Two Bites of the Same Apple: Protester Wins Sustain on Second Name Brand or Equal Protest with an Unexpected Result

When submitting an offer, it is important to make sure that all the requirements of the solicitation are met. This is essentially Federal Government Contracting 101 and applies to any type of solicitation. In RELX, Inc., B-421597.2, 2023 CPD ¶ 262 (Comp. Gen. Nov. 17, 2023), GAO looked at this issue in the context of a lowest-price, technically acceptable (LPTA) solicitation for a brand name or better product, with an unexpected ending that the protester surely did not see coming.

Brand Name or Better

Under a brand name or equal solicitation, described in full at FAR 52.211-6, a firm offering product equal to the brand name product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. This doesn’t mean that the product being offered must be identical to the name brand. What it does mean is that the features identified in the solicitation are presumed to be material and essential, and any offerors that are not the manufacturer of the name brand product must demonstrate that it meets all requirements. Any products that do not meet the essential requirements must be rejected.

In RELX, the Air Force was accepting quotations for an electronic search and data tool license that was capable of meeting specific requirements that the LexisNexis search engine could do. Since this was solicited on an LPTA basis, the agency planned to evaluate offers received starting with the lowest-priced option and continuing its evaluation of offers with increasing prices until it found an offer that met the salient characteristics of the LexisNexis product.

Only two offers were submitted, one by the protester, RELX, Inc. d/b/a LexisNexis, and one by West Publishing Company. West submitted the lowest price, and the agency found its search engine to be technically acceptable, meeting all the requirements that the LexisNexis product offers. Upon award, RELX protested the agency’s decision, stating that the West product did not meet the requirements. As often happens, the agency responded by taking corrective action—though there were no details on what exactly that corrective action was to entail—and the protest was dismissed.

Fast forward a couple of months to the second award to West, and RELX again protests the award on the basis that the award to West was improper because West’s offer did not contain all the required characteristics listed in the solicitation. The first, and only, issue discussed in the decision asserted that West’s research platform was not equal to the LexisNexis platform offered by RELX because West’s product provided a singular login to access multiple applications, while the solicitation required a singular login to access one application. West’s offer included two platforms: CLEAR, which is used for law-enforcement searches, and Westlaw, its legal and legislative search product. And the solicitation made it clear that multiple platforms would not be acceptable. Though the decision mentions additional requirements that West’s product did not offer, discussion of the salient characteristics stopped there because it was enough to warrant a sustain on that basis.

Open Market Items

There was a second issue identified by RELX, though RELX likely regrets its decision to bring this one up. This solicitation was for a task order offered under a Federal Supply Schedule (FSS) contract, meaning the offerors were already awarded indefinite duration, indefinite quantity contracts with products that the agency would then solicit for task orders. Products and services acquired via a FSS contract cannot offer open market items, meaning items that the offeror did not include in its FSS contract. And here, the items offered by West were open market items that were not included in West’s FSS contract, yet another reason why this award was improper. However, as the agency pointed out, RELX also included open market items in its offer. Therefore, the agency claimed that its award to West was allowable because awarding RELX would have the same issue.

Regardless, GAO didn’t follow that same reasoning. Instead, it took a “two wrongs don’t make a right” stance and required the agency to terminate the award to West. And, because West and RELX were the only two offerors, GAO instructed the agency to revise the solicitation, obtain new proposals, conduct a new evaluation, and issue the task order to the successful offeror under the revised solicitation. Not exactly the ending RELX hoped for, I am sure.


Though this surely was not a result that any protester hopes for, the decision supports two concepts. First, strict adherence to the salient characteristics in a name brand or better solicitation is essential. Second, when making an offer for an FSS task order, ensure that all items being offered are in your FSS contract, so you don’t end up like this protester: out of luck.

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