Adams, Aerials, Apparatus, Pumpers, Rescues

Apparatus Purchasing: Restraint of Trade

Issue 10 and Volume 24.

BY BILL ADAMS

In today’s hyperactive political environment, there are several innuendos and even accusations no fire department wants to encounter—especially in the competitive bidding arena. They are restraint of trade and collusion.

Unfortunately, fire departments and their apparatus purchasing committees (APCs) are not immune from such allegations whether they be true or fabricated. Paraphrasing a statement attributed to a former politician: “It makes no difference whether a person or entity is guilty or not; it is the seriousness of the charge that matters.” Fire departments operating under the auspices of political subdivisions must always be cognizant of the possible political ramifications of their actions or inactions.

Collusion is a fundamentally radical and possible partisan indictment or reference that reeks of conspiracy and preplanned illegality. It is not addressed herein. Two definitions of restraint of trade found online are: “an action that interferes with free competition in a market” and “any activity that prevents another party from conducting business as they normally would without such a restraint.” When writing apparatus purchasing specifications, verbiage may be inadvertently included that could result in a claim of restraint of trade. This verbiage is addressed.

DO-GOODERS

I use the term “do-gooders” to collectively and derogatorily describe individuals whose sole purpose in life is to complain and find fault with everything and anything. Gone are the days when the local fire station used its aerial ladder to untangle the lanyard on the flag pole of a disabled veteran or replace a burned-out lamp on the steeple of a local place of worship—regardless of denomination. Nobody ever complained if several lengths of hose were loaned out to fill an elderly resident’s swimming pool. It wasn’t blasphemous to use a rig to deliver Santa Claus to a Christmas party or to escort the high school’s football team back into town after winning the championship. No one complained to the local media when the career crew on a pumper stopped at a grocery store for provisions on the way back to their barn. The preceding examples are predicaments into which fire departments can unknowingly place themselves. Do-gooders might exploit each and every one ofthem.

SPECIFICATIONS

A more serious quandary is when a fire department’s APC unintentionally writes a set of purchasing specifications that results in a claim or charge of impropriety. The implication of collusion or restraint of trade conjures up visions of possible deceitfulness, dishonesty, and fraud. Claims of bidding impropriety can be made—or merely inferred—by an unsuccessful bidder; a disgruntled employee (firefighter); a member of a political party not in power; or even the aforementioned do-gooders with too much time on their hands.

WHAT IS ACCEPTABLE OR Unacceptable?

There are several ways for purchasing specifications to show preference for, or an animus against, a particular product, material, method of construction, design, or accoutrement on a fire truck. One is to specify a manufacturer and model number such as an Akron Brass Style 1725 2½-inch Turbojet Nozzle, an Elkhart Brass Model DSM-30FLP 2½-inch Select-O-Matic Nozzle, or a Task Force Tips Model H-2VPGI 2½-inch Automatic Nozzle. There is no doubt what the purchaser wants. Another way is to eliminate the name and model number and use the long, wordy, and proprietary specifications each nozzle manufacturer will provide.

Apparatus manufacturers (OEMs) and specification writers are not usually particular when describing an outsourced appurtenance, especially when the commodity is readily available to all OEMs. Another example is ground ladders. Apparatus OEMs really do not want to compare or show preference for Duo-Safety’s or Alcolite’s products—trusting the fire department’s judgment in choosing one over the other. I venture it is also because they purchase from both.

In some instances, purchasing specifications may explicitly prohibit an item, design, or method of construction. Such scenarios might possibly support a claim of restraint of trade, especially if there is no reasonable justification for disallowing the prohibited item.

EXAMPLE

An example of verbiage prohibiting a particular body material was discovered in a set of purchasing specifications found on the Web. It was an actual purchasing specification promulgated by a fire district subject according to state laws applicable to public bidding. It read: “Note to bidders: Plastic, polypropylene and/or poly-type bodies are not acceptable due to welded seams, extreme expansion and contraction of panels, wet side ‘sweating,’ environmental instability, flammability, and use of a metal substructure.”

Disclaimer: I express no preference for any body material, it being a choice that should be the sole discretion of the purchaser. The body material example shown is analogous to comparing a steel aerial device to an aluminum aerial device, a custom cab to a commercial cab, or a halogen light bar to an LED light bar—comparisons worthy of later discussion.

I believe fire departments have the right, if not the obligation, to their taxpayers to procure apparatus that are safe and reliable and have a proven track record. That includes the materials used to construct it. When referring to body materials, if a department can substantiate poor and unacceptable experiences with examples such as the paint falling off of a particular type of material, a body that has suffered severe cracking or distortion, extraordinary corrosion, or bursting into flames at an incident, then by all means, a department would be justified in stating in its purchasing document that that type of material will not be considered. If a department that is challenged with restraint of trade for disallowing a body material can substantiate (justify) its decision with receipts for repairs, the purchase of replacement parts, photographs of the problems, and unnecessary and numerous warranty claims, then the charge is no doubt null and void. Perhaps the vendor “disenfranchised” can’t handle the truth.

Two items in the fire district’s specifications that are somewhat dubious to me are the concerns for environmental instability and the use of a metal substructure. What is environmental instability in fire truck body construction? How can instability be measured from one material to another? If an ambiguous requirement can’t be defined and compared, perhaps it does not belong in the purchasing specifications.

Regarding the use of a metal substructure, I do not believe the domestic manufacturers of nonmetallic bodies use a substructure to “hold their bodies together.” (Some manufacturers of metallic bodies actually have used substructures to maintain the structural integrity of their bodies.) All manufacturers of fire apparatus bodies use a metal structure to mount their bodies to the chassis frame rails. It does not matter if the body material is polypropylene, a composite, steel, aluminum, or even wood (which was used many eons ago)—the underbody mounting system always has been metal. The spec writer should have defined substructure. Does substructure mean just the body mounting system to the chassis, an internal support criterion for the body itself, or a combination of both?

When a specification writer’s verbiage eliminates certain manufacturers without reasoning, it can be considered a “shot across the bow” of those OEMs. Not allowing an accused OEM to respond is equally disconcerting. Domestic manufacturers of polypropylene-type bodies were invited to respond to the above referenced specification.

WELDED SEAMS

Chad Falls, director of sales for APR Plastic Fabricating, Incorporated, says, “No matter what material you use, there will be welds. If the material is Co-Poly Polypropylene or aluminum, it has the same small reduction in strength when welded. When it comes to Co Polymer tanks and bodies built by APR, we use ¾-inch extrusion welds. This is the strongest weld that you can make outside of a fusion welder. All our seams are welded inside and out with this weld.”

Tim Dean, CEO of PolyBilt Body Company, adds, “As to welded seams, we do not know any basis for the same being an issue. If the reason is due to cosmetics and a concern for a painted surface, we believe that is not an issue for several reasons. First, we typically design our bodies with painted surfaces free of any seams. If we require a seam, we try to use our automated butt welder machine. The butt welder seam has been shown to result in a junction as strong as the original parent material and will leave a completely flush seam. If we are unable to butt weld and must use a welded joint, we will leave the welded joint with a high seam for a body painter to sand down to perfection prior to applying the paint.”

Dean continues, “Our bodies paint beautifully, and the joint work can be accommodated prior to painting in similar fashion to a metal body. If the bid specification preparer is concerned with strength of the welded joint, then we also know that to be a nonissue due to the high strength of the polymer welded joint as shown in the thousands of water and foam tanks our company has produced with excellent performance in the field during aggressive and high-stress conditions.”

EXPANSION AND CONTRACTION

Dean states, “As to any perceived expansion and contraction issue, all materials expand and contract with temperature variations. A polymer body will expand and contract at different rates than metals, but as long as the finisher plans for this expansion and contraction, it is really a nonissue. The planning is usually quite simple in leaving a 3⁄16-inch gap behind the cover plate of a roll-up door flange and allowing a fastener to be installed into a cover plate with a slightly larger corresponding hole of usually 3⁄16-inch diameter.”

Falls says, “Expansion and contraction—Co Polymer Polypropylene does expand and contract; however, OEMs allow for this when they up fit the bodies. If there is a need for them, expansion joints are built into the body, and flexible mounts are used to hold every tank to its chassis. All paint suppliers in this industry have developed and perfected the paint and its process for Co-Poly Bodies. Roll-up door manufacturers also design products that work seamlessly with Co-Poly Bodies.”

WET SIDE “SWEATING”

Falls says, “No matter what material you use, a tank will sometimes sweat. It is less likely with plastic because it has a much higher insulation R value than steel or aluminum. In most cases, bodies built by APR do not have cabinets that share a wall with the tank. We build in air gaps between the two so there is never moisture in the compartments.”

Dean adds, “As to any perceived sweating problem, we have really never had this issue. The polymer material acts as a natural insulator. We typically use 3⁄4-inch-thick material on upper side walls for wetside tankers, and this additional thickness usually eliminates any baffle deflection and any sweating. This is really a nonissue.”

ENVIRONMENTAL STABILITY

“As to any perceived environmental instability question, we do not understand the premise,” says Dean. “Our material is derived from a petroleum-based process that is efficient and effective. The material is completely recyclable and can be reprocessed upon service life termination into another useful product. Also, during the fabrication process, our bodies are welded together using clean, filtered shop air and a weldment of the same material as the parent material. There is no glue, adhesive, or other environmentally corrosive processes. In fact, the polymer body is diametrically opposite of environmental instability.”

“Plastic is much easier to recycle than any other material used to make fire apparatus,” states Falls. “Every day there are more and more products being made out of recycled plastic. We own a company that works with recyclers all over the world, and polypropylene is one of the plastics in highest demand for recyclers.”

FLAMMABILITY

“The lights, mirrors, and other products used by chassis manufacturers will melt and burn quicker than our tank or body,” says Falls.

“As to any question of flammability, our bodies are welded at approximately 700° at slow speeds of 12 inches per minute with no heat degradation,” states Dean. “Our bodies are finished using propane torches for cleaning weld slag. We have had bodies involved in fires where the ABS mirrors of the chassis melted along with the acrylic lens caps of the light fixtures and the rubber tires, but the bodies have had little or no damage.”

METAL SUBSTRUCTURE

“Finally, as to any question of metal substructures,” states Dean, “we do not know the genesis for this issue, as all fire truck bodies have some type of substructure for fastening the body to the chassis. We consider a subframe as providing a means to connect the body and integrated water tank to the chassis.”

A fire department using a manufacturer’s “recommended” verbiage verbatim as its own purchasing specification should be aware that there might be a proprietary slant to the document, and it may indiscreetly attempt to eliminate the manufacturer’s competition. That’s salesmanship. The purchasing specification that is put out to bid belongs to the fire department. If challenged in the public bidding arena, the fire department alone is responsible for its content. Good luck.


BILL ADAMS is a member of the Fire Apparatus & Emergency Equipment Editorial Advisory Board, a former fire apparatus salesman, and a past chief of the East Rochester (NY) Fire Department. He has 50 years of experience in the volunteer fire service.