
    William J. Reilly, Resp’t, v. The Mayor, Aldermen and Commonalty, etc., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 18, 1887.)
    
    New York (city of)—Contract—Lowest bidder for work under— Proper method of ascertaining—Laws 1882, Ch. 410, § 64.
    Laws of 1882, Ch. 410, § 64, provided relative to work to be done for the city of New York, that all contracts shall be awarded to the lowest bidder. Held, that there was no warrant in law for making estimated quantities of the respective classes of work to be done factors in the determination of the question as to who was the lowest bidder for public work, that the lowest bidder for the contract was intended. Truax, J., dissenting.
    Appeal by defendants from judgment at trial term, entered in favor of plaintiff against the defendants.
    
      D. J. Dean, for app’lt; Wallace MacFarlane, for resp’t.
   Dugro, J.

Section 64 of chapter 410 of Laws of 1882, provides that all contracts shall be awarded to the lowest bidder. The lowest bidder for the work actually to be done is intended, and not the lowest bidder for an estimate of the work to be done.

The contractor Reilly was certainly not the lowest bidder for the work provided for by the contract in the matter before us; for in this case only an estimate of the quantities of material to be removed was obtained, and these estimated quantities were relied upon as factors in determining the lowest bidder, the actual work to be done was no factor whatever in the determination. .

Some of the bids for the estimated quantities of rock and earth, etc., were as follows:

Cubic yard, Lin. ft. Sq. yds.
Earth. Rock. Curb. Flag. Total.
W. E. Dean................ $0 35 $1 45 $0 78 $0 36 $20,672 12
M. H. Foley................ 1 78 004 004 004 12,848 32
John B. Devlin.............. 70 1 25 55 22 20,782 Ó0
Wm. A. Gumming.......... 95 2 20 65 27 32,487 40
R. J. Hills.................. 65 1 35 75 30 22,955 0»
Wm. Phelan................ 40 1 60 65 26 23,131 00
John Slattery............... 68 1 75 65 26 26,891 00-
Thomas E. Grimmins........ 50 1 75 60 25 24,909 40
Wm. J. Reilly. ?............ 1 69 01 01 01 12,336 64

The amounts of these bids as tested by the actual quantities of rock, earth, etc., were:

W. E. Dean................................. $15,309 50
M. H. Foley................................. 27,121 47
John B. Devlin....................'.......... 19,681 24
Wm. A. Gumming........................... 28,960 54
R. J. Hills................................... 21,31185
Wm. Phelan................................. 18,220 37
John Slattery................................ 23,472 06
Thomas E. Grimmins......................... 20,045 85
Wm. J. Reilly............................... 25,255'23

The lowest bidder, therefore, for the actual work to be done, was W. E. Dean.

There is no warrant in law.for making estimated quantities of the respective classes of work to be done factors in the determination of the question as to who the lowest bid- ' der is for public work, the lowest bidder for the contract (not the presumed lowest bidder) is the bidder intended by the statute. Section 64 of chapter 410, Laws of 1882.

It is unnecessary to say that if the work were all of one class, as the removal of earth, or of a mass as a mass, no trouble would arise in determining the lowest bidder, but when it is proposed, as in the case at bar, to make one contract which shall provide for the removal of a mass made úp of earth and rock, in unknown proportions a difficulty arises. For then it is apparent that if there is a price fixed for the removal of rock, the only manner in which the question can be determined^ in the method adopted by the city officials in this case, is by a computation in which the respective prices for earth and rock removal, and the respective quantities of earth and rock will be the factors. And if it is not possible to determine the proportions of' the earth and rock no determination of the question can be made.

The method adopted in the case at bar of estimating the respective proportions of earth and rock, and making the amounts of these estimated quantities factors in the determination of the question, is manifestly no solution; it is a mere conjecture dependent for its verity upon whether the estimates be correct or not.

The lowest bidder for the actual work to be done is intended, and not the lowest bidder on the estimated quantity of work to be done. Appleby v. The Mayor, 15 How. Pr. Rep., 428.

The party aggrieved was employed in contravention of the'policy and terms of the statute. He could-not contract with the city except through its authorized agents, and he is chargeable in law with notice of the limitations of official authority imposed by general laws. Donovan v. The Mayor, etc., 33 N. Y., 293; McDonald v. The Mayor, etc., 68 id., 23.

To make a contract for removing a mass containing unknown proportions of rock and earth, it is not necessary to resort to such a system as was adopted in the case at bar.

Many lawful methods of contracting for the work suggest themselves to our minds, in which the lowest bidder for the work actually to be done can be ascertained with certainty.

The object of the statutes and ordinances was to invite real competition for work and to secure its performance for the lowest price which fair and real competition would produce. Matter of Ralph Marsh, 83 N. Y., 434.

The system adopted in the present case is neither sanctioned by law nor warranted by necessity; it is permissive of pernicious and dangerous results, and could never have been intended to be authorized by law.

We have now before this court a case (before us on another point) wherein under this system of accepting a lowest bidder for estimated quantities as the lowest bidder for a contract, one whose bid (by a computation based on estimated quantities of earth and rock and the bidders’ prices for their removal per cubic yard) was $15,526.28, and who, by the application of his figures to the actual quantities as they were, ascertained on the completion of the work, received from the city $117,395.68, while the reasonable cost of doing the work was $26,541.79.

It will probably be claimed that, as the city stated its estimate of the respective quantities, and then called for estimates of price per cubic yard only, for the various works to be done, with notice that it would not be bound as to quantities, no injustice could be done by an award; in other words, that all the bidders knowing that the estimated quantities were to be factors only in ascertaining the lowest bidder, were aware that they must determine for themselves the actual quantities. Such reasoning is plausible but specious, and cannot control this court. The estimated quantities were used as though they were the true quantities in the letting of the work, and the city was thereby made a party to a venturesome speculation far removed from the letter and the spirit of the law. A bidder’s figures will of necessity be fixed by him with regard to the proportionate quantities of earth and rock as he believes them to exist; and his selection of factors in the determination of the award will be such as will make his bid in amount as he desires, while the factor he selects may be such as will cause the city to pay the highest possible price for the variance between the quantities as estimated by the city and the quantities as they actually exist.

_ No authority was given by the act to the common council to adopt any ordinance or regulation which should in any way interfere with or prevent the ascertainment of the lowest bidder for the contract, that is for the .actual quantity of any public work to be done, or which would leave the determination of such a lowest bidder to chance or conjecture.

Any system of letting contracts for such public work is illegal which necessitates the determination of the “lowest bidder” by conjecture, when it is possible to let a contract for the same work to a “lowest bidder” in whose selection no element of chance enters. The disposition of this question makes it unnecessary to consider the others raised by the appeal.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Sedgwick, J.

I agree with Judge Dugro in his opinion.

The statute provides that the head of the department shall award thé contract to the lowest bidder. Of course, the bidding must refer to the work to be done. If the basis of ascertaining who is the lowest bidder be an estimate of quantities or specification, they are used on the assumption that they correctly describe, in an approximate way, the work to be done.

The necessary implication in the statute is, that means shall be used that are adequate to ascertain who is the lowest bidder. A bidder must abide the true construction of the statute, as well as the city officials. He who claims to be the lowest bidder must justify his claim by the fact that he was lowest bidder, as ascertained according to the statutory intent.

The statute requiring in substance that it shall appear who is the lowest bidder, there can be no award of the contract if, after considering all the contingencies, it appears that one of several may be the lowest bidder but that it is impossible to fix upon the one who is.

One of the implied conditions of the statute is, that if ■estimates and specifications be used, they are to be shaped so that a calculation upon them will be more or less, that is, disregarding inevitable and relatively unimportant inaccuracies, the same as if a calculation were made as to the work when done.

If it should appear, as in this case it does appear, that one of the bidders is lowest only on the assumption that the estimate properly describes the work and that another is the lowest, if the estimate does not properly describe the work, a decision would turn on the character of the estimate. Under the statute it is not too late to prevent a contract being awarded illegally because the insufficiency of the estimate is discovered or rather recognized for the first after biddings are opened. The question would be, does it appear that the estimate is an approximate description of the work or does it appear that it cannot be affirmed that it is an approximate description because it is no statement of things known to be facts, but it is only a guess as to the facts.

This must be determined by a comparison of the statements of the estimate with the facts of the proposed improvement. An estimate does not import in itself and conclusively absolute verity. Its value as helping to ascertain who is the lowest bidder, does not arise from its being made, but from its correspondence with the work to be done.

Testimony as to the proposed improvement might show that it was possible to make a proper estimate and that such was not made, or that it was not possible to make such, and that therefore the estimate as made offered no means of concluding whether a bidder upon its terms would he the lowest bidder for the work, in fact, to be done.

The truth as to the estimate in the present case is that it was very far from an approximately correct description of the work. The work done of excavation was of 18,973 cubic yards. The estimate called for the excavation of 16,000 cubic yards. There were in fact 15,033 yards of earth excavated. There were 3,943 yards of rock excavated, The estimate named 9,000 yards.

The official who made the estimate was in ignorance of the quantity of work to be done and of the proportion of rock and earth. He and no one, could say, that the estimate was correct. He could not believe that it was. At the best it was a guess. These things appear in the facts and documents in testimony on the trial, and the defendant was not allowed to give testimony as to the facts of the proposed improvement, that would have helped to determine the character of the estimate as a description of the work to be done.

_ If on all the facts it should be inferred, that the quantities of the estimate were only guesses which might or might not turn out to be true, then I am of opinion, that as matter of law it was illegal and against the statute to find that the plaintiff, rather than others, was the lowest bidder. It was matter of chance at that time as to who was the lowest bidder. Jones v. Randal, Cowp., Vol. 1, 37, W.

It is argued that such a train of reasoning disregards the-fact that in estimates made before the awarding of the-contract, there niust be uncertainty. This is true, but that kind of uncertainty is not the result of an omission to use-the best means of making certainty as great and uncertainty as slight as is practically possible. In the present-case, the facts may show that proper means were not used to make the estimate certain to any extent, but that as to rock and earth it was altogether uncertain.

It may perhaps be said that there were no means of making a reasonably certain or approximately correct estimate. If that were the case and for that reason, it could not be ascertained who was the lowest bidder, it is not a justification of awarding a contract under the statute as if there were a known lowest bidder.

Truax, J.

(dissenting).—I do not agree with the conclusion of the majority of the court.

At the time the act of 1882 was passed (chapter 410) there-was an ordinance of the common council of this city in force which provided the way in which it should be determined who was the lowest bidder. This ordinance the legislature continued in full force and effect by section 84 of chapter 410. When the legislature enacted this law they in effect made the ordinance of the common council which was then in force, a part of the Law of 1882, and pointed out the way in which it should be determined who was the lowest bidder.

The method of determining who was the lowest bidder that was used in this case is the method that has been in use in this city for a great many years, and particularly since the charter of 1873 was passed, in which charter there was a provision similar to section 64 of chapter 410 of the Laws of 1882.

The legislature knew the interpretation that - was put upon the charter of 1873, and it is entirely fair to infer that if the construction put upon the act of 1873 by the public authorities of the city did not carry out the intent of the legislature, other language would have been adopted in the act of 1882, which would have carried out that intent.

The re-enactment of the provision of the charter of 1873, above referred to, by the legislature in 1882, should be deemed to be an adoption by the legislature of the construction put upon the act of 1873 by the city authorities. People ex rel. Outwater v. Green, 56 N. Y., 475.

This construction has almost the force of a judicial exposition. People ex rel. Williams v. Dayton, 55 N. Y., 367.

In this connection it is to be noticed that section 64 of chapter 410 requires the counsel to the corporation to settle the term of the contract as an act of preliminary specification to the bid or proposal,” and that the contract sued on here contained the very surveyor’s estimate of the nature and extent of the work to be done which the majority of this court thinks did not furnish a basis on which to let the contract, and was settled by the law officer of the city.

That this method of determining who is the lowest bidder is not illegal is supported, I think, by the case of, In the Matter of the Petition of Merriam (84 N.Y., 601.)

The principal contention urged against the validity of the assessment which was the subject of review in that case was, that the work was not let to the lowest bidder as required the charter and the ordinances of the common council of the city of New York, because the items of rock excavation were not submitted to competition, but a price was arbitrarily fixed therefor by the commissioner of public works.

Judge Miller in writing the opinion of the court in this case, called attention to the fact that the ordinance, chapter 8, article 2, requires that “ supplies and work shall be furnished by contract; that no contract shall be made until proposals are advertised for; and, that they shall state the quantity and quality of the supplies or the nature and extent as near as possible of the work required.” Sections 15, 16, 17, title 2.

The city claimed that it would be exceedingly difficult to ascertain beforehand the quantity of rock excavation, which constituted the largest item in the contract, so as to make an estimate sufficiently correct to carry out the purpose of letting the contract to the lowest bidder.

These suggestions, continues Judge Miller, ‘ ‘ are not without force, and while there is strong ground for the claim that the price fixed for one or more items is fair and reasonable, and'there is no evidence of fraud or extravagance, and the quantity could not be ascertained without a considerable expenditure of money, and that this could be done in some instances consistently with the interests of the public in view, and with the statute and ordinances we are, upon the whole, of the opinion that to carry out the intention of the law to award contracts to the lowest bidder, it is requisite that the quantity of rock excavation as near as possible should be stated in the proposals, and that fixing the price for the same was in disregard of the law, and a violation of the statute and the ordinance of the city which is cited.”

And again he says: that “the intention of the lawmakers was to enforce a submission of every important item for competition, naming the quantity so far as it could be reasonably ascertained.”

It seems to me that the way provided by the regulations and ordinances of the common council is the only reasonable way in which the city could submit proposals for work to be done, and that the city is protected by the power which is given to the head of the departments to reject all bids and re-advertise the work anew.

The only other way in which work could be let would be by submitting the whole work in a lump to competition, the effect of which would be to restrict competition.  