voluntary serv

exceptions.

23, p. 17.

1525. Hereafter no Department or officer of the United Acceptance of States shall accept voluntary service for the Governmentice prohibited; or employ personal service in excess of that authorized May 1, 1884, v. by 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).

2

3

purchases, how made; advertis

84,

220.

ecutive Depart

Sec. 3709, R. S.

1526. All purchases and contracts for supplies or serv- Contracts and ices in any of the Departments of the Government, excepting: public exifor personal services, shall be made by advertising a suf-gencies, Mar. 2, 1861, c. ficient time previously for proposals respecting the same 1, 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.*

2

1Denison v. U. S., 168 U. S. 241.

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 pecuniary 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. 2 Compt. Dec., 288. 3 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 public 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; Child v. U. S., 4 Ct. Cls., 176; Mason v. U. S., 4 Ct. Cls., 495; Wentworth v. U. S., 5 Ct. Cls., 302. See, also, III Compt. Dec., 175, 314, 470.

*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 public 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 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

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

Advertisements

for all the De

on the same day.

1894, v. 28, p. 33.

1527. The advertisement for such proposals shall be partments to be made by all the Executive Departments, including the Sec. 1, Jan. 27, Department of Labor, the United States Fish Commission, R. S. Sec. 3709. the 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 materials used in the work of the Bureau of Engraving and Printing, which shall continue to be advertised Time for open- for and purchased 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 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. Ã. G., 279, par. 9.

ing bids to be the

same.

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. A certificate 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 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 advertisement 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 convenient such

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 r. U. S., 12 Ct. Cls., 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 the United States v. Speed, 8 Wallace, 83, has held that it is "the officer charged with the duty of procuring supplies or 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 Ct. Cls., 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 civil war. In the instructive opinions of the Attorney-General on the "Fifteen per cent contracts" of April 27 and May 3, 1877, XV 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. Opin. J. A. G., par. 853, note 1.

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 be submitted to a board consisting of one of the Assistant Secretaries of the Treas- Submission to ury and Interior Departments and one of the Assistant al Postmasters-General, who shall be designated by the heads of said Departments and the Postmaster-General,

board for approv

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., par. 849.

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 fraudulent 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., par. 855. See, also, 1 Compt. Dec., 363.

A military emergency can not be measured by precise rules. Thompson v. U. S., 9 Ct. Cls., 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 cirsumstances are repeated. Childs & Co. v. U. S., 4 Ct. Cls., 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. 597, A. R., 1901.

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 Ct. Cls., 547, 551.

Personal services are such as the individual employed or contracted with must per

a See VI Opin. Att. Gen., 406; 10 ibid., 28; also opinion of the Solicitor-General of March 20, 1876, XV 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 X 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, XV 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 mandatory or only directory, as one which has been much discussed (see, for example, the reference to this question in Fowler v. U. S., 3 Ct. Cis., 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 v. U. S., 8 Ct. Cls., 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."

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 Readvertise 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. 1, act of January 27, 1894 (28 Stat. L., 33).

ment of rejected bids.

Jan. 27, 1894, s. 1, v. 28, p. 33.

The same. Restriction. April 21, 1894, v. 28, p. 62.

ited.

1528. The act entitled "An act to amend section thirtyseven 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 Provisions lim- that the provisions thereof shall apply only to advertiseSec. 3709, R.S. ments for proposals for fuel, ice, stationery, and other miscellaneous supplies to be purchased at Washington for the use of the Executive Departments and other GovernContracts, etc., ment 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, form, 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. 596, A. R., 1901. They are contracts for expert or skilled service to be performed by the contractor in person. Dig. Opin. J. A. G., 231, par. 11.

not invalid.

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 593–597, Army Regulations of 1901.

METHODS OF PURCHASE.

A purchase of supplies or engagement of services will be made:

1. By contract, "reduced to writing and signed by the contracting parties with their names at the end thereof." Agreements of this character only are termed "contracts" in these regulations.

2. By written proposal and written acceptance.

3. By oral agreement.

When delivery or performance does not immediately follow an award or bargain the first method will be used; when delivery or performance immediately follows an award or bargain the second method may be resorted to. Par. 627, A. Ř., 1901.

Contracts will be made on forms furnished by the chiefs of bureaus, in cases where such forms are applicable, and those forms will be modified only to such extent as is necessary. All conditions will be stated therein as fully and clearly as possible. Par. 628, ibid.

If a contract made by a subordinate is, in terms, subject to the approval of his superior, approval is a condition precedent to the validity of the agreement. Monroe and Richardson v. U. S., 35 Ct. Cls., 199; Darragh v. U. S., 33 ibid., 377. Where a contract provides that it is subject to the approval of a designated officer, such approval need not be in writing. Monroe and Richardson r. U. S., 35 Ct. Cls., 199; Speed's Case, 8 Wallace, 77.

For a restriction upon the operation of this paragraph see the act of April 21, 1894 (28 Stat. L., 62). Par. 1528, post.

shall be declared to be illegal or invalid for noncompliance with said law of January twenty-seventh, eighteen hundred and ninety-four. Act of April 21, 1894 (28 Stat. L., 62).

No advertising thority.

308.

1529. No advertisement, notice, or proposal for any without auExecutive Department of the Government, or for any 15, 1870, c. Bureau thereof, or for any office therewith connected, 292, s. 2, v. 16, p. shall be published in any newspaper whatever, except in Sec. 3828, R.S. pursuance of a written authority for such publication from the head of such Department; and no bill for any such advertising, or publication, shall be paid, unless there be presented, with such bill, a copy of such written authority.'

'The requirements of section 3828, Revised Statutes, are complied with by the issue of a general circular of instructions, and it is not necessary to file authority with each particular bill. Compt. Dec., 1893-94, 103; U. S. v. Odeneal, 10 Fed. Rep., 616.

By the terms of section 3709, Revised Statutes, and the acts of July 5, 1884 (23 Stat. L., 109), and February 12, 1895 (28 Stat. L., 654), advertising is required prior to purchase in the case of all supplies for the use of the various departments and posts of the Army and all branches of the Army service," including the procurement of steel for gun construction. Advertising may be dispensed with in the emergency contemplated in section 3709 of the Revised Statutes; in the purchase of certain ordnance stores, when the aggregate of said purchase does not exceed $200 (act of July 16, 1892, 27 Stat. L., 174), and in the purchase of medicines and medical supplies (act of February 27, 1893, 27 Stat. L., 478). See also notes to paragraph 1151, ante.

A disbursing officer is not authorized to pay bills for newspaper advertising when he is satisfied that the price exceeds the commercial rates charged to private individuals, with the usual discounts, notwithstanding the affidavit of the proprietor of the newspaper to the contrary. 1 Compt. Dec., 312.

When the proprietors of a newspaper show by affidavit that the rates theretofore sworn to by them were, although not so limited, intended simply to cover advertising of a certain kind, they may be paid at their usual commercial rates for advertising not of the kind intended by their first statement of rates. Ibid., 373.

When advertising in connection with the purchase of subsistence supplies for the Army is, by law, a necessary condition precedent to the purchase of such supplies, and there is no specific appropriation for such advertising, the cost thereof is properly chargeable to the appropriation "Subsistence of the Army." 3 Dig. Comp. Dec., 23.

Under section 3709 of the Revised Statutes and paragraph 1486 of the Army Regulations (1881), the length of time for the publication of advertisements inviting proposals for furnishing Army supplies was left somewhat to the discretion of the purchasing officer. But the act of July 5, 1884 (23 Stat. L., 109), has fixed, in all cases excepting emergency purchases, the minimum period during which public notice shall be given, authorizing the purchase of "small amounts for immediate use" after public notice of not less than ten days, while all other purchases are required to be made after public notice of not less than thirty days. Ibid., 23.

Under the Army Regulations, advertisement may be made by handbills; but when this method is resorted to it must be shown that the handbills were circulated to such an extent as to render it probable that a large number of persons engaged in the business of furnishing the articles desired had thus been afforded an opportunity to compete for the contract which was to be let. Ibid., 24. See also 3 Comp. Dec., 730.