Specialty Asphalt & Construction, LLC v. Lincoln County, 34480-1

Background

Specialty Asphalt (majority owner Lisa Jacobsen) submitted the low bid to pave the Lincoln County courthouse parking lot; the bid notice mistakenly omitted any requirement for proposal or performance bonds.
Jacobsen participated in a public walkthrough; later Mr. Nollmeyer (county permit coordinator) gave a private walkthrough to a competitor (Arrow); Jacobsen alleges Nollmeyer discouraged her from bidding and made a comment about her heels.
Specialty won the award and returned a signed contract but refused to sign the contract bond (citing the bid notice's omission and insurance advice); the county initially insisted on a bond and terminated the process but later offered to pay bond costs or rescinded the bond requirement and ultimately stipulated that Specialty could perform without a bond.
Specialty sued for injunctive/declaratory relief, later added claims for gender discrimination and negligent misrepresentation; county moved for summary judgment and to strike portions of Jacobsen's affidavit.
The trial court struck certain hearsay, granted summary judgment dismissing the gender-discrimination and negligent-misrepresentation claims, allowed the contract claim to proceed but denied Specialty leave to amend for damages; Specialty declined to perform and the court dismissed the contract claim as moot; Specialty appealed.

Issues

Issue	Specialty's Argument	Lincoln County's Argument	Held
Whether Jacobsen proved sex-based disparate treatment in contract making/performance	Jacobsen: county treated her (a woman) differently (discouraging phone call, comments, private walkthrough for competitor)	County: no evidence competitor was treated differently; Specialty still won bid and wasn't made worse off by conduct	Court: No — plaintiff failed the third prima facie element; alleged acts did not show disparate treatment that made performance more onerous or less lucrative
Whether negligent misrepresentation claim survives summary judgment	Specialty: county’s bid materials/communications were false and induced reliance, causing pecuniary loss	County: no recoverable damages — either public-duty defense or no provable pecuniary loss because county later covered bond cost/rescinded bond	Court: No — damages element lacking; Specialty suffered no pecuniary loss before contract performance, so claim fails
Admissibility of portions of Jacobsen’s affidavit (hearsay)	Specialty: statements by county auditor and commissioner are admissions/agents and should be admitted	County: those statements are hearsay and inadmissible	Court: Mostly proper to strike; any error harmless because statements were cumulative and did not affect summary-judgment outcome
Whether Specialty could amend to seek contract damages / whether contract claim dismissal was proper	Specialty: should be allowed to amend to seek damages for breach	County: bidder’s exclusive remedy is injunction; damages not available until after completion; amendment would be futile	Court: No amendment; dismissal proper and case moot because county conceded relief (no other justiciable controversy)

Key Cases Cited

Marquis v. City of Spokane, 130 Wn.2d 97 (1996) (elements for discrimination in making/performing employment contracts)
Ross v. Kirner, 162 Wn.2d 493 (2007) (elements required for negligent misrepresentation under §552)
Lewis River Golf, Inc. v. OM Scott & Sons, 120 Wn.2d 712 (1993) (damages must be shown with reasonable certainty in tort/contract contexts)
Skyline Contractors, Inc. v. Spokane Housing Authority, 172 Wn. App. 193 (2012) (exclusive remedy for aggrieved public works bidder is injunctive relief; damages inappropriate if bidder does not complete work)
Scoccolo Construction ex rel. Curb One, Inc. v. City of Renton, 158 Wn.2d 506 (2006) (availability of contract damages post-completion)
Mottner v. Town of Mercer Island, 75 Wn.2d 575 (1969) (historical rule on injunctive relief as exclusive remedy for public works bidders)