417 Pa. 39 | Pa. | 1965
Opinion by
Gabriel Modany, trading and doing business as Modany Brothers, and the American Casualty Company, brought an action in equity to enjoin the State Public School Building Authority from proceeding on Modany’s bid for the construction of a school building, and to declare the Modany bid null and void.
The State Public School Building Authority advertised for bids for the construction of the Baden Economy Joint School District in Beaver County. The advertisement provided the instructions and conditions of the job and, in addition thereto, provided the manner of submitting the bid and the manner of withdrawal of the bid. The instructions provided that a bid could be withdrawn when the bidder or his agent would personally appear at the Authority office with a written request to withdraw, prior to the time set for the opening of the bids.
On October 4, 1960, appellant, Modany, had completed the preparation of his bid. At 5:10 o’clock, E.D.S.T. on October 4, 1960, Albert Modany, the son of and agent of Gabriel Modany and the person responsible for the preparation of the bid, delivered the bid, together with a bid bond in the penal sum of $13,-000,
The appellant then sought to enjoin the Authority from acting on his bid and to have the bid declared null and void, because it had been withdrawn. The lower court had before it for consideration the effectiveness of the withdrawal of Modany’s bid and whether rescission of the contract should be decreed if the bid withdrawal was not effective. The court denied relief and dismissed the complaint and that adjudication was affirmed by the court en banc. This appeal followed.
On appeal from a final decree in equity, the findings of fact of the chancellor, affirmed by the court en banc, have the force and effect of a jury verdict and will not be reversed if there is adequate evidence to sustain them and if they are not premised on erroneous inferences and deductions or an error of law. Schwartz v. Urban Redevelopment Authority, 416 Pa. 503, 206 A. 2d 789 (1965). Our review of the instant
The State Public School Building Authority Act
Modany had knowledge of the requirement for the withdrawal of proposals and was bound to follow the requirements in order to accomplish a withdrawal of the proposal. He did nothing except to send the unverified telegram which did not mention a mistake in the bid. Instructions to Bidders are a material part of a contract. The Instructions to Bidders were part of the Contract Documents in this case. In the Proposal of Modany Brothers: “In conformity with the plans and specifications as prepared by B. J. McCandless, 239 Fourth Street, Ellwood City, Pennsylvania, Registered Architect, and having thereon the signature of approval of the Authority, and on file at the office of the State Public School Building Authority; and after an examination of the site of the work, and the Contract Documents including Instructions to Bidders, this Form of Proposal, Agreement, Bond and Conditions of Contract, the undersigned submits this pro
The orderly procedure of making an offer, particularly in regard to public contracts, requires care that the bidders be protected as well , as the public interest. This care extends to the procedure in withdrawal'of bids to prevent mischief. Reasonable regulations that protect these interests and are consonant with contract law will be upheld. An unverified telegram, and nothing more, as a means of withdrawing a bid is not conducive to the protection of bidders competing for public business. Reasonable and fair provisions surrounding competition for contracts for the performance of public works is necessary and, therefore, they must be established and maintained. . .
The record indicates that -Modany failed to withdraw his proposal in the manner provided for in the Instructions to Bidders. There seems to have been no attempt (except the sending of the unverified telegram, without a reason stated therein) to comply in any manner with the withdrawal provision. The indifference, shown by the record, reveals an attitude of complete unconcern. It would be difficult to conceive: a more negligent disregard for the requirement of withdrawal of bid.
As the chancellor said in his adjudication:- “Plaintiff knew, or certainly should have known, the- contents of paragraph 13 [the withdrawal provision’], of the- Instructions to Bidders. In his proposal he acknowledges
A public business should not be permitted to be conducted in this fashion.
The chancellor aptly said: “For the general welfare of the public this type of loose conduct in the contractual relations arising from public contracts should not
We agree. Modany fell far short of effectively withdrawing his bid.
Modany also sought relief in this equity action for rescission of the contract. The court refused to grant the relief prayed for. We agree.
Albert Modany, who prepared the bid, testified that due to his physical fatigue, he made some clerical errors in the preparation of the bid. In Colellaf supra, the plaintiff, a contractor, filed a complaint in equity against Allegheny County seeking a cancellation and return of its bid bond. Mr. Justice (now Mr. Chief Justice) Bell said: “If a person, from a firm or corporation submits a sealed bid on public works, the principle contended for by the contractor, namely, that after all the bids are opened he can withdraw his bid under the plea of a clerical mistake, would seriously undermine and make the requirement or system of sealed bids a mockery; it could likewise open wide the door to fraud and collusion between contractors and/or between contractors and the Public Authority. What is the use or purpose of a sealed bid if the bidder does not have to be bound by what he submits under seal? What is the use or purpose of requiring a surety bond as further protection for the public, i.e., the municipality, if a bidder can withdraw his bid under plea of clerical mistake, whenever he sees that his bid is so low that he must have made an error of judgment?”
The similarity between the Colella case and the within action is such that the ruling in the Colella case controls this ease and supports the denial of rescission. The chancellor in comparing the cases, said:
*48 “In the Colella case, as here, there was a great difference in the amount of the low bid and the second lowest. There, as here, the mistake was unilateral and the. result of negligence on the part of the bidder; and there, as here, the public body had no knowledge of the. mistake when the bids were opened.” See also Hedden, v. Northampton Area Joint School Authority, 396 Pa. 328, 152 A. 2d 463 (1959).
Decree affirmed. Costs on appellants.
The surety on the bid bond is the American Casualty Company of Reading, Pennsylvania, one of the appellants.
Act of July 5, 1947, P. L. 1217, 24 P.S. §791.1 et seq., as amended.
Id. §10: “If any project or any portion thereof, or any improvement thereof, shall be constructed pursuant to a contract, and the estimated cost thereof exceeds $500.00, such contract shall be awarded to the lowest responsible bidder after the advertisement for bids once a week . . .”
Id. §10: “The authority may make rules and regulations for the submission of bids and the construction or improvement of any project or portion thereof.”