2. IMPROPER USE OF “BRAND NAME OR EQUAL” DESCRIPTIONS 
Overview of This Protest Ground: Despite the FAR’s rather simple and straightforward rules regarding “brand name or equal” specifications, agencies routinely make errors in this area. The most typical mistake is erroneously believing that a solicitation can simply set out a particular brand name product and add the phrase “or equal” to comply with the rules. However, as the FAR and case law demonstrate, the agency must set out the salient characteristics the government is seeking (physical, functional, or performance) so that other offerors can compete. Alternatively, the agency will need to publish a J&A supporting its decision to limit competition in accordance with FAR Subpart 6.3, Other Than Full and Open Competition. The FAR explains:
(a) While the use of performance specifications is preferred to encourage offerors to propose innovative solutions, the use of brand name or equal purchase descriptions may be advantageous under certain circumstances.
(b) 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.
FAR § 11.104.
The protests in this area occur both pre-award and post-award. In a pre-award protest, a company seeking to compete typically argues that the government’s specifications unduly restrict competition. The post-award protests often argue that the government (1) failed to include salient characteristics and therefore had no basis to disqualify the protester’s offer, (2) failed to recognize that the protester’s offer met all of the government’s salient characteristics, or (3) selected an offer for award that failed to meet all of the salient characteristics.
GAO’s Key Language
Contracting agencies have broad discretion in identifying their needs and determining what characteristics will satisfy those needs. The fact that specifications are based upon a particular product is not improper in and of itself; nor will an assertion that a specification was “written around” design features of a particular product provide a valid basis for protest if the record establishes that the specification is reasonably related to the agency’s minimum needs. When a protester challenges a salient characteristic included in a brand name or equal solicitation as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the contracting agency’s minimum needs.
Persistent and Determinant Technologies, LLC, B-408342, Aug. 22, 2013.
In reviewing protests of agency evaluations, we review the record to ensure that the evaluation and source selection decision were reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations. Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. If the firm fails to do so, its product is properly rejected as nonconforming.
Nas/Corp-Telmah, Inc., B-405893, Jan. 10, 2012.
Federal Acquisition Regulation (FAR) § 11.104 allows the use of brand name or equal purchase descriptions in describing agency needs in a solicitation, including those conducted under FAR Parts 12 and 13, but requires:
(b) 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.
FAR § 11.104(b). Thus, this brand name or equal solicitation was defective because it did not identify salient characteristics, so that bidders offering equal products were left to guess at the desired essential qualities of the brand-name item. We have recognized that where, as here, an agency does not include a list of salient characteristics in a brand name or equal solicitation, the agency is precluded from rejecting a bid offering an equal product for noncompliance with some performance or design feature, unless the offered item is significantly different from the brand-name product.
…
While our Office affords particular deference to the technical expertise of agency personnel where their technical judgments involve matters of human life and safety, the record before us does not withstand scrutiny. In short, in its written materials and in testimony presented at the hearing, the [procuring agency] has not shown that [the protester’s] proposed [ ] electrosurgical unit was significantly different from the brand name [ ] unit.
Veterans Healthcare Supply Solutions, Inc., B-407223.2, Dec. 13, 2012.
When a solicitation contains a brand name or equal purchase description, the FAR requires that it include “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.” FAR § 11.104(b). The particular features of a brand name item set forth in a solicitation are presumed to be material and essential to the government’s needs. With respect to a firm offering an equal product, the quotation must demonstrate that the product conforms to the salient characteristics listed in the solicitation. If the quotation fails to do so, it is properly rejected as technically unacceptable.
Sourcelinq, LLC, B-405907.2, Jan. 27, 2012.
We have previously found that an agency should waive a minor deviation from a brand name or equal solicitation’s salient characteristics where the deviation does not affect the ability of the nonconforming product to meet the agency’s actual functional needs, and no other firm is prejudiced by the waiver.
OnSite Sterilization, LLC, B-405395, Oct. 25, 2011.
CICA expressly requires agencies to specify their needs and develop specifications in a manner designed to achieve full and open competition. 10 U.S.C. § 2305(a)(1)(A) (2006). To that end, solicitations are required to include specifications that permit full and open competition, and may include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. § 2305(a)(1)(B). Agencies are further instructed that they may use specifications stated in terms of function (so that a variety of products or services may qualify), performance characteristics or design requirements, depending on the nature of the requirements. 10 U.S.C. § 2305(a)(1)(C).
These basic requirements are echoed in FAR part 11, under which, to the maximum extent practicable, agencies must articulate their requirements in terms of functions to be performed, performance characteristics required, or essential physical characteristics. FAR § 11.002(a)(2). While the use of performance specifications is preferred, FAR §§ 11.101, 11.104, the FAR also permits agencies in appropriate circumstances to use “brand name or equal” purchase descriptions, where the purchase description includes a statement of the salient physical, functional or performance characteristics that are necessary to render an “equal” product eligible for award. FAR § 11.104. Agencies are precluded from specifying their requirements solely in terms of a particular firm’s product unless the particular brand name, product or feature is essential to the government’s needs, and market research shows that other companies’ similar products lacking the particular feature do not meet the agency’s needs, or cannot be modified to meet the agency’s needs. FAR § 11.105. Further, when procuring on a brand name only basis, agencies are required to follow documentation and approval procedures for acquiring goods or services using other than full and open competition. FAR § 11.105.
Here, the RFP required prospective offerors for the ID/IQ contract to submit proposals exclusively for the exact brand name items specified in the core list, with no provision for offering alternate, “equal,” products. Although the solicitation thus amounts to a brand name only procurement, the agency has not prepared and executed the required justification and approval (J&A) for use of other than full and open competition. 10 U.S.C. §§ 2304(c), (f); FAR § 11.105. The agency’s actions therefore are improper.
California Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters, B-403397.3, March 21, 2011.
It is well-settled that it is the vendor’s responsibility to include sufficiently detailed information in its proposal (or quotation) to establish that the item offered will meet the solicitation requirements, and that blanket statements or certifications of full compliance are insufficient. With respect to a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. The contracting agency is responsible for evaluating the data submitted by the vendor and ascertaining if it provides sufficient information to determine if the vendor’s product is acceptable. We will review an agency’s determination in this regard to ensure that it was reasonable.
Medfinity, LLC, B-403366.2, Oct. 28, 2010.
FAR Crosswalk: FAR §§ 11.104 and 11.105.
Other Relevant Cases: See page 292 in the Index of Representative Cases.
Commentary: The outcomes of the protests in this area tend to hinge in large part on the care that was put into drafting the solicitation. A solicitation that simply lists a brand name without specifying the salient characteristics places the agency in a difficult position when it attempts to reject a competing offer as nonconforming. The GAO will generally not allow the government to reject an offer as nonconforming unless the government listed the salient characteristics. The only exception is when the offer is “significantly different” from the brand name product. After all, it is unfair and contrary to the principles of competition for the government to essentially hide its true needs from offerors and leave them guessing as to the underlying characteristics the government is seeking.
Typically it is the requiring activity (the government “customer”) that may not appreciate the need to list the salient characteristics instead of just the brand name. Not being aware of the procurement rules in this area, government customers often push back against the contracting office when they are asked to list the salient characteristics of an item (e.g., a particular type of equipment) prior to publishing the solicitation. One particularly poor practice is for the government to develop its salient characteristics based solely on one vendor’s marketing brochure. Instead, the government should exercise independent judgment with information from multiple sources prior to drafting the final version of the salient characteristics for the solicitation. If, however, the agency actually requires a particular brand name, product, or feature of a product peculiar to one manufacturer, the agency must follow the steps set out at FAR § 11.105. The contracting officer may need to educate the requiring activity on the need for a proper explanation of the salient characteristics when presented with a brand name or equal description from the customer.
A review of the sustained protests in this area demonstrates that most of the problems stem from the government’s failure to list salient characteristics when stating that the requirement is for a particular brand name “or equal.” However, the government can also make an error the opposite way—by accepting an offer that clearly fails to meet a salient characteristic set out in the solicitation. Accordingly, the government must take care in setting out the salient characteristics because they will generally be viewed as mandatory requirements that the government cannot relax during evaluations.
Offerors planning to compete to fulfill the government’s requirements are wise to pay close attention to the salient characteristics the government presents in the solicitation. It is not unusual for offerors to believe that they can use their proposal to persuade the government that some of the stated salient characteristics are not necessary, or that their product is just as good despite not meeting one or two of those characteristics. This is a risky approach, as the GAO has stated time and time again that the government can (and in many cases must) reject an offer as nonconforming if it fails to meet a salient characteristic listed in the solicitation. Offerors should file any objections before the date and time set for receipt of proposals or the GAO’s strict timeliness rules may result in dismissal of their protest after that time has passed.