Kneeland v. Furlong

Downer, J. Tbe only question we deem it necessary to consider is, whether tbe street commissioners, in letting tbe contract pursuant to wbicb tbe certificates sought to be set aside as void were issued, violated tbe provisions of sec. 1, cb. x, of tbe city charter. Tbat section is as follows, “ All work for tbe city or either of the wards shall be let by contract to the lowest bidder, and due notice shall be given of tbe time and place of letting such contract.” The notice given, signed by the street commissioners, is as follows : [439] “Notice to CONTRACTORS. — Sealed proposals will be received by tbe undersigned till Wednesday, tbe 16tb inst, at 6 o’clock, p. M., to farnisb all materials and do tbe following work, to wit: “ To pave tbe gutters with cobble stones, on botb sides of tbe following streets, in front of all lots fronting on said streets, where tbe same is not now done, according to tbe order of tbe street commissioners, viz: Division street from tbe river to tbe lake. “ “■ “ “ bayou “ “ Oneida “ “ “ “ “ “ Mason “ “ Milwaukee street to tbe lake. Wisconsin street, on tbe first ward side, from East Water street to Jefferson street. “Also to grade tbe following streets and sidewalks on botb sides of tbe same, viz: Ogden street from Milwaukee street to Racine street. Lyon “ “ “ “ “ “ North Water street from Milwaukee street to Racine street. Jackson Division Pleasant Tan Burén Marshall “ “ Ogden .“ “ “ Jefferson “ “ Knapp “ “ “ Lake “ “ Oneida “ Division “ “ Tbe commissioners reserve tbe right to divide tbe work according to tbe ability of tbe contractors to do tbe same, or as they may think for tbe best interest of tbe property affected, and that of tbe public. No bids will be received for only tbe work in front of a single lot, and all work contracted for will be required to be commenced immediately, on tbe execution of a contract, and completed without delay. Bids may be banded to either of tbe undersigned, or addressed through tbe post office.” Work cannot be let by contract to tbe lowest bidder, within tbe meaning of tbe city charter, unless tbe bidders are inform [440] ed, before bidding, of the terms or principal stipulations of the contract each successful bidder is to enter into. Bidders should be informed, either by the notice of the letting or by the specifications in the proper office to which it refers, of the terms of the contract; at least of the quantity or amount of work, whenever it can be specified, to be included in any one contract; the time within which it is to be finished ; the manner in which it is to be done; and, if materials are to be furnished, their quality. All this we think the charter requires. Did the notice in this case give such information ? It does not inform us how much of the proposed work would be included in any one contract. The appellant contends that the street commissioners were bound to receive the bids of individual lot owners to do the work in front of their own lots, or at least bids for single lots. We are of a different opinion. After the notice to the owners had been given, and they had failed to do the work, it then became the duty of the commissioners to let the work by contract to the lowest bidder. And how much work should be included in one contract, they should, before giving notice, determine, and in the notice make known. In determining how much work they would let by one contract, and how much by another, they should so act as in their judgment to secure the greatest competition in bidding. It would seem reasonable that they should divide the work into comparatively small portions, where it was of such a character that it did not require one contract for the whole, so that small contractors might bid, and large contractors would not be prevented, as they might take several contracts. This matter, however, is entrusted to the discretion of the commissioners. But to let work by contract to the lowest bidder, when the bidder can be informed before his bid, but is not, of the quantity of the work he is to do, is not left to their discretion. The division of the work which the commissioners in the notice reserved to themselves the right to-make after receiving the bids, should have been made before. To permit them to do this after the bids, would encour [441] age favoritism, fraud and corruption, and practically abrogate the provisions of tbe charter under consideration. Eor under the reservation in the notice they might give contracts to any favorite bidder, although he was not the lowest, under pretense that the public interest required it, or that he was the lowest bidder for the whole, or a large proportion of the work, when there were lower bidders for smaller portions. Besides, the want of proper and certain information must always tend to discourage bidders, and prevent fair competition. We therefore hold the contract with Furlong void. See Kneeland v. City of Milwaukee, 18 Wis., 411; Wells v. Burnham, [ante, p. 112], and cases there cited. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings.