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Published on December 17, 2021 • Law

Agency Failed to Properly Justify Solicitation’s Brand-Name Restriction; Westwind Computer Products, Inc., GAO B-420119

Protest challenging solicitation’s brand-name restriction is sustained. The solicitation required offers to only propose Microsoft products. Under the FAR, a brand-name limitation must satisfy two conditions: (1) the brand-name product must be essential to the agency’s needs, and (2) market research must indicate that other products cannot meet the agency’s needs. Here, the agency’s brand-name justification only addressed the first prong; it did not explain why other products could not meet the agency’s needs. Due to this omission, the brand-name limitation was unduly restrictive.

Background

The Department of Agriculture (USSA) issued an RFQ to holders of a governmentwide acquisition contract. The RFQ contemplated a task order for enterprise business solutions and software assurances. The RFQ required vendors to propose only Microsoft products.

In conjunction with the RFQ, USDA issued a brand-name justification under FAR 16.505(a)(4). The justification provided that Microsoft products were essential to meeting the agency’s security and operational needs.

Legal Analysis

Requirements for Brand-Name Justification – When a task order solicitation restricts offerors to proposing a specific brand-name, the FAR requires the agency to justify the restriction. The justification must set forth two things: (1) the particular brand-name product is essential to government requirements, and (2) market research indicates that other companies’ products cannot meet the agency’s needs.
USDA’s Justification Omitted the Second Prong – USDA’s justification explained in-depth how Microsoft products were essential to the government requirements. But it made no representation about the ability of other companies' products to meet the government’s needs. In fact, the justification stated that USDA planned to conduct a future competition without the brand-name limitation. This indicated that other vendors could meet the agency’s needs. Failure to satisfy the second, market research prong meant the brand-name limitation was unduly restrictive.

Westwind is represented by Scott Arnold, Robyn N. Burrows, and Samarth Barot of Blank Rome LLP. The agency is represented by Melissa D. McClellen of the Department of Agriculture. GAO attorneys Kenneth Kilgour and Heather Weinder participated in the preparation of the decision.

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