Despite Language Indicating Agency May Consider Alternative Products, Solicitation Was Really A Brand Name Procurement; W&G Machine Corporation, Inc., GAO B-418698.2, B-418698.3

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Protest challenging agency’s cancellation of solicitation is denied. The agency claimed it cancelled because the solicitation effectively sought a brand name product and the agency had not prepared a justification for a brand name procurement as required by the FAR. The protester argued that while the solicitation only identified one acceptable source for the product, it was not a brand name procurement because it also allowed vendors to propose alternative products. GAO, however, noted that under its caselaw, when a solicitation identifies only one acceptable source, it is a brand name procurement regardless of language that contemplates alternative products.

The Defense Logistics Agency (DLA) posted an RFQ seeking rigid connecting links for use in helicopters. The RFQ noted the connecting links had been designated as a critical safety item that could only be procured from pre-qualified manufacturers. The RFQ identified Sirkorsky Aircraft Corporation as the only prequalified manufacturer. Nevertheless, the RFQ also indicated that the agency would consider connecting links not manufactured by Sirkorsky. If a vendor proposed an alternative link, they had to submit extensive technical data in support of the product.

Two vendors, including W&G Machine Company submitted quotes. W&G proposed its own product. Before the closing date for quotes, W&G filed a protest challenging the terms of the solicitation. W&G claimed the solicitation was unduly restrictive in listing Sirkorsky as the only approved manufacturer. W&G argued that the solicitation was a de facto source solicitation and that DLA had failed to prepare a written justification and approval as required by the FAR.

DLA cancelled the solicitation on the grounds that it had failed to follow regulatory requirement in issuing the solicitation as a brand name requirement. GAO dismissed W&G’s protest as academic. W&G then filed a second protest challenging the cancellation of the solicitation.

W&G contended that DLA had cancelled the solicitation as pretext to avoid considering the company’s protest challenging the terms of the solicitation. GAO noted that so long as there is a reasonable basis for doing so, an agency has broad discretion in cancelling a solicitation.

Here, GAO reasoned that DLA had a reasonable basis for cancelling the solicitation. The RFQ was issued under the simplified acquisition procedures set forth in FAR subpart 13.5. Under those procedures, an agency may limit a solicitation to a brand name product when the contracting officer documents the justification for the brand name restriction. In this case, the RFQ identified Sirkorsky as the only source for the links, but DLA had failed to document and publish the justification for the brand name procurement. GAO determined that it properly decided to cancel the solicitation to rectify the error.

W&G, however, argued that the documentation was not required because the solicitation was not really a brand name procurement. In fact, the solicitation noted that vendors may submit alternative products that were not manufactured by Sirkorsky. But GAO reasoned that its cases generally treat solicitations seeking items from one approved source as sole-source or brand name procurements, even when those solicitations contemplates alternative items. Here, the solicitation was clearly limited to products manufactured by Sirkorsky and was thus a brand name procurement. While it contemplated alternative items, it also noted that those alternative items may only be applicable to future procurements.

Lastly, GAO gave little weight W&G’s allegation that the cancellation was a pretext to avoid litigating W&G’s previous protest. This argument did not make  sense in the context of W&G’s initial protest. In that protest, W&G argued that the solicitation was a sole source procurement that required a justification. DLA had essentially agreed and cancelled the solicitation to prepare the justification. W&G could not now complain that the cancellation was a pretext when in fact obtained the relief it requested in its initial protest.

W&G is represented by James White of Marshal and White, PC. The agency is represented by Colleen Loughran of the Defense Logistics Agency. GAO attorneys Michael Price, Michael Willems and Edward Goldstein participated in the preparation of the decision.

GAO - W&G Machine Corporation