found that the area was level, sandy and covered
with grass, and that at that time no fill had
been placed and so reported to plaintiff; it is
nevertheless found on all the evidence that the
oolite, or lime rock, was definitely visible to
an observer in the spoil banks around the drain-
age canals adjacent to the site, and further that
plaintiff's president had previously performed
another contract in the same area and was also
himself familiar with the site and the nature
of the soil. Id.
LXV. It is held that plaintiff's assumption that the fill
would be sand, which had only a very limited
use as a fill material for large buildings, was at
plaintiff's peril, and the resultant loss to plain-
tiff cannot, under the facts and the terms of the
contract, be shifted to the Government. Plain-
tiff's first cause of action is dismissed. Id.
United States 70 (2).
LXVI. Where plaintiff's recovery on its second cause of
action depends upon the scope and effect of an
agreement between plaintiff and the defendant's
area engineer concerning certain allocations of
lumber by the Government, it is held that plain-
tiff is not entitled to recover where it is shown
that the area engineer was not authorized to
make the agreement on behalf of the Government.
Id.
LXVII. Not only was the agreement not reduced to writing
but the Government's contracting officer, who
was authorized to act for the Government, did
not know of the agreement until long after it
was made, and it was not mentioned by plaintiff's
president in conferences with the contracting
officer at a time when the agreement was cer-
tainly material to the subject under discussion.
Id.
LXVIII. Plaintiff was bound to take notice of the limits of
the area engineer's authority and the Govern-
ment is not bound by his unauthorized acts.
See Kelly v. United States, 116 C. Cls. 811. Id.
United States 60.
LXIX. In a suit to recover damages by reason of the
alleged breach of a contract of sale to plaintiff
of certain merchandise from the War Assets
Administration where the contract resulted from
the submission of plaintiff's bid on September 13,
1948, and the acceptance thereof and the award
of sale to plaintiff by the Board of Awards, on
September 17, 1948, and the mailing by de-
fendant of a notice of award to plaintiff on
October 7, 1948; it is held that plaintiff is en-
titled to recover. Richard Miller, 438.
LXX. The War Assets Administration on September 13,
1948, conducted a sealed bid sale of surplus
merchandise. In the announcement of the sale
it was stated that bids must be received at the
WAA Customer Service Center in Washington
by 10 a. m., on September 13, 1948. Prior to that
hour plaintiff delivered a written bid, accom-
panied by a check, to the WAA Regional Office
in Philadelphia, of which the Washington
Customer Service Center was a branch. The bid
was received by the official in charge of the sale,
and was telephoned to the Washington office and
without objection was considered with all other
bids at the opening of the bids on September
13th. It was found to be the highest bid for the
articles specified therein. All the bids were
submitted to the Board of Awards in Philadel-
phia on September 17th. After an explanation
of the facts concerning the submission of plain-
tiff's bid, and an objection which had been
made to the Washington office by another bidder,
on the ground that it had been filed at the Phila-
delphia office instead of the Washington office,
counsel advised the Board that plaintiff's bid
was valid, and it was accepted and the plaintiff
was notified of its acceptance by the Board of
Awards. Id.
LXXI. It is held that the bid was valid, because the
Government reserved the right, as one of the
conditions of sale, to waive any informality in
connection with the submission of bids. Id.
United States
LXXII. No other bidder had been prejudiced by the in-
formality in connection with the submission
by plaintiff of its bid, which consisted of the
filing of a written bid at the main office of the
WAA, Field Disposal Division in Philadelphia,
and with the chief official of the Regional Office,
instead of with the branch office at Washing-
ton. Id.
LXXIII. After the meeting of the Board, a complete memo-
randum on the matter of plaintiff's bid was sent
to the counsel for the Regional Office, who again
gave an opinion that plaintiff's bid was valid. Id.
United States
LXXIV. After the formal public announcement of the
results of the sale, in a mimeographed statement,
that the goods in question had been awarded to
plaintiff and a formal notice to plaintiff by mail
from the cashier of the Washington office, re-
ceived by plaintiff on October 8, 1948, the Wash-
ington office, acting on erroneous information as
to the action of the Board of Awards, later
notified plaintiff by telegraph that he should dis-
regard the reference to Lot 13 in the notice of
award, since the award as to that lot was await-
ing legal interpretation. Plaintiff protested.
However, the sale of Lot 13 was cancelled and
awarded to the next highest bidder but the award
of sale to plaintiff on the same bid for Lots 8
and 32 was permitted to stand, and these lots
were delivered to and paid for by plaintiff. Id.
United States
LXXV. The Board of Awards did not undertake to change
the decision which it made on the advice of
counsel that plaintiff's bid was valid because
the Board had authority to waive any informal-
ity in the submission of bids. A binding con-
tract of sale had been made before the War
Assets Administration undertook to change its
position as to Lot 13. In addition, the defend-
ant proceeded to carry out the decision of the
Board as to the other Lots, Nos. 8 and 32, which
were included in the same bid which included
Lot 13. Id.
United States
LXXVI. There was an offer by plaintiff and an acceptance
by defendant, which was communicated in writ-
ing and received by plaintiff before defendant
undertook to change its position as to Lot 13.
Defendant's attempt to cancel its acceptance
was without legal effect. Plaintiff is given judg-
ment for $6,338.20, the amount agreed upon if
the court should decide that plaintiff is entitled
to recover. Id.
LXXVII. Where plaintiff sues for recovery of monies with-
held by the Government under a quartermaster
contract with plaintiff dated November 12, 1948;
and where the withholding of such money is
justified by the Government on the ground that
plaintiff was indebted to the Government in the
amount in question by reason of plaintiff's fail-
ure to perform another contract in 1944 with
another agency of the Government, plaintiff's
motion for summary judgment is denied. De-
fendant's motion for summary judgment is
granted and plaintiff's petition is dismissed.
Adelhart, 456.
LXXVIII. In connection with the 1944 contract plaintiff
was notified on August 19 and again on August
22 that its bid could not be accepted for the
reason that the plaintiff had not filed a bid bond.
On August 30, 1944, however, plaintiff was noti-
fied that its proposal had been accepted. On
September 5 plaintiff requested certain modifi-
cations in the contract which were refused and
plaintiff was notified that if it failed to sign the
formal written contract and to furnish perform-
ance and payment bonds in accordance with the
specifications the work would be performed by
other means and plaintiff would be charged with
the excess costs. Plaintiff failed to comply and
contends there was no contract. Plaintiff's con-
tention is not sustained. It is held that the ex-
cess costs on the 1944 contract were properly
withheld from the amount due on the 1948 con-
tract. Id.
LXXIX. The Government was empowered to accept plain-
tiff's 1944 bid notwithstanding that it was sub-
mitted without a bid bond. Id.
LXXX. The provision contained in the Rules and Regu-
lations appended to Title 41, U. S. C., Public Con-
tracts, that where security is required to insure
the execution of a contract and bond for per-
formance, no bid will be considered unless it is
so guaranteed is obviously intended for the bene-
fit of the Government, and may be waived by the
Government. See United States. v. N. Y. &
Porto Rico S. S. Co., 239 U. S. 88, 93. In the
instant case, the invitation to bid also contained
a provision expressly reserving to the Govern-
ment the right to waive any informality in bids
received when in the interests of the Govern-
ment. Id.
LXXXI. It is held that in the circumstances disclosed in
the instant case a contractual relationship was
established between the parties which was vio-
lated by plaintiff's failure to perform. Id.
LXXXII. In connection with the purchase of two ships from
the Government under the Merchant Ship Sales
Act of 1946, plaintiff deposited with the Gov-
ernment $3,150 to pay for "desirable features"
as described in the Act, and in the instant suit
seeks to recover that amount on the ground that
the Government's requirement for the payment
of that amount is not consistent with the formula
contained in the Act for the calculation of the
selling price of the ships. The defendant's mo-
tion for summary judgment is denied and the
plaintiff's motion is granted. Plaintiff's addi-
tional claims presented in its petition are held in
abeyance pending the outcome of negotiations for
their administrative settlement. Bull Steamship
Co., 520.
LXXXIII. The Merchant Ship Sales Act of 1946 was intended
to fix, by a self-operating statutory formula, the
selling price of the Government's surplus ships.
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