" That the State Highway Department is subject to be sued on its contracts see also State Hwy. Dept. v. MacDougald Constr. Co., 54 Ga. App. 310 (1) ( 187 S.E. 734); Perkerson v. State Hwy. Bd., 56 Ga. App. 316 ( 192 S.E. 475); State Hwy. Dept. v. Marsh, 214 Ga. 693 ( 107 S.E.2d 179). This ground of demurrer is without merit. 2. (a) The contract in question here is substantially the same as others dealt with in State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758 ( 131 S.E.2d 808) and State Hwy. Dept. v. MacDougald Constr. Co., 102 Ga. App. 254 ( 115 S.E.2d 863). As to such contracts, which contain provisions for arbitration, provisions for decisions by the engineer, and provisions that such decisions shall be final, it was held in State Hwy. Dept. v. MacDougald Constr. Co., 189 Ga. 490 ( 6 S.E.2d 570) that such decisions, although erroneous, are binding on the parties in the absence of fraud or such gross mistake as would necessarily imply bad faith or a failure to exercise an honest judgment. The plaintiff under these criteria alleged by amendment that the defendant, through its engineers at the site, was guilty of such fraud and gross mistake as would imply bad faith and a failure to exercise a fair and honest judgment in that after it became apparent that the failures in proof-rolling the subbase were due to a faulty design it failed and refused over a period of months to make any effort to correct the design, required plaintiff to proof-
The City' argument is based on the legal principle that an offer must be accepted unequivocally for a contract to form. State Highway Dep't. v. Wright Contracting Co., 107 Ga.App. 758, 766, 131 S.E.2d 808, 813 (1963). If a party purportedly accepts an offer, but changes a term, then the party has actually generated a counteroffer.
In State Hwy. Dept. v. Wright Contracting Co., the Court of Appeals applied general contract principles to conclude that where the owner in a construction project orally orders extra work with notice that the contractor expects additional compensation, the owner thereby waives the contract's requirement of a written order for extra work and the contractor may recover compensation for the work performed. Id. at 758–759(1), 131 S.E.2d 808. That case, however, was decided in 1963, before the common law doctrine of sovereign immunity was afforded constitutional status by a 1974 amendment to the state Constitution authorizing the legislature to waive sovereign immunity.
The arbitration provision here states that arbitration is a condition "precedent to the filing of an action in any court involving the amount or rate of payment or settlement for work performed" and defines and limits the scope of arbitration. In fact the provision for arbitration found in State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758 ( 131 S.E.2d 808) (1973), is almost identical. In Wright Contracting Co. the court held that the extra work which was the subject of the controversy was a legal question and therefore not within the scope of the arbitration clause, but implicitly the court held that the arbitration clause was valid and enforceable.
Because Code Ann. § 109A-2 — 207 is inapplicable, we apply traditional offer-acceptance analysis and find that the "estimate" language constituted a counter-offer because of the variation in terms. E.g., Frey v. Friendly Motors, Inc., 129 Ga. App. 636 ( 200 S.E.2d 467); State Highway Dept. v. Wright Contracting Co., 107 Ga. App. 758, 766 ( 131 S.E.2d 808, 1 ALR3d 1260). See Code § 20-107.
This is true because the recovery could be had on quantum meruit for the value of the work which was not included in the contract price to be paid for construction of the project and which was nevertheless when completed accepted by the Highway Department. In the case of State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758 ( 131 S.E.2d 808), the Court of Appeals construed the same contract under identical circumstances as in the present case. It was there held the work was not within the contract and since the parties had failed to agree upon the price to be paid for the work, recovery could be had independently of the contract on quantum meruit. Remanded to the Court of Appeals. All the Justices concur, except Cook, J., disqualified.
Rather, “[t]here is no evidence that DOT ... did any affirmative act which would lead [BAC] to believe that it was not necessary for it to give timely notice of a claim.” Compare State Hwy. Dept. v. Wright Contracting Co., 107 Ga.App. 758, 764(1), 131 S.E.2d 808 (1963) (custom and practice of Highway Department to allow supplemental agreements upon completion of extra work, and its direction to contractor to complete work without first securing an agreement, contrary to what was required in the contract, led contractor to assume that provision had been waived).DOT v. Fru–Con Constr. Corp., 206 Ga.App. 821, 824(2), 426 S.E.2d 905 (1992) (citation and punctuation omitted) (finding that in absence of a request of extension, DOT was entitled to presume that delay in grading work was not considered by the contractor to be a ground for extension of the contract).
Therefore, jury issues were presented as to whether or not DOT's original traffic control plans were defective or unworkable; whether the appellee fulfilled its duty to inspect the site under § 102.05 prior to submitting its bid; whether or not the appellee should have recognized, prior to submitting its bid, that the DOT's plans were so flawed as to be unworkable; whether the appellee should have known that the problems with the DOT's plans would result in uncompensated extra work; and whether the DOT waived its § 102.05 defense by agreeing to address any traffic control problems "during construction." See Fincher v. Bergeron, 193 Ga. App. 256, 259 ( 387 S.E.2d 371) (1989); see also State Hwy. Dept. v. Hewitt Contracting Co., 113 Ga. App. 685, 691 ( 149 S.E.2d 499) (1966); State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758, 762 ( 131 S.E.2d 808) (1963) (finding that the conditions encountered on the project were not "such that the contractor should have been expected to have anticipated in the exercise of reasonable diligence. The fact that the contract makes provisions for extra work necessitated by unforeseen conditions is evidence enough that not every condition is expected to be anticipated.").
The evidence of record demonstrates that the instant case comes within the following legal principle: "`Where the owner, without claiming that the work is covered by the contract, orally orders extra work, as such, with notice that the contractor regards the work as extra and expects additional compensation therefor, the contractor can recover for the work notwithstanding a stipulation of the contract requiring a written order therefor.' [Cits.]" State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758, 764 ( 131 S.E.2d 808) (1963). See also Biltmore Constr. Co. v. Tri-State Elec. Contractors, 137 Ga. App. 504, 506 (1) ( 224 S.E.2d 487) (1976).
This constituted a new offer by Ragsdale, which was never accepted. Estes Lumber Co. v. Palmyra Yellow Pine Co., 29 Ga. App. 15 (1) ( 113 S.E. 821) (1922); State Hwy Dept. v. Wright Contracting Co., 107 Ga. App. 758, 765 ( 131 S.E.2d 808) (1963). The terms of Ragsdale's final offer were clearly at variance with the Bryans' counteroffer. "`In order to make any sort of a contract the offer of the seller must be accepted by the purchaser unequivocally, unconditionally, and without variance of any sort. . . An absolute acceptance of a proposal, coupled with a condition, will not be a complete contract; because there does not exist the requisite mutual assent to the same thing in the same sense.