B-172497, JUN 14, 1971

B-172497, JUN 14, 1971

BID PROTEST - BRAND NAME OR EQUAL - SMALL BUSINESS SET ASIDE DENYING PROTEST OF APPLIED RESEARCH LABORATORIES AGAINST RESTRICTIVE SPECIFICATIONS AND USE OF A TOTAL SMALL BUSINESS SET-ASIDE IN A PROCUREMENT OF A DIRECT READER SPECTROMETER UNDER AN IFB ISSUED BY HILL AFB, UTAH. WRITING THE SPECIFICATIONS FOR THE EQUIPMENT TO MATCH THE PRODUCT PRODUCED BY A PARTICULAR COMPANY (BRAND NAME OR EQUAL) IS WITHIN THE INTENT OF ASPR 1-1206.2(B) SO LONG AS THE BIDDER DOES NOT HAVE TO OFFER AN EXACT DUPLICATE TO THE BRAND NAME ARTICLE. ON PROTESTANT'S OBJECTION TO A BIDDER'S STATUS AS A SMALL BUSINESS CONCERN, THE COMP. GEN. NOTES THAT THE FACT THAT A SMALL BUSINESS IS DOMINANT IN ITS FIELD WITH RESPECT TO PARTICULAR ITEMS DOES NOT DISQUALIFY IT FROM THE BENEFITS OF BEING A SMALL BUSINESS ENTERPRISE.

TO APPLIED RESEARCH LABORATORIES:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED APRIL 2, 1971, PROTESTING THAT THE SPECIFICATIONS FOR A DIRECT READER SPECTROMETER CONTAINED IN DEPARTMENT OF THE AIR FORCE INVITATION FOR BIDS NO. F42650 71 -B-1426, ISSUED BY THE DIRECTORATE OF PROCUREMENT & PRODUCTION, OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH, ARE RESTRICTIVE AND THAT THE DETERMINATION THAT THIS PROCUREMENT SHOULD BE A TOTAL SMALL BUSINESS SET- ASIDE WAS IMPROPER.

THE INVITATION, ISSUED ON MARCH 2, 1971, REQUESTED BIDS FOR FURNISHING ONE DIRECT READER SPECTROMETER, 60 CYCLE, SINGLE PHASE, 230 V, INCLUDING MODEL RS-1 HIGH SPEED DIGITAL READOUT AND MODEL ASR-35 TELETYPE, BAIRD- ATOMIC MODEL HB2, OR EQUAL. THE ATTACHED SPECIFICATIONS SET FORTH THE SALIENT FEATURES OF THE SPECTROMETER ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. IN ADDITION, THE INVITATION CONTAINED THE CLAUSE REQUIRED BY PARAGRAPH 1-1206.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY, AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL MATERIAL RESPECTS TO THE REFERENCED BRAND NAME PRODUCT.

THREE BIDS WERE RECEIVED AND OPENED ON MARCH 31, 1971. LABTEST EQUIPMENT COMPANY WAS THE LOW BIDDER, BAIRD-ATOMIC, INC., THE NEXT LOW BIDDER, AND ANGSTROM, INC., THE HIGH BIDDER.

ANGSTROM AND LABTEST OFFERED THEIR "EQUAL" COMMERCIAL PRODUCTS AND BAIRD- ATOMIC OFFERED ITS BRAND NAME REFERENCED IN THE INVITATION. AWARD UNDER THE SUBJECT INVITATION IS BEING HELD IN ABEYANCE PENDING A DECISION BY OUR OFFICE ON THE PROTEST.

YOU STATE THAT THE SUBJECT INVITATION "WAS WRITTEN WITH APPARENTLY RESTRICTIVE SPECIFICATIONS FOR AN INSTRUMENT MANUFACTURED BY BAIRD ATOMIC, INC.," AND THAT "WHILE THERE ARE A NUMBER OF INSTRUMENTS THAT CAN DO THE ANALYTICAL JOB, NO INSTRUMENT PROVIDES THE IDENTICAL HARDWARE TO ANY OTHER AND EVEN THOUGH AN 'OR EQUAL' DESIGNATION IS STATED IN THIS SPECIFICATION, ALL VENDORS EXCEPT BAIRD, WE BELIEVE, CAN BE DISQUALIFIED BECAUSE OF HARDWARE PECULIAR EXCEPTIONS." YOU ALSO CONTEND THAT THE PROCUREMENT SHOULD NOT BE A TOTAL SET-ASIDE BECAUSE BAIRD-ATOMIC IS DOMINANT IN ITS FIELD AND THEREFORE NOT ELIGIBLE FOR CONSIDERATION AS A SMALL BUSINESS CONCERN.

CONCERNING YOUR CONTENTION THAT THE INSTANT SPECIFICATIONS ARE RESTRICTIVE, ASPR 1-1206.2(B) PROVIDES THAT "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. WE HAVE CONSTRUED THE WORDS "OR EQUAL," WHEN USED IN CONJUNCTION WITH A BRAND NAME PURCHASE DESCRIPTION, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED, INSOFAR AS THE NEEDS OF THE PROCURING AGENCY ARE CONCERNED, BUT NOT NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. 38 COMP. GEN. 291 (1958) AND DECISIONS CITED THEREIN; 43 ID. 761 (1964). SEE ALSO ASPR 1-1206.4(A) WHICH STATES, IN PART, THAT BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.

IT IS APPARENT FROM THE FOREGOING THAT A BIDDER DOES NOT HAVE TO OFFER AN EXACT DUPLICATE TO THE BRAND NAME ARTICLE. THEREFORE, THE BRAND NAME OR EQUAL DESIGNATION IS NOT CONSIDERED TO BE RESTRICTIVE.

CONCERNING THE PROPRIETY OF THE SMALL BUSINESS SET-ASIDE IN THIS INSTANCE, SECTION 15 OF THE SMALL BUSINESS ACT OF 1958, APPROVED JULY 18, 1958, 15 U.S.C. 644, PROVIDES IN PART AS FOLLOWS:

"TO EFFECTUATE THE PURPOSES OF THIS CHAPTER, SMALL-BUSINESS CONCERNS WITHIN THE MEANING OF THIS CHAPTER SHALL RECEIVE ANY AWARD OR CONTRACT OR ANY PART THEREOF, AND BE AWARDED ANY CONTRACT FOR THE SALE OF GOVERNMENT PROPERTY, AS TO WHICH IT IS DETERMINED BY THE ADMINISTRATION AND THE CONTRACTING PROCUREMENT OR DISPOSAL AGENCY (1) TO BE IN THE INTEREST OF MAINTAINING OR MOBILIZING THE NATION'S FULL PRODUCTIVE CAPACITY, (2) TO BE IN THE INTEREST OF WAR OR NATIONAL DEFENSE PROGRAMS, (3) TO BE IN THE INTEREST OF ASSURING THAT A FAIR PROPORTION OF THE TOTAL PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES FOR THE GOVERNMENT ARE PLACED WITH SMALL-BUSINESS CONCERNS *** ."

ASPR 1-706.5(A) PROVIDES THAT A TOTAL SET-ASIDE MAY BE MADE FOR SMALL BUSINESS WHERE THERE IS A REASONABLE EXPECTATION THAT BIDS OR PROPOSALS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES. THE CONTRACTING OFFICE REPORTS THAT THE TOTAL SMALL BUSINESS SET-ASIDE OF THE SUBJECT PROCUREMENT WAS CONCURRED IN BY A SMALL BUSINESS ADMINISTRATION (SBA) REPRESENTATIVE. THIS DETERMINATION IS REPORTED TO HAVE BEEN BASED UPON A REASONABLE EXPECTATION THAT A SUFFICIENT NUMBER OF BIDS WOULD BE RECEIVED FROM SMALL BUSINESS CONCERNS SO THAT AN AWARD COULD BE MADE AT A FAIR AND REASONABLE PRICE.

THE SET-ASIDE OF THIS PROCUREMENT FOR SMALL BUSINESS APPEARS TO HAVE BEEN MADE WITHIN THE FRAMEWORK OF PERTINENT LAWS AND REGULATIONS ON THE BASIS OF A DETERMINATION AUTHORIZED TO BE MADE BY THE CONTRACTING OFFICER AND CONCURRED IN BY SBA. WE, THEREFORE, FIND NO LEGAL BASIS ON WHICH TO QUESTION THE DEPARTMENT'S DETERMINATION TO PROCURE THE EQUIPMENT CALLED FOR IN THE INVITATION UNDER A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS.

ON THE QUESTION OF BAIRD-ATOMIC'S STATUS AS A SMALL BUSINESS CONCERN, UPON RECEIPT OF YOUR PROTEST OUR OFFICE REFERRED THE MATTER TO SBA FOR ITS VIEWS AND COMMENTS. IN ITS REPORT SBA STATED THAT THE FACT THAT BAIRD- ATOMIC MIGHT BE DOMINANT IN THE MANUFACTURE OF A PARTICULAR PRODUCT IS NOT A SUFFICIENT BASIS FOR A FINDING BY SBA THAT THE COMPANY IS DOMINANT IN THE INDUSTRY AS A WHOLE. IN THIS REGARD, THE LEGISLATIVE HISTORY OF THE SMALL BUSINESS ACT (H.R. 494, 83D CONGRESS, 1ST SESSION, PAGE 10) STATES:

" *** THE MERE FACT THAT A SMALL BUSINESS MAKES A PARTICULAR PRODUCT OR ITEM AND IS DOMINANT IN ITS FIELD WITH RESPECT TO THE PARTICULAR PRODUCT OR ITEM IS NOT INTENDED TO DISQUALIFY IT FROM THE BENEFITS OF THIS ACT IF IT IS ACTUALLY A SMALL BUSINESS ENTERPRISE."

SINCE DETERMINATIONS BY SBA CONCERNING SMALL BUSINESS STATUS ARE CONCLUSIVE UNDER 15 U.S.C. 637(B)(6), WE DO NOT QUESTION THE CONCLUSION BY SBA THAT BAIRD-ATOMIC IS SMALL BUSINESS FOR PURPOSES OF THIS PROCUREMENT. 46 COMP. GEN. 102 (1966); 44 ID. 271 (1964); AND 41 ID. 649 (1962).

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.