“Salient Characteristics/ Features”

Contracting Officer Representative Quarterly MeetingDate: 02-4-2016Juan Burgos, Acquisition Liaison, ext. 2391

Considerations• OFPP Concerns• FAR Requirements• VHA Procurement Manual, Customer Reference Guide•Brand Name or Equal Example

Definition and Considerations

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Brand Name or Equal purchase descriptions: •Identify a product by its brand name and its model or part number•Permit offers for products essentially equal to the specified brand name

What is a ‘Salient Characteristic’?

A salient characteristic generally is a significant, essential physical, functional, performance, or material element of a product or service—in other words, the distinguishing characteristics of the product. Some agencies have established a definition in their agency-specific regulations, including the Department of Veterans Affairs, which defines salient characteristics as “those particular characteristics that specifically describe the essential physical and functional features of the material or service required. They are features that are identified in the specifications as a mandatory requirement that a proposed ‘equal’ product or material must possess for the bid to be considered responsive.”

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OFPP ConcernsUse of Brand Name Only Specifications

• Use of “brand name only” specifications in agency solicitations may have increased significantly in recent years

• Use of brand name only specifications limit competition and diminish the likelihood that the agency will purchase the best value product

• Add significant risk of severely limiting small business participation• Specifications should emphasize the necessary physical, functional, and

performance characteristics of a product, not brand names• Agencies should encourage their acquisition professionals to limit the use

of brand name only specifications and maximize competition

References: Office of Federal Procurement Policy Memorandum, April 11, 2005, Subject: Use of Brand Name SpecificationsOffice of Federal Procurement Policy Memorandum, April 17, 2006, Subject: Publication of Brand Name Justifications

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Applicable FAR Requirements

• FAR 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 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 performance 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 characteristics are firm requirements.

• FAR 11.105 – Items Peculiar to One ManufacturerAgency 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 --

a) (1) 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 cannot be modified to meet, the agency’s needs;(2) (i) The authority to contract without providing for full and open competition is supported by the required justifications and approvals (see 6.302-1); or(ii) The basis for not providing for maximum practicable competition is documented in the file (see 13.106-1(b)) or justified (see 13.501) when the acquisition is awarded using simplified acquisition procedures.(3) The documentation or justification is posted for acquisitions over $25,000. (See 5.102(a)(6).)(b) For multiple award schedule orders, see 8.405-6.(c) For orders under indefinite-quantity contracts, see 16.505(a)(4).

• FAR 6.302-1(c) - Application for brand name descriptionsAn acquisition that uses a brand name description … to specify a particular brand name, product, or feature 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 justified and approved.

Brand-name or equal 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.

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Proposal Submittal and Evaluation

FAR 52.211-6 Brand Name or Equal(a) If an item in this solicitation is identified as “brand name or equal”, the purchase description reflects the

characteristics and level of quality that will satisfy the Government’s needs. The salient physical, functional, or performance characteristics that “equal” products must meet are specified in the solicitation.

(b) To be considered for award, offers of “equal” products, including “equal” products of the brand name manufacturer, must—

(1) Meet the salient physical, functional, or performance characteristic 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 illustrations, drawings, or a clear reference to previously furnished descriptive data or information available to the Contracting Officer; and

(4) Clearly describe any modification the offeror plans to make in a product to make it conform to the solicitation requirements. Mark any descriptive material to clearly show the modification.

(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 obtaining any information not identified in the offer.

(d) Unless the offeror clearly indicates in its offer that the product being offered is an “equal” product, the offeror shall provide the brand name product referenced in the solicitation.

Reference: http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/11.htm#P5_1626

Market Research•1.2. The responsibility for conducting market research falls mainly on the customer; however, the CO and customer share responsibility for maximizing competition and ensuring that the Government’s needs are satisfied in the most effective, economical, and timely manner; thus, to the extent that market research contributes toward meeting these objectives, there clearly is a shared responsibility for performing productive market research. It is imperative to understand that it is fine for the customers to have discussions with vendors to obtain market research but the customer should avoid any conversations that would give the vendor the impression they are going to get the business.•1.3. There are a number of techniques available for conducting market research. These are:•1.3.1. Reviewing the results of similar market research performed to meet similar or identical requirements.•1.3.2. Querying Government databases that provide information relevant to agency acquisitions. •1.3.3. Contacting individuals in Government and industry regarding market capabilities to meet requirements.

Reference: http://vaww.pclo.infoshare.va.gov/PCLO/PMWeb/Vol3Chapter2-MarketResearch.aspx

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Salient Characteristics

• What are Salient Characteristics? – Salient means: prominent, conspicuous, or striking – A “salient” feature or trait of an item– The “or equal part” of a BNE purchase description

• Bandage procurement example – Baseline brand name:

• Salient characteristics in the purchase description might specify the following firm requirements:

– Flexible, sterile adhesive bandages– Safety center pads– Individually wrapped – Between 1” x 3” and ¾” x 3”

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Brand Name or Equal Example

• A brand name or equal purchase description for bandages specifying the previous baseline brand name and salient characteristics would permit offers of the following products:

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Forms

• Attachment 2 Market Research Worksheet for Customers• Attachment 3 Equipment and Supply Procurements

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Microsoft Word 97 - 2003 Document

Microsoft Word Document

Thank You for your participation!

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