217 Mich. 675 | Mich. | 1922
In 1913, the city of Flint adopted a comprehensive plan for a sewer system submitted by :a sanitary engineer. Detailed plans, specifications ;and blue prints were prepared. The city advertised for bids for furnishing the material and doing the work. Printed “Instructions to Bidders” and a form of “Proposal” were furnished to intending bidders. Eight of the proposals or bids submitted by plaintiff were accepted and contracts entered into with him for the construction of eight parts of the system. These contracts are all similar in form, except as to the description of the sewer, and provide for its construction and completion—
“as per the plans and specifications therefor heretofore adopted by the common council of the city of Flint, * * * now on file in the office of the city clerk, and according to the printed specifications and contracts, including the bid hereto annexed, all the terms and conditions of which are made a part hereof as fully and particularly as if written herein.”
It was further provided that—
“all work done in the construction of said sewer and refilling said trenches shall be under the direction and to the satisfaction of the city engineer and the sewer committee of the common council of said city.”
“Directions given by the city engineer or inspector to the superintendent or overseer who may have charge of any particular work shall be received and obeyed by him the same as if given to the contractor.”
Attention is also called to the following provision in the charter of the city of Flint (section 3, chapter 23, Act No. 346, Local Acts 1901):
“The construction and repair of all public improvements shall be under the supervision of the city engineer.”
The detailed plans and drawings are not in the record. No claim is made that the proposals or bids of the plaintiff as accepted were not in conformity therewith. Plaintiff’s bids provided for the construction of 210 man-holes and 490 catch-basins. It appears, however, that the particular location of these was to be designated by stakes to be set by the engineer or inspector. It is plaintiff’s claim that by reason of the refusal of such officers to mark the location of these man-holes and catch-basins, though requested by him so to do, he was permitted to construct but 137 man-holes and 202 catch-basins. The bids for such work were uniform at $40 each. He offered proof to show that they could have been constructed for about one-half that sum and brings this suit to recover the damages he claims to have sustained thereby. He had verdict and judgment for $3,480.
The errors assigned by defendant will be considered in the order discussed by counsel in their briefs.
“5. The common council reserves the right to adjust the extent of any district or system to the amount of the appropriation, or to diminish the extent of the work by deciding not to build any portion thereof it may deem advisable.”
There is much dispute in the testimony as to whether a copy was annexed to the contracts when they were executed. Neither the contracts, the specifications nor the proposals refer to this printed form. But, even if annexed, we are impressed that the language employed was not intended to reserve the right to diminish the work provided for in the contracts after their execution. It is not ambiguous. Its purpose seems clear. The reservations were evidently inserted to enable the council to restrict the work for which the city would contract in case the amount of the accepted bids exceeded the appropriation made for constructing the sewer systems according to the plans and specifications. The advertisement is not in the record. It became the duty of the council to either accept or reject the bids as made. To hold that they might, thus reserve the right to diminish any part of the work provided for in the contracts would open the door to fraud as a bidder might have a secret understanding that such would be done and thereby obtain an advantage over competitors. As is said by Judge Dillon in his work on Municipal Corporations (Vol. 2, 5th Ed.), § 807:
“The plan and specification are essential to competitive bidding because it is only through their agency that there is a reasonable assurance that all bidders are competing upon the same basis and without favoritism and that no fraud enters into the award.”
It must also be assumed that bidders rely on the fact that should their bids prove unprofitable as to
In considering this question, we must bear in mind the distinction between a modification or change in the contract by an official of the city without action of the common council and the acts here complained of. As to the former the authorities cited by plaintiff (Rens v. City of Grand Rapids, 73 Mich. 237; Campau v. City of Detroit, 106 Mich. 414; McCurdy v. County of Shiawassee, 154 Mich. 550; City of Flint v. Surety Co., 202 Mich. 438) are controlling. But the claim here made is that the officials, under whose supervision and to whose satisfaction the work was to be performed, by their refusal to designate the places where these man-holes and catch-basins were to be
It was also urged on the motion that the verdict was against the great weight of the evidence. We have read the record with care and cannot so conclude.
The judgment is affirmed.