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that is then due or that may thereafter become due to the Contractor on account or by virtue of his con*tract, and no payment shall be made until such material, work or workmanship has been removed and proper
materials and workmanship substituted therefor. 36. Unnoticed Defects.
(a) The aim and intent of the contract is that the Contractor shall furnish the Owner with a structure conforming in every detail with the design. The Engineer's final certificate should state that such a structure has been furnished. His progress certificates should not, as a rule, imply the absolute acceptance of any part. In other words, the structure is not formally turned over by the Contractor to the Owner as completed until the date of the final certificate of the Engineer. (See Art. 58.)
(6) In order to make this point (which is commonly understood) doubly clear it is customary to write in the specifications that the failure of the Engineer to condemn unsatisfactory work at any point shall not relieve the Contractor of his obligation to furnish work and material in accordance with the specifications, and that any defects, previously unnoticed, shall be corrected by the Contractor whenever, previous to the issuance of the final certificate, they shall be called to his attention by the Engineer.
(c) Certain specifications go further than this in reference to defects whose existence is only suspected, on account of their having been covered by subsequent work, stipulating that if, in such instance, the defect is found to exist, the expense of investigation shall be borne by the Contractor, otherwise by the Owner. (A) Material that does not conform to the specifications
accepted through oversight may be rejected at any
stage of the work. (B) Any defective work or material that may be discovered
by the Engineer before the final acceptance of the work or before final payment has been made shall be removed
and replaced by work and material which shall conform to the spirit of the specifications; failure or neglect on the part of the Engineer to condemn or reject bad or inferior work or materials shall not be con
strued to imply acceptance of such work or materials. (C) Whenever required by the Engineer the Contractor
shall furnish all tools, labor and materials necessary to make an examination of any work completed or in progress under these specifications. Should such work be found defective, the cost of making such examination and of satisfactory reconstruction shall be borne by the Contractor; should the work be found to be satisfactory the cost to the Contractor of the examination will be paid by
(the Owner) 37. Reception of Engineer's Directions. — It is not to be expected that the Contractor will be constantly present on the work. Contracts have been satisfactorily completed in which the Contractor was absent practically throughout. During his absence however there should always be on the work some person authorized by him to receive and execute the directions of the Engineer. (A) Whenever the Contractor is not present on any part
of the work where it may be desired to give directions, orders shall be given by the Engineer, and shall be received and obeyed by the superintendent or foreman who may have charge of the particular work in refer
ence to which the orders are given. (B) The Contractor shall give his personal supervision to
the faithful prosecution of the work and in case of his absence he shall have a competent representative or foreman on the work who shall follow without delay all instructions of the Engineer or his assistants in the prosecution and completion of the work and every part thereof, in conformity with this contract, and who shall have full authority to supply men, material and labor immediately.
The Contractor and His Workmen
The Contractor's obligations in respect to his workmen are outlined in the General Clauses in this Chapter.
38. Sanitary Provisions. - If the work is located in close
. proximity to dwellings the Contractor should be obliged, in order to avoid a public nuisance, to erect for his men closets connected with a sewer, where practicable, and to enforce their
Within the limits of the watershed of a stream or reservoir whose water is used for drinking purposes, stringent regulation of sanitary matters is not infrequently necessary, which may involve much expense on the part of the Contractor.* (A) Necessary conveniences, properly secluded from public
observation, shall be constructed where needed for the use of laborers on the work, and the use of such conveniences shall be strictly enforced. Such conveniences shall be located, constructed and maintained subject to the approval of the Engineer, and the collections therein shall be removed at such times and to such places as he shall direct. The Contractor shall obey and enforce such sanitary regulations as
may be prescribed by the Board of Health. 39. Sale of Intoxicants. -- It is becoming increasingly common to prohibit the sale or use of intoxicants along the line of the work. There can be no doubt that the enforcement of such a provision operates to the advantage of everyone concerned. (A) The Contractor shall neither permit nor suffer the in
troduction or use of spirituous liquors upon or about * The Catskill Aqueduct contracts may be cited as requiring a maximum of attention to these matters.
the works embraced in this contract or upon any
grounds occupied by him. 40. Discharge of Employees. — It is often necessary that the Engineer give directions to some employee of the Contractor. Situations have arisen in which the employee refused to follow such directions or persisted in attempting portions of the work which he could not properly execute, or made himself generally objectionable. To properly deal with such cases it is common practice to insert a clause giving the Engineer the right (which need seldom be exercised) to require the discharge of employees of the Contractor either for incompetence or for disorderly conduct.* (A) If any person employed by the Contractor on the
work shall appear to the Engineer to be incompetent or to act in a disorderly or improper manner, such person shall be removed from the work immediately on the requisition of the Engineer, and shall not be employed on the work again except on written consent
of the Engineer. (B) The Contractor shall employ only competent, skilful
men to do the work, and whenever the Engineer shall notify the Contractor in writing that, in his opinion, any man on the work is incompetent, impertinent, disobedient, unfaithful, disorderly or otherwise unsatis
factory, such man shall be discharged from the work * The following clause is an extraordinary one, and should not be accepted as standard. (There are no italics in the original.)
No disorderly or incompetent person shall be employed by the Contractor upon this work, and the Engineer shall have the right to require the dismissal of such person. Should the Contractor use insulting or abusive language or be guilty of improper conduct to any employee of the Board the General Superintendent shall have the right to notify said Contractor to remain away from the work or any part thereof, and should any Contractor guilty of such action refuse to comply with such notice then the General Superintendent will have the right to close down all work upon said contract until a satisfactory apology and assurance of proper action is given. . . . In the event of the exclusion of the Contractor from his work, he shall appoint a competent person or persons to represent him. Any employee of the Board who uses abusive or insulting language to the Contractor, when such action is shown to the General Superintendent, will be removed from the work.”
and shall not again be employed on it except with the
consent of the Engineer. 41. Legal Restrictions. — A Contractor engaged on public work is likely to be subjected, by reason of national, state * or local statutes, to certain further restrictions regarding his relations to his employees, which would not affect him in his work for private individuals. Public work is generally more expensive than private work for this reason.
It is customary, and in some states required, to insert in all public work specifications or contracts not only a reference to the law, but a substantial quotation from its provisions, and to emphasize the importance of the Contractor's responsibility in the matter.
Labor laws cover in general the following three points in addition to many other provisions having no relation to contract work) :
(a) Citizenship of employees, — forbidding the employment (on public work) of convicts, of aliens, or of any workmen except such as are legal residents or perhaps voters of the state or town. A few states and many towns and cities have such a law or ordinance.
(6) Hours of employment, — restricting these to a certain maximum per day or week. Over half the states and the United States government have enacted laws covering this point. (c) Wages,
not fixing a minimum wage, but in many states providing that the wages shall “not be less than the prevailing rate in the locality for similar services." The frequency of payment is in many cases stipulated, and some laws contain a prohibition against "store pay," and against the Contractor's dictating to his men concerning where they shall board or lodge.
* The laws of the state in which the work is being done, not of the state in which the contract is signed. The student would do well to inform himself regarding labor laws affecting public work in his own state. Various publications of the United States Bureau of Labor give concise summaries of labor legislation throughout the country. Particularly valuable are the Twenty Second Annual Report and Bulletins Numbers 85, 91 and 97.