Fletcher-harlee v. Pote ConcreteActivity

Instructions: Please draft a written response to the following prompts/questions:

1. The parties' expectations:
   1. Do you think that Fletcher-harlee expected Pote to be bound once Fletcher-harlee accepted Pote's bid? How do you know?
   2. Was it reasonable for Fletcher-harlee to expect Pote to be bound once Fletcher-harlee accepted Pote's bid? Why or why not? How do you know?
   3. What do you think Pote would say in response to a contention by Fletcher-harlee that it should be bound by its bid? Do you agree with Pote's position? Why or why not?
   4. If you were Fletcher-harlee, what would you do next time you solicited bids before you relied upon any bid?
   5. If you were Fletcher-harlee, would you do business with Pote in the future?
2. In the industry, do general contractors generally expect the bids of subcontractors to be binding offers? How do you know? What would happen if they were not binding?
3. What doctrine of contract interpretation did the court apply in interpreting Pote's response to Fletcher-harlee's solicitation?
4. What is the definition of an offer?
5. According to the Court, was Fletcher-harlee's solicitation an offer? Why or why not? How do we know?
6. Was Pote's response to Fletcher-harlee's solicitation an offer? Why or why not? How do we know?
7. What is a counteroffer? How do we know the difference between an offer and a counteroffer? What is the difference? What does a counteroffer do that an offer does not do?
8. Did the Court hold Pote to the terms of its bid? If not, why not?

OPINION OF THE COURT

This is a cautionary tale of offer, acceptance, and commercial practice. In the construction industry, general contractors compete for work by submitting bids detailing how they will complete the project, the materials they will use, the time it will take, and the price they will charge. To prepare these bids, general contractors in turn solicit bids from more specialized subcontractors. It is well understood in the industry that bids at both levels are "firm offers;" in other words, subcontractorssubmit bids expecting to be held to their terms if selected. General contractors rely on subcontractors' bids to create a single-priced package of work. A subcontractor's subsequent refusal to honor its bid wreaks havoc on the general contractor's bid--and can quickly turn a profitable project into a financial "black hole."

Since the advent of legal realism, building the law around commercial practice has been a goal of common law courts. It stems from principles of judicial restraint: judges recognize that the repeat players in an industry often are more capable of setting the industry's ground rules than they are. Thus, we use relevant commercial practice to aid us in interpreting contracts.

As this case demonstrates, however, there is a contract-law principle more powerful than commercial practice: we interpret documents in accord with their plain language. When the text of a subcontractor's bid, which would typically be a firm offer, specifically states that it is not one, we must follow that text. Therefore, we cannot allow a general contractor who purports to accept such a bid to sue for breach of contract or for promissory estoppel.

I.

Fletcher-Harlee Corp., a general contractor, solicited bids from subcontractors on various aspects of a building project for which it intended to compete. In keeping with industry custom, Fletcher-Harlee's solicitation letter stipulated that bids must be held open for a minimum of 60 days and that subcontractors must agree to be accountable for the prices and proposals submitted. In response, Pote Concrete Contractors, Inc. submitted a written price quotation for providing the concrete for the project. Pote's "bid," however, did not conform to Fletcher-Harlee's terms; rather, it stipulated that its price quotation was for informational purposes only, did not constitute a "firm offer," and should not be relied on. Pote's response further stated that Pote did not agree to be held liable for any of the terms it submitted.

The terms that Pote submitted were the most favorable, and, for reasons not apparent from the record, Fletcher-Harlee relied on them in preparing its general bid despite Pote's stated limitations. Pote was quite serious about those limitations, and, when Fletcher-Harleewon the bid and tried to reduce Pote's terms to a written contract, it raised the price. This increase pushed Pote's bid above the next lowest one, and so Fletcher-Harlee ended up using a different concrete subcontractor and spending over $ 200,000 more than expected.

Fletcher-Harlee sued Pote in District Court for breach of contract and promissory estoppel. Determining that the facts pled did not support either theory of liability, the District Court granted Pote's motion, and Fletcher-Harlee now appeals to us. For the reasons that follow, we affirm.

II.

As any first-year law student knows, an offer and its acceptance are required to form a contract, and so we must decide how to characterize each of the communications between the parties.

Fletcher-Harlee solicited a bid from Pote. In its solicitation letter, Fletcher-Harlee stipulated that bids should be held open for 60 days and that the subcontractor would be held liable for the terms of the bid. Was this letter an offer? Probably not. The document itself is not in the record, but we suspect that it was merely a request to submit an offer. "An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Here, a subcontractor would understand that submitting a bid would not "conclude" the matter; rather, the general contractor would have to accept the bid to do so. The Restatement and New Jersey caselaw characterize solicitations like this one not as offers, but as invitations to make offers.

Second, Pote submitted to Fletcher-Harlee the terms on which it could complete the work. Was this an acceptance? Obviously not. Even if the Fletcher-Harlee communication were an offer, Pote's response could be no more than a counteroffer because its terms were materially different from those in the solicitation letter. Restatement (Second) of Contracts 59 (1981) ("A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer."). More importantly, because the submission expressly disclaimed Pote's intention to be bound, it could not be an offer. As quoted above, an offer is made when the offeree is justified in thinking that "his assent . . . will conclude" the deal. Here, the very terms of Pote's letter state that Fletcher-Harlee's assent would not.

No offer and no acceptance mean no contract. The District Court properly dismissed Fletcher-Harlee's breach of contract claim.

End of Document