FAR 52.211-6, Brand Name or Equal

Applicability: This FAR solicitation provision is included when “brand name or equal” purchase descriptions are included in a solicitation.

 

Key Requirements:  For items identified in the solicitation as “brand name or equal”, this solicitation provision requires that the offeror’s proposal indicate each product that is being offered as an “equal” product.  In addition, for each equal product, the proposal must include a description reflecting the characteristics and level of quality that will satisfy the salient physical, functional, or performance characteristics of “equal” products specified in the solicitation.  The proposal must also clearly identify the item by brand name (if any), and make/model number.  In addition, the proposal must include descriptive literature such as illustrations, drawings, or a clear reference to previously furnished descriptive data or information available to the Contracting Officer, and clearly describe any modifications the offeror plans to make in a product to make it conform to the solicitation requirements.

 

Compliance Verification:    Compliance verification is performed by the contracting officer.  Specifically, this solicitation provision requires the Contracting Officer to evaluate “equal” products on the basis of information furnished by the offeror or identified in the offer and reasonably available to the Contracting Officer. The provision notes that the Contracting Officer is not responsible for locating or obtaining any information not identified in the offer.

 

Remedies:  For proposal submissions that include this solicitation provision, an offeror’s product will not be considered as an “equal” product if there is an inadequate description of how the “equal” product meets the salient characteristics specified in the solicitation.

 

Background:  This solicitation provision is intended to broaden competition by providing offerors with the maximum opportunity to supply the Government’s needs.  By allowing for “brand name or equal”, the Government is attempting to expand the potential number of offerors.  From a positive standpoint, the provision is clear in specifying what the offeror must provide, and the responsibilities of the contracting officer.  However, the actual effectiveness of the provision is dependent on the adequacy of the “brand name or equal” description provided in the solicitation.

 

Other Key Information:  The provision states that when there is a “brand name or equal” requirement, the salient physical, functional, or performance characteristics that “equal” products must meet will be specified in the solicitation.  Thus, the salient characteristics in the solicitation are the key to the effectiveness of this provision.  There are many solicitations that include an adequate description of the salient characteristics required for the offeror to have an “equal” product.   Unfortunately, there has also historically been a number of Government solicitations were that description has not been sufficient to permit an offeror to adequately bid an “equal” product.  This has generally occurred due to two main reasons.  First, the solicitation simply does not have enough information, i.e., there are little or no descriptions of the characteristics needed to provide an “equal” product.  In other cases, the solicitation includes characteristics that are proprietary to a particular company and thus are not truly “salient” (e.g., the product must include Processer Number XYZ123 – a processer made only by XYZ company).  So how does an offeror proceed when it can provide an “equal” product, but the solicitation does not provide that offeror with the necessary salient characteristics for the offeror to comply with this solicitation provision?  The key to success is for the offeror to take immediate action.  First, the offeror should promptly express their concerns to the Contracting Officer.  Since there is often a very short turnaround time for responding to the proposals, the offeror should also involve the agency competition advocate as soon as reasonably possible.  This can be done by copying the competition advocate on any correspondence with the contracting officer, followed up by a phone call.  Alternatively, if the offeror decides to not include the competition advocate on the initial correspondence, and the Contracting Officer does not respond in a prompt manner, the offeror should contact the competition advocate immediately (it is recommended that the contact be both in writing and by phone).  Offerors that wait to contact the competition advocate until after the period for submitting proposals has ended risk the possibility that the solicitation will move forward without revision, coupled with a promise from the agency to “look at this issue for future solicitations.”  Conversely, when the competition advocate becomes involved during the proposal response period, there is a much greater chance that the solicitation will be revised (assuming the offeror has made a good case that the salient characteristics are inadequate for bidding an equal product).  Finally, if the competition advocate is non‑responsive, the offeror should consider raising the issue to either (a) the higher level competition advocate within the agency, or (b) if there is no higher level competition advocate, the agency Senior Procurement Executive.

 

Have you enjoyed David’s insights on The Clause Column the last few months?  Interested in hearing more?  He has two trainings coming up soon: The Trifecta: Estimating Systems , Cost Analysis and Price Analysis in Washington, DC on February 19-21 and Cost & Price Analysis in Herndon, VA on March 18-19

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