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. . . ."