East Porter County School Corporation v. Gough, Inc., and Travelers Casualty and Surety Company of America

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
ANNE M. COATSOLONIA KEVIN E. STEELE
Woodward, Buls, Blaskovich & King, LLP Burke Costanza & Carberry LLP
Merrillville, Indiana Valparaiso, Indiana
FILED
Mar 29 2012, 9:18 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
EAST PORTER COUNTY SCHOOL )
CORPORATION, )
)
Appellant, )
)
vs. ) No. 64A04-1109-PL-471
)
GOUGH, INC., )
)
Appellee, )
)
and )
)
TRAVELERS CASUALTY AND )
SURETY COMPANY OF AMERICA, )
)
Appellee. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William E. Alexa, Judge
Cause No. 64D02-0806-PL-5882
March 29, 2012
OPINION - FOR PUBLICATION
BROWN, Judge
East Porter County School Corporation (the “School”) appeals the trial court‟s
order entering summary judgment in favor of Gough, Inc. (“Gough”) and Travelers
Casualty Surety Company of America (“Travelers”) and against the School. The School
raises two issues, which we consolidate and restate as whether the court erred in entering
summary judgment in favor of Gough and Travelers and against the School. We affirm.
The relevant facts follow.1 The School solicited bids for certain additions and
renovations in several categories.2 The School provided notice to bidders that bids would
be received until February 5, 2008, at 2:00 p.m. and that the bids would be publicly
opened at 2:00 p.m. Gough submitted a bid to complete certain construction work with
respect to bid category #1 (general trades) in the base bid amount of $2,997,000 and a bid
bond issued by Travelers in the amount of ten percent of the bid amount. After
1
The appellant‟s appendix filed by the School contains various documents, affidavits, and a
portion of a deposition without indication of whether this evidence was designated to the trial court in
connection with the parties‟ motions for summary judgment. We remind the parties that when reviewing
summary judgment rulings, we must review only the evidence properly designated to the trial court. See
Tony v. Elkhart Cnty., 918 N.E.2d 363, 365 n.1 (Ind. Ct. App. 2009). To assist this review, parties should
include in their appendices the designations of evidence that were filed with the trial court. Id. (citing
Filip v. Block, 879 N.E.2d 1076, 1081 (Ind. 2008) (noting Indiana Trial Rule 56(C) does not specify how
or where evidence is to be designated), reh‟g denied). Because the parties do not claim that undesignated
material has been included in the appendix, however, we will presume for purposes of this appeal that all
of the material in the appendix was properly designated.
2
The record includes “Instructions to Bidders” which contained the following provisions:
1.12 Modification or Withdrawal of Bid Proposal
A. A Bidder may withdraw his bid prior to the scheduled time for
the receipt of bids, without forfeiture of bid security. . . .
B. Bids may be modified prior to bid opening time.
C. After commencement of the opening of bids, no Bidder may
recall his bid.
Appellant‟s Appendix at 67-68.
2
submitting the bid, Gough called the School shortly after 2:00 p.m.3 to say that its bid
was based upon a mistake and to ask that it be withdrawn.
On or about March 10, 2008, Gough was awarded the contract by the School for
bid category #1. On March 17, 2008, Gough‟s president, Joseph Gent, sent a letter to
The Skillman Corporation, a representative of the School, stating that “[t]he contract is
made out in an amount that is based upon an incorrect base-bid figure,” that “[t]his
incorrect bid figure is the result of an in advertent [sic] clerical error that occurred at bid
time,” and that “Gough will not accept this contract; Gough informed the [School] in a
timely manner that a mistake was made that resulted in an incorrect bid figure; prior to
the bid being opened Gough made every effort to contact . . . the [School] to withdraw
the bid immediately and to inform them that the bid amount was a mistake.” Appellant‟s
Appendix at 93-94. According to the letter, Gough returned the contract for the
construction work to the School unsigned.
On March 24, 2008, the School approved the bid award for the project to the
second lowest bidder, contingent upon Gough not responding by 12:00 p.m. on March
25, 2008, to agree to honor its bid, and the hiring of a law office to represent the School
in the matter. The School submitted a claim on the bid bond to Travelers on or about
April 24, 2008, and Travelers denied the claim on or about July 17, 2008.
On March 25, 2008, Gough filed a complaint for declaratory judgment against the
3
In his affidavit, the president of Gough, Joseph Gent, stated that “we all thought that we made
the calls . . . right before 2:00. But, yes, the reality of it is, after having the phone records, the calls were
made shortly after 2:00.” Appellant‟s Appendix at 114.
3
School seeking that its bid be rescinded and its bid bond released.4 In its complaint,
Gough cites to Bd. of Sch. Commr‟s of City of Indianapolis v. Bender, 36 Ind. App. 164,
72 N.E. 154 (1904), and states that “a contractor may be excused from a mistaken bid.”
Appellant‟s Appendix at 12. The School filed a counterclaim alleging that it had
awarded the bid to Gough, that Gough returned the contract unsigned and refused to
perform the work for its bid amount, that Gough was obligated to execute the contract to
perform the work, that Gough‟s failure to execute and perform the contract was a breach
of its obligations, and that the School sustained damages as a consequence of Gough‟s
breach. The School also filed a third-party complaint against Travelers alleging that the
School had submitted a claim to Travelers requesting payment of the bid bond, that
Travelers denied the School‟s claim, that the School sustained damages as a consequence
of Travelers‟ breach of contract, and that Travelers‟ denial of the School‟s claim
constitutes bad faith. Gough filed a reply and affirmative defenses to counterclaim, and
Travelers filed an answer and affirmative defenses to the third-party complaint in
September 2008.
On August 20, 2010, the School filed a motion for summary judgment,
memorandum of law, and designation of evidence. On December 20, 2010, Gough and
Travelers filed a motion in opposition to the School‟s motion for summary judgment and
a cross motion for summary judgment, memorandum in opposition, and affidavits.5 On
4
Gough‟s complaint was initially filed in Lake County but the case was later transferred to Porter
County.
5
The summary judgment pleadings filed with the trial court by the parties are not included in the
record.
4
March 22, 2011, the court held a hearing at which the parties presented arguments on the
summary judgment motions, and on August 12, 2011, the court issued an order citing to
Bd. of Sch. Commr‟s of City of Indianapolis v. Bender, 36 Ind. App. 164, 72 N.E. 154(1904), trans. denied, and entering summary judgment in favor of Gough and Travelers
and against the School.
The issue is whether the trial court erred in entering summary judgment in favor of
Gough and Travelers and against the School. Summary judgment is appropriate only
where there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind.
Dep‟t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable
inferences drawn from those facts are construed in favor of the nonmovant. Mangold,
756 N.E.2d at 973. Our review of a summary judgment motion is limited to those
materials designated to the trial court. Id. We must carefully review a decision on
summary judgment to ensure that a party was not improperly denied its day in court. Id.
at 974. Any doubt as to the existence of an issue of material fact, or an inference to be
drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum
Grp., Inc., 575 N.E.2d 630, 633 (Ind. 1991).
A party moving for summary judgment bears the initial burden of showing no
genuine issue of material fact and the appropriateness of judgment as a matter of law.
Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005). If the
movant fails to make this prima facie showing, then summary judgment is precluded
regardless of whether the non-movant designates facts and evidence in response to the
5
movant‟s motion. Id. In reviewing a trial court‟s ruling on a motion for summary
judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56
materials. Catt v. Bd. of Commr‟s of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).
The fact that the parties make cross motions for summary judgment does not alter
our standard of review. Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285,
291 (Ind. Ct. App. 1997), trans. denied. Instead, we must consider each motion
separately to determine whether the moving party is entitled to judgment as a matter of
law. Id. The entry of specific findings and conclusions does not alter the nature of a
summary judgment which is a judgment entered when there are no genuine issues of
material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the
summary judgment context, we are not bound by the trial court‟s specific findings of fact
and conclusions of law. Id. They merely aid our review by providing us with a statement
of reasons for the trial court‟s actions. Id.The School contends that “Indiana law dictates that Gough, as the lowest bidder
on a public works project, cannot rescind its bid.” Appellant‟s Brief at 11. The School
cites to Bender, 36 Ind. App. 164, 72 N.E. 154, and argues that the opinion is not
applicable due to its age, the fact that it pre-dated the current public bidding statute, “the
relief offered is equitable,” and that the case is distinguishable because it concerned a
mathematical error and not “procrastination and carelessness.” Appellant‟s Brief at 12.
The School asserts that “[t]he court must decide who should pay for the mistake: the
bidder that made the error or the taxpayers.” Id. at 13. The School further argues that
persuasive law from other jurisdictions and public policy dictate that Gough cannot
6
rescind its bid. The School also argues that the court erred in failing to apply the bid
bond statute and “instead, misapplied equity.” Id. at 19.
Gough and Travelers maintain that Indiana law permits the withdrawal of a bid
based upon the bidder‟s error and notes that this court cited to Bender with approval in
Mid-States Gen. and Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425(Ind. Ct. App. 2004), and that public bidding statutes have existed in Indiana since “the
late 1800‟s.” Appellees‟ Brief at 6. Gough and Travelers further argue that “[c]ontrary
to the contention of [the School], a mathematical error is what occurred in this case,” that
“Gough did not misinterpret part of the specifications for the project; rather it made a
mistake in the final calculation of the bid total,” that “Gough made a mistake in the
presentation of its bid to [the School],” and that “[d]uring the rush to complete the bid,
Gough misreported the bid amount to its representative at the bid opening.” Id. at 6-7.
Gough and Travelers further argue that law from other jurisdictions supports their
position and that public policy does not dictate a different result. Gough and Travelers
also argue that the court did not err in finding that Travelers cannot be bound if its
principal Gough is released from its bid.
In its reply brief, the School argues that the court‟s reliance on Bender and grant of
equitable relief was in error, that the public bidding statutes at the time of Bender did not
dictate detailed procedures including the mandatory bid bond provision, that the
instructions to bidders here provided unambiguous language regarding the withdrawal of
bids and support forfeiture of the bid bond, and that this court must rectify the trial
court‟s holding regarding the bid security.
7
In Mid-States Gen., this court summarized the facts of Bender:
In Bender, the school board advertised for bids for an addition to a
school building. [36 Ind. App.] at 165, 72 N.E. at 155. Bender obtained
the specifications for the work and was informed that his bid had to be
submitted by 4:00 p.m. on February 25, 1902. Id. at 166, 72 N.E. at 155.
Two subcontractors did not provide Bender with their estimates until 3:30
p.m., and in hastily finalizing his bid, Bender miscalculated. Id. at 167, 72
N.E. at 155. Bender bid $11,337 to perform the work, but he would have
bid $15,750 if he had made an accurate calculation. Id. at 168, 72 N.E. at
156. After submitting his bid, Bender learned that he had been
misinformed and bids were not required to be submitted until 8:00 p.m. Id.
at 168, 72 N.E. at 155. Bender‟s bid was the lowest, and the school board
accepted the bid. Id. at 168-169, 72 N.E. at 155. The next day, Bender
realized his miscalculation and informed the school board that he could not
enter into a contract for his bid amount. Id. at 169, 72 N.E. at 155.
On appeal, this court held:
There is one thing clear, and that is that in his own mind and
judgment [Bender] did not agree to enter into a contract to
furnish the material and do the work according to the plans
and specifications furnished him by the architect, for the
amount designated by his bid. According to the facts
pleaded, [Bender] was not negligent and careless in
submitting his bid as he did.
Id. at 172, 72 N.E. at 157. This court noted that Bender‟s error appeared to
be an excusable mistake and added that:
“But where the mistake is of so fundamental a character that
the minds of the parties have never in fact met, or where an
unconscionable advantage has been gained by mere mistakes
or misapprehension, and there was no gross negligence on the
part of the plaintiff, either in falling into the error or in not
sooner making redress, and no intervening rights have
accrued, and the parties may still be placed in statu (sic) quo,
equity will interfere, in its discretion, in order to prevent
intolerable injustice.” In line with the above it is declared to
be the rule “that no contract of sale is reciprocally obligatory
upon parties thereto, if it be founded upon an injurious
mistake of a material fact forming the basis of the contract.”
8
Id. at 173, 72 N.E. at 157 (internal citations omitted). Consequently, this
court held that it was “evident that the minds of the parties never met” and
that the school board “acquired no rights under [Bender‟s] erroneous or
mistaken bid.” Id. at 173-174, 72 N.E. 154, 34 Ind. App. 420, 72 N.E. 158.
811 N.E.2d at 434.
In Mid-States Gen., we found Bender distinguishable because, unlike Bender,
Mid-States did not argue that it miscalculated in preparing its bid, and that thus the
reasoning behind Bender was inapplicable. Id. Rather, Mid-States argued that the bid
documents were ambiguous and that it reasonably interpreted the bid documents, and we
concluded that the documents were not ambiguous and that Mid-States‟ interpretation
was not reasonable. Id. This court also found that equity did not intervene to rescind
Mid-States‟ bid and bid bond because Mid-States did not argue and the designated
evidence did not suggest that mutual mistake was applicable and Mid-States did not
allege fraud or inequitable conduct on the part of the Town. Id. at 435. This court further
noted the treatment of bid mistakes in other jurisdictions and stated that the general rule
is that “[b]id errors that result from clear cut clerical or arithmetic errors6 or a misreading
of the specifications are the kind of excusable mistake that allows relief.” Id. (citing
Liebherr Crane Corp. v. United States, 810 F.2d 1153, 1157 (Fed. Cir. 1987)). “Mistakes
of judgment, on the other hand, do not qualify for such relief.” Id. This court further
stated that generally the misinterpretation of an unambiguous contract has been held to be
a mistake of judgment. Id.6
See also Harrison, David B., Right of Bidder for State or Municipal Contract to
Rescind Bid on Ground that Bid was Based upon His Own Mistake or that of His
Employee, 2 A.L.R.4th 991 (discussing the right to rescind a bid for a mistake of fact,
such as a mathematical error).
9
Here, the School provided notice to bidders that bids would be received until
February 5, 2008, at 2:00 p.m. and that the bids would be publicly opened at 2:00 p.m. In
his affidavit, Joseph Gent, Gough‟s president, stated that “Gough was working on its bid
numbers in the hours immediately preceding the bid opening,” that “[b]ids were solicited
from necessary subcontractors and material suppliers,” that “Gough prepared an in-house
price for work categories performed by its employees and equipment,” that “[a] bid
summary sheet was prepared and the best bids in each category were entered into the
sheet in the appropriate row,” that “[t]his summary was continuously updated as bids
were received,” that “[s]uch bids were being received right up to the bid deadline,” and
that “[a]s is often the case, it was a very chaotic time at Gough.” Appellant‟s Appendix
at 97. Gent further stated that, at approximately 1:30 p.m., he and two other individuals,
Buzz Gough and Ken Akey, met “to decide what Gough‟s bid would be for the project,”
that “[p]rior to this meeting, a Gough employee, Ross Martin, was sent to the bid opening
location,” and that “[a]s is Gough‟s normal procedure, the final bid number would be
telephoned to [Martin] as close to the bid time as possible.” Id. at 97-98.
Gent further stated in his affidavit that the final total in the summary sheet
prepared by Gough was $3,331,763.00, and that, after the individuals at the meeting
agreed that $30,000.00 “could be cut from the bid” due to a previous discussion with the
excavation estimator, “the mental adjustment to the price was made, leaving the bid at
$3,301,763.00.” Id. at 98. Gent stated that the individuals “then discussed the bid
amount being $3,300,000.00 as a threshold number that we would like to get below for
psychological reasons,” that Gough “was under extreme pressure to complete the
10
calculation of its bid amount immediately,” that “[t]he discussion continued at the
meeting as to getting the bid below $3,300,000.00.” Id. at 98-99. Gent “stated that
Gough needed to be at „299,‟” that he “made no reference to thousands, just used the
number „299,‟” that the “comment was made at the meeting that $1,000.00 should be cut
off to get below the threshold,” and that at that time he said “let‟s make the bid „2998.‟”
Id. at 99. Gent stated that Akey “then wrote down the bid as $2,998,000.00,” that he said
“Gough should knock another $100.00 off the bid for good measure,” and that Akey
“wrote down an adjusted bid of $2,997,900.00.” Id. Akey then “immediately gave []
Martin the figure of $2,997,900.00 as Gough‟s bid.” Id. Gent stated that “[t]his entire
process occurred within a very short time frame, probably less than two minutes” and that
“[t]he discussion took place very quickly with all of the calculations being performed
mentally.” Id.
Gent also stated that Martin wrote down the bid number on the bid submission
package and submitted it to the School‟s representative at 1:53 p.m. and that
“[m]eanwhile, after [Buzz] Gough and [Gent] had left his office, [] Akey was reviewing
the bid numbers” and “realized that too much had been cut off the bid and immediately
attempted to contact [] Martin to pull the bid.” Id. Akey called Gent and Buzz Gough
back into the room and explained what had happened, they realized “that this would
result in over a $200,000 loss on the project,” and “[t]hereafter, Gough immediately
started trying to contact [] Martin, the [School] and its representative, Skillman
Corporation, to inform them that Gough‟s bid was based upon a serious mistake and the
bid should be withdrawn because Gough could not complete the project for the quoted
11
price.” Id. at 100. Martin stepped out of the bid meeting and called the Gough office,
and a Gough employee “told [] Martin to tell Joe Sparks of Skillman to call Ken Akey in
Gough‟s office right away.” Id. Upon conclusion of the bid opening meeting, Martin
approached Sparks and “asked him to call Gough‟s office immediately” and “[i]n the
meantime, Gough was attempting to contact the [School] and Skillman” but
“[u]nfortunately, no one answered at either [of] these entities.” Id. Gent stated that
“[u]pon being contacted by [the School‟s] representative, Gough informed it of the error
and asked that its bid be withdrawn” and “[i]nstead, [the School] and its representative
tried to force Gough to enter into a contract.” Id.
Gent‟s deposition testimony regarding what had occurred at the meeting prior to
the submission of Gough‟s bid and how he, Buzz Gough, and Akey arrived at the bid
amount later communicated to Martin is consistent with the statements in his affidavit.
Also in his deposition, Gent testified “we made the mental mistake, mental calculation or
mental misplacement of the digit and ma[d]e the mistake in writing [the bid amount]
down.” Id. at 104. With respect to the bid summary sheet prepared by Gough, when
asked “is there any mathematical error on that spread sheet,” Gent stated “[n]ot that I‟m
aware of, no.” Id. at 106. When asked “the figure of 2,997,900 submitted as the base
bid, that was the number that was actually told to the Gough employee at the bid to write
in,” Gent testified:
This is the number that [Akey] had given to our employee in the field after
he mistakenly misplaced where he was going to do the cut on the number,
and he wrote down on his paper instead of 3,298,000, he wrote down
$2,998,000, and then he . . . sent that number on to [Martin] after he had
made the mistake on his paper . . . .
12
Id. at 107. When asked “[s]o there was not an addition or subtraction error or any
miscomputation, is that a fair statement, on this bid,” Gent testified:
There was an error . . . in as much as we intended to knock off $32,000 and
we knocked off $332,000 on the bid. Call it what you want. It‟s an error.
It‟s a mistake. We were trying to adjust our price to just below . . .
3,300,000, and ended up sliding over and adjusting it to below 2,998,000.
It‟s stupid. It was careless. It was a mistake. It was a mistake made at the
time that we were trying to get the bid submitted and in a short period of
time in which we had to make adjustments.
Id. at 108-109. With respect to the phone calls made by Gough in an attempt to withdraw
the bid, Gent testified that “[a] lot was going on and we all thought that we made the calls
. . . right before 2:00. But, yes, the reality of it is, after having the phone records, the
calls were made shortly after 2:00.” Id. at 114. The affidavit of Rod Gardin, the
superintendent of the School, in the record does not contradict Gent‟s testimony.
We find that, like in Bender, where the court found that it was clear that the bidder
did not agree to enter into a contract to furnish the material and do the work according to
the plans and specifications for the amount designated by his bid, see Bender, 36 Ind. at
172, 72 N.E. at 157, the affidavits and materials included in the record here demonstrate
that Gough did not at any time intend to enter an agreement or contract with the School to
complete the work contemplated for bid category #1 for the amount specified by its bid.
The implication of the mistake or error by Gough when Akey reduced to writing a
verbal statement by Gent regarding the ultimate base bid amount, resulting in an
unintended bid amount being communicated to Martin, which differed substantially from
the intended bid amount, is that the minds of the parties never in fact met and that one of
the parties, namely, the School, would obtain an unconscionable advantage gained by the
13
mistake or error. See id. at 173, 72 N.E. at 157 (noting that “[b]ut where the mistake is of
so fundamental a character that the minds of the parties have never in fact met, or where
an unconscionable advantage has been gained by mere mistakes . . . and the parties may
still be placed in statu[s] quo, equity will interfere, in its discretion, in order to prevent
intolerable injustice”) (internal citations omitted); see also Conwell v. Gray Loon
Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 812-813 (Ind. 2009) (noting that the “basic
requirements for a contract are offer, acceptance, consideration, and a meeting of the
minds of the contracting parties”).
Further, we observe that, like in Bender, where the bidder realized his mistake and
informed the school board that he could not enter into a contract for his bid amount on
the day following the bid, see 36 Ind. App. at 169, 72 N.E. at 155, Gough informed the
School and its representative Skillman within a short time after the bid meeting
concluded that it had submitted a bid proposal which was based upon a mistake and that
Gough could not complete the project for the quoted price. The School does not point to
evidence to show that it relied upon Gough‟s erroneous bid amount in a manner which
would cause the withdrawal of the bid a short time later and on the same day to be
inequitable, unconscionable, or unjust.
In addition, this court has observed that “[t]he general rule is that [b]id errors that
result from clear cut clerical or arithmetic errors . . . are the kind of excusable mistake
that allows relief” and that “[m]istakes of judgment, on the other hand, do not qualify for
such relief.” Mid-States Gen., 811 N.E.2d at 435 (citation and internal quotation marks
omitted). We cannot conclude that the mistake made when Akey reduced a verbal
14
statement by Gent to writing (which was later communicated to Martin) regarding the
reduction of the base bid amount constituted a mistake in judgment which would prevent
Gough from withdrawing its bid or that the bid amount that Gough had decided to submit
and communicated to Martin was its intended bid amount. See Harrison, David B.,
Annotation, Right of Bidder for State or Municipal Contract to Rescind Bid on Ground
that Bid was Based upon His Own Mistake or that of His Employee, 2 A.L.R.4th 991, § 3
(1980) (reviewing cases where courts have granted a request to rescind a bid on a public
contract where a mistake was material to the transaction and the public body was
informed of the mistake promptly upon its discovery); Powder Horn Constructors, Inc. v.
City of Florence, 754 P.2d 356, 359-361 (Colo. 1988) (observing the substantial body of
law which in effect concludes “that where a bidder submits a bid containing a material
mistake of fact and the bid is apparently accepted there has not been any meeting of the
minds because the bid accepted by the public entity is not the bid intended by the bidder”
and that “many courts, commentators and legislative bodies have either explicitly or
implicitly recognized that a mathematical or clerical error yields an unintended bid, while
an error in judgment, such as an error in estimating the number of hours of work
necessary to complete a project, yields precisely the bid intended and is not deemed a
mistaken bid,” and discussing the various competing policy concerns involved in
permitting a bidder for a public construction project to rescind its bid based upon a
mistake) (citations omitted); Miss. State Bldg. Comm‟n v. Becknell Const., Inc., 329
So.2d 57, 62 (Miss. 1976) (observing that the record supported the finding that the bidder
made an honest mistake in its bid and promptly notified the public body of the character
15
of the mistake and affirming the trial court‟s order permitting the bidder to withdraw its
bid without penalty); cf. Liebherr Crane Corp., 810 F.2d at 1157 (noting that there was
“no difference . . . between Liebherr‟s intended bid and the bid Liebherr actually
submitted,” that “[o]n behalf of Liebherr[,] Schiller bid exactly what he had decided to
bid,” and that “[i]n other words, he did not establish that he committed any clerical or
arithmetical errors in preparing Liebherr‟s bid”).
Based upon the record and under the circumstances presented in this case, we
conclude that it is evident that there was not a meeting of the minds regarding the bid
amount and thus that the School did not acquire the right to enforce Gough‟s erroneous or
mistaken bid.
Further, we agree with the trial court that “Travelers should be released from its
Bid Bond because its principal does not have any liability on the underlying contract.”
Appellant‟s Appendix at 9. See Jobco, Inc. v. Nassau Cnty., 129 A.D.2d 614, 615, 514
N.Y.S.2d 108 (1987) (noting that the trial court had granted rescission, finding that a
clerical error was material and occurred despite the exercise of ordinary care by the
bidder, and holding that “[t]he trial court properly determined that the bid bond, which,
by the terms of the bid documents, was required „as assurance that the bid is made in
good faith‟, should not be forfeited by the [bidder], the „no plea of mistake‟ provision of
the bid documents notwithstanding, since rescission having been granted, the bidder was
legally excused from entering into the contract and, thus, the absence of the underlying
obligation vitiated any contractual obligations arising therefrom”); Miss. State Bldg.
16
Comm‟n, 329 So.2d at 59 (affirming the trial court‟s finding that the bid bond be
cancelled as the bid was permitted to be withdrawn without penalty).
Accordingly, the court did not err in entering summary judgment in favor of
Gough and Travelers and against the School. For the foregoing reasons, we affirm the
court‟s August 12, 2011 ruling on the parties‟ motions for summary judgment.
Affirmed.
MAY, J., and CRONE, J., concur.
17