1910.004-70 Brand name products or equal.
1910.004-71 Limits on the use of brand name or equal purchase descriptions.
1910.004-72 Solicitations, brand name or equal descriptions.
1910.004-73 Offer evaluation and award, brand name or equal descriptions.
1910.004-74 Procedure for negotiated procurements and small purchases.
1910.011 Solicitation provisions and contract clauses.
Authority: 40 U.S.C. 486(c).
Source: 50 FR 13204, Apr. 3, 1985, unless otherwise noted.
(a) General. Consistent with the policy stated in FAR 10.004(a)(2), the Broadcasting Board of Governors acquisitions will generally not be based on a specifically identified product or feature(s) thereof. However, under unusual circumstances such an approach may be used as described below.
(b) Citing brand name products. Brand name or equal purchase descriptions shall cite all brand name products known to be acceptable and of current manufacture. If the use of a brand name or equal purchase description results in the purchase of an acceptable brand name product which was not listed as an “equal” product, a reference to that brand name product should be included in the purchase description for later acquisitions. If a brand name product is no longer applicable, the reference thereto shall be deleted from subsequent purchase description.
(c) Specifying essential characteristics. (1) It is imperative that brand name or equal purchase descriptions specify each physical or functional characteristic of the product that is essential to the intended use. Failure to do so may result in a defective solicitation and the necessity to resolicit the requirements. (See 1910.004–73.) Care must be taken to avoid specifying characteristics that cannot be shown to materially affect the intended end use and which unnecessarily restrict competition.
(2) When describing essential characteristics, permissible tolerances should be indicated. Avoid specifying a characteristic (e.g., a specific dimension) of a brand name product unless it is essential to the Government's need. The contracting officer must be able to justify the requirement.
(a) General. The use of brand name or equal purchase descriptions in solicitations is intended to promote competition by encouraging the offering of products that are equal in all material respects to brand name products cited in such descriptions. Identification by brand name does not indicate a preference for the products mentioned but indicates the quality and characteristics of products that will meet the Government's needs. Where a component of an item is described in the solicitation by a brand name or equal purchase description and the contracting officer determines that application of the provision of 1952.210–70 would be impracticable, the requirement to include the entry described in 1910.004–72(a) shall not apply. If the provision is included in the solicitation for other reasons, there also shall be included in the solicitation a statement to identify either the component parts (described by brand name or equal descriptions) to which the provision applies or those to which it does not apply. This also applies to accessories related to an end item where a brand name or equal purchase description of the accessories is a part of the description of an end item. Brand name or equal descriptions shall not be used to acquire a particular product under the guise of competitive acquisition to the exclusion of other products that would meet the actual needs.
(b) In small purchases within the open market limitations, brand name policies and procedures shall be applicable to the extent practicable.
(c) Approval required. A brand name or equal purchase description shall not be used unless it has been approved at one level above the contracting officer.
(a) An entry substantially as follows shall be prominently inserted in the item listing after each item or component part of an end item to which a brand name or equal purchase description applies.
(b) Because bidders frequently overlook the requirements of the clause at 1952.210–70 “Brand Name or Equal,” the following note shall be inserted in the item listing after each brand name or equal item (or component part), or at the bottom of each page, listing several such items, or in a manner that may otherwise direct the offeror's attention to this clause.
Offerors offering other than brand name items identified herein should furnish with their offers adequate information to ensure that a determination can be made as to equality of the product(s) offered (see the provision “Brand Name or Equal” set forth in 1952.210–70 of the solicitation).
(c) If offeror samples are requested for brand name or equal acquisitions, the above notice shall not be included in the solicitation.
An offer may not be rejected for failure of the offered product to equal a characteristic of a brand name product if it was not specified in the brand name or equal description. However, if it is clearly established that the unspecified characteristic is essential to the intended end use, the solicitation is defective and no award may be made. In such cases, the contracting officer should resolicit the requirements, using a purchase description that sets forth the essential characteristics.
(a) The policies and procedures prescribed for sealed bid procurements shall be generally applicable to negotiated procurements.
(b) The clause set forth at 1952.210–70 may be adapted for use in negotiated procurements. If use of the clause is not practicable (as may be the case in unusual and compelling urgency purchases), suppliers shall be suitably informed that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that the offered products meet fully the salient characteristics requirements of the solicitation.
(c) In small purchases within open-market limitations, such policies and procedures shall be applicable to the extent practicable.
The Contracting Officer shall include the provision at 1952.210–70, Brand Name or Equal, in solicitations for which brand name or equal purchase is used.