course involving attendance at a series of 17 two-hour lectures on a specialized legal topic related to the official duties of the two attorneys.

2. A contract with George Washington University for two full academic semesters for training in government contracts of one Attorney-Advisor (General), GS-12. The courses as listed in the catalog are "431 Government Contracts I" during the first semester, and "432 Government Contracts II" for the second semester, with each semester composed of 17 two-hour lectures.

3. A contract with the Practicing Law Institute, 20 Vesey Street, New York, New York, for training in trial techniques of 2 Attorney-Advisors (General), GS-11 and GS-12. The course consists of demonstration, lectures, and panel discussions. It develops mastery of the trial lawyer's methods and skills and covers practical suggestions and illustrations of techniques, strategy, and tactics in trial of cases. Attendance at the course is intended to accelerate training of Government trial attorneys so they are as thoroughly equipped as possible to represent the Government in hearings before the Corps of Engineers Claims and Appeal Board. The course consists of 30 classroom hours for each attorney.

In the event our decision is that these contracts may be approved, a second question is raised, namely, "does the phrase 'training in any legal profession' appearing in the act apply only to undergraduate courses leading to a degree and qualification as an attorney?"

The current prohibition against training in any legal profession by the military establishments may be traced back to section 636 of the Department of Defense Appropriation Act, 1953, Public Law 488, 66 Stat. 537. A review of the legislative history of that act discloses that the phrase "training in any legal profession" was intended primarily to cover the pursuit of degrees in law, that is, the training of individuals for the purpose of qualifying them as lawyers. Section 637 of House of Representatives bill No. 7391, 82d Congress, 2d Session, which was enacted as Public Law 488, prohibited training in both any legal or business profession. This section was stricken by a committee amendment because of the inclusion of training in any business profession within the prohibition. The following excerpts from the Senate discussion of section 637, recorded in 98 Cong. Rec. 8583 (1952), clearly show the intended purpose of prohibiting the training of individuals for the purpose of qualifying them as lawyers:

Mr. MONRONEY. * * * I realize that the language of the section adopted by the House was entirely too restrictive, but I hope that the conferees, because the House provision is stricken out, will not give carte blanche to the armed services to send to law school for another period of 3 years many officers who have completed 4 years at West Point or Annapolis and have become military officers. ***

I hope that the conferees will agree upon a provision of some kind which will help restrict the sending of officers to law schools. *** To summon a Reserve officer from his home and perhaps from his private law practice, and send him to serve in Korea, while Regular commissioned officers are attending civilian law school at Government expense for the purpose of obtaining law degrees, does not make very good sense to me.

Mr. O'MAHONEY. *** In striking out this House provision, we did so in the belief that it would be necessary in conference to work out a more reasonable prohibition. It is altogether wrong that line officers should be sent to law school for 4 years, and then sent back to the line. It is altogether unreasonable that, with the large number of Regular officers already trained in law and serving in the line, more should be trained. * * *

It was in this context that the prohibition against training in any legal profession was restored and became section 636 of the Department of Defense Appropriation Act, 1953. There is no indication in the legislative histories of any of the acts containing such prohibition that the prohibition was intended to apply to qualified attorneys enrolled in courses offering training in specialized subjects relating to their official duties. That such courses might be part of the regular curriculum of a law school would not appear to be controlling. Section 603 of the Department of Defense Appropriation Act, 1959, 72 Stat. 723, provides in pertinent part:

Appropriations contained in this Act shall be available for * * * all necessary expenses at the seat of government of the United States of America or elsewhere, in connection with (1) instruction and training, including tuition, specifically approved by the Secretary of the department concerned and not otherwise provided for, of civilian employees, * * *

While training under the contracts in question would constitute legal training, such training of qualified attorneys would not, in our opinion, involve training in a legal profession as contemplated by the statute, and in view of the authority contained in section 603, our Office would not be required to object to your approving these

contracts.

Concerning the second question raised, we cannot categorically state that the phrase "training in any legal profession" applies only to undergraduate law courses leading to a degree and qualification as an attorney. Each case must be considered on its own merits. While the prohibition is intended primarily to preclude financing by the Government of law degrees for individuals and courses attended by qualified attorneys would not normally be included therein, that is not to say that training on a higher level would be automatically exempted from the prohibition. For example, enrollment of an attorney in a course of instruction for the sole purpose of his obtaining a Master of Laws degree might be considered training in a legal profession precluded by the statute. Your questions are answered accordingly.

[B-140154]

Contracts-Specifications-Failure to Furnish Something Required-Bid Bond Predating Bid

A bid bond which contains the wrong date of the bid and shows the date the bond was executed as prior in time to the date of the bid, contrary to the instructions on the bid bond form, but which is identifiable with the only invitation outstanding for the particular procurement is enforceable by the Government against the surety and, therefore, such a technically defective bond does not make the bid nonresponsive to the invitation.

To Powell, Dorsey, Blum & White, July 29, 1959:

We refer again to your letter of July 8, 1959, protesting on behalf of Ampex Corporation the possible award to any other bidder of a contract under Bureau of the Census invitation for bids No. 5921, issued June 15, 1959.

The invitation solicited bids on a quantity of 5,000 reels of magnetic instrumentation tape. Paragraph V of the invitation requires the submission of samples with each bid and provides that failure to furnish a sample within the time stated, or failure of the sample to conform to the specifications or other requirements, will result in rejection of the bid. Paragraph VIII of the invitation provides:

Bidders will be required to furnish with their bid, a bid bond on the enclosed Standard Form No. 24 in the amount of 10% of their bid.

By telegram of July 2, 1959, the specifications were modified to require that the reels have flanges with edges flared outward.

Bids were opened on July 6, as scheduled in the invitation. The contracting officer has determined that the low bid should be rejected in accordance with the provisions of paragraph V because the samples submitted therewith did not conform to the specifications. The second low bid was submitted by the Minnesota Mining & Manufacturing Company. The third low bid was submitted by Ampex. In the letter of July 8 the following is set out as the basis for contention that the second low bid should be rejected:

your

Careful examination by our Mr. Buchanan of the bid of Minnesota Mining, the next low bidder, discloses that their certificate of bid bond at the upper right hand corner of the comparable page to that clipped in Ampex's attached bid bond, carried the date June 22, 1959. Three lines below, where it is entitled "Date of Bid," the date is carried as June 26th. On the face of their bid, at about the middle of the page, where it states "Date of Bid," it carried the date July 2d. Your attention is respectfully called to the last line of the back page of the bid bond, which states: "7. The date of this bond must not be prior to the date of the instrument in connection with which it is given."

The weight of authority has built up compellingly that such a variance is material and necessitates invalidation of the bid bond, and hence we would respectfully request that this bid be rejected.

In our decision at 38 Comp. Gen. 532, we held that noncompliance with a requirement in an invitation that a bid bond or other bid security be submitted with the bid will be held to require rejection of the bid as nonresponsive. In view of the language of paragraph VIII of the invitation quoted above, it would appear that the stated principle is properly for application in this case.

As indicated in your letter, the bond submitted with the bid of Minnesota Mining contains the wrong date of bid (June 25 instead of July 2) and shows the date the bond was executed as prior in time to the date of the bid, contrary to paragraph 7 of the instructions on the reserve side of the bid bond form. The bid to which it pertains

is described on the bid bond as one to "furnish magnetic recording tape to the Bureau of Census."

The purpose of our decision at 38 Comp. Gen. 532, which we believe to be clear from the language contained therein, is to preclude the consideration for award of a bid which is not accompanied by a valid bid bond in the amount required, upon which the Government would have recourse against the surety in the event the bidder fails to go forward with faithful performance of the contract. The question here presented, therefore, is whether the bid bond submitted by Minnesota Mining could be enforced against the surety in the event award was made to Minnesota Mining and that firm refused to proceed further with performance.

The surety on the Minnesota Mining bond is a paid or commercial surety. With respect to the obligations of such a surety the following is quoted from 50 Am. Jur. Suretyship, section 155 (page 1004):

If the character and extent of the surety's liability are ascertainable from an inspection of the whole instrument, no merely technical defects will be allowed to stand in the way of its enforcement. *** Even though the form of a surety's bond is expressly prescribed by statute, the surety may not defend on the ground that there was a failure to conform with the statutory requirements, if there was a substantial compliance therewith and if there is no prejudicial variation. * * *

More specifically to the point it has been held that a bond which is erroneously dated or bears no date at all is not thereby rendered invalid if it complies with the other essentials necessary to give it a legal and binding effect. In re Moffitt's Estate, 75 A. 2d. 698.

It is our understanding that at the time of bid submission there was only one invitation outstanding for the procurement of magnetic recording tape by the Bureau of the Census. Therefore, it does not appear that there could arise any confusion as to the bid covered by the bid bond. In view of the authority cited above, and notwithstanding the provisions of paragraph 7 on the reverse side of the bid bond form, it appears that the bond submitted with the Minnesota Mining bid is enforceable by the Government against the surety. Accordingly, it does not appear that there has been presented a sufficient basis upon which to conclude that the Minnesota Mining bid should not be considered for award.

[B-139639]

Contracts-Failure to Submit Information-Bidder's Responsibility Determination

The failure of a bidder to submit preliminary financing data with his bid for a Capehart housing construction project under an invitation which did not specify that the bidder obtain advance financing commitments, but did indicate

that the financing was to be arranged after bid opening and the issuance of a letter of acceptability, was a defect which did not go to the substance of the bid but was a defect which could be waived by the contracting officer because the information was solely for the benefit of the Government in the determination of the responsibility of bidders, and such a determination may be made on the basis of information elicited after bid opening as well as on the basis of information submitted with the bid.

To Dillon and Dillon, July 31, 1959:

Reference is made to your letter of May 14, 1959, and subsequent correspondence, protesting on behalf of the J. W. Bateson Company, Inc., the award of a contract to any bidder other than itself under invitation for bids No. ENG-23-028-59-61, as amended, issued on April 23, 1959, for the construction of 700 Capehart housing units at Fort Leonard Wood, Missouri.

Bids received in response to the invitation were opened on May 7, 1959. The bid which provided the maximum usable construction at a cost not to exceed $11,213,592 was submitted by the D & L Construction Company & Associates (D & L) in the amount of $11,210,000 which permitted an award of the basic bid plus certain additives. The next most favorable bid was that of J. W. Bateson Company, Inc. (Bateson), in the amount of $11,211,000, and the third low bid was submitted by the T. C. Bateson Construction Company, Inc. It was, therefore, announced at the bid opening that D & L was the apparent low bidder. The U. S. Army Engineer District, Kansas City, Missouri, advised D & L and Bateson that the three lowest bidders would receive telegrams requesting that they furnish documents and data required by paragraphs 7 and 33 of the invitation as well as information as to the source of financing required by paragraph 4. Paragraphs 7 and 33 required that certain information relating to experience, financing, organization, etc., be furnished by each of the three lowest bidders. Paragraph 4 provided, in part, that:

Bidders are particularly cautioned as to the complex nature of the project financing. Federal National Mortgage Association funds are not available, and private financing must be obtained by the bidder for both interim and long term loans. Each bidder shall indicate in writing, with the bid, the source of his financing for both interim and long term loans and show evidence of his ability to complete all administrative and financial arrangements for a contract closing within 28 days after issuance of the Letter of Acceptability.

That paragraph further provided that issuance of the Letter of Acceptability is not an acceptance of the bid, but rather, obligates the selected bidder to take necessary steps for closing within 28 days, and if he does so, the bid will be accepted at closing.

By telegram dated May 8, 1959, J. Maxwell Pringle & Company, Inc., advised the District Engineers that it was prepared to provide