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.
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.
It’s a Sunday afternoon and instead of watching football, you’re shopping for a new refrigerator. You explain to the salesman your must-haves: a black refrigerator with a bottom-drawer freezer and an in-door water dispenser. But rather than showing you refrigerators that meet your criteria, he insists on showing you stainless steel models with the freezer on the side.
If the refrigerator doesn’t meet your needs (or your wants), odds are you won’t buy it. The federal government is no different: if it identifies salient characteristics in a solicitation, proposals that deviate from them likely aren’t going to win the award.
Imagine that you’re a manufacturer of appliances, and respond to a solicitation seeking one of your appliances (on a brand name basis). You, of course, propose to provide your appliance. But you lose out on an award to an offeror that submits an offer for a different appliance that admittedly does not comply with the solicitation’s minimum requirements.
In this situation, you’d probably be fairly upset. And as a recent GAO decision acknowledged, you’d likely have a successful basis of protest—that is, if you could establish that you were prejudiced by the government’s award decision, and if you understood what exactly the GAO means by “prejudice.”
A small but interesting change in the 2017 National Defense Authorization Act will require the DoD to obtain an appropriate justification and approval (“J&A”) before restricting any competition to a particular brand name, or imposing similar restrictions.
In adopting this change, Congress doesn’t mince words, using the term “Anti-competitive Specifications” to refer to instances in which competitions are restricted to particular brand names without appropriate justification.
Competition is the touchstone of federal contracting. Except in limited circumstances, agencies are required to procure goods and services through full and open competition. In this regard, an agency’s decision to limit competition to only brand name items must be adequately justified.
GAO recently affirmed this principle in Phoenix Environmental Design, Inc., B-413373 (Oct. 14, 2016), when it sustained a protest challenging the Department of the Interior, Bureau of Land Management’s decision to restrict its solicitation for herbicides on a brand name basis.
A GSA Schedule solicitation restricted to a particular brand item was improper because the procuring agency failed to properly justify the restriction, according to a recent GAO bid protest decision.
The GAO’s decision is an important reminder that “brand name only” restrictions are disfavored and that procuring agencies bear the burden of reasonably justifying such restrictions–even when they buy off the GSA Schedule.