B-234283, May 8, 1989, 89-1 CPD 433

B-234283: May 8, 1989

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Protest alleging that specifications (salient characteristics) of brand name or equal solicitation are unduly restrictive of competition is denied where the protester does not contend that it cannot meet any particular specification. Protest alleging that agency allowed insufficient time to consider an amendment to a request for proposals is denied where record shows that the amendment made no significant changes to the solicitation requirements. Protest that solicitation should be set aside for small businesses is denied where the record does not show that the contracting agency abused its discretion in determining that it did not have a reasonable expectation of receiving acceptable proposals from at least two responsible small business concerns.

B-234283, May 8, 1989, 89-1 CPD 433

PROCUREMENT - Specifications - Minimum needs standards - Competitive restrictions - Brand name specifications DIGEST: 1. Protest alleging that specifications (salient characteristics) of brand name or equal solicitation are unduly restrictive of competition is denied where the protester does not contend that it cannot meet any particular specification, and fails to show that the requirements in the RFP exceed the agency's minimum needs. PROCUREMENT - Competitive Negotiation - Requests for proposals - Amendments - Compliance time periods - Adequacy 2. Protest alleging that agency allowed insufficient time to consider an amendment to a request for proposals is denied where record shows that the amendment made no significant changes to the solicitation requirements. PROCUREMENT - Socio-Economic Policies - Small business set-asides - Use - Administrative discretion 3. Protest that solicitation should be set aside for small businesses is denied where the record does not show that the contracting agency abused its discretion in determining that it did not have a reasonable expectation of receiving acceptable proposals from at least two responsible small business concerns.

Gel Systems, Inc.:

Gel Systems, Inc., protests the award of a contract under request for proposals (RFP) No. N00600-89-R-0449, issued by the Naval Regional Contracting Center, Washington, D.C., on a "brand name or equal" basis for an electronic language learning system for use at the United States Naval Academy. Gel principally alleges that the RFP's specifications (salient characteristics) were "written around" the brand name manufacturer, and therefore, are restrictive of competition.

We deny the protest.

The RFP was issued on November 16, 1988, and was amended three times. Amendment 3, which is the subject of one of Gel's protest grounds, was issued January 23, 1989, and made changes to the specifications and extended the closing date to January 30. Gel received amendment 3 on January 26 and filed this protest with our Office on January 27.

Gel principally argues that the RFP contains specifications which unreasonably restrict competition. It contends that only the brand name product or its precise copy could comply with the specifications. The only specific example of the RFP's alleged restrictiveness that Gel provides is the requirement that users of the system be able to "mark" electronically at least two specific areas of the program for quick review, without the need to refer to the counter.

A protester who objects to the specifications in a request for proposals bears a heavy burden. This is because we have recognized that government procurement officials, who are familiar with the conditions under which supplies, equipment or services have been used in the past, and how they are to be used in the future, are generally in the best position to know the government's actual needs, and, therefore, are best able to draft appropriate specifications. Castle/Division of Sybron Corp, B-228654, Oct. 9, 1987, 87-2 CPD Para. 352. Further, it is proper for a contracting agency to establish specifications reflective of its legitimate needs based on its actual experience, engineering analysis, logic or similar rational bases. Id.

Where, as in this case, a protester challenges particular requirements as unduly restrictive of competition, it is incumbent upon the contracting agency to establish prima facie support for its position that the restrictions it imposes are reasonably related to its minimum needs. The burden then shifts to the protester to show that the requirements complained of are clearly unreasonable. See Julie Research Laboratories, Inc., B-218598, August 20, 1985, 85-2 CPD Para. 194.

Initially, we also note that specifications based upon a particular product are not improper in and of themselves, and a protest that a specification was "written around" design features of a competitor's product fails to provide a valid basis for protest where the agency establishes that the specification is reasonably related to its minimum needs. Repco, Inc., B-227642.3, Nov. 25, 1987, 87-2 CPD Para. 517. Nor is a specification improper merely because a potential bidder cannot meet its requirements. DSP Technology, B-220593, Jan. 28, 1986, 86-1 CPD Para. 96.

Here, the agency has offered reasonable explanations of its need for the specifications at issue. Concerning the requirement for a memory marking function, the Chairman of the Language Studies Department at the Naval Academy points out that this feature is necessary for more efficient use of 50-minute class periods. The memory marking function, which allows the user to electronically "mark" specific areas of a program for quick review, enables the instructor to jump quickly to portions of the audio cassette without wasting valuable class time searching. More generally, the Chairman states that the specifications, as written, reflect an equipment environment which is compatible with the Naval Academy's existing lab.

The protester has not responded to the agency's position. In its comments, Gel merely continues to broadly and repeatedly assert that the specifications were "written around" the brand name model and argues that the numerous salient characteristics served to restrict competition. However, Gel does not specifically allege that it cannot meet any particular requirement in the purchase description. Further, at no point does Gel directly address the agency's position that the requirements reflect the Naval Academy's minimum needs. In fact, the protester does not even attempt to rebut the agency's justification for the specifications and, therefore, in our view, has failed to meet its burden of showing that the specifications are clearly unreasonable. In this regard, the agency points out that one of the offerors which submitted a proposal offered a separate and distinct acceptable system which the agency states is better in several respects than the brand name product. We therefore deny this protest ground.

Next, Gel argues that it did not have sufficient time to respond to amendment 3 which, as stated above, established a closing date of January 30. It argues that although the amendment is dated January 23, the postmark indicates that it was not mailed until January 24, and Gel did not receive the amendment until January 26. Gel asserts that this allowed it only 1 full working day to consider the new requirements and complains that it would be required to employ an overnight courier service to timely respond.

The agency responds that amendment 3 contained only minor changes that slightly relaxed the previous requirements. The agency states that the amendment merely edited or deleted parts of the specifications, usually affecting only a few words of the prior requirements. Thus, it argues, sufficient time was allowed for acknowledgment.

We have reviewed the record and agree with the agency that the amendment was so insignificant that very little time was required to understand and respond to the changes made. Gel has failed to show which provision or provisions allegedly enhanced requirements. For example, Gel argues that an attachment to the amendment which requires offerors to perform an operational capability demonstration constituted a major change. The attachment, however, merely sets forth certain features of the equipment which must be demonstrated; offerors were already aware of this general requirement since the original solicitation provided for such an operational capability demonstration, and the attachment did not change any substantive technical requirements of the RFP. More typically, the amendment slightly changed the wording of a specification or deleted a word or sentence. We also note that no other prospective offerors complained of insufficient time in which to consider the amendment. therefore find no merit to the protester's allegation.

Gel, a small business, also alleges that this procurement should have been set aside for exclusive small business participation since it allegedly brought to the attention of the agency two additional small business manufacturers which could perform the contract.

Under the so-called "rule of two," a procurement must be set aside for exclusive small business participation when there is a reasonable expectation of receiving offers from at least two responsible small business concerns, and award will be made at a reasonable price. Federal Acquisition Regulation (FAR) Sec. 19.502-2 (FAC 84-37). An agency's determination concerning whether to set a particular procurement aside basically involves a business decision within the broad discretion of contracting officials, and our review generally is limited to ascertaining whether those officials have abused that discretion. Salmon and Associates, P.A., B-227079, Aug. 12, 1987, 87-2 CPD Para. 152.

Based on the record before us, we conclude that the contracting officer did not abuse his discretion in deciding not to set this procurement aside. The record shows that the contracting officer did not expect to receive offers from two or more responsible small business concerns prior to the issuance of the RFP or subsequently. The agency states that its small business representative conducted a market survey which failed to reveal any small businesses capable of satisfying the government's requirements. He therefore concurred in the contracting officer's decision not to set aside the procurement.

Nevertheless, a synopsis was issued in August 1988 and no small business other than Gel responded. Subsequently, by letter dated December 12, 1988, to the small business representative after the RFP was issued, Gel provided the names of two additional small businesses which Gel believed were capable of performing the requirements. In response, the agency states that it has never heard from these businesses nor did they ever respond to the Commerce Business Daily synopsis for this procurement. Aside from the names of these two small businesses contained in Gel's letter, there is nothing in the record to show that these firms are interested or capable of performing the requirements here. The agency also points out, in this regard, that because Gel has not submitted a proposal, it has no way of knowing whether Gel itself can offer an acceptable machine. Accordingly, in light of the market survey, the determination of the contracting officer, and the concurrence of the small business specialist, we think the agency acted reasonably in not setting aside the procurement for exclusive small business participation.

The protest is denied.