concurring.
Interpreting Chris Berg’s bid involved more than a mere mechanical correction of errors. By submitting a bid which forced DOT/PF to call it for an explanation, Chris Berg arguably gained an advantage over other bidders. If DOT/PF had had a defined policy against accepting bids with mistakes as serious as Chris Berg’s, I would conclude that this policy and the decisions based on it were valid. But this case presents the circumstance of an agency which, knowing full well what a bid meant and that accepting the bid would save the taxpayers money, made a questionable, post-hoc policy decision to reject the bid. Because this decision was fundamentally unfair to Chris Berg, I agree with the result the Court reaches.
When he opened the bids, Mr. Rhode discovered a blank line in Chris Berg’s bid for Additive Alternate No. 2 and several other entries which did not seem to correspond to the bid specifications. Summarized, the relevant portions of the bid read as follows:
ITEM # QUANTITY ITEM NAME UNIT PRICE TOTAL
20.07 5,628 (Backfill) 10.00 56,280
20.09 900 (Type IV Backfill) 4.35 3,915
20.11 8,253 (Bedding Material) 3.00 24,759
20.13 900 (Surplus Material) 2.00 1,800
60.02a 6,433 (8" Water Main) 30.00 192,990
60.02b 1,820 (16" Water Main) 48.00 87,360
60.03a 18 (8" Valve)
60.03b 4 (16" Valve) 860.00 15,480
60.04a 14 (Single Hydrant) 2,100.00 8,400
60.04b 3 (Double Hydrant) 3,200.00 44,800
550C 2,750 (Polymeric Fabric) 1.10 3,025
$449,759 TOTAL ADDITIVE ALTERNATE No. 2:
The nature of Chris Berg’s error seems obvious. The figures which should have been entered on line 60.03a were in fact entered on line 60.03b. Numbers intended for 60.03b appear on 60.04a. Entries on line 60.04b correspond to those intended for 60.04a. The bid for item 60.04b is missing. If it is assumed that the total for Additive Alternate No. 2 was correct, one needs no more than what the Court correctly calls “elementary mathematics” to determine the missing figures.
Yet Rhode could not and did not rely on this assumption. After he decided what the errors most probably were, he believed it necessary to call Chris Berg in order to determine how Chris Berg had intended to bid. A stipulation between the parties establishes that Rhode made two phone calls. His second call, to Chris Berg’s Seattle office, confirmed his interpretation of the erroneous figures and allowed him to assure Chris Berg that its bid would be accepted. If Rhode had known from the four corners of the bid what the bid meant, he would not have asked for the “spread sheets” used to prepare the bid and would not have asked a Chris Berg employee to read him the figures which Chris Berg had intended to submit.
The Court apparently assumes that Chris Berg would not have been able to withdraw its bid in response to Rhode’s second phone call. If the total figure which Chris Berg had intended to bid had in fact been different from the figure its bid contained, I think the mistake would have been material, giving Chris Berg an opportunity to withdraw. When Rhode opened the bid, it was impossible to be sure that this total figure was correct. His phone call thus gave Chris Berg an option unavailable to more meticulous bidders. Under the circumstances DOT/PF might initially have *96been justified in rejecting Chris Berg’s bid as non-responsive.
On the other hand, once Rhode had confirmed what the bid in fact meant, Chris Berg no longer had this option. At this point the State no longer had a rational basis for declaring the bid non-responsive. One can argue on policy grounds that an agency should not call bidders to confirm possible interpretations of their bids; this procedure gives the agency and a favored bidder a chance to amend the favored bidder’s bid and secure awards which might otherwise have gone to another bidder. But, as DOT/PF’s own bid specifications show, the agency has given itself discretion to make the kind of inquiry which Rhode made. If it had wanted to put limits on its discretion, it should have done so before Rhode made his calls. Even if a policy against securing post-hoc information from bidders were legally defensible, a question I don’t think it necessary to decide, DOT/PF’s belated decision to adopt this policy, if indeed this is what it did, was improper. Thus, I agree with the majority that DOT/PF should not have rejected Chris Berg’s bid.