(dissenting in part).
I concur in the opinion of Judge BRATTON in holding that the second contract entered into with Brookridge Farm, Inc., destroyed the right of Brook-ridge Farm to recover damages for a breach of the first contract.
I dissent, however, from the opinion by Judge BRATTON upholding the validity of the first contract.
The provisions of R.S. Sec. 3709, 41 U. S.C. Sec. 5, 41 U.S.C.A § 5, and 10 U.S.C. Sec. 1200, 10 U.S.C.A. § 1200, provide the authority for the War Department in letting this contract.
*468Section 5, supra, provides that these contracts “shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service.”
It will not be contended seriously that there was in this case any such exigencies as contemplated by the statute for a departure from the general rule of letting the contract.
Section 1200, supra, provides that purchases of quartermaster supplies for the Army “for immediate use shall be made by the officers of such corps branch, under the direction of the Secretary of War * * Provided, That all purchases of said supplies, * * * except in cases of emergency, which must be at once reported to the Secretary of War for his approval, shall be made by contract after public notice of not less than ten days for small amounts for immediate use, and of not less than from thirty to sixty days whenever, in the opinion of the Secretary of War, the circumstances of the case and conditions of the service shall warrant such extension of time. The award in every case shall be made to the lowest responsible bidder for the best and most suitable article, the right being reserved to reject any and all bids.” (Italics supplied.)
In Major Wharton’s request for authority from the Quartermaster General to ask for bids, he said:
“The procurement of Grade A milk, even at a slightly higher cost than milk now furnished, would be of inestimable value to this hospital. As a result of the increased competition possible through the isswnce of invitation for bids, prices received would, no doubt, compare favorably with the price now paid for the lower quality milk. * * * ” (Italics supplied.)
* * In order to assure an uninterrupted supply, it would be necessary to mail bidding forms at the earliest practicable date in order to allow time to enter into contract with successful bidders and enable them to make necessary changes in their dairies and pasteurizing plants.”
It is clearly apparent from this letter to the Quartermaster General that there was a definite representation made to him that perhaps, none of the dairies were in a position to comply with the government requirements but that a sufficient length of time should be provided to “enable them to make necessary changes in their dairies and pasteurizing plants.”
Prior to the letting of the contract on April 29, 1938 an inspection had been made and it had been determined that although none of the dairies could technically comply with the requirements, the Brookridge Farm bid was the only bid that could be considered. Notwithstanding this fact, City Park Dairy filed its bid for $43,867 and also furnished a bid bond in the amount of $10,000 conditioned that it would enter into the contract and give a performance bond. Brookridge Farm submitted a bid of $61,830 and furnished a bid bond in the amount of $6,500. Here is a difference of approximately $18,000 which would represent a saving of more than twenty-nine per centum of the bid of Brookridge Farm. Certainly there was no competition if the Brookridge Farm bid was the only bid to be considered and, furthermore, there was an absolute disregard of the very provisions and conditions under which the bids were called for when the bid of City Park Dairy was placed in the discard although it had furnished a bond of $10,000 that it would meet the requirements of the government.
The invitations were mailed on April 14 for bids to be opened on April 29. The bid of Brookridge Farm was very promptly accepted and the contract was awarded on April 30. As stated in Judge BRATTON’s opinion, “within a day or two thereafter, plaintiff placed an order for a large quantity of bottles and cases and began the purchase of additional cows necessary for the performance of the agreement. On May 9, the Quartermaster, Eighth Corps Area, radiogramed the Quartermaster at the hospital to suspend the award pending a decision of the Comptroller General concerning the legality thereof, and on the same day the Quartermaster at the hospital mailed a copy of the radiogram to plaintiff. Despite such notice, plaintiff continued its preparations for the performance of the contract, and by July 1 it had purchased ninety-six additional cows, a truck for the transportation of the milk, and a large number of bottles and cases, and had made enlargements and improvements of its plant necessary for the fulfillment of the *469contract. On June 30, plaintiff was advised that the contract had been can-celled.”
Notwithstanding the foregoing facts, Brookridge Farm made no effort to cancel the orders which it had placed and there is nothing in the record to indicate that all these orders could not have been can-celled without any loss whatever to it.
This contract to furnish the milk was not to become effective until July 1. A few weeks after that time, even under the conditions that existed, City Park Dairy was in a position to furnish the milk, and did furnish the milk through September and October. Why the haste to secure this contract for Brookridge Farm? Why, with such a difference in the amount of the bids, was not a reasonable time given to City Park Dairy to make the necessary improvements?
The whole trend of our courts for at least a half century has been to discourage the departure from strict statutory provisions in awarding government contracts.
The awarding of such contracts in many instances has been followed by scandals and circumstances questioning the integrity of the awarding officers. It was for this reason that the statute was made explicit and a distinction was made between emergency awards and awards in due course. Questions of this character concern the interest of not only the federal government but of every taxpayer in the nation.
Brookridge Farm is charged with a knowledge of this law and its provisions. It knew as well as the awarding officer that there was no competition and, doubtless, the high bid of Brookridge Farm was due to the one fact that it knew that its bid would be the only bid considered, therefore, it could dictate its price.
Another circumstance, which convinces me that the high bid of Brookridge Farm was due to the fact that it knew its bid was the only bid that would be considered, was that in October it made a new bid in competition with City Park Dairy at .a price even lower than that made by City Park Dairy in April.
I cannot escape the conclusion that there was no competition, that an undue advantage was taken by Brookridge, that it placed its high bid with the full knowledge and understanding that its bid would be the only bid considered, and, therefore, it could dictate the exorbitant price which it submitted, and, that since there was only one bid the Department should have refused an award and readvertised.
I cannot bring myself to the opinion that this court should lend its power te the enforcement of so questionable a contract.
The case should be reversed.