CHAPTER XIX

SPECIFICATIONS

As has been stated previously, it is not always possible to draw a clear dividing line between Contract provisions and Specifications. It has also been stated that the Specifications are sometimes bodily included within the limits of the Contract, and are sometimes contained in a contemporary document which by express provision is made a part of the Contract, as the plans, in their turn, are made a part of the Contract or of the Specifications.

Strictly, as to form, the Contract should be an agreement and the Specifications not. The latter should specify qualities of materials, methods, and processes, and the quality or condition of any resulting structure. In form, the Specifications should state that a certain material shall have specified qualities, and not that the Contractor shall furnish such material of specified qualities; or that a process shall be carried out in a certain way or under certain conditions rather than that the Contractor shall conduct the process in this particular way; or it should provide that the structure shall have specified qualities. The form, however, is less important than the substance.

For a general statement the Contract should cover an agreement to do work, and the Specifications should apply to a particular class of work as well as to the particular work in hand. Practically it is often difficult not to overrun the theoretical line between the two on one side or the other. Clearness of description is of the utmost importance. For this a clear vision of what is wanted is the first requisite. To this must be added sufficient ability in the use of language to make clear to others what the Engineer sees clearly. An able Contractor has stated that his training in descriptive geometry was of great value to him because it permitted him to visualize a piece of work.

There are several mediums of expression, among them: spoken words, writings, drawings, and models, all of which may at times be used to describe work to be done. Specifications in writing, and drawings are regularly used to express what the work is to be, or perhaps how it is to be done. For some classes of work, models are well-nigh essential; and

the frequent use of moving pictures for such purposes is by no means improbable in the early future. They have, however, the disadvantage, ordinarily, of not being available for frequent examination.

Specifications should be logically arranged, partly for clearness, partly so that two clauses differently worded shall not be written covering in whole or in part the same thing. Otherwise the meaning may be made obscure, and while the decision of the Chief Engineer may in general be final as to the meaning of a clause so far as technical questions are involved, the court, if appealed to, will not allow its jurisdiction to be ousted, certainly as to whether a breach of contract has occurred, and commonly as to the meaning of a Contract which is to be decided. A Contract means what it says and the Chief Engineer cannot directly change it, or misinterpret it, which is the equivalent of changing it. The quantities of work or the quality of construction are matters wherein the decision of the Chief Engineer will not be disturbed unless for lack of good faith on his part, as has been stated.

Specifications and drawings not only express what work is to be done but they also state in many cases existing conditions as to soil or foundations or borings, or other facts necessary for the Contractor for an intelligent bid.

Upon the Company or the City, properly devolves the duty of determining the conditions as to soil, foundations, and other matters upon which the construction depends and upon which the bids must be based. It is uneconomical to require that each Contractor shall make borings or extensive surveys or investigations to determine conditions, and this should not be expected of him. A failure to know conditions means, in the long run, bids from the Contractors high enough to cover risk, and it is good economic law that the Company is the gainer from reducing the Contractor's risk to a minimum.

The Company or the City oftentimes refuses or fails to provide money or opportunity to make the proper preliminary investigations of conditions necessary both for adequate designing and for intelligent bidding. Friction and lawsuits are among the probable sequences. The Engineer should exercise great care in stating facts or conditions whether in the Specifications and drawings, or in the Information for Bidders. He should state only facts and not conclusions derived from them. If borings have determined certain ledge elevations, these should be shown. Drawing contours based on these as probable elevations of ledge is unwise; let the Contractor do this if he cares to, or let him rely on the elevations shown.

With relation to Specifications and drawings, however, it is sometimes provided:

Bidders or their authorized agents are expected to examine the maps and drawings in this office, which are open to their inspection, to visit the locality of the work, and to make their own estimates of the facilities and difficulties attending the execution of the proposed contract, including local conditions, uncertainties of the weather, and all other contingencies.

In a case where this provision had been made, the United States Supreme Court rendered a decision in favor of the Contractor and against the United States as follows:

"Where the specifications for repair of a dam say that the existing dam is now backed with broken stone, sawdust and sediment, and it is actually backed with solid crib work, the Government must pay the increased cost of removal, notwithstanding other provisions in the specifications notifying bidders to visit the locality, estimate difficulties, and obtain information necessary for an intelligent proposal. The Contractor has a right to rely on a positive assertion of such a fact without an investigation to prove its falsity.

"It was a positive and material representation as to a condition presumably within the knowledge of the Government, and upon which, in the absence of any other provision or warranty, the plaintiffs had a right to rely."

The Specifications put some burden upon the Contractor to learn conditions and the lower court thought that this relieved the Government. The Supreme Court on the facts in this case thought otherwise and granted relief to the Contractor.

In another case as stated by the court:

"The specifications provided: "The material to be excavated as far as known, is shown by borings, drawings of which may be seen at this office, but bidders must inform and satisfy themselves as to the nature of the material.'

"The material actually to be excavated consisted largely of stumps below the surface of the earth, buried logs, or cemented sand and gravel, none of the sand or gravel being described in said drawings as cemented, and sandstone conglomerate; and such materials were far more difficult and expensive to penetrate and excavate than ordinary sand and gravel as described in the drawings.

"The claimants were forced to rely wholly on the information furnished them, the time not being sufficient to permit them to make their own borings, and they believed the information furnished them to be accurate and reliable."

In this case stumps and other unfavorable material had actually been found by the borings, but were not shown on the plans.

The lower court, in this case also, decided in favor of the Government but the Supreme Court overruled their decision in favor of the Contractor. Whether much importance attached to the fact that time was not available for the Contractor to make borings may well be doubted.

Where the Contract and Specifications make the decision of the Chief Engineer final, it apparently is not good law or morals to deny the Con

tractor the right to question the decision of the Chief Engineer and at the same time require the Contractor to question statements of fact within the knowledge and functions of the Chief Engineer. It is not altogether improbable that at some future time a court will hold substantially in the following form, that where the decision of the Chief Engineer is made final, his position has so far the fiduciary quality that it will amount to constructive fraud for him to give or withhold information as to material facts by which the Contractor is reasonably misled to his disadvantage either in making his bid or handling his work.

In another case which did not go to suit, a clause read :

The said Contractors agree that they shall be accountable for the full performance of this contract, and by signing hereof admit that the plans, elevations, sections, specifications and parts before referred to are sufficient for their intended purpose of doing the said work, and that the work can be successfully executed in accordance therewith, without any additional or extra work other than that set forth thereby or necessarily inferred to be done from the general nature and tendency of the plans, drawings and Specifications aforesaid, upon a fair and liberal construction thereof.

The actual conditions were found in one feature to be materially different from those shown on the plans, and the cost of the work was much increased in consequence. There were in other matters hardships for the Contractor not due to information furnished, and for which the Contractor was legally responsible, and the Contractor's lawyer thought that in view of the above clause, the Contractor did not have a good case so that a friendly adjustment resulted. Whether the decisions of the United States Supreme Court quoted above would cover this case is somewhat doubtful. The clause above is in some ways more stringent than that quoted in the decision referred to. Nevertheless, a reasonable interpretation would be that the Contractor's agreement that the plans were sufficient for their intended purpose for doing the work and that the work could be successfully executed, was based upon the facts shown on the plans, facts upon which the Contractor had a right to rely. The Contractor's agreement apparently covered "plans" in the sense of methods and results and did not refer to the accuracy of the map or "plan" in showing existing conditions, and to this extent the Company would be responsible. Whether the court would accept this interpretation is uncertain, but not at all improbable.

This provision occurs in the Specifications for sewer construction in one of our large cities:

Samples of borings made with a four-inch hand auger, are on file in the Engineer's office. The results are plotted on the profiles for the information of the