This post primarily pertains to federal government procurement, however, many of the practice pointers and issues apply to state public works contracts as well.
A contract provision calling for a “brand name or equal” is intended to broaden competition. In these solicitations, a bidder may either submit a price on the “brand name” product or an “equal” product, which provides bidders with the greater opportunity to supply the government’s needs. The government attempts to expand the number of potential bidders when allowing for “or equal” flexibility. From a positive standpoint, the “band name or equal” provision specifies what the bidder must provide and the responsibilities of the contracting officer. The actual effectiveness of such a provision, however, depends on the adequacy of the “brand name” description provided in the bidding documents.
For items identified in a solicitation as “brand name or equal,” FAR 52.211-6 (the federal contract clause) requires that the bidder’s proposal include: (1) an identification of each product offered as an “equal” product; (2) 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; (3) the item by brand name (if any) and make/model number; (4) descriptive literature, such as illustrations, drawings, or a clear reference to previously-furnished descriptive data or information available to the contracting officer; and (5) clearly describe any modifications the offeror plans to make to a product to make it conform to the solicitation requirements.
Although FAR 52.211-6 permits the description of the product by “brand name or equal”, it discourages this type of description and considers it the least acceptable method of describing a product. When using an “equal” description, the “agencies should provide detailed guidance and necessary clauses for use by contracting activities when using this technique.” All the salient characteristics of the “brand-name product or products” determined by the agency to be essential to the government’s minimum requirements should be clearly identified and included in the purchase description under the heading, “Salient Characteristics.” In reality, the Salient Characteristics become a “performance specification.” The “equal” product must be functionally equivalent to the brand-name product, but not necessarily the same in every detail as indicated in a U.S. Court of Claim decision: “if it performs substantially the same function in substantially the same way and for substantially the same purpose it is equivalent.”[1]
- 1. Compliance Verification. The contracting officer verifies that a non-brand-name product is truly “equal.” The solicitation provision requires the contracting officer to evaluate “equal” products on the basis of information furnished by the bidder, or identified in the bidder’s proposal and reasonably available to the contracting officer. The contracting officer, however, is not responsible for locating or obtaining any information not identified in the bid. Thus, bidders should include all the information to demonstrate that the alternative product provides all the essential functions specified and will be suitable to the government’s actual needs.
- 2. Remedies. For proposal submissions that include “equal” products, the contacting officer will not consider a bidder’s product “equal” if there is an inadequate description of how the “equal” product meets the Salient Characteristics specified in the solicitation. Thus, bidders are encouraged to completely demonstrate the performance equivalency of the “equal” product in their bids.
Comments: When there is a “brand name or equal” requirement, the Federal Acquisition Regulations require the solicitation to specify the salient physical, functional, or performance characteristics that “equal” products must meet. 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 bidders to have an “equal” product. Unfortunately, a number of government solicitations where insufficient descriptions precluded a bidder from proposing an “equal” product.
This generally occurs for two main reasons: (1) the solicitation simply provide insufficient information, i.e., it supplies little or no descriptions of the characteristics needed to provide an “equal” product; or (2) the solicitation includes characteristics that are proprietary to a particular company and thus not truly “salient” (e.g., the product must include processor number PN123 – a processor made only by ABC company).
When confronted with a solicitation concerning an “equal” product that does not provide the bidder with the necessary Salient Characteristics to comply, what actions should the bidder take?
- The key to success for the bidder is to act promptly. The bidder should express its concerns to the contracting officer before the close of the period for submitting proposals. Since often a very short turn-around time for responding to proposals, the bidder should also involve the agency “competition advocate” (the office of Federal Procurement Policy requires that the head of each agency designate a competition advocate for the agency for procuring activity) on any correspondence with the contracting officer, and follow-up with a telephone call.
- If the bidder decides not to involve the competition advocate on the initial correspondence and the contracting officer does not respond in the prompt manner, the bidder should contact the competition advocate immediately (again, we recommended that context be in writing and by telephone).
Bidders that contact the competition advocate after the period for submitting proposals risks the possibility that the solicitation will move forward without revision. When you involve the competition advocate during the proposal response period, there is a greater chance that he or she will revise the solicitation.
[1] JB Williams Company v. United States, 450 F.2d 1379, 1391 (Ct. of Cl. 1971).