When a bid contains a brand name, trade name, catalog number, “or equal” or “as per sample” other than that specifically named in the IFB’s specifications and the bidder proposes to furnish this equal substitute commodity, such fact shall be noted on the bid sheet or on a separate page attached to the bid. Information or descriptive literature explaining the substitution item must be attached to the bid. Failure to provide literature for substitutions may be grounds for rejection of the bid. When the IFB’s specified item(s) must be compatible with or fit into an existing installation, or due to other essential reasons, the business owner may decide that a substitution cannot be accepted. However, the bulleted directives below must be adhered to when developing the IFB’s requirements/specifications and for making a determination that a substitute is unacceptable.
- Brand name or equivalent specifications: 2.2-4315 of the Code of Virginia directly addresses the use of brand names in specifications: “Unless otherwise provided in the Invitation to Bid, the name of a certain brand, make or manufacturer shall not restrict bidders to the specific brand, make or manufacturer named and shall be deemed to convey the general style, type, character, and quality of the article desired. Any article that the public body in its sole discretion determines to be the equal of that specified, considering quality, workmanship, economy of operation, and suitability for the purpose intended, shall be accepted.” Brand name or equivalent specifications may be used when it is determined that:
- No other design, performance, or qualified product list is available.
- Time does not permit the preparation of another form of specification or purchase requirement which does not include a brand name specification.
- The nature of the product or the nature of the requirements makes use of a brand name or equivalent specification suitable for the procurement.
- Use of a brand name or equivalent specification is in the Commonwealth’s best interest.
- Designation of several brand names: Brand name or equivalent specifications shall seek to designate three or as many different brands as practicable, as "or equivalent" references and shall state that substantially equivalent products to those designated may be considered for award.
- Required characteristics: If the procuring activity determines the essential characteristics of the brand name included in the specifications are commonly known in the industry or trade, the brand name or equivalent specifications shall include a description of the particular design, functional, or performance characteristics required.
- Nonrestrictive use of brand name or equivalent specifications: When a brand name or equivalent specification is used in an IFB, the IFB shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance and characteristics desired and is not intended to limit or restrict competition.
- Determination of equivalents: Any prospective bidder may apply in writing to the procuring agency for a pre-bid determination of brand name equivalence. If sufficient information is provided by a prospective bidder, the agency may make written determination prior to the bid opening time that the bidder’s proposed product would be equivalent to the brand name used in the IFB.
- Specifications of equivalents required for bid submittal: Bidders proposing equivalent products must include in their bid submittal the manufacturer's specifications for those Brand names and model numbers are used for identification and reference purposes only.
Performance-based specifications when procuring personal computers and related peripheral equipment pursuant to any type of blanket purchasing arrangement shall be established without regard to brand name.
2.2-2012(E) of the Code of Virginia provides as follows:
“If VITA, or any executive branch agency authorized by VITA, elects to procure personal computers and related peripheral equipment pursuant to any type of blanket purchasing arrangement under which public bodies, as defined in § 2.2-4301, may purchase such goods from any vendor following competitive procurement but without the conduct of an individual procurement by or for the using agency, it shall establish performance-based specifications for the selection of equipment. Establishment of such contracts shall emphasize performance criteria including price, quality, and delivery without regard to ‘brand name.’ All bidders meeting the Commonwealth's performance requirements shall be afforded the opportunity to compete for such contracts.”