OPENING OF THE BIDS

At the specified time the bids should be publicly opened and read aloud, so that bidders present, or their agents, may have adequate knowledge of all the bids. The bids should preferably be opened by a member of the Board. In large cities the official in charge of the letting may be a single Commissioner of Public Works, or some similar official, who has no time available for such purposes. It is customary in such a case for the Chief Clerk to perform this function of opening the bids.

The bids are then taken under advisement for comparison and determiration, and reasonable time is allowable for such purposes. The amounts must be carried out and summed up, and the qualifications of the bidder as a Contractor must be passed upon.

AWARD

Then follows the "award," and the action of the Board may or may not be controlled by statute or by ordinance. There are many public Boards that are not required to advertise and are not restricted as to the award. For railroad or other private work there are usually no restrictions either as to Advertisement or award.

When the mode of contracting is prescribed and limited by charter or ordinance, this must be definitely pursued or the Contract will not bind the municipality. Where such mode is prescribed, the municipality has no power to proceed otherwise, and the making of a Contract is ultra vires and invalid if made in any other way. Ratification of any such action may be made only by the proper authority. The legislature may not ratify action contrary to the Constitution; the municipal Council may not ratify acts contrary to the charter, but may ratify acts where municipal ordinances only have been transgressed.

Where competitive bidding is required, the steps taken must be such as in good faith to invite competition. Competition may be dispensed with in certain cases of emergency, monopoly or exclusive right, patented inventions, proprietary articles, where professional skill is involved, or where selection is made on tests. The action even here must be in good faith.

Statutes as to advertising and statutes prescribing methods of opening bids are mandatory, and are for the protection of the tax paying public. The acceptance of a bid where all mandatory requirements have not been observed, does not (cannot) make a valid Contract. Statute requirements as to hours of labor, employment of union labor, and the like have in some cases been held to be unconstitutional, giving a citizen a right to enjoin if he takes prompt action before the Contract is entered into. The advice

of a practicing attorney is indicated when such requirements apparently must be complied with.

Where a statute or ordinance requires letting to the lowest bidder, no award to any other is allowable. All bids, however, may be rejected. When the lowest bidder has failed to enter into the Contract it sometimes has been held that the Contract might be awarded to the next lowest bidder without re-advertising, but the next lowest bidder cannot compel such action. The provision for letting to the lowest bidder is not for his benefit, but to protect the tax payers, and the lowest bidder has no "right" to the acceptance of his bid. The law, however, is not uniform in all States, as to the right to award to the next lowest bidder in case the lowest bidder fails to execute the Contract and file the Bond. Some courts have held that the certified check or Bond is a sufficient protection to the taxpayer. In some States, the courts hold re-letting to be necessary. Where an award has been made to the lowest bidder under a requirement to do so and he has failed to comply with the conditions imposed by his Proposal, he should have opportunity to be heard before an award is made to the next lowest bidder.

Unless the lowest bidder is specified and required, or where provision is made for letting to the "lowest responsible bidder," or to the "lowest and best bidder," the courts have usually held it to confer discretionary powers upon the public officers to determine the responsibility of the bidder and the acceptability of his surety; the action of such officials has a judicial character, and consideration may be given to financial responsibility and to the skill, ability, and integrity required. The official, however, cannot exercise his discretion arbitrarily and without reason. While arbitrary determination is not allowable, the courts are slow to interfere with the action of officials in their discretion, and although the acts and requirements of a Board of Public Works are subject to review by the courts, nevertheless, the acts being discretionary, the courts do not interfere unless the motive is fraudulent or does positive injury; they sometimes tolerate restrictions and requirements for which no just cause has been assigned and which are frequently burdensome to bidders.

It is further true that no public officer is responsible in a civil suit where his acts have been judicial or discretionary, however erroneous; but the wilful award of a Contract by a city official, wrongfully and with evil intent, is a criminal offence and may lead to indictment, although in practice it is difficult to pursue such a case to a satisfactory conclusion.

Not only is it necessary that the Proposals should one and all be made upon precisely the same data and with the same means offered to all, but it is also requisite that the Contract should be executed in the form, under the same terms, and according to the plans and Specifications upon which the

bid was made; the bidder should insist on this. If there is a change, there is not a compliance with the statute requirements. The provisions of the Contract that the City Engineer or Chief Engineer may make changes are all right provided these do not materially change the character and cost. Extra work also is legally limited to such reasonable small amounts as are necessary to the Contract. Intent and good faith are the important elements where any controversy arises on these points; ordinarily the evidence would need to be strong to disturb acts in the discretion of the Engineer. Cases are not altogether rare, however, where this has been done.

CHAPTER XVI

UNIFORM CONTRACT FORM

A valid Contract exists provided only that the four essentials are present:

1. Mutual assent to the terms of the agreement.

2. Competent parties.

3. A valid consideration, actual or presumed.

4. Definite and lawful subject matter to be acted upon.

This chapter deals with the subject matter. While it is true that a Contract exists provided only that these four essentials are present, it is yet necessary, when something is to be done, that the terms should be sufficiently explicit so that exactly what is wanted is properly set forth. Experience has established many points necessary to be covered in Contracts for public work or other work of a similar character. This chapter will be devoted to a consideration of those provisions covering the subject matter which have been found essential or desirable in such work, so that there results not only a Contract, but a well drawn Contract.

In such work, the written description of what is to be done is divided into two parts, the Contract proper and the Specifications. The Contract very commonly refers to the Specifications "which are hereby made a part of this Contract," and the Specifications in turn are supplemented by plans or drawings "which are hereby made a part of these Specifications."

The Contract proper should cover the agreement and such parts of the work to be done as are general in character and applicable to almost any work, without close reference to its immediate character. The Specifications, as the name suggests, should specify the materials, workmanship and methods necessary to secure satisfactory work of any special sort, and strictly should not include any clauses of agreements.

It is sometimes found difficult to observe a clear line of demarcation between Contract and Specifications. As an outcome, it is not uncommon for the Specifications to be included within the body of the Contract, so that the signatures are subscribed at the bottom of the document of