dissenting:
I agree with the majority that a bidder’s statement of minority hiring goals is a legitimate and significant interest of government contracting officers. The rub in this case is that the government’s procurement regulations clearly state that a bidder’s failure to submit the number of his employees is a “minor informality or irregularity.” Perhaps that regulation should be amended to indicate that the number of minority employees is not a minor item. Until the amendment is made, bidders have the right to expect that contracting officers will follow the mandatory requirements of their own regulations.
The error in Northeast’s bid falls precisely into the category described in 41 C.F.R. § 1-2.405 as “minor informalities or irregularities”. As explained in the majority opinion, “Appendix A” calls for information on the total number of employees on the contract in each designated trade, and the number of minority employees in each trade. That information was a required part of the bid package. Thus Northeast’s failure to fill in the blanks on “Appendix A” was a “Failure to furnish required information concerning the number of bidder[’s] employees”. Such a failure is set forth in the procurement regulations as an example of a minor informality.1 In such a case, the regulations provide as follows: “The contracting officer shall either give the bidder an opportunity to cure ... or waive such deficiency, whichever is advantageous to the government.” (emphasis added).
The continuing mystery in this ease is why the contracting officer refused to follow the established procedure for dealing with minor informalities. Given the importance of “Appendix A”, it is understandable that the government would not choose to waive the deficiency in Northeast’s bid. Eliminating that alternative, the contracting officer was required to allow Northeast to correct its oversight. Had the officer accepted Northeast’s letter curing the deficiency, he would have achieved both of his legitimate objectives: award to the lowest bidder, and a written commitment to specified hiring goals.
It was suggested at oral argument that Northeast’s bid was rejected because its mistake on “Appendix A” demonstrated a lack of true commitment to minority hiring. This is a reasonable *392concern. The success of minority hiring programs depends on something more than mechanical compliance with numerical requirements. The government is justified in demanding that its contractors demonstrate a sincere interest in equality of opportunity.
Northeast contends, however, and I agree, that its error demonstrates not disinterest, but merely confusion. Even when measured against other government forms, where clarity is hardly a watchword, “Appendix A” is a remarkably obtuse document. It does not surprise me that a building contractor with little or no legal experience might assume that, in signing that portion of the form which set forth the government’s hiring goals, he was committing himself to adhere to those goals. There is no reason to believe that Northeast’s misreading of “Appendix A” evidenced bad faith; even if it did, that evidence would at least be offset by the firm’s rapid submission of a separate, written commitment to minority hiring goals.
If the government is genuinely interested in enhancing minority employment in the building trades, it should think twice before requiring strict accuracy in the completion of arcane bureaucratic forms. It has been reported recently that small construction firms — including many minority firms — have been unsuccessful in competing for work on Washington’s subway system largely because these firms cannot afford the legal and accounting expertise necessary to prepare a conforming bid.2 The very existence of 41 C.F.R. § 1-2.405 indicates that the government is aware of this problem.
Neither the contracting officer nor the GAO has explained why the regulation was not followed in this case. The majority opinion deals with this problem by suggesting that standard procurement regulations should not govern contract provisions designed for “nonprocurement objectives.” This is an intelligent and valid distinction, and the government’s contracting experts may well decide to incorporate it into federal procurement regulations. Until they do, however, I do not think we can apply such a rule. To do so would be unfair to Northeast and other contractors who have never been informed of it, and would impair the “public interest in having agencies follow the regulations which control government contracting.” 3
The majority opinion implies that the order of the Secretary of Labor implementing the “Washington Plan” creates a “mandate” requiring government procurement officers to disregard the regulations set forth at 41 C.F.R. § 1-2.405. Here again the government may wish to amend its regulations to establish that this is so. At present, however, the existence of two contradictory regulations creates an ambiguity which must, of course, be construed against the government and in favor of the private contractor. M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 225, 455 F.2d 1289, 1303 (1971).
The majority cites three Comptroller General decisions which draw a distinction between the responsibility of a bidder and the responsiveness of a bid. All three decisions involved cases where a bidder’s capacity to do the work was questioned. The responsibility/responsiveness distinction has been an important one in that context, but it hardly contributes to the resolution of the case before us. There is no dispute here as to Northeast’s experience or capacity to perform. I do not fully understand the *393rationale for applying the distinction to the facts at hand. If the majority is suggesting that Northeast’s mistake was a question of responsiveness, I agree: and I agree that such questions “are generally not curable after bid opening.” But the general rule has certain exceptions, which are set forth explicitly in the federal procurement regulations. This case clearly falls into one of the specific exceptions. Under existing regulations, Northeast’s failure to supply the number of its employees is curable, and the contracting officer was required to give Northeast the opportunity to cure.
It may be that the government is unwilling — for political purposes or otherwise — to state clearly in its regulations that minority employment is not a trivial matter. The majority and I share the view that minority hiring programs are of great importance. If the executive branch agrees, I would hope that this case will stir it to clarify its regulations on the point.
For the reasons stated above, I think Judge Gasch’s order was eminently correct.
ORDER
On consideration of appellee’s petition for rehearing it is ordered by the Court that appellee’s aforesaid petition is denied.
BAZELON, Chief Judge, dissents from the denial of rehearing.SUPPLEMENTAL OPINION
LEVENTHAL, Circuit Judge:We have considered appellee’s petition for rehearing, and have sought and received supplemental memoranda. On reconsideration, we conclude that our decision was correct.
Perhaps there should be added to the original opinion the notation not only that the “minor informality” provision of 41 C.F.R. 1-2.405 was promulgated in 1960, long prior to the Washington Plan of October 1970, but also that an almost identical provision had been included in the Armed Services Procurement Regulations since 1955. See 32 C.F.R. 2-405. The latter provision has been understood to relate directly to the Small Business Act.
The enactment of the Small Business Act in 1953 rendered the size of a firm significant for procurement purposes.1
Under implementing regulations issued by the Small Business Administration the number of employees which a small business might have within the small business definition varied from industry to industry. See 41 Comp. Gen. 739-40 (1962). Bidders were asked to state the number of their employees so that contracting officers might determine whether their firms came within the relevant SBA small business definition. Such information clearly went to the “responsibility” of the bidder rather than to the “responsiveness” of the bid, since it did not affect the bidder’s legal obligations. The term “number of employees” as used in the “minor informalities” provision relates to a firm’s capacity and capabilities, to a matter of “responsibility”. The recent Armed Services Regulations *394amendment pairing the term with “size status” reinforces this view.2
The number of employees of Northeast Construction Company within the meaning of the regulation, as indicated in the transcript of the proceedings below, was “three officers”.3 The bidder by executing Appendix A was required to show the “estimated total employment for the trade on the contract,” and “the number of minority group employees and their percentage of the total” for the years 1971 through 1974. The two kinds of data are clearly unrelated ; one goes to the “responsibility” or “eligibility” of the bidder, the other goes to the “responsiveness” of the bid.
Northeast makes a contention based on the placement of § 1-2.405 in the Regulations, but on analysis we find this to be inconclusive.
We think it right to add that the wording of § 1-2.405 presented a strong legal argument in this case, which commended itself to the District Court although we did not find it conclusive.
Under the circumstances, the District Court can take this into account in determining whether and to what extent damages should be assessed on the injunction bond.4
TAMM, Circuit Judge, concurs.. 41 C.F.R. § 1-2.405 (b).
. The situation is so serious that the Washington Metropolitan Transit Authority recently created an agency to help minority firms in preparing future bids. The Washington Post, Dec. 1, 1972, p. B1, col. 2.
. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 376, 424 F.2d 859, 864 (1970).
. A pertinent section of the Act, at 15 U. S.C. § 632 provides :
For the purpose of this title * * * a small business concern shall be deemed to be one which is independently owned and operated and which is not dominant in its field of operation. In addition to the foregoing criteria the Administration, in making a detailed definition, may use these criteria among others: Number of employees and dollar volume of business. (July 30, 1953, c. 282, Title II, § 203, 67 Stat. 233). [Emphasis supplied].
. The ASPE amendment has been construed by the Comptroller General, in one unreported opinion, B-170026, decided December 14, 1970, where it was argued in a bid protest that:
The company failed to state whether or not it is small business as required by page 2 of Standard Form 33 at 33A. (P. 4).
The Comptroller General ruled:
ASPE-405(ii) [the equivalent of 41 C.F.E. 1-2.405 (b)] specifically includes the bidder’s failure to make a representation concerning his size status as an example of the type of minor informality that can be waived. Therefore, it is of no consequence that the company failed to indicate in its bid whether it is a small business concern.
. A review of the record indicates that in fact the firm consists of three officers and one full time employee who acts as field supervisor, thus the correct number should have been “four.” All construction workers were to have been furnished by subcontractors (Joint Appendix, Yol. I, pp. 115-117).
. Page Communications v. Froehlke, 155 U.S.App.D.C. 1, 475 F.2d 994 (1973).