(dissenting in :part).
Having written the opinion of the court in Goldwasser v. United States, Ct.Cl., No. 477-61, 325 F.2d 722, this day decided, it follows that I disagree with the opinion in this case. It reiterates, I think, the positions taken in the dissenting opinions in the Goldwasser case.
In Goldwasser, the defendant became dissatisfied with plaintiff’s performance but it did not refuse further to honor iiie contract because plaintiff had defaulted in performance, but, instead, took refuge in the “indefinite-quantities clause of the contract, contending that under that clause it was no longer obligated to avail itself of plaintiff’s services. Because we thought this clause was inapplicable and that defendant had wrongfully refused to further honor the contract unless plaintiff was actually in default, and because it did not take adwantage of the termina tion-for-convenience-of-the-Govemment clause, we held this clause did not prescribe the measure of defendant’s liability, if any.
Nor in the ease at bar did defendant fake advantage of the termination-for-convenience-of-the-Government clause; it cancelled the contract because, acting upon the opinion of the Comptroller General, it held that it had been awarded without compliance with the statute and was, therefore, a nullity. It is a contradiction to say that it terminated a contract that in law it asserted had never existed. Whether it had a right to do so or not is immaterial, because it did not in fact do so. The possession of a right means nothing unless that right is exercised.
As in the Goldwasser case, a cancellation of the contract because it had been illegally entered into involved no liability on the part of the Government; a termination for convenience did render the Government liable. The Contracting Officer chose the former course. The Government is bound by the action he took.
What I have said is in harmony with our holding in Klein v. United States, 152 Ct.Cl. 8, 285 F.2d 778 (1961).
The majority relies upon College Point Boat Corp. v. United States, 267 U.S. 12, 45 S.Ct. 199, 69 L.Ed. 490 (1925), affirming 58 Ct.Cl. 380 (1923), but in that case there was no election by the Government between two- alternative courses of action, one of which subjected the Government to liability and the other did not.