BRANDNAME_FLAC.pdf

BRAND NAME JUSTIFICATION

Please complete and return immediately to:

Agency/Office Name: ____ O~E_P ____________________ _

1. "Brand name" of product: ____ F __ LA ............ C_.2 ..... D ______ a ..... nd_F=LA ..... C ............ 3_0 __________ _

2. Description of "brand name" product: General analysis and design tool for geotechnical. civil and mining engineers

3. Name of manufacturer of "brand name" product: ___ l=ta=s=c=a __ _

4. The "brand name" provided is to identify the standard of quality necessary. Equivalents will be considered. __ No __ No (If no, please complete Nos. 5 and 6.)

5. If the answer to No. 4 is "no," please complete the following.

Only the "brand name" item specified will meet the Government's needs:

__ A. Because patent rights, copyrights, proprietary secret processes, control of certain materials or components providing a superior utility or capability that cannot be obtained from similar products.

_X __ B. Because program requirements cannot be modified so that competitive products or services may be used.

___ C. Because the product or service is unique and easily established as one-of-a kind.

Please e>:plain:

6. If the answer to No. 4 is "no," please indicate other reasons for restricting competition:

0281 Engineers use FLAC in support of geo-technical projects. Changing products at this time would interfere with cu1-rent projects that are already underway the loss of time for training and integrating a new product into the environment would put scheduled projects at risk. Therefore, maintenance is required to ensure that the latest version and technical support is available.

I certify to the best of my knowledge that the above statements are correct.

Public

Yes X jnded12 Typewritten Text jnded12 Typewritten Text

*See Attached Appl.'cable FAR Referenc~s 11.1p4, 11.105, 6.302-1, 6.303-1 & 6.303-2

*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 mw 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 characterislics 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 charact1~ristics are firm requirements.

*11.105 Items pecullar10 one manufacturer.

Agency requirements shall 1ot be written so as to require a particular brand name, product, or a feature of a product, peculiar to one mamifacturer, thereby precluding consideration of a product . nanufactured by another company, unless-

( a) The particular brand 11ame, product, or feature is essential to the Government's requirements, and market research indicates other companies' similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency's needs;

(b) The authority to contr9ct without providing for full and open competition is supported by the required justifications and approvals (see 6.302-1); and

(c) The basis for not pro\iding for maximum practicable competition is documented in the file when the acquisition is awarded using simplified acquisition procedures. ·

*6.302-1 Only one responsible source and no other supplies or services wlll satisfy agency requirements.

(a) Authority.

(1) Citations: 10 U.S.C. ~304(c) (1) or41 U.S.C. 253(c) (1).

(2) When the supplies or services required by the agency a(fJ available from only one responsible source, or, for DOD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be orovided for.

(i) Supplies or services may be considered to be available from only one source if the source has submitted an unsolicited research proposal that- ( A) Demonstrates a uniq11e and innovative concepf(see definition at 2.101), or, demonstrates a unique capability of the source to provide the particular research services propo~·ed; · ·

(B) Offers a concept or S•~rvices not otherwise available to the Government; and

(C) Does not resemble tt e substance of a pending competitive acquisition. (See 1 O U.S. C. 2304(d)(1 )(A) and 41 U.S. C. 253(d)(1 )(A).)

(ii) Supplies may be deemed to be available only from the original source in the case of a follow-on contract for the continued development or production of a major system or higNy specialized equipment, including major components thereof, when it is likely that award to any other source would result in- ( A) Substantial duplication of cost to the Government that is' not expected to be recovered through competition; or

(B) Unacceptable delays in fulfilling the agency's requirements. (See 10 U.S.C. 2304(d)(1)(B) or 41 U.S.C. 253 (d)(1)(B).)

(iii) For DOD, NASA, ano the Coast Guard, service$ may be deemed to be available only from the original source in the case of follow-on contracts for the continued provision cf highly specialized servicftswhen it is likely that award to any other source would result in- ( A) Substantial duplication of cost to the Government that is not expected to be recovered through competition; or

(B) Unacceptable delays in fulfilling the agency's requirements. (See 10 U.S.C. 2304(d)(1)(B).)

(b) Application. This authority shall be used, if appropriate, in preference to the authority in 6.302-7; it shall not be used when any of the other circumstances is applical>fe. Use of this authority may be appropriate in situations such as the following (these examples are not intended to be all inclusive and do not com:titute authority in and of themselves):

(1) When there is a reasc•nable basis to conclude that the a~ncy's minimum needs can only be satisfied by

(i) Unique supplies or set vices available from only one source or only one supplier with unique capabilities; or

(ii) For DOD, NASA, and the Coast Guard, unique supplies or services available from only one or a limited number of sources or from only one or a limited number of suppliers with unique capabilities.

(2) The existence of limitod rights in data, patent rif111ts, copyrights, or secret processes; the control of basic raw material; or similar circumstances, make the supplies and service~· available from only one source (however, the mere existence of such rights or circumstances does not in and of itself justify the use of these authoriti,~s) (see Patt 27).

(3) When acquiring utility services (see 41.101), circ1.1mstances may dictate that only one supplier can furnish the service (see 41.202); or when the contemplated contract is for construction of a part of a utility system and the utility company itself is the only source available to work on the system.

(4) When the agency he~d has determined in accdrdance with the agency's standardization program that only specified makes and models of technical equipment and parts will satisfy the agency's needs for additional units or replacement items, and only one source is available.

(c) Application for brand 11ame descriptions. An acquisition that uses a brand name description or other purchase description to specify a particular brand name, product, or feature of a product, peculiar to one m~ryufacturer does not provide for full and open competition regardless of the number of sources solicited. It shall be justifi~d and approved in accordance with FAR 6.303 and 6.304. The justification should indicate that the use of such descriptions in the acquisition is essenti11/ to the Government's requirements, thereby precluding consideration of a product manufactured by another company. (Brand name or equal descriptioos, and other purchase descriptions that permit prospective contractors to offer products other than those specifically referenced by brand name, provide for full and open competition and do not require justifications and approvals to support their use.)

(d) Limitations.

(1) Contracts awarded u~ing this authority shall be supporlefi by the written justifications and approvals described in 6.303 and 6.304.

(2) For contracts awardecf using this authority, the notices required by 5.201 shall have been published and any bids and proposals must have been considered. ·

*6.303 Justifications.

6.303·1 Requirements.

(a) A contracting officer s'1all not commence negotiations for a sole source contract, commence negotiations for a contract resulting from an unsolicited proposal, or award any o:her contract without providing for full and open competition unless the contracting officer-

(1) Justifies, if required in 6.302, the use of such actions in writing;

(2) Certifies the accuracy and completeness of thejustification; and

(3) Obtains the approval -equired by 6.304.

Public recommendation for ~thE·r than ;ull and open co",n'petition.

(c) Justifications requirec' by peragraph (a) of this section may be made on an individual or class basis. Any justification for contracts awarded under the authority of 6.302-7 shall only be made on an individqal basis. Whenever a justification is made and approved on a class basis, the contracting officer must ensure that each contract action taken pursuant.to the authority of the class justification and approval is within the scope of the class justification and approval and shall d.x;ument the contract file for each contract action aecordingly.

(d) If the authority of 6.302-3(a)(2)(i) or 6.302-7 is b.eing cited as a basis for not providing for full and open competition in an acquisition that would otherwise be subject to tl1e Trade Agreements Act (see Subpart 25.4), the contracting officer must forward a copy of the justification, in accordance with agency procedures, to th9 agency's point of contact with the Office of the United States TradeRepresentative.

(e) The justifications for contracts awarded under the authority cited in 6.302-2 may be prepared and approved within a reasonable time after contract award when preparation 'lnd approval prior to award would unreasonably delay the acquisitions.

6.303-2 Content.

(a) Each justification shal' contain sufficient facts and rationale to justify the use of the specific authority cited. As a minimum, each justification shall include the following info1mation:

(1) Identification of the a!j ency and the contracting activity, and specific identification of the document as a "Justification for other than full and open competition.•

(2) Nature and/or de scrip ~ion of the action being approved.

(3) A description of the st,pplies or services required to meet the agency's needs (including the estimated value).

(4) An identification of the statutory authority permitting other than full and open competition.

(5) A demonstration that lhe proposed contractor's unique qualifications or the nature of the acquisition requires use of the authority cited.

(6) A description of effort:: made to ensure that offers are solicited from as many potential sources as is practicable, including whether a notice was or will be publicized as requ,red by Subpert 5.2 and, if not, which exception under 5.202 applies.

(7) A determination by thE' contracting officer that the anticipated cost to the Government will be fair and reasonable.

(8) A description of the m.~rket research conducted (see Part 10) and the results or a statement of the reason market research was not conducted.

(9) Any other facts suppo, ting the use of other than full and open competition, such as: ·

(i) Explanation of why tee. 'mica/ data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition ha\'e not been developed or are not available.

(ii) When 6. 302-1 is cited For follow-on acquisitions as described in 6.302-1 (a)(2)(ii), an estimate of the cost to the Government that would be duplicated and how the estimate wa:: derived.

(iii) When 6. 302-2 is cited data, estimated cost, or other rationale as to the extent and nature of the harm to the Government.

(10) A listing of the sourcE•s, if any, that expressed,)n writing, an interest in the acquisition.

(11) A statement of the actions, if any, the agency may take to remove or overcome any batJiers to competition before any subsequent acquisition for the supplies or services rF.'quired.

(12) Contracting officer certification that the justification is accurate and complete to the best of the contracting officer's knowledge and belief.

(b) Each justification shall include evidence that any supporting data that is the responsibility of tectmical or requirements personnel (e.g., verifying the Government's minimum Meds or schedule requirements or other rationale for other than full and open competition) and which form a basis for the justification have been ce1tified as complete and accurate by the technical or requirements petsonnel.

6.304 Approval ofthejw1tiflcation.

(a) Except for paragraph (~) of this section, the justification for other than full and open competition shall be approved in writing-

(1) For a proposed contra1:t not exceeding $500,000, the contracting officer's certification required by 6.303-2(a)(12) will serve as approval unless a higher approving level is established in agency prrfcedures.

(2) For a proposed contrac:t over $500,000 but not.exceeding $10,000,000, by the competition advocate for the procuring activity designated pursuant to

6. 501 or an official descrited in paragraph (a)(3) or (a)(4) of this section. This authority is not delegable.

(3) For a proposed contrac:t over $10,000,000 but not exceeding $50,000,000, by the head of the procuring activity, or a designee who

(i) If a member of the armE'd forces, is a general or flag officer; or

(ii) If a civilian, is serving in a position in grade GS 16 or above under the General Schedule (or in a comparable or higher position under another schedule).

(4) For a proposed contract over $50,000,000, by the _senior procurement executive of the agency designated pursuant to the OFPP Act (41 U.S.C.

414(3)) in accordance witt agency procedures. This authority is not delegable except in the case of the Under Secretary of Defense for Acquisition, Technology, and Logistics acting as the senior procurement executive for the Department of Defense. ·

(b) Any justification for a contract awarded under the authority of 6.302-7, regardless of dollar amount, shall be considered approved when the determination required by 5.302-7(c)(1) is made.

(c) A class justification for Jther than full and open competition shall be approved in writing in accordance with agency procedures. The approval level shall be determine.d by the estimated total value of the class.

(d) The estimated dollar Vl·fue of all options shall be included in determining the approval level of a justification.

Public