ignoring the Government's course of dealing with plaintiff. The Comptroller held that plaintiff should have used a Telex number for DP & P, rather than for the communications center. This position is clearly arbitrary, in view of the fact that the Telex number for DP & P was not listed in the only directory available to the public at the time, and the fact that plaintiff had used the Telex at the communications center for approximately one year without being informed that another Telex was being made available.
Had the Comptroller recognized that the course of dealing with plaintiff and other bidders was relevant to the question of mishandling,* he could only have found that the message was mishandled by the Government. Neither in the bid solicitation nor in any prior dealings relating to the bid had the Government indicated that telegrams would be handled at Kelly Air Force Base in any manner other than the usual commercial practice. The Comptroller did not dispute that under normal commercial practice, a telegram need not be marked "urgent," or that a telegram received at the addressee's place of business will be delivered to him well within thirty-nine minutes. If the Government desired designation for special handling or use of any other Telex number, it surely had the duty to give notice of that fact to bidders with whom it was in contact. Thus the determination that plaintiff's bid modification was not timely must be set aside.
There remains the question of what relief is appropriate under these circumstances. Plaintiff seeks an injunction requiring the Government to go forward on the contract with plaintiff. It seeks this mandatory relief in the face of the fact that the contract had already been let to Bruno, which is not before the Court and the extent of whose performance to date is unknown but undoubtedly substantial.
There can be no fixed rule, as the Government urges, that the Court can never require the Government to enter into a contract or enjoin it from proceeding with a contract. Cases such as Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949); Malone v. Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8 L. Ed. 2d 168 (1962); and United States ex rel. Brookfield Const. Co. v. Stewart, 119 U.S. App. D.C. 254, 339 F.2d 753 (1964), would seem to lend weight to the Government's position in this regard, but none of these cases, in which claims were rejected on grounds of sovereign immunity, were cast as actions for judicial review under the Administrative Procedure Act. In Scanwell Laboratories, supra, where the action was predicated upon the Administrative Procedure Act, the Court of Appeals stated that "there is no right in Scanwell to have the contract awarded to it in the event the district court finds illegality in the award of the contract to Cutler-Hammer." 137 U.S. App. D.C. 371, 424 F.2d 859 at 864. This statement, however, must be read merely as a recognition that Scanwell had not established facts which would compel award of the contract to itself in the event the award to Cutler-Hammer should be declared void. Finally, the broad rule suggested by the Government is contradicted by Superior Oil Co. v. Udall, 133 U.S. App. D.C. 198, 409 F.2d 1115 (1969), where the Court of Appeals affirmed an order of the District Court compelling the Secretary of the Interior to issue a lease to a bidder whom the court held was entitled to the contract. Though the court did not cite the Administrative Procedure Act, the opinion is phrased in terms of judicial review of final agency action. Thus it is apparent that this Court has power to compel award of a contract to the lowest bidder.
Nevertheless, injunctive relief is discretionary and a remedy that should be most sparingly used. The situation presented in Superior Oil Co., supra, where the contract involved millions of dollars, called for a long-term performance, and had not yet been awarded, is wholly different from a more routine, short-term procurement where performance has already begun, such as the Court is considering here. In this instance plaintiff and Bruno may perfect their rights to damages, if any, in the Court of Claims. Mandatory relief by way of injunction is not required to preserve the integrity of the bid process since a declaration of rights with the liability for damages that will flow therefrom will suffice. This Court's discretion will be exercised accordingly.
The Court is hesitant to utilize its injunctive powers for yet another reason. Neither the Administrative Procedure Act nor Scanwell Laboratories, supra, can be responsibly read, whether singly or together, as contemplating that the Court in all disputed cases will direct the course of Government contracting. As already indicated, the scope of review is narrow, and once the rights of litigants are declared, the Government should in the normal case be free to make choices as to whether it will run the risk of damages, open the contract for rebidding, resolve the dispute by negotiation, or meet its needs, if they still exist, in some other fashion. The variety and complexity of situations that will be presented make it abundantly apparent that in the usual case the courts have only a limited function in this area.
Thus the Court declares that plaintiff was the lowest bidder. He was admittedly qualified in all other respects and it was illegal to award the contract to anyone else. No injunctive relief shall be granted. An order denying the Government's motion and granting plaintiff's motion in part shall be submitted. No further proceedings are required.
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