SAP Brand-Name Documentation Below SAT

[Jamaal Valentine]

Does FAR expressly require any brand-name documentation when soliciting brand-name requirements—below the simplified acquisition threshold—from more than one source?

Let’s discuss and make arguments in the comments.

[Neil Roberts]

Jamaal, do you mean from the Government or a contractor or both? Sorry if that sounds odd, but I never worked for the government and do not know what documentation is required for the government to justify requiring a particular brand name.

[Jamaal Valentine]

4 minutes ago, Neil Roberts said:

Jamaal, do you mean from the Government or a contractor or both? Sorry if that sounds odd, but I never worked for the government and do not know what documentation is required for the government to justify requiring a particular brand name.

From the Government. The FAR System (including the FAR) is established for executive agencies (FAR 1.101).

My poll probably sounds odd to many so let’s call it even.

[ji20874]

//deleted//

I voted.  Let me know when you want me to post my rationale.

[Jamaal Valentine]

@ji20874

I think now is as good a time as any to discuss it.

[Don Mansfield]

I base my answer on FAR 11.105(a)(2)(ii):

Quote

 

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 cannot 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(b)) or justified (see 13.501) when the acquisition is awarded using simplified acquisition procedures.

 

Note that this is a rule that pertains to how an agency describes its need. The number of sources solicited is irrelevant.

[ji20874]

Explicitly?  No.  Nothing in FAR 13.106-1(b)(1)(i) requires any written documentation -- it says "...if the contracting officer determines..." but does not require a written documentation. 

Implicitly?  Maybe Yes.  See FAR 13.106(b)(1)(ii).  For written solicitations, see also FAR 13.106(b)(3) which points to FAR 5.102(a)(6).

But surely, the documentation need not be extensive -- maybe just a brief statement of one or two sentences.

When the FAR requires a determination in writing, it says so.  For example, see FAR 9.108-4 ("...determines in writing..."), 11.002(h) ("...a written determination..."), 17.202(a) ("...a written determination that..."), 4.605(c)(2)(iii) ("...a written determination..."), 15.304(c)(5) ("...a written determination..."), and 15.404-1(h)(2)(ii) ("...a written determination...").  The DFARS is the same.  For example, see DFARS 212.102(a)(i)(A) ("Determine in writing..." and (B) ("Include the written determination in the contract file..."). 

[Don Mansfield]

FYI, the genesis of the "brand name" rules in the FAR was this OFPP memorandum.

Quote

We are concerned that the use of brand name specifications in agency solicitations may have increased significantly in recent years, particularly for information technology procurements. For example, some federal agencies have issued solicitations with specifications for brand name microprocessors that are associated with a single manufacturer.

Specifications would require computers with Intel chips, for example. There was no shortage of sources that could provide computers with Intel chips. Nonetheless, OFPP encouraged, and the FAR Council eventually required, publication of justifications for brand name specifications.

Also, FAR 13.106-3(b)(3) explicitly requires such documentation: 

Quote

 

(b) File documentation and retention. Keep documentation to a minimum. Purchasing offices shall retain data supporting purchases (paper or electronic) to the minimum extent and duration necessary for management review purposes (see subpart  4.8). The following illustrate the extent to which quotation or offer information should be recorded:

           (3) Special situations. Include additional statements-

                (i) Explaining the absence of competition (see 13.106-1 for brand name purchases) if only one source is solicited and the acquisition does not exceed the simplified acquisition threshold (does not apply to an acquisition of utility services available from only one source)

 

 

[C Culham]

Let me just add another citation - FAR 13.105(c).

 

I responded to the poll.

[Neil Roberts]

Agree with FAR 13.105(c)

[Jamaal Valentine]

I don’t like FAR 13.105(c) as a supporting reference since it redirects you to FAR 13.106-1(b), Soliciting Single Sources.

“(c) See 5.102(a)(6) for the requirement to post a brand name justification or documentation required by 13.106-1(b) or 13.501.”

FAR 13.104 and FAR 11.105(a)(2)(ii) are ‘far’ more compelling to me.

[GABE]

On 12/5/2020 at 1:05 PM, Neil Roberts said:

Agree with FAR 13.105(c)

Agreed

[C Culham]

11 hours ago, GABE said:

Agreed

Hmm...this newest post made me think.   What if the need is below the SAT but purchased via FAR subpart 8.4?

[formerfed]

On 9/10/2022 at 9:35 AM, C Culham said:

Hmm...this newest post made me think.   What if the need is below the SAT but purchased via FAR subpart 8.4?

A limited source documentation is required per FAR 8.405-6(b)

[GABE]

Limiting sources, whether procuring within FAR 8 or FAR 13 is required.