223 U. S.

Argument for Appellees.

because of the fact that the bids were in greater amount than defendant desired to pay therefor. The present contract, under a bid which was satisfactory in price to defendant, was entered into, but, while not in any way departing from or changing the subject-matter of the advertisement or specifications, did provide for a barge lighter in framing and plates.

The advertisement simply called for proposals for furnishing and delivering six steel dump barges; hence no contention can be made by defendant that there was any departure in the contract from the subject-matter of the advertisement.

So long as the subject-matter of the advertisement and specifications be not departed from, there can be modifications or changes in respect of mere detailed matters incident to such subject-matter. International Co. v. United States, 13 Ct. Cl. 209; McKee v. United States, 12 Ct. Cl. 504.

The Isthmian Canal Commission has authority in law to make a valid contract the terms of which modify the exact terms or specifications accompanying an advertised circular asking for proposals for work and materials.

As for the reasons for public advertisement and awarding the contract to the lowest bidder, see Dillon, Municipal Corp., 5th Ed., 1911, §§ 802, 809.

There was no statute requiring the Isthmian Canal Commission to advertise for bids and to award contracts to lowest responsible bidder. The requirement rests on a communication addressed to the Commission by the President on April 1, 1905, p. 483 Proceedings of the Isthmian Canal Commission, in response to which the Commission adopted a set of resolutions, p. 492 Proceedings, which embodied the same language in regard to letting contracts as contained in the President's communication.

Resolutions passed by the Commission could be altered VOL. CCXXIII-34

Argument for Appellees.

223 U.S.

by the Commission. They have not the binding effect of a statute.

Granting that the appellees were charged with notice of the resolution, it is general in its terms. No time for advertising is mentioned nor what the advertisement should contain, which certainly indicates that the Commission did not intend to restrict itself. Section 3709, Rev. Stat., does not impose the limitations on the Commission required to support the Government's contention.

The members of the Isthmian Canal Commission are not "ministerial agents," comparable to agents acting for a city or State in carrying out a defined piece of work in a limited and defined manner.

There was a sufficient advertisement to promote economy and there was no fraud or collusion.

The modification was not so material that the barges contracted for were not advertised.

These questions are not now open for review.

Convenience requires that the government officials should be allowed some latitude to modify specifications annexed to advertisements when the contract is made and also to modify a contract after it is made.

The Government is contending for a decision which will make it impracticable to carry on its business. Modifications are the rule. The Government is pleading a technical disability contrary to what might be called the good business faith of the situation, and, like all pleas of this character, it is necessary that the disability complained of should be clearly established.

In Harvey v. United States, a case which was heard four times in the Court of Claims and twice in this court, 8 Ct. Cl. 501; 12 Ct. Cl. 141; 13 Ct. Cl. 322; 105 U. S. 671; 18 Ct. Cl. 470; 113 U. S. 243; under similar conditions to this the Supreme Court apparently adopted the lower court's theory that the contract was not invalid on account of a departure from bid and specifications, but held

on equitable grounds that it should be reformed on account of having been entered into by mutual mistake.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

Whether or not the United States is responsible in damages because of a refusal to permit the carrying out of an alleged contract made with a co-partnership, the Ellicott Machine Company, who are appellees, for the construction for the Isthmian Canal Company of six steel dump barges is the issue here required to be decided. From a judgment for ten thousand dollars entered in the Court of Claims, in favor of the Ellicott Machine Company, because of the refusal referred to, the United States took this appeal.

It will conduce to a clear understanding of the controversy to fully summarize the facts found below, and we proceed to do so.

After two unsuccessful attempts to procure satisfactory proposals for the construction and delivery of the six steel dump barges, the Isthmian Canal Commission, by advertisement and specifications, dated May 29, 1906, invited the proposals which culminated in the making of the alleged contract. One of the clauses of the advertisement reads as follows:

"Preliminary inspection will be made at the point of manufacture or purchase to determine whether the material meets the requirements set forth in the specifications and final inspection will be made at the point of delivery as above."

*

In the specifications, among other things, it was recited as follows:

"The following specifications and requirements are general only as indicating the class of construction desired.

'Barges of heavy construction for rough service, built in accordance with best modern marine practice, are desired.

"Bidders will be required to submit with their proposals plans in sufficient detail to show the proposed size of members and details of construction."

"The breadth of the barges should not be less than 25 feet nor more than 32 feet. They should have sufficient depth and length to carry a full load of sand on a draft of not more than 8 feet, and with not less than 30" freeboard when loaded. They will be rectangular in plan, with rake at each end about 11" long.

As shown by an excerpt in the margin,1 the weight and

1 FRAMING.

Floor beams forward and aft of the hoppers and in the rake should not be less than 10" deep and extend in one piece to the turn of the bilges. They will be spaced 24" center to center. Frames to be not less than 3 1/2" x 5 3/8" angles overlapping the floors not less than 18" and connected with them and to floor beams with proper gusset plates. Bilges to be of as short radius as it is practicable to bend the angles and plates. In addition to the transverse bulkheads mentioned above there will be a watertight bulkhead at each end of each rake.

Transverse water-tight bulkheads will be made of 10.2 pound plate with double-riveted lap joints, stiffened with vertical angle bars 3" x 3" x 5 1/6" spaced 2" apart, except that the plates forming the ends of the hoppers will be of 21-pound plate, stiffened with 4′′ x 4" x 3/8′′ angle bars spaced 2' apart.

In the space forward and aft of the hoppers there should be a central longitudinal bulkhead of 10.2-pound plate, fastened at the top of the floor beams and deck beams by 4" x 4" x 3/8" angle; it will be stiffened by vertical 3" x 3" x 5/16" angles, spaced 2' apart. This bulkhead should extend from the hoppers to each end of the barges.

In addition to this bulkhead there will be 2 longitudinal lattice trusses, one on each side midway from the center bulkhead to the side of the hull. They will have top and bottom cords of 3′′ x 3′′ x 5/16′′ angles riveted to each floor and deck beam, lattice bars to be 3" x 3" x 5/16" angles made in double panels and joined top and bottom with

dimensions of the structural materials were prescribed with much detail under the head of "Framing." In reply to this advertisement appellee submitted a proposal to construct the desired barges, "subject to specifications of Circular 310-C, with such modifications as are here shown on drawing No. 2105, dated June 7, submitted herewith." The plan referred to, as so submitted, showed the outline of a barge 101 feet 4 inches long, 30 feet wide, and 10 feet 6 inches in height, and a note on it read as follows:

"Capacity of Bins-350 Cu. Yards. Maximum Loaded Draft When Carrying 350 Cu. Yds. Of Material Weighing 3240 Lbs. Per Cu. Yard, Not to Exceed 8'-0"."

After examination of the bids by F. B. Maltby, Division Engineer on the Canal Zone, that official returned the bids to the general purchasing officer of the Commis

proper gusset plates with not less than 3 rivets in each landing. These trusses will extend from the hoppers to the rake.

In the rake there should be a 3" x 3" x 3/8" angle stanchion secured to each deck beam and floor timber on line with the said trusses.

Deck beams to be of 5" x 3/8′′ Z bars spaced one to each frame, each beam to be attached to its frame by 5/16" gusset.

Gunwales to be not less than 4 1/2" x 4 1/2" x 7/16" angle running inside the side plating and below the deck.

The hull plating should be 21-pound on the bottom; bilges should be 21-pound; the side plating may be of 18-pound plate and in not more. than 2 streaks.

The deck should have a checkered stringer streak on each side 30" wide and about 7/16" thick; remaining deck may be of 15-pound plating.

All plating to be worked "in" and "out" on longitudinal streaks; longitudinal laps to be double-riveted. All girth seams to be doubleriveted to butt straps.

There should be a nosing or fender streak of 8" x 8" yellow pine, supported by 4" x 4" x 3/8′′ angles top and bottom. This nosing should extend entirely about the barge. On each side of the full length there should be a second fender streak of the same section about 3' below the deck.