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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: May 5, 2005

SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Use of Brand Name Specifications

SOURCE: Federal Register, May 5, 2005, Vol. 70, No. 86, page 23804

AGENCIES: Department of Defense (DOD)

ACTION: Final Rule

SYNOPSIS: This final rule adds instructions in DOD’s Procedures, Guidance, and Information (PGI) on the implementation of the Office of Management and Budget’s (OMB’s) April 11, 2005, memorandum restricting the use of brand name specifications.

EDITOR'S NOTE: For more on OMB’s memorandum that is being implemented by this final rule, see the April 15, 2005, FEDERAL CONTRACTS DISPATCHOffice of Management and Budget (OMB); Use of Brand Name Specifications.”

On February 11, 2003, DOD announced plans for conducting a "major transformation" of the DFARS (see the February 11, 2003, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS) Transformation"). The objective of the DFARS transformation is to improve the efficiency and effectiveness of the acquisition process while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DOD-wide policies, delegations of Federal Acquisition Regulation (FAR) authorities, deviations from FAR requirements, and policies and procedures that have a significant effect beyond the internal operating procedures of DOD or a significant cost or administrative impact on contractors or offerors. All mandatory and non-mandatory internal DOD procedures, non-mandatory guidance, and supplemental information will be contained in the DFARS companion document, the Procedures, Guidance, and Information (PGI), which is available at http://www.acq.osd.mil/dpap/dars/pgi/index.htm.

Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.

For more on the PGI, see the November 1, 2004, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Procedures, Guidance, and Information."

EFFECTIVE DATE: May 5, 2005.

FOR FURTHER INFORMATION CONTACT: Angelena Moy, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; 703-602-1302; fax: 703-602-0350.

SUPPLEMENTARY INFORMATION: Federal Acquisition Regulation (FAR) 11.105, Items Peculiar to One Manufacturer, states, “Agency requirements shall not 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 manufactured by another company, unless the particular brand name, 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 can not be modified to meet, the agency's needs.”

On April 11, 2005, David Safavian, Office of Federal Procurement Policy (OFPP) Administrator, and Karen Evans, Office of Electronic Government and Information Technology Administrator, issued a joint memorandum to chief acquisition officers (CAOs), senior procurement executives (SPEs), and chief information officers (CIOs) “requesting that agencies take steps to mitigate brand name usage. As a general rule, contract specifications should emphasize the necessary physical, functional, and performance characteristics of a product, not brand names. In cases where the use of a brand name associated with a single manufacturer is warranted, the FAR currently requires a written justification. Effective immediately, we are asking agencies to publicize the justification with the contract solicitation when the solicitation is posted on the Federal Business Opportunities website (http://www.fedbizopps.gov). If publication of the justification is inappropriate because of national security, trade secrets, or similar concerns, agencies should provide a copy of the justification to the Office of Federal Procurement Policy...this guidance applies to all acquisitions, including simplified acquisitions, GSA (General Services Administration) purchases, and sole source procurements.”

This final rule amends the DFARS by adding DFARS 211.105, Items Peculiar to One Manufacturer, which states, “Follow the publication requirements at PGI 211.105.”

PGI 211.105, Items Peculiar to One Manufacturer, is added. It states:

      “To provide for maximum competition, solicitations should limit the use of brand name specifications. As a general rule, contract specifications should emphasize the necessary physical, functional, and performance characteristics of a product -- not brand names.
      “Agencies must document the rationale for use of brand name specifications (see FAR 11.105(b) and (c) and [FAR] 6.302-1(c), [Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements]). When the solicitation is posted on the Federal Business Opportunities website (www.fedbizopps.gov), include the rationale in paragraph (c)(14) of the synopsis format required by FAR 5.207 [Preparation and Transmittal of Synopses](see OFPP memo dated April 11, 2005).
      “If publication of the justification is inappropriate because of national security, trade secrets, or other matters of a sensitive nature, provide a copy of the justification to --
Office of Federal Procurement Policy
725 17th Street, NW
Washington, DC 20503”

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953.

Copyright 2005 by Panoptic Enterprises. All Rights Reserved.

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