In some circumstances, it is in the best interest of the government customer to require a specific item made by a specific manufacturer. Though it doesn’t use this technique often, the government can achieve this by soliciting the contract using a “brand name or equal” basis. But the government can’t just decide that it wants a Hoover over a Bissel vacuum. No, there is a process that must be followed, and circumstances must warrant such a requirement.
FAR 11.104 describes situations which are permissible to procure a brand name item. But the regulatory provision nonetheless confirms, even though there are circumstances that may warrant the use of a brand name or equal procurement, it is not the preferred method. Rather, FAR 11.104 states that the “use of performance specifications is preferred to encourage offerors to propose innovative solutions.” This is conveyed in FAR 11.105 as well. There, it states “[a]gency requirements shall not be written so as to require a particular brand name, product, or a feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product manufactured by another company.” So, while there are situations that may call for a brand name or equal, they aren’t exactly encouraged.
Now that we addressed the situations that warrant the use of a brand name or equal procurement, what information must the agency provide to justify the use of a brand name or equal procurement process? FAR 11.104 also includes a list of information that the agency must include in a solicitation if a brand name or equal requirement will be applied:
Brand name or equal purchase descriptions must include, in addition to the brand name, 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. Use brand name or equal descriptions when the salient characteristics are firm requirements.
As you can see, even if the agency wants a specific brand name, it must still consider other brands with items that have the same characteristics.
Now let’s switch to FAR 52.211-6. Whereas FAR 11.104 describes the situations in which a brand name or equal procurement may be used and the information that an agency must provide if it uses a brand name or equal requirement, this regulation tells us what is required of an “equal” product to be awarded.
To be considered for award, offers of “equal” products, including “equal” products of the brand name manufacturer, must—
(1) Meet the salient physical, functional, or performance characteristic specified in this solicitation;
(2) Clearly identify the item by—
(i) Brand name, if any; and
(ii) Make or model number;
(3) Include descriptive literature such as illustrations, drawings, or a clear reference to previously furnished descriptive data or information available to the Contracting Officer; and
(4) Clearly describe any modifications the offeror plans to make in a product to make it conform to the solicitation requirements. Mark any descriptive material to clearly show the modifications.
Thus, if an offeror wants to submit an “equal” product, there is a fair amount of information that they must include in their proposal. And this is something that offerors should take seriously and provide as much information as possible because the onus is on the offeror to provide the information needed for evaluation. In fact, FAR 52.211-6(c) even states that “the Contracting Officer is not responsible for locating or obtaining any information not identified in the offer,” so make sure you include all necessary information so the agency can thoroughly evaluate your equal product.
Now, an offeror who plans to provide an equal product must provide a product that matches the specifications of name brand item, right? After all, FAR 52.211-6 says an equal product must “meet the salient physical, functional, or performance characteristic specified in [the] solicitation.” Well, not exactly.
Technically, yes, an equal product must meet the salient characteristics of the brand name product, but an agency has the discretion to waive those requirements “if the award will meet the agency’s actual needs without prejudice to other offerors.” Glem Gas S.P.A., B-414179 (Feb. 23, 2017). Any potential protester must prove that it has been competitively prejudiced by its own equal product not being accepted, “or where the protester would be able to alter its quotation to its competitive advantage if given the opportunity to respond to the relaxed term.” Thus, the pertinent question in an award to an equal product that is not technically equal, is “whether the protester would have submitted a different offer that would have had a reasonable possibility of being selected for award had it known that the requirement would be waived.”
Name brand or equal procurements are a rarity in the overall grand scheme of federal government contracting. However, there are requirements that both the agency and offeror must satisfy, and in the case of any protests, that the protester must as well.
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