Opinion
October 5, 1960 —
November 1, 1960.
APPEAL from a judgment of the county court of Washington county: MILTON L. MEISTER, Circuit Judge, Presiding. Affirmed.
For the appellant there were briefs by Thiel, Allan Storck of Mayville, and oral argument by Lloyd D. Allen.
For the respondents there was a brief by O'Meara O'Meara of West Bend, and oral argument by Stephen M. O'Meara.
On November 23, 1957, plaintiff school district brought action for damages for breach of contract against Mr. and Mrs. Frey, copartners and general contractors.
Plaintiff school district advertised for bids for the construction of a new school building. It alleged that the Freys offered to perform the heating and ventilating branch of the work for $18,923; that this bid was accepted; that the Freys refused to perform; and that the school district was compelled to have the work done by another at a greater price. The Freys denied offering to perform the heating and ventilating branch of the work, but alleged that the proposal they made was a combined bid covering general construction, electrical work, heating and ventilating, and plumbing and sewerage. The court found that the facts were as claimed by the Freys. On February 2, 1960, judgment was entered accordingly. The school district appealed.
The advertisement said in part:
"Bids will be received for the General Construction, Heating-Ventilating, Plumbing-Sewerage, and Electrical-Fixtures and shall . . . designate on the envelope the branch of work covered by the bid."
The advertisement did not refer to combined bids, but did instruct bidders where to obtain the "contract documents."
The dittoed form entitled "Contract Proposal," which was one of the contract documents, contained a footnote as follows:
"Bidders may submit a combined bid but must be accompanied by separate proposals for each branch of work included in the combined bid as in accordance with advertisement for bids."
The form contained a statement that it was submitted in accordance with sec. 66.29, Stats., and the advertisement for bids made a similar reference.
The "Instructions to Bidders" contained the following:
"Identify on the envelope the branch of work covered in the proposal. . . .
"Indicate that your bid covers the following: `General Construction' or `Heating Ventilating' or `Plumbing Sewerage' or `Electrical Fixtures.' If submitting a combined bid in addition to separate bids on the above please indicate all branches covered in this proposal. . . The alternates must be quoted as additions or deductions from the base bid on each branch or [sic] work. If a combined bid on more than one branch of work is submitted, the alternate quotations given under the bid for each branch or [sic] work as separately quoted shall be assumed to apply on the combined bid. You are requested to indicate whether a certified check or bond is furnished with your bid."
The Freys submitted one sealed envelope. It was not available at the trial, but there was testimony that it was marked "Combined bid for general construction, plumbing, heating and electrical." Inside the envelope were documents fastened together with a paper clip, and so far as material, these were defendants' Exhibit A, and plaintiff's Exhibits 3, 4, 5, 6, and 10.
Defendants' Exhibit A was in letter form, addressed to the clerk of the district, and signed by Mr. Frey in behalf of the partnership. It read:
"We wish to submit a combined bid on the General Construction, Electrical Work, Heating Ventilating Work, and Plumbing Sewerage for the above project according to the following schedule:
"General Construction $82,989 "Electrical Work 6,932 "Heating Ventilating 18,923 "Plumbing Sewerage 10,957 -------- "$119, 801" Plaintiff's Exhibit 3 was one of the dittoed forms of contract proposal with typewritten insertions and signed by the Freys. In form, it was a proposal to perform the general construction branch of work for $82,989, and it set forth adjustments to be made in the base bid if certain alternative constructions described in the specifications for that branch of the work were performed. Plaintiff's Exhibit 4 was in similar form with respect to heating and ventilating work, and the amount was $18,923. Plaintiff's Exhibit 5 was in similar form with respect to the electrical branch of the work for $6,932, and Exhibit 6 was in similar form with respect to the plumbing and sewerage branch of the work for $10,957. In each of these forms there was reference to an accompanying bid bond in the amount of five per cent of the base bid. The only bond included was plaintiff's Exhibit 10. It was a bid bond with a corporate surety, and typewritten insertions were made so that the surety would be liable only if the Freys, as principal, failed to enter into a contract and give the required performance bond after notification of acceptance of their "combined bid for the general construction. plumbing, heating ventilating, and electrical of new school building according to plans and specifications."The testimony disclosed that when the bids were opened in the presence of the board and the bidders, the architect read all the bids for one branch of work before reading the bids for another branch. While he apparently read the Frey figures for each branch in the appropriate category, he did make mention of the fact that this was a combined bid. After all the bids had been tabulated, the architect announced the names of the low bidders on each branch of the work. He included the Freys with respect to heating and ventilating but not with respect to any other branch of work. Mr. Frey then addressed the board and stated that his was a combined bid, and that no part of it could be separately accepted. The board, however, voted to award the contract for the heating and ventilating work to the Freys. The Freys then refused to execute the formal contract tendered by the board.
Plaintiff school district argues that Exhibit 4 must be considered without reference to the notation on the envelope and the contents of Exhibits A and 10; that Exhibits A, 4, 5, 6, and 7 were each separate offers. We agree that, standing alone, Exhibit 4 appears to be an offer to perform the heating and ventilating branch of the work for $18,923. If it be such, acceptance would create a contract.
The Freys argue that when all the documents are read together in the light of the notation on the envelope, it is evident that their only offer was to do the entire work for $119,801.
We note that under either theory the bid or bids submitted by the Freys did not comply fully with the invitation for bids. They supplied no bid bond which would be effective if there were separate offers, as contended by the school district, and offers to do less than all the work were accepted. On the other hand, the invitation called for separate offers for each branch of work whether or not an alternative offer was made to do two or more branches of the work in combination. We are concerned, however, with what offer or offers were actually made rather than the failure to respond to all the requirements of the invitation.
The school district was notified by the inscription on the envelope that a combined bid was inclosed. This notation was responsive to the invitation for bids, and is not extraneous evidence. Yet, if Exhibits 4, 5, 6, and 7 are treated as separate offers, there was, in fact, no combined bid. The price for the combined bid as stated in Exhibit A was the total of the prices specified for each branch of the work respectively in Exhibits 4, 5, 6, and 7. To have any meaning, a combined bid would provide that the entire work would be done at a different price, or upon different terms from those resulting from acceptance of all the separate offers to do branches of the work.
Exhibits 4, 5, 6, and 7 each referred to the bid bond, Exhibit 10. This bond would become effective by its express terms only if the combined bid were accepted. Its terms were inconsistent with the theory that four offers were being severally made. We conclude that the trial court properly read all the documents together, and that the Freys did not make four several offers plus an alternative combined offer, but only a single offer to do the entire work.
Counsel for the school district argues that Mr. Frey acquiesced in the treatment of his bid as four several bids because he did not orally notify the board to the contrary until all the bids were opened and tabulated. The testimony does not show that while the bids were being opened and tabulated, Exhibits 4, 5, 6, and 7 were so obviously treated as separate bids that Mr. Frey was called upon to make his oral announcement earlier than he did.
Counsel points to sec. 66.29(6), Stats., requiring that a municipality "shall separately let (a) plumbing, (b) heating and ventilating, and (c) electrical contracts . . ." and argues that an offer to do the entire work not accompanied by separate offers to do each branch would violate this statute. The reference to sec. 66.29 in the advertisement and contract documents would permit examination of that statute if necessary to determine the intent of the parties. The letting of a construction contract by the school district, however, was not governed by sec. 66.29 in any other sense. Sec. 66.29 does not apply to contracts by a public body for public work unless that body is charged by some other statute with the duty of advertising for, and receiving, proposals for such public work. Cullen v. Rock County (1943), 244 Wis. 237, 12 N.W.2d 38. Although the principle of the Cullen decision is no longer applicable to contracts entered into by counties, that change resulted from ch. 456, Laws of 1945, creating sec. 59.07(4)(c), now appearing as sec. 59.08(1). See also ch. 280, Laws of 1949. No statute requires a school district to advertise for proposals for construction.
By the Court. — Judgment affirmed.