bidder, but not equivalent to awarding the contract to him.' And when the engineer informed a bidder in writing that his tender was accepted, and that intimation was confirmed by the directors of the company upon his attendance at one of their meetings, no document being executed accepting the tender in such a manner as to be binding at law, and the project was afterwards abandoned, it was held that the contractor could not compel the company to execute a contract, nor could he recover from them the loss he had sustained in preparing for the works." A bid properly made under valid and regular proceedings and once accepted, and the contract awarded to the lowest bidder, is good always.' A contract so made cannot be destroyed by the rescission of the ordinance by the council; but if the ordinance has not been legally passed, any and all proceedings under it are invalid, and a contract under such an ordinance gives a contractor no rights to recover damages for refusing him the work.' A written proposal and an oral acceptance thereof have been held not to constitute a written contract. But a written bid and a verbal acceptance by a managing receiver, and a signing of the specifications and plans by the bidder and the company's architect, have been sustained as a binding contract.' Proceedings which consist of opening bids and awarding the work, without stating the amount of the bids submitted or the sum for which the work was awarded, have been held sufficient to authorize the contract. Where a contractor's bid for the construction of a building is accepted, and the terms of the building contract are left to be stated in a writing subsequently entered into by the parties, that writing is the highest evidence of the terms of the building contract." The proceedings of public officials in opening the bids and awarding contract is such business as should be overt and open to public inspection. Frequently, therefore, the bidders are invited to be present when the pro- · posals are opened. When the charter requires that bids shall be opened on the day named in the notice, or on such subsequent day as the council might adjourn to, is most and provides that the "council shall determine which proposa favorable," it does not require the determination of such question at the meeting at which the bids are opened.1o 1 Leskie v. Haseltine, 155 Pa. St. 98. & Twelle R. 75 [1848]. 3 Lewis v. Bras, L. R 3 Q. B. Div. 667. 4 Baird . Mayor, 23 N. Y. 254. 5 Baird v. Mayor, 83 N. Y. 254; but see Carey v. E. Saginaw (Mich.), 44 N. W. Rep. 168. [1890], where contract was not in writing and sealed, as charter required. 6 Specht . Stevens (Neb ), 65 N. W. Rep. 879; acco d. Bruce v. Pearsall (N. J.), 34 Atl. Rep. 982 If the bidder has made a mistake and withdraws his proposal after it has been accepted, he may be held liable to the owner for what the work costs in excess of his bid.' Fraud or false misrepresentations by the owner or his authorized agents as to the character of the work undertaken, and an immediate notification as soon as discovered by the bidder, will relieve him from his original offer, as it would also from the contract.' The mere fact that a party is the lowest bidder, and knows that fact, does not constitute an award to him of such contract under an act regulating the letting of work upon competitive bids, which provides that "if the lowest bidder shall refuse or neglect, within five days after due notice that the contract has been awarded, to execute the same, the deposit made by him shall be forfeited to the city."** 184. Bid to Furnish Materials.-If, in answer to an advertisement for proposals to supply goods, to furnish materials, or to perform work, a bidder submits a bid offering to furnish the materials or do the work in such quantities or at such times as may be ordered, which bid is accepted, it has been held that the bidder is bound to supply the goods or perform the work when ordered although there is no binding contract on the part of the acceptor to take or order anything, and that there is sufficient consideration for the bidder's promise. If this is good law and the bidder's offer cannot be recalled or revoked, contractors and materialmen will do well to limit their proposals as to quantity and time, so that they may not be compelled to carry a stock of materials, or hold themselves in readiness to perform such a contract, for an indefinite length of time. If the dealer or manufacturer is bound to furnish materials when ordered, it would seem that there would be a reciprocal obligation on the part of the one inviting the bids to order from the bidder what materials he required or purchased during the period named. So it has been held. A contract to furnish stone "at such times and in such quantities as may be required" was construed to refer to the needs of the work or service." 66 A contract to furnish materials in which the quantities were stated as more or less," and it was agreed that the materials should be delivered in such quantities "as shall be directed by the treasurer and according to the specifications and the requirements of the treasurer under them," and pay *The form of Instructions to Bidders has been made more comprehensive than ordinary work will require, but it is submitted that frequently circumstances exist where they all may have a bearing, and conditions will arise which may be met by the clauses here given. If the circumstances do not require the use of all the clauses given, the engineer or architect may omit such clauses as seem unnecessary by and with the advice or consent of the company's or owner's legal adviser. ments were "to be made upon the engineer's certificate that the quantities. have been delivered as per requisition and in accordance with the specifications," the words more or less always following each statement of quantity, was held to be a contract for only what materials were needed, and that no damages could be recovered for not taking the quantities stated in the specifications.' If proposals are made for certain materials, as the stone in an old structure about to be torn down, specifying no limitations or qualifications, an unconditional acceptance thereof has been construed a contract for all the materials specified [stone]." 185. Form of Proposal for Public Work. PROPOSAL FOR THE CONSTRUCTION; ERECTION; FOR IMPROVING, REMOVING, AND OR ON, OR OVER. CITY, TOWN of. COUNTRY. To the Chief Engineer, Architect, or Surveyor. To the Board or Commissioner of Public Works. Dear Sir or Gentlemen. .... We.... the President, Secretary, Treasurer, and General Manager of.........Company, a corporation duly authorized by act of Congress or Legislature. 18..., to contract and to do such other business as is required under the annexed contract. The undersigned do[es] hereby declare: 1. Not in Arrears or Default.-That I, [We or the........ Company,] am [are or is] not in arrears to the........ Company, City, or State, upon debt or contract or by default as surety or otherwise. 2. Capacity to do Work.-That I, [We or the......... Company or Firm,] have [has] been regularly engaged in contract work or in building or in the erection of..........of the class of work required by the annexed contract and specifications for.... years, and that I [We or it] respectfully invite attention to the following works that have been erected by me for us or the said........Company], and respectfully refer to the following parties for whom I [We or it] have performed construction work: The New York and Brooklyn Bridge, erected 1870-1883, for the New York and Brooklyn Bridge Trustees, cost $15,000,000; Office Building for The Manhattan Life Insurance Co., 16 stories, 67 ft. by 125 ft., 72 Broadway, New York, 1893; etc. etc. 3. No Help from Engineer's Office. That this estimate and proposal submitted has been prepared without any assistance from any person belonging to, employed by, or holding office in the Engineering [Architectural] Department, or the Department of Public Works of the Collmeyer . Mayor, 83 N. Y. 116. 2. 2 Thorn v. Comm'rs, 32 Beav. 490. 4. No Employee or Officer Interested.-That no member or delegate .., nor any person acting for or employed by the Department of Public Works of the City, [State, or United States,] nor any person appointed by virtue of any city ordinance, [legislative act, or act of Congress] relative to the work, is directly or indirectly interested in this proposal or in the supplies or works to which it relates, or in any portion of the profits thereof contrary to the ordinance or laws of the City, [State, or United States....]. 5. Bidder is the only Person Interested. That I [We, the..... Company,] am [are, is] the only party[ies] interested in this proposal or in the contract proposed to be taken; that it is made without any connection with any other person or persons making any proposal for the same work, and that it is in all respect fair and without collusion or fraud. 5'. Bidder alone Interested.─And I [We, or the.........Company] of... . . . . . . City, ... ..... County, ....State, do further declare that I [We or It] am [are or is] the only person[s], party or parties interested in this proposal, and that no other person than the person herein named has any interest in this proposal or in the contract proposed to be taken. 6. Ordinance, Charter, or Act Examined.-That I [We] have examined and am [are] familiar with the Ordinances...., [Acts of Legislature, Act of Congress, or Charter of the City or Company,] mentioned in the Advertisement and Instruction to Bidders, annexed, and relating to the work in question, and will undertake to conform to such laws, ordinances, and charter. 7. Locality Examined and Quantities Estimated.-That I [We], with our Engineer, have personally examined the location of the proposed work, and have satisfied myself [ourselves] as to the amount and characof the work and materials necessary to complete the work according to the annexed plans, specifications, and contract. 8. Terms and Prices.-That I, [We] the undersigned, further declare that I [We] have carefully examined the annexed form of contract, prepared by........, and that I [We] will contract to provide all necessary machinery, tools, apparatus, and other means for the construction and do all the work called for by the said contract and specifications and furnish all materials called for in the bill of quantities, contract, and specifications in the manner therein prescribed and according to the requirements of the Engineer, as therein provided, upon the following terms and for the following sums [prices], to wit: Item (a). . $. Item (b). .... ... . Item (c).. ...... 8'. That I [We] [the said Company], undersigned, do hereby offer to perform the whole of the work and furnish all materials, labor, watchmen, implements, tools, and machinery of every description necessary for the perfect construction and completion of the work contemplated in the annexed specifications, in accordance with the plans, specifications, contract, etc., which have been examined by me [us] at the office of the Engineer, and to conform to all the conditions appended hereto at and for the prices given in the attached schedule. 188 ENGINEERING AND ARCHITECTURAL JURISPRUDENCE. [§ 185. 9. Special Terms and Prices.-For all lumber used for sheeting and For all extra work not included in the above items, by written order For all extra work done and extra materials furnished by written. For all earth excavation of extra depth below grade, made by written ...... •per cubic 10. Prices Include Everything.-The above prices are to include the cost of doing all other work required by the contract and specifications or appertaining thereto. 10'. What Prices Include.-The prices named are to include [cover] any and all work and materials that may be necessary to connect the work done with the adjoining work in a proper and workmanlike man |