Protest Alleging That Patent Infringement Would Result From Performance Under Contract Award

An invitation for bids (IFB) was issued by the Department of the Air Force. A firm protested the award of a contract under the IFB to any firm which is not a royalty-paying licensee of the protesting firm under a U.S. patent. The protester alleged that it owns the patent which covers the product to be delivered under the contract. The protester contended that the production and/or furnishing of the item by a nonlicensee may result in an infringement of the patent. The protesting firm further argued that this contract should have been set aside for small business enterprises and that the other offeror lacked the manufacturing capability to produce the item. A protest that patent or license infringement may result from performance under a contract awarded to another firm is not for consideration by GAO. There was nothing in the applicable regulations which mandated that this particular procurement be set aside for small business. The decision as to whether a procurement is to be set aside generally is within the discretion of the contracting agency. Further, a question of bidder responsibility is decided by the contracting agency and is not for consideration by GAO. Accordingly, the protest was dismissed.