H. W. Stanfield Construction Corp. v. Robert McMullan & Son, Inc.

Opinion

COUGHLIN, J.

Defendant, a painting subcontractor, appeals from a money judgment awarding damages to plaintiffs, general contractors, on account of defendant’s refusal to do painting work in compliance with a bid submitted to plaintiffs.

In preparation of a bid on the prime contract to do construction work for the United States Navy, plaintiffs advertised for bids from subcontractors on various phases of the work. On January 25, 1968, a few hours before the time for submission of bids on the prime contract, defendant, in a telephonic communication with plaintiffs, submitted a bid of $9,384 on the painting work required by Section 9F of the plans and specifications for the construction project. Plaintiffs checked defendant’s bid with others they had received and noted the latter were for $18,500, $18,713, $19,475 and $24,463; thereupon, because of the apparent discrepancy between defendant’s bid and the other bids, by telephone communication advised defendant the latter’s bid was quite low, and requested defendant review and verify it before bid time, which was 2 o’clock; and thereafter, on the same day,

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received a second telephonic bid from defendant in the amount of $13,261 which they used in preparing a bid they submitted on the prime contract. Also on the same day, i.e., January 25, 1968, plaintiffs, by telephone, advised defendant the latter’s bid had been used by the former in preparing their bid on the prime contract, which appeared to be the low bid, and in the event it was accepted they would send defendant a contract. Plaintiffs’ bid on the prime contract was accepted February 4, 1968. On February 16, 1968, plaintiffs sent defendant a proposed written contract premised on the latter’s bid, but which contained terms and provisions not included in the advertisement for bids or the telephonic bid submitted. Defendant, among other things, contends the inclusion of these terms and conditions in the proposed written contract amounted to a rejection of its bid and submission of a counteroffer by plaintiffs. The court found the terms and conditions in question were not a material element of the parties’ negotiations and did not constitute a counteroffer. On March 29, 1968, having received no response from defendant, a representative of plaintiffs called a representative of defendant inquiring whether defendant intended to execute the contract theretofore submitted; defendant’s representative replied he did not think defendant was going to sign the contract because he thought plaintiffs were going to want defendant “to paint those joists on the job” and defendant “didn’t figure painting them”; in response plaintiffs’ representative said “Well, if it’s in Section 9F, which is the only thing that we are asking you to do on the subcontract, then you’d be expected to do it”; and defendant’s representative, when asked directly whether defendant was going to sign the subcontract, replied “No.” During the foregoing telephone conversation no reference was made to the allegedly objectionable terms and conditions of the proposed written contract.