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 litera

ture 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. The file enclosed with the report of June 20, 1966, is returned.

[B-158553]

Regulations-Compliance-Failure to Comply

Under regulations prescribing that any school whose food or milk service is operated by a concessionaire or food management company is ineligible to participate in the Special Milk Program for Children, but not a child-care institution contracting its food and milk service at a specific fee with approval by the appropriate State agency, a school whose dining hall was operated under contract with a food service management company on a cost-plus-fee basis during the regular school year may not be relieved of liability to refund the erroneous payments received, waiving a substantive program requirement on the basis that payments were used for the purpose of the program negating and defeating the intent of the statutory regulations; however, payments made for the child-care summer program of the school need not be refunded, as had the school been properly instructed it could have conformed to the regulations by securing approval to enter into a fixed-price contract for the operation of the child-care program.

To the Secretary of Agriculture, July 6, 1966:

Reference is made to letter dated February 15, 1966, from Mr. George L. Mehren, Assistant Secretary, Department of Agriculture, requesting our decision regarding payments, in the amount of

$69,424.79, that were made in violation of the Special Milk Program for Children regulations.

The letter states that under the Special Milk Program for Children schools and child-care institutions claim monthly reimbursement at set rates per half pint for milk served to children. The payments in question were made by the Indiana Department of Public Instruction, which administers the aforementioned program in the State of Indiana under an agreement with the Department of Agriculture, to the Culver Military Academy, Culver, Indiana. The Special Milk Program for Children regulations, published as Part 215 of Title 7, Code of Fed. Regs., were made a part of the agreement between the Department of Agriculture and the Indiana Department of Public Instruction by reference.

Sections 215.7 (c) and 215.7(e) of Title 7, Code of Fed. Regs., provide in pertinent part, as follows:

(c) Any school which operates the food or milk service in any attendance unit under a contractual arrangement with a concessionaire or food service management company or under a similar arrangement shall not be eligible for participation in the Program with respect to such attendance unit, even though the school or such attendance unit obtains no profit from the operation of such food or milk service

(e) A child-care institution which operates its food or milk service under a contractual arrangement with a concessionaire or food service management company or under a similar arrangement may be approved for participation in the Program, after FDD has approved the arrangement. To be approved by FDD the arrangement must provide for:

(1) A specific fee for the management service * *

The record shows that Culver participated in the program from March 1962 through January 1965, during which time Culver filed monthly claims totaling $80,117.36, of which $69,424.79 has been paid, leaving an unpaid balance of $10,692.57. The record shows further that an audit conducted by the Office of the Inspector General, Department of Agriculture, disclosed that, during all of the regular school years and during the special summer schools covered by the aforementioned period of participation in the program, Culver's dining hall had been operated under a contract with a food service management company whose fee was computed on a cost-plus basis. Therefore, since the dining hall was operated by a food service management company, the Assistant Secretary states that Culver Military Academy was ineligible to participate in the program during the regular school year under the provisions of section 215.7 (c) quoted above. Also, the Assistant Secretary states that the summer schools conducted by Culver, which for purposes of the program are classified as child-care institutions, were ineligible to participate in the program under the provisions of section 215.7 (e) because the food service management contract had not been approved.

277-066 O-68-3