B-175254(2), APR 4, 1973, 52 COMP GEN 647

B-175254(2): Apr 4, 1973

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THE EXPERIENCE CLAUSE IN THE SOLICITATIONS WHICH IS DIRECTED TO THE PERFORMANCE HISTORY OF SMALLER RELATED GENERATORS RATHER THAN TO THE SPECIFIC PERFORMANCE EXPERIENCE OF THE KW GENERATOR SOLICITED IS A MATTER OF BIDDER RESPONSIBILITY AND NOT BID RESPONSIVENESS SINCE THE CLAUSE RELATES TO BIDDER EXPERIENCE AND NOT TO THE HISTORY OF PRODUCT PERFORMANCE. ALSO MATTERS OF RESPONSIBILITY ARE THE EXPERIENCE LEVEL SPECIFIED FOR THE SUPPLIER OF THE GAS TURBINE ENGINE. BIDDERS - QUALIFICATIONS - ADMINISTRATIVE DETERMINATIONS - DISCRETIONARY AUTHORITY ALTHOUGH THE RECORD OF THE CONTRACT AWARDED UNDER AN INVITATION FOR BIDS ON SKID MOUNTED POWER PLANTS IS NOT CLEAR AS TO THE SUCCESSFUL BIDDER'S PRIOR EXPERIENCE.

B-175254(2), APR 4, 1973, 52 COMP GEN 647

BIDDERS - QUALIFICATIONS - EXPERIENCE - RESPONSIBILITY V. RESPONSIVENESS IN THE PROCUREMENT OF 2,000 KW GAS TURBINE ENGINE DRIVEN POWER PLANTS AND RELATED DATA PACKAGES, AND SKID MOUNTED POWER PLANTS, THE EXPERIENCE CLAUSE IN THE SOLICITATIONS WHICH IS DIRECTED TO THE PERFORMANCE HISTORY OF SMALLER RELATED GENERATORS RATHER THAN TO THE SPECIFIC PERFORMANCE EXPERIENCE OF THE KW GENERATOR SOLICITED IS A MATTER OF BIDDER RESPONSIBILITY AND NOT BID RESPONSIVENESS SINCE THE CLAUSE RELATES TO BIDDER EXPERIENCE AND NOT TO THE HISTORY OF PRODUCT PERFORMANCE. ALSO MATTERS OF RESPONSIBILITY ARE THE EXPERIENCE LEVEL SPECIFIED FOR THE SUPPLIER OF THE GAS TURBINE ENGINE, AND THE CAPABILITY OF THE BIDDER TO MEET THE QUALIFICATION REQUIREMENTS FOR ENGINEERING SERVICES PERSONNEL AND FACILITIES. FURTHERMORE, EVEN IF WARNED TO THE CONTRARY, DOCUMENTARY EVIDENCE TO SHOW COMPLIANCE WITH THE EXPERIENCE CLAUSE REQUIREMENTS MAY BE SUBMITTED AFTER BID OPENING SINCE SUCH INFORMATION RELATES TO THE BIDDER'S QUALIFICATIONS TO PERFORM. BIDDERS - QUALIFICATIONS - ADMINISTRATIVE DETERMINATIONS - DISCRETIONARY AUTHORITY ALTHOUGH THE RECORD OF THE CONTRACT AWARDED UNDER AN INVITATION FOR BIDS ON SKID MOUNTED POWER PLANTS IS NOT CLEAR AS TO THE SUCCESSFUL BIDDER'S PRIOR EXPERIENCE, AND THE PROCEDURES AND FACILITIES TO BE USED IN CONNECTION WITH ENGINEERING SERVICES TO BE FURNISHED, THE VALIDITY OF THE AFFIRMATIVE ADMINISTRATIVE DETERMINATION OF BIDDER RESPONSIBILITY WILL NOT BE QUESTIONED ABSENT A SHOWING OF BAD FAITH OR LACK OF ANY REASONABLE BASIS FOR THE DISCRETIONARY JUDGMENT MADE SINCE FAILURE TO MEET THE LITERAL REQUIREMENTS OF EXPERIENCE CLAUSE PROVISIONS DOES NOT REQUIRE BID REJECTION IF A BIDDER OTHERWISE QUALIFIES TO PERFORM THE CONTRACT AWARDED. BONDS - PERFORMANCE - MORE THAN PRINCIPAL'S NAME ON BOND A PERFORMANCE BOND EQUAL TO 100 PERCENT OF THE CONTRACT PRICE WHICH WAS MADE OUT TO THE CONTRACTOR AS "PRINCIPAL" AND ANOTHER FIRM AS "SUBCONTRACTOR" IS NOT AN INVALID BOND, FOR UNLIKE A BID BOND WHICH IS CONSIDERED DEFICIENT WHEN THE PRINCIPAL DIFFERS FROM THE BIDDER IN VIEW OF THE RULE OF SURETYSHIP LAW THAT ONE DOES NOT INCUR A LIABILITY TO PAY THE DEBTS OR PERFORM THE DUTIES OF ANOTHER UNLESS SPECIFICALLY AGREEING TO DO SO, THE PERFORMANCE BOND, NOTWITHSTANDING THE INCLUSION OF THE NAMES OF THE CONTRACTOR AND SUBCONTRACTOR, WILL PROTECT THE GOVERNMENT AGAINST THE FAILURE OF PERFORMANCE BY THE PRIME CONTRACTOR, BUT, IN ANY EVENT, THE FURNISHING OF THE PERFORMANCE BOND WAS A CONDITION OF THE CONTRACT AND WAS NOT A CONDITION PRECEDENT TO THE AWARD.

TO GLADE F. FLAKE, APRIL 4, 1973:

REFERENCE IS MADE TO THE NOVEMBER 2, 1972, TELEGRAM FROM STEWART AND STEVENSON SERVICES, INCORPORATED, AND TO YOUR SUBSEQUENT CORRESPONDENCE ON ITS BEHALF, PROTESTING AWARDS MADE UNDER INVITATIONS FOR BIDS N62742 73-B- 6001 AND N62742-73-B-6006, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC), SAN BRUNO, CALIFORNIA.

THE SOLICITATIONS WERE FOR 2,000 KW GAS TURBINE ENGINE DRIVEN POWER PLANTS AND RELATED DATA PACKAGES, AND WERE ISSUED SUBSEQUENT TO OUR DECISION OF AUGUST 16, 1972, 52 COMP. GEN. 87, IN WHICH WE RECOMMENDED CANCELLATION OF A PREVIOUS IFB FOR 12 SUCH GAS TURBINE UNITS BECAUSE OF AN AMBIGUOUS PROVISION CONCERNING THE GEAR BOX TO BE USED WITH THE POWER PLANT. IFB-6001 WAS ISSUED ON SEPTEMBER 18, 1972, AND CALLED FOR BIDS ON 12 POWER PLANTS. BIDS WERE OPENED OCTOBER 25, 1972, AND AFTER EVALUATING THE 10 BIDS RECEIVED, NAVFAC DETERMINED THAT THE TWO LOWEST BIDS WERE UNACCEPTABLE, AND MADE AWARD TO CUSTOM APPLIED POWER CORPORATION (CAPCO), THE THIRD LOW BIDDER, ON OCTOBER 31, 1972. STEWART AND STEVENSON, THE FIFTH LOW BIDDER, THEN PROTESTED, CLAIMING THAT IT SUBMITTED THE LOWEST RESPONSIVE BID.

IFB-6006, FOR THE PROCUREMENT OF 12(SUBSEQUENTLY AMENDED TO NINE) SKID MOUNTED POWER PLANTS, WAS ISSUED ON NOVEMBER 13, 1972. STEWART AND STEVENSON SUBMITTED THE HIGHEST OF THE THREE BIDS RECEIVED ON DECEMBER 21, 1972, IN RESPONSE TO THIS SOLICITATION, BUT ON DECEMBER 26, 1972, IT PROTESTED AWARD TO ANY OTHER BIDDER, CLAIMING IT WAS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. NAVFAC, UPON EVALUATION OF THE BIDS, DETERMINED THAT THE APPARENT LOW BID SUBMITTED BY BRUCE GM DIESEL, INCORPORATED, AND CAPCO, A JOINT VENTURE, CONTAINED AN ARITHMETICAL ERROR THAT WHEN CORRECTED MADE THE BID SECOND LOW. AWARD WAS MADE TO WILLIAMS AND LANE, INCORPORATED, AS LOW BIDDER, ON OR ABOUT JANUARY 4, 1973, AFTER NOTIFICATION TO US PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2- 407.8(B) THAT AWARD WOULD BE MADE NOTWITHSTANDING THE PROTEST FROM YOU AND ABBOTT POWER CORPORATION.

IFB-6001, AS AMENDED, CONTAINED THE FOLLOWING SPECIFICATION PROVISION:

1A.11 EXPERIENCE CLAUSE

A. FOR THE PURPOSE OF THIS IFB, "POWER PLANT" IS DEFINED AS CONSISTING OF GAS TURBINE ENGINE, SPEED REDUCTION GEARING, ELECTRIC GENERATOR, FUEL AND LUBRICATION SYSTEMS, AND AUXILIARY CONTROL AND OPERATING SYSTEMS. THE POWER PLANT OFFERED, MUST BE DESIGNED, FABRICATED, AND ASSEMBLED BY A FIRM WHICH HAS BEEN REGULARLY ENGAGED FOR AT LEAST 1 YEAR IN THE DESIGN FABRICATION AND ASSEMBLY OF POWER PLANTS RATED AT LEAST 500 KILOWATTS CONTINUOUS DUTY AND HAVE OPERATED SUCCESSFULLY AT LEAST 1,000 HOURS WITHIN A PERIOD OF NO MORE THAN 2 YEARS.

B. THE GAS TURBINE ENGINE OFFERED HAS BEEN DESIGNED, MANUFACTURED, AND ASSEMBLED BY A FIRM WHICH IS REGULARLY ENGAGED IN THE DESIGN, MANUFACTURE AND ASSEMBLY OF SIMILAR GAS TURBINE ENGINE MODELS, RATED NOT LESS THAN 2500 HORSEPOWER CONTINUOUS, WHICH HAVE OPERATED SUCCESSFULLY FOR 20,000 HOURS FOR THE PAST 2 YEARS.

C. IN EVENT BIDDER IS NOT THE ORIGINAL MANUFACTURER OF THE GAS TURBINE ENGINE MODEL BEING OFFERED, BIDDER MUST FURNISH WITH THE BID A WRITTEN STATEMENT OF THE QUALIFICATIONS OF THE PERSONNEL, PROCEDURES AND FACILITIES TO BE USED TO PROVIDE ENGINEERING SERVICES NECESSARY TO MONITOR PRELIMINARY AND FINAL DESIGN, AND FABRICATION, AND TO TEST THE POWER PLANTS TO INSURE THAT ALL DETAILS OF ENGINE APPLICATION ARE IN COMPLETE CONFORMANCE WITH LOADING CRITERIA TO WHICH THE ENGINE IS DESIGNED AND MANUFACTURED. BIDS FROM FIRMS WHOSE STATEMENTS SHOW THAT THESE PERSONNEL, PROCEDURES, AND FACILITIES HAVE NOT PREVIOUSLY BEEN USED TO MONITOR AND TEST ENGINES AND POWER PLANTS PROVED SATISFACTORY IN USE WILL BE REJECTED.

D. THE BIDDER SHALL SUBMIT WITH THE BIDS DOCUMENTARY EVIDENCE DEMONSTRATING THE BIDDER'S SATISFACTION OF THESE REQUIREMENTS.

IFB-6006 CONTAINED A SIMILAR CLAUSE, WITH ADDITIONAL LANGUAGE IN SUBPARAGRAPH A TO PERMIT PREVIOUS EXPERIENCE IN THE MANUFACTURE OF PUMPING PLANTS OF AT LEAST 675 HORSEPOWER AS AN ALTERNATIVE TO HAVING MANUFACTURED 500 KW POWER PLANTS. YOU ASSERT THAT COMPLIANCE WITH THESE CLAUSES IS A MATTER OF BID RESPONSIVENESS, THAT NEITHER CAPCO NOR WILLIAMS AND LANE MET THE CLAUSE REQUIREMENTS, AND THAT THEREFORE BOTH BIDS WERE NONRESPONSIVE. YOU STATE THAT "THE EXPERIENCE CLAUSE PRESENTS A QUESTION OF RESPONSIVENESS BECAUSE: (1) IT RELATED TO PERFORMANCE HISTORY OF THE ITEM, AND (2) REQUIRED DOCUMENTARY EVIDENCE, TO BE SUBMITTED WITH THE BID, DEMONSTRATING THE BIDDER'S SATISFACTION OF THESE REQUIREMENTS." WE DO NOT AGREE. RATHER, WE THINK THAT THESE EXPERIENCE CLAUSE PROVISIONS ARE MATTERS OF BIDDER RESPONSIBILITY AND NOT BID RESPONSIVENESS.

THERE IS A DISTINCTION BETWEEN REQUIREMENTS RELATED TO BIDDER EXPERIENCE AND THOSE CONCERNED WITH A HISTORY OF PRODUCT PERFORMANCE. SEE 48 COMP. GEN. 291(1968); B-175493, APRIL 20, 1972. IN OUR EARLIER DECISION IN THIS MATTER, WE SAID THAT "EXPERIENCE REQUIREMENTS DIRECTED PRIMARILY TO THE PERFORMANCE HISTORY OF THE ITEM BEING PROCURED CONCERN BID RESPONSIVENESS, WHILE THE EXPERIENCE OF A BIDDER IS PROPERLY A MATTER OF RESPONSIBILITY." 52 COMP. GEN. 87. HOWEVER, WE HAVE ALWAYS CONSIDERED EXPERIENCE REQUIREMENTS AS MATTERS OF RESPONSIVENESS WHEN THEY ARE DIRECTED TO PERFORMANCE HISTORY OF THE ITEM BEING PROCURED, AND NOT MERELY TO THE PERFORMANCE HISTORY OF SOME OTHER ITEM. 49 COMP. GEN. 9, 11(1969); 52 COMP. GEN. 87. IN THE INSTANT PROCUREMENTS, THE SPECIFIED REQUIREMENTS DO NOT CONCERN THE PERFORMANCE EXPERIENCE OF 2,000 KW GENERATORS, BUT RATHER THE PERFORMANCE OF 500 KW GENERATORS OR 675 HORSEPOWER PUMPING PLANTS. THUS, THESE CLAUSES DO NOT OBLIGATE A CONTRACTOR TO FURNISH A PRODUCT WITH A SPECIFIC PERFORMANCE HISTORY, BUT RATHER REQUIRE THAT BIDDERS OFFERING TO SUPPLY 2,000 KW GENERATORS HAVE PREVIOUS EXPERIENCE IN MANUFACTURING SOME SMALLER, ALBEIT RELATED, GENERATOR UNITS THAT HAVE OPERATED SUCCESSFULLY. COMPLIANCE WITH SUCH EXPERIENCE REQUIREMENTS HAS ALWAYS BEEN A MATTER OF RESPONSIBILITY.

YOU CLAIM THAT PARAGRAPH B OF THE EXPERIENCE CLAUSE REQUIRED A COMMITMENT FROM THE BIDDER AS TO THE SPECIFIC GAS TURBINE ENGINE TO BE OFFERED. OUR OPINION, HOWEVER, THIS PROVISION DOES NOTHING MORE THAN SPECIFY THE REQUIRED EXPERIENCE LEVEL OF THE SUBCONTRACTOR SUPPLIER OF THE GAS TURBINE ENGINE, WHICH IS A MAJOR COMPONENT OF THE POWER PLANT. THIS TYPE OF SUBCONTRACTOR REQUIREMENT IS CLEARLY A MATTER OF RESPONSIBILITY. 48 COMP. GEN. 158(1968). PARAGRAPH C, CONCERNING QUALIFICATIONS OF PERSONNEL AND FACILITIES INVOLVED WITH PROVIDING ENGINEERING SERVICES, GOES TO THE CAPABILITY OF THE BIDDER TO PROVIDE THE DESIRED SERVICES AND THUS IS ALSO A RESPONSIBILITY MATTER. FINALLY, WE DO NOT AGREE WITH YOUR ASSERTION THAT COMPLIANCE WITH THE EXPERIENCE CLAUSE PROVISIONS IS A MATTER OF RESPONSIVENESS BECAUSE OF THE PARAGRAPH D REQUIREMENT FOR SUBMISSION OF DOCUMENTATION WITH THE BID. IT IS WELL ESTABLISHED THAT BIDDERS MAY BE REQUIRED TO SUBMIT INFORMATION BEARING ON THEIR QUALIFICATIONS TO PERFORM THE CONTRACT, AND THAT EVEN WHERE INVITATIONS WARN BIDDERS THAT FAILURE TO PROVIDE SUCH INFORMATION WILL RESULT IN BID REJECTION, BIDS UNACCOMPANIED BY THE REQUIRED INFORMATION MAY NOT BE REJECTED AS NONRESPONSIVE AND THE SUPPLEMENTAL MATERIAL MAY BE FURNISHED AFTER BID OPENING. SEE 39 COMP. GEN. 655(1960); 48 ID. 158, SUPRA; 51 ID. 329(1971).

SINCE COMPLIANCE WITH THE EXPERIENCE CLAUSES OF THE TWO SOLICITATIONS IS A MATTER OF RESPONSIBILITY AND NOT BID RESPONSIVENESS, YOUR ASSERTIONS THAT CAPCO DID NOT MEET ANY OF THE REQUIREMENTS OF THE EXPERIENCE CLAUSE AND THAT WILLIAMS AND LANE DID NOT COMPLY WITH THE REQUIREMENTS OF PARAGRAPH A OF THE CLAUSE ARE IN EFFECT PROTESTS AGAINST NAVFAC'S DETERMINATIONS THAT THE TWO SUCCESSFUL BIDDERS WERE RESPONSIBLE. ADDITION, YOU CLAIM THAT CAPCO DID NOT FURNISH A PROPER PERFORMANCE BOND.

CAPCO'S BID INCLUDED A STATEMENT THAT IT HAD "PRODUCED TWO TURBINE DRIVEN GENERATOR POWER PLANTS WITH 800 KILOWATTS UNDER CONTRACT NO. NBY 70678," AND THAT THE POWER PLANTS HAVE BEEN OPERATED FOR MORE THAN 1,000 HOURS. CAPCO ALSO SUBMITTED TO NAVFAC THE FOLLOWING LETTER:

IN ANSWER TO THE REQUIREMENTS OF PARAGRAPH 1.A.11, CUSTOM APPLIED POWER CORPORATION, IF AWARDED A CONTRACT UNDER SUBJECT SOLICITATION, PROPOSES TO EMPLOY PERSONNEL FROM SOLAR, DIVISION OF INTERNATIONAL HARVESTER CORPORATION, TO PROVIDE ENGINEERING TESTS TO MONITOR PRELIMINARY AND FINAL DESIGN, FABRICATION, AND THE TEST OF THE POWER PLANTS TO BE PRODUCED. RESUMES ON PERSONNEL TO BE FURNISHED TO CUSTOM APPLIED POWER CORPORATION BY SOLAR ARE ATTACHED (ENCLOSURE NO. 1).

CAPCO ALSO EXPECTS TO EMPLOY THE SERVICES OF VERBEKE AND ASSOCIATES, P.O. 22226, SAN DIEGO, CALIFORNIA 92122, TO ASSIST IN THE ABOVE FUNCTIONS. RESUMES OF THEIR PERSONNEL ARE ENCLOSED (ENCLOSURE NO. 2). WE INTEND TO USE THROUGHOUT THE PROGRAM TWO ENGINEERS ON A CONTINUOUS BASIS FROM ONE OF THE TWO ORGANIZATIONS.

IN THE EVENT THAT CAPCO WOULD DECIDE FOR SEVERAL REASONS TO USE A TURBINE PROVIDED BY ALLISON DIVISION OF GENERAL MOTORS CORPORATION, ALLISON HAS AGREED TO FURNISH PERSONNEL FAMILIAR WITH THE ENGINE AND ITS USES IN POWER PLANTS ON AN "AS AVAILABLE" BASIS (SEE ENCLOSURE NO. 3). THEY HAVE DECLINED TO FURNISH US NAMES AND BACKGROUNDS OF SUCH PERSONNEL. IN SUCH A CASE, WE WOULD ALSO USE VERBEKE AND ASSOCIATES TO ASSURE THAT WE DO HAVE PERSONNEL SKILLED IN THE USE OF POWER PLANTS WHEN REQUIRED.

THE TESTING OF THE POWER PLANT WILL BE PERFORMED BY GENERAL TESTING LABORATORIES INC., 6840 INDUSTRIAL ROAD, SPRINGFIELD, VIRGINIA 22151. THEIR PROPOSAL, BACKGROUND AND FACILITIES ARE ENCLOSED (ENCLOSURE NO. 4).

YOU STATE THAT CONTRACT NO. NBY 70678 WAS AWARDED TO THE SOLAR DIVISION OF INTERNATIONAL HARVESTER CORPORATION (SOLAR), AND THAT CAPCO WAS ONLY A SUBCONTRACTOR TO SOLAR. YOU CLAIM THAT WHILE SOLAR SUBCONTRACTED THE FABRICATION AND TESTING OF THE TWO UNITS TO CAPCO, CAPCO COULD NOT HAVE DESIGNED THE UNITS AS REQUIRED BY THE EXPERIENCE CLAUSE. YOU FURTHER CLAIM THAT CAPCO, ALTHOUGH INDICATING IT MIGHT SUPPLY A GAS TURBINE ENGINE MANUFACTURED BY EITHER SOLAR OR DETROIT DIESEL ALLISON DIVISION OF GENERAL MOTORS, ESTABLISHED THE QUALIFICATIONS ONLY OF THE SOLAR PRODUCT. YOU ALSO ASSERT THAT CAPCO'S SUBMISSION OF RESUMES OF QUALIFIED ENGINEERING PERSONNEL DID NOT ESTABLISH THAT THESE PERSONNEL WOULD BE USED TO PERFORM THE NECESSARY ENGINEERING SERVICES AND THAT CAPCO DID NOT ESTABLISH WHAT PROCEDURES AND FACILITIES IT WOULD USE IN PROVIDING SUCH SERVICES.

THE NAVY DOES NOT DISPUTE THAT CAPCO WAS A SUBCONTRACTOR TO SOLAR UNDER CONTRACT NO. NBY 70678, BUT ADVISES THAT CAPCO WAS CONSIDERED TO HAVE SATISFIED THE EXPERIENCE REQUIREMENT BY VIRTUE OF ITS SUBCONTRACTING WORK. IT STATES:

*** THE DESIGN OF THE POWER PLANT (A COMBINATION OF ENGINES, GEARS, ALTERNATORS, AND CONTROLS) WAS ON CAPCO SHOP DRAWINGS, THE ASSEMBLY AND FABRICATION WAS BY CAPCO IN ITS VIRGINIA PLANT, THE TESTING WAS BY CAPCO AND AN OUTSIDE LABORATORY IN ITS VIRGINIA PLANT, AND DELIVERY WAS BY CAPCO. THIS COMMAND HAS DOCUMENTS WHICH DEMONSTRATED THESE FACTS AND SHOWED THEM TO MR. CARSEY MANNING OF STEWART & STEVENSON. CAPCO'S USE OF THE WORD "PRODUCE" (MEANING "TO BRING INTO EXISTENCE" OR "TO CREATE" OR "BRING CROPS, GOODS, ETC., ETC., TO THE POINT AT WHICH THEY WILL COMMAND A PRICE", RANDOM HOUSE DICTIONARY, P. 1148) COMPREHENDED ITS ROLE WITH REGARD TO THESE TWO GENERATOR SETS AND SATISFIES THE REQUIREMENT FOR UNITS "DESIGNED, FABRICATED, AND ASSEMBLED" BY AN EXPERIENCED FIRM.

THE NAVY ALSO AGREES THAT CAPCO, WHILE IDENTIFYING A QUALIFIED SOLAR GAS TURBINE, DID NOT SPECIFY WHICH ALLISON ENGINE IT MIGHT USE AS AN ALTERNATIVE SOURCE. IT STATES, HOWEVER, THAT "THE NAVY IS WELL AWARE *** THAT ALLISON IS A THOROUGHLY QUALIFIED AND EXPERIENCED MANUFACTURER" OF GAS TURBINES THAT SATISFY THE EXPERIENCE CLAUSE REQUIREMENTS AND THAT SINCE THE IFB PROVISION "WAS TO ASSURE AN ENGINE FROM A MANUFACTURER WHOSE ENGINES HAD STOOD THE TEST OF USE *** THE REFERENCE TO ALLISON, A WELL- KNOWN, THOROUGHLY QUALIFIED MANUFACTURER, WAS SUFFICIENT ***." WITH RESPECT TO CAPCO'S IDENTIFICATION OF ENGINEERING PERSONNEL TO BE USED, THE NAVY POINTS OUT THAT CAPCO INDICATED IT WOULD USE PERSONNEL FROM VERBEKE AND ASSOCIATES AND FROM EITHER SOLAR OR ALLISON WHO HAD THE NECESSARY EXPERIENCE. IT FURTHER STATES:

CAPCO'S BID DID STATE THE QUALFICATIONS OF THE PERSONNEL TO FURNISH THE ENGINEERING SERVICES IN DESIGN, FABRICATION AND TEST.*** THE IFB DID NOT REQUIRE THAT THESE PERSONS BE EMPLOYEES OF CAPCO, AND THEY MIGHT BE EMPLOYEES OR CONSULTANTS OR SUBCONTRACTORS. BIDDERS WERE NOT ASKED OR OBLIGED TO FURNISH ANY PARTICULAR TYPE OF COMMITMENT OR EVIDENCE OF THAT COMMITMENT. THIS COMMAND CONSIDERED VERBEKE AND ASSOCIATES QUALIFIED AND HAD PREVIOUSLY VERIFIED THAT ALLISON COULD AND WOULD FURNISH QUALIFIED PERSONNEL.

ALTHOUGH YOU DISPUTE NAVFAC'S STATEMENT THAT CAPCO HAD ASSEMBLED THE POWER PLANTS UNDER CONTRACT NO. NBY 70678(YOU STATE THAT "IT HAS NOW BEEN DETERMINED BY S&S THAT CAPCO DID NOT EVEN ASSEMBLE AND INSTALL THE CRITICAL COMPONENTS"), THE RECORD DOES NOT ESTABLISH THAT THE NAVY WAS UNREASONABLE IN DETERMINING CAPCO TO BE A RESPONSIBLE BIDDER. DETERMINATION OF WHETHER OR NOT A BIDDER IS CAPABLE OF PERFORMANCE AND THEREFORE IS RESPONSIBLE IS NECESSARILY A MATTER OF JUDGMENT. IN 43 COMP. GEN. 228, 230(1963), WE SAID: SUCH JUDGMENT SHOULD OF COURSE BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED WHO SHOULD BE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, WHO MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE, AND WHO MUST MAINTAIN DAY TO DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF.

WE HAVE ALWAYS HELD THAT WE WILL NOT QUESTION THE VALIDITY OF THAT DISCRETIONARY JUDGMENT ABSENT A SHOWING OF BAD FAITH OR LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION. 36 COMP. GEN. 42(1956); 49 ID. 553(1970). WHILE THE RECORD DOES NOT MAKE CLEAR THE EXACT NATURE OF CAPCO'S PRIOR EXPERIENCE AND DOES NOT SPECIFICALLY INDICATE WHAT PROCEDURES AND FACILITIES WOULD BE USED BY CAPCO IN CONNECTION WITH ENGINEERING SERVICES, IT IS WELL ESTABLISHED THAT BIDDERS "MAY NOT BE REJECTED MERELY FOR FAILURE TO MEET THE LITERAL REQUIREMENTS" OF EXPERIENCE CLAUSE PROVISIONS IF THEY ARE OTHERWISE QUALIFIED TO PERFORM THE CONTRACT. 45 COMP. GEN. 4, 7(1965); B-176961, JANUARY 2, 1973. ACCORDINGLY, SINCE THERE APPEARS TO BE AN ADEQUATE FACTUAL BASIS FOR REGARDING CAPCO AS RESPONSIBLE, WE CANNOT AGREE THAT AWARD TO CAPCO WAS IMPROPER.

SIMILARLY, THE NAVY'S DETERMINATION THAT WILLIAMS AND LANE WAS A RESPONSIBLE BIDDER DOES NOT APPEAR TO BE ARBITRARY. THE WILLIAMS AND LANE BID INDICATED THAT THE COMPANY HAD PRODUCED AND INSTALLED SEVEN GAS TURBINE GENERATOR SETS, THREE OF WHICH WERE 2,500 KW UNITS CURRENTLY IN SERVICE. ALTHOUGH, AS YOU POINT OUT, THIS DOES NOT ESTABLISH THAT THE GENERATORS HAVE OPERATED FOR AT LEAST 1,000 HOURS WITHIN 2 YEARS AS REQUIRED BY THE EXPERIENCE CLAUSE, THE RECORD AFFORDS NO BASIS FOR OUR TAKING EXCEPTION TO THE NAVY'S DETERMINING THAT WILLIAMS AND LANE WAS "A RESPONSIBLE BIDDER CAPABLE OF PERFORMANCE" SINCE, AS STATED ABOVE, LITERAL COMPLIANCE WITH THAT CLAUSE IS NOT REQUIRED.

PARAGRAPH 1A.6 OF THE IFB-6001 REQUIRED CAPCO TO FURNISH A PERFORMANCE BOND EQUAL TO 100 PERCENT OF THE CONTRACT PRICE WITHIN 10 DAYS AFTER AWARD. THE BOND FURNISHED BY CAPCO WAS MADE OUT TO CAPCO AS "PRINCIPAL" AND BRUCE GM DIESEL, INCORPORATED, AS "SUBCONTRACTOR." YOU CLAIM THAT SUCH A BOND IS NOT VALID BECAUSE THE NAME ON THE BOND IS NOT THE SAME AS THE NAME ON THE CONTRACT, WITH THE RESULT THAT THE GOVERNMENT HAS A BOND IT CANNOT ENFORCE. WE DO NOT AGREE. WE HAVE HELD THAT A BID BOND WHICH NAMES A PRINCIPAL DIFFERENT FROM THE BIDDER IS DEFICIENT, 44 COMP. GEN. 495(1965), AND THAT A BID BOND WHICH NAMES ONLY ONE PARTY TO A JOINT VENTURE SUBMITTING A BID MAY NOT BE ACCEPTED. 52 COMP. GEN. 223(1972). THE BASIS FOR SUCH HOLDINGS IS THE RULE OF SURETYSHIP LAW THAT ONE DOES NOT INCUR A LIABILITY TO PAY THE DEBTS OR PERFORM THE DUTIES OF ANOTHER UNLESS HE EXPRESSLY AGREES TO DO SO. THUS, THE GOVERNMENT WOULD NOT BE COMPLETELY PROTECTED BY A BOND MADE OUT ONLY TO ONE PARTY WHEN A BID IS SUBMITTED BY A DIFFERENT PARTY OR BY A JOINT VENTURE. HERE, HOWEVER, WE SEE NO REASON WHY A PERFORMANCE BOND MADE OUT TO THE PRIME CONTRACTOR AS PRINCIPAL AND NAMING ANOTHER PARTY AS A SUBCONTRACTOR DOES NOT PROVIDE FULL AND COMPLETE PROTECTION TO THE GOVERNMENT AGAINST FAILURE OF PERFORMANCE BY THE PRIME CONTRACTOR. IN ANY EVENT, THE FURNISHING OF A PERFORMANCE BOND WAS A CONDITION OF THE CONTRACT AND WAS NOT A CONDITION PRECEDENT TO THE AWARD. 51 COMP. GEN. 733(1972).

SINCE WE HAVE DETERMINED THAT WILLIAMS AND LANE WAS THE LOW RESPONSIVE, RESPONSIBLE BIDDER ON IFB-6006, THERE IS NO NEED TO CONSIDER YOUR ADDITIONAL CONTENTION THAT THE STEWART AND STEVENSON BID WAS ALSO RESPONSIVE.

FOR THE FOREGOING REASONS, YOUR PROTESTS ARE DENIED.

A COPY OF OUR LETTER OF TODAY TO ABBOTT POWER CORPORATION IS ENCLOSED FOR YOUR INFORMATION.