concurring:
I join in the court’s opinion, except where inconsistent with what follows, but would add the following: The dll advised intervention of the District Court in this case will cost the Government $77,112, the difference between Campbell’s and *522Lloyd Wood’s bids, plus whatever Campbell recovers under the termination clause measure of damages this court prescribes. That, in the circumstances, is simply a contract limitation of liability, as if a passenger carrier writes into your ticket that it will 'be liable up to only $1 a pound if it loses your baggage. A heavy loss probably will fall on Campbell which cannot be passed on to the United States and will not be measured. Lloyd Wood will keep whatever profit it earned from the contract it should not have been awarded, less taxes, and will have no obligation to make good the losses to Campbell and to the United States, whose infliction it has obtained. This result is not satisfying to the sense of justice, and it seems to me it ought to give courts some pause in their zeal to intermeddle in the award of Government contracts, that has stemmed from Scanwell Laboratories, Inc. v. Shaffer, 424 F. 2d 859 (D. C. Cir. 1970). True, the District Count did not order an award to Lloyd Wood, or enjoin one to Campbell, measures it deemed outside its jurisdiction, but it said and did so much to bring about that outcome, it cannot now avoid •responsibility for it. To “set aside”, as it did, the determination of the SBA that Campbell was a small business, left no other option but paralysis.
Defendant would treat this intervention as force majeure, an Act of God or the public enemy, for which it is not responsible. I submit that a District judge who causes a breach of contract, acting within his jurisdiction albeit erroneously, is the United States, just as much as if the Secretary of Defense or the Comptroller General had done it.
I suggest that trial courts should make their interventions “circumspect and infrequent”, in the Fifth Circuit’s phrase. 446 F. 2d, at 264. Circumspection would include requiring an unsuccessful bidder, when plaintiff, to post security guaranteeing to make good any loss to any party that judicial interference may cause, if it is not ultimately upheld. Courts that do not observe these precautions will sometimes leave wounds the Court of Claims will be in no position to heal. That is the purport of our decision here. In the instant case, one would have expected a bond in the District Court, or other security in some amount, on some conditions, in view of F. R. C. P. *523§ 65 (c), but the court papers do not indicate that security was required until the unhappy Campbell Company had to file a bond on its appeal to the Fifth Circuit.
Kunzig, Judge, joins in the foregoing opinion and concurring opinion.