CG Schmidt Inc. v. Permasteelisa North AmericaCG Schmidt Inc. v. Permasteelisa North America
ORDER
On December 15, 2015, the plaintiff, CG Schmidt, Inc. (“CGS”), filed a breach of contract claim and promissory estoppel claim against the defendant, Permasteelisa North America (“PNA”). (Docket #1). The allegations in the complaint tell the classic trilogy of a general contractor and subcontractor relationship gone wrong: a bid, ensuing negotiations, and disengagement. PNA moved for summary judgment on both claims asserted against it on August 3, 2015. (Docket # 16).
1. BACKGROUND
The facts in this case are largely undisputed.
1.1. The Bid
The relationship between CGS and PNA began in April of 2013, when CGS began to solicit subcontractor bids for a custom cur-tainwall on its 833 East Michigan Street Project (the “Project”). (Docket # 18 ¶ 10; Docket # 22 ¶ 3). The curtainwall was slated to be one of the largest subcontracts for the development. (Docket # 18 ¶ 8). To guide the bidding process, CGS provided prospective subcontractors a number of documents, including its Contract Manual (the “Manual”) and a Draft Schedule. (Docket # 15 Ex. 1 at 3, 11; Docket # 18 ¶ 10; Docket # 22 ¶ 3). The Manual contained instructions to bidders on the logistics of bid submission, blank bid forms, work category descriptions, and numerous agreement forms, which included CGS’s blank, standard subcontract and exhibits. (Docket # 15 Ex. 1 at 13-14; Docket # 18 ¶ 10; Docket # 22 ¶ 3). In relevant part, the standard subcontract stated:-
The Contract between CGS and the Subcontractor includes all the terms and conditions of this Subcontract and its Exhibits ... and all the terms and conditions of the Agreement between CGS and the Project Owner (the “Prime Agreement”) ... applicable to the Subcontractor’s Work ... (collectively, the “Subcontract Documents”).4 The Subcontract Documents form the entire’ and integrated agreement between the parties and supersede all prior bidding, proposals, negotiations' and/or agreements, written or oral, between Subcontractor and CGS, except to the extent expressly referenced in these Subcontract Documents.
(Docket # 15 Ex. 1 at 74).
PNA submitted its bid to furnish, fabricate, and install a custom curtainwall for the Project on April 19, 2013. (Docket # 18 ¶ 11; Docket #15 Ex, 2). As instructed, PNA used the bid form provided in CGS’s Manual. (Docket # 15 Ex. 2). PNA’s legal team reviewed the bid, and PNA’s Senior Vice President, Michael Kneeland, signed it. (Docket #22 ¶¶9, 17). The bid stated, in relevant part:
The Bidder ... hereby proposes to furnish all labor, materials, tools, equipment ... and to construct all work in the Work Category in accordance with the Contract Drawings and Specifications ... and CG Schmidt ContractManual, dated March 22,2013 for the bid amount stated in this document— The Bidder, if awarded a contract, agrees to commence work and to fully complete this Work Category in accordance with a schedule to be established in collaboration with CG Schmidt....
(Docket # 15 Ex. 1 at 19). The bid added that, “[t]he Bidder agrees that his/her Base Bid shall be good and may not be withdrawn for a period of one hundred twenty (120) calendar days after the bid opening date.” (Docket # 15 Ex. 2 at 2).
CGS’s bid form also required PNA to submit information related to its price estimate, alternative fee proposals, insurance coverage, and resident-and race-based employment practices. (Docket # 15 Ex, 2 at 2-5). Attached to its bid, PNA, on its own letterhead, submitted a more detailed financial breakdown of its initial proposal for the eurtainwall project, which totaled $12,675,421.00. (Docket' # 15 Ex. 2 at 3). PNA likewise, outlined the “scope specifically included” in the eurtainwall, various warranties, site logistics, clarifications, and exclusions. (Docket # 15 Ex. 2 at 8-11). Within a “couple of months” from the submission of PNA’s bid, CGS selected PNA as its subcontractor of choice. (Docket # 18 ¶ 18; Docket # 24 Ex. 3 at 77:22-78:9). ' .
1.2 The Negotiations
Though CGS was “not prepared to write a subcontract” during the spring of 2013, it began “working towards a signed contract” with PNA “based on the award.” (Docket # 18 ¶ 19; Docket # 24 Ex. 3 at 79:18-80:6). The parties waited to sign a subcontract for two primary reasons.
First, CGS had not yet entered into two important agreements with the Project’s owner: the “prime contract” and an important corollary thereto, known as the Guaranteed Maximum- Price Amendment (“GMPA”).
Second, immediately after the award of the eurtainwall project to PNA, the parties actively engaged in refining various aspects of their agreement. (Docket #18 ¶¶ 12-15, 21-23, 46-48). CGS was particularly interested in reducing the proposal’s cost and, as a result, PNA issued a series of revised proposals in order to save CGS money. (Docket # 24 Ex. 3 at 31:7-32:12, 71:25-72:16). ‘ The specific requests made by CGS during this “valúe engineering process” primarily centered on cost-saving “alternate” ' materials and the proposed contract scope.
Despite these two roadblocks, during the spring and summer of 2013, PNA and CGS continued to discuss other matters related to the curtainwall. For example, at one point, PNA offered a “design assist” service to advise CGS, the architect, and the developer in managing the curtain-wall’s, installation, which CGS .declined. (Docket # 22 ¶ 26). In addition, continuing into June of 2013, the parties met with the developer .and the architect to discuss a number of construction related issues, including, but not limited to, the budget, systems performance, and installation. (Docket# 22 ¶ 28).
In September of 2013, the parties continued their discussions about the subcontract’s terms. Specifically, on September 12, 2013, CGS provided PNA ap updated version of CGS’s standard contract.
Discussions about the manufacturing aspect of the curtainwall also occurred in September of 2013. ' (Docket # 22 ¶ 29).
From about late 2013 through 2014, construction was delayed. (Docket # 18 ¶ 37; Docket # 24 Ex. 2 at 85:14-86:5). At this time, however, CGS’s “project team” suggested to PNA that it wanted to move forward with certain “engineering activities” in order to keep on track with the overall schedule. (Docket #24 Ex. 2 at 89:8-90:3). PNA advised that, in order to “devote those resources,” PNA “need[ed] some sort of financial commitment” and either a subcontract agreement or letter of intent. (Docket # 22 ¶ 33). In response, CGS issued an unsigned letter of intent (“February LOI”) for PNA’s review and comment. The February LOI explained, “[i]n accordance with our discussions to date, it is the intent of CG Schmidt, Inc. and Permasteelisa North America to enter into a Subcontract agreement relative to the above referenced project.” (Docket # 18 ¶ 24). It likewise contained an integration clause stating, “[ujpon execution of the Subcontract ... the Subcontract and its Exhibits shall supersede in all respects prior negotiations between CG Schmidt, Inc. and Permasteelisa North America, including this letter of intent.” (Docket # 18 ¶ 24). Furthermore, the February LOI set forth: (1) a proposed scope of contract with certain alternates that CGS could select from at a later date; (2) a list of items PNA would provide for the cur-tainwall; and (3) a “Total Contract” price of $7,744,469.00. (Docket #22 ¶34; Docket # 24 Ex. 21 at 2-3). The parties made no financial commitments at this time. (Docket # 24 Ex. 21). Neither party signed the document. (Docket # 18 ¶ 24).
In response to the February LOI, on March 5, 2014 (the “March 2014 email”), PNA provided CGS with “comments related to [the] schedule and associated costs until a contract [could] be finalized.” (Docket # 15 Ex. 9 at 1; see also Docket # 18 ¶ 25). Within the schedule portion of the March 2014 email, PNA lists a date for a “Design kickoff [meeting] with Kahler Slater.”
Later that month, on March 25, 2014, CGS and PNA, along with the architect, operations, and engineering teams, convened for the scheduled “kick-off’ meeting. (Docket #22 ¶40-40^)). PNA admits that it does not usually participate in “kick-off’ meetings unless it is “under contract,” but Mr. Stanko testified that PNA did so for the curtainwall project because it was “very close -to getting this thing up and running.” (Docket #24 Ex. 2 at 120:10-121:22). .
Meanwhile, ’ beginning in approximately February of 2014, PNA began to have internal concerns about the availability of GAT II for the Project. (Docket #22 ¶ 32). On the one hand, PNA was concerned that a crucial operations employee, Michele, would be unavailable to run the facility. (Docket # 22 ¶ 32). An- internal email exchange in mid-February between PNA executives discussing Michele’s situation conveyed concern when sharing this issue; “Houston, we have a problem.” (Docket #22 ¶32; Docket# 24 Ex. 20). However, the same email also lays out. the possibility of potentially conducting manufacture in Manila of “increas[ing] the team at GAT.” (Docket# 24 Ex. 20). On the other hand, PNA’s assembly plant manager in Chicago stated in an email to another PNA employee thát he “hope[d] you know what you are doing on this one” after being informed that “the GAT2 budget [was] just approved, [and] end of the year start assembly [was] a perfect timing.” (Docket # 22 ¶ 32(a); Docket # 24 Ex. 19 at 1). It is unclear, and the parties do not address, whether this email exchange in any way related to the availability of Michele; ■
Approximately one month after the “kick-off’ meeting, on April 21, 2014, CGS and the Project owner executed the prime contract. (Docket # 18 ¶ 27). The signing of this agreement between CGS and the Project owner spurred rapid fire communications between the parties regarding; the subcontract and project developments.
First, RNA provided CGS with “preliminary shape approval” drawings
The May HOI from CGS was similar in overall structure to the February LOI, but the two documents differed in various aspects, On the one hand, the LOIs were identical insofar as they expressed the same “intent '.. .■ to enter a Subcontract,” the same integration clause,, and listed the same contract price of $7,744,469.00.
At.about the time CGS delivered the May LOI, PNA’s Executive, Mr. Knee-land,'was working in PNA’s Thai office. (Docket #22 ¶ 44). During his stay, a martial law curfew went into place and, in light of the political unrest in the country, Mr. Kneeland left the country immediately. (Docket # 22 ¶ 44). Mr. Kneeland admits that as of May'22, 2014, he was aware that-the curfew in that country was causing interruptions at the GAT II facility. (Docket # 22 ¶ 45). ' He did not communicate this information to Mr. Stanko. (Docket# 22 ¶ 46).
Less than a week after CGS sent the May LOI to PNA, CGS entered into the GMPA with the Project owner. (Docket # 18 ¶ 34). At this time, PNA emailed CGS ’ three glass' sample options (Docket #24 Ex. 30 at 1; see also Docket #22 ¶ 56) and provided CGS with an Updated Bid Proposal, which raised the curtainwall project price to $8,462,016.00. (Docket # 22.¶ 54; Docket # 24 Ex. 29 at 2).
CGS provided PNA with a copy of the prime' contract on May 29, 2014. (Docket # 18 ¶¶ 48-49). In response, Mr. Stanko reiterated to CGS, by telephone, PNA’s concern with liquidated damages, stating that they were “not acceptable.” (Docket # 24 Ex. 10 at 106; Docket # 18 ¶ 53). CGS acknowledged, in an internal email, that PNA had. an “issue with the open ended LD’s [liquidated damages]” and “a couple other small areas of concern.” (Docket # 18 ¶ 52). Addressing these and other matters, Mr. Stanko wrote in an email to CGS on June 3, 2014 (the “June 2014 email”), that “[i]t would be a good time to start reviewing the scope specific portion of the contract....” (Docket # 18 ¶ 56). Mr. Stanko’s email also highlighted issues that PNA had with “delay damages,” “our ability to be compensated for delay,” and “other issues” if his “assumption about flow down language [in the draft subcontract was] incorrect.” (Docket # 18 ¶44). Attached to the June 2014 email was a one-page document with proposed subcontract language regarding “Liability for. Delay Damages” and “Damages for Delay by Others.”
Following up on PNA’s concerns over the project scope and damage liability, CGS forwarded a proposed scope for inclusion in the subcontract on June 5, 2014. (Docket #18 ¶60). This attached draft statement of the proposed scope of work also included a contract price of $7,824,529.67. (Docket # 18 ¶ 61). In addition, CGS furnished language for a proposed addendum to address PNA’s exposure to delay damages. (Docket # 18 ¶ 63)..
' Internally, CGS’s executives exchanged emails expressing concern that PNA had
Ultimately, on June 13, 2014, CGS emailed PNA a proposed subcontract for electronic signature (“June -13 subcontract”). (Docket # 18 ¶ 66). The price on the agreement was listed as $7,797,464.00. (Docket # 18) PNA did not sign the -June 13 subcontract. (Docket # 18 ¶ 68). Three days later, on June 16, 2014, CGS emailed a revised proposed subcontract to PNA, this time listing the agreement’s price at $7,751,916.00 (“June 16 subcontract”). (Docket # 18 ¶¶ 70-71). Again, PNA did not sign the June 16 subcontract. (Docket # IS ¶¶ 72). . . •
At this point, CGS Still had - not yet cleared PNA’s' “pre-qualification” ‘ form, which, according to CGS policy, is required before a subcontract is signed by CGS. (Docket # 18 ¶ 50; Docket # 24 Ex. 14 at 105:8-23).
1.3 The Disengagement
On or about June 16, 2014, PNA communicated by telephone and letter that it was “disengaging” from the curtainwall project. (Docket #18 ¶¶ 73, 76-77).- PNA’s explanation was that civil unrest in Thailand limited its production capability, and, as such, “a production slot no longer existed] to accommodate- the revised construction schedule” on the Project. (Docket # 22 ¶¶ 65-66(a)). At no time did PNA warn CGS that it would be backing out of the fabrication and installment of the cur-tainwall. (Docket # 22 ¶ 62). The parties had not signed a. subcontract., (Docket # 22 ¶ 81). . ■, ,
Following • PNA’s disengagement, CGS hired another contractor,' Glass Solutions, to complete the curtainwall project. (Docket #18 ¶83). CGS' alleges that Glass Solutions agreed to an “accelerated schedule and-installation costs in amounts •excess to PNA’s most recent proposal- and which form. the ■ basis of this claim.” (Docket'-#22 ¶ 68). The Court quotes directly from CGS’s proposed finding of fact because CGS did not provide any factual support from the record to support the substance of its finding. (Docket #22 ¶ 68). According to a CGS executive, “the contract amount [for the replacement subcontractor] won’t be finalized until the work is complete.... ” (Docket # 24 Ex. 1 at 64:10-21). Moreover, CGS apparently expects to use the contingency fund established under the GMPA to cover some or all of the curtainwall in excess of its original budget. (Docket # 24 Ex. 1 at 43:17-61:25). . ......
2. SUMMARY JUDGMENT STANDARD
When a party files a motion for sum-? mary judgment, it is their “contention that the material facts are undisputed and the movant is entitled to judgment as a matter of law.” Hotel 71 Mezz Lender LLC v. Nat. Ret. Fund,
When analyzing whether summary judgment should be granted, a court must draw all reasonable inferences from the materials before it in favor of the non-moving party. Hotel 71 Mezz,
3. ANALYSIS
3.1 CGS and PNA Intended to Be Bound To A Fully Integrated and Superceding Subcontract, Which Was Never Signed
PNA argues that there is no genuine issue of material fact regarding CGS’s breach of contract claim, and as such it is entitled to judgment as a matter of law under Rule 56. The gravamen of PNA’s argument is that the parties intended to sign a subcontract and that, unless and until a subcontract was signed, neither party owed a binding obligation to the other. {See generally Docket # 19). According to PNA, because no subcontract was ever signed by the parties, PNA was free to disengage from the curtainwall project and did not breach any contract. {See Docket # 19).
On the other hand, CGS argues that, under the Uniform ' Commercial Code (“UCC” or “the Code”), the contract formation standards are more liberal. {See Docket # 23). Under the UCC, a binding agreement could be, and according to CGS’s account was, formed, even in the absence of a signed subcontract. {See generally Docket # 23). On this ground, CGS argues that not only was there a contract between CGS and PNA, but there were four contracts that formed over the course of the parties’ fourteen-month interaction. {See Docket # 23). These contracts were in turn based on the terms of: (1) the bid award; (2) the May LOI, (3) PNA’s Updated Bid.Proposal; and (4) the June subcontracts. {See Docket # 23 at 8-12).
The Court concludes that the parties never manifested an intention to be bound to any of the bids, LOIs, or proposed subcontracts that the parties exchanged from April of 2013- until June of 2014. Rather, the documents, communications, and circumstances of CGS and PNA reveal that they intended to create a subcontract that would supercede and integrate all pri- or negotiations. Because CGS and PNA never executed the contemplated subcontract, CGS’s breach of contract claim must fail as a matter of law.
3.1.1 Applicable Law
In Wisconsin,
In Wisconsin, determining whether the UCC applies to a mixed contract, ie., a contract for the sale of goods and services, is guided by the “predominant purpose” test. Linden v. Cascade Stone Co.,
Applying the Linden factors, the Court finds that the thrust of the parties’ negotiations related to .the sale of goods. In reference to-.the first factor, while the Court notes that a principle aspect of this case centers -on determining whether there even was a contract between the parties, various writings described the curtainwall. F.or example, on PNA’s bid under the “Price Schedule,” PNA lists the proposed prices of various materials, including a unitized curtain wall, punched openings, metal panels, exterior glass handrails, entry doors,-a revolving door, and a cable net wall. (Docket # 15 Ex. 13 at 7). Nowhere in this itemized list does it detail the cost of labor or installation services. (Docket #15 Ex. 13 at 7). Thus,,with regard to the first factor, it appears' that the parties ultimately negotiated with the value of materials, or goods, in mind. Similarly, under the third factor, the bid seems to indicate that the intrinsic worth of the curtainwall materials far outweighed any potential charges PNA would have made to CGS for its installation.
With regard to the second fáctor, although PNA, the “seller” in this case, does not ' explicitly describe the nature of its business, according to PNA’s brief, the dispute in this ease arose out of PNA’s award to “furnish, custom fabricate, and install” a curtainwall. (Docket # 19 at 2). In 'addition, PNA’s initial bid for the cur-tainwall described the “scope” of the project as the “engineering, material, fabrication, assembly, and erection of a custom unitized curtainwall, [and] Project management.” (Docket # 15 Ex. 13 at 7). Thus, the second factor weighs equally in favor of either a contract for goods or services.
In conclusion, under the Wisconsin Supreme Court’s “totality of the circumstances” test, the Court concludes- that the predominant purpose of PNA and CGS’s proposed agreement was for a product, namely, a curtainwall, rather than one for services. As such, the UCC governs.this case. ' ■
3.1.2 Foundational Principles of Contract Law.
The elements of an enforceable contract are a valid offer, acceptance, and bargained for consideration. Runzheimer Int'l, Ltd. v. Friedlen,
Because the UCC does not define the term “offer,” the Court must look to the common law of contracts. Rich Prods. Corp. v. Kemutec, Inc.,
Unlike the- common law,' acceptance of an offer under the UCC is treated more liberally. Architectural Metal Sys., Inc. v. Consol. Sys., Inc.,
The- notion that parties may become bound by contact in the absence of a “mirror image” response, and indeed without a writing at all, is accepted by Wisconsin courts. See e.g., Chudnow Const. Corp. v. Commercial Disc. Corp.,
The question of the parties’ intent to contract is one of fact. Peninsular Carpets, Inc. v. Bradley Homes, Inc.,
Under Wisconsin law, the inquiry into the parties’ intent to be bound is an objective one. Associated Milk Producers, Inc. v. Meadow Gold Dairies, Inc.,
In the context" of contract formation, parties are the “masters of their affairs.” Skycom Corp.,
3.1.3 CGS’s Award of the Curtainwall Project Based On PNA’s Bid Was An Agreement to Agree to a Subcontract
CGS argues that it is “straightforward” to conclude that: (1) PNA’s bid was an offer; (2) CGS’s awai'd of the curtainwall project to PNA was an acceptance; and (3) that the parties’ exchange of goods/services for a promise to pay was sufficient consideration to bind them to an agreement. (Docket #23 at 8-9). At first blush, this cut-and-dry recounting of events makes the merits of PNA’s motion appear simple to resolve. However, this formulaic recitation of the elements of a breach of contract action misses the forest for the trees. The Court must focus its analysis on determining whether the parties objectively manifested an intent to be bound in order to determine what, if any, contractual obligations CGS and PNA owed to each other. See Skycom Corp.,
The first argument CGS makes, without analysis, is that PNA’s bid was a valid offer. (Docket #23 at 9). As the UCC does not define the term “offer,” Wisconsin courts look to the common law. Rich Prods. Corp.,
PNA’s bid contained two parts: the first part derived from CGS’s Manual and the second part was printed on PNA’s letterhead. (Docket #15 Ex. 2). On CGS’s form, it stated, “the Bidder proposed] to furnish all labor, materials, tools, equipment” and “if awarded a contract, agree[d] to commence work and to fully complete this Work Category____”. (Docket #25 Ex. 2 at 2). Thereafter, PNA provided a price list for each aspect of the curtainwall project, including various “alternate” materials for the construction. (Docket # 25 Ex. 2 at 7). PNA also included a proposed “scope” of the proposal. (Docket # 25 Ex. 2 at 8). Regarding the project’s timeline, the bid states only that PNA would complete the work according to “a schedule to be established in collaboration” with CGS. (Docket #25 Ex. 2 at 2). There are no references to the terms of compensation or delivery.
Whether PNA’s initial bid constituted a sufficient offer for the sale of the
Based on these missing and/or incomplete bid terms, the Court finds it unlikely that PNA’s proposal would have reasonably led CGS to conclude that its assent to the bid would “conclude” their bargain. Significantly, CGS’s bid form incorporates CGS’s Manual by reference. (Docket # 15 Ex. 2). ’The Manual’s standard subcontract in turn makes clear that the parties would not be bound by any bids' and/or proposals. (Docket # 15 Ex.l' at 74). Instead, the Manual’s subcontract was clear: the parties would only become obligated to each other once they signed a fully integrated and superseding ■' subcontract. (Docket #15 Ex. 1 at 74) (“The Subcontract Docunients form the entire and integrated agreement between the parties and supersede all prior bidding, proposals, negotiations ' and/or agreements, written or oral, between Subcontractor and CGS.... ”). Though it is a close call, the Court concludes that PNA’s bid was not an offer.
CGS “awarded” the project to PNA “a couple of months” after its submission. (Docket # 18 ¶ 18). However, even assuming that PNA’s bid contained sufficient detail to constitute an “offer,”
PNA and CGS do not dispute that they were “working towards a signed contract,” with PNA’s bid and CGS’s standard subcontract being the “basis” for negotiations. (Docket # 18 ¶¶ 16, 20; Docket # 24 Ex. 3 at 80:5-6, 134:16-21). This notion is not unfamiliar with CGS, who admits that, in the real estate development industry, it is common practice for general contractors and subcontractors to enter into written subcontracts outlining the terms of their agreement. (Docket #18 ¶1). CGS, in fact, maintains such a policy. (Docket # 18 ¶ 2).
The documents provided by CGS to PNA further confirm that it intended to be bound to a superseding subcontract that the parties planned to sign at a later date. First, CGS provided its standard subcontract to PNA in April of 2013 within its Manual, which guided bidders through the bidding process. (Docket #18 ¶10). Thereafter, CGS again provided a copy of the standard subcontract to PNA in September of 2013 as the “basis” for contractual discussions. (Docket # 18 ¶ 15-16). In sweeping terms, the standard subcontract makes plain that the bid would not be the final expression of the parties’ bargain. (Docket # 15 Ex. 1 at 74). Instead it was the “[t]he Subcontract Documents [that would] form the entire and integrated agreement between the parties and supersede all prior bidding, proposals, negotiations and/or agreements, written or oral, between Subcontractor and CGS...:”. (Docket # 15- Ex. 1 at 74) (emphasis added). Though not exchanged until February, well after CGS selected PNA as the subcontractor of choice, CGS’s LOI also reiterates this point. (Docket # 18 ¶¶ 24, 30). (“Upon execution of the Subcontract ... the Subcontract ... shall supersede in all respects prior negotiations ... including this letter of intent.”).
The parties’ conduct likewise demonstrated that they were actively negotiating the terms of a subcontract. As early as May of 2013, PNA made clear that it would not engage in discussions about the subcontract without viewing the prime contract between CGS and the Project owner. (Docket # 18 ¶ 15). As PNA acknowledged in its May 2013 email, the prime contract was highly relevant because CGS’s standard subcontract incorporated the prime contact by reference. (Docket # 18 ¶ 15; see also Docket # 15 Ex. 1 at 74). What is more, CGS expressly communicated to PNA that it would not, and indeed could not, enter into á subcontract before getting the Project owner’s permission. (Docket # 18 ¶¶ 34-37). Both the prime contract, and the GMPA,
The price tag on the project changed on at least three separate occasions after the initial bid. This was unsurprising, as from the outset, PNA’s bid provided CGS with “alternate” materials that would lower the cost of the eurtainwall project. (Docket #25 Ex. 2 at 7). CGS actively engaged with PNA in this “value engineering” process to lower the financial burden of the eurtainwall. (Docket # 18 ¶¶ 12-13). For example, following PNA’s bid (which valued the project at approximately $12.7 million) the contract price dropped to approximately $7.7 million in the LOIs, raised back up to approximately $8 million in PNA’s Updated Bid Proposal, and then dropped back down again to approximately $7.8 million , in the June subcontracts. (Docket # 25 Ex. 2 at 3; Docket # 15 Ex. 8 at 2; Docket # 18 ¶ 31; Docket # 24 Ex. 29 at 3; Docket # 18 ¶ 67; Docket # 18 ¶ 71), These changes in the curtainwall’s price reflected the parties’ ongoing negotiations over the materials and scope of the project. (Docket # 18 ¶ 12-14).
While the intent-to-contract inquiry under the UCC does not hinge on an agreement over the price term, Ryan v. Wersi Elecs. GmbH & Co.,
What is more, CGS knowingly and actively participated in ongoing negotiations about pricing and other subcontract terms. Not only did CGS engage in the “value engineering” process to lower the price of
CGS relies heavily on an unpublished Seventh Circuit decision, Associated Milk, which, in its view, supports its conclusion that CGS and PNA became bound by virtue of their conduct.
When a dispute about pricing began, the defendant terminated the lease of the Platteville facility, and the plaintiff assumed its operations. Id. at 270. Though the parties did not sign a new contract during this three-month dispute, the plaintiff ultimately began to sell its milk at the fee the defendant requested, known as the “Super pool” price. Id. The plaintiff sued to recover lost profits from the difference between the prior (more expensive) pricing scheme and the “Super pool” price. Id.
Although the parties’ writings alone did not form a new contract, the Seventh Circuit concluded that the ongoing shipment and receipt of milk sufficed to evidence a binding agreement at the new “Super pool” price. Id. Interpreting the same UCC provisions as are relevant in this case, the court reiterated that “if the parties intend a contract, their conduct may create such an agreement, even if certain terms are left open or the moment a contract takes effect is unclear.” Id. at 271 (emphasis added). While acknowledging that the mere fact' that goods are shipped/received was not itself dispositive on the contract formation inquiry, the defendants had “specifically repudiated the parties’ course of dealing with respect to price,” and the plaintiff nonetheless continued to sell milk at the defendant’s price. Id. at 274. Moreover, the plaintiff had also acknowledged the defendant’s intent to form a new contract by accepting the defendant’s lease termination and all of the operations related to it. Id. In sum, the Court found that the parties had formed a new contract because the plaintiff and defendant had objectively manifested an intent to be bound to the “Super pool” price. Id.
The situation between CGS and PNA is entirely different from the parties in Associated Milk. First, while the shipment and receipt of goods is not the siné qua non of a contract, the court relied heavily on this aspect of the parties’ interaction because it defined the essential terms of the milk
CGS maintains that through the course of various meetings, one which was called a “kick-off,” the parties’ conduct evidenced an intent to be bound and proceed on the project.
Unlike the defendant’s clear repudiation of' the contract price and established course of dealing in' Associated Milk, CGS and PNA had not changed their position regarding the binding nature of the subcontract. Moreover, PNA and CGS were continually and actively negotiating the terms of their future agreement. Id. at 272; see also Lambert Corp. v. Evans,
3.1.4 The Letters of Intent Echoed the Parties’ Intent to Bound to a Subcontract
Secondarily, CGS' argues that the February and May LOIs formed a binding contract between the parties, which PNA breached when it disengaged from the cur-tainwall project.
As a general matter, and particularly in high stakes and complex business interactions such as,this, “inferences from silence are [often] perilous.” Coleman v. Interco Inc. Divisions’ Plans,
Most importantly, the plain language of the February and May LOIs makes it abundantly clear that the LOIs were not intended to form binding agreements between CGS and PNA. Both LOIs expressly confirm what the parties actions and communications had already established: CGS and PNA intended to enter into a binding and superseding subcontract. The LOIs stated, “it is the intent of [CGS] and [PNA] to enter into a Subcontract agreement ... Upon execution ... the Subcontract and its Exhibits shall supersede in all respects prior negotiations between [CGS] and [PNA] including this letter of intent.” (Docket #18 ¶¶24, 30).. In light of this unambiguous language, assuming that PNA would .have understood the May LOI to be an offer to contract, which PNA in turn accepted by silence, runs directly counter to the language that CGS used in
What is more, in response to CGS’s February LOI, PNA made clear that the project could not continue without an executed contract in place. (Docket #22 ¶ 25). Specifically, on March 5, 2014, PNA communicated to CGS that the “shop drawing submittal” deadline, set for July 4, 2014, was a hard stop date because “[a]n executed contract [would] need to be in place ... for us to proceed with the project.” (Docket # 22 ¶ 25). Thereafter, the fact that PNA did not offer any specific comment or objection to the May LOI is irrelevant because CGS should not have expected a response from PNA. Unlike the February LOI, where CGS specifically asked for PNA’s comments and review (Docket # 15, Ex. 8 at 1), CGS did not ask for any comment on the May LOI (Docket # 15 Ex. 10 at 1). Moreover,, the May LOI was not designed for PNA to sign; it was a vehicle to proceed with preliminary matters, like the provision of mock-up materials and glass samples. (Docket # 15 at 1; Docket # 22 ¶ 43). Lastly, that PNA was the one who had originally requested the LOI is irrelevant. Over the course of the. parties’ dealings, CGS and PNA continually reiterated their intention to be bound to a subcontract, not the LOIs.
3.1.5 PNA and CGS Stopped Negotiating Short of Signing A Subcontract
CGS’s final arguments are that PNA was bound to perform the curtainwall project because the parties formed binding contracts vis-a-vis PNA’s Updated Bid Proposal and CGS’s proposed subcontracts.
By the time the Updated Bid Proposal and the June subcontracts were exchanged, CGS had entered into a prime contract and GMPA with the Owner. (Docket # 18 ¶¶27, 34, 46, 66, 70). However, at no point during the months of May or June of.2014 did PNA or CGS indicate that a subcontract was no longer required to proceed. Additionally, at the time of the Updated Bid Proposal, CGS, through its internal emails, continued to acknowledge that PNA had issues with various aspects of the. subcontract. (Docket # 18 ¶¶ 52-57). First, PNA was concerned with, liquidated damages, liability for delay damages, and damages for delay by others. (Docket #18 ¶¶54-55). ^Moreover, .the parties were still in the process of refining the price term for the subcontract, which was approximately $8.47 million in the Updated Bid Proposal (Docket # 24 Ex. 28 at 21), and approximately $7.7 million in the June subcontracts (Docket # 18 ¶¶ 67, 71).
Internally, CGS continued to underscore the importance of the signed subcontract. (Docket # 18 ¶ 57) (“It will be very important to have the contract signed and sealed by the end of next week at the latest.”). CGS acknowledged that PNA had expressed, and continued to express, concerns about the subcontract’s terms. (Docket # 18 ¶¶ 62, 64-65). Only on June 12, 2014, did .the parties eventually exchange draft language regarding an Addendum to the contract. (Docket # 18 ¶ 63). Likewise, PNA maintained the position that it communicated to CGS in March of 2013: it could not hegin shop drawings until an executed subcontract was in place. (Docket # 18 ¶ 64).
Following the exchange of the June 13 and June 16 subcontracts, PNA disengaged from the project. (Docket # 18 ¶ 73-78). PNA never signed the proposed June subcontracts. (Docket # 18 ¶ 68, 72).
On a final note, the Court acknowledges that CGS argues that the reason for PNA’s disengagement is somehow relevant to whether it did, in fact, breach an alleged contract between the parties. (Docket #23 at 12). While PNA’s motivation for the disengagement may be relevant to a more policy-based inquiry, like that of promissory estoppel (see infra Part 3.2.2), CGS’s argument is based on a false premise: that the motivation for an alleged “breach” is somehow relevant to whether there existed a contract in the first instance. The Court rejects CGS’s argument. The issue in this ease is whether PNA and CGS ever formed a contract. It goes without saying that this inquiry turns on events that happened before PNA allegedly breached a contract with CGS.
In conclusion, PNA and CGS, through their written and oral communications, manifested a mutual understanding regarding their agreement to agree: they intended to enter a subcontract that would “integrate” and “supercede” all of their negotiations. Despite these protracted negotiations, CGS made clear that the parties could not be bound by' subcontract until the prime contract and GMPA were executed. While under Wisconsin law, a contract may be formed by conduct, and does not need to be signed to be effective, CGS and PNA, through their own words and actions, expressly manifested an intention not to be bound by any bids, agreements, proposals, or negotiations until they signed a written subcontract with the complete terms of their agreement. As there was no final subcontract agreed upon and signed -by the parties, PNA did not breach any contractual obligation to CGS and is, therefore, entitled to judgment as a matter of law. While the question of the parties’ intent to contract is often factually based, and therefore more difficult to dispose of at summary judgment, the undisputed facts make clear the parties lacked the requisite intention to be bound, thus making summary judgment appropriate in this case. See Skycom Corp.,
3.2 Promissory Estoppel
3.2.1 The Elements
Promissory estoppel is an equitable doctrine “intended to protect parties that have not entered into a contract, but nonetheless incurred damages acting in reliance on a promise made by another party.” Knauf Realty, LLC v. Prudential Real Estate Affiliates, Inc.,
CGS relies on the fact that the doctrine of promissory estoppel has found frequent application within the context of general contractor and subcontractor dispútes. (Docket # 23 at 14-15). In support, CGS cites the seminal case, Brennan v. Star Paving Company, which explained that the “very purpose of [promissory estoppel] is to make a promise binding even though there was no consideration in the sense of something that is bargained for and given in exchange. Reasonable reliance [on behalf of the general contractor] serves to hold the [subcontractor] in lieu of the consideration ordinarily required to make the offer binding.”
While the Seventh Circuit has, under appropriate circumstances, likewise found promissory estoppel applicable to general' contractor and -subcontractor disputes (see e.g., Janke Const. Co. v. Vulcan Materials Co.,
3.2.2 PNA Is Not Liable to CGS Under the Doctrine of Promissory Estoppel
A “promise” for purposes of promissory estoppel is a “manifestation of intent by the promisor to be bound, and is to be judged by an objective standard.” Major Mat Co. v. Monsanto Co.,
As discussed above, the Court finds--that the undisputed facts demonstrate that CGS and PNA did not objectively manifest an intent to be bound prior to the signing of a subcontract. (See supra Part. 3.1.3); In light of the Court’s
Regarding the . second element of promissory estoppel, even if PNA’s bid was sufficient to constitute a “promise,” the Court concludes that any reliance on PNA’s bid was unreasonable under the circumstances. . See e.g., Gruen Indus., Inc., 608 E.2d at 279-80; T & M Inventions, LLC,
The undisputed facts reveal that, from May of 2013 until June of 2014, the parties were actively negotiating the terms of their agreement. (Docket # 18 ¶¶ 15, 55). On the one hand, CGS argues that all of the essential terms were agreed upon by the parties. (Docket # 21 ¶ 59). On the other hand, it does not dispute the underlying facts regarding the negotiations, (Docket #21 ¶¶ 12-14, 20, 22, 24, 30, 52-56). Reflecting the ongoing nature of negotiations between the parties, the undisputed facts show that the price for the subcontract changed at least three times after PNA’s initial bid, and ranged from approximately $12 million to $7.7 million. (Docket # 25 Ex. 2 at 3; Docket # 15 Ex. 8 at 2; Docket # 18 ¶ 31; Docket # 24 Ex. 29 at 3; Docket #18 ¶ 67; Docket # 18 ¶ 71). In addition, from May of 2013 until June of 2014, PNA expressed concerns related to various subcontract provisions, including, but not limited to, the order of precedence of documents, remedies for nonpayment, compensation terms, damages and liability, and bonds. (Docket #18 ¶¶ 15, 22-23, 53, 55). Even CGS’s executives acknowledged that many of PNA’s subcontract concerns remained unaddressed in June of 2014. (Docket # 18 ¶ 64).
Moreover, GGS and PNA were both fully aware . of multiple contingencies that could have prevented the signing of a subcontract in the first instance. Specifically, the parties were waiting for permission to sign a subcontract from the Project’s owner. (Docket # 18 ¶¶ 19, 37-41). It was not until late May of 2014 that these agreements were .even in place. (Docket # 18 ¶¶ 27, 34). With these contingencies in mind, the Court not only doubts that the bid could have been “reasonably understood as legally enforceable” Garwood Packaging, Inc. v. Allen & Co., Inc.,
CGS argues that PNA should have reasonably expected' to induce CGS to action, ie.,' incorporating PNA’s bid • into the prime contract, (Docket #23 at 18-19). PNA, after all: (1) knew that CGS “would depend on [PNA] to - honor [its] bid if [CGS] carried [PNA’s] number in their quote to the owner” (Docket # 22 ¶ 13); (2) never warned CGS about the disen
Oh the one hand, PNA’s Senior Vice President, Mr. Kneeland, testified that, as an experienced subcontracting company, PNA “when signing a bid form understand^] that the general contractor ... may reasonably rely on the price being offered in the' bid when the general contractor furnishes a commitment to a price to the owner ...” (Docket # 22 ¶ 15).
While PNA’s continued involvement in the curtainwall project, despite knowledge about civil unrest in Thailand, is relevant to whether “justice” requires enforcement of the bid, the Court finds that these facts do not bear on the reasonableness of CGS’s reliance for two reasons. First, the undisputed facts do not indicate that CGS was definitively aware of the unavailability of GAT II for production. Rather, as late as February of 2014, “the GAT2 budget [was] just approved, [and] end of the year start assembly [was] a • perfect timing.” (Docket #22 ¶ 32(a); Docket #24 Ex. 19 at 1). ■ Moreover, even- if GAT II had not been available, PNA executives had expressed early on the possibility of moving production to Manila or increasing GAT II’s staff. (Docket # 24 Ex. 20). Thus, it appears that any potential “warning” from PNA about the availability of GAT II would have been either piremature or wholly unnecessary. Second, at no time did CGS or PNA express a contrary intention than to be bound by an executed subcontract.'-Thus, as the parties should have been objectively aware of their status as negotiating business partners until a subcontract was signed, PNA’s obligation to warn was not required.
Lastly, CGS’s reliance on Janke is misplaced. The defendant in that case “intentionally and successfully represented to Janke” that it would supply the pipe “as indicated” on the plan specifications for a real estate development. Janke Const. Co., Inc. v. Vulcan Materials Co.,
Ultimately, Janke is most relevant to the second and third elements of CGS’s promissory estoppel claim. Regarding the reasonableness CGS’s reliance on the bid, the Court finds that CGS and PNA were
Regarding the third element of promissory estoppel, the Court notes that CGS has not apparently suffered any detrimental reliance based on PNA’s bid. Skycom,
Finally, justice does not require the enforcement of PNA’s bid. At bottom, both CGS and PNA were experienced actors in the commercial real estate industry and were , operating. within a context of complex negotiations that involved contingent third party agreements. (Docket # 18 ¶¶ 37, 41). Both parties were sophisticated business entities and there is no indication that this is a situation where “one party with superior knowledge took advantage of the other party.” Gruen Indus., Inc.,
In conclusion, the Court finds that both CGS and PNA knew that a signed subcontract would form the final and full expression of their agreement. Because CGS was bargaining with PNA in full knowledge of these facts, CGS did not reasonably rely on PNA’s bid, did not incur any detriment as a result thereof, and justice does not require enforcement of PNA’s bid. The Seventh Circuit is clear: plaintiffs cannot use promissory estoppel into a “no lose” situation. T & M Inventions, LLC.,
3. CONCLUSION
The undisputed material facts establish that neither CGS nor PNA manifested an objective intention to be bound by contract prior, to signing a subcontract, which was contemplated to be the final expression of their bargain for a curtainwall. The extent of' the parties’ agreement was an
Accordingly,
IT IS ORDERED that the defendant’s motion for summary judgment (Docket # 16) be and the same is hereby GRANTED, as more fully described in detail above, and that this- action be and the same is hereby DISMISSED on the merits together with such costs as may be taxed by the Clerk.
The Clerk of Court is directed to enter judgment accordingly.
Notes
. While CGS did not formally move for summary judgment, it highlighted in its brief the authority of the Court uncler Federal Rule of Civil Procedure 56(f)(1) to sua sponte “grant summary judgment for a nonmovarit.” (Docket #23 at 4). As there is no genuine issue of material fact for trial on CGS’s claims, the Court finds it unnecessary to decide this case on the basis of Rule 56(f)(1).
. The undisputed facts are taken from the parties’ proposed findings of fact (See Docket # 18, # 22). The Court will note any disputes of fact, or properly made objections, as they arise. (See Docket # 21, # 26).
. A unitized curtainwall is a "preassembled, prefabricated unit" (Docket # 24 Ex. 10 at 14:5-11) that covers the exterior of a building for purposes of weatherproofing and aesthetics. (Docket # 23 at 1 n. 1).
. The “Subcontract Documents” referenced in CGS’s standard subcontract are more fully defined as,
all the terms and conditions of this Subcontract and its Exhibits; the Project general, supplemental and any special conditions; the Project design drawings, specifications and all addenda issued prior to the date of this Subcontract'; and all the terms and conditions of the Agreement between CGS and Project Owner (the "Prime Agreement") applicable to' the Subcontractor’s Work, including, but not limited to, any Contract Documents identified in that Prime Agreement; and the Project Manual.
(Docket # 15 Ex. 1 at 74).
.According to the deposition of Mikelis Abuls, the Executive Vice President and Chief Operating Officer for CGS (Docket # 24 at 1; Docket # 24 Ex. 1 at 21:19-22:3), the GMPA acts as a sort of financial reserve if á particular aspect of the construction project exceeds the contract price, such as what might occur in the event of a "contingency,” like weather, or other "potential gaps.” (Docket # 24 Ex. 1 at 41:22-42:18).
. The GMPA would, in turn, enable CGS to "lock[] in the Project pricing” between CGS and PNA. (Docket # 22 ¶ 53). In essence, the parties describe that without the GMPA to set the overall budget, CGS could not set the subcontractors’ budgets.
. To be clear, CGS disputes that the parties were actively negotiating the "essential terms and conditions of the scope of work,” which it
. Mr. Stanko is a former employee of PNA and was CGS’s frequent contact. (Docket # 24 Ex. 2 at 16:24-17:4, 47:12-16).
. CGS’s standard subcontract incorporates the prime contract by reference. (Docket # 15 Ex, 1 at 74.) ("The Contract between CGS and the Subcontractor includes all the terms and conditions of this Subcontract and its Exhibits ... and all the terms' and conditions of the Agreement between CGS and the Project Owner____”).
. The parties do not discuss, nor does deposition testimony confirm, the manner in which this subcontract was “updated" from CGS’s standard subcontract that appeared in the Manual. (Docket #18 ¶ 20; Docket # 24 Ex. 3 at 140:1-24).
. The parties do not explain the basis of PNA’s comments regarding the prime contract, as ?NA did not receive a copy of the prime contract between CGS and the Project owner until May 29, 2014. (Docket #18 ¶ 49). Regarding the subcontract, the terms that PNA was primarily concerned with centered around liability, damages, compensation for delay, and other payment related terms. (Docket # 18 ¶ 23). Within the context of the prime contract, PNA wanted to address document precedence, compensation for delay, mark up on change orders, and bonds. (Docket # 18 ¶ 23).
. While the parties’ briefs and findings of fact do not specifically address when conversations regarding manufacture of curtainwall components in Thailand began, the bid does reference under the "Alternates” section a “Unitized Curtainwall Alternate Procurement Model — Thailand,” (Docket #15 Ex. 2 at 7). In addition, according to Kneeland, the “opportunity” for CGS and PNA to work together
. Kahler Slater is the architect for the Project. (Docket # 24 Ex. 3 at 158:11-12.).
, The parties dispute whether PNA generally begins preliminary shape drawings before payment. (Docket #26 ¶ 41(a); compare Docket # 24 Ex. 10 at 17:7-19 with Docket #24 Ex. 2 at 170:16-171:2). However, this fact. is. immaterial. Even assuming that PNA generally does - not begin preliminary shape drawings until payment is made, the parties do not dispute that a financial commitment was set forth in the LOIs. Moreover, the critical date in this preliminary negotiation process was not the shape drawing deadline, but rather the shop drawing submittal date. (Docket # 15 Ex. 9 at 1; see also Docket #18 ¶ 25, 64), It is undisputed that PNA would nbt proceed with construction, by submitting shop drawings, until a contract was executed. (Docket # 15 Ex. 9 at 1; see also Docket #18 ¶ 25).
. PNA's internal, emails reflect the fact that the company would "not allow us. to sign a contract without some limits on delay damages.” (Docket# 15 Ex, 16 at 1). Moreover, PNA's concern with compensation for delay arose -out of the fact that PNA did not have available "contingency funds,” and would thus be "without a remedy in the event of a delay caused by another party.” (Docket #15 Ex. 16 at 2).
. Though the parties do not dispute the application of Wisconsin law, the Court, when sitting in diversity, must apply the choice of law principles of the forum state to determine what substantive law governs the proceedings. Tanner v. Jupiter Realty Corp.,
. The Court- notes that Novelly Oil was primarily focused on interpretation of a similar UCC provision, Wis. Stat. § 402.204(3). Novelly Oil Co.,
. Related to the bid, CGS also appeárs to argue, in the context of its promissory estop-pel claim, that even if PNA and CGS never signed a subcontract, the parties would have become bound by the terms of its blank, standard subcontract, which was provided to PNA during the bidding process. (Docket # 23 at 19). This is because the bid states that "[e]ach bid shall be based on using the Standard CG Schmidt Subcontract. The bidder must accept all terms of the Subcontract as a condition for submitting a bid.” (See Docket # 23 at 8, 19). The subcontract provided to PNA at the bidding phase was blank. (See Docket # 15 Ex. 1 at 72). Beyond the fact that the subcontract requires execution to be effective (see Docket #15' Ex. 1 at 71-74 regarding "review” and "execution” of the subcontract), the blank subcontract in the Manual, in and of itself, does not reflect an agreement regarding material terms. Moreover, without essential components of the “Subcontracts Documents” in place (i.e., the prime contract and the GMPA), the Court does not find CGS’s argument persuasive. After all, CGS was precluded from entering into a subcontract without the prime contract and GMPA from the outset, (Docket #18 ¶¶ 38-41).
. PNA’s bid may have constituted a "firm” offer, under the UCC, though this was never argued by the parties. See Wis. Stat, § 402.205. Under Wis. Stat. § 402.205, however, if the bid was a firm offer, it would not have been valid after July 19, 2013. Because the parties did not submit evidence about the precise date of CGS’s "award,” or argue that PNA’s bid was, in fact, a firm offer, the Court will not analyze this point.
. Likewise, the Court notes, that CGS presents, no argument supporting its position that the "award” of the curtainwall project constituted a "definite and seasonable expression of acceptance.” Neither in CGS’s brief, nor its accompanying findings of fact, does it detail .the time, place, or manner of the award’s communication. Deposition testimony indi.cates, however, that the selection of PNA’s bid was communicated verbally to PNA a "couple of months” later. (Docket # 24 Ex. 3 at 78:1-21). Disregarding this lack of specificity regarding CGS’s purported award, a review of the parties’ words, communications, and con- , duct reveals that neither PNA nor CGS manifested an intention to be bound to the bid.
. Specifically, PNA relayed its concerns about payment terms, compensation for delay, the order of document precedence, remedies in the event of nonpayment, and limitations of consequential, direct or similar damages, and duration and the form of bonds. (See Docket # 18 ¶¶ 15, 20).
. These concerns centered on similar items, including document precedence, eompensation for delay, notice of delay, mark up on change orders, and bonds.
.Despite PNA’s initial request in its May 2013 email to see the prime contract (or a redacted version thereof), CGS did not execute that document, or provide it to PNA, until May of 2014, (Docket #. 18 ¶¶ 15, 48-49). The GMPA, likewise, was not executed until May 27; 2014. (Docket # 18 ¶ 34).
. It is unclear whether CGS's arguments under Associated Milk applies only to the contract that was purportedly formed under the bid, " the LOI, the Updated Bid Proposal, and/or the proposed June subcontracts. (See Docket # 23 at 6-8). Since the discussion of that case is not within the context of any of the subheadings that analyze these documents, the Court will address this point at the current juncture, as CGS devotes the majority of its breach of contract argument to the initial bid. (Docket # 23 at 6-8).
. The parties also dispute whether the preliminary shape drawings were dependent upon PNA's receipt of an executed contract. This fact, however, is immaterial, as PNA was clear that it was indeed the shop drawings, not the shape drawings, that would not be completed without a subcontract in place.
. Another shortcoming in this argument is that the purported conduct that evidenced CGS and PNA’s intent to bound to the initial bid, namely the ‘‘kick-off’*' meeting, did not occur until almost a year after the bid submission. The Court highlights this fact to reinforce its conclusion: that the parties were in active negotiations’from the time of the bid proposal until disengagement.
. CGS, despite applying the UCC, assumes, without discussion, .that all of the alleged "contracts” between PNA and CGS would pass muster under the UCC’s statute of frauds. This is, after all, a sale of goods for over $500, and thus the UCC statute of frauds applies. See Wis. Stat § 402.201, Because PNA never signed any of the LOIs, this issue is most relevant at the current point in the Court’s discussion. As the parties did not brief or raise this issue, the Court will not discuss it at length, though it is a significant, analytical shortcoming with respect to CGS’s arguments.
. CGS likewise fails to argue how the terms of these successive contracts would be affected by each others’ terms.
. CGS also devotes a paragraph to other "miscellaneous” agreements. However, under this heading CGS merely argues that the "kick-off” meeting, exchange of design information, and shape drawings demonstrated performance of the contract and an intent to be bound. As these arguments have already been addressed throughout the Court’s Order, they will not be addressed separately.
. This fact is- undisputed, though PNA objected to this testimony as speculation.
. This fact is undisputed,, though PNA objected to this testimony as speculation.