Letter: OFPP must punish restrictive procurements

Regarding “OFPP: Watch use of brand names in proposals,” kudos to the Office of Federal Procurement Policy for bringing up again, without saying for a record third time, the abusive practice of overly restricting procurements. In the “brand-name or equal” issue, the ultimate guilty party is the end user or client originating the request for a purchase. For this abusive practice to end OFPP must recommend consequences and disciplinary action for end users. Penalties such penalties as loss of funds and disciplinary action will end it. The issue comes down to unfairly justifying procurements and/or awards. The Fairness in Procurement Alliance (FPA), which has been monitoring the subject for several years and believes the practice is costing small businesses billions, has distributed a notice that addresses the complexity of the problem. I’m reproducing the notice to convey its huge implications, especially for small businesses.


The Office of Federal Procurement Policy (OFPP) has issued - in response to endemic and unethical practices - four separate memorandums for the procurement community. One requires Agencies to increase competition in their procurements, regardless of the vehicle used, and three demanding ‘vendor neutral’ specifications in all of their solicitations to, among other things, prevent contracting abuse allegations and to assure fairness by ‘end-users’ in the competition. Federal Acquisition Regulations (FAR) 11.104; 11.105 and 11.107, according to the OFPP, prohibit end-users from either requesting a ‘sole source/brand’; relying on a patent(s) and/or on any unique characteristic(s) of a desired brand-name or commodity to unfairly (and unethically) overly restrict the specifications and/or justify disqualifying an ‘equal(s)’ which meets the salient characteristics¹ of the sought after commodity. Additionally, Commodities in solicitations which fall in the category of ‘non-essential to the business of the government’ – as per OFPP directive - cannot be supported by an end-user justification(s) if such justification(s) restricts competition. End-users, according to the OFPP, must judge ‘equals’ based, solely, on the ‘salient characteristics of the product/commodity(ies) besides its price, for award recommendation purposes.


Additionally, a ‘brand-name or equal’ solicitation must also define the basis for the award or, in this absence, the award must be made, solely, on ‘lowest cost meeting the salient characteristics¹ of the commodity(ies) sought.’ Although these statements pertain to Federal procurements, its meaning - by default - apply also to public procurements at both the state and municipal level where this unfair and unethical contracting practice also flourishes at the expense of small, minority and socio-economic businesses which are affected by this practice. The FPA intention, in providing this ‘notice,’ is solely TO ALERT procurement specialists of a widely reported endemic situation involving end users attempts to unfairly (and unethically) seek ‘sole source/brand’; overly restrict specifications or justify a recommendation for an award(s) based on an alleged ‘brand-name preference’ and/or on an alleged allegiance to a particular manufacturer or vendor. For questions, please, consult your Agency’s Procurement Director or Ombudsman; your small business specialist, the SBA PCR assigned to your Agency and/or your Agency’s OSDBU office. Such consultation(s) will assure fair competition and ethical evaluations.


FPA has a plan, conceived by entrepreneurs, referred to as the Umbrella Initiative, which not only addresses, but solves most, if not all the reported procurement issues that affect small businesses. The plan involves, among other things, specialized training of the contracting community about issues such as these, but in conjunction with a host of other services. The Umbrella Initiative intends, for the first time, to involve the private sector as an active partner with the government in bringing fairness to the public procurement arena.

Raul Espinosa
Founder and spokesman
Fairness in Procurement Alliance

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