New York State Court of Claims

New York State Court of Claims



Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
FOX & KOWALEWSKI, LLPBy: Laurence I. Fox, Esq.
Defendant’s attorney:
By: Cornelia Mogor, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 21, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the court’s decision after a two-day trial conducted on October 1 and 9, 2007 pertaining to a claim for breach of contract by August Bohl Contracting Co., Inc. (“Bohl” or “claimant”) against the State of New York (“defendant”). Claimant alleges defendant provided “incomplete, erroneous and ambiguous plans and specifications, [which] misrepresented the nature and scope of certain portions of the work” resulting in the performance by claimant’s subcontractor of uncompensated extra work.

The contract (D258280), executed on April 24, 2000, called for the reconstruction of 0.9 (nine-tenths) kilometers of North Pearl Street in Albany, New York (“Phase 2”) and included providing and installing bus shelters on the route for which Bohl hired Anvil Fence & Supply, Co., Inc. (“Anvil”) as its subcontractor. Bohl alleges it completed Phase 2 in full, but it sustained damages of $202,451.53 through Anvil because of the faulty specifications and plans. Claimant argues the project proposal incorporated into the contract had “formatting [which] required the contractor to look from place to place, and . . . the formatting itself was unclear.” This, claimant asserts, “is what caused the mistake in the bidding, the lack of clarity amount[ing] to an ambiguity in the contract documents” which should be read against defendant, the writer of the documents. Defendant counters that none of the information it made available during the bidding process was contradictory or ambiguous, and that Bohl simply made a mistake in its bid after it did not properly examine the contract documents.

A summary of the testimony insofar as it bears on the court’s findings follows.

Claimant’s Case
Testimony of Donald Quay

Mr. Quay, currently Bohl’s president, was responsible for project management and estimating at the time of Phase 2 and worked on his company’s Phase 2 bid. He described how defendant’s proposal book on this project consisted of 306 pages of contract plans (Ex. 4) and three volumes of specifications – one volume with two addenda of Department of Transportation’s (“DOT”) standard specifications applicable to all DOT projects (Ex. 5) and two volumes detailing conditions and specifications not found in the volume of standard specifications (Exs. 2A and 2B).

Bohl was the lowest bidder for the project at $9,475,498. It arrived at this figure by supplying unit prices for each of the items listed by quantity in the proposal book and running a total of the extensions as distinguished from a “lump sum bid” for the entire project.

Once Bohl was awarded the contract, it formally hired Anvil to erect the four required bus shelters, and Oneida Sales & Service Inc., a minority subcontractor, to provide the materials needed to construct them. DOT had approved the hiring of these subcontractors, but Bohl remained responsible for their bids, which it had incorporated into its overall bid.[1]

On August 23, 2000, Mr. Quay wrote to DOT[2] advising it of “an unfortunate situation” and seeking “an equitable adjustment for a disputed work situation regarding furnishing and installing the Bus Shelters.” Ex. 11. Bohl explained to DOT that on a previous Pearl Street project (D257450) which Bohl had handled (“Phase 1”) Anvil had installed two bus shelters supplied by Columbia Equipment Co. (“Columbia”). Additionally, without any involvement from Anvil, the local transit authority had purchased two more bus shelters directly from a company called StreetSmart Designs (“SSD”) for use on Phase 1. The item number for bus shelters on each of the two Pearl Street projects, Phase 1 and Phase 2, was “the exact same.” Anvil, unaware of DOT’s direct acquisition from SSD for Phase 1, had based its quote to Bohl for Phase 2 bus shelters only on the cost of the Columbia bus shelters it previously had installed in Phase 1, each averaging in cost about $80,000 less than SSD bus shelters.

Bohl had been aware that for Phase 2 defendant sought two of the SSD-type bus shelters and two of the Columbia-type bus shelters as identified in both volumes of the specifications (Exs. 2A and 2B). Mr. Quay saw a Special Note in DOT’s Phase 2 proposal which referenced two different types of shelters, a “conventional” type “you’d see on any city street,” and the larger “more elaborate” structure with “a lot of glass and curved walls. Just more features[,] . . . but I did not have any pricing from [SSD], so I had no idea the difference of magnitude in cost.” While Bohl recognized the SSD-type as more elaborate than the Columbia model, it did not call Anvil’s attention to these details. Bohl incorporated Anvil’s quote in its Phase 2 bid. Quay Trans. 40:18-41:23. The next two lowest bidders on Phase 2 also had sought quotes from Anvil for the bus shelter portion of the contract, and also had incorporated prices for only a Columbia-type bus shelter in their bids. Anvil’s estimator had come to Bohl’s office several times to review DOT’s Phase 2 proposal and freely copied pages from the various volumes of project specifications. The estimator later told Mr. Quay he never had seen the Special Note dealing with bus shelters in the Phase 2 proposal.

The bus shelters identified in the specifications for each of the two Pearl Street contracts carried the item number 01615.25XXYYM generally. Bohl understood the last 5 characters of the number as length and width dimensions in meters, a numbering pattern confirmed in the special notes in both proposals. Customarily, one item number encompasses all materials needed for installation of the item. Here, however, the special specification for item number 01615.25XXYYM referenced materials “[a]s specified in the proposal under note entitled ‘Bus Shelter.’” The Special Note in the Phase 2 proposal described four bus shelters by item numbers: 01615.251530, 01615.251561,[3] 01615.252455 and 01615.252476. See n 6 infra. Mr. Quay observed that the description of the first two bus shelters in this Special Note appeared to be identical to the description in the Special Note of the Phase 1 proposal for the bus shelters (the Columbia models), while the latter two item numbers were described in a separate paragraph of the Phase 2 Special Note “as manufactured by JWI StreetSmart Designs . . . or an approved equivalent” and had electric power requirements which the other shelters did not. According to Mr. Quay, the use of the Special Note was “a third step” in identifying the product, in addition to the item number and special specifications, “which is not a typical case,” he asserted. On cross-examination, he acknowledged special notes also addressed other items in the proposal without causing a problem for Bohl, particularly one Special Note which detailed “Victorian benches” (Ex. 2A, p. 150) including the manufacturer, model number, metal finish and wood species and finish, and another which detailed ornamental bollards (Ex. 2A, p. 153) including the manufacturer, model number, finish and provisions for vandal-resistant chains.[4] No problem was encountered with either of these items which also were subcontracted to Anvil.

Bohl pursued its dispute through DOT channels including an inconclusive hearing with the Commissioner on August 29, 2001. Its performance under the contract was formally accepted by DOT on March 6, 2002 (that is, all work was considered complete save for possible accounting issues), but the issue of the bus shelter costs remained open. On March 10, 2004, Bohl and Anvil agreed that because Bohl’s proposal price had been paid in full by DOT, and then Bohl had paid Anvil the amount Anvil had quoted for Columbia-type bus shelters (Anvil thus being made to absorb the difference for its actual cost of SSD-type shelters), Bohl would compensate Anvil out of any recovery it obtained from a legal action to be brought in Bohl’s name against DOT which would be prepared and presented by Anvil. Ex. 21. Oneida, the minority contractor, was paid in full.

Mr. Quay acknowledged that Section 102-04 of the Phase 2 proposal’s standard specifications is labeled “No Misunderstanding” which called to a prospective bidder’s attention Article 3 of the contract, where the bidder agreed it had examined the contract documents and fully informed itself about the character and conditions of the project, and “[p]articular attention . . . to special notes and special specifications in the proposal which may contain contract requirements at variance with standard plans and specifications” (Ex. 5).

Testimony of Richard Frederick

Mr. Frederick was the regional construction engineer in DOT’s Region 1 where the North Pearl Street project was located. He testified he had reviewed Bohl’s August 23, 2000 letter with the engineer-in-charge and with the construction supervisor, had discussed the issues it raised with DOT’s legal affairs bureau and had collected Phase 2-specific and general DOT documents relevant to the dispute (Ex. 17). This document package also included an unsigned background note he wrote and one handwritten page containing two brief lists labeled “On Them” and “On Us,” possibly written by the construction supervisor. Mr. Frederick’s one-page background memo in Ex. 17 states: “The [special] specification gives no clear indication that different types of shelters are required. In fact, the specification implies that the only difference between the various . . . items is the shelter dimensions.” It continues, under the heading “Did we contribute to the confusion?,” by stating the State’s Highway Design Manual (“HDM”) advises that special notes are “[n]ot intended to significantly [original emphasis] modify an existing specification.”[5] At trial, he explained this HDM guidance as

“a general instruction to designers who are preparing the contract documents that a special note should be used to provide additional information of value to the bidder in order to help them prepare their bid by pointing out specific things beyond what would be ordinarily included in the standard specification. . . . And that’s the purpose of the special note, to provide additional information beyond what is contained typically in the standard specification.”

“On Us” in the handwritten note includes “Multiple use of special spec item no. for dramatically different products is asking for trouble” and “Bid analysis showed these items as low bids – no further investigation.” Some DOT supervisory personnel were sympathetic to Bohl’s position as indicated by a personalized note to Mr. Quay from the engineer-in-charge: Ex. 14.[6]

Additionally, DOT reviewed the limited number of bids for “the general item number” for bus shelters over the past three years and found they ranged from $6,500 to $10,000 each. DOT’s computer analysis, however, compared its unit cost estimate with the bidder’s by item number and found Bohl had significantly underbid the two larger bus shelters ($15,000 bid vs. DOT’s $90,000 estimate, and $18,000 bid vs. DOT’s $110,000 estimate) while Bohl was 10% under DOT on one of the smaller bus shelters and 12% over on the other. Ex. 17.

Testimony of Kenneth Fischer

Mr. Fischer, vice-president of Anvil responsible for “oversee[ing] the day-to-day operation of the entire company,” testified that his company worked on various past DOT projects. Anvil learned of the Phase 2 bus shelter issue when Mr. Quay called in August 2000 asking about electric power needs. Anvil’s estimator responded it had not quoted that type of shelter to Bohl. Anvil then purchased SSD shelters (one each of 01615.252455 and 01615.252476) at a direct cost of $177,600 and nominally sold them to Oneida at the price Oneida originally quoted for the Columbia-type shelters. Oneida sold the SSD shelters to Bohl as if they were Columbia-type shelters and Bohl paid for them accordingly. Including labor, equipment rental and markup, Anvil’s total cost for the two bus shelters was $219,321.36 (Ex. 24) although it may have omitted some expenditures from its computation. Bohl paid Anvil $21,798.83, none of which was attributable to the purchase of the SSD bus shelters.

Defendant’s Case
Testimony of Richard Frederick

Mr. Frederick returned to the stand as defendant’s witness. He explained Phase 2 was a Case 1 project according to DOT’s Manual of Administrative Procedure (“MAP”),[7] characterized that way because the low bid came within ten percent of DOT’s total estimate for the project (even though the extended cost of individual items within the bid may have been higher or lower by more than that percentage). When items are particularly high or low on a Case 1 project they are reviewed for errors in quantity, not unit price, to ensure the requisite number of items sought by the proposal will be provided. DOT’s computer analysis of Bohl’s low bid on Phase 2 (Ex. E) showed it to be 99.89% of DOT’s construction cost estimate.

The respective $75,000 and $92,000 differences between the bid and estimate for the two larger bus shelters did not evoke further review by DOT, except to confirm the quantities.[8] Such discrepancies may result from a consciously “unbalanced bid” where the contractor expects to bill and collect for an inflated item (or items) early in the project to achieve a better cash flow, even as its total bid remains the same. According to MAP, a contract should not be awarded to an unbalanced bid, even where it is the lowest. DOT did not find the incidence of higher-and lower-than-estimate items in Bohl’s bid indicated it was an unbalanced bid.

Mr. Frederick acknowledged that the HDM advises that, where possible, manufacturers’ names should be avoided in special notes and plans in a proposal. He also explained that between the time a contract is let (public announcement of the low bidder) and when it is awarded, the low bidder is allowed to declare an honest error and withdraw its bid.

Testimony of Raymond Hessinger

Mr. Hessinger, a DOT project manager for both Pearl Street projects, wrote some of the specifications for the Phase 2 proposal. The standard specifications instructed a prospective bidder to refer to the special specifications and special notes in the proposal. DOT maintains an addenda catalogue, which is a computer printout of all special specifications it has written for its contracts. Where standard specifications are not adequate to identify a project need, DOT consults its addenda catalogue. When DOT was preparing the Phase 1 specifications for bus shelters, it found nothing in the addenda catalogue to meet the expressed needs of the local transit authority. Accordingly, DOT followed the HDM guidance on preparation of special specifications and submitted proposed special specifications for a bus shelter to its quality design assurance bureau (“DQAB”). DQAB gave general approval to the bus shelter special specifications which also allowed their use on any subsequent contract. This is how the special specifications for bus shelters came to be included in the Phase 2 proposal. The special specifications for bus shelters were identical in Phases 1 and 2; only the special notes and the plans distinguished the bus shelters between Phase 1 and Phase 2, and within Phase 2 by size, shape, finish and features. The special specifications generally referenced the graphic representation of the bus shelters in the plans as follows: “Contractor shall erect prefabricated bus shelters of the type specified and at the location shown on the Plans or as ordered by the Engineer. They shall be of a dimension as indicated on the plans with a front wind screen.” Ex. 2B, p. 341.[9]

The Special Note in the Phase 2 proposal (Ex. 2A at 156) described two types of bus shelters: items 01615.251530 and 01615.251561 “the Monumental Design as manufactured by Brasco International, Inc., [address omitted] or an approved equal” and items 01615.252455 and 01615.252476 “model SCS-620 as manufactured by JWI StreetSmart Designs, [address and telephone number omitted] or an approved equivalent.” Items 01615.251530 and 01615.251561 were the same as supplied and specified by the Special Note in Phase 1, although this was not stated here in Phase 2.1[0] Aside from the differing details on the two types of bus shelters contained in the Special Note, the address of the respective manufacturers was given along with SSD’s telephone number to permit further inquiry pertaining to the items sought.

The plans (schematic drawings) included in the Phase 2 proposal contained one page (p. 138) for two “standard bus shelters” of a rectangular outline and differing dimensions (identified individually as item numbers 01615.251530 and 01615.251561 and collectively as 01615.25XXYYM); and one page (p. 139) for “custom bus shelters” of an oblong outline and differing dimensions (identified as item numbers 01615.252455 and 01615.252476). Ex. 4. The custom bus shelters, but not the standard bus shelters, showed telephone and electrical power connections within their confines and a more extensive item list of required labor and materials (on the same page) than the item list for the standard bus shelters.

According to the special notes, the finish of the standard bus shelters was to be different from the finish of the custom bus shelters, that is, “Bronze Anodized” as opposed to “Wet Black.” Additional detail was provided for the custom bus shelters, such as 12.5 mm thick clear tempered glass, globe lighting and provision for future radiant infrared heaters. Only the standard bus shelters required a display panel for print advertisements.

Mr. Hessinger explained that other item numbers in the Phase 2 proposal, which had appeared in the Phase 1 proposal, also required special notes. He asserted that use of special notes is a longstanding DOT practice “to provide clarity and additional guidance.” The HDM, however, cautions against indiscriminate use of special notes which may lead to “a set of contract documents that is hard to follow and confusing”, he said. (Ex. 17).

The estimated cost of the SSD-type bus shelters which was fed into DOT’s computer analysis of Bohl’s bid came from the actual cost of the bus shelters supplied by SSD for DOT’s direct purchase in Phase 1. The substantial difference in cost between the standard and the custom bus shelters arose from the latter’s dome shape, finish and use of rounded glass, he explained.

The court’s findings of fact and conclusions of law follow.
* * *
“A familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms.” W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 (1990). “The[] failure to recite clearly the intention of the parties to a contract for the construction of public works may create liability against the State of New York if the true meaning of such a contract is so obscurely expressed that a bidder is likely to be misled and is misled thereby.” Rusciano & Son Corp. v State of New York, 201 Misc 690, 696 (Ct Cl 1952). “[A] theory of misrepresentation [is proven] by concealment or nondisclosure of a material fact.” Mount Vernon Contr. Corp. v State of New York, 56 AD2d 952, 953 (3d Dept 1977). “Absent proof of fraudulent misrepresentation or qualitative alteration of the work, the express terms of a unit price contract govern the parties’ rights and obligations.” D.A. Elia Constr. Corp. v New York State Thruway Auth., 289 AD2d 665, 666 (3d Dept 2001).
Applying these legal principles, the court finds claimant has failed to prove by a fair preponderance of the evidence that defendant breached the Phase 2 contract by providing plans and specifications which were ambiguous or unclear, or which misrepresented the nature and scope of the bus shelter work. The aggregate of information about bus shelters furnished by defendant to the Phase 2 bidders was presented in three separate places: the special specifications, the plans and the special notes, and bidders were expressly admonished in a standard specification labeled “No Misunderstanding” to pay “particular attention . . . to special notes and special specifications.” The special specifications for bus shelters, item number 01615.25XXYYM, referred to the plans for their type and location. The plans (Ex. 4) had one page which graphically represented what were called “standard bus shelters,” and which pictured a difference only in rectangular dimensions; and another page which graphically represented what were called “custom bus shelters,” and which pictured both a difference in oblong dimensions and different quantities of attachments, that is, telephone and electrical power equipment.
The Special Notes for each then added the necessary detail for a prospective bidder to address defendant’s particular needs for bus shelters. Ex. 2A, p. 156. The item numbers used in the plans for the standard bus shelters were described separately from the item numbers used for the custom ones. The model and manufacturer of each type was named. Model SCS-620 by SSD or its equivalent was expressly referenced in the Special Notes with detail about its finish and features. Contrary to Bohl’s argument, these successive proposal documents did provide a description to enhance the understanding of what DOT required for bus shelters in Phase 2. Mr. Frederick’s observation (Ex. 17) that the HDM cautions against using a special note to “significantly” modify a specification (which might be viewed as support for claimant’s argument that DOT did impose a confusing “third step” here) is substantially diluted by his trial testimony, supra, that special notes should be used to provide “additional information of value.” None of claimant’s witnesses asserted that the Special Note for Phase 2 bus shelters was, by industry standards or otherwise, a significant modification of the existing specifications as opposed to being simply a somewhat inconveniently located vehicle where additional information of value was provided. Additionally, the guidance of HDM § 21.4.1 for when a special specification should be written is of limited value here (n 5, supra). The Special Notes on bus shelters in Phase 2 spelled out finish, power and lighting requirements and alternate manufacturers. Because these subjects were not at all addressed in the bus shelter special specification created for Phase 1 and reused in Phase 2, the Special Notes cannot properly be read as having made an express modification, significant or otherwise, to the special specifications. Actually, the only observable significant difference between the Phase 1 and Phase 2 bus shelter criteria was in the special notes themselves, which obviously caught Bohl’s attention, but not Anvil’s.
It is evident that the special specifications and the plans did not provide all of the information needed here for a bidder to craft a meaningful bus shelter bid without attention to the special notes. The array of critical information over several volumes, which claimant argues misled it, has long been a characteristic of public works contracts, as observed in a 1952 Court of Claims decision: “Like all other contracts for public works which have come to our attention it was not an uncomplicated affair, being made up of the general specifications, of the special specifications, of mimeographed sheets and of printed sheets, of addenda and of deletions, of maps and drawings. With this formula, in all its ramifications, the claimant's officers were familiar through years of experience.” Rusciano & Son Corp., 201 Misc at 699.
Nothing in the contents of the Phase 2 proposal justified Bohl and/or its subcontractor in selectively reading it, as Anvil did here. Anvil had access to the entire proposal and copied portions of it as it chose. While the proposal documents do not cross-reference one another by volume and page number, the standard specifications quoted supra call to the prospective bidder’s “particular attention” the special specifications and special notes. The plans name and portray two different types of bus shelters; the special notes give precise details about the two different types of bus shelters. Mr. Quay readily admitted that he observed the differences between the standard and custom bus shelters from his own reading of the special notes. Notably, at least two other items, the ornamental bollards and the Victorian benches, were identified with particularity by special notes within a few pages of the special notes on bus shelters. These also were bid by Anvil to Bohl, then sold to DOT and implemented successfully. This is a clear indication that DOT’s presentation of information about bus shelters was conventional and within its practice. It was only Bohl’s and/or Anvil’s inattention to the detail pertaining to bus shelters which distinguished this information from other items in the Phase 2 contract.
Bohl’s frequent references at trial and in its post-trial submission to its experience with the Columbia bus shelters it supplied in Phase 1 serve to further undermine its argument regarding Phase 2. Although Mr. Quay testified the use of a special note on bus shelters in Phase 2, the “third step . . . is not a typical case,” the details for the Phase 1 bus shelters were found only in the special notes of that proposal. Bohl could not possibly have complied with its Phase 1 contractual obligations, as it did, without having consulted the special notes there – that is, taking the third step. Bohl thus demonstrated no problem with DOT’s choice of format and method of presentation in all of Phase 1, as well as in other aspects of Phase 2, except for the two custom bus shelters. As the successful bidder of Phase 1, it simply did not use the same care in preparing its Phase 2 bus shelter bid even though Mr. Quay acknowledged he knew the bus shelter requirement in Phase 2 was not the same as it had been in Phase 1.1[1] Bohl has not met its burden of proof that Anvil’s evident error in ignoring the special note on bus shelters in furnishing its Phase 2 subcontractor’s bid to Bohl (and to at least two other contractors) was caused by improper formatting or lack of clarity in defendant’s proposal itself.
All motions and objections upon which the court previously reserved or which remain undecided are hereby denied.
The claim is hereby dismissed in its entirety. The Clerk of the Court of Claims is directed to enter judgment accordingly.
April 21, 2008
New York, New York
Judge of the Court of Claims

[1].Bohl did not necessarily repeat a subcontractor’s quote for labor and/or materials exactly in preparing its own bid because of the likely need for it to do other work associated with the subcontracted portion of a project.
[2].Mr. Quay’s testimony and the letter mirror each other.
[3].In some documents, this item number also appeared as 01615.251546, incorporating the actual dimensions of this bus shelter as do the other three item numbers.
[4].Exhibit 2A, the first of two volumes of project-specific details, apparently devotes the last 90 of its 238 pages to 27 special notes, 2 special conditions and 1 titled “Special Conditions Special Notes” of varying length. Exhibit 2B, the second volume of project-specific details, begins with a 32-page Special Note on “Archaeology” followed by 7 pages of “Supplemental Landscape Development Specifications” and then a 1-page Special Note listing 12 items of work to be considered as “Specialty Items.” The next 130 pages appear to be special specifications on various items including bus shelters.
[5].Exhibit 17 includes a copy of HDM § 21.4.1 which states: “Special notes which significantly modify existing specifications should be avoided. A special specification should be written when modification of a standard or existing special specification is required.”
[6].DOT’s comparison of the three lowest bids on Phase 2 shows “consistent prices”among the three bidders for the two smaller bus shelters and the two larger ones. Ex. 17. Four bus shelters were bid on: item number 01615.251530 (1.5 meters x 3.0 meters) bids ranging from $5,400 to $7,500; item number 01615.251546 (1.5 meters x 4.6 meters) from $9,000 to $10,000 (elsewhere listed as 01615.251561); item number 01615.252455 (2.4 meters x 5.5 meters) from $12,000 to $15,000; and item number 01615.252476 (2.4 meters x 7.6 meters) from $15,000 to $18,000. Bohl’s bid was lowest on the smaller two and highest on the larger two. Mr. Frederick was not asked whether this particular discrepancy was discussed with Bohl before or after it was awarded the contract. He returned to the stand as defendant’s witness and added to his testimony about the computer analysis, see infra.
[7].Relevant MAP excerpts are found in Ex. 17.
[8].The computer printout flagged items greater than 125% of DOT’s estimate or equal to or lower than 25% of estimate for a verification of quantities bid pursuant to MAP. The two larger bus shelters each were bid at 16% of DOT’s estimate. Approximately 80 other items were flagged as outside the estimate range, high or low. Only 748 sq m of turf were more underbid by Bohl, 13% of DOT’s estimate ($7,106 difference).
[9].Special notes were found in the first volume of the non-standard specifications of the proposal, Ex. 2A; special specifications were in the second volume, Ex. 2B.
1[0].The Special Note in Phase 1 named Columbia Equipment Company as one of the possible manufacturers. Ex. 11.
[1]1.Claimant also argues the extent of the low bids on the two custom bus shelters makes enforcement of the contract price “unconscionable.” However, Bohl offers no legal or practical reason why DOT should have applied special scrutiny to these 2 of approximately 82 out-of-range item numbers contained in a bid which overall was 99.89% of DOT’s own estimate and where Bohl’s two nearest competitors bid even less for the custom bus shelters.