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bid.

No fees are

against the Gov

G. Op., p. 181.

See note 16.

Guarantee of SEC. 3719. Every proposal for naval supplies invited by Aug. 10, 1846, the Secretary of the Navy, under the preceding section, s. 6, v. 9, p. 101. shall be accompanied by a written guarantee, signed by one chargeable or more responsible persons, to the effect that he or they ernment for the undertake that the bidder, if his bid is accepted, will, at service of obtain such time as may be prescribed by the Secretary of the ing a certificate of sufficiency of Navy, give bond, with good and sufficient sureties, to furbondsmen. 19 A. nish the supplies proposed; and no proposal shall be considered, unless accompanied by such guarantee. If, after the acceptance of a proposal, and a notification thereof to the bidder, he fails to give such bond within the time prescribed by the Secretary of the Navy, the Secretary shall proceed to contract with some other person for furnishing the supplies; and shall forthwith cause the difference between the amount contained in the proposal so guaranteed and the amount for which he may have contracted for furnishing the supplies, for the whole period of the proposal, to be charged up against the bidder and his guarantor; and the same may be immediately recovered by the United States, for the use of the Navy Department, in an action of debt against either or all of such persons.

Record of bid

Congress.

5, p. 617.

SEC. 3720. All such proposals for naval supplies shall be and report to preserved and recorded, and reported by the Secretary of Mar. 3, 1843, v. the Navy to Congress at the commencement of every regular session. The report shall contain a schedule embracing the offers by classes, indicating such as have been accepted. In case of a failure to supply the articles or to perform the work by the person entering into such contract, he and his sureties shall be liable for the forfeiture specified in such contract, as liquidated damages, to be sued for in the name of the United States.

Purchases that

without adver

tising.

See sec. 3718.

Mar. 3, 1847, s. 2,

p. 272; Mar. 2,

under "Tobac

SEC. 3721. The provisions which require that supplies may be made shall be purchased by the Secretary of the Navy from the lowest bidder, after advertisement, shall not apply to ordMar. 3, 1845, s. nance, gunpowder, or medicines, or the supplies which it 3. v. 5, p. 794; may be necessary to purchase out of the United States for v. 9, p. 172; Aug. Vessels on foreign stations, or bunting delivered for the use 3, 1848, s. 11, v. 9, of the Navy, or tobacco, or butter or cheese destined for 1865, 8. 7, v. 13, p. the use of the Navy, or things contraband of war. Con467. See sec. 5503 tracts for butter and cheese for the use of the Navy may be ce," same title. made for periods longer than one year, if, in the opinion of 20 A. G. Op., P. the Secretary of the Navy, economy and the quality of the Tobacco to be ration will be promoted thereby. The Secretary of the advertisement. Navy may enter into contracts for tobacco from time to See act of March time, as the service requires, for a period not exceeding four years; and in making such contracts he shall not be restricted to the lowest bidder, unless, in his opinion, economy and the best interests of the service will be thereby promoted.

329.

་་

procured after

3, 1881.

What bids be rejected.

may

SEC. 3722. The chief of any Bureau of the Navy Department, in contracting for naval supplies, shall be at liberty to reject the offer of any person who, as principal or surety, has been a defaulter in any previous contract with the

Note 16.-This opinion was rendered upon the law requiring the Secretary of the Navy to ascertain the sufficiency of sureties on bonds of pay-officers.

Navy Department. Parties who have made default as principals or sureties in any former contract shall not be received as sureties on other contracts; nor shall the copartners of any firm be received as sureties for such firm or for each other; nor, in contracts with the same Bureau, shall one contractor be received as surety for another. Every contract shall require the delivery of a specified quantity, and no bids having nominal or fictitious prices shall be considered. If more than one bid be offered by any one party, by or in the name of his or their clerk, partner, or other person, all such bids may be rejected; and no person shall be received as a contractor who is not a manufacturer of, or regular dealer in, the articles which he offers to supply. All persons offering bids shall have the Opening bids. right to be present when the bids are opened and inspect, v. 12, p. 828. the same.

Mar. 3, 1863, s.

for

foreign supplies

3, v. 16, p. 535.

SEC. 3723. No chief of a Bureau shall make any contract Contracts for supplies for the Navy, to be executed in a foreign coun- for the Navy. try, except it be on first advertising for at least thirty days, Mar. 3, 1871, 8. in two daily newspapers of the city of New York, inviting sealed bids for furnishing the supplies desired; which bids shall be opened in the presence of the Secretary of the Navy and the heads of two Bureaus; and contracts shall in all cases be awarded to the lowest bidder; and paymasters for the Navy on foreign stations shall render, when practicable, with their accounts, an official certificate from the resident consul, or commercial or consular agent of the United States, if there be one, to be furnished gratuitously, vouching that all purchases and expenditures made by the paymasters were made at the ruling market-prices of the place at the time of purchase or expenditure.

Rejection of excessive bids. July 4, 1864, s. v. 13, p. 394.

SEC. 3724. Where articles are advertised and bid for in classes, and in the judgment of the Secretary of the Navy any one or more articles appear to be bid for at excessive or 7, unreasonable prices, exceeding ten per centum above their fair market-value, he shall be authorized to reject such bid. SEC. 3725. All hemp, or preparations of hemp, used for naval purposes by the Government of the United States, shall be of American growth or manufacture, when the same can be obtained of as good quality and at as low a price as foreign hemp.

Hemp.

July 14, 1862, s.

11, v. 12, p. 554.

July 18, 1861, s.

SEC. 3726. The Secretary of the Navy is authorized to Preserved procure the preserved meats, pickles, butter, and desiccated meats, etc. vegetables, in such manner and under such restrictions and 7, v. 12, p. 265. guarantees as in his opinion will best insure the good quality of said articles.

Flour and

bread.
Mar. 3, 1863, s.

SEC. 3727. The Secretary of the Navy is authorized to purchase, in such manner as he shall deem most advantageous to the Government, the flour required for naval use; 4, v. 12, p. 818. and to have the bread for the Navy baked from this flour by special contract under naval inspection.

factures to be pre

SEC. 3728. The Secretary of the Navy, in making con- Home manutracts and purchases of articles for naval purposes, shall ferred. give the preference, all other things, including price and quality, being equal, to articles of the growth, production,

Fuel.

Sept. 28, 1850,

and manufacture of the United States. In purchasing fuel for the Navy, or for naval stations and yards, the 8. 1, v. 9, pp. 513, Secretary of the Navy shall have power to discriminate and purchase, in such manner as he may deem proper, that kind of fuel which is best adapted to the purpose for which it is to be used.

515.

Bunting.

Mar. 2, 1865, s. 7, v. 13, p. 467.

Relinquishment

of reservations

on deliveries.

5, v. 5, p. 703.

18.

SEC. 3729. The Secretary of War, the Secretary of the Navy, and the Secretary of the Treasury may enter into contract, in open market, for bunting of American manufacture, as their respective services require, for a period not exceeding one year, and at a price not exceeding that at which an article of equal quality can be imported.

SEC. 3730. The Secretary of the Navy may relinquish and pay all reservations of the ten per centum upon delivJune 17, 1844, s. eries made under contracts with the Navy Department, See notes 17 and where these reservations have arisen and the contracts have been afterward extended, or where the contracts have been completed after the time of delivery, by and with the consent of the Department, or where the contracts have been dissolved by the like consent, or have been terminated, or an extension thereof has been prevented by operation of law, where no injury has been sustained by the public service.

Name of contractor to appear on supplies.

July 17, 1862, s. 15, v. 12, p. 596.

Unauthorized

ited.

s. 10, v. 12, p. 220. See note 19.

SEC. 3731. Every person who shall furnish supplies of any kind to the Army or Navy shall be required to mark and distinguish the same with the name of the contractor furnishing such supplies, in such manner as the Secretary of War and the Secretary of the Navy may, respectively, direct; and no supplies of any kind shall be received, unless so marked and distinguished.

SEC. 3732. No contract or purchase on behalf of the contracts prohib- United States shall be made, unless the same is authorized March 2, 1861, 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.

No contract to

ation.

SEC. 3733. No contract shall be entered into for the

exceed appropri erection, repair, or furnishing of any public building, or July 25, 1868, 8. for any public improvement which shall bind the govern

3, v. 15, p. 177.

See sec. 3730.

See sec. 3732.

Note 17.-Where a contractor failed to compete, and other parties did it on much less terms, held that, the United States having sustained no loss, the original contractor was entitled to the 10 per cent. reservation, but not to the profits he would have made, nor to the difference between the contract price and that which others were paid. Some special provisions were in this contract.] (Otto, 99, p. 30.)

Note 18.-In a failure to fulfill, neither the head of the Department nor the accounting officers can pay the reservations. They have no authority to adjust claims for damages under contracts. Congress alone can afford relief. (Op., II, 481; IV, 327; VI, 516.) Claim for unliquidated damages, breach of contract, can not be entertained by the accounting officers. (Op., XIV, p. 24.)

Contract fully performed and no damage whatever sustained by Government, per diem forfeiture not warranted. (Op., XV, p. 420.)

The head of a Department may waive a forfeiture in a case of good faith where the forfeiture occurred through misfortune. "The officers of the Government are not bound, from the nature of our institutions, to perpetrate an act of injustice in the name of the United States. (Op., II, p. 485.)" (Op., XII. p. 112.)

Note 19.-Contracts for clothing, subsistence, forage, fuel, quarters, and transportation may be made, though there is no appropriation adequate to the fulfillment of the contract or purchase, not to exceed the necessities of the current year. (Op., XV, 124 and 209. See also Op., VI, 27.)

Same title.

ment to pay a larger sum of money than the amount in the See sec. 5503. Treasury appropriated for the specific purpose.

Restrictions on

July 15, 1870, v.

SEC. 3734. Before any new buildings for the use of the commencement United States are commenced, the plans and full estimates of new buildings. therefor shall be prepared and approved by the Secretary 16, p. 296. of the Treasury, the Postmaster-General, and the Secretary See see. 3663 ap propriations, of the Interior; and the cost of each building shall not Part III. exceed the amount of such estimate.

28 Stat. L., p. 278.

Contractors on public works.

That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion Penal bond to of any public work or for repairs upon any public building include security or public work, shall be required before commencing such ferlabor and mawork to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the Department under the direction of which said work is being, or has been, prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials shall for labor or ma have a right of action, and shall be authorized to bring suit terials furnished. in the name of the United States for his or their use and benefit against said contractor and sureties and to prosecute the same to final judgment and execution: Provided, That such action and its prosecution shall involve the United States in no expense.

SEC. 2. Provided that in such case the court in which such action is brought is authorized to require proper security for costs in case judgment is for the defendant. SEC. 3735. It shall not be lawful for any of the Executive Departments to make contracts for stationery or other supplies for a longer term than one year from the time the contract is made.

Action on bond

Proviso.

Expense.

Costs.

Contracts lim

ited to one year. Jan. 31, 1868,

Res., v. 15, p.246;

Mar. 24, 1874,
Res., v. 18, p. 286
[modifying as to
certain articles
under Post-Office
Department].
See note 20.

purchases of

SEC. 3736. No land shall be purchased on account of the Restriction on United States, except under a law authorizing such chase.

pur-land.

SEC. 3737. No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order trans

Note 20.-The head of a Department is the competent judge of the matters of fact involved in the acceptance or rejection of any of the proposals for stationery. (Op., VI, p. 226.)

May 1, 1820, 8.7, v. 3, p. 568. See Public Property and Buildings, Division III.

No transfer of contracts. July 17, 1862, s.

14.

v. 12, p. 596.

See sec. 3735.

and 23.

Eight hours to

See notes 21, 22, ferred, so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States.. SEC. 3738. Eight hours shall constitute a day's work for be a day's work. June 25, 1868, v. all laborers, workmen, and mechanics who may be emC., 94, 400, Op., ployed by or on behalf of the Government of the United XII, 530; XIII, States.

15, p. 77. See S.

29, 424; XIV, 37,

45, 128; XVI, 58. 1882. See sec. 3689, under Appropriations: 19 A. G. Op., p. 685. See note 24.

Aug. 1,1892.

part of General

That the service and employment of all laborers and This act was mechanics who are now or may hereafter be employed by published as a the Government of the United States, by the District of Order, No. 398, Columbia, or by any contractor or subcontractor upon any Aug. 6. 1892, by of the public works of the United States or of the said DisActing Secretary James R. Soley. trict of Columbia, is hereby limited and restricted to eight hours in any one calendar day, and it shall be unlawful for any officer of the United States Government or of the District of Columbia or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in case of extraordinary emergency.

Title 43.

SEC. 2. That any officer or agent of the Government of the United States or of the District of Columbia, or any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon any of the public works of the United States or of the District of Columbia who shall intentionally violate any provision of this act, shall be deemed guilty of a misdemeanor, and for each and every such offense shall, upon conviction, be punished by a fine not to exceed one thousand dollars or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof.

SEC. 3. The provisions of this act shall not be so construed as to in any manner apply to or affect contractors or subcontractors, or to limit the hours of daily service of laborers or mechanics engaged upon the public works of the United States or of the District of Columbia for which contracts have been entered into prior to the passage of this act.

SEC. 3739. No member of or delegate to Congress shall Members of directly or indirectly, himself, or by any other person in Congress not to trust for him, or for his use or benefit, or on his account, contracts. undertake, execute, hold, or enjoy, in whole or in part, any

be interested in

See sec. 3737.

Note 21. This section (3737) is intended simply for the benefit of the United States, which is not compelled to avail itself of a transfer by the contractor, but may recog nize the same and accept and pay the assignee. (Ops., XVI, p. 278; XV, p. 236.)

Note 22.-Contracts of a personal nature, importing high trust and confidence in contractors, can not be assigned or transferred without the consent of the Depart ment. (Op., X, p. 5.)

Note 23. An assignment of contract, under act of July 17, 1862, is void, and passes no title, legal or equitable. An assignment of a claim for money due under a contract passes title to the money due, as though it were the sale of a chattel. (C. C., IX. p. 156; see also C. C., V, 504.)

Note 24.-See later act of August 1, 1892.

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