The Public Contracts Act of June 30, 1936, requires that all
contracts with the United States for the manufacture or furnishing
of materials (in amounts exceeding $10,000) shall include a
stipulation that all persons employed by the contractor in the
manufacture or furnishing of such materials will be paid not less
than the prevailing minimum wages "as determined by the Secretary
of Labor . . . for persons employed . . . in the particular or
similar industries . . . in the locality." Producers of iron and
steel sought to enjoin the Secretary of Labor, and other officials
and agents authorized to make purchases for the Government, from
continuing
Page 310 U. S. 114
in effect a wage determination made by the Secretary for that
industry. Complainants asserted that the construction given by the
Secretary to the term "locality" was arbitrary, capricious, and
unauthorized by law, and that if, in order to bid on Government
contracts, they must abide by the wage determination thus made,
they would suffer irreparable loss and damage, for which there was
no plain, adequate, and complete remedy at law.
Held, that the complainants were without standing to
maintain the suit. P.
310 U. S.
125.
1. The bill failed to show that any legal rights of the
complainants were invaded or threatened. P.
310 U. S.
125.
2. In the absence of statute, damage resulting from action by
the Government which does not invade any recognized legal right is
irremediable. P.
310 U. S.
125.
3. That the Secretary of Labor is charged with an erroneous
interpretation of the term "locality" in making the wage
determination is no basis for the suit. P.
310 U. S.
125.
4. Complainants are not entitled to vindicate any general
interest which the public may have in the Secretary's construction
or administration of the Act. P.
310 U. S.
125.
5. Neither R.S. § 3709, requiring advertising for proposals in
respect of Government purchases and contracts, nor the Public
Contracts Act itself, affords any basis for the suit. P.
310 U. S.
126.
6. The Act does not provide for judicial review of wage
determinations. P.
310 U. S.
128.
7. The Act vests no right in prospective bidders. P.
310 U. S.
127.
8. Congress has not by the Act exercised any regulatory power
over private business or employment, and cases involving
governmental regulation of private business are distinguishable. P.
310 U. S.
128.
9. The defendants have not tortiously invaded private rights. P.
310 U. S.
121.
10. Complainants were not entitled to a declaratory judgment. P.
310 U. S. 132.
11. The conclusion that the complainants lack standing to sue is
based upon principles implicit in the constitutional division of
authority in our system of Government and the impropriety of
judicial interpretations of law at the instance of those who show
no more than a possible injury to the public. P.
310 U. S. 132.
70 App.D.C. 354, 107 F.2d 627, reversed.
Certiorari, 309 U.S. 643, to review the reversal of a order of
the District Court dismissing a bill in equity.
Page 310 U. S. 116
MR. JUSTICE BLACK delivered the opinion of the Court.
In exercise of its authority to determine conditions under which
purchases of Government supplies shall be made, Congress passed the
Public Contracts Act of June 30, 1936. [
Footnote 1] By virtue of that Act, sellers must agree to
pay employees engaged in producing goods so purchased
"not less than the minimum wages as determined by the Secretary
of Labor to be the prevailing minimum wages for persons employed on
similar work or in the particular
Page 310 U. S. 117
or similar industries or groups of industries currently
operating in the locality in which the . . . supplies . . . are to
be manufactured or furnished under said contract."
The Court of Appeals for the District of Columbia has held that
the Secretary erroneously construed the term "locality" to include
a larger geographical area than the Act contemplates, and has
ordered six Members of the Cabinet, including the Secretary of
Labor, the Director of Procurement, and all other officials
responsible for purchases necessary in the operation of the Federal
Government, not to abide by or give effect to the wage
determination made by the Secretary for the iron and steel industry
either as to the complaining companies or any others. In this vital
industry, by action of the Court of Appeals for the District of
Columbia, the Act has been suspended and inoperative for more than
a year.
We must therefore decide whether a Federal court, upon complaint
of individual iron and steel manufacturers, may restrain the
Secretary and officials who do the Government's purchasing from
carrying out an administrative wage determination by the Secretary
not merely as applied to parties before the Court, but as to all
other manufacturers in this entire nationwide industry. Involving,
as it does, the marking of boundaries of permissible judicial
inquiry into administrative and executive responsibilities, this
problem can best be understood against the background of what took
place before the Court of Appeals for the District acted:
July 11, 1938, all the iron and steel companies in the United
States were given notice that the Secretary contemplated
proceedings for determining the minimum prevailing wage for their
industry. On the 25th and 26th of that month, hearings were had
before the Public Contracts Board, also functioning under the Act.
Many companies, and all of those involved here, were represented in
the hearings. Companies from the entire United
Page 310 U. S. 118
States filed briefs and submitted information and suggestions,
and these producers who are parties here had notice of and actively
participated in the various stages of the proceedings. After the
hearing, time for filing of briefs was allowed. Following
investigation of testimony, exhibits, letters, telegrams, briefs,
data from the Bureau of Labor Statistics, and arguments of
representatives of both labor and industry itself, the Board,
October 27, 1938, made its findings of fact, conclusions and
recommendations: (a), Accepting recommendations of industry and
labor, the Board adopted -- with minor exceptions -- the definition
of the steel industry previously in effect under the National
Industrial Recovery Act, 48 Stat. 195; (b), "the base rates paid to
the workers classified as common laborers" was utilized as a basis
for finding the minimum wage prevailing in the industry and a
common laborer was defined as "one who performs physical or manual
labor of a general character and simple nature, requiring no
special training, judgment nor skill;" (c), the view that
municipalities be treated as the geographical limit of a
"locality," and that different minimum prevailing wage standards be
adopted for small, as distinguished from larger, companies, was
rejected. The Board pointed out that "the main channels of trade in
the industry take their course far beyond the confines of local
producing areas;" that "conventional measurement of miles on the
map to outline the marketing areas of the iron and steel producers"
was unsuitable; that "geographic location does not limit the
efforts of iron and steel manufacturers to secure Government
business;" that "the workers being paid wages below the base rates
are employed in large, medium and small size companies and in
plants located in all parts of the country;" and that, in fixing a
"locality," all these factors, as well as geographic and economic
considerations, were relevant.
Page 310 U. S. 119
The majority of the Board suggested two localities, one for the
Southern States and another for the remainder of the steel
producing States. One member disagreed, and insisted upon four
localities throughout the nation, but noted that "the Board is
agreed on all the essential facts before it in the case." He
recognized that
"the law . . . permits the division of the country into
localities for the purpose of determining minimum wages. No rule is
laid down to define the extent of any localities. . . . A too
minute concept of locality would obviously nullify the law, for
each plant must necessarily occupy a different locale or site from
every other. To reduce the interpretation of locality to its most
minute point would be to find a minimum wage prevailing in each
plant. . . . When we depart from this interpretation, we are
immediately thrown upon judgment. . . . Obviously we must look for
wage patterns or uniformities. . . . Again, judgment must be relied
upon for the answer."
Excepting to the Board's recommendations, the companies now
before this Court urged that the Secretary make a finding of
minimum prevailing wages with "locality" given the connotation of a
subdivision of the respective States as originally provided in the
Bacon-Davis Act. [
Footnote
2]
On December 20, 1938, the Assistant Secretary of Labor, acting
for the Secretary, heard arguments and received briefs both from
industry and labor organizations. He did not adopt the
recommendations of the Board in full, but instead divided the
industry of the entire country into six "localities," proceeding,
however, upon the view that to construe "locality" to mean small
political divisions of the States, as the Bacon-Davis Act had done
in express terms, would render "effective administration of the Act
. . . almost impossible." It was pointed out that
Page 310 U. S. 120
"this narrowly restricted construction of the word 'locality' .
. . is contrary to the administrative construction consistently
adhered to by the Secretary of Labor in the administration of the
Act,"
and that, while Congress had closely followed the language of
the Davis-Bacon Act in some respects, it had "carefully avoided the
use of the more narrowly restrictive language of
city, town,
village or other civil subdivision.'" In the twenty-two preceding
wage determinations under this Act, the Secretary's administrative
construction of the term had been -- with a sole exception -- that
of geographic areas no smaller than those determined for the steel
industry. [Footnote 3] The
determination in question was made January 16, 1939, but was not
made operative until March 1, 1938, "in order that industry may
make necessary readjustments to comply with the decision."
In their bill for an injunction and a declaratory judgment,
these seven producers of iron and steel (respondents here) sought
to enjoin as individuals and in their official capacities, the
Secretaries of the Labor, Treasury, War, Navy, and Interior
Departments, the Postmaster General, the Director of Procurement of
the Treasury Department, the Assistant Secretary of Labor, and the
Administrator of the Division of Public Contracts of the Department
of Labor and their
"officers, agents, assistants, employees, representatives and
attorneys, and anyone associated with or acting in concert or
participation with them, or any of them, and their successors in
office and each of them, and their officers,"
etc. The seven companies named as complainants by the bill did
not merely pray relief for themselves against the Secretary's wage
determination, but insisted that all these
Page 310 U. S. 121
Government officials be restrained from requiring the statutory
stipulation as to minimum wages in contracts with any other steel
and iron manufacturers throughout the United States.
The District Court declined to interfere so sweepingly with the
administration of the Act, even in the temporary restraining order
which it granted. Its order ran only against the Secretaries of
Labor and the Navy, and specifically limited its benefits to but
three of the complaining companies. Recitals in the order indicate
that only the Secretary of the Navy had actually solicited bids,
and that only those three companies were "desirous of bidding."
After hearing, this order was dissolved, and the Court granted a
motion to dismiss the complaint for lack of jurisdiction,
inadequacy of the complaint, lack of standing to sue, and because
the suit was one against the United States without its consent.
[
Footnote 4] A stay pending
appeal was denied by the District Court, but the Court of Appeals
for the District of Columbia, Justice Edgerton dissenting, by
temporary injunction granted the sweeping prayer that all the
Government officials and agents designated in the bill be
restrained from continuing in effect the Determination made by the
Secretary of Labor. By motion for reargument, the restrained
officials, represented by attorneys of the Government, asked that
the injunction be clarified so as to be
"restricted to enjoining enforcement of the Determination
against parties to this proceeding . . . , and . . . not be
extended to other bidders, not parties to this action and who, for
all that appears, may desire to abide by the Determination."
In the same motion, the Government asked that employees who
might be irreparably injured be protected by "a bond or other
security to pay the minimum wages if the appellants
Page 310 U. S. 122
do not eventually succeed in this case." [
Footnote 5] The record discloses no action by the
Court of Appeals on this motion or on a subsequent motion to
dissolve the temporary injunction. [
Footnote 6] But the temporary injunction rendering the Act
wholly inoperative as to the iron and steel industry was kept in
effect, and, reversing the District Court, the Court of Appeals,
Justice Edgerton again dissenting, remanded with instructions that
relief as prayed in the bill be granted. [
Footnote 7]
Page 310 U. S. 123
In our judgment, the action of the Court of Appeals for the
District of Columbia goes beyond any controversy that might have
existed between the complaining companies and the Government
officials. The benefits of its injunction, and of that ordered by
it, were not limited to the potential bidders in the "locality,"
however construed, in which the respondents do business. All
Government officials with duties to perform under the Public
Contracts Act have been restrained from applying the wage
determination of the Secretary to bidders throughout the Nation who
were not parties to any proceeding, who were not before the court
and who had sought no relief.
As a result of this judicial action, Federal officials had no
feasible alternative except to make contracts for imperatively
needed supplies for the War and Navy Departments without inclusion
of the stipulation which Congress had required. The Public
Contracts Act, so far as the steel industry is concerned, has been
suspended for more than a year, with no bond or security to protect
the public's interest in the maintenance of wage standards
contemplated by Congress, should the suspension ultimately appear
unwarranted or unauthorized. Here, and below, the Government has
challenged the right of the judiciary to take such action, alleging
that it constitutes an unwarranted interference with deliberate
legislative policy and with executive administration vital to the
achievement of governmental ends at the instance of parties whose
rights the Government has not invaded and who have no standing in
court to attack the Secretary's determination. The manifestly
far-reaching importance of the questions thus raised prompted us to
grant certiorari. [
Footnote
8]
Of the six "localities" into which the Secretary's determination
divided the steel industry, respondents do business in that
consisting of Ohio, Pennsylvania, Delaware,
Page 310 U. S. 124
Maryland, Kentucky, New Jersey, New York, Connecticut, Rhode
Island, Massachusetts, Vermont, New Hampshire, Maine, the District
of Columbia, and a part of West Virginia. [
Footnote 9] Their stated grievance was that the
construction given to the term "locality" by the Secretary amounted
to
"a plain error of law in interpreting the Act, . . . and
consequently, in purporting . . . to determine the prevailing
minimum wages for persons employed in the manufacture . . . of the
iron and steel industry in the six so-called 'localities' set forth
in this determination, [the Secretary] acted arbitrarily and
capriciously and wholly without warrant or authority in law."
In particular, the complaint alleged --
Respondents had been selling their products to agents of the
United States for many years; they wished to continue to bid on
Government contracts; their minimum wages had ranged from 53� to 56
1/2� per hour; if required to pay the 62 1/2� per hour minimum rate
determined by the Secretary, there was grave danger that they would
be unable successfully to compete with others for Government
contracts; they had a legal right to bid for Government contracts
free from any obligation to abide by the minimum wage determination
because of alleged illegal administrative construction of
"locality," and, if denied the right to bid without paying their
employees this minimum wage, they would suffer "irreparable and
irrecoverable damages" for which the law provided no "plain
adequate or complete remedy."
Page 310 U. S. 125
In staying the effect of the administrative wage determination,
the Court of Appeals for the District was of the opinion that "the
word locality is one of somewhat indefinite meaning" requiring the
Secretary to exercise judgment and discretion "within the proper
limits of the meaning of locality," but held that the Secretary's
determination in this case went
"so far beyond any possible proper application of the word as to
defeat its meaning and to constitute an attempt arbitrarily to
disregard the statutory mandate."
We are of opinion that no legal rights of respondents were shown
to have been invaded or threatened in the complaint upon which the
injunction of the Court of Appeals was based. It is by now clear
that neither damage nor loss of income in consequence of the action
of Government, which is not an invasion of recognized legal rights,
is, in itself, a source of legal rights in the absence of
constitutional legislation recognizing it as such. [
Footnote 10] It is not enough that the
Secretary of Labor is charged with an erroneous interpretation of
the term "locality" as an element in her wage determination. Nor
can respondents vindicate any general interest which the public may
have in the construction of the Act by the Secretary and which must
be left to the political process. Respondents, to have standing in
court, must show an injury or threat to a particular right of their
own, as distinguished from the public's interest in the
administration of the law. [
Footnote 11] They claim a standing by asserting that they
have particular rights under and even apart from statute to bid and
negotiate for Government contracts free from compliance with the
determination
Page 310 U. S. 126
made by the Secretary of Labor for their industry. Respondents
point to Section 3709 of the Revised Statutes, and to the Public
Contracts Act itself.
Section 3709 of the Revised Statutes requires for the
Government's benefit that its contracts be made after public
advertising. [
Footnote 12]
It was not enacted for the protection of sellers, and confers no
enforceable rights upon prospective bidders. [
Footnote 13]
"The United States needs the protection of publicity, form,
regularity of returns, and affidavit (Rev.Stat., §§ 3709,
3718-3724, 3745-3747) in order to prevent possible frauds upon it
by officers. A private person needs no such protection against a
written undertaking signed by himself. The duty is imposed upon the
officers of the government, not upon him. [
Footnote 14]"
That duty is owing to the Government, and to no one else.
Page 310 U. S. 127
Like private individuals and businesses, the Government enjoys
the unrestricted power to produce its own supplies, to determine
those with whom it will deal, and to fix the terms and conditions
upon which it will make needed purchases. [
Footnote 15] Acting through its agents, as it
must of necessity, the Government may, for the purpose of keeping
its own house in order, lay down guideposts by which its agents are
to proceed in the procurement of supplies, and which create duties
to the Government alone. It has done so in the Public Contracts
Act. That Act does not depart from, but instead embodies, the
traditional principle of leaving purchases necessary to the
operation of our Government to administration by the executive
branch of Government, with adequate range of discretion free from
vexatious and dilatory restraints at the suits of prospective or
potential sellers. It was not intended to be a bestowal of
litigable rights upon those desirous of selling to the Government;
it is a self-imposed restraint for violation of which the
Government -- but not private litigants -- can complain. Thus, a
wage determination by the Secretary contemplates no controversy
between parties and no fixing of private rights; the process of
arriving at a wage determination contains no semblance of these
elements which go to make up a litigable controversy as our law
knows the concept. [
Footnote
16] Courts have never reviewed or supervised the administration
of such an executive responsibility, even where executive duties
"require an interpretation of the law." [
Footnote 17] Judicial restraint of those who
administer the
Page 310 U. S. 128
Government's purchasing would constitute a break with settled
judicial practice and a departure into fields hitherto wisely and
happily apportioned by the genius of our polity to the
administration of another branch of Government.
This Act's purpose was to impose obligations upon those favored
with Government business and to obviate the possibility that any
part of our tremendous national expenditures would go to forces
tending to depress wages and purchasing power and offending fair
social standards of employment. As stated in the Report of the
House Committee on the Judiciary on the Bill, [
Footnote 18]
"The object of the bill is to require persons having contracts
with the Government to conform to certain labor conditions in the
performance of the contracts, and thus to eliminate the practice
under which the Government is compelled to deal with
sweatshops."
We find nothing in the Act indicating any intention to abandon a
principle acted upon since the Nation's founding under which the
legislative and executive departments have exercised complete and
final authority to enter into contracts for Government purchases.
The Committee Hearings and Reports and the construction of the
measure by its sponsors disclose no purpose to invoke judicial
supervision over agents chosen by Congress to perform these duties.
And Sections 4 and 5, do not subject a wage determination to such
review. Provision for hearings and findings by the Secretary with
respect to decisions upon breaches of stipulations by contractors,
once purchases have been made, is indicative of a lack of intention
to create any rights for prospective bidders before a purchase is
concluded.
The Act does not represent an exercise by Congress of regulatory
power over private business or employment. [
Footnote 19]
Page 310 U. S. 129
In this legislation, Congress did no more than instruct its
agents who were selected and granted final authority to fix the
terms and conditions under which the Government will permit goods
to be sold to it. The Secretary of Labor is under a duty to observe
those instructions, just as a purchasing agent of a private
corporation must observe those of this principal. In both
instances, prospective bidders for contracts derive no enforceable
rights against the agent for an erroneous interpretation of the
principal's authorization. For erroneous construction of his
instructions, given for the sole benefit of the principal, the
agent is responsible to his principal alone, because his
misconstruction violates no duty he owes to any but his principal.
The Secretary's responsibility is to superior executive and
legislative authority. Respondents have no standing in court to
enforce that responsibility or to represent the public's interest
in the Secretary's compliance with the Act. [
Footnote 20] That respondents sought to
vindicate such a public right or interest is made apparent both by
their prayer that the determination be suspended as to the entire
steel industry and by the extent of the injunction granted.
The contested action of the restrained officials did not invade
private rights in a manner amounting to a tortious violation. On
the contrary, respondents in effect seek, through judicial action,
to interfere with the manner in which the Government may dispatch
its own internal affairs. And, in attempted support of the
injunction granted, they cite many cases involving contested
Government regulation of the conduct of private business. [
Footnote 21] Their cited cases,
however, all relate to problems different from those
Page 310 U. S. 130
inherent in the imposition of judicial restraint upon agents
engaged in the purchase of the Government's own supplies.
The Government can supply its needs by its own manufacturing or
by purchase. And Congress can, as it always has, either do the
purchasing of the Government's goods and supplies itself, or it can
entrust its agents with final power to do so and make these agents
responsible only to it. [
Footnote 22] Courts should not, where Congress has not
done so, subject purchasing agencies of Government to the delays
necessarily incident to judicial scrutiny at the instance of
potential sellers, which would be contrary to traditional
governmental practice and would create a new concept of judicial
controversies. A like restraint applied to purchasing by private
business would be widely condemned as an intolerable business
handicap. It is, as both Congress and the courts have always
recognized, essential to the even and expeditious functioning of
Government that the administration of the purchasing machinery be
unhampered. The Constitution prohibits appropriations for the Army
for more than two years, [
Footnote 23] and, by statute, contracts for the purchase
of Departmental supplies are in general limited to one year.
[
Footnote 24] These
prohibitions emphasize the grave importance of leaving the
restraint of the Government's purchasing agents to Congress and
their executive superiors.
The record here discloses the "confusion and disorder" [
Footnote 25] that can result from
the delays necessarily incident to
Page 310 U. S. 131
judicial supervision of administrative procedure developed to
meet present day needs of Government and capable of operating
efficiently and fairly to both private and public interests. In the
appropriate words of Mr. Justice Sutherland,
"The bare suggestion of such a result, with its attendant
inconveniences, goes far to sustain the conclusion which we have
reached, that a suit of this character cannot be maintained.
[
Footnote 26]"
For more than a year, Cabinet officers and their subordinates
have been enjoined from making the Secretary's determination of
minimum wages effective. Meanwhile, iron and steel were needed for
the Army and Navy. In order that the military program could
proceed, the declared policy of the Congress was abandoned under
judicial compulsion, and contracts without a minimum wage
stipulation have been awarded for more than $65,000,000.00 worth of
iron and steel products since the injunction issued. [
Footnote 27] If the general law
permits prospective bidders to challenge each wage determination of
the Secretary in the courts, by a like token, all employees
affected could obtain judicial review. Such a possibility places in
bold relief those conditions which led Congress to proceed in this
Act upon the belief, to which we have recently alluded, [
Footnote 28] that "legislatures are
ultimate guardians of the liberties and welfare of the people in
quite as great a degree as the courts." [
Footnote 29]
The case before us makes it fitting to remember that
"The interference of the courts with the performance of the
ordinary duties of the executive departments of the government
would be productive of nothing but mischief,
Page 310 U. S. 132
and we are quite satisfied, that such a power was never intended
to be given to them. [
Footnote
30]"
The District Court properly dismissed the bill, and the Circuit
Court of Appeals for the District of Columbia was in error in
finding respondents with standing to bring this action, in ordering
the Secretary's determination restrained, and in holding
respondents entitled to declaratory judgment. [
Footnote 31]
Our decision that the complaining companies lack standing to sue
does not rest upon a mere formality. We rest it upon reasons deeply
rooted in the constitutional divisions of authority in our system
of Government and the impropriety of judicial interpretations of
law at the instance of those who show no more than a mere possible
injury to the public. The judgment of the Court of Appeals is
reversed, and that of the District Court dismissing the bill is
affirmed.
Reversed.
MR. JUSTICE McREYNOLDS is of opinion that the challenged
judgment should be affirmed.
[
Footnote 1]
49 Stat. 2036.
[
Footnote 2]
46 Stat. 1494.
[
Footnote 3]
2 Fed.Reg. 233, 1333, 1335, 1336, 1337, 1338, 1339, 2960, 2976;
3 Fed.Reg. 64, 224, 257, 889, 1613, 895, 901, 1612, 1153, 2371,
2370, 2537, 3043; 4 Fed.Reg. 4005.
[
Footnote 4]
The District Court's judgment was rendered without opinion.
[
Footnote 5]
Sections of the Public Contracts Act provide that
"breach or violation of any of the representations and
stipulations in any contract for the purposes set forth . . . shall
render the party responsible therefor liable to the United States
of America for liquidated damages, in addition to damages for any
other breach of such contract, . . . a sum equal to the amount of
any deductions, rebates, refunds, or underpayment of wages due to
any employee engaged in the performance of such contract. . . . Any
sums of money due to the United States of America by reason of any
violation of any of the representations and stipulations of said
contract set forth in section 1 hereof may be withheld from any
amounts due on any such contracts or may be recovered in suits
brought in the name of the United States of America by the Attorney
General thereof. All sums withheld or recovered as deductions,
rebates, refunds, or underpayments of wages shall be held in a
special deposit account, and shall be paid, on order of the
Secretary of Labor, directly to the employees who have been paid
less than minimum rates of pay as set forth in such contracts and
on whose account such sums were withheld or recovered. . . ."
[
Footnote 6]
The Government's motion to clarify and restrict the temporary
injunction and for security was filed March 29, 1939; the motion to
dissolve the temporary injunction was filed April 13, 1939. No
specific consideration of these motions by the Court of Appeals of
the District of Columbia is disclosed in the record. August 4,
1939, after argument on the merits, that Court of Appeals, per
curiam, Justice Edgerton dissenting, announced that the temporary
injunction would be kept in effect, that the judgment of the
District Court would be reversed, and that the grounds for
enjoining the administration of the Act would be set out in an
opinion "to be filed shortly." The opinion of the Court of Appeals
came down October 3, 1939; Justice Edgerton filed a separate
opinion in dissent.
[
Footnote 7]
107 F.2d 627.
[
Footnote 8]
309 U.S. 643.
[
Footnote 9]
The remaining five localities are: 1, Louisiana, Arkansas,
Mississippi, North Carolina, South Carolina, Florida, Oklahoma,
Texas, Alabama, Tennessee, Georgia, Virginia, and a part of West
Virginia; 2, Washington, Oregon and California; 3, Montana, Idaho,
Nevada, Wyoming, New Mexico, Utah, Colorado and Arizona; 4, North
Dakota, South Dakota, Nebraska, Kansas, Minnesota, Iowa, Missouri
and the area in and about East Saint Louis, Illinois; 5, Wisconsin,
Illinois (except the area in and about East Saint Louis, Illinois),
Michigan and Indiana.
[
Footnote 10]
Tennessee Electric Power Co. v. Tennessee Valley
Authority, 306 U. S. 118,
306 U. S.
137-138;
Alabama Power Co. v. Ickes,
302 U. S. 464;
Massachusetts v. Mellon, 262 U. S. 447.
[
Footnote 11]
Stearns v. Wood, 236 U. S. 75,
236 U. S. 78;
Fairchild v. Hughes, 258 U. S. 126,
258 U. S.
129.
[
Footnote 12]
R.S. § 3709, 41 U.S.C. § 5, provides:
"Except as otherwise provided by law, all purchases and
contracts for supplies or services in any of the departments of the
Government and purchases of Indian supplies, except for personal
services, shall be made by advertising a sufficient time previously
for proposals respecting the same, when the public exigencies do
not require the immediate delivery of the articles, or performance
of the service. When immediate delivery or performance is required
by the public exigency, the articles or service required may be
procured by open purchase or contract at the places and in the
manner in which such articles are usually bought and sold, or such
services engaged, between individuals."
[
Footnote 13]
Cf. United States ex rel. Goldberg v. Daniels,
231 U. S. 218.
[
Footnote 14]
United States v. New York & Porto Rico S.S. Co.,
239 U. S. 88,
239 U. S. 92-93;
American Smelting & Refining Co. v. United States,
259 U. S. 75,
259 U. S. 78.
Cf. Colorado Paving Co. v. Murphy, 78 F. 28.
See
38 Op.Atty.Gen. 555, 557. Bidders have not been able to contest the
award of contracts as bidders or in their capacity as citizens
generally.
O'Brien v. Carney, 6 F.
Supp. 761;
B. F. Cummins v. Burleson, 40 App.D.C. 500;
Champion Coated Paper Co. v. Joint Committee on Printing,
47 App.D.C. 141;
cf. Strong v. United States, 6 Ct.Cls.
135. And the view that bidders have no standing in the courts has
been generally recognized by the Comptroller General, the
Inter-Departmental Board on Contracts of the Bureau of the Budget,
as well as the Senate Judiciary Committee. Hearing before the
Comm'n on the Judiciary, House of Representatives, 71st Cong., 2nd
Sess., on H.R. 5568, Serial 4, Part 1, pp. 16-22, 26-27; Senate
Report 433, 74th Cong., 1st Sess.
[
Footnote 15]
Atkin v. Kansas, 191 U. S. 207;
Ellis v. United States, 206 U. S. 246;
Heim v. McCall, 239 U. S. 175;
cf. Federal Trade Commission v. Raymond Co., 263 U.
S. 565.
[
Footnote 16]
Norwegian Nitrogen Co. v. United States, 288 U.
S. 294,
288 U. S.
319-320.
[
Footnote 17]
United States ex rel. Dunlap v. Black, 128 U. S.
40,
128 U. S. 48;
cf. Butte, A. & P. Ry. Co. v. United States,
290 U. S. 127,
290 U. S. 136,
290 U. S.
142-143.
[
Footnote 18]
House Report No. 2946, 74th Cong., 2nd Sess.
[
Footnote 19]
Cf. Ex parte Williams, 277 U.
S. 267,
277 U. S. 269,
277 U. S. 272;
Great Northern Ry. Co. v. United States, 277 U.
S. 172,
277 U. S.
180.
[
Footnote 20]
Cf. General Inv. Co. v. New York Cent. R. Co.,
271 U. S. 228,
271 U. S. 230.
See also Note
10
[
Footnote 21]
See, e.g., Utah Fuel Co. v. Coal Comm'n, 305 U.S. 575;
Shields v. Utah Idaho Central R. Co., 305 U.
S. 177;
Waite v. Macy, 246 U.
S. 606;
American School of Magnetic Healing v.
McAnnulty, 187 U. S. 94;
Gegious v. Uhl, 239 U. S. 3;
Truax v. Raich, 239 U. S. 33;
Pierce v. Society of Sisters, 268 U.
S. 510.
[
Footnote 22]
Great Northern Railway Co. v. United States,
277 U. S. 172,
277 U. S. 182;
Work v. Rives, 267 U. S. 175;
Butte, Anaconda & Pacific Ry. Co. v. United States,
290 U. S. 127;
United States v. Babcock, 250 U.
S. 328;
Louisiana v. McAdoo, 234 U.
S. 627;
Adams v. Nagle, 303 U.
S. 532,
303 U. S.
540-541.
[
Footnote 23]
Art. I, Sec. 8, cl. 12.
[
Footnote 24]
41 U.S.C. § 13.
[
Footnote 25]
Cf. Mr. Chief Justice Taney in
Decatur v.
Paulding, 14 Pet. 497,
39 U. S.
516.
[
Footnote 26]
Massachusetts v. Mellon, 262 U.
S. 447,
262 U. S.
487.
[
Footnote 27]
Bulletins Nos. 75 to 176, inclusive, of the Division of Public
Contracts of the Department of Labor.
[
Footnote 28]
Federal Communications Commission v. Pottsville Broadcasting
Co., 309 U. S. 134.
[
Footnote 29]
Missouri, K. & T. Ry. Co. v. May, 194 U.
S. 267,
194 U. S.
270.
[
Footnote 30]
Decatur v. Paulding, supra, at
39 U. S.
516.
[
Footnote 31]
Aetna Life Ins. Co. v. Haworth, 300 U.
S. 227,
300 U. S.
240-241.