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I'm a Contracting Officer tasked with soliciting for a construction project that involves a brand name specification under the CICA waiver authority under FAR 6.302-1 Only One Responsible Source.  The item is a major component of the construction project, but the value of the item is expected NOT to exceed $700k (the total construction project will be much larger). My read of the regs has always been that a 6.302-1 CICA waiver justification must include evidence that a notice of intent was posted to the GPE and interested sources responding to that notice were considered in accordance with FAR 6.302-1(d)(2), FAR 5.201, and FAR 5.207.

HOWEVER, we are planning to solicit the project as a task order RFP under a multiple award IDC, and so the question was raised, does CICA and FAR Part 6 even apply?  FAR 5.202(a)(6) provides an exception to the FAR 5.201 synopsis requirement for IDC orders and refers to FAR 16.505(a)(4). FAR 16.505(a)(4) states that items peculiar to one manufacturer must be justified in accordance with FAR 16.505( b)(2) (aka Fair Opportunity Exception). 

BOTTOM LINE: I've nearly concluded that FAR Subpart 16.5 may be the applicable regulation and not FAR Subpart 6.3, and so a FAR 16.505(b )(2) Fair Opportunity Exception would be required instead of a FAR 6.303 Justification.  But I have a nagging suspicion that that's not quite right. My hesitations with a FAR 16.505(b )(2) Fair Opportunity Exception are that #1 I can't quite see how this is would restrict competition among the IDC contractors, so I can't really see how the concept of "fair opportunity" is at play.  And, #2 I'm surprised to find that there is no requirement at FAR 16.505( b)(2) to post a notice of intent to the GPE--since in our situation for a brand name component, it seems to me that would be compelling information to include in the justification if we get no acceptable response from industry.  And I'm also surprised because FAR 16.505 ( b)(2)(d) DOES require that the final approved Fair Opportunity Exception be posted to the GPE within 14 days (for orders >SAT). Whereas under FAR Subpart 6.3, for brand name justifications, all that is required is to attach the final approved J&A with the solicitation.  I suppose that's because Fair Opportunity Exceptions under 16.505( b)(2) would never be publicized if only distributed with the solicitation because the solicitation isn't made public--it's only sent the multiple IDC contractors.

Anyone have any thoughts on this?  Appreciate the feedback.

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@jdm843 Recommend you read the Applicability section of FAR Part 6:

Quote

6.001 -- Applicability.

This part applies to all acquisitions except --

(a) Contracts awarded using the simplified acquisition procedures of Part 13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial items under Subpart 13.5);

(b) Contracts awarded using contracting procedures (other than those addressed in this part) that are expressly authorized by statute;

(c) Contract modifications, including the exercise of priced options that were evaluated as part of the initial competition (see 17.207(f)), that are within the scope and under the terms of an existing contract;

(d) Orders placed under requirements contracts or definite-quantity contracts;

(e) Orders placed under indefinite-quantity contracts that were entered into pursuant to this part when --

(1) The contract was awarded under Subpart 6.1 or 6.2 and all responsible sources were realistically permitted to compete for the requirements contained in the order; or

(2) The contract was awarded under Subpart 6.3 and the required justification and approval adequately covers the requirements contained in the order; or

(f) Orders placed against task order and delivery order contracts entered into pursuant to Subpart 16.5.

 

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5 minutes ago, Matthew Fleharty said:

@jdm843 Recommend you read the Applicability section of FAR Part 6:

 

@Matthew Fleharty I read it. Thanks.  The book answer is definitely that FAR Part 6 doesn't apply. Doesn't really answer my nagging suspicion, though.

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3 hours ago, jdm843 said:

BOTTOM LINE: I've nearly concluded that FAR Subpart 16.5 may be the applicable regulation and not FAR Subpart 6.3, and so a FAR 16.505(b )(2) Fair Opportunity Exception would be required instead of a FAR 6.303 Justification

#1 Yes.  FAR 16, not 6.  This is a Brand Name Justification, which is different from (although closely related to) a Fair Opportunity Exception.   BNJ is covered  FAR 16.505 (a), while Fair Opportunity is FAR 16.505 (b). Brand Name limits competition with regards to a product, which isn't the same as limiting competition for potential sources.  

On NASA SEWP, for example, limiting competition to the brand name Oracle still provides Fair Opportunity, since many SEWP contract-holders sell Oracle software.   So if you want Oracle and only Oracle you need a BNJ but not a JEFO.  

Regarding comment #2, my take is that IDCs have *a lot* of diversity, so mandating a notice of intent may not make any sense for a particular IDC, so its not required.  However, posting such notice, while not required,  is often a good idea.  Like when the JEFO approval authority tells you that your justification will not be approved without evidence of industry feedback.

 

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3 hours ago, General.Zhukov said:

BNJ is covered  FAR 16.505 (a), while Fair Opportunity is FAR 16.505 (b)

@General.Zhukov that's it! I was mis-reading 16.505(a) that a fair opportunity exception was required. but now I see the nuance. It's NOT a fair opportunity exception. Fair opportunity is impertinent in my situation because as far as I know all the IDC contractors have the same access to the brand name manufacturer we're going to specify. Makes perfect sense now.

 

3 hours ago, General.Zhukov said:

Regarding comment #2, my take is that IDCs have *a lot* of diversity, so mandating a notice of intent may not make any sense for a particular IDC, so its not required.  However, posting such notice, while not required,  is often a good idea.  Like when the JEFO approval authority tells you that your justification will not be approved without evidence of industry feedback.

@General.Zhukov totally agree. Thanks a ton for your input. You solved the puzzle for me. I know the FAR has gaping holes here and there, but I knew there had to be something I was missing here. Thanks again!

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Brand name for an item in a larger construction acquisition?

You don’t need one.

You might need a BNJ (not a JEFO, definitely not a J&A) under FAR 16.505(a) as mentioned above for a non-construction order under an IDIQ contract, as the general explained very well above.  But for a construction contract, the clause at 52.236-5, Material and Workmanship, controls.  Because of that clause, you don’t need a BNJ, because and brand name specification is treated as a standard of quality for the component of the larger construction project.

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1 hour ago, ji20874 said:

But for a construction contract, the clause at 52.236-5, Material and Workmanship, controls.  Because of that clause, you don’t need a BNJ, because and brand name specification is treated as a standard of quality for the component of the larger construction project.

@ji20874 thanks for the advice. 52.236-5 is a great clause. But I'm afraid I don't see how that will work for my purpose. Paragraph (a) of that clause states:

"The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this contract." (Formatting added for emphasis.)

My contract will "otherwise specifically provide" that a single product from a specific manufacturer is all that will be accepted. The Government will allow no alternatives in this instance.

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Okay — if you have already made that decision pre-award, then the general’s advice is spot on.  Not a J&A under FAR Part 6, not a JEFO under FAR 16.505(b)(2), but a BNJ under FAR 16.505(a)(4).  The action will be fair opportunity under FAR 16.505(b)(1).

 

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