holding that a plaintiff may recover bid preparation costs if it can show that the Government awarded a contract to another bidder rather than the plaintiff in retaliation for the plaintiffs testimony before a Senate hearing
How later courts described this case
- holding that a plaintiff may recover bid preparation costs if it can show that the Government awarded a contract to another bidder rather than the plaintiff in retaliation for the plaintiffs testimony before a Senate hearing
- stating that to prove a breach of the implied contract of fair dealing, the plaintiff must prove the government acted arbitrarily
- concluding that a breach of the implied contract had occurred if facts were as alleged and "advertisement for bids was a sham"
- “It was an implied condition of the request for offers that each of them would be honestly considered, and that that offer which in the honest opinion of the contracting officer was most advantageous to the Government would be accepted. No person would have bid at all if he had known that ‘the cards were stacked against him.’ ”
Written by the judges who cited it.
The opinion
LARAMORE, Judge
(dissenting).
While I cannot condone the wrong done plaintiff, as alleged, I must respectfully dissent.
If the officer acting on behalf of the Government wás guilty of the acts alleged in the petition, it would amount to fraud. A suit founded on fraud would sound in tort, and it is clear that this court has no original jurisdiction of tort actions. Martilla v. United States, 118 Ct.Cl. 177 .
The plaintiff, in order to recover, must show that he has a contract that he shall receive fair consideration of his bid, or that a statute by its own terms authorizes his recovery in the event his bid does not receive fair consideration. Neither the facts nor the statutes involved justify a conclusion that the Government made a contract with plaintiff to give him fair consideration. On the other hand, there is nothing in the statute which, by its own terms, would authorize the plaintiff to receive a judgment if the contracting officials had not given his bid fair consideration. Without one or the other basis, I cannot see how the court can render judgment for the plaintiff.
I would dismiss the petition.