ner, and in accordance with the plans, sections, and profiles prepared by the Engineer, and according to the terms of the contract and specifications attached, and the rules and regulations of the city, and under the direction and to the satisfaction of the Engineer, at the following rates, to wit: 10. Prices Include Everything.-The prices are to cover all expenses of every kind involved in, or incidental to, the completion of the contract, including any claims that may arise through delay from any cause in the performance of the work thereunder. 11. Delivery. The prices are also to include the delivery of all materials on the wharf, or at the works, or at the structure, etc., on the.....street, river, way, of the city of.... 12. Samples Submitted. The bidder pursuant to the [annexed] instructions to bidders has prepared and herewith submits the following samples of materials and workmanship, the equal of which he will undertake to furnish throughout the execution of the work according to the contract and specifications. The samples are marked as follows: Sample 302 C.-Rock-faced Gray Limestone, 16" x 20" x 36". Sample 12 B.-Test Specimen, Basic Open-hearth Steel; Tensile Strength......lbs; Reduction Area......per cent; Elongation. ins. in.. .... inches. Etc..... etc...... etc. 13. Commencement of Work.-I [We, the said........Company], undersigned, will commence the work within ten days of the execution of the contract, and will prosecute the work to completion within the limit of time hereinafter named, in accordance with the requirements and provisions of the contract. -- 14. Time to Complete. — I [We, the..... .Company] will require working days from the date of commencement to complete the whole of the work. 15. Liquidated Damages.-I [We, the........Company] will pay the sum of........dollars, liquidated damages, for each and every day that the contract is unfulfilled after the time mentioned for com pletion in the contract, the....day of........, 189.. 16. To Keep in Repair.-I [We, the. Company] undersigned, also agree to maintain in complete repair the whole of the works undertaken in this contract, and all roads, ways, streets, etc., interfered with or required to be rebuilt in the construction of the works, for a period of twelve months after the complete performance of this contract. 17. Limit of Awards.-Notwithstanding I [We, the ....... Company] have proposed for several sections of the work advertised, it is my [our] wish that the total work awarded to me [us] shall be limited to........dollars, and to be not less than........ dollars. 18. Certified Check.-Accompanying this proposal is a certified check [accepted bank cheque] for the sum of........ dollars [$ ], as called for in the advertisement, instructions, or notice to bidders; and it is hereby agreed and understood that in case of refusal or failure to execute the contract and furnish the bond hereto annexed with the..... City [Company or State], within ten days after the acceptance of this proposal, the said check shall be forfeited to the said ....... City [Company or State] as liquidated damages for such failure, and that all contract rights acquired by the acceptance of this proposal shall be forfeited, and all obligations assumed by the parties in connection there with shall be released and mutually rescinded; that if this proposal be rejected or the contract awarded to another party the certified check shall be returned to the undersigned within three days after such rejection. 18'. Certified Check.-Accompanying this proposal is a certified check for........ dollars [ ], which shall become the property of the City [Company or State] of ........, if in case this proposal is ac cepted by the said City [Company or State], or its authorized officers. the undersigned shall fail or refuse to execute the contract and furnish a bond, according to the requirements of the instructions to bidders, hereto appended, within the time provided by said notice; otherwise. the said check shall be returned to the undersigned within three days after the date set for opening the bids. 19. Sureties Offered. In case this proposal is accepted by the...... of ... of.. tion of the contract. .Messrs. ..and .resident resident are offered as sureties for the faithful execu 19'. Consent to Become Surety.-If this proposal be accepted and the contract awarded to me [us] [the......Company] I [we, the......Company] hereby agree to furnish approved sureties for the construction of the said works and to execute the contract and bond therefor in the form attached, and according to the general conditions forming a part thereof, within... days after being notified so to do by the engineer; and in the event of default or failure on my [our] part in any particular or, for any cause whatever, the said................ shall be at liberty to accept the next lowest bid or any bid, or he [it] may readvertise for proposals, and I [we] hereby agree to pay to the said........the difference between the above proposal and any greater sum which they [it] may be obliged to pay by reason of such default or failure, including the cost of any advertisement for new bids, and to pay the attorney of the said.. ....the cost of the preparation of such contract and bond, which is hereby fixed at ten dollars; and to indemnify and save harmless the said corporation and officers from loss and damage, cost, charges, and expense, with which they may suffer or be put to by reason of any such default or failure. We, the undersigned, do hereby offer [consent] to become bound for the above-named..... ....in the annexed Bond for the fulfillment of any contract for any of the works named in the annexed specifications which may be awarded to.. at the prices herein above set forth. Signature of Sureties. 20. Signatures, Addresses, and Date.-Signature of Person, Firm, or Corporation making proposal: Post Office Address. ..Dated.... The full names and residences of all persons interested in this pro posal [as principals] are as follows: [NOTICE.-Give Christian names as well as surnames, and, in case of corporations, sign name of President, Treasurer, and Manager. The names of bidders will be made public; but the names of all parties interested with them, being required for the information and guidance of the Board only, will not be made public.] being duly sworn, say that the several declarations and matters stated in this proposal are in all respects true. [Signed]. Residence... Subscribed and sworn to before me, this. day of........A.D. 189.., at.... N. P. or J. P. [NOTICE. This affidavit must be made by the person or persons bidding for the contract; in case of a firm, by each and every member of the firm.] 22. Bond for Execution of Contract.Know all Men by these Presents, That we firmly bound unto the City of are held and [State or Company] in the sum of...... .dollars, lawful money of the United States of America, to be paid to the said The City of. [State or Company], its successors and assigns, as liquidated damages, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated the.. ...day of.... in the year one thousand eight hundred and ninety.. Whereas, the said.... ... ha...... made a proposal to the City of .[State or. Company],........ bearing date the......day of........one thousand eight hundred and ninety. and annexed hereto : Now the condition of this obligation is such that if the said. shall, within ten days after the acceptance of the said proposal, well and truly execute the contract in accordance with said proposal, then this obligation shall be of no effect; otherwise it shall remain in full force and virtue. Signed and sealed in} presence of (Seal.) CHAPTER VII. BIDS AND BIDDERS. WORK FOR PRIVATE PARTIES. 186. Lowest Bidder on Private Work. Owner may Adopt such Formalities and Make such Requirements as he Pleases.-Advertisement and proposal for private work are less formal and ceremonious than for public work, but many of the instructions, conditions, and stipulations given hereinbefore, with slight modifications, will do for private work if an owner desires to have public competition. It is more usual for a private owner, and even companies, to invite by letter such contractors and builders as they desire to entertain proposals from, to make bids. The expense of printing blank forms of proposals, specifications, and contracts is then saved, the engineer or architect keeping on file at his office, and open for the inspection of the bidders, the specifications and plans and general contract form to be used, with his estimate of the quantities. Sometimes three or four sun-print copies are made to enable more bidders to estimate or to give a few bidders more time to make their estimates. The forms presented heretofore for public work are so elaborate and complete that the author deems it hardly necessary to submit a new set of forms for private work, but recommends that the clauses of the public form be used in so far as the owner and architect consider it pertinent and desirable, such modifications being made as seem necessary to make it conform to private needs and ends. The important questions that arise in advertising for public work and the award of the contract, and all questions as to what the owner or proprietor may or may not require, what he may include, whether or no he secures competition, and to whom or how he awards the contract do not arise in private work, except as they have been made matters of agreement between the owner and the bidders.' The owner can adopt his own methods in soliciting, receiving, and accepting proposals; can make whatever rules, conditions, and restrictions he sees fit; can make any amount of work and trouble for the contractors who in good faith go to the expense of preparing estimates, plans, and specifications; and may then award them or not, as he pleases, and to whom he pleases. The owner may, it seems, appropriate and make use of the fruits of their labors with 1 English cases in Emden's Law of Building, etc., p. 59, note. out any thoughts of recompense, without a grain of remorse, and if it be a a church society, without sacrificing a pennyweight of piety. 187. In Absence of Agreement or Pledge, Owner may Exercise his Own Preference. As just stated, the rights of the lowest bidder on private work are confined to those created by agreement. He has no rights except such as have been agreed to by the owner, and if there is no contract expressed or implied, then the lowest bidder has no claims to the contract, and the proprietor is under no obligation to award it to him. In the absence of a pledge or definite understanding between the parties that the lowest bidder shall be employed to do the work, the owner may exercise his own judgment and give personal preference in determining whose offer he shall accept. He is not liable to one whose offer is rejected for the time and labor employed by him in examining the plans and specifications to prepare himself to make his offer.' The owner may inquire into the fitness, skill, integrity, and sobriety of the respective bidders.' To establish any claim against private parties an agreement to award the contract to the lowest bidder must be clearly proven. The agreement need not, it seems, be in writing, and its proof may be largely established by the acts of the parties and by supplemental promises. If there is anything in the invitation for proposals that shows an undertaking to accept the offer of the lowest bidder, then the person inviting the bids may be holden to his agreement, and the testimony of other bidders may be admitted to show the statements made to them by the architect and the owner respecting the terms under which the bids were made." The mere fact that valuable services are rendered does not raise a liability on the part of the person for whom they were executed, even though at his request, if the circumstances are such as to rebut the inference that compensation was expected to be received or paid. In the case of architects. putting in bids for the construction of buildings or of engineers for the construction of bridges or other works, and furnishing plans and specifications therefor, unless the parties calling for bids expressly agree to pay for such plans and estimates, there can be no contract implied, for there is nothing in the circumstances that shows that pay was expected to be received or given, except through the possible benefit to the parties performing the service in acceptance of their bids." 1 Topping v. Swords, 1 E. D. Smith, 609 [1852]; see also Reusch v. Amer. Brewing Co. (La.), 11 So. Rep. 719. Leskie o. Haseltine (Pa. Sup.), 25 Atl. Rep. 886; State v. Bd. of Ed., 42 Ohio St. 374 und see Spencer v. Harding, L. R. 5 C. P. 561. Doyle v. Dusenberg, 74 Mich. 79. 4 McNeil v. Boston Chamber of Commerce (Mass.), 28 N. E. Rep. 245 [1891]. Roscoe's Digest of Building Cases 48; and see Allen . Yaxall, 1 C. & K. 315; and see Reusch v. Amer. Brew. Ass'n, 44 La. Ann. 1111, and supra. Huckstein v, Kelly & Jones (Pa. Sup.), 25 A11. Rep. 747. 7 Wood's Master and Servant (2d ed.) 103; Palmer v. Haverhill, 98 Mass. 487, in which the contractor was the lowest bidder, but all bids were rejected, and t was held he could not recover; Topping v. Swords, 1 E. D. S. (N. Y.) 609; Buck v. Amidon, 41 How. Pr. (N. Y.) 376; Noury v. Lord, 2 Keyes (N. Y.) 617. |