Part of an ongoing series of tips and information to help new contractors learn the business of Defense Contracting. Today we’re going to discuss a little known FAR regulation that I used to snipe a contract from a competitor.
This company controls more than 90% of the market for the sale of our type of data to the U.S. Military. One of the ways they have accomplished this is by getting buyers to use their overly restrictive Procurement Item Description (PID) in solicitations. This includes obsolete databases that are no longer available and not used by the government. When the government lists specific requirements in the PID anyone bidding has to be able to provide ALL of the requirements. You’re missing one, you’re out.
Sometimes the government will request a specific brand name when they believe that brand is the only one that can satisfy the government’s needs. FAR 8.405-6 Limiting Sources limits the ability to use brand names:
(b) (1) Brand name specifications shall not be used unless the particular brand name, product, or feature is essential to the Government’s requirements, and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs.
This procedure requires a Justification and Approval showing that the brand is the only one that satisfies the requirement.
Because of this limitation the government will often used “Brand Name or Equal” to provide the opportunity for competition. If a company can compete with a brand name requirement, they can ask the buyer to change the solicitation to Brand name or Equal. When using this provision the contracting officer must include a list of salient characteristics describing the item. This is described in FAR 11.104:
(b) Brand name or equal purchase descriptions must include, in addition to the brand name, a general description of those salient physical, functional, or performance characteristics of the brand name item that an “equal” item must meet to be acceptable for award. Use brand name or equal descriptions when the salient characteristics are firm requirements.
Here’s where exact wording is so important in government contracting. If the law specifically requires something, buyers are required to adhere to the letter of the law as it is written.
Sniping the contract
In our case, the buyer used our competitor’s brand name in the solicitation but failed to include the salient characteristics describing which features are required. When this happens, since the government didn’t specifically describe the requirements needed to be “equal” to the brand name, it is assumed that all bidders satisfy the equality requirement and it’s awarded to the lowest bidder. After the close of the solicitation, we reminded the buyer of this and won the contract.
The point is, know the FAR regulations and always be looking for mistakes that buyers make.
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