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Items Peculiar to One Manufacturer - Services Related

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[Preface - Yes, I really am asking for more feedback]

Question: Must a CO prepare (and post along with RFQ) an LSJ under the authority of the MAS Program citing FAR 8.405-6 Item peculiar to one manufacturer, if the current requirement is for an authorized [partner, reseller, etc.] to provide [XYZ] services [sold as services under SINs 132-51 (or -52)] on previously purchased [items peculiar to one manufacture; e.g. software products]? Note: Services available from multiple authorized [partner, reseller, etc.) under the FSS Program. Ktr will need to hold certain credentialing.

My Opinion: Items peculiar to one manufacturer applies to supplies, not services. (See Reference below)

Reference:

ASI Government published, What's in a (Brand) Name?, November 2013. (Attached)

As the advisory article states, it "explores the justification, approval, and publicizing requirements for brand name acquisitions."

"Does brand name include services [EMPHASIS ADDED] as well as supplies?

Our interpretation of the FAR is that brand name descriptions apply only to supplies. However, supplies often come packaged with installation, maintenance, or repair services. In those cases, where the services in support of a brand name item cannot be separated from the item, the services should be included in the brand name description."

FAR 11.105: "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 . . . . . .unless....."

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You say that services are available from multiple authorized partners or resellers who hold schedule contracts...

You don't need a LSJ.

- If you are aware of a single-award BPA under a GSA schedule, see FAR 8.405-3( c )( 1 ).

- If the services you need are available under a multiple-award BPA under BSA schedules, follow the procedures at FAR 8.405-3( c )( 2 )( i ) for orders under the micro-purchase threshold, ( ii ) for orders under the simplified acquisition threshold, or ( iii ) for orders exceeding the simplified acquisition threshold.

- If neither of the above applies, follow the procedures at FAR 8.405-1( b ) for orders under the micro-purchase threshold, ( c ) for orders under the simplified acquisition threshold, or ( d ) for orders exceeding the simplified acquisition threshold. Under ( c ), you only need to survey three GSA schedule contractors before you pick the best one. Under ( d ), you only need to send the RFQ to whatever number of schedule contractors that will result in you getting three quotations. Or, see 8.405-2 if a statement of work is required (the end result is the same).

in all of the above circumstances, you are covered by FAR 8.405-1, -2, or -3 -- so no LSJ is needed. See FAR 8.405-6( a )( 1 )( i ). You never reach to 8.405-6( b )( 2 ).

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In scenario above, services would be procured following FAR 8.405-2[c][3].

Would you say services [in general; not bundled with an item], whether available on one or more schedule contracts, would ever be justified in accordance with FAR 8.405-6?

Bottom line: I cannot see how an ordering activity could justify its action when restricting consideration for services as "Items peculiar to one manufacturer." Conversely, I can see how services could be justified in accordance with one of the circumstances in FAR 8.405-6[a] (i.e.urgent and compelling need, only one source capable, or logical follow-on.).

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More and more these days, it seems that services are being commoditized; that is, branded and then sold essentially as commodities, even with a part number. For example, maintenance agreements and warranties are commonly sold as commodities, even when sold separately from the commodities they support.

If I understand, you are saying that if you were buying services, such as repair services, and you wanted to limit competition to sources (or even one source) who have OEM (original equipment manufacturer) certifications or credentials, and if the services were available under schedule contracts, you would want to use FAR 8.405-6( a )( 1 )( i )( B ) as your authority for limiting competition rather than 8.405-6( b ).

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My Opinion: Items peculiar to one manufacturer applies to supplies, not services. (See Reference below)

FAR 8.406-5( b ), by its plain language, appears to apply only to supplies (products) and not services. I say appears. It's hard to say what the reg writers actually intended. (I have not looked at the GSA MAS website.) I don't know that I would hand my hat on the word "manufacturer" to say that "brand name" does not apply to services.

In the public sector the concept of brand name services is well-established: "Angie's List", "Google", "Netflix", etc. The basis for a brand name justification is not the name, but the product or service that the name represents, which, presumably, are unique to that product or service and essential to an agency's needs.

I can tell you that GAO decisions about FSS/MAS procurements mention brand name services. See. e.g., Desktop Alert, Inc., GAO B-408196, 2013 CPD ¶ 179:

We find the agency's limited source justification fails to comply with requirements of FAR § 8.405-6, and is therefore unreasonable. DCMA did not adequately define its requirements or specify any special features of the AtHoc supplies and services that make this brand name essential to the agency's needs.

See also Kingdomware Technologies, GAO B-407389, 2012 CPD ¶ 348:

Specifically, the VA states that on that date it canceled the sole source award to LiveProcess and issued a revised solicitation under FSS procedures for procurement of the services on a brand name or equal basis.

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More and more these days, it seems that services are being commoditized; that is, branded and then sold essentially as commodities, even with a part number. For example, maintenance agreements and warranties are commonly sold as commodities, even when sold separately from the commodities they support.

If I understand, you are saying that if you were buying services, such as repair services, and you wanted to limit competition to sources (or even one source) who have OEM (original equipment manufacturer) certifications or credentials, and if the services were available under schedule contracts, you would want to use FAR 8.405-6( a )( 1 )( i )( B ) as your authority for limiting competition rather than 8.405-6( b ).

In a nutshell, what I'm saying is, concerning services, if yes, I was limiting consideration to fewer than what 8.405-1 (-2, or -3) calls for, then I feel it's more appropriate to cite FAR 8.504-6[a][1] - A, B, or C. Citing para (B ) I see as a sole source, and not where two or more resellers of a specific manufacturers exist for 'pricing' purposes only (as the manufacturer will still be providing the service). This gets into the whole 'passthrough' issue we all know about. Either way, moving on. Appreciate your input.

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