63 N.J.L. 208 | N.J. | 1899
The opinion of the court was delivered by
In March, 1897, the city council of Passaic invited proposals for the erection of a fire engine-house and a police station in that city, under plans and specifications, to which bidders were referred. The following provisions of the specifications are pertinent in this case:
“general conditions.
“The labor-and materials to be furnished are to be of standard quality of the best of their several kinds mentioned, and be acceptable in every respect to the committee and the architect, either of whom shall have the power and authority to reject any workmanship or materials which in their opinion does not conform with the strict intent and meaning of these specifications and the drawings. * * *
“The several- contractors and mechanics are to work in harmony one with another, so as to best facilitate the progress of the work, and such cutting and fitting as is required and as is the usual custom is to be done when required.
“All materials and finished and unfinished work are to be properly and carefully cared for and protected from the weather or other damage at all times. * * *
“ Such detail drawings as may be needed to folly explain any special portion of the work will be furnished as required by the architects, and are to be carefully and accurately followed.
“The architects are to be sole judges of the intent and meaning of these specifications and the drawings, and their decision on any matter relative thereto is to be final and decisive. * * *
*210 ” STEAM-HEATI1TO.
u The steam-heating is to be a thoroughly first-class, complete job in each and every particular, and is to be guaranteed of a capacity to maintain a temperature of seventy (70) degrees Fahrenheit in zero weather.
“ The boiler, pipes, valves, fittings, radiators, connections, <&c., are to be of the very best manufacture of standard make, and to be run, hung, secured and fitted in the strongest and most workmanlike manner.
“A connection is to be run from the boiler to supply the fire engine in the engine-room, and is to have an automatic cut-off.
“ The system to be direct radiation, with double supply and return drip pipes. Bundy radiators, Jenkins Brothers’ valves ánd boiler of a thoroughly known reliable make, and be of a style and manufacture approved by the architects.
“ The contractors for the steam-heating will furnish a full and detailed specification of the manner in which they propose to do their work, and the quality and name of the manufacturers of the materials they propose to use, which specification will form a portion of this specification and the contract.”
The contract was awarded to a firm of contractors who gave sureties for its performance. No detailed specification accompanied their proposal. The contract, executed, provided for the erection of the building agreeably to drawings and specifications thereto annexed, being the same on which proposals were invited, and was otherwise silent as to steam-heating. It further provided that if the contractors should abandon the work, the city might complete the same by contract or otherwise at the contractors’ expense and hold the contractors and their sureties liable for any excess of cost. In May, 1898, the buildings being far from completion, the contractors, in writing, abandoned their contract and authorized the city council to proceed in such manner as they might desire to complete
“BIDS FOR FIRE DEPARTMENT AND POLICE BUILDING PROPOSALS. '
“By direction of the city council of the city of Passaic, •bids are hereby invited for the completion, in accordance with .plans and specifications, of the new fire department and police building, and for the remedy of any defects, due to failure to follow the said plans and specifications, or by poor workmanship or negligence.
“Also bids for the extra work in accordance with the additional specifications on file in the office of the city clerk.
“ These bids to be distinct and separate.
“ Plans and specifications may be seen at the office of the city clerk, and all further particulars obtained there.
“ Bidders will be required to deposit with their bid a certi-, ■fied check for three hundred dollars, said check to be returned •to unsuccessful bidders as soon as the contract is awarded.
“ The successful bidder will be required to give bonds to •the full amount of his or their bid, and upon the execution of the contract and acceptance of the bond the certified check ■will be returned to said contractor.
“The building to be completed by September 15th, 1898.
“ Proposals must be sealed and addressed to the ‘ Committee .on Municipal Buildings,’ in care of the city clerk.
*212 “ The committee reserves the right to reject any or all bids,- and all bids must be submitted on the third day of June at 8 o’clock p, m.
“ John A. Parker,
lí John J. Welsh,
“ Hamilton K. Beatty,
“ Committee on Municipal Building.
“ Dated at Passaic, N. J., May 25th, 1898.” ® ,
In response to this invitation two proposals were received, one from John Jelleme, for the completion of the original contract, $16,337, and for the extra work, $2,000 — in all, $18,437; and one from Moreland Brothers, for completion of the original contract, $16,335, and for the extra work, $1,776.50 — in all, $18,111.50. Jelleme furnished no detailed specification of steam-heating, but Moreland Brothers had procured from the manufacturers the same proposal that had been made to the original contractors, and submitted that as the detailed specification that they assumed was called for by the advertisement. This proposal conflicted with the city’s specifications in several important respects. It guaranteed a temperature of seventy degrees in only the court-room, offices and living-rooms, while for the sleeping-apartments, assembly hall and stables there was guaranteed only sixty-five degrees. It required the foundation for the boiler, flue for smoke and draught, and trenches and covers, if needed, to be provided by the owner, and all cutting and repairing of floors, walls and ceilings and enclosure and covering of flues and pipes to be done by the owner, and it provided that if the apparatus was used for the benefit of mechanics or owner it must be at owner’s responsibility, and that when completed it should be considered as left in charge of the owner and the contractors no longer responsible for it. Other supposed variations, such as not specifying that the radiators should be Bundy’s and the valves Jenkins’, are probably only incomplete statements to be supplemented by the city’s specifications; but in the respects above indicated the differences seem important and to the city’s
It is first objected that Jelleme’s bid was not valid because not accompanied by a detailed specification of the steam-heating proposed. Much testimony of experts has been taken with the idea of construing the clause on that subject in the city’s original specifications, but it seems plain enough. It did contemplate that such a specification should accompany the proposal, but it does not follow, even if the clause was applicable to the new advertisement, that the omission of the detailed specification would invalidate the proposal. Enough is stated in the city’s specifications, aided by the plans, to form the basis of a definite contract, and the omission of the details called for might be waived by the city, as it was in the original contract. Unless unsuccessful bidders have themselves been strictly regular, they have, as such, no standing to attack an award. The prosecutors did indeed furnish a detailed specification of steam-heating, but, unfortunately for them, it materially differed from the requirements of the city’s specifications, upon which their proposal had to rest, and had already been disapproved by the city’s representatives. An attempt is made to prove an offer to the chairman of the committee to remove objectionable features, but that official very properly said that the offer came too late.
As I read the advertisement, bidders were to separate their
As bidders the prosecutors have no standing, nor as taxpayers have they made out a case against the award of the contract. They argue that the original contractors and their sureties may resist settlement on the basis of the Jelleme contract. As to all but the extra work those persons can have no possible ground of complaint, and as to that are not interested unless it had been agreed on, which the ease does not show. As to them the council need not have advertised at all, and a contract after advertising for bids is at best only prima facie evidence of the fair cost of completion. As to the prosecutors’ interest as taxpayers to have the extra work go to the lowest bidder, it is sufficient to say that such work was a mere adjunct to the principal object contemplated, viz., the completion of the buildings. It was good judgment on the part of the municipal authorities to include all in one contract and, so considered, the award was properly made. Considered even as a separate matter, it would seem to be within the discretion of the council to award the extra work to the successful bidder for the completion of the original contract. The statute to which we are referred by the prosecutors as the sole authority for the work (Gen. Stat., p. 1540, pi. 363) provides that every contract shall be awarded “ to that responsible bidder who offers terms most advantageous to the city.” There certainly is room to argue that it would be more advantageous for the city to pay the contractor for the buildings $2,100 for the extra work rather than to have that work done for $1,776.50 by a stranger. There would be risk of a lack of co-operation between the two contractors and consequent delay, to say nothing of the impracticability of doing the work in that manner. This court will not review the determination of a municipal board where there exists a rational basis to support it. McGovern v. Board of Public Works, 28 Vroom 580. In the absence of fraud or palpable
Lastly, it is urged that a contract with Jelleme is illegal because his business partner, O’Leary, is a member of the city council. No proof was offered that this was a partnership matter, and Jelleme testified that it was not. A contractor is not precluded from taking city work on his own account because a partner in his general business is a member of the municipal board that awards the contract. In this case O’Leary was excused from voting on the award of the contract; nine members voted for it and only one against'it, the other two members being absent. There seems no substance in this objection.
The resolution brought up for our review is therefore affirmed, with costs.