In some instances where competitive Proposals do not produce any advantage, the courts have decided that advertising is not essential, and there are a number of cases where this proposition applies. This is true in cases of emergency, or with Contracts of practical monopoly, where scientific skill is required, and where materials must be selected upon tests. An important case is that of "patented inventions," and the courts in some States have held the municipality may contract without advertising for patented or monopolized articles, or may specify such articles. In some States, however, the courts have held otherwise, so that it is necessary to know what the law is in any particular State where the Contract is to be let. In some States, the city may contract without advertising for the direct use of the city itself, but not in cases where property of citizens is to be assessed to pay for the improvement. Plans and Specifications in sufficient detail must be provided previous to Advertisement. This is necessary to secure bids upon the same thing, and it is necessary that the bids should be unqualifiedly for the same thing; otherwise there is not competition. An act which requires a Contract to be given to the lowest responsible bidder is not observed if the Contract is awarded on plans and Specifications prepared by different parties; there must be a common standard. It is further obligatory upon the officers of a city or State to execute the Contract in accordance with the terms and Specifications by which the bids were made. Otherwise, the Contract work, strictly considered, is illegal, as no competition was had for the work as executed. The courts recognize this principle, and have held the work illegal in some cases where the changes were material. Minor changes can hardly be avoided. It is seldom that any one takes the trouble to pursue any such illegal action; it is difficult to fix the blame upon any official financially responsible, and it is not easy to connect the Contractor with the irregularity. A suit to enjoin payment to the Contractor for work so done would be successful, probably, only in cases where the change in requirements was very substantial. It is difficult to prevent or punish graft in the government of some of our large cities. Where the law requires letting to the lowest bidder, letting to any other bidder is illegal. Nevertheless it is legal not to award the Contract to anyone and to re-let. It is wise in case of re-letting, that the Contract or the estimated amounts should be sufficiently changed, if possible, so that the bids the second time are not completely upon the same work as they were the first time. Under such circumstances, it cannot be contended that the lowest bid was that made on the first letting, because that bid was not made on the final Contract upon which the second bids were presented and the final award made. Where the term "lowest responsible bidder" is used, in the absence of fraud it is held that the discretion of the Commission or Board is conclusive. The law regards provisions touching competition to be for the protection of the public and not of the bidder. As a result, any citizen may raise a question which a bidder, not a citizen, cannot be entitled to raise. An unsuccessful bidder, if a citizen, may thus bring suit, or if not a citizen, he may succeed in inducing some friend, a citizen, to bring suit. In case the law is not complied with, several results follow. If a sewer assessment, or a betterment tax is assessed against an abutting estate, the owner may legally and successfully refuse to pay. If a citizen brings a suit to enjoin the city from paying the Contractor, the courts will enjoin the city; the Contractor will not be paid; the Contract is not a legal Contract. The Contractor cannot sue for work done and materials furnished, for the basis for this would be an implied Contract, and the real trouble is that even an express, written Contract is illegal because not advertised. The law as to advertising was passed to protect the tax payer who cannot otherwise protect himself, to prevent favoritism in letting by prescribing advertising in order to secure competition. It is the duty of the Contractor to know that the Contract is legally entered into. He has opportunity to protect himself and the law puts the burden on him to do it. Any other view of the law would allow to be done the very thing the statute was passed to prevent being done. To secure competition, a good understanding of advertising is of value. A considerable part of all advertising done in any business is ineffective. While advertising is somewhat expensive, an additional bid lower than would otherwise be secured will fully justify the cost of much advertising; undue length of Advertisement, however, diverts rather than attracts attention. The Advertisement should stand for a length of time sufficient to give ample opportunity for Contractors to see it and to have time to prepare careful bids. Often the statute specifies the length of time and the publications to be used. For important work more time than legally required may sometimes be wisely taken, and the Advertisements may be published in prominent engineering journals, whether this be required or not. The Engineering News and the Engineering Record (now combined in the Engineering News-Record) have long made a specialty of such advertisements, which come from all parts of the United States. The Advertisement should be in form to attract attention, and contain information sufficient to attract desirable bidders; to show any bidder whether the work is in his field of work, within his financial resources, and whether it can be done at a time when his force and equipment are available. Such information may prevent incapable bidders from competing. To attract attention, it should have in suitable type a heading such as Water Works, Sewers, Highway Bridge, like the following sample: BOARD OF WATER COMMISSIONERS. 43 Bridge Street, Springfield, Mass. Sealed proposals will be received by, etc. To meet other requirements, it should in general state clearly the general character of the work to be done; for whom it is to be done; where it is to be done; the amount or approximate quantities in sufficient detail, frequently by items; the date for beginning and ending the work; where plans can be seen or obtained and where forms for Proposals, Specifications and Contract can be obtained; the person and place to which bids are to be sent; the date and hour for closing of bids; the place, date and hour for opening bids; the amount of the security to accompany bid and whether Bond, certified check, or cash, and to whom payable; the required amount of the Contract Bond; whether the right is reserved to reject any or all bids, or whether the bid of the lowest responsible bidder will be accepted. The name of the Engineer should appear. The Contractor is entitled to know this. With some Engineers he may be unwilling to bid at all. A further very desirable provision is that bids must be made on the printed forms furnished, the reason for which will appear later. In special cases, there will be reason for adding some special information to meet special conditions. Many matters of considerable importance may properly and much better be left for the next form, Information for Bidders, or, perhaps, for the Proposal. An Advertisement which is too long is less effective as well as more expensive. Whether long or short, all legal requirements must be complied with. Below is a sample form for an Advertisement which contains most or all of the necessary requirements. D. Bids opened March 10. SEWERS FRANKTOWN, MASS. Sealed proposals or bids for the construction of a sewer will be received by the Board of Sewer Commissioners of the City of Franktown, Mass., at their office in the City Hall, until two o'clock P.M., Thursday, March 10, 1917, at which place and time the bids will be publicly opened and read aloud. The following is an approximate statement of the work to be done. 1971 lineal feet of 7'6" sewer 2417 lineal feet of 7'9" sewer 1557 lineal feet of 8'0" sewer 440 lineal feet of 8'6" sewer all to be of circular form and built of reinforced concrete; together with manholes, connections, etc. Information for Bidders, form of Proposal, Specifications, Contract, and Bond are contained in a pamphlet which may be obtained from Richard Roe, City Engineer of Franktown, Mass., at his office in the City Hall. All bids must be made upon the regular forms furnished. Plans can be seen at the office of the City Engineer. Work is to be begun within ten days after the signing of the Contract, and must be complete by November 1, 1917. A properly certified check for $4500 without conditions, drawn upon some bank in Boston or New York, and payable to the order of the Board of Sewer Commissioners of Franktown, will be required with each bid; checks of unsuccessful bidders will be promptly returned; a satisfactory surety company's Bond for $35,000 will be required with the Contract. The Board reserves the right to reject any or all bids or to accept any bid it may deem to be for the best interests of the City. RICHARD ROE, City Engineer, JOHN DOE, Board of Sewer Commissioners. This simple Advertisement contains nearly or quite everything that is necessary for ordinary Contracts. Although there may be several other provisions that are desirable or necessary in special cases, it should be understood that many matters that find their way in Advertisements, as they occur in present practice, may well be saved for the Information for Bidders, which will be contained in the pamphlet which ordinarily contains the Proposal and the Contract form also. As has been stated, it is desirable to keep the Advertisement short because it is in that form more effective and also because publication of the Advertisement costs more than the simple printing under the item of Information for Bidders in the pamphlet. As a sample of additional provisions, to be added in special cases are the following two which will explain themselves: E. The site of the work is on the town line between Granville and Blandford, Mass., about twelve miles west of Westfield, Mass. The work includes the construction of an earth dam containing 135,000 cubic yards rolled embankment, three miles of roads, gate house, spillway, etc. It is desirable that prospective bidders visit the site of the work as early as possible on account of the distance of the work from the railroad and the uncertainty of the weather at this season of the year. From another Advertisement: F. Plans and specifications may be seen at the Village Clerk's office. The Engineer will be in Lake Placid after July 29 for the purpose of going over the ground and furnishing any information required." Each of these contains information which ought not to be left for the Instructions to Bidders. Sometimes there are peculiar provisions with relation to payment which might attract or repel a Contractor, of which the following two are examples: G. Said Garland County, Arkansas, agrees to pay to the successful bidder, or contractor, the sum of ten thousand ($10,000) dollars per year until said building is fully paid for. H. The work will be paid for in special tax bills issued against the lots and parcels of ground liable therefor. It is appropriate that these should appear in the Advertisement. In rare cases a very brief Advertisement which will catch the eye is entirely sufficient; the following appears to be a case of that sort: I. Harbor Work, Valparaiso, Chile. See plans and specifications in Washington, Here the work is so important that any Contractor interested would expect to look into the matter quite fully, and this brief note is sufficient to attract his attention. Bids for ordinary work are sometimes made very brief, and where the work is likely to be done by a local Contract or they may be sufficient. The following is an example of such an Advertisement: Bids will be received by the Board of Public Service until 12 o'clock noon, Central Time, Monday, August 21, 1905, for the construction of 5380 lineal feet of 36 inch sewer with 22 manholes and 38 catch basins. Bids may be for either brick or pipe construction or for both. Approximate depth 11 feet. While this may serve the purpose, in general it is better to spend a small amount of money to give somewhat more information. Referring to the sample Advertisement, D; in the upper left hand corner occurs the statement " Bids opened March 10," which is likely to quickly catch the eye of a Contractor and interest him if his plant will be available at that date. 9. The next item of importance states that "sealed Proposals " "will be received." A later chapter deals specially with the Proposal. It is provided elsewhere in the Advertisement that "all bids must be upon the |
