When evaluating quotations or proposals, government agencies must rely solely on the evaluation criteria stated in the solicitation. That is, once the procuring agency informs prospective contractors of the criteria against which it will evaluate the proposals, the agency must adhere to the stated criteria. Furthermore, once the evaluation criteria are established, agencies are prohibited from giving importance to specific factors, subfactors, or other criteria beyond which prospective offerors would reasonably expect. Under Federal Acquisition Regulation (FAR) § 11.104, when conducting brand name or equal procurements, the procuring agency’s purchase description must include 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 to receive an award. The FAR further instructs agencies to use brand name or equal descriptions when the salient characteristics are firm requirements. Therefore, quotations proposing “equal” items must be evaluated to ensure the offered items meet the stated salient characteristics of the brand name item. Consequently, the government’s evaluation of quotations may be protested for being improperly based on unstated evaluation criteria when the government fails to convey all the characteristics of the brand name item it considers “salient.”
In B-422171, issued on January 22, 2024, the Government Accountability Office (GAO) sustained a bid protest due to the International Boundary and Water Commission’s (IBWC) unreasonable evaluation of quotations based on unstated salient characteristics in a brand name or equal procurement of a Caterpillar 980 wheel loader. The request for quotation (RFQ) was issued under FAR subpart 8.4 through the General Services Administration’s (GSA) e-Buy portal to vendors holding Federal Supply Schedule (FSS) contracts. Quotations were evaluated on a lowest-priced technically acceptable (LPTA) basis. IBWC received two quotations before the submission due date, with the awardee offering the Caterpillar 980 wheel loader for $660,219 and the protestor offering a Volvo L220H wheel loader for $597,892. The Volvo L220H wheel loader met all the stated salient characteristics in a specification sheet attached to the solicitation. However, after receiving the quotations, the contracting officer (CO) added salient characteristics to the technical evaluation form that were not expressly stated in the initial solicitation. After evaluating both quotations, IBWC concluded that the protestor’s Volvo L220H did not meet six salient characteristics, none of which were listed in the solicitation, and awarded the contract to the contractor offering the Caterpillar 980 wheel loader.
In response to the protest, the agency argued that even though the protestor’s wheel loader met the salient characteristics listed on the specification sheet accompanying the solicitation, that specification sheet was not the sole determining factor in the award decision. In making a distinction between the responsiveness and technical acceptability of quotations, the IBWC further explained that the salient characteristics listed on the specification sheet were used to determine whether a quotation was responsive, not whether a quotation was technically acceptable. The agency argued that to be considered technically acceptable, an offeror’s quotation had to meet other technical criteria. Specifically, the IBWC marked 16 “salient” characteristics as not being met by the Volvo 220H wheel loader. Notably, however, the agency only relied on six of those salient characteristics to reject the protestor’s quotation. The IBWC argued that the solicitation incorporated the six salient characteristics by reference as the solicitation required the offered wheel loader to meet all the salient features or specifications of the Caterpillar 980. According to the agency, the protestor could have easily found the specifications of the Caterpillar 980 on Caterpillar’s website, and therefore, should have proposed a wheel loader that met all its specifications. Alternatively, the IBWC argued that even if all the salient characteristics of the Caterpillar 980 were not encompassed in the solicitation by reference, the protestor’s proposed wheel loader was “significantly different” from the Caterpillar 980. Therefore, the agency argued that it was reasonable for it to determine that the protestor’s quotation was not technically acceptable.
However, the GAO disagreed with IBWC in deciding that the agency unreasonably evaluated the protestor’s quotation as technically unacceptable based on unstated salient characteristics. The GAO reminded the IBWC that in a brand name or equal acquisition, the procuring agency has an obligation to inform vendors of the salient characteristics that are essential to the government’s needs. Additionally, an item offered as an “equal” is not required to meet the unstated features of the brand name product. The GAO also clarified that the consideration of “significant differences” between a brand name and an equal product generally only applies when a brand name or equal solicitation is defective because it fails to specify any salient characteristics as required by FAR § 11.104(b). Here, there was no such defect in the solicitation because the required salient characteristics for the wheel loader were provided in the specification sheet, and the protestor’s offered product met those salient characteristics. Therefore, it was unreasonable for the IBWC to expect the protestor to find and meet additional salient characteristics that were not expressly stated. In sustaining the protest, the GAO also pointed out that the IBWC only relied upon six characteristics for rejecting the protestor’s quotation despite finding that the Volvo L220H had not met ten other unstated characteristics on the technical evaluation form. This indicated that the IBWC was inconsistent in its consideration of characteristics, and that the agency was determining for the first time during evaluation which characteristics it considered salient. Therefore, the agency failed to transparently convey which salient characteristics would form the basis of its evaluation in violation of FAR § 11.104(b).
In brand name or equal solicitations, it is unreasonable for the procuring agency to evaluate quotations based on unstated criteria. The failure of a solicitation to list all the salient characteristics of the item being procured improperly restricts competition by precluding vendors of “equal” products from determining which characteristics are considered essential for their item to be accepted. Therefore, offerors participating in such procurements should ensure that the RFQ adequately describes the “salient” characteristics of the item, in addition to the brand name item. Meanwhile, unsuccessful offerors offering “equal” items in brand name or equal procurements should request a brief explanation following the award decision to ensure the procuring agency did not rely on any unstated evaluation criteria or “salient” characteristics in making the award decision. As demonstrated in B-422171, the government’s reliance on unstated “salient” characteristics is an adequate basis for a post-award protest in such procurements.
This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
