of the bids, and not entail too much work or expense upon the contractor, can without doubt be considered reasonable, and within the discretion accorded to public officers by our courts. Such requirements are those which insist that proposals shall be made upon printed forms in triplicate and shall be delivered by a certain day named, and that the prices shall be written out as well as expressed by figures to give greater certainty and to guard against mistakes, and many other similar requirements. The act of the board in directing the city engineer to reject bids for public improvement unless accompanied by an offer to purchase bonds has been held not a ground for attacking a contract actually made, it not appearing that the bids were influenced by that fact.' 153. There should Be a Standard for Comparison of Bids.-In order to have a fair and equitable comparison, it is essential that all should have the same data concerning the same subject-matter, and that the bidders one and all be furnished with the same information or be afforded the same means of acquiring it. An act or a charter which requires a contract "to be given to the lowest responsible bidder" has therefore been held to render illegal and void a contract awarded on plans and specifications prepared by each of the different bidders. The court says the term lowest bid necessarily implies a common standard by which to measure the respective bids, and that a common standard must necessarily have been previously prepared of the work to be done Such a letting not only prevents the competition which it is the object of the statute to secure, but furnishes no standard by which the board can determine the lowest bid, and gives an opportunity for favoritism in awarding the contract." 154. Full Information as to the Work should Be Furnished.-A pro vision that certain contracts shall be lot to the lowest responsible bidder after advertising for bids requires that information shall be given to bidders which will enable them to bid intelligently. They should be informed either by the notice of letting or by proper specifications of the amount of work embraced in each contract, the time within which it is to be completed, the manner in which it is to be done, and the quality of the materials to be furnished." It is the manifest duty of the contracting officer or board which is authorized to make such public improvements to prepare plans and specifications, and to give a detailed statement or estimate of the work and of the 'Ric v. Board of Trustees (Cal.), 40 Pac. Rep. 551. Urazet Pittsburgh (Pa.), 20 Atl. Rep. 693 [1890]; but see State v St. Bernard (Ohio), 10 Ohio Cir. Ct. Rep. 74; and Connersville v. Merrill (Ind. App ), 42 N. E. Rep 1112. Erile v. Leary (Cal.). 46 Pac. Rep. 1. 4 Detroit v. Hosmer (Mich.), 44 N. W. Rep. 622 [1890]; and see Kneeland v. Hosmer, 20 Wis. 437. 5 Kneeland v. Furlong, 20 Wis. 437; see Peeples v. Byrd (Ga), 25 S. E. Rep. 677; and see Otis v. City of Chicago (Ill. Sup.), 43 N. E. Rep. 715 semble, Guarauty & T. Co. v. Chicago (ill. Sup.), 44 N. E. Rep. 832 [1896]. kinds and quality of the materials required, for the purpose of affording bidders data from which to estimate the cost of the undertaking and to induce fair and honest competition.' It has been held that the bidder cannot be required to furnish his own plans. The notice must provide for plans and specifications.' Such provisions in a city charter or special enactment, that contracts for public works shall be let to the lowest responsible bidder after advertising for bids, require that such information be given as will enable the bidder to bid intelligently, and that the same requirements, estimates, and specifications be given each and all the bidders, and that they shall bid upon the same work and materials and under the same specifications. Such estimates and specifications must be definite as to quantity as well as to quality of materials required, or the contract will be void. They should be rendered upon a cash basis. Under a charter requiring ordinances for public work to specify the materials to be used, an ordinance is void if it fails to specify the material,' but the notice need not specify that an asphaltum pavement proposed is to be of a certain kind of asphaltum. When the statute requires that the nature, character, locality, and a description of the improvement proposed shall be set forth, an ordinance providing for the paving of a street or the construction of a brick sewer "with necessary manholes" is not defective because it fails to specify the location of the manholes and catch-basins. The exact amount of paving composition required per square yard need not be specified." An act that requires the advertisement to "specify briefly the locality to which it is limited, and the time in which it must be completed," does not render it necessary to give the dimensions of the improvement nor the materials of which it is to be built."1 155. The Bid Should Contain neither More nor Less than is Called for by the Instructions, Plans, and Specifications.-The standard adopted, the necessity of requiring bidders to conform to it, and to include neither more nor less, is at once apparent. The addition of one single item, such as a different kind of stone, brick, or timber, a different quality of work, or a longer or better guaranty, destroys the equality and renders the bid worthless for comparison with the others which conform to the standard." It 1 McBrian v. Grand Rapi ls, 56 Mich. 95; and see N. P. Perrine Co. v. Pasadena (Cal.), 47 Pac. Rep. 777. People v. Com'rs, 4 Neb. 150. 4 City of Detroit v. Hosmer (Mich ), 44 N. W. Rep. 622. Bigler v. New York, 5 Abb. N. Cas. (N. Y.) 51; Reilly . New York, 54 N. Y. Super. Ct. 463. Kansas Town Co. r. Argentine (Kans. App), 47 Pac Rep. 542 [1897]. Verdin v. St. Louis (Mo. Sup.), 27 S. W. Rep. 447. 8 Verdin v. St. Louis (Mo. Sup.), 27 S. W. Rep 447; Otis v. Chicago (Ill.), 43 N. E. Rep. 715. City of Springfield v. Mathus, 124 Ill. 88 [1888]; Vane v. City of Evanston (Ill. Sup.), 37 N. E. Rep. 901; Cochran ». Hyde Park (Ill.), 27 N. E. Ren. 939 [1891]. 10 Wood v. Chicago (Ill.), 26 N. E. Rep. 608. 11 Main v. City of Fort Smith (Ark.), 55 S. W. R. 801 [1887] and s'e Felker v. New Whatcom (Wash ), 47 Pac. Rep 505 [1897]. 12 Weed v. Beach,56 How. Pr. (N. Y.) 470 cannot benefit a contractor or builder to include in his proposal other or more or better labor and materials than are specified in the advertiseUnder an act or charter requiring the work to be advertised, proposals received, and the contract to be given to the lowest bidder, the bid can be regarded only as a proposal for the labor and materials so advertised for, and if the price is not lower than that of any other bidder whose proposal embraces only the labor and materials called for in the advertisement, he is not entitled to have the contract awarded to him.' Bids submitted according to certain specifications which contain a warranty of durability for six years cannot be compared with a bid that contains a warranty for more than six years. If the additional warranty were considered and influenced the award to one who was not the lowest bidder, the contract will be void. When bids were asked for a storage reservoir capable of holding a water-supply for 100 days' delivery at the rate of 50,000,000 gallons per diem, the contract was not lawfully awarded to a bidder solely because of his having offered to provide a storage capacity sufficient for 250 days.' The same was held of a case where a contract was awarded to one who was not the lowest bidder, but who had furnished specimens which were not called for in the notice asking for bids, the contract having been given to him because of the greater fitness for use as shown by the samples. The contract was declared void, as contrary to the charter. Samples or specimens furnished cannot be compared, and the lowest price then determined by reference to the comparative fitness of the specimens, unless the advertisement has asked for samples and proposals to do work according to such samples, so that all should bid with the same. understanding. When samples of materials which the bidder will use have been furnished as required by the instructions to bidders, and the sample of the lowest bidder is not acceptable to the engineer as provided in the contract, he cannot demand the award of the contract, nor can it be given to him, even though he does offer to use brick of another kind which comes up to the requirements of the specifications." While the acts and requirements of a board of public works are subject to review by the courts, yet, the acts being discretionary, the courts do not interfere unless the motive be fraudulent or does positive injury. They tolerate restrictions and requirements for which they can assign no just cause, and that are frequently burdensome to bidders.** When the bid is accepted the bidder is bound only by the specification shown him at the time he makes his bid.' If other specifications are shown him when he executes the contract and he agrees thereto, they become a part of the contract and he is bound by them.' Statements or explanations by members of the board or its clerk will not be accepted in contradiction. to the terms of the formal invitation to bidders. Clerks, engineers, and individuals have no power to vary the terms of the advertisement nor to volunteer additional information not given to all bidders. If a contractor acts upon representations by such unauthorized persons, it seems he does it at his peril, and must take the consequences.* 156. Contract Must be Strictly According to Terms of Advertisement, Plans, and Specifications by which Bids were Invited. It is obligatory upon the officers of a city or state to execute the contract strictly in accordance with the terms and specifications by which the bids were made. The letting of a contract containing provisions materially more favorable to the contractor than the requirements under which the bids were invited and received destroys the benefit of the competition intended to be realized by the statute. Such contracts are illegal, and their performance may be enjoined. Neither the quantity nor quality of the work or materials nor the conditions prescribed can be changed, nor new burdens imposed, nor any alterations made, nor any new undertakings or pledges of the contractor be considered in awarding the contract. So when the instructions require that the price paid for earth excavation should be one fourth that bid for rock excavation, it was held not improper and that a bid which named $1.77 for rock and 44 cents for earth might be rejected for not conforming to the specifications, the price for earth works not being precisely one fourth that of rock excavations." The making of a contract to pave a street 37 feet wide, when the bids were received for a street 42 feet wide, omitting a space of five feet between the rails of a street-car track which it was the duty of the car company to keep in repair, was held not such an irregularity as would warrant the setting aside the assessments in view of the fact that the specifications did include the space between the rails, and that the cost thereof was not included in the assessment, and there was no showing of injury resulting to property-owners. 8 157. When Amount of Work Cannot be Determined. When plans and specifications have been made and estimates prepared of the amount and Hobbs v. Texas, etc., R. Co. (Ark.), 55 S. W. Rep. 586 [1887]; Hughes v. Clyde, 41 Ohio St. 339. Elgin v. Joslyn (Ill.), 26 N. E. Rep. 1090 [1891]; see also 108 Ill. 323, and 118 Ill. 567. 8 Langley. Harmon (Mich.), 56 N. W. Rep. 761: Littler v. Jayne (Ill.), 16 N. E. Rep 374 [1888]. 4 Smith v. Mayor, 10 N. Y. 504, 5 Wickwire v. City of Elkhart (Ind. Sup.). 43 N. E. Rep. 216. Nash v. St. Paul, 11 Minn. 174; People v. Board of Improvement, 43 N. Y. 227; Nichols v. State (Tex.), 32 S. W. Rep. 452. 7 Matter of Petition of March, 83 N. Y. 435 [1881]. * Voght v. Buffalo (N. Y. App.), 31 N. E Rep. 340, reversing 14 N. Y. Supp. 759. kind of work and materials required, it becomes a comparatively easy matter to get bids upon the same basis; but when the quantity and character of the work cannot be determined, the standard of comparison must be an approximate one. In such cases it is not only prudent but necessary to so describe the work that a comparison can be made of the several proposals without knowing the aggregate and exact cost of the whole work. This is usually accomplished by inviting bidders to name prices per unit of measure, the quantities being given approximately only, to enable the contractor to determine at what price he will undertake a job of the same size estimated. In such cases it is customary and prudent to insert a statement that the quantities named are approximate only, and that the contractor must be his own judge as to the correctness of the estimate given, both as to quantity and kind.* Every important item contemplated in the work must be included in the advertisement and specifications under which tenders were made. A part of the work may not be given outright to one person or party, nor can a price be fixed for a considerable part of the work and the remainder be given for competition. A contract which fixed the expense of part of the work by agreement between the contractor and the commissioner of public works, and not by competitive bidding, as required by law, is void as to such part. A price cannot be fixed for rock excavation in an advertisement for proposals for constructing a sewer, because it is in violation of the charter of the city which requires contracts for work and supplies to be founded on sealed proposals and given to the lowest bidder.' It is a violation of the law for public officers to test the bids by a comparison which omits a substantial part of the work to be contracted for. A contract awarded upon a comparison of bids which omitted an estimate of the rock excavation anticipated to be met was, therefore, held illegal and void.❜ It has been held that the ratio of the price of rock excavation to that of earth excavation might be fixed as four to one. A minimum price to be paid for labor cannot be fixed, and a contract awarded upon the basis of such a specification is in violation of the statutory provision requiring work to be awarded to the lowest bidder." Extra work that has not been mentioned in the announcement of the work and prices named in the proposals cannot be ordered unless excepted by the statute or especially provided for in the charter. Thus an acceptance of a bid to do rock excavation and other work which omitted the consideration of rock excavation, and undertook to pay what the rock 1 Mutual Life Ins. Co. v. New York (N. Y. App.), 39 N. E. Rep. 386. 2 Merriam on Petition, 84 N. Y. 596 [1881]; see also Village of Hyde Park v. Carton, 132 Ill. 100; Lake Shore R. Co. v. City (Ill.), 33 N. E. Rep. 602; Re Mahan, 20 Hun (N. Y.) 301. 3 Brady v. Mayor, 20 N. Y. 312 [1859]. 4 Re Marsh, 83 N. Y. 435 [1881]. 5 Frame Felix (Pa.), 31 Atl. Rep. 375. *See Sec. 151, art. 13, supra, and Secs. 588-589, infra. |