{ "id": 3600714, "name": "GEORGE W. KENNEDY CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees", "name_abbreviation": "George W. Kennedy Construction Co. v. City of Chicago", "decision_date": "1985-07-18", "docket_number": "No. 85\u2014972", "first_page": "306", "last_page": "316", "citations": [ { "type": "official", "cite": "135 Ill. App. 3d 306" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "74 N.E.2d 1056", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "216 Ill. 320", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3359064 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill/216/0320-01" ] }, { "cite": "210 Cal. Rptr. 99", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "163 Cal. App. 3d 1175", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2124043 ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/163/1175-01" ] }, { "cite": "432 N.E.2d 1016", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5474299 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0380-01" ] }, { "cite": "205 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. App. 2d 227", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2598404 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0227-01" ] }, { "cite": "82 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "401 Ill. 288", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306677 ], "opinion_index": 0, "case_paths": [ "/ill/401/0288-01" ] }, { "cite": "491 P.2d 684", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "5 Wash. App. 887", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1867032 ], "opinion_index": 0, "case_paths": [ "/wash-app/5/0887-01" ] }, { "cite": "422 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 340", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3113272 ], "weight": 2, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0340-01" ] }, { "cite": "398 N.E.2d 224", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "79 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5606996 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/79/0221-01" ] }, { "cite": "431 N.E.2d 1205", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "103 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5479315 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/103/0785-01" ] }, { "cite": "434 N.E.2d 786", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "105 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5470554 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/105/0723-01" ] }, { "cite": "452 N.E.2d 883", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "117 Ill. App. 3d 100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482183 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/ill-app-3d/117/0100-01" ] }, { "cite": "422 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 1 }, { "cite": "97 Ill. App. 3d 340", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3113272 ], "weight": 3, "pin_cites": [ { "page": "344" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/97/0340-01" ] } ], "analysis": { "cardinality": 953, "char_count": 24646, "ocr_confidence": 0.744, "pagerank": { "raw": 8.98404528636397e-08, "percentile": 0.502676603925557 }, "sha256": "e28db92fbacf74277d5d010d1ea46cc11151499d94249d04190ddbba168a2a9d", "simhash": "1:2d867eb67b7bd5c6", "word_count": 3992 }, "last_updated": "2023-07-14T21:44:15.524885+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE W. KENNEDY CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE JIGANTI\ndelivered the opinion of the court:\nThe plaintiff, George W. Kennedy Construction Company (hereinafter Kennedy), appeals from the trial court\u2019s order denying its motion for summary judgment and granting a motion for summary judgment to the defendants city of Chicago and William Spicer, the city\u2019s purchasing agent (hereinafter the city) and Reliable Contracting & Equipment Company and Abbott Contractors, Inc., a joint venture (hereinafter Reliable). In its ruling the trial court found that Kennedy\u2019s bid to construct a 48-inch water main project was unresponsive in that it contained a material variance as a result of Kennedy\u2019s failure to properly execute a signature sheet within the bid proposal.\nOn December 21, 1984, the city formally advertised in the Chicago Tribune for construction bids on two separate water main projects, a 60-inch water main and a 48-inch water main. Both Kennedy and Reliable submitted bids on each of the two projects. On January 11, 1985, the city opened the sealed bids. Kennedy was thereafter notified by the city that it was the lowest responsible bidder on the 60-inch project and that it would be awarded that contract pursuant to section 8 \u2014 10\u20143 of the Illinois Municipal code (Ill. Rev. Stat. 1983, ch. 24, par. 8 \u2014 10\u20143), which provides that \u201call purchase orders or contracts *** involving amounts in excess of $10,000, made by or on behalf of any such municipality, shall be let by free and open competetive [sic] bidding after advertisement, to the lowest responsible bidder.\u201d The contract for the 60-inch project is not at issue in the instant appeal.\nKennedy was also the lowest responsible bidder on the 48-inch project. The bid package submitted by Kennedy for this project was comprised of multiple sections of documents, all of which were part of the uniform contract prepared and issued by the city. Various designated sections provided information regarding the advertisement for bids, the requirements and instructions to the bidders and the general conditions for the bid. There was also a section that listed the special conditions required for the project and a \u201cProposal and Acceptance\u201d section that set forth the bidder\u2019s proposed terms for the project, the signature page for the bidder and the page to be utilized by the city were it to accept the bidder\u2019s offer. On its cover page, the bid package directed that \u201cBIDS TO BE EXECUTED IN TRIPLICATE.\u201d\nThe most significant component of the bid package for purpose of this appeal was the \u201cProposal and Acceptance\u201d section. This section states generally that \u201c[t]he undersigned proposes to construct [a 48-inch water main] as required by this Contract, to perform everything required to be performed and to provide and furnish all the labor, materials, tools, equipment, expendable and otherwise, and- all accessories and transportation services necessary to perform and complete, in a workmanlike manner, and within the specified time the work required, all in accordance with the Contract documents at the Contract unit prices.\u201d Following this opening portion of the proposal, there are additional provisions concerning time of completion, liquidated damages and specific prices for items. Next, there are a number of other pages setting forth specific contract terms, such as: minority business participation, uncompleted work and disclosure of ownership interests. The proposal concludes with three alternative signature pages; one if made by an individual, another if made by a partnership and the third, applicable to the instant case, is for a proposal made by a corporation. This third signature page, the corporate signature page, is entitled \u201cTo Be Executed By A Corporation.\u201d Finally, following the three \u201csignature sheets\u201d is a blank \u201cAcceptance\u201d page to be executed by the city.\nSpecifically, the corporate signature page has a line for the corporate name. The blank beneath it requests the president\u2019s signature and is preceded by the printed word, \u201cBy.\u201d A parenthetical clause beneath these blanks directs that \u201c[i]n the event that this bid is executed by other than the President, 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.\u201d Next, is a line for attestation by the corporate secretary.\nThe various schedules and affidavits contained in the \u201cProposal and Acceptance\u201d section set forth proposed contract terms and were all signed by people other than Kennedy\u2019s president. Specifically, there was an affidavit signed by Kennedy\u2019s secretary regarding Kennedy\u2019s uncompleted contracts and outstanding bids. There was also an affidavit signed by the vice-president of the Minority Business Enterprise (MBE) setting forth particular business data regarding that firm and a letter of intent, executed by the vice-president, indicating that firm\u2019s commitment to serve as subcontractor. In conjunction thereto was an affidavit executed by Kennedy\u2019s secretary attesting to the information provided by the MBE and acknowledging Kennedy\u2019s intent to serve as the MBE\u2019s general contractor. Kennedy\u2019s secretary also executed a disclosure of ownership interests form.\nIn a separate section of the bid package, the section listing the special conditions for the project, were two pages executed by Kennedy\u2019s secretary. One was the status report on the MBE\u2019s payments and the second an affidavit regarding Kennedy\u2019s commitment to hire Chicago residents as employees. Also included in the bid package was a \u201cBid or Proposal Bond\u201d executed by Kennedy\u2019s secretary.\nFor the purpose of this appeal, the critical page is the corporate signature page in the \u201cProposal and Acceptance\u201d section of the bid package. This is the contested portion of the contract, because, although it contains the corporate name and address and it was attested to by the corporate secretary, it was not in fact executed by the president or by anyone \u201cother than the president\u201d that attached a \u201ccertified copy of that section of the corporate by-laws or other authorization by the corporation which permits that person to execute the offer for the corporation.\u201d\nOn January 16, 1985, five days after the bid opening, an employee for the city\u2019s purchasing department contacted Kennedy. Whereafter, George W. Kennedy, Kennedy\u2019s president, met with the city and signed the corporate signature page of Kennedy\u2019s \u201cProposal and Acceptance\u201d section. On February 28, 1985, the city then informed Kennedy that its bid on the 48-inch project was not responsive because it was not properly signed at the time it was submitted and formally opened and therefore Kennedy would not be awarded the contract.\nOn March 11, 1985, Kennedy filed a complaint for declaratory relief, injunctive relief, mandamus and certiorari, a motion for temporary restraining order and a motion for preliminary and permanent injunction, ultimately seeking to be awarded the contract for the 48-inch project. The trial court entered a temporary restraining order on April 3, 1985, prohibiting the city from awarding the contract for the 48-inch project.\nOn April 8, 1985, following arguments on motions for summary judgment filed by all the parties, the trial court found that Kennedy\u2019s bid was not fully responsive. The judge stated that although the rejection of Kennedy\u2019s bid will \u201ccost the taxpayers additional money, I cannot upset the bidding process that has been placed in effect. To permit this contract to be acknowledged with a signature five days later opens Pandora\u2019s box to all sorts of games.\u201d\nConsequently, the trial court dissolved the previously entered temporary restraining order, denied Kennedy\u2019s motion for preliminary and permanent injunction, denied Kennedy\u2019s motion for summary judgment and granted the defendants\u2019 motions for summary judgment. The court also denied Kennedy\u2019s motion to stay the judgment pending appeal.\nOn April 10, 1985, Kennedy filed notice of appeal from the trial court\u2019s order of April 8, 1985. Contemporaneously, the city formally accepted Reliable\u2019s bid on the 48-inch project.\nThe principle issue on appeal is whether the omission of Kennedy\u2019s president\u2019s signature on the corporate signature page creates a material variance rendering Kennedy\u2019s bid unresponsive. The relevant law regarding material variances is set forth in Leo Michuda & Son Co. v. Metropolitan Sanitary District (1981), 97 Ill. App. 3d 340, 344, 422 N.E.2d 1078, wherein the court explained:\n\u201cBids must conform to the advertised requirements of the invitation to bid. [Citations.] Although a \u2018minor\u2019 variance does not require rejection of the proposal [citation], a \u2018material\u2019 variance will require rejection of the proposal. [Citation.] A bid which contains a material variance is an unresponsive bid and may not be corrected after the bids have been opened in order to make it responsive. [Citation.] The test of whether a variance is material is whether it gives a bidder a substantial advantage or benefit not enjoyed by other bidders. [Citations.]\u201d\nIn Michuda, the apparent low bidder\u2019s goal disclosure form did not list subcontracts the bidder intended to award to minority and small businesses as was required by the advertisement for bids. The court found that this omission was a material variance which rendered the bid unresponsive. The court explained that if it allowed the low bidder to amend its bid after the bids were opened, such bidder would enjoy a substantial advantage over the other bidders by being able to negotiate with minority and small businesses with the knowledge that it had been awarded the contract.\nWe believe that Kennedy enjoyed a substantial advantage over the other bidders, thus, satisfying the test for material variance as discussed in Michuda. 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 clearly did not execute the corporate signature page. This page required either the president\u2019s signature or the signature of a party authorized \u201cto execute the offer for the corporation.\u201d Kennedy\u2019s proposal provided neither of those two signatures. The signature line for the president was blank, and, although Kennedy\u2019s corporate secretary signed the corporate signature page, his signature was located on the attestation line. Furthermore, Kennedy failed to attach a certified copy of the corporate bylaws or other authorization by the corporation which permits the secretary to execute the offer for the corporation.\nThe signature on the corporate signature page is the operative signature to bind Kennedy to its bid because this is the page that concludes the \u201cProposal and Acceptance\u201d section that provides the bidder\u2019s proposed contract terms and various other business commitments. This corporate signature page is required to be executed by the corporation and parenthetically it specifically declares that a proper signature will \u201cexecute the offer for the corporation.\u201d Therefore, as a result of its failure to properly execute this page, Kennedy was not bound to the terms of its bid and, if it were awarded the contract, Kennedy could disavow it at any time. This ability to disavow the contract would put Kennedy in a competitively advantageous position in relation to the other bidders. Consequently, Kennedy\u2019s proposal contained a material variance which rendered the bid unresponsive and necessitated the city to disregard it.\nKennedy maintains that the fact that it signed its bid package in seven different locations and that it executed a bid bond is sufficient either to bind the corporation to its bid or as evidence that it intended to be bound by its bid. First of all, Kennedy\u2019s contention that the existence of seven separate signatures throughout the bid package and its execution of the bid bond bound Kennedy to its bid is without merit. The schedules and affidavits upon which the seven signatures are affixed relate solely to agreements subsidiary to the contract. These signatures do not represent any binding commitment to the city on the part of Kennedy. Furthermore, Kennedy\u2019s execution of the bid bond does not serve to bind Kennedy to its bid. The purpose of a bid bond is to insure that a certain amount of money, here, 5% of the bid, will be paid in the event the successful bidder fails to enter into a formal contract. Although the validity of Kennedy\u2019s bid bond is raised, even a properly executed bid bond would do no more than provide a form of liquidated damages. The bid bond was not a part of the contract, but rather was a condition precedent to the city\u2019s acceptance of Kennedy\u2019s offer. Therefore, a signature on the bid bond cannot cure the defect of an unexecuted bid. See A.A.B. Electric, Inc. v. Stevenson Public School District No. 303 (1971), 5 Wash. App. 887, 491 P.2d 684.\nHowever, Kennedy also argues that it has demonstrated an intent sufficient to bind itself to the contract. In support of its argument, Kennedy cites two cases that are both distinguishable. First, Kennedy states that a party named in the contract may become bound by its provisions even though he has not signed it. (Welsh v. Jakstas (1948), 401 Ill. 288, 82 N.E.2d 53.) In Welsh, a couple attempting to exercise a lease provision giving them the option to buy the leased real estate, had their attorney send a letter notifying the sellers of their intention regarding the option. Subsequently, the parties held meetings and began drafting a sales contract. After the emergence of complications, the sellers argued that the buyers had never formally accepted the option since they never signed any documents. The trial court granted the buyers\u2019 action for specific performance, and the Illinois Supreme Court affirmed that decree holding that the sellers\u2019 conduct by negotiating and drafting proposed sales contracts with the buyers demonstrated that the sellers regarded the buyers\u2019 acceptance, in the form of their attorney\u2019s letter, as sufficient.\nWelsh was decided on a theory of either estoppel or waiver. As applied to this case, it would mean that Kennedy would have to assert that it did not have an advantage in the instant case because the city could have enforced this contract against it by arguing that Kennedy was either estopped to deny the fact that it did not sign the contract or that the requirement of execution had been waived. Kennedy, understandably has not specifically advanced that theory, for to do so would mean that the city was required to bring a lawsuit in order to determine whether Kennedy was bound to its bid. Consequently, we do not believe that Welsh, which was decided on estoppel or waiver, is applicable to the factual setting here and therefore is not availing to Kennedy.\nKennedy next argues that it is not necessary that the signature of a party to a contract appear at the end. If its name is written in any part of the contract, or at the top or right or left hand, with the intention to sign or for the purpose of authenticating the instrument, it is sufficient to bind him unless subscription is required by law. In the absence of any statutory requirement to the contrary, the contract may be signed in any manner which will indicate an intention to be bound thereby. Kennedy advances these propositions based on the case of First National Bank v. Husted (1965), 57 Ill. App. 2d 227, 205 N.E.2d 780.\nIn First National, the sellers obtained a confession of judgment against the buyers. The confession clause was on the reverse side of the contract under the heading \u201cCovenants and Conditions.\u201d The buyers signed on the face of the contract but did not sign the reverse side. The face of the contract recited \u201cBuyer and Seller agree that the \u2018Covenants and Conditions\u2019 printed on the reverse side hereof are incorporated herein by reference and constitute part of this contract.\u201d It also contained the provision, \u201cin the absence of any statutory requirement to the contrary, the contract may be signed in any manner which will indicate an intention to be bound thereby.\u201d The court held that the buyer sufficiently executed the contract in light of the two provisions contained on the face of the contract.\nThere are no comparable provisions in the city contract. Rather, there is an explicit requirement that the corporation sign in a particular place and more particularly, that if in fact the president of the corporation does not sign, the person who does sign must provide corporate bylaws or other corporate authorization establishing that that person has the authority to execute the offer for the corporation. Furthermore, unlike First National, where the buyer signed the contract, in the instant case, Kennedy never provided the necessary signature nor any accompanying corporate documents authorizing anyone else to execute the offer for the corporation. These facts render the instant case significantly distinguishable from First National. Accordingly, absent compliance with the city\u2019s contractual requirements, Kennedy\u2019s intentions are simply immaterial and the fact remains that Kennedy is not bound to its bid and consequently, Kennedy has a substantial advantage over the other bidders.\nKennedy also argues that the instant variance was not material by comparing the variance in the instant action to the variance found in Stanley Magic-Door, Inc. v. City of Chicago (1982), 104 Ill. App. 3d 380, 432 N.E.2d 1016. In Stanley Magic-Door, a bidder failed to include in its bid a record of its past work experience. The bidder then attempted to submit the missing information after the bids were open. The court permitted the amendment and found that this variance was merely an informality that did not create an unfair advantage because there was no way the bidder could alter its prior work experience. The court did not find that the variance served not to bind Stanley Magic-Door to its bid.\nIn the case at bar, Kennedy\u2019s failure to execute its proposal cannot be considered similar to the variance in Stanley Magic-Door. The instant variance does not present the failure to include past information that is impossible to change, but rather involves an omission that leaves Kennedy unbound to its bid and thus in a position to perform or disavow the contract at its whim. Even with Kennedy\u2019s bid bond, Kennedy still enjoyed a substantial advantage over the other bidders. Assuming Kennedy was awarded the contract on the 48-inch project, regardless of the amount Kennedy would lose on the bid bond in the event Kennedy withdrew from that contract, Kennedy would still not be liable on the contract, and the city could only recover against Kennedy if it would bring a successful action on a waiver or estoppel theory. Further, under certain circumstances it may prove financially prudent for Kennedy to disavow the contract and sustain only the loss on the bid bond. To have such an option clearly gives Kennedy a substantial advantage over the other bidders. (Contra, Menefee v. County of Fresno (1985), 163 Cal. App. 3d 1175, 210 Cal. Rptr. 99.) Therefore, the city was correct not to classify Kennedy\u2019s variance as an informality, but rather as a material variance that renders Kennedy\u2019s bid unresponsive.\nLastly, it is important to note that Kennedy\u2019s belated attempt to cure the defect in its bid by signing the corporate signature page five days after the bids were opened was of no effect. Because Kennedy\u2019s failure to execute its bid was a material variance, it could not be cured after the bids were opened. At the time of the bid opening, Kennedy enjoyed a substantial advantage. City of Chicago v. Mohr (1905), 216 Ill. 320, 74 N.E.2d 1056; Leo Michuda & Son Co. v. Met ropolitan Sanitary District (1981), 97 Ill. App. 3d 340, 422 N.E.2d 1078.\nBased on the foregoing, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nJOHNSON, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE JIGANTI" }, { "text": "JUSTICE LINN,\ndissenting:\nI respectfully dissent from the majority decision.\nThe instant appeal is from the trial court\u2019s order granting defendant\u2019s motion for summary judgment. The purpose of summary judgment is not to try an issue of material fact, but rather to determine if a triable issue of material fact exists. (Nichelson v. Curtis (1983), 117 Ill. App. 3d 100, 452 N.E.2d 883.) My honorable colleagues have here, in the majority opinion, improperly tried an issue of material fact, namely, whether under the test set forth in Leo Michuda & Son Co. v. Metropolitan Sanitary District (1981), 97 Ill. App. 3d 340, 422 N.E.2d 1078, Kennedy\u2019s inadvertent failure to sign page P-36 of the bid package constitutes a minor variance that does not require rejection of the bid, or a material variance that requires rejection.\nThis ultimate issue of fact is, in turn, pyramided upon numerous other issues of fact, including the issue of whether Kennedy, by his failure to initially sign page P-36 of the bid package, received a substantial advantage or benefit not enjoyed by the other bidders. (Leo Michuda & Son Co. v. Metropolitan Sanitary District (1981), 97 Ill. App. 3d 340, 422 N.E.2d 1078.) The majority has similarly tried this material issue, finding that Kennedy\u2019s failure to sign P-36 resulted in his not being bound to the terms of the bid and that if the contract were awarded to Kennedy, he could have disavowed it at any time. I find, however, that whether Kennedy could have disavowed the contract, in light of the fact that it was signed in seven places other than page P-36, ultimately signed by Kennedy on page P-36 at the invitation of the city, and accompanied by a bid bond is yet another issue of material fact inappropriately decided by the majority.\nMoreover, I feel that the conduct of the city purchasing department, in inviting Kennedy to sign his bid offer, raises the material issue of waiver by the city. As an issue formed by the record, the issue of waiver was before the trial court even if it was not formally raised in the pleadings. Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App. 3d 723, 434 N.E.2d 786.\nIt is undisputed that shortly following the bid opening, Kennedy was contacted by the city purchasing department and requested to attend a meeting. Present at the meeting, held five days after the bids were opened, were three members of the purchasing department, who invited Kennedy to sign page P-36. Waiver occurs whenever a party intentionally relinquishes a known right, either expressly or by conduct inconsistent with an intent to enforce that right. (Harris v. Faultfinders, Inc. (1981), 103 Ill. App. 3d 785, 431 N.E.2d 1205.) Waiver is often demonstrated by conduct indicating that strict compliance with provisions of a contract wil not be required. (Leapera v. Earner (1979), 79 Ill. App. 3d 221, 398 N.E.2d 224.) Despite the conduct of the city inviting Kennedy, whose bid was over $200,000 less than Reliable\u2019s, the next lowest bidder, to sign page P-36, the majority has necessarily concluded as a matter of law that waiver is not a material issue in the instant case.\nMichuda dictates that a material variance may not be \u201ccorrected\u201d after the bids have been opened. (Leo Michuda & Son Co. v. Metropolitan Sanitary District (1981), 97 Ill. App. 3d 340, 344, 422 N.E.2d 1078.) The concept of \u201ccorrected\u201d by the bidder is not, in my mind, synonymous with the concept of waiver by the offeree. Thus, even if the material issue as to whether the lack of a signature on page P-36 was a material variance were to be decided in the affirmative, there would then remain the further factual issue of whether the city, by the conduct of its purchasing department, could have and did waive compliance with the requirement of a signature on page P-36 by virtue of the invitation it extended to plaintiff.\nBased on these numerous issues of material fact presented by the instant case, I find that summary judgment was improperly granted, and for this reason, I respectfully dissent.", "type": "dissent", "author": "JUSTICE LINN," } ], "attorneys": [ "Jann, Carroll, Sain & Dolin, Ltd., of Chicago (Gary A. Weintraub, of counsel), for appellant.", "O\u2019Brien, O\u2019Rourke, Hogan & McNulty, of Chicago (John C. O\u2019Rourke, Jr., of counsel), for appellees Reliable Contracting & Equipment Co. and Abbott Contractors, Inc.", "James D. Montgomery, Corporation Counsel, City of Chicago (Phillip L. Bronstein and Maureen Kelly Ivory, of counsel) for appellee City of Chicago." ], "corrections": "", "head_matter": "GEORGE W. KENNEDY CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 85\u2014972\nOpinion filed July 18, 1985.\nLINN, J., dissenting.\nJann, Carroll, Sain & Dolin, Ltd., of Chicago (Gary A. Weintraub, of counsel), for appellant.\nO\u2019Brien, O\u2019Rourke, Hogan & McNulty, of Chicago (John C. O\u2019Rourke, Jr., of counsel), for appellees Reliable Contracting & Equipment Co. and Abbott Contractors, Inc.\nJames D. Montgomery, Corporation Counsel, City of Chicago (Phillip L. Bronstein and Maureen Kelly Ivory, of counsel) for appellee City of Chicago." }, "file_name": "0306-01", "first_page_order": 328, "last_page_order": 338 }