Far West Reforesters, Inc. v. State , 61 Or. App. 138 ( 1982 )

THORNTON, J.,

dissenting.

The majority opinion finds the contract in issue to be ambiguous and remands the case for trial. I respectfully disagree. Contrary to the majority, in my view the contract is unambiguous, there are no genuine issues of material fact and the trial court’s order should be affirmed.

The contract consists of an “Invitation to Bid” to furnish all equipment, materials and labor to perform “(1) Tree Planting,” “(2) Tree Planting and Tubing” services for the Department of Forestry. The “Tree Planting” was to be done on an “estimated” 1285 acres. The “Tree Planting and Tubing” services were to be performed on an estimated 259 acres. Immediately following the bid items are the following two sentences:

“Additional units on this contract require planting or planting and tubing by CONTRACTOR. Bidders are required to submit separate bids for planting and planting and tubing as basis for payment on additional units.”

The majority opinion concludes that an ambiguity is created because of the uncertainty as to the total number of acres to be planted and/or tubed, and that this discrepancy entitles a bidder to ignore half of the description of item 2, “Planting and Tubing,” to read “Tubing” and totally ignore the specific instructions to submit separate unit bids.

To be sure there are several discrepancies in the bid document. For example, Section I, paragraph 1.01, lists a total of “23 units” to be bid on. A close inspection of that list, however, reveals that units numbered 18 and 19 have been omitted from the list for some reason. Next, Section I, paragraph 1.01 shows as a total an estimated 1285 acres to be bid on, of which 259 acres were to be “tubed and planted,” whereas Section 1.04 shows a total of “1544 acres of planting which includes 259 acres of tubing in 3 units as described in Section I, paragraph 1.01 and 1.01 A.” Again, the number of acres to be “planted and tubed” are shown as totaling 274 acres in Section 1, paragraph 1.01, but are shown as totaling 259 acres both in Section 1.10A and in Item 2 in the invitation to bid at the beginning of the bid document.

The majority regards these discrepancies as creating an unacceptable ambiguity requiring a trial and a factual determination as to the intent of the parties. For the reasons now explained, I cannot agree. In my view, the invitation to bid already unequivocally called for a separate unit price bid for “(1) Tree Planting,” and “(2) Tree Planting and Tubing.” A reading of the entire contract shows that the number of actual acres was not irrevocably fixed.

Plaintiff claims that in fact he did just “assume” that the words “Planting and” in item 2 were a misprint. To be consistent with that position, plaintiff would also have to assume that the two sentences quoted earlier following item 2 were also misprints. I submit that a reasonable bidder would not just “assume” that the operative language on how to submit a bid on an “Invitation to Bid” is a misprint. Furthermore, no reasonable person viewing the parties’ objective manifestations of intent, would conclude that the parties intended to read the operative provisions out of the contract.

It is, of course, axiomatic that a court is required to construe a contract as a whole. The discrepancy noted by plaintiff would not lead any reasonable bidder to conclude that he should submit a bid for “Tubing” only. There are several references to the number of acres which may be planted and tubed under the contract, and when read together it is clear that the actual number of acres which eventually may be worked was not intended to be irrevocably predetermined and fixed. The bidding instructions explicitly state that additional acres may become available and require separate unit bids for “planting” and “planting and tubing” to provide a basis for payment. Additionally, the item description column heading for the number of acres is “Estimated Qty.” Finally, the specifications themselves list and describe 251 additional acres which may become available for planting. When these provisions are construed as a whole, it is clear that the total number of acres to be worked could not be determined from the contract and that any numbers mentioned were not intended to be final.

Taking the contract as a whole, it is manifest that the bidders were required to make separate unit bids for “planting” and “planting and tubing.” Regardless of any claimed discrepancy concerning the total number of acres, there is no ambiguity with regard to the basis of the bid. Likewise, there is no basis for plaintiffs unilateral change in the basis of the bid. If plaintiff had any question as to the basis for the bid, it easily could have indicated the actual basis of its bid.

In the affidavit of Michael Cox, President of plaintiff corporation, filed in support of plaintiffs motion for summary judgment, and in its brief, plaintiff recites its subjective mental processes during the preparation of its bid. Attached to the affidavit as an exhibit is a post-contract letter dated January 16, 1980, from Mr. Cox to the Department of Forestry. Similarly, in its brief, plaintiff contends:

“Reading Bid Item 1 and 2 of the contract, together with attached specifications, Section 1.01 ‘Planting Area Description’ and Section 1.01A ‘Tubing Area Description’, plaintiff concluded that the words ‘Planting and’ in bid item 2 were a misprint.”

The question is not what plaintiff and its officers concluded. Their subjective interpretation of the contract cannot create an ambiguity. Consideration of subjective intent is wholly improper. The purpose of the objective theory of contracts is to allow parties to rely on the written expression of intent and not one or the other party’s later assertions of undisclosed subjective intent.

While there are several discrepancies in the bid document and contract, the basic terms of the invitation to bid in my view are not ambiguous within the meaning of that term as interpreted in similar cases. See Springer v. Powder Tool Corp., 220 Or 102, 348 P2d 1112 (1962); Harty v. Bye, 258 Or 398, 483 P2d 458 (1971); Restatement, Contracts § 230; 4 Williston § 607.

A reading of this record leaves one with the impression that what happened here was that plaintiff simply misbid on the contract, relying not on the terms of the bid document but on what its officers thought was the prevailing practice of the Department of Forestry in earlier jobs plaintiff had bid on. I see no legal basis for charging the state for plaintiffs own error.