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A bidder may also contend that his bid was improperly rejected as nonresponsive. The regulations provide that an awardee's bid must "comply in all material respects with the invitation" (ASPR § 2.301(a); FPR § 1-2.301(a)), and list specific instances of nonconformity which require rejection of the bid (ASPR § 2.404-2; FPR § 1-2.404-2). If a defect fits within the narrow category of mandatory rejection (e.g., failure to state a price, if required), then the disqualified bidder would have little room for argument. If, on the other hand, the existence vel non of a defect involves the exercise of judgment, or if it is an irregularity minor enough to be waivable under ASPR § 2.405 or FPR § 1-2.405, then the cognizable complaint is that this discretion was clearly abused in the particular circumstances. Presumably Presumably, a showing that there was clearly no reasonable basis for the official action would be enough. It is much less clear whether there could be specific situations in which some lesser showing would suffice.

A party submitting a responsive and low bid may still be adjudged not "responsible," and thus denied the award. ASPR § 2.404-2(g); FPR § 1-2.404-2(e). Ordinarily, the contracting officer will have very wide discretion in making this determination (standards are set forth at ASPR § 1.900 et seq. and FPR § 1-1.1203), and thus a complaining bidder would normally have to demonstrate bad faith or lack of any reasonable basis in order to prevail.

If a prospective government contractor clears all these requirements in an advertised procurement, he may still be found ineligible for award in some cases, e.g., where the contract has been set aside" for a small business or for a labor surplus area In each such case, there are procedures for determining eligibility, and the degree of leeway granted government officials by those procedures would ordinarily frame the appropriate standard for judicial review.

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B. Because the selection of an awardee from a raft of competitive bidders in a comparative process, a prospective contractor may complain, as here, that government actions favoring another bidder - without any misreading or misevaluation of the claimant's own bid prejudice the complainant's changes for the award. Of course, where such favoritism or discrimination stems from subjective bad faith (e.g., predetermination of the award), the rejected bidder can recover under the rule of Heyer Products Co, supra. We held in Keco Industries, Inc. I that such bad faith exists prima facie when the Government accepts a bid knowing that costly changes will be required because of the bases on which the competitor bid.

But in those cases where dishonesty and bad faith are absent, the rules governing the claimant's rights when the Government errs with respect to his own bid need not automatically be carried over, in every instance, to the comparable situation where the objective error solely concerns a competitor's proposal. As our prior decisions have implicitly recognized, the Government's duty to treat a bid honestly and fairly runs first of all to the enterprise submitting that bid. Cf. Heyer Products, Co., v. United States, 135 Ct. Cl. 63, 140 F. Supp. 409 (1956); Continental BusiBusiness Enterprises v. United States, 196 Ct. Cl. 627, 452 F. 2d 1016 (1971). The procuring agency's enforceable responsibility to a bidder to read or evaluate properly his competitor's bid may be appreciably less in certain situations. (One relevant factor in this connection is that, although the harm asserted is that the plaintiff would likely have received the award but for incorrect preference given his successful competitor's bid, there is no assurance that any bidder would have obtained the award since the Government retains in its discretion, the right to reject all bids without any liability. Robert F. Simmons & Assocs. v. United States, 175 Ct. Cl. 510, 360 F. 2d 962 (1966); ASPR § 2.404 et.seq., FPR 1-2.404 et seq.).

For instance, there would seem to be a strong presumption against entitlement to bid preparation expenses where the ellegation is that the Government incorrectly adjudged a competitor to be "responsible" prior to contract award. As we have noted, procurement officials have a great deal of discretion in making this de termination (aside from a prior suspension or debarment), and some of the criteria are not readily susceptible to reasoned judicial review. See ASPR §§ 1.900 et seq.; FPR § 1-1.1203. In addition, correct appraisal of the responsibility of a prospective contractor is clearly in the self-interest of the procuring agency; there is a built-in stimulus against error. If the determination is erroneous, and the contractor ultimately defaults on his obligation, the Government will likely suffer substantial delay and inconvenience, even though the defaulting party will be liable to asnwer in damages, including perhaps reprocurement costs. See, e.g., ASPR §§ 8.707, 8.709; FPR§§ 1-8.707, 1-8.709. Absent fraud or bad faith, it is not easy, therefore, to conjure up situations in which a disappointed bidder could recover bid preparation expenses under the claim that a defendant wrongly appraised the awardee as "responsible".

Again, it may be that even a proven violation of some procurement regulation, in selecting the competitor, will not necessarily make a good claim. Not every regulation is established for the benefit of bidders as a class, and still fewer may create enforceable rights for the awardee's competitors. Cf. Chris Berg, Inc. v. United States, 192 Ct. C1. 176, 182-83, 426 F. 2d 314, 317 (1970). On the other hand, it could be--we do not decide-

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that competitors do have an enforceable right against the making of an award to a clearly nonconforming bidder, even where the agency failed to appreciate that the bid was materially nonresponsive. Cf. Prestex Inc. v. United States, 162 Ct C1. 620, 320 F. 2d 367 (1963); Albano Cleaners, Inc. v. United States, 197 Ct. Cl. 450, 455, 455F. 2d 556, 559 (1972); ASPR § 2.301; FPR § 2.301. Or it could be that a claim will follow from the defendant's failure to pursue the established procedures in selecting an awardee in a small business or labor surplus area set-aside. Cf. Allen M. Campbell Co. Co. v. United States, 199 Ct. Cl. 515, 520-21, 467 F. 2d 931, 933-34 (1972); Mid-West Constr., Ltd. v. United States, 181 Ct. Cl. 774, 782-83, 387 F. 2d 957, 961-62 (1967); Otis Steel Products Corp. v. United States, 161 Ct. C1. 694, 699-700, 316 F.2d 937, 940 (1963).

We mention these varying situations, not presented in this case, only to stress the possibility of separate rules for separate classes of problems. The point is that, in those instances in which the alleged Government wrongdoing concerns only the prevailing bid and not the claimant's own rejected proposal, there should be careful examination of the claimant's particular rights and interests with respect to that specific type of misconduct. There may well be no one umbrella rule or principle for all such cases.

III

With this general background, the remaining issues in this case can be readily resolved. We have held in Part I, supra, that plaintiff has failed to prove that the Air Force had actual knowledge that the Acme proposal would not work without costly changes. Accordingly, the rule of Heyer Products, Co., supra, does not apply. It may be--this factual question does not have to be decided--that the procuring officials were negligent or less diligent than they should have been in investigating and evaluating whether the Acme bid was the more advantageous to the Government. But even on this assumption we agree with the Trail Judge that the Air Force made a reasoned, if erroneous, decision; like him, we cannot say that there was no reasonable basis for the official action. There may have been some lack of care but certainly the negligence was not gross nor was the decision irrational or totally lacking in reason. That being so, Keco has no meritorious claim.

The mere failure to exercise due diligence in the appraisal of the advantageousness of a competitor's bid, when that omission amounts to simple negligence, is not a suff ient showing of arbitrary or capricious conduct to warrant recovery of bid preparation expenses. The Government's duty to exercise care in evaluating the "price and other factors" of a bid runs first to the proponent of that bid and to the public and its representatives, and only then to another bidder. The responsibility to the latter is too attenuated to justify assessing damages for simple negligence,

especially in light of the broad discretion of procurement officials in that aspect of the bid process. Moreover, litigation which second-guesses bid determinations, through efforts to show ordinary lack of due care in appraising competing proposals, should not be encouraged where the award was rational and made in good faith. The interference from such suits, and their impact upon contracting activities, would exact too great price in the procurement process. Cf. Continental Business Enterprises, Inc. v, United States, supra, 196 Ct. Cl. at 639, 452 F. 2d at 1022.

IV

Plaintiff also objects to the Trial Judge's ruling on a matter of procedure. Early in the trial, plaintiff sought to introduce evidence of other alleged Government misconduct during the same procurement. The judge refused to admit such evidence, because the points to which it related had not been alleged with particu larity in the pleadings, as required by Rule 33(b); the judge also denied permission to amend the pleadings to include these matters. The new averments of misconduct were that defendant accepted Acme's bid although it was materially nonresponsive. At the oral argument it was revealed that, although full pretrial proceedings had been held, no mention of these subjects was made by plaintiff until the trial.

Plaintiff argues that our opinion in Keco Industries, Inc. I gave carte blanche to prove any instance of arbitrary and capricious conduct in awarding this contract. It is not clear that the specific language alluded to (192 Ct. Cl. at 784, 428 F. 2d at 1240) was meant to cover anything other than the Air Force's permission to Acme to use V-belt drive and a generator-powered cooling fan motor-the only specific defects referred to in the petition. But even if the court contemplated that other defects might be raised in the future, the opinion in no way dispensed with the normal rules of pleading and trial practice. At best, the court indicated that other instances of government misconduct could be shown if properly and timely brought into the case.

It is undisputed that the only specific acts of government wrongdoing mentioned or referred to in the petition (as originally filed or as amended) were the two with which the Trial Judge dealt. Plaintiff contends, however, that preserved other possible bidprocedure defects by alleging in its petition, generally, a violation of "Section 2, Paragraph 5" of the Armed Services Procurement Regulations. This is apparently a reference to the fourpage section in ASPR describing the two-step formal advertising. The citation obviously falls far short of the specificity called for by Rule 33(b), which requires that: "In all averments (1) of fraud *** (2) of mistake, or (3) of action alleged to be arbitrary

capricious, or erroneous action shall be stated with particularity. ***" A naked allegation of arbitrary and capricious action is not sufficient to trigger a trial. Greenway v. United states, 163 Ct. Cl. 72, 82 (1963). Plaintiff did plead with particularity the circumstances surrounding the Government's acceptance of Acme-requested departures from the specifications, but no allegation was made or suggested as to a material nonconformity in Acme's bid. The petition simply did not present

those additional grounds.

For these reasons, we hold that plaintiff is not entitled to recover. The petition is dismissed.

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