28-35. Power of attorney-Revocation. A power of attorney given to collect a claim against the Government, with an agreement that the donee of the power shall receive "a sum equal to 50 per cent of the amount allowed" on the claim, is not a power coupled with an interest, and is revocable. The power having been given to a firm, one of the members of which has since died, whereby the firm became dissolved, such power can not be executed by the surviving members. Under the circumstances stated, the power should not be recognized. (19 Op. A. G. 483, January 31, 1890.) 28-36. Bid made under mistake of fact. Where an advertisement is made for propositions for installing an electric-light plant, and one of the bids is in the sum of $4,350, but the bidder subsequently asks to recall the bid, claiming it had been made erroneously instead of $9,350, the real bid: Held, that if it were the fact that the bid was made under a mistake of fact it is no bid at all, and ought not to be considered. (20 Op. A. G. 1, January 14, 1891.) Refer to 21 Op. A. G. 56, Aug. 31, 1894, par. 28-48. 30 Op. A. G. 56, Feb. 14, 1913, par. 28-98. 28-37. Eight-hour law of 1892: Term “public works” includes a dry dock. Where on July 28, 1892, a formal acceptance of a bid was given, but leaving a minor detail to be agreed upon and a formal contract and bond were afterwards to be prepared and executed, no contract was entered into prior to the passage of the act of August 1, 1892, chapter 352, within the meaning of the third section thereof. A timber dry dock is one of the "public works" of the United States under this eight-hour law. (20 Op. A. G. 445, August 19, 1892.) Refer to 20 Op. A. G. 454, Aug. 24, 1892, par. 28-38. 26 Op. A. G. 30, Aug. 3, 1906, par. 28-72. 28 Op. A. G. 358, July 8, 1910, par. 28-87. 28 Op. A. G. 534, Dec. 14, 1910, par. 28-91. 28-38. Eight-hour law of 1892: Post-office lock boxes. The act of August 1, 1892, chapter 352, providing that laborers employed on public works of the United States shall be limited in service to eight hours a day, does not apply to the case of a contract for furnishing materials such as post-office lock boxes. (20 Op. A. G. 454, August 24, 1892.) Refer to 20 Op. A. G. 445, Aug. 19, 1892, par. 28-37. 26 Op. A. G. 30 Aug. 3, 1906, par. 28-72. 28 Op. A. G. 358, July 8, 1910, par. 28-87. 28-39. Eight-hour law of 1892 applicable only to employees of contractors and subcontractors. The act of August 1, 1892, chapter 352, is of general application, and the limitation as to public works in said act applies only to such persons as are in the employ of contractors and subcontractors. Whether or not specified persons are such laborers is a question of fact not for the Attorney-General to determine. (20 Op. A. G. 459, August 27, 1892.) Refer to 26 Op. A. G. 64, Oct. 11, 1906, par. 28-73. 26 Op. A. G. 278, June 17, 1907, par. 28-75. 26 Op. A. G. 605, May 11, 1908, par. 28-78. 26 Op. A. G. 623, June 17, 1908, par. 28-80. 28-40. Payment of reserved percentage, annulled contracts. Where a contract with the Government is duly annulled by the Government, pursuant to its terms, and when it is clear that the Government can not suffer any loss on account of the annulment of the contract in question, then the contractors are entitled to receive the reserved moneys. (20 Op. A. G. 511, January 17, 1893.) 28-41. Contract: Assignment of claim; distribution of balance due. The head of a department is prohibited by section 3477, Revised Statutes, from cooperating with a contractor having a balance due him in the Treasury in assigning this balance to an outsider before the issuing of a warrant or warrants for payment of the amount proposed to be assigned. The proper course is not to pay the balance over to some designated person to be distributed among all the creditors under the direction of the courts, but to keep the custody of the balance until the respective rights of various claimants to it have been determined by the decree of a competent court. (20 Op. A. G. 578, May 3, 1893.) Refer to 16 Op. A. G. 277, Mar. 7, 1879, par. 28–25. 17 Op. A. G. 545, May 28, 1883, par. 28-27. 18 Op. A. G. 88, Dec. 20, 1884, par. 28-28. 32 Op. A. G. 135, Mar. 9, 1920, par. 28–110. 28-42. Land for public building: Limitation in jurisdiction of State. Where a State's consent to the purchase of land by the United States provides that the State shall forever retain concurrent jurisdiction over any such place to the extent that all legal and military process issued under the authority of the State may be executed anywhere on such place or in any building thereon or any part thereof, and that any offense against the laws of the State committed on such place may be tried and punished by any competent court or magistrate of the State, it does not satisfy the provision of section 355, Revised Statutes. (20 Op. A. G. 611, June 7, 1893.) Refer to 24 Op. A. G. 617, Apr. 16, 1903, par. 28–65. 28-43. Remission of penalty Imposed by predecessor for breach of contract. Where a contract for the construction of a vessel for the Government contains a clause imposing a penalty for each day's delay beyond a stipulated time for finishing the vessel, and further provides that any question as to liability for the infliction of said penalty should be referred to the Secretary of the Navy for decision, and provides that his decision shall be conclusive upon all parties to the contract, it is not proper for a subsequent Secretary of the Navy to remit the amount of penalties imposed by his predecessor and pay that sum to the contractor. (20 Op. A. G. 631, August 4, 1893.) Refer to 15 Op. A. G. 208, Mar. 20, 1877, par. 28–15. 28-44. Claims against the United States: Prosecution by former employees. Revised Statutes, section 190, prohibiting certain employes of the United States from prosecuting certain claims against the Government for two years after the termination of their employment, applies to all claims which were pending in any of the departments while the employee was in the employ of the Government. (20 Op. A. G. 695, January 12, 1894.) Refer to 31 Op. A. G. 471, June 18, 1919, par. 28–107. 28-45. Part payments under Governmental contract; departmental practice. Part payments can not be made upon Government contracts unless the United States thereupon becomes the owner of the work paid for. In case of ambiguity in a statute, departmental practice may affect its construction when long-continued, uniform, and familiar, but not when merely recent and occasional. (20 Op. A. G. 746, March 15, 1894.) Refer to 18 Op. A. G. 105, Jan. 22, 1885, par. 28-29. 28-46. Contract: Payment of installments; modification. Contract for construction of battle ship Indiana, construed, and held, that it was not competent for the Secretary of the Navy, under the existing contract, to pay to the contractors any part of the last three installments of the price of the vessel or of reservations from previous payments, prior to the preliminary or conditional acceptance of the vessel; but that a supplemental contract might be entered into, modifying the terms and provisions of the existing contract. (21 Op. A. G. 12, April 27, 1894.) Refer to 9 Op. A. G. 80, Sept. 5, 1857, par. 28-09. 21 Op. A. G. 78, Nov. 10, 1894, par. 28-51. 28 Op. A. G. 121, Dec. 22, 1909, par. 28-84. 30 Op. A. G. 301, Oct. 22, 1914, par. 28-103. 28-47. Remission of penalties when contract completion delayed. Where penalties are imposed under the terms of a contract between the War Depart ment and a contractor for delay in completing the work, but the contract has been performed in all other respects and no actual damage has resulted from the delay, the Secretary of War may remit the forfeiture. (21 Op. A. G. 27, May 28, 1894.) 28-48. Contracts for naval supplies: Award to lowest bidder; withdrawing bid. The Secretary of the Navy is obliged to give contracts for supplies to the lowest bidder who fills the requirements as to security, etc., although the Secretary is the person charged with the duty of ascertaining the facts in this regard, and his decision is not reviewable in any court. In the absence of any special statutory provision to the contrary, a bidder for a Government contract may withdraw his bid at any time until notice of acceptance. Whether there is any such special statutory provision relating to the Navy Department? Quaere. (21 Op. A. G. 56, August 31, 1894.) Refer to 20 Op. A. G. 1, Jan. 14, 1891, par. 28–36. 21 Op. A. G. 186, June 1, 1895, par. 28-54. 28-49. Assignment of claims against United States. An assignment of an indebtedness admittedly due by the United States is not inhibited by Revised Statutes, section 3477. A disbursing officer who holds a Treasury draft payable to the order of the original contractors should not deliver it to a receiver appointed in an action between contesting claimants. (21 Op. A. G. 75, November 2, 1894.) Refer to 16 Op. A. G., 277, Mar. 7, 1879, par. 28-25. 17 Op. A. G., 545, May 28, 1883, par. 28-27. 32 Op. A. G., 135, Mar. 9, 1920, par. 28–110. 28-50. Liens: Property of United States. Mechanic's liens can not be acquired upon property of the United States. (21 Op. A. G. 78, November 7, 1894.) 28-51. Modification of contract. The contract with Edwards, Howlett & Thompson for the improvement of the Hudson River may be legally modified, so as to provide for the acquirement by the United States, through condemnation, of the lands necessary for dumping grounds, to be maintained at the cost of the contractors. (21 Op. A. G. 78, November 10, 1894.) Refer to 9 Op. A. G., 80, Sept. 5, 1857, par. 28-09. 21 Op. A. G., 12, Apr. 27, 1894, par. 28-46. 28 Op. A. G., 121, Dec. 22, 1909, par. 28-84. 30 Op. A. G., 301, Oct. 22, 1914, par. 28-103. 28-52. Fraud of partner regarded as committed by firm. Fraud committed by a partner in a transaction which he is conducting on behalf of the firm is regarded by the law as fraud committed by the firm, although it be unsuccessful, and although it was the intention of the partner to cheat his own firm as well as the other party. (21 Op. A. G. 90, November 27, 1894.) 28-53. Naval reservation; restoration to public domain. Congress alone is competent to subject to general governmental uses land heretofore reserved from the public domain for the use of the Navy Department. (21 Op. A. G. 120, January 19, 1895.) 28-54. Withdrawal of bids after acceptance. After a bid for the construction of public works has been accepted, the bidders have not the right to withdraw their proposal merely because of a mistake on their part which was not mutual and which was due to their negligence. (21 Op. A. G. 186, June 1, 1895.) Refer to 20 Op. A. G. 1, Jan. 14, 1891, par. 28-36. 21 Op. A. G. 56, Aug. 31, 1894, par. 28-48. 30 Op. A. G. 56, Feb. 14, 1913, par. 28-98. 28-55. Modification of contract when readvertisement is not required. A modification of a contract, which does not prejudice the interests of the Governnent or violate any statutory provision, is not such a new contract as must be pre ceded by an advertisement for proposals from bidders. (21 Op. A. G. 207, August 13, 1895.) Refer to 2 Op. A. G. 257, Aug. 29, 1829, par. 28-04. 10 Op. A. G. 416, Dec. 24, 1862, par. 28–11. 15 Op. A. G. 538, Mar, 20, 1876, par. 28–21. 30 Op. A. G. 381, June 1, 1915, par. 28-105. 28-56. When exhausted appropriation terminates contract. After an appropriation is exhausted, a contract not for the completion of any specific work, as the erection of a building, the construction of a road, or rendering a channel adequate for the passage of vessels of a certain draft, is at an end. Work done after the appropriation is exhausted would not come within such a contract. Executive officers are prohibited by sections 3679, 3732, 3733, and 5503, Revised Statutes, from continuing the employment of the contractors. If further appropriations are made, there must be a new contract for their expenditure. (21 Op. A. G. 244, November 4, 1895.) Refer to 21 Op. A. G. 288, Jan. 2, 1896, par. 28-57. 28 Op. A. G. 466, Nov. 10, 1910, par. 28–88. 28 Op. A. G. 477, Nov. 30, 1910, par. 28-89. 28-57. Exhausted appropriation precludes further obligation. The Secretary of the Navy has no power to incur any obligation for work on an uncompleted dry dock when the appropriation has been exhausted, even though immediate action is very important. (21 Op. A. G. 288, January 2, 1896.) Refer to 21 Op. A. G. 244, Nov. 4, 1895, par. 28-56. 28 Op. A. G. 466, Nov. 10, 1910, par. 28-88. 28 Op. A. G. 477, Nov. 30, 1910, par. 28–89. 28-58. Opening of bids; consideration of late bid. There is nothing in the acts of January 27 and April 21, 1894, amending section 3709 of the Revised Statutes, inconsistent with the legal right of the board of award of the Department of Agriculture to consider any bid received by them through the mail after the hour of 2 o'clock p. m. The designation of 2 o'clock p. m. "for the opening of all such proposals in each department" means only that such proposals shall not be opened before 2 o'clock p. m. A proposal received after that hour under circumstances which warranted the belief that it had been prepared and submitted in the light of the proposals submitted by other bidders, which had been already opened and made known, should not be received or entertained; but a proposal received under conditions which precluded the possibility of such unfairness should not be rejected because it happens to be received by the board of award a few minutes after 2 o'clock p. m. (21 Op. A. G. 546, June 16, 1897.) 28-59. Telegraphic modification of bids; signature not essential. A bidder under an advertisement for sealed proposals has the right, previous to the opening of the bids, to modify his bid by telegram, and when so modified, upon acceptance before withdrawal, will bind the bidder. While it is customary to confirm by letter a telegraphed proposition, such confirmation is not essential. A bid in which the name of the firm is signed by typewriter, followed by the signature of the only member of the firm, is, before acceptance, modified by telegram. |