Bid Acceptance Not a Contract, Court Rules
The written contract is not a formality, and a vote to award a contract is not binding until the document is actually signed.
The September 2004
Construction Advisor reported on an Arizona Court of Appeals decision, in
Ry-Tan Construction, Inc. v. Washington Elementary School District No. 6, in
which the Court ruled that formal contract execution may not be required to bind
the parties in the awarding of a contract.
That decision was vacated
in May 2005 by the state Supreme Court, which also reversed the trial court’s
ruling for Ry-Tan Construction. The Supreme Court found that the Washington
Elementary School District board was free to withdraw its acceptance of Ry-Tan’s
bid prior to the signing of the contract, even though Ry-Tan, relying on the
award, had begun work on the district’s project.
was the lowest qualified bidder on a public school project. The school board
voted to award the contract to Ry-Tan, and a letter documenting the award and a
notice to proceed were prepared for delivery to Ry-Tan.
Before the contract
documents were formally executed, Ry-Tan moved equipment onto the jobsite and
began construction. Ry-Tan was familiar with the jobsite and the location of
utility lines and, thus, did not request a “blue stake” inspection of utility
lines at the project site before beginning work. When the school board became
aware that Ry-Tan began work without a blue stake inspection, it refused to sign
the contract that it had awarded to Ry-Tan and ultimately voted to re-bid the
Ry-Tan sued for breach of
contract, won in Superior Court, and won again in the Court of Appeals.
In its ruling, the state Supreme Court relied on its 1951
Covington decision, which held that a public agency that accepts a bid on a
public contract is not bound until a formal contract exists. Attorneys for Ry-Tan
argued, unsuccessfully, that Covington did not apply to this case and,
alternatively, whether it applied or not, it was a bad decision and should be
Ry-Tan also contended
that, since the Arizona School District Procurement Code required the district
to award the contract to “the lowest responsible and responsive bidder whose bid
conforms to … the invitation for bids,” the district had no choice but to
contract with Ry-Tan and, thus, the signing of the contract was a mere
formality. The Court acknowledged that requirement but noted that “nothing in
the Code expressly prohibits a public entity from withdrawing a bid after
acceptance of the bid but prior to the award of the project.”
moral of the story should come as no surprise: The written contract is not a
formality, and a vote to award a contract is not binding until the document is