the Information for Bidders, to provide all necessary machinery, tools, apparatus and other means for construction, and to do all the work and furnish all the material called for by said contract and specifications, in the manner and time therein prescribed and according to the requirements of the Board, including all incidental work, for the following sums, to wit:

R. That he has carefully examined the location of the proposed work, the annexed proposed form of contract, and the plans therein referred to; and he proposes, and agrees if this proposal is accepted, that he will contract with the Board, in the form of the copy of the contract deposited in the office of the City Engineer, to provide all necessary machinery, tools, apparatus and other means of construction and to do all the work and furnish all the materials specified in the contract, in the manner and time therein prescribed, and according to the requirements of the Engineer as therein set forth, and that he will take in full payment therefor the sum of

.....

($..

..).

S. To furnish all necessary labor, materials, plant, power, light, heat, water, tools, supplies and other means of construction and perform all the work mentioned in the said contract at the prices for the several items as given in the following Schedule:

T. The undersigned has also read and considered the foregoing "Requirements for Bidding and Instructions to Bidders," and proposes to furnish all the materials and to do all the work called for on said plans and in said specifications for the furnishing, fabrication and delivery of all metal work for the superstructure of said bridge, and to furnish all materials, tools, labor and all appliances and appurtenances necessary to the full completion of the same, at the rates and prices for said work, as follows, to-wit:

The sample form uses the expression "furnish and do everything required by the Contract to which this refers." The Proposal is in part to sign the Contract, and the detail of the words necessary need appear only in the Contract, and should appear fully there.

The word "prices" seems more appropriate than "sums" where unit prices are stated; sometimes the words "unit prices" are used. Where a lump sum is bid the word "sum" seems more fitting than "price," although the latter is entirely appropriate.

The provision for extra work has sometimes been in one of the following forms:

U. For extra work or materials, if any, as specified under Article ... the reasonable cost of the work or materials, as agreed or as determined by the Engineer, plus ten (10) per cent of such cost.

V. For extra work, if any, performed in accordance with Article ... of the annexed form of contract, the reasonable cost of the work as determined by the Engineer, whose determination shall be final, plus 15 per cent of such cost.

W. For all extra work done by written order of the 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 cost to the Contractor, as determined by the Engineer, plus 15 per cent of said cost.

The provision as to extra work is lacking in most Proposals, and if it does appear in the Contract the lack is not of great importance. Where competitive bidding is required, the inclusion of this clause makes the Proposal more complete in itself, and some courts might consider it desirable or even necessary. The chapter on Uniform Contract Form shows a section providing for extra work.

In the Proposal it is not uncommon to find some such provision as the following:

X. It is understood that the quantities of various items specified in the following Schedule are approximate only and are given as a basis for the uniform comparison of bids and are not in any way guaranteed or represented as correct or intended to be relied upon, and they shall not be taken as final and shall form no basis for any claim in case they do not correspond with the final measurements or quantities. It is further understood that the Commission reserves the right to increase or to diminish or to omit entirely any of the quantities of items as therein stated.

This seems unnecessary in the Proposal. The Proposal necessarily refers to the formal Contract. The bidder states that he has examined the form of Contract, and agrees to execute it; the Contract should include such a provision; it is not necessary that the Proposal should do so. In the form shown above it is equivalent to an agreement that no claim shall be made. It is essentially a Contract provision.

The clause touching the surrender of the certified check usually differs somewhat from that shown in the sample Proposal, as appears below:

Y. If this proposal shall be accepted by the Board of Water Commissioners, and the undersigned shall fail to contract as aforesaid, and to give bond in the sum of forty thousand dollars ($40,000), with surety or sureties satisfactory to the Board, within ten days from the date of the award of this contract, then he shall be considered to have abandoned it, and the certified check for five thousand dollars ($5000) accompanying this proposal shall be forfeited to, and become the property of the Board of Water Commissioners of the City of the accompanying check shall be returned to the undersigned.

; otherwise

Z. If this proposal shall be accepted by the Board, and the undersigned shall fail to contract as aforesaid, and to give bond in the sum of one thousand two hundred fifty dollars ($1,250) with surety or sureties satisfactory to the Board, within six days (not including Sunday) from the date of the mailing of a notice from the Commission to him, according to the address herewith given, that the contract is ready for signature, then the Board may at its option determine that the bidder has abandoned the contract, and thereupon the proposal and acceptance shall be null and void, and the certified check for one hundred twenty-five dollars ($125) accompanying this proposal shall become the property of the City; otherwise the accompanying check shall be returned to the undersigned.

a. Accompanying this proposal is a certified check payable to the City for two hundred and fifty dollars ($250) which it is agreed shall become the property

of the City if, in case this proposal is accepted by the Board, the undersigned shall fail to execute the contract with said Board under the conditions of this proposal, within the time provided for by the notice to contractors; otherwise said check shall be returned to the undersigned.

b. Accompanying this proposal is a certified check for one thousand dollars ($1,000), which shall become the property of the City, if, in case this proposal shall be accepted by the Board, the undersigned shall fail to execute a contract with, and give bond to, said City, according to the requirements of the Information for Bidders, within the time provided for by the said notice, said check to be given and received as full consideration and compensation to the City for all loss, delay and damage caused to it by said failure of the undersigned. If, however, the contract and bond are executed and delivered according to the requirements of the said notice, the said check shall be returned to the undersigned.

c. If this proposal shall be accepted by the Commissioners of Sewerage, and the undersigned shall fail to contract as aforesaid and give a bond in the sum of

.....thousand dollars ($........) with surety satisfactory to the Commissioners of Sewerage, within ten days (not including Sundays and legal holidays) from the date of the mailing of a notice from the Commissioners of Sewerage to him, according to the address herewith given, that the contract is ready for signature, then the Commissioners of Sewerage may, at their option, determine that the undersigned has abandoned the contract, and thereupon the proposal and acceptance shall be null and void, and the certified check for dollars accompanying said proposal shall become the absolute property of the Commissioners of Sewerage to reimburse them for any expense or delay which they may incur, and to indemnify them for any loss or damge which they may sustain by the failure of the undersigned to execute contract and furnish bond as aforesaid; and it is now agreed by the undersigned that said check and the amount thereof may be collected and retained by said Commissioners as liquidated damages should he fail, after said award, to execute the contract or furnish bond in accordance with the terms of this proposal.

d. And also agrees that the certified check, payable to the City, and the amount thereof is the amount of the damages which the City will sustain by failure to carry out the proposal, but if this proposal is not accepted, or if notice is mailed or delivered and the undersigned executes and delivers said contract and bond as aforesaid, the check, or its amount, is to be paid to him on receipt therefor.

e. It is hereby agreed that in the event that the undersigned is awarded the contract for the work herein mentioned, and shall fail or refuse to execute a contract for the work so awarded and to furnish the specified bond within seven (7) days after receiving notice of the award of the said contract to the undersigned, then, in that case, the said sum deposited with this proposal shall be retained by the Board as liquidated damages and not as a forfeiture, IT BEING NOW AGREED that said sum of THREE HUNDRED DOLLARS ($300.00) deposited with this proposal for the work so awarded is the fair measure of the amount of damages that The Board will sustain in case the undersigned shall fail or refuse to enter into the contract so awarded, and to furnish bond, as specified in said contract.

Attention should be called to the fact that, in the above alternative readings, there is not an express agreement to execute the Contract and

give Bond, nor to execute the Contract "for the prices named." A lack as to these features leads to a failure in some degree for the acceptance of the Proposal to constitute a complete agreement on these points, an agreement for whose breach a suit for damages could be successfully maintained. The alternative form, "if the bidder fails" etc., leads to a provision for the payment of the certified check as liquidated damages or otherwise, but the surrender of the check as consideration for making the contract null and void otherwise, as in the sample form, seems more direct and complete and less liable to attack.

Attention is especially called to the fact that the bidder, in the sample Proposal, agrees to execute the Contract, and to furnish the Bond, in both cases "in the form on file in the office of the City Engineer." This makes the agreement definite and leaves no chance for misunderstanding as to the form of these documents.

A clause in use provides specifically that the acceptance of the Proposal shall operate as appears below:

f. A notice that this Proposal has been accepted addressed to the undersigned by the Board as aforesaid shall forthwith, at the option of the Board, operate as against the undersigned as a complete making of a Contract according to the form thereof as aforesaid, with the blanks therein contained filled in according to this Proposal.

This appears to be simply a re-affirmation of the Common Law which is hardly subject to question. Some engineers may prefer to include it. In the following form there is an express provision by the bidder which is also in an excellent form generally:

g. If this Proposal is accepted and the proposed contract consented to by the Board, the undersigned will within three (3) days after the delivery of notice attend at the office of the Board, in person or by duly authorized representative, and will then and there deliver the contract with the City in the form aforesaid duly executed and with its execution duly proved; and the undersigned will at the same time deliver to the Comptroller of the City pursuant to the terms of said contract a bond in the sum of forty thousand dollars ($40,000) in the form annexed hereto and made a part hereof, with the following named sureties or, in the event that the following named sureties or any of them shall not be approved by the Board, with such other sureties as the Board shall approve.

The following form provides that the bidder shall pay full damages if he fails to sign the contract and to give Bond as required. The certified check furnishes security, not always sufficient, but the bidder commonly has some financial responsibility in addition to this. Most Contractors, in bidding, prefer to know the maximum liability incurred in bidding.

h. At the time of delivering this Proposal to the Board the undersigned will separately deliver a certified check payable to the order of the City for the sum of

ten thousand dollars ($10,000). And the undersigned hereby assigns to the City the said sum so specially deposited by the delivery of such certified check as security for the performance of the obligations of the undersigned under this Proposal. It is understood that such check is to be returned to the undersigned when the contract for the construction of the station finish for said Sections Nos. 7 to 11, inclusive, of Route No. 5, is executed and its provisions in respect of the bond or deposit are complied with, unless all the proposals submitted in response to said Invitation to Contractors shall be rejected by the Board, and in that case when such proposals are rejected, as provided in the Information for Contractors. In case the undersigned shall default in the performance of any of the obligations of the undersigned under this Proposal, the City shall have the right to apply the amount so specially deposited or so much thereof as may be necessary as a payment on account of the damages sustained by the City by reason of such default as aforesaid and shall return the balance, if any, to the undersigned. If the amount of such damages shall exceed the amount of said sum so specially deposited, the undersigned shall promptly upon demand from the Board pay the amount of such excess to the City.

Whatever the form used, it is essential that the notice be given in the words specified, and that there be adequate evidence as to such notice. In the sample form provision is made for signing "within ten days 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." Time is sometimes saved by a verbal notice, but even then the formal notice should be sent, and the specified words used. This written notice should not be tossed into the general mail, and should not be intrusted to the office boy. Some responsible person should deposit it in the post office or in a mail box and be ready to testify to that fact. Since large sums of money are often involved, it is also worth while to have an additional witness who has seen the notice enclosed in the envelope and afterwards mailed.

The sample form also contains a provision that the Proposal shall remain in force until the Contract has been awarded and executed and the Bond furnished. This seems more nearly adequate than a clause in the Information for Bidders that no bid may be withdrawn after it has been deposited. Another excellent reading is shown below:

i. The undersigned hereby accepts the invitation of said Board to submit a proposal on said work on the express understanding that he will not withdraw this proposal or cause the same to be withdrawn, and that the Board will hold this proposal and the sum deposited herewith until all of the proposals submitted have been canvassed and a contract for said work has been awarded and signed and the specified bond furnished and approved.

Some forms provide that a surety Bond shall be furnished instead of the certified check, and a form of Bond for this purpose may be found in the chapter on Bond.