dissenting:
This case follows hard upon International Tel. & Tel. v. United States, 197 Ct. Cl. 11, 453 F. 2d 1283 (1972), wherein we had to consider, as here, the contract which is annually renewable by fiscal years as appropriated funds become available. The majority held the writing then before us to have the legal incidents of an option contract though the parties had carefully avoided the use of option language. I thought the intent was that as funds became available legal rights arose, and the giving of written notice of extension was a mere ministerial function, not indispensable to the legal re-*637suit. Here, however, the parties actually used option language and my qualms are not applicable.
If the statement of Mr. Scala at the pre-bid conference is read as a commitment that the contract would be extended for the first full year, it contradicts the written contract and should fail on that ground. I read Commissioner Schwartz’s scholarly discussion of the parole evidence rule, adopted by the court in Sylvania Elec. Products, Inc. v. United States, ante, at 106, 458 F. 2d 994, as allowing such evidence to explain an ambiguous statement or add additional terms, not to contradict the writing. The writing is unambiguous, in light of ITT, swpra, that the contract may be non-extended for any reason at all, including even inadvertence and clerical error, even if funds are available. However, I read Mr. Scala as answering the question put to him, that for the first year funds were available, so bidders could feel easy about that likely hazard to the contract’s continued life.
I think it overstretches Mr. Scala’s remark to make it, as the court does, a commitment as to what defendant would do in the event that occurred, a protest against the award by an unsuccessful bidder, a questioning by the Comptroller General of the propriety of the award, and his recommendation that it should not be extended. I deem it a fair and proper use of the pre-bid conference that any prospective bidder who wanted to be reassured about this should have asked about it.
In John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964) we recognized the propriety of the Comptroller General’s review of awards, and his making recommendations and rendering decisions that awards or contracts should be cancelled or withdrawn, even though they would not be held invalid in court. In such circumstances, the contract is not a nullity and the contractor is not left without a remedy, but it is logical to expect the use of the contract’s own provisions to get the Government out of its deal as cheaply as the clauses will allow. In Bemer, the termination article was so used, but in the case of a multiple fiscal year procurement with option to extend it would be foreseeable that the Comptroller General might recommend that the contract simply not be extended. It appears to me that the plaintiff accepted the *638award with this hazard inherent. It certainly appears equitable to use a termination settlement as a sweetener but it seems to me contrary to the contract. The procurement community must accept the fact that there is a bid protest procedure, and it would seem equally so that sometimes it may cause someone a loss. Unless the contract provides relief, it would seem the loss must lie where it fell. I note that in the ITT case, supra, the contract we construed there included, besides a termination article, a more limited provision for reimbursement of some costs in cases of non-extension. If parties don’t contract for this, I don’t think they get it.
I add, if everything I say above is wrong, there remains a doubt whether the exculpatory clauses discussed in the court’s opinion do not exculpate defendant here.
Kunzig, Judge, joins in the foregoing dissenting opinion.