One handy little tactic that benefits both Contracting Officers and bidders is the concept of “Brand Name or Equal.” FAR 11.104 – Use of Brand Name or Equal Purchase Descriptions describes this practice, and explains why and when it is necessary. Some requirements involve salient characteristics that must be met, such as performance specifications, size or dimensions that must be met, and so on. While the government seeks to allow industry the latitude to propose innovative solutions, there are times when the solution must meet the salient characteristics.
The government establishes those salient characteristics, but cannot specify a certain brand or model without completing a Justification and Approval (J&A) that provides adequate rationale for why a certain model must be procured, or at least why competition must be limited. And therein lies the conflict that makes the “Brand Name or Equal” principle so valuable to both the CO and the potential bidder.
For starters, the Contracting Officer is probably under pressure by the requiring activity (aka the “user” of the item being bought) to procure the exact thing they found via Google search. What they fail to understand, or care about, is that if the item is over the micro-purchase threshold (currently $3,000), the Contracting Officer is obligated to compete the purchase or justify why it cannot be competed. The Contracting Officer requires the user to specify the salient characteristics, rather than just make and model. If industry can provide multiple offerings that meet those characteristics, then price will probably become the determining factor for who gets the award. Thus, this practice permits competition while still meeting the stated specifications that the government user needs.
The upside of this practice is that it prevents the government from “gold-plating” its requirements – if the user needs a 6-passenger SUV, they have a lot of options that can be provided. But the very expensive models with the deluxe trim and fancy rims probably lose out on price, because those features are not the salient characteristics, i.e., 6-passenger SUV. In that case, a modestly-priced economy vehicle meets the government requirement at a much lower price.
Another benefit of Brand Name or Equal is that sometimes industry offers a superior solution that is still affordable. Government users and government acquisition professionals do not have a lot of time and their market research is usually lacking in thoroughness. But a Brand Name or Equal solicitation allows the market experts, i.e., the contractors operating in that industry, to propose a myriad of solutions that meet those salient characteristics, with a wide range of pricing. In these cases, sometimes the government’s unfamiliarity with the best solution gets balanced by industry expertise, with little additional cost.
In other instances, the Government can easily justify limiting competition. Interoperability and network compatibility are two driving factors here. In some cases, the Government must buy a certain make or model of equipment because it must be able to network with an existing system.
Of course, there can be some gamesmanship, too. The Government user may draft the salient characteristics so specifically that only a certain model meets them. In that case, the Contracting Officer is obligated to do a “sanity check” on the requirements definition – it is their duty to make sure the Government user really needs the deluxe trim and fancy rims on their SUV. Sometimes, the user gets their way, but usually, the CO wins out, and Brand Name or Equal standards are used.
For additional references, FAR 52.211-6 contains a clause that addresses this practice, and FAR 19.502-6 also has guidance for when there is insufficient justification to limit competition. The bottom line is that the FAR requires competition but urges innovation, and that forces the government to truly define its requirements into what is strictly necessary. Then the Brand Name or Equal principle allows industry to meet those necessary specifications in the best, most cost-effective way possible.