Opinion
No. 25110
Decided June 5, 1935.
State highway department — Director may execute unit price contract, when — Section 1207-1, General Code — No hidden meaning or uncertainty in term "unit price" — Specific dimensional yardage constitutes unit, when — Error in engineer's estimate of minimum tonnage required — Contract payment reduced by unit tonnage price — Finality of decision of Director of Highways — Exclusive power to interpret contract, not conferred — Auditor of State may refuse to issue warrant, when.
1. The Director of Highways of the state of Ohio is given plenary power to enter into "unit price" contracts for the construction, improvement, repair and maintenance of state highways, by virtue of Section 1207-1, General Code.
2. While the "unit price" contract is a departure from the long-established law governing public highway contracts in Ohio, the term "unit price" has no hidden or uncertain meaning.
3. Where the provisions of a contract for re-surfacing call for a specific dimensional yardage with a minimum content of bituminous concrete of a particular brand, each yard with such minimum content constitutes a unit within contemplation of such contract.
4. If, after the completion of such contract and such dimensional yardage is delivered to and accepted by the state, it is discovered that an error was made in the estimate prepared by the engineer and carried into the contract, and the dimensions provided for therein would not take the minimum tonnage by 757 tons, the contractor is not entitled to a warrant on the state treasury for the full dimensional yardage, but the yardage unit contract price should be reduced in an amount ascertained by multiplying the number of unused tons by six dollars, the amount fixed to establish unit price. Such saving inures to the benefit of the state, under Section 1207-1, General Code.
5. A provision in such contract whereby it is agreed that the decision of the Director of Highways shall be final is a salutary one and will be upheld in so far as the mechanics of the contract are concerned, but such provision does not carry to the director exclusive power to interpret such contract.
6. Section 243, General Code, enjoins it as a duty upon the Auditor of State to examine each voucher presented to him, and unless he finds it to be a valid claim against the state, legally due, and that there is money in the state treasury duly appropriated to pay it, to refuse to issue his warrant on the Treasurer of State, and he was right in refusing to issue the warrant in this case.
IN MANDAMUS.
On the twenty-eighth day of November, 1934, the relator filed its petition for a writ of mandamus in this court, as follows:
"Joseph T. Tracy is the duly elected, qualified and acting Auditor of State of the State of Ohio.
"The S. Monroe and Son Company is a corporation duly incorporated under the laws of the State of Ohio, and has its principal place of business in the City of Portsmouth, and is engaged in the general contracting business.
"O.W. Merrill is, and at all times mentioned herein was, the duly appointed and acting Director of Highways of the State of Ohio, and as such he has the general supervision of the construction, improvement, maintenance and repair of all roads comprising the State Highway System of the State of Ohio.
"Said Director of Highways, on June 1, 1931, by advertisement in conformity to law, invited bids to be received at the office of the State Highway Director, Columbus, Ohio, until two o'clock P. M. Eastern Standard Time, Friday, June 19, 1931, for the following improvements, as shown by the notice to contractors, which contained the following provisions:
" '(Projects or proposals Nos. 1 and 2 to be awarded to the same contractor as one contract).
"Proposal No. 1." 'Brown County, Ohio. Sections "P" and "Q" of the Millford-Hillsboro Road, S. H. No. 9, U.S. Route No. 50. Perry Township, by widening the concrete and surfacing with T-5 or T-26.
" 'Estimated cost of construction $72,823.91. Width: pavement 20 ft. Length: 40,849 ft. or 7.737 miles.
" 'Proposal No. 2." 'Highland County, Ohio, on Sections "L" and "K" (part) of the Millford-Hillsboro Road, S. H. No. 9, U.S. Route No. 50, in Dodson Township, by widening with concrete and surfacing with T-5, T-25 or T-26.
" 'Estimated cost of construction $29493.63. Width: pavement 20 ft. Length: 16,833 ft. or 3.112 miles.
" 'Date set for completion, November 15, 1931.
" 'The bidder must submit with his bid a certified check in an amount equal to five percent of the estimated cost, but in no event more than ten thousand dollars.
" 'Plans and specifications are on file in the office of the Director of Highways and the Resident District Deputy Director.
" 'The director reserves the right to reject any and all bids.
" 'O.W. MERRILL,
" 'State Highway Director.'
"Said above named highways are a part of the highway system of the State of Ohio.
"That in pursuance of and in compliance with the requirements of said invitation, the relator herein submitted and filed at the office of said State Highway Director, before 2:00 P. M. Eastern Standard Time, Friday, June 19, 1931, the following proposals:
" 'PROPOSAL NO. 1.
Est. Unit Total " 'Item Approx. Unit Totals Price Amount No. Quantity Item Cost Bid Bid
R-1 4,413 cu. yds. excavation (unclassified) including widening and super elevation of curves .40 1,765.20 T-7 18,155 sq. yds. 2' x 7" concrete widening mix .. 1.37 24,872.35 I-6 81,698 lin. ft. 1 1/2' x 9" integral concrete curb 1-5 1/2 mix .95 4,084.90 T-1 400 tons No. 34 crushed stone (sec. 3.1) for wedge course for super elevating curves rolled in place ............... 2.50 1,000.00 T-25 84,562 sq. yds. bituminous concrete 1 3/4" average compacted depth using minimum of 7400 tons ... .47 39,744.14 T-25 1 ton bituminous concrete in place (to es-tablish unit price) 6.00 xxxxxxxxx 6.00 xxxxxxxxx lights, signs and barricades ............. 50.00 50.00 50.00 Premium on state insurance 500.00 500.00 500.00 --------- --------- "Total roadway proper .. 72,823.91 72,016.59'
"This proposal dated June 19, 1931, was for improving sections P. and Q. of the Millford-Hillsboro Road in Brown County, Ohio, U.S. Road No. 50 S. H. No. 9, Perry Township, in accordance with plans and specifications for widening with concrete and surfacing with T-25. Width: pavement 20 feet; length, 40,849 ft., or 7.737 miles.
"PROPOSAL NO. 2.
Est. Unit Total " 'Item Approx. Unit Totals Price Amount No. Quantity Item Cost Bid Bid
R-1 1,818 cu. yds. excavation (unclassified) including widening and super elevation of curves .. .40 727.20 T-7 7,481 sq. yds. 2' x 7" concrete widening 1-5 1/2 mix .......... 1.37 10,248.97 T-6 33,666 lin. ft. 1 1/2" x 9" integral concrete curb 1-5 1/2 mix .......... .05 1,683.30 T-25 34,601.2 sq. yds. bituminous concrete surface course 1 3/4" average compacted depth using a minimum of 3028 tons ................. .47 16,262.56 T-25 1 ton of bituminous concrete in place (to establish unit price) 6.00 xxxxxxxxx 6.00 xxxxxxxxx Lights, signs, barricades ........... 20.00 20.00 20.00 Premium on state insurance ............ 150.00 150.00 150.00 --------- --------- " 'Total .......... 29,493.63 29,092.03'
"Said proposals among other things contained the following provisions:
" 'The undersigned, having full knowledge of the site, plans and specifications for the above improvement, hereby agrees to furnish all services, labor, materials and equipment necessary to complete the same by November 15, 1931, according to the plans and specifications and to accept in full compensation for the work for each item in the proposal the Unit Prices specified below.
" 'The total amount of the bid, based on the approximate quantities given below and the Unit Prices specified by the bidder amounts to the sum of . . . $72016.59
" '(in ink)
" 'The Unit Prices specified in the column marked "Unit Price Bid" will govern the award of the contract. The total given above is only for the convenience of the Director in reading bids.
" 'The quantities in the column headed "Approximate Quantities" are those given in the Engineer's Approximate Estimate and are those which will be used in determining the total amount of each proposal for this improvement and for the purpose of determining the lowest bidder. It is understood and agreed that these quantities are approximate only. The bidder must give a unit price for each item named. Failure to do so will render the bid informal at the discretion of the Director.
" 'Note: The contractor shall make the extension in this column and also add up the totals. However, the unit prices specified, together with the approximate quantities shall determine the total amount of the bid. If there is an error made in the extensions by the bidder the total shall be changed as only the unit prices shall govern. Where there is an item designated as "lump" the contractor shall enter his bid in the unit price column as well as in the total amount column.'
"That said Director of Highways thereafter, on the 22nd day of June, 1931, having determined that the relator was the lowest and best bidder for the respective projects indicated in said proposals, made an award to the relator, as follows:
" ' Brown Highland — S. H. 9., Sections P. Q. and L. K. (part), the S. Monroe and Son Company, Portsmouth, Ohio, by widening with concrete and surfacing with T-25, Pro. 1 $72,016.59; by widening with concrete and surfacing with T-25, Pro. 2 $29,092.03. ------------------ $101,108.62
" 'On condition that the above contractors comply with provisions of Section 1206 G. C. and on the further condition that the Director of Finance makes proper certification as to availability of the state's share of the funds necessary for the work.'
"On June 22, 1931 — the said Howard L. Bevis, Director of Finance certified that there was sufficient funds in the appropriation to the Department of Highways not otherwise obligated to pay for Proposal 1 $80,093.00 — Proposal 2 $32,099.06, with assistance of the state's share of the proposal contract for the improvement of Millford-Hillsboro Road, Section PQLK (part) S. H. 9, County of Brown and Highland and the estimated cost of engineering and supervision.
"That upon the acceptance of said bid or proposal made by the relator for performing said work, it gave a good and sufficient bond, payable to the State of Ohio, as required by law, for the faithful performance of the terms and conditions of the contract to be performed, which bond was duly accepted and approved by the said Director of Highways.
"That on the 7th day of July, 1931, an agreement was duly entered into between said State of Ohio, called party of the first part, and the S. Monroe and Son Company of Portsmouth, Ohio, called party of the second part, whereby in consideration of the payments therein mentioned to be made by the party of the first part, the party of the second part agreed to furnish all materials and all appliances, tools and labor to perform all of said work, according to the plans and specifications and estimates and to the satisfaction and acceptance of the party of the first part and subject to inspection at all times and approval of the U.S. Secretary of Agriculture or his agent; and the party of the second part further agreed that the following papers be bound with or accompany and be an essential part of the contract: notices to contractors, plans and specifications, agreement, contract bond, and approximate estimate and proposal.
"In consideration of the premises, the party of the first part agreed to pay to the party of the second part the appropriate sum of $101,108.62. The actual sum to be paid, however, will be the aggregate total determined by the work actually performed by the party of the second part calculated upon the unit price set out in the proposal of the S. Monroe and Son Company which was attached and made a part of said contract.
"Said contract contained the following provisions:
" 'The bidder is required to examine carefully the site of, and the proposal, plans, specifications and contract form for the work contemplated; and it will be assumed that the bidder has investigated and is satisfied as to the conditions to be encountered, as to the character, quality and quantities of work to be performed and materials to be furnished, and as to the requirements of these specifications, special provisions and contract. It is mutually agreed that submission of a proposal shall be considered prima facie evidence that the bidder has made such examination.
" 'The directions, provisions and requirements contained herein as supplemented by such special provisions as may be necessary, pertaining to the method and manner of performing the work or to the quantities and qualities of materials to be furnished under the contract. Special provisions are specific clauses setting forth conditions or requirements peculiar to the project under consideration and covering work or materials involved in the proposal and estimate but not satisfactorily covered by these general specifications. Supplemental agreements are written agreements executed by the contractor and by the Director covering alterations necessary to the project as hereinafter provided.
" 'The party of the second part further covenants and agrees that the following papers shall be bound with or accompany, and be an essential part of this contract: notices to contractors, plans and specifications, agreement, contract bond, and approximate estimate and proposal.
" 'These specifications, the plans, special provisions and all supplemental documents are essential parts of the contract, and a requirement appearing in one is as binding as though appearing in all. They are intended to be cooperative, to describe and provide for a complete work. In case of discrepancy, figured dimensions shall govern over scale dimensions, plans shall govern over specifications, special provisions shall govern over both specifications and plans.
" 'The quantities listed in the proposal forms are to be considered as approximate and are to be used for the comparison of bids. Payments, except for lump sum contracts, will be made to the contractor only for the actual quantities of work performed or materials furnished in accordance with the plans and specifications and it is understood that the quantities of work to be done and materials to be furnished may each be increased or diminished as hereinafter provided without in any way invalidating the unit bid prices.
" 'For all other than lump contracts, after the work is completed and before final payment is made therefor, the engineer will make final measurement to determine the quantities of various items of work performed, as the basis for final settlement. The contractor, in all cases, will be paid for the actual amount of work performed in accordance with these specifications as shown by the final measurements, if on a unit price basis.
" 'The intent of the plans and these specifications is to prescribe a complete work or improvement which the contractor undertakes to do in full compliance with the plans, these specifications, the special provisions, proposal, and contract. They are to be cooperative and what is called for by either is as binding as if called for by both. Should any misunderstanding arise as to the intent or meaning of said plans or specifications, or any discrepancy appear in either, the decision of the Director in such case shall be final and conclusive.
" 'The Director shall decide any and all questions which may arise as to the quality or acceptability of materials furnished and work performed and as to the manner of performance and rate of progress of the work and shall decide all questions which may arise as to the interpretation of the plans and specifications, and all questions as to the acceptable fulfillment of the contract on the part of the contractor, and as to compensation. His decisions shall be final and he shall have executive authority to enforce and make effective such decisions and orders as the contractor fails promptly to carry out.'
"That the said relator in pursuance of said contract entered upon the performance of the same, under the supervision and control of the said Director of Highways, and said work was fully completed in accordance with the plans and specifications and within the time required by the contract and to the satisfaction and acceptance of said party of the first part, and the said Director of Highways prepared estimates from time to time for the amount of work performed by the relator under said contract, and issued the necessary vouchers therefor, which were duly paid to the relator
"That on the 18th day of September, 1931, the 30th day of September, 1931, and the 15th day of October, 1931, the Director of Highways prepared progress estimates of the work performed by said relator on Proposal No. 1, true copies of which are attached hereto and made a part hereof and marked 'E', 'F', and 'G', respectively. That pursuant to said progress estimates, the Auditor of State issued his warrant on the Treasurer of State for payment of the item of bituminous concrete on the unit price basis of $0.47 per square yard.
"That on the 17th day of November, 1931, said Director of Highways prepared estimate No. 7-Final of the work performed by relator on proposal No. 1, and on the 15th day of November, 1931, said Director of Highways prepared Estimate No. 3-Final of the work performed by relator on Proposal No. 2, true copies of which are attached hereto and made a part hereof and marked 'A' and 'B', respectively.
"That on the 17th day of February, 1933, the said Director of Highways prepared supplemental estimates of the work performed by said relator for each of said proposals, true copies of which are attached hereto and made part hereof and marked 'C' and 'D', respectively.
"That the relator in the performance of said work furnished and laid 119,163.2 square yards of bituminous concrete, 1 3/4" average depth for which under the terms of said contract the relator is entitled to be paid the sum of $0.47 per square yard, which is the unit price therefor, which said square yards weighed 757.55 tons less than estimated by the said Director of Highways necessary for performing said work.
"That the said Director of Highways, after careful examination, found that the estimated tonnage of 7400 tons in Proposal No. 1 and the estimated tonnage of 2083 tons in Proposal No. 2 was a mistake and the same was 757.55 tons in excess of the true tonnage required to construct said road as required by the plans and specifications.
"That in accordance with said supplemental estimate, dated the 17th day of February, 1933, and on the same day, the said Director of Highways executed a voucher payable to the relator in the sum of $4545.30 which was the balance then due relator for the performance of said work. Said voucher is in the words and figures following:
" 'Department of Highways Voucher 58140 Columbus, Ohio March 17, 1933.
" 'To The S. Monroe Son Company Portsmouth, Ohio
" 'County:
" 'Brown: Est. #8 Final Supplemental Contr. 4816-1 Sec. P G. I. C. H. #9 Millford Hillsboro Rd. Feb. 25 1933 3120.00 " 'Highland: Est. #4 Final Supplemental Contr. #4816-2 Sec. W. K P. I. C. H. #9 Milford Hillsboro Road February 25, 1933 1425.30 -------- 4545.30
" 'To the Auditor of State:
" 'Issue Warrant to The S. Monroe Son Co., 2640 Gallia St. Portsmouth, Ohio.
" '13 A — H I F 40 H B #624
" 'It is hereby certified that necessary services have been rendered for the amount herein stated in pursuance of a specific appropriation made by law; that the account is correct and duly approved for payment.
" ' W.D. VAN NESS, Auditor
" 'O.W. MERRILL, Director of Highways.
" '(Stamped)
" 'March 23, 1933
" 'Certified for payment
" 'Dept. of Finance'
"That said voucher was duly transmitted by the Director of Highways to said Joseph T. Tracy as Auditor of State, who received the same and he wrongfully and unlawfully refused to issue a warrant on the Treasurer of the State of Ohio in favor of relator for the payment of the amount thereof, to-wit: $4545.30.
"WHEREFORE, relator prays that a writ of mandamus issue commanding said Joseph T. Tracy, as auditor of State to deliver a warrant on the Treasurer of State in favor of relator for the said sum of $4545.30."
To this petition, on December 29, 1934, the respondent filed the following answer:
"Now comes Joseph T. Tracy, defendant herein, and admits that he is the duly elected, qualified and acting Auditor of State of the state of Ohio; admits the existence of the contract, certain provisions of which are set forth in plaintiff's petition; admits that the plaintiff in pursuance of the said contract completed the work called for therein and within the time specified therein to the satisfaction and acceptance of the Director of Highways of the state of Ohio; admits that the said Director of Highways prepared estimates from time to time for the amount of work performed and materials furnished by the relator under said contract, under which estimates previous vouchers were made and filed by him with this answering defendant; admits that warrants were by this defendant issued and paid upon each and all of such vouchers as drawn by the Director of Highways, excepting only the last mentioned voucher described in the plaintiff's petition; admits that the Director of Highways on the 17th day of February, 1933, executed the voucher mentioned and described in the petition in favor of the plaintiff in the sum of $4,545.30, upon the presentation of which respondent declined to draw his warrant for reasons hereinafter stated.
"Further answering herein, this respondent says that the contract mentioned in plaintiff's petition embraced two proposals, numbers 1 and 2, and that proposal number 2, in addition to the matters set forth in the petition, also required the contractor to lay 34,601.2 square yards of bituminous concrete surface 1 3/4 inches average compact depth, using a minimum of 3028 tons of said bituminous concrete mixture for a distance of 3.12 miles; and the two proposals covered a distance of 10.849 miles, the first proposal calling for a minimum aggregate of 7400 tons and the second proposal 3028 tons, requiring a total minimum of 10,428 tons. Said contract, proposal and general specifications are hereto attached and marked as Exhibit A and made a part hereof. That under the provisions of said exhibits, the contract in question was a unit price one, under which there was actually used 757.55 tons less than the originally estimated minimum total specified in the original estimates and proposals, and the Director of Highways did not compute the sum of $6.00 per ton, required by said contract, upon the tonnage actually used as shown by the measurements of the engineers and as admitted in the relator's petition, and this respondent failed and refused to draw the warrant asked for in relator's petition for the reason that the manner of computation and the amount thereof is in error in that it is in excess of the actual compensation due the relator in said amount of 757.55 tons.
"Further answering, this respondent says that he is required by the provisions of Section 243, General Code, to examine all vouchers before issuing warrants, and in the event that the actual compensation earned by the contractor is less than the estimate, upon a unit price contract, such as the one under consideration, this respondent is required by the provisions of Section 1207-1, General Code, to find and determine in favor of the state of Ohio, but said tonnage, namely 757.55 tons, was not furnished in the completion of relator's said contract and said amount of $4,545.30 is for said unfurnished tonnage, the warrant for which respondent refused and still refuses to issue.
"Wherefore, this respondent prays that a writ of mandamus be refused, that the petition of plaintiff be dismissed and that he may go hence without day and recover his costs herein expended."
To this answer the relator filed a general demurrer, so that the only question before this court is whether the facts alleged in respondent's answer constitute a defense to the action stated in relator's petition.
Messrs. Druggan Gingher and Messrs. Miller, Searl Fitch, for relator.
Mr. John W. Bricker, attorney general, and Mr. J.A. Godown, for respondent.
In order to intelligently pass on the demurrer herein, the petition, excepting therefrom the exhibits "A," "B," "C," "D," "E," "F," and "G," attached to the petition, and the answer, have been fully set out herein. Four of the exhibits are photostatic copies of the final and supplemental estimates on the two proposals that constituted the basis of the contract. These estimates portray the real bone of contention in this action, but because of their volume they are not set out and when necessary they will be referred to by their letter designation.
The controversy grows out of Highway Project No. 183 in Brown and Highland counties. Because of the fact that the improvement was in two counties, two proposals were asked for by the State Highway Director, Numbers 1 and 2, but it was stipulated that the award was to be made to one contractor as one contract. The contract was designated "Unit Price Contract." Relator thereupon submitted two proposals.
In Proposal No. I we find the following specifications:
"T-25 84,562 sq. yds. bituminous concrete 1 3/4" average compacted depth, using minimum of 7400 tons. Unit Price Bid 47 cts. Total Amount Bid $39,744.14."
In Proposal No. 2 the following specification appears:
"T-25 34,961.02 sq. yds. bituminous concrete surface. course 1 3/4" average compacted depth using a minimum of 3028 tons. Unit Price Bid 47 cts. Total Amount Bid $16,262.56."
We learn through the brief of counsel that T-25 is the trade name for the particular bituminous concrete required to be used on the project.
Relator was awarded the contract for this improvement and it agreed and contracted to do the work and furnish all materials according to the plans, specifications and estimates of the State Highway Director, at a stipulated price. This contract, after setting out the contract price, further provides that "The actual sum to be paid, however, will be the aggregate total determined by the work actually performed by the party of the second part, calculated upon the unit price set out in his proposal hereto attached and made part hereof."
The fact that this is a unit price contract cannot be escaped. A square yard of highway built according to plans and specifications was the ultimate unit. This unit, like most units, has component parts. Reference to the specifications makes it plain that each of them that could be calculated in square yards was so calculated.
In each proposal we find the following specification, "1 ton of bituminous concrete in place (to establish unit price) $6.00."
The total yardage on this project was 119,163 sq. yds. The total tonnage of bituminous concrete was 10,428 tons. Reducing the tons to pounds we have 20,856,000 pounds. Dividing the number of pounds by the number of square yards we find that each square yard of highway of 1 3/4 inches average compacted depth should, according to such specification, contain 175.02 pounds, or in round numbers 8.75 per cent of a ton of bituminous concrete. But, to use the vernacular of relator, the 1 3/4 inches average compacted depth just "would not take" the tonnage specified in the contract, but that it did take 9670.45 tons, making a difference of 757.55 tons between the estimated tonnage and the tonnage actually required to complete the work. Reducing the tons used to pounds, we have 19,340,900 divided by 119,163 sq. yds. which gives 162.3 pounds, or in round numbers 8.11 per cent of a ton. From this calculation we learn that 12.72 pounds or sixty-four one hundredths of one per cent of a ton per square yard less was used than was called for by the specifications.
To whose benefit does this inure?
Suppose, instead of being 757.55 tons long on tonnage according to the plans and specifications, it had developed that it was 757.55 tons short?
Then the contractor would have had to furnish 757.55 tons more of bituminous concrete than was set forth in the specifications and, on the unit contract basis, he would have been entitled to receive pay therefor.
The unit price contract is provided for by Section 1207-1, General Code: "The director may, if he deems it expedient, enter into any contract authorized by this act upon a unit price basis. Where a contract is entered into upon a unit price basis, the contractor shall be required to state in his bid the sum for which he offers to perform each unit of each different kind or class of work and upon the completion of the work the quantities of each kind or class of work shall be measured and the contractor paid only for the quantities of work actually performed by him. Where the director elects to enter into a contract upon a unit price basis he may include in the estimate such reasonable sum as he may deem necessary to cover variations in the actual quantities of work as compared with the estimated quantities. In the event the actual compensation earned by the contractor exceeds the estimate, any such excess shall be paid from any funds of the department which might lawfully be expended upon the improvement in question. In the event the actual compensation earned by the contractor is less than the estimate, the saving shall inure to the benefit of the state."
Outside of the courts, the Auditor of State, the officer against whom this action is directed, has the last word in so far as the legality of state contracts is concerned. He is invested with the power under virtue of Section 243, General Code:
"The auditor of state shall examine each voucher presented to him * * * and if he finds it to be a valid claim against the state and legally due, and that there is money in the state treasury duly appropriated to pay it and that all requirements of law have been complied with, he shall issue thereon a warrant on the treasurer of state for the amount found due, and file and preserve the invoice in his office. He shall draw no warrant on the treasurer of state for any claim unless he finds it legal, and that there is money in the treasury which has been duly appropriated to pay it."
Let it not be understood that this section renders the Auditor of State entirely immune to the extraordinary writ of mandamus. If a voucher representing a valid claim against the state is presented to him, concerning which all the requirements of law have been complied with and it is legally due and there is money in the state treasury which has been duly appropriated to pay it, then the law specially enjoins on him as a duty resulting from his office the issuance of a warrant on the treasurer of state in payment of the claim, and the claimant is entitled to a writ of mandamus to secure his warrant if it is refused; but if the claim does not meet all these requirements, it is just as much his duty to refuse the warrant.
Where a claim is questionable, the dictates of good sense and good business judgment impliedly at least demand that he refer it to the law department of the state for opinion, and be governed thereby.
In the "General Clauses and Covenants" at Section 9 we find the following provision:
"For all other than lump contracts, after the work is completed and before final payment is made therefor, the Engineer will make final measurement to determine the quantities of various items of work performed, as the basis for final settlement. The contractor, in all cases will be paid for the actual amount of work performed in accordance with these specifications as shown by the final measurements, if on a unit price basis." (Italics ours.)
The proposals contain the provision:
"The contractor shall make the extension in this column and also add up the totals. However, the unit prices specified, together with the approximate quantities shall determine the total amount of the bid." (Italics ours.)
It will be noted that the general clauses and covenants are most comprehensive and evidently were formulated with the purpose in mind that the state should get what it paid for. They provide against any advantage being taken by the contractor because of disputes as to material to be used and unforeseen conditions, as follows:
"The bidder is required to examine carefully the site of, and the proposal, plans, specifications and contract form for the work contemplated; and it will be assumed that the bidder has investigated and is satisfied as to the conditions to be encountered, as to the character, quality and quantities of work to be performed and materials to be furnished, and as to the requirements of these specifications, special provisions and contract. It is mutually agreed that submission of a proposal shall be considered prima facie evidence that the bidder has made such examination."
They provide just what is to be included in the contract, namely: "The contract shall include the Notice to Contractors, The Proposal, Plans, Specifications, Special Provisions and Contract Bond; also any and all supplemental agreements required to complete the work in a substantial and acceptable manner."
Specifications are therein defined as follows:
"The directions, provisions, and requirements contained herein as supplemented by such special provisions as may be necessary, pertaining to the method and manner of performing the work or to the quantities and qualities of materials to be furnished under the contract. Special provisions are specific clauses setting forth conditions or requirements peculiar to the project under consideration and covering work or materials involved in the proposal and estimate but not satisfactorily covered by these general specifications. Supplemental agreements are written agreements executed by the contractor and by the Director covering alterations necessary to the project * * *." (Italics ours.)
Also:
"These specifications, the plans, special provisions, and all supplementary documents are essential parts of the contract, and a requirement appearing in one is as binding as though appearing in all. They are intended to be cooperative, to describe and provide for a complete work. In case of discrepancy, figured dimensions shall govern over scale dimensions, plans shall govern over specifications, special provisions shall govern over both specifications and plans."
The second paragraph of Section 2 reads:
"The quantities listed in the proposal forms are to be considered as approximate and are to be used for the comparison of bids. Payments, except for lump sum contracts, will be made to the contractor only for the actual quantities of work performed or materials furnished in accordance with the plans and specifications and it is understood that the quantities of work to be done and materials to be furnished may each be increased or diminished as hereinafter provided without in any way invalidating the unit bid prices." (Italics ours.)
The following provision is likewise included therein:
"The Director shall decide any and all questions which may arise as to the quality or acceptability of materials furnished and work performed and as to the manner of performance and rate of progress of the work and shall decide all questions which may arise as to the interpretation of the plans and specifications, and all questions as to the acceptable fulfillment of the contract on the part of the contractor, and as to compensation. His decisions shall be final and he shall have executive authority to enforce and make effective such decisions and orders as the contractor fails promptly to carry out." (Italics ours.)
Relator insists that under this contract there was but one "kind or class of work," namely, the laying of the required yardage of roadway with a bituminous concrete surface to a stated average compacted depth. In this contention relator is right.
Relator in effect further contends that bituminous concrete was merely the material to be used in the "kind or class" of work and that as no per ton bid was required under the contract, it in no wise entered into or became part of the contract. In this contention relator is wrong.
Why the necessity for establishing a unit price of $6.00 per ton for bituminous concrete in place, if tonnage in no wise entered into the contract?
Under this contract we assume that relator had its eyes open and knew just what it was doing when it submitted its proposals to the Director of Highways. It primarily proposed and ultimately agreed to furnish a minimum of 10,428 tons of bituminous concrete in the execution of the contract. We must also consider that the unit price of 47 cents per square yard was figured and fixed on that basis. We early learned that a unit is a single thing of any kind. But even the old fashioned unit had the attribute of divisibility. It had component parts. Just so has this contract unit.
Relator delivered the yardage to the state, but in so doing he was not required to use the tonnage. What process of reasoning entitles relator to recover for material it did not use on this contract?
If this court allows this writ, it must be because of the inviolability of the finding and decision of the Director of Highways and not because of any provision in the contract entitling relator thereto.
Relator insists that the voucher executed by the Director of Highways is final, conclusive, sacrosanct and binding upon all persons, including the courts and the state, because the relator and Director of Highways have by their solemn contract said it should be. Let it be borne in mind that we are dealing with public moneys — the money of the state and its people — in this case. Well might we repeat those words of Cassius:
"Upon what meat does this our Caesar feed,
"That he is grown so great?"
In support of this contention, we are cited to the case of Baltimore Ohio Rd. Co. v. Stankard, 56 Ohio St. 224, 46 N.E. 577, 60 Am. St. Rep., 745, 49 L.R.A., 381. This case involved the Relief Department of the Baltimore Ohio Railroad Company. Michael. Stankard, an unmarried man, was an employee of the railroad company and a member of the Relief Department. While so employed, he became ill and died. His father and mother made application to the railroad company for sick and death benefits, which application was refused. They then brought suit against the railroad company. Amongst other things, the railroad pleaded a rule to which the deceased agreed when he became a member of the Relief Department. This rule provided that the action of the advisory committee of the Relief Department on applications for sick or death benefits should be final. This committee was the last tribunal to which the applicants could appeal, outside the courts. This court held in that case that after the rejection of a valid claim by the advisory committee, the beneficiary could maintain an action in the courts for the recovery of the money due thereon and that such rule is not a bar to the action.
We fail to see where this law is germane to the instant case.
Counsel likewise pin some faith to the case of State, ex rel. M. E. Murphy Co., v. Donahey, Auditor of State, 98 Ohio St. 442, 121 N.E. 645. In that case it was held that where a contract provided that "all measurements and determinations of quantities shall be made by the engineer, and his measurements shall be final and conclusive between the parties," such measurements and determinations were final as a matter of law.
We are in perfect accord with this law.
This court boasts no engineering ability and would under no circumstances attempt to review measurements and determinations made by an engineer, particularly under a contract wherein the parties had agreed to accept his measurements and determinations of quantities as final.
In the case of Bond v. Mayor and Common Council of Newark, 19 N.J. Eq. 376, the court at page 382 held that a provision in a contract designating an official as final arbitrator gives him no power to dispense with the contract or anything that it requires in terms. "He * * * could dispense with no substantial matter expressly required by the contract. Such approval would not entitle the contractor to recover at law."
Again, at page 384 of the opinion, the court says:
"If they [the public officers] should accept a pavement of blue flagstone, worth sixteen cents per foot, in fulfillment of a contract to pave with marble worth $16, without any abatement in price, they would exceed their powers as agents."
Giving to the Director of Highways all the final power that relator agrees that he has under the contract, we are still unable to find wherein he is given power to construe a contract. And if he were given such power under the contract, the courts could not and would not regard it as final and absolute so far as the state is concerned, for at least two reasons. In the first place, courts are jealous of their power and would hesitate to hold in such case that an administrative officer could under any pretext be clothed with exclusive judicial power.
We cannot escape the provisions of Section 1207-1, General Code, supra. If that section does not fit this case like a glove, it would be difficult to imagine a case that it would fit. We recur to it again. It applies to unit price contracts. Its applicability is expressed in the first sentence of the section, namely:
"The director may, if he deems it expedient, enter into any contract authorized by this act upon a unit price basis."
This language is followed by a recital of the legal requirements of such contract, and the section ends with the following sentence:
"In the event the actual compensation earned by the contractor is less than the estimate, the saving shall inure to the benefit of the state."
It was unnecessary to use the tonnage contained in the estimate to make the required yardage. Relator lost nothing by reason of this fact, unless it would be the profit on the bituminous concrete he did not use; consequently, the actual compensation earned by the contractor was less than the estimate.
We grant that the excess tonnage could not be used; that relator delivered all the yardage that he was required to deliver under the contract, but this yardage was short on bituminous concrete content, as we have hereinbefore pointed out.
We grant that there was an honest mistake in figures, but no one has been hurt. Relator bid so much per yard for the construction according to the content therein specified. It was unnecessary to use the content, and the saving, under the statute, all provisions in the contract to the contrary notwithstanding, inures to the benefit of the state.
The demurrer to the answer will be overruled and a writ of mandamus denied.
Writ denied.
WEYGANDT, C.J., WILLIAMS, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
JONES, J., not participating.