Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

Decision 

Matter of: Critical Process Filtration, Inc. 

File: B-400746, B-400747, B-400750, B-400751, B-400752, B-400785 

Date: January 22, 2009 

Brent Arbogast for the protester. 

Michael Walters, Esq., and Richard Ferguson, Esq., Defense Logistics Agency, for the 

agency. 

Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

1. Protester’s contentions that three agency procurements for brand-name filters 

improperly limit competition are denied where the record shows that the agency is 

procuring the brand-name items using simplified acquisition procedures and has 

adequately justified the use of its brand-name approach under the procedures 

applicable to simplified acquisitions. 

2. Protester’s contention that a fourth agency procurement for brand-name filters 

improperly limits competition is sustained where the procurement history 

information set forth in the solicitation shows that the value of the requirement is 

likely to exceed the applicable simplified acquisition threshold of $100,000; 

accordingly, the streamlined procedures applicable to simplified acquisitions cannot 

be used for this requirement. 

DECISION 

Critical Process Filtration, Inc. (CPF) of Nashua, New Hampshire, a small business, 

protests the terms of six solicitations by the Defense Logistics Agency (DLA) for 

various types of brand-name fluid filters which are used in particular weapons 

systems. CPF argues that the solicitations lack essential information that would 

allow CPF to determine whether it can manufacture the filters itself, and therefore, 

whether to submit responses, and more broadly, that DLA has unjustifiably limited 

competition to specific brand-name items. 
Page 2 B-400746 et al.

We deny three of the protests, dismiss two of them,1 and sustain one. 

BACKGROUND 

Each of the challenged solicitations was electronically posted on the DLA Internet 

Bid Board System at https://www.dibbs.bsm.dla.mil as a request for quotations 

(RFQ), and each RFQ sought a different type of fluid filter. The postings provided 

only the national stock numbers (NSN), the names of the manufacturers, and their 

part numbers. 

DLA describes all four of the RFQs as simplified acquisitions because it assigns a 

value of under $100,000 to them. See Federal Acquisition Regulation (FAR) § 2.101 

(definition of “simplified acquisition threshold”). For three of the RFQs, there 

appears to be no question that the procurement is properly valued at less than the 

simplified acquisition threshold.2 First, in B-400750, DLA estimated that it would 

place orders under an indefinite-delivery purchase order (IDPO)3 for an estimated 

quantity of 274 filters over the 2-year term of the IDPO which, based on the lowest 

and highest historical prices listed in the RFQ, suggests a total price between $8,190 

 

1

 During the course of the protests DLA explained that two solicitations (RFQ 

SPM7AX-08-X-0508 and RFQ SPM7MC-09-T-0468) had been canceled for reasons 

unrelated to the merits of the protests. We dismiss those protests (B-400746 and 

B-400747, respectively) as academic. The rest of this decision addresses the four 

remaining RFQs. 

2

 It appears possible that micro-purchase procedures could have been used in one 

instance. 

3

 An IDPO is 

a simplified acquisition procedure that applies indefinite delivery 

contract concepts to simplified acquisitions. An IDPO, when 

established by agreement of the contractor, establishes a standing 

quotation(s) from the contractor for a definite period for an indefinite 

quantity of supplies. However, when established as a contract, through 

performance undertaken by the contractor on a purchase order, an 

IDPO establishes a firm commitment that the contractor will perform 

under subsequent orders issued, at the purchase order price for a 

definite period for an indefinite quantity of supplies. 

Defense Logistics Acquisition Directive ¶ 13.390-1 (available online at 

http://www.dla.mil/j-3/j-3311/dlad/rev5.htm (visited Jan. 15, 2009)). 

The RFQs for the IDPOs (RFQ SPM7M1-08-U-J179 and SPM7L4-09-U-A006) include a 

standard clause specifying that the vendor will deliver any quantities ordered during 

the term of the IDPO, up to a maximum total of $100,000 for all orders. 
Page 3 B-400746 et al.

and $21,098. RFQ SPM7M1-08-U-J179 at 1, 7. Second, in B-400752, DLA will 

purchase 8 filters which, based on the only historical price listed in the RFQ, 

suggests a total price of $3,496. RFQ SPM7MC-09-T-0151 at 1, 3. Third, in B-400785, 

DLA will purchase 60 filters which, based on the two historical prices listed in the 

RFQ, suggests a total price between $789 and $900. RFQ SPM7M3-08-T-K838 at 1, 4.4

 

However, in the fourth case, B-400751, the RFQ contains an estimate that shows that 

DLA will purchase 1,356 filters over the 2-year term of the IDPO. Based on the 

lowest and highest historical prices also listed in the RFQ, our Office calculates a 

potential IDPO value between $205,881 and $343,977. RFQ SPM7L4-09-U-A006 

at 1, 7.5

 

Each of the RFQs advised that DLA lacked data about the part, and that any firm 

wishing to propose an alternative to the brand-name item would be required to 

submit a data package for both the specified brand-name part, and the offered 

alternative. 

DLA explains that it is conducting brand-name procurements,6

 all of these filters are 

“critical application items,”7

 and that it has identified the only known approved 

sources for these filters. DLA also states that each of the manufacturers of the 

 

4

 Unlike the other protests here, this RFQ listed six manufacturers of the required 

filter. RFQ SPM7M3-08-T-K838 at 2. 

5

 Historical pricing information contained in this RFQ indicates that DLA purchased 

168 units of this filter on July 24, 2008, and also indicates that between September 3 

and September 10, DLA issued four more orders, to purchase a total of 36 additional 

filters. Over that 1-week period in September, the per-filter prices ranged from 

$167.02 to $253.67, and three of the orders were placed on three consecutive days. 

RFQ SPM7L4-09-U-A006 at 7. Furthermore, as discussed further below, DLA 

acknowledges that it issued the IDPO under this RFQ on November 12, 2008, and 

immediately placed an order for 469 filters, followed by a second order for 159 more 

filters on December 4, which together effectively reached the $100,000 maximum. 

Letter from DLA to GAO, Jan. 13, 2009, at 2 and exhs. 4, 5, 9. 

6

 DLA has not argued that it is relying on its authority to establish approved sources, 

see 10 U.S.C. § 2319, but rather relies on its authority to solicit brand-name items 

only. Agency Report (AR) at 3. In addition, with respect to the largest-valued RFQ 

(RFQ SPM7L4-09-U-A006), DLA has advised our Office that the “Test Program for 

Certain Commercial Items,” FAR Subpart 13.5, is not applicable. Letter from DLA to 

GAO, Jan. 13, 2009, at 2 n.3. 

7

 DLA defines a critical application item as “an item essential to weapon system 

performance or operation, or the preservation of life or safety, or safety of operating 

personnel, as determined by the military services.” AR at 2. 
Page 4 B-400746 et al.

brand-name filters “holds the related data proprietary.” AR at 2. DLA explains that 

it relies on an “Acquisition Method/Acquisition Method Source Code,”8 which is 

maintained in its Federal Logistics Information System database. The codes are used 

to record whether a part should be procured competitively, or only from sources 

specified in the database. E.g., AR, Tab 21, Declaration of DLA Equipment Specialist 

Supervisor, at 2. 

DLA also explains that the cost of approving an additional source ranges from $1,700 

to $4,700 depending on the number of engineering support activities involved. 

Therefore DLA believes it would not be cost-effective for the government to incur 

the cost of performing the engineering analysis that would be required to approve an 

additional source for three of the four filters.9

 In other words, in DLA’s view, it 

would be unlikely to recoup those costs through competition. 

DISCUSSION 

Although CPF filed separate protests challenging the terms of each of these RFQs, 

the protests all raise the same issue, in essentially identical arguments. CPF argues 

that FAR § 11.104(b), which governs use of brand-name-or-equal purchase 

descriptions, bars DLA from conducting a procurement for brand-name items 

without setting forth salient characteristics that would permit broader competition.10 

E.g., Protest B-400750 at 3. More broadly, CPF argues that DLA has no basis to limit 

these procurements to the brand-name items. 

 

8

 This is also referred to in the DLA Federal Logistics Information System (FLIS) 

Procedure Manual as the “Acquisition Method Suffix Code.” AR, Tab 16, Excerpt 

from DLA FLIS Procedure Manual (Oct. 2008 edition), vol. 10, at 10.3-225. 

9

 In B-400751 (challenging RFQ SPM7L4-09-U-A006), DLA is considering CPF’s 

request for a filter so that the firm can attempt reverse engineering of the filter, but 

no final decision on the request has been reached under DLA’s replenishment parts 

purchase or borrow program. AR at 10; AR, Tab 20, Declaration of DLA Bailment 

Officer, at 3-4. 

10 During the course of this protest, CPF has raised additional issues, none of which 

we conclude have merit. For example, CPF argues in general terms that the agency 

has improperly labeled these filters as critical application items. We think an 

agency’s determination of which items are critical for the maintenance of a weapons 

system, and which are not, is a matter largely committed to agency discretion. 

Pem All Fire Extinguisher Corp., B-231478, July 27, 1988, 88-2 CPD ¶ 95 at 2-3, recon.

denied, B-231478.2, Oct. 4, 1988, 88-2 CPD ¶ 313. In this respect, CPF has provided 

no basis for our Office to question the designation of these filters as critical 

application items. 
DLA responds that it has properly used a brand-name specification in each of these 

RFQs because it lacks the data needed to specify its needs in any greater detail, or to 

evaluate alternative products, and because these procurements are under the 

simplified acquisition threshold. AR at 6. In addition, DLA argues that its use of 

brand-name purchase descriptions is permitted by the FAR where the brand-name 

items are essential to the government’s needs, market research supports the lack of 

an alternative item, and, in the case of simplified acquisitions as here, the basis is 

documented in the contracting file. AR at 6-8 (citing FAR §§ 11.105, 13.106-1(b)). 

DLA did not prepare a written justification for these procurements under 

FAR § 6.302-1 because the use of such justifications is not required when an agency 

is using simplified acquisition procedures. AR at 7; see also FAR § 6.001(a). 

In reviewing DLA’s obligations in this situation, we look first to Part 13 of the FAR, 

which establishes the procedures for simplified acquisitions. These simplified 

procedures are designed to promote efficiency and economy in contracting, and to 

avoid unnecessary burdens for agencies and contractors, where, in cases like these, 

the value of the acquisition is less than $100,000. See FAR § 2.101. In simplified 

acquisitions, agencies are only required to obtain competition to the “maximum 

extent practicable.” 10 U.S.C. § 2304(g)(3); FAR § 13.104; Information Ventures, Inc., 

B-293541, Apr. 9, 2004, 2004 CPD ¶ 81 at 3. In a simplified acquisition, an agency can 

limit a solicitation to a brand-name item where the “contracting officer determines 

that the circumstances of the contract action deem only one source reasonably 

available (e.g., urgency, exclusive licensing agreements, brand name or industrial 

mobilization).” FAR § 13.106-1(b)(1). In such cases, we review protests of solesource determinations--and, as here, the decision to limit the procurement to a 

brand-name--for reasonableness. Europe Displays, Inc., B-297099, Dec. 5, 2005, 2005 

CPD ¶ 214 at 3-4. 

For three of the RFQs, DLA has demonstrated a reasonable basis for using a brandname specification for these filters. CPF asserts that DLA has no basis for limiting 

the solicitations to brand-name items, disputes the DLA’s reliance on its database to 

furnish a justification for a brand-name procurement, and contends that the database 

is merely descriptive of previous procurement experience; its arguments provide no 

basis to sustain the protests. A contracting officer may rely on prior procurement 

history in the conduct of market research. International Filter Mfg., Inc., B-299407, 

Apr. 10, 2007, 2007 CPD ¶ 71 at 4. DLA has advised our Office, and the record 

supports its claim, that DLA does not have sufficient data to consider alternatives to 

the brand-name items. Under these circumstances, and particularly the fact that 

these procurements are properly valued at less than $100,000, the FAR permits a 

streamlined approach to procuring these items. See FAR § 10.001(a)(2)(iii). 

Therefore, in our view, the protest record for the challenges to RFQs 

SPM7M1-08-U-J179, SPM7MC-09-T-0151, and SPM7M3-08-T-K838 supports the 

agency’s brand-name only approach. 

However, as noted above, RFQ SPM7L4-09-U-A006 provides an estimated quantity of 

1,356 filters over the 2-year term of the IDPO. At the lowest historical price listed in 

Page 5 B-400746 et al.
Page 6 B-400746 et al.

the RFQ, the value of this requirement is more than double the simplified acquisition 

threshold. Since, in our view, neither CPF nor DLA had adequately addressed the 

implications of this aspect of the record, we asked both parties to address whether 

DLA’s explanation for its actions was consistent with the requirements of the FAR 

for requirements of this magnitude--that is, greater than $100,000. Fax from GAO to 

Parties, Jan. 9, 2009, at 1. 

In response, DLA argues that the IDPO does not obligate the government to purchase 

the estimated quantity, and in fact limits purchases to $100,000. DLA argues that this 

approach is approved by the Defense Supply Center Columbus Acquisition Guide 

(DAG). Letter from DLA to GAO, Jan. 13, 2009, at 2 (citing DAG § 13.9002).11 In its 

submission, CPF continued its arguments that the record here shows that the agency 

has failed to conduct proper acquisition planning. Letter from CPF to GAO, Jan. 14, 

2009, at 1-2. 

Although DLA argues that its actions are consistent with the statutes and regulations 

applicable to simplified acquisitions, the use of these procedures must be based on a 

reasonable expectation that the value of the requirement is at or below the simplified 

acquisition threshold. Where an agency uses simplified acquisition procedures to 

meet requirements that should reasonably be valued above the simplified acquisition 

threshold, our Office will sustain the protest. E.g., Global Commc’ns Solutions, Inc., 

B-299044, B-299044.2, Jan. 29, 2007, 2007 CPD ¶ 30 at 3 (protest sustained where 

agency used simplified acquisition procedures for commercial item acquisition that 

record demonstrated could only reasonably be valued above the applicable 

threshold). 

We see no basis for DLA’s approach of using simplified acquisition procedures where 

its estimated requirement for these filters cannot reasonably be expected to fall 

within the applicable threshold ($100,000) for a simplified acquisition of this nature. 

Although DLA responds that the use of simplified acquisition procedures is 

appropriate here because it limits the purchase under each of these IDPOs to 

$100,000, regardless of the value of the estimated quantity, we think DLA is, in 

essence, splitting these orders to allow the use of simplified acquisition procedures, 

which is expressly barred by FAR §13.003(c)(2). Cf. Mas-Hamilton Group, Inc., 

 

11 The guidance in DAG § 13.9002 does not address the question of what procedures 

are applicable where, as here, the purchase is expected to exceed $100,000. It 

merely provides, in relevant part, that “IDPOs apply indefinite delivery contract 

concepts under simplified acquisition procedures . . . . They are most appropriate for 

repetitive, low dollar value items . . . . The aggregate total dollar value of orders 

issued against an IDPO Basic Agreement shall not exceed $100,000 . . . .” Letter from 

DLA to GAO, Jan. 13, 2009, exh. 1 (DAG excerpt). In any event, we note that DAG 

§ 13.9002 was not promulgated as a regulation. 
B-249049, Oct. 20, 1992, 92-2 CPD ¶ 259 at 5-6. Under this provision, agencies are 

advised: 

Do not break down requirements aggregating more than the simplified 

acquisition threshold . . . into several purchases that are less than the 

applicable threshold merely to-- 

(i) Permit use of simplified acquisition procedures. 

FAR § 13.003(c)(2); see also 10 U.S.C. § 2304(g)(2) (“A proposed purchase or 

contract for an amount above the simplified acquisition threshold may not be divided 

into several purchases or contracts for lesser amounts in order to use the simplified 

procedures . . .”). 

In our view, DLA is using the streamlined features of simplified acquisitions where 

the solicitation on its face demonstrates that the use of those procedures is 

improper. Indeed, DLA’s experience under the resulting IDPO demonstrates this 

point: less than 1 month after issuance of the IDPO (which the RFQ described as 

having a maximum term of 2 years), DLA had already reached the $100,000 ceiling. 

In addition, the procurement history for this part, and the estimated quantity 

identified in the solicitation, strongly suggest that DLA will make additional 

purchases to meet its continuing needs. We therefore sustain this protest. 

CONCLUSION 

The protests challenging RFQs SPM7AX-08-X-0508 and SPM7MC-09-T-0468 (B-400746 

and B-400747, respectively) are dismissed. The protests challenging RFQs 

SPM7M1-08-U-J179, SPM7MC-09-T-0151, and SPM7M3-08-T-K838 (B-400750, 

B-400752, and B-400785, respectively) are denied. The protest of RFQ 

SPM7L4-09-U-A006 (B-400751) is sustained. 

RECOMMENDATION 

In a letter dated January 13, 2009, DLA informed our Office that although DLA 

counsel had advised agency buyers that a timely pre-award protest had been filed on 

October 15, 2008, “[r]egretfully, despite this directive, . . . an award was made . . . and 

two orders were issued. . . .” DLA directed the vendor to stop work under the orders 

on January 13. In its letter, DLA also explained that the orders that had been placed 

essentially “maxed out” the IDPO, in DLA’s parlance. 

Since the IDPO was improperly issued, we recommend that the IDPO and the orders 

be terminated for the convenience of the government, if feasible. Furthermore, we 

recommend that DLA review its needs for this part and, if its requirements exceed 

the threshold for a simplified acquisition--as the record strongly suggests--DLA 

should procure this requirement using full and open competition, or properly justify 

any decision not to do so. We are also concerned that DLA has delayed providing a 

part to CPF to permit the firm to attempt to reverse engineer the filter being 

Page 7 B-400746 et al.
Page 8 B-400746 et al.

purchased here, and therefore DLA should consider doing so promptly. Finally, we 

recommend that the protester be reimbursed the costs of filing and pursuing protest 

B-400751, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2008). CPF 

should submit its certified claim for costs, detailing the time expended and cost 

incurred, directly to the contracting agency within 60 days after receipt of this 

decision. 4 C.F.R. § 21.8(f)(1). 

Gary L. Kepplinger 

General Counsel