Ordering Activity – A Matter of Choice

Ordering activities have the primary responsibility to meet their agency missions. By using Schedules, ordering activities may access a wide variety of contractors. Ordering activities may place orders in a competitive environment to contractors offering the best value.

Ordering activities are encouraged to explore and understand the features available under the Schedules program and to use them to optimize their purchasing experience. This includes consideration of a small business set-aside to help agencies meet their small business goals. As with any purchase, the ordering activity is responsible for applying the regulatory and statutory requirements for which the order is placed or the BPA is established. The requiring agency shall provide the information on the applicable regulatory and statutory requirements to the Contracting Officer responsible for placing the order.

Performance-Based Acquisitions, in which requirements are stated in terms of results or outcomes, allow an ordering activity to focus on agency mission and are the preferred method of acquisition (FAR Subpart 37.6). The Performance Work Statement (PWS) or Statement of Objectives (SOO) states what is to be accomplished and allows Schedule contractors to propose various solutions to accomplish the objective. When ordering activities state the results requested, Schedule contractors are better able to offer more creative, cost-effective solutions. Refer to Section 7 where this topic is discussed in more detail.

Describing Agency Needs and Alternatives to Brand Name Constraints

It is important to strive to maintain vendor and technology neutrality to the maximum extent feasible when creating requirements and writing contract specifications. It is just as important to use performance specifications whenever possible to encourage offerors to propose innovative solutions. However, there are two significantly different circumstances recognized in the FAR in which the government’s need cannot be adequately and completely described without some reference to a particular brand name product or feature of a product.

  1. Brand Name or Equal: Using a “Brand Name or Equal” purchase description is recognized as permissive of competition because it allows offerors to propose alternatives with supporting information that demonstrates their solution’s equality. While the “Brand Name or Equal” approach is accepted as being adequately permissive of a firms' opportunity to compete for award (e.g., FAR 6.302(c)), it is nonetheless severely limiting with respect to innovative solutions:
    FAR 11.104 states “... the use of brand name or equal purchase descriptions may be advantageous under certain circumstances.” and “... 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.”
  2. Brand Name: This is not the preferred approach because it is the most restrictive with respect to industry in terms of competitive opportunities for innovative solutions is the brand name constraint. Thus, use of this approach is severely limited and requires the support of an approved limited sources justification:
    FAR 11.105 states, “agency requirements shall not be written so as to require a particular brand name, product, or feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product manufactured by another company, unless ...(t)he 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.”

However, both of these approaches limit offerors' flexibility in proposing innovative solutions to meeting agency needs. Moreover, use of each of these approaches to describing agency needs entails mandated additional requirements for the description’s contents to comply with the FAR requirements about the use of such specification constraints.

For example, if an agency needs a microprocessor, rather than issue brand name specifications for microprocessors associated with a single manufacturer, the agency should articulate a benchmark for performance or specify the requirements for applications and interoperability. Benchmarks for microprocessors can be specific for functions such as Internet content creation, office applications, or mail servers. Benchmarks may also measure the overall performance of computers.

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NUTS AND BOLTS TIP

When applicable, Limited Source Justifications (LSJs) only apply to the portion of the order that requires a brand name. Therefore, ordering activities should only prepare and post LSJs for the brand name items on the order and not the entire order.