162. State or City to Furnish Certain Things at a Specified Price.-It is sometimes the practice of public corporations to purchase a certain brand or make of materials, the engineer and council being satisfied that they are the best, or it may be necessary to secure conformity thoughout a system of works. When a city has contracted for supplies under such circumstances or has them in stock, it may require the contractor to purchase them at the price paid by the city and use them in the works.'

163. Contracts for Patented Articles or Materials of a Special Manufacture. If proposals are invited in good faith, it has been held that a city may contract for the use of such materials as it deems best, though such materials are the subject of private ownership or the product of exclusive manufacture, or the methods of preparing them are covered by patents.*

An ordinance providing for paving a street with a particular kind of asphalt in which there is a monopoly is not void, though the city charter provides for letting contracts to the lowest responsible bidder, the council having the right to reject the bid if it is exorbitant; the fact that there is a monopoly does not require that it be assessed. If the thing needed for public use is part of a patented article and can be bought only in one place, it is sometimes held that the article need not be advertised."

In New York state it has been held that the provision which entitles the person making the lowest estimate to have the contract awarded to him does not apply to estimates for patented articles or processes. Some states hold to the view that such contracts are not prohibited; but the tendency of the courts, according to Judge Dillon,' is that the statute prohibits any contract that cannot be advertised or let in the manner it prescribes, and he cites cases in which it has been held that a contract for a patented pavement with a person who had the exclusive right to lay the same was void. Mr. McKinney, in the American and English Encyclopædia of Law, says that the majority of the cases take the same view, and hold that the statutory prohibition applies to patented articles, citing numerous cases."

It is impossible to tell, except in states where it has been already decided, what law would be sustained, and engineers or contractors would do well to take good counsel if the question come up in their business. The cases which hold that materials or processes which are patented or are the subject of a

1 Merriam in Petition, 84 N. Y. 596 [1881].

City of Newark v. Bomel (N J.), 31 Atl. Rep. 408; N. P. Perrine, etc., Co. v. Quackenbush (Cal.), 38 Pac. Rep 533; State v. Board of Comm'rs (Kan.), 45 Pac. Rep. 616.

Verdin v. City of St. Louis (Mo. Sup.), 33 S. W. Rep. 480. Burgess, J.. dissenting. Verdin v. St Louis (Mo.), 27 S. W. Rep.

447.

Silsby Manfg. Co. v. Allentown (Pa.),

monopoly may be made the subject of a proposal and contract are given below,' as well as those which are to the contrary."

Another case

164. Instances where Contracts have been Made for Things in Which there was a Monopoly.-Perhaps the law will be better understood by a few cases. Those which most frequently occur are in contracts for patented pavements and sidewalks, and there is no uniformity in the decisions of the different states. There are several cases of patented machines, one a pump, in which it was held that the fact that the pump authorized was patented did not relieve the board from the necessity of advertising for bids. decides that a requirement that work shall be let to the lowest bidder does not forbid a contract for a garbage crematory, parts of which are patented, when the patents have been offered to the city or any contractor at a fixed price, and there is in fact free competition as to work and materials. In the same state it has been held that a city cannot contract for a patented pavement, no arrangement having been made with the patentee binding him to sell the privilege of using the process to the bidder at a fixed price." Where the royalty required to be paid on a patented article required to be used in the performance of a contract for public works was fixed, and the proposal inviting bids for the contract definitely stated that the royalty should be paid by the accepted contractor in a particular way, and several bids were actually made for the work, and the contract was let to the lowest bidder, there was actual competition by bids, in compliance with the law requiring the letting of the contract to the lowest bidder."

In Louisiana it has been held that a city may contract with the highest bidder in order to remove and destroy, under certain regulations, the offal that is annoying to health.'

When the job embraces several kinds of work, some of which are patented, while others are not, it has been held in New York that separate proposals should be invited, one for that part which is not patented, and another for that which is patented and for which there can be no competition. Specifications in the alternative have been allowed in a case where the lathing to be used was required to be a certain "patent lathing," or "some other lathing of equal quality to be manufactured from sheet iron within the limits of the city."

'Hobart v. Detroit, 17 Mich. 246; Re Dugro, 50 N. Y. 513; N. P. Perrine Co. v. Quackenbush (Cal), 38 Pac. Rep. 533; Verdin v. St. Louis (Mo.), 27 S. W. Rep. 447; Dean v. Charlton, 23 Wis. 590; Kilvington v. City of Superior (Wis.), 53 N. W. Rep. 487; Re McCormack. 60 Barb. 128; Worthington v. Boston (Mass.), 41 Fed. Rep. 23 [1890]; Harlem Gas Co. v. New York, 33 N. Y. 309. Nebraska City v. Nebraska Gas Co., 9 Neb 339; Yarold v. Lawrence, 15 Kan. 126 People v. Van Nort, 65 Barb. (N.Y.) 331. 2 State v. Elizabeth, 35 N. J. Law 351. Boon v. Utica, 26 N. Y. Supp. 932; Nicholson Pavement Co. v. Painter, 35 Cal;

699; Burgess v. Jefferson City, 21 La. Ann. 143: Dean v. Charlton, 23 Wis. 590; Dean v. Borchsenius, 30 Wis. 236; Barber Asphalt Co. v. Hunt, 100 Mo. 22.

3 Worthington v. L'oston, 41 Fed. Rep. 23 [1890].

Kilvington v. City of Superior (Wis.), 53 N. W. Rep. 487.

5 Dean v. Charlton, 23 Wis. 590.

State v. Board of Corn'rs of Shawnee County (Kan.), 45 Pac Rep. 616; see also Detroit v. Robinson, 38 Mich. 108.

State o. Payssan (La.), 1:7 So. Rep. 481. 8 Re Eager, 46 N. Y. 100.

Mulrein v. Kalloch, 61 Cal. 522.

Contracts for work or public undertakings for which franchises or exclu sive rights already exist, and by which competition is prevented, it seems are not within the statute requiring all contracts for work and materials to be advertised and let to the lowest bidder. It was therefore held that a contract made without inviting proposals with a gas company who had the exclusive right to supply a particular part of a city with gas was valid and binding. A contract with the only electric-light company in the city without advertising was held valid.2

When professional services, as those of a surveyor, are required and he is to be employed, it has been held that the common council or board have the power to select with references to securing the necessary skill, and no advertisement is required.' It has therefore been held that it was not necessary to advertise and to give to the lowest bidder a contract to furnish fireworks, for the reason that the articles were of a peculiar character, depending for their value upon the personal skill of the manufacturer. This is an interesting case, and the question may be properly asked if a contract for the erection of a lighthouse would come under the same rule, it having been held that the construction of such a structure was particular work, depending upon the personal skill of the contractor, and such work as could not be completed by his executor or administrator. It is thought not.

The renting of chambers for the recorder of the city of New York has been held not to fall within a provision requiring all contracts for work or supplies to be let to the lowest bidder; nor do contracts for carriage hire. of aldermen and councilmen when engaged in public service.'

165. Conditions and Stipulations as to the Performance and Completion of the Work.

1. Work and Materials to be to Satisfaction of Engineer or Architect. Bidders will be required to furnish materials and to complete the entire work to the satisfaction of the engineer and in substantial accordance with the specifications hereunto annexed and the plan therein referred to. No extra compensation, beyond the amount payable for the several classes of work before enumerated, which shall be actually performed at the prices therefor to be specified by the lowest bidder, shall be due or payable for the entire work.

1. Inspection and Acceptance of Work.

Each bidder must understand that should his proposal be accepted the materials delivered and the work performed by him, at any and all times during the progress of the work, and prior to final acceptance and payment, the same shall be subject to the inspection of the engineer or architect, or his authorized agent, with the full right to

accept or reject any part thereof that in the opinion of the engineer or architect, or his authorized agent, is not strictly in accordance with the drawings and specifications; and that he must, at his own expense, within a reasonable time, to be specified by the engineer or architect, remedy any defective or unsatisfactory materials or work, and that in the event of his failure to do so after notice the engineer or architect will have the full right to have the same done and to charge the cost thereof to his account. Each bidder must understand that, should his proposal be accepted, inspection of or payment for, any portion of the work embraced therein by the engineer or architect, or his authorized agent, will not relieve him of responsibility to remedy any defective materials or workmanship, at his expense, at any time before final inspection and acceptance of and final payment for all of the materials and work contemplated by and embraced in his proposal. 2. Prices to Include Everything.

The prices bid are to cover all expenses of furnishing materials [except..... .....which will be furnished by the company or city] and to cover all expenses and furnishing of tools, labor, and utensils incidental to and necessary for the full completion of the work in conformity with the contract and specifications.

2. Price Bid to Include Everything.

Bidders will state a price for completing the work specified in the bill of quantities and described in the contract and specifications, which price is to include and cover the furnishing of all the material and labor and the performance of all the work requisite or proper for the purpose, and the completing of all the above-mentioned work and the materials in the manner set forth, described, and shown in the specifications and on the plans furnished for the work, and in the form of contract exhibited and furnished by the engineer.

3. No Deviation from Plans and Specifications.

Bidders are informed that no deviation from the specifications will be allowed unless a written permission shall have been previously obtained from the engineer or architect.

4. Bonds to Maintain and Keep in Repairs.

The successful bidder will be required to furnish bonds to maintain and keep in repair the whole of the works undertaken by him, and all other works, roads, and streets interfered with or rebuilt, for a period of........... months after the full performance and completion of the contract.

5. Protection of Work and Materials.

The successful bidder will be responsible for the proper care and protection of all materials delivered and work performed by him until the completion and acceptance of and final payment for all the work embraced in his proposal, and part payments from time to time on account of such materials and work will not in any way relieve him of such responsibilty.

6. Building Regulations.

The successful bidder must fully comply with all municipal building ordinances and regulations, and obtain all required licenses and permits, and pay all charges and expenses connected therewith, and be responsible for all damage to persons or property which may occur in connection with the prosecution of the work.

7. Skilled Labor.

The successful bidder is to employ only skilled and reliable workmen

in the performance of the work, and must agree that the engineer or architect shall have the right to decide upon and discontinue the services of any workman employed by him on the work who does not possess satisfactory skill and qualifications or is otherwise objectionable. 8. Bidder Must Furnish Bond for Payment of Labor and Materials. Each bidder must distinctly understand that if his proposal is accepted, he will be required to execute a formal bond or contract; and the part and final payments, as the vouchers are issued on account of the contract, shall be subject to a reserved right of the engineer or architect to withhold any part of the money to be paid under the contract in the event of the failure of the contractor to promptly make payments to all persons supplying him with labor or materials in the prosecution and completion of the work provided for in the specifications, drawings, and proposal.

9. Commencement and Progress of Work.

The work must be commenced ten days after the execution of the contract and prosecuted to completion without interruption or delay; the whole work is to be completed and delivered by the....day of 189..

.....

10. Number of Days Required to Complete the Work.

Each bidder must also state the number of working-days he will require to complete the work, which number of days will be counted in the comparison of bids at the rate of twenty-five dollars ($25) per day. 11. Contractor's Delay.

All additional expense to the........ by reason of extension of the contract at the request of the contractor shall be deducted from payments due or to become due the contractor at the rate of...... dollars for each and every day.

11'. Liquidated Damages.

The damages to be paid for each day that the contract may be unfulfilled after the time specified for the completion thereof shall have expired are, by a clause in the contract, fixed and liquidated at.... dollars per day.

11. Liquidated Damages.

Each bidder must understand that should his proposal be accepted. the sum of.......... dollars as liquidated damages will be fixed for each and every day's delay not caused by the... ...that may occur beyond the time stipulated in his proposal for the supply of all the materials and the performance and completion of the work.

11. Liquidated Damages.

Liquidated damages of.........dollars per day are fixed by the terms of the contract for each and every day that the contract remains unfulfilled after the date of completion specified.

12. Bonus for Early Completion.

A bonus of....dollars per day will be paid for each and every day that the work is completed before the date specified for completion. 13. Payments on Estimate.

After the acceptance of a proposal, and execution and approval of a formal bond and contract, monthly payment will be made on account of the work actually done and in place in the structure; and such payments will be based upon the estimated value of the quantity of such work, computed from the contract unit of value, less 10 per cent. to be retained until the entire and satisfactory completion, final inspection, and acceptance of all the materials and work embraced in the contract,