This section contains the nature of the case and procedural background.

Barber (D) submitted a bid to First Baptist (P) under bidding instructions that negligence on the part of the bidder in preparing the bid confers no right for withdrawal after the bid was opened. The bid was to be covered by a 5% performance bond. D submitted its bid for $1,860,000 and the next highest bid was $1,975,000. The bid provided in part that for and in consideration of $1 the receipt of which is acknowledged that the undersigned agrees that this proposal may not be revoked or withdrawn after the time set for opening bids but shall remain open for 35 days. The bid also provided that if it was accepted within 35 days, D would execute a contract for the construction project within 10 days of acceptance. A bid bond in the amount of $93,000 was issued by The American Insurance Company to cover D’s bid. The bond provided that if the proposal was accepted in 35 days and D failed to execute a contract within 10 days after written notice of acceptance, the obligation of the bid bond was to remain in full force and the money payable thereon shall be paid into the funds of the Owner as liquidated damages. After the bid opening, D discovered that a $143,120 mistake had been made in the bid by simply a clerical error in totaling the material costs on page 3 of the estimate worksheets. The next day D notified P it was withdrawing its bid. D delivered his evidence to P on May 20 and requested permission to withdraw his bid and a return of the bid bond. On May 29th, the church forwarded a construction contract to D and D refused to sign it citing that his bid had been withdrawn. P refused to accept the withdrawal and entered into a contract with the next lowest bidder for $1,919,272 after some modifications to the contract. P demanded that D turn over the bond money. That demand was refused. P sued D, and both moved for a summary judgment. The motions were denied, and this appeal was certified for interlocutory review.

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