Subcontractor

“ And, as we have already said, petitioner's contention would so reduce it. How universal must the manufacturing be? Will the purchase of an elemental part destroy it? And how subsidiary must the work of the subcontractor be not to relieve the contractor-take from him the character of a 'person manufacturing'? And such is the tangle of inquiries we encounter when we undertake to distinguish between what a contractor to deliver a thing does himself and what he does through others as subsidiary to his obligation. ”

“ In most cases that I can think of we don't have one subcontractor working on more than one matter, but to the extent that would happen, we don't really — when you're dealing with subcontractors you're giving them generally very specific assignments, find out what you can about this company or this businessman or this court case, whatever, and a lot of that you never get into who the client is. ”

“ If we are to equate the subcontractor's interest with something it is not, it would be much more appropriate, in terms of similarity, to equate it with the usual mechanic's lien of a subcontractor on the owner's property being improved-which of course is not the general contractor's property, and which could not be taken by the United States under a lien against the general contractor. ”

“ The act of 1917, on the other hand, instead of creating a right of lien against the owner, who is a stranger to the subcontract, requires that if a bidder for public works is to become the contractor therefor he must procure a bondsman for the payment of his subcontractors. The statute itself confers no contractual right on any subcontractor, nor does it by its own force confer upon him any new remedy for the enforcement as against the principal contractor of the obligation of any contract the two may make. A bondsman is invited to come forward and agree to indemnify the subcontractor. ”

“ That when any contractor or subcontractor entering into a formal contract with any person, firm or corporation, for the construction of any building or work or the doing of any repairs, shall enter into a bond with such person, firm or corporation guaranteeing the faithful performance of such contract and containing such provisions and penalties as the parties thereto may insert therein, such bond shall also be subject to the additional obligations that such contractor or subcontractor, shall promptly make payments to all persons furnishing labor or material under said contract ”

“ Whenever, in the opinion of the Secretary of a Department, the profits realized or likely to be realized from any contract with such Department, or from any subcontract thereunder whether or not made by the contractor, may be excessive, the Secretary is authorized and directed to require the contractor or subcontractor to renegotiate the contract price. ”

“ In the case of a judicial or administrative action taken against a prime contractor, subcontractor, or non-governmental organization, the report shall identify the prime contractor, subcontractor, or non-governmental organization and the action taken against the prime contractor, subcontractor, or non-governmental organization. ”

“ The above-mentioned act of August 13, 1894, contains no direction respecting where suit upon the bond of a contractor shall be brought by a subcontractor, or what courts shall take jurisdiction of the right of action it creates. ”

“ Extra expenditures to get subcontracts necessarily add to government costs in cost-plus-a-fixed-fee and other cost reimbursable contracts. And this is also true where the prime contract is a negotiated fixed-price contract with a price redetermination clause, such as the prime contract is here. The kickbacks here are passed on to the Government in two stages. The prime contractor rarely submits his bid until after he has tentatively lined up his subcontractors. Indeed, as here, the subcontractors frequently participate in negotiation of the prime contract. ”

“ A proviso then states:
'Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made * * *.'
The Miller Act, like the Heard Act, is highly remedial in nature. ”

“ Although this court has never directly decided whether materials and labor furnished by workmen or subcontractors constitute a lien upon a vessel,-in other words, whether the contractor can be regarded as an agent of the vessel in the purchase of such labor and materials,-there is a general consensus of opinion in the state courts and in the inferior Federal courts that labor and materials furnished to a contractor do not constitute a lien upon the vessel, unless at least notice be given to the owner of such claim before the contractor has received the sum stipulated by his contract. ”

“ When a service contract expires, and a follow-on contract is awarded for the same service, at the same location, the successor contractor or its subcontractors often hires the majority of the predecessor's employees. On some occasions, however, a successor contractor or its subcontractors hires a new work force, thus displacing the predecessor's employees. ”

“ And this because prime contractors are subject to liability under the workmen's compensation statute, which states: 'Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer * * *. ”

“ It might be necessary, even, to prepare two sets of specifications for the more important parts of the contract,—one for the bidding, and one for the use of the subcontractors,—although that would be dangerous. ”

“ If a construction is given to the bond so limiting the obligation incurred as to permit only those to recover who have contracted directly with the principal, it may happen that the material and labor which have contributed to the structure will not be paid for, owing to the default of subcontractors, and the manifest purpose of the statute to require compensation to those who have supplied such labor or material will be defeated. ”

“ If such contractor should by accident be a carpenter, or an owner or vendor of lumber, yet he deals not with the owner in this capacity, but as an undertaker, who has covenanted for his own securities.
The title to this act shows its policy and intention. It is to secure, to 'mechanics and others, payment for labor done and materials found;' and the persons enumerated in the first section are, plainly, those mechanics and tradesmen whose personal labor or property have been incorporated into the building, and not the agents, supervisors, undertakers, or contractors, who employed them. ”

“ Then there are the contractor and sub-contractor; the man who failed to get the contract he wanted, and the man who is planning to get the next contract. There is the ex-agent, who corresponds with the employés and Indians, and criticises his successor, and the man who wants to be agent, and watches for a lever to oust the incumbent. (There are always twenty of them!) There is the dissatisfied employé, who corresponds with outsiders about agency affairs, and the meddlesome clerk at Washington, who gives him private assistance. ”

“ Does a master-builder, undertaker, or contractor, who undertakes, by contract with the owner, to erect a building, or some part or portion thereof, on certain terms, come within the letter or spirit of this act, or within any of the classes enumerated, as entitled to this special remedy? Such persons have an opportunity, and are capable of obtaining their own securities. They do not labor as mechanics, but superintend work done by others. They are not tradesmen in lumber, or other materials for building, but employ others to furnish materials. ”

“ Two more enactments deal with the earnings of the workmen of contractors and sub-contractors, make them a first charge on all contract money, give workers employed on works of construction a lien thereon, and compel a contractor's employer to hold back at least one-fourth of the contract money for a month after the completion of a contract, unless he shall be satisfied that all workmen concerned have been paid in full. A Wages Attachment Act limits without entirely abolishing a creditor's right to obtain orders of court attaching forthcoming earnings. ”

“ If the plans and specifications for any work which a contractor bids upon are so full, specific, and clear, that he may know exactly what he will be expected to do, and if they do not require him to assume unusual chances and risks, he may intelligently name prices which he believes will compensate him for the service. Having done so, his proposal having been accepted, and a contract entered into accordingly, the engineer and the municipality have a right both in law and equity to demand that he will do exactly and fully what he has contracted to do. ”

“ If I commission a work from a man, ordering a work specially for my purposes, and I pay for it, what difference does it make whether I put him under an employment contract or establish an independent contractor relationship? ”

“ Such expectation, however reasonable, founded even upon the express promise of the employer that the funds shall be thus devoted, of itself avails nothing in favor of the contractor. Before there can arise any lien on the funds of the employer, there must be, in addition to such express promise, upon which the contractor relies, some act of appropriation on the part of the employer depriving himself of the control of the funds, and conferring upon the contractor the right to have them applied to his payment when the services are rendered or the materials are furnished. ”

“ The contract system of building means that directly the contract is signed, the architect, representing the interests of his client, and the contractor are there watching one another like rival detectives in a divorce case. The contractor to obtain the contract has probably put in too low a price. Everywhere in material and labour he is anxious to save except where he can find, 127as in practice he always can, excuse in the specifications and drawings for extras, when he is equally anxious to spend unnecessary money. ”

“ When, therefore, one exercises an independent employment, selects his own help and has the control of them, and the method of conducting the work, he is an independent contractor. Again, he may change his relation for a time, and become an employee, or he may be a contractor for a part of his service and an employee for a part. Thus, one who was injured while operating a launch to bring supplies to a dredge for his employer was an employee and not an independent contractor, though he was one in conducting the work of dredging. ”

“ So that when a man bids for more than one route, for instance, a hundred or a thousand, and gets them and carries them all absolutely according to his contract but one, he can be declared a failing contractor on all. What does that mean? It means not simply ruin to him, but ruin to every one of his sureties, unless they are in a condition to go on and carry the mail. I want you to understand something of the obligation of a contractor with the Government of the United States. ”

“ The contracting officer may from time to time, authorize partial payments to The Murray Corporation of America (hereinafter called 'the Contractor') upon property acquired or produced by it for the performance of this contract: Provided, that such partial payments shall not exceed 90 percent of the cost to the Contractor of the property upon which payment is made (and) in no event shall the total of unliquidated partial payments (see (c) below) * * * made under this contract, exceed 80 percent of the contract price of supplies still to be delivered. ”

“ The defective track on the right of way was evident to the contractor when it made the contract, and the reasonable construction of the contract is that the contractor, in order to avail itself of the right of way, with constant ingress and egress, took over the track as it was as part of the equipment for transportation, just as he did the locomotive and cars, and as it found it, with sole responsibility for placing it in working condition and maintaining it for its use. ”

“ The contractor, under the circumstances, could acquire no greater interest in the road than was held by the company. He did not exact any formal conveyance, but if he had, and one had been executed and delivered, the rule would be the same. ”

“ The law is different in various States, and renders the owner liable, under varying conditions, for material and labor furnished to contractor by others as employees or sub-contractor, even though payment has been made by owner to general contractor. Where a bond is not required, it is proper for the owner or his agent to exact releases in proper form from those who have furnished material and labor to contractor. ”

“ The lowest contract, as the sum total of the work, is most generally adopted, and when a contract has been accepted, the matter seems settled and done with, as regards the management of the Commissioners; for the contractor at once becomes responsible for the fulfilment of his contract, and may and does employ whom he pleases and at what rates he pleases, without fear of any control or interference from the Court. The work, however, is superintended by the surveyors, to ensure its execution according to the provisions of the agreement. ”