The Washington herald., 1908-06-23
BRENNAN CASE BRIEF
Commissioners Take Up
Points Made by Counsel.
DECISION IS EXPECTED SOON
Awarding of District Paving Con-
tracts Mr.. Thomas Holds Is Valid,
without Resembling Powers-Ad-
vertisement for Bids Unnecessary.

A decision in the Brennan investigation
ers Macfarland and West, who are con-
sidering the case. in a very short while,
! according to statement from the Dis
trict Building yesterday.
! The Commissioners are hard al work on
the case every day. and expect to be able
to get through the mass Of evidence in
few days. A brief covering all the points
OF law involved in the case was received
from Corporation Counsel Thomas more
than a week ago. SO that all that re-
mains is to decide the case from those
points and on It's own merits.
The brief in fun is very lengthy docu-
ment. but It's substance has been ex-
planned by the Commissioners As a pre-
amble to his opinion, Mr.. Thomas quotes
law under which the Commissioners are
authorized 10 award contracts and the
action OF the commissioners leading up 70
the award Of tho contract for sheet as
phalt pavement for the fiscal years 1907
and 1905. including the specifications upon
which the work was advertised
Quotes from Organic Act.
He first takes UP the authority OF the
! Commissioners 10 award contracts as
| contained in the organic act and quotes
from previous decision OF the Court OF
Appeals in the case OF Downing versus
Ross, where a similar question was raised
In this case the court decided that the
duty OF determining the lowest responsi-
bic bidder was not OF a strictly minis
ng hrff fusr "a .
official discretion. and stated that the
statute was intended FOR the benefit and
protection OF the public. rather than the
bidders. In this case the authority OF
the Commissioners. which had been dues
toned, was decided In their favor He
points out that the facts in the Brennan
case are very similar 10 those in the
Downing case and states that in the
specifications the Commissioners reserve
the right 70 reject any and all proposals,
or parts OF proposals. and that the
such a clause the Commissioners have the
right 10 reject any part Of proposal.
OF accept any part, in their discretion.
He points out similar cases which have
occurred in the engineer department OF
such a division OF contract, and states
he finds there WIS no departure from the
specifications in dividing the street paw
ing contract between the Crawford Paw
ing Company and the Brennan Construc-
ton Company.
Holds Contracts to BE Valid.
He concludes this portion OF his opin-
ion as follows:
Being OF opinion that the Commission
ers in their notice for proposals and
specifications, and in their award acted
ln "a rF
them by law and within their power. II
follows that the contracts that were sub
sequenty made are valid and binding as
contracts, and that the Commissioners
are estOpped from reScirding them Par
uculaTly are the contractors estopped. in
this case. in view of their performance
In large part OF this work under their
contract. and the receipt OF money there
under. The Commissioners could not. in
the public ,interest. now with safety I'm
dertake 10 review their decision and could
not place the parties in their original
status If they did"
With reference 10 the point raised as
70 the awarding Of work under the ap-
preparation for elimination OF grade cross
ings. under the contract OF the Crawford
Paving Company, IN excess Of appropria-
lions. he states that if the Commission
ers nad no appropriation available. they
had no authority 10 bind the District by
orders TO do work beyond existing ap-
propriations. though Congress could sub
seQuently approve or ratify such action
IL Il had been taken. and that such APP
proval was subsequently given by Con-
gress.
Advertisement Not Necessary.
With reference TO the statements made
by counsel for the Brennan Company al
the hearing that this work should not
have been awarded without advertise
ment. the corporation counsel states thai
he believes such advertisement was no
, necessary. as the Commissioners were
given general authority in the act pro
viding for the Union Station, 20 do thi.
: work by contract or otherwise, and tha
? Under this provision the Commissioner
have discretion TO do it by contract aftei
proper advertisement. or 20 do It other
? wise, without such advertisement.
This authority of Congress, he point,
out, was given 10 the Commissioners II
view of the magnitude and unusual char
! acter Of this work and the necessity fol
! expedition in carrying Il out.