[Federal Register Volume 84, Number 105 (Friday, May 31, 2019)]
[Rules and Regulations]
[Pages 25190-25192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11305]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 206, 211, and 213

[Docket DARS-2018-0052]
RIN 0750-AJ50


Defense Federal Acquisition Regulation Supplement: Brand Name or 
Equal (DFARS Case 2017-D040)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2017 that requires 
the use of brand name or equal descriptions, or proprietary 
specifications or standards, in solicitations to be justified and 
approved.

DATES: Effective May 31, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule in the Federal Register at 83 FR 
54696 on October 31, 2018, to implement section 888(a) of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 
114-328), which requires that competition on DoD contracts not be 
limited through the use of brand name or equal descriptions, or 
proprietary specifications or standards, in solicitations, unless a 
justification for such specification is provided and approved in 
accordance with 10 U.S.C. 2304(f). Six respondents submitted public 
comments in response to the proposed rule.

II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final 
rule. A discussion of the comments and the changes made to the rule as 
a result of those comments is provided, as follows:

A. Summary of Significant Changes From the Proposed Rule

    The paragraphs at DFARS 211.104 and DFARS 211.170 have been updated 
to clarify that the use brand name or equal descriptions or proprietary 
specifications and standards shall be justified and approved when using 
sealed bidding procedures, negotiated procedures, or simplified 
procedures for certain commercial items.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: Several respondents expressed support for the rule.
    Response: DoD acknowledges the support for the rule.
2. Restrictions on Brand Name or Equal Descriptions
    Comment: A respondent expressed concern that subjecting brand name 
or equal descriptions to the justification and approval process will 
discourage the use of solicitations that signal a preference for, but 
do not require, a specific brand or product.
    Response: The language in the rule meets the intent of the statute 
at section 888(a) of the NDAA for FY 2017. When contracting without 
providing for full and open competition (e.g., requiring a specific 
brand or product particular to one manufacturer, or requiring 
specifications or standards that are

[[Page 25191]]

proprietary to a specific entity), contracting officers are still 
required to justify such an action and have it approved in accordance 
with the processes of Federal Acquisition Regulation (FAR) 6.3 and 
DFARS 206.3.
3. Lifecycle Quality Assurance
    Comment: Several respondents advised that requiring brand name or 
proprietary equipment typically assures that a certain level of quality 
and warranty will be conveyed with the item. The respondents expressed 
concern that DoD may face difficulties ensuring that equivalent 
products provide the same level of quality assurance as brand name or 
proprietary equipment during the product's lifecycle. Further, one 
respondent expressed dissatisfaction with placing additional 
restrictions on the ability to use brand name descriptions when 
procuring complex system components, as the action prevents DoD from 
making the best decisions about the quality of goods being used in the 
national defense.
    Response: The rule does not prohibit the use of brand name 
descriptions, brand name or equal descriptions, or proprietary 
specifications and standards, when necessary. Instead, the rule 
encourages the development of requirement descriptions that enable 
competition, to the maximum extent possible. For example, if a system 
component to be used in national defense requires a minimum level of 
quality and reliability, those physical, functional, and performance 
needs can be expressed in the description of the requirement and a 
competitive solicitation may be issued. If the component requirements 
for quality and reliability can only be expressed in terms of or met by 
a single brand name description, proprietary specifications or 
standards, or a brand name or equal description, then the description 
or specifications and standards may be used in the acquisition; but, 
only after the action is justified with sufficient facts and rationale 
and approved in accordance with FAR 6.3 and DFARS 206.3.
    Comment: To mitigate life-cycle quality assurance concerns, one 
respondent suggested that solicitations utilizing brand name or equal 
descriptions include a comparable life-cycle length for the product, as 
necessary, to ensure DoD receives an equal product in terms of 
durability and warranty.
    Response: Requirements personnel determine and define the minimum 
physical, functional, and performance characteristics of a requirement 
necessary to ensure it will meet DoD's needs. At their discretion, 
requirements personnel can identify an essential life-cycle length or 
warranty coverage in the description of the requirement.
    Comment: Another respondent suggested that removing the draft 
proposed text at DFARS 206.302-1(c)(2)(S-70), regarding the use of 
proprietary specifications and standards, may help alleviate concerns 
about DoD receiving a necessary level of quality assurance.
    Response: The language in the rule meets the intent of the statute 
at section 888(a) of the NDAA for FY 2017, which requires that 
competition on DoD contracts is not limited by the use of proprietary 
specifications or standards in solicitations, unless a justification 
for such specifications or standards is provided and approved in 
accordance with FAR 6.3 and DFARS 206.3.
4. Application of Rule to Acquisitions Valued at or Below the 
Simplified Acquisition Threshold (SAT)
    Comment: Some respondents advised that the rule is unclear whether 
the Government intends to apply the justification and approval 
requirement to acquisitions valued at or below the SAT.
    Response: The rule does not apply the justification and approval 
requirement to acquisitions valued at or below the SAT. The rule adds 
text to DFARS 206.3, Other Than Full and Open Competition, and DFARS 
213.5, Simplified Procedures for Certain Commercial Items, neither of 
which apply to acquisitions valued at or below the simplified 
acquisition threshold. The rule also adds text to DFARS subpart 211.1, 
Selecting and Developing Requirements Documents.
    In the proposed rule, the requirement to execute a justification 
and approval when using such descriptions or specifications and 
standards appeared as a standalone statement under DFARS 211.1, with 
two subparagraphs directing the contracting officer to see the proposed 
rule text in DFARS 206.3 and 213.5, as applicable. The rule uses the 
title of FAR 13.5, Simplified Procedures for Certain Commercial Items, 
only to refer to the procedures for the acquisition of commercial 
supplies and services in an amount greater than the simplified 
acquisition threshold but not exceeding $7 million.
    The intent of the text in this subpart is to clarify that a 
justification and approval is required to include brand name or equal 
descriptions, or proprietary specifications or standards, in DoD 
solicitations that use sealed bidding, or negotiated acquisition 
procedures, or simplified acquisition procedures for certain commercial 
items, as specified in the following two subparagraphs. To clarify the 
intent of the rule, the text in subpart 211.1 has been changed from a 
standalone statement to a statement that a justification and approval 
is required when using the procedures identified in the subsequent 
subparagraphs; and, to add a reference to ``FAR 13.5'' after simplified 
acquisition procedures for certain commercial items.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not create any new DFARS clauses or amend any 
existing DFARS clauses.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
The FRFA is summarized as follows:
    DoD is amending the Defense Federal Acquisition Regulation 
Supplement (DFARS) to implement section 888(a) of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2017, which requires that 
competition in DoD contracts not be limited through the use of brand 
name or equivalent descriptions, or proprietary specifications or 
standards, in solicitations unless a justification for such 
specification is provided and

[[Page 25192]]

approved in accordance with 10 U.S.C. 2304(f).
    The objective of this final rule is to ensure that a justification 
is executed and approved prior to including brand name or equal 
descriptions, or proprietary specifications or standards, in a 
solicitation that uses simplified procedures for certain commercial 
items or negotiated acquisition or sealed bidding procedures.
    No public comments were received in response to the initial 
regulatory flexibility analysis.
    The Federal Procurement Data System (FPDS) does not collect data on 
contracts awarded using brand name or equal descriptions or contracts 
that were competed and included proprietary specifications or 
standards. Currently, brand name or equal descriptions are procured 
through competitive procedures, but FPDS does not identify the subset 
of contracts that were awarded competitively using such descriptions.
    FPDS can identify the number of offers received in response to a 
solicitation. This subset can help DoD better identify the number of 
competitive requirements that may have used such descriptions, 
specifications, or standards, but only received one offer for various 
reasons.
    As a result, FPDS identifies that there were 127,536 contracts and 
orders competed and awarded in FY 2017 that only received one offer. Of 
the 127,536 new awards, 76,179(60%) of these actions were awarded to 
9,823 unique small business entities. The proposed rule applies to all 
entities who do business with the Federal Government and is not 
expected to have a significant impact on these entities, regardless of 
business size.
    This rule does not include any new reporting, recordkeeping, or 
other compliance requirements for small businesses.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no known significant alternative approaches to the rule 
that would meet the proposed objectives.

VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 206, 211, and 213

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 206, 211, and 213 are amended as follows:

0
1. The authority citation for 48 CFR parts 206, 211, and 213 continues 
to read as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 206--COMPETITION REQUIREMENTS


0
2. In section 206.302-1, paragraphs (c) and (S-70) are added to read as 
follows:


206.302-1  Only one responsible source and no other supplies or 
services will satisfy agency requirements.

* * * * *
    (c) Application for brand-name descriptions.
    (2) Notwithstanding FAR 6.302-1(c)(2), in accordance with section 
888(a) of the National Defense Authorization Act for Fiscal Year 2017 
(Pub. L. 114-328), the justification and approval addressed in FAR 
6.303 is required in order to use brand name or equal descriptions.
* * * * *
    (S-70) Application for proprietary specifications or standards. In 
accordance with section 888(a) of the National Defense Authorization 
Act for Fiscal Year 2017 (Pub. L. 114-328), the justification and 
approval addressed in FAR 6.303 is required in order to use proprietary 
specifications and standards.
* * * * *

PART 211--DESCRIBING AGENCY NEEDS

0
3. Section 211.104 is added to read as follows:


211.104  Use of brand name or equal purchase descriptions.

    A justification and approval is required to use brand name or equal 
purchase descriptions--
    (1) When using sealed bidding or negotiated acquisition procedures 
(see 206.302-1(c)(2) for justification requirements); or
    (2) When using the simplified procedures for certain commercial 
items at FAR 13.5 (see 213.501(a)(ii) for justification requirement).

0
4. Section 211.170 is added to read as follows:


211.170  Use of proprietary specifications or standards.

    A justification and approval is required to use proprietary 
specifications and standards--
    (1) When using sealed bidding or negotiated acquisition procedures 
(see 206.302-1(S-70) for justification requirements); or,
    (2) When using the simplified procedures for certain commercial 
items at FAR 13.5 (see 213.501(a)(ii) for justification requirements).

PART 213--SIMPLIFIED ACQUISITION PROCEDURES

0
5. Section 213.501 is amended by--
0
a. Redesignating paragraph (a) as paragraph (a)(i); and
0
b. Adding new paragraph (a)(ii) to read as follows:


213.501  Special documentation requirements.

    (a) * * *
    (ii) In accordance with section 888(a) of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the 
justification and approval addressed in FAR 13.501(a) is required in 
order to use brand name or equal descriptions or proprietary 
specifications and standards.

[FR Doc. 2019-11305 Filed 5-30-19; 8:45 am]
BILLING CODE 5001-06-P