THE INDUSTRIAL BASE
CONCLUSION A brand name, or brand name-or-equal, purchase description restricts full and open competition regardless of the number of sources solicited and must be justified. Although a brand name restriction may be necessary under certain circumstances, the particular brand name item or service must be essential to the government’s require- ments and fully supported by robust and comprehensive market research to ensure the requirement is not unduly restrictive of competition.
RESTRICTION NEEDS JUSTIFICATION
If a purchase is restricted to a particular brand name, or brand name-or-equal, it restricts full and open competition—and that needs a J&A documenting the sole-source action.
the best value, exceeds technical specifica- tions, reduces training and provides quick alerts within the agency.
Te GAO sustained the protest because the agency failed to document its market research of other vendors’ similar prod- ucts. Instead, the J&A stated that, based on market research, the purchase of the AtHoc brand name represented the best value solution because it exceeded tech- nical specifications. See Desktop Alert, B-408196.
Finally, requiring the purchase of a brand name item or service without conducting market research not only violates acqui- sition regulations, but also may waste government resources.
In September 1990, for example, the General Accounting Office, as it was named then,
Corps of Engineers $3.3 million contract for upgrading electrical systems at Clear Air Force Station, Alaska. Te General Accounting Office sought to determine whether the Corps’ $1.4 million brand name restriction for General Electric (GE) equipment included in that contract was proper.
Te General Accounting Office review found that the Corps’ actions were not in accordance with FAR market research requirements because it did not determine whether similar commer- cial products would meet its needs. Had the Corps competed the electrical equip- ment instead of requiring the GE brand name equipment, it might have saved over $600,000 of the contract’s total cost, according to the General Account- ing Office. See Corps of Engineers Weak Contracting Practices.
reviewed a U.S. Army
Additional information on Notice of a Proposed Contract Action and its impact on Competition in Contracting is available in the Training Library at: https://spcs3.
kc.army.mil/asaalt/procurement/SiteP- ages/
NewTraining.aspx.
DENNIS P. LONGO is advocate for competition, task and delivery order ombudsman
and senior procurement
analyst at Army Contracting Command at Aberdeen Proving Ground, Maryland. A member of the Army Acquisition Corps, he holds a bachelor’s degree from University of Baltimore and is Level III certified in contracting. His assignments include acquisition
specialist at the Program
Manager for Chemical Demilitarization within the U.S. Army Chemical Materials activity and procurement analyst at the U.S. Army Legal Services Agency. He served in the Army from 1971 to 1973 at the Southern European Task Force, Italy, and was deployed to Iraq as a civilian in 2003. He authored the Defense Acquisition University (DAU) Continuous Leaning DOD Purchase Card tutorial in 2003 and DAU CON 160 Competition in Contracting course in 2020. He has been an instructor for competition in contracting since 2004. Te first of the author’s On Contracting articles appeared in the Winter 2020 edition of Army AL&T.
https://asc.ar my.mil 39
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