• R.D. Lieberman,Consultant

A Brand Name Product Meets a Brand Name or Equal Specification

Agencies can frequently obtain competition by using “brand name or equal” purchase descriptions. Recently, the Department of Veterans Affairs (“VA”) rejected a contractor’s submission to install the exact brand name “patient headwall system” in a contract. The VA agency asserted that the system did not meet the separate and additional “salient characteristics” specified for the “or equal” system. R.A. Glancy & Sons, Inc v. Dept of Veterans Affairs., CBCA 4060, Jan 15, 2016.

Brand Name or Equal

Agencies may use brand name or equal purchase descriptions. However, to prevent improper sole-sourcing, “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.” FAR 11.104.

The Contract

The contract included the following VA acquisition regulation clause:

[I]tems called for by this invitation for bids have been identified in the schedule by a “brand name or equal” description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Bids offering “equal” products (including products of the brand name manufacturer other than the one described by brand name) will be considered for award if such products are clearly identified in the bids and are determined by the Government to meet fully the salient characteristics requirements listed in the invitation.

* * *

Unless the bidder clearly indicates in the bid that the bidder is offering an “equal” product, the bid shall be considered as offering a brand name product referenced in the invitation for bids.

VAARS 852.211–73.

During performance of the contract, Glancy offered the brand name product, (an “Elements Headwall System Manufactured by Hill-Rom Co.”). This product had laminate countertops and high pressure laminate cabinetry. The VA insisted that the product meet two additional salient characteristics that had been specified in the contract for the “equal” product: quartz countertops and thermofoil cabinetry.

The Board rejected the VA’s interpretation of the contract, noting that contract language had to be interpreted according to its plain meaning. The Board held that it was clear that a contractor is entitled to provide either the system as manufactured by Hill-Rom or an equal product that conforms to the salient features designated by the VA. There is no way to read the clause other than to permit a contractor to provide the identified brand name product specified—otherwise the term “or” would be rendered meaningless. The brand name satisfies the brand name portion of the clause, and the contract did not limit the acceptability of the brand name product.

The Board noted that if the government needs features that are different from those of the brand name, the solicitation and contract must make it clear that the product will have to be modified to include certain features, or it will not be unacceptable. “Placing features in the list of salient characteristics does not modify the brand name designated” product.

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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