J.  Clarify Thresholds, Cross-References, and Documentation Requirements

Comment: One respondent recommended that FAR 5.102(a)(6) be revised to clarify whether the posting requirement applies when the acquisition in total exceeds $25,000 (regardless of the amount attributed to brand-name specifications) or only when the brand-name component of it exceeds $25,000.

The respondent also recommended that FAR 5.102(a)(6) should have a reference to FAR 8.405-6(d) which requires documentation and justification for restricting competition when ordering under the FSS. The respondent stated that FAR 5.102(a)(6) requires the contracting officer to post the documentation required by FAR 13.106-1(b) when an acquisition contains brand-name specifications. However, there are no documentation requirements at FAR 13.106-1(b).

Response: No change is required at FAR 5.102(a)(6) to clarify the thresholds or to reference to FAR 8.405-6(d). The justification and posting requirements for orders containing brand-name specifications placed under FSS contracts are adequately covered under FAR 8.405-6(b).

The Councils have revised FAR 6.302-1(c), 13.106-1(b), 8.405-6(b)(4), and 13.501(a) to address requirements for documentation, justification, and approval for the portion of the acquisition which is brand-name.

There are adequate documentation requirements at FAR 13.106-1(b). For purchases not exceeding the simplified acquisition threshold, FAR 13.106-1(b) requires that the contracting officer document the circumstances (e.g., brand-name) when it is determined that only one source is reasonably available. For sole-source (including brand-name) acquisitions of commercial items in excess of the simplified acquisition threshold, FAR 13.106-1(b) provides the cross reference to FAR 13.501(a) for the documentation.

Comment: One respondent indicated that FAR 8.405-1(c)(2) seems to contradict the $25,000 posting threshold because the title of FAR 8.405-1(c) is "Orders exceeding the micro-purchase threshold but not exceeding the maximum order threshold." The respondent believed that the documentation or justification requirements for FSS orders containing brand-name specifications apply to any such order greater than $3,000, when in fact, they apply only to orders exceeding $25,000.

Response: FAR 8.405-1(c) was revised by FAR Case 2007-012. As a result of the case, FAR 8.405-1(c)(2) is now a separate paragraph at FAR 8.405-1(e), and the documentation or justification and posting requirements for FSS orders at the applicable thresholds are located at FAR 8.405-6(b). The documentation requirement starts at $3,000; the posting requirement starts at $25,000.