## Facts

- Fletcher-Harlee, a general contractor, solicited subcontractor pricing for a construction project and instructed that bids be held open for 60 days and that subcontractors be accountable for submitted prices.
- In the construction industry, subcontractor bids are commonly treated as firm offers if selected, but Pote submitted a document styled as a “price quotation” rather than a firm bid.
- Pote’s quotation contained explicit disclaimers stating it was for informational purposes only, did not constitute a firm offer, should not be relied upon, and did not create any binding obligation.
- Fletcher-Harlee nonetheless used Pote’s numbers in its prime bid because they were the most favorable.
- After Fletcher-Harlee was awarded the prime contract, it sought to formalize a subcontract with Pote; Pote increased its price.
- Fletcher-Harlee hired the next-lowest subcontractor and alleged it incurred roughly $200,000 in additional costs.
- Fletcher-Harlee sued Pote for breach of contract and promissory estoppel.
- The district court dismissed under Rule 12(b)(6), and Fletcher-Harlee appealed.

## Issues

1. Whether Pote’s price quotation, despite express disclaimers, constituted an offer capable of acceptance to form an enforceable subcontract.
2. Whether Fletcher-Harlee plausibly alleged reasonable reliance to support promissory estoppel where the quotation expressly warned it should not be relied upon.
3. Whether the district court erred by dismissing without granting leave to amend when Fletcher-Harlee did not properly request amendment or submit a proposed amended complaint.

## Decision

- The Third Circuit affirmed dismissal of the complaint.
- No contract was formed because Pote’s quotation, by its express terms, was not an offer; therefore, there was nothing Fletcher-Harlee could accept to create a binding subcontract.
- The promissory estoppel claim failed because reliance was unreasonable as a matter of law in light of the quotation’s clear nonreliance and nonbinding disclaimers.
- The district court did not abuse its discretion by dismissing without sua sponte granting leave to amend because Fletcher-Harlee did not properly seek leave or provide a draft amended complaint.

## Legal Principles

- Contract formation requires an offer and acceptance; a communication that expressly disclaims being a firm offer is not an offer capable of acceptance.
- Express terms control over trade usage or industry custom; customary treatment of subcontractor bids as firm offers cannot override clear nonbinding language in the particular submission.
- Promissory estoppel requires reasonable reliance; reliance is not reasonable where the alleged promise expressly states it is nonbinding and should not be relied upon.
- In ordinary civil cases, a plaintiff seeking leave to amend after dismissal must affirmatively request amendment and ordinarily should submit a proposed amended complaint; courts are not generally required to grant leave sua sponte.

## Conclusion

The Third Circuit held that a subcontractor’s price quotation containing explicit nonbinding and nonreliance disclaimers was not an offer and could not support either contract formation or reasonable reliance for promissory estoppel, and it affirmed dismissal without leave to amend where the plaintiff failed to properly request amendment and tender a proposed amended pleading.


Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247 (3d Cir. 2007)