Solicitations for brand name or equal products are commonly used by contracting officers to ensure that the products procured via the contract meet minimum requirements. However, as one agency found, the salient characteristics required to meet the minimum requirements must be explicitly stated in the solicitation. And, evaluating the product on any characteristics that are not included in the solicitation, even if incorporated by reference to the name brand item, can lead to an improper exclusion of offerors from competition.
In American Material Handling, Inc., the International Boundary and Water Commission excluded the protester, American Material Handling, from award because the product offered by the protester, a Volvo tractor, did not contain salient characteristics that the name brand product, a Caterpillar tractor, had. So, what was the problem? Why was the protest sustained by GAO but not the agency if the Volvo tractor did not contain the salient characteristics of Caterpillar tractor? Well, the answer to that lies in the solicitation.
The RFQ was for the award of a contract to the offeror that offered the “lowest-price technically acceptable quotation considering price and technical acceptability.” The RFQ included language stating that the tractor “must meet the salient features or specifications of the Caterpillar 980 or exceed the specifications attached.” The specifications were listed in a two-page specification sheet. As the agency argued, the salient characteristics were specified in the solicitation, so what exactly was the problem here?
It turns out that while the RFQ did contain the two pages of specifications, the six salient characteristics that the protester was excluded from competition on account of, were not included. Rather, GAO found that the contracting officer added salient characteristics after the quotations. The agency claimed that the reference to the Caterpillar 980 meant that any tractor offered must meet or exceed all characteristics of that brand name product, not just those listed in the specifications contained in the RFQ.
However, as GAO held, a brand name or equal product does not have to meet every specification of the brand name product to be deemed acceptable when those characteristics are not stated in the solicitation. Therefore, the agency improperly determined that the protester’s Volvo tractor was unacceptable because it actually met all of the salient characteristics that were listed in the RFQ.
As FAR 11.104(b) requires, solicitations must include “a general description of those salient physical, functional, or performance characteristics of the brand name item that an ‘equal’ item must meet to be acceptable for award.” By evaluating proposals on characteristics not listed in the solicitation, the agency did not evaluate the offers solely on the terms in the solicitation. Which, as any federal contracting attorney would know, is prime real estate for a protest to be sustained.
Questions about this post? Email us Need legal assistance, call 785-200-8919.
Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.