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Rules and regulations for carrying into effect the provisions of this section are published in Treasury Department Circular No. 39, May 20, 1936 (Federal Register, May 29, 1936, p. 575).

Notes of Decisions

In general.-By reason of the broad and undisputed-and there is no doubt as to the general terms of this section and in the ability of the Government to collect, there light of the principle that the sovereign must is no room for mutual concessions and there possess incidental powers necessary to carry fore no basis for compromise under R. S. general statutes giving general powers into 3469; but where there is a bona fide dispute effect, the United States may accept an offer as to either a question of fact or of law, and of a railroad company to compromise a claim accordingly room for mutual concession, comof the United States against said company promise settlement is not precluded, the adein the sum of $204,862.74 for fire trespass, quacy of the offer to be determined by the by the payment of $10,000 in cash and the exercise of sound discretion. This should relinquishment of the right of the company not, however, be understood to curtail the to receive from the United States certain inherent and statutory power of the Attorney lands selected by it in accordance with the General to absolutely dismiss or discontinue terms of a congressional grant. (1933) 37 suits in which the Government is interested, Op. Atty. Gen. 298.

and, a fortiori, to terminate the same upon Authority of Attorney General.- Where terms at any stage by way of compromise or liability has been established by a valid settlement. (1933) 38 Op. Atty. Gen. 94; judgment, or is certain--i. e., liquidated or (1934) 38 Op. Atty. Gen. 98.

724. Priority.-Whenever any person indebted to the United States is insoivent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed. R. 8. 3466; 31 U. S. C. 191.

Notes of Decisions In general.-- Statutory mandate that upon solvent contractor's bond to United States voluntary assignment of insolvent debtor debt for amount due for labor and materials due to United States shall first be satisfied furnished contractor held not entitled to is absolute so long as property has not been priority as for debt due United States, divested out of debtor before right of pref-though statute authorizes suit against conerence of United States accrues (31 U. S. C. A. tractor's receiver and surety in name of sec. 191). In re Lincoln Chair & Novelty Co. United States for claimant's benefit (U. S. (N. Y., 1937), 9 N. E. (20) 7.

C. A. 31:191; U. S. C. A. 40: 270). EmClaims against insolvent contractor. mons v. Union Indemnity Co. (N. J., 1934), Claims against insolvent surety in- | 175 A. 141.

725. Liability for failure to give priority to the United States.-Every executor, administrator, or assignee, or other person, who pays any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate for the debts so due to the United States, or for so much thereof as may remain due and unpaid. R. S. 3467; 31 U. S. C. 192.


725a. Survival of action to recover damages.- That no civil action to recover damages, brought by the United States or in its behalf, or in which the United States shall be directly or indirectly interested, and pending against any defendant prior to the time of his death, in any court of the United States, shall abate by reason of the death of any such defendant; but any such action shall survive and be enforceable against the estate of any such deceased defendant. This Act shall not be construed to deprive the plaintiff in any such action of any remedy which he may have against a surviving defendant. Act of June 16, 1933 (48 Stat. 311); 28 U. S. C. 7800.



Authority and appropriations, 726.

Interest by Member of Congress, 737. Advertising requirements, 727.

Term, 738.
Bids, 728.

Transfer, 739.
Combination of projects, 729.
Execution :

Anti-Rebate Act, 740.
In general, 730.

Bituminous Coal Act, 741. By Secretary of War, 731.

Buy-American Act, 742.
Extra expense :

Eight-hour law (civil), 743.
Adjustment of claims, 732.
Jurisdiction of Court of Claims, 733.

Eight-hour law (penal), 744.
Filing :

Suspension of Eight-hour laws in emergency, In returns office, Interior Department, 734, 745. In General Accounting Office, 735.

Bacon-Davis Act, 746. With Commissioner of Internal Revenue,

Walsh-Healy Act, 747. 736. 726. Authority and appropriations.- No executive department or other Gorernment establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law.

R. S. 3679; scc. 3, act Feb. 27, 1906 (34 Stat. 48); 31 U. 8. C. 665.

No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year. R. S. 3732; 41 U. 8. C. 11.

Provided, That no contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year. Act of June 12, 1906 (34 Stat. 255); 11 U. S. C. 11.

No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose. R. 8. 3733; 41 U. S. C. 12.

The heads of the executive departments were required to apportion the appropriations for the contingent funds among the bureaus and offices of the departments by act of Aug. 23, 1912, sec, 6, post, 1743.

Restrictions on contracts for the rent of any building in the city of Washington, until an appropriation therefor had been made, were made by a provision of act Mar. 3, 1877, post, 961.

Apportionment of appropriations for contingent expenses in monthly or other allotments, 1731, post.

Appropriations for printing not to be exceeded, limitation on vumber of reports, etc.. Do8t, 1751a, 1780, 1782.


Notes of Decisions Requisites and validity; authority to ex: l binding. Southern Surety Co. U. S. ecute.-It is axiomatic that Government of- (1932), 75 Ct. Cl. 47. ficials must act within the scope of their

Congress may by statute require Governauthority, and that all persons dealing with

ment contracts to contain provisions governthem must be held to know the extent of ing the wages to be paid by the contractors, their authority. Alliance Construction Co. v.

and for the determination of facts relating U. S. (1934), 79 Ct. Cl. 730.

thereto by a specified Government official; The failure of the Government to comply and whether or not such provisions be with statutory requirements relative to

actually contained in the contract as written public contracts enacted solely for the pro- and executed, they become a part of it by tection of the Government does not render virtue of the statute itself. Alliance Consuch contracts void, but only voidable at struction Co. v. U. S. (1934), 79 Ct. Cl. 730. the Government's option; and only the

Rights and liabilities of Government.-Government can take advantage of such

When the United States, with constitutional failure. (1935) 38 Op. Atty. Gen. 328. Consideration. Public officers are

authority, makes contracts, it has rights and

incurs liabilities similar to those of indi. without authority to make a contract for which the Government receives no benefit or

viduals who are parties to such instruments. consideration. Vulcanite Cement Co.

Banister v. Lollis (S. C., 1937), 190 S. E. V.

511. U. S. (1932), 74 Ct. Cl. 693. Contingent fees.--Contingent fee

Bids.---Where the United Shipbuilding and contracts are valid where not in contraven-Dry Dock Corporation, a subsidiary of United tion of public policy and are condemned only Dry Docks, Incorporated, received an award where attorney has taken advantage of client's through competitive bidding to construct two circumstances to exact an unreasonable and torpedo boat destroyers for a specific amount, unconscionable proportion of client's claim and accompanying its bid was a copy of a (Mason's Minn, St. 1927, sec. 9470).

Hol- contract between it and the United Dry lister v. Ulvi (Minn., 1937), 271 N. W. 493. Docks, Incorporated, showing the relation

Forms and provisions.--The pro- ship between the two companies, and an posed contract between the Department of undertaking on the part of the latter comCommerce and the Remington-Rand Company to furnish the shipyards, equipment pany, for the rental of 42 tabulating ma

and labor in case of award, it was Held, That chines at $1,850 per month, the contract although the bid was formally submitted stipulating that said rental is based upon the by the former company only, such bid might understanding that all cards used with the be properly considered the joint bid of the equipment shall be purchased from the lessor two companies, and the award amended to and that if such cards are not purchased make both companies jointly and severally from the lessor the machine rentals shall parties to the formal contract. (1934) 38 be $2,170 per month, is illegal in respect of Op. Atty. Gen. 91. the restriction upon the purchase and use of Construction of terms; in general.-(1) It cards, which is in violation of Sec. 3 of the is the duty of the court to give effect, if Clayton Act (38 Stat. 731). The execution possible, to every word or phrase of a conof the proposed contract will not impose tract and to avoid a construction that would upon the Department of Commerce any imply that the parties used meaningless or legal obligation to refrain from purchasing superfluous words, or that they were ignorant cards from other sources, or to pay the in- of the meaning of the language employed by creased rental for doing so. (1932), 36 Op. them. (2) Courts can not amend or alter Atty. Gen. 524.

the terms of contracts under the guise of There is no prohibition, express or im- construing them. Bethlehem Steel Co. v. plied, preventing the head of a department U. S. (1932), 75 Ct. Cl. 845. or independent establishment from insert

By parties. ---Practical construction ing in contracts for the purchase of sup- of contract by parties to contract is entitled plies such provisions, in addition to those to great weight, where their interpretation is specifically required by statute, as he may a fair one. U. 8. v. I. B. Miller, Inc. (C. C. A., deem to be desirable in the interest of the 1936), 81 F. (20) 8. Government or of the public welfare. Such

Preliminary negotiations.—Where authority must necessarily be included the meaning of a contract is clearly exwithin the discretion vested in him. (1933), pressed in the formal written instrument, the 37 Op. Atty. Gen. 199.

negotiations leading up to its execution are A provision in a Government contract that irrelevant. The written contract merged the contractor "will make no claim against all previous negotiations, and is presumed, the United States by reason of estimates, in law, to express the final understanding of tests, or representations of any officer or the parties. Tiedemann Corp. v. U. S. (1933). agent of the United States," is valid and 78 Ct. Cl. 16.

It is elementary that prior negotiations, in | might be purchased by it at a reduced price the absence of fraud or mutual mistake, form to be determined by the parties to the conno part of a written lease unless incorporated tract and that such rejected cloth should be therein. Goldstein v. U. S. (1934), 79 ct. offered to the Government before it could be CI. 477.

disposed of elsewhere, the contractor was not Trade customs.-General and uni- free to sell it to anyone else until the Govversal customs applicable to the trade or busi- ernment bad finally refused to take it; and ness are binding upon buyer and seller unless where the Government had not finally refused there is a notice or contractual stipulation to take the cloth, but had retained and kept that the transaction is without regard to the it as its own, and later sold it at a loss as custom. Vulcanite Cement Co. v. U. S. surplus Government property, there can be (1932), 74 Ct. Cl. 693.

no recovery by the Government on a counterContract price; in general.--Contractor claim for such loss. White, Receiver v. U. S. may recover full purchase price of canned (1936), 82 Ct. (l. 218. goods sold Quartermaster Corps which com- Where the plaintiff contracted to furnish plied with only standard specified. Wabash coal to the Government the ash content of Valley Packing Co, v. U. S. (1927), 63 Ct. Cl. which was specified at 9 per cent, with re344.

duction in price in case the ash exceeded by Contractor, required to follow plane, can- more than 2 per cent the specified 9 per cent, not be denied compensation because work in the Government was entitled to the specified accord with plans does not develop intended reduction in price where the ash exceeded results. Dayton-Wright Co. v. U. S. (1928), over 12 per cent; and it was immaterial that 64 Ct. Cl. 544.

plaintiff prior to the execution of the contract Where the Government mistakenly con- told the Government's officials an error had tracts for, and the contractor furnishes, cer- been made in the bid. Perryman-Burns Coal tain office equipment, the fact that it was Co. v. U. S. (1937), 84 Ct. Cl. 567. not of the particular character desired, and - Existing contract at lower price.which the contracting officer thought was Where airplane radiators were ordered by being contracted for, does not release the the Government and supplied by a conGovernment from its obligation to accept the tractor under a procurement order which equipment and pay the purchase price. Ferris provided for a price of $45.00 each, the con1. V. S. (1933), 77 Ct. Cl. 294.

tractor was entitled to the price specified, Advance payments.-Where under notwithstanding there was existing another a supplemental contract the contractor is contract between the Government and the advanced a sum of money by the United contractor for supplying similar radiators States for working capital, repayment to be at $39.00 each. Marlin-Rockwell Corp. v. made by deductions from vouchers presented U. S. (1935), 80 Ct. Cl. 394. for work done, with interest on balances

Performance after expiration.-due, secured by an interest-bearing promis. Acceptance of delivery under an executory kory note, and the principal contract is can- contract after the time set therein is a celed by the United States before any de- waiver of the time limitation, and the liveries are possible thereunder, the note so buyer is liable for the agreed price. Kengiven is to be considered merely collateral tucky Oxygen-Hydrogen Co. v. U. S. (1932), security, and the United States upon settle- 75 Ct. Cl. 687. went is due the principal sum, with interest

Variable price.-- Where a conhot on the note, but only on the advance tractor's proposal stating that the amount ment, computed from the date of the ad- of his bid for the contract work was based, vancement to the date of cancelation of the among other things, upon certain specified principal contract. Lutz Co. v. U. S. (1932), Government prices for materials and the 76 Ct. Cl. 405.

then market price of labor was accepted by Defective performance accepted.- the Government and made a part of the conWhere a Government contract for coal pro- tract, and the contractor refused to sign vides for certain contents of moisture, ash, the contract until assured that under its and British thermal units, with deductions provisions he would be entitled to a revision from the contract price for unfavorable vari- of the contract price in case of an advance ation therefrom, such deductions are proper in the price of labor, the contract is to be without credit for variations that are favor- / construed as providing for such revision, able. The contract construed and held to and also for revision in the cage of advance authorize deduction for the amount of a per- in the price of materials. missible variation in addition to any excess Increase in the contract price contemover it, where there was such excess. Pitts- plated by the contract on account of inburgh & Midway Coal Mining Co. v. U. S. crease in the prices of labor or materials is (1933), 77 Ct. Cl. 8.

not limited to the contract period for perWhere the government paid for cloth de- formance of the contract where there was livered under a contract which provided that delay in completion of the contract and the any of the cloth rejected by the Government delay was caused both by the contractor and

136307-40 -21

by the Government. Monks et al., Exrs. v. their introduction in evidence by him in supU. S. (1934), 79 Ct. Cl. 302.

port of the claim, the claim held and adVariance from estimates.Where judged forfeited to the Government under a contract for a dredging project, at unit the provisions of section 172 of the Judicial rates, states the yardage estimated as neces- Code; Title 28, section 279, U. S. Code. sary to be dredged to complete the work, but Blume v. U. S. (1935), 81 Ct. Cl. 210. provides that "the United States reserves Liquidated damages; in general.--The the right to require the removal of such rule is now well established that parties to a yardage as will complete the work, be it more contract may agree upon liquidated damages, or less than the quantity above estimated," not by way of penalty, but in lieu of actual the words “more or less" must be given a damages, and whether such is the agreement more extensive meaning than in their ordi. is to be determined by the intention of the nary use for denoting slight variations in parties as disclosed by the language used. estimated amounts, and the contract held to Hickey v. U. 8. (1928), 65 Ct. Cl. 729; Macrequire the completion of the project. Donald et al. v. U. S. (1932), 74 Ct. CI. 572. Morris & Cumings Dredging Co. v. U. S. Where liquidated damages are provided for (1933), 78 Ct. Cl. 511.

specified delays, such damages are not to be Withholding by Government.--A construed as a penalty merely becausc it is provision in a Government contract that pay also provided that delay shall not be charged ment of the contract price is to be made upon in case one of the parties certifies it has not completion and acceptance of the contract been damaged thereby. Id. work and upon presentation of satisfactory Where there is no proof that actual damevidence that all obligations of the contractor ages have been sustained, and where party against the contract had been paid in full, claiming damages is equally at fault, and did not, after completion and acceptance of amount of delay caused by either party cannot the work, authorize the withholding of pay. be ascertained with reasonable accuracy, ment by the Government until the contractor liquidated damages will not be allowed. U.S. should present satisfactory evidence that it v. United Engineering & Contracting Comhad paid all sums due from it to its material- pany, 234 U. S. 236, 242; Wyant v. U. S., 46 men; and where payment was being so with. Ct. Cl. 205 ; Monks et al., Exrs. v. U. S., held, the contractor is entitled to recover as 79 Ct. Cl. 302, 338. Wharton Green & Co., damages the expense in securing payment in- Inc. v. U. S. (1937), 86 Ct. Cl. 100, certiorari curred by reason of the Government's failure denied, 303 U. S. 661. to pay as provided for by the contract. King

Change orders.-- Where a construc& Co. v. U. S. (1934), 80 Ct. Cl. 325.

tion contract authorizes the Government to Fraud.---The burden of proving fraud in make changes in the specifications as the the "Proof, statement, establishment, or al. work progresses, and change orders issued lowance of any claim or any part of any claim during the contract period, pursuant thereto, against the United States" (sec. 172, Judicial increasing the contract price, stipulate that Code), is upon the defendant in a suit against no change in time for completion is involved, the United States. Carroll et al. v. U. S. and the orders are accepted, the contractor (1932), 76 Ct. Ci. 103.

is not entitled to recover liquidated damages Where a subcontractor violates bis prin- imposed upon bim for delay in completion cipal's agreement with the Government by due to work performed under change orcarrying on the operations in such a manner ders. Grimths v. U. S. (1932), 74 Ct. Cl. as to work a fraud upon the Government, 245. and the Government officers stop the prin- Where extra work is performed under an cipal contractor's pay, until the amount due order therefor issued after the fixed date for may be ascertained, the contractor is not completion of a contract, a provision in the thereby given a right to cease performing. order that it would involve no extension of

The fraud contemplated by section 172. time for completion is meaningless, for if enJudicial Code (U. S. C., Title 28, sec. 279) forced it would impose upon the contractor is not fraud in the performance of a con- liquidated damages for delay no matter how tract, but fraud in the prosecution of a claim. expeditiously the extra work was performed.

Fraud by a subcontractor, in the perform- (Plack et al. v. United States, 66 Ct. Cl. 641, ance of a contract, in the absence of knowl. | 651). Sun Shipbuilding Co. v. U. S. (1932), edge of or approval by the prime contractor 76 Ct. Cl. 154. or a plaintiff representative of the prime

Computation.-A construction concontractor, is not the fraud of such prime tract provided that the work was to be comcontractor or plaintiff. Baird v. U. S. pleted within a certain time from the date of (1933), 76 Ct. CI. 599.

receipt of notice from the Government to Upon finding and conclusion that the plain begin work. The contractor, having signed tiff attempted to and did practice a fraud the contract, was ready to begin work ten against the United States in the proof and days before receipt of said notice : Held, that establishment of his claim by changing cer- this period was not within that provided for tain entries in bis books of account after completion, and could not be used as a basis

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