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29 Stat. L., 648.

vol. 2, p. 599.

Permanent

[Par. 1.] Naval Supply Fund: (1) And the Secretary of March 3, 1897. the Treasury is hereby authorized and directed to cause the general account of advances to be charged with the Supp. S., sum of one million dollars, in addition to the sum of two Navy. hundred thousand dollars, provided in the Act approved naval supply March third, eighteen hundred and ninety-three, and the fund. three hundred thousand dollars, provided in the Act approved June tenth, eighteen hundred and ninety-six, making in all one million five hundred thousand dollars, which amount shall be carried, to the credit of the permanent naval supply fund, to be used under the direction of the Secretary of the Navy in the purchase of supplies for the naval service, and to be reimbursed from the proper naval appropriations, whenever the supplies purchased under said fund are issued for use.

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SEC. 3648. No advance of public money shall be made in any case whatever. And in all cases of contracts for the performance of any service, or the delivery of articles of any description, for the use of the United States, payment shall not exceed the value of the service rendered, or of the articles delivered previously to such payment.

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* 5, 1894.

May

18 A. G. Op., p.

105.

See note 2.
Supp. R.

S.,

Payment forbidden to officers employed by con

That hereafter no payment shall be made from appropri- vol. 2, p. 517. ations made by Congress to any officer in the Navy or Marine Corps on the active or retired list while such officer is employed, after June thirtieth, eighteen hundred and tractors, ninety-seven, by any person or company furnishing naval supplies or war material to the Government;

R. S., § 5498.

and such employment is hereby made unlawful after Employment said date.

*

forbidden.

proposals.

18, p. 177.

SEC. 3709. All purchases and contracts for supplies or Title 43. services, in any of the Departments of the Government, Advertisements except for personal services, shall be made by advertising for par. 2, 1861, 9. a sufficient time previously for proposals respecting the 10, v. 12, p. 220 same, when the public exigencies do not require the imme- June 22, 1874, v. diate delivery of the articles, or performance of the service. See notes 3 When immediate delivery or performance is required by the See act of Jan. public exigency, the articles or service required may be pro- 27. 1894, amend. cured by open purchase or contract, at the places and in See sec. 3718, the manner in which such articles are usually bought and same title. sold, or such services engaged, between individuals.

which the contractor agreed. His acceptance and receipt, in full, for the sum allowed is a bar to his suit for a further sum. (S. C., Otto, 104, 464; see also Wallace, XIV, 535.)

Rescinding or renouncing contracts (see C. C., I, 61, 336; III, 38; V, 496; VII, 331; VIII, 67, 319; Op., X, 416). Government delaying or preventing performance by contractor (see C. C., IV, 258, 271; IX. p. 244; Op., XI, 263). Government requesting alterations (C. C., IX, 50; Wallace, XVII, p. 592). Willingness and efforts to perform (C. C., VII, 93; V, 490; Waliace, VIII, 77). Fraudulent contracts (Wallace, VII, 463). Set offs (Op., IV, 380, XI, 120; C. C., XVII, 39, 236, 322). Fines and penalties (Op., IX, 32). Erasures and substitution of items (C. C., II, 366; Wallace, VIII, 489; Op., XV, 226; C. C., V, 215).

Note 2.-This section (3648) does not preclude a payment in any case where the money has been actually earned and the Government has received an equivalent therefor; its object is to prevent payment being made to contractors in advance of the performance of their contracts, whether for services or supplies (18 A. G., 105). Note 3.-This section invests the officer charged with the duty of contracting for supplies, or services, with discretion to dispense with advertising if the exigencies of the service require immediate delivery or performance. (C. Č., VII, 93; S. C., Wallace, VIII, 77; see also Op., III, 437; C. C., I, 48. VII, 84; II, 96; IX, 291.) Note 4.-A navy paymaster purchasing under instructions from commanding officer, entitled to credit for sum expended, although purchased without advertising. (C. C., XV, 247.)

and 4.

ing this section.

Mar. 2, 1891.

900.

All supplies hereafter purchased with moneys appropri26 Stat. L., 799. ated for any branch of the naval establishment shall be Supp. R. S., P. purchased, classified, and issued for consumption or use Naval supplies, subject to the provisions contained in the act making how purchased and issued. appropriations for the naval service, approved June thirR. S., s. 3718. tieth, eighteen hundred and ninety, in reference to supch. 371, ante, p. plies therein provided for and on hand.

Mar. 2, 1889,

678.

See note 5.

June 30, 1890.

All supplies purchased with moneys appropriated by 26 Stat. L., 205. this act shall be deemed to be purchased for the Navy and Supplies to be deemed naval and not for any bureau thereof, and these supplies, together not bureau sup with all supplies now on hand, shall be arranged, classified, consolidated, and catalogued, and issued for consumption or use, under such regulations as the Secretary may prescribe, without regard to the bureau for which they were purchased.

plies.

Jan. 27, 1894.

1892-95, p. 169.

and 8.

That section thirty-seven hundred and nine of the Re28 Stat. L., 33. vised Statutes is amended by adding thereto the following: Supp. R. S., And the advertisement for such proposals shall be made Advertisements by all the Executive Departments, including the Departfor proposals for ment of Labor, the United States Fish Commission, the all Departments. R. S., s. 3709. Interstate Commerce Commission, the Smithsonian InstituSee notes 6, 7, tion, the Government Printing Office, the government of the District of Columbia, and the superintendent of the State, -except for cer. War, and Navy building, except for paper and materials for use of the Government Printing Office, and materials used in the work of the Bureau of Engraving and Printing, which shall continue to be advertised for and purchased as simul now provided by law, on the same days and shall each designate two o'clock post meridian of such days for the opening of all such proposals in each Department and other Government establishment in the city of Washington;

tain printing and engraving.

-to be taneous.

Bids, when opened.

Attorney-General's opinion, Sept. 22, 1894, vol. 21, p. 59.

And the Secretary of the Treasury shall designate the day or days in each year for the opening of such proposals and give due notice thereof to the other Departments and Government establishments.

Such proposals shall be opened in the usual way and

Note 5.-All purchases and contracts for supplies in any of the Departments of the Government must be made by advertisement unless immediate delivery is necessary. The first two sentences of section 3709. Revised Statutes, as amended by the acts of January 27, 1894, chapter 22, and April 21, 1894, chapter 61, apply to purchases anywhere in the United States. The remaining three sentences apply only to pur chases in the city of Washington.

The word "miscellaneous," in the urgent deficiency act of April 21, 1894, section 2, must be restricted to that class of commodities which must be purchased on a considerable scale and used alike by many or all of the various Departments and Gov. ernment establishments in the city of Washington.

Note 6.-R. S., sec. 3709, provides for advertisement for public supplies or services, except in cases of public exigency.

Note 7.-See limitation upon this act, 1894, Apr. 21, ch. 61, sec. 2.

Note 8.--The laws in regard to advertisements for proposal are contained in the following acts: R. S., sec. 3709 (see note 5 above). R. S., sec. 3828, no advertisement is to be published without authority from the head of a Department. By 1876, July 31, ch. 246, par. 2 (1 Supp. R. S., 114), advertisements are not to be published in the District of Columbia unless the contracts are to be performed there. By 1878, June 20, ch. 359, pars. 4, 5 (1 Supp. R. S., 202), no more than commercial rates are to be paid for advertisements. By 1881, Jan. 21, ch. 25 (1 Supp. R. S., 314), advertising in the District of Columbia is regulated.

Special provisions in regard to advertising for the Navy.

In the naval service: In general, R. S., secs. 3718 to 3729; 1890, June 30, ch. 640, par. 3 (1 Supp. R. S., 762); 1893, Mar. 3, ch. 212, par. 6.

Plate iron, 1878, June 14, Res. No. 30 (1 Supp. R. S., 205).

Tobacco, 1881, Mar. 3, ch. 147 (1 Supp. R. S., 326).

Gun steel or armor, 1893, Mar. 3, ch. 212, par. 9, p. 131.

ted to joint board.

schedules thereof duly prepared and, together with the statement of the proposed action of each Department and Government establishment thereon, shall be submitted to-to be submita board, consisting of one of the Assistant Secretaries of the Treasury and Interior Departments and one of the Assistant Postmasters-General, who shall be designated by the heads of said Departments and the Postmaster-General respectively, at a meeting to be called by the official of the Treasury Department, who shall be chairman thereof, and said board shall carefully examine and compare all the proposals so submitted and recommend the acceptance or acceptance or rejection of any or all of said proposals. And if any or all of such proposals shall be rejected, advertisements for proposals shall again be invited and proceeded with in the

same manner.

SEC. 2. That the act entitled "An Act to amend Section thirty-seven hundred and nine of the Revised Statutes relating to contracts for supplies in the Departments at Washington," approved January twenty-seven, eighteen hundred and ninety-four, be, and the same is hereby, so amended that the provisions thereof shall apply only to advertisements for proposals for fuel, ice, stationery, and other miscellaneous supplies to be purchased at Washington for the use of the Executive Departments and other Government establishments therein named; and no advertisements made or contracts awarded or to be awarded thereon since January twenty-seven, eighteen hundred and ninety-four, in accordance with the laws in force prior to said date, shall be declared to be illegal or invalid for noncompliance with said law of January twenty-seventh, eighteen hundred and ninety-four.

rejection.

Act approved

April 21, 1894.

Opening bids. Res., v. 16, p. 246.

Jan. 31, 1868, 8,

SEC. 3710. Whenever proposals for supplies have been solicited, the parties responding to such solicitation shall be duly notified of the time and place of opening the bids, and be permitted to be present either in person or by attor ney, and a record of each bid shall then and there be made. SEC. 3714. All purchases and contracts for supplies or Contracts for the military or services for the military and naval service shall be made naval service, by or under the direction of the chief officers of the Depart- how controlled. ments of War and of the Navy, respectively. And all 3, v.1. p. 610; Feb. agents or contractors for supplies or service as aforesaid 27, 1877, v. 19, p. shall render their accounts for settlement to the accountant of the proper Department for which such supplies or services are required, subject, nevertheless, to the inspection and revision of the officers of the Treasury in the manner before prescribed.

July 16, 1798, s.

249.

to be furnished

SEC. 3718. All provisions, clothing, hemp, and other, Naval supplies materials of every name and nature, for the use of the Navy by contract. [excepting ordnance, gunpowder, or medicines, or the supplies which it may be necessary to purchase out of the United States

Note 9.-The acceptance of the proposition of a bidder creates a contract of the same force and effect as if a formal contract had been written out and signed by the parties. (Otto, 93, 242; C. C., XVII, 92; see Op., XV, 648, as to time in which bids may be withdrawn.)

When a party furnishes sureties and binds himself for the performance of his bid, if accepted, the contract becomes mutual and binding from the moment of its accept

See sec. 3709.
See note 9.

See sec. 3718.

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1850, s. 1, v. 9. p.

8. 4. v. 14, p. 38.

ing this section.

Mar. 3, 1843, v. for vessels on foreign stations; bunting, cheese, things contra5, p. 617; Aug. 5, 1854, s. 1, v. 10, p. band of war, preserved meats, pickles, butter, and desiccated 585; Sept. 28, vegetables, flour, fuel, and materials for boilers. Sections 513; Apr. 17, 1866, 3721, 3726, 3727, 3728, 3729, and acts of June 14, 1878, and See act of June March 3, 1881], and the transportation thereof, when time 36, 1890, amend will permit, shall be furnished by contract, by the lowest bidder, as follows: In the case of provisions, clothing, hemp, and other materials, the Secretary of the Navy shall advertise, once a week, for at least four weeks, in one or more of the principal papers published in the place where such articles are to be furnished, for sealed proposals for furnishing the same, or the whole of any particular class thereof, specifying the classes of materials and referring bidders to the several chiefs of Bureaus, who will furnish them with printed schedules, giving a full description of each and every article, with dates of delivery, and so forth. In the case of transportation of such articles, he shall advertise for a period of not less than five days. All such proposals shall be kept sealed until the day specified in such advertisement for opening the same, when they shall be opened by or under the direction of the officer making such advertisement, in the presence of at least two persons. The person offering to furnish any class of such articles, and giving satisfactory security for the performance thereof, under a forfeiture not exceeding twice the contract price in case of failure, shall receive a contract for furnishing the

June 14, 1878.

1892-5, p. 205.

steam boilers for Navy may

out advertise

same.

That on and after the passage of this act, the Secretary 20 Stat. L., 253. of the Navy be, and he is hereby authorized to purchase at Supp. R. S., the lowest market price, such plate iron and other material Materials for as may enter into the construction of steam boilers for the be Navy without advertising for bids to furnish the same: purchased with- Provided, That he shall cause to be sent to the principal dealers and manufacturers of iron and such other materials 7. S., S. 3709, as may be required specifications of the quality description -notices of, to and character of such iron and materials so required: And provided further, That such plate iron and materials -subject to test. shall be subjected to the same tests and inspection as now provided for and which inspection and tests shall be made publicly and in presence of such bidders or their authorized agents as may choose to attend at the making thereof.

ment. R. 3718.

principal deal

ers.

R. S., s. 4430.

ance, although a formal written contract is to be subsequently executed. (C. C., vol. I. 192.)

A formal notice to a bidder of the acceptance of his bid and of the award of the contract to him is beyond recall, and binding on the United States as a completed obligation. An award thus made is in the nature of a preliminary contract. ` (Op., XV, 226.)

Head of Department has power in advertising for proposals to reserve "the right to reject any and all bids if, in his judgment, the interests of the Government require it." Right of lowest bidder perfect against others, but does not exclude the counter right of the head of the Department of considering, in the interest of the Govern ment, the whole subject, and deciding whether it be fit that any bid should be accepted. (Op., XIV, 682.)

The statutory advertisement for proposals does not enlarge, control, or change the express terms of the contract, and is to be considered as merged therein. (C. C., V, p. 416.)

The advertisement and the proposals in response thereto do not form a part of the subsequent contract, and can not be admitted to contradict or vary the terms thereof. (C. C., VIII, 501.)

Under a contract for a certain quantity of an article, or more if required, a Department is not precluded from advertising for new proposals and awarding a contract for a superior article. Not obliged to receive more than the specified quantity. (Op., XVI., 183; see also Op., X, 93.)

It shall be the duty of the Bureau of Provisions and Mar. 2, 1889. Clothing to cause property accounts to be kept of all the 25 Stat. L., 809. supplies pertaining to the naval establishment, and to report 678upp. R. S., p. annually to Congress the money value of the supplies on Bureau of Prohand at the various stations at the beginning of the fiscal Clothing in Navy year, the dispositions thereof, and of the purchases, and the to keep accounts expenditures of supplies for the year, and the balances hand and report remaining on hand at the end thereof.

visions and

of supplies on

to Congress.

R. S., s. 419.
Feb. 14, 1879,

ch.68, par.1, ante,

p. 216.

Bureau of Provisions and Clothing, hereafter to be called July 19, 1892. Bureau of Supplies and Accounts.

And all laws now in force relating to the Bureau of Provisions and Clothing shall now and hereafter apply to the Bureau of Supplies and Accounts.

27 Stat. L., 236. Vol. 2, Supp. R. S., p. 40. Bureau of Supplies and Ac

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Laws in force.
See note 11.

Mar. 3, 1893.
Permanent na

val supply fund.
R. S., secs. 283,

3673, 3676.

ch. 312 (1 Supp.

1

900).

And the Secretary of the Treasury is hereby authorized and directed to cause general account of advances to be charged with the sum of two hundred thousand dollars, which amount shall be carried to the credit of a permanent naval-supply fund to be used under the direction of the Sec- June 19, 1878, retary of the Navy in the purchase of ordinary commercial R. S., 194); Mar 2, supplies for the naval service, and to be reimbursed from 1891, ch. 494, par. the proper naval appropriations whenever the supplies A. G. Op.. purchased under said fund are issued for use. And section thirty-seven hundred and eighteen of the Length of time Revised Statutes of the United States, as amended by for supplies. the act of July nineteenth, eighteen hundred and ninety- See vol. 2, two, is hereby amended so as to read: "twice a week for Supp. R. S., p. two weeks or longer, not to exceed four weeks, or once a See notes 12 and week for two weeks or longer, not to exceed four weeks, in 13. the discretion of the Secretary of the Navy."

* * *

*

20

p. 617.

for advertising

R. S., sec. 3718.

131.

armor to be ad

vertised for. 3714, 37160

That no contract for the purchase of gun steel or armor Gun steel and for the Navy shall hereafter be made until the subjectmatter of the same shall have been submitted to public competition by the Department by advertisement.

15.

R. S., secs. 3709,

See notes 14 and

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Note 10.-This appears in the appropriation act (27 Stat. L., 243) as a heading-not
a complete sentence-followed by the appropriations for the Bureau for the year.
Note 11.-The laws relating to this Bureau are: R. S., sec. 419, Bureau authorized;
R. S., sec. 416, employees; R. S., secs. 421, 425, qualification of chief; R. S., secs. 420, to Bureau.
430, 3666, 3676, duties; R. S., secs. 1471, 1472, 1473, 1565, rank and pay of chief; R. S.,
sec. 1436, former chief exempt from sea duty; 1878, June 19, ch. 312 (1 Supp. R. S.,
194), "general account of advances" authorized; 1879, Feb. 14, ch. 68, par. 1 (1 Supp.
R. S., 216), "small stores fund" authorized; 1889, Mar. 2, ch. 371 (1 Supp. R. S., 678),
accounts to be kept and reports made; 1890, June 30, ch. 640, par. 2 (1 Supp. R. S., 762),
clothing and small stores funds consolidated; 1891, Mar. 2, ch. 494, par. 1 (1 Supp.
R. S., 900), supplies to be naval and not bureau supplies; 1893, Mar. 3, ch. 212, par. 2,
p. 130, pay, miscellaneous," to be credited with certain receipts.

Note 12.-R. S., sec. 3718, provides that materials for the Navy shall be furnished by contract, to be advertised "once a week, for at least four weeks."

By 1890, June 30, ch. 640, par. 3 (1 Supp. R. S., 762), this was changed to "twice a week for at least two weeks or longer, not to exceed four weeks, in the discretion of the Secretary of the Navy."

By 1892, July 19, ch. 206 (27 Stat. I.., 243, 244), this was changed to "twice a week for two weeks or longer, not to exceed four weeks, or once a week for four weeks, in the discretion of the Secretary of the Navy."

These are all superseded by the provision appearing above.

Note 13.-This provision has appeared in the naval appropriation acts of 1891, Mar. 2, ch. 494 (26 Stat. L., 813), and in 1892, July 19, ch. 206 (27 Stat. L., 249).

Note 14.-This provision supersedes a similar provision in the appropriation act
of 1892, July 19, ch. 206 (27 Stat. L., 236).

Note 15.-This provision is repeated from the naval appropriation acts of 1891,
Mar. 2, ch. 491 (26 Stat. L., 815), and 1892, July 19, ch. 206 (27 Stat. L., 251).

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