United States v. Morgan

• Citation: 111 F. 474
• Decision Date: 15 September 1900
• Docket Number: 30.
• Parties: UNITED STATES, to Use of THOMAS LAUGHLIN CO., v. MORGAN et al.
• Court: United States District Courts. 1st Circuit. United States District Court (Maine)

111 F. 474

UNITED STATES, to Use of THOMAS LAUGHLIN CO., v. MORGAN et al.

No. 30.

United States Circuit Court, D. Maine.

September 15, 1900

Benjamin Thompson, for plaintiff.

Anthoine & Talbot, for defendant American Surety Co.

WEBB District Judge.

This is an action of debt on a bond executed by the defendant Morgan as principal and the American Surety Company of New York as surety for the performance of a contract by Morgan to supply materials and do work on fortifications to be constructed by the United States on Diamond Island, near Portland, Me. Trial by jury is waived, and the cause is submitted to the court the right of exception to rulings of the court on questions of law during the trial, and in its conclusions upon the facts, being reserved.

Upon the hearing the court finds the following facts:

(1) The contract between morgan and the United States is as follows:

Proposals for Building Gun Emplacements and Wharf on Great Diamond Island, Portland Harbor, Maine.

U.S Engineer Office, 537 Congress Street.

Portland Maine, January 21, 1897.

Sealed proposals for building gun emplacements and wharf on Great Diamond Island, Portland Harbor, Maine, will be received until 3 p.m. February 18, 1897, and then publicly opened. For information, apply to

A. N Damrell, Lieut. Col. of Engineers.

Specifications.

General Instructions for Bidders.

1. The attention of bidders is specially invited to the acts of congress approved February 26, 1885, and February 23, 1887, as printed in vol. 23, page 332, and vol. 24, page 414, United States Statutes at Large, which prohibit the importation of foreigners and aliens, under contract or agreement, to perform labor in the United States or territories or the District of Columbia.

2. 'That all material purchased under the foregoing provisions of this act shall be of American manufacture, except in cases when, in the judgment of the secretary of war, it is to the manifest interest of the United States to make purchases in limited quantities abroad, which material shall be admitted free of duty. ' (Extract from fortification appropriation act, approved June 6, 1896.)

3. Maps of the localities may be seen at this office. Bidders, or their authorized agents, are expected to visit the place, and to make their own estimates of the facilities and difficulties attending the execution of the work, including the uncertainty of weather and all other contingencies.

4. No proposal will be considered unless accompanied by a guaranty in manner and form as directed in these instructions.

5. All bids and guaranties must be made in triplicate, upon printed forms to be obtained at this office.

6. The guaranty attached to each copy of the bid must be signed by two responsible guarantors, to be certified as good and sufficient guarantors by a judge or clerk of United States court, United States district attorney, United States commissioner, or judge or clerk of a state court of record, with the seal of said court attached.

7. A firm, as such, will not be accepted as surety, nor a partner for a co-partner or firm of which he is a member. Stockholders who are not officers of a corporation may be accepted as sureties for such corporation. Sureties must be citizens of the United States.

8. Each signature to guaranties and bonds shall have affixed to it an adhesive seal. All signatures to proposals, guaranties, contracts, and bonds should be written out in full, and each signature to guaranties, contracts, and bonds should be attested by at least one witness, and when practicable by a separate witness to each signature.

9. Each guarantor must justify in the sum of fifteen thousand dollars on bids for the emplacements, and three thousand dollars on bids for the wharf. The liability of the guarantors and bidder is determined by the act of March 3, 1883 (22 Statutes, 487, chap. 120), and is expressed in the guaranty attached to the bid.

10. A proposal by a person who affixes to his signature the word 'President,' 'Secretary,' 'Agent,' or other designation, without disclosing his principal, is the proposal of the individual. That by a corporation must be signed with the name of the corporation, followed by the signature of the president, secretary, or other person authorized to bind it in the matter, who must file evidence of his authority to do so. That by a firm must be signed with the firm name, by a member thereof, or by its agent, giving the names of all members of the firm. Note, also, par. 16, infra.

11. The place of residence of every bidder, and post-office address, with county and state, must be given after his signature.

12. All prices must be written, as well as expressed in figures.

13. One copy each of the advertisement, the instructions for bidders, and the specifications, all of which can be obtained at this office on application by mail or in person, must be securely attached to each copy of the proposal, and be considered as comprising a part of it. A written memoranda offered for inspection in connection with the drawings will also be considered a part and parcel of the proposal, and of any contract subsequently made in pursuance of it.

14. Proposals must be prepared without assistance from any person employed in or belonging to the military service of the United States or employed under this office.

15. No bidder will be informed, directly or indirectly, of the name of any person intending to bid or not to bid, or to whom information in respect to proposals may have been given.

16. Any one signing the proposal as the agent of another or others must file with it legal evidence of his authority to do so.

17. All blank spaces in the proposal and bond must be filled in, and no change shall be made in the phraseology of the proposal, or addition to the items mentioned therein. Any conditions, limitations, or provisos attached to proposals will be liable to render them informal and cause their rejection.

18. Alterations by erasure or interlineation must be explained or noted in the proposal over the signature of the bidder.

19. If the bidder wishes to withdraw his proposal, he may do so before the time fixed for the opening, without prejudice to himself, by communicating his purpose in writing to the officer who holds it, and when reached it shall be handed to him or his authorized agent, unread.

20. Reasonable grounds for supposing that any bidder is interested in more than one bid for the same item will cause the rejection of all bids in which he is interested.

21. No bids received after the time set for opening of proposals will be considered.

22. The proposals and guaranties must be placed in a sealed envelope marked 'Proposals for Gun Emplacements (or Wharf) on Great Diamond Island,' and inclosed in another sealed envelope addressed to Lieut. Col. A. N. Damrell, Corps of Engineers, Portland, Maine. The outer envelope must be so indorsed as to indicate before being opened the particular work for which the bid is made.

23. The United States reserves the right o reject any and all bids, and to waive any informality in the bids received; also to disregard the bid of any failing bidder or contractor, known as such to the engineer department.

24. The bidder to whom award is made will be required to enter into written contract with the United States, with good and approved security, in an amount equal to about 33 per cent. of the amount covered by the contract, within ten (10) days after being notified of the acceptance of his proposal.

25. The contract which the bidder and guarantors promise to enter into shall be, in its general provisions, in the form adopted and in use by the engineer department of the army, blank forms of which can be inspected at this office, and will be furnished, if desired, to parties proposing to put in bids. Parties making bids are to be understood as accepting the terms and conditions contained in such form of contract.

26. The sureties are to make and subscribe affidavits of jurisdiction on the back of the bond to the contract, and they must jointly justify in double the amount of the penalty.

27. Bidders are invited to be present at the opening of the bids.

General Conditions.

28. A copy of this advertisement, specifications, and instructions will be attached to the contract, and form a part of it.

29. The contractor shall, within ten days from the award of the contract, furnish the office with the post-office address to which communications should be sent.

30. Transfers of contracts, or of interests in contracts, are prohibited by law.

31. The contractor will not be allowed to take advantage of any error or omission in these specifications, as full instructions will always be given should error or omission be discovered.

32. The decision of the engineer officer in charge as to quality and quantity shall be final.

33. It is understood and agreed that the quantities given are approximate only, and it must be understood that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders are expected to examine the drawings, and are invited to make the estimate of quantities for themselves.

34. Payments. The work is to be done under the following provisions of the act of June 6, 1896: 'That contracts may be entered into under the direction of the secretary of war, for materials and work for the construction of fortifications, to be paid for as appropriations may from time to time be made by law. ' It is expected that congress will, in accordance with the provisions in the act quoted in this paragraph, make appropriations at such times as to permit of the uninterrupted payments for the work covered by these specifications, but the...