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Bloomberg Law: When Agencies Should Settle for Less: Brand Name Bid Protests

“U.S. agencies regularly tell prospective contract bidders that they must provide a certain brand name product in their proposals—or that only one supplier has the right item—resulting in some companies claiming to be unfairly excluded from competing.

A recent Government Accountability Office decision upholding a defense agency’s request for hollow pins used in Army helicopters made by Boeing Co. illustrates how agencies get leeway on brand name restrictions…”

“Contractors claiming that the brand name requirements are unfairly restrictive have a tough time overcoming the deference that agencies receive to make decisions about their own needs…”

“Protesters ‘will really need to identify any gaps in logic or inaccuracies in the Justification & Approval determinations that the agencies issue in support of such limitations,’ Alex Gorelik of Smith Currie & Hancock LLP, Washington, said. Then they’ll have to draw ‘the necessary connections between those flaws in the agency’s rationale and the agency’s erroneous conclusion that it needs a particular brand name item.’…”

“One way to show an agency doesn’t really need the specific brand name is to submit a capability statement showing that other sources can meet agency needs, said Cherie Owen of Crowell & Moring LLP in Washington…” Read the full article here.

Source: When Agencies Should Settle for Less: Brand Name Bid Protests – By Daniel Seiden, May 9, 2022. Bloomberg Law.

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