[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