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ASBCA addresses contractor’s burden in submitting “or equal” product

April 22, 2021 By Andrew Smith

In Carothers Construction, Inc.,1 the Armed Services Board of Contract Appeals discussed the contractor’s burden in submitting an “or equal” product.  The contract incorporated FAR 52.336-5, Material and Workmanship, which provided in part that:

The Contractor may, at its option, use any [sic] equipment, material, article, or process that, in the judgment of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this contract.  (emphasis in original)

The contractor sought to substitute a type of acoustical deck roof product that was different from that called out in the solicitation structural drawings.  The Government rejected the substitution request, and the contractor ultimately provided the specified decking and sought the increased costs of supplying such material.  The Government took the position that it was entitled to strict compliance with the specified specifications.

Continue reading at:  Davis, Wright, Tremaine LLP

Filed Under: Contracting Tips Tagged With: or equal, product substitution

DoD to limit use of ‘Brand Name or Equal’ contract competitions

November 7, 2018 By Andrew Smith

The Department of Defense (DoD) has proposed a new rule limiting the use of “brand name or equal” contract competitions, calling on contracting officers to publicly justify their need for a brand name-type product before issuing a solicitation.  The rule would implement Section 888(a) of the National Defense Authorization Act of 2017, which directed the Secretary of Defense to “ensure that competition in [DoD] contracts is not limited” by brand name references without a justification under 10 U.S.C. § 2304(f).

Background

Federal procurement law requires agencies to draft competitive solicitations that describe the Government’s needs generally, rather than referencing a specific type of product.  However, “under certain circumstances,” agencies may request a specific brand name product or its equal.  An off-brand product is “equal” if it shares the same the same salient characteristics as the brand name product. 

Contractors have at times challenged, through pre-award bid protests, agency decisions to reference a brand name product as unfair and unduly restrictive of competition, contrary to the Competition in Contracting Act of 1984’s (CICA) requirement for full and open competition.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/11/whats-in-a-brand-name-dod-to-limit-use-of-brand-name-or-equal-contract-competitions/

Filed Under: Contracting News Tagged With: bid protest, brand name, CICA, competition, DFARS, DoD, equal, FAR, NDAA, or equal, solicitation

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