WATER PIPE CONTRACT.

King Country Chronicle, Volume VI, Issue 469, 29 May 1912, Page 5

WATER PIPE CONTRACT.

REPORT OF SPECIAL COMMITTEE. REFLECTIONS ON ENGINEER. LEGAL OPINION TAKEN. Considerable discussion has taken place in the Borough Council meetings during the past six months in connection with the water pipes supplied to the Borough. Some months ago a special committee was appointed to go into the matter and report. The report waj submitted and discussed but was eventually referred back to the committee. A futrher report prepared by the committee was submitted to the Council on Monday night. The report is as follows: — Gentlemen, —

Our report of the 13th December, 1911, with reference to the carrying out of Contract No. 7 between the Spiral and Lock-Bar Steel Pipe Co. Ltd. and the Council having been referred back to us, we now beg to make a final report as follows: —

Your committee has reconsidered the whole of the facts in conjunction with the relative advice of the council's legal advisers, and although perfectly satisfied that the contract has not been properly performed in that: (a) The pipes are not coated according to specifications (b) The steel used is for the most part of less thickness than required by the specifications

And although still further fully convinced and satisfied that the Council, and through it the burgesses of the Borough are heavy losers by virtue of this non-compliance with the terms and conditions of the contract, nevertheless is compelled by the strict legal rules explained by your advisers to recommend that no further action be taken.

We are compelled to adopt this most unfortunate and regrettable position owing to the fact that under the contract we are advised that the engineer is in the position of an arbitrator, and as he has seen fit to grant a certificate certifying the work to have been properly carried out, we have no legal redress or remedy. Our recommendation is therefore in accordance with the advice of your legal advisers. As we have in the course of this report, expressed ourselves as satisfied that the Council has not received its due under the contract whereas the engineer has certified to the contrary, it is only right that we should give our reasons for making such a statement. In so doing we are guided by three main reasons: — Firstly: The gross neglect of the engineer in failing to appoint a clerk of works to superintend the manufacture of the pipes as provided by the contract Secondly: The wavering and unsatisfactory attitude of the engineer throughout the whole of the enquiry; and Thirdly: The various expert opinions diametrically opposed to the opinion of the engineer as expressed in the final certfiicate With reference to the first reason we would ask you to peruse clause three of the agreement between the Council and Mr Spencer. It is provided you will see that the engineer "will aid and advise the Council by the employment whenever necessary of one or more clerks of the works whose wages, however, shall be borne and paid by the engineer." Your committee would further call your attention to the specification prepared by the engineer with regard to the contract. In line 10 of page 1 you will find this provision: "The pipes shall be manufactured and coated only under the supervision of the clerk of Works appointed by the engineer." Upon page 4of the specification this further provision is contained: "In manufacture and delivery of these pipes 'at Wanganui' the contractor and clerk of works 'at Wanganui' shall each keep a stock booic and on consignment of all pipes specials or materials each stock book must be signed: the contractor's stock book by the clerk of works and the clerk of works' book by the contractor and 'if the consignment be found' by the engineer at Te Kuiti 'to be in accordance with the clerk of works' tally it shall be adopted as the correct quality consigned by the contractors.' "

The significance of this latter clause is apparent. The clerk of works is sole judge as to whether the pipes are according to specification or not and delivery being taken at Wanganui the Council 'is bound' to 'accept all pipes passed by him.' The position of the clerk of works under the contract is therefore an extremely onerous one and under his agreement with the Council the engineer should have engaged and paid a capable clerk. You will appreciate our surprise and dismay when wa were informed by the engineer that he had appointed the foreman for the contractors as his clerk of works. He had in other words formally appointed the contractors sole judges without right of appeal, whether their own work was done as it should be done or not. Just how much protection the Council would have is apparent. The facts speak for themselves and require no comment from your committee. Dealing with the second reason we would briefly recount a little of the history of the enquiry. When first asked at a meeting of the Council if the pipes were as specified the engineer affirmed that they were. When asked later in the presence of Crs Forsyth, Hardy and Young to prove his assertion by gauging a few of the pipes he refused so to do and claimed that he would abide by the decision of an independent person. Upon another occasion when requested by your committee it accompany them and gauge some of the pipes he did so. Several of the pipes

were cut and it was found that instead of being twelve gauge many were thirteen gauge and that still

others were fourteen gauge. Immediately after having made the inspection the engineer and Cr Forsyth encountered his Worship the Mayor who asked the result of the inspection. The engineer then replied that he pipes were "mixed." Now, if the pipes were "mixed" the contractor had not properly carried out, and the Council was not receiving all that it was paying for. Some little time previous to this your committee had a meeting with Mr Hine, the borough solicitor, and Mr Spencer. After some discusison Mr Hine asked Mr Spencer, "Do you still consider the Spiral Pipe Co. are entitled to a certificate?" The answer was "No." The committee then allowed him a week in which to make a fresh report. Again you can imagine their surprise when, at the expiration of the period, a report was received to the effect that the work had been properly carried out and that the contractors were entitled to a certificate. Another disquieting feature was to the various arguments advanced by the engineer in his efforts to justify what he was at one time willing to admit, was a thinness of gauge, arguments which one by one he was gradually compelled by the obtaining of expert opinions, to drop. For example, when first approached he advised that the pipes were rapped around a mandrel and that the pull exerted would cause a stretching and the consequence would naturally be a corresponding thinness. This contention was ridiculed by Mr Metcalfe and nothing more was heard of it. The question of various gauges was next raised and ao on to the end. The Council will, under the circumstances, be able to judge the effect of this instability upon the minds of the members of the committee.

With reference to the third reason as the opinion in writing of various experts have already been laid before you we will not need to deal with this aspect further. Suffice it to say that they are in favour of the opinion that th contract has not been properly carried out.

In conclusion we can only say that although we feel that we have been improperly treated and that the burgeses have paid for what they have not received yet nothing can be done. The Council must be are afraid, be content to write off its not inconsiderable loss as the price of "bitter experience. ''

There being no remedy against the contractors it only remains with the council to decide whether the action of the engineer throughout the whole proceeding has been all that it should be, and if the council should decide that it has not been, then as to whether the engagement of the engineer should not, if possible, be terminated. With this aspect of the question we are not called upon to deal, as it merits and requires the consideration of the Council as a whole.

Your committee would, howaver, advise the Council to take legal advice upon the matter if it intends to proceed further, —We are, gentlemen, your obedient servants, M. W. Forsyth, A. Julian, D. H. Lusk, D. J. Young. On the motion of Crs Forsyth and Young the report was received. Cr Forsyth said he considered one way and another the committee had devoted a lot of time and work to investigating the matter. He considered the Council had been beaten and that the variation from specification in the carrying out of the contract represented about £IOOO.

Cr Falvvasser said he had heard nothing previously about the matter, but from the evidence it seemed there was plenty of room for investigation. Cr Finlay said the question at issue was one for legal opinion rather than for discussion by the Council. If the engineer had been neglig n nt as stated by the report, legal opinion as to dispensing with his services should be taken.

Cr Young agreed with Cr Finlay. He moved that the whole matter should be submitted through the borough solicitor to Mr T. Cotter, K.C., Auckland, for his opinion as to whether the facts were sufficient to warrant the terminaton of the engineer's agreement. Cr Forsyth seconded the motion. Cr Julian moved as an amendment that owing to the loose and extraordinary manner in which the engineer had carried out his work he (the engineer) be called upon to resign his position. Speaking to the amendment, Cr Julian said he could not find words strong enough to express himself on the matter. It seemed to him deliberate, carefully and cunningly thought out. Cr Falwasser said he would be one of the first to give a man an opportunity of showing a defence. The non-appointment of a clerk of works., to which reference had been made might have been an oversight and not intentional negligence. The Mayor said he held no brief for the engineer, but considered he should have fair play. There was more than one side to the question. The engineer had expert opinion which gave a different complexion to the matter. He had seen letters from Mr Mestnyer and Mr Langminster, both high authorities on the question. As to the appointment of a clerk of works Mr Mestayer said ha had been accustomed to appoint a clerk, of works at the Pipe Company's factory, but had found the foreman to be such a reliable man that he had adopted the course of leaving the matter to the foreman. Mr Spencer had adopted this method also. Other points in connection wih the report would bear a different interpretation when the other side was heard. Cr Forsyth said if the letters from experts referred to by the i r hid been received they should, i mess, have been shown to the # ee. Aa to a clerk of Works or he did not think the Mayor oi- ii'iy sane man would appoint the

person he was buying goods from to pass them on the purchaser's behalf. In respect to the coating of the pipes the specification said two coats should be given, and only one had been applied. If the specification had said one coat he was certain the company would not have applied two coats without being paid extra. The motion was then put and carried, Cr Julian whose amendment had failed to find a seconder, being the only dissentient.