The opinion of the court was delivered by: JOHN T. CURTIN
The background of this case has been set forth previously in this court's order of September 11, 1989. Item 21. At that time, the court denied defendants' motions to dismiss and permitted discovery to proceed. Discovery is now complete. Plaintiff has stipulated to the withdrawal of its claims against all defendants except the County of Chautauqua. Items 29, 33, 37. Three causes of action against the county remain: (Count 1) breach of contract, (Count 4) wrongful retention of bid security, and (Count 5) construction costs and purchases. Plaintiff moves for summary judgment on its breach of contract claim. Defendant cross-moves for summary judgment on all of plaintiff's claims.
There are no important facts in dispute. Although the court set out the facts in its prior order, Item 21 at 2-4, the court will briefly reiterate them here. On June 12, 1987, plaintiff submitted its bid to supply liquid calcium chloride road de-icer to the County for the period between August 1, 1987, and July 31, 1989. Plaintiff submitted the low bid of $ .089 per gallon for an indefinite supply of de-icer. Item 1, Exh. A. As low bidder, plaintiff thereafter received a letter dated June 15, 1987, headed "Notice of Award," which stated in part:
As a result of the bids received June 12, 1987, . . . the award has been made to Seneca Mineral Company, Inc. pending receipt of the following:
2) Receipt of specified permits no later than August 15, 1987.
6) A random sampling by a qualified laboratory of typical material to be furnished shall be analyzed as to chemical content. Said test must show that material meets or exceeds specifications.
For items #5 and #6 Chautauqua County will contact contractor regarding whom and when we will inspect equipment and sample material.
Item 1, Exh. B (emphasis added). The letter was on a Chautauqua County Department of Public Works ("DPW") letterhead and was signed by C. Roy Christy, Purchasing Agent, DPW. Id. The bid specifications stated that the "brine solution shall contain 20% chlorides with not less than 10% calcium chloride and 10% sodium chloride per gallon of solution." Item 1, Exh. A (emphasis in original).
In a letter dated July 21, 1987, George Riedesel, Director of the DPW, notified plaintiff that the test results of plaintiff's brine revealed only 167,600 mg/l of chlorides, 51,000 mg/l of sodium chloride, and 41,600 mg/l of calcium chloride, and thus did not meet bid specifications. Item 46, Exh. C.
Plaintiff's Secretary/Treasurer, Douglas Painter, replied by letter of July 31, 1987, challenging the "inaccurate data" of the County's test. Subsequently, in a letter dated August 21, 1987, Mr. Painter filed with the County a test analysis of plaintiff's brine done by Microbac Laboratories on or about July 15, 1987. Item 12, Riedesel affidavit, App. E. This analysis corresponded closely with the County's test. It revealed a solution containing 50,550 mg/l of calcium chloride and 49,000 mg/l of sodium chloride. Id. No overall calculation of chlorides was provided. Id. Microbac's analysis went further, however, and supplied percentages, by weight, of calcium and sodium chloride in plaintiff's brine. These percentages were 11.39% for calcium chloride and 10.12% for sodium chloride. Plaintiff argued in its August 21 letter that Microbac's test demonstrated compliance with the County's bid specifications. Id.
Prior to the filing of plaintiff's test analysis, Director Riedesel notified plaintiff, on August 18, 1987, that
Chautauqua County hereby rejects your bid for Liquid Calcium Road De-Icer (S-22-87 PWTH) for failure to comply with technical specifications and failure to submit required New York State Department ...