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.