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PART II

CONTRACT LETTING

CHAPTER XIII

ADVERTISEMENT

WHEN an Engineer is employed upon a project which looks towards a Contract for construction, the first step ought to be a preliminary investigation and report upon the project. In many cases such an investigation and report would show to the promoters that the project was impracticable or unwise from the financial standpoint and should be abandoned without further loss, or that some important modification should be adopted.

Sometimes the projector of an enterprise does not ask for such service but is disposed to push ahead without any preliminary report. In many cases it is the professional duty of the Engineer to suggest to his client the necessity that a preliminary investigation and report should be made. Capitalists are not always wise enough to appreciate the necessity for such preliminary work unless well advised by others.

Sometimes the preliminary work has already been done by another Engineer. For his own protection an Engineer called in under such circumstances is justified in lobking into the proposition far enough to satisfy himself that it is wise to become associated with it. An Engineer should be cautious about going far into any venture that has not had a proper preliminary investigation which shows it to be justifiable.

It should be further understood that an Engineer who has had previous experience in enterprises of a similar character will often be better qualified than any one else connected with the project to determine the proper procedure in carrying the work through its various steps to a successful conclusion.

The steps leading to a Contract for construction may then be as follows:

1. Make preliminary examination and report as to feasibility, or as to the methods in which the work may be carried out.

2. Prepare preliminary plans and estimates.

3. Secure proper authority for the letting and construction of the work.

4. Determine the steps legally necessary in letting the Contract.

5. Prepare construction plans upon which to draft Contract and Specifications.

6. Secure any lands or right of way necessary.

7. Prepare forms for: (a) Advertisement, (6) Information for Bidders, (c) Proposal, (d) Contract, (e) Bond, (f) Specifications.

8. Advertise. 9. Receive Proposals. 10. Open Proposals and award Contract. 11. Have Contract signed and Bond furnished.

This chapter and those which follow are devoted mainly to the preparation of the papers and forms necessary or desirable in Contract letting, but each of the steps mentioned above requires more extended consideration.

1. The preliminary examination and report may sometimes consist of a very general consideration of the project; in many cases it will involve the second step.

2. The preliminary plans and estimates will often be necessary to the preliminary report. If not, it will seldom be wise to go ahead without them, for a reasonably correct knowledge of the cost, and of the general details of the scheme to be followed, should be promptly acquired. In many cases sub-surface investigations should constitute a part of the preliminary work.

3. By the time this has been done and sometimes even before making the preliminary plans and estimates, the Engineer in charge should satisfy himself as to the fact that he is acting under proper authority. If employed by an individual, he should ask for, and receive a letter of instruction as to what is wanted of him and what duties and responsibilities he is to assume. If employed by a private corporation or a municipal corporation as Engineer in charge of the project, he should know that the corporation, through definite action on the part of the proper officers or by the direct act of the corporation itself, as the case may be, has given lawful authority for the prosecution of the work. An Assistant Engineer may be under the orders of a higher official and then not be charged with responsibility in this matter. Nevertheless, in some cases it may be wise for him not to accept employment if he has satisfied himself that the project is likely to encounter serious difficulties because necessary legal formalities have not been observed.

Sometimes the charter of a municipality gives the Commissioner of Public Works (or some other Engineer in high office) power to directly

authorize construction work; sometimes a vote of a City Council is required together with the Mayor's approval. In a New England town, it is necessary to have a vote in town meeting authorizing the work and appropriating money for it. In this case a “warrant ” (or notice of intention to act in the matter) must have been posted or advertised in the call for the town meeting; without this a vote is not legal or effective.

In the case of some private or quasi-public corporations, specific authority may be necessary, sometimes from the stockholders, often from the Board of Directors. Possibly one or more of the higher officers may have legal power to authorize the work and appropriate money for it. The powers of a corporation, or its officers, municipal or otherwise, are determined by its charter; the corporation may, perhaps, by general action have delegated many of its powers to its officers, but in some cases powers can be delegated only by special vote for a specific purpose. Considerable care needs to be exercised by somebody to be sure that adequate authority has been given.

4. The steps legally necessary in letting a Contract are important in United States government work, in State work, and in municipal work. With work for individuals and for private or quasi-public corporations, there are seldom any restrictions, and where there is no probability of abuse of power or the exercise of favoritism, there is often an advantage in having a free hand. In the case of very large cities, the tendency to show favor to political friends has so often existed, that a provision requiring advertising seems wise and substantially necessary.

All of the legislation of a city is undertaken under a charter or franchise bestowed by the State. Contracts by a municipal corporation, a county, or a State must be within the act creating them, and within the privileges and powers of their charter, constitution, or organization.

If a charter requirement exists to the effect that Specifications shall be prepared and published and the work advertised and Contract awarded to the lowest bidder, it is imperative that the prescribed course be followed. Bids even for public work need not be invited unless it is expressly required by statute, charter, or ordinance.

The statutes of the United States are stringent in their provisions requiring advertising before letting United States government work and also for securing supplies and services other than personal services. In very many cities there is a provision, sometimes in the city ordinances, sometimes in the charter from the State (the incorporating act), that work of any considerable amount shall be advertised; and the Engineer in charge of work to be contracted for should understand the legal requirements in this direction. In Massachusetts there was formerly a special requirement of a

peculiar nature which has, however, been amended. It was provided that in the letting of any Contract for State work the following provision must be included:

A. The Contractor shall not request or require any laborer, workman or mechanic in his employ, or that of any sub-contractor or other person doing or contracting to do the whole or a part of the work to be done in this Commonwealth, to work more than eight hours in any one calendar day, and shall give preference in employment first, to citizens of Massachusetts, second, to other citizens of the United States, and shall allow all employees on said work to lodge, board and trade where they choose.

The peculiarity in this requirement was that any State employee who failed to include this in a Contract for State work thereby committed a misdemeanor and was subject to penalty. This was therefore a provision as to “ letting " the Contract, as distinct from the carrying out of the Contract. Members of a State commission were at one time indicted on the ground that the printer who printed some blank forms for them did not have this provision stated when he was given the printing to do. The prosecution in this case was later abandoned; but under circumstances only slightly different, the officials might have been found to have transgressed this law. The enforcement of the provision thus put into the Contract is now required with a penalty for non-compliance, either by a State employee or the Contractor, and similar provisions exist in other States. The statute in such a case should be carefully examined to determine what, if any, requirements there are with relation to letting Contracts.

The statute or ordinance covering the matter sometimes provides that the work shall be let to the lowest bidder; oftentimes it does not. The Engineer should know, before advertising or before preparing the various forms necessary, what are all of the legal requirements connected with the letting of the work, and for this he must be guided by the statute or the ordinance. There may be other requirements as to carrying out the Contract not pertinent in this paragraph, which deals with the letting.

5. The construction plans should be sufficiently complete so that adequate Specifications, together with the Contract, may be prepared from them. Although some detail plańs will necessarily be prepared during the progress of the work, the plans should also be sufficiently complete to allow the Contractor to make an intelligent bid, including here, also, the results of sub-surface investigations in many cases. Oftentimes bids on unit prices allow complete liberty in the preparation of the detail plans. In architectural work, particularly, where lump sum bids are usual, it is nevertheless common practice for detail plans to follow rather than precede the letting of the Contract, and the bid is made with knowledge of the contingencies involved. With the Engineer there is opportunity for the exercise of good judgment as to how far the plans shall be complete before bids are made. It is necessary that plans and Specifications be sufficiently complete to present a common basis for all bids.

6. Lands necessary should be secured before letting the Contract. It is unwise to risk difficulty with the Contractor due to failure to provide the lands required. Frequently this transaction must wait until the Contract plans are ready; not infrequently it may be wise and quite possible to secure all lands necessary as soon as the preliminary plans are ready, or to take an option on them by bond or other adequate means.

7. The preparation of the various forms required is of great importance, and this chapter and those following are devoted to a discussion of these forms.

8. The subject of advertising is next in order, and this chapter deals specially with the Advertisement. At the outset, the question arises :

Why advertise?” It may be to comply with the law, to secure the advantages of competition, or frequently both. The character of the Advertisement may well depend upon its purpose. If purely to meet the requirements of law, a perfunctory performance is enough, such as is shown in the following:

B.

U. S. ENGINEER OFFICE, NEW LONDON, Conn., July 27, 1905. Sealed proposals in triplicate for dredging in West River from New Haven Harbor, Conn., will be received here until 12 o'clock noon, Aug. 26, 1905, and then publicly opened. Information furnished application. C. F. POWELL, Lt. Col., Engrs.

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In this particular case the Engineer probably knows every one of the small number of dredging companies or firms available. A letter to each of them serves well the purpose of competition; the Advertisement complies with the law. Some other Advertisements for United States work contain far less than seems desirable to secure suitable competition.

Where Advertisement is required by law, the exact terms of the statute or ordinance must be scrupulously followed. The requirements of a statute prescribing the mode and time of advertising for bids are mandatory; something “ equally good " is of no value for compliance with the law. Advertisement in five different issues of a paper, for instance, has been held by the courts not to be equivalent to Advertisement for five consecutive days where the latter was required, and a Contract let under it was held illegal. A paper “published ” in a certain city is not the same as a paper “printed” in that city. A Contract which required the mayor's approval to allow it to be let without Advertisement is not rendered valid by the mayor's signature ratifying the Contract after it is made. Complete and specific compliance with the law is imperative.

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