Brand Name Justification 13.106-1(b) vs 6.302-1(c)

Started by HoosierDaddy2002 · Oct 16, 2013 · 3 replies

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HoosierDaddy2002
Oct 16, 2013 · 12y ago
Original post
Scenario:

Construction contract with magnitude between $25m and $100m.

Specifications include requirements for a brand name component with a value of $126K.

I followed the justification and approval procedures at 6.302-1© and 6.304 to document the use of the brand name specifications. My KO said it was incorrect and I should be using the procedures at 13.106-1( since the brand name item component value is under the SAT.

However, when I read 13.000 - "This part prescribes policies and procedures for the acquisition of supplies and services, including construction, research and development, and commerical items, the aggregate amount of which does not exceed the simplifed acquisition threshold" - I do not feel using 13.106-1© was proper since the aggregate amount of the acquisition is well above the SAT.

Thoughts?
j
ji20874
Oct 16, 2013 · 12y ago
Did you really follow FAR 6.302-1( c )? See ( c )( 1 )( ii )( A ). The brand-name justification is not based on the aggregate value of the acquisition, just on the value of the brand-name portion of the acquisition. This philosophy also manifests itself in FAR 8.405-6( b )( 4 ) for schedule orders and 16.505( a )( 4 )( iii )( B ) for task and delivery orders and 13.106-1( b )( 1 )( ii ) for simplified acquisitions.
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HoosierDaddy2002
Oct 16, 2013 · 12y ago
Yes, I believe I did. 6.302-1© (1)(ii)(A) states if only a portion of the acquisition is for a brand name product, the J&A is to cover only the portion of the acquisition which is brand name. My approval authority would be the KO since it is below $650K as per 6.304(a)(1) .

Am I missing something? Should I be using 13.106-1( b ) instead?

Sure appreciate the reply, ji20874.
j
ji20874
Oct 16, 2013 · 12y ago
FOR NON-CONSTRUCTION CONTRACTS:

I would use 13.106-1( b ), because the brand-name portion is under the SAT. If the brand-name portion was over the SAT, then I would use 6.302-1. I would choose this because of the underlying premise that the brand-name approval is always based only on the brand-name portion of the overall acquisition as shown in FAR Part 6, 8, and 13, and 16 as mentioned above. Even 13.501( a )( 2 ) captures this premise. But for your case, 13.106-1( b )( 1 )( ii )'s last sentence reads, "The documentation should state it is covering only the portion of the acquisition which is brand-name." I don't think I would send a -1 J&A to a HCA or SPE if the acquisition itself is F&OC (or F&OC after exclusion of sources) but the specification includes $127K in brand-name requirements.

FOR CONSTRUCTION CONTRACTS:
But, if your specifications say something like "brand name or approved equal" (the customary wording in a construction specification), then you don't need any brand-name justification at all. In fact, even if your specifications don't say "or equal," the clause at FAR 52.236-5 Material and Workmanship might cover you -- maybe you don't need any justification at all, period. In para. (a), "References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition." How about that? This forces you to ask the question -- are you really establishing a brand-name requirement as an absolute, or are you establishing a brand-name as a standard of quality where you might consider other solutions as part of the post-award submittals process? I don't know if I have ever seen a construction specification that fully conformed to FAR 11.104 or 11.105, but I have seen robust use of the 52.236-5 clause.