George W. Kennedy Construction Co. v. City of Chicago

In George W. Kennedy Construction Co. v. City of Chicago, 135 Ill. App. 3d 306, 481 N.E.2d 913, 90 Ill. Dec. 113 (1985), the defendant city advertised a bid for a water main project; its pre-bid package comprised multiple sections of documents and, in particular, included one section entitled "Proposal and Acceptance" setting forth the bidder's proposed terms for the project, the signature page for the bidder and the page to be utilized by the city were it to accept that bidder's offer. The instructions on the signature page read: "'In the event that this bid is executed by other than the President of the bidding corporation, attach hereto a certified copy of that section Corporate By-laws or other authorization by the Corporation which permits the person to execute the offer for the corporation.'" Kennedy, 135 Ill. App. 3d at 309. Following this was a line for attestation by the corporate secretary. Plaintiff Kennedy, as well as the joint venture of Reliable Contracting & Equipment Company and Abbott Contractors, Inc., submitted bids. When the city opened the bids, Kennedy was found to be the lowest bidder. However, upon examination, it was revealed that, while the signature page contained the corporate name, address and secretary attestation, it was not executed by Kennedy' president or anyone other than the president with the required attached authorization. When the city notified Kennedy that its bid was nonresponsive, Kennedy, as Walsh here, filed a complaint for declaratory and injunctive relief, temporary restraining order, and preliminary and permanent injunction, seeking to be awarded the contract and prohibiting the city from awarding it to anyone else. As had the city, the trial court found that Kennedy's bid was not responsive, stating that while it would cost taxpayers additional money, it could not "'upset the bidding process' " that was in effect because to do so would open a "'Pandora's box to all sorts of games.'" Kennedy, 135 Ill. App. 3d at 310. On appeal, the Kennedy court stated that the principle issue was whether the omission of Kennedy's president's signature on the signature page created a material variance rendering Kennedy's bid nonresponsive. See Kennedy, 135 Ill. App. 3d at 310. After citing the same case law we have here regarding material variances, the Kennedy court answered the question in the affirmative because it found that Kennedy enjoyed a substantial advantage over other bidders. See Kennedy, 135 Ill. App. 3d at 310-11. The court noted that "it was incumbent upon all bidders to conform their bids to the requirements of the advertisements for bids and the instant bid package prepared and issued by the city specifically required that all bids be executed." Kennedy, 135 Ill. App. 3d at 311. The signature page required either the president's signature or the signature of a party authorized to sign for the corporation with the appropriate certification attached; Kennedy provided none of this, thus failing to execute the bid. See Kennedy, 135 Ill. App. 3d at 311. Kennedy argued to the reviewing court that this was immaterial, since its president had signed the bid package in seven different locations and, accordingly, this was sufficient to bind it, or provided sufficient evidence that it intended to be bound, to its bid. See Kennedy, 135 Ill. App. 3d at 312. The Kennedy court did not accept this argument. Instead, it noted that a signature on the signature page at issue was the operative signature to bind a bidder to its bid, since it was this page that concluded the "Proposal and Acceptance" section providing the bidder's proposed contract terms and other commitments. See Kennedy, 135 Ill. App. 3d at 311. Because Kennedy did not sign it, Kennedy was not bound to the terms of its bid and, if awarded the contract, could walk away at any time, thereby placing it in an advantageous position over other bidders. See Kennedy, 135 Ill. App. 3d at 311. Moreover, the Kennedy court found that none of the seven other places in the bid that Kennedy's president signed were adequate substitutes for the signature page. See Kennedy, 135 Ill. App. 3d at 312. Rather, they were "agreements subsidiary to the contract" and did not represent any binding commitment. Kennedy, 135 Ill. App. 3d at 312. Accordingly, the Kennedy court concluded that the trial court's decision that the variance was material and rendered Kennedy's bid nonresponsive was proper. See Kennedy, 135 Ill. App. 3d at 314.