Q. We currently own a Toshiba laptop and wish to go out for a Toshiba (or Toshiba authorized) laptop maintenance program vs. basic generic laptop service. The term is a 2 year term. Do we need to request a sole source justification from the user for specifying a brand name?
A. This is not a sole source situation. You will be seeking competitive bids from companies qualified to service Toshiba computers. Based on the facts given to us, we do not see this as a restriction on competition. (Reviewed: September 8, 2009)
Q. We are putting together specifications for a bus bid. The solicitation contains hundreds of items/components. For approximtely 24 of those items, we are describing the component as "brand name or approved equal" The other items do not reference a brand name. For those items that are presented as "brand name or approved equal,"we list the salient characteristics of each item. (The salient characteristics ar performance requirements. They do not include design requirements.)
There are a few main components such as the engines, transmissions, and HVAC that the City woudl like to keep the same brand that we are currently using or find something that is very similar. For these items, the City has concerns about training, impact on existing inventory, the requirement to buy additional diagnostic equipment required, etc. Presently, we have specified "brand name or approved equal" for these components as well and have included the salient charcteristics.
We would like to promote fair and open competition and, accordingly, have presented many of the components as a "brand name or approved equal." To aid in our fair evaluation of a proposed product, we have developed a checklist for how we intend to evaluate a proposed product. This checklist is not included in the bid but we intend to maintain it in our files as justification on how we evaluated proposed products. The checklist includes these evaluation criteria:
- Is additional inventory required? Yes or No.
- Is additional trainng required? Yes or No.
- Is additoinal diagnostic equipment required? Yes or No.
- Is additional software required? Yes or No.
- Are additional tools required? Yes or No.
- Is local support available? Yes or No.
- Does it have significant financial impact to the City? Yes or No.
- Does it fully integrate with necessary components? Yes or No.
We would like to use this evaluation checklist to approve or reject an "approved equal" for the major components (i.e., the engine, transmission, and HVAC). For all other components, we do not intend to use this checklist.
Here are our questions(s):
- Is it acceptable to evaluate an "approvd equal" in this manner? Can we evalute a proposed product on things other than the salient characteristis of the product?
- If we do use this checklist, do we have to use it to evaluate ALL of the "approved equal" components, such as connectors, switchs, etc.? Can we just use if for the major items for which we have these additional concerns?
A. We would agree with your proposed approach of using a two-step procurement process in order to evaluate the proposed "brand name or equal" submissions prior to the solicitiation of bids in step two. Our recommendation would be that you disclose to prospective bidders the factors you intend to evaluate (performance of the component/subsystem, inventory requirements, training, etc.), and invite the bidders to furnish their thoughts as to how the agency might optimize the maintenance, spares and general operational efficieny. How, in other words, would the bidder propose to measure the total cost of ownership given the present fleet configuration. This suggestion is based on the thought that a bidder may be able to offer information as to total ownership costs that you would want to consider before making your determination of what you will accept as an "equal" component for step-two bidding. You would of course be free to conduct discussions and fact-finding with the various bidders in step-one as part fo the evaluation process, and also, as you suggested, advise them how they might change or improve their products for later bidding opportunities with your agency. (Reviewed: September 8, 2009)
Q. Our region has invested a significant amount of money and infrastructure into our transit software and hardware (Automatic Vehicle Locators, scheduling, mapping software, etc.). We need to purchase a particular type/brand of mobile data terminal. Can we bid this using "brand name or approved equal?"
A. It is our understanding that you intend to solicit competitive bids or proposals for paratransit vehicles and that the vehicles must include a mobile data terminal (MDT) subsystem that is compatible with existing systems on your paratransit vehicles. It would be permissible and appropriate for you to use a brand name or equal specification for the MDTs. You will have to include the "salient characteristics" of the MDT for purposes of evaluating "equals." The Best Practices Procurement Manual gives some guidance on how salient characteristics may be defined. (Revised: September 8, 2009)
Q. Our agency needs to implement a bus stop improvement program. We plan to purchase new street furniture and install it. We are thinking about going out with a Furnish and Install type solicitation and call out a brand name of furniture that we want to buy or approved equal. The intent is to award a contract to a construction company that can buy the furniture for us and install it. Is this compliant with FTA regulations?
A. We believe your description of a competitive solicitation with a brand name or equal specification for the furniture complies with the FTA Circular 4220.1F. We would also note that the Best Practices Procurement Manual (BPPM), may be helpful with regard to specifying the "salient characteristics." (Revised: September 8, 2009)
Q. If justified, can a brand name be specified in a solicitation document in the following scenario?
We currently have Hannan (Mfg) Bike Lockers at our rail stations. We are currently in need of 34 more, but they have to be Hannan because of the stacking capabilities onto the current bike lockers. We do not wish to allow an approved equal because of past experience. We are, however, not limiting competition because we are doing an IFB for the purchase, delivery, and installation. We are aware of at least 3 firms who can acquire the Hannan Bike Lockers and have the capability of installing them.
The question is, can we specify Hannan without going through an approved equal time period? It is not really sole source procurement and the BPPM doesn't specifically address this situation (that I can find). We have justification from the technical department that explains the need for the Hannans.
A. We would agree that the proposed procurement is not sole-source procurement; however, FTA Circular 4220.1F, considers the specification of only a "brand name" product, without listing its salient characteristics and not allowing "an equal" product to be offered, as a situation which is "restrictive of competition." As such the practice would violate the "full and open competition" requirement of the Circular. Having said this, however, we would also add that there are times when considerations like standardization of parts, compatibility with existing systems, ease of maintenance, etc. will require the procurement of items manufactured by the same contractor that manufactured existing systems. This may be the case in your situation, and if it is we would suggest that you document your file to explain why the Hannan Bike Lockers must be the brand installed, and have the justification signed by the same agency officials that would process a sole-source justification. Explain to them that while the solicitation will be competitive, there is a restrictive specification that the agency feels is justified. (Revised: September 8, 2009)
Q. Some buses in our current fleet have the GE Security Mobileview system in place. We purchased new buses and have existing buses that need this security equipment. Obviously, we want the security system in our buses to be compatible with each other. We have a letter from GE Security stating that Transit Marketing Group is the sole authorized sales force to the transit market for the Mobileview products. Is a letter of this nature sufficient documentation that the item is available only from a single source?
A. It would appear that you have a non-competitive issue at two levels: (1) The specification for the GE DVR system itself; and (2) the fact that there may be only one company that GE allows to sell this system.
The Common Grant Rules prohibit solicitation requirements that contain features that unduly restrict competition. FTA recipients are also prohibited by 49 U.S.C. Section 5325(h) from using FTA assistance to support an exclusionary or discriminatory specification. Specifying only a "brand name" product without allowing offers of "an equal" product, or allowing "an equal" product without listing the salient characteristics that the "equal" product must meet to be acceptable for award is considered to be restrictive of competition.
Ideally, you should issue your RFP and include the salient characteristics of the system so that others may offer their products. If you decide you cannot allow other products to be offered you must process a sole source justification through appropriate management offices before you issue the RFP, setting forth the reasons that preclude other systems from being accepted and describe the fact that there may be only one company that is able to sell the restricted system. (Revised: September 8, 2009)
Q. If soliciting bids for brake components and requesting Bendix or approved equal, is this a sole source if Bendix has many Distributors available in the US? Also is it possible to request Bendix only?
A. Specifying a "brand name or equal" is not a sole source procurement. The FTA Circular 4220.1F, Chapter VI 2.a. (3) and 2.a. (4) (f) requires grantees in competitive procurements to allow bidders to offer "equal" products when specifying brand names. If the specification requires a brand name only, without allowing bidders to offer "equals," then the procurement is a noncompetitive, sole source and must be justified as such, regardless of how many distributors for that brand may bid. (Posted: May 2010)
Q. We have a design-build procurement where the construction work is predominant. We plan to use a 2-step process where the second step involves competitive proposals that include a price to design and construct the work. Our solicitation documents do not specify
particular products. Once the design-builder is selected, can the design-builder's designer specify "Brand Name Only" products in its drawings/specs for use by the design-builder's contractor or is the designer required to specify "Brand Name or Equal" as required by
4220.1F(VI)(2)(a)(3)? Similarly, may the design-builder's designer specify products that are only available from a sole source? Potential proposers are suggesting that if the answer to either question is 'no', that such clauses could restrict the contractor's means and methods and
could increase project cost and schedule.
A. Your Design - Build contractor is not required to comply with FTA Circular 4220.1F since he is not a "recipient" or "subrecipient." He is required to comply with the clauses that you include in his contract. As long as the specification in your solicitation and prime contract is not restrictive in requiring a brand name without the ability to offer equals, we do not see any problem if your contractor chooses to meet your specification with the procurement of a brand name. (Posted: January, 2012)