(concurring in part, dissenting in part).
I agree with the court that the plaintiff is entitled to relief. However, in determining quantum, with all respect I would make the ultimate finding that but for the set-aside the price defendant would have had to pay would have been not under 11.32 cents per gallon, after adjustment.
Defendant’s officers treated as part of the IFB (Finding 2) example B of the “matched price method” approved as part of ASPR Deviation 68-11, which example read as follows:
1. Total Quantity tobe Procured Non-Set-Aside Portion Set-Aside Portion 1,000 500 500
2. Bids Received Large Business Bids Bidder Quantity Bid A 500 $.09 B 500 .092 Small Business Bids Bidder Quantity Bid 1 500 $.0925 2 500 .0950
3. Award of Non-Set-Aside Bidder Quantity Price A 500 $.09
4. Prices Which Must be Matched 500 at $.092 (Higher than under ASPR procedure)
I construe it as not applicable to the facts here found because the example evidently presupposes that the identity of bidders A and B are not the same. Nevertheless, defendant treated Triangle’s lower bid for the set-aside portion as if it were someone else’s higher bid for the non-set-aside portion.
I see in Commissioner White’s findings in their totality clear evidence that no one would have bid for any part of the 40.000. 000 gallons for Barksdale AFB any price under 11.32, which Triangle quoted for the non-set-aside portion, if defendant had not made a set-aside. This makes 11.32 the standard plaintiff must meet. The court’s theory, as I understand it, is that plaintiff might have refused any award below its bid of 11.45 and in that event Triangle would have obliged itself to deliver the entire 40.000. 000 gallons at an average price of 10.8253. Triangle’s obvious purpose was to drive the small businesses out of competition by squeezing out their profit. In the absence of a set-aside, it would have had no motive to do this.
The set-aside had already been made as the IFB itself stated, and no price so obviously quoted in reaction to the set-aside can be deemed to indicate what the quotation would have been in absence of a set-aside. Even if the set-aside portion had ultimately gone to Triangle at its 10.3+ bid, this would not have been the situation “had there been no set-aside.” That no award of the set-aside portion could be made to a small business, because of Triangle’s tactics, would not have undone the fact that a portion of the procurement had once been set-aside. Thus I do not deem that Triangle’s reduced price for the set-aside portion is for any kind of consideration in deter*420mining what the price would have been in absence of set-aside, not by averaging or weighting any more than by using it as the sole determinant.
The court is, I think, rewriting the words “had there been no set-aside” to make them read “had there been no award to a small-business concern pursuant to a set-aside.”