[Federal Register Volume 63, Number 220 (Monday, November 16, 1998)]
[Proposed Rules]
[Pages 63778-63779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30438]
[[Page 63777]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 11 and 52
Federal Acquisition Regulation: Use of Brand Name Item Descriptions;
Proposed Rule
Federal Register / Vol. 63, No. 220 / Monday, November 16, 1998 /
Proposed Rules
[[Page 63778]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 11 and 52
[FAR Case 96-018]
RIN 9000-AH85
Federal Acquisition Regulation; Use of Brand Name Item
Descriptions
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing to amend the Federal
Acquisition Regulation (FAR) to provide for the use of brand name
purchase descriptions, including ``brand name or equal,'' ``brand
name--no substitute,'' and ``brand name as target''; and to add two new
related solicitation provisions.
DATES: Comments should be submitted on or before January 15, 1999 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), Attn: Laurie
Duarte, 1800 F Street, NW, Room 4035, Washington, DC 20405.
E-mail comments submitted over Internet should be addressed to:
[email protected]. Please cite FAR case 96-018 in all
correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405 (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAR case 96-018.
SUPPLEMENTARY INFORMATION:
A. Background
While indicating that performance specifications are the preferred
method for describing the Governments needs, the proposed rule provides
three types of brand name purchase descriptions, ``brand name or
equal,'' ``brand name no substitute,'' and ``brand name as target,''
for use based on the degree of flexibility of the Government's
requirement. The rule also proposes two solicitation provisions
providing guidance to offerors responding to ``brand name or equal''
and ``brand name as target'' purchase descriptions.
The proposed guidance at FAR 11.104-3 permits contracting officers
to describe their needs by identifying brand names as targets rather
than as ``brand name or equal.'' The rule would permit solicitations to
include salient physical, functional, or performance characteristics of
the brand name.
However, since needs would be described as targets, offerors could
propose alternatives for consideration by the Government that are not
identical to the brand name. In addition to looking at alternatives
exceeding the target's characteristics, agencies could consider
alternatives that were not fully compliant with the salient
characteristics of the brand name target (i.e., that were ``less than
equal'' to the brand name but represented a better overall value for
the intended use). This will allow contracting officers a simple way to
describe needs and enhance their flexibility to make tradeoffs between
price and quality to achieve a best value decision. Public comment is
sought regarding whether the rule should speak in terms of ``desired''
characteristics rather than ``salient'' characteristics, since the
latter term is generally associated with the brand name or equal
approach, where requirements are fixed and agencies are denied the
opportunity to consider offers that fall below the ``or equal'' level.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993.
This is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The proposed changes may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
affects how purchase descriptions may be written for competitive
procurements. An Initial Regulatory Flexibility Analysis (IRFA) has
been prepared and will be provided to the Chief Counsel for Advocacy
for the Small Business Administration. The IRFA is summarized as
follows:
The objective of the proposed rule is to provide more
comprehensive, uniform FAR guidance on the appropriate use of brand
name purchase descriptions, as there are currently many differing
interpretations of this issue. Application of the proposed guidance
should result in more consistent use of such purchase descriptions
in Federal acquisitions. The rule will apply to all large and small
entities that offer supplies to the Government that are brand name
items or are comparable to such items. It is anticipated that the
selected approach will be the most advantageous to small entities,
while achieving the objective of the rule, because this approach
best enables the Government to express its requirements clearly and
describe the degree of flexibility with which offered supplies or
services will be evaluated as ``equals.''
A copy of the IRFA may be obtained from the FAR Secretariat. Comments
are invited. Comments from small entities concerning the affected FAR
subpart will be considered in accordance with 5 U.S.C. 610. Such
comments must be submitted separately and should cite 5 U.S.C. 601, et
seq. (FAR Case 96-018), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 11 and 52
Government procurement.
Dated: November 9, 1998.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR Parts 11 and 52 be amended as
set forth below:
1. The authority citation for 48 CFR Parts 11 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 11--DESCRIBING AGENCY NEEDS
2. Section 11.104 is revised and sections 11.104-1, 11.104-2, and
11.104-3 are added to read as follows:
11.104 Use of brand name purchase descriptions.
While the use of performance specifications is preferred to
encourage offerors to propose innovative solutions, the use of a brand
name purchase description may be advantageous under certain
circumstances.
11.104-1 Brand name or equal.
Brand name or equal purchase descriptions shall include, in
addition to the brand name, a general description of those salient
physical, functional, or performance characteristics of the brand name
item that an ``equal'' item must meet to be acceptable for award. Use
[[Page 63779]]
brand name or equal descriptions when the salient characteristics are
firm requirements.
11.104-2 Brand name--no substitute.
Brand name--no substitute purchase descriptions may be used when--
(a) A particular brand name product has a feature or features
essential to the Government's requirements, and market research
indicates that other companies' similar products do not meet or cannot
be modified to meet the agency's legitimate needs; and
(b)(1) The authority to contract without providing for full and
open competition is supported by the required justifications and
approvals (see 6.302-1); or
(2) The basis for not providing for maximum practicable competition
is documented in the file when the acquisition is awarded using
simplified acquisition procedures and the amount does not exceed the
simplified acquisition threshold.
11.104-3 Brand name as target.
To the extent authorized by agency regulations, for other than
sealed bidding acquisitions, contracting officers may identify one or
more brand name products as targets for addressing agency needs. The
solicitation shall identify the items intended use and may, but need
not, include salient physical, functional, or performance
characteristics. Use brand name as target purchase descriptions when
there are desirable, but not firm, requirements.
3. Section 11.106 is added to read as follows:
11.106 Solicitation provisions.
(a) The contracting officer shall insert the provision at 52.211-
X1, Brand Name or Equal, when brand name or equal purchase descriptions
are included in a solicitation.
(b) The contracting officer shall insert the provision at 52.211-
X2, Brand Name as Target, when brand name as target purchase
descriptions are included in a solicitation.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Sections 52.211-X1 and 52.211-X2 are added to read as follows:
52.211-X1 Brand name or equal.
As prescribed in 11.106(a), insert the following provision:
Brand Name or Equal (Date)
(a) If items in this solicitation are identified as ``brand name
or equal,'' the purchase description reflects the characteristics
and level of quality that will satisfy the Government's needs. The
salient physical, functional, or performance characteristics that
``equal'' products must meet are specified in the solicitation.
(b) To be considered for award, offers of ``equal'' products,
including ``equal'' products of the brand name manufacturer, must--
(1) Meet the salient physical, functional, or performance
characteristic specified in this solicitation;
(2) Clearly identify the item by--
(i) Brand name, if any; and
(ii) Make or model number;
(3) Include descriptive literature such as cuts, illustrations,
drawings, or a clear reference to previously furnished descriptive
data or information available to the Contracting Officer; and
(4) Clearly describe any modifications the offeror plans to make
in a product to make it conform to the solicitation requirements.
Mark any descriptive material to clearly show the modifications.
(c) The Contracting Officer will evaluate ``equal'' products on
the basis of information furnished by the offeror or identified in
the offer and reasonably available to the Contracting Officer. The
Contracting Officer is not responsible for locating or obtaining any
information not identified in the offer.
(d) Unless the offeror clearly indicates in its offer that the
product being offered is an ``equal'' product, the offeror shall
provide the brand name product referenced in the solicitation.
(End of provision)
52.211-X2 Brand Name as Target.
As prescribed in 11.106(b), insert the following provision:
Brand Name as Target (Date)
(a) If items in this solicitation are identified as ``brand name
as target'', the specified brand name item(s) reflects the
characteristics and level of quality that will satisfy the
Government's needs. Offerors are encouraged to offer these or
similar items that will provide comparable performance and quality
at a reasonable price.
(b) To be considered for award, offers of substitute products,
including other products of the brand name manufacturer, must--
(1) Identify the salient physical, functional, or performance
characteristics of the offered item; and
(2) Include descriptive literature, or a clear reference to
previously furnished descriptive data or information available to
the Contracting Officer.
(c) The Contracting Officer will evaluate offered substitute
products on the basis of information furnished by the offeror or
identified in the offer and reasonably available to the Contracting
Officer. The Contracting Officer is not responsible for locating or
obtaining any information not identified in the offer.
(d) Unless the offeror clearly indicates in its offer that a
substitute product is being offered, the offeror shall provide the
target brand name product referenced in the solicitation.
(End of provision)
[FR Doc. 98-30438 Filed 11-13-98; 8:45 am]
BILLING CODE 6820-EP-P