Menefee v. County of Fresno

• Decision Date: 24 January 1985
• Docket Number: BREWER-KALA,R
• Citation: 210 Cal.Rptr. 99,163 Cal.App.3d 1175
• Parties: Michael MENEFEE et al., Plaintiffs and Appellants, v. COUNTY OF FRESNO, Defendant and Respondent;eal Party in Interest, Defendant and Respondent. Civ. F001538.
• Court: California Court of Appeals Court of Appeals

Page 99

210 Cal.Rptr. 99

163 Cal.App.3d 1175

Michael MENEFEE et al., Plaintiffs and Appellants, v. COUNTY OF FRESNO, Defendant and Respondent BREWER-KALAR, Real Party in Interest, Defendant and Respondent.

Civ. F001538.

Court of Appeal, Fifth District, California.

Jan. 24, 1985.

[163 Cal.App.3d 1177] Jacob M. Weisberg, Fresno, for plaintiffs and appellants.

Floyd R.B. Viau, Co. Counsel, Fresno, and Jeffrey L. Kuhn, Deputy Co. Counsel, Sacramento, for defendant and respondent.

Thomas, Snell, Jamison, Russell, Williamson & Asperger and William A. Dahl, Fresno, for real party in interest, defendant and respondent.

OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE AND THE FACTS

Appellant Menefee Construction Co. is a general partnership and licensed contractor under California law. Appellants Michael Menefee and Douglas Menefee presumably are partners in the Menefee Construction Co. and are citizens and taxpayers of Fresno County. Real party in interest Brewer-Kalar is a joint venture also engaged in the construction business. Both Menefee Construction Co. and Brewer-Kalar submitted bid forms to respondent Fresno County for a contract to construct water, sewer, drainage and street improvements in county service area No. 32 at Cantua Creek. The bids were opened April 29, 1982. Brewer-Kalar's bid was the lowest, $699,998.00, and Menefee Construction Co. was next lowest at $725,946.10; however, Brewer-Kalar failed to sign the appropriate line on the proposal sheet (page 4) of its bid's form. The form was signed by Brewer-Kalar's principals at other locations, and the bond accompanying the bid was properly signed. The deputy county counsel who reviewed the documents for the board of supervisors concluded that Brewer-Kalar's failure to sign the bid's proposal sheet was a material irregularity that rendered the bid "non-responsive" and invalid. The county counsel advised the board not to accept the bid.

The board met June 1, 1982, and heard arguments by counsel for both Brewer-Kalar and appellants. It then voted to accept the Brewer-Kalar bid and waive any irregularity caused by the absent signature on page 4 of the bid form.

Appellants filed a petition for writ of mandate, a complaint for a temporary restraining order, preliminary injunction and declaratory relief asking the superior court to enjoin construction and compel the county to contract with appellants. Because relief was denied below and the construction project is now complete, the equitable issues are moot; nevertheless, appellants still seek a reversal of the denial of their petition for writ of mandate and the adverse judgment in their action for declaratory relief.

DISCUSSION

I. Was Brewer-Kalar's bid valid? We answer the question in the affirmative.

Appellants and the county agree on the basic rules governing public works contracts. The contract requires competitive bidding. (Former Gov.Code, § 37901 et seq. repealed in 1982 and replaced with Pub.Con.Code, § 20100 et seq.) The general rules of contract law apply to the competitive bidding process. (Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110, 123, 166 Cal.Rptr. 184.) Bids are irrevocable offers or options given to the public agency involved. (M.F. Kemper Const. Co. v. City of L.A. (1951) 37 Cal.2d 696, 700, 704, 235 P.2d 7.) A contract is complete and binding when a valid bid is accepted. (City of Susanville v. Lee C. Hess Co. (1955) 45 Cal.2d 684, 290 P.2d 520.) If a contract is void, the public may have a right of action for return of all payments for work done under the void contract. (Miller v. McKinnon (1942) 20 Cal.2d 83, 89, 124 P.2d 34.)

The parties differ on the effect of Brewer-Kalar's failure to sign its bid in the appropriate place. Appellants contend the case is directly controlled by Williams v. Bergin (1900) 129 Cal. 461, 62 P. 59. In that case, a contractor failed to sign his bid at all, failed to write his name on the bid and failed to put a total price on the bid form, but did sign the accompanying bond. The California Supreme Court held the bond did not cure deficiencies in the bid and the bid was unenforceable against the contractor, so the resulting "contract" was void. The defect is "jurisdictional" as to the board of supervisors. (Id., at p. 465, 62 P. 59.)

As respondent Fresno County points out, Williams v. Bergin is distinguishable on its facts. It did not involve a simple failure to sign an otherwise complete bid, but an almost blank bid form lacking the contractor's name and a total bid amount, as well as the signature. Williams, however, does explain that the real issue is whether the contractor (here Brewer-Kalar) would have been liable on the bond if they had attempted to back out of their bid after it had been accepted by the board. If the contractor would be able to avoid forfeiture of the bond after their bid is accepted, then the deficiency of the bid would have given them an unfair advantage over other bidders and would render the bid invalid.

We have found no published cases in California involving a bid that was fully completed as to the terms and conditions of the bid, signed in other places and properly delivered, but not signed in the one place required by the bid form. Some cases in other jurisdictions favor respondent Fresno County's position that the failure to sign a bid is not a material breach and allow waiver by the contracting entity. (E.g., Farmer Const. v. State Dept. of Gen. Admin. (1983) 98 Wash.2d 600, 656 P.2d 1086; Eastside Disposal Co. v. City of Mercer Island (1973) 9 Wash.App. 667, 513 P.2d 1047; Prendergast v. City of St. Louis (1914) 258 Mo. 648, 167 S.W. 970; Interstate Power Co. v. Incorporated Town, etc. (1941) 230 Iowa 42, 296 N.W. 770.) Other cases find that the failure to sign makes a bid invalid, giving the bidder an unfair advantage and supporting rejection of the unsigned bid. (A.A.B. Electric, Inc. v. Stevenson Pub. Sch. Dist. No. 303 (1971) 5 Wash.App. 887, 491 P.2d 684; Whitemarsh Township Auth. v. Finelli Bros. Inc. (1962) 408 Pa. 373, 184 A.2d 512; Superior Oil Company v. Udall (D.C.Cir.1969) 409 F.2d 1115.) All of these cases take place against various backgrounds of regulations and specifications in notices of sale or requests for bids. Nevertheless, there are two common themes: First, some courts allow the signature on a bid bond to cure the absence of a signature on the bid itself. (Farmer Const. v. State, Dept. of Gen. Admin., supra, 98 Wash.2d 600, 656 P.2d 1086.) Others will not. Williams v. Bergin, supra, 129 Cal. 461, 62 P. 59; A.A.B. Electric, Inc. v. Stevenson Pub. Sch. Dist. No. 303, supra, 5 Wash.App. 887, 491 P.2d 684.) Second, specific regulations or components of the request for bids may require a signature and control over general principles of government contract law. (Superior Oil Company v. Udall, supra, 409 F.2d at p. 1121.)

Williams v. Bergin, supra, 129 Cal. 461, 62 P. 59 apparently places California in the group that will not allow the use of a signed bid bond to cure the deficiencies of a bid. (Id., at pp. 464-465, 62 P. 59.) But, as we have previously noted, Williams involved a "bid" that was lacking more than a signature; it had neither a total price nor the bidder's name. So Williams can be read narrowly as holding only that a "bid" cannot be cured if it is not a bid at all. The bid in the present case is distinguishable because the executing signature is the only part that is missing. Even if incorporation of the bid bond signature into the bid is precluded by California law, the absence of only one signature in an otherwise complete bid should be waivable by the public entity.

Fresno County does not have specific regulations requiring a signature, but the bid form itself contains mandatory language requiring the missing signature. After a blank line over "signature of Bidder," the proposal states:

"NOTE: If bidder is a corporation, the legal name of the corporation shall be set forth together with the signature of the officer or officers authorized to sign contracts on behalf of the corporation; if bidder is a co-partnership, the true name of the firm shall be set forth above together with the signature of the partner or partners authorized to sign contracts in behalf of the partnership; and if the bidder is an individual, his signature shall be placed above. If the signature is by an agent, other than an officer of a corporation or a member of a partnership, a Power of Attorney must be on file with the Owner prior to opening bids or submitted with the bid; otherwise, the bid will be disregarded as irregular and unauthorized." (Emphasis added.)

It is clear from this language that if an unauthorized person had signed, the bid would be rejected. Here, no one signed the proposal form. Although it may be argued that this should constitute a greater failure to comply with the signature requirements, there is no express...