Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest sustained.
Keywords: Brand Name Procurement
General Counsel P.C. Highlight: The FAR permits agencies, in appropriate circumstances, to use “brand name or equal” purchase descriptions, where the purchase description includes a statement of the salient physical, functional or performance characteristics that are necessary to render an “equal” product eligible for award.
California Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters (CAMSS) protests the terms of a request for proposals (RFP), issued by the Defense Logistics Agency (DLA), for tents, shelters and associated accessories.
The RFP was issued as part of the tailored logistics support (TLS) program. The agency intends to award multiple indefinite-delivery/indefinite-quantity (ID/IQ) contracts for the acquisition of commercial tents and shelters, along with associated accessories, for a base year with three one-year option periods. The RFP states that the agency’s requirements can be generally categorized into 12 types of shelters. In addition, the RFP provides that the scope of the contract will include accessories for these tents and structures. Finally, the RFP references seven Federal Supply Classes (FSCs) of commercial items that will be included within the scope of the contract, but specifically advises that “the scope of this contract is not limited to these FSCs.” In addition to the general description of the agency’s requirements, the RFP included two detailed lists of specific items. The first, identified as the core list, includes 249 brand name products identified by manufacturer, manufacturer’s part number and national stock number. The second list included 117 additional brand name products, also identified by manufacturer, manufacturer’s part number and national stock number; no quantities were identified for these items. However, the RFP cautions that the listed products are merely representative and not inclusive of the agency’s overall requirements.
CAMSS asserts that the solicitation fails to include specifications that will permit it to compete for the agency’s requirements. According to CAMSS, the agency is required, at a minimum, to list the salient characteristics of the brand name items included in the core list, so that manufacturers of other, comparable, items (such as CAMSS) can compete for the agency’s requirements. GAO states that the Competition in Contracting Act (CICA) expressly requires agencies to specify their needs and develop specifications in a manner designed to achieve full and open competition. To that end, solicitations are required to include specifications that permit full and open competition, and may include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency. Agencies are further instructed that they may use specifications stated in terms of function (so that a variety of products or services may qualify), performance characteristics or design requirements, depending on the nature of the requirements.
GAO continues to state that these basic requirements are echoed in FAR part 11, under which, to the maximum extent practicable, agencies must articulate their requirements in terms of functions to be performed, performance characteristics required, or essential physical characteristics. While the use of performance specifications is preferred, the FAR also permits agencies in appropriate circumstances to use “brand name or equal” purchase descriptions, where the purchase description includes a statement of the salient physical, functional or performance characteristics that are necessary to render an “equal” product eligible for award. Agencies are precluded from specifying their requirements solely in terms of a particular firm’s product unless the particular brand name, product or feature is essential to the government’s needs, and market research shows that other companies’ similar products lacking the particular feature do not meet the agency’s needs, or cannot be modified to meet the agency’s needs. Further, when procuring on a brand name only basis, agencies are required to follow documentation and approval procedures for acquiring goods or services using other than full and open competition.
Here, the RFP required prospective offerors for the ID/IQ contract to submit proposals exclusively for the exact brand name items specified in the core list, with no provision for offering alternate, “equal,” products. Although the solicitation thus amounts to a brand name only procurement, the agency has not prepared and executed the required justification and approval (J&A) for use of other than full and open competition. The agency’s actions therefore are improper. Given the terms of the current solicitation along with DLA’s failure to execute the required J&A for use of other than full and open competition, GAO sustains CAMSS’s protest.
GAO recommends that the agency prepare an adequately written solicitation that meets the CICA requirement for full and open competition. In the alternative, GAO recommends that the agency prepare and execute an appropriate J&A that sets forth the agency’s reasons for conducting its acquisition using other than full and open competition. GAO recommends that the protester be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys’ fees.