It is the legal duty of the respondent to do that which relator prays this court to compel him to do, because the State Board of Education, his immediate superior, has ordered him to do that thing. Relator has a legal right to the relief prayed for because it has a valid contract with the State of Texas to furnish the books mentioned in its petition, and the action of the respondent in refusing to obey the orders of the State Board of Education not only prevents the State of Texas from receiving but also prevents this relator from furnishing its said books, as provided for in said contract. American Smelting Ref. Co. v. United States, 259 U.S. 75; United States v. Purcell Envelope Co. 249 U.S. 313; United States v. New York Porto Rico Steamship Co., 239 U.S. 88; Garfielde v. United States, 93 U.S. 242; State v. Toole, 26 Mont. 22; American Lighting Co. v. McCuen, 92 Md. 703; Rand-McNally Co. v. Royal, 78 P. 1103. The provisions of Articles 2808f and 2909h, Texas Complete Statutes 1920, are directory and not mandatory.

The Government is not chargeable with demurrage because it guaranteed only 20 feet of water at the wharf. The vessels employed being in the service of the appellant were not exempt from tonnage dues. Beach v. United States, 226 U.S. 243, 260; Clark v. United States, 95 U.S. 539; Dermott v. Jones, 2 Wall. 1, 7; Insurance Co. v. Mowry, 96 U.S. 544, 546; New Orleans S.S. Co. v. United States, 239 U.S. 202; Opinion of the Comptroller of the Treasury; Philippine Tariff Act, 33 Stat. 928, 976; United States v. N.Y. and Porto Rico S.S. Co., 239 U.S. 88. MR. JUSTICE HOLMES delivered the opinion of the court.

Protection for the private company, as well as the Government, is necessary under these circumstances. 239 U.S. 88, 36 S.Ct. 41, 60 L.Ed. 161 (1915).See note 13 supra.

Goldberg v. Daniels, 231 U.S. 218.United States v. New York Porto Rico S.S. Co., 239 U.S. 88, 92, 93; American Smelting Refining Co. v. United States, 259 U.S. 75, 78. Cf. Colorado Paving Co. v. Murphy, 78 F. 28 (C. C.A. 8th). See 38 Op. Att. Gen. 555, 557.

On review in this Court, however, the papers relied on were held to be nothing more than preliminary memoranda made by the parties for use in preparing a contract for execution in the form required by law, which was never done. It was said that the whole matter was abandoned by the Department after the memoranda had been made and that the Iron Company had never performed any of the work which was referred to and had never been called upon to do so. The section has been under consideration before this Court also in Clark v. United States, 95 U.S. 539; St. Louis Hay Grain Co. v. United States, 191 U.S. 159; United States v. Andrews Co., 207 U.S. 228; United States v. New York Porto Rico S.S. Co., 239 U.S. 88, 92; Erie Coal Coke Corporation v. United States, 266 U.S. 518. In no one of these has it been expressly decided that the requirements of § 3744 may not be met by an exchange of correspondence properly signed.

The Act of July 11, 1919, authorizing the Secretary to sell surplus war supplies, is not inconsistent with that section and does not repeal or modify it. There is no reason why it should not apply to contracts made in pursuance of the later act. It must be held that, because of the failure to make and sign a written contract as required by § 3744, the United States was not bound. Clark v. United States, 95 U.S. 539, 541; South Boston Iron Co. v. United States, 118 U.S. 37, 42; St. Louis Hay Grain Co. v. United States, 191 U.S. 159, 163. And see Monroe v. United States, 184 U.S. 524, 527; United States v. New York Porto Rico S.S. Co., 239 U.S. 88, 92; Ackerlind v. United States, 240 U.S. 531, 534. Judgment affirmed.

Moreover the statutory requirements were for the protection of the United States, not of the seller. United States v. New York Porto Rico S.S. Co., 239 U.S. 88. Of course the expressed contemplation of a more formal document did not prevent the letters from having the effect that otherwise they would have had. The only serious argument is the supposed duress.

As soon as the contractor made his bid April 29, 1910, he was bound. United States v. Porto Rico S.S. Co., 239 U.S. 88. He was not notified that the contract was awarded to him until May 11, twelve days thereafter. There is no explanation of this delay and no apparent reason for it. District of Columbia v. Camden Iron Works, 181 U.S. 453, is directly in point.

The government relies on our decisions in Freightliner Corp. v. Caldera, 225 F.3d 1361, 1365 (Fed.Cir.2000), Cessna Aircraft Co. v. Dalton, 126 F.3d 1442, 1451 (Fed.Cir.1997), and Rough Diamond Co. v. United States, 351 F.2d 636, 640–42 (Ct.Cl.1965), in which we held that particular plaintiffs could not sue under a statute or regulation if the law was not intended to benefit that class of plaintiffs. See also United States v. N.Y. & Porto Rico S.S. Co., 239 U.S. 88, 36 S.Ct. 41, 60 L.Ed. 161 (1915). Those cases established that a law or regulation must “protect or benefit a class of persons in order for that class to be able to bring suit against the government” and that the class must be more than an “incidental beneficiary” of the regulation.

Indeed, contracts between the government and a private party have been sustained even when statutes and regulations relating to the procurement or award process have been violated. E. Walters, 576 F.2d at 367 ("the fact that a procurement practice is prohibited does not necessarily mean that it is therefore actionable"); see Walsh v. Schlecht, 429 U.S. 401, 408 (1977) (requiring preservation of the validity of contracts that are not plainly illegal); United States v. New York Porto Rico S.S. Co., 239 U.S. 88, 92 (1915) (when government did not comply with formal requirements, contract not illegal and recovery permitted upon quantum valebat when performed) (citing United States v. R. P. Andrews Co., 207 U.S. 229, 243 (1907)); Trilon Educational Corp. v. United States, 578 F.2d 1356, 1361 (Ct.Cl. 1978) (the fact that the contracting officer may have disregarded a directive of the ASPR does not ordinarily render the contract a nullity); Ocean Tech., Inc. v. United States, 19 Cl. Ct. 288, 294 (1990) ("Performance having been fully completed, holding the obligation to pay unenforceable is not a position favored in this circuit."). In contrast, those contracts that have been held void or invalid on the ground of a statutory or regulatory violation have been clearly illegal in a material aspect, in that they violated provisions explicitly limiting the authority of a party to enter into the contract, or expressly prohibiting the contract altogether.