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(C) These specifications and the accompanying plans are in
tended to require and include all work and material necessary and proper for the work contemplated. In case by inadvertence or otherwise, the plans or specifications omit to require some work or material necessary for that purpose, the Contractor shall, nevertheless, be required to provide the same so that the work may be complete according to the true intent and purpose of
the plans and specifications. 31. Verification of Data. In how far should the Contractor be expected to accept the responsibility for data furnished him by the Engineer?
To illustrate: Plans for a pile and timber dock show hard bottom underlying eight feet of mud. The Contractor bases his bid on this information, but finds as construction progresses that the supposed hard bottom is only a thin layer of gravel. Can he be held to complete the dock at a greater expense to himself than was originally contemplated ?
One of two courses is open to the Engineer in preparing specifications for work involving uncertain preliminary data:
(a) To throw the responsibility of verification on the Contractor. In the above illustration it might have been easy for the Contractor to make the necessary preliminary investigation, and he would have been the more likely to do it if the Engineer had so worded the statement in the plan or specifications as to make it appear that he was stating, not a fact, but what appeared to him to be a fact.
(6) To assume the responsibility for data furnished. There are instances where the compilation of the data given on the plans represents weeks and months of patient investigation on the part of a large engineering force. For the Engineer under these circumstances to disclaim responsibility and expect the Contractor to verify all data furnished him is certainly unreasonable. Mr. John C. Wait (Eng. News, 1905, vol. 53, p. 595) quotes and commends a rather unique specification clause in which it is stated that the Engineer had investigated the strata and knew the situation to be as represented, but that if it should prove otherwise the Owner would make good the Contractor's loss. Failure to mention this responsibility has many times resulted in situations like the following (although court decisions vary somewhat):
United States Government engineers prepared plans and specifications for dredging a river in New England, stating in the specifications that the material to be moved consisted largely of sandy mud mixed with a little gravel. As the work progressed the Contractor found the supposed sand and gravel to be instead a stiff clay. He abandoned the work after a time, and was awarded damages by the Court of Claims.* (See Art. 43 for other illustrations.)
(A) The material to be removed is believed to be ...
but bidders are expected to examine the work and to decide for themselves as to its character and to make their bids accordingly, as ........ (the Owner). .
does not guarantee the accuracy of the description. (B) It is understood and agreed that the quantities given
in these specifications are approximate only, and that no claim shall be made against
(the Owner) on account of any excess or deficiency, absolute or relative, in the same. No allowance will be made for the failure of a bidder or of the Contractor to estimate correctly the difficulties attending the execu
tion of the work. (C) The Contractor agrees that he has satisfied himself
by his own investigation and research regarding all the conditions affecting the work to be done and labor and material needed, and that his conclusion to execute this contract is based on such investigation and research, and not on the estimate of the quantities or other information prepared by the Engineer, and that he will make no claim against
(the Owner) because any of the estimates, tests or representations of any kind affecting the work made by any * What is the Court of Claims, and why has it a peculiar interest to engineers and contractors?
may prove to be in any respect erroneous. (D) The quantities of work to be done and the materials
to be furnished under this contract are estimated, as herein stated, approximately only, and
is not to be held responsible for the data or information relative to the Engineer's Estimate of Quantities. The Contractor has judged for himself as to such quantities and each of them, and as to other circumstances affecting the costs of the performance of this contract, and as to the accuracy of this estimate, and he will not at any time assert that there was any misunderstanding in regard to the depth of the excavations to be made, or the nature, kind or amount of materials to be furnished for the work to be done. And he will not ask, demand, sue for, or seek to recover, for materials furnished or work done under this contract, any compensation beyond the amounts payable for the different classes of work herein enumerated, which shall be actually performed at the prices therefor,
herein agreed upon and fixed. 32. Copies Kept on Work. — This is largely a clause of convenience to the Engineer, but is designed also to induce care on the part of the Contractor. (A) Copies of the plans and specifications shall at all times
be kept on file by the Contractor at readily accessible points along the line of the work.
The Engineer During Construction
The subject matter of the General Clauses considered in this Chapter relates to the Engineer's decisions, his authority, and to superintendence or inspection in general.
33. Decision of the Engineer.
(a) On construction work, after the contract has been signed, the principal duties of the Engineer (many of these of course delegated by him to proper subordinates) are:
(i) To lay the work out, fixing necessary lines, elevations, etc.
(ii) To make such measurements as will determine payments to the Contractor.
(iii) To interpret the plans and specifications, in case of any real or seeming ambiguity.
(iv) To see that the materials and workmanship furnished by the Contractor are in conformity with the design.
Superintendence on the part of the Engineer must have been rather lax among the ancient Romans, if we are to judge from the following correspondence dating from the year 152 A.D. (Mauretania and Numidia were neighboring Roman colonies in Northern Africa.)
“Varius Clemens, Governor of Mauretania, to Valerius Etruscus, Governor of Numidia:
Varius Clemens greets Valerius Etruscus, and begs him in his own name and in the name of the township of Saldæ, to dispatch at once the hydraulic Engineer of the third legion, Nonius Datus, with orders to finish the work, which he seems to have forgotten.”
“Report of Nonius Datus to the Magistrates of Salde:
After leaving my quarters I met with brigands on my way, who robbed me of even my clothes, and wounded me severely. I succeeded, after the encounter, in reaching Saldæ, where I was met by the governor, who,
after allowing me some rest, took me to the tunnel. There I found everybody sad and despondent; they had given up all hopes that the two opposite sections of the tunnel would meet, because each section had already been excavated beyond the middle of the mountain, and the junction had not yet been effected. As always happens in these cases, the fault was attributed to the Engineer, as though he had not taken all the precautions to insure the success of the work. What could I have done better? I began by surveying and taking the levels of the mountain; I marked most carefully the axis of the tunnel across the ridge; I drew plans and sections of the whole work, which plans I handed over to Petronius Celer, the governor of Mauretania; and to take extra precaution, I summoned the Contractor and his workmen, and began the excavation in their presence, with the help of two gangs of experienced veterans; namely, a detachment of marine infantry and a detachment of Alpine troops. What more could I have done? Well, during the four years I was absent at Lambaese, expecting every day to hear the good tidings of the arrival of the water at Saldæ, the Contractor and his assistant had committed blunder upon blunder; in each section of the tunnel they had diverged from the straight line, each toward his right, and had I waited a little longer before coming, Saldæ would have possessed two tunnels instead of one.”. For the outcome of the case the student is referred to Lanciani, “Ancient Rome," p. 61; or his “Frontino," p. 544; or “C.I.L.,” viii., 2728; or to Herschel, “Frontinus and the Water Supply of the City of Rome,” p. 179.
(6) The clause referring to the decision of the Engineer is one of the vital clauses in the specifications. While it is customary so to word the specifications as either tacitly or expressly to put all four of the above matters entirely in the hands of the Engineer, the fact should be recognized that it is easily possible to draft a clause giving the Engineer so much power or authority that, if the terms of the contract were to be literally enforced, the Contractor would become simply an agent of the Owner. This situation is particularly to be avoided. Under the first head (laying out), so far as concerns simply questions of fact, it is unlikely that any serious or long continued dispute could arise. The question of payments (discussed in Chapter XI) is somewhat complicated at times with questions of extra work and of classification of material. The latter two points (interpretation and supervision) also involve many matters concerning which opinions might differ.