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Richter, 78 P.2d 307 889 622 [B-158505] 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, reevaluation 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 sufficient 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 1 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, |