(concurring):
I join the court in adopting Commissioner White’s opinion but, in view of the dissent, wish to add some sentences on damages.1 The cardinal point is that plaintiff has the burden of showing that it is entitled to more than the commissioner allowed. To my mind, it has not made that proof, on either of the two potentially available hypotheses. The Invitation for Bids provided: “Small business concerns will be offered the set-aside portion at prices (appropriately adjusted to reflect transportation and any other applicable evaluation cost factors) which will represent what the Government would otherwise have had to pay, pursuant to such evaluation, had there been no set-aside.” The parties do not discuss whether the Government, under this form of invitation, could validly decide, after all the bids were filed and opened, to cancel the set-aside and make the award (on the basis of the already-submitted bids) as if “there had been no set-aside.” If that could be done, the price of 10.8253 cents per gallon (the sum allowed by Commissioner White) would best represent “what the Government would otherwise [i. e. the set-aside being itself set aside] have had to pay.” On the other hand, if the quoted part of the invitation means that the trier-of-fact must determine what the defendant would have had to pay if bids had been originally requested without any reference to a set-aside, I think that plaintiff has also failed to carry its burden. True, Triangle must have assumed that 11.3203 cents would be the lowest bid under the invitation containing the set-aside. But that is not proof that Triangle would have made the same assumption in the total absence of a set-aside. In the latter situation, Triangle could well have been faced with competition from other larger companies which would desire to supply the entire 40 million gallons, but were not interested in getting only the non-set-aside portion of 20 million gallons and therefore refrained from bidding at all on the invitation as it was actually issued. The record demonstrates that Triangle was most anxious to obtain the whole 40 million if it possibly could— and therefore would surely have sought to underbid any such larger competitor— and there is no hint that the average price of 10.8253 cents it in fact bid was below-cost or excluded a profit. Because of these factors, my judgment is that plaintiff has failed to demonstrate that Triangle, in the hypothetical circumstances, would necessarily or probably *419have bid 11.3203 rather than 10.8253 for all of the 40 million gallons.
LARAMORE, Judge, joins in the foregoing concurring opinion of Judge Davis.
. Judge Nichols is plainly right, in my view, in rejecting the Government’s argument, based on ASPE. Deviation 68-11, that plaintiff should get less than the commissioner awarded.