Single Source Justification

The specification includes a requirement for the contractor to design and install an expansion to existing brand name security system. The specification identifies the existing brand name system and provided detailed performance standards for the expansion of the brand name system.

Is this really true?

Is this a firm-fixed-price contract?

If the answer is YES to both questions, then the contractor has a problem that it needs to solve. No contract modification is warranted under the facts as explained here, as there is no error in the specifications and no contract clause has been triggered.

Does the contract include the contract clause at FAR 52.236-5, Material and Workmanship? If so, see para. ( a ). The contractor is responsible for solving its problem.

Q: Does the FAR require a brand name justification when a project requires an expansion of an existing brand name security system?

A: Yes, if you specify the Contractor can use brand name products for the expansion. "Where a single source is identified to provide a portion of a purchase because that portion of the purchase specifies a particular brand-name item, the [sole source justification] only applies to the portion of the purchase requiring the brand name" (FAR 13.106-1(B )(ii)).

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Q: Since none of the contractors protested the use of the brand name in the specifications, does this in any manner waive the liability assuming the regulatory sole source justification was required prior to issuing the solicitation?

A: No, the agency must comply with federal law and regulations. Vendors participating during the solicitation may have lost the right to protest depending on whether the solicitation closed. Vendors that never saw the solicitation could protest within 10 calendar days of when they should have discovered the violation of law. "Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier" (FAR 33.103(e)).

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Q: Does the fact that the brand name justification entitled the contractor to an equitable adjustment to the contract since it claimed that it only bid the expansion at a cost of $20,000 and has now found the cost from the brand name contractor to be in excess of $100,000?

A: As Ji mentioned, you have not provided all of the information necessary to make this determination. In addition to the information that Ji mentioned, I would want to know if the Contractor's proposal was included in the contract, and what it said concerning the expansion.

The specification includes a requirement for the contractor to design and install an expansion to existing brand name security system. The specification identifies the existing brand name system and provided detailed performance standards for the expansion of the brand name system.

Is this really true? Yes

Is this a firm-fixed-price contract? Yes

If the answer is YES to both questions, then the contractor has a problem that it needs to solve. No contract modification is warranted under the facts as explained here, as there is no error in the specifications and no contract clause has been triggered. Agree

Does the contract include the contract clause at FAR 52.236-5, Material and Workmanship? If so, see para. ( a ). The contractor is responsible for solving its problem. Yes, the contract contains FAR 52.236-5 and I agree. The specification is an edited UFGS specification for military security systems.

TC2012 writes, "The contractor is basing its claim on the fact the Government failed to issue a single source justification..." This seems to be an issue of contract administration, so the Part 6 discussion seems largely irrelevant. Reading between the lines, is the contractor claiming the Government had superior knowledge that use of OEM parts was inevitable in order to successfully perform, knew prior to award that the contractor intended to perform without using OEM parts, and didn't bring that to the contractor's attention?

Assuming there is nothing to the superior knowledge allegation, I recommend the Government in its conversations with the contractor focus on the language of the requirements documents, and how those requirements remain unchanged. Don't get caught up in conversations about "derived" requirements, and certainly don't give the contractor new direction. How the contractor meets the express written requirements of the contract is up to the contractor.

The specification includes a requirement for the contractor to design and install an expansion to existing brand name security system. The specification identifies the existing brand name system and provided detailed performance standards for the expansion of the brand name system.

Is this really true?

Is this a firm-fixed-price contract?

If the answer is YES to both questions, then the contractor has a problem that it needs to solve. No contract modification is warranted under the facts as explained here, as there is no error in the specifications and no contract clause has been triggered.

Does the contract include the contract clause at FAR 52.236-5, Material and Workmanship? If so, see para. ( a ). The contractor is responsible for solving its problem.

Q: Does the FAR require a brand name justification when a project requires an expansion of an existing brand name security system?

A: Yes, if you specify the Contractor can use brand name products for the expansion. "Where a single source is identified to provide a portion of a purchase because that portion of the purchase specifies a particular brand-name item, the [sole source justification] only applies to the portion of the purchase requiring the brand name" (FAR 13.106-1(B )(ii)).

Agree with your statement concerning complying with regualtions, but the Contracting Officer did not see the sole source in the specification and failed to identify the system as a single source and it was identified only as the existing system. Also KO did not know at the time that the manufacturer was the only contractor capable of expanding the system.

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Q: Since none of the contractors protested the use of the brand name in the specifications, does this in any manner waive the liability assuming the regulatory sole source justification was required prior to issuing the solicitation?

A: No, the agency must comply with federal law and regulations. Vendors participating during the solicitation may have lost the right to protest depending on whether the solicitation closed. Vendors that never saw the solicitation could protest within 10 calendar days of when they should have discovered the violation of law. "Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier" (FAR 33.103(e)).

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Q: Does the fact that the brand name justification entitled the contractor to an equitable adjustment to the contract since it claimed that it only bid the expansion at a cost of $20,000 and has now found the cost from the brand name contractor to be in excess of $100,000?

A: As Ji mentioned, you have not provided all of the information necessary to make this determination. In addition to the information that Ji mentioned, I would want to know if the Contractor's proposal was included in the contract, and what it said concerning the expansion.

This was not a proposal, rather a fixed price bid based on the specifications prepared by an A/E. The A/E clearly indicated in the specifications the manufacturer of the existing security system. The specification included the following paragraph:

1.3 SYSTEM DESCRIPTION

Provide expansion of existing Name Brand (edited to remove name) Electronic Security Systems (ESS), including associated equipment and appurtenances. The design of the ESS

shall include devices and equipment used to detect intrusion, control access to restricted areas, detect and deny unauthorized entries within specific areas, provide surveillance and annunciate alarms. The ESS shall be designed to provide operational flexibility and reliable performance. The ESS shall be modular, allowing for future incremental expansion or modification of inputs, outputs, and remote control stations. Integrated system capabilities shall include but not be limited to Intrusion Detection, Automated Access Control, and Intercommunications. Each system shall be complete and ready for operation and provide for a fully integrated central station solution. Include materials not normally

furnished by the manufacturer with the ESS equipment as specified in Section 26 20 00 INTERIOR DISTRIBUTION SYSTEM.

The specification went on to provide required system performance requirements.

1.5.2.1 Installer's Qualifications

Prior to installation, submit data of the installer's experience and certified qualifications. Show that the installer who will perform the work has a minimum of 2 years experience successfully installing ESS of the same type and design as specified herein. Include the names, locations, and points of contact of at least two installations of the same

type and design as specified herein where the installer has installed such systems. Indicate the type of each system and certify that each system has performed satisfactorily in the manner intended for a period of not less than 12 months.

It appears the specification is written allow for competition as some would suggest how do you know that another security system installer was incapable of installing the expansion of the brand name security system. The government was not advised until the subcontractor discovered that he allegedly under bid and in fact could not get the necessary component to allow for the expansion. So the contractor wants the government to pay the extra $100,000 to have the name brand company design and install the expansion.

Hope this clears up some of the issues.

This seems to be an issue of contract administration, so the Part 6 discussion seems irrelevant. The facts above don't provide any insight as to what theory the contractor has identified that would entitle it to an adjustment. I recommend the Government in its conversations with the contractor focus on the language of the requirements documents, and how those requirements remain unchanged. Don't get caught up in conversations about "derived" requirements, and certainly don't give the contractor new direction. How the contractor meets the express written requirements of the contract is up to the contractor.

This seems to be an issue of contract administration, so the Part 6 discussion seems irrelevant. The facts above don't provide any insight as to what theory the contractor has identified that would entitle it to an adjustment. I recommend the Government in its conversations with the contractor focus on the language of the requirements documents, and how those requirements remain unchanged. Don't get caught up in conversations about "derived" requirements, and certainly don't give the contractor new direction. How the contractor meets the express written requirements of the contract is up to the contractor.

Agree with you comment and the government has focused on the specification requirements and told the contractor to comply with the specifications. The contractor claims he does not have to comply since the government failed to provide the single source justification. Will most like file a claim.

Disclaimer - I am not a lawyer. You NEED to consult your agency counsel.

There are lots of after award claims concerning brand name products. The claims decisions usually depend upon the exact wording of the contract.

You stated that there is no "protest" concerning the brand name specification. At any rate, it would appear to be too late now to protest a brand name requirement.

It also isn't clear whether or not it has been establisherd that no other security system product will meet the performance requirements and function properly with the exisiting system.

You indicated that the contractor is requesting a contract modification, which is in essence a request for equitable adjustment of $100k (or maybe a claim). That isn't a "protest". There is now a contract.

The last sentence of the Material and Worklmanship 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."

You didnt clearly state whether or not the contract specifically stated that no substitutions will be allowed. From what you stated, it appears that the government "identified the existing brand name system" but then identified the detailed "performance standards" for the expansion. EDIT 8/20/2015: TC2012 initially included his/her responses within the quotes from the respondents, so I overlooked TC's clarifications.

Either way, the contractor and/or its sub should have familiarized itself with the solicitation/contract requirements to determine what would be necessary to design and install the expansion to be compatible with the existing, very clearly identified security system. To determine later that it inadequately bid the subcontract or contract work doesnt excuse it from familiarizing itself with the scope of work prior to bidding or proposing..

Disclaimer - I am not a lawyer. You NEED to consult your agency counsel.

There are lots of after award claims concerning brand name products. The claims decisions usually depend upon the exact wording of the contract.

You stated that there is no "protest" concerning the brand name specification. At any rate, it would appear to be too late now to protest a brand name requirement. It also isnt clear whther or not it has been establisherd that no other security system product will meet the performance requirements and function properly with the exisiting system.

You indicated that the contractor is requesting a contract modification, which is in essence a request for equitable adjustment of $100k (or maybe a claim).

The last sentence of the Material and Worklmanship 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."

You didnt clearly state whether or not the contract specifically stated that no substitutions will be allowed. It appears that the government "identified the existing brand name system" but then identified the detailed "performance standards" for the expansion. Either way, the contractor and/or its sub should have familiarized itself with the solicitation/contract requirements to determine what would be necessary to design and install the expansion to be compatible with the existing, very clearly identified security system. To determine later that it inadequately bid the subcontract or contract work doesnt excuse it from familiarizing itself with the scope of work.

I have seen many examples where the contractor

I agree with everything you said. To clarify the specification did not state that only the brand name would be accepted. However, individuals experienced with military type security systems may have been able to predict prior to bidding that only the brand name installer or installers pre-qualified by the OEM would have the required expertise and experience necessary to expand the existing security system.

It is my opinion that this contractor is using the single source justification requirement as a basis to support his REA because he has discovered that the subcontractor bid is no good and he now has to hire a firm that knows how to design and install security system. Then he blames the government for not telling him that the OEM is the only one capable of expanding the existing system,

Q: Does the FAR require a brand name justification when a project requires an expansion of an existing brand name security system?

A: Yes, if you specify the Contractor can use brand name products for the expansion. "Where a single source is identified to provide a portion of a purchase because that portion of the purchase specifies a particular brand-name item, the [sole source justification] only applies to the portion of the purchase requiring the brand name" (FAR 13.106-1(B )(ii)).

I disagree. I do not believe that FAR requires justification for specification of a brand name product in a construction specification unless it would of necessity create a sole source procurement for the construction contract itself or would otherwise restrict full and open competition or maximum practicable competition for the construction contract. If anyone has evidence (not mere assertion) to the contrary, please let me know.

In any case, even if it does, failure to prepare such a justification would not, in and of itself, support a claim such as the one described above. There would have to be more.

I do not believe that FAR requires justification for specification of a brand name product in a construction specification unless it would create a sole source procurement for the construction contract itself or would otherwise restrict full and open competition or maximum practicable competition for the construction contract. If anyone has evidence (not mere assertion) to the contrary, please let me know.

I completely agree, it doesn't make sense in construction unless the contract involved on the single source item or the system was a new system and required a specific manufacturer It would be necessary for all Contracting Officer to ferret out all reference to a brand name manufacturer of the existing system requiring modification, expansion or change. The Contracting Officer would then be required to then determine if contractors, other than the OEM, were able to modify, change or expand an existing facility system.

I completely agree, it doesn't make sense in construction unless the contract involved on the single source item or the system was a new system and required a specific manufacturer It would be necessary for all Contracting Officer to ferret out all reference to a brand name manufacturer of the existing system requiring modification, expansion or change. The Contracting Officer would then be required to then determine if contractors, other than the OEM, were able to modify, change or expand an existing facility system.

I completely agree, it doesn't make sense in construction unless the contract involved on the single source item or the system was a new system and required a specific manufacturer It would be necessary for all Contracting Officer to ferret out all reference to a brand name manufacturer of the existing system requiring modification, expansion or change. The Contracting Officer would then be required to then determine if contractors, other than the OEM, were able to modify, change or expand an existing facility system.

FAR 36.202 -- Specifications © When “brand name or equal” descriptions are necessary, specifications must clearly identify and describe the particular physical, functional, or other characteristics of the brand-name items which are considered essential to satisfying the requirement.

In this case a brand-name item is not considered essential to satisfying the requirement, rather the specification included only the manufacturer of the existing security system. A bidder would need to know the manufacturer of an existing system in order for it to determine if it had adequate expertise to perform the required expansion or alteration to the existing system. All who submitted bids had a choice to bid and not to bid based on their own capabilities to comply with the specified performance requirements. A single source justification would logically not be required if the government elected not to restrict competition. The government in this case assumed that there may be a contractor with capabilities to perform the required expansion other than the OEM. I believe it is better to error on the side of not restricting competition by stating that the OEM is the only company capable of expanding the existing system. In this case the government allowed for full and open competition and it was not until the market revealed that only the OEM was capable of satisfying the expansion of the existing security, that it became a single source. Competition setting the restriction and not the government. Anyone disagree with this premise?

I completely agree, it doesn't make sense in construction unless the contract involved on the single source item or the system was a new system and required a specific manufacturer It would be necessary for all Contracting Officer to ferret out all reference to a brand name manufacturer of the existing system requiring modification, expansion or change. The Contracting Officer would then be required to then determine if contractors, other than the OEM, were able to modify, change or expand an existing facility system.

TC, if it is possible, would you please edit your earliers posts to separate your replies from the quotes of the posters that you are replying to? Thanks.

TC, if it is possible, would you please edit your earliers posts to separate your replies from the quotes of the posters that you are replying to? Thanks.

Fixed, thanks. It makes it hard to follow. My bad.

FAR 36.202 -- Specifications © When “brand name or equal” descriptions are necessary, specifications must clearly identify and describe the particular physical, functional, or other characteristics of the brand-name items which are considered essential to satisfying the requirement.

In this case a brand-name item is not considered essential to satisfying the requirement, rather the specification included only the manufacturer of the existing security system. A bidder would need to know the manufacturer of an existing system in order for it to determine if it had adequate expertise to perform the required expansion or alteration to the existing system. All who submitted bids had a choice to bid and not to bid based on their own capabilities to comply with the specified performance requirements. A single source justification would logically not be required if the government elected not to restrict competition. The government in this case assumed that there may be a contractor with capabilities to perform the required expansion other than the OEM. I believe it is better to error on the side of not restricting competition by stating that the OEM is the only company capable of expanding the existing system. In this case the government allowed for full and open competition and it was not until the market revealed that only the OEM was capable of satisfying the expansion of the existing security, that it became a single source. Competition setting the restriction and not the government. Anyone disagree with this premise?

Yes, I dont necessarily agree that the government couldnt know that nobody else could design and provide the security system expansiion. You hired an A/E firm, presumably with some expertise in specifying security system requirements, who may have been aware of the existing system's technical requirements and how they are sold. In addition, the government had to prepare an independent government estimate, so should have some knowledge or have done some market research.

However, not withstanding what the government's knowledge was, a specialty subcontractor who bids to design and install a security system that must tie into an existing system - in my opinion - has the professional responsibility to be competent, aware of the existing conditions and of the scope of work necessary to design and integrate the extended system into the existing system. You can study Nash and Cibinic's "Administration of Government Contracts" under the discussion of Risk Allocation, Impractibility of Performance and Mistake, etc. to see that the firm that purports to be competent to design and install a system has the responsibility to become familiar with the market and technical requirements to successfully perform the specified task. I don't think that this is rocket science or pushing the state of the art...See also FAR clause 52.236-3, Site Investigation and Conditions Affecting the Work.

Yes, I dont necessarily agree that the government couldnt know that nobody else could design and provide the security system expansiion. You hired an A/E firm, presumably with some expertise in specifying security system requirements, who may have been aware of the existing system's technical requirements and how they are sold. In addition, the government had to prepare an independent government estimate, so should have some knowledge or have done some market research.

However, not withstanding what the government's knowledge was, a specialty subcontractor who bids to design and install a security system that must tie into an existing system - in my opinion - has the professional responsibility to be competent, aware of the existing conditions and of the scope of work necessary to design and integrate the extended system into the existing system. You can study Nash and Cibinic's "Administration of Government Contracts" under the discussion of Risk Allocation, Impractibility of Performance and Mistake, etc. to see that the firm that purports to be competent to design and install a system has the responsibility to become familiar with the market and technical requirements to successfully perform the specified task. I don't think that this is rocket science or pushing the state of the art...See also FAR clause 52.236-3, Site Investigation and Conditions Affecting the Work.

Joel, I agree the A/E should have advised the KO. However, we must first find an A/E who knows enough or should have been advised by KO to provide notification of a single source installer. Equally, referencing FAR 52.236-3 The contractor by submitting its bid acknowledges that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including but not limited to (1) conditions bearing upon transportation, disposal, handling, and storage of materials; (2) the availability of labor, water, electric power, and roads;(3) uncertainties of weather, river stages, tides, or similar physical conditions at the site; (4) the conformation and conditions of the ground; and (5) the character of equipment and facilities needed preliminary to and during work performance. Further, the Contractor also acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the Government, as well as from the drawings and specifications made a part of this contract. Any failure of the Contractor to take the actions described and acknowledged in this paragraph will not relieve the Contractor from responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the Government.

Thanks for your input.

Okay. Bottom line is that the government did identify the brand of the security system, the performance requirements for the system and the installer requirements. That is consistent with 36.202 ( c ). The subcontractor doesn't even appear to be a qualified installer, let alone qualified to design the extension. If it was, it would have known the brand name restrictions and would have priced the job accordingly.

I think that you work for USACE. Unless we have completely lost our legal competence, which I doubt, then Office of Counsel should be able to research applicable case law. Tying into existing security and other specialized building systems is done frequently. It isn't unusual to have to meet the restrictions of a proprietary building system when adding to or altering an existing building configuration. The specialty sub should have known that and such responsibility is imputed to the prime.

TC, I forgot to mention that this was apparently an IFB, not a negotiated source selection. You mentioned the word "bid" at least twice above. The government wouldn't have any specific knowledge of the specialty sub's qualifications or lack thereof nor its price. I'll bet that there isn't a separate line item for the security system in the bidding schedule. Am i correct?

Okay. Bottom line is that the government did identify the brand of the security system, the performance requirements for the system and the installer requirements. That is consistent with 36.202 ( c ). The subcontractor doesn't even appear to be a qualified installer, let alone qualified to design the extension. If it was, it would have known the brand name restrictions and would have priced the job accordingly.

I think that you work for USACE. Unless we have completely lost our legal competence, which I doubt, then Office of Counsel should be able to research applicable case law. Tying into existing security and other specialized building systems is done frequently. It isn't unusual to have to meet the restrictions of a proprietary building system when adding to or altering an existing building configuration. The specialty sub should have known that and such responsibility is imputed to the prime.

Everything above is correct. I feel the contractor is trying to cover itself with the excuse that the government did not issue a sole source justification and therefore, we are off the hook to provide what the specifications require.

I was a Contracting Officer on construction contracts for over 25 years and I am aware how GC's attempt top cover their backside when they screwed up and find out they have a bad bid price from a subcontractor. I don't see a tie between the sole source justification and subsequent compliance with a non-defective specification after contract award. It is my opinion that if the contractor did not protest the sole source issue within 10 days after award, it becomes a dead issue and the GC is required to comply with the specifications.

TC, I forgot to mention that this was apparently an IFB, not a negotiated source selection. You mentioned the word "bid" at least twice above. The government wouldn't have any specific knowledge of the specialty sub's qualifications or lack thereof nor its price. I'll bet that there isn't a separate line item for the security system in the bidding schedule. Am i correct?

Joel, yes this was an IFB and the bid was lump sum. The security system was included in the lump sum bid and a separate price breakdown was not requested. The government would not have any idea of what firms were bidding on the security system. This was a subcontractor who bid to an electrical subcontractor.

Good luck, TC. Looks like a problem between the sub and its sub that they are trying to push over to the govt.

TC, I didn't directly address your thought that it is better to not restrict competition if there is a possibility that someone other than the brand name supplier of the existing system can interface with the existing system. I agree as long as we clearly identify the existing system and describe the performance criteria. From the info provided it appears that a prospective qualified, specialty sub should be able to determine if it can assemble a team to design and install a system that can interface with the existing system.

What you showed above is not unusual from projects I have seen.

Edit:

Another thought: Low bid project award criteria begets low bid prime and subs. The prime may well have only been looking at the bottom line price, not the capabilities of its sub here.

Let's put this into perspective. The actual dollar amount involved ($120k vs. $20k) here is relatively small so the prime may not have put much thought into the complexity of the security system. Such a relatively small dollar amount of scope probably wouldn't have warranted any special attention by the government as an RFP evaluation criteria, either (had this been an RFP instead of an IFB) .

I don't think that the government was negligent here from the limited information we are aware of.

I think perhaps the key to this issue may be found in FAR 52.236-5 -- Material and Workmanship. In a construction contract a brand name may be inserted provided it also provides the required salient features or performance requirements of an acceptable system. The inclusion of the existing brand name security system without a single source justification set a standard of the existing system quality and advises potential bidders of the brand name of the existing security system. The specifications did not specifically indicate that the brand name was the only product that could possibly be used. Rather, the specs indicated that was the brand of the existing system and provided performance criteria for the expansion of the existing security system. Bidders had the latitude of installing a complete replacement security system, provided the system complies with the required performance criteria. I am certain the cost to replace the entire security system far exceeded the cost to expand the existing system.

(a) All equipment, material, and articles incorporated into the work covered by this contract shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this contract. 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. 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.

( b ) The Contractor shall obtain the Contracting Officer’s approval of the machinery and mechanical and other equipment to be incorporated into the work. When requesting approval, the Contractor shall furnish to the Contracting Officer the name of the manufacturer, the model number, and other information concerning the performance, capacity, nature, and rating of the machinery and mechanical and other equipment. When required by this contract or by the Contracting Officer, the Contractor shall also obtain the Contracting Officer’s approval of the material or articles which the Contractor contemplates incorporating into the work. When requesting approval, the Contractor shall provide full information concerning the material or articles. When directed to do so, the Contractor shall submit samples for approval at the Contractor’s expense, with all shipping charges prepaid. Machinery, equipment, material, and articles that do not have the required approval shall be installed or used at the risk of subsequent rejection.

( c ) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable.

(End of Clause)

Yes. Plus what I said. It doesn't matter whether or not this is the only way to perform. You gave the contractor enough info to determine how to proceed. The boards and courts have charged the contractor with certain responsibilities to familiarize themselves with market conditions - especially where the scope involves design-build and extensions of design. Your lawyer can do the research.

a. Does the FAR require a brand name justification when a project requires an expansion of an existing brand name security system?

Clarification a1 - do you require brand name or equal for the expansion? Part 15 (Part 6), Part 14 (Part 6), Part 13, and Part 16.5 all reference brand name justification requirements (no justifications for brand name or equal as used is 52.236-5, and Part 11).

b. Since none of the contractors protested the use of the brand name in the specifications, does this in any manner waive the liability assuming the regulatory sole source justification was required prior to issuing the solicitation?

Clarification b1 - You seem to be asking if the contractor's absence of a timely protest waives the liability. What liability are you referring to?

c. Does the fact that the brand name justification entitled the contractor to an equitable adjustment to the contract since it claimed that it only bid the expansion at a cost of $20,000 and has now found the cost from the brand name contractor to be in excess of $100,000?

Clarification c1 - If you rephrase this perhaps you can get an answer that will help you. As-is, any answer is based on an assumption of what this question means.

In order to get, truly, helpful responses we have to ensure we ask clear questions. After all, the answers given are in response to the question asked. If the question is wrong the answer is sure to follow (even if answered correctly, you just answered the wrong question correctly).

a. Does the FAR require a brand name justification when a project requires an expansion of an existing brand name security system?

Clarification a1 - do you require brand name or equal for the expansion? Part 15 (Part 6), Part 14 (Part 6), Part 13, and Part 16.5 all reference brand name justification requirements (no justifications for brand name or equal as used is 52.236-5, and Part 11).

b. Since none of the contractors protested the use of the brand name in the specifications, does this in any manner waive the liability assuming the regulatory sole source justification was required prior to issuing the solicitation?

Clarification b1 - You seem to be asking if the contractor's absence of a timely protest waives the liability. What liability are you referring to?

c. Does the fact that the brand name justification entitled the contractor to an equitable adjustment to the contract since it claimed that it only bid the expansion at a cost of $20,000 and has now found the cost from the brand name contractor to be in excess of $100,000?

Clarification c1 - If you rephrase this perhaps you can get an answer that will help you. As-is, any answer is based on an assumption of what this question means.

In order to get, truly, helpful responses we have to ensure we ask clear questions. After all, the answers given are in response to the question asked. If the question is wrong the answer is sure to follow (even if answered correctly, you just answered the wrong question correctly).

Jamaal, I think that the questions have been answered in a way-

a. The government didnt specify "brand name only" or a "single source" for this security system requirement. It allowed the contractor the flexibility to seek other solutions, if any exist. It described the Brand Name and described the performance criteria for the system and for the installer.. Contract clause FAR 52.236-5 -- Material and Workmanship allows "or equals" in such instances unless, the contract otherwise specifically prohibits an "or equal" solution.

b. This matter isnt a "protest". It is an REA or claim.

c. It doesnt appear that the contractor's claim/REA has merit. Even if only the brand name supplier or its approved installers can fulfill the requirements, the government provided the contractor and/or its sub enough information to determine the market restrictions and the technical possibilities of integrating the new work into the existing system, which would be necessary unless it completely replaced the existing system. The firms should have done the necessary investigations before formulating their bid prices to design, furnish, install and integrate the new work into the existing system. The government didnt withhold any information that would have prevented the contractor from intelligently pricing the requirement.

I am intrigued by this section of the specification:

1.5.2.1 Installer's Qualifications

Prior to installation, submit data of the installer's experience and certified qualifications. Show that the installer who will perform the work has a minimum of 2 years experience successfully installing ESS of the same type and design as specified herein. Include the names, locations, and points of contact of at least two installations of the same

type and design as specified herein where the installer has installed such systems. Indicate the type of each system and certify that each system has performed satisfactorily in the manner intended for a period of not less than 12 months.

I have to confess that my experience with construction contracts is limited, but this appears to require submission of past performance information post award. How would this section work in real life? In other words, is this intended to give the government the ability to veto the use of a particular subcontractor/installer? What would be the consequences of such a veto?

I am intrigued by this section of the specification:

1.5.2.1 Installer's Qualifications

Prior to installation, submit data of the installer's experience and certified qualifications. Show that the installer who will perform the work has a minimum of 2 years experience successfully installing ESS of the same type and design as specified herein. Include the names, locations, and points of contact of at least two installations of the same

type and design as specified herein where the installer has installed such systems. Indicate the type of each system and certify that each system has performed satisfactorily in the manner intended for a period of not less than 12 months.

I have to confess that my experience with construction contracts is limited, but this appears to require submission of past performance information post award. How would this section work in real life? In other words, is this intended to give the government the ability to veto the use of a particular subcontractor/installer? What would be the consequences of such a veto?

Retreadtreadfed, in real life I have seen other instances of similar of performance requirements specified. And security systems are obviously of critical importance.

I think that the performance criteria are reasonably well defined and measurable: "at least two installations of the same type and design as specified herein where the installer has installed such systems. Indicate the type of each system and certify that each system has performed satisfactorily in the manner intended for a period of not less than 12 months. "

The phrase "Include the names, locations, and points of contact" might be a bit ambiguous for verifying satisfactory performance. Can the POC's be the owners' personnel or the installer's?

We're talking about a SECURITY system.

In a sealed bid procurement in which such a system has to be expanded, the smart thing to do is insist upon use of OEM components or OEM-approved substitutes and the use of the OEM or an OEM approved installer to do the work. No substitutes! Since it is subcontract work, such a requirement should not restrict competition for the construction contract and, in fact, probably makes competition among construction contractors more viable. Using a performance specification and allowing the construction contractor to use other than OEM components and installation could lead to trouble. How much money would that save? Would it be worth the risk?

We don't even know what kind of security system it is. Is there a guarantee and a warranty? How would they be affected by expansion of the system by someone other than the OEM using substitute components? How old is the system? Is it still on the market? Has it been updated? Are original components still available? Ask the right bleeping questions, why don't you. Criminy.

My suspicion is that whoever wrote the construction specification didn't know what he or she was doing with respect to the security system. It is clear that TC2012 isn't sure about the REA or claim. Moreover, he is now writing nonsense sentences like this one:

The inclusion of the existing brand name security system without a single source justification set a standard of the existing system quality and advises potential bidders of the brand name of the existing security system.

That makes absolutely no sense. How does not providing a single source justification set a standard for system quality?

Unless there is more to his story than he has dribbled out to us, TC2012 has nothing to worry about with respect to the contractor's REA or claim. In any case, he should quit screwing around at Wifcon and follow the advice that Joel gave him in Post # 8, which was:

You NEED to consult your agency counsel.

As a future attorney I cannot pass up the opportunity to echo Joel and Vern in calling for consulting agency counsel.

With that said, I noticed that there was no discussion of the possibility that the brand name system could have been mandated by the agency or higher level. While it seems like a big fact to omit, if this is an Air Force procurement there were previously only three intrusion detection systems approved for physical security. Perhaps other agencies do not micro-manage as much as the Air Force, but it is entirely possible that the reason for the specificity had to do with legitimate: functions to be performed, performance required, or essential physical characteristics.

I disagree. I do not believe that FAR requires justification for specification of a brand name product in a construction specification unless it would of necessity create a sole source procurement for the construction contract itself or would otherwise restrict full and open competition or maximum practicable competition for the construction contract. If anyone has evidence (not mere assertion) to the contrary, please let me know.

In any case, even if it does, failure to prepare such a justification would not, in and of itself, support a claim such as the one described above. There would have to be more.

Vern, you are correct that there could be circumstances where a SSJ would not be required for a specification that identified a brand name. For example, if FAR Provision 52.211-6, Brand Name or Equal, was included and the specification identified the item as a brand name or equivalent. Alternatively, the specification could identify brand name(s), but not restrict to that particular brand, such as in the case of Veterans Contracting Group, Inc., B-405940, January 12, 2012. In that case, the agency identified several brand name products that "may" meet the requirement, but the agency improperly rejected a bid that proposed a different brand. GAO held that use of "may" did not imply that bidders must only propose those brand name products.

However, restricting a specification to a single brand name can lead to trouble when you do not have a brand name justification. GAO has sustained protests where the construction specifications required a brand name, even when the agency instructions allowed alternatives. For example, in C. Lawrence Construction Company, Inc., GAO held that even though the agency's Instructions to Bidders section allowed Vendors to propose alternative brand products by seeking pre-approval by the agency, the restriction in the specification created an ambiguity that made bidders think the requirement was a brand name requirement. In this particular decision, the brand name specification was a very small part of the overall construction project.

"In our view, the provisions of this IFB were at best ambiguous and could reasonably have been interpreted by bidders such as Lawrence as requiring them to furnish ASI signs since no manufacturers other than ASI had been approved prior to bid opening. Given that the agency has not argued that only ASI signs will meet its needs, not only is this interpretation contrary to the statutory requirement that solicitations include specifications that permit full and open competition and contain restrictive provisions only to the extent necessary to satisfy the needs of the agency..., and potentially prejudicial to bidders who reasonably believed themselves to be precluded from using lower-priced quotations from other sign manufacturers in formulating their bid prices..., but it apparently is not what the agency intended... Because bidders could reasonably have interpreted the IFB’s terms in a manner

restrictive of competition, we sustain the protest" (C. Lawrence Construction Company, Inc., B-290709, September 20, 2002, p. 5).

I cannot think of any example where you would want to include a brand name in specification unless you 1) were specifying a brand name or equal; or 2) you had a justification to limit competition and were restricting to a particular brand.

Vern, you are correct that there could be circumstances where a SSJ would not be required for a specification that identified a brand name. For example, if FAR Provision 52.211-6, Brand Name or Equal, was included and the specification identified the item as a brand name or equivalent. Alternatively, the specification could identify brand name(s), but not restrict to that particular brand, such as in the case of Veterans Contracting Group, Inc., B-405940, January 12, 2012. In that case, the agency identified several brand name products that "may" meet the requirement, but the agency improperly rejected a bid that proposed a different brand. GAO held that use of "may" did not imply that bidders must only propose those brand name products.Restricting a brand name in a specification can lead to trouble when you do not have a brand name justification. GAO has sustained protests where the construction specifications required a brand name, even when the agency instructions allowed alternatives. For example, in C. Lawrence Construction Company, Inc., GAO held that even though the agency's Instructions to Bidders section allowed Vendors to propose alternative brand products by seeking pre-approval by the agency, the restriction in the specification created an ambiguity that made bidders think the requirement was a brand name sole source. I cannot think of any example where you would want to include a brand name in specification unless you 1) were specifying a brand name or equal; or 2) you had a justification to limit competition and were restricting to a particular brand.

Metteec, the situation here isn't a protest, it is a claim or REA.

mettec:

I don't know why you brought up Lawrence Construction. As you seem to understand, GAO did not sustain the protest because the agency used a brand name specification without justification. It sustained the protest because the solicitation was ambiguous and did not permit all bidders to compete based on the same understanding of the requirement. I don't see what bearing that decision has on this case. Whether a justification is required or not, lack of a justification, in and of itself, would not support a claim.

To me, requiring use of the OEM-approved equipment and installers when expanding a security system is common sense unless something about the system makes it unnecessary. A CO who can't justify that should find other work. As for ambiguity, how about:

Notwithstanding any other provision of this solicitation or of the prospective contract, with respect to work on the security system, only OEM-approved equipment and installers will be acceptable in the performance of the contract. No other equipment or installers will be acceptable.

Good luck, TC. Looks like a problem between the sub and its sub that they are trying to push over to the govt.

Thanks Joel, and I agree with you. The subcontractor is qualified security systems, but not this brand of security system because it does not have the proprietary wiring information for the existing system and the government does not own that information. The system is a commercial item and the government does not own the data rights to the systems design as the system was not designed specifically for our application. Thanks again for all your input.

Vern, you are correct that there could be circumstances where a SSJ would not be required for a specification that identified a brand name. For example, if FAR Provision 52.211-6, Brand Name or Equal, was included and the specification identified the item as a brand name or equivalent. Alternatively, the specification could identify brand name(s), but not restrict to that particular brand, such as in the case of Veterans Contracting Group, Inc., B-405940, January 12, 2012. In that case, the agency identified several brand name products that "may" meet the requirement, but the agency improperly rejected a bid that proposed a different brand. GAO held that use of "may" did not imply that bidders must only propose those brand name products.

However, restricting a specification to a single brand name can lead to trouble when you do not have a brand name justification. GAO has sustained protests where the construction specifications required a brand name, even when the agency instructions allowed alternatives. For example, in C. Lawrence Construction Company, Inc., GAO held that even though the agency's Instructions to Bidders section allowed Vendors to propose alternative brand products by seeking pre-approval by the agency, the restriction in the specification created an ambiguity that made bidders think the requirement was a brand name requirement. In this particular decision, the brand name specification was a very small part of the overall construction project.

I cannot think of any example where you would want to include a brand name in specification unless you 1) were specifying a brand name or equal; or 2) you had a justification to limit competition and were restricting to a particular brand.

Only example I can readily think of is when an existing brand name system needs to be expanded or modified. Existing facilities are being altered and existing systems in those facilities are being modified all of the time under construction projects. . i.e. heating, cooling, etc. -- usually these types of system have multiple sources who can perform the required modifications.

On the other hand, when you have a highly technical system, only the OEM knows the combination or has the technical knowledge and ability to change or expand the existing system. Most contractors who normally work with these types of system clearly understand that the OEM is the only one who knows how to expand the system, because they own the design and data rights to the commercial system. For example: my car's low pressure tire light will remain on until I take it back to the dealer who sold the car and he had a box which talks to the pressure sensors on the rim which tells the sensor everything is OK. Only the OEM has the magic box to do this.

When a bidder submits a bid to modify a technical system, would you not expect it to initially determine if they had the expertise and/or qualifications necessary to perform work specified and to the existing system identified as the "existing system". It does not make sense to justify why the government placed the name of the OEM in the specification. The bidding contractor needs this information in order to make the determination if they are qualified to alter the existing system. If I do not have the necessary proprietary information to design and expand an existing security system, then perhaps that is an indication that I should not bid on this work. Does the government need to explain this to any competent contractor? Also, the government has no direct control over the brand of the existing system. We have what we have.

mettec:

I don't know why you brought up Lawrence Construction. As you seem to understand, GAO did not sustain the protest because the agency used a brand name specification without justification. It sustained the protest because the solicitation was ambiguous and did not permit all bidders to compete based on the same understanding of the requirement. I don't see what bearing that decision has on this case. Whether a justification is required or not, lack of a justification, in and of itself, would not support a claim.

To me, requiring use of the OEM-approved equipment and installers when expanding a security system is common sense unless something about the system makes it unnecessary. A CO who can't justify that should find other work. As for ambiguity, how about:

Notwithstanding any other provision of this solicitation or of the prospective contract, with respect to work on the security system, only OEM-approved equipment and installers will be acceptable in the performance of the contract. No other equipment or installers will be acceptable.

Vern, How about this statement:

WARNING: If you don't have the necessary experience and knowledge to expand the existing OEM system, request that you not submit a bid. Because if you submit a bid, and you don't have the expertise and technical ability, the general contractor will still be subject to providing the contractor that is capable to complete the required expansion under the contract, at no addition cost to the government.

TC:

The second sentence does not make sense.

TC:

The second sentence does not make sense.

Vern, I completely agree, it does not make sense. However, this is the basis of the GC arguments. The government should have told in its single source justification required by FAR, that this brand name manufacturer has proprietary rights to all of the designs, components and drawings concerning its security system and they are the only ones who may modify it, unless you are able to get this information from them.

Just because the government purchased and installed a brand name system does not give it the rights to the detailed technical information of the system. Information that would be required to expand the existing system. Further, if the government would have presented a sole source justification what would it have said? I assume the justification would indicate the brand name of the existing security system and indicate that the contractor must be qualified to expand this system. Further, must be capable of obtaining access to the systems proprietary wiring information. The security system was not manufactured exclusively for the government, it is a commercial item. Since the government requires expansion of the system, a contractor must first determine if you can obtain access to the necessary proprietary technical data required to expand this brand of security system.

However, should that not have been obvious to any contractor with any knowledge of commercially produced alarm system. Manufacture routinely hold the data rights. Especially these wiring and data are not made available to the general public or to other contractors because they are proprietary to the system manufacturer and if distributed outside of their company, it would create a risk to the classified information they were designed to protect. This is not a security system for a home. This system was designed to protect a classified military facility. You would not want a potential terrorist to have access to the security system drawings. Any contractor working with these types of security systems for a classified facility should have automatically known that this would have proprietary data concerning the systems wiring would not be available to the general public or on the internet.

Go see your lawyer.

Vern, I completely agree, it does not make sense. However, this is the basis of the GC arguments. The government should have told in its single source justification required by FAR, that this brand name manufacturer has proprietary rights to all of the designs, components and drawings concerning its security system and they are the only ones who may modify it, unless you are able to get this information from them.

Just because the government purchased and installed a brand name system does not give it the rights to the detailed technical information of the system. Information that would be required to expand the existing system. Further, if the government would have presented a sole source justification what would it have said? I assume the justification would indicate the brand name of the existing security system and indicate that the contractor must be qualified to expand this system. Further, must be capable of obtaining access to the systems proprietary wiring information. The security system was not manufactured exclusively for the government, it is a commercial item. Since the government requires expansion of the system, a contractor must first determine if you can obtain access to the necessary proprietary technical data required to expand this brand of security system.

However, should that not have been obvious to any contractor with any knowledge of commercially produced alarm system. Manufacture routinely hold the data rights. Especially these wiring and data are not made available to the general public or to other contractors because they are proprietary to the system manufacturer and if distributed outside of their company, it would create a risk to the classified information they were designed to protect. This is not a security system for a home. This system was designed to protect a classified military facility. You would not want a potential terrorist to have access to the security system drawings. Any contractor working with these types of security systems for a classified facility should have automatically known that this would have proprietary data concerning the systems wiring would not be available to the general public or on the internet.

I agree in principle with you, TC. As Vern said, go see your lawyer.

The few sole source claims decisions that I looked at the other day don't focus on whether or not the government justified a sole source acquisition. I don't think that the solicitation even has to mention that there is a sole source justification as long as it is evident what the system is and what the performance requirements are, does it? The decisions I reviewed didn't discuss that. Most of the sole source complaints to Congress and pre-award issues that I dealt with were from suppliers and other brand name installers, not general contractor primes.

A competent prospective prime contractor and/or its specialty sub or security system installer who is tasked to design, expand and integrate new work with an existing proprietary system, should investigate how it will have to tie into the existing, proprietary system before preparing its bid. I would expect that a good prime contractor would want to assure itself that the sub has done such investigations. I know on several source selections involving proprietary security or HVAC or Fire protection systems or other complex equipment, we learned during discussions that the prime was well aware of the complexities and pricing issues involved.

For goodness sakes, the specified performance requirements for the installer require certification that it has satisfactory experience with at least two security systems of "the same type and design as specified herein". If that alone didn't alert the prime to make sure that it's sub was aware of the requirements and qualified to perform the work, then nothing would.

You said that this will probably turn into a claim. Don't you have access to an agency lawyer? I handled many claims for the USACE but I always worked closely with our lawyers and the KO, who ultimately had to decide - after using his/her legal and CAB resources.

TC2012,

Are you standing for the proposition that the Government should have done a sole-source justification and the poor contractor needs to be made whole? Or are you standing for the proposition that this is the contractor's problem to solve within the contract as written?

TC2012,

Are you standing for the proposition that the Government should have done a sole-source justification and the poor contractor needs to be made whole? Or are you standing for the proposition that this is the contractor's problem to solve within the contract as written?

I am standing for the proposition the this is the contractor's problem to solve within the contract as written. The bidder should have verified that it was fully capable of expanding the existing brand name system prior to submitting its bid to the GC .

I agree in principle with you, TC. As Vern said, go see your lawyer.

The few sole source claims decisions that I looked at the other day don't focus on whether or not the government justified a sole source acquisition. I don't think that the solicitation even has to mention that there is a sole source justification as long as it is evident what the system is and what the performance requirements are, does it? The decisions I reviewed didn't discuss that. Most of the sole source complaints to Congress and pre-award issues that I dealt with were from suppliers and other brand name installers, not general contractor primes.

A competent prospective prime contractor and/or its specialty sub or security system installer who is tasked to design, expand and integrate new work with an existing proprietary system, should investigate how it will have to tie into the existing, proprietary system before preparing its bid. I would expect that a good prime contractor would want to assure itself that the sub has done such investigations. I know on several source selections involving proprietary security or HVAC or Fire protection systems or other complex equipment, we learned during discussions that the prime was well aware of the complexities and pricing issues involved.

For goodness sakes, the specified performance requirements for the installer require certification that it has satisfactory experience with at least two security systems of "the same type and design as specified herein". If that alone didn't alert the prime to make sure that it's sub was aware of the requirements and qualified to perform the work, then nothing would.

You said that this will probably turn into a claim. Don't you have access to an agency lawyer? I handled many claims for the USACE but I always worked closely with our lawyers and the KO, who ultimately had to decide - after using his/her legal and CAB resources.

Joel, The issue remains in the discussion phase and has not developed into a certified claim. Yes, lawyers are available, but the contractor has not yet turned this into a claim. I believe it maybe somewhat premature to involve them at this stage in the discussion. Lawyers want the complete picture and we have yet to get the contractors final decision to proceed with the work as specified or fight through a claim. We hope to convince the GC that is arguments are flawed and if it choose to file a claim, it would be rejected unless some other information presented itself.

You are singing the same song as I am with your 2nd and 3rd paragraphs. I completely agree with what you are saying. We will soon see how this comes out. The KO has advised the contractor that all delays related to these discussion are his responsibility and that he needs to obtain the services of a qualified and competent subcontractor to perform the work required by the specification. By the way the specification being used for the security system is a standard DoD Unified Facility Guide Specification (UFGS) written and coordinated between all services of the US Military. So it is not something the A/E just came up with.

Joel, thanks for your input as we are in total agreement on the issues and approach to resolving this issue prior to formal claim actions. Not in the governments or contractors best interest to get into a protracted dispute or claim over this issue. GC make a mistake by accepting and unqualified subcontractor bid and the government cannot bail him out. Thanks!

As a future attorney I cannot pass up the opportunity to echo Joel and Vern in calling for consulting agency counsel.

With that said, I noticed that there was no discussion of the possibility that the brand name system could have been mandated by the agency or higher level. While it seems like a big fact to omit, if this is an Air Force procurement there were previously only three intrusion detection systems approved for physical security. Perhaps other agencies do not micro-manage as much as the Air Force, but it is entirely possible that the reason for the specificity had to do with legitimate: functions to be performed, performance required, or essential physical characteristics.

The existing security system is a mandated qualified system for the type of Air Force facility undergoing expansion. The specification provided the brand name of this existing system and then provided detailed performance UFGS performance specification that was carefully drafted by the military for these systems, As you might be aware the drawings and connections required for this type of system are not posted on the internet and most probably closely held by the manufacturer.

With that being said, it remains the responsibility of the subcontractor bidding the expansion of this system to be qualified and capable of gaining access to the required connection necessary to expand the existing system. If a subcontractor, who is made aware of the existing systems brand and understand the meaning of the project facility title, a prudent subcontractor would have reasonably contacted the OEM to determine if it could gain access to the information necessary to expand the system.

Best of luck with your future endeavors as a new attorney. Contract law is a very interesting subject. Perhaps sometime more lucrative working against the government than for the government.

Good luck, TC. Keep steering clear of "protest" arguments, which aren't germaine to the issues here.😭

I am intrigued by this section of the specification:

1.5.2.1 Installer's Qualifications

Prior to installation, submit data of the installer's experience and certified qualifications. Show that the installer who will perform the work has a minimum of 2 years experience successfully installing ESS of the same type and design as specified herein. Include the names, locations, and points of contact of at least two installations of the same

type and design as specified herein where the installer has installed such systems. Indicate the type of each system and certify that each system has performed satisfactorily in the manner intended for a period of not less than 12 months.

I have to confess that my experience with construction contracts is limited, but this appears to require submission of past performance information post award. How would this section work in real life? In other words, is this intended to give the government the ability to veto the use of a particular subcontractor/installer? What would be the consequences of such a veto?

Retredfed

The installers qualification was placed in the specification to cover our backside. You would assume that anyone bidding to expand a security system would be qualified or they would not bid. Oh, but that is incorrect, as contractors do it everyday and then the GC is stuck with a contractor who is incapable of performing the required work. The specification is intended to ensure that the bidder understands you must be qualified to perform these services. The consequences is that the GC remains liable for completing the work and it may cost the GC more money than it had in the bid to obtain a qualified subcontractor to perform the work,

Good luck, TC. Keep steering clear of "protest" arguments, which aren't germaine to the issues here.

Thanks Joel, totally agree.

I need to piggyback on this topic. Vern in Post #10 stated he did not think the FAR required a J&A to direct a specific brand equipment in a construction contract. My situation is vehicle armoring. We plan to compete an armoring contract but direct the Armorer to use a specific Make and model vehicle. (note: GSA already waived Auto Choice). We have a split camp over whether a Brand Name J&A is required and what we do with it once approved. I have heard for my entire career that you can direct a prime to a sole source/brand name subcontract without a J&A but I am not sure why the FAR would allow us to avoid normal CICA procedures by using an intermediary to make the purchases. Does anyone know of anything I don't?

I believe that you are required by FAR to prepare a single justification in your described case. My situation was different. I don't believe you need a single source J&A to include in a construction specification the brand name of the system manufacturer who's existimg system is currently installed that must be expanded to meet the government's current requirement.

On the other hand, if you are introducing a new product into a construction contract by brand name, then you would need to create a J&A to justify why that brand is the only brand that will meet the government's requirements

Good luck.

Boof:

I know this doesn't directly answer your question but since brand name justifications almost write themselves, if they are legitimate, why not just execute one and save the go-round debate?

If the vehicles aren't GFP aren't you simply purchasing up-armored vehicles? If yes, wouldn't you need a justification?

Boof:

Are you buying vehicle armor and specifying the use of a brand name vehicle as a testbed, or are you buying armored vehicles and specifying the delivery of a brand name vehicle?

We are soliciting armoring companies (full and open I think, unless we still have the IDIQ contract we used to have) to purchase and armor a specific brand of vehicle. The J&A states it is the only known vehicle of its passenger capacity that has right hand drive and runs on dirty diesel overseas. All of the vehicles will be shipped overseas after being armored.

If the J&A is necessary then I would think a copy of it would go to the winning armorer to justify his sub-contract.

Although you called it an "armoring contract," you are going to award a contract for the purchase of armored vehicles, and you are specifying the make and model of the vehicle. You need a J&A for brand name or equal. See FAR 6.302-1[c](1)(ii). (I think calling the contract an "armoring" contract is misleading.) I don't think FAR says you have to provide a copy of the J&A to the prime to justify its use of a particular make and model that is specified in its contract, but I don't see any problem with doing so. By the way, you could avoid the brand name description by just specifying passenger capacity, right hand drive, and use of dirty deisel. If what you said about availability is true, then brand name specification and justification isn't necessary.

If I were an armoring contractor I might be concerned about being told to provide the vehicle, because I'd be afraid that the Government would try to hold make me responsible for the quality of the underlying vehicle, e.g., drive train, and not just for the armoring job. Will the armorer have to give you a warranty on the vehicle itself? Is the manufacturer's warranty transferable? If I were an armoring contractor, I'd prefer that you buy the vehicle and provide it to me as GFP. But if you've been buying them that way, then I guess it's acceptable to industry.

Vern,

I see your point about our buying a brand name armored vehicle not making an "armoring contract". Seeing it in that light, we need the J&As. I was hung up on our IDIQ armoring contracts which I found out this morning have expired. So we are posting the two requirements as small business set asides. We know at least 3 of our previous IDIQ contractors will be making proposals. We have never had any major issues with the warranties but having a OEM warranty that will be honored when using dirty diesel was one of several reasons for limiting the competition. Thanks for getting my thinking straight.

Boof:

Given the information that you presented in Post #52. why do you need to specify brand-name? Why not brand-name or equal with passenger capacity, right hand drive, and operability using dirty diesel as salient characteristics?

Sorry for the delay in responding, we are very busy. Thanks for the advice and yes we could use brand name or equal but since we already have the J&As approved we will avoid having to evaluate any "equal" proposals that the program office already knows won't meet thier requirements. We probably would not get any but why chance it since we already have the J&As.

Sorry for the delay in responding, we are very busy. Thanks for the advice and yes we could use brand name or equal but since we already have the J&As approved we will avoid having to evaluate any "equal" proposals that the program office already knows won't meet thier requirements. We probably would not get any but why chance it since we already have the J&As.

Boof - Not to be rude here, but I've met many a program office who "know" no one else can do it. They are continually proved wrong. With regards to vehicles, I would make a guess that many people could do it, but you are most likely not buying enough for them to justify altering their production line to make it work. That is a different argument than "only one person can do it" but you don't know until you ask either. Without knowing the type of vehicle either (SUV size or military size), if you were buying enough you may interest the larger defense vehicle companies. You don't know until you ask the question.

Textron Marine and Land Systems has some interesting new vehicles.