NOTE

At the subsequent trial the plaintiff was unable to prove the bad faith alleged. 147 Ct. Cl. 256, 177 F. Supp. 251 (1959). In fact, few Heyer-type plaintiffs have succeeded in claims of the kind the majority in that case put forward. For examples of such failures, see, e.g., Robert F. Simmons & Associates v. United States, 360 F.2d 962 (Ct. Cl. 1966); Edelman v. F.H.A., 251 F. Supp. 715 (E.D.N.Y. 1966). See, in general, Summers, "Good Faith" in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195, 221 (1968). See further Keco Industries Inc. v. United States, 428 F.2d 1233 (Ct. CI. 1970) and the cases discussed in Grossbaum, Procedural Fairness in Public Contracts: The Procurement Regulations, 57 Va. 1. Rev. 171, 240 et seq. (1971).

Recovery of preparation costs was allowed in Armstrong & Armstrong v. United States, 514 F.2d 402 (9th Cir. 1975); McCurly Corp. v. United States, 490 F.2d 633 (Ct. Cl. 1974). Swinerton & Walberg Co. v. City of Inglewood, 40 Cal. App. 3d 98, 114 Cal. Rptr. 834 (1974), is an example of a state court decision holding for a Heyer-type plaintiff. The court in that case relied on an implied contract or promise that was held enforceable by virtue of Section 90 of the Restatement Second, and on the decision in Drennan v. Star Paving Co., infra p. 326. Note that the court in Swinerton (and possibly the court in Heyer Products, see Grossbaum, supra, at p. 241) had to rely on contract theory to avoid jurisdictional limitations and limitations on governmental liability for tort. In cases involving private auctions, where such limitations are not present, a plaintiff may sue for fraud or deceit instead. See Block v. Tobin, 45 Cal. App. 3d 214, 119 Cal. Rptr. 288 (1975), where the plaintiffs, bidders at a privately held sale under a deed of trust, alleged that the defendants had held a mock auction and sought damages for deceit. The damages were limited by the court to the amount plaintiffs had expended in preparing their bid, but the court left open the possibility that the defendants might be held liable for punitive damages as well.