DFARS CHANGE NOTICE 19991014

DEPARTMENT OF DEFENSE

48 CFR Parts 211, 214, and 252

[DFARS Case 99-D023]

Defense Federal Acquisition Regulation Supplement; Brand Name or Equal Purchase Descriptions

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove policy pertaining to use of brand name purchase descriptions. Policy on this subject has been incorporated into the Federal

Acquisition Regulation (FAR).

EFFECTIVE DATE: October 14, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Melissa Rider, Defense Acquisition

Regulations Council, PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-4245; telefax (703) 602-0350. Please cite DFARS Case 99-D023.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule removes the policy at DFARS 211.207-1 and 211.270-2, and the solicitation provision at DFARS 252.211-7003, pertaining to use of ``brand name or equal'' purchase

descriptions. Similar policy on this subject was incorporated into FAR on August 16, 1999 (64 FR 32741, June 17, 1999; Federal Acquisition Circular 97-12, Item II).

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577 and publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 99-D023.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the rule does not impose any 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 211, 214, and 252

Government procurement. Michele P. Peterson Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR parts 211, 214, and 252 are amended as follows:

1. The authority citation for 48 CFR parts 211, 214, and 252 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

Brand Name or Equal Purchase Descriptions

DFARS Case 99-D023

Final Rule

PART 211-DESCRIBING AGENCY NEEDS

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SUBPART 211.2-USING AND MAINTAINING REQUIREMENTS DOCUMENTS

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211.270 Brand name or equal purchase descriptions. [Reserved.]

211.270-1 Policy.

When a "brand name or equal" purchase description is used-

(a) The purchase description-

(1) Should include a complete common generic identification of the item.

(2) Should reference all known acceptable brand name products, to include-

(i) Name of manufacturer, producer, or distributor of each brand name product referenced (and address if not well known); and

(ii) Model, make, or catalog number for each, and identity of the commercial catalog in which it appears.

(3) May, if necessary to adequately describe an item, use a commercial catalog description or an extract from the catalog. Ensure that a copy of each catalog referenced (except parts catalogs) is available at the contracting office for review by offerors.

(4) Should give prospective offerors the opportunity to offer products other than those specifically referenced by brand name, as long as they meet the needs of the Government in essentially the same manner as the brand name product.

(5) Must identify those salient physical, functional, or other characteristics which are essential to the needs of the Government.

(b) The solicitation-

(1) Shall be at or below the simplified acquisition threshold in FAR Part 13.

(2) May require bid samples for "or equal" offers, but not for "brand name" offers.

(3) Must provide for full consideration and evaluation of "or equal" offers against the salient characteristic specified in the purchase description. Do not reject offers for minor differences in design, construction, or features which do not affect the suitability of the product for its intended use.

(4) Must include the following immediately after the item description-

Offering: Manufacturer's Name__________Brand________Model or Part No._______

(c) The contract shall-

(1) Not exceed the simplified acquisition threshold in FAR Part 13.

(2) Identify, or incorporate by reference an identification of the specific products the contractor is to furnish. Include any brand name, make or model number, descriptive material, and any modifications of brand name products specified in the offer.

211.270-2 Solicitation provision.

(a) When a brand name or equal purchase description is included in a solicitation at or below the simplified acquisition threshold in FAR Part 13, use the provision at 252.211-7003, Brand Name or Equal.

(b) When component parts of an end item are described by brand name or equal purchase descriptions and application of the provision at 252.211-7003 to some or all of the components is impracticable, either do not use the provision or limit its application to specified components.

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PART 214-SEALED BIDDING

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SUBPART 214.2-SOLICITATION OF BIDS

214.202 General rules for solicitation of bids.

214.202-5 Descriptive literature.

(d) Requirements of invitation for bids. When brand name or equal purchase descriptions are used, use of the provision at 252.211-7003 [FAR 52.211-6], Brand Name or Equal, satisfies this requirement.

* * * * *

PART 252-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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SUBPART 252.2-TEXT OF PROVISIONS AND CLAUSES

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252.211-7003 Brand Name or Equal [Reserved].

As prescribed in 211.270-2, use the following provision:

BRAND NAME OR EQUAL (DEC 1991)

(a) If items in this solicitation are identified as "brand name or equal," the term is intended to be descriptive not restrictive. The "brand name or equal" description is used to portray the characteristics and level of quality that will satisfy the Government's needs. The salient physical, functional, and other characteristics which "equal" products must meet are specified in the solicitation.

(b) To be considered for award, offers of "equal" products, including products (other than the "brand name" item) of the brand name manufacturer, must-

(1) Meet the salient physical, functional, and other characteristics 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 cuts, 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 securing any information not identified in the offer and reasonably available.

(d) Unless the Offeror clearly indicates in the offer that the product being offered is an "equal" product, the Contracting Officer will consider the offer as offering a brand name product referenced in the solicitation.

(End of provision)

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DEPARTMENT OF DEFENSE

48 CFR Part 209

[DFARS Case 98-D304]

Defense Federal Acquisition Regulation Supplement; Congressional Medal of Honor

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement is adopting as final, without change, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS). The rule implements Section 8118 of the National Defense Appropriations Act for Fiscal Year 1999. Section 8118 prohibits the award of a contract to, extension of a contract with, or approval of the award of a subcontract to any entity that, within the past 15 years, has been convicted of the unlawful manufacture or sale of the Congressional Medal of Honor.

EFFECTIVE DATE: October 14, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition

Regulations Council, PDUSD (A&T) DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0288; telefax (703) 602-0350. Please cite DFARS Case 98-D304.

SUPPLEMENTARY INFORMATION:

A. Background

DoD published an interim rule at 64 FR 31732 on June 14, 1999, to implement Section 8118 of the National Defense Appropriations Act for Fiscal Year 1999 (Public Law 105-262). DoD received no public comments on the interim rule. The interim rule is converted to a final rule

without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

DoD certifies that this final rule will not 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 applies only to entities that have been convicted of the unlawful manufacture or sale of the Congressional Medal of Honor.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the rule does not impose any 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 Part 209

Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR part 209, which was published at 64 FR 31732 on June 14, 1999, is adopted as a final rule without change.