GAO Finds Brand Name Procurement Impermissible
By: Lori Lange
Published Date: October 8, 2020
Competition is a fundamental principle of federal procurements. The Government is not permitted to limit a procurement to brand name items unless the particular brand name product or service has a feature that is essential to the Government’s requirements and the Government’s market research indicates that other companies’ similar products or services lack that essential feature, do not meet the agency’s needs, and cannot be modified to meet the agency’s needs. Any decision to limit a procurement to a brand name must be supported by a Justification & Approval (J&A). A recent decision by the Government Accountability Office (GAO) serves as a reminder of this.
In Mythics, Inc.; Oracle America, Inc., B-418785 (Sep. 9, 2020), the Library of Congress (LOC) issued an RFP for cloud computing products and services. The RFP identified the brand name products of three cloud services providers (Amazon, Google and Microsoft) and required vendors to provide pricing for a list of thirteen products and services available from these three firms. It stated that the LOC anticipated making an award to the vendor who could provide all three cloud services, and encouraged vendors to enter into teaming agreements if they were unable to provide all three cloud services. There were no specific instructions in the RFP on how vendors could propose cloud services of a different cloud services provider.
Two protesters filed protests challenging the RFP as a prohibited brand name RFP. The protesters argued that the RFP impermissibly requires vendors to provide the 13 brand-name products without the LOC having executed the required justification and approval for limiting competition to those products, and without alternatively specifying the salient characteristics of those products that are necessary to meet the LOC’s requirements so that alternative products could be offered. According to the protesters, this amounts to an impermissible brand-name-only solicitation.
GAO sustained the protest. Although the LOC is not an executive agency, GAO determined that the LOC was subject to the FAR requirements regarding brand name procurements. GAO noted that the FAR precludes agencies from describing their requirements using a particular brand name product or service thereby precluding firms from offering the products or services of other firms without a published J&A. While agencies may use brand-name-or-equal specifications, the agency must include a general description of those salient physical, functional, or performance characteristics of the brand name product that an “equal” product must meet to be acceptable for award. Here, the LOC failed to do that.
While the LOC stated that it intended to modify the RFP to fix some of the restricted requirements, GAO found that the LOC’s proposed changes did not address in a meaningful way the issues related to identifying brand name products. Specifically, the LOC planned to continue seeking some products on a brand-name-only basis without the LOC having executed the necessary J&A. As a result, GAO sustained the protests.