BNUMBER: B-274059
DATE: November 18, 1996
TITLE: Mossberg Corporation
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Matter of:Mossberg Corporation
File: B-274059
Date:November 18, 1996
William A. Davis, Esq., Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
for the protester.
Robert J. Brown, Esq., Douglas S. Wood, Esq., and Michael K. Cameron,
Esq., Department of Justice, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest against solicitation requirements relating to construction and
safety of shotguns is sustained where record does not establish that
requirements are necessary to meet agency's minimum needs; although
agencies properly may set requirements relating to human safety so as
to achieve the highest possible reliability and effectiveness, the
requirements must nonetheless be reasonable and withstand logical
scrutiny.
DECISION
Mossberg Corporation protests the terms of request for proposals (RFP)
No. HQ-96-19, issued by the United States Department of Justice,
Immigration and Naturalization Service (INS), for a quantity of
shotguns. Mossberg maintains that certain of the RFP's requirements
unduly restrict competition and are unnecessary for the agency to
satisfy its minimum needs.
We sustain the protest.
The RFP contemplates the award of a fixed-price, indefinite
delivery/indefinite quantity contract for shotguns that will be used
by the agency's border patrol agents. At issue in this protest are
two aspects of the specifications: the construction of the guns'
receiver, and the type of safety mechanism to be employed. Mossberg
maintains that these aspects of the specifications preclude it from
competing for the requirement.
ALUMINUM VERSUS STEEL RECEIVER
The receiver is the central component of any gun--it is the place
where the shell or bullet is inserted into the gun, and where the
firing explosion takes place. Virtually all of the gun's remaining
parts, such as the barrel, stock, safety, firing mechanism, trigger
mechanism, and ammunition magazine tube, are attached to the receiver.
The receiver typically is constructed of metal that is coated or
treated for protection from corrosion. The RFP here calls for the
shotguns to have a nonreflective steel receiver that has been
"parkerized"[1]; the agency states that it has specified steel
receivers because it is easier and less costly to reparkerize steel
than it is to reanodize aluminum. Mossberg maintains that this
requirement is unnecessary to meet the agency's minimum needs and
that, in fact, the anodized aluminum receivers on its own shotguns
will better meet the agency's needs, since they do not need to be
refinished to maintain their nonreflective surface. The agency
contends that, regardless of the type of shotgun purchased, the
receivers will become scratched over time and will require refinishing
because its guns need to have a nonreflective surface to ensure the
safety of its agents during "interdiction by surprise" type
operations.
Procuring agencies are required to specify their needs in a manner
designed to promote full and open competition; agencies thus may
include restrictive requirements only to the extent they are necessary
to satisfy their legitimate minimum needs. CardioMetrix, B-259736,
Apr. 28, 1995, 95-1 CPD para. 223. Where a protester challenges a
specification as unduly restrictive, the agency must establish that
the requirement is reasonably necessary to meet its minimum needs; we
will examine the adequacy of the agency's position to ensure that it
is rational and can withstand logical scrutiny. Id. While a
solicitation provision relating to human safety or national defense
may be written to achieve not just reasonable results, but the highest
possible reliability and effectiveness, Acoustic Sys., B-256590, June
29, 1994, 94-1 CPD para. 393, the requirement must nonetheless withstand
logical examination. Raymond Corp.--Recon., B-251405.2, Aug. 26,
1993, 93-2 CPD para. 124. Based on the record here, which includes
substantial oral testimony taken during a hearing in this matter, we
find that the steel receiver requirement does not meet this test.
First, the record does not establish that Mossberg's aluminum
receivers will need to be refinished. The evidence shows that the
anodic coating on aluminum is harder--and thus resists scratching
longer--than the phosphate coating on steel, and that, in any case,
there is a specialized paint, formulated in accordance with applicable
military specifications, that is designed to cover scratches on
anodized aluminum gun receivers, restoring the nonreflective quality
of the surface without reanodizing. None of the expert witnesses who
testified has ever actually reanodized aluminum receivered rifles or
shotguns (all of the expert witnesses except one are armorers
--individuals skilled in the repair, construction, and maintenance of
weapons; the other witness, an engineer specializing in the
refinishing of metal surfaces, oversees a large metal refinishing
facility for the Department of the Army). Moreover, INS has a large
quantity of M-16 rifles and Baretta pistols that have aluminum
receivers and INS states that it does not ever intend to refinish the
receivers on these weapons.
In contrast, according to the hearing testimony, all steel receivered
guns must periodically be rephosphated or reparkerized because, as the
finish wears off, the steel becomes exposed and is subject to rust.
It therefore must be refinished to ensure the weapon's continued
operability. An aluminum receivered shotgun, on the other hand, will
continue to function effectively, even if its anodized finish becomes
scratched. The anodizing process essentially involves artificially
inducing the formation of a layer of corrosion on the aluminum
surface; even if the weapon becomes scratched, the aluminum does not
rust, but instead forms a natural anodic coating that does not impair
the functioning of the weapon as it corrodes. The record therefore
shows that the agency will incur at least some cost in connection with
the maintenance of steel receivered weapons, whereas there is no clear
evidence that similarly significant costs will be incurred in
connection with the maintenance of aluminum receivered weapons. There
also is no evidence to show that the agency considered the viability
or comparative cost of the painting option for aluminum receivered
shotguns.
Further, as noted, the record shows that INS currently has a large
quantity of aluminum receivered weapons: the agency recently procured
as its standard handgun a Baretta pistol with an aluminum receiver,
and the agency also owns a large quantity of used M-16 rifles that
were acquired from one of the military services in 1988 which also
have aluminum receivers. INS's acquisition of a selection of aluminum
receivered firearms shows that aluminum receivered guns have met the
agency's needs in the past, and the agency has neither presented
evidence showing, nor explained, why aluminum receivers are acceptable
for its current guns, but not for the shotguns being procured here.
INS has not shown, for example, that the safety of its agents has been
compromised during "interdiction by surprise" operations because of an
inability to maintain the nonreflective finish on these other aluminum
receivered weapons. The record also shows that all branches of the
military, as well as numerous law enforcement agencies throughout the
United States, use aluminum receivered weapons and, further, that even
the most prevalent model of steel receivered shotgun in INS's arsenal
has an aluminum trigger guard that, consistent with the agency's
position will either need to be replaced or reanodized periodically.
The agency has not explained why this additional cost associated with
the steel receivered shotguns should not also be taken into account.
In sum, the record shows that the agency has a large quantity of
aluminum receivered weapons with which it is satisfied; the anodic
coating is stronger than the phosphate coating; unlike steel
receivered weapons, the functionality of an aluminum weapon is not
compromised by scratches that can rust; there exists an apparently low
cost solution (the military specification paint) to any legitimate
reanodizing need that INS did not consider; and even steel receivered
shotguns have at least some aluminum that would require reanodizing or
replacement based on INS's own position. We therefore agree with
Mossberg that the steel receiver requirement is unduly restrictive.
PLACEMENT OF THE SAFETY
Mossberg also challenges the requirement concerning the placement of
the safety on the shotguns. (The safety is a mechanism installed in
the receiver that prevents the gun from firing when it is engaged.)
The RFP calls for a "crossbolt" type safety, which operates by
pressing a button located at the rear of the trigger guard; to
disengage the safety (thereby rendering the weapon ready to fire), the
operator slides the button from right to left (and from left to right
to engage). Mossberg's shotguns are designed with a
"top-of-the-receiver" type safety, which is a sliding switch located
on the top of the receiver, underneath where the operator places his
or her thumb when holding the gun in firing position. The mechanism
is disengaged/engaged by sliding the switch forward or backward with
the thumb.
Mossberg maintains that the requirement for a crossbolt type safety is
unduly restrictive of competition because both types of safety
effectively render the weapon inoperable when engaged. Further,
Mossberg argues that its safety mechanism is superior to the crossbolt
safety because it is ambidextrous--whether the shooter is left- or
right-handed, he or she operates the safety with the thumb of the
shooting hand, and the operation is the same for both left- and
right-handed users (i.e. forward to disengage, backward to engage).
In contrast, the crossbolt safety is essentially designed for
right-handed shooters. A right-handed shooter can disengage the
safety using the index finger of the trigger hand while keeping his or
her hand in the firing position, whereas a left-handed shooter must
either remove his or her hand from the firing position and reach under
the trigger guard, or must tilt the gun away from the body to permit
access to the safety. Mossberg maintains that permitting both right-
and left-handed shooters to keep their hand in the firing position
while engaging or disengaging the mechanism enhances safety because
there is a greater likelihood that the user will leave the mechanism
engaged when use of the weapon is not imminent, thereby minimizing the
chance of an accidental discharge.[2] In this regard, Mossberg notes
that INS trains its agents to shoot from both left- and right-handed
positions, and that, consequently, the superiority of its safety will
benefit virtually all of the agency's users.
INS states that it specified the crossbolt type safety pursuant to its
weapons standardization policy--because INS's current shotguns have
crossbolt safeties, it maintains that it needs all of its shotguns to
have crossbolt safeties. According to the agency, if it introduces a
shotgun into its arsenal with a different type of safety, it runs the
risk that its agents may become confused as to which safety
disengagement procedure to use while operating the weapon during a
high stress situation, resulting in an increased possibility of
accident or injury.
The agency's position essentially is that the requirement for a
crossbolt safety
relates to human safety. As a general rule, the determination of the
government's needs and the best method for accommodating them are
matters primarily within the agency's discretion, and our Office will
not question a restrictive requirement unless it is shown to be
unreasonable. Moreover, agencies may properly set minimum
requirements relating to human safety or national security so as to
achieve not just reasonable results, but the highest possible
reliability and effectiveness; an agency is not required to show an
instance of actual damage or injury under a prior contract before
imposing a requirement that reduces risks to life or property, so long
as the agency's position can withstand logical scrutiny or is
supported by, for example, statistical data or evidence that is
unrebutted by the protester. LIPS Propellers, Inc., B-256713, July
15, 1994, 94-2 CPD para. 26; Acoustic Sys., supra. On the other hand, a
potential perceived risk must be reasonable in the sense that there is
at least some support in the record for the agency's position. Where
a protester effectively refutes the agency's assertion that a
particular requirement is necessary for human safety reasons, we will
find the requirement unreasonable. Raymond Corp.--Recon., supra.
We find that the record does not adequately support the need for the
crossbolt safety requirement. The record contains no
evidence--besides the agency's unsupported theoretical assertion--that
properly trained users will become confused regarding the operation of
the safety. INS's expert witness testified that he had never trained
individuals in the use of both types of safeties, or that he was aware
of any instances where properly trained officers experienced the
problem envisioned by the agency. INS also has presented no other
evidence--either empirical or anecdotal--that either its trained
agents or law enforcement or military personnel in other organizations
have experienced confusion regarding the operation of the gun they are
using during stressful situations. This is significant because the
record shows that INS trains each agent to use at least three
different weapons (the agent's handgun, a shotgun, and an M-16 rifle),
each with a different type of safety mechanism; that, as a matter of
policy, agents are authorized to use more than one type of handgun as
well as more than one type of rifle; and that some of its agents are
authorized and trained to use as many as 11 different manufacturers'
firearms. The agency has not reported any incidents of confusion
arising from the use of these different weapons. Moreover, an agency
witness testified that the agency never discussed its concern with any
other military or law enforcement user to see whether these other
users may have experienced such difficulties.[3]
On the other hand, the record shows that other shotgun users are able
to use more than one type of shotgun without experiencing the problem
envisioned by the agency. In this regard, the record includes
extensive testimony from two expert witnesses presented by Mossberg,
both of whom are engaged in training law enforcement or military
personnel. These witnesses testified that there is little difficulty
or cost associated with training individuals in the use of more than
one type of shotgun, and that the design of the two safety mechanisms
is such as to present little confusion to the user. The experts
explained that the two mechanisms are different, and that the user
would be well aware of the type of safety on the gun being used as
soon as they pick up the gun. The experts testified on the basis of
their past training experience that, assuming that the user had been
trained in the use of both types of safety, they would respond
appropriately under stressful situations; the experts also were
unaware of any incidents involving the type of confusion alleged by
the agency. (One of the experts testified that he had recently been
involved in training law enforcement personnel to "transition" from
using crossbolt type safety mechanisms to using top-of-the-receiver
type safety mechanisms, and that this transition occurred without
incident.)
The record shows that the agency intends to acquire as many as 5,000
new weapons during this procurement, and that it has only
approximately 2,500 shotguns in its current arsenal, some of which are
scheduled to be retired from service; it is thus clear that, over
time, the shotgun purchased during this procurement will become the
standard for agency purposes. In essence, INS decided to standardize
to the crossbolt safety based solely on the fact that it currently has
a number of weapons that use this type of mechanism, regardless of
whether top-of-the-receiver type safety mechanisms may adequately meet
the agency's needs. In this regard, the testimony shows that INS
never actually considered in detail the relative merits of the
Mossberg shotgun (or any other shotgun that has a top-of-the-receiver
type safety) and did not consider whether the Mossberg-type shotgun
would be adequate for satisfying the agency's policy of
standardization over time. In short, the record does not adequately
establish that the challenged requirement is necessary to satisfy the
agency's minimum needs. Raymond Corp.--Recon., supra. We therefore
sustain the protest.
We are recommending by separate letter of today to the Attorney
General that the agency revise the RFP in accordance with our
decision. We also recommend that the agency reimburse Mossberg for
the costs associated with filing and pursuing its protest, including
reasonable attorneys' fees. Mossberg should submit its certified
claim, detailing the time expended and the costs incurred, directly to
the INS within 60 days of its receipt of this decision. Bid Protest
Regulations, section 21.8(f)(1), 61 Fed. Reg. 39,039, 39,046 (1996)
(to be codified at 4 C.F.R. sec. 21.8(f)).
The protest is sustained.
Comptroller General
of the United States
1. Parkerizing is a type of phosphate coating that is applied to the
outside metal surfaces of the gun to protect it against rust or
corrosion and to make the surface nonreflective.
2. The protester maintains, and the record demonstrates, that current
INS training requires officers to place their weapons in a "hot
standby" status, with the safety off, but the chamber of the gun
empty, when engaging in a search or entering a potentially dangerous
situation. Mossberg maintains that its mechanism permits agents to
leave the safety on in these types of situations, thereby reducing
still further the chance of accidental discharge.
3. The record shows that all four branches of the military use three
different models of shotgun, and the training materials for all four
services include information showing that the difference in operation
of the three types are considered minor. The Marine Corps training
materials, for example, which outline the procedures for using three
different shotguns, provide that:
"All [three] are pump-type shotguns and are operated
basically the same way. Differences do exist between
the individual shotguns, but they are only minor.
Differences such as in the location of the safety . . .
require only slight modification in the placement of
the hands and fingers. . . ."