H. GORE ENTERPRISES, INC., D/B/A MURPHY'S TOWING, APPELLANT,
v.
CITY OF WEST PALM BEACH, APPELLEE
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The Fourth District Court of Appeal affirmed the trial court's judgment that the City of West Palm Beach's announcement of acceptance of H. Gore Enterprises' sealed bid for towing services did not create a binding contract, despite the general rule that accepted sealed bids form contracts. The court held that the City's procurement code distinguishes between an "award of bid" (vendor selection) and an "award of contract" (binding agreement), and that both parties understood the bid award as merely the selection of a vendor for subsequent contract negotiations.
The announcement of the bid award did not create a binding contract. Although sealed bids generally become contracts upon acceptance, the City's procurement code distinguishes between "award of bid" and "award of contract," and the parties' mutual understanding was that the bid award constituted only vendor selection pending contract negotiations.
[1] A city's announcement of a bid award does not create a contract if the city's procurement code distinguishes between an "award of bid" and an "award of contract."
[2] A city's procurement code may imply that "award of bid" and "award of contract" are not synonymous by providing for protests that delay the "award of contract" pending re…
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Join FLexlaw to unlock all legal intelligence“There is, of course, ample authority for the general proposition that a sealed bid submitted in response to a solicitation for bids, when accepted, becomes a contract even though a formal contract has not been executed.”
Establishes the general rule that appellant relied upon, but signals it is not dispositive here.
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Join FLexlaw to unlock all legal intelligenceThe City of West Palm Beach solicited sealed bids for vehicle towing and storage services. The mayor announced that H. Gore Enterprises' bid was award…
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PER CURIAM.
The primary issue before the trial court was whether the City’s acceptance of appellant’s bid for towing and storage services created a contract between the City and appellant. We approve the trial court's cogent reasoning in holding that it did not, and affirm.
After the city commission reviewed sealed bids for vehicle towing and related services, the mayor announced that the bid was awarded to appellant. A timely protest was lodged by a competing bidder. Following a hearing on the protest, the city commission voted to rescind the award of bid to appellant, to reject all bids and to re-advertise. At that point in time a written contract had not been executed. Appellant filed suit seeking declaratory judgment, specific performance and temporary injunction on the theory a contract was created when its bid was accepted. The court entered judgment adverse to appellant on all counts.
There is, of course, ample authority for the general proposition that a sealed bid submitted in response to a solicitation for bids, when accepted, becomes a contract even though a formal contract has not been executed. See, e.g., Wood-Hopkins Contracting Co. v. Roger J. Au & Sons, 354 So. 2d 446 (Fla. 1st DCA1978); Schloesser v. Dill, 383 So. 2d 1129 (Fla. 3d DCA1980); Dedmond v. Escambia County, 244 So. 2d 758 (Fla. 1st DCA1971). But there is much more here than simply an offer and an acceptance.
Of primary significance to this case is the city’s procurement code which provides for both an “award of bid” and an “award of contract”. While neither term is defined, the code impliedly recognizes that the terms are not synonymous. For example, after the bids have been opened, and a bid award announced, an unsuccessful bidder may file a protest, the timely filing of which requires the award of the contract to be delayed pending resolution of such protest.1 Further indicative of the fact that the terms “award of bid” and “award of contract” were not intended to be synonymous is the interpretation placed on them by the city manager who, prior to the bid award, informed the city commission and appellant that the award of bid was simply the selection of a vendor with whom a contract would be negotiated but if such negotiations were unsuccessful the City would thereafter negotiate with the next bidder on the recommended list.
The court made a factual finding that neither appellant nor the city intended or understood that the announcement of the bid award itself created a contract between appellant and the city. The record contains competent substantial evidence to support that finding.
Affirmed.
STONE, J., BRESCHER, GEORGE A., Associate Judge, and OWEN, WILLIAM C., Jr., Senior Judge, concur. NOTE: OWEN, WILLIAM C„ Jr., Senior Judge, did not participate in oral argument but has reviewed the presentation made at that proceeding.
. If, as a result of hearing on the protest, a determination is made that the bid was in violation of law the proposed award of contract is required to be cancelled.
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Emerald Corr. Mgmt. v. BAY Cnty. Bd. OF Cnty. Comm'rs, 955 So. 2d 647 (Fla. 1st DCA 2007)…d. Further, at the conclusion of the RFP process, the procurement officer will seek authorization from the governing body to begin negotiating the terms of the contract with the highest ranking bidder. H. Gore Enters., Inc. v. City of W. Palm Beach, 617 So. 2d 1160, 1161 (Fla. 4th DCA 1993) (holding that no binding contract had been formed upon the first commission vote, because the award of the proposal was simply a selection of a vendor to negotiate a contract with). The contract is, thus, not formed until a…
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PCA Life Ins. Co. v. Metropolitan-Dade Cnty., 682 So. 2d 1102 (Fla. 3d DCA 1995)…n the merits, one of the elements necessary for the issuance of a preliminary injunction. Thompson v. Planning Comm’n, 464 So. 2d 1231 (Fla. 1st DCA 1985). A similar factual situation was presented in H. Gore Enterprises v. City of West Palm Beach, 617 So. 2d 1160 (Fla. 4th DCA 1993), in which the city, after voting in favor of one bidder for vehicle towing, rescinded the award- and re-advertised. The court denied injunctive relief to the party making the successful bid, and this court affirmed, because under…
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City OF Miami Beach v. Dickerman Overseas Contracting Co., 659 So. 2d 1106 (Fla. 3d DCA 1995)…ct once the successful bidder has been notified of the award. Compare Terra Group, Inc. (public body may not rescind award after successful bidder is notified); Schloesser (same); Dedmond (same), with H. Gore Enter., Inc. v. City of West Palm Beach, 617 So. 2d 1160 (Fla. 4th DCA 1993) (when city code provides for both “award of bid,” and “award of contract,” award of bid alone insufficient to create binding contract). Assuming, arguendo, that Dickerman’s interpretation of the paragraph was feasible, it would m…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wood-Hopkins Contracting Co. v. Roger J. AU & SON, Inc., 354 So. 2d 446 (Fla. 1st DCA 1978)
- Fla. Bd. OF Landscape Architects v. Connery, 244 So. 2d 758 (Fla. 1st DCA 1971)
- Schloesser v. Dill, 383 So. 2d 1129 (Fla. 3d DCA 1980)