BRANDNAME_FLOW.pdf

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BRAND NAME JUSTIFICATION

Please complete and return immediately to:

Agency/Office Name:

OED/CIO

1. "Brand name" of product: Flow 3D

2. Description of "brand name" product: Water and Environmental Modeling Software

3. Name of manufacturer of "brand name" product: _F.low 3D _

4. The "brandname" provided is to identify the standard of quality necessary. Equivalents will be considered. Yes X 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 explain:

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

This is a request for software maintenance for water and environmental modeling software use by OEP. 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.

*See Attached Applicable FAR References 11.104, 11.105, 6.302-1, 6.303-1 & 6.303-2

*11.104 Use of brand na"'e or equal purchase descriptions.

(a) While the use of perfo"1ance 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 perfom1ance 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 charactenstics are fim1 requirements.

*11.105 Items peculiar to one manufacturer.

Agency requirements shall nc't be written so as to require a particular brand name, product, or a feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product mmufactured by another company, unless-

( a) The particular brand mme, 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 contra,;t 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 provicfing 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 will satisfy agency requirements.

(a) Authority.

(1) Citations: 10 U.S.C. 2~104(c) (1) or41 U.S.C. 253(c) (1).

(2) When the supplies or i:ervices required by the agency are 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 r.rovided for.

(i) Supplies or services m.w be considered to be available from only one source if the source has submitted an unsolicited research proposal that-

(A) Demonstrates a unique and innovative concept (see definition at 2. 101 ), or, demonstrates a unique capability of the source to provide the particular research services propos11d;

(B) Offers a concept or services not otherwise available to the Government; and

(C) Does not resemble th,1 substance of a pending competitive acquisition. (See 10 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 highly 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. and the Coast Guard, services may be deemed to be available only from the original source in the case of follow-on contracts for the continued provision oF highly specialized services when it is likely that award to any other source would result in-

(A) Substantial duplicatio.1 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 auth'Jrity 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>le. 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 reascinable basis to conclude that the agency's minimum needs can only be satisfied by

(i) Unique supplies or se1vices 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 limitfld rights in data, patent rights, copyrights, or secret processes; the control of basic raw material; or similar circumstances, make the supplies and service~i 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 authorities) (see Part 27).

(3) When acquiring utilil}· services (see 41. 101 ), circumstances 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•ld has detem1ined in accordance 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 name descriptions. An acquisition that uses a brand name description or other purchase description to specify a particular brand name, product, or featun~ of a product, peculiar to one manufacturer does not provide for full and open competition regardless of the number of sources solicited. It shall be justiHed 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 assent. al to the Government's requirements, thereby precluding consideration of a product manufactured by another company. (Brand name or equal descripticins, and other purchase descriptions that pem1it prospective contractors to offer products other than those specifically referenced by brand nar1e, provide for full and open competition and do not require justifications and approvals to support their use.)

(d) Limitations.

(1) Contracts awarded using this authority shall be supported by the written justifications and approvals described in 6.303 and 6.304.

(2) For contracts awardEtd 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 shall not commence negotiations for a sole source contract, commence negotiations for a contract resulting from an unsolicited proposal, or award any Dther contract without providing for full and open competition unless the contracting officer-

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

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

(3) Obtains the approval required by 6.304.

(b) Technical and requi,-ements personnel are responsible for providing and certifying as accurate and complete necessary data to support their recommendation for otfler than full and open competition.

(c) Justifications requin•d by paragraph (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 sh~1ll only be made on an Individual basis. Whenever a justification is made and approved on a class basis, the contracting officer

,. ,, .I and approval and shall document the contract file for each contract action accordingly .

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

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

6.303-2 Content.

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

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

(2) Nature and/or description of the action being approved.

(3) A description of the s1Jpplies or services required to meet the agency's needs (including the estimated value).

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

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

(6) A description of efforts 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 reqtJired by Subpart 5.2 and, if not, which exception under 5.202 applies.

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

(8) A description of the n; arket research conducted (see Part 10) and the results or a statement of the reason market research was not conducted.

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

(i) Explanation of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition ha 1e 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 was 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 sourc9s, if any, that expressed, in writing, an interest in the acquisition.

(11) A statement of the a.;tions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services rnquired.

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

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

6.304 Approval of the }1istlflcat/on.

· (a} Except for paragraph rbJ of this section, the justification for other than full and open competition shall be approved in writing- (1} For a proposed contrlict 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 ·~stablished in agency procedures.

(2) For a proposed contrl•ct 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 descri~ed in paragraph (a)(3) or (a)(4) of this section. This authority is not delegable.

(3) For a proposed contr~ct 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 armed forces, is a general or flag officer; or

(ii) If a civilian, is serving .'n 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 wit'1 agency procedures. This authority is not delegable except in the case of the Under Secretary of Defense for Acquisition, Technology, and Logistic~;, acting as the senior procurement executive for the Department of Defense.

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

(c} A class justification for other than full and open competition shall be approved in writing in accordance with agency procedures. The approval level shall be determined by th9 estimated total value of the class.

(d} The estimated dollar ~alue of all options shall be included in determining the approval level of a justification.