OPINION AND ORDER

STEPHEN N. BLOOM, Magistrate Judge

The matters before the court are 1) plaintiff's motion for preliminary injunction (#5); and 2) defendant's motion for summary judgment (#34).

BACKGROUND

On September 5, 2003, plaintiff Vincent Construction Insulation, Inc. (Vincent Construction) filed a complaint seeking injunctive relief against defendant Milton-Freewater Orchard Homes, Inc. (Orchard Homes) alleging two claims for relief as follows: 1) breach of contract; and 2) injunctive relief.

FACTS

Vincent Construction is a construction contractor with its principal place of business in Pasco, Washington.

Orchard Homes is a not-for-profit corporation which owns a 140-unit low-income, agricultural laborer and family housing complex located at 311 North Elizabeth Avenue, in Milton-Freewater, Oregon.

On November 12, 2002, Rural Housing Services (RHS) approved a loan and a grant for the renovation of the farm labor housing complex owned by Orchard Homes. The development of plans, specifications, bidding and construction for new projects and rehabilitation of existing projects are governed by RHS regulations at 7 C.F.R. Pt. 1924-A. While RHS is not a party to contracts between borrowers and construction contractors, RHS has an interest as a government lender in assuring that such contracts are created and carried out in a manner consistent with applicable regulations and at the lowest cost.

On May 22, 2003, Orchard Homes published an Advertisement to Bid and Invitation to Bid a construction project involving remodeling and rehabilitation of the Orchard Homes housing development located at 311 North Elizabeth Avenue, in Milton-Freewater, Oregon (hereafter referred to as the Project). Don Trial, the architect for the Project, prepared the bid documents with the assistance of Orchard Homes and representatives of USDA Rural Development. The Instructions to Bidders stated, in part:

4.1.7 . . . The Bidder shall provide evidence of legal authority to perform within the jurisdiction of the Work. . . .

. . . .

5.3.1 It is the intent of the Owner to award a Contract to the lowest qualified Bidder provided the Bid has been submitted in accordance with the requirements of the Bidding Documents and does not exceed the funds available. The Owner shall have the right to waive informalities and irregularities in a Bid received and to accept the Bid which, in the Owner's judgment, is in the Owner's best interests.

5.3.2 The Owner shall have the right to accept Alternates in any order or combination, unless otherwise specifically provided in the Bidding Documents, and to determine the low Bidder on the basis of the sum of the Base Bid and Alternates accepted.

Exhibit 1 to First Amended Complaint, pp. 3-5.

The Supplementary Instructions to Bidders stated, in part: "Bidder and Subcontractors named in accordance with this provision shall possess at the time of bid opening and duration of the project, an appropriate license issued by the State of Oregon." Exhibit A to Affidavit of Don Trail, p. 3, § 1.4 B.3. "Bidder shall propose the number of calendar days to completion in the spaces provided on the Bid Form. Completion time may be a factor in award of the Contract." Id. at § 1.7A.1.

The Bid Form stated, in part:

Time of Completion: The Undersigned agrees, if awarded a Contract to do the Work, to commence the Work following a written notice to proceed and to Substantially Complete the Work within the days indicated following notice to proceed with each Stage: (Proposed completion time may be a factor in award of the Contract.)

Exhibit 2 to First Amended Complaint, p. 2, § 3.

Vincent Construction obtained a complete copy of the bidding documents. On June 5, 2003, Vincent Construction and other construction companies attended a pre-bid conference and walk-through for prospective contractors. Don Trail, the architect for the Project, states in his affidavit that he and other representatives from Orchard Homes were available to answer questions relating to the construction documents and the construction project during this walkthough. Trail states in his affidavit that the attendees were informed that time of completion was an important factor because it relates to the amount of time that the building tenants will require alternate housing arrangements. Affidavit of Don Trail, p. 2. The sign-in sheet for the walkthrough indicates that three representatives of Vincent Construction were present, including Michael Vincent, one of the owners of Vincent Construction. Id. at Exhibit B.

Michael Vincent states, in part, in his affidavit:

4. When submitting the bid, I relied on the Instructions to Bidders issued by Orchard Homes, which stated that the contract for the Project would be rewarded to the lowest qualified bidder. I did not know that the time to complete each stage of the Project would be used as criteria in which to evaluate the bids. It was always my belief that the Project would be awarded to the lowest, responsible bidder.

Affidavit of Michael Vincent, p. 2.

On June 26, 2003, Vincent Construction and three other contractors, including WC Construction, submitted completed bids.

On June 27, 2003, Trail distributed a memo entitled "Bid Analysis" which stated, in part:

Of the three remaining, Vincent Construction, Inc submitted the apparent low base bid. However we believe you should take into account the effect of the time the contractors are proposing to complete Stages 2 through 10. These reflect the time each group of apartments will need to be vacated and the cost of relocating the tenants during construction. Vincent quoted considerably more days than the other bidders. As you recall, we set up these stages with a combination of liquidated damages for late completion, balanced by an incentive payment for early completion. We asked the bidders to quote their completion time with the understanding that the time quoted might be a factor in awarding the contract. The liquidated damages amount and the incentive amount are the same for each stage but they vary from stage to stage based on your appraisal of the daily cost of relocating the tenants.

The attached spread sheet shows the combined effect of the base bids plus the cost of tenant relocation. Since the relocation cost to the Owner will be the same whether the contractor finishes early or on time (or late) it is logical to multiply the daily cost times the number of days quoted to complete the work of each stage and derive the actual cost to the Owner. So doing reveals that the bid submitted by W.C. Construction appears to be the actual low bid. This is true whether or not you accept alternate #8, which adds the cost of doing a complete tear-off and disposal of the existing roofing prior to re-roofing the Phase 1 and 3 buildings.

If you accept W.C. Construction's bid, their quote for Alternate #8 is $10,900. We believe you will get a better appearing, longer-lasting installation of your new roofs if you do a complete tear-off rather than the re-cover that was specified in the base bid. We believe the $10,900 will be money well spent.

In summary, all other considerations being equal, we believe your best choice is to accept W.C. Construction's bid, including Alternate #8.

Exhibit 2 to Declaration of Heather McNamee in Support of Plaintiff's Supplemental Memorandum in Support of Plaintiff's Motion for Preliminary Injunction, p. 2.

On June 29, 2003, after the period for entering bids was closed, Vincent Construction realized it had made an error in the estimation of times of completion and notified Orchard Homes that it had entered incorrect figures for the completion of work stages.

On June 30, 2003, RHS staff made an inquiry through the website of the Construction Contractors Board (CCB) of the State of Oregon regarding Oregon Construction Board License #109668 held by Vincent Construction. The information provided by the website indicated that this license was "Suspended-Insurance Problem" as of April 21, 2003. Exhibit A to Declaration of William F. Daniel, p. 4. Don Trial, the architect on the Project, states in his affidavit that he was aware that there was a question regarding the status of Vincent Construction's license with the CCB at the time Orchard Homes was considering the bids submitted, and that the status of Vincent Construction's license was a factor in consideration of the bids. Affidavit of Don Trail, p. 3, § 7.

Michael Vincent, the owner of Vincent Construction, states, in part, in his affidavit:

2. Vincent Construction provided the CCB with a certificate of liability for March 22, 2002 through March 22, 2004. This certificate was somehow misplaced or misfiled by the CCB. As soon as Vincent Construction became aware of this problem, I contacted the CCB and provided proof of insurance. The problem was corrected within 90 days of Vincent Construction becoming aware of the lapse. Vincent Construction's licensing history does not show a lapse in general liability insurance coverage. . . .

3. Even if Orchard Homes believed that Vincent Construction was not licensed as of June 30, 2003, it chose to do nothing, did not notify me or Vincent Construction that we were no longer being considered from the Project, and there is no indication that Vincent Construction was still not being considered as a qualified bidder for the award of the contract.

Affidavit of Michael Vincent in Support of Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, pp. 1-2.

On July 25, 2003, Orchard Homes sent out a notice to all bidding companies of intent to award the bid. This notice stated, in part:

The Board of Directors of Milton-Freewater Orchard Homes, Inc. has selected the firm of W.C. Construction, Inc. for our renovation project. Our selection was based on the combination of the Base Bid of $2,961,409, less Alternate 1 at $236,920 and less Alternate 5 at $200,000. The cost effect of their proposed completion time for Stages 3 through 10 was also a factor in our determination.

Exhibit G to Affidavit of Don Trail.

On August 15, 2003, W.C. Construction signed the construction contract for the work at Orchard Homes.

As of January 28, 2004, construction on the Project was forty to forty-five percent completed.

CONTENTIONS OF PARTIES

Vincent Construction contends that it is entitled to injunctive relief on the grounds that Orchard Homes made its decision to award a contract for the Project using factors outside of the evaluation criteria specified in its "Instructions to Bidders." Vincent Construction contends that Orchard Homes was obligated to award the contract for the Project to the lowest qualified bidder and was not entitled to consider the days proposed by each bidder to complete the Project in order to determine the award of the contract.

Orchard Homes contends that Vincent Construction lacks standing to contest the bid award because it was not a qualified bidder with a valid license in the State of Oregon at the time the bid was submitted. Orchard Homes further contends that the Invitation to Bid and the Bid does not form a contract. Even assuming that the bid documents formed some contractual relationship, Orchard Homes contends that the bid documents expressly informed Vincent Construction that completion time may be a factor in award of the contract.

Vincent Construction contends that it was validly licensed at the time it submitted its bid according to the safe harbor provisions of Or. Rev. Stat. § 701.065, and that the status of its license had no impact on the decision to award the contract to another bidder. Vincent Construction contends that Orchard Homes was bound to competitively bid the Project as a recipient of federal funds, and that Orchard Homes evaluated the submitted proposals on a significantly different basis than announced in the solicitation.

PRELIMINARY INJUNCTION STANDARD

To obtain a preliminary injunction in the district court, plaintiffs are required to demonstrate "`(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff[s] if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff[s], and (4) advancement of the public interest (in certain cases).'" Rodde v. Bonta, 357 F.3d 988, 994 (9th Cir. 2003) (quoting Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995)).

SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). In response to a properlysupported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Guidroz-Brault v. Missouri Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001) (internal quotation marks omitted). All reasonable inferences from the facts in the record must be drawn in favor of the nonmoving party. Hensley v. Northwest Permanente P.C. Ret. Plan Trust, 258 F.3d 986, 999 (9th Cir. 2001).

The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). If the resolution of a factual dispute would not affect the outcome of the claim, the Court may grant summary judgment. Arpin, 261 F.3d at 919.

ANALYSIS

Standing

The core component of standing is an essential and unchanging part of the case-orcontroversy requirement of Article III of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The party invoking federal jurisdiction bears the burden of establishing three elements in order to show standing: 1) that plaintiff suffered injury-in-fact; 2) that there is a causal connection between the injury and the conduct complained of; and 3) that it is likely that the injury will be redressed by a favorable decision. Id.

Orchard Homes contends that Vincent Construction cannot prevail in this action under any circumstances because it did not possess a valid CCB license and therefore was not a qualified bidder at the time Vincent Construction submitted its bid. Orchard Homes contends that an unqualified bidder has no standing because it cannot be entitled to relief. Orchard Homes contends that the plain language of Or. Rev. Stat. § 701.065 applies only to contractors perfecting liens or commencing claims with the Construction Contractors Board and does not apply to excuse the failure of Vincent Construction to comply with Or. Rev. Stat. § 701.055 and the bid documents in this case.

Vincent Construction contends that it "was validly licensed at the time it submitted its bid according to the safe harbor provision provided by ORS 701.065." Plaintiff's Memorandum in Opposition to Orchard Homes' Motion for Summary Judgment, p. 2. Vincent Construction contends that it corrected the problem with its license within 90 days of becoming aware of the problem, and that the licensing history of Vincent Construction does not show a lapse in general liability insurance coverage. Vincent Construction further contends that Orchard Homes is estopped from making any argument that Vincent Construction was not licensed at the time that it submitted its bid because Orchard Homes chose to do nothing during the time the bids were under consideration, and the status of Vincent Construction's license had no impact on the decision to award the contract to W.C. Construction.

Or. Rev. Stat. § 701.055 provides that a "person may not undertake, offer to undertake or submit a bid to do work as a contractor unless that person has a current, valid license issued by the Construction Contractors Board."

Or. Rev. Stat. § 701.065 provides:

(1) Except as provided in subsection (2) of this section, a contractor may not perfect a claim of a construction lien, or commence a claim with the Construction Contractors Board, in arbitration or in any court of this state for compensation for the performance of any work or for the breach of any contract for work that is subject to this chapter, unless the contractor had a valid license issued by the board:

(a) At the time the contractor bid or entered into the contract for performance of the work; and

(b) Continuously while performing the work for which compensation is sought.

(2) The board, arbitrator or court shall not apply the provisions of subsection (1) of this section to a lien or claim if the board, arbitrator or court determines that:

(a) The contractor either did not have a valid license at any time required under subsection (1) of this section, or had an initial issuance thereof, and:

(A) The contractor was not aware of the requirement that the contractor be licensed, and the contractor submitted a completed application for a license within a number of days established by the board, but not more than 90 days, of the date the contractor became aware of the requirement;

(B) At the time the contractor perfected a claim of a construction lien or commenced any other claim subject to the provisions of subsection (1) of this section, the contractor was licensed by the board; and

(C) Enforcement of the provisions of subsection (1) of this section would result in substantial injustice to the contractor; . . .

The bid documents in this case expressly required the bidders to "possess at the time of bid opening and duration of the project, an appropriate license issued by the State of Oregon." Supplementary Instructions to Bidders, p. 3, § 1.4 B.3 (attached as Exhibit A to Affidavit of Don Trail). The bid documents further provided that "[t]he Owner shall have the right to waive informalities and irregularities in a Bid received and to accept the Bid which, in the Owner's judgment, is in the Owner's own best interests." Instructions to Bidders § 5.3.1 (attached as Exhibit 1 to First Amended Complaint, p. 5).

In the event that a finder of fact were to conclude that there was a contract and a breach, a determination that Vincent Construction did not have a valid license at the time it submitted its bid could prevent Vincent Construction from obtaining relief in this case. There are, however, issues of material fact to be resolved as to the status of Vincent Construction's license and any effect the status of the license had on the award of the contract which preclude summary judgment in favor of Orchard Homes on the grounds that Vincent Construction lacks standing to bring this action.

Breach of Contract

Vincent Construction alleges in its first amended complaint that "Orchard Homes, in its Instructions to Bidders, set forth evaluation criteria in Section 5.3 by which it would be determining which bidder to award the contract for the Project;" and that Orchard Homes "us[ed] criteria outside of the evaluation factors set forth in the Instructions to Bidders." First Amended Complaint, p. 7, ¶¶ 26, 28. The first amended complaint set forth a claim for breach of contract with two counts as follows: Count 1 (Promissory Estoppel); and Count 2 (Breach of Covenant of Good Faith and Fair Dealing).

Vincent Construction contends that Orchard Homes did not adhere to the bid evaluation criteria and breached its agreement with Vincent Construction that the lowest bidder would be awarded the Project. Orchard Homes contends that the Invitation to Bid does not constitute a contract but is an advertisement or solicitation for offers. Orchard Homes contends that the bid documents expressly informed Vincent Construction that proposed completion time could be a factor in the award of the contract, and there is no evidence that it used criteria outside of the evaluation factors set forth in the bid documents.

An Invitation to Bid is not an offer to contract, and a bid does not constitute an acceptance of an offer to contract. See R.J. Taggart, Inc. v. Douglas County, 31 Or. App. 1137, 1140, 572 P.2d 1050 (1977) ; Peerless Food Prods., Inc. v. Washington, 119 Wn.2d 584, 593, 835 P.2d 1012, 1016 (1992); Baker v. Montana, 218 Mont. 235, 238-39, 707 P.2d 20, 23 (1985); and King v. Alaska State Housing Auth., 633 P.2d 256, 261 (1981). These cases rely upon the well-founded principle of contract law that a contract does not exist prior to the acceptance of a bid.

[A]n ordinary advertisement for bids or tenders is not itself an offer but the bid or tender is an offer which creates no right until accepted. Even though the charter of a municipality expressly requires that a contract shall be awarded to the lowest responsible bidder, a contract is not formed until the lowest bid is in fact accepted.

1 Williston on Contracts, § 31 (3rd Ed. 1957).

Orchard Homes agrees, however, that it was bound to "comply with 7 C.F.R. § 1924" throughout the bidding process. Orchard Homes Reply on Motion for Summary Judgment, p. 6. These regulations encourage competitive bidding and require that "[t]he construction contract will be awarded based on the contract cost, and all conditions listed in the "Invitation to Bid." 7 C.F.R. § 1924.13(e)(i)(C). Under these regulations, Orchard Homes was bound to award the contract based on the criteria set forth in its own bid documents.

Promissory estoppel provides the basis for enforcing a promise as a contract despite a lack of consideration when the promisee has relied on a promise to his or her detriment. City of Ashland v. Hoffarth, 84 Or. App. 265, 270, 733 P.2d 925 (1987). The elements of promissory estoppel are (1) a promise; (2) which the promisor, as a reasonable person, could foresee would induce conduct of the kind that occurred; (3) actual reliance on the promise; and (4) a substantial change in position by the party seeking to enforce the promise. Bixler v. First Nat'l Bank of Or., 49 Or. App. 195, 199, 619 P.2d 895 (1980). The Invitation to Bid in this case included an implied promise to evaluate the bids in accordance with the criteria set forth in the bid documents. See Swinerton Walberg Co. v. City of Inglewood-Los Angeles County Civic Ctr. Auth., 40 Cal.App.3d 98, 105 (1974) (allegations of promise made in solicitation of bids were sufficient to constitute a cause of action in promissory estoppel). Vincent Construction's reliance upon the representations in the bid documents was reasonable and foreseeable to Orchard Homes. While no formal contract was concluded between Vincent Construction and Orchard Homes, the Invitation to Bid included a promise to consider each bid in accordance with the terms set forth in the bid documents and the applicable legal requirements. This court concludes that Orchard Homes was bound to evaluate the bids by the criteria stated in the bid documents.

In addition, a duty of good faith and fair dealing is implied from contract under certain circumstances. Best v. United States Nat'l Bank of Or., 303 Or. 557, 561, 739 P.2d 554 (1987). The duty to award the contract based upon the conditions of the bid documents can be said to impose a duty of good faith and fair dealing in the bidding process required that Orchard Homes abide by the provisions of its own bidding documents. See Planning and Design Solutions v. City of Sante Fe, 118 N.M. 707, 714, 885 P.2d 628 (1994) (a request for proposals included an implied contract under city code to treat all bids fairly and equitably imposing upon each party a duty of good faith and fair dealing in its performance and its enforcement).

It is an agreed fact in this case that Vincent Construction obtained a complete copy of the bid documents. Plaintiff's Response to Defendant's Concise Statement of Material Fact, p. 1, ¶ 4. The Supplementary Instructions to Bidders stated, in part: "Bidder shall propose the number of calendar days to completion in the spaces provided on the Bid Form. Completion time may be a factor in award of the Contract." Exhibit A to Affidavit of Don Trail, p. 3, § 1.7 A.1 (emphasis added).

The Bid Form stated, in part:

Time of Completion: The Undersigned agrees, if awarded a Contract to do the Work, to commence the Work following a written notice to proceed and to Substantially Complete the Work within the days indicated following notice to proceed with each Stage: ( Proposed completion time may be a factor in award of the Contract.)

Exhibit 2 to First Amended Complaint, p. 2, § 3 (emphasis added).

It is an agreed fact in this case that the award of the contract to WC Construction stated that "[t]he cost effect of their proposed completion time for Stages 3 through 10 was also a factor in our determination." Exhibit G to Affidavit of Don Trail; Plaintiff's Response to Defendant's Concise Statement of Material Fact, p. 2, ¶ 8.

Vincent Construction submits the affidavit of Michael Vincent, which states, in part: "I did not know that the time to complete each stage of the Project would be used as criteria in which to evaluate the bids. It was always my belief that the Project would be awarded to the lowest, responsible bidder." Affidavit of Michael Vincent, p. 2, ¶ 4. Accepting that Michael Vincent did not know that the time to complete each stage of the Project would be used as criteria in which to evaluate the bids, the court concludes that this fact is not material to the resolution of summary judgment. The bid documents received by Vincent Construction specifically informed each bidder that "[c]ompletion time may be a factor in award of the Contract." Supplementary Instructions to Bidders, p. 3, § 1.7 A.1 (attached as Exhibit A to Affidavit of Don Trail).

Taking the evidence in the light most favorable to Vincent Construction, there are no facts which would support a promise made by Orchard Homes to Vincent Construction to award the contract to the lowest qualified bidder without using time to completion as a criteria to evaluate the bids. There are no facts which support the conclusion that Orchard Homes breached any promise or implied duty by awarding the contract using criteria outside of the evaluation factors set forth in the bid documents. Defendant Orchard Homes is entitled to summary judgment on the claim for breach of contract.

CONCLUSION

Plaintiff has not shown any legal basis to prevail and is not entitled to injunctive relief. Plaintiff's motion for preliminary injunction (#5) is DENIED. Defendant's motion for summary judgment (#34) is GRANTED. The court will enter judgment in favor of defendant and against plaintiff.

IT IS SO ORDERED.