NOTHING TO SNEEZE AT
the servers were deemed mission-essential upgrades for the Navy’s submarines, the justification effectively disqualified prod- ucts manufactured by other companies.
Te GAO denied the protest because the brand name servers were integral compo- nents of the Navy’s network system used in critical submarine functions relating to both national defense and human safety and were necessary to achieve the highest possible reliability and effectiveness. See Core Systems, B-411060.
Element 2—Market research must indi- cate other companies’ similar products do not meet, or cannot be modified to meet, the government’s requirements.
Torough and objective market research will help the government identify the capabilities and availability of commer- cial products or services that meet the government’s needs. When the govern- ment intends to procure a brand name item or service, it must conduct market research to determine if other companies’ similar products can meet its require- ments. Te market-research report must describe the extent and the results of the market research conducted. Te research must have been meaningful.
According to FAR 10.001, agencies shall conduct market research to determine if commercial items or services meet or could be modified to meet the govern- ment’s requirements. See FAR 10.001(a) (2) and (3). Failure to do so will invalidate a brand name restriction.
For example, in 2010 the Coast Guard restricted competition to authorized ITT Goulds Pumps repair facilities. Te Coast Guard’s J&A restricting the use of Goulds’ brand name pumps and repair services stated that use of other than Goulds brand name parts could cause equipment
38 Army AL&T Magazine Fall 2020
failure and render the patrol boats unable to complete mission requirements and possibly place the crew in danger.
A pump repair company that was not an authorized Goulds pump repair facility protested the Coast Guard’s brand name restriction and demonstrated that it had successfully provided these pumps and services in the past. GAO subsequently overturned the brand name restric- tion because the Coast Guard had not presented any evidence of conducting market research to determine if commer- cial items or services meet or could be modified to meet the government’s requirements. See Missouri Machinery & Engineering Company, B-403561.
When the government intends to restrict its needs to a particular a brand name item or service, by regulation it must conduct market research to accurately identify its needs and evaluate commercial items or services that may be available to meet those needs. Market research for a brand name restriction must be robust and
comprehensive to ensure the requirement is not unduly restrictive—that the brand name restriction is reasonably necessary to meet the government’s needs. See also Land Shark Shredding, B-415785.
A brand name restriction also must be predicated on an evaluation of other similar products and of other companies’ similar products that meet, or may be modified to meet, the government’s needs and must be adequately documented in the J&A.
One agency’s RFQ limiting competi- tion to authorized resellers of brand name “AtHoc” licenses, upgrades and technical support for its mass warning and notifica- tion system was challenged by a protest to the GAO in 2013.
Te J&A that approved the brand name restriction explained that the AtHoc system was already installed in the agen- cy’s infrastructure and in use by all its regions. Te market research explained that the brand name restriction represents
CONSIDER THE COST
Purchasing brand name items or services without market research may waste government resources.
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