This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Statutes often require advertisement for bids in public contracts exceeding a certain amount and of certain classes. Contracts of these classes entered into without complying with these formalities are unenforceable.1 Advertisement for bids is not necessary unless the statute requires it.2 A statute requiring advertisement for one class of public contracts, as for work on buildings or streets does not include other classes of contracts, as for electric lighting.3 If the law does not require advertisement but the body empowered to act requires it, the same body may waive any defect or irregularity in advertisement.4 If the notice required by law is fairly given irregularity in giving it does not make a contract thereunder void.5 Thus if the clerk, instead of the council, fixed the time for which the notice was to be given, and the council let the contract under such notice,6 or if the council, as required by law, designated the paper in which the advertisement should be given, but ordered a "re-advertisement" without expressly stating that it was to be in the same paper,7 or if advertisement is made in the name of the wrong department,8 or if it does not state when bids would be opened and where there is a uniform and known custom to open bids at the end of the time fixed for receiving them,9 such notice is sufficient. If the statute requires a notice thirty days before the contract is let, a notice given twenty-nine days before the bids are opened, but more than thirty days before the contract is let, is sufficient.10 Contracts made pursuant to such advertisement are valid. But notice must be given substainially as required by law. Advertisement in a. paper not authorized by law is ineffectual.11 So if advertisement is to be given unless the mayor dispenses with it, his approval after a contract is let without advertisement does not make such contract valid.12 A re-advertisement is equivalent to a rejection of bids and avoids a contract under the first advertisement.13 After a contract is let a change in details may be made in some jurisdictions without re-advertising,14 at least if the extra expenditure does not exceed the sum for the expenditure of which the statute requires advertising.15 It has been held that a requirement for advertising for bids does not apply to a contract to complete a contract abandoned by the original contractor.16
7 Marion Co. v. Woulard, 77 Miss. 343; 27 So. 619.
8 Diggins v. Hartshorne, 108 Cal. 154; 41 Pac. 283.
9 Noel v. San Antonio, 11 Tex. Civ. App. 580; 33 S. W. 263.
10 Illinois, etc., Bank v. Arkansas City, 76 Fed. 271; 22 C. C. A. 171; 34 L. R. A. 518; City of Alma v. Bank, 60 Fed. 203; Elyria, etc., Co. v. Elyria, 57 O. S. 374; 49 N. E. 335. (But one resolution cannot provide for the issuing and sale of bonds to buy waterworks and erect new ones.)
11 Illinois, etc., Bank v. Arkansas City, 76 Fed. 271; 22 C. C. A. 171; 34 L. R. A. 518; Wrought Iron Bridge Co. v. Arkansas City, 59 Kan. 259; 52 Pac. 869.
12 Coffin v. Portland, 43 Fed. 411.
14 Williams v. Bergin, 127 Cal. 578; 60 Pac. 164; reversing on rehearing 57 Pac. 1072.
15 Ramish v. Hartwell, 126 Cal. 443; 58 Pac. 920.
1 Brooks v. Satterlee, 49 Cal. 289; Bowditch v. Superintendent, etc., of Boston, 168 Mass. 239; 46 N. E. 1026; Town of Clarksdale v. Broad-dus, 77 Miss. 667; 28 So. 954; Barber, etc., Co. v. Hezel, 155 Mo. 391; 48 L. R. A. 285; 56 S. W. 449; Fairbanks v. North Bend, - Neb. - ; 94 N. W. 537; Cincinnati v. Guek-enberger, 60 0. S. 353; 54 N. E. 376; State v. Butler Co. 10 Ohio C. D. 118; Duryee v. Friars, 18 Wash. 55; 50 Pac. 583; (even when bonds are to be exchanged for warrants).
2 Crowder v. Sullivan. 128 Ind. 486; 13 L. R. A. 647; 28 N. E. 94; Gillette, etc., Co. v. Board, etc., of Aitkin Co., 69 Minn. 297; 72 X. W. 123.
3 Reid v. Trowbridge. 78 Miss. 542; 29 So. 167.
4 Augusta v. McKibben (Ky.), 60 S. W. 291.
5 Belser v. Allman. 134 Cal. 399; 66 Pac. 492.
6 Belser v. Allman, 134 Cal. 399; 66 Pac. 492.
7 Ellis v. Witmer, 134 Cal. 240; 66 Pac. 301.
8 Potts v. Philadelphia, 195 Pa. St. 619; 46 Atl. 195.
9 Cass Farm Co. v. Detroit. 124 Mich. 433; 83 N. W. 108.
10 Newport News v. Potter, 122 Fed. 321; 58 C. C. A. 483.