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cannot be determined in advance. The quantities of excavation, excess concrete masonry, steel roof support and timbering, pumping and grouting are especially subject to such uncertainty. Generally the intention has been to estimate all quantities liberally. An increase or decrease in the quantity for any item shall not be regarded as a sufficient ground for an increase or decrease in the prices, nor in the time allowed for the completion of the work, except as provided in the contract. The excavation, masonry and other parts of the work have been divided into classes and items in order to enable the bidder to bid for the different portions of the work in accordance with his estimate of their costs, so that in the event of an increase or decrease in the quantities of any particular class of work, the actual quantities executed may be paid for at the price bid for that particular class of work. The attention of bidders is especially called to the provisions of Chapter 724 of the Laws of 1905, and acts amendatory thereof, as to the letting of contracts and payment for work; to “The Labor Law”; to the laws and regulations relating to mines, quarries and tunnels promulgated by the Commissioner of Labor of the State of New York, and to Sections 362 and 363, Chapter 410, Laws of 1882; to the “Public Health Law”; and Section 482, Chapter 466, Laws of 1901, as to the health laws. No bid will be allowed to be withdrawn, for any reason whatever, after it has been deposited with the Board of Water Supply. No bid will be accepted from, nor contract awarded to, any person who is in arrears to the Corporation of The City of New York, upon debt or contract; nor who is in default, as surety or otherwise, upon any obligation to the Corporation of The City of New York. Before the award of the contract, any bidder may be required to show that he has the necessary facilities, experience, ability, and financial resources to perform the work in a satisfactory manner and within the time stipulated, and that he has had experience in constructing works of the same or a similar nature. The Board reserves the right to select the bid or proposal, the acceptance of which will, in its judgment, best secure the efficient performance of the work, or to reject any or all bids. Proposals which are incomplete, conditional or obscure, or which contain additions not called for, erasures, alterations, or irregularities of any kind may be rejected as informal. Failure to name sureties will be sufficient cause for the rejection of a proposal. John A. Bensel
- Commissioners President of the Charles N. Chadwick Board of Water Supply
Charles A. Shaw
THE status, from the legal standpoint, of the Proposal should be clearly understood. The Proposal is an offer, and when this offer is accepted, the Proposal and acceptance together constitute a valid Contract to do the work, and also to execute the formal Contract and to give Bond. There are two parties; there is subject matter; there is consideration in that the bidder, on the one hand, and the City, the Company, or the Owner on the other, are each bound to the other; both parties have agreed to the same thing. What the bidder, the Contractor, has agreed to, primarily, is to do the work at the prices named, to sign the formal Contract, and to give Bond. The offer or Proposal resulting in the agreement as to each of these should be specific and not implied. If the Proposal suitably refers to the formal Contract and thus includes it, the Proposal and its acceptance constitute a Contract as valid and binding as the formal Contract when signed. There remains, however, the giving of the Bond, which in some cases is required by law and which in most cases is necessary to protect the City, the Company, or the Owner, in case the Contractor fails to fully carry out his Contract.
If the Contractor will not sign the formal Contract and give Bond as he agreed to do, the sooner he is rid of the better. Nevertheless, in this case, he is liable for damages for breach of Contract, and in the absence of anything otherwise to fix these, the damages are measured by the loss sustained. This will be the difference between the bid accepted and the next higher bid, together with loss from delay, if any. In case of re-letting, the loss will include the difference between the former bid and the bid accepted at the re-letting, the loss from delay, and the expense involved in the re-letting.
It is customary, however, to include in the Proposal what may be called a secondary or supplementary agreement by which the certified check shall be surrendered if the Contractor fails to sign the formal Contract and give Bond. It is not certain that the surrender of the certified check will relieve the Contractor from the payment of damages in excess of the amount of the certified check, if they can be proved, unless the agreement in some way limits the Contractor's liability to the amount of the check. In some cases it is provided that the certified check shall be retained as liquidated damages; in others, the words liquidated damages are not used. It seems desirable, on the whole, that the Contractor should not be held liable beyond the amount of the certified check. The provision contained in the sample form which follows, provides that the receipt and payment of the certified check shall be the consideration for making the Proposal and acceptance in other respects null and void, so that there can then be no valid claim for damages for breach of Contract. It is quite possible that a court would sustain the acceptance and payment of the check as a valid consideration for the Contractor's release from his agreement without this specific clause; it is probable also that a provision for liquidated damages would be sustained, but the question of its forming in reality a penalty might require the presentation of evidence on this point. The form of bid or Proposal, as a sample, may be as follows:
A. Bid or Proposal
To the Board of Sewer Commissioners of the City of Franktown, Mass.
For the Construction of Sewers, the bids for which are to be opened March 10, 1917.
Made this . . . . . . . . . . day of . . . . . . . . . . 1917, by “. . . . . . . . . . . . . . . . . . . . . .
The party named above as bidder, declares that the only person or persons interested in this bid or Proposal as principal or principals is or are named above, and that no other person than hereinabove named has any interest in this Proposal or in the Contract proposed to be taken; that this bid or Proposal is made without any connection with any other person or persons making a bid or Proposal for the same purpose; that the bid or Proposal is in all respects fair and in good faith and without collusion or fraud; and that no City officer or clerk, elected or appointed, nor any person in the employ of the Board of Sewer Commissioners, is, shall be or become directly or indirectly interested as principal or surety in this Proposal or in the Contract proposed to be made, or in the supplies, work, or business to which it relates, or in any portion of the profits thereof.
The bidder further declares that he is not in arrears to the Board, or to the City of Franktown upon debt or Contract, that he is not in default either as Contractor or surety or otherwise upon any obligation to said Board or to said City, and that there is no suit or claim pending as to such arrears or default.
He further declares that he has examined the site of the work, and informed himself fully in regard to all conditions pertaining to the place where the work is to be done; that he has examined the form of Contract and of Bond on file in the office of the City Engineer, the Specifications, and the drawings therein referred to, and has read the Information for Bidders referring to the work, and has satisfied himself as to all matters relating to the work to be performed.
1 The bidder's name and address must be inserted here, and in case of a firm, the name and address of each and every member of the firm must be inserted. In case of a bid by or in behalf of any corporation, the complete legal name and address of such corporation must be written here, together with the name and address of the officer or agent of the corporation upon whom notice may be served.
The bidder proposes and agrees, if this Proposal shall be accepted, that he will furnish and do everything required by the Contract to which this refers, for the following stated prices:
(Here follow the items for bids, and against each is to be placed the bid in ink and stated both in words and in figures.)
For all extra work done by written order of the City Engineer not similar in character to the items above specified, and for which no price is set in the said written order, its actual and reasonable direct cost to the Contractor, as determined by the City Engineer, plus 15 per cent of said cost. The direct cost in addition to materials and other labor furnished by the Contractor may include a reasonable proportion of the time of the foreman and timekeeper, together with establishment charges and insurance. It shall not include any charge for the use of tools, or for time spent by the Contractor. If this Proposal shall be accepted by the Board, the bidder agrees to execute and deliver, in triplicate, the Contract in the form on file in the office of the City Engineer, and for the prices named in this Proposal, within ten days (not including Sundays and holidays) from the date when a written notice is mailed to said bidder at the address herein given, stating that the Contract has been awarded him and is ready for his signature. The bidder also agrees that, at the time of signing the Contract, he will furnish and deliver a Bond in the form on file with the City Engineer in the sum of thirtyfive thousand dollars ($35000) with a surety company or surety companies satisfactory to the Board, as surety. The bidder further agrees that this Proposal shall remain in force until the acceptance of this or some other Proposal and the following formal execution and delivery of the Contract and the furnishing and acceptance of the Bond. Accompanying this Proposal is a certified check payable to the order of the Board of Sewer Commissioners of the City of Franktown for the sum of four thousand five hundred dollars ($4500) which has been deposited with the Board as required. In case the bidder shall fail to so execute and deliver the Contract and furnish and deliver the Bond as required within ten days as stated, then the Board may, at its option, consider that the bidder has abandoned his Contract, in which case the certified check for four thousand five hundred dollars ($4500) accompanying this Proposal, and the amount thereof, shall become the property of the Board, and in consideration of the receipt by the Board of said certified check, and the payment thereof, this Proposal and its acceptance shall become in other respects null and void, the bidder shall be released from other damages, and the Board shall be at liberty to make Contracts with other parties as it sees fit. But if the bidder shall execute the Contract, and give Bond as required within the time aforesaid, the certified check shall be returned to him forthwith. The bidder in connection with this Proposal and as part of it, has made a sworn statement upon the form provided, as to what work he has done of a similar character to that included in the Contract to which this Proposal refers, and has given
references from which the Board shall determine his responsibility, experience, skill, and business standing.
(Each and every person bidding and named above must sign above. In the case of a firm give the first and last name of each and every party in full, with residence.
In case a bid shall be submitted by or in behalf of any corporation, it must be signed in the full legal name of such corporation by some authorized officer or agent thereof, who shall also subscribe his name and office and a statement that he acted with proper authority. If practicable, the seal of the corporation must be affixed.)
NOTE.— The person, or all persons making this bid must swear to the following affidavit, and in case of a corporation this affidavit must be made by one of its officers as an individual. If the affidavit is made out of the County of ...,
& certificate must be attacbed showing the authority of the official before whom the affidavit was made.
. being duly sworn says: I am 1. the bidder above named. I have read the foregoing Proposal. The same is in all respects true. Subscribed and sworn to before me this........ day of........19..
C. In case of a corporation the affidavit may be as follows:
...(Name of officer) being duly sworn says that he signed the foregoing Proposal as the act of the .... Company as its ..
and that he acted with proper authority in so doing, and he further says that the several matters stated in the above Proposal are in all respects true. Subscribed and sworn to before me
thisscribed andaywon to before me}
being duly sworn
says that he is*
has done work for the following parties of the kind and approximate amount shown:
Kind of Work
1 If a member of a firm, this should be stated.