GAO Sustains Protest Where Agency Fails to Properly Justify “Brand Name Only” Requirement

When an agency restricts a solicitation to a single brand-name, the agency must appropriately justify its decision, even where the solicitation is competed among holders of a governmentwide acquisition contract.

In a recent case, the GAO sustained a protest, holding that an agency violated the FAR by failing to properly justify its brand-name restriction.

The GAO’s decision in Westwind Computer Products, Inc., B-420119 (Dec. 8, 2021) involved a USDA solicitation seeking enterprise business solutions licenses and software assurance support. The solicitation was issued to holders of the NASA SEWP V GWAC.

The solicitation specified that vendors were to propose only Microsoft products. In justification of the restriction, the solicitation stated that “USDA has standardized on Microsoft Office, email and cloud and has been using these tools for over 20 years.” The agency also stated 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.”

Westwind Computer Products, Inc. filed a protest challenging the terms of the solicitation. Westwind , which wished to offer Google Workspace software, argued that the USDA had failed to properly justify the brand-name restriction to Microsoft products.

The GAO wrote that, under FAR 16.505(b)(1), “[a]gencies that issue orders under multiple-award indefinite-delivery, indefinite-quantity contracts must provide all contract holders a ‘fair opportunity to be considered’ for the issuance of all orders in excess of $3,500. In addition, the GAO continued:

An agency ‘shall not’ 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.” A justification for a brand-name restriction must be in writing, set forth the basis for using the exception, and be approved by the appropriate agency official. 

In this case, although the USDA claimed that Microsoft products were essential to the government’s needs, the USDA did not provide any market research indicating that other companies’ similar products, or products lacking a particular feature essential to the government’s requirements, do not meet, or cannot be modified to meet, the agency’s needs.

The GAO rejected the USDA’s implicit assertion that the “particular feature” of Microsoft is that “it is already in use by USDA.” The GAO wrote that this assertion was “unpersuasive, where the FAR requires that agencies demonstrate, through a comparison of ‘particular feature[s],’ why only one product can meet the agency’s needs.'” Further, nothing in the agency’s market research included a comparison of Microsoft to Google Workspace, the software Westwind wished to offer.

The GAO sustained the protest, holding:

In sum, USDA’s justification does not state 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, the agency has not met the FAR section 16.505(a)(4)(i) requirements for justifying a brand-name restriction.

The GAO recommended that the agency either go back to the drawing board and attempt to satisfy the FAR’s requirement (something the GAO seemed skeptical that the agency could accomplish in this case), or recompete the requirement without the brand-name restriction. The GAO also recommended that the USDA reimburse Westwind’s reasonable protests costs, including attorneys’ fees.

The Westwind Computer Products decision is a good reminder that the FAR disfavors brand-name-only acquisitions and requires agencies to follow certain steps to justify them, even under a GWAC like SEWP V. As the decision demonstrates, even if an agency has been using a particular brand for a long time, this alone may not be enough to justify a restriction to only that brand.

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