under direction

1145. All purchases and contracts for supplies or serv- Contracts for the military services for the military and naval service shall be made by orio to be made under the direction of the chief officers of the Departments of Secretary of of War and of the Navy, respectively. And all agents or

Under this statute the Secretary of War is the source of all authority to make contracts or purchases in all branches of the military establishment. "Whether he makes the contracts himself or confers the authority upon others, it is his duty to see that they are properly and faithfully executed; and if he becomes satisfied that contracts which he has made himself are being fraudulently executed, or those made by others were made in disregard of the rights of the Government, or with the intent to defraud it, or are being unfaithfully executed, it is his duty to interpose, arrest the execution, and adopt effectual measures to protect the Government against the dishonesty of subordinates." U. S. e Adams, 7 Wall., 463, 477; Parish v. U. S, 8 Wall., 489.

The head of an Executive Department may, when not prejudicial to the interests of the Government, or for its benefit, alter or modify the terms of a contract made under his direction, but his subordinates may not take such action without express authority from him. (2 Compt. Dec., 182.)

The laws governing the purchase of supplies for the Army are equally applicable whether the purchases are made from funds received from the sale of stores or from the regular appropriations available therefor. (3 Dig. Compt. Dec., 287.)

It is only an express contract which (in the absence of special authority from Congress) can legally be entered into by the Secretary of War, or a military officer, or can be recognized and acted upon as binding upon the United States. Claims against the United States arising upon alleged implied contract can not be entertained, but the claimants must be referred to the Court of Claims or Congress. Further, the contract, to be legally made or recognized as legal, must be in writing (a) (except only according to the ruling in Cobb's Case (b) when entered into without previous advertisement by reason of the existence of a "public exigency;" see infra). So, in a case where the only evidence of an alleged contract of lease consisted of vouchers, setting forth accounts for rent claimed, approved by an assistant quartermaster, held, that there was no sufficient evidence of an express or written contract upon which payment could be authorized by the Secretary of War. (c) (Dig. Opin. J. A. Gen., 275. par. 1.)

The Secretary of War has authority to extend the time for the execution of a contract made on behalf of his Department when the interests of the Government are not thereby prejudiced, and particularly when its noncompletion within the time limited is not due to the negligence of the contractor. (2 Compt. Dec., 242; Solomon r. U.S, 19 Wall., 17; U. S. e. Corliss Steam Engine Co, 91 U. S., 321; 18 Opin. Att. Gen., 101; 2 Compt. Dec., 635.)

a See Henderson v. U. S., 4 C. Cls. R., 75; 14 Opin. Att. Gen., 229, Clark r. U. S., 95 U.S., 539.

bCobb v. U. S., 7 C. Cls. R., 470, and 9 ibid., 291. And see Thompson v. U. S.,

ibid, 198.

War.

July 16, 1798, c.

85, s. 3. v.1, p. 610, Feb. 27, 1877, c. 69, v. 19, p. 249.

Sec. 3714, R. S.

c See 14 Opin. Att. Gen., 230.

Unauthorized contracts prohibited.

Mar. 2, 1861, c.

220.

contractors for supplies or service as aforesaid 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.

1146. No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law 84. s. 10, v. 12. p. or is under an appropriation adequate to its fulfillment, Sec. 3732, R.S. 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.1

No contract to exceed appropri ation.

July 25, 1868, c.

1147. No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any 233, s. 3, v. 15, p. public improvement which shall bind the Government to Sec. 3733, R. S. pay a larger sum of money than the amount in the Treas ury appropriated for the specific purpose.2

177.

Purchases of

land.

May 1, 1820, c. 52, s. 7, v. 3, p. 568.

Sites for build

ings.

18, p. 371.

1148. No land shall be purchased on account of the United States, except under a law authorizing such purchase.3

Sec. 3736, R. S.

1149. No money shall be paid nor contracts made for Mar. 3, 1875, v. payment for any site for a public building in excess of the amount specifically appropriated therefor. Act of March 3, 1875 (18 Stat. L., 371).

4

The restrictions of section 3732, Revised Statutes, are in the alternative, prohibiting a contract or purchase on the part of the United States unless authorized by law or unless such contract or purchase is made under an appropriation adequate to its fulfillment.' Contracts to be valid must be shown to come under one or the other of these provisions. Shipman . U. S., 18 C. Cls. R., 138.

When the authority to enter into a contract for a particular work in behalf of the United States depends wholly upon an appropriation of money made for that pur pose, no officer of the Government has power to create a liability therefor beyond the amount of the appropriation, and a contractor can not recover more than the money appropriated, whatever may be the extent of his work. When an alleged liability rests wholly upon the authority of an appropriation, they must stand or fall together, so that when the latter is exhausted the former is at an end, to be revived, if at all, only by subsequent legislation by Congress. Shipman r. U.S.. 18 C. Cls. R., 138, 147; McCullom v. U. S., 17 ibid., 92, 103; Trenton Co. v. U. S.. 12 ibid., 147, 157.

If an officer is clothed with authority to do a piece of work without limitation as to cost, the contracts made by him therefor are binding upon the Government, whether money is appropriated for the purpose or not. Shipman e. U. S., 18 ibid., 138; Collins . U. S., 15 ibid., 22, 35; 13 Op. Att. Gen., 315; 15 ibid., 236.

Acknowledgments and promises made by executive officers of the Government do not bind the United States when they are not made under express or implied authority of Congress. Leonard et al. v. U. S., 18 C. Cls, R., 382.

Authority to contract for the completion of an entire structure, the plan of which has been determined on, can not be inferred from the mere fact that an appropriation of a certain sum, to be expended on the structure, has been made. Hence a contract, though it be good to the extent of such appropriation, could not affix itself to future appropriations and control their expenditure. A contract of this character would be in violation of the spirit of section 3, act of July 25, 1868 (sec. 3733, R. S.), if not of its express terms. 15 Opin. Att. Gen., 236.

Under section 5 of the act of June 20, 1874 (18 Stat. L.. 111), all appropriations for "public buildings are available until otherwise ordered by Congress. 3 Compt. Dec., 29. A sub-appropriation for a public building must, under the act of June 20, 1874 (18 Stat. L., 110, 111), remain available until its object has been accomplished or until it has been exhausted, unless otherwise ordered by Congress. Ibid.

3 The act of Congress does not prohibit the acquisition by the United States of the legal title to land, without express legislative authority, when it is taken by way of security for debt. Neilson . Lagow, 12 How.. 98.

4 See, also, for additional restrictions the act of March 3, 1875 (18 Stat. L., 371).

exceptions.

1150. Hereafter no Department or officer of the United Acceptance of voluntary servStates shall accept voluntary service for the Government ice prohibited; or employ personal service in excess of that authorized by May 1, 1884, v. 23, p. 17. law, except in cases of sudden emergency involving the loss of human life or the destruction of property. Act of May 1, 1884 (23 Stat. L., 17).

Contracts and purchases. how

ing; public exi

220

Mar. 2, 1861, c.

ecutive Depart

Sec. 3709, R. S.

1151. All purchases and contracts for supplies' or serv ices, in any of the Departments of the Government, except made; advertis for personal services, shall be made by advertising a suf- gencies. ficient time previously for proposals respecting the same, 84, s. 10. v. 12, p. when the public exigencies do not require the immediate Supplies for Exdelivery of the articles, or performance of the service. ments. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals." 1152 And the advertisement for such proposals shall be Advertisements made by all the Executive Departments, including the Departments to be partment of Labor, the United States Fish Commission, the Sec. 1. Jan. 27, Interstate Commerce Commission, the Smithsonian Institution, the Government Printing Office, the government of the District of Columbia, and the superintendent of the State, War, and Navy building, except for paper and materials for use of the Government Printing Office, and

1 The word supplies," as used in section 3709 of the Revised Statutes evidently has reference to those things which the well-known needs of the public service will from time to time require in its different branches for its successful and efficient administration, and the statute was intended to afford the Government the pecumary benefits, as well as the protection against fraud and favoritism, which open and honest competition is always likely to secure. It could not have been in the mind of the lawmaking power to require that purchases could only be made after advertisement of small articles which may occasionally be needed, and where in many cases the cost of advertising itself would exceed the value of the article purchased It can not be said that such cases are governed by the emergency provision in the statute, for there may be and are, many instances where the officer could not truthfully certify that immediate delivery was necessary (3 Dig Compt. Dec., 288.) The act of March 2, 1861 (sec. 3709, R. S.), while requiring such advertisement, as the general rule invests the officer charged with the duty of procuring supplies or services with a discretion to dispense with advertising, if the exigencies of the pub. lic service require immediate delivery or performance. It is too well settled to admit of dispute at this day that, where there is a discretion of this kind conferred on an officer or board of officers, and a contract is made in which they have exercised that discretion, the validity of the contract can not be made to depend on the degree of wisdom or skill which may have accompanied its exercise. (U. S. v. Speed, 8 Wall. 77, 83; Childs v. U. S., 4° C. Cls. R., 176; Mason v. U. S.. 4 C. Cls. R., 495; Wentworth e. U.S.. 5 C Cls. R, 302. ) See note 3.

Section 3709, Revised Statutes, provides, generally, that the making of public contracts for supplies, etc., shall be preceded by an advertising for proposals when the puble exigencies do not require the immediate delivery of the articles or performance of the service. Exigencies growing out of a state of war, or hostilities with Indians, were probably mainly had in view, and it is exigencies of this class which have been considered in the adjudged cases in the Supreme Court and Court of Claims. (a) It is clear, however, that other exigencies may exist requiring that contracts or purchases be made at once or without the delay incident to advertising for proposals. Thus a loss of stores, structures, etc., on hand, caused by an actus Dei

a See U. S. v. Speed, 8 Wallace, 83; Reeside v U. S., 2 C. Cls. R.. 1; Mowry v. U. S., ibid., 68; Stevens c. U. S., ibid., 95; Floyd r. U. S., ibid., 429: Crowell c. U. S., ibid., 501 Baker r. U. S., 3 ibid., 343; Henderson v. U. S., 4 ibid., 75; Childs v. U. S., ibid., 176; Wentworth c. U. S., 5 ibid., 302; Wilcox v. U. S., ibid., 386; Cobb v. U. S., 7 ibid., 471, and 9 ibid., 291; Thompson r. U.S., ibid., 187; McKee v. U. S., 12 ibid., 505.

for all the De

on the same day.

1894, v. 28, p. 33. R.S. Sec. 3709,

ing bids to be the

ваше.

materials used in the work of the Bureau of Engraving and Printing, which shall continue to be advertised for and purTime for open-chased as 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; 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 schedules thereof duly prepared and, together with the statement of the proposed action of each Department and Government establishment thereon, shall

or vis major, as fire, storm, freshet, or a sudden riot or violent disorder; or a loss of supplies occasioned by the neglect of military subordinates in charge; or a failure of a contractor to fulfill a contract for supplies, transportation, or other service, might properly be regarded as constituting an exigency" under the statute, if of such magnitude or injurious consequence to the Army as to necessitate an immediate making good of the deficiency. (a) The general rule, however, of the statute in requiring a notice and invitation to the public as a preliminary to the awarding of a contract, is founded upon a sound and well-considered public policy, and exceptions thereto, especially in time of peace, should be recognized as admissible only where, if the rule were strictly complied with, the public interests would manifestly be most seriously prejudiced. (b) (Dig. Opin. J. A. G., 279, par. 9.)

A cer

An exigency can not be created by the simple certificate of a public officer that it exists. An exigency involves a state of pressing necessity so great that the public interests would be prejudiced if the contemplated purchase was not made. tificate made after the purchase of the articles is of no effect. (3 Dig. Compt. Dec., 286.) The term "public exigency" refers to an exceptional and urgent necessity requiring the immediate performance of the work or service. (Ibid., 328.)

Proof of the existence of an exigency must be presented in order to authorize the accounting officers to pass a voucher for an exigency purchase under section 3709 of the Revised Statutes. Such proof must accompany the voucher in the form of a certificate by the officer who made the purchase that a public exigency required the immediate delivery of the articles purchased, and that they were, therefore, purchased in open market. In other words, there must be proof that the proper officer has actually determined that an exigency existed. The certificate may be made in the following form: "The exigencies of the public service required the immediate delivery of the articles specified in the voucher, and they were, therefore, obtained by purchase in open market, without advertisement, and at the lowest market rates." (Ibid.)

Except in the rare case of an existing public exigency a contract for supplies in the War Department or military branch of the service is to be preceded by an adver tisement for proposals as directed in section 3709. Revised Statutes. This advertisement is not a mere facility for the convenience of an executive department, which may be waived at discretion, but an essential proceeding prescribed by the statute as a condition to the exercise of the authority to enter into a contract for the United States. Thus enjoined, no omission or evasion of this prerequisite, however con

a See G. O. 10 of 1879, secs. 22 25, pp. 14-15; do. 72, ibid., p. 52; do. 40 of 1880, p. 58; also McKee v. U. S., 12 C. Cls. R., 529–530.

b As to the authority who is to decide whether there exists such an exigency as is contemplated by the statute, the Supreme Court, in United States v. Speed (8 Wall ace, 83), has held that it is the officer charged with the duty of procuring suppliesor services who is invested with this discretion This description is rather general, nor is the term "the purchasing officer, by which the Court of Claims explains it, in Thompson v. U. S., 9 C. Cls. R., 196, a much more precise definition. It is clear, however, that a subordinate officer charged with the duty of being the immediate representative of the United States in a contract or purchase should not, in general, venture to dispense with advertising, on the theory of the existence of a public exigency, in the absence of instructions or orders from a proper superior. Nor, on the other hand, will a superior officer, in entering into a contract for his command or branch of the service properly assume that an "exigency" exists authorizing him to dispense with the statutory forms, when the period is time of peace and no imperative necessity exists for the immediate delivery of the supplies or performance of the service proposed to be contracted for. It is to be noted that the cases both of Speed and Thompson related to contracts entered into during the late war. In the instructive opinions of the Attorney-General on the "Fifteen per cent contracts" of April 27 and May 3, 1877 (15 Opin., 235, 253), it is held that the "exigency" contemplated by the statute can be one of time only, and that it can be regarded as existing only where an immediate delivery or performance is required by a public necessity. (Dig. J. A. Gen., p. 280, note 1.)

board for approv

be submitted to a board, consisting of one of the Assistant Submission to Secretaries of the Treasury and Interior Departments and al. 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 rejection of any or all of said proposals.

venie t such an omission or evasion may be, can legally be allowed. (a) So held that it was no excuse for a noncompliance with the statute by a quartermaster, that his contracts (made without advertisement) had been made with the most reliable parties and to the advantage of the United States. And, held that the requirement as to advertising for proposals must be complied with in contracting for a supply of articles purchased for trial, equally as if the contract were for the regular yearly supplies. (Dig. Opin. J. A. G., 275, par. 2.)

The main object of the advertisement is to induce a free and open competition for the contracts of the Government, and thus to protect the United States from fradulent combinations and collusive preferences in its business transactions.(b) At the same time the advertisement, in inviting proposals from the public, is properly to be viewed as a pledge on the part of the United States that the contract will as a general rule, be awarded to the lowest bidder, provided he is a responsible person and his bid is a reasonable one, and provided, of course, he complies with the existing regulations as to bond, etc. (Ibid., 276, par. 3.)

A military emergency can not be measured by precise rules. Thompson & U. S., 9 C. Cls. R, 187. The act of March 2, 1861 (sec. 3709, R. S), requires of a quartermaster that openness, diligence, prudence, and care which an individual might be supposed to exercise were he buying goods in just such an emergency and under just such circumstances. A statute relating to national emergencies must necessarily be construed liberally, but a case under it can form no precedent for other cases. What was right for a quartermaster to do under certain circumstances can be lawful and right only when the precise circumstances are repeated. Childs & Co. v. U. S., 4 C. Cls. R., 176,

An officer charged with the duty of making a contract, or purchase is responsible under the laws and regulations for his action. Permission or orders to make a contract or purchase without inviting competition will not justify that procedure, and will not be given. (Par. 519, A. R., 1895.)

In the absence of any emergency in fact, or any declared by the head of the Department in which a public work is being carried on, or any emergency that can be judicially inferred, the requirements of this section, in respect to advertisement, are mandatory, and a contract made in violation of it is void. (Schneider v. U. S., 19 C. Cls. R., 547, 551.)

Personal services are such as the individual employed or contracted with must perform, in person, directly under the control and supervision of an officer or agent of the Government as distinguished from services the performance of which may be delegated by the contractor to others. (Par. 518, A. R., 1895.) They are contracts for expert or skilled service to be performed by the contractor in person. (Dig. Opin. J. A. G., 281 par. 11.)

Where the essential part of a contract is for personal services, advertising for proposals under section 3709, Revised Statutes, is not required. (2 Compt. Dec., 185.) Section 3709 does not require the advertising for proposals, nor the entering into contracts for the purchase of patented or copyrighted articles where the benefit of competition can not be secured. (2 Compt. Dec., 632.) For provisions of regulations respecting purchases, etc., see paragraphs 515-520, Army Regulations of 1895.

a See 6 Opin. Att. Gen., 406; 10 ibid., 28; also opinion of the Solicitor General of March 20, 1876 (15 Opin. 539), wherein, in holding contracts made without advertising to be not binding on the United States, he dissents from the opinion of Attorney-General Bates, in 10 Opin., 416, to the effect that while an absence of the prescribed advertisement will render illegal and inoperative an unexecuted contract, the Government can not, on account of such omission, rescind, to the damage of a contractor, a contract entered into by him in good faith and partly performed. In a later opinion of April 27, 1877 (15 Opin., 236), the Attorney General refers to the question, whether the provision of section 3709, Revised Statutes, requiring that contracts in general shall be preceded by advertisement, is manda tory or only directory, as one which has been much discussed (see, for example, the reference to this question in Fowler v. U. S., 3 C. Cls. R., 47), but is not required to be decided in that opinion. But whatever may be the true construction of this section, it is clear that no officer of the Army, in the absence of express authority to do so from the Secretary of War, can be justified in omitting to comply with the provision in regard to advertising.

bSee Harvey r. U. S., 8 C. Cls. R., 506. In regard to a statute (similar to section 3709), governing the Post-Office Department, the Supreme Court, in Garfield v. U. S., 3 Otto, 246, say: "The object of the statute was to secure notice,

that

bidders might compete, that favoritism should be prevented, that efficiency and economy in the service should be obtained."