Can this still be a small buisness set-aside? I assume the non-manufacturer rule would apply.
Per FAR 19.502-5(h), a "brand name or equal" justification "in itself" is not reason for not setting aside an acquisition for small business. This acknowledges the "or equal" aspect can still leave open possibilities for small business to fulfill the Government's requirement. However, the justification at FAR 6.302-1(c) addresses "brand name" (without the "or equal") and provides the reason.
Open full Question Details
The contracting officer can indicate that "the use of such (brand name) descriptions in the acquisition is essential to the Government’s requirements, thereby precluding consideration of a product manufactured by another company." This effectively precludes the use of a small business set aside if the specific brand name item is only available from another company that happens to be a large business. There are small business set asides that specify "brand name" (without the "or equal"), but in those cases the small business' brand name items were determined to be able to meet the Government's requirement. That's presumably not the case here.
The non-manufacturer rule would not apply, as I assume the brand name item is not manufactured by a small business. Please see the definition of the nonmanufacturer rule at FAR 19.001.