IMAGE EVALUATION TEST TARGET (MT-3) W- ^ // y. f/^ 1.0 I.I mill ^ i-u my m •^ c^ m .': i^ I: li^ W' i.t... |l.8 1.4 1.6 ,^; % A VI •P^ f# ->■ / / i> ^^. •/^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY ' 4S80 olly or partially obscured by errata slips, tissues, etc.. have been refilme i to ensure the best possible image/ Lea pages total signifie "A SUIVRE", Ie symbole V signifie "FIN". Mapa, plataa, charts, etc., may be filmed at different reduction ratioa. Thoae too lerge to be entirely included in one expoaure are filmed beginning in the upper left hand comer, left to right atid top to bottom, as many framee aa required. The following diagrama iiluatrate the method: Lee cartee. pianchea, tablaeux, etc.. peuvent Atre filmAs A dee taux de rMuction diffirents. Lorsque Ie document eet trop grand pour 4tre roproduit en un seul cliche, 11 aat film* A partir da Tangle sup4rieur gauche de gauche A droita, at do haut an bas, an prenant Ie nombre d'Imagea nicessaire. Les diagrammea suivants illuatrent la mAthoda. 1 2 3 1 2 3 4 5 6 [rRIVATK.l MEMORArJDUM. In the Report of the Commissioners on the Ottawa BuilQingi, the lolIowiDg passage occurs at page Id : — " Everything appears fair, open, just, but behind all is found a clandestine agreement that those " schedules shall not be applied to extra or additional work, which no one arows as his act," but which " has teen -arried into elVect unjustly as regarded the other tenderers, and unjustly as regarded the pub- " lie interests, as the event has shown." The charge c- insinuatici here iradt, if i. luean. anvthiag, is, thai for some improper object, a wrongful and corrupt understanding existed, by which it was intended the contractors should profit, to the prejudice of the public interests. It is not proposed to go beyond the Report and Evidenc», ex parte and one sided as they are, to test how far this insinuation is sustained. Ist. — Did any underhand or secret understanding of any description whatever exist? 2nd.— Was the course taken and carried out in reference to the extra work, which the Commissioner, insinuate was in fuUilment of this clandestine agreement, of a wrongful character, unjust to any one, unfair to the nublic ? Or was it not such as was consistent with the constant prac- tice of the Depart,, ■ ,t, with fairness, equity and honest dealing between man and man ; and was it not one which if disconnected with and not preceded by a supposed clundestme under- standing, the Commissioners themselves admit wastright in itself, and such as must have been followed in justice to any contractor who had obtained the work ! On what then does tljc proof of this clandestine understanding rest ! Is it to be mferred from the circumstances, or is there direct evidence to support u >. What was its motive and object? Had the then Commissioner of Public Works political or private reasons for seeking to give a preference to some contractors over others ? The Ottawa Commissioners content lliemselves with this insinuation ; they say lliere has been a wrongful aguement, and though we cannot prove a corrupt motive, it is to be inferred. The pith of the charge then is, the wrongful character of the agreement, which was, that the con- tractors were to be paid fair or reasonable prices for extra work, if th«re was any, without reference to the rates liyed in the schchiles to be advanced on the contract work; and that the Public Works Com- missioner had in view, a contemplated, or foresaw at the time the understanding took place, the large amount of extra wor'. which has since been done, and intentionally omitted it fio.u the schrdule, in order that the contractor , mijht have the benefit of it. It would have been more satisfactory and open if the Commissionersjhad put the charge thus: The Covernment connivnl at the lowest tender being MctSr'jevy's ; they knciv Iht block sum did not cover a large portion of the work ; they purposely, and for objects which could not be pure, left that unprovided for; and they have allowed the contnctors excessive and unjustifiable prices for the work so inUntiofHilly onr'tted. Is there a tiltle of evidence to support the charge when thus stated, as it ought, in common fairness, to have been \ The Commissioners reason thus :— We find there has been a great deal of extra work whirli was not provided for in Ihe contract ; the schedule of prices Is declared not to apply to that extra uork; il was arrnn-ed by the Department that higher rates than the schedule should b,- paid for it, al- Ihou;;!, the words of llie vchednle apply to extra uork ; and this must have been done secretly and for a corrupt puipose, and with Ihe view to beni'fit the cont'actors ! ! ."^uch is the reasoning. liiil, was the extra, work foresnri by the Commissioner or thj Department? Could it possibly (as it arose from the system of healing itfterwanls adopted) have been foreseen f /nd if it had, could the schedules (which are intended only to regulate the advances to be made on the block sum during thu progress of the work) on any principles of fairness, on any usage or rule of the Department huve lieen applied to il ? And lastly : wre puns alloned l.ir Ibis extra work which (he scveres' and most rigor- . If il is prove! that llu^ l:irge innnuni .if cxini w.irk was not forcscni and conteinplaleil, Ihe 3rn\^ salion of /„rw(■,/^^i^v/ inicniiou to give the cnnlrarlors an .idvantage falls („ the g,ound, and lliriv H' port, ji Upjioit, p. 21i Blue Book. p. ICl. liipoit, p. 2'. Ui'port, p 24. Rt'pnrt, p, 22 and l-^. rena,„sbunl.e .u.,»nl.„a,e and le.s serious charge that there was error and misealculaUon by ,he pro- le.-.-iinal omctr, of the Department. ^ ' i5ut .tartmg fro.n the outset, what were the precautions taken by the Commissioner to guard against .omphc,,y or unla„„es, ,„ regard to .he ten.lers, (of which the Ottawa Com,ni.ioners ha^e tak^n no no„ce, ? 1 hey „.h to make out as the foundation nf their insinuation that there was a preconcert .' des,^.n to g,ve Mc.reevy r'.e work. Bu, it will be seen from the following order, which he Commis- .oners do no deny was carr.ed o-:t both in i„ letter and spirit, that the most scrupulous and careful means were devised to prevent the possibility of favoritism :— n.PAUTMENTA. ORDER ^V,T„ REFERENCE TO TENDERS FOR PLBL.C BU.LD.NCS AT OTTAWA [^"M-HnV?:;;^herltlr:lf;V-.et °' '"^^ •"^"^ "^ '^^ ' .^th mstant, prepare a sLar • PI, t''' ^'f f','^l""J',<-'«'"™«"0''^r "ill '-"self convey the tenders and list, to the Executive Council Chamber, and dehver the same to the Commissioner in presence of the other 'memberTofthcl^ ^t''- Tlie enders wiP be opened by the Commissioner in Council, and be all ve-ilied and er.o,^ed s.Le''';,'nd 7""; '''^ "'"'''' T'" ''''"^^"' '0 "'« ^^'^'''''y Commissioner who w also ve;i^J^he same, and il possible prep.re nn abstract statement thereof at the timt ^ r,,!-,,; ''i ^"."''i"' "''^"'»*"'"; »™ "^ceoary, the Deputy Commissioner will hi>«elf verifr these cal- culations hy actual inspection of the tender, and he and the officer making iJie calculation, wi I ^rUfv on the back of each tender, the sum to which the same amount,, and also cause a proper vcerTifodsche fo"'L':e5:r';:7r;Lrou:cu"'""^^ ^^ ^°^*^'^' '° ^^ -^-'-^ - '"^ comLj^;L:Tnrbytrm yuebec, 12tl, November, 1859. (Signed.) Joh.^ Rose. There could therefore by no possibility be any clandestine understanding in the reception of the lenders. It is in.portant to remark that the tender was to ySnis/, the Luilding, for a bl^k surn. and no furllur miUa;i vias then rcmt emulated. .een foreseen, and " rrecludes tke ..ppo^n that tkey ceruld h^ivr f,een antic.;::ied .n, contrwton uhen :mlmulttng sch^Mes or rates fen- ordinary charges or extra work " The dralt ol the contract as p:epared by the Department provided that the who!. !.uildi„a should be nished for the contract sum. and '• tnat no change alteration or addition wliatcer, and no ex^rawoik wha over siaH be done without the written authority of the Commissioner, given prior to the execM.on ol the work nor wdl .any allowance or payment whatever he nmde for the same in case it should be " done nithout such ai.llmrity." 3""uiu i. Special orders were ^iven to the Architects and Clerk of Works to the are elfect ; printed forms were prepared and issued before beginmng the work, and the Architects were fo...ally directed ■ ■ You "are • keep an order-book according to the form approved of by the Comn.i.vsioner. in which shah be • rec, d all orders that may be given to the contractors for such changes, alterations or extra work as • may arise or beroine necessary during the progress of the work, and all such orders must be se-nt to 'the "( omraissioner (or approval, before they are issued to the Contractors." The Cummi.siouers tluimselves, in r.ferrmg to this point, report : " There never was ..ny written order l,y any olhcers ol .i,e Department to excavate rock exterior to the beildings, but there was the •' verbal order of ine Deputy Cnmmissioner to excavate it to a limited extent," &,c. Ind arain ■ « It " was their duty ;the Archl.ec..') no. to have allowed any work to be done, or recognize any .laims made fur it. wuhou. su, I, wn-ten authority of the Commissioner, and yet nearly the whole of the extra " an.l ad.lilional work was imder.aken and done, as if no such clause in the co.i.rao. existeil " It inay be needless to advert in iletail to further evidence, to establish thai the extra work which Ihey so unluuly insinuate was in con.einpla.ion as the object of a ■• clandestine ngieement,-' was whollv unloreseen by thcM •„mmiss,r,ner. and was never in the conUniplatiOi, either of the (.overmnent or Ihe t onlrartors, (or (he Conunissioners themselves sum up their Report with this statement •- " The .ravest fealuie in the wi.ole misni.-.r.agement was that the works connected with the hea.in.' an,l von.i ating system were allowed by the Deputy Ccmmi.ssioner to he «,ulertaken.pr,^eeded uvh ■and],a,dfor rukout estimate hein, ma.lc „r aU led fur, u-Uh^t a.vmract, u.tLud any Ju^k' any sihedulc ofjmtcs, enr any arran-cncut ichatci-e.- as to taim or j,n, e of uvrl. " The error, made, and the superlh.ous work permitted to be done, arose i„ all the Uuildin.rs from the want of due considera(ion of what was really re.|Uired. and of proper supervision and con.nd. but a " liri;e proportion 01 tins :s found in (he I'arliamenlarv liuddings. •• The Con(rac(ors ranno( in |,«tice be e,.„su,.ed'(or doing^as much exda .„,d add.tjonal work a, //,. •• >i>,perf,et ph.ns n, new rerjmrements of the buihlings rendered n. ,e.sary. for hy the perfoiman. c of " tlieso alone, at prices other than those mentioned in the schedule, could they hare saved tbemselres " from ruin." Ihe great aim of the Public Works' Commissioner, from first to last, Tas, to adhere to tlie contract, and prevent claims for extra work ariibg or being allowed. 'i Commissioners omit all notice of the numerous instances which the Records of the Department made them cogoixant of, where alteration^ii additions, and extra works UKrre prtssed on its notice and refused ; where applications for advances on plant and materials were rejected, &c., and m which the determination of the Public Works' Commissioner, not to transcend the contract, was shown. He reports (June 1860) strongly against the application to substitute sandstone for the contracted hmestOBc, " because the existing contracts and the Governor-Gfaeral's residence wr^id absorb a large ^'I'Book, " part of the appropriation, and that the balance would be insufficient to meet the extra expense which " tlie change of material would inrolve." He refuses to entertain suggestions for extra accommodation, fn iron roofing, &.C., &.c,, for a resilience to the Ltkrarian, dx.., and many others, 0.1 the ground that however meritorious m themselves, neither the contract nor the appropriation warranted the outlay. But it is said, tlie cbaige of a clandestine agreement with the Conunisf iooer rests on the evidence of I\Ir. Reefer, the Deputy. It i>. not intended to criticize this evidence, nor is it important to consider what reason the Commissioners had for drawing such a conclusion from a lair appreciation even of his testimony, given under circumstances whe e his own conduct and management were so much called in question. A reference to Jlr. Reefer's own act?, without comment, cannot however be avoided. lie states that the understanding with the Cominissioner was " that the extra icork should be paid " for at fair jiriccs." There was nothing wrong in such understanding, even had it existed ; but in saying this he refers only to a small and inerpensive change, Va. the extra excavations fur 'he foundation, which the Commissioner haJ in his mind when tlie rates tor extra work were mentioned. And even as regards this work, tlie eficlence shews that the opinion of the Public Works" Commi>«oner was expressed wholly irrespective of what Mr. Reefer supposes was, or attributes to. a pre-eiiiting understanding with the contractors on the subject The Commissioner meant to keep control over the quantity of extra woii, by requiring a written order, siind right, but would be contrary to the meaning and intention of the last clause of •• the coniract, which covenants that ' if any additions shall entail extra expense on the contractors the " -:>me shall he aHow.^d them.' The contract work is to be paid for in the monthly estimates on the •' haMs of the schedule of prices as provided under the first clause of the I3th section of th3 contract. » Anv cxtrn or additional work should, in my o/iinum, be paid for at its fair value upon the estimate of " tho architects, approved by the Chief Engineer of tliis Department." The cz:c/>i of the extra work is brought under the notice of the Chief Commissioner for the firsL Itoport, p. 1«2.,,.^^, ;^ ^ ^^^,,^^^1 „,^„„er by a report from Mr. Rubridge, the Assistai.t Engineir, .ated 20th Novem- ber, IbliO, his .xamination of the October tslimates furnishing him with the occasion of reporting The Deputy Commissioner then proceeded to Ottawa, and in his report, dated 1st December, 1860, ■' he has thu satisfaction of stating that the work is going on well, but iuat from a .;areful ex,imipa.ica of " the estimate it appears to be necessary that the estimates of the architects should undergo revision," &c " That the contract work should be scjxirated from the extra work," Istc. ; and that as Mr. Rubritlge luid draum utienlion to the quanHly ofcjr'ra work, and his inability to check i» at thai distance from the work, Stc, he shmdd ^o to the spnt. On this the Commissioner (1st December, IS(iO) places the following minute :—" Tliis matter is of '• vo much importance that I consider it my duty to refer it for the consideration of His EicelleDi. , i.i " Council, with the recommendation that the Chief Engineer should proceed t^ iXtawa. and fur?ish the " Department with a comprehensive report on the whole of the operations to date " I.'p to this time the then Commissioner, Mr. Rose, had given orders but for t,.ree u,;imp.rtant chan.'cs, and was in ignorance that any extra work, except what those orders warranted, iiad been done, and froin this time up to his /«i-«a/«-n, no ,Jher ivork is done or ordered. Ihe evidence of Mr. Pane before the Committee of the Legislative Council is proof of this. " 9h. Was the Department aware of the extent of these deficient works ? I do not know that the " Department was aware of the extent of the works cc meet. J with the heating and V'-.ituatiou, or of ■• the ex..ent of the drainage required in connection with them, and for the budding. '• 103. Can you tell if the Commissioaer knew that the extra works would he so large as they now " appear to have been when the works were let '. I think he did not, inasmuch as when my rept ( was " suliiiiittcd, hi- uxpn-ssed his surprise very much at the large amount of the increase, stathig he i ad no " idea that the system of beating and ventilation would have cost so much. Mr. Gdrth's tend :■ was ■■ for Slil "8,'). He stated that he was :iware there was some brick and stone work which was not em- " braced m Mr. Gartli's tender. I had made out my estimate at that time, and I requested Hon. Mr. " Rose, the then Commissioner, to state lus opinion as to what this brick and stone work would amount " to ; after some consideration he said he thought it would not exceed, in his esthnation, $>,000 or " .'^10,000. 1 told him it would be 'early $300,000 excluM^c of Mr. Giirti.'s contract. Ily that, I ■■ mtai'i the works connected with ih" lieatmg and ventilation. Mr. R/>se th'jn became very much exci- ■' ted, sayin'T that he lud not known it up to th;it time, neither were the tiovernment aware of it." What then becomes of the ii'Tnice, which the Commissioners seek should he drawn, tliat Mr. Ro>e was parly to an impropt. understanding to give the Contractors a large amount of extra work, and to pay them for It in excess of fail rates. 'J'o the la.inted al .'— and yet be swwrs : " I never had any private " cooTersation with Mr. Rose or any member of ihc Govemmeat about it. It was between Mr. Keefer Report, p 11 i. " and me that the agreement was made that the schedule of prices shonM not be applied to extra or " additional work, before the contract was signed. If I had nobced the heading of the schedule, 1 would " not have signed it." Thus thea it is evident, first,— That it was never contemplated that the extra work could amount to any importaut sum ; that on the contrary th. most stringent provisions were introduced to guard against it ; that the omi««i9n to foresee smd prnvd' r its performance is made one of the most serious charges against the practical ofiBcers en?f£od in tiie nrepai«tion of the plans : that the late Chief CoLnmissioner, Mr. Rose, refused to give written orders for extra work ; that b? refused to recognize anything as extra whicu had not been so ordered ; and that io far as his authority extended he would have disallowed any claim for it. Is the inference of a clandestine agreement to be found in this surte of facts? But supposing an understanding to have existed. Does it merit the offensive character which the Commissioners apply to it ? Has any different course been followed, or have higher prices been al- lowed in consequence of this alleged understamling than would have been without it, by following the ordinary r'de of equity and fair dealing which all contractors were entitled to have extended to thsm 1 An untavorable inference is sought to be 'Irawn from the fact that no schedule was attached at first. But how can this omission or irregularity affect the good faith of either. The evidence shews that as the whole building was to be done for a block sura, the use of a schedule was only to regulate progress estinuUis, and that no matter what rates the tenderers put in to their schedules, the Department would /Kive QiVm/ them to suit their own views of the rates which shouM be advanced. Mr. Keefer says:— " In order to inform the Commission more fully upon this point, I have taken occasion to reter to " twelve of the leading contracts, which have beeii tutereJ into for as many buildings from 18.00 to 1861, " and T now put in the notes 1 have myself taken from tne originals in the office, (Exhibit 106), givmg " the na.-aes of the buildings, names of contractors, dates of contracts, and particulors regarding sche- " dules. It will be seen that only two out '/ this iiumlier Imve scliediUes attached ti, tliem, and that " one of them has two schedules attached to it, one for contract and one^for extra work, the latter " being at a higher rate than tlie former." " It was however uesigned rather for engineering than for architectural work, though applied to " both, lut the pnnai>k uf jxiying Oie fair value of extra mrrk, luxnrding to the estimate of the " officers uf /he Dcyirttrfnt luis idictujs hern reoigni:ed and acted upon." And a"-ain :— Mr. Alexaudtr McKenzie, now Member of Parliament, and lumself a tenderer, " Rq-oit, p, M. says: — " The practice of having schedules is not common in this I'rovince, but it is the almost universal " rule with the Imperial (Jovcrnment. I do not know the practice of the Department of Public Works. " With ordinary Ijui/dings ii is the usital praclicf lo place the valiuUion of extra loork in iht dis- " cretion of 'he architects. I say the schedule I pu> in with my tender represented in detail the bulk " fum of my tender, and also the prices I expected to be paid for extra and additional werk." .Mr. Reefer's statcmei.t with reference to the rule of paying fair value for extra work, whether that value exceedeil or fell short of the rates detailed in the s«hedules as applicable to controct work, is fully borne out by the terms of the contracts which hav ; been in use for many years, viz.:—" That if " any alteration or addition, either in the position or details of the works embraced in this contract or in ^'jl^^"" ''■ " any of the materials therefor, shad be required by the Commissioner, the contractor will make such " change, alteration or addition, and if such change, alteration or addition sJuill entail extra expense on i' ttic o.Hlrador either in lalioiir or materials, the same shall he allowed to the contractor, or should it " be a saving to the contractor in either labour or materials, the same shall be deducted from tl,c " atii"iinl 'if this ronlrorl .''' It is thus manifest that not only is there a total absence of proof to support the insinuation of a clandestine agrecmeni, hut it is contradicted by the whole of the evidence, and by that which is even stronger, the facts th';mselves. A lew words will suffice to dispose of tiie question whetlicrjthc prices allowed for the jxtra icorks lip to June, 1S61, were excessive, or whether in any other respect the public interest was lost sight of in dealing with the contractors. The price" proposed to be allowed were the result of the united deliberation of all tlie architects, the ClriL ../ U'./rAs, Mr. Ru'-rvlgi , a"d the 1'),pnty Commissioner. iMr. Pag^ reports up to April, 1861, as the conclusion of a very elaborate inves'igation — " The works generally have been executed in a substantial and satisfactory manner and at ite ^ 6 And the Ottawa ComnuMioners tljemselves declare nv^n t»lrm„ ,-, uy; 10 ,i,e j^cruA ..f the mansion oftke W. i, .1 H , ^ "^"^ '** ;«J^nr. marf. ...... ™ . , '*'''"'^'""'"'S any 'wger rates allowed after Mav I Sfi I ih,. " the measurements and Drices allnirpH ih« r„_» . A =" »"":r iuaj, loni, tJiat estimated at .r prices accord.ng to the mode of measurement, adopted" l"^on » R „ h r ^ '" ":" '"'"^* of measurement adopted by the Commissioners." Clerk VorbTTrd "' \T' 'T' """ ^"^ "'" ^"'' """' ^' «"" "^ '^^ Architect's exceeded! t; "nJ m^a^ p L't^Tg^er" " I""'' ''""■ "="• "'"^" ""-' "^ -- qualified .presi: j.ch the^t I Sp^ i^ ^s;:;!:^^ r p^^T ^ tiJ: the tht H^ad o^r"^"""".' "Tr"' '" "'"'^ ''""*'^ '° '""^ -™>g''"-'^ »ade at the outset b, ifie then Head of the Department for preventing extra work, for checking the progress estimate, on CoLmtle;. "'" "^ ^"'""' ^"^"^"' ''■'' ^"°-«-'' -^ ""« ^""'ar, or Depl^ or i^T nf ''"° "''''■, 'r^*-*" •'"" =^y "-« "f "'^*e checks was in a single instance depa^d from ; rre'Trart wm" ^ ^' ^'"^" ""= "'«•■'"' ""'^"•'" ""^^ "'^ "■'" "^ '''^ ^epartLent, or 7, "^regularity whatever m any one payment, dealing or communication on the mere direction of the Com- — er 0, that m the slightest part.cular lus au.l.or„y was interposed to sanction a departu e rom the course which was ong.„aIly laid down, and which the Commissioners themselves approve ofJ \> '•1t.>i i*-^