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Fuel.

515.

of

reservations

18.

and manufacture of the United States. In purchasing

fuel for the Navy, or for naval stations and yards, the Sept. 28, 1850, 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. Bunting SEC. 3729. The Secretary of War, the Secretary of the Mar. 2, 1865, s. 7, v. 13, p. 467. 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. Relinquishment SEC. 3730. The Secretary of the Navy may relinquish on deliveries. and pay all reservations of the ten per centum upon deliv.

June 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 con

SEC. 3731. Every person who shall furnish supplies of on supplies. any kind to the Army or Navy shall be required to mark

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

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 fulfills. 10, v. 12, p. 220.

ment, 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.

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

erection, repair, or furnishing of any public building, or July 25, 1868, s. for any public iinprovement which shall bind the govern3, v. 15, p. 177.

tractor to appear

Unauthorized

See note 19.

No contract to

ation.

See sec. 3730.

Note 17.--Where a contractor failed to compete, and other parties (lid it on much less terms, held that, the United States having sustained no loss, the original con. tractor 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 other's 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 Departinent nor the account. ing officers can pay the reservations. They havo no anthority to adjust claims for damages under contracts. Congress alone can afforol 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 whero the forfeiture occurred through misfortune. “The officers of the Government aro not bound, from the nature of our institutions, to perpetrate an act of injustice in the name of the United States. (Op., II, p. 185.)" (Op., XII. p. 112.)

Note 19.-Contracts for clothing, subsistence, forage, fuel, quarters, and trans. portation 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.)

See sec. 3732.

See sec. 5503. Same title.

278.

for labor and materials,

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

SEC. 3734. Before any new buildings for the use of the Restrictionson United States are commenced, the plans and full estimates of new buildings. therefor shall be prepared and approved by the Secretary 16, p. 296.

July 15, 1870, v. of the Treasury, the Postmaster-General, and the Secretary See sec. 3663 apof the Interior; and the cost of each building shall not Part'III. exceed the amount of such estimate. That hereafter any person or persons entering into a

28 Stat. L., p. formal contract with the United States for the construction Contractors on of any public building, or the prosecution and completion Pobal bond to of any pablic work or for repairs upon any public building include security or public work, shall be required before commencing such work 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 waterials 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 sball be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials shall. Action on bord 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.

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 Contracts limDepartments to make contracts for stationery or other sup- Jan. 31, 1868, plies for a longer term than one year from the time the Res., v. 15, p.246; contract is made.

Res., v. 18, p. 286 (modifying as to

articles under Post-Office

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

purchases of chase.

May1, 1820, s.7, v.3, p. 568. See Public Prop. erty and Build. ings, Division

III. SEC. 3737. No contract or order, or any interest therein, No transfer of shall be transferred by the party to whom such contract or July 17, 1862, s. order is given to any other party, and any such transfer 14, v. 12, p. 596. shall cause the annulment of the contract or order trans

Proviso.

Costs.

Mar. 24, 1874,

certain

See note 20.

See sec. 3735.

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.)

and 23.

This act was published as part of General

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. Eight hours to

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. 29, 424; XIV, 37, 45, 128; XVI, 58. 1882. See sec. 3689, under Appropriations; 19 A.G. Op., p. 685. See note 21. Aug. 1,1892. That the service and employment of all laborers and

mechanics who are now or may hereafter be employed by

a the Government of the United States, by the District of Order, No. 398, Columbia, or by any contractor or subcontractor upon any AOS 1892, aby of the public works of the United States or of the said DisJames 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

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 misde. meanor, 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 för him, or for his use or benefit, or on his account,

undertake, execute, hold, or enjoy, in whole or in part, any

Title 43.

contracts.

See sec. 3737.

Note 21.-This section (3737) is intended simply for tho benefit of the United States, which is not compelled to avail itself of a transfer by the contractor, but may recog. pize 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 assignel or transferred without the consent of the Depart ment. (Op., X, p. 5.)

Note 28. -An assignment of contract, under art of July 17, 1802, is void, and passes no title, legal or equitable. An assignment of a claim for money due under a con. tract passes title to the money due, as though it were the sale of a chattel. (C. C., IX. 1. 156; see also C.C., V, 504.)

Note 4.-See later art of August 1. 1.92.

249,

contract or agreement made or entered into in behalf of the April 21, 1808, United States, by any officer or person authorized to make See note 26. contracts on behalf of the United States. Every person who violates this section shall be deemed guilty of a misdemeanor, and shall be fined three thousand dollars. All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced on the part of the United States, in consideration of any such contract or agreement, it shall be forthwith repaid; and in case of refusal or delay to repay the same, when deinanded, by the proper officer of the Department under whose authority such contract or agreement shall have been made or entered into, every person so refusing or delaying together with his surety or sureties, shall be forth with prosecuted at law for the recovery of any such sum of money so advanced. SEC. 3740. Nothing contained in the preceding section members of Con

interest shall extend, or be construed to extend, to any contract or gress may have. agreement, made or entered into, or accepted, by any incor-2, A PI";24:1808. 19: porated company, where such contractor agreement is made 37, 1877, v. 19, p. for the general benefit of such incorporation or company; nor to the purchase or sale of bills of exchange or other property by any member of or delegate to Congress, where the same are ready for delivery, and payment therefor is made, at the time of making or entering into the contract or agreement.

Sec. 3741. In every such contract or agreement to be stipulation made or entered into, or accepted by or on behalf of the of Congress has United States, there shall be inserted an express condition an interest, that no member of or delegate to Congress shall be admit- 3.v.2, p. 484; Feb. ted to any share or part of such contract or agreement, or to any benefit to arise thereupon.

That hereafter any person or persons entering into a August 13, 1894. formal contract with the United States for the construction 24 Stat. L. 278, of any public building, or the prosecution and completion of Supp. vol. 2, p. any public work or for repairs upon any public building or Public building public work, shall be required before commencing such or contra, work to execute the usual penal (26) bond, with good and furnish bond to sufficient sureties, with the additional obligations that may from labor and such contractor or contractors shall promptly make pay.

Aug. 1, 1892,ch. ments to all persons supplying him or them (27) labor and 352, ante, p. 62. materials in the prosecution of the work provided for in dela horror such contract; and any person or persons making application therefor,

paid for. 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,

27. 1877, v. 19, p. 249.

Contractors to

R.S., s. 3709.

nished are not

See sec. 3739.

Note 25.-There is no law preventing Government oflicers, Executive branch, contracting with the Government in matters separate from their otfices and in no way connected with the performance of their official duties, nor against their acquiring an interest in contracts after they are procured. (Op., XIV, 483.)

Vote 26.-See act allowing corporate bonds, 1894, Aug. 13, ch. 282.

Note 27.-For review of "labor legislation," see note (1) to 1888, June 13, ch. 389 (1 Supp. R. S., 590), and 1892, Aug. 1, ch. 352.

-person sup plying may suo on bond.

United States.

costs.

1894.

contract with a

249.

Title 43.

tracts.

219.

Seo note 28.

upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit 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: No expense to Provided, That such action and its prosecutions shall

involve the United States in no expense. Security for SEC. 2. Provided that in such case the court in which August 13, such action is brought is authorized to require proper

security for costs in case judgment is for the defendant. Penalty against

SE", 3742. Every officer who, on behalf of the United officer for making

States, directly or indirectly makes or enters into any conmember of Con- tract, bargain, or agreement in writing or otherwise, other

Apr. 21, 1808, s. than such as are hereinbefore excepted, with any member 4, v. 2, p. 484;Feb. 27, 1877, v. 19, p.

of or delegate to Congress, shall be deemed guilty of a misdemeanor, and shall be fined three thousand dollars.

SEC. 3743. All contracts to be made, by virtue of any Deposit of con. law, and requiring the advance of money, or in any man

ner connected with the settlement of public accounts shall July 16, 1788, 8. 6. v. 1, p. 610: Feb. be deposited in the office of the First Comptroller of the 27. 1877, v. 19, p. Treasury of the United States, the Second Comptroller of

the Treasury of the United States, or the Commissioner of Customs, respectively, according to the nature thereof, within ninety days after their respective dates.

SEC. 3744. It shall be the duty of the Secretary of War, June 2, 1862, s. of the Secretary of the Navy, and of the Secretary of the 1, v. 12, p. 411.

Interior, to cause and require every contract made by them severally on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof; a copy of which shall be filed by the officer making and signing the contract in the Returns Office of the Department of the Interior, as soon after the contract is made as possible, and within thirty days, to gether with all bids, offers, and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers, or proposals for the same. All the copies and papers in relation to each contract shall be attached together by a ribbon and seal, and marked by numbers in regular order, according to the number of papers composing the whole return.

SEC. 3745. It shall be the further duty of the officer, Ibid., 8.2. before making his return, according to the preceding sec

tion, to affix to the same his affidavit in the following form, sworn to before some magistrate having authority to administer oaths: “I do solemnly swear (or affirm) that the copy of contract hereto annexed is an exact copy of a con

Contracts to be in writing

29

See notes and 30.

Oath to con. tract.

See sec. 3744.

Note 28.-Naval contracts are now doposited with the Anditor for the Navy De. partment under act of 1894, which act abolished the oflice of Second Comptroller.

Note 29.-The requirement in section 3744, " to be reduced to writing and signed by the contracting parties," is mandatory and obligatory on contractors and otficers. Oral agreement void as an executory contract. (C.C., IV, p. 75, and V, pp. 65, 338.)

Note 30.- This section is not infringed by the proper officer having charge of such matter accepting delirery of supplies after the day stipulated, nor is a verbal agreement to extend the time of performance invalid.' (Wallace. XIX, p. 17; C.C., IX, 54.) When an "emergency'is declared, need not bo in writing. (C.C., IX, 187 and 291.)

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