• R.D. Lieberman,Consultant

Brand Name or Equal Procurement Requires Justification & Approval in Simplified Acquisitions

The FAR is very clear that if an agency seeks to use the “brand name [or equal]” method of procurement, this essentially is a sole-source procurement that requires that the contracting officer prepare a supporting justification that is approved. FAR 11.105(a)(1), 11.105(a)(2)(ii) and 13.501. The documentation supporting this type of procurement must be published with the solicitation (“[C]ontracting officers must [c]onduct sole source acquisitions … (including brand name) under this subpart only if the need to do so is justified in writing and approved at the levels specified…and make publicly available justifications.” FAR 13.501(a)(1)(i).) FAR 13.501(a)(2) further emphasizes this by stating that “Justifications and approvals are required under this subpart for sole-source (including brand name) acquisitions.”

In W&G Machine Corp, Inc., B-418698, August 4, 2020, the Government Accountability Office (“GAO”) re-emphasized this point when the Defense Logistics Agency canceled a solicitation where it had failed to prepare the required Justification. The Defense Logistics Agency (“DLA”) sought to buy rigid connecting links for helicopters, a commercial item with a National Stock Number, using the simplified acquisitions procedures in FAR subpart 13.5. The connecting links are a critical safety item that can only be procured from pre-qualified manufacturers. The Solicitation identified Sikorsky Aircraft Corp., and its part number, as the only pre-qualified manufacturer.

W&G challenged the terms of the solicitation, stating that DLA had failed to prepare a written Justification and Approval (“J&A”) in support of the sole source. Recognizing that it had failed to follow the FAR requirements for a “brand name” procurement, DLA canceled the solicitation. W&G subsequently protested DLA’s cancellation of the solicitation, arguing that offerors could submit “alternate offers” and the cancellation was a “mere pretext.”

The GAO rejected W&G’s arguments completely. The DLA had a reasonable basis to cancel its solicitation because DLA had violated the sections of the FAR cited above requiring a J&A for a brand name or equal procurement. The solicitation was for a sole source, and the J&A was required. Even where a solicitation seeks a brand name procurement, but permits “alternate products,” the J&A is required. Accordingly, GAO denied the protest, stressing the restrictive nature of the solicitation and DLA’s need to prepare the J&A in connection with the issuance of the solicitation.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

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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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