BNUMBER:  B-279466             
DATE:  June 18, 1998
TITLE: The Trane Company, B-279466, June 18, 1998
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Matter of:The Trane Company

File:B-279466            
        
Date:June 18, 1998

Thomas W. Krause, Esq., and John B. Denniston, Esq., Covington & 
Burling, for the protester. 
John E. Larricia, Esq., James G. McLaren, Esq., Russell A. Bryan, and 
Jerry W. Aldridge, Department of the Air Force, for the agency. 
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

Contracting agency reasonably determined that upgrade and expansion of 
energy management and control system must be accomplished using the 
products of the manufacturer of the existing system where (1) the 
existing system communicates using a proprietary protocol and no 
gateways between that protocol and the protocols of other control 
systems' manufacturers have been developed, and (2) one technician 
will be responsible for operation and maintenance of the entire 
system.

DECISION

The Trane Company protests the terms of invitation for bids (IFB) No. 
F24604-98-B-0013, issued by the Department of the Air Force for 
upgrade and expansion of the energy management and control system 
(EMCS) at Malmstrom Air Force Base (AFB), Montana.  The protester 
argues that the IFB unduly restricts competition by requiring that the 
equipment to be installed have been manufactured by HSQ Technology.

We deny the protest.

Malmstrom's EMCS manages energy usage by the base's industrial 
facilities.  The current system, which was installed in 1979 and 
expanded in 1988, encompasses more than 60 buildings, and is composed 
entirely of components manufactured by HSQ Technology.  The system 
operates as follows:  wall sensors located within each building feed 
climate and other energy usage data to remote terminal units (RTU), 
which transmit the data along fiber optic lines to a central command 
and control unit (CCU), which analyzes the data.  The system 
communicates using a protocol that is proprietary to HSQ.

The instant IFB calls for upgrading of the RTUs already installed in 
45 of the buildings, expansion of the system to 16 previously 
unconnected buildings, and replacement of the existing CCU.  The IFB 
requires that the upgrade and expansion be accomplished using the 
products of HSQ Technology.  Such a restriction is necessary, the 
agency explains, to ensure that the new equipment can communicate with 
the existing HSQ equipment and to avoid overburdening Malmstrom's EMCS 
operating technician with the need to learn an additional system or 
systems.  

The protester takes issue with the agency's justification, arguing 
that, although its system does not use the same protocol as HSQ's, its 
equipment can communicate with HSQ's through a gateway, a device which 
translates the protocol of one manufacturer into the protocol of 
another.  Trane further argues that the fact that the base's EMCS 
technician might need to learn another system is not sufficient 
justification for restricting competition.  The protester also argues 
that if the Air Force requires a single integrated EMCS, it should 
consider replacing the existing HSQ equipment with equipment 
communicating via a recently developed and widely supported open 
protocol known as BACnet (Building Automation and Control network),[1] 
because it would then have in place the infrastructure to take 
advantage of future technological developments from a range of 
manufacturers.[2]

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 include restrictive 
provisions only to the extent necessary to satisfy the agency's needs.  
10 U.S.C.  sec.  2305(a)(1)(A)(i), B(ii) (1994).  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.  Madison Servs., Inc., B-278962, Apr. 17, 1998, 98-1 
CPD  para.  113 at 2; 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.  CairnsAir, Inc., B-278141, Jan. 2, 
1998, 98-1 CPD  para.  1 at 2.

First, regarding the protester's argument that the agency would be 
better off replacing the existing HSQ equipment than modifying and 
adding on to it, it is clear from the record that the agency 
considered the former alternative but decided against it for budgetary 
reasons:  i.e., it would be two and a half times more expensive to 
replace the system in its entirety than to leave the existing 
equipment in place and add on to it.  The agency also determined that 
it did not require an infrastructure that would allow it to take 
advantage of future technological developments from a range of 
manufacturers, such as a BACnet system would provide, since its energy 
management needs were relatively unsophisticated and were adequately 
served by HSQ's existing technology.  We see nothing unreasonable in 
either of these determinations.

The protester next argues that the agency's need for a single 
integrated basewide EMCS incorporating the existing HSQ equipment does 
not require that the new equipment also have been manufactured by HSQ 
since the equipment of other manufacturers, including itself, can 
communicate with HSQ's via a gateway.  In response, the agency 
explains that it has a number of reasons for not wanting a hybrid 
system consisting of HSQ and non-HSQ BACnet-protocol equipment, a 
primary one being that a BACnet-HSQ gateway has not to date been 
developed and that it appears that HSQ does not intend to participate 
in the development effort.  The agency also expresses concern that if 
a gateway malfunctions, all building RTUs communicating through that 
gateway will be severed, meaning that the CCU will be incapable of 
monitoring and controlling them; that the gateway could affect 
performance of the EMCS by slowing the flow of signals to and from the 
CCU and/or by translating the signals imperfectly; and that upgrade of 
the protocol on either side of the gateway would require upgrade of 
the gateway.  The agency argues that, given the uncertainties 
associated with development of a gateway and the additional risk to 
system performance that use of a gateway introduces, it was reasonable 
for it not to allow the installation of non-HSQ equipment 
communicating with the HSQ CCU through a gateway.

The protester responds that, even though an HSQ-BACnet gateway has not 
yet been developed, there is every reason to believe that a working 
gateway can readily be provided.  In this regard, the protester notes 
that 26 different companies have developed gateways between their 
proprietary protocols and BACnet.  Trane  disputes the agency's 
assertion that HSQ does not intend to cooperate in the development of 
an HSQ-BACnet gateway, but argues that even if such is the case, 
development of a gateway is still possible through reverse 
engineering.

We received extensive testimony regarding the issue of gateway 
development at the hearing that we held in conjunction with this 
protest.  It is our conclusion, based on that testimony, that although 
development of a BACnet-HSQ gateway could be fairly easily 
accomplished if HSQ were willing to furnish its proprietary protocol, 
the development effort will be far more complicated, time-consuming, 
and expensive--and a favorable outcome far less certain--if HSQ is not 
willing to cooperate since reverse engineering will be required.  
Indeed, there is some question as to whether a company specializing in 
gateway development would even be willing to undertake such a project.  
In this regard, the protester's own witness, who is president of such 
a company, testified at the hearing:

     [It] can be very difficult to do that kind of 
     reverse-engineering.  So in general from a customer's perspective 
     it would be a risky position to buy into a reverse-engineered. . 
     . .  As a rule, my company shies away from reverse-engineering 
     projects because they tend to be difficult to come up with a 
     fixed price and quote for.

Teleconference Hearing Transcript, p. 47.

It is not clear from the record that HSQ will be willing to cooperate 
in the development effort.  Although HSQ has apparently expressed a 
general willingness to work with Trane in development of an HSQ-BACnet 
gateway, Malmstrom AFB's mechanical engineer reports that when he 
contacted HSQ with regard to this issue, HSQ's Vice President for 
Marketing and Sales told him that HSQ had not developed, and did not 
intend to develop, a BACnet gateway.  We think that, at a minimum, the 
agency could reasonably conclude on the basis of this conversation 
that HSQ's cooperation was not guaranteed, and that reverse 
engineering might therefore be required to develop a gateway between 
its proprietary protocol system and a BACnet system; we also think 
that the agency could reasonably decide that it did not want to take 
the risks that a reverse engineering effort would entail.  See AAI ACL 
Techs., Inc., B-258679.4, Nov. 28, 1995, 95-2 CPD  para.  243 at 7.

We also find that it was reasonable for the agency to be concerned 
about possible consequences of a failure of the gateway, and for that 
reason, to have defined its needs as being for a non-hybrid system.  
In response to the agency's argument that failure of a gateway could 
sever communications with all equipment downstream from the gateway, 
Trane argues that a gateway is no more likely to fail than the 
interface in an RTU.  Even assuming that such is the case, we do not 
think that failure of the interface in an individual RTU can be 
equated with the failure of a gateway; failure of the former might 
bring down an individual building or part of a building, whereas 
failure of a gateway would bring down all parts of the system 
connected through the gateway.

Further, we think that the agency reasonably determined that it 
required an EMCS that its sole EMCS technician would be capable of 
maintaining, and that due to the differences among various 
manufacturers' control systems and the burden that learning a new 
system would impose on that technician, only an all-HSQ system would 
meet that need.  In this regard, although the protester argues that 
some technicians are capable of learning more than one system--and 
would in fact welcome the challenge of learning a new one--the fact is 
that the Air Force, which is most familiar with the capabilities of 
Malmstrom's sole EMCS technician, has determined that it would be an 
unreasonable burden on him to have to learn an additional system.  We 
see no basis to question the agency's judgment in this regard.[3]

The protest is denied.

Comptroller General
of the United States 

1. BACnet is an open (i.e., nonproprietary) data communications 
protocol developed by the American Society of Heating, Refrigerating 
and Air-Conditioning Engineers during the late 1980s and early 1990s 
and approved by the American National Standards Institute in July 
1995.  The three largest control system manufacturers in the United 
States (Honeywell, Johnson Controls, and Landis & Gyr Powers), as well 
as many smaller manufacturers, including Trane, have announced their 
intention to support BACnet in their products.  According to the 
protester, BACnet is now the standard industry protocol.

2. It is unclear whether the protester is also arguing that the agency 
ought to have allowed offerors to install a parallel system (i.e., 
RTUs communicating with a separate CCU using a protocol different from 
HSQ's) in the new buildings.  We understood the protester to have 
conceded, in its May 8 reply to the Air Force's response to Trane's 
comments on the agency report, that the agency had a legitimate 
interest in maintaining a single integrated system.  ("Like the 
agencies in the cases on which the Air Force relies, Malmstrom AFB 
needs an integrated, basewide EMCS system, such that each building in 
the system can be monitored from a single station."  Protester's May 8 
submission, p. 5.)  Trane's post-hearing comments suggest otherwise, 
however.  ("[Another] alternative would be to install a parallel 
BACnet system in the new buildings--without the gateway to existing 
HSQ equipment. . . .  While this would result in two separate systems 
that were not electronically tied together, it would permit Malmstrom 
Air Force Base to capitalize on all the other advantages afforded by 
BACnet technology, while avoiding the Air Force's perceived concerns 
about a gateway."  Protester's May 28 submission, p. 4.)  To the 
extent that the protester is arguing that it is unduly restrictive of 
competition for the agency not to allow offerors to propose parallel 
systems, we have previously recognized that a single, basewide, 
integrated EMCS may be a legitimate agency need furthering operation 
efficiency and cost savings.  Building Sys. Contractors, Inc., 
B-266180, B-266184, Jan. 23, 1996, 96-1 CPD  para.  18 at 3.

3. In its comments on the agency report, Trane argues that the Air 
Force did not comply with certain procedural requirements of the 
Federal Acquisition Regulation regarding the specific contents and 
approval of the justification.  These issues are untimely.  Under our 
Bid Protest Regulations, 4 C.F.R.  sec.  21.2(a)(2) (1998), protests based 
on other than solicitation improprieties must be filed within 10 days 
of when the protester knew of the basis of protest.  Here, Trane 
received the agency report, including the justification, on April 10.  
Since Trane's comments were not filed until April 21, 11 days later, 
the new issues raised are untimely.  While Trane received permission 
to file its comments later than the 10 calendar days required by our 
Regulations, 4 C.F.R.  sec.  21.3(i), granting of such an extension does 
not waive 
our timeliness requirements.  Terex Cranes, Inc., B-276380, June 10, 
1997, 97-1 CPD  para.  209 at 6.