Timing Issues: Challenges to Brand Name Salient Characteristics Due Before Proposal Submission, Says GAO

Time. It’s a great Pink Floyd song. It’s also something that frequently trips up contractors filing protests before GAO. As one contractor recently discovered, a challenge to the salient characteristics of a brand name product is equivalent to challenging the terms of a solicitation, which carries a different protest deadline than evaluation challenges. Unfortunately for the protester, its argument did not fair nearly as well as one of David Gilmour’s solos.

Sarandrea Associates Group Corporation, B-418728 (Comp. Gen. June 29, 2020) involved a procurement for paper shredders conducted by the Department of Veterans Affairs. Specifically, the Solicitation sought “seven high security, cross-cut paper shredders and related accessories, on a brand name or equal basis.”

With respect to technical requirements, the Solicitation identified the “Datastroyer 1628 MS High Security Shredder” as the desired brand name item. The VA, however, would also accept shredders equal to its brand name item and identified 10 salient characteristics that a brand name equivalent must meet.

The VA received three bids in response to the Solicitation, including Sarandrea. The VA selected BWhit Infrastructure Solutions, LLC, which had proposed providing the Datastroyer 1628. Sarandrea’s proposal, on the other hand, was eliminated from competition because the brand name equivalent shredder it proposed did not meet all of the Solicitation’s salient characteristics.

Upon learning of the award to BWhit, Sarandrea filed a protest with GAO. Sarandrea argued, in part, that BWhit’s brand name product did not actually meet the salient characteristics identified in the Solicitation. Thus, according to Sarandrea, BWhit should have also been ineligible for award, despite proposing to provide the desired brand name product.

GAO was unpersuaded by Sarandrea’s argument. According to GAO, the issue was one of timeliness:

As set forth above, the purpose of a solicitation’s statement of salient characteristics is to define the minimum characteristics of the brand name product that an alternative equal product must meet. . . . Thus, by definition, the salient characteristics should be derived from, and should reflect, the essential characteristics of the brand name product. A contention that the solicitation identified brand name product does not meet the salient characteristics is an argument that the solicitation is defective, because the solicitation essentially represents that the brand name product possesses the salient characteristics, when in the protester’s view, it does not.

Thus, according to GAO, Sarandrea’s protest presented a procedural issue, not a technical evaluation issue. Because Sarandrea had not raised its concern about how closely the brand name equivalent salient characteristics matched the capabilities of the Datastroyer 1628 prior to proposal submission, it was now too late to allege that an offeror proposing the brand name item did not meet the salient characteristics of the Solicitation.

Ultimately, Sarandrea’s experience is another example of GAO requiring offerors to raise issues as soon as possible in the procurement process. Here, the Solicitation clearly identified the Datastroyer 1628 as the desired brand name item, and provided salient characteristics for brand name equivalents. This information was all that was required to identify the issues Sarandrea alleged. While Sarandrea may have been right that the salient characteristics were flawed, it lost the opportunity to raise that challenge by waiting until after proposal evaluation to raise the issue.

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