Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland

• Decision Date: 06 July 2004
• Docket Number: No. 86A03-0312-CV-500.,86A03-0312-CV-500.
• Citation: 811 N.E.2d 425
• Court: Indiana Appellate Court
• Parties: MID-STATES GENERAL & MECHANICAL CONTRACTING CORPORATION, Appellant-Defendant, v. TOWN OF GOODLAND, Appellee-Plaintiff.

811 N.E.2d 425

MID-STATES GENERAL & MECHANICAL CONTRACTING CORPORATION, Appellant-Defendant, v. TOWN OF GOODLAND, Appellee-Plaintiff.

No. 86A03-0312-CV-500.

Court of Appeals of Indiana.

July 6, 2004.

Thomas A. Withrow, Kerry L. Wagner, Henderson Daily Withrow & DeVoe, Indianapolis, IN, John A. Rader, Williamsport, IN, Attorneys for Appellant.

Judson G. Barce, Hunter J. Reece, Barce & Barce, Fowler, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Mid-States General & Mechanical Contracting Corporation ("Mid-States") appeals the trial court's grant of summary judgment to the Town of Goodland ("Town"). Mid-States raises three issues, which we consolidate and restate as:

I. Whether Mid-States is entitled to rescind its bid and bid bond because of its misinterpretation of the bid documents; and

II. Whether the contract is void because the Town Council failed to meet certain procedural requirements in awarding the contract.

We affirm.

The relevant facts designated by the parties follow. In late 2001, the Goodland Town Council ("Town Council") began the process of requesting bids for the renovation of an elementary school building into a town hall, community center, and daycare. The Town Council discovered that the first group of bids were over budget and decided to modify the bidding process by requiring bidders to break down their bid into one lump sum for the majority of the work and four smaller optional alternate projects that could be completed if funding was available. On January 16, 2002, the Town Council published an Invitation to Bid, which informed bidders that copies of the plans and specifications for the project were available at the offices of KJG Architecture, Inc. ("KJG"). The Invitation to Bid also informed the bidders that there were two divisions to the contract: (1) Division A, which consisted of the renovation for the daycare center and community center; and (2) Division B, which consisted of the renovation for the town hall. The Invitation to Bid also required proposals to be accompanied by a bid bond of not less than five percent of the total amount of the proposal.

The Bid Notice provided that "[b]ids shall be on a stipulated sum basis; segregated bids will not be accepted." Appellant's Appendix at 174. The bid documents for the project included "Addendum # 1: Document 00410 — Bid Form," which contained the following form that the bidders were required to complete:

1.3 The undersigned will complete the Work in accordance with the Contract Documents for the following prices:

STIPULATED-SUM BID PRICE _____________ ($ ___________) (Use words) (Figures) ALTERNATES Add Alternate No. 1 (Demolition and renovation of the locker room area in the Community Center in scope of work B) Add ($ ______) Add Alternate No. 2 (Add 5-foot sidewalk in scope of work B) Add ($ ______) Add Alternate No. 3 (Demolition and renovation of the restroom to meet ADA requirements in the Goodland Town hall in scope of work A) Add ($ ______) Add Alternate No. 4 (Add radiant heaters to three daycare classrooms as shown on plans and any wiring required for installation in scope of work B) Add ($ ______)

ALLOWANCES

Allowance # 1 (Contingency allowance) $_________ Allowance # 2 (Carpet allowance) $_________ Allowance # 3 (Clean and abate mold) $_________ Allowance # 4 (Utility company charges) $_________ Allowance # 5 (Hardware allowance) $_________ Allowance # 6 (Painting of the gymnasium) $_________

1.4 For bookkeeping purposes the STIPULATED-SUM BID PRICE is hereby broken down into the following component parts, with the sum of all parts equal to the STIPULATED-SUM BID PRICE:

Scope A: Town Hall Remodel Work $_________ Scope B: Community Center and Daycare Remodel Work $_________ Roofing Work $_________ Remaining Work $_________

Id. at 53.

Mid-States submitted a bid with a Stipulated-Sum Bid Price of $822,000.00 along with a bid bond issued by St. Paul Fire and Marine Insurance Company ("St. Paul"). On February 4, 2002, the Town Council opened the eight sealed bids that were submitted, including the bid submitted by Mid-States. Mid-States had the lowest bid, and the second lowest bid was submitted by Cooley Construction in the amount of $866,119.00. On March 1, 2002, James Butler, the Town Council President, notified Mid-States that it had been awarded the contract. The Town Council also decided to fund Alternate No. 3, which included renovation of the restrooms to comply with the ADA. After a preconstruction meeting, Mid-States sent a letter to KJG providing it with the total contract price as follows:

Stipulated bid- $822,000.00 Alternate # 3- $ 16,495.00 Allowance # 1- $ 50,000.00 Allowance # 2- $ 7,225.00 Allowance # 3- $ 20,000.00 Allowance # 4- $ 5,000.00 Allowance # 5- $ 9,800.00 Allowance # 6- $ 2,500.00 __________________________________________ Contract Value $933,020.00

Id. at 78. KJG then advised Mid-States that the allowances should have been included in the Stipulated-Sum Bid Price. Mid-States offered to perform the contract for $933,020.00 or perform the contract for its bid price of $822,000 plus the cost of Alternate No. 3 and treat the allowances as change orders. On March 15, 2002, the Town Council awarded the contract to the second lowest bidder, Cooley Construction, for an additional cost of $44,119.00 above the Stipulated-Sum Bid Price submitted by Mid-States.

The Town then filed a complaint against Mid-States and St. Paul, alleging breach of contract and forfeiture of bond. The Town filed a motion for summary judgment, which the trial court granted as follows:

The Court finds that much of the material presented by the parties would require the Court to make factual determinations and would thus not authorize the entry of summary judgment because many of those facts are in dispute. However, after full consideration of the circumstances, the Court finds that the issues before the Court may be determined within the four corners of the documents in question without the necessity of evidence to elaborate and explain.

The Court finds that the parties did, in fact, enter into a Contract and while [Mid-States and St. Paul] dispute that issue, it does not appear to this Court that there is any real dispute as to the existence of the contract. The Court also finds that any issue concerning statute of [f]rauds is not applicable to this case. The Court finds that [Mid-States] submitted a bid with a bond from St. Paul[,] which secured the bid[,] and said bid was accepted. After acceptance of the bid, [Mid-States] breached the contract, thus resulting in the forfeiture of the bond. The damages to the [Town] are ascertainable in that the next to highest bid was accepted and there is no dispute concerning that issue. The amount of damages has not been contested, but only the issue as to whether the [Town] is entitled to any such damages. The Court finds that the [Town] is entitled to recovery herein. The Court finds that [Mid-States and St. Paul] are not entitled to summary judgment.

The Court's rationale is that the bid form, in paragraph 1.3, requests a stipulated sum bid price and [Mid-States] did bid [$822,000.00]. Section 01210 in Part 1.1 requires that "... stated allowances shall be included in the total lump sum bid price." [Mid-States and St. Paul] have contended that the allowances in Section 1.3 were separate from and not included in the [$822,000.00] bid. The Court recognized that if there is an ambiguity then the [trier] of fact would have to make a determination, however, this Court does not believe that there is such an ambiguity. The dictionary checked by this Court defined the word "sum" as "result obtained by adding together two or more things...." While [Mid-States and St. Paul] allege that the words modifying the word "sum" create an ambiguity, this Court determines that they are simply modifiers and that the word "sum" requires all amounts to be included therein. The Court finds that a reasonable interpretation of the documents indicate that there was a Contract entered into between the parties and that [Mid-States] breached the Contract and [the Town] is entitled to forfeiture of the bond and damages.

The Court finds that the damages to the [Town] are in the sum of [$44,119.00] and of that sum, because of the bond, there is joint and several liability to the extent of [$41,100.00] as to both [Mid-States and St. Paul] with the balance being attributable to [Mid-States].

Id. at 2-4.

On appeal, the standard of review of a grant or denial of a motion for summary judgment is the same as that used in the trial court: summary judgment is appropriate only where the designated evidence shows that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Corr v. Am. Family Ins., 767 N.E.2d 535, 537-538 (Ind.2002). The moving party must designate sufficient evidence to eliminate any genuine factual issues, and once the moving party has done so, the burden shifts to the nonmoving party to come forth with contrary evidence. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 460-461 (Ind.2002). The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party. Id.

Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case, the entry of specific findings and conclusions does not alter the nature of our review. 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 thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

I.

The first issue is whether Mid-States is entitled to rescind its bid and bid bond because of its misinterpretation of the bid...