Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, July 24, 2013, 6:44pm EST
Desktop Alert, Inc., B-408196, July 22, 2013
It is natural for individual consumers to have their favorite brands. Once you find something you like, it can be uncomfortable, and sometimes even risky, to take a chance on something different. As the world’s largest consumer, the Federal Government is not immune to developing loyalty towards particular brands of the products it purchases. However, unlike the average individual consumer, the Federal Government is not generally free to purchase goods and services however it pleases. Rather, it is encumbered by rules which make loyalty to one particular brand a little more difficult to achieve.
A recent bid protest decision issued by GAO illustrates this difficulty. In Desktop Alert, Inc., the Defense Contract Management Agency (DCMA) issued a solicitation for emergency mass notification software, products and services. In the predecessor contract, DCMA used a product known as the AtHoc Mass Notification System, with which apparently DCMA developed a certain comfort level. Wanting to continue to use the software it was familiar with, DCMA issued the current solicitation under the Federal Supply Schedule (FSS) procedures specifically seeking the AtHoc software, along with upgrades, training, and other related services. The solicitation restricted the competition to GSA FSS contract holders authorized as AtHoc resellers.
The protester, Desktop Alert, challenged the terms of the solicitation, arguing that by only accepting the AtHoc software, the solicitation was unduly restrictive of competition. The protester argued that DCMA failed to state its minimum requirements or consider mass notification systems offered by other vendors. GAO agreed with Desktop Alert, and sustained the protest.
Generally, orders made under the FSS are considered to satisfy the requirement for a full and open competition in federal government contracting. However, when an agency restricts competition to a specific brand name, the FAR requires that the contracting officer provide a written justification describing the reason the particular brand name is essential to the government’s requirements. The contracting officer must also establish that market research indicates that similar products do not meet, or cannot be modified to meet, the government’s requirements.
GAO will review an agency’s brand name justification to ensure it is reasonable. Here, GAO determined that DCMA did not have a reasonable justification to limit the solicitation to the AtHoc brand. Each of the arguments advanced by DCMA to justify limiting the solicitation to the AdHoc software was rejected by GAO. The two main issues with the agency’s justification were that (1) it failed to provide a detailed description of its requirements, identifying the unique features of the AtHoc software that were particular to those requirements; and (2) the record showed that the agency failed to conduct the required market research into whether another company’s similar product would meet, or could be made to meet, the agency’s needs. As such, DCMA’s justification to limit the procurement on a brand name basis was inadequate.
The key takeaway from this protest is that without adequate justification, brand loyalty is not allowed for federal agencies. Federal Supply Schedule solicitations restricted on a brand name basis are open to pre-award protests by vendors offering products similar to the preferred brand.