Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, January 10, 2014, 4:01pm EST
Logistics Network, Inc., B-408995, January 6, 2014
Because the federal procurement system is designed to promote competition, it is difficult for the Federal Government to maintain loyalty to any particular brand. Thus, even in cases where an agency has used a certain brand with good results, later procurements for that same product or service will often provide offerors the ability to propose alternative brands. In these cases the solicitation will seek “brand name or equal”—where the agency lists the specifications/details for the brand it likes, but allows offerors to propose other off-brand products that have the same characteristics.
This was the case in Logistics Network, Inc., which was recently decided by the GAO. Logistics Network involved a solicitation issued by the Department of Veterans Affairs for modular furniture at one of their medical centers. The statement of work included with the solicitation provided the brand name, model number, and salient characteristics for each item of furniture that was being procured. The solicitation was being conducted on a “brand name or equal” basis, and the offerors were given specific instructions to follow if “equal” products were being offered.
The solicitation instructed offerors to provide exactly what products were being offered, including the make, model and description of each item. Offerors were also required to include product literature or brochures for any items submitted as “equal” to the brand name items. The agency determined that the protester’s proposal failed to meet the requirements for the proposal of “equal” items, and thus it was rejected as non-responsive to the solicitation. The protester challenged the rejection of its proposal with GAO.
Under a “brand name or equal” procurement, such as this, it is important that agencies are able to tell if “equal” products proposed by offerors actually meet the product requirements specified in the solicitation. Thus, GAO has consistently held that when offering “equal” products, offerors have to provide enough descriptive detail regarding the offered product so that the agency can make a proper assessment of its equality to the brand name. Where an offeror fails to provide adequate documentation establishing the offered product meets the solicitation requirements, it is proper for an agency to reject the proposal.
In this case, the protester submitted an offer proposing “equal” items, and included product literature for each proposed item. However, the literature provided with the protester’s proposal consisted only of short descriptions taken directly from the statement of work, and some even included pictures of the brand name products (as opposed to the products the protester was actually offering). The agency argued, and GAO agreed, that the descriptive detail provided with the protester’s proposal provide inadequate information about the products being offered. There was no way to determine if the offered products actually met the requirements, and as a result GAO denied the protest.
While it is difficult for an agency to simply require a specific brand name, it is certainly proper for an agency to use a specific brand’s characteristics as the baseline for its procurement. Thus, it is important for offerors proposing to supply an alternative product to firmly establish that its offered product meets all of the salient characteristics of the preferred brand name. A contractor that fails to do so runs the risk of having its proposal rejected as nonresponsive to the solicitation.