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Cool FAR Loophole – Use of a J&A (Justification and Approval)



During Monday Roundtables recently the issue came up about FedBid – now Unison Marketplace and federal agencies sometimes use for commoditized products. I want to quickly add to the comments made during the session… Like I said, I am not a fan of reverse auctions because the are a race to the bottom price and that is what Unison Marketplace is. The problem is, some contracting officers are mandated (or think they are) to use this Unison Marketplace or FSSI first which means all other vehicles GSA, BPA, your own portal are going to be ignored. In my Sole Source Contract Justification and Approvals briefing I discussed a very cool FAR loophole that one of the SAMradar members discovered and use all the time and it can be used in Unison Marketplace too…



What is this very COOL FAR loophole?


Watch your SAMradar/SAM.bid for SAM.gov Opportunities


If… the RFQ/RFP specifies a brand or exact OEM (Original Equipment Manufacturer) product (ie. HP M274n Toner Cartridge) and DOES NOT have an accompanying SIGNED J&A (Justification and Approval) document attached YOU CAN provide, according to https://www.acquisition.gov/far/52.211-6, a Brand Name or Equal. Remember, the J&A must be signed (we have seen these shenanigans before)


ACTION ITEM: Look for the signed J&A


If NO:

1) Contact your supplier (not the OEM) who provides the competitive product and

a. Let them know you want to break a competitor’s foothold

b. Ask for a discount

2) Assemble the specs that show your product is Equal to the Brand Name

3) Submit your bid and include the specs and cc the CO via email with the information

4) Follow-up with the CO

a. Verify they received the bid

b. Let them know that you got a really great price

c. Ask them if they want to establish a BPA for future similar purchases

5) Monitor your competitors in SAMradar and if you lost, you will know the price. If the price was higher than your bid - you can protest this award!


If YES:

The only thing you can do is create a quick quote and throw your best price at it. Just know that you will likely lose to the VAR (Value Added Reseller) because they have likely secured the best price from the manufacturer. Your best shot is most likely the VAR doesn’t respond or makes a mistake on the bid which is not likely but you do this just in case the VAR doesn’t respond.


Like I say to all SAMradar members - you should always reach out to the CO to see if you can steer the next one away from the OEM. SAMradar is showing you the buyer contact info so you might as well ask! I can promise you this: If you don’t ask, you won’t get it!


SAMradar members have used this process to win millions using this loophole in the system! Talk this over with your Dedicated Federal Advisor as well as in the Monday Roundtables... This has the potential to give you the Unfair Advantage!


For training on J&A’s visit: https://govbrief.us/course/sole-source-contract-justification-approvals-ja/


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