Decided: December 8, 2021
Agency: Department of Agriculture
Disposition: Protest Sustained
Keywords: Brand Name or Equal
Brand-name requirements typically violate open competition. As GAO pointed out here, an agency can only use a brand-name justification, if certain requirements are met. Namely, the particular brand-name product must be essential to the Government’s requirements and market research much indicate that other companies’ similar products do not meet, or cannot be modified to meet, the agency’s needs. This specific brand-name justification is particularly interesting, because the majority of government contractors’ IT default to Microsoft software products. If you are involved in a bid with a brand-name justification, you may have similar grounds for a protest. GCPC can help you evaluate the merits of your case and navigate the bid protest process.
Summary of Facts
Westwind Computer Products, Inc. protests the terms of request for quotations (“RFQ”) No. 12314421Q0078, issued by the United States Department of Agriculture (“USDA”) in anticipation of a task order. The solicitation sought quotations for enterprise business solutions licenses and software assurance to support the agency’s enterprise business requirements. The RFQ specified that vendors are to propose only Microsoft products, noting that “USDA has standardized on Microsoft Office, email and cloud and has been using these tools for over 20 years.” The solicitation also required that the “software provided must support the existing email system, business applications (word processing, spreadsheets, and slide presentations, etc.) and agency applications without the need for programming modifications.” Prior to issuing the new solicitation, the USDA issued a brand-name justification pursuant to FAR section 16.505(a)(4). The justification noted that “Microsoft products are essential to the government’s need to provide software and security support necessary to meet operational, mission, Executive and Legislative requirements.” The agency issued the undated solicitation on August 24, with a closing date of August 31. Westwind filed this protest.
Basis of Protest
Westwind argues the RFQ’s limitation of sources on a brand-name basis to vendors providing only Microsoft Enterprise software as unduly restrictive of competition. Westwind also argues that the USDA’s brand-name justification does not comply with the FAR requirement that brand-name justifications used in task order procurements must be supported by market research indicating that other companies’ similar products, or products lacking a particular feature, do not meet, or cannot be modified to meet, the agency’s needs.
GAO noted that the FAR requires contracting officers to justify restricting consideration to an item peculiar to one manufacturer, known as a brand-name product. GAO explained that an agency cannot use a brand-name justification unless two conditions are met: (1) “the particular brand-name, product, or feature is essential to the Government’s requirements”; and (2) “market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs.”
Here, USDA’s brand-name justification describes the extent of the agency’s reliance on Microsoft systems, nothing that “96% of USDA systems run Windows operating systems.” USDA’s brand-name justification also notes that “market research has determined that standard industry practices support a timeline for implementation and transition to other products that would require at least three years of effort in a normal operational environment before completely meeting the agency’s needs.” The justification also notes the difficulty of migrating all the data, concluding that “at this time no other company’s product can meet the agency’s need to meet USDA’s performance and risk requirements.” Alternatively, the justification notes that USDA is mandated to meet cybersecurity objectives and that that Microsoft products would “enable USDA to timely meet these [cybersecurity] requirements.”
While GAO found that USDA satisfied the first criteria for justifying use of a brand name, it failed to meet the second criteria. GAO noted that “the justification makes no representations about the ability of similar products to meet agency needs.” Instead, GAO found that the justification simply concludes that, based on market research, standard industry practices support a timeline for implementation and transition of any non-Microsoft products of at least three years in a normal operational environment.
Westwind argues that the USDA’s justification is unreasonable because, although the market research may indicate inconvenience, it does not indicate that any other companies’ software cannot meet the agency’s needs. GAO agreed, finding that “nothing in the brand-name justification states that the product or services USDA requires are offered only by Microsoft or that other companies’ similar products, or products lacking a particular feature, do not meet, or cannot be modified to meet, the agency’s needs.” GAO further held that the justification actually suggests otherwise, since the it indicated that the agency “will conduct a subsequent competition without [a] brand-name limitation.” GAO also concluded that the justification did not address the FAR requirement that a justification specify the “particular feature” of Microsoft that distinguishes it from “other companies’ similar products.”
Thus, GAO determined the agency did not mett the FAR section 16.505(a)(4)(i) requirements for justifying a brand-name restriction and sustained the protest.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.