BNUMBER:  B-278141 
DATE:  January 2, 1998
TITLE: CairnsAir, Inc., B-278141, January 2, 1998
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Matter of:CairnsAir, Inc.

File:     B-278141

Date:January 2, 1998

Christopher E. Coombs for the protester.
Col. Nicolas P. Retson, Capt. Thomas C. Modeszto, and Mike Lonsberry, 
Esq., Department of the Army, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Solicitation requirement for brand name equipment and parts is not 
unduly restrictive of competition where record establishes that the 
requirement reasonably reflects the need for compatibility of the 
various components with each other and with the existing inventory. 

DECISION

CairnsAir, Inc. protests the terms of request for quotations (RFQ) No. 
DABT01-97-T-0325, issued by the Department of the Army for 
self-contained breathing apparatus (SCBA), face pieces and haz-mat 
uniforms.  The protester asserts that the RFQ's requirement for a 
brand name SCBA is unduly restrictive of competition.  

We deny the protest.

The RFQ required that the equipment be manufactured by Survivair, Inc. 
and provided that no substitution would be accepted.  The requirement 
was for 
70 SCBAs (consisting of both the air pack and face piece), 70 
additional face pieces and 6 haz-mat uniforms.  The procurement was 
announced in the Commerce Business Daily and also advertised on the 
Electronic Data Interchange.  A total of 22 vendors offering the 
required model responded by the original September 17 due date. 

In a written "justification for other than full and open competition" 
issued by the agency in support of requiring the Survivair SCBA,[1] 
and in the agency report responding to the protest, the Army states 
that the fire protection division currently has over 40 of the 
Survivair SCBA units and that the SCBAs, which are critical 
life-saving equipment, must be of one brand because all air bottles, 
masks, regulators and back pack attachments must be compatible at a 
fire/emergency scene.  The agency maintains that, if they are not, 
then during the stress of an emergency, a firefighter could pick up 
one manufacturer's tank assembly and another manufacturer's face 
assembly, which are not compatible.  According to the agency, this may 
delay response and could lead to serious injury or fatality.  
Additionally, the agency determined that the equipment must also be 
compatible with its substantial current inventory to avoid the 
necessity of training emergency personnel in the use of several 
different systems and maintaining stocks of repair parts of several 
systems.  The agency also states that it is prohibitively costly to 
maintain repair parts for several different noncompatible brands of 
SCBAs.

The protester maintains that it manufactures an SCBA that can fully 
and completely satisfy the agency's requirement and that the agency's 
needs do not require restricting the acquisition to only Survivair 
equipment.  The protester maintains that, as long as the air bottles 
are of the same capacity and pressure rating, SCBAs by different 
manufacturers may be used interchangeably without endangering the life 
or safety of any firefighters.  

In preparing a solicitation for supplies or services, a contracting 
agency must specify its needs and solicit offers in a manner designed 
to achieve full and open competition and to include restrictive 
provisions or conditions only to the extent necessary to satisfy the 
agency's needs.  Acoustic Sys., B-256590, June 29, 1994, 
94-1 CPD  para.  393 at 3.  The contracting agency, which is most familiar 
with its needs and how best to fulfill them, must make the 
determination as to what its needs are in the first instance, and we 
will not question that determination unless it has no reasonable 
basis.  Id.; Corbin Superior Composites, Inc., B-242394, Apr. 19, 
1991, 91-1 CPD  para.  389 at 5.  Specifications based upon a particular 
manufacturer's product are not improper in and of themselves, and may 
be warranted where the agency establishes that the requirements are 
reasonably related to its needs.  Lenderking Metal Prods., B-252035, 
B-252036, May 18, 1993, 93-1 CPD  para.  393 at 2; Chi Corp., 
B-224019, Dec. 3, 1986, 86-2 CPD  para.  634 at 3.  Our Office will afford 
particular deference to the technical expertise of agency personnel in 
defining the government's needs in cases involving safety equipment.  
Kings Point Mfg. Co., Inc., B-210757, Sept. 19, 1983, 83-2 CPD  para.  342 
at 3.

Here, we find reasonable the agency's explanation of its need for the 
SCBA to be fully compatible with current equipment.  The agency has a 
legitimate need to ensure that their firefighters perform their 
mission with safe and appropriate equipment and to minimize as much as 
possible the risk of delay in response to the emergency or of harm to 
the firefighters.  Moreover, while the protester argues that in some 
sense equipment from the various manufacturers are compatible, it 
conceded, during a telephone hearing held by our Office in connection 
with this protest, that, while the air bottles of different 
manufacturers may be interchangeable, its air pack from one 
manufacturer will not work with a Survivair face piece.

In addition, the record shows that, while the Occupational Safety and 
Health Administration (OSHA)[2] permits the interchangeability of air 
bottles with air bottles whose manufacturer is not the same as the 
manufacturer of the SCBA, it allows the interchangeability of air 
bottles only during emergency responses that involve several different 
emergency response organizations where the SCBAs used by these 
organizations may be different.  OSHA has stated that its intent is 
not to permit the interchangeability of air bottles as part of a 
replacement program and that it expects that, after the emergency, the 
air bottles will be refilled and placed back with the SCBA of the same 
manufacturer.  On the other hand, the National Institute of 
Occupational Safety & Health's (NIOSH)[3] approval is voided if the 
air bottles from one manufacturer are used with a SCBA of a different 
manufacturer.  This is so because it is believed that even minor 
modifications to respirators may cause significant changes in their 
performance.  Consequently, NIOSH cautions users against interchanging 
subassemblies or making unapproved modifications to their respiratory 
protective devices.  In our view, these limitations by cognizant 
regulatory entities substantiate the agency's position with respect to 
its requirements here.  

In sum, in view of the health and safety concerns associated with the 
need to have compatible equipment during emergency situations, we have 
no basis to conclude that the requirement for a particular brand of 
equipment is unduly restrictive of competition.

In its December 3 post-hearing comments, the protester for the first 
time argues that the Survivair model that is specified by the current 
solicitation is a new model that is not compatible with the agency's 
current inventory model or parts.  This allegation is untimely.  The 
protester knew from the solicitation what Survivair SCBA model was 
being purchased and knew when it received the agency report on October 
27, 1997, that the agency's justification for a brand name SCBA 
related to compatibility concerns.  If the protester wished to raise a 
protest ground based on its belief that the Survivair model being 
procured now is not compatible with the model in the agency's 
inventory, it was required to raise any such concern within 10 days of 
receipt of the agency report.  4 C.F.R.  sec.  21.2(a)(2) (1997).  In this 
regard, we do note that the record shows that the agency does have, 
within its current inventory, parts for the Survivair model specified 
in the RFQ.

The protest is denied.

Comptroller General 
of the United States

1. In its comments to the agency report submitted in response to the 
protest, the protester contends that the agency failed to properly 
execute approval of the justification at a level above the contracting 
officer.  However, Federal Acquisition Regulation  sec.  6.304(a)(1) 
provides that for proposed contracts not exceeding $500,000, such as 
the one at issue here, the contracting officer's certification will 
serve as approval.

2. OSHA issues regulations governing respiratory protection devices 
for workers.

3. NIOSH certifies a manufacturer's respiratory protection device 
through NIOSH's internal testing of these devices and the listing of 
the tested devices in its "Certified Equipment List."