The sun. [volume] (New York [N.Y.]) 1916-1920, 1918-11-30

to prescribe the form OF the contract
which administrative officials are au-
thorized to enter into as 1t may become
necessary for It to construe its terms
in connection with payments made. 1t
Is the duty of the proper legal officers
OF the Government to draft the con-
tract and the responsibility must be
theirs and that Of the administrative
officers.
AN attempt by this Office to decide
whether or not the payments of public
money are authorized to he made
under proposed contracts to terminate
existing contracts would not be justi-
fed without a consideration of the
language of the existing contracts.
Some may provide a specific method
of payment on termination. To substl-
tute by a new contract another and
different method OF payment would be
! justified only when the new method is
not prejudicial to the interests of the
Government.
| Cannot Anticipate Profits,
at cannot be assumed as the pro-
posed contract form does that the con-
tractor anticipates profits from COM
pleting his contract. There may be
contractors willing to terminate their
existing contracts, whether containing
termination clauses or not, on terms
| more favorable TO the Government
than are contained in the proposed
form. 1t is possible some may be will
ing to terminate existing contracts on
the basis of payment for what is de-
| hvered before termination.
Having no authority to decide the
form Of contract the only question
properly for the decision of this office
in your submission is whether payment
| would be authorized of the sum, being
rs per cent. OF the amount found by
the contracting officer to be the mini
mum amount for which the contractor
Is entitled to be REIN 5ursed. The maxi
Ing of the supplemental agreement and
the simple certifying to a minimum
amount by the contracting officer
upon the statement and estimate of
the contractor will not be sufficient
or conclusive Upon the accounting
officers. The supplemental agreement
| cannot be permitted to impose a La
bility upon the Government where
| Question of Contracts.
| 1T viii be the right and duty of
the accounting officer in each case in
| which such a payment is made to
inquire in the first instance that there
was a legal contract with the Gov
eminent made prior to the supple
mental agreement (of which the con-
tract date alone will not be con-
| clusive) In compliance with the pro-
visions OF revised statutes, Section
3744, that the contract be reduced to
writing with the names of the parties
signed at the end thereof. and Sec
ton 3145, that the oath of the officer
personally responsible for the contract
| appears tas to which signing by
proxy is considered by this office as
! not permissible in view OF Section
3746, the penalties prescribed being
! personal to the officer) to require the
submission Of facts and details show
ing the basis OF the minimum amount
/ hXed by the contracting officer: and
that no amount has been paid with
out adjustment of such claims as the
Government may have against the
contractor arising out OF defective
performance. defaults &c, under the
contract. and for this purpose a spe-
enc statement will be required or
both the contractor and the contract
| ing officer of what the claims OF the
| Government are or that there are
none.
y The general answer accordingly
can only be given that il there is a
| legal liability OF the Government for
the amount of which rs per cent. is
paid under the agreement, such nav
ment is authorized.
| Objections to Agreement.
For your information I have 70
say the tenor Of the agreement il that
the termination OF a contract author
ICES a payment to the contractor. II
does not reserve to the Government its
rights to recover payments Improperly
made under the original contract and
| to enforce the liability OF the contrac-
tor and surety for defects in materials,
work done, &c, which may hereafter
| appear. II refers to articles and
work. but does not specifically incu lc
| labor.
The provisions Of Article are oh
| jectlonable in that they would permit
deliveries In the interval TO the date of
the supplemental agreement notwith-
standing notice OF the intention of the
| Government to terminate. In conncc-
ton with this the provisions OF para
| graph o may involve a delay before
| the contract becomes effective The