We address first the argument that the ASI product accepted by the agency was not the brand name product identified in the solicitation, and the contention that the agency was required to treat the ASI product as an “equal” product, and determine whether the product met the salient characteristics. There is no dispute in this record that the solicitation here contained a typographical error in its identification of the brand name product. Instead of identifying an Alaska Extreme 1826 Shelter, the solicitation identified an “Alaska Extreme 1836 Shelter.” We note that the numerical portion of this description is the same as the dimensions of the shelter--i.e., ASI’s 1826 shelter measures 18 feet by 26 feet. Thus, the 1826 number matches the dimensions set forth in the solicitation’s salient characteristics, which identified a shelter measuring 18 feet by 26 feet. RFQ at 2. In addition, ASI explains that “there is no such thing as an Alaska Structures Extreme 1836 Shelter.” ASI’s Supp. Comments, Sept. 17, 2007, at 2. Moreover, CAMSS has not suggested that it was misled by this error; CAMSS was aware that the solicitation required--and CAMSS offered--a shelter measuring 18 feet by 26 feet. While we recognize that the Air Force should have identified the proper brand name in its brand name or equal product description, there is no evidence in this record that the parties were misled by this typographical error in the RFQ. We conclude that ASI offered, and the Air Force accepted, the brand name item requested. As a result, the Air Force properly accepted the ASI product without determining whether the product met the salient characteristics identified for “equal” products. See Mid-Florida Corp., supra. With respect to whether the agency acted reasonably in concluding that CAMSS’s quotation failed to establish that its product met the salient requirements of the solicitation, we deny the protest. As set forth above, the agency concluded that CAMSS’s quotation failed to establish that its product met four of the salient characteristics. In two of the areas resulting in the rejection of CAMSS’s quotation, the solicitation required the submission of test reports--in one instance, to establish the ability of the product to withstand a sustained wind load; in the other, to establish the ability of the product to withstand a snow load. While the protester argues that its product can meet both requirements, the record shows that CAMSS did not submit test reports to document its ability to meet either of these requirements. AR, Tab 6, CAMSS Quotation. At best, CAMSS simply asserts in its quotation that its product is engineered to withstand the wind load and snow load requirements. Id. at 1. Accordingly, we think the agency reasonably concluded that the quotation failed to meet the requirements established in the solicitation.  CAMSS also argues that the requirements in the RFQ for test reports constituted unapproved “qualification requirements,” as that term is defined in FAR sect. 2.101. More specifically, CAMSS argues that the agency cannot enforce these requirements without violating FAR sect. 9.206, which requires that agencies comply with specific procedures to obtain approval of particular qualification requirements. This argument is untimely. Under our Bid Protest Regulations, a protest objecting to the terms of a solicitation must be filed before the closing date for responses in order to be timely. 4 C.F.R. sect. 21.2(a) (2007). The testing requirements at issue here were explicitly stated in the RFQ, yet CAMSS did not challenge their inclusion until after the competition was complete and ASI had been selected.  (CAMSS Shelters, B-309784; B-309784.2, October 19, 2007) (pdf)

Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. Bryan Constr. Co., B-261482, Sept. 20, 1995, 95-2 CPD 142 at 2-3. If the firm fails to do so, its product properly is rejected as nonconforming. Id. Here, applying the specifications contained in the RFQ to AGM's product, the agency found AGM's quotation unacceptable. In its response to the agency report, AGM does not dispute that finding, and the record clearly establishes that the product quoted by AGM failed to meet four minimum specifications contained in the RFQ. Accordingly, we find that the agency properly rejected AGM's product. (American Government Marketing, Inc., B-294895, November 22, 2004) (pdf)

American Floor asserts that the rejection of its quotation was improper because it in fact was based on the brand name, not an equal product, and therefore was not required to include descriptive literature. American Floor asserts that it submitted the information from Micor only to demonstrate that it was a certified installer of flooring, not to demonstrate that it intended to use Micor products. The agency reasonably rejected the protester's quotation here. In response to the agency's request that American Floor clarify what it was quoting, the protester did not state that it was offering the brand name. Instead, American Floor submitted a statement from Micor that the protester was a certified installer of Micor products, and a statement that it would submit the "product equals" when they were received from the manufacturer. The agency reasonably interpreted this response to its specific question as indicating that American Floor was quoting on an "equal" Micor product rather than the brand name; indeed, we think this is the only reasonable interpretation of the protester's response. While the protester asserts that it submitted the letter from Micor only to demonstrate its qualifications, not to suggest that it would not use the brand name products, this simply was not clear from its response. We conclude that the Air Force reasonably determined that the protester's quotation was based on an equal product, and that the agency therefore properly rejected the quotation for failure to include the required descriptive literature demonstrating the equivalence of its quoted product to the brand-name product. (American Floor Consultants & Installations, Inc., B-294934; B-294934.2, December 16, 2004) (pdf)

FAR sect. 11.104 allows the use of brand name or equal purchase descriptions in describing agency needs in a solicitation, but requires: (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. Acquisitions conducted under FAR Parts 12 and 13 are not exempt from this requirement.  Thus, this brand name or equal RFQ was defective because it did not list salient characteristics, so that quoters offering equal products were left to guess at the desired essential qualities of the brand-name item. See Ciba Corning Diagnostics Corp., B-223131, Aug. 13, 1986, 86-2 CPD para. 185 at 3. Where an agency does not include a list of salient characteristics in the solicitation, the agency is precluded from rejecting a quote offering an equal product for noncompliance with some performance or design feature, unless the offered item is significantly different from the brand-name product. Id. at 4; see Access Logic, Inc., B-274748, B-274748.2, Jan. 3, 1997, 97-1 CPD para. 36 at 3-6. Here, the Forest Service did not reasonably determine that Elementar's offered equal product was significantly different from the brand-name product.  (Elementar Americas, Inc., B-289115, January 11, 2002) (pdf)

Additionally, plaintiff asserts that, even if a sole source justification were proper, DHS’s Brand Name Justification failed to comply with the applicable law.20 The Federal Acquisition Regulation (“FAR”) subpart 6.3, addresses the requirements for sole source procurements and brand name justifications. Plaintiff avers (1) that DHS did not make the Justification available to the public as required by FAR § 6.305; (2) that the Justification does not identify the estimated value of the required supplies or services, and does not identify the statutory authority excusing it from full and open competition, in violation of FAR §§ 6.303-2(a)(3) and (4); (3) that the Justification does not include a demonstration that the proposed contractor’s qualifications are unique, in violation of FAR § 6.302-2(a)(5); (4) that the Justification does not include a description of DHS’s efforts made to ensure that offers were solicited from as many potential sources as practicable, in violation of FAR § 6.303-2(a)(6); (5) that the Justification does not include a determination by the contracting officer that the cost will be fair and reasonable, in violation of FAR § 6.303-2(a)(7); (6) that the Justification does not include a description of the market research conducted or a statement of the reason it was not conducted, in violation of FAR § 6.303-2(a)(8); and (7) that DHS failed to include the Justification with the pending TASC solicitation for support services, in violation of FAR § 5.102(a)(6).

Defendant argues that the Justification document is not a brand name justification for a sole source procurement, but rather is misleadingly titled and irrelevant. Defendant further avers that the Justification explains the basis for acquiring software development integration services in support of the migration to Oracle and SAP, not the purchase of Oracle or SAP software systems. Defendant asserts that this, together with the fact that DHS did not publish the Justification, demonstrates that DHS did not consider the document to constitute a brand name justification under FAR.

Defendant, however, titled the document “Brand Name Justification,” and under Section (4) of the document, offered a rationale/justification for selecting the two [Oracle and SAP] baselines. Moreover, the Justification states that [***]. On its face, then, it appears that DHS was attempting to avoid the full and open competition requirements of CICA by means of this Brand Name Justification.

Moreover, plaintiff legitimately argues that other responsible sources for compliant financial management software systems exist. The Justification states that [***]. The fact that three financial software systems in addition to Oracle and SAP currently service DHS in this capacity points to the fact that there are at least three additional responsible sources. Furthermore, the Justification provides that [***]; however, “the technical and administrative superiority of a given firm over all other possible sources has never been accepted as a justification for sole-source procurement from that firm.” Aero Corp. v. Dept. of the Navy, 540 F. Supp. 180, 208 (D.D.C. 1982). Instead, “[t]he place where . . . differences (in technical merit) appropriately should be considered is in evaluating proposals in connection with a negotiated procurement.” Id. at 209 (internal citation omitted). It follows that DHS cannot merely select certain software systems because it feels they are most costeffective. This is not to say that cost and merit cannot be considered, but so long as there is more than one source competent to perform the contract, DHS must evaluate the merit of each offeror’s product through the competitive lens. Because there were additional responsible sources here, DHS’s decision to use Oracle and SAP financial software systems via the Brand Name Justification is an improper sole source procurement in violation of CICA. Consequently, we need not address the compliance of the Justification with the applicable provisions of FAR.  (Savantage Financial Services, Inc., v. U. S., No. 08-21C, April 15, 2008) (pdf)