dissenting:
Whatever rights the plaintiff in this case may have, they arise from two federally legislated programs. The first is federal procurement. The second is a program designed to carry out federal small business policy by granting certain preferences in procurement contracts. No state procurement or small business policy is cited by or implicated by the plaintiff’s claims. Whatever rights the plaintiff may have are determined entirely as a matter of congressional intent. Unlike Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), where the Supreme Court was dealing with whether comprehensive federal regulation had ousted the state from its preexisting causes of action for personal injury, there is no preexisting state cause of action for the right to compete for federal procurement contracts or to preference in federal contract awards. Unlike the right to be free from bodily injury, a contract right must be created before it can be interfered with. The contract creator defines both the right and its dimensions. Thus we must look first of all to see, as the majority admits, what Congress has created.
The key to analysis in this case is not, in the first instance, what remedies are available to those who are harmed by the “exclusively federal” standards, maj. op. at 487, but whether Congress has created a right in the disappointed bidder which is wider than the remedy Congress has created. Properly speaking, this is not a preemption case at all but rather a case of determining whether Congress has decided that states should be invited to enforce Congress’ policies with remedies and forums of the state’s choosing.
When looking for the rights of the parties, it is logical to assume that Congress provided the remedies it intended to correspond with the rights it intended. What the majority has done is to treat Congress’ “immaculate silence” on additional rights and remedies as an invitation to imply congressional intent to adopt state remedies as a supplemental means of enforcing its exclusive policies while simultaneously concluding that the “immaculate silence” precludes the same kind of implied federal remedy which would at least have the virtue of uniformity. It seems to me that implying that Congress intended state remedies is not only unwarranted by Congress’ words or debates, but turns the analysis on its head.
The strongest argument about legislative intent is the fact that Congress knew it was legislating in two areas that at the time were inventions of its own: federal procurement and federal small business policy. It would seem contradictory to suggest Congress silently intended to rely on the random distribution of state enforcement mechanisms (or their absence, see Tectonics, Inc. v. Castle Const. Co., 496 So.2d 704 (Ala.1986)), to carry out its exclusive policies while at the same time silently intending to exclude federal enforcement actions other than those carefully spelled out in the act. See Savini Constr. Co. v. Crooks Bros. Constr. Co., 540 F.2d 1355 (9th Cir.1974). Indeed, since the rights of the plaintiff, if any, are of federal creation, implying that state remedies were intended has not only all the evils which Savini (and by implication, this court) recites to preclude implying a federal cause of action but the additional evil of diverse and unpredictable results in fifty jurisdictions. It is not enough to cite the possibility that states traditionally have had causes of action for fraud and unjust enrichment. Those actions are based on interference with underlying legal rights. They are not independent causes of action such as actions for personal injury. One must first find that Congress intended that a disappointed bidder be treated as one defrauded of some right Congress created or that an ineligible bidder has been unjustly enriched at the legal expense of another wise eligible bidder. No matter how well defined remedies are, they are not available *496until there exists some right to which they may attach.
There are strong reasons to suggest Congress intended no wider package of rights and corresponding remedies than it expressly provided. While they are recited by the majority in its quotation from Savi-ni, it is important to reemphasize that the obvious conclusion to be drawn from Congress’ explicit enforcement scheme is that its procurement needs take precedence over its policy of encouraging small businesses. While the majority takes considerable comfort from the fact that here we have a prior determination by the congres-sionally authorized agency that the defendant was not a qualified bidder, nothing in the majority opinion does or could logically suggest that along with an implied state cause of action there is an implied duty to exhaust federal administrative procedures. If the court is, in fact, suggesting otherwise, it seems to me it has shifted its theory from preemption to state enforcement of a federal cause of action. Since under the majority’s approach these are state causes of action,* they can be brought in the several state courts without prior protest or administrative finding. Without federal guidance, the state courts are at liberty to decide for themselves whether the successful bidder was qualified; whether the second bidder was also qualified; and whether there was fraud or unjust enrichment or interference with a contract “right.” Even when brought in federal court, as this case was, we must assume that the trial court would look to state law to determine the scope of the state law of fraud, unjust enrichment, or such other theories as imaginative lawyers might plead.
It is not the successful suit alone which discourages bidders from entering the field, but the well-known cost of defending unsuccessful suits. In cases such as this, those suits would normally be classed as complex litigation if they involved issues of valuation. It would be less discouraging to face an implied federal cause of action than fifty uncertain state ones. Against these negatives, we should be reluctant to imply congressional intent either to rely on state enforcement mechanisms or to have created, in unsuccessful bidders, a substantive “right” larger than Congress’ remedies.
It seems to me that the Alabama Supreme Court in Tectonics, 496 So.2d at 704, has it over this federal court in interpreting federal congressional intention when it said there is “absolutely no logic in interpreting the Small Business Act to allow a state cause of action.” 496 So.2d at 706. We ought to do what they have done (and as, by implication, we have done as a matter of federal subject matter jurisdiction) — refuse to imply causes of action which Congress concluded not to create. I would affirm.
This court appears to be treating causes of action and remedies interchangeably when discussing this case. In my view, the two concepts may be coextensive but not interchangeable.