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(c) On a very few important pieces of construction work provision has been made for a Board of Arbitration, to which board either Contractor or Owner might appeal if dissatisfied with certain of the decisions of the Engineer which were based on his judgment or opinion. This Board in most cases has consisted of three persons, one selected by each party to the contract and the third by the other two.* Since such boards are expensive, and more often than not reduce themselves, in effect, to this third man, some few contracts have been so drawn as to provide instead for appeal to a single Arbitrator, generally an Engineer of recognized standing and probity.
(d) It must be remembered, however, that a contract agreement to abide by the judgment or decision of a Board of Arbitration, or of a single Arbitrator, is no more binding on either party to the contract than is a similar agreement to abide by the judgment or decision of the Engineer. In other words, nothing of the sort could restrain either the Contractor or the Owner from taking the matter to the courts if he felt he had a grievance.
But, should either Contractor or Owner seek to have a decision of the Engineer (or of a Board of Arbitration) overruled by the courts, it would be incumbent on him to prove that the decision in question was arrived at as the result of gross incompetence, dishonesty, bias or unfairness. It is therefore comparatively seldom that such matters find their way to the courts. The clause should preferably read “To prevent all disputes," rather than “In case of dispute.”
The student should comment on the following clauses:
(i) From sewer specifications. “The Engineer in charge shall generally interpret the specifications and detail plans of the work, but should any
* In a uniform building contract recently (1911) adopted by several organizations of Chicago engineers and architects, provision is made for naming the third arbitrator in the contract.
It is very seldom, even where a Board of Arbitration is provided for in the specifications, that any matters are actually referred to it for settlement. The arbitration principle has been much more fully developed in England than in the United States.
question arise as to the true meaning, the decision of the Sewer Committee shall be binding and conclusive.”
(ii) From dry-dock specifications. “The United States by its Civil Engineer in charge of the work or his authorized representative, shall at all times have full control and direction of all work under the contract."
(iii) “To prevent all suits and litigations it is further agreed by and between the parties to this contract that the Engineer shall in all cases determine the amounts of work done which are to be paid for under this contract; that he shall be the sole judge of the manner of construction, of the quality of the materials and of the interpretation of the specifications; that he shall decide all questions which may arise relative to the carrying out of this contract; and that his estimate of figures, measurements, directions and decisions shall be final and conclusive, neither party to this contract having recourse to the courts or to the opinion of other experts."
(iv) “The Engineer shall have entire charge of all forces employed under this contract, and shall direct their work and disposition, and shall order such forces increased or diminished as he shall deem expedient.”
(A) All the work done under this contract shall be done to
the satisfaction of the Engineer, who shall in all cases determine the amount, quality, acceptability and fitness of the several amounts of work and materials which are to be paid for hereunder, and shall decide all questions which may arise as to the measurement of quantities and the fulfillment of this contract on the part of the Contractor, and shall determine all questions respecting the true construction or meaning of the plans and specifications, and his determination and decision thereon shall be final and conclusive; and such determination and decision, in case any question shall arise, shall be a condition precedent to the right of
the Contractor to receive any money hereunder. (B) To prevent disputes and litigation the Engineer shall
in all cases determine all questions which may arise as to the quality, character or quantity of the work and materials to be paid for under this contract, or as to the obligation of the Contractor to do any particular work or to furnish any particular materials, or as to the reasonable value of any additional work or materials
required by the Engineer, or as to the deduction to be made from the contract price for the construction of the ...
by reason of any work or materials directed by the Engineer to be omitted, or as to the price to be paid for any duly authorized and ordered extra work, and any and all disputes, questions or doubts of whatever nature relative to the contract or to the obligations of the Contractor hereunder. His determination shall be final and binding on the Contractor and (the Owner)
except as hereinafter provided; and the Contractor shall in all cases where an appeal from the decision of the Engineer is provided and allowed herein, proceed or refrain from proceeding as the case may be, and without any delay obey the requirements of the Engineer pending such appeal. In case any question shall arise between the Contractor and
touching the contract, the estimate and decision of the Engineer shall be a condition precedent to the right of the Contractor to receive any moneys under the contract. A determination or decision of the Engineer shall not be finally conclusive however upon either the Contractor or
as to the reasonable value of work or materials additionally required as aforesaid, or omitted as aforesaid, or as to the price to be paid for any duly authorized extra work or as to the obligation of the Contractor to furnish or do, as part of this contract, any particular material or work required by the Engineer, or as to the question whether
is entitled to a deduction from the amount payable to the Contractor on account of any reduction in the amount of work to be done which may be ordered by the Engineer as herein provided, or as to the amount of such deduction. In every such
(then follows an outline of the procedure necessary in case either Owner or Contractor wishes to appeal from the decision of the Engineer to
that of a Board of Arbitration). 34. Inspector. — The author believes that the less said in the specifications as to the powers and duties of the inspector the better; that he should be mentioned, if at all, merely as a representative (or agent) of the Engineer; and that whatever power he has to accept or reject should be regarded simply as having been delegated to him by the Engineer. Many specifications state, for the Contractor's benefit, that one or more inspectors will be appointed. This seems unnecessary, except perhaps where he is to inspect the manufacture of material.* It is not infrequently provided that no work shall be done in the inspector's absence.
Has the Engineer power to accept what the inspector has rejected, or vice versa? If he has this power should he use it and, if so, when ? (A) An inspector employed by (the Owner)
may be stationed by the Engineer on the work under contract to report whenever the Contractor appears to fail in carrying out the terms of the contract or specifications in any particular. Any advice which an inspector may give the Contractor shall in no wise be construed as binding the Engineer in any way or releasing the Contractor from the proper fulfillment of the terms of the contract as determined by the Engineer. An inspector shall perform such other duties as the Engineer may indicate, but no inspector shall in any case act as foreman for the Contractor or interfere
with the management of the work by the Contractor. (B) All material furnished under this contract will be
subject to rigid inspection. The Contractor shall furnish free of cost the necessary test pieces and com
plete facilities including the necessary labor for the in* Certain specifications as those for important steel structures, for wooden block pavements, etc., - contain provision for inspection of material at its place of manufacture.
spection and testing of all material and workmanship. The Engineer shall at all times have full access to all parts of the shop where material under his inspection is being manufactured. Inspection of the work done shall not relieve the Contractor of his obligation to furnish proper material and perform sound and reliable
work. 35. Rejected Material. – Material which is unsatisfactory and not conforming to the specifications is rejected, and it should be made the duty of the Contractor to remove the rejected material from the work immediately. It is only proper that this material should be branded, — if possible in such way as to make its identification easy in case the Contractor should attempt to smuggle it back. The rejected material still belongs, however, to the Contractor, and its usefulness to him for other purposes should not be impaired.
When is material accepted when it is delivered on the work or not until it is built in? When does it cease to be the property of the Contractor? (A) Any materials condemned or rejected by the Engineer
as not conforming to these specifications may be branded or otherwise marked, and shall, on demand, be at once removed by the Contractor to a satisfactory
distance from the work. (B) If any materials used in the work, or brought upon
the ground, or selected for use in the work, shall be condemned by the Engineer on account of bad or improper workmanship, or as being unsuitable or not in conformity with the specifications, the Contractor shall forthwith remove from the work and its vicinity, without delay, all such rejected or condemned material of whatever kind, and upon his failure to do so within forty-eight (48) hours after having been so directed by the Engineer, the condemned material may be removed by
(the Owner) and the cost of said removal deducted from any money