Opinion of the Court 114 C. Cls. The Court of Claims, on motion of either of the parties, or on its own motion, may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever pending in said court to assert and defend their interests, if any, in such suits or proceedings, within such period of time prior to judgment as the Court of Claims shall prescribe. The language of this section is indeed very broad and in our opinion contains ample authority for this court to issue the summons herein sought by the Government. The plaintiff's objections to the issuance of the summons against T. H. Kent are not of sufficient substance to defeat the Government's motion. They are briefly: (1) the motion is defective in form in that it fails to comply with Rule 39 (c) of the court and is untimely; (2) the testimony of Kent has already been taken and the claim involved has been pending for two and one-half years; (3) the granting of this motion would serve to delay the proceedings, and (4) the court is without jurisdiction to adjudicate the rights between plaintiff and T. H. Kent. Rule 39 (c) requires the motion to state when the moving party first became aware of the interest of the person against whom the summons is sought and further that it was not for want of due diligence that the existence of such interest did not sooner come to the party's knowledge. It is true that the Government's motion fails to state these things, but since the matters upon which the motion is predicated as disclosed by the briefs and argument became apparent during the taking of testimony before the Commissioner, we think the defect in the motion is one of form and not of substance, and under the facts and circumstances not of sufficient merit to defeat defendant's motion on this ground. That the testimony of T. H. Kent has already been taken and the claim has been pending for over two years does not appear to be serious grounds for objection to the granting of the motion. If anything, it does show that the taking of such additional testimony as might be required would not produce any undue hardship by reason of unnecessary delay in the final disposition of this case. Plaintiff's final objection is that the general jurisdiction 390 Opinion of the Court of the court is limited by the act to claims by the United States and, accordingly, the court cannot adjudicate the legal rights between the plaintiff and T. H. Kent. * * As we said at the outset, Section 14 (b) of the Contract Settlement Act, supra, contains very broad language, to wit: "* may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever to assert and defend their interests, if any * The Government apparently is being called upon by plaintiff to pay to it the sum of $11,193.55, which it has already paid out to T. H. Kent by reason of his contract with the Government. In other words, plaintiff says the defendant must pay out this sum again, by reason of the fact that its assignment of December 12, 1945, was valid as to T. H. Kent's partial payment voucher, approved by the defendant's agent and forwarded to the proper disbursing office in Washington one day earlier-December 11, 1945. Certainly, if this same sum were to be paid to two different persons, one or the other of them would be improperly paid. One of the objectives of the Contract Settlement Act set out by Congress is as follows (41 U. S. C. 101 (f)): To use all practical methods compatible with the foregoing objectives to prevent improper payments and to detect and prosecute fraud. While the element of fraud, if any, does not appear in these proceedings from the briefs and arguments, the Government at least is charged with having improperly paid Kent as a result of the work he had performed under his contract with the Government. We believe that the situation here presented is one to which the expressed policy of Congress has application. This court is given the power to summon all persons with legal capacity before it to assert and defend their interests. It cannot be denied that, by reason of the facts and circumstances before us, T. H. Kent does have an interest, and we think he should be summoned to appear and assert and defend it. The Government should not be called upon to pay out the amount involved in this suit to two different persons unless under the law and the evidence it appears that it is legally Syllabus 114 C. Cls. bound to do so. If Kent was properly paid, then there is no basis for plaintiff's claim. If he was improperly paid, he has $11,193.55 which does not belong to him and which the defendant should have paid to plaintiff. If the Government is to be relieved of the obligation to pay out this money twice, it necessarily follows that it does have a contingent claim against Kent, which is of such a nature as to further bring it under the provisions of Section 14 (b) of the act here involved. Accordingly, plaintiff's objections are overruled and the defendant's motion is granted. MADDEN, Judge; WHITAKER, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur. WILLIAM WINTERS AND JOHN T. PAYNE, CO- [No. 47719. Decided July 11, 1949] * Government contract; liability of contractor on bid bond where right to proceed was terminated by defendant for failure to furnish performance and payment bonds.-The plaintiffs sue for $17,893.34, which is the difference between the contract price and the amount actually paid them under a contract which they performed for the Government. Recovery is allowed for this amount less the amount of $1,800, for which the plaintiffs became liable under a bid bond in connection with a prior contract for the same job where the plaintiffs' right to proceed under the first contract was terminated by the Government for failure to furnish the requisite performance and payment bonds. Courts 450 United States 67 (1), 130 Same; second contract awarded plaintiffs for same work at higher figure. On February 8, 1941, the Government issued invitations for bids on work in connection with the construction of an airport. The plaintiffs submitted the lowest bid, accompanied by a bid bond in the sum of $1,800, and their bid was accepted, and the defendant forwarded to plaintiffs copies of the proposed contract and of performance and payment bonds for execution by plaintiffs and a surety. The plaintiffs, after *Defendant's petition for writ of certiorari denied December 19, 1949. 394 Syllabus diligent efforts, were unable to get a surety to execute the necessary bonds, because investigation convinced the prospective surety that the plaintiffs could not perform the contract for their bid price. The Government terminated plaintiffs' right to proceed because of failure to furnish the bonds. It is held that plaintiffs remained liable on the original bid bond, although in response to a second invitation for bids plaintiffs again submitted the lowest bid, were awarded the contract at a higher figure than that named in the first bid and performed the contract in accordance with its terms. United States 67 (1) Same.-In effecting settlement defendant withheld the difference between the higher amount provided in the second contract, which was performed, and the lower amount provided in the first contract under which the right to proceed was terminated by the defendant. The court holds that in effect the Government administered the second contract as if it was a mere repetition of the first contract, so far as the cost to the Government was concerned ($48.89 per acre instead of $97.50 per acre), except that the Government had the advantage of the guaranty of plaintiff's performance by a surety. United States 70 (1) Same. The fact that a surety was willing to guarantee performance of the second contract, calling for payment at $97.50 per acre, and no surety was willing to guarantee performance of the first contract, calling for payment at $48.89 per acre, is evidence that the surety construed the contract provision as calling for payment at the higher rate. United States 70 (1) Same; two Government contracts for the same work at the same time not possible.-Under the decision in United States ex rel. International Contracting Company v. Lamont, 155 U. S. 303, it is a legal impossibility for the Government and a contractor to have at the same time two contracts for the same work, at different prices. If that is the law when it works to the advantage of the Government, it is the law when it works to the advantage of the citizen, as in the instant case. Estoppel 62 (2) United States 72 Same; recovery allowed.-It is held that plaintiffs are entitled to recover $16,093.34, that being the unpaid balance of the contract price under the second contract less the $1,800 for which the plaintiffs became liable upon the nonfulfillment of the condition in their bid bond given with the first bid. The defendant's counterclaim is dismissed. 114 C. Cls. Reporter's Statement of the Case The Reporter's statement of the case: Mr. Malcolm A. MacIntyre for the plaintiffs. Mr. Peter A. Campbell was on the briefs. Mr. Thomas O. Fleming, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. Mr. Edgar T. Fell was on the briefs. The court made special findings of fact as follows upon the stipulation entered into by the parties: 1. The plaintiffs are, and at all times hereinafter referred to were, copartners doing business under the firm name and style of William Winters & Co., with their principal place of business at Setauket, Long Island, New York. 2. On February 8, 1941, the United States Army Engineer Office, Jacksonville, Florida, acting for and on behalf of the Civil Aeronautics Administration of the United States Department of Commerce, issued Invitation No. 436-41-228, inviting bids for the clearing and grubbing of approximately 368.1 acres of land located near Homestead, Florida, as a part of the construction of South Dade County Airport. A copy of such invitation is annexed to the stipulation of the parties filed in this case as Exhibit 1, and is incorporated herein by reference. 3. The plaintiffs, in response to Exhibit 1, prepared and submitted, under date of February 24, 1941, a bid computed at a unit price of $48.89 per acre, or a total of $17,996.409. Accompanying the bid at the time of its submission was a bid bond, dated February 24, 1941, with the plaintiffs as principal, and the American Surety Company of New York, a New York corporation, as surety, in the penal sum of $1,800, reading as follows: Standard Form No. 24 Approved by the President Nov. 19, 1926 STANDARD GOVERNMENT FORM OF BID BOND (CONSTRUCTION OR SUPPLY) Know all Men by these Presents, That we, WILLIAM WINTERS and JOHN T. PAYNE partners, composing the |