Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2015 CV 01300.
A. Strasfeld and David S. Barbee, Roth, Blair, Roberts,
Strasfeld & Lodge, (For Plaintiff-Appellee).
J. Wilson, Comstock, Springer & Wilson Co., L.P.A. (For
CYNTHIA WESTCOTT RICE, P.J.
Appellant, the Mahoning Valley Sanitary District ("the
District"), appeals the judgment of the Trumbull County
Court of Common Pleas, following a jury trial, awarding
appellee, Rudzik Excavating, Inc., $525, 210 in damages on
Rudzik's claim against the District for breach of
contract. At issue is whether the trial court erred in
denying the District's motion for directed verdict. For
the reasons that follow, we affirm.
Rudzik filed a complaint against the District, seeking an
unspecified amount of damages for breach of contract. The
District filed an answer and counterclaim demanding repayment
of an amount it claimed it had overpaid Rudzik. At the
District's request, the case proceeded to trial by jury.
The District sells water to its member cities, Youngstown,
Niles, and McDonald, which in turn sell water to residents of
other jurisdictions. As part of the process of making
drinkable water, the District maintains lime-sludge lagoons.
Lime is a by-product of producing drinkable water. The lime
settles at the bottom of storage tanks and is pumped out to
lime-sludge lagoons. Water is pumped from the lagoons, which
then become full of lime sludge, which must periodically be
removed from the lagoons.
In December 2014, the District advertised for bids on
Contract G-106 ("the contract"), a lime-sludge
removal contract. The advertisement said, "[t]he work
for which proposals are invited includes Removal and Land
Application/Beneficial Reuse of Lime Sludge from sludge
lagoons, which * * * are located in Weathersfield Township *
* * It is estimated that the amount of sludge to be removed
and * * * reused from the Bid for Lagoon G is * * * 50, 000
The District prepared Specifications and Instructions to
Bidders. The Bid Proposal Form prepared by the District
showed the project had three parts: "Base Bid 1, "
"Alternate Bid 2, " and "Alternate Bid
3." According to the contract documents, Base Bid 1
involved the removal of lime sludge from Lagoon G and land
application/beneficial reuse of the sludge; placement of sand
in Lagoon G; and a couple of miles of road-repair work around
the lagoons. Alternate Bid 2 was for the placement of sand in
another lagoon, Lagoon E (the sludge in that lagoon having
previously been removed). Finally, Alternate Bid 3 was for
the installation of 24 new "sluice gates" to
control the flow of water in the lagoons.
The District's Bid Proposal Form included a section for
bidders to insert a total price for work to be performed
under Base Bid 1. It also provided a space for the cost to
remove sludge per cubic yard from Lagoon G. The form said the
total price was to be determined by multiplying 50, 000 cubic
yards of sludge by the dollar amount ("unit price")
to be proposed and inserted by the bidder. The form also
included a section for the total price for work under
Alternate Bid 2 with a space for the price to install sand
per cubic yard. Alternate Bid 3 simply asked for the cost to
replace 24 sluice gates.
The District's Instructions to Bidders provided that if
any bidder was "in doubt as to the * * * meaning of any
part of the Contract Documents, " the bidder could
submit a written request to the District's Chief Engineer
for interpretation." The Chief Engineer would respond to
a request for information by issuing an Addendum, a copy of
which would be provided to all bidders. Further, the contract
defined the word "contract" as including any
The District's Chief Engineer testified that, in response
to questions bidders asked concerning the Instructions, he
issued two Addenda to the contract instructing bidders how to
prepare their bids. He testified that Addendum 1 instructed
bidders "to include whatever was necessary for the
contractor to complete that portion of the work in the
bid." He instructed them to "add up their numbers
for labor, material costs, insurance, overhead and profit, to
make a whole number." He said their total bid amount was
to be the total of their costs for completing the work.
Addendum I advised bidders that, as to Base Bid I, their bid
amount should be the total of the following costs: the cost
of removing 50, 000 cubic yards of sludge from Lagoon G; the
cost of placing six inches of sand in that lagoon; the cost
of labor, equipment, and materials; the cost to dig out
pothole areas and fill them with six inches of limestone and
to lay three inches of limestone on the whole roadway; and
the cost of roadway repairs from Salt Springs Road to the
This Addendum contradicted the language of Base Bid 1 in the
District's Bid Proposal Form, which simply instructed
bidders to multiply 50, 000 cubic yards of sludge to be
removed from Lagoon G by a dollar amount ("unit
price") to be proposed by the bidder in arriving at the
total bid amount of Base Bid 1.
Addendum 1 also stated that "[a]ny unused item(s) in
this contract will be a credit back to the project, "
meaning it would be a credit to the District. The Bid
Proposal Form did not mention anything about credits.
After Addendum 1 was issued, bidders still had questions
about the contract, so the Chief Engineer issued Addendum 2.
This Addendum explained that for Base Bid 1 and Alternate Bid
2, bidders should make sure the "top line and dollar
figure" included their total cost for that part of the
work. As to Alternate Bid 2, the "second line per cubic
yard" should show the cost of the sand delivered to the
lagoon per cubic yard, which indicated the District would
receive a credit for sand it provided for the project.
On January 13, 2015, James Tressa, Rudzik's project
manager, submitted Rudzik's proposal. The Base Bid 1
"top line" figure was the fixed amount of $1, 260,
000, which was stated to be a product of 50, 000 cubic yards
times $16 per cubic yard of sludge. However, $16 times 50,
000 cubic yards only equals $800, 000. The balance of the $1,
260, 000 bid included Rudzik's other costs to complete
Base Bid 1, as the Chief Engineer had instructed the bidders
to do in the Addenda.
Rudzik's Alternate Bid 2 was the fixed amount of $234,
000 for sand placement in Lagoon E. Alternate Bid 3 was the
fixed amount of $200, 000 to provide and install 24 sluice
Of the three contractors who submitted bids, the Chief
Engineer determined that Rudzik submitted the lowest total
bid ($1, 694, 000, based on the total amounts of each of the
three bid items).
Before the contract was awarded, the Chief Engineer e-mailed
Mr. Tressa, asking him for a breakdown of Rudzik's costs
for sludge removal and sand placement. He also asked for the
cost of Base Bid 1 and Alternate Bid 2 if the District
provided the sand. Mr. Tressa provided a breakdown of all his
costs that comprised Base Bid 1 in the amount of $1, 260,
000. Of this amount, Mr. Tressa allocated $905, 000 for
lime-sludge removal. The balance of the $1, 260, 000 total
bid was comprised of Rudzik's other costs, including the
costs for sand installation and road repair. At the Chief
Engineer's request, the breakdown also showed that Rudzik
would provide a lime-sludge credit to the District of $16 per
cubic yard under Base Bid 1 (for every cubic yard removed
less than 50, 000 cubic yards) and a sand credit of $50 per
cubic yard under Alternate Bid 2 (for every cubic yard of
sand provided by the District for the project).
After the Chief Engineer received this breakdown, he awarded
the contract to Rudzik without changing Rudzik's price to
fit the formula set forth in the contract. Further, the
District Treasurer certified that the full contract price for
all three parts of the contract - $1, 694, 000 - had been
appropriated by the District to meet its payment ...