B-138114, OCTOBER 6, 1959, 39 COMP. GEN. 254

B-138114, OCTOBER 6, 1959, 39 COMP. GEN. 254

BIDDERS - ALLEGATION OF UNFAIRNESS, ETC. - SAMPLES MANUFACTURED BY ANOTHER BIDDER A LOW BIDDER WHO SUBMITTED AS ITS OWN SAMPLE A PRODUCT MANUFACTURED BY ANOTHER BIDDER, WITH A PAPER LABEL IDENTIFYING THE SAMPLE AS ITS PRODUCT, HAS NOT PERFORMED ANY ACTS INVOLVING INTERSTATE COMMERCE TO BE CONSIDERED TO HAVE VIOLATED THE UNFAIR METHODS OF COMPENSATION PROVISIONS IN THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C. 45. A LOW BIDDER WHO SUBMITTED AS ITS OWN SAMPLE A PRODUCT MANUFACTURED BY ANOTHER BIDDER, IDENTIFYING THE PRODUCT BY PLACING ITS LABEL OVER THE MANUFACTURER'S NAME AND PATENT NUMBER, HAS NOT PERFORMED ANY ACTS INVOLVING INTERSTATE COMMERCE TO BE CONSIDERED TO HAVE VIOLATED SECTION 43 (A) OF THE LANHAM TRADE-MARK ACT, 15 U.S.C. 1125 (A). A CERTIFICATION BY A LOW BIDDER THAT HE IS A MANUFACTURER WITHIN THE MEANING OF SECTION 1 (A) OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35, EVEN THOUGH HE HAS NOT PREVIOUSLY MANUFACTURED THE PARTICULAR ITEM, IS IN COMPLIANCE WITH THE ACT WHICH ONLY REQUIRES THAT THE BIDDER STIPULATE THAT HE WILL BE THE MANUFACTURER OF THE ITEM TO BE PROCURED BY THE GOVERNMENT. A DEPARTMENT OF LABOR REGULATION ( CIRCULAR LETTER NO. 1-58, ISSUED JANUARY 24, 1958) WHOCH DEFINES "MANUFACTURER" FOR PURPOSES OF THE WALSH- HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35, SO AS TO PERMIT BIDDERS WHO HAVE NOT PREVIOUSLY MANUFACTURED THE PARTICULAR ITEM BID UPON TO QUALIFY PROVIDED THAT CERTAIN MANUFACTURING REQUIREMENTS HAVE BEEN MET IS NOT IN CONTRAVENTION OF THE ACT WHICH MERELY REQUIRES A BIDDER TO STIPULATE THAT HE WILL MANUFACTURE THE ITEM TO BE PROCURED BY THE GOVERNMENT. UNDER AN INVITATION WHICH DID NOT REQUIRE THE SUBMISSION OF SAMPLES WITH THE BID BUT RESERVED TO THE GOVERNMENT THE RIGHT TO REQUEST SAMPLES, AFTER BIDS WERE OPENED, FOR THE PURPOSE OF DETERMINING WHETHER THE ITEM COMPLIES WITH THE SPECIFICATIONS, THE SAMPLE MERELY HAS TO BE REPRESENTATIVE OF THE ITEM PROPOSED TO BE FURNISHED BUT DOES NOT HAVE TO HAVE BEEN A SAMPLE ACTUALLY MANUFACTURED BY THE BIDDER; THEREFORE, THE SUBMISSION BY A LOW BIDDER OF A SAMPLE WHICH WAS MANUFACTURED BY ANOTHER BIDDER, BUT IDENTIFIED BY A LABEL IDENTIFYING THE ITEM AS ITS OWN, DOES NOT MAKE THE LOW BID UNRESPONSIVE TO THE INVITATION. AN ADMINISTRATIVE REPORT WHICH EVIDENCES THAT A SAMPLE HAND CARRIED BY A REPRESENTATIVE OF THE LOW BIDDER WAS RECEIVED IN THE CONTRACTING OFFICE ON THE LAST DAY FOR SUBMISSION OF BIDS MUST BE ACCEPTED IN THE ABSENCE OF CONCLUSIVE EVIDENCE THAT THE LOW BIDDER FAILED TO SUBMIT A SAMPLE BY THE DATE SPECIFIED IN THE INVITATION. THE FAILURE OF A LOW BIDDER TO SUBMIT WITH ITS SAMPLE A SAMPLE RECORD SHEET FORM AS REQUIRED BY THE INVITATION MAY BE REGARDED AS A MINOR DEVIATION IN FORM RATHER THAN A DEVIATION WHICH GOES TO THE SUBSTANCE OF THE BID, HENCE, THE WAIVER OF THE DEVIATION BY THE CONTRACTING OFFICE WAS PROPER.

TO THE PREVUE-RADSELL COMPANY, OCTOBER 6, 1959:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 4, 1958, AND JUNE 29, 1949, RELATIVE TO YOUR PROTEST AGAINST THE ACTION OF THE NEW YORK OFFICE OF THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, IN AWARDING A CONTRACT TO THE PARAGON PLASTIC CORPORATION UNDER AN INVITATION WHICH WAS ISSUED ON JUNE 16, 1958. RECEIPT IS ALSO ACKNOWLEDGED OF A LETTER DATED SEPTEMBER 1, 1959, WITH ENCLOSURE, FROM YOUR ATTORNEY, SMITH THOMPSON.

THE REFERRED-TO INVITATION REQUESTED BIDS FOR FURNISHING, AMONG OTHER ITEMS, ROLL TYPE DESK MEMORANDUM PADS, MEMO-1PAL OR EQUAL, ITEM NO. 7520- 634-3934, AS REQUIRED BY THE GOVERNMENT DURING A 9-MONTH PERIOD BEGINNING DECEMBER 1, 1958, AND ENDING AUGUST 31, 1959. THE INVITATION DID NOT REQUIRE BIDDERS TO SUBMIT SAMPLES WITH THEIR BIDS BUT THE GOVERNMENT RESERVED THE RIGHT TO REQUEST THE SUBMISSION OF SAMPLES AFTER THE BID OPENING, WHICH TOOK PLACE ON JULY 15, 1958. THREE BIDS WERE RECEIVED ON ITEM NO. 7520-634-3934 FROM THE WOODHOUSE STATIONERY COMPANY, THE PARAGON PLASTIC CORPORATION (HEREINAFTER REFERRED TO AS PARAGON) AND FROM YOUR COMPANY. WHEN THE BIDS WERE OPENED, IT WAS FOUND THAT THE WOODHOUSE STATIONERY COMPANY HAD SUBMITTED THE LOWEST BID ON THAT ITEM, PARAGON SUBMITTED THE NEXT LOWEST BID AND YOUR COMPANY SUBMITTED THE HIGHEST BID THEREON. ON JULY 17, 1958, THE FEDERAL SUPPLY SERVICE REQUESTED THAT YOU AND PARAGON SUBMIT SAMPLES OF ITEM NO. 7520-634-3934 IN ACCORDANCE WITH THE SAMPLE CLAUSE INDICATED IN THE INVITATION. NO REQUEST WAS MADE OF THE WOODHOUSE STATIONERY COMPANY BECAUSE IT HAD SUBMITTED A SAMPLE OF THE ITEM WITH ITS BID.

YOUR COMPANY AND PARAGON COMPLIED WITH THE ADMINISTRATIVE REQUEST FOR SAMPLES. ON AUGUST 22, 1958, THE FEDERAL SUPPLY SERVICE LABORATORY, NEW YORK, NEW YORK, REPORTED TO THE CONTRACTING OFFICE THAT IT HAD EXAMINED THE SAMPLES SUBMITTED BY ALL BIDDERS ON ITEM NO. 7520 634-3934 AND THAT IT HAD FOUND THAT THE WOODHOUSE STATIONERY COMPANY DID NOT MEET THE REQUIREMENTS GIVEN IN THE INVITATION FOR BIDS BUT THE SAMPLES SUBMITTED BY YOU AND PARAGON WERE SATISFACTORY. ON THE BASIS OF THE LABORATORY REPORT, THE CONTRACTING OFFICER REJECTED THE BID OF THE WOODHOUSE STATIONERY COMPANY. AFTER RECEIVING A FAVORABLE PREAWARD SURVEY AND DETERMINING THAT PARAGON HAD SUBMITTED A RESPONSIVE BID, THE CONTRACTING OFFICER AWARDED A CONTRACT FOR ITEM NO. 7520-634-3934 TO THE CORPORATION ON NOVEMBER 7, 1958.

ON DECEMBER 4, 1958, THE PRESIDENT OF YOUR COMPANY APPEALED TO THE ADMINISTRATOR OF GENERAL SERVICE FROM THE DECISION OF THE CONTRACTING OFFICER MAKING AN AWARD TO PARAGON AND ON DECEMBER 31, 1958, YOUR APPEAL WAS REFERRED TO THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, FOR CONSIDERATION AND DECISION. A HEARING ON YOUR APPEAL WAS HELD ON FEBRUARY 17, 1959, AND AFTER GIVING CONSIDERATION TO THE AVAILABLE RECORDS, TO THE TESTIMONY DEVELOPED IN THE HEARINGS, AND TO BRIEFS SUBMITTED BY OUR COUNSEL AND THE GOVERNMENT COUNSEL, THE BOARD OF REVIEW DENIED YOUR APPEAL BY ITS DECISION OF JULY 16, 1959.

IN THE BRIEF SUBMITTED BY YOUR ATTORNEY SIX REASONS ARE GIVEN AS TO WHY CONTRACT NO. GS-005-11957 AWARDED TO PARAGON ON NOVEMBER 7, 1958, SHOULD BE SET ASIDE AND THE CORPORATION DISQUALIFIED IN THE AWARD OF ANY OTHER GOVERNMENT CONTRACTS.

THE FIRST REASON GIVEN BY YOU IS THAT PARAGON, IN OBTAINING THE AWARD, VIOLATED THE PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT, WHICH PROHIBITS THE USE IN COMMERCE OF "UNFAIR METHODS OF COMPETITION" AND OF "UNFAIR OR DECEPTIVE ACTS OR PRACTICES" (15 U.S.C. 45). YOU CITE AS AN EXAMPLE THE ACTION OF THE CORPORATION IN SUBMITTING TO THE ADMINISTRATIVE OFFICE AS ITS SAMPLE YOUR " MEMO-1PAL"--- A PRODUCT OF YOUR OWN MANUFACTURE--- AND IDENTIFYING IT WITH A PAPER LABEL AS " PARAGON NO. 888.' IN FEDERAL TRADE COMMISSION V. BUNTE BROTHERS, INC., 312 U.S. 349, 351, THE SUPREME COURT OF THE UNITED STATES STATED THAT THE "COMMERCE" IN WHICH THESE UNFAIR METHODS OF COMPETITION ARE BARRED IS INTERSTATE COMMERCE. THE SUPREME COURT ALSO STATED ON PAGE 355 OF THAT CASE, THAT THE PHRASE "UNFAIR METHOD OF COMPETITION IN (INTERSTATE) COMMERCE" AS USED IN THE FEDERAL TRADE COMMISSION ACT IS NOT TO BE CONSTRUED AS THOUGH IT MEANT "UNFAIR METHODS OF COMPETITION IN ANY WAY AFFECTING INTERSTATE COMMERCE.' IT IS OUR OPINION THAT THE ACTS OF PARAGON OF WHICH YOU COMPLAIN DO NOT VIOLATE THE PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT, SINCE SUCH ACTS DO NOT INVOLVE INTERSTATE COMMERCE.

THE SECOND GROUND FOR YOUR PROTEST IS THAT PARAGON, BY PLACING ITS LABEL OVER YOUR NAME AND PATENT NUMBER APPEARING ON THE " MEMO-1PAL" SUBMITTED BY IT AS A SAMPLE, VIOLATED SECTION 43 (A) OF THE LANHAM TRADE-MARK ACT, 15 U.S.C. 1125 (A), WHICH PROVIDES AS FOLLOWS:

(A) ANY PERSON WHO SHALL AFFIX, APPLY, OR ANNEX OR USE IN CONNECTION WITH ANY GOODS OR SERVICES, OR ANY CONTAINER OR CONTAINERS FOR GOODS, A FALSE DESIGNATION OF ORIGIN, OR ANY FALSE DESCRIPTION OR REPRESENTATION, INCLUDING WORDS OR OTHER SYMBOLS TENDING FALSELY TO DESCRIBE OR REPRESENT THE SAME, AND SHALL CAUSE SUCH GOODS OR SERVICES TO ENTER INTO COMMERCE, AND ANY PERSON WHO SHALL WITH KNOWLEDGE OF THE FALSITY OF SUCH DESIGNATION OF ORIGIN OR DESCRIPTION OR REPRESENTATION CAUSE OR PROCURE THE SAME TO BE TRANSPORTED OR USED IN COMMERCE OR DELIVER THE SAME TO ANY CARRIER TO BE TRANSPORTED OR USED, SHALL BE LIABLE TO A CIVIL ACTION BY ANY PERSON DOING BUSINESS IN THE LOCALITY FALSELY INDICATED AS THAT OF ORIGIN OR IN THE REGION IN WHICH SAID LOCALITY IS SITUATED, OR BY ANY PERSON WHO BELIEVES THAT HE IS OR IS LIKELY TO BE DAMAGED BY THE USE OF ANY SUCH FALSE DESCRIPTION OR REPRESENTATION. ( ITALICS SUPPLIED.)

IN NEW ENGLAND DUPLICATING COMPANY V. MENDES, 190 F.2D 415, 417, THE COURT STATED THAT THE WORD ,COMMERCE" IN THE LANHAM TRADE-MARK ACT MEANS ALL COMMERCE WHICH MAY LAWFULLY BE REGULATED BY CONGRESS. CLAUSE 8 OF ARTICLE I OF THE CONSTITUTION OF THE UNITED STATES PROVIDES THAT CONGRESS SHALL HAVE THE POWER TO REGULATE COMMERCE AMONG THE SEVERAL STATES (INTERSTATE COMMERCE). IN THAT CONNECTION, THE SUPREME COURT OF THE UNITED STATES IN RE TRADE-MARK CASES, 100 U.S. 82, 96, STATED THAT IF AN ACT OF CONGRESS CAN IN ANY CASE BE EXTENDED AS A REGULATION OF COMMERCE, TO TRADE-MARKS, IT MUST BE LIMITED TO THEIR USE IN COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES (INTERSTATE COMMERCE), AND WITH THE INDIAN TRIBES. IT IS OUR OPINION THAT THE PROVISIONS OF THE LANHAM TRADE- MARK ACT ARE NOT FOR APPLICATION TO THE INSTANT CASE FOR THE REASON THAT THE ACTS COMPLAINED OF DO NOT INVOLVE INTERSTATE COMMERCE.

THE THIRD BASIS FOR YOUR PROTEST IS THAT PARAGON WAS NOT A MANUFACTURER AT THE TIME WHEN IT STATED THAT IT WAS A MANUFACTURER IN A CERTIFICATE REQUIRED UNDER SECTION 1 (A) OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT OF JUNE 30, 1936, AS AMENDED, 41 U.S.C. 35, WHICH PROVIDES THAT EVERY CONTRACT (WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL) ENTERED INTO BY ANY GOVERNMENT AGENCY FOR THE MANUFACTURE OR FURNISHING OF SUPPLIES EXCEEDING $10,000 IN AMOUNT SHALL CONTAIN THE FOLLOWING STIPULATION:

(A) THAT THE CONTRACTOR IS THE MANUFACTURER OF OR A REGULAR DEALER IN THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT TO BE MANUFACTURED OR USED IN THE PERFORMANCE OF THE CONTRACT. ( ITALICS SUPPLIED.)

THE ACT, AS AMENDED, FURTHER PROVIDES AT 41 U.S.C. 38, THAT THE SECRETARY OF LABOR SHALL HAVE AUTHORITY TO ADMINISTER THE PROVISIONS OF THE ACT, AND TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO THAT END.

UNDER THAT AUTHORITY, THE SECRETARY OF LABOR HAS ISSUED REGULATIONS APPEARING AT 41 C.F.R. 201.101 WHICH PROVIDE:

(A) A MANUFACTURER IS A PERSON WHO OWNS, OPERATES, OR MAINTAINS A FACTORY OR ESTABLISHMENT THAT PRODUCES ON THE PREMISES THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT REQUIRED UNDER THE CONTRACT AND OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS.

(C) (1) EXCEPT AS HEREINAFTER PROVIDED, EVERY BID RECEIVED FROM ANY BIDDER WHO DOES NOT FALL WITHIN ONE OF THE FOREGOING CATEGORIES SHALL BE REJECTED BY THE CONTRACTING OFFICER.

IN CIRCULAR LETTER NO. 1-58, ISSUED BY THE DEPARTMENT OF LABOR ON JANUARY 24, 1958, THE TERM ,MANUFACTURER" WAS FURTHER DEFINED AS FOLLOWS:

MANUFACTURER. A BIDDER WHO DESIRES TO QUALIFY FOR AWARD AS A MANUFACTURER MUST SHOW BEFORE AWARD THAT HE IS (1) AN ESTABLISHED MANUFACTURER OF THE PARTICULAR GOODS OR GOODS OF THE GENERAL CHARACTER SOUGHT BY THE GOVERNMENT OR (2) IF HE IS NEWLY ENTERING INTO SUCH MANUFACTURING ACTIVITY THAT HE HAS MADE ALL NECESSARY PRIOR ARRANGEMENTS FOR (A) MANUFACTURING SPACE, (B) EQUIPMENT, AND (C) PERSONNEL TO PERFORM THE MANUFACTURING OPERATIONS REQUIRED FOR CONTRACT PERFORMANCE. THESE CONDITIONS MUST BE MET TO THE SATISFACTION OF THE CONTRACTING AGENCY PRIOR TO ANY AWARD OF A CONTRACT COVERED BY THE ACT.

YOU CONTEND THAT CIRCULAR LETTER NO. 1-58 IS NOT A VALID REGULATION, SINCE IT DOES NOT CONFORM TO THE PROVISIONS OF SECTION 1 (A) OF THE WALSH- HEALEY ACT. THAT SECTION OF THE ACT REQUIRES A BIDDER TO EXPRESSLY REPRESENT "THAT THE CONTRACTOR IS IS THE MANUFACTURER OF * * * THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT TO BE MANUFACTURED OR USED IN THE PERFORMANCE OF THE CONTRACT.' THIS SECTION DOES NOT REQUIRE A BIDDER TO STIPULATE THAT HE HAS PREVIOUSLY MANUFACTURED THE ITEM BID UPON, AS YOU CONTEND. IT ONLY REQUIRES A BIDDER TO STIPULATE THAT HE WILL BE THE MANUFACTURER OF THE ITEM BID UPON. AS TO THE PURPOSE OF SECTION 1 OF THE WALSH-HEALEY ACT, IT IS STATED ON PAGE 4 OF H.R. NO. 2946, 74TH CONGRESS, 2D SESSION, TO ACCOMPANY S. 3055, WHICH BECAME THE ACT OF JUNE 30, 1936, THAT "IT (SECTION 1) ATTEMPTS TO ELIMINATE THE EVIL OF BID BROKERAGE AND BID PEDDLING.' YOU DO NOT ALLEGE THAT PARAGON IS GUILTY OF ANY OF THESE SO-CALLED EVILS. IN REGARD TO YOUR CONTENTION THAT PARAGON IS NOT A MANUFACTURER, WE HAVE EXAMINED THE REFERENCE BOOK TO DUN AND BRADSTREET, INC. AND NOTE THAT THEY ARE LISTED AS A FABRICATOR OF METAL PRODUCTS; AND, ALSO, WE HAVE NOTED THAT PARAGON IS LISTED IN THOMAS' REGISTER OF MANUFACTURERS. IN VIEW OF THE INTENT OF SECTION 1 OF THE WALSH-HEALEY ACT AND THE AUTHORITY OF THE SECRETARY OF LABOR UNDER SECTION 4 OF THAT ACT, WE BELIEVE THAT THE REGULATIONS AND CIRCULAR LETTER NO. 1-58 ISSUED BY THE DEPARTMENT OF LABOR ARE VALID.

THE FOURTH REASON GIVEN BY YOU IS THAT PARAGON WAS NOT RESPONSIVE TO THE INVITATION IN THAT IT HAD FAILED TO SUBMIT A SAMPLE OF ITS OWN MANUFACTURE. THE RECORD INDICATES THAT PARAGON SUBMITTED AS A SAMPLE A " MEMO-1PAL" AND THAT OVER YOUR COMPANY'S NAME AND PATENT NUMBER IT PLACED A LABEL, WHICH IDENTIFIED THE SAMPLE AS PARAGON NO. 888. YOU CONTEND THAT IN ORDER FOR PARAGON TO BE RESPONSIVE TO THE INVITATION, IT HAD TO DELIVER TO THE FEDERAL SUPPLY SERVICE A SAMPLE OF ITS OWN MANUFACTURE. ARTICLE 9 OF THE SPECIAL PROVISIONS OF THE INVITATION PROVIDED THAT SAMPLES WERE NOT REQUIRED TO BE SUBMITTED WITH THE BID. THE RIGHT WAS RESERVED BY THE FEDERAL SUPPLY SERVICE TO REQUEST SAMPLES AFTER BIDS WERE OPENED IF THE BEST INTERESTS OF THE GOVERNMENT INDICATED THE NEED THEREFOR; ALSO, IT WAS PROVIDED THAT FAILURE TO SUBMIT SAMPLES UPON REQUEST WOULD REQUIRE REJECTION OF THE BID. ARTICLE 9 OF THE SPECIAL PROVISIONS FURTHER PROVIDED,"IF REQUESTED, SAMPLES REPRESENTING WHAT THE BIDDER PROPOSES TO FURNISH WILL BE SUBMITTED FOR THE PURPOSE OF DETERMINING WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH THE SPECIFICATION.' THUS, THE PLAIN TERMS OF THE INVITATION REQUIRED ONLY THAT THE SAMPLE SUBMITTED BE REPRESENTATIVE OF WHAT THE BIDDER PROPOSED TO FURNISH; THERE WAS NO REQUIREMENT THAT THE SAMPLE MUST ACTUALLY HAVE BEEN MANUFACTURED BY THE BIDDER.

THE FIFTH GROUND FOR YOUR PROTEST IS THAT PARAGON FAILED TO SUBMIT ITS SAMPLE TO THE CONTRACTING OFFICE BY JULY 28, 1958, AS REQUIRED BY THE CONTRACTING OFFICER. IT IS ADMINISTRATIVELY REPORTED THAT A SAMPLE WAS HAND CARRIED BY AN OFFICIAL OF PARAGON ON JULY 28, 1958--- THE LAST DAY FOR SUBMISSION OF SAMPLES--- TO THE CONTRACTING OFFICE. IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY, WE MUST ACCEPT THE ADMINISTRATIVE STATEMENT AS TO THE TIME OF THE RECEIPT OF THE SAMPLE FROM PARAGON.

THE SIXTH GROUND FOR YOUR PROTEST IS THAT PARAGON DID NOT SUBMIT WITH ITS SAMPLE THE SAMPLE RECORD SHEET FORM NO. 434 REQUESTED BY THE FEDERAL SUPPLY SERVICE IN ITS LETTER OF JULY 17, 1958, AND THAT, THEREFORE, ITS BID SHOULD HAVE BEEN CONSIDERED NONRESPONSIVE TO THE INVITATION. THE RECORD INDICATES THAT THE CONTRACTING OFFICER CONSIDERED THE OMISSION OF THE SAMPLE SHEET BY PARAGON AS A DEVIATION IN FORM FROM THE REQUIREMENTS OF THE INVITATION, WHICH COULD BE WAIVED BY HIM. IN 30 COMP. GEN. 179, 181, WE HELD THAT THE CONTRACTING OFFICER MAY NOT WAIVE DEVIATIONS WHICH GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT THE PRICE, QUANTITY OR QUALITY OF THE ARTICLES OFFERED, BUT HE MAY WAIVE DEVIATIONS IN FORM FROM THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. WE ARE OF THE OPINION THAT UNDER THE CIRCUMSTANCES, THE CONTRACTING OFFICER WAS AUTHORIZED TO WAIVE, AS AN INFORMAL DEVIATION FROM THE REQUIREMENTS OF THE INVITATION, THE FAILURE OF THE PARAGON PLASTIC CORPORATION TO SUBMIT A SAMPLE RECORD SHEET. ACCORDINGLY, OUR OFFICE FINDS NO LEGAL BASIS TO FURTHER QUESTION THE AWARD AS MADE.