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28. Definitions. - The defining consists not in giving accepted or dictionary definitions but in limiting the meanings of words or phrases which are to be used throughout the specifications. Two purposes are thereby served: First, minimizing the possibility of misunderstanding or argument.
Second, saving space in the specifications.
(a) Contractor. The necessity for limiting the meaning of this word arises from the fact that two or more Contractors are frequently engaged in work covered by the same contract. In directing the work the Engineer may, and frequently does, give informal instructions to any Contractor who may be engaged in constructing the particular portion of the work in question. Formal directions, in writing, should be addressed however only to the Contractor who has signed the original contract with the Owner. The purpose of this limitation is to avoid any attempted shifting of responsibility, and its attendant confusion.
The clause should be so framed as to recognize the fact that the Contractor may by “Power of Attorney” papers delegate to any person the authority to act as his agent in many capacities. See references under “Agency” in books on Contract Law.
Suppose the Contractor dies before his contract is completed, to whom thereafter does the word Contractor refer? What is power of attorney?
(6) Owner. This clause would hardly be necessary if the Owner were an individual. But where the work is being done for a city, for example, and the word city is used frequently in the specifications, it may be well (since it is obviously impossible that the work shall be done to the expressed satisfaction of more than a small fraction of the inhabitants) to state at this point just which officers of the city the word is intended to include.
Suppose that, while a municipal contract is in progress, the entire Board of Aldermen (or whatever board has in charge the matter of public works contracts) is replaced by others elected to fill their places, or is even legislated out of existence by a revision of the charter. To whom is the Contractor then bound by the terms of his contract? Discuss the case of the death of the Owner (an individual).
(c) Engineer. To avoid misunderstanding on the part of anyone concerned it is advisable to state at this point just who is meant by the frequently recurring term “Engineer.” Does it mean the Resident Engineer or one of his assistants, or the Division Engineer, or the Chief Engineer, or the Consulting Engineer? The reference is generally to the one highest in authority, who deals directly with the Owner. He (the Engineer), as well as the Contractor, commonly delegates portions of his authority to his subordinates, thereby making himself liable in that degree for their rulings.
(d) Other terms. Specifications for some classes of work make frequent use of certain expressions the precise meaning of which could constitute a subject for argument or misunderstanding. Such might include various units, as “ton," "day," "cubic yard," "earth,” “rock” (see Art. 62); also such expressions as “clearing," "grubbing,” etc.; also such abbreviations as “acceptable," "directed,” “required” and the like. (See Art. 26.) (A) Whenever the following words and expressions, or
pronouns used in their stead, occur in these specifica
tions, they shall have the meanings here given: The word “Contractor" shall mean the party or parties
entering into the contract for the performance of the work covered by these specifications, and his or their
authorized agents or legal representatives. The word “City” shall mean the corporation of the City of..
The words “Commission” shall mean the
Commission of the City of .. and any other board, body, official or officials to which or to whom the powers belonging to the said Commission shall, by virtue of any act or acts, hereafter pass or be
held to appertain. The word “Engineer” shall mean the person holding the position or acting in the capacity of Chief Engineer of
...... Commission, acting either directly or through his properly authorized agents, such agents acting within the scope of the particular duties entrusted to them.
Whenever in the specifications the words “as directed,”
“as required,” “as permitted,” or words of like effect are used, it shall be understood that the direction, requirement, or permission of the Engineer is intended; similarly the words "approved," "acceptable," "satisfactory," or words of like import shall mean approved by, or acceptable or satisfactory to, 'the
Engineer. 29. Alterations. This question is a large and important one, at least theoretically. By strict interpretation of the law the making of any important alteration in design after the signing of the contract vitiates the agreement and releases both parties to the contract, together with the bondsmen.
A contract for building a road of crushed limestone, for example, is not a contract for building one of crushed trap rock.
In practice this would almost never be insisted on. The Engineer should, however, consult the Owner's legal adviser before suggesting alterations in the design, and should be cautious about making any alterations except minor ones which are unquestionably betterments. The substance of such a clause should include three points:
(a) Giving the Engineer the authority to make such reasonable changes in plan or specifications as he shall see fit.
(6) Providing a method of adjusting the difference, if any, in cost. (Precluding any allowance, in case of a change involving decreased cost, for anticipated profits not realized.)
(c) Stipulating that changes shall not affect the contract, or bond. (See Arts. 7, 11.)
It should be remembered that written matter in an agreement prevails over printed matter; why? also that written matter of any importance should be signed, and dated.
(A) This contract, and the specifications herein contained,
and the plans herein referred to, may be modified and changed from time to time as may be agreed in writing
between the parties hereto, in a manner not materially
done and performed.
changes in the plans and specifications as may from
ance will be made for anticipated profits. 30. Inconsistencies and Omissions.
(a) Many cases involving inconsistencies between plans and specifications have found their way to the courts. A recognized axiom of law covering similar situations is that the Court shall ascertain, if possible, the “intention of the parties” to the contract, and that this shall prevail.
(6) Referring to Art. 9 it is seen that the purpose of the specific clauses in the specifications is to supplement the plan. It cannot be expected, therefore, that all of the features of the design shall be described in both places. In order that there may be no doubt or room for dispute on this point it is always stated in the specifications,
(i) that the plans and specifications are to be interpreted as mutually explanatory or supplementary, and that therefore any feature shown on one and not on the other shall have the same force and effect as if shown on both. It is generally added,
(ii) that anything necessary to the proper completion of the work, even though neither shown on plans nor mentioned in the specifications, shall be done by the Contractor without
extra charge. This would apply merely to something essentially and vitally necessary and unmistakably implied.
For example, the digging of a trench in which to lay a sewer pipe five feet underground might be necessarily implied in the agreement to lay the pipe; but the constructing of an artificial foundation under the pipe (in case the subsoil were found to be soft) would not. Similarly the use of forms would be implied in many varieties of concrete construction, while the use of any type of reinforcement or the dressing of the surface after the forms had been removed would not be.
The question of guaranteeing the "sufficiency of the plans"* is of interest here. To illustrate: A contractor builds a stone arch bridge, which falls as soon as the centers are removed. Inspection has been adequate and the Engineer has made no complaint that the Contractor was not performing his work faithfully. Who is responsible?* As a rule the Contractor would be obliged, in order to escape responsibility, to prove that his work had been faultless. Court decisions on the question have been somewhat conflicting. The student may investigate this feature of the failure of the Quebec Bridge (Aug. 29, 1907.)
Would a firm which built pumping engines furnish a pump constructed in accordance with minute detailed plans furnished by an Engineer and guarantee it to deliver a definite amount of water per day? Discuss the case of a steel company erecting a bridge and guaranteeing the load it will carry. (A) It is hereby agreed that these specifications and the
accompanying plans are intended to coöperate, so that any matter or thing shown by one and not by the other shall be of the same effect as if contained in or shown by both and shall be performed by the Con
tractor without extra charge. (B) The plans and specifications are intended to be ex
planatory of each other, but should any discrepancy appear or any misunderstanding arise as to the import of anything contained in either, the explanation of the Engineer shall be final and binding on the Contractor, and all directions and explanations required, alluded to, or necessary to complete any of the provisions of such specifications and give them due effect, will be given by the Engineer.
* See “Code of Khammurabi" (Art. 42).