Disclaimer: The following represents my own opinions, experiences, and research and does not constitute the official stance of my employer. Further, the following is meant to provide insight into Government Procurement, but in no way is it meant to provide actual strategy or counsel.
"A few weeks ago, we had a vendor perform a product demonstration of a robotic arm at our laboratory. I really like this sales team, their product, and the supporting services they can provide. Would you be able to help me draft the request for proposal (RFP) in a way where they would be the only vendor capable of being awarded the contract?" "Absolutely not; that sounds too much like creating an unduly restrictive requirement." Yet, oddly, during that initial phone call, I found myself thankful that the engineer was being so bold. At least, I would be able to address this issue at the onset of the acquisition and not discover it buried in the RFP after posting it Federal Business Opportunities (FBO).
In 1984, the passage of the Competition in Contracting Act required US federal government agencies to maximize full and open competition. This, in turn, formed the basis for the Federal Acquisitions Regulation being codified into Title 48 the Code of Federal Regulations. Kate Manuel (2011) asserts that the establishment law asserts the US Federal Government's commitment to conducting procurement in an as impartial manner as possible while simultaneously promoting competition. Thus, in FAR Part 11.002 (a)(1)(ii), executive agencies are directed to "Only include restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by law. Unduly restrictive language is language inserted into Government acquisitions that unnecessarily limits the number of vendors able to submit a proposal in response to the agency's need for a supply or service.
"With your intended application, has your market research revealed that this particular robotic arm possesses capabilities uniquely able to satisfy your requirement?" I asked the engineer. "Not example, it needs to be able to…" and he proceeded to list the essential capabilities that the robotic arm must have to satisfy the requirement effectively. "So, what you are telling me is that we do not have a case for a sole source justification. Rather, we have a scenario where we can state we need this particular brand name and capabilities or equal." This, however, was not satisfactory, and he pleaded, "But, this will not guarantee that I get the vendor I want; what can we do about that?" I had seen this vendor attraction before, and I stated, "The best I can do here is insert the provision FAR 52.211-06 Brand Name or Equal, identify the capabilities you must have, and solicit to all interested and available vendors on the General Services Administration E-Buy site. If I take your request back to my contracting officer, he will laugh at me."
Maximizing competition and preventing the insertion of unduly restrictive requirements does not mean that the Government must accept any solution that a vendor renders. The Government is allowed to establish requirements containing specific capabilities and even requests for specific brand names. FAR 11.107 prescribes that when a brand name or equal purchase descriptions are included in a solicitation that the Contracting Officer also include the provision FAR 52.211-6, Brand Name or Equal. This is an allowable action as it has been determined that in some circumstances the best way to describe an agency need is by highlighting an existing commercial solution that would satisfy the need perfectly.
Years ago, CISCO IT infrastructure products were purchased for Eglin Air Force Base. As the IT network has been enhanced and upgraded additional CISCO products were procured and installed. Now, any new products purchased must be CISCO as no other manufacturer's products are compatible with existing ones. In this case, we are required to complete a justification per FAR Part 6.302-1(c), citing the technical requirements and data supporting the recommendation that full and open competition not be present in the acquisition. Other scenarios can guide the request of a specific source or brand, but the documentation required to justify and approve this is significant. Where the purchase exceeds a $25,000.00 threshold, agencies are required to post their documentation or justifications and approval on SAM.gov, providing transparency to the decision to limit the procurement to a specific brand or source.
In the case of the robotic arm, thorough market research and a thorough description of the requirement were needed to address the engineer's desire for unduly restrictive requirements. As I was discussing the requirement with him, the questions I asked were along the lines, "Are there any specific compatibility issues where this is the only product that will integrate with existing laboratory infrastructure? Are there any salient characteristics of the robot such that it uses a programming language you understand and not selecting this requirement would cause you and your team to have to pause operations and learn a new programming language?" In this case, none of these elements were present, so our only recourse was to write as thorough of a RFP as possible. In the end, we received numerous proposals for the specific robotic arm desired and other robotic arms. Only the desired robotic arm was technically acceptable; however, the vendor providing the robotic arm at the lowest price technically acceptable was not who the engineer had wanted to do business with, and he canceled the requirement.
In GAO Decision B-410453, Smith and Nephew, Inc, the vendor's protest was sustained by the Government Accountability Office. The Department of Veteran's Affairs (VA) had issued a Requests for Quote seeking three different variations of sterile foam dressing. The standards established for the first and the third foam dressings were non-controversial. However, the second foam dressing incorporated a requirement for a minimum absorbency. When the VA was queried why it needed to achieve that specific level of absorbency, the agency could not point to an actual requirement or need. In light of this, the GAO found it to be an unduly restrictive requirement. The absorbency restriction limited the number of firms able to compete, but the VA failed to provide a compelling reason behind establishing the standard. Had a compelling reason been supplied, the protest would more than likely have been denied.
With GAO Decision B-418394, T-Mobile USA, Inc, the protest filed was denied. In this case, the Government issued a solicitation with a brand name or equal request. The Government identified that the AT&T First Responder Network, specifically its preemptive and priority cell phone service, modeled the desired capabilities and asserted that any proposal must match these capabilities. T-Mobile contended that the salient characteristics showed preference to AT&T were vague. Their solution, while it could not provide preemptive and priority calling could offer sustained, reliable, day-to-day coverage. The GAO denied this protest on the grounds that the Government is allowed to issue brand name or equal requests, the desired salient characteristics were well communicated, and that T-Mobile in asserting it could provide sustained, reliable, day-to-day coverage was attempting to reframe the requirement and therein not promising to deliver the requested service.
When procuring an item for the Government, the contracting agency must keep in mind they must fairly and reasonably operate in the best interest of three entities. They must act in a manner that is in the best interest of the US Government, the US Taxpayer, and the vendors seeking to do business with the Government. The key to successfully drafting and issuing solicitations is thoroughly acquainting oneself with the requirement, accurately detailing the desired supply or service, performing adequate market research, and doing due diligence in drafting any required justifications and approvals. Restrictions can be authorized; Government requirement holders are allowed to have unique and specific needs. However, the justification in these instances must be thorough. Taking these necessary steps will go a long way in ensuring partial actions and time-sucking protests are avoided.
Works Cited
Manuel, Kate. "Competition in Federal Contracting: An Overview of the Legal Requirements." 30 Jun 2011. p. 2. Congressional Research Service
The
Federal Acquisition Regulation System (Title 48, CFR).
Washington, DC: U.S. G.P.O, 10 Sept
2021. Digital.
United
States. Government Accountability Office. GAO Decision B-410453, Smith and
Nephew, Inc. Government Accountability
Office, 02 Jan 2015.
United
States. Government Accountability Office. GAO Decision B-418394, T-Mobile USA, Inc. Government Accountability Office, 07
Apr 2020.
