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vation. I see no legal objection to that method of payment and I would therefore suggest that by letter to the Secretary of the Treasury you request that the amount required to pay the Indians for the lands be transferred from the appropriation for "Sites for fortifications and seacoast defenses" to the credit of the Secretary of the Interior under the title "Payment to Indians of Port Madison Reservation, Washington, for the purpose indicated.
I am also of opinion that there is no legal objection to so placing the money to the credit of the Secretary of the Interior prior to the receipt of the opinion of the AttorneyGeneral affirming the validity of the title, provided that payment for the lands purchased be not actually made prior thereto.
CONTRACT FOR FURNISHING GLOVES FOR THE DISTRICT GOVERNMENT OF THE DISTRICT OF COLUMBIA.
Where a contract for furnishing 10 pairs of gloves for the District government of the District of Columbia contained supplemental conditions and stipulations indicating that the quantity of gloves the contractor would be required to furnish would not be limited to the number therein specified, but would be governed by the needs of the District, the contractor may be required, if the needs of the District government require it, to furnish 180 pairs of gloves.
(Comptroller Tracewell to the Commissioners of the District of Columbia, April 3, 1905.)
By your reference, dated March 16, 1905, of a communication from the auditor of the District of Columbia, you request my decision of the question therein presented as follows:
"I have the honor to submit the following report, in the matter of the failure of Messrs. Lansburgh & Brother, of this city, to furnish 165 pairs of mittens on order No. 6672 of the property clerk, District of Columbia, dated October 29, 1904, by reason of which failure 165 pairs of mittens were purchased in open market. It is proposed to deduct the increased cost of said mittens, over and above the contract price as set forth in the contract with Messrs. Lansburgh & Brother, from a bill of said firm, dated February 1, 1905, for supplies furnished to the Washington Asylum, amounting to $130.24, which bill is pending in this office.
"On February 28, 1905, the property clerk of the District advised Messrs. Lansburgh & Brother of the proposed reduction of $43.73 from their said bill of $130.24, and under date of the 1st instant, Messrs. Lansburgh & Brother referred the said letter of the property clerk to the Commissioners, declining to accept the reduction and requesting that the case be referred to the Comptroller of the Treasury for his decision, which they state, will govern them in the matter.
"The facts in the case, stated in their order, are as follows: "On July 13, 1904, the Commissioners of the District of Columbia entered into a contract (No. 3401) with said Lansburgh & Brother to furnish and deliver promptly at such points within the District of Columbia as shall be indicated and in such quantities as shall be ordered from time to time by the Commissioners of the District of Columbia for the fiscal year ending June 30, 1905, the articles described in the appended schedule of class 16, which schedule as modified in writing, with its general conditions, or so much thereof as shall have reference thereto, is hereby made part of this contract.'
"Among the various articles specified in said appended schedule, item No. 123, is for 10 pairs of mittens, per sample in office, at 16 cents per pair.
"Among the general conditions of the contract are the following:
"1. The supplies named in the annexed schedule are to be furnished and delivered at such times and at such places within the District of Columbia as shall be ordered by the Commissioners in writing.
"2. The attached schedule specifies as nearly as can be ascertained the articles required, quantity and quality of each. All articles and supplies not otherwise specified shall be of the best quality. As the requirements of the District are subject to fluctuation that may not be accurately anticipated, the right is reserved by the Commissioners to order any quantity that the wants or exigencies of the District government may require, or to make no order during the fiscal year for supplies that may not be actually needed. The contracts will be made subject to the needs of the District government, whether a greater or lesser amount than is named in the schedule shall be called for. Accepted bidders must be prepared to fill all orders for supplies issued to them by the Commissioners.
"10. On failure to fill an order issued by the Commissioners for any of the supplies named within a reasonable time, or to furnish the quality specified in contract, the right is reserved of purchasing in open market or declaring the contract forfeited; and in case of purchasing in open market,
if a greater price than the contract price be paid, the difference will be charged to the contractor and deducted from any moneys that may be or become due him.'
"In the proposals submitted by Messrs. Lansburgh & Brother, over their signature, the following paragraph occurs:
"The right is accorded to the Commissioners to order a greater or lesser quantity of any of the items embraced in this proposal as the wants or exigencies of the District government may require. The articles to be of the best quality of their class and to be delivered promptly and in good order.'
"On October 29, 1904, the property clerk issued an order (No. 6672) on Messrs. Lansburgh & Brother to furnish to the superintendent of the Washington Asylum certain supplies, among which is an item for 300 pairs of mittens, as per sainple in office, item 123 of the contract.
"November 4, 1904, Messrs. Lansburgh & Brother advised the property clerk that they were prepared to furnish the number of pairs of mittens as estimated in item 123 of their contract, namely, 10 pairs, or a reasonable quantity in addition, but that they did not consider that they could be lawfully called upon to deliver 300 pairs, and that they were not prepared to fill an order for that quantity.
November 9, 1904, the property clerk submitted the abovenamed letter of Lansburgh & Brother to the Commissioners, with a statement of the case, and on November 11 the Commissioners approved the recommendation of the property clerk that Messrs. Lansburgh & Brother be required to fill the order for 300 pairs of mittens, and that upon their failure to do so the articles be purchased in open market, and the additional cost charged against said contractors, according to the terms of the contract.
"November 18, 1904, the property clerk advised Messrs. Lansburgh & Brother that after due consideration and further investigation of the matter by the Commissioners he was directed to authorize them to furnish 150 pairs of mittens on the order sent to said firm instead of 300 pairs as originally ordered, it being understood, however, that the Commissioners do not waive their contract right to order any additional quantity hat may be needed during the fiscal year.
November 21, 1904, Messrs. Lansburgh & Brother informed the property clerk, in answer to his letter of November 18, that they stood by their original proposition to furnish 10 pairs of mittens, or a reasonable increase of that quantity, as the exigencies of the District government may require; that, based upon the experience of the District government, as shown by the needs of this and other articles during previous years, the call for 300 pairs or even 150 pairs, when the esti
mated quantity as published in the proposals and contract was only 10 pairs, is regarded as unreasonable. In said letter Messrs. Lansburgh & Brother further state as follows:
"While we acknowledge that we made a mistake in not examining your sample mittens before submitting our proposals, being of the opinion that the mittens were such as we have furnished the District in previous years, we have not asked to be relieved from furnishing the estimated quantity or a reasonable increase, as the exigency may require, and in doing so meet the loss and charge the same to the fact that we did not examine your sample, but do not admit that you can make us furnish any quantity beyond the actual need during the fiscal year.'
"November 22, 1904, the property clerk advised Messrs. Lansburgh & Brother that the Commissioners had decided that unless said firm should promptly furnish 150 pairs of mittens on order 6672 the Commissioners would be compelled to purchase the quantity required in open market, and to charge any excess of cost over and above their contract price to said firm.
"November 25, 1904, Messrs. Lansburgh & Brother advised the property clerk that they repeated their former offer to furnish the District with 10 pairs of mittens, or as many more as may be actually needed during the present fiscal year, but that they declined to furnish a quantity which is arbitrary and excessive.
"November 28, 1904, the superintendent of the Washington Asylum informed the property clerk that he had immediate use for at least 15 dozen pairs of mittens, for the use of men. working out doors.
"November 29, 1904, the property clerk notified Messrs. Lansburgh & Brother that the superintendent of the Washington Asylum had immediate use for at least 15 pairs of the mittens covered by item 123 of their contract, and that unless said firm promptly furnished the number stated a purchase of the necessary quantity of mittens would be made in open market, and the excess cost, if any, over and above their contract price, would be charged to said firm.
"November 30, 1904, Messrs. Lansburgh & Brother advised the property clerk that they had ordered the quantity of mittens named in the letter of the property clerk dated November 29 (15 pairs), and that they would deliver them as soon as they arrived.
"On December 2, 1904, Lansburgh & Brother delivered to the superintendent of the Washington Asylum 15 pairs of mittens, the cost of which, at the contract price of 16 cents per pair, was $2.40.
"On December 1, 1904, the property clerk advised Lansburgh & Brother that through error in his letter of November 29, 1904, only 15 pairs of mittens were ordered on item 123 of
the contract of said firm, whereas the correct amount should have been 15 dozen pairs of mittens, as shown by the letter of the superintendent of the Washington Asylum dated November 28, 1904, on file in the office of the property clerk, and therefore said firm would be required to promptly deliver 15 dozen pairs of mittens of contract quality.
"On December 5, 1904, the property clerk again called the attention of Lansburgh & Brother to the necessity of their delivering 15 dozen pairs of mittens, and requested to be advised how soon the order would be filled.
"December 6, 1904, Lansburgh & Brother notified the property clerk that their letters of November 4 and November 21, 1904, respecting the quantity of mittens which they would deliver under their contract was final.
"December 8, 1904, the property clerk notified Lansburgh & Brother that, in view of the failure of said firm to furnish the quantity of mittens required for immediate use by the superintendent of the Washington Asylum, the additional quantity required over and above the quantity delivered by said firm (15 pairs of mittens) would be purchased in open market, pursuant to order of the Commissioners, and that any excess of cost arising from such purchase would be charged to said firm and deducted from their account.
"Competitive bids were received by the property clerk, quoting the price of mittens, as per sample submitted, at 424 cents per pair and 43 cents per pair.
"On December 28, 1904, 165 pairs of mittens were purchased from Lutz & Company, at 424 cents per pair, amounting to $70.13. The excess cost over the contract price of Lansburgh & Brother, at 16 cents per pair for mittens, is $43.73. "The bill referred to, $130.24, from which the proposed reduction of $43.73 is to be made, is pending settlement in this office."
"I therefore respectfully recommend that this report with the accompanying papers be referred to the Comptroller of the Treasury, and his opinion requested whether Lansburgh & Brother were, under their aforenamed contract, required to furnish 180 pairs of mittens, as finally ordered, and if the increased cost, over and above their contract price, arising from the purchase of 165 pairs of mittens in open market, may be lawfully deducted from the account of said firm, now pending settlement in this office."
It appears that the contractors were willing to furnish the 10 pairs of mittens specified in the schedule and "a reasonable quantity in addition" thereto, but they were of opinion that they were not required to furnish 165 pairs in addition to the 15 pairs which they actually furnished. The substantial question in the case presented, therefore, is whether, by the terms