an acceptance of any defective work or material" seems somewhat severe upon the Contractor. The courts can be expected to sustain it and there is an evident disposition to include such a clause in Contracts. The following quotations in various forms, indicate that this disposition is clearly a fact:

A. Any omission to disapprove the work at the time or inspection or at the time of any monthly or other estimate shall not relieve the Contractor of any of his obligations.

B. It is further agreed that the approval of the said Engineer or his assistants, of all or any of the work during its construction, shall not relieve the Contractor from the full responsibility of building and furnishing the work required by the condition of this agreement, and it is understood that no advantage shall be taken of any discrepancy that may be found in any drawing or specification.

C. If the inspector should be absent or negligent, or should consent to the allowance of inferior work, the Contractor will not thereby be excused from repairing the work and removing faulty materials at his own cost. The Contractor shall at all times furnish the Engineer reasonable notice for the purpose of inspecting the materials furnished and the work done under this agreement.

D. The inspection of the work shall not relieve the Contractor of any of his obligations to fulfill his contract as herein prescribed, and defective work shall be made good, and unsuitable materials may be rejected, notwithstanding that such work and materials have been previously overlooked by the City and accepted or estimated for payment. If the work, or any part thereof, shall be found defective before the final acceptance of the whole work the Contractor shall forthwith make good such defect without compensation, in a manner satisfactory to the City, and if any materials brought upon the ground for use in the work, or selected for same, shall be condemned by the City as unsuitable or not in conformity with the specifications, the Contractor shall forthwith discard such materials and remove them to a satisfactory distance from the work. If the Contractor shall fail to replace any defective work or materials after reasonable notice, the City may cause such defective work or materials to be replaced, and the expense thereof shall be deducted from the amount to be paid the Contractor.

E. It is further expressly agreed that the granting of any progress certificate, or the payment of any moneys hereunder, shall not be considered an acceptance of all or of any part of the work and shall in no way lessen the liability of the Contractor to replace defective work though the same may not have been detected at the time such certificate was given or acted upon. All progress certificates being made merely upon approximate estimates, shall be subject to the correction of the final certificate.

So far as renewal at a later date involves no greater expense than at the time of inspection there is no injustice to the Contractor involved in requiring the replacing of defective work, or work below Contract requirements. If, however, the quality, or compliance with the Speci

fications is in some doubt, and the inspector or Engineer accepts or approves, and additional work is then performed, based upon the accepted work, it becomes a hardship and an injustice to the Contractor if the additional work must be taken out and renewed, unless, in some way, bad faith is involved.

The remedy or way out is not altogether clear. In the rare cases where there has been collusion between the Contractor and inspector or perhaps where either an over-zealous Contractor or his foreman has deliberately taken advantage of the inexperience or inefficiency of an inspector, no mercy should be shown. Where, however, the work has been allowed to stand without substantial fault, and without moral obliquity on the Contractor's part, he should in some way be protected, and many Engineers will find some way to protect him. The clause above, allowing "an equitable reduction," is one method available and is open and above board. Beyond this, however, the Contractor must appreciate the possible disadvantage to him in this clause, and must make his bid large enough to cover the risk in this particular. The Engineer should clearly realize that the Contractor may make his bid large on this account, and determine the advisability of including such a clause.

The state of the law applied to this may be gathered from the fact that in New York the courts sustained a Contract provision that the Contractor should be bound by the decision of the Chief Engineer while the City should not be bound. The court seemed to think that a large municipality could not count on the same zeal from its employees that the Contractor could and that this extraordinary protective provision ought to be sustained.

The provision so sustained was much the same as that shown below:

F. The City shall not, nor shall any Department or officer thereof, be precluded or estopped by any return or certificate made or given by the Commission, any Engineer, or other officer, agent or appointee thereof under any provision of this contract, from at any time either before or after the final completion and acceptance of the work and payment therefor pursuant to any such return or certificate, showing the true and correct classification, amount, quality and character of the work done and materials furnished by the Contractor or any other person under this contract, or from showing at any time that any such return or certificate is untrue and incorrect or improperly made in any particular, or that the work and materials, or any part thereof, do not in fact conform to the specifications; and the City shall not be precluded or estopped, notwithstanding any such return or certificate and payment in accordance therewith, from demanding and recovering from the Contractor such damages as it may sustain by reason of his failure to comply with this contract or the specifications.

Touching other provisions in these sections, among the forms used to cover them is the following:

G. The Commission and every member of it, the Engineer, and the employees of the Commission and Engineer, shall at all times have the right to enter the premises upon which work is being done under this contract, to inspect the said work and materials, and to ascertain whether or not the construction is carried on in accordance with this contract, and the Contractor shall furnish all reasonable facilities therefore, and, when the conditions reasonably require notification of the Engineer, shall give him due notice and ample time for inspection.

The following is a similar provision:

H. The Board and its engineers, inspectors, agents and other employees, shall for any purpose, and other parties who may enter into contracts with the Board for doing work within the territory covered by this contract, shall, for all purposes which may be required by their Contracts, have access to the work and the premises used by the Contractor, and the Contractor shall provide safe and proper facilities therefor. Furthermore, the Board and its engineers, inspectors, and agents shall, at all times, have immediate access to all places of manufacture where materials are being made for use under this contract, and shall have full facilities for determining that all such materials are being made strictly in accordance with the specifications and drawings.

This certainly seems to include more than a Contractor ought to be called upon to agree to. The bookkeeper, and even the janitor, would seem to be able to assume rights (unauthorized perhaps) which the Contractor could not dispute.

Another Contract form reads:

I. The Contractor shall permit the Engineer and his assistants and persons designated by him or them, and other representatives of the Board, to enter upon the work at all times and places, and to give lines and grades, and to measure and inspect the work or materials, and shall provide safe and proper facilities therefor and such samples as may be required.

This is less subject to criticism than the previous reading, but has no apparent advantage over the more concise reading of Section 12, above.

J. The Contractor shall at all times give to the Commission and its members, to the Engineer and his assistants and subordinates, and any person designated by the Commission or its Chairman, all facilities, whether necessary or convenient, for inspecting the materials to be furnished and the work to be done under this contract. The members of the Commission, the Engineer and all employees of the Commission bearing his authorization or the authorization of the Commission or its Chairman, shall be admitted at any time summarily and without delay to any part of the work or to inspection of materials at any place or stage of their manufacture, preparation, shipment or delivery.

K. The Contractor shall furnish the Engineer with every facility for ascertaining whether the work is in accordance with the requirements and intentions of this contract, even to the extent of uncovering or taking down portions of finished work. Should the work thus exposed or examined prove satisfactory, the un

covering or taking down and the replacing of the covering or the making good of the parts removed will be paid for at the contract prices for the class of work done; but should the work exposed or examined prove unsatisfactory, such uncovering, taking down, replacing and making good shall be at the expense of the Contractor.

L. All materials of whatsoever kind to be used in the work shall be subject to the inspection and approval of the Engineer and shall be subject to constant inspection before acceptance. Any unfaithful or imperfect work that may be discovered before its final acceptance shall be corrected immediately and any unsatisfactory materials used in the work will be rejected and shall be removed on the requirement of the Engineer. The inspection of any work shall not relieve the Contractor of any of his obligations to perform proper and satisfactory work, as herein specified, and all work which, during the progress and before its final acceptance, may become damaged from any cause, shall be removed and replaced by good and satisfactory work, without extra charge therefor. The Engineer and his assistants shall have at all times free access to all points where material to be used in the work is manufactured, procured or stored, and shall be allowed to examine any material furnished for use in the work under this contract.

M. The Contractor is required to afford the Commissioner, or his authorized representative, including engineers, inspectors or any other help that said Commissioner may designate, all proper assistance and facilities for the proper inspection of the methods employed in constructing the work, and of the character of the material delivered or used in the work.

The Contractor shall furnish all necessary facilities to enable the Commissioner or his authorized representative to make an examination of any work already completed. If the work is found defective in any respect the Contractor shall defray the expense of such examination and of satisfactory reconstruction. If the work is found satisfactory and according to specifications such expense will be allowed by the City.

N. Whenever the Contractor shall be permitted or directed to perform work at night or on Sundays or holidays, or to vary the period of hours during which work is carried on each day, he shall give written notice to the Engineer, so that proper inspection may be provided. Such work shall be done under the regulations to be furnished in writing by the Engineer and no extra compensation shall be allowed therefor.

The following is in point also, although it refers in part to shop inspection:

O. No material of any kind may be used or any work done until it has been inspected and accepted by the City. The Contractor must furnish all labor necessary in handling such material for inspection. All materials rejected must be promptly removed from the vicinity of the work. Materials or workmanship found at any time to be defective shall be promptly replaced or remedied by the Contractor, regardless of previous inspection.

The Engineer, his assistants and agents, together with other parties who may enter into contracts with the City for doing work within the territory covered by this contract, shall, for all purposes which may be required by their contracts, have

access to the work and premises used by the Contractor, and the Contractor shall provide safe and proper facilities therefor. Furthermore, the Engineer, his assistants and agents shall at all times have immediate access to all places of manufacture where materials are being made for use under this contract, and shall have full facilities for inspecting the same.

The field inspection of the work, testing of materials, giving of lines and grades, preparation of general and detail drawings, together with the preparation of partial and final estimates, will be done by the Engineer. The inspection and supervision by the Engineer is intended to aid the Contractor in supplying all material and in doing all work in accordance with drawings and specifications, but such inspection shall not operate to release him from any of his contract obligations.

P. The Contractor shall notify the Engineer, at a reasonable time in advance, of the starting of any new class of work. In case any work is to be done at night, the contractor shall give due notice to the Engineer, at least two days before such work is started. Only such classes of work shall be done at night as can be properly inspected, and adequate light and facilities for inspection shall be supplied.

Another reading is:

Q. Any unfaithful or imperfect work or materials that may be discovered before the final acceptance of the work shall be corrected or replaced immediately, on the requirement of the Engineer, notwithstanding it may have been overlooked by the proper inspector and estimated. The Engineer may drill into or cut open the masonry lining of the tunnel and for this purpose the Contractor shall furnish all necessary tools and labor. If the work so examined is found defective in any respect, it shall at once be remedied by taking down and rebuilding the defective work, or in such manner as the Engineer may direct, and the Contractor shall receive no compensation therefor; but if defects are not found there, examination and reconstruction shall be paid for as extra work, as provided in this contract.

R. Any omission to disapprove the work at the time of inspection or at the time of any monthly or other estimate shall not relieve the Contractor of any of his obligations; and all work of whatever kind, which, during its progress and before it is finally accepted, may become damaged from any cause, shall be removed and replaced by good and satisfactory work.

These clauses for the removal of rejected material are in use:

S. Materials of whatever kind condemned by the Engineer or inspector shall be removed from the work herewith, and shall not be made use of elsewhere in the work.

T. Any material found defective and failing to satisfy the requirements of these specifications shall be rejected, and the contractor shall be so notified by the inspector; the material so rejected shall not be used on the work, and, upon written notice from the Commissioner, the Contractor shall at once remove said material from the work and from the premises of the City.

U. Any material and work which does not satisfy the requirements of these