The appellant requested bids from contractors to build an addition to a junior high school gymnasium according to plans and specifications prepared by an architect. The bids were all submitted in sealed envelopes, and on March 6, 1973, at the offices of the Granite School District, a bid-opening session was conducted to determine the low bidder pursuant to Section 53-11-1, U.C.A. 1953, which provides:
. . . At the time and place specified in said notice the board shall meet and publicly open and read all proposals received, and, if satisfactory bids have been received, shall award the contract to the lowest responsible bidder. . . .
The bids, which were submitted in sealed envelopes, were opened by Mr. Davidson, Director of New School Facilities, handed to the architect; and then to Dr. Call, superintendent of the Board of Education. The envelope of the respondent contained a letter signed by Mr. Jaye Smith, its president, stating:
Due to the difficulty in determining the price and availability of the three inch roof deck material specified . ., I have submitted my proposal on the basis of a cost of 36 cents per square foot of roof area. I use this figure only as a basis for arriving at a total bid price, and stipulate a change in contract price, either higher or lower as the information becomes available.
The letter was not noticed by anyone present and was not read as a part of the proposed bid in ascertaining the low bidder. The bid as made and read was as follows:
. . . Gentlemen:
Having carefully examined the plans, specifications, all documents and addenda entitled: "Physical Education Addition, Kearns Junior High School" Granite School District at 4040 West 5305 South, Kearns, Utah as prepared by ARTHUR K. OLSEN, Architect, 357 East Fifth South, Salt Lake City, Utah, and having examined the site of the proposed construction, and understanding all governing conditions under which the work is to be done, the undersigned proposes to furnish all labor, material, services, utilities, tools, machinery, taxes, insurance and incidentals for the:
BID STRUCTURE:
A. Base Bid — Completion Date August 10, 1973: Sum of One Hundred Sixty Four Thousand Twenty Two Dollars ($164,022.00).
Completion of Work: If the Undersigned be notified of the acceptance of this proposal within fifteen days after the date hereof, he agrees to execute a contract agreement in the form bound in these specifications for the above work for the above stated compensation, and to guarantee completion of all phases of this work ready for occupancy on or before August 10, 1973 (See Bid Structure). The Liquidated Damages Condition of the "Agreement" form has been considered in making this proposal and will pertain to whichever time is selected in the bid structure.
Bond: The Undersigned agrees, if awarded the Contract, to furnish and deliver to the Board bonds subject to the approval of the Board of Education on the bond forms bound in these specifications, *Page 322 each in the amount equal to 100 percent of the contract sum. The proposed surety company is United Pacific Insurance. . . .
The respondent allowed his bid to be read and accepted by the Board of Education without calling attention to the fact that the amount of his bid was not to be the sum which he expected to receive if his bid price was the low figure ($164,022.00). Had he done so, his bid would not have been considered the lowest bid for no one knew what his ultimate price might be.
The costs of labor and material are always subject to fluctuations, and a contractor who makes a bid takes the risk of a rise in prices and is entitled to the benefits in case of a lowering thereof. As a part of the bid submitted, the respondent made the following paragraphs:
Agreement: The Undersigned had read the "Agreement" form thoroughly and hereby agrees with and has included all the costs of all provisions contained therein.
District Bid Depository: The Undersigned has abided by the spirit and the letter of the "District Bid Depository" described in the "Addendum to the General Conditions" and "Instructions to Bidders" and the published "Notice to Contractors".
Errors: The Undersigned has checked carefully all of the above figures and understands that the Board will not be responsible for any errors or omissions on the part of the Undersigned in making this bid.
Collusion: The Undersigned hereby certifies that this bid is genuine and not sham or collusive or made in the interest or in behalf of any person not herein named, and that the Undersigned has not in any manner sought by collusion to secure for himself an advantage over any other bidder.
Two days later Mr. Smith, president of the respondent company, met with the representatives of the school board and they formally signed the contract which provided, among other things,
The Board agrees to pay the Contractor for the said work and materials and for the full performance by the Contractor of all covenants and conditions in the manner and form herein set out for the General Contract, including Plans and Specifications, the sum of One Hundred Sixty Four Thousand Twenty Two ($164,022.) dollars subject to additions and deductions as herein provided, and subject to the provisions of this Agreement.
Nowhere in the contract is there any mention of a contingency in the amount to be paid the contractor. Moreover, by plaintiff's own admission, no mention whatsoever of a contingent bid was made during the meeting in which Mr. Smith signed the contract.
At trial Mr. Smith testified as follows:
Q. On March 8, 1973, was there any discussion at that time with Mr. Davidson as to the contingency in your bid for the roof decking amount?
A. No, there wasn't.
Q. Did you in fact sign the contract on March 8th?
A. Yes.
Q. And did you sign that in the amount of $164,022.00?
A. I signed the contract with that amount written on it.
It was not until approximately six weeks later that Mr. Davidson discovered the existence of the letter. This occurred after Mr. Davidson heard about the possible contingency and checked the bid envelope where he found the note stashed away among the papers contained therein.
The formal contract signed March 8, 1973, governs the parties hereto; and even if Mr. Smith had his fingers crossed when the bids were opened and read, the signing of the formal contract bound him to construct the addition to the gymnasium according to the plans and specifications for the total sum of $164,022.00, subject to additions and deductions; and there were no additions or deductions agreed to, save one $150 item for striping. The bid submitted was merely an offer to enter into a contract *Page 323 and when the written contract was agreed to and signed, all prior offers and counteroffers were merged therein.1
The contract was clear and unambiguous, and the court should not have permitted any evidence of what the intentions of plaintiff were when it made its bid. The material thing is what did the parties intend when they signed the contract? The answer to that is clear — they intended that plaintiff construct the building according to the plans and specifications and for the defendant to pay the sum of $164,022.00.
In its memorandum decision, the trial court said, "However, before the work was completed they did learn of the letter, learned of the extra cost, and to now permit the defendant to take advantage of plaintiff's position would be inequitable and would constitute in effect an unjust enrichment to the defendant. . . ."
Since when have courts rewritten contracts in order to enhance the profits of one of the parties thereto or to prevent loss to the other? There is no unjust enrichment to one who compels the other party to live up to his agreement.
The judgment of the trial court is reversed except as to the award of $150 made for striping. Costs are awarded to the appellant.
HENRIOD, C.J., and CROCKETT, J., concur.