dissenting.
I respectfully dissent.
I believe the trial court erred when it entered summary judgment in favor of *662Palm because the Purchase Order at issue here does not "fulfill{ ] the office of a valid, binding, and exclusive contract" between the parties Dayhuff v. Canonie Constr. Co., 152 Ind.App. 154, 156, 283 N.E.2d 425, 427 (1972). The Purchase Order issued by Berkel did not specify a fixed time for completion of the work, any estimated number of hours for which Palm would be paid, nor any guaranteed minimum payment to Palm. The Purchase Order merely set forth the scope of the surveying work required for the Project and the terms of any surveying work Berkel should choose to order from Palm. Therefore, at best, the Purchase Order is an indefinite quantities contract that is unenforceable.
As in Dayhuff, the Purchase Order at issue here calls for a service (surveying), sets out the overall seope of the work that will be needed ("stake centers of approximately 800 auger pilings"), and provides the rate at which the services would be charged ("$110.00/hr."). Appellant's App. p.: 16. Due to time pressures on the Project, Berkel, like Canonie in Dayhuff, ultimately opted to engage other firms to perform the work it needed. _
This court held that the purchase order at issue in Dayhuff was not a valid contract because it was too indefinite and "the lack of [Dayhuff's] obligation to accept the offer ... defeats mutuality." Dayhuff, 152 Ind.App. at 156-157, 283 N.E.2d at 427. Likewise, Palm was not obligated to accept the offer as set forth in the Purchase Order. In fact, the record indicates that when Palm learned it would be required to reach an agreement with the union before being given any more work on the project, Palm informed Berkel that it would not be able to perform its surveying work at the price set forth in the Purchase Order. Berkel therefore requested that Palm submit a revised price quote. Critically important is the fact that Palm never submitted the requested revised quote to Berkel. Appellant's App. pp. 61, 66. This back and forth. communication where one contractor ceases to communicate thereby forcing the other contractor to find alternative performance is quite common in the construction industry. At the very least, these cireumstances preclude the entry of summary judgment in favor of Palm on its breach of contract claim.
Moreover, even if the Purchase. Order can in fact be stretched into an enforceable contract, genuine issues of material fact remain as to its terms. Whether the items to be supplied under the Purchase Order are subject to the overall project requirement of union labor is an extremely large and genuine issue of material fact that precludes the entry of summary judgment for Palm. C,
For all these reasons, I would reverse the trial court's entry of summary judgment in favor of Palm and remand for a trial on liability and damages.