal about the answer to my topic as it becomes effective tomorrow, I understand the responses, and I tend to agree. However, the language in Subpart 8.405-6[2][iii] still seems to require a justification any time we have a requirement, at the order level, for a brand-name (no exceptions) that was not completed for the BPA. Is there another possible interpretation of this language?

[Puts on flame suit for dragging this issue out]

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I agree that the language is somewhat murky. But, if you look at the introductory language in the FAC (77 Fed. Reg. 191) where they describe their intention regarding posting requirements applicable to BPAs, the FAR Councils said that the justification "must be completed and approved at the time the requirement for a brand-name item is determined." Thus, it is only when you make a "determination" that only a brand name item will satisfy your needs that you have to post the information. If the offeror only proposed Dell and you accepted his proposal, you never made such a determination.

Thus, I think Vern is right, except that I don't think that in the awarded BPA you have to "specify the brand name in the BPA, saying that all future orders will be for that brand name." If the offeror only proposed Dell, I don't see how it could provide a non-Dell product, unless there is something in the BPA that makes it clear that the offeror wasn't bound by what it proposed.

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I say again: If you can order something other than the brand name under the BPA, then you are vulnerable to challenge if you issue an order for the brand name without a justification for the order. The problem is not what the seller can sell, it's what the buyer can buy. How hard can it be to avoid what could turn out to be a serious problem? What would it take -- a whole sentence?

In the immortal words of John Wayne, "A man [or woman] oughta do what he [or she] thinks is best.

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