Some cases hold that after bids have been received material alterations cannot be made in the contract awarded without a new advertisement.'* If the contractors abandon the work, the act of their surety in finishing the building for the city as their agent has been held simply the completion of the original contract, and hence that the letting of a new contract to a new "lowest bidder" is unnecessary. If the contractor has abandoned the work, a contract by the county with the subcontractor to pay him for work done by him or to be done by him was held not void if the work had progressed so that in the judgment of the commissioners it might be completed substantially under the original contract, and by keeping in operation the agencies already in motion. Work so abandoned may, it seems, be completed without readvertising or competition at fair prices, even though the expense considerably exceeds the contract price. If the lowest bidder be allowed to withdraw his bid on the ground. of a mistake, it seems it is improper to award the contract to the next lowest bidder. The work should be advertised again, and other bidders be allowed to revise their bids." These are special cases, and are so fortified with conditions that a general statement of the law can scarcely be made. Indeed, it can hardly be desired that such general law should exist, for it might be employed as a means of avoiding the statute by getting a mock contractor to undertake the work and then abandon it to the merciless grasp of conspirators and boodlers. When proposals have been solicited for public work and they have been received, giving separate bids for the material and different kinds of work required in the construction, one of which has been accepted with the understanding that when the structure is located the amount to be paid will be determined by its length and size upon the basis fixed in the bid, it is not necessary to advertise for new proposals when the structure is located, even though it is considerably shorter than was the one bid upon. And when the advertisement and proposal was for paving a specified distance and the contract entered into was to pave only a part of that distance, or further if ordered," it was held that it was not necessary to readvertise for proposals when the balance of the work was ordered to be done; that it was covered by the original contract. If the council resolve to readvertise for bids for a street improvement because the lowest bid is in excess of the estimate by the engineer, their act must be approved by the mayor, or passed over his veto, as provided in the city charter. If no notice to the 1 Dickinson v. Poughkeepsie, 14 N. Y. Super. Ct. 1. 2 McChesney . City of Syracuse (Sup.), 22 N. Y. Supp. 507. Bass F. & F. Works . Parker County (Ind.), 115 Ind. 24 [1888]. 4 Matter of Leeds, 53 N. Y. 400. 5 Twiss v. Port Huron, 63 Mich. 528. 66 6 Insley . Shepard. 31 Fed. Rep. 869 [1887]: Brevoort v. Detroit, 24 Mich. 322. Brevoort . Detroit, supra. Booth v. City of Bayonne (N. J.), 28 Atl. Rep. 381. *See also Sec. 155-160, supra. mayor be required by law, a contract for a public improvement may be awarded legally, without any notification by the commissioners to the mayor of the meeting when the award was made." 5 176. Whether Lowest Bidder can Compel an Award to Himself._ Whether or not a board may be compelled to award the contract to the lowest bidder is not fully settled. There are numerous decisions partly to the effect that a court will not compel the city or its board to award the contract to the lowest bidder;' that when a board is invested with a discretion, the court will not seek to control it in the absence of fraud or bad faith. The fact that the lowest bid is considerable [$1500] greater than the estimate cost does not warrant the inference that its acceptance was fraudulent.** It has been held that when an act directs municipal officers to award a contract to the lowest responsible bidder "it vests discretionary powers in such officers, the word "responsible "applying not only to pecuniary ability, but also to judgment and skill of the contractor. Such officers are free from control so long as they act in good faith, though they do act erroneously and indiscreetly. The court will not interfere with the commissioners if they have exercised reasonable care to advise themselves whether the lowest bidder could be depended on to do the work bid for with ability, promptitude, and fidelity, and in good faith concluded that he could not, though the court be satisfied that such conclusion was erroneous,' or that they have been indiscreet. A board of public works is better qualified to determine what bid for a public work should be accepted than a court of chancery can be, and the court will interfere only where the chancellor can see that the board has either acted in violation of law or in such a manner that its contract virtually amounts to a fraud.' The lowest bidder is usually held to acquire no legal right to compel by mandamus that the contract shall be awarded to him when discretionary power has been conferred upon the commissioners.1 The fact that a bidder Terrell v. Strong (Sup.), 35 N. Y. Supp. 1000; see also Barber Asph. P. Co v. Uilman (Mo. Sup.), 38 S. W. Rep. 458. Dillon's Munic. Corp'us, § 32, note, and many cases cited. Kelly. Chicago, 62 Ill. 279 [1871]; Douglass v. Commonwealth, 108 Pa. St. 559; Howlett v. Directors, 5 Ohio St. 235; [1856]; People v. Croton Aq. Board, 49 Barb. 259, Findley v. Pittsburgh, 82 Pa. St. 51; see also Grant v. Common Council (Mich.), 52 N. W. Rep. 997; Comm. v. Mitchell, 82 Pa. St. 343; Hoole v. Kinkead, 16 Nev. 217; Weed v. Beach, 56 How. Pr. (N. Y.) 470; People v. Contracting Bd., 27 N. Y. 378, 33 N Y. 382; State v. Bd. of Ed., 42 Ohio St. 374: People v. Kent (Ill.), 43 N. E. Rep. 760: In re McCain (S. D.), 68 N. W. Rep. 163; Johnson v. Sanitary 10 Dist. (Ill. Sup.), 45 N. E. Rep. 213; 4 Booth v. City of Bayonne (N. J. Sup.), 28 Atl. Rep. 381. 5 Interstate, etc., Co v. City of Phila. (Pa.), 30 A11. Rep. 383; Douglass v. Commonwea th, 108 Pa. St. 559. 6 Doug ass v. Commonwealth, 108 Pa. St. 559. State . Village of St. Bernard, 10 Ohio Cir. Ct. R. 74. 8 Findley v. City of Pittsburgh, 82 Pa. · St. 351. Johnson . Sanitary Dist. of Chicago, 58 Ill. App. 306. 10 15 Amer. & Eng. Ency. Law 1097; *See Chap. I., Secs. 50-56, supra, and 428-429, infra, as to proof of fraud was the lowest, and has been reported to the common council as such, does not establish a binding contract with a city unt approved and ratified by the common council, as required by law. 1** When a charter provides that the contract shall be "let to the lowest reliable and responsible bidder," it requires public officers to exercise discretion and determination, and it has been frequently held that courts would not issue an injunction to prevent an award of a contract to one who was not the lowest bidder.' The facts must be made to appear sufficiently to show that they bring the case within the officers' discretion, and that it was exercised in obedience to law.' 177. Public Officers may be Enjoined from Illegally Awarding Contract.— It is well settled that any taxpayer can, or if a taxpayer be the lowest bidder he can himself, bring suit in equity to enjoin the execution of a contract illegally awarded.' The lowest bidder can do this though he is prompted by other considerations than his liability to excessive taxation. So where a council merely finds that the one to whom the contract was awarded was "the lowest and best bidder" without finding any facts which rendered another, who was apparently the lowest bidder, not the lowest bidder in. fact, the performance of the contract will be enjoined." The discretion vested in commissioners will be controlled by the courts. only when necessary to prevent fraud, injustice, or the violation of a trust;' and the mere fact that the commissioners awarded the contract to one not the lowest bidder is insufficient to establish the charge that they acted fraudulently or illegally." If public officers are about to award a contract without advertising for bids as required by law, or if a contract has been let in violation of the law, a court of equity will prevent the execution or performance of the contract at the instance of any taxpayer. The allegation and proof of fraud will cause an injunction to issue to restrain the awarding of the troit F. P. Co. v. Auditors, 47 Mich. 135; State v. Supervisors York Co., 17 Neb. 643; People v. Bd. of Ed., 5 N. Y. Supp. 392; Mayo v. Hampden Co. Comm'rs, 141 Mass. 74; People v. Campbell, 72 N. Y. 496; Deckman v. Oak Harbor, 10 Ohio Cir. Ct. Rep. 409; State v. Scott. 17 Neb. 686; People v. Croton Aq. Board, 26 Barb. (N Y.) 240; Rabling v. Board of Comm'rs (Ind. Sup ), 40 N. E. Rep 1079; cases collected 14 Amer & Eng. Ency. Law 210, note 6: East River Gas Co. v. Donnelly, 93 N. Y. 557; Times Pub. Co. v. City of Everett (Wash.), 37 Pac. Rep. 695. 1 Smith v. Mavor, 10 N Y 504; and see Walsh New York, 113 N. Y. 142; and see also United States v. Lamont, 15 Sup. Ct. 97. 215 Amer. & Eng. Ency. Law 1096; and see Grant v. Common Council (Mich.), 51 N W. Rep. 997. 3 Commonwealth v. City of Philadelphia (Pa. Sup.). 35 Atl. Rep. 195. 4 Bord. Gillies (Ind.), 38 N. E. Rep. 40 and see Christian v. Dunn (Com Pl.), 8 Kulp 320: Wood v. Pleasant Ridge, 12 Ohio Cir. Ct. Rep. 177; Comm'rs v. Templeton 51 Ind. 266. 5 Times Pub. Co. v Everett (Wosh ), 37 Pac. Rep. 695; semble. People v. Contracting Board, 33 N. Y. 382; and see Peeples v. Byrd (Ga.), 25 S. E. Rep 677. 6 Times Pub. Co. v. Everett (Wash.), 37 Pac. Rep. 695. Terrell Strong (Sup.), 35 N. Y. Supp. 1000; Johnson v. Sanitary Dist (Ill. Sup ). 45 N. E. Rep. 213. 8 Terrell v. Strong (Sup.), 35 N. Y. Supp 1000. *See Sec. 183, infra. contract; and injunction seems to be the proper ren.cdy,' though not a necessary remedy, it seems. If a taxpayer has before the commencement of the work notified the contractors that he would contest the legality of the rroceedings under which they were acting, he is in a position, after they Lave completed the work, to ask that the placing of a lien on his property for the cost of construction be enjoined.' It has been held that when a contract was awarded to a bidder who was only $200 higher than the lowest bid, only $30 of which was to be paid by the city, and the mistake was one of judgment merely and not intentional, it did not warrant the intervention of the attorney-general. It has been held to be illegal to divide the work between the highest and lowest bidder." 178. What Remedies a Bidder May Have.-Contractors before demanding the rights of the lowest bidder under the charter of a city or a special act of legislature should make sure that the law requires the contract to be given to the lowest responsible bidder. They should have taken pains to conform strictly to the notices, instructions, and ordinances made in regard to the work. A statute conferring the entire control of the work for procuring a water-supply upon water-commissioners, and directing them to give public notice for proposals, but which does not require them to let the work to the lowest bidder, was held to give the commissioners full discretion as to the acceptance or rejection of all sealed proposals.' When public officers have exceeded their powers and deprived the lowest bidder of his lawful rights to the award of a contract, the question very naturally comes up as to what remedies he has to recompense him for the loss and the injustice he has suffered. There are a few cases to the effect that if the bidder can show that he is legally entitled to the contract under the terms of the act, he may enforce the award by mandamus although the contract has been awarded to another party. The lowest bidder must have used reasonable diligence in asserting his rights and have done nothing to waive his rights." There are decisions to the effect that the bidder has no ground for mandamus, as he has no cause of action and no clear legal rights until the. contract is made and concluded.' In Ohio it has been held that if the Smith. Phila.. 2 Brews. (Pa.) 443; Follmer v. Nuckolls Co., 6 Neb. 204; Schumm . Seymour, 24 N. J. Eq. 143. Hoffmau. Board (Mont.), 44 Pac. Rep. 973. 3 Brace, C.J, and Sherwood and Robinson, JJ.. dissenting.-Verdin v. City of St. Louis (Mo. Sup.), 33 S. W. Rep. 480. See also Dibble New Haven (Conn.), 56 Conn. 199, where the building committee had been instructed by vote to let work to lowest bidder;-no injunction was granted. Attorney-General v. Detroit, 26 Mich. 263 and see Attorney General v. Boston, 123 Mass. 460. 5 McDermott v. Board of Street and Water Com'rs of Jersey City (N. J. Sup.) 28 Atl. Rep. 424. 6 Wiggins v. Philadelphia, 2 Brews. (Pa.) 444; State v. York Co. Com'rs, 13 Neb. 57; Weed v. Beach, 56 How. Pr. (N. Y.) 470; State v. Bartley (Neb.), 70 N. W. Rep. 367. Flemming v. City of Suspension Bridge, 92 N. Y. 368 [1883]. 8 Boren v. Com'rs of Darke Co., 21 Ohio St. 311 [1871]; Wood's Master and Servant (2d ed.) 162. People v. Croton Aq. Board, 26 Barb. (N. Y.) 240; Weed v. Beach, 56 How. Pr. (N. Y.) 470; Kelly v. Chicago, 62 Ill. 279. lowest responsible bid be rejected and any other be accepted, the action of the board may be controlled by mandamus without doing violence to the rule that in matters involving judgment and discretion the board cannot be controlled by mandamus proceedings. The lowest bidder must show a clear legal right in himself. Another case holds that even when a bid for public work has been accepted, and the contractor has a clear right to the contract, yet mandamus will not lie to compel the commissioners to execute the contract; that the proper remedy is an action against the city for damages. It has been held that the lowest bidder had no right of action at law against the city to recover profits which he might have made had his bid been accepted.* 2 A recent case decides that the provision in a city charter that contracts for public work shall be awarded to the lowest reliable and responsible bidder is not for the benefit of a bidder for such work, but to protect the property-holders and taxpayers, and therefore the lowest reliable and responsible bidder has no such vested or absolute right to a compliance with such provisions of the statutes as will entitle him to maintain a suit to enjoin their violation by public officials; that the presentation by a reliable. and responsible bidder of the lowest bid to officials whose duty it is to let the contract to the lowest reliable and responsible bidder, but who have the right, under the statute, to reject all bids, and who have given notice in their advertisement for bids that they reserve the right to reject any and all bids, does not constitute an agreement that they will make a contract for the work with such a bidder; nor does it vest in him such an absolute right to the contract as will authorize a court of equity, at his suit, to compel the officials, or the municipality they represent, to enter into a contract for the work with him, when they are about to award, or have awarded, it to a higher bidder." Whether mandamus will lie is in the discretion of the court; and an allegation by the board of public works that no appropriation exists to cover the expense of the works, and that they have changed the design and character of the work to be done, and have decided that the public interests required that the work should be readvertised and let under proposals framed in accordance with such alterations, was good, and a discretion they might properly exercise." A refusal to approve the contract on the ground that the work was to be done with a certain brand of material named, when it appears that the contractor has furnished samples of material of the kind and quality required and named, and that the contract has been made with reference to such samples, is technical and without foundation; but when the contract 1 State v. Bd. of Ed., 42 Ohio St. 374. People Campbell, 72 N. Y. 496. 3 Talbot Pav. Co. v. Detroit (Mich.), 67 N W. Rep. 979; East Riv. G. Lt. Co. v. Donnelly, 93 N. Y. 557. 4 Colorado Paving Co. v. Murphy (C. C A.), 78 Fed. Rep. 28. 5 People v. Croton Aq. Board, 49 Barb 259. |