§ 3510.004-70 - Brand name or equal purchase descriptions.

(a) Purchase descriptions which contain references to one or more brand name products followed by the words “or equal” may be used only under the conditions indicated in FAR 10.004(b) (2) and (3) and shall be in accordance with this subsection. The office initiating the “brand name or equal” purchase request is responsible for documenting to the contracting officer's satisfaction that the conditions for its use are valid. Where feasible, all known acceptable brand name products should be referenced.

(b) The words “or equal” should not be added when the contracting officer has determined, with the concurrence of the General Counsel and the signed approval of the cognizant HCA, that only a particular product meets the essential requirements of the Commission.

(c) Brand name or equal purchase descriptions shall include, in addition to those characteristics set forth in FAR 10.004(b)(1) to the extent they are applicable, the following type of information to clearly identify the specific item named by brand(s) and its salient characteristics:

(1) Complete common generic identification of the item required;

(2) Applicable model, make, or catalog number for each brand name product referenced, and identity, if applicable, of the commercial catalog in which it appears;

(3) Name of manufacturer, producer, or distributor of each brand name product reference (and address if company is not well known); and

(4) All salient characteristics of the brand name product or products which have been determined by the initiating office, with the concurrence of the contracting officer, to be essential to meet the Commission's minimum physical and/or functional requirements. The purchase description shall state or otherwise indicate that the salient characteristics are mandatory features which proposed equal products must possess in order to be considered responsive.

(d) Except as provided in paragraph (e) of this subsection, when a brand name or equal purchase description is included in a solicitation, the following shall be inserted after each item so described in the solicitation schedule for completion by the offeror:

Note:

Offerors are cautioned and advised to read provision 3552.210-70, Brand Name Products or Equal, located elsewhere in this solicitation, prior to completing the above. As indicated therein, offerors proposing to furnish an “equal” product must furnish all descriptive material necessary to determine the acceptability of such product.

(e) Where component parts of an end item are described in the solicitation by a brand name or equal purchase description and the contracting officer determines that application of the provision at 3552.210-70 to such component parts would be impracticable, the requirements of paragraph (d) of this subsection and 3510.011(h) shall not apply with respect to such component parts. However, if the provision is included in the solicitation for other reasons, there shall also be included in the solicitation a statement to identify either the component parts (described by brand name or equal purchase descriptions) to which the provision applies or those to which it does not apply. Depending upon whether the former or latter alternative is used, the statement should be substantially as follows:

This paragraph (e) 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 the end item.

(f) When considered appropriate by the contracting officer, solicitations incorporating brand name or equal purchase descriptions may require the submission of offer samples in the case of offerors proposing to furnish “equal” products; such samples shall not be required from offerors who offer brand name products referenced in purchase descriptions.

(g) Offers proposing to furnish products other than those specifically referenced by brand name shall be considered for award when the contracting officer determines under provision 3552.210-70 that the offered products meet the salient characteristics identified in the purchase description. Offers shall not be rejected as nonresponsive for failure of the product to equal a characteristic of a brand name product if such characteristic was not specified as a salient characteristic in the brand name or equal purchase description. However, if it is clearly established that the unspecified characteristic is essential to the intended use, the solicitation is defective and no award shall be made. In such cases, the contracting officer should resolicit the requirements, using a purchase description that sets forth all salient characteristics.

(h) The brand name or equal policies and procedures in this subsection may be used in small purchase acquisitions to the extent that they are applicable and practicable.

(i) This subsection is not applicable to construction contracts since the use of equal equipment, materials, articles, or processes are covered by FAR clause 52.236-5, Material and Workmanship.