Urbany v. City of Carroll , 176 Iowa 217 ( 1916 )

Ladd, J.

1. municipal corments -^on^re-" effect.ive blds: The preliminary proceedings for the pavement of certain streets in the city of Carroll had been regular, form of contract and plans and specifications prepared, and an advertisement for bids duly published, Printed forms were furnished those desiring to I*1 bte bid, the Western Improvement Company proposed to perform ! ‘ in accordance with the plans and upon the terms and conditions of the specifications, printed advertisement and form of contract therefor. ” After stating in detail prices for so doing, it proceeded:

‘ ‘ In case our bid is accepted, we agree to sign the contract and furnish the required bond within 10 days after the contract has been awarded to us and have the improvement completed on or before Dec. 1st, 1916. ’ ’

In the other bid, that of J. S. McLaughlin & Sons, which was accepted, notwithstanding the fact that it was $1,718.70 higher than that of the Western Improvement Company, the date inserted for completion was Nov. 1, 1916. The date “Dec. 1st,” in the bid of the Western Improvement Company, was written in. The form of contract exacted performance according to the specifications, and these provided that the contractor should have the improvement entirely completed on or before November 1, 1916, and that “the time limit shall be considered as extending between May 1, 1916, and November 1, 1916.” The specifications further provided that a certified check of $3,000 be deposited with each bid as a guarantee that he will enter into a contract with the city for doing the work in strict accordance with the plans and specifications and in accordance with his bid and that “said check shall be forfeited . . . if he fails to enter into such contract. ’ ’ Another condition says that, on failure to complete the work in the time specified, the contractor shall forfeit $25 per day “for each and every day that elapses between the time specified for completion and the time it is actually completed,” and the amount thereof shall be deducted from any money owed to the contractor. It seems clear that the bid of the Western Improvement Company was not responsive to the proposition presented by the plans and specifications. These fixed November 1st for the completion, while the company proposed, if it were awarded the contract, to have the improvement done December 1st. The time of completion of the improvement was a material part of the specifications, and a bidder had no more right to change it than to change the materials to be used or the manner of preparing them. Osburn, v. City of Lyons, 104 Iowa 160. If a change of one month may be made, why not a year? 2. Municipal corPORATIONS: meÁis-hFdsP' rejection of surplusage. Of course, the contract must be let to the lowest responsible bidder, and mere irregularities in the form of the bid will not justify its rejection, for these may be corrected, in entering into the contract, after the bids are opened. Faist v. Mayor, etc., of City of Hoboken (N. J.), 60 Atl. 1120; 1 Abbott’s Mun. Corp., Section 263. Thus, in Miller v. City of Oelwein, 155 Iowa 706, bids for three kinds of pavement were called for, and that of the lowest bidder in kind adopted was to lay “bitulithic or its equal pavement, using bitulithic or its equal,” and the court there said:

“Ford knew that the council had no authority to advertise for ‘ bitulithic or its equal pavement, ’ and that it had not purported to do so, and, when he proposed to lay bitulithic or its equal pavement at a specified price, he authorized the council to accept his proposal for bitulithic pavement without condition. His bid was framed in his own terms, and he was bound to assume that the council might give it a construction which would render it valid and binding rather than a construction which would vitiate it and render it a farce. We think that there was no such doubt or uncertainty as to the effect of Ford’s bid as to justify the council in refusing to consider it.”

No contradiction was involved. Part of the bid was responsive to the proposal and part was not; and as these were severable, the court held that the portion not responsive should be treated as surplusage. There was nothing to reconcile them, while here the dates of completion are different, and the sole question is, Which shall prevail in the construction of the bid? The authorities agree that there must be a substantial compliance with the proposal to warrant the consideration of the bid, else bidding would not be on equal terms, and the advantages of competition lost. Unless the bid responds to the proposal in all material respects, it is not a bid at all, but a new proposition. It will be noted that, though the specifications fix the time for completion as November 1, 1916, the payment of $25 per day as damages is to be for each day that completion of the work is delayed beyond the time fixed by the contract, and that the deposit of a check accompanying-the bid is as a guarantee that the bidder will “enter into contract with the city for doing the work in strict accordance with the plans and specifications and in accordance with the bid.”

3. construouoñ: written and síons: statutory 4. Contracts : construction: conflicting written and printed provisions : scope of statutory rule. The printed portion of the bid of the Western Improvement Company was that it lay the pavement “upon the terms and conditions of the specifications . . . and form of contract therefor” at prices stated, and, in event of acceptance, it would have the improvement entirely completed on or before December 1, 1916. Ordinarily, where the specification is in general terms, a subsequent reference thereto in more specific language operates to qualify. the words first employed. Also, the words “Dec. 1st.” were inserted in writing, and “when an instrument consists partly of written and partly of printed form, the former controls the latter, if the two are inconsistent.” Section 4616, Code; Sylvester v. Ammons, 126 Iowa 140. This statutory rule doubtless is based on the theory, established by experience, that the writing necessarily has been deliberately inserted, and therefore is more likely to have represented the intention of the party or parties than inconsistent language printed. The reason of the rule precludes its limitation to parties other than municipalities, and, as it is statutory, it will not give way to the rule of construction suggested by appellant that the first of two contradictory provisions ordinarily will prevail. The bid then must be construed as offering to complete the improvement by December 1, 1916, instead of November 1st of the same year. It was to be read as though the company had stated that it would not undertake to lay the pavement by-the time proposed, but would do' so in another month, or on or before December 1st; and this was confirmed by the attitude of its representative, wbo was present when the bids were opened and made no suggestion of a mistake's having been made in the date. The bid was not in response to the city’s proposal, but on terms of the company’s own choosing, and was rightly rejected. The city might have rejected all bids, but that matter was for the council to decide, and, having determined to let the contract, it was authorized to so do with the lowest bidder who had offered to complete as proposed by the city.

The decree of the district court is — Affirmed.

.Evans, C. J., Gaynor and Salinger,'JJ., concur.