The opinion of the court was delivered by: POWELL
This is a civil action by Armstrong & Armstrong, Inc. against the United States of America and Rogers C. B. Morton as Secretary of the Interior. The agency alleged to be responsible for the damages claimed by the plaintiff is the Bureau of Reclamation, a sub-agency of the Department of the Interior. The plaintiff was determined to be an unsuccessful bidder on a government contract for construction work described by the invitation to bid as:
"Lake Chelan Pumping Plant Discharge Line and Regulating Tank, Manson Unit, Washington Chelan Division, Chief Joseph Dam Project."
The plaintiff claims that Bureau of Reclamation officials acted negligently, arbitrarily and capriciously in denying the award of this contract to the plaintiff. Damages of $9,414.13 are alleged to have been sustained by the plaintiff in bid preparation costs and $142,000.00 in loss of profits.
The following facts are admitted in the Pretrial Order. The plaintiff is and was a responsible contractor, capable of performing the work involved in this project. The invitation to bid was issued prior to July 15, 1971. The invitation provided for opening of bids in Manson, Washington, at 2:00 p.m., July 15, 1971.
The bid invitation required bidders to quote on 82 items. Some of the items required lump sum bids. Most of the items required a per unit item bid. The schedule for bids required a statement of the total amount bid in addition to the unit price bid for non-lump sum bid items. The total amount shown for items bid on a per unit basis was a product of the unit price multiplied by the quantity of material specified on the schedule for bids.
The invitation also provided that the totals computed for each item bid on a per unit basis and the total bid for lump sum items be added to arrive at the total amount bid for the entire contract.
When the bids were opened, plaintiff was the apparent low bidder at $1,415,757.55. The Bureau of Reclamation Contracting Officer's authorized representative rechecked all the bids. Errors were discovered in four bids. There were no errors in the plaintiff's bid.
There were three errors noted in the next lowest bid which was submitted by Bovee & Crail. An arithmetic error in the extension of unit prices for items 3 and 82 lowered their bid by $340.00. After correcting these two items, it appeared that there was a discrepancy between the total bid submitted for the entire project and the arithmetic total of the 82 items. The correct arithmetic total was $5,000.00 lower. Using the changed figures the Bovee & Crail bid could be reduced to $1,413,027.00 which would displace the low bid of the plaintiff.
The Bureau's local officer informed Bovee & Crail that they had made an arithmetic error in their bid and that they were now the apparent low bidder. (TR. p. 65)
On November 15, 1971 the plaintiff secured a temporary restraining order preventing award of the contract. On November 23, 1971 this Court held a hearing, received evidence and heard argument on plaintiff's motion for a preliminary injunction. The motion was denied and the injunction lifted. Plaintiff then amended its complaint. The pretrial order sets out the contentions of the parties.
The issues to be decided are:
1. Does plaintiff have standing to sue and thus challenge the award of the bid to another bidder?
2. Is plaintiff's claim in tort or contract, and if the latter is this Court's jurisdiction limited to $10,000.00 under the Tucker Act?
3. Was the third error in the Bovee & Crail bid a mistake in addition and correctible or was it an ambiguous error?
4. Was the Government acting within the procurement regulations in directing Bovee & Crail to correct its bid and thus ...