Government contract

“ The validity of a contract, as a matter of fact, depends upon the ability of the parties to enter into it, for no court can enforce a contract when it is shown that the principals to it had not legal right to make it or to fulfill the conditions of it. It is accepted as a surety of power to observe the conditions when a sovereign government makes itself a party to a contract. The people are bound by their agents, to whom they delegate authority. Nothing is regarded in a more obnoxious light than the repudiation of their honest debts by sovereign States. ”

“ A contract made by the government in the exercise of its power, to borrow money on the credit of the United States, is undoubtedly independent of the will of any state in which the individual who lends may reside, and is undoubtedly an operation essential to the important objects for which the government was created. ”

“ It is the policy of the Federal Government that executive agencies shall not engage in noncompetitive contracts except in those circumstances where their use can be fully justified and where appropriate safeguards have been put in place to protect the taxpayer. In addition, there shall be a preference for fixed-price type contracts. Cost-reimbursement contracts shall be used only when circumstances do not allow the agency to define its requirements sufficiently to allow for a fixed-price type contract. ”

“ The purpose of Congress was to protect the Government against the sort of exploitation so easily accomplished under cost-plus-a-percentage-of-cost contracts under which the Government contracts and is bound to pay costs, undetermined at the time the contract is made and to be incurred in the future, plus a commission based on a percentage of these future costs. ”

“ Some of the parties believe that a government contract nationalizes the route, and gives it an importance superior to mere individual enterprise, and that the imperative necessity of “making time” insures more despatch. ”

“ Admitting, therefore, for the sake of argument, that the institution of a government is to be deemed, in the restricted sense already suggested, an original compact or contract between each citizen and the whole community, is it to be construed, as a continuing contract after its adoption, so as to involve the notion of there being still distinct and independent parties to the instrument, capable, and entitled, as matter of right, to judge and act upon its construction, according to their own views of its import and obligations? ”

“ But in our country we do things differently. Here it would be considered a stretch of power for any administration to enter into a contract with a private company—a contract binding the Government for a period of twenty-five years, and involving an annual appropriation of money—without the action of Congress. ”

“ In that case the contract is the means employed for carrying into execution the powers of the government, and the contract alone, and not the contractor, is exempt from taxation or other interference by the State government.
But where the General government creates a corporation as a means of carrying out a national object, that corporation and its powers, property, and faculties, employed in accomplishing the service, are the instrumentalities by which the government effects its objects. ”

“ If an officer, upon his own responsibility, and without the authority of Congress, assumes to bind the government, by express or implied contract, to pay a sum in excess of that limited by Congress for the purposes of such a contract, the contract is a nullity, so far as the government is concerned, and no legal obligation arises upon its part to meet its provisions. ”

“ The government, purely as contractor, in the absence of special laws, may stand like a private person; but, by making a contract, it does not give up its power to make a law, and it may make a law like the present for the reasons that we have stated. We are of opinion that the act is not contrary to the Constitution of the United States. ”

“ Here is a plain and unrestricted covenant on the part of the contractor, comprehensive as words can make it, that it will not make any claim against the government 'for any damages which may arise out of any delay caused by the United States' in the performance of the contract, and this is emphasized by being immediately coupled with a declaration by the government that if such a claim should be made it would not be allowed. ”

“ It is quite clear that a contract to pay dollars, made between citizens of any State of the Union, while maintaining its constitutional relations with the National government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol evidence. ”

“ The concepts "title," "agency," and "obligation to pay" are no basis for this constitutional adjudication. Today they are used to permit any government functionary to draw the constitutional line by changing a few words in a contract. ”

“ Government is instituted for their equal protection and benefit.' It then said: 'The usual and most frequent means of acquiring propety is by contract, and one of the most valuable and sacred rights is the right to make and enforce contracts. ”

“ In the language of the article, the government is 'authorized and empowered'-not 'obliged'-to complete the work at the expense of the contractor; 'in which event' the contractor and his sureties shall be 'further liable for any damages incurred through such default and any and all other breaches of this contract.' The phraseology indicates a purpose to give to the government a right additional to those it would otherwise have; the stipulation is made for its benefit, and, being optional in form, cannot be construed into a covenant in favor of the defaulting contractor or his surety. ”

“ This is to ignore the direct bearing of the exaction on the transaction between the contractor and the government. The fact that the tax is laid upon him who contracts with the government rather than upon the contract as such, or the government itself, is immaterial. Every purchaser of government obligations is an independent contractor with the government. If the fact that the taxpayer is an independent contractor were significant, it would have validated every tax laid upon the ownership of government obligations or upon the interest received therefrom. ”

“ But we do not feel so clear that in a contract like this, in which no place is mentioned for its precise location, and in regard to which the contract obliges the party to do the work 'in such manner and at such places as shall be directed by the said engineer or other authorized agent,' the government is only bound to pay for what earth remains visible, and capable of being triangulated after the work is finished. ”

“ It is not contended, that any difference exists between implied contracts with the government, when a law has authorized a contract, and implied contracts with individuals. The authority to make the contract to bind the United States must be shown. ”

“ Unless specified elsewhere in this contract, title to items furnished under this contract
shall pass to the Government agency upon acceptance, regardless of when or where the Government
agency takes physical possession. ”

“ Where the United States, by contract, constitutes a person or corporation its agent to fulfill a governmental obligation, a state tax upon such an agent is forbidden if it falls upon the avails of the operation in which the government has an interest, or is an excise or privilege tax upon the agent's operations ”

“ Right to File - Any offeror deemed to be an interested party, that believes it has
not received fair treatment in the award of a government public contract, or
believes that the provisions of a tender unfairly restrict full and open competition
in a manner that inappropriately excludes it from competing, may file a tender
protest with the Administrative Tribunal established pursuant to the authority of
this Order. ”

“ A contract for the establishment of government, being nothing but a voluntary contract between individuals for their mutual benefit, differs, in nothing that is essential to its validity, from any other contract between man and man, or between nation and nation. ”

“ United States, is one much stronger than this. There it was insisted that the act of Congress, under which the secretary acted in making a contract with Gilbert & Secor, was itself an acceptance of certain proposals presented by them, and that, taken in connection with the proposals, it constituted a contract binding on the government. The secretary made with the parties a contract requiring, in one particular, different kind of materials from those originally proposed ”

“ The Contracting Officer may terminate this contract, or any part
hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply
with any contract terms and conditions, or fails to provide the Contracting Officer, upon request,
with adequate assurances of future performance. In the event of termination for cause, the
Government agency shall not be liable to the Contractor for any amount of supplies or services not
accepted, and the Contractor shall be liable for any and all rights and remedies provided by law. ”

“ It is true that the theory of our Constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other; that each man makes a free and purely voluntary contract with all others who are parties to the Constitution, to pay so much money for so much protection, the same as he does with any other insurance company; and that he is just as free not to be protected, and not to pay tax, as he is to pay a tax, and be protected. ”

“ The state may contract public debts for which its full faith, credit and taxing powers may be pledged at the times and in the manner authorized by law, but only for the purposes and subject to the conditions stated in section 5. Public debt includes any obligation payable directly in whole or in part from a tax of state wide application on any class of property, income, transaction or privilege, but does not include any obligation which is payable from revenues other than taxes. ”

“ While we have never hesitated to vindicate the right of individuals or corporations to enforce the performance of lawful contracts as against subsequent legislation designed to impair them, we have always exacted as a condition that the contract was one which the legislature, or opposite party, had power to make under the Constitution, and that the other party was chargeable with knowledge of all its provisions in that connection. ”

“ It is no limitation upon property rights or freedom of contract to require that when men receive from Government the privilege of doing business under corporate form, which frees them from individual responsibility, and enables them to call into their enterprises the capital of the public, they shall do so upon absolutely truthful representations as to the value of the property in which the capital is to be invested. Corporations engaged in interstate commerce should be regulated if they are found to exercise a license working to the public injury. ”

“ Should one or more of those contracting parties, sovereignties in themselves, hold it to their interest to transact their business without the assistance of an agent, I cannot perceive that the right can be denied by any provision of the contract. ”

“ As business boomed throughout our growing country giving more States than one an interest in what a contract meant and how it should be enforced for the benefit of the citizens who made it or for whose benefit it was made, practical men began to see that there could not be one single rule of law to govern a contract in which the citizens of many States were interested. ”

“ To pay bona fide contracts for cash, in paper of little value, or in old horses, would be a dishonest attempt in an individual: but for legislatures to frame laws to support and encourage such detestable villainy, is like a judge who should inscribe the arms of a rogue over the seat of justice." [39]
The full import of the obligation of contract clause was doubtless better understood by Chief Justice Marshall than by any man of that generation. ”

“ In order to come within the provision of the constitution of the United States, which declares that no state shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by some act of the legislative power of the state, and not by a decision of its judicial department only. ”

“ The trustee may not assume or assign any executory contract or unexpired lease of the debtor, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties, if— (1) (A) applicable law excuses a party, other than the debtor, to such contract or lease from accepting performance from or rendering performance to an entity other than the debtor or the debtor in possession, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties ”

“ It cannot be, in rerum natura, that the passing of a law can impair a contract, unless the contract be in being when the law is passed. To hold otherwise,-to declare that contracts are, by this provision of the constitution, withdrawn not only from all future, but also from all past legislation,-is to sweep from the States all legislative power over the subject-matter of contracts. ”

“ The admission which we most freely make, of a power in the state, so to regulate the conduct of corporations as to attain the objects of their formation may appear to conflict with a proposition, which we shall endeavor to sustain; which is this, that the state, by becoming a party to the contract, was as much bound to respect the rights of the other party, as if the state had been an individual. ”