Can the Contractor Change the Bid Price After Contract is Entered Into?

Full Question:

WE ARE SUBCONTRACTORS IN SARASOTA CO., WE HAVE JUST FINISHED A BIG JOB DOWNTOWN SARASOTA, THE CONTRACTOR KNOW WANTS TOO CHANGE OUR BID PRICE ON LINE ITEMS THAT WERE ON ALL OUR DRAWS ON AN AIA DOCUMENT AND A SIGNED AIA CONTRACT WE HAD WITH THEM BEFORE WE EVEN STARTED THE JOB LAST YEAR WE ARE AT THE FINAL DRAW PLUS RETAINAGE, THEY ARE TRYING TO MAKE LINE ITEMS THAT ARE SIGNED IN OUR BID AND CONTRACT WITH THEM, THEY ARE KNOW SAYING WE CHARED THEM TOO MUCH, AND HAVE ADD THEM UP LINE BY LINE AND ADDED THE CHANGE ORDER MARK UP % of 15% we charge on only change agreed upoun in our orininal contract with. the original bid was a lump sum with a price in it and the AIA draws have been submitted each month too them it is has been a problem job from start to finish but the line items and or bid price has never come up before. Can they back out of the bid price we have signed with them before we even started, I'm in the proscess of on Monday filling out and sending out notice of none payment to all involved, we have all the legal paper work filed since we started, notice of commencement, notice to owner's and have given release of leins to the from every one we owed and paid from the very begining of the job, they also are behind paying all our sub's and our material venders since the May 2009 draw.
07/26/2009   |   Category: Contractors   |   State: Florida   |   #17799


The general rule is that subcontractors providing bids to a general contractor must perform the work contemplated by their bids for the price quoted if the general contractor is chosen to perform the work. This rule is grounded in the doctrine of promissory estoppel and is followed in most jurisdictions.

Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds. The answer will depend on the contract terms and all the circumstances involved. For example, the contract may contain a price redetermination clause. It will be a matter of subjective determination for the court whether or not the bid was fraudulently inflated. In order to prove a fraud claim, it must be shown that the defendant had an intent to deceive. If deception was used to induce another to rely on a promise and such reliance caused harm, it is possible to recover damages. Fraud may be made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.

If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:

Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.

An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.

Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.

Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.

Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.

Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.

Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.

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