Events/Tradeshows

CONDUCTING MARKET RESEARCH

Product Comparability

A Federal agency's contracting official is responsible for determining whether an FPI product is comparable to a product available from the private sector which has been determined to best meet the agency's needs.

Determining comparability is a unilateral decision made at the discretion of the agency’s contracting official. In determining comparability, the term “comparable” is defined using its common dictionary meaning, “having sufficient features in common with something else to afford comparison.” This definition is consistent with the use of the term throughout the Federal Acquisition Regulation.

Agency's Use of a Prime/Subcontractor

FAR 8.607, Performance as a subcontractor provides that agencies shall not require a contractor or subcontractor to consider or use FPI products or services in performance of a contract. However, while contractors/subcontractors are precluded from having to do so, the Federal Acquisition Regulation (FAR) specifies acquisition actions for DoD and civilian agencies, which are subject to the two-step comparability determination process supported by the Department of Defense Authorization Acts of FY 2002 and FY2003, and for civilian agencies, Section 637 of the Consolidated Appropriations Act of 2005, modifying FAR 8.6 (11/30/06). To this end, Federal agencies are responsible for conducting and documenting their comparability determinations, and for complying with FAR 8.6.

DEPARTMENT of DEFENSE (DoD) BUYING ACTIVITIES

When purchasing a product listed in FPI’s Schedule of Products, DoD buying activities are subject to the provisions of 10 U.S.C. 2410n and its implementing regulations set forth in the Defense Federal Acquisition Regulation Supplement (DFARS), at Parts 208.601-70, 208.602, 208.606, 208.670, 208.671, 219.502-70, 219.508, 252.219-70XX and 252.219-70YY.

Under these statutory and regulatory provisions, DoD buyers must conduct market research to determine whether an FPI product is comparable to products available from the private sector which best meet the Department’s needs in terms of price, quality and time of delivery. Determining comparability is a unilateral decision made at the discretion of the agency’s contracting official.

Section 827 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; effective 3/31/08) requires DoD contracting officers to immediately use competitive procedures when procuring products for which UNICOR has a market share greater than 5% of the DoD market. DoD Decision Path Procedures

The FSCs which currently meet this criterion are:

  • FSC 6532 Hospital and Surgical Clothing
  • FSC 7230 Draperies, Awnings, and Shades
  • FSC 8420 Underwear and Nightwear, Men's
  • FSC 8470 Armor, Personal

If the DoD determines that the FPI product is comparable, and not on the 5% FSC List.

  • FPI’s mandatory source applies, unless
  • the DoD buying activity receives a waiver, using the procedures outlined in this section.

If the DoD contracting official determines that the FPI product is
not comparable:

  • competitive procedures are to be used to acquire the product,
  • a waiver is not required, and an
  • offer must be solicited from FPI during competitive process.

 

CIVILIAN AGENCY BUYING ACTIVITIES

Section 637 of the Consolidated Appropriations Act, 2005, modifying FAR 8.6 (1/30/06) applies. Civilian Decision Path Procedures

  • Civilian agencies will be required to conduct market research to determine whether an FPI product is comparable to products available from the private sector which best meet the agency’s needs in terms of price, quality, and time of delivery. Determining comparability is a unilateral decision made at the discretion of the agency’s contracting official.
  • If a contracting official determines that FPI’s product is comparable, then mandatory source procedures will remain applicable. In other words, the agency must purchase the item from FPI, unless it receives a waiver to procure from another source.
  • If FPI’s product is not found to be comparable by the agency’s contracting official, the purchasing agency shall implement competitive procedures, and UNICOR must be given an opportunity to submit a competitive offer.