B-237809, Mar 29, 1990, 90-1 CPD 339

B-237809, Mar 29, 1990, 90-1 CPD 339

PROCUREMENT - Socio-Economic Policies - Preferred products/services - Domestic products - Applicability DIGEST: Agency properly applied a domestic item restriction contained in an appropriations act where the agency reasonably determined that the items being procured do not fall within an exception in the act because the items are not "chemical warfare protective clothing."

Attorneys

Acton Rubber Limited:

Acton Rubber Limited protests the rejection of its offer under request for proposals (RFP) DLA100-89-R-0503, issued by the Defense Personnel Support Center (DPSC), a procurement activity of the Defense Logistics Agency (DLA). Acton contends that its offer of a foreign made item should have been accepted because the item is an article of "chemical warfare protective clothing."

We deny the protest.

The solicitation was for manufacture and delivery of 15,168 footwear covers, toxicological agents protective (TAP). The RFP, in a clause entitled "Preference for Certain Domestic Commodities," advised offerors that articles of clothing offered in response to the solicitation must be produced in the United States, but provided that the restrictions did not apply to "chemical warfare protective clothing produced in qualifying countries." This provision implements the Berry Amendment, which has been included in various forms in Department of Defense (DOD) appropriations acts since 1941, most recently in Pub.L. No. 101-165, Sec. 9009 (1989).

Acton's offer was one of four submitted by the closing date of September 7, 1989. According to its offer, it would manufacture the TAP footwear covers in Quebec, Canada. By inter-office memorandum of September 13, the contracting officer inquired of the Technical Operations Division at DPSC if the TAP footwear covers were considered part of the "chemical warfare protective clothing ensemble." In reply, the Division explained that the TAP footwear cover was worn over the TAP Boot to protect the boots from gross contamination and provide a means of rapid decontamination. It also stated that the TAP outfit was used for "protection of personnel engaged in extremely hazardous decontamination work." A different footwear cover was designed for wear over combat boots, as part of the "Chemical Protective" ensemble, to provide protection in the field against chemical agents such as mustard and nerve gases. The contracting officer thus concluded that the TAP footwear cover was not chemical warfare protective clothing, and that Acton's foreign-made product would be unacceptable. November, Acton was advised that its offer had been rejected because it was subject to the domestic preference clause. Acton then filed its protest with our Office.

Acton argues that the entire TAP ensemble, consisting of boots, coveralls, gloves, apron, gas mask hood, and footwear covers, should be considered chemical warfare protective clothing within the meaning of the Berry Amendment exception, and has submitted several military publications in support of its position. /1/ DLA maintains that the contracting officer's decision was reasonable based on the position of the Army and DPSC that the TAP footwear cover is not considered an item of chemical warfare protective clothing.

The issue we must resolve is whether the agency, through its contracting officer, reasonably determined that Acton's foreign-made product did not qualify under the exemption for chemical warfare protective clothing. this regard, where resolution of a protest requires an interpretation of restrictions contained in an appropriations act, the interpretation given the act by the agency charged with its implementation is entitled to deference in the absence of evidence demonstrating that the agency's interpretation is clearly incorrect. Gumsur, Ltd., B-231630, Oct. 6, 1988, 88-2 CPD Para. 329; A&P Surgical Co., Inc., et al., B-206111.2, et al., Mar. 16, 1983, 83-1 CPD Para. 263. Here, based on our review of the record and relevant legislative history, we conclude that the agency reasonably determined that the TAP footwear covers are not "chemical warfare protective clothing."

The exemption arose from a DOD request in 1978 that all "protective clothing" be exempt from the Berry Amendment, to include but not be limited to "chemical warfare protective garments, aircrew flight suits, aircrew immersion suits, special purpose helmets, chemical protective overboots, firemen suits, grenade carriers, armored vests, chemical protective gloves, firemen's insulated boots, and extra-cold weather boots." Department of Defense Appropriations Act for 1979: Hearings Before The House Committee on Appropriations, 95th Cong., 2d Sess. 25 (Aug. 5, 1978). Congress was concerned that the term "protective clothing" was "too broad and could be interpreted to include most clothing items," H.R. Rep. No. 1398, 95th Cong. 2d Sess. 384 (1978) (committee report), and therefore allowed an exception only for chemical warfare protective clothing. See Pub.L. No. 95-457, Sec. 824, 92 Stat. 1231, 1248 (1978). The Amendment does not define "chemical warfare protective clothing." However, as we observed in Gumsur, Ltd., B-231630, supra, the legislative history indicates that Congress intended to carve out only a narrow exception for the items DOD said it was most interested in obtaining from foreign sources.

We have reviewed the military publications submitted by Acton and the agency's explanation of its determination and find that the determination that TAP footwear covers are not chemical warfare protective clothing is reasonable. The agency bases its determination on the difference in design and primary uses of the TAP ensemble, including footwear covers, and the items it does consider to be chemical warfare protective clothing, the "suit chemical protective (overgarment)." The chemical protective overgarment is air permeable and can be worn for up to 14 to 22 days, while the TAP ensemble can only be worn for periods of 15 minutes up to 8 hours, depending upon the ambient air temperature. According to Chapter 2, TM 10-277, "Tactical Protective Clothing for the Individual Soldier," the chemical protective overgarment is normally issued to combat troops for wear over the duty uniform to protect them from exposure to vapors, aerosols, and small liquid droplets of nerve and blister agents. Special chemical protective overboots which cover the wearer's combat boots are a "complementary" item of this protective overgarment. Paragraph 2-3, TM 10 -277. On the other hand, the TAP ensemble is air impermeable protective clothing and is intended primarily for protection of personnel engaged in extremely hazardous decontamination work or other special operations involving danger from spillage or splashing of liquid chemical agents; for example, personnel working with toxic munitions in toxic plants and agent yards and personnel who decontaminate heavily contaminated areas. Chapter 3, "Special Purpose Protective Clothing," TM 10-277.

Various letters and affidavits submitted by DLA echo these design and use distinctions. For example, the Chief, Chemical Protection Section, Individual Protection Directorate, U.S. Army Natick Research, Development and Engineering Center, explains that the TAP suit is not issued to combat troops. Rather it is issued primarily to civilian depot workers, as well as explosive ordinance disposal military personnel, for use in highly contaminated chemical agent environments. /2/ Observing the difference in time that the suits can be worn, he also explains that the chemical protective overgarment is issued to combat troops. The Commander, U.S. Army Support Activity, Philadelphia, Pennsylvania, agrees that the TAP ensemble is only authorized for soldiers or Army civilians engaged in extremely hazardous decontamination work involving a danger of spillage or splashing of liquid chemical agents. The Chief of the Supply Operations Division, Directorate of Clothing and Textiles, DPSC, notes that certain support troops are issued the TAP footwear covers in a non chemical warfare conflict, while combat troops would not be issued the chemical protective overgarment. However, in a chemical warfare conflict, all combat troops would be assigned the chemical protective overgarment, while still only a small portion of support troops would be assigned the TAP footwear covers. Based upon these distinctions, we do not find the agency's determination to be unreasonable, and we defer to its interpretation of the Berry Amendment. See Gumsur, Ltd., B-231630, supra.

Acton, however, contends that the TAP ensemble should be considered chemical warfare protective clothing because it is used in decontamination activities which are part of chemical warfare. According to DLA, soldiers using the TAP ensemble for decontamination activities perform them behind the traditional battle area and are not considered part of a combat unit. Acton contends that the agency is unreasonable in drawing such a distinction. While we might not make the same distinction in what is and is not chemical warfare protective clothing based upon how close to battle the wearer might be, we find that the agency's determination is inherently a technical one, and under the circumstances, we cannot say it is unreasonable or inconsistent with the Berry Amendment. See Gumsur, Ltd., B-231630, supra.

Acton also argues that the agency's determination is faulty because the contracting officer's original inquiry to DPSC did not ask the proper question. Instead of addressing the real issue-- whether the TAP footwear covers could be considered "chemical warfare protective clothing"-- the contracting officer asked whether the covers were part of the chemical warfare protective ensemble. Acton contends that DPSC's acknowledgment that the covers are part of the TAP ensemble, and not some other, does not answer the real issue. While the contracting officer's original question may not have been a model of clarity, based upon our review of the entire record, we find that the agency's position was not based on any misconception of the issue. In fact, after Acton submitted its original comments containing excerpts from military publications, we requested a supplemental report from DLA. In that report, DLA advised our Office that the issue had been thoroughly reevaluated before the Army and DPSC finally determined that the TAP footwear covers could not be considered an item of chemical warfare protective clothing.

Accordingly, the protest is denied.

/1/ Among others, Acton submitted excerpts from the Common Table of Allowances (CTA) 50-900, 30 October 1988; Department of the Army Technical Manual (TM) 10-277, "Chemical, Toxicological and Missile Fuel Handlers Protective Clothing," November 1980; Department of the Army Field Manuel (FM) 101-40, "Armed Forces Doctrine for Chemical Warfare and Biological Defense," June 1976; and FM 3-87, "Nuclear, Biological, and Chemical (NBC) Reconnaissance and Decontamination Operations," 22 February 1980.

/2/ Acton contends that according to CTA 500-90, civilians are not authorized the TAP ensemble in situations involving "extremely hazardous decontamination work or in other special operations involving danger from spillage or splash or liquid chemical agents." Assuming that CTA 500-90 represents an accurate statement of how the TAP ensemble and other equipment is used, as opposed to distributed, we note that the ensemble is authorized for civilians handling toxic agents and assigned to CBR (chemical, biological, radiation) teams requiring full protection. Further, the TAP outfit is authorized for civilian employees engaged in the manufacture or handling of chemical ammunition or toxic agents for extended periods. Thus we perceive no inconsistency between the CTA and the statement of the Chief of the Chemical Protection Section.