Agencies are failing to specify why a brand is necessary, which can limit competition, according to a memo from Paul Denett.
The Office of Federal Procurement Policy has been getting complaints about agencies’ inappropriate use of brand-name descriptions in their purchase proposals, officials said.
OFPP Administrator Paul Denett wrote in a Nov. 28 memo to senior procurement officials that agencies are asking for a specific brand name without specifying why that brand is essential to meeting the need. They also fail to give a general description of the necessary characteristics when they’re open to products equal to a particular brand mentioned in the proposal.
“Misuse of these purchase descriptions can limit competition, impact prices and ultimately affect how taxpayer dollars are spent,” he wrote, adding that the descriptions also help keep government contracting transparent.
The Federal Acquisition Regulation restricts an agency from writing requirements in a solicitation so only a particular brand name will meet those standards. An agency can only specify a brand if officials can justify why that brand is essential, either through market research or proving that no other product can meet the requirements or be modified to fit. The brand-name justification must be a part of the solicitation.
Regulations allow agencies to name a specific brand in a solicitation, but the agency must describe the brand’s general characteristics so another company can understand what the agency needs
Robert Burton, OFPP deputy administrator, said many agencies inappropriately use brand names in their solicitations.
When doing so, the agency must include a “brand-name justification” or a “brand name or equal” specification. They are not often found, though. Burton said so few solicitations even mention the phrase “brand name” compared to the volume of purchases that the government makes annually.
For example, a search for the phrase “brand name” on the Federal Business Opportunities Web site turns up only 110 postings out of 138,645 active posts as of 4 p.m. today.
“We don’t see much there,” Burton said. “It’s a real problem.”
He said the small number of posts “is one of the principle challenges we have in increasing competition.”
Burton said officials have anecdotal evidence of inappropriate use of brand names, although it’s widespread.
Industry sources say the Homeland Security Department named specific brands in a task order solicitation for OneNet, the department’s future intranet for sensitive but unclassified information. They say mentioning the brands — such as Cisco Systems, IBM and Packeteer — may have delayed the procurement for a third time.
In the memo, Denett told agencies to create internal controls to make sure their acquisitions meet the regulations for purchase descriptions and publicly justify the brand-name requirements.
Officials issued policy memos in April 2005 and April 2006 applying the requirements for acquisitions of more than $25,000. The FAR was revised in September 2006 to include the provisions.
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