[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32741-32742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15147]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 11, 37, and 52
[FAC 97-12; FAR Case 96-018; Item II]
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: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (the Councils) have agreed on a final
rule amending the Federal Acquisition Regulation (FAR) to clarify
guidance for the use of brand name purchase descriptions.
EFFECTIVE DATE: August 16, 1999.
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 FAC 97-12, FAR case 96-018.
SUPPLEMENTARY INFORMATION:
[[Page 32742]]
A. Background
While indicating that performance specifications are the preferred
method for describing the Government's needs, this final rule permits
the use of brand name or equal purchase descriptions. The rule
clarifies how brand name or equal purchase descriptions are structured,
i.e., salient functional, physical, or performance characteristics must
be part of the description.
The Councils published a proposed rule in the Federal Register at
63 FR 63778, November 16, 1998, and considered all comments in the
development of this final rule.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The 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. The
Final Regulatory Flexibility Analysis (FRFA) for this rule is
summarized as follows:
The objective of the final rule is to provide more
comprehensive, uniform FAR guidance on the appropriate use of brand
name purchase descriptions. Application of the guidance supports
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. We anticipate 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 ``equal.''
The FAR Secretariat has submitted a copy of the FRFA to the Chief
Counsel for Advocacy of the Small Business Administration. Interested
parties may obtain a copy of the FRFA from the FAR Secretariat. We
invite comments. The Councils will consider comments from small
entities concerning the affected FAR subpart in accordance with 5
U.S.C. 610. Interested parties must submit such comments separately and
should cite 5 U.S.C 601, et seq. (FAC 97-12, FAR case 96-018), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that 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: June 9, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 11 and 52 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. Redesignate sections 11.104 and 11.105 as sections 11.105 and
11.106, respectively; and add new sections 11.104 and 11.107 to read as
follows:
11.104 Use of brand name or equal purchase descriptions.
(a) While the use of performance specifications is preferred to
encourage offerors to propose innovative solutions, the use of brand
name or equal purchase descriptions may be advantageous under certain
circumstances.
(b) Brand name or equal purchase descriptions must 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
brand name or equal descriptions when the salient characteristics are
firm requirements.
11.107 Solicitation provision.
The contracting officer must insert the provision at 52.211-6,
Brand Name or Equal, when brand name or equal purchase descriptions are
included in a solicitation.
11.105 [Amended]
2a. Amend the introductory paragraph and paragraph (a) of newly
redesignated section 11.105 by removing ``brand-name'' and adding
``brand name'' in its place.
PART 37--SERVICE CONTRACTING
37.602-1 [Amended]
3. Amend section 37.602-1 in the second sentence of paragraph (a)
by removing ``(see 11.105)'' and adding ``(see 11.106)'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Add section 52.211-6 to read as follows:
52.211-6 Brand Name or Equal.
As prescribed in 11.107, insert the following provision:
Brand Name or Equal (Aug 1999)
(a) If an item in this solicitation is 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 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)
[FR Doc. 99-15147 Filed 6-16-99; 8:45 am]
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