it's very instructive to debunk the defendant's argument that there was a series of negotiations for many months here original bid was made in april of two thousand and thirteen at the exact so many changes that kept getting made  are terms that are under discussion there are lists of things that need to be done i don't think it's impossible to write a bit so that it's firm subject to the conclusion of an agreement between the general contractor in the project owner of my sample are subject to the guaranteed maximum price and i just don't know if you had one because the price bounces around the terms amounts around from like this and this is not uncommon in the subcontractor contractor business there are different alternate the general contractor can select and in the testimony promised to lease it itself says it's not unusual to provide a bid form or a bid that has many different alternates there's only one real change from the original bed to the may sixteenth bit and that's that originally promised elisa in april bid for the first floor through the eighteenth floor of the property shortly there after they provided an updated bid proposal and this is extremely significant what's your best evidence at c t s ever definitely accepted one particular bid you tell they're the contractor of choice but you don't actually except what you do is begin your value engineering issue call it you know which is fine you know trying to figure out how you can get the price to a point then the other thing that bothers me is it seems that you never do requalified per mistily so which your own instructions say before a bid is considered for award the better has to be pre qualified you got to let me answer both those questions first of all the bid that was relied upon by may sixteenth two thousand and fourteen was accepted how there was a sub contract delivered to promise to lisa and june thirteenth with the respond to that it is a subcontracted testified included the values in the sixteen bits and it included all of the items that promise to lisa requests to be put in that bill well now but i'm not sure it does because lisa says it's not going to start shop drawings under the letter of intent because they don't have a contract in place and they have only gotten answers to two of their ten some odd questions your honor promised elisa provided of did i may sixteenth two thousand and fourteen that's undisputed the bidding created a full scope of work the cases jane p and cedar stand for the proposition in the  may sixteenth timeframe to the june twenty fourth time frame that you're not really addressing i mean opinionate employee learns about the civil unrest the party started this custom possible start date then may twenty fifth complaint i p n a about the liquidated damages and other provisions and p and i submit an updated bid with eight million dollars i mean there's a lot going on in between that and and and also what happens in june i'm not going to keep reading all those things but there are a lot of things happening that show that it's not a firm agreement your honor there's two claims here there's the a stop all claim in the agreement claim and the stopping all of what the judges are asking in this argument relates to whether the reliance was elisa's representative john stanko said every updated bid is a new proposal it's the price in play at that time for those materials at that time so they gave that to c g schmidt c schmidt heard them say they could meet the project schedule and locked in with the owner those are the first two elements of promissory estoppel now it's for effect hard to decide whether there was justifiable reliance by c g schmidt when it locked in with the owner and that should have happened at   you can decide to create alliance is reasonable and you know what it is you think you're relying on and it's still pretty fluid c g schmidt relied on the sixteenth two thousand g s about issues which are sub contract regarding the delay damages both paying and receiving and says and i quote it would be a good time to start reviewing the scope the scope portion of the contract and then six thirteen c fine a draft of the finals contract with the seven point eight million dollars price then six thirteen c g estimates a revised final sub contract for seven point seven million i mean  in the in the cedar case especially russ and plumbing the plumber tried to renegotiate their bed after providing the bed and the court said no you're bound by your bed when you provide that bid the general contractor can accept that bid and that's why there was relief granted for both those cases where after trials testimony needs to be heard here there's a lot of facts there were promises and promise lisa asked for things they were not entitled to ask things that these things are the outline for you though that's not dispute very close to launch and if you look at the critical document where they said they would need to subcontract that document honour's is up three fourteen f three fifteen they wrote to c g schmidt and said we need an executed contract by july fourth they got their contract on june thirteenth they just didn't put their hand to it and executed and your honor there was activity at the end there this is why it's so important for the industry both parties agree and promise to lease it admits that developers don't always go forward with the project so there's a lot of has to happen after the owner signed th we're allowed to rely on their bid before the owner signs on the dotted line and that's what's true c g schmidt did they took that hit and they locked in for this price with the owner after they locked in crystalise a can't hold him hostage like you're suggesting your honor they can't come back june twenty fourth and say oh well we'll do it for another eight hundred thousand dollars that's the detriment this sub contractor can't we negotiate its price what these cases say is the subcontractors bound cedar schmidt has now walked down the aisle with they have this bid and they lock in with the owner they can't get jilted by the subcontractor that's what change he stands for that's what cedar stands for that's the law on the circuit and if there's any question about what the terms were between the parties on the contract claim or with the reliance was justifiable that's for the fact finder that's not for summary judgment it's stunning when you read the decision that every fact seem to be construed against the movement and these facts have to be construed in favor of c g schmidt when you can it's in mid that purposely so wants them to rely on this may fourteenth bit it's admitted that promise lisa said yes we can start your installation march first of twenty fifteen those are promises that means something they're not idle words everything that they said after the owner locked in and your honor brings up that issue with a problem of getting materials in thailand they never told c g schmidt that when the equities are considered crystalise it concealed that information wisconsin law that says that no contract is formed and no party is bound where the two parties would go she with the understanding that there deal if they should make one there's going to be put down on paper and that they must sign the document before they have a contract and that's exactly what happened here so that may be true but i would like us maybe to start with the promissory estoppel argument because mr levy argues and i think this is a very important point because in the construction industry there are a lot of players that have to coordinate at the same time you've got the general dealing with whoever's that the subcontractors are going to charge and so that of these moving pieces going in the same direction roughly the same time in their argument is that i guess he's putting his eggs in the may sixteenth two thousand and fourteen basket that that's the point in which permits to lease has said we will do this project for you for this and and i would say just in terms of general contract law if that's the case then that's the moment at which the risk of so they can get thailand to work that's great they can do it for this price if they can't get thailand to work somebody is going to have to eat eight hundred thousand dollars and maybe it's terms to lease well what going on we have to keep in mind the backdrop of the b in this particular case what's different about this case from the cases where perm were promissory estoppel is applied in a sub contract setting is that in those cases what you have  typically it's a public job and it moves real fast and you have a bid by the saw that goes to the general the general grabs that he had plugged it into their number gives that number to the owner then the owner which is typically again it's a public owner the award the presumably it's a firm number because yes would you know what to tell you whether public or private i don't see why that makes a difference well in this case we have ongoing negotiations in this case we don't have a more an issue of the acceptance by c g the communication of the acceptance of the bid by c g schmidt c g schmidt at an appeal is hanging their hat on the may sixteenth because they have to that's the last the last updated proposal before they go and sign the g m p a so the first stuck with that at no point in time did they turn to promise lisa after having received that revised proposal saying done deal we love it here's your contract that's what they could have done there's but what do they do what they do is they send the letter of intent that's the next thing out of their mouth and the letter of intent doesn't say we've got a deal it says we'd like to make a deal with you and we'd like to make a deal with you in the future by signing a contract and it still is for all tournaments right and they add more alternatives exactly and and as was pointed out if in the first sixteenth proposal or you know some something that actually in so many words says that's what we're fixing ourselves on well again your honor i think that some indication of acceptance is required here because that's proof that there was reasonable reliance but we have this ongoing negotiation that that everyone knows isn't over with and the reason is that there's a parallel sudden negotiations going on between c g schmidt and the owner right and that is the backdrop for this whole thing and that's why c g schmidt wanted this rule that i was talking about to apply and arguably they needed it and wanted it more than we did because they wanted to control the point in time one which they could make a a they put personally saw they could have issued them a contract back in april of two thousand and thirteen that they chose not to when did they issue the contract june thirteenth not april two thousand and thirteen june thirteenth two thousand and fourteen they chose carefully how they wanted to run the d on the reason is because there deal with the owner was not a done deal it was very much in flux as the district court noted there were all sorts of contingencies out there financing price they were negotiating with price with their owner all the way to the point where they signed the g m p in may of two thousand and fourteen after this may sixteenth so this is the so i guess the key question is i mean we don't want to undo the entire construction trade through this in this concert or else so i guess what i'm looking for from you is how in the ordinary situation where some contracts and the general contract and the owner all have to be coordinated how do you do that so that somebody doesn't just walk away at the alter so to speak as mr levy saying well i i don't think that ruling in favor of permits to lease a causes the end of the world for the construction industry because the because the facts of this case are different and unique they are substantially different from the facts of the case in the yankee case which was a seven circuit case in which promissory estoppel was applied in a bid context substantially different from the cedar case which is wisconsin court of appeal because here we had the the lack of acceptance we have the and we not accepting your bit i want to better deal and that's what was going on for over a year my client kept pitching the deal and they kept saying no let's tweak this we hope we can we get the price down a little more let's let's work on this aspect ok that spawn the next one and the next one and the next one where you can't rely on you can't say you're lying on a bed when you're rejecting it at the same point in time which is exactly what they're doing they're cut this is offer apply because we still have offer acceptance offered or and i should say offer counteroffer offer counteroffer rejection as opposed to offer acceptance and so this case is substantially different and it does not create a precedent that will cause a lot of problems for the construction industry going forward you know they argue that there is an offer and acceptance and then all of this back and forth is about the question of whether the aisle as my opponent said it doesn't have a contract with the owner it doesn't have the owner's permission to enter into a sub contract it hasn't signed the prime contract it hasn't signed the a it made a business decision to wait until those things were in place before it would even consider signing a sub contract so for cd schmidt to say we had a deal right when you submitted your when you submit your first bid that there's no way that can be the case and in fact if you look at the parallel situation see schmitz was dealing with the owner the owner had awarded the job to see you schmidt in chosen g schmidt just like c e smith chose us but that didn't mean they had a contract with the owner because just as in our case of a parallel situation the owner and see each member saying to one another no contract to we sign on the dotted line cd smith did the same thing with us because that's the pickle they were in with the owner and we can't ignore them when we're looking at this sub contract situation we can't ignore that backdrop i think that's crucial in this case well as late as june thirteenth the prices that is the james there's no evidence that the price they put into the june thirteenth contract is a price that previously set ever agreed to first of all because the promised leases last word on price was the may twenty ninth which has a higher prices about eight million and change and then what the cd should does is three days later they issue another sub contract forty six thousand dollars lower stil so now we're at three thousand dollars to three hundred thousand dollars spread in prices where the parties end up how can you have a contract we have a three hundred thousand dollar price spread not only that but on the twelfth of june we have the parties still negotiating the terms of the contract we have c g schmidt issuing a and again them on the twelfth saying i'm going to address a couple of your issues and then privately to one another internally they're saying i'm sure they're going to have other issues but we're going to submit this to them so they know that this was an ongoing negotiation and that makes this case different because it's not reasonable to rely on an ongoing negotiation you have to have a deal and that's why this case is different because in the typical a typical subcontractor general contractor case you have one bid it's accepted in the general and the general runs with it to the owner we don't have the general contractor turn into the sub contractor and say let's negotiate yeah and in terms of the timing it was the same day that see case minutes here the prime contract with t n a that was may twenty ninth right that was here that yes ye i just want to make sure and once cd smith incorporated their issues and he addressed contract that's when it was provided as a final draft peony for the signature on june thirteenth schmidt's documents said our contract with you p n a is going to incorporate and include all the terms of the prime contract where they'd ever got us the prime contract to all the twenty ninth of may and from the very end from the prior year promise to lease it was saying we've got to see the prime contract because we're buying into the prime contract and we have some issues that we're anticipating might be in that prime contract that you that doesn't exist yet because you haven't signed it and we haven't seen it but we're anticipating that there's going to be some issues there and we need to see that that and how could a promise to lisa be agreeing to a contract that didn't yet exist education principle distinction yes there is you know a lot of the letter of intent cases what you see is the letter of intent is prepared by one side and the signed by both sides and it looks a whole lot like a written contract but we have is a whole body of facts to distract from how this circuit looks at these cases this circuit looks at these cases under promissory estoppel primarily and the only question is was a definite promise made that the promise or knew could induce reliance did it in fact reproduce reliance to the detriment those are the facts there are several misstatements that have been made here first of all this was not a back and forth negotiation if you look at page twenty four of our reply brief we have a table for you there are two primary elements that never changed with the pricing from the second the first updated the cost of the curtain wall and the credit that would really be received for having a pr never changed from two thousand and thirteen to the final contract that was presented to previously sent there is this discussion that there was a back and forth negotiation it's an absolute red herring there was no negotiation there was a period of this they know the developer is waiting for their financing to come to fruition and during that process they're working with architects something they say in their own testimony they don't do unless they're under contract they provide joins they know that there's this target of getting this building built and commencing work in march of twenty four in march of twenty fifteen and so they're doing some pre construction services but that was not a negotiation they admit that alternate in a bi that can become a contract you can have a contract with twenty alternates that's in their admissions and their testimony even when you have a construction contract there's frequently change orders so the idea that there was a negotiation is an absolute red h there was a comment that their offer was never accepted that's wrong the bid that they provided a pool of twenty thirteen it's undisputed was accepted in their moving papers for summary judgment they see promised elisa was awarded the work and after they were awarded the work as your honor said there was a series of discussions for a modification what they were doing was they were seeing that big you gave us an april of two thousand and thirteen after your lot apartment looked at the bid invite and the bid invite said you have to sign our subcontract agreement and there's some contract said it incorporates the prime contract and now council says those are uncertain terms that's at their peril they have their lot apartment review the bid for him we have put in our materials they have and exceptions in their bid none of them say we're making this contingent on reviewing the prime contract none of their exclusions are exceptions which there are a lot of permanent help them create said we're not letting you be bound by this bit we won't be bound by this bit until things happen so then did that the need was accepted that could have become the contract and i day two there would have been change orders but the big was they did mit was awarded to them there was no negotiation you need they got two letters of intent from c v schmidt and they didn't ask for a signature and what they were saying at that time was for us to continue with these pre construction engineering services they wanted to know the everyone knew that this wouldn't go forward to subcontract unless the project went forward but they were being asked to perform were before it was certain the project would go forward so they said paid us for that and the mechanism to pay them was the letter of intent another read here the elements of us not signed excuse me which was not signed was signed by falls within the may sixteenth offer and the may twenty seventh date that they locked in with their huge maximum price but they didn't know it would lock in on me twenty seventh the most important thing is that this happened on summary judgment there needs to be a  fact intensive and it does have ramifications for the construction industry look ok i think we i think we have your points thank you very much jeff and his top counsel will take the case