B-158505, JULY 1, 1966, 46 COMP. GEN. 1

B-158505: Jul 1, 1966

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THE DESCRIPTIVE LITERATURE CLAUSE WAS IMPROPERLY INCLUDED AND IT WOULD BE PREJUDICIAL TO BIDDERS TO REJECT THEIR BIDS FOR FAILURE TO SUPPLY INFORMATION TO PROVE COMPLIANCE. ACCEPTANCE OF A BID QUALIFIED BY DESCRIPTIVE LITERATURE BINDS THE BIDDER ONLY TO FURNISH WHAT WAS DESCRIBED IN THE LITERATURE AND AS IT WOULD NOT BE PROPER TO IGNORE THE LITERATURE EVEN THOUGH IT SHOULD NOT HAVE BEEN REQUIRED. AN INVITATION INCLUDING A DEFECTIVE DESCRIPTIVE LITERATURE CLAUSE THAT IS PREJUDICIAL TO OTHER BIDDERS SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED. 1966: REFERENCE IS MADE TO CORRESPONDENCE DATED FEBRUARY 10. WHICH WAS THE SUBJECT OF A REPORT DATED JUNE 20. THE SUBJECT CONTRACT WAS AWARDED TO SONEX BUT WAS CANCELED AFTER VECTOR PROTESTED TO THE PROCURING ACTIVITY.

B-158505, JULY 1, 1966, 46 COMP. GEN. 1

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - DEFECTIVE. UNDER AN INVITATION FOR BIDS TO FURNISH EQUIPMENT IN ACCORDANCE WITH DETAILED SPECIFICATIONS AND INCLUDING THE DESCRIPTIVE LITERATURE CLAUSE PRESCRIBED BY SECTION 2.202.5 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION, BUT FAILING TO STATE THE DESCRIPTIVE REQUIREMENT FOR TECHNICAL EVALUATION, UPON CANCELLATION OF THE AWARD, RE-EVALUATION OF THE BID INDICATING THE INSUFFICIENCY OF THE DESCRIPTIVE LITERATURE FURNISHED TO DETERMINE SPECIFICATION COMPLIANCE, A DEVIATION NOT CONSIDERED A CLERICAL ERROR, OR OVERCOME BY A SUBSEQUENT OFFER OF COMPLIANCE, AN AWARD MAY NOT BE MADE TO ANY OTHER BIDDER AND THE PROCUREMENT SHOULD BE READVERTISED, THE DESCRIPTIVE LITERATURE REQUIREMENT NOT ESTABLISHING A COMMON BASE FOR BID EVALUATION AND THE DETAILED SPECIFICATIONS LEAVING NOTHING TO DESCRIBE IN THE WAY OF PERFORMANCE CHARACTERISTICS, THE DESCRIPTIVE LITERATURE CLAUSE WAS IMPROPERLY INCLUDED AND IT WOULD BE PREJUDICIAL TO BIDDERS TO REJECT THEIR BIDS FOR FAILURE TO SUPPLY INFORMATION TO PROVE COMPLIANCE. BIDS - QUALIFIED - DESCRIPTIVE LITERATURE. ACCEPTANCE OF A BID QUALIFIED BY DESCRIPTIVE LITERATURE BINDS THE BIDDER ONLY TO FURNISH WHAT WAS DESCRIBED IN THE LITERATURE AND AS IT WOULD NOT BE PROPER TO IGNORE THE LITERATURE EVEN THOUGH IT SHOULD NOT HAVE BEEN REQUIRED, AN INVITATION INCLUDING A DEFECTIVE DESCRIPTIVE LITERATURE CLAUSE THAT IS PREJUDICIAL TO OTHER BIDDERS SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED.

TO THE SECRETARY OF THE NAVY, JULY 1, 1966:

REFERENCE IS MADE TO CORRESPONDENCE DATED FEBRUARY 10, AND APRIL 15, 1966, FROM UNITED AIRCRAFT CORPORATION, VECTOR DIVISION, AND TO CORRESPONDENCE DATED APRIL 1 AND 27, 1966, FROM SONEX, INC., EACH PROTESTING AGAINST THE ACTIONS OF THE NAVAL SUPPLY SYSTEMS COMMAND (FORMERLY BUREAU OF SUPPLIES AND ACCOUNTS) IN CONNECTION WITH CONTRACT NO. N00421-66-C-4910, AWARDED BY THE UNITED STATES NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, WHICH WAS THE SUBJECT OF A REPORT DATED JUNE 20, 1966, FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND. THE SUBJECT CONTRACT WAS AWARDED TO SONEX BUT WAS CANCELED AFTER VECTOR PROTESTED TO THE PROCURING ACTIVITY, AND NOW AWARD IS PROPOSED TO VECTOR.

THE INVITATION PURSUANT TO WHICH THE CONTRACT WAS AWARDED WAS ISSUED ON NOVEMBER 30, 1965, AND CALLED FOR BIDS ON FURNISHING AN FM TELEMETRY GROUND STATION FOR INSTALLATION IN A MOBILE UNIT IN ACCORDANCE WITH DETAILED SPECIFICATIONS STATED THEREIN. PURSUANT TO THE AUTHORITY CONTAINED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.5 (B) THE INVITATION INCLUDED THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE:

SECTION 8.0 REQUIREMENT FOR DESCRIPTIVE LITERATURE (OCT. 1960)

(A) DESCRIPTIVE LITERATURE COVERING THE ITEM/ITEMS REQUESTED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS AND PERFORMANCE CHARACTERISTICS.

(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

HOWEVER, THE REQUIREMENTS FOR FURNISHING DESCRIPTIVE LITERATURE MAY BE WAIVED AS TO A BIDDER IF (I) THE BIDDER STATES IN HIS BID THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT THAT HE HAS PREVIOUSLY FURNISHED TO THE PURCHASING ACTIVITY UNDER A PRIOR CONTRACT AND THE BIDDER IDENTIFIED THE CONTRACT, AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT MEETS THE REQUIREMENTS OF THIS INVITATION FOR BIDS.

EIGHT BIDS WERE RECEIVED AND OPENED ON JANUARY 17, 1966, WITH SONEX BEING THE SECOND LOW BIDDER AT $21,500 AND VECTOR FOURTH LOW BIDDER AT $23,950. ALL BIDS AND ACCOMPANYING DESCRIPTIVE LITERATURE WERE FORWARDED TO THE DATA SYSTEMS DIVISION FOR TECHNICAL EVALUATION TO DETERMINE COMPLIANCE OF THE PRODUCT OFFERED WITH THE STATED SPECIFICATIONS. BY A MEMORANDUM DATED FEBRUARY 2, 1966, FROM THE DATA SYSTEMS DIVISION, THE CONTRACTING OFFICER WAS ADVISED THAT THE LOW BIDDER DID NOT OFFER A PRODUCT IN CONFORMANCE WITH THE SPECIFICATIONS AND WAS THEREFORE NONRESPONSIVE, BUT THAT THE SONEX BID WAS TECHNICALLY RESPONSIVE AND AWARD TO IT WAS RECOMMENDED. THE CONTRACTING OFFICER MADE THE AWARD TO SONEX ON FEBRUARY 8, 1966.

ON FEBRUARY 9, 1966, VECTOR CONTACTED THE PROCURING ACTIVITY BY TELEPHONE AND POINTED OUT SEVERAL SPECIFICATIONS THAT THE SONEX BID ALLEGEDLY DID NOT COMPLY WITH. BY TELEGRAM DATED FEBRUARY 11, 1966, TO THE CONTRACTING OFFICER, VECTOR PROTESTED THE AWARD AND INCLUDED THEREIN THE TEXT OF ITS TELEGRAM OF FEBRUARY 10 TO OUR OFFICE ALLEGING THAT NEITHER THE SONEX NOR BENDIX (THIRD LOW BIDDER) BIDS COMPLIED WITH THE SPECIFICATIONS. THEREAFTER, DATA SYSTEMS DIVISION REEVALUATED THE SONEX BID AND DESCRIPTIVE LITERATURE AND IN MEMORANDA DATED FEBRUARY 16 AND 23, 1966, ADVISED THE CONTRACTING OFFICER THAT UPON REEVALUATION IT HAD DETERMINED SONEX WAS TECHNICALLY NONRESPONSIVE. IN THE FIRST MEMORANDUM IT IS STATED THAT THE FIRST EVALUATION WAS MADE UNDER THE ASSUMPTION THAT THE DESCRIPTIVE LITERATURE CLAUSE WAS DEFECTIVE AND UPON THE ASSUMPTION THAT THE PRODUCT OFFERED BY SONEX WAS RESPONSIVE IF THE UNIT COULD BE MODIFIED TO MEET "NATC" NEEDS. IN REACHING ITS CONCLUSION THAT SONEX IS TECHNICALLY NONRESPONSIVE, DATA SYSTEMS DIVISION STATES THAT THE DESCRIPTIVE LITERATURE IS INSUFFICIENT TO DETERMINE COMPLIANCE WITH SPECIFICATIONS 2.1.3.1, 2.2.2, AND 2.5, AND THAT THE DESCRIPTIVE LITERATURE INDICATES NONCOMPLIANCE WITH SPECIFICATIONS 2.1.3.13 AND 2.4 AS TO POWER SUPPLY VOLTAGE RANGE. AS A RESULT OF THE REEVALUATION THE CONTRACTING OFFICER NOTIFIED SONEX BY TELEGRAM ON FEBRUARY 23, 1966, THAT THE AWARD TO IT WAS MADE IN ERROR AND THE CONTRACT WAS THEREFORE CANCELED.

THE DATA SYSTEMS DIVISION HAS NOW ADVISED THE CONTRACTING OFFICER THAT THE BENDIX BID IS TECHNICALLY NONRESPONSIVE AND THAT THE DESCRIPTIVE LITERATURE SUBMITTED BY VECTOR INDICATES IT IS TECHNICALLY RESPONSIVE. THEREFORE, THE CONTRACTING OFFICER PROPOSES TO AWARD THE CONTRACT TO VECTOR.

SONEX MAKES FOUR MAJOR CONTENTIONS. FIRST, WITH RESPECT TO THE VALIDITY OF ITS AWARD, IT CONTENDS THAT ALTHOUGH THE DESCRIPTIVE LITERATURE INDICATED NONCOMPLIANCE WITH SPECIFICATIONS 2.1.3.13 AND 2.4, THIS WAS DUE TO A CLERICAL ERROR IN MARKING THE LITERATURE AND SINCE IT CLEARLY STATED IN THE BID THAT IT WOULD FULLY COMPLY WITH THE SPECIFICATIONS THE AWARD WAS VALID AND SHOULD BE REINSTATED. ADDITIONALLY, IT IS STATED THAT IT SHOULD BE APPARENT TO EXPERIENCED ENGINEERS THAT ITS EQUIPMENT COULD OPERATE WITH THE RANGE CALLED FOR BY SPECIFICATIONS 2.1.3.13 AND 2.4. SECOND, IF THE CANCELLATION STANDS, THEN IT SHOULD BE CONSIDERED A TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT AND SONEX SHOULD BE REIMBURSED FOR EXPENSES INCURRED PRIOR TO TERMINATION IN THE AMOUNT OF $7,500. THIRD, NO BIDDER'S DESCRIPTIVE LITERATURE SHOWED COMPLIANCE WITH THE SPECIFICATIONS AND, PARTICULARLY, VECTOR'S LITERATURE DID NOT SHOW COMPLIANCE WITH SPECIFICATIONS 2.1.3.4, 2.1.3.6 AND 2.1.3.8. FOURTH, THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS NOT NECESSARY AND CONTRARY TO THE POLICY OF ASPR 2-202.5 BECAUSE THE SPECIFICATIONS WERE STATED WITH SUFFICIENT DETAIL TO ESTABLISH WHAT THE BIDDER PROPOSED TO FURNISH AND WHETHER IT MET THE SPECIFICATIONS.

FOR REASONS WHICH WILL HEREINAFTER BE APPARENT, IT IS NECESSARY TO CONSIDER ONLY ONE OF THE POINTS MADE BY VECTOR. IT IS VECTOR'S VIEW THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS VALID AND IN ACCORDANCE WITH THE REQUIREMENTS OF ASPR 2-202.5. IN SUPPORT OF THIS POSITION, IT IS POINTED OUT THAT EXCEPT FOR THE DESCRIPTIVE LITERATURE FURNISHED BY SONEX AND BENDIX THE NONCONFORMITY OF THEIR EQUIPMENT WOULD NOT HAVE BEEN REVEALED.

THE PRIMARY ISSUE PRESENTED BY THE FOREGOING CIRCUMSTANCES IS THE VALIDITY OF THE AWARD OF THE CONTRACT TO SONEX AND THE PROPRIETY OF THE SUBSEQUENT CANCELLATION THEREOF. ALTHOUGH SONEX WAS THE APPARENT LOW RESPONSIVE BIDDER, IT IS CLEAR THAT ITS BID WAS IN FACT NONRESPONSIVE, AS DETERMINED BY THE REEVALUATION BY THE DATA SYSTEMS DIVISION AND BY SONEX'S OWN ADMISSION. WHILE SONEX HAS INDICATED THAT THE DEVIATIONS FROM SPECIFICATIONS 2.1.3.13 AND 2.4 IN ITS DESCRIPTIVE LITERATURE WERE DUE TO A CLERICAL MISTAKE AND HAS, SUBSEQUENT TO BID OPENING, EXPRESSED AN INTENTION TO CONFORM ITS EQUIPMENT TO THE SPECIFICATIONS, THESE FACTORS MAY NOT BE CONSIDERED IN DETERMINING ITS ELIGIBILITY FOR AWARD. IT IS WELL ESTABLISHED THAT A BID WHICH IS NONRESPONSIVE ON ITS FACE MAY NOT BE CORRECTED AFTER BIDS ARE OPENED SINCE THIS WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. 38 COMP. GEN. 819. SONEX ALSO CONTENDS THAT IN ITS PROPOSAL IT CLEARLY STATED THAT IT WOULD COMPLY FULLY WITH THE SPECIFICATIONS. EVEN IF THE STATEMENT REFERRED TO MAY BE CONSIDERED AN OVERALL OFFER TO COMPLY, WE HAVE LONG HELD THAT SUCH A STATEMENT CANNOT BE CONSIDERED AS OVERCOMING VARIANCES IN THE BID DATA. 40 COMP. GEN. 132, 135; 36 ID. 415. SINCE THE SONEX BID WAS NOT RESPONSIVE TO THE SPECIFICATIONS, THE AWARD OF THE CONTRACT TO IT VIOLATED THE STATUTORY MANDATE OF 41 U.S.C. 253 (B) THAT AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID "CONFORMING TO THE INVITATION FOR BIDS" WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT. THE AWARD WAS THEREFORE INVALID AND THE CONTRACT WAS PROPERLY CANCELED.

REMAINING FOR CONSIDERATION IS THE QUESTION WHETHER THE VECTOR BID, WHICH HAS BEEN DETERMINED TECHNICALLY RESPONSIVE, MAY BE ACCEPTED AND AWARD OF A CONTRACT MADE TO IT UNDER THE SUBJECT INVITATION. WE BELIEVE THIS QUESTION MUST BE ANSWERED IN THE NEGATIVE. ARMED SERVICES PROCUREMENT REGULATION 2-202.5, COVERING THE POLICY WITH RESPECT TO REQUIRING DESCRIPTIVE LITERATURE IN INVITATIONS FOR BIDS, PROVIDES THAT BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE PROCUREMENT OFFICE DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. MOREOVER, THE REGULATION STATES THAT WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT BEFORE BID OPENING. AS JUSTIFICATION FOR THE DECISION TO REQUIRE DESCRIPTIVE LITERATURE IN THE SUBJECT PROCUREMENT, THE ADMINISTRATIVE FILE INCLUDES THE FOLLOWING MEMORANDUM DATED NOVEMBER 19, 1965, AS REQUIRED BY ASPR 2-202.5 (C):

MEMORANDUM FOR FILE.

JUSTIFICATION FOR REQUIREMENTS OF DESCRIPTIVE LITERATURE.

DESCRIPTIVE LITERATURE IS REQUIRED FOR THE PURPOSE OF BID EVALUATION.

LITERATURE FURNISHED WILL SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS.

FINDINGS.

1. DUE TO THE SPECIALIZED NATURE OF THE EQUIPMENT BEING PROCURED AND THE ADDITIONAL FACTOR THAT IT WILL BE OPERATED AS A MOBILE UNIT, REQUIRES THAT ALL OFFERERS MUST MEET WITHOUT EXCEPTION THE REQUIREMENTS OF THE SPECIFICATION. CERTAIN OPERATING PARAMETERS MUST BE MET BY THE PRODUCT OFFERED, AND IT WOULD BE IMPOSSIBLE TO PROPERLY EVALUATE BIDS WITH REGARD TO CONFORMANCE TO THE SPECIFICATIONS, WITHOUT COMPLETE DESCRIPTIVE LITERATURE BEING SUBMITTED.

2. PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE BECAUSE OF DIFFERENCES IN DESIGN AND PERFORMANCE CHARACTERISTICS AMONG PRODUCTS.

3. DUE TO CONTEMPLATED OPERATION IN A MOBILE UNIT, COMPLETE CONFORMANCE TO REQUIREMENTS OF THE SPECIFICATIONS MUST BE DETERMINED PRIOR TO AWARD OF CONTRACT.

DETERMINATION.

DESCRIPTIVE LITERATURE IS REQUIRED TO BE SUBMITTED BY ALL BIDDERS CONCERNING DESIGN, MATERIALS, COMPONENTS AND PERFORMANCE CHARACTERISTICS.

WE BELIEVE IT IS DOUBTFUL, AT BEST, WHETHER THE FOREGOING MEMORANDUM STATES REASONS JUSTIFYING THE REQUIREMENT FOR DESCRIPTIVE LITERATURE. THE MEMORANDUM STATES LITTLE MORE THAN THE CONCLUSION THAT DESCRIPTIVE LITERATURE IS REQUIRED FOR THE PURPOSE OF BID EVALUATION. MOREOVER, IT IS DIFFICULT TO UNDERSTAND WHY DESCRIPTIVE LITERATURE WAS CONSIDERED NECESSARY SINCE THE SPECIFICATIONS OF THE EQUIPMENT BEING PROCURED ARE STATED IN SUCH DETAIL THAT THEY LEAVE NOTHING FOR THE BIDDER TO DESCRIBE IN THE WAY OF PERFORMANCE CHARACTERISTICS, AND FURNISH NO STANDARDS FOR EVALUATION OF DESIGN, MATERIALS OR COMPONENTS EXCEPT TO THE EXTENT THAT SUCH ELEMENTS ARE SPECIFICALLY PRESCRIBED IN THE SPECIFICATIONS. THAT THIS CLAUSE WAS NOT JUSTIFIED IS CONFIRMED BY THE STATEMENT IN THE LETTER FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, THAT "TECHNICAL PERSONNEL AT THE PURCHASING ACTIVITY HAVE REVIEWED THE SPECIFICATIONS AND DETERMINED THAT DESCRIPTIVE LITERATURE SHOULD NOT HAVE BEEN A REQUIREMENT OF THIS INVITATION FOR BIDS;, FURTHERMORE, EVEN IF AN ACCEPTABLE PRODUCT COULD NOT HAVE BEEN PROCURED WITHOUT DESCRIPTIVE LITERATURE, A REQUIREMENT FOR SUCH LITERATURE SHOULD ADVISE BIDDERS WITH PARTICULARITY BOTH AS TO THE EXTENT OF THE DETAIL REQUIRED AND THE PURPOSE IT IS EXPECTED TO SERVE. 38 COMP. GEN. 59; 42 ID. 598. IN ORDER FOR EACH BIDDER TO BE ON AN EQUAL BASIS IN SUPPLYING DESCRIPTIVE LITERATURE, IT IS ESSENTIAL THAT THE NEED FOR SUCH LITERATURE BE SET FORTH IN THE INVITATION IN THE GREATEST DETAIL PRACTICAL. THE MERE RECITAL IN THE DESCRIPTIVE LITERATURE CLAUSE OF THE CATEGORIES OF GENERAL SUBJECTS, WHICH ARE LISTED IN THE FOOTNOTE TO ASPR 2-205.5 (D) (2) AS SUBJECTS WHICH MIGHT REQUIRE DESCRIPTION, IS NOT SUFFICIENT TO ESTABLISH A COMMON BASIS FOR EVALUATION OF BIDS. FOR THE FOREGOING REASONS IT IS OUR OPINION THAT THE DESCRIPTIVE LITERATURE REQUIREMENT WAS IMPROPERLY INCLUDED IN THE INVITATION. CONVERSELY, IF ITS INCLUSION CAN BE JUSTIFIED, IT IS OUR OPINION THAT THE INVITATION WAS THEREFORE DEFECTIVE BECAUSE THE EXTENT OF DETAIL REQUIRED AND THE PURPOSE TO BE SERVED WERE NOT PROPERLY SET OUT. ALTHOUGH THE INCLUSION OF A DEFECTIVE PROVISION IN AN INVITATION MAY BE DISREGARDED AND AN AWARD MADE THEREUNDER WHERE COMPETITION HAS NOT BEEN AFFECTED, WHERE THE AGENCY BY AWARD WOULD ENTER INTO A BINDING CONTRACT FOR WHAT IT WANTED, AND WHERE NO BIDDER OBTAINED AN OPTION OR OTHER UNDUE ADVANTAGE BECAUSE OF THE DEFECT IN THE INVITATION, B-157297, SEPTEMBER 17, 1965, WE DO NOT BELIEVE THAT IS THE CASE HERE. AT LEAST TWO BIDS WERE REJECTED AS NONRESPONSIVE AND THE SONEX CONTRACT WAS CANCELED BECAUSE IT WAS NOT RESPONSIVE. ALL THREE OF THESE BIDS WERE LOWER THAN VECTOR'S AND, WHILE THE RECORD SHOWS THE VIDAR BID WAS FOUND NONRESPONSIVE BECAUSE IT OFFERED A PULSE-AVERAGING DISCRIMINATOR INSTEAD OF A PHASE-LOCKED LOOP DISCRIMINATOR AS SPECIFIED, THE BENDIX BID WAS REJECTED BECAUSE IT DID NOT CONTAIN SUFFICIENT INFORMATION TO EVALUATE ITS CONFORMITY TO 14 STATED SPECIFICATIONS, AND NOT BECAUSE THE DESCRIPTIVE LITERATURE SHOWED NONCOMPLIANCE WITH THE SPECIFICATIONS. SINCE NOWHERE IN THE INVITATION WAS THERE A STATEMENT AS TO WHAT DESCRIPTIVE DATA WAS REQUIRED FOR COMPLETE TECHNICAL EVALUATION, IT WOULD BE PREJUDICIAL TO THE BIDDERS TO REJECT THEIR BIDS FOR FAILURE TO SUPPLY SUFFICIENT INFORMATION TO PROVE COMPLIANCE. ON THE OTHER HAND, SINCE THE LITERATURE SUBMITTED MUST BE CONSIDERED AS QUALIFYING THE BIDS, ACCEPTANCE OF ANY BID WOULD BIND THE BIDDER ONLY TO FURNISH WHAT WAS DESCRIBED IN HIS LITERATURE, AND IT WOULD NOT BE PROPER TO IGNORE SUCH LITERATURE EVEN THOUGH IT SHOULD NOT HAVE BEEN REQUIRED. FOR THE FOREGOING REASONS, IT IS OUR BELIEF THAT THE IMPROPER INCLUSION OF THE DEFECTIVE DESCRIPTIVE LITERATURE CLAUSE AND THE PREJUDICIAL EFFECT IT HAD ON ONE OR MORE OF THE BIDDERS REQUIRES THAT THE INVITATION MUST BE CANCELED AND THE REQUIREMENT READVERTISED.

BY COPIES OF THIS DECISION TO SONEX AND VECTOR WE ARE ADVISING THEM OF OUR DECISION WITH RESPECT TO THEIR RESPECTIVE PROTESTS.