panied by sufficient guaranty of some disinterested person," the act is not com plied with by merely writing the name of the person offered as surety as such.'

When one of the sureties who was named in the bid refused to execute the bond as surety, it was held sufficient to justify a refusal to execute the contract even after the bid had been accepted and the details of the contract agreed upon, and even though the lowest bidder did offer other securities.' The bid must conform to the form of the proposal required.' It may be re quired that the sureties shall be residents of the state, and the award of the contract may be refused to a bidder who neglects to furnish such security.*

The public officers may determine the responsibility of the sureties offered, and if they are sufficient; and it seems they are not limited in their inquiry to their reputed or actual responsibility, but may consider their vocation, business habits, character of their investments and property, and their reputation for integrity and prudence. A requirement that "all

proposals must be accompanied by a certificate of deposit for the sum named to the credit of the auditor," is satisfied by a certificate of deposit to the credit of the bidder and indorsed as " Pay N. S. B. Auditor, etc., or order." It was held that the board could not reject the bid, that being the lowest bidder, and, having furnished the requisite security, he was clearly entitled to the contract that he was entitled to it as a matter of right and of law. Such technicalities cannot be prescribed.**

THE AWARD AND FINAL EXECUTION OF THE CONTRACT.

ACCEPTANCE OF

THE PROPOSAL.

170. Information to be Furnished and Conditions to be Imposed when Contract is Executed.

1. Bidder's Residence and Address.

The place of residence of each bidder, with post-office address, county, and state, district, or territory, must be given after his signature, which must be written in full.

2. Signatures and Seals.

All signatures must be witnessed and have affixed to them seals of wax or wafer.

3. Partnership Bids.

When a firm bids, the individual names of the members shall be written out, and shall be signed in full, giving the Christian names; but the signers may, if they choose, describe themselves in addition as doing business under a given name and style as a firm.

4. Bids by Corporations.

In cases where a corporation submits a proposal, the proposal must be signed with the full name of each officer of the corporation, and their

1 State v. Board of Ed., 42 Ohio St. 374. Adams v. Ives, 63 N. Y. 650 [1875]. Wiggins Philadelphia, 2 Brewster (Pa.) 444; Weed v. Beach, 56 How. Pr. (N. Y.) 470; accord Wilson v. Baltimore (Md.), 34 Atl. Rep. 774.

4 Farman Comm'rs of Darke Co., 21 Ohio St. 311 [1871].

Adams v. Ives, 63 N. Y. 650 [1875]: Shaw v. Trenton, 49 N. J. Law 339 [1887]. People v. Contracting Board, 46 Barb 254 [1865].

6

* As to Sureties in General see Secs. 18-22, supra.

addresses given, in addition to the corporation signature, with official corporate seal thereto.

5. Bids by Agents.

Any one signing a proposal as the agent of another or of others must, file with it legal evidence of his authority to do so.

6. Officer's Authority to Bid.

If a person signs for a corporation, he must present legal evidence that he has rightful authority to such signature, that the signature is binding upon the corporation, and that the corporation has a legal existence. 7. Award of Contract.

The award of the contract, if awarded, will be made to the bidder who is the lowest for doing the whole of the work, and whose estimate is regular in all respects. It must be understood that an acceptance by the board, council, or state, of proposals made, shall be conditional upon the execution of the formal contract (of which the plans and specifications are a part), and the furnishing of the required bond for its faithful and complete performance.

8. Right to Reject Bids Reserved.

The right to reject [any and] all bids (plans, and estimates), is reserved if the Commissioners of Public Works shall deem it for the interest of the ... so to do.

...

9. Right Reserved to Waive Informalities.

The board or owner reserves the rights to waive any informalities in any proposal that may be received, and to reject (any or) all proposals submitted in response to the advertisement, and to disregard the bid of any failing contractor known as such to the Engineer.

10. Invitation to Opening of Bids.

Bidders are invited to be present at the opening of the bids.

[Signed]

Commissioners, Council, or Board.

171. Acceptance of Proposal and Execution of Contract. Right to Reject Bids. When the statute does not require that the contract be awarded to the lowest bidder, public officers may, if they choose, invite competition, and in their discretion make alterations in the plans and specifications advertised before executing the contract and without the knowledge of competing bidders.' They must not abuse the discretionary power conferred, and their acts must be free from fraud.'

To determine what is the lowest aggregate bid, the bids must be considered in their entirety, and not by taking separate items from different bids." Where an advertisement for bids for the erection of public school buildings states that the board reserves the right to reject all bids, one making

the lowest bid has no right of action against the board where the bid is rejected and the contract given to another, though it was the rule of the board that contracts should be let to the lowest bidder.' It has been held that a contract may be awarded to one at any price within the legal rate fixed for public printing, though another offers to do the work for sixty per cent. less. If the charter or a statute require the contract to be awarded to the lowest bidder after advertising for bids, a contract not so made and awarded will be void.' If the statute provides that the contract "shall be let to the lowest responsible bidder," an ordinance or advertisement which states that "the commissioner reserves the right to reject any proposal at his discretion," is invalid. If the act or charter says the contract shall be awarded to the lowest bidder it is useless to "reserve the right to reject any and all bids," though it has been frequently held that "all the bids might be rejected." The body awarding the contract acting in good faith may refuse to award to any one if they deem it for the best interests of the public to do so. They may reject all the bids and readvertise for new proposals.* It seems that the awarding of the contract may be indefinitely postponed," or the work may be abandoned altogether or the plans and specifications changed."

It seems that the contract cannot be awarded to another who makes a better offer after the bids have been received and opened."

172. Power to Determine Responsible Bidder is Discretionary.—If the statute provide that the contract be awarded to "the lowest responsible party" or to "the lowest responsible party furnishing good and sufficient security," the courts have usually held it to confer discretionary powers upon the public officers to determine whether or no the bidder was responsible and if his surety was good and sufficient. When such discretionary powers belong to a board of public officers the right to reject any and all bids"

1 Anderson v. Board of Public Schools (Mo. Sup), 27 S. W. Rep. 610.

Board of Com'rs of Henry County v. Gillies (Ind. Sup.), 38 N. E Rep. 40.

Littler. Jayne, 124 Ill. 123; State v. Licking Co.. 26 Ohio St. 531.

4 Lake Shore & M. S. R v. City of Chicago (Ill.), 33 N. E. Rep 602.

Walsh v. Mayor, 113 N. Y. 142 [1889]; People v. Croton Aqueduct, 49 Barb. 259; Bell v. City of Rochester, 30 N. Y. Supp. 355; People v. Aldridge, 31 N Y. Supp. 920; Connolly v. Board (N. J.), 30 Atl. Rep. 548; Booth v. City of Bayonne (N. J.), 28 Atl. Rep. 381, 15 Amer. & Eng. Eucy. Law 1096; Gunning G. Co. v. New Orleans (La), 13 So. Rep. 182; People v. Willis (Sup.), 39 N. Y. Supp. 987; State v. Directors, 5 Ohio St. 234; Kelly v. Chicago, 62 Ill. 279.

Walsh v. Mayor, 113 N. Y. 142 [1889]: Connolly v. Board (N. J.), 39 Atl. Rep. 548.

People v. Aldridge, 31 N. Y. Supp. 920. 8 Keogh v. Wilmington, 4 Del Ch 491. Kerr v. Philadelphia, 8 Phila. (Pa.) 292.

10 Douglass v. Commonwealth, 108 Pa. St 559; Kelly v. Chicago, 62 Ill. 279 [1871]; Findley v. Pittsburgh, 82 Pa. St. 351; Interstate, etc., Co. v. Phila. (Pa.), 30 Atl. Rep. 383; Comm. v. Mitchell, 82 Pa. St. 343; Hoole v. Kinkead, 16 Nev. 217; People v. Dorsheimer, 55 How. Pr. (N. Y.) 118; Hubbard v. Sandusky, 9 Ohio Cir. Ct. Rep. 638; People v. Mooney (Sup), 38 N. Y. Sup. 495; State v. Bd. of Ed. (Ohio), 20 Bull. 156; semble, Van Reipen v. Jersey City (N. J.), 33 Atl. Rep. 740; and see State o Marion Co., 39 Ohio St. 188; People v. Gleason, 4 N. Y. Supp. 383; Weed . Beach, 56 How. Pr. N. Y.) 470; May . Detroit, 12 Am. L. Reg. (N. S.) 149; McBrian v. Grand Rapids, 56 Mich. 95.

seems to be properly reserved, the exercise of which right is subject to the close scrutiny of the court.'

Sometimes the ordinance or act itself authorizes the engineer to reject any and all bids if deemed too high or the parties bidding are deemed irresponsible. Under such a clause the act of the engineer in rejecting the lowest bid can be impeached only on the ground of bad faith.

If, as is sometimes the case, the statutes provide that "every such contract shall be deemed confirmed in and to such lowest bidder at the time of the opening of the bids," then there is no discretion; the contract goes to the lowest bidder.

66

3

173. Discretion Must be Exercised in Good Faith.-The body or board or council accepting the bids must determine whether the lowest bidder is responsible and shows the ability and offers the security prescribed; and if the bid is not rejected because of a bona fide determination of the lack of such qualifications, it cannot be rejected for other extraneous causes. The word responsible" has been held not to have reference to pecuniary ability alone, but to have reference to the skill, ability, and integrity of the bidder, and that it is proper to consider which bidder would be most likely to do faithful, conscientious work. The word "responsible" has been held to mean the ability to perform all the conditions of the contract; and the commissioner of public works may reject a bid, notwithstanding it is the lowest made, and the bidder is able to give the required bond, if, in the judgment of such official, after due investigation, the materials customarily used and the workmanship exhibited by the bidder in the performance of the kind of work required are poor and unsatisfactory."

The discretion must be exercised in good faith and without fraud or collusion; and such a power to dispense with certain requirements conferred upon a board or council by act of legislature being discretionary, it cannot be delegated. The board cannot exercise an arbitrary discretion in awarding the contract, but must base its discretion on facts reasonably tending to support its determination.'

It seems that evidence is admissible

People v. Willis (Sup.), 39 N. Y. Supp. 987; Peeples v. Byrd (Ga.), 25 S. E. Rep. 677; State v. New Orleans (La) 19 So. Rep. 690; Gunning G. Co. v. New Orleans (La.), 13 So. Rep. 182.

Johnson v. Duer (Mo.), 21 S. W. Rep. 800; State v. New Orleans, supra.

४

The People v. The Croton Aqueduct, 49 Barb. 259 [1867].

4 Shaw v. Trenton, 49 N. J. Law 339 [1887]. 5 Comm. v. Mitchell, 82 Pa St. 343; Hoole v. Kinkead, 16 Nev. 217; Renting v. Titusville (Pa. Sup.), 31 Atl. Rep. 916

People v. Kent (Ill. Sup.), 43 ̊ N. E. Rep. 760; Peeples v. Byrd (Ga ), 25 S. E. Rep. 677: State v. St. Bernard, 10 Ohio Cir. Ct. Rep. 74.

to impeach the contract and show

7

Reuting v. Titusville (Pa.), 34 Atl. Rep. 916; Ross v. Bd. of Ed., 42 Ohio St. 374; Hubbard v. Sandusky, 9 Ohio Cir. Ct. Rep. 638; Van Reipen v. Jersey City (N. J.), 33 Atl. Rep. 740; Gunning G. Co. v. New Orleans (La.), 13 So. Rep. 182; People v. Town of Campbell, note 8; State v. Betts, 4 C. C. (Ohio) 86.

8 Re Emigrant Ind. Sav. Bauk, 75 N. Y. 388; but see People v. Town of Campbell (Sup.), 36 N. Y. Supp. 1062, where engineer was authorized to receive proposals and award contract; and see Board v. Kemp (Ind. App.), 43 N. E. Rep. 314.

9 McGovern v. Board (N. J Sup.). 31 Atl. Rep. 613; semble, In re McCain (S. D.), 68 N. W. Rep. 163.

that the bid accepted was not in fact the lowest according to the data proposed as tests, without alleging a fraudulent collusion between the bidder and the officers awarding the contract.1

174. Bids Rejected but Reconsidered Without a New Advertisement.-A common council which has rejected all bids received in reply to an advertisement for proposals may at a subsequent meeting, without readvertising for new proposals, reconsider the vote of rejection and award the contract to one of the original bidders. It has been so held.' It may be doubted if the bidder could be held to his offer, it having been once rejected and not renewed again. Therefore when the instructions to bidders required a guaranty that the bidder would not withdraw his proposal within sixty days, and that if the same were accepted he would enter into a contract within ten days after the day on which he should be notified of such acceptance, it was held that after that time, as against the bidder, the bid could not be accepted; and it was further held, that though personal notice of the acceptance was intended, and that though notice was deposited in the mail a few days before the expiration of the sixty days, but which did not reach the bidder until after the expiration of that period, was insufficient to render him or his guarantors liable for a failure to enter into a contract.3 *

A second advertisement for bidders has been held unnecessary in case of nonperformance by the original contractor, the liability of the contractor and his sureties having been deemed adequate indemnity against additional expense in completing the work. If the expense has not been increased by fraud and irregularity, an assessment levied under the act cannot be vacated or reduced. The fact that the work was completed at an expense considerably exceeding the contract price does not, it seems, require that it should have been readvertised and relet."

175. Not Always Necessary to Roadvertise.-When the lowest bidder had failed or refused to enter into the contract and to give the guaranty required, it was held that the contract might be awarded to the next lowest bidder without readvertising for bids; but it seems that the next lowest. bidder cannot compel the award of the contract to him.'

There are cases to the contrary which hold that if the lowest bidder withdraw his bid it is necessary to advertise again, and not to award the contract to the next lowest bidder. The charter may require that notice be given at a reletting of a contract the same as at the first letting, and the contract reawarded to the lowest bidder, in which case it must be strictly followed."

1Brady v. Mayor, 20 N. Y. 312 [1859]. 2 Ross v. Stackhouse, 114 Ind. 200 [1887]. Haldane v. United States (C. C. A.), 69 Fed. Rep. 819.

4 In re Leeds, 53 N. Y. 400 [1873], Justice Allen dissenting.

In re Leeds, supra; Brass Foundry Works v. Parker Co., 115 Ind. 234, construction of a public building.

6 Gibson Rep. 1107.

Owens (Mo. Sup.), 21 S. W.

State v. Shelby Co, 36 Ohio St. 326, see also Mackenzie o Baraga Tp, 3 39 Mich. 554.

Twiss . Port Huron, 63 Mich. 528 [1886]; s. c., 30 N. W. Rep. 177.

Dillon's Munic. Corp'ns [4th ed.], § 466, note, and cases cited.

* See Sec. 95, supra.