United States v. John McShain, Inc., 14084.

• Decision Date: 08 May 1958
• Docket Number: No. 14084.,14084.
• Citation: 103 US App. DC 328,258 F.2d 422
• Parties: UNITED STATES, Appellant, v. JOHN McSHAIN, Inc., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

103 US App. DC 328, 258 F.2d 422 (1958)

UNITED STATES, Appellant, v. JOHN McSHAIN, Inc., Appellee.

No. 14084.

United States Court of Appeals District of Columbia Circuit.

Argued April 18, 1958.

Decided May 8, 1958.

Petition for Rehearing Denied June 10, 1958.

Certiorari Denied October 13, 1958.

Mr. George S. Leonard, Washington, D. C., with whom Asst. Atty. Gen. George C. Doub, Mr. Oliver Gasch, U. S. Atty., and Messrs. Paul A. Sweeney, Hershel Shanks and Samuel D. Slade, Attys., Dept. of Justice, were on the brief, for appellant. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellant.

Mr. Charles B. Murray, Washington, D. C., with whom Mr. George F. Shea, Washington, D. C., was on the brief, for appellee.

Before PRETTYMAN and WASHINGTON, Circuit Judges, and MADDEN, Judge, United States Court of Claims.^*

Certiorari Denied October 13, 1958. See 79 S.Ct. 52.

MADDEN, Judge.

This is an appeal from a judgment of the District Court for the District of Columbia, dismissing the plaintiff's suit for breach of contract, brought pursuant to 28 U.S.C. § 1345. The Government was the plaintiff. At the close of its case the defendant moved to dismiss the action on the ground that no contract had been proved. The motion was granted and a judgment of dismissal was entered.

The Government's evidence, which the District Court held insufficient to prove a contract, consisted of three documents. They were (1) a "Request for Proposals" for the construction of a building for the Government, copies of which document were sent to the defendant and several other contractors; (2) the submission to the Government by the defendant of a "Contractor's Proposal"; and (3) the issuance by the Government to the defendant of a "Notice of Award and Notice to Proceed."

The defendant refused to perform the alleged contract; the Government had the building built by another contractor at a price higher than the price named in the defendant's "Contractor's Proposal," and brought the instant suit to recover damages for the defendant's alleged breach of contract.

The Armed Services Procurement Act of 1947, 62 Stat. 21, 41 U.S.C.A. § 151 et seq., now recodified as 10 U.S.C. § 2301 et seq., provides in section 151(c) that under certain circumstances contracts "may be negotiated by the agency head without advertising." The circumstances of the contract in question were such that it could lawfully be negotiated without advertising.

The Government's "Request for Proposals," mentioned above, was a voluminous document containing general conditions, several hundred pages of specifications, and incorporations by reference of a large number of drawings. It set 3:00 p. m., 2 October 1951 as the date and hour before which sealed proposals would be received

"for the purpose of negotiating a construction contract for furnishing all plant, labor, materials and equipment and performing all work for the above-described project in strict accordance with the specifications, schedules, addenda and drawings as follows * * *."

It said that the proposer who was awarded the contract would be required to execute the Army Contract Form for construction contracts. It said:

"The right is reserved, as the interest of the Government may require, to reject any and all proposals and to negotiate with any proposer."

The Government's second document introduced in evidence was the defendant's "Proposal" dated October 2, 1951. It says

"In compliance with your Request for Proposals * * * the undersigned hereby proposes to furnish the plant, labor, materials and equipment and perform all work for the above-described project in strict accordance with the specifications, schedules, drawings and addenda

* * * * * *

for the consideration of * * * $6,574,825. * * * and agrees, upon receipt of written notice of an award of the contract within thirty days after the date of opening of the proposal, that he will execute contract Form No. R-5701 in accordance with the proposal as accepted * * *."

The Government's third document was its "Notice of Award and Notice to Proceed," adressed to the defendant, and saying

"You are hereby notified that your proposal dated 2 October 1951, in the total amount of $6,574,825.00 * *

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