Do generic brands poison solicitations?

The acquisition regulations have a lot to say about when it's okay or not okay to specify brand names in solicitations. Two recent protest cases illustrate the ...

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Does your agency need a Frigidaire or a refrigerator? The acquisition regulations have a lot to say about when it’s okay or not okay to specify brand names in solicitations. Two recent protest cases illustrate the point, as Federal Drive with Tom Temin heard from D.C. procurement attorney Joseph Petrillo.

Interview transcript:

Tom Temin: So what is the whole issue with brands? Because sometimes there is only one maker of a thing, but usually not.

Joe Petrillo: Well, there are two basic types of procurement descriptions that use this idea. One is the brand name or single authorized source type of procurement description. And the other purchase description is brand name or equal. And they’re quite different. If you look at the brand name description, and that’s a generic term for situations where the government’s only going to accept things made by a certain particular source. It’s disfavored. But it can be used if market research indicates that no other item will meet the government’s needs, and you require whatever special features of the brand name item are necessary for your operations. This type of purchase description requires a justification document. And for acquisitions over $25,000, you need to publish that justification documents so people can see what basis you’re using for restricting competition.

Tom Temin: Basically, the FAR wants to make it difficult to say I need a Kubota tractor versus a Deere or some other Ford tractor.

Joe Petrillo: Exactly, exactly. Now, unless you’re operating under simplified acquisition techniques, FAR Part 13 not only do you need to have a justification document, but it needs to be approved by person at a particular level based on dollar thresholds. So that’s the setup. There are some interesting wrinkles in this. The W and G machine corporate protests recently decided by GAO reminded us that at GAO, if it’s a procurement limited to items for a single source, it falls into this category, even if the solicitation says we’ll think about accepting offers from other sources. And you can qualify if you go through a process that will result in that. The reason for that is as a practical matter, it’s almost impossible to qualify in time to meet the delivery schedule and given the constraints with award timings. And therefore, the notion that you’re going to be able to qualify for this procurement is unlikely. So GAO generally thinks that if you’re restricting something to a single source, you’ve got to proceed under these regulations.

Tom Temin: And in this case, was the single source a reseller or was it from the OEM directly?

Joe Petrillo: Well, it doesn’t matter who you’re buying it from, the question is who made the item? In this case it’s a linkage device for a helicopter, and they want to get it from Sikorsky.

Tom Temin: Got it? Yes, because the example I was thinking of was Apple. If you really want a Mac computer for some purpose that Macs are best suited for, you might have a different set of resellers you can choose from. But even if you go from reseller to reseller, you’re still getting the same product by the same manufacturer. And that’s okay, if you can justify that only a Macintosh will do what we need.

Joe Petrillo: That is exactly how the regulations are structured. Now you’ve got a similar type of regulation, or at least it sounds similar, but it has a very different set of rules, and that’s brand name or equal. This type of purchase description does not require that specific justification or justification and approval document. The key here though, is that it’s going to allow the offer of items other than the brand name item because it’s going to list what are called salient characteristics. And those are the physical functional or performance requirements or characteristics of the item that are used to determine whether an alternative is equal or not to the brand name item.

Tom Temin: In other words, you could say pencils, and it should be a Dixon Ticonderoga number two or equivalent of which there are zillions, but they all are essentially identical. But that’s might be the reference brand.

Joe Petrillo: Exactly. And the key here is you’ve got to describe what is it about the Dixon Ticonderoga number two that you want to have reproduced in an alternate for those to be considered equal? And here again, there are there are cases about what is a brand name or equal product. What about the salient characteristics? Are they necessary are they not necessaryat GAO? In the Serendrea associates protest, which is also a recent case, the protester proposed an alternate product, in this case, a cross cut shredder that did not meet one of the 10 salient characteristics listed in the solicitation. So they call that a brand name product listed 10 salient characteristics. Sarendrea missed on one of those so their offer was disqualified. But it protested and said, we disagree, and they lost that part of the protest. But they also said, but it doesn’t matter because the brand name product doesn’t meet one of the salient characteristics.

Tom Temin: And that gets to the more basic requirement of acquisition, and that is you have to evaluate bids according to what you set forth as the specifications in the first place. That’s about as basic as it gets.

Joe Petrillo: Exactly, but there’s a loophole here, and that is that GAO held the protest was untimely because the purchase description listed the salient characteristics, it listed the brand name as a product as something that met those characteristics. If you thought it didn’t, you had to protest that before the closing date for receipt of proposals.

Tom Temin: So in that case, really the agency got away with it, but it really wasn’t the right way to do it if you look at it in the bigger picture.

Joe Petrillo: Well, we don’t have any any adjudication of whether the Serendra point on that was correct or not. Their position was kind of weak on the other issue. If they were right, though, then I guess something slipped through.

Tom Temin: Alright then so brand name or equivalent then is the way I guess most acquisitions would tend to go. I’m thinking you know, we talked about Macintosh computers earlier, but if you need a PC, that’s when you get to you know, Lenovo notebook or equivalent and you’ve got five or six other very close equivalents from a variety of manufacturers.

Joe Petrillo: Sure, the brand name or equal description is good as a shortcut because it enables you to figure out what it is you want and have a competitive procurement without having to write an entire purchase description, you just sort of write something that that captures the critical issues and and talk about the Lenovo as being one that that will meet those requirements for example.

Tom Temin: Joseph Petrillo is a procurement attorney with Petrillo and Powell. As always, thanks so much.

Joe Petrillo: Thank you Tom.

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