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detailed dimensions of each portion, while the specifications would properly prescribe the proportions and quality of the several materials composing the aggregate, with instructions regarding mixing, laying and finishing the concrete.
(6) Further than this, however, there are certain contingencies to be provided for, some of them only remotely related to actual construction, but all of them bearing on the business and legal dealings of the parties concerned with the construction. These matters are treated in a distinct section of the specifications, in a group of clauses commonly known as the “general clauses,” sometimes as “clauses of general application.”
The general clauses treat of various phases of the work, or of a variety of situations that might arise during its construction, from the standpoint of the lawyer or of the business man. They are called "general” because their wording is such that the same clause could be made to apply to any of a number of pieces of work differing widely in character. Such a clause might, for example, fit equally well into specifications for building a bridge, a sewer or a pumping plant. Judgment should, however, be exercised in the selection or transferring of general clauses, and the “scissors and paste” method should be practiced sparingly and with discretion.
A case in point was brought out by the recent destruction by the waves, during an unusually severe storm, of a sea wall in course of construction at the extremity of an isolated rocky promontory. An examination of the specifications made subsequent to the catastrophe, to determine whether or not the Contractor could be required to rebuild the wall, disclosed the fact that the Engineer in copying some of his general clauses from specifications for an entirely different structure located elsewhere had used a clause referring to damage by fire, but had made no provision for damage from the waves.
(c) The line between general and specific clauses is not a perfectly sharp one, and a few clauses would seem to fit equally well into either group. (See Art. 47.) Other clauses, often classed as general, actually relate neither to business nor to legal matters, and might more properly be termed “clauses of convenience.” (See Art. 32.)
(d) The general clauses discussed in Chapters VI to XI comprise those in most common use. Not all would of necessity be included in specifications for work which was simple and inexpensive, while work of considerable magnitude and complexity might sometimes require more. If the work is for a public corporation there may be statutes requiring that certain stipulations be included in contract or specifications. (See Art. 41.) It may often seem that the general clauses treat of certain apparently remote contingencies with unnecessary explicitness, but it must be remembered:
(i) That the specifications are prepared before it is known who the Contractor is to be. Were it otherwise many of the general clauses could, in some cases, be much abbreviated or wholly omitted; and
(ii) That the object of inserting many of these clauses is to keep both parties to the contract out of law, if possible. In this respect the nature of an Engineer's service to his client is not unlike that of a physician who is regularly paid so long as he keeps his patient in good health.
(e) Good practice differs as to how many, if any, of the “general" clauses should have a place in the contract proper
” and how many in the specifications. Many lawyers, for example, insist that clauses such as those relating to extra work (Art. 56), damage to persons or property (Art. 42), and perhaps a few others, are more binding if made express covenants of the contract. The author believes that if the specifications, “in toto,” are made beyond question a part of the contract, using the arrangement suggested in Art. 1o the distinction is too fine to carry much weight. It may be noted that such clauses vary slightly in phraseology with their surroundings. A distinct stipulation or covenant in the contract might open with the words “And it is further understood between the parties hereto” or “The party of the second part hereby further agrees,” while the same point could be covered in the specifications in language beginning “The Contractor shall.”
Do not attempt to make a point more emphatic by covering it in both contract and specifications. This is an implied confession that the point has not been made sufficiently clear in one instance, and may lead to serious difficulties.
10. Combining Contract and Specifications.
(a) In view of the foregoing it is readily seen that the specifications are intended simply as a part of the contract. This fact should always be stated in the contract, making the specifications (and plan as well) a part of the document by "reference" (a legal term). There are several ways in which they may be related physically, and the student should note at least two from actual copies examined. The author believes that the most satisfactory method of combining contract and specifications is shown in the following example:
(6) SPECIMEN CONTRACT FOR CONSTRUCTION WORK.
This form is given not to be accepted blindly but simply as an illustration of a method of combining specifications and contract.
THIS AGREEMENT, made this tenth day of April, nineteen hundred twelve, between John William Smith of the town of Greencastle and state of Connecticut, Party of the First Part, and Peter Brown of the same town and state, Party of the Second Part.
WITNESSETH that the said Party of the Second Part hereby agrees for, the consideration hereinafter mentioned and under penalty of a bond bearing even date herewith and hereto annexed to furnish all materials, tools and labor and to construct and complete on or before the first day of July nineteen hundred twelve a certain retaining wal near the residence of the said Party of the First Part.
AND the said Party of the Second Part agrees that the said work above mentioned shall conform in every respect to the annexed plan and specific itions both of which are hereby made a part of this agreement.
(Here insert the entire specifications, and if possible the plan.*)
And the said Party of the First Part hereby agrees to pay to the said Party of the Second Part when the entire work herein described shall have been completed the sum of one thousand and fifty dollars ($1050.00).
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above mentioned.
Party of the First Part.
II. Surety Bonds.
(a) The most common form of surety bond is, in essence, so far as it relates to the business of contracting, an agreement on the part of a third person (or corporation), called the Surety, to pay the Owner a certain sum of money in case the Contractor fails to live up to (a part or all of) his agreement. It is drawn in the form of a contract, peculiarly arranged. Examination of the specimen surety bond given below will show that the first part of the agreement is to the effect that the Surety will pay the Owner a certain sum of money, apparently without any reservations attached. In what seems like a postscript there is added the condition under which the money is to be paid.
(6) The amount of surety bond required in connection with construction contracts varies from perhaps 25 to 100 per cent of the contract figures. Private individuals of means may and do act as sureties, but the growing practice of requiring “surety company” bonds is to be commended. Contractors pay these
* A simple process for reducing plans to the size of specification sheets is described in Engineering Record, 1911, vol. 64, p. 725, and Engineering News, 1912, vol. 67, pp. 351, 545. It should make possible the inclusion of plans under the same cover with specifications and contract at little additional expense.
† For a brief discussion of suretyship the student is referred to Tucker's “Contracts in Engineering,” pp. 17 and 282.
companies a small fee for acting as sureties, and the companies assume little or no risk in the matter, since they in turn require valuable security of the contractors.
(C) A bond furnishes no better security than the financial integrity of those who stand back of it. Even when this is of a high order various complications may arise rendering the bond of doubtful value. (See Arts. 29, 52.) In any event the Owner would generally be obliged to enter suit to recover anything on it. Despite these limitations, a bond is an almost universal accompaniment of construction work.
(d) SPECIMEN SURETY BOND.
The following is offered not in any sense as a model, but simply as an illustration of a form rather briefer than the average:
KNOW ALL MEN BY THESE PRESENTS, that we, The John Doe Contracting Company of Smithville, Conn., called the “Principal," and The Reliable Surety Company of New York City, hereinafter called the “Surety," are held and firmly bound unto the town of Smithville in the state of Connecticut in the sum of five thousand dollars ($5000.00) lawful money of the United States of America, to be paid to said town of Smithville, for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
Sealed with our seals. Dated this twenty fourth day of September in the year of our Lord one thousand nine hundred and twelve.
WHEREAS the above bounden Principal has entered into a contract with the said town of Smithville bearing even date herewith and hereto annexed, for constructing a pavement on Bank Street in said town in accordance with plans and specifications therefor on file with the Clerk of said town, now therefore
THE CONDITION OF THIS OBLIGATION IS Such that if the said Principal shall well and truly keep and perform all the terms and conditions of the said Contract, on his part to be kept, then