B-141226, DEC. 31, 1959
Highlights
TO THE SECRETARY OF THE NAVY: WE ARE IN RECEIPT OF A LETTER OF DECEMBER 16. WHICH WAS ISSUED OCTOBER 7. OFFERED THE CRUISER AUGUSTA (CA-31) FOR SALE ON AN "AS IS. WHERE IS" BASIS. WERE OPENED AS SCHEDULED ON NOVEMBER 9. THE HIGHEST OF THE SIX BIDS RECEIVED WAS FROM MR. 300 WAS SUBMITTED BY THE BETHLEHEM STEEL COMPANY. THE HIGH BID WAS NOT ACCOMPANIED BY A BID DEPOSIT AS REQUIRED BY THE TERMS OF THE INVITATION. IT STATED HOWEVER THAT BOND WAS BEING FURNISHED UNDER SEPARATE COVER. THAT THE DELAY WAS OCCASIONED BY THE DESIRE OF THE SURETY TO COMPLETE A FINANCIAL CHECK BECAUSE IT WAS NOT FAMILIAR WITH MR. IT WAS DECIDED BY HIGHER AUTHORITY THAT THE HIGH BIDDER SHOULD BE ALLOWED UNTIL NOVEMBER 12 TO SUBMIT THE REQUIRED BOND.
B-141226, DEC. 31, 1959
TO THE SECRETARY OF THE NAVY:
WE ARE IN RECEIPT OF A LETTER OF DECEMBER 16, 1959, SIGNED BY THE ACTING CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS REFERENCE OC.2, L4-1), AND A FURTHER LETTER OF DECEMBER 24, 1959, FROM THE DEPUTY GENERAL COUNSEL, IN RESPONSE TO OUR LETTER OF NOVEMBER 19, 1959, REQUESTING A REPORT WITH RESPECT TO AN AWARD UNDER INVITATION FOR BIDS E-SB-60 131.
BIDS RECEIVED UNDER THE INVITATION, WHICH WAS ISSUED OCTOBER 7, 1959, AND OFFERED THE CRUISER AUGUSTA (CA-31) FOR SALE ON AN "AS IS, WHERE IS" BASIS, WERE OPENED AS SCHEDULED ON NOVEMBER 9, 1959. THE HIGHEST OF THE SIX BIDS RECEIVED WAS FROM MR. ROBERT BENJAMIN AT $262,291.95. THE SECOND HIGH BID OF $260,300 WAS SUBMITTED BY THE BETHLEHEM STEEL COMPANY. THE HIGH BID WAS NOT ACCOMPANIED BY A BID DEPOSIT AS REQUIRED BY THE TERMS OF THE INVITATION; IT STATED HOWEVER THAT BOND WAS BEING FURNISHED UNDER SEPARATE COVER. AT BID OPENING, THE HIGH BIDDER ADVISED THE CONTRACTING OFFICER THAT THE BID BOND WOULD BE FORTHCOMING IN THE IMMEDIATE FUTURE, AND THAT THE DELAY WAS OCCASIONED BY THE DESIRE OF THE SURETY TO COMPLETE A FINANCIAL CHECK BECAUSE IT WAS NOT FAMILIAR WITH MR. BENJAMIN'S CREDIT RATING. IT WAS DECIDED BY HIGHER AUTHORITY THAT THE HIGH BIDDER SHOULD BE ALLOWED UNTIL NOVEMBER 12 TO SUBMIT THE REQUIRED BOND. A BID BOND BEARING THE DATE OF NOVEMBER 9, 1959, WAS FURNISHED ON NOVEMBER 11 AND THE CONTRACT WAS AWARDED TO MR. BENJAMIN ON THE NEXT DAY.
THE INVITATION STATED THAT THE SALE WAS CONDUCTED SUBJECT TO THE TERMS OF 10 U.S.C. 7305, WHICH PROVIDES IN PERTINENT PART:
"/C) THE ADVERTISEMENT SHALL ASK FOR SEALED BIDS FOR THE PURCHASE OF THE VESSEL AND SHALL BE PUBLISHED FOR AT LEAST THREE MONTHS IN NEWSPAPERS USED BY THE DEPARTMENT OF THE NAVY FOR OTHER ADVERTISEMENTS.
"/D) THE SECRETARY SHALL---
"/1) REQUIRE THAT EACH BID BE ACCOMPANIED BY A CASH DEPOSIT OF NOT LESS THAN 10 PERCENT OF THE AMOUNT OF THE BID; AND
"/2) REQUIRE THAT EACH BID BE ACCOMPANIED BY A BOND, WITH TWO OR MORE SURETIES TO BE APPROVED BY HIM, CONDITIONED ON THE PAYMENT OF THE REMAINING 90 PERCENT WITHIN THE TIME SPECIFIED IN THE ADVERTISEMENT.
"/1) EXCEPT AS OTHERWISE PROVIDED BY LAW, NO VESSEL OF THE NAVY MAY BE SOLD IN ANY OTHER MANNER THAN THAT PROVIDED BY THIS SECTION, OR FOR LESS THAN ITS APPRAISED VALUE, UNLESS THE PRESIDENT SO DIRECTS IN WRITING.'
THE MANNER OF SALE HAS BEEN MODIFIED BY E.O. 10743, SIGNED DECEMBER 10, 1957, AS FOLLOWS:
"1. VESSELS OF THE NAVY STRICKEN FROM THE NAVAL VESSEL REGISTER * * * AND NOT SUBJECT TO DISPOSITION UNDER ANY OTHER LAW, MAY BE SOLD AT PUBLIC SALE TO THE HIGHEST ACCEPTABLE BIDDER, PURSUANT TO SECTION 7305 OF TITLE 10 OF THE U.S.C. REGARDLESS OF THEIR APPRAISED VALUE, AFTER BEING ADVERTISED FOR SALE FOR A PERIOD OF NOT LESS THAN THIRTY DAYS AND WITHOUT REQUIRING THAT EACH BID BE ACCOMPANIED BY A PAYMENT BOND.'
THAT THE WAIVER THUS EFFECTED PERTAINS ONLY TO THE PAYMENT BOND AND NOT THE 10 PERCENT BID DEPOSIT REQUIRED BY THE ABOVE STATUTE DOES NOT APPEAR TO BE OPEN TO QUESTION.
IT IS NOTED IN THE LETTER OF DECEMBER 16 THAT THE INVITATION RESERVED TO THE GOVERNMENT THE RIGHT TO WAIVE ANY TECHNICAL DEFECTS IN BIDS,AS MIGHT BE IN THE BEST INTEREST OF THE GOVERNMENT. IT IS FURTHER NOTED IN THE LETTER THAT OUR DECISION AT 38 COMP. GEN. 532 (WHICH OVERRULED A LONG- STANDING PRINCIPLE THAT THE FAILURE OF A BIDDER TO ACCOMPANY HIS BID WITH A BID BOND OR OTHER SECURITY AS REQUIRED BY THE TERMS OF THE INVITATION COULD AND SHOULD BE WAIVED AS AN INFORMALITY IF THE FAILURE TO COMPLY WAS DUE TO AN INADVERTENCE OR OTHER EXCUSABLE CAUSE NOT BEARING UPON THE BIDDER'S ABILITY TO FURNISH THE REQUIRED SECURITY BECAUSE OF FINANCIAL OR RELATED REASONS), DEALT WITH PROCUREMENTS BY THE GOVERNMENT AND NOT WITH SALES. IT IS ARGUED IN THE LETTER THAT THE CITED DECISION SHOULD NOT BE APPLIED TO SURPLUS SALES.
SINCE AS INDICATED, THE DELAY IN FURNISHING THE BOND WAS DUE TO THE DESIRE OF THE SURETY TO COMPLETE A FINANCIAL CHECK ON THE APPLICANT BEFORE ISSUING THE BOND, IT DOES NOT APPEAR THAT THE FAILURE TO SUPPLY THE BOND WAS DUE TO AN INADVERTENCE OR OTHER CAUSE WHICH WOULD HAVE BEEN EXCUSABLE EVEN UNDER THE RULE EXISTING PRIOR TO 38 COMP. GEN. 532.
THE DECISION PUBLISHED AT 38 COMP. GEN. 532, AND THOSE WHICH IT OVERRULED, DEALT ONLY WITH BID SECURITY REQUIREMENTS IMPOSED BY THE TERMS OF THE INVITATION FOR BIDS. WHILE WE KNOW OF NO REASON WHY THAT RULE SHOULD NOT APPLY TO SALES AS WELL AS TO PURCHASES, THERE IS INVOLVED IN THIS CASE A SPECIFIC STATUTE GOVERNING THE BID SECURITY REQUIREMENT. THE RULE WITH RESPECT TO BID SECURITY REQUIREMENTS IMPOSED BY STATUTE IS, AND HAS BEEN, THAT THE FAILURE TO COMPLY STRICTLY NECESSITATES THAT THE BID BE REJECTED. SEE IN THIS CONNECTION 10 COMP. GEN. 528, IN WHICH IT WAS HELD THAT A STATUTORY REQUIREMENT THAT THE BID BE ACCOMPANIED BY A BID GUARANTEE WAS NOT MET BY A TELEGRAM PRECEDING THE BID AND A LETTER FURNISHED WITH THE BID ADVISING THAT THE BOND HAD BEEN OBTAINED AND WAS BEING FORWARDED BY AIRMAIL EVEN THOUGH THE ACTUAL BOND WAS RECEIVED BY THE CONTRACTING AGENCY ON THE DAY FOLLOWING BID OPENING. SEE, ALSO, 5 COMP. GEN. 762; A-31228, APRIL 18, 1930. THE REASON FOR THE RULE IS THAT THERE IS NO AUTHORITY IN OUR OFFICE OR IN ANY ADMINISTRATIVE AGENCY OF THE GOVERNMENT TO WAIVE AS AN INFORMALITY A REQUIREMENT IMPOSED BY STATUTE. IF A REQUIREMENT IS IMPOSED BY STATUTE, IT IS PER SE MATERIAL.
THE INVITATION IN THE PRESENT CASE, WHICH UTILIZED STANDARD FORM 114, FAILED TO CONFORM TO THE REQUIREMENT OF THE STATUTE IN THAT IT DID NOT PROVIDE THAT BIDS BE ACCOMPANIED BY A CASH DEPOSIT OF AT LEAST 10 PERCENT. STANDARD FORM 114 STATES THAT A BID DEPOSIT MUST ACCOMPANY BIDS BUT PROVIDES THAT SUCH DEPOSIT MAY BE IN SUCH FORM OF SECURITY AS MAY BE ACCEPTABLE TO THE CONTRACTING OFFICER, INCLUDING A BID BOND. IT IS OUR UNDERSTANDING THAT FUTURE SALES OF VESSELS UNDER 10 U.S.C. 7305 WILL CONFORM TO THIS STATUTORY REQUIREMENT.
IT IS THE POSITION OF THE NAVY DEPARTMENT THAT THE AWARD MADE TO MR. BENJAMIN SHOULD BE CONSUMMATED BY DELIVERY TO HIM OF THE AUGUSTA FOR THE FOLLOWING REASONS. AWARD WAS MADE IN GOOD FAITH IN RELIANCE UPON LONG- STANDING INSTRUCTIONS APPLICABLE TO SALES OF THIS KIND CONTAINED IN PARAGRAPH 28157-2C OF THE BUSANDA MANUAL WHICH PERMIT THE WAIVER OF FAILURE TO ACCOMPANY BIDS WITH A REQUIRED DEPOSIT AS A MINOR INFORMALITY; THE FULL PURCHASE PRICE OF OVER $250,000 WAS PAID BY MR. BENJAMIN SHORTLY AFTER AWARD AND HE HAS ATTEMPTED TO TAKE DELIVERY OF THE VESSEL AS REQUIRED OF HIM; THE AWARD CREATED A VALID CONTRACT, FOR BREACH OF WHICH THE GOVERNMENT MAY BE HELD LIABLE FOR SUBSTANTIAL DAMAGES; AND, EVEN IF THE CONTRACT SHOULD BE REGARDED AS VOIDABLE, IT WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE TO SEEK ITS REPUDIATION AFTER FULL PERFORMANCE BY MR. BENJAMIN OF HIS PART OF THE BARGAIN.
THE FIRST AND MOST BASIC QUESTION PRESENTED BY THE CASE IS WHETHER OR NOT THERE WAS COMPLIANCE WITH THE REQUIREMENTS OF THE STATUTE. IN THIS REGARD, IT IS ARGUED IN A MEMORANDUM OF LAW SUBMITTED WITH THE LETTER OF DECEMBER 24, 1959, THAT THE STATUTORY REQUIREMENT THAT BIDS MUST BE ,ACCOMPANIED" BY A 10 PERCENT CASH DEPOSIT DOES NOT REQUIRE PHYSICAL ATTACHMENT OR SIMULTANEOUS SUBMISSION. WE AGREE WITH THE STATEMENT QUOTED IN THE MEMORANDUM FROM THE COURT'S OPINION IN THE CASE OF TUCKER V. KERNER, 186 F.2D 79, THAT, WHILE THE WORD "ACCOMPANIED" MAY BE TAKEN LITERALLY TO MEAN SIMULTANEOUSLY, IT NEED NOT NECESSARILY REQUIRE SUCH CONSTRUCTION. THAT CASE INVOLVED A PETITION FOR REMOVAL OF A CAUSE FROM A STATE COURT TO FEDERAL COURT WHICH WAS NOT "ACCOMPANIED" BY THE BOND REQUIRED BY STATUTE. HOWEVER, THE BOND WAS LATER FILED, BUT IT WAS FILED WITHIN THE TIME ALLOWED FOR FILING OF THE PETITION. THIS THE COURT HELD TO BE SUBSTANTIAL, IF NOT LITERAL, COMPLIANCE WITH THE STATUTE.
WE DO NOT DISAGREE WITH THE COURT'S REASONING IN THAT CASE, AND WE BELIEVE IT WOULD BE APPLICABLE TO THE FURNISHING OF A BID DEPOSIT UNDER 10 U.S.C. 7305 AFTER SUBMISSION OF A BID, PROVIDED THE DEPOSIT WAS MADE BEFORE BID OPENING. IT IS MATERIAL, WE THINK, IN CONSTRUING THE WORD "ACCOMPANIED" IN THE INSTANT STATUTE, OR IN ANY STATUTE, TO LOOK INTO THE PURPOSE OF THE STATUTORY REQUIREMENT. UNDER 10 U.S.C. 7305 THERE ARE TWO SECURITY REQUIREMENTS. EACH BID MUST BE ACCOMPANIED BY A 10 PERCENT CASH DEPOSIT AND ALSO BY A SURETY BOND COVERING THE BALANCE OF THE AMOUNT BID. THE STATED PURPOSE OF THE SURETY BOND IS TO SECURE TIMELY PAYMENT OF THAT PART OF THE BID NOT DEPOSITED IN CASH. THE 10 PERCENT CASH DEPOSIT IS, BY SECTION 7305 (F), FORFEIT TO THE UNITED STATES AS LIQUIDATED DAMAGES IN THE EVENT OF THE BIDDER'S DEFAULT. IF THIS CASH DEPOSIT IS NOT FURNISHED PRIOR TO BID OPENING AND THE BIDDER THEREAFTER REFUSED TO GO THROUGH WITH THE PURCHASE, THE GOVERNMENT IS NOT CERTAIN OF COLLECTING SUCH LIQUIDATED DAMAGES. IN THESE CIRCUMSTANCES, IT IS OUR OPINION THAT THE STATUTORY REQUIREMENT FOR A CASH DEPOSIT TO ACCOMPANY BIDS IS NOT SATISFIED UNLESS THE DEPOSIT IS MADE PRIOR TO BID OPENING.
FOR THE FOREGOING REASONS, WE BELIEVE MR. BENJAMIN'S BID FAILED TO COMPLY WITH A MATERIAL REQUIREMENT OF THE STATUTE. THE NEXT QUESTION WE FACE IS WHETHER, DESPITE THIS NONCOMPLIANCE, THE AWARD TO MR. BENJAMIN CREATED A VALID CONTRACT. THE MEMORANDUM OF LAW SUBMITTED APPEARS TO RELY SOLELY UPON THE CASE OF LEVINSON V. UNITED STATES, 258 U.S. 198, TO SUPPORT AN AFFIRMATIVE ANSWER TO THIS QUESTION. WE DO NOT CONSIDER THE HOLDING IN THAT CASE TO SUPPORT SUCH A CONCLUSION. AT THE TIME OF THE SALE IN THAT CASE, THE STATUTE (WHICH IS THE SAME AS HERE INVOLVED) HAD BEEN MODIFIED BY AN EXECUTIVE ORDER GIVING THE SECRETARY OF THE NAVY AUTHORITY TO SELL "AT SUCH PRICE AS HE SHALL APPROVE.' OUR INTERPRETATION OF THE COURT'S HOLDING IS THAT AN AWARD, THROUGH ERROR, TO OTHER THAN THE HIGHEST BIDDER WAS TANTAMOUNT TO AN APPROVAL BY THE SECRETARY UNDER THE EXECUTIVE ORDER OF SUCH LOWER PRICE AND THEREFORE VALID UNDER THE STATUTE.
MOST OF THE AUTHORITIES CITED IN THE MEMORANDUM OF LAW INVOLVE SITUATIONS WHERE THERE HAD BEEN A FAILURE TO COMPLY WITH A STATUTORY REQUIREMENT, AND AN AWARD NEVERTHELESS, AS HERE, TO THE NONCONFORMING BIDDER. HOWEVER, THE POINT AT ISSUE IN THOSE CASES WAS NOT WHETHER THE GOVERNMENT COULD REPUDIATE THE AWARD, BUT WHETHER THE BIDDER HIMSELF COULD DO SO. WE NATURALLY HAVE NO DISAGREEMENT WITH THE HOLDINGS IN SUCH CASES AS UNITED STATES V. NEW YORK AND PORTO RICO S.S. CO., 239 U.S. 88; ACKERLIND V. UNITED STATES, 240 U.S. 531; ADELHART CONSTRUCTION COMPANY V. UNITED STATES, 123 C.CLS. 456; HARTFORD ACCIDENT AND INDEMNITY CO. V. UNITED STATES, 130 C.CLS. 490; AND SINGLETON V. DISTRICT OF COLUMBIA, 198 F.2D 945. THOSE CASES, HOWEVER, DO NOT HOLD THAT THE RESULTING CONTRACTS WERE VALID IN ALL RESPECTS. AS WAS PLAINLY STATED BY MR. JUSTICE HOLMES IN THE OPINION IN THE PORTO RICO CASES, THE CONTRACT COULD BE ENFORCED AGAINST THE CONTRACTOR BUT COULD NOT BE ENFORCED AGAINST THE GOVERNMENT. IN OTHER WORDS, THE CASES CITED DEFINITELY SUPPORT THE PROPOSITION THAT CONTRACTS MADE WITHOUT COMPLIANCE WITH STATUTORY REQUIREMENTS INTENDED FOR THE PROTECTION OF THE GOVERNMENT ARE VOIDABLE AT THE OPTION OF THE GOVERNMENT. THE STATEMENT IS ALSO FOUND IN THOSE CASES THAT THE GOVERNMENT MAY WAIVE A FAILURE TO COMPLY WITH STATUTORY REQUIREMENTS AND HOLD THE NONCONFORMING BIDDER TO HIS BID. WE DO NOT QUESTION THE GOVERNMENT'S RIGHT TO ENFORCE AGAINST MR. BENJAMIN THE AWARD MADE TO HIM. THIS DOES NOT, HOWEVER, SETTLE THE QUESTION WHETHER MR. BENJAMIN CAN ENFORCE THAT AWARD AGAINST THE GOVERNMENT. ONLY ONE AUTHORITY HAS BEEN CITED IN SUPPORT OF THE PROPOSITION THAT AN AWARD MADE IN VIOLATION OF A STATUTORY REQUIREMENT MAY BE CONSIDERED VALID AGAINST THE GOVERNMENT. THAT IS THE OPINION OF THE ATTORNEY GENERAL IN THE MEMPHIS CASE, 38 OP.ATTY.GEN. 328. THE U.S.S. MEMPHIS WAS SOLD UNDER THE STATUTE WE ARE NOW CONSIDERING WITHOUT THE REQUIRED APPRAISAL TO ESTABLISH A MINIMUM PRICE. THE VESSEL HAD GONE AGROUND ON THE SHORES OF SANTO DOMINGO AND WAS SOLD "AS IS, WHERE IS.' THE PURCHASER PAID FOR THE VESSEL BUT FAILED TO REMOVE HER. SOME TEN YEARS LATER THE DOMINICAN GOVERNMENT REQUESTED ASSURANCES THAT THE UNITED STATES HAD NO REMAINING TITLE INTEREST SO THAT IT MIGHT REMOVE THE VESSEL. IT IS PERTINENT TO NOTE THAT THE ATTORNEY GENERAL IS HIS OPINION, AFTER CITING THE PORTO RICO AND ACKERLIND CASES, STATED THAT SINCE THERE HAD BEEN COMPLETE PERFORMANCE OF THE SALES CONTRACT, INCLUDING PAYMENT OF THE FULL PURCHASE PRICE AND DELIVERY OF THE PROPERTY, IT WAS "DOUBTFUL WHETHER THE GOVERNMENT COULD NOW REPUDIATE THE SALE EVEN IF IT DESIRED TO DO SO.' IF, IN A CASE WHERE FULL PAYMENT AND DELIVERY HAD BEEN EFFECTED TEN YEARS BEFORE, THERE WAS STILL SOME DOUBT WHETHER THE GOVERNMENT COULD REPUDIATE THE SALE, THERE CERTAINLY IS A MUCH STRONGER CASE FOR REPUDIATION WHERE THE PROPERTY IS STILL IN THE POSSESSION OF THE GOVERNMENT. FOR THE REASONS STATED, WE ARE OF THE OPINION THAT NEITHER THE INVITATION NOR THE AWARD WAS IN ACCORDANCE WITH THE PERTINENT STATUTE WHICH PRESCRIBES THE TERMS AND CONDITIONS UNDER WHICH YOU ARE AUTHORIZED TO SELL VESSELS STRICKEN FROM THE NAVAL VESSEL REGISTER. WE ARE AWARE OF NO OTHER AUTHORITY FOR SALE OF THE VESSEL IN QUESTION, AND WE KNOW OF NO LEGAL SANCTION FOR THE WAIVER OF SUCH SPECIFIC STATUTORY LIMITATIONS. WHILE THE STATUTE WAS UNDOUBTEDLY ENACTED FOR THE PROTECTION OF THE UNITED STATES, IT WAS AGAINST UNAUTHORIZED ACTS OF THE AGENTS AND OFFICIALS OF THE UNITED STATES THAT THE PROTECTION WAS INTENDED TO BE EFFECTIVE, AND, IF THOSE OFFICIALS CAN THEMSELVES WAIVE THE REQUIREMENTS OF THE STATUTE, ITS PURPOSE WOULD SEEM TO BE WHOLLY DEFEATED.
AT THE SAME TIME, THE IMMEDIATE OBJECTIVE OF THE STATUTORY REQUIREMENT OF A CASH DEPOSIT AND BOND--- THAT IS, TO INSURE THE GOVERNMENT AGAINST ANY LOSS OR EXPENSE RESULTING FROM DEFAULT BY A HIGH BIDDER--- HAS NOW BEEN ACHIEVED BY THE PAYMENT OF THE FULL AMOUNT BID. THE QUESTION INVOLVED IS THEREFORE WHETHER THE ACTIONS OF YOUR DEPARTMENT IN PERMITTING THE DEFICIENCY OF THE BID TO BE REMEDIED AFTER BID OPENING, AND COMMUNICATING TO THE BIDDER AN ACCEPTANCE OF THE BID, ARE SO CONTRARY TO THE INTEREST OF THE GOVERNMENT AS TO REQUIRE RESCISSION OF THE AWARD.
WHILE WE HAVE UNIFORMLY ADHERED TO THE PROPOSITION THAT THE GOVERNMENT'S INTEREST IN THE PRESERVATION OF THE COMPETITIVE BIDDING SYSTEM IN GOVERNMENT CONTRACTING IS FAR GREATER THAN THE ATTAINMENT OF A MORE PECUNIARY ADVANTAGE IN A GIVEN CASE, AND HAVE CONSTANTLY STRIVEN TO ADVANCE THAT INTEREST BY INSISTENCE UPON FAIR AND IMPARTIAL TREATMENT OF ALL BIDDERS, WE HAVE ALSO RECOGNIZED THAT BIDDERS WHOSE BIDS HAVE BEEN ACCEPTED, EVEN THOUGH IMPROPERLY, MAY HAVE RIGHTS WHICH SHOULD NOT BE DISREGARDED ON PURELY TECHNICAL CONSIDERATIONS, AND THAT THE INTERESTS OF THE GOVERNMENT MAY NOT ALWAYS BE BEST SERVED BY RESCISSION OR CANCELLATION OF AN ERRONEOUS AWARD OF A CONTRACT. CONSIDERING THE PRESENT STATUS OF THIS CASE AND YOUR STRONG RECOMMENDATIONS THAT THE AWARD AS MADE BE PERMITTED TO STAND, WE CONCLUDE THAT THE INTERESTS OF THE GOVERNMENT DO NOT CLEARLY REQUIRE DISAFFIRMANCE OF THE AWARD TO MR. BENJAMIN, AND WE WILL INTERPOSE NO OBJECTION TO DELIVERY TO HIM OF THE VESSEL FOR WHICH HE HAS PAID, WITH THE UNDERSTANDING, OF COURSE, THAT THE NECESSARY CORRECTIVE ACTION INDICATED HEREIN WILL BE TAKEN PROMPTLY BY YOUR DEPARTMENT.