The United States sued in a Federal District Court to enjoin the
Georgia Public.Service Commission from prohibiting common carriers
from contracting with agencies of the Federal Government for the
mass transportation within that State of the household goods of
civilian employees of the Federal Government at rates other than
those prescribed by the Georgia Commission. A three-judge District
Court convened to hear the case denied an injunction, and the
United States appealed directly to this Court.
Held:
1. This case is one "required" to be heard by a three-judge
District Court, and a direct appeal to this Court was properly
taken under 28 U.S. C. § 1253. Pp.
371 U. S.
287-288.
2. Federal procurement statutes provide for the negotiation of
special rates for transporting household goods of federal employees
at government expense, and the State could not defeat the purpose
of this legislation by prohibiting the common carriers from
transporting such goods intrastate at rates other than those
prescribed by the Georgia Public Service Commission.
Public
Utilities Commission of California v. United States,
355 U. S. 534. Pp.
371 U. S.
288-293.
197 F. Supp. 793 reversed.
Page 371 U. S. 286
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Civilian employees of the Federal Government were reassigned
from Savannah to Atlanta, Georgia, and the General Services
Administration sought to arrange by competitive bidding for the
intrastate mass shipment of their household goods between those
cities. Georgia law, however, does not permit a rate for
transporting household goods of more than one family; it requires
carriers to quote schedules of approved rates, the total charge to
be the sum of the charges figured for individual families.
[
Footnote 1] Five carriers
submitted bids quoting rates lower than those allowed by the
Georgia tariff. After the competitive bidding was over and the
contract awarded to the lowest responsible bidder, the Georgia
Public Service Commission threatened these five carriers with
revocation of their intrastate operating certificates should they
perform at the rates quoted GSA. The successful bidder thereupon
notified GSA that it was unable to perform the contract. Appellee
instituted proceedings against the carrier, looking toward the
revocation of its certificate. The United States sought to
intervene in that proceeding, but it was not allowed to do so.
Appellee also refused to allow a GSA official to testify as to the
circumstances of the shipping contract that the Commission claimed
conflicted with Georgia law.
Thereupon, the United States filed suit in the District Court
and requested the convocation of a three-judge court. The complaint
alleged,
inter alia, that Georgia law burdened federal
officers in carrying out their federal functions and conflicted
with federal procurement
Page 371 U. S. 287
policy. The issue as finally joined raises squarely those
questions. The District Court held that there was no conflict
between Georgia's regulatory scheme and the federal one, concluding
that the case is governed by
Penn Dairies, Inc. v. Milk Control
Comm'n, 318 U. S. 261.
See 197 F. Supp. 793. The case is here on direct appeal
(28 U.S.C. §§ 1253, 2101(b)); we postponed consideration of the
question of jurisdiction until a hearing on the merits. 369 U.S.
882.
We have jurisdiction of this appeal if the case was "required .
. . to be heard and determined by a district court of three
judges." 28 U.S.C. § 1253. The question whether the Georgia
regulatory scheme is unconstitutional because it burdened the
exercise by the United States of its power to maintain a civilian
service and to carry out other constitutional functions is a
substantial one, as our decisions in
Penn Dairies, Inc. v. Milk
Control Comm'n, supra; Public Utilities Comm'n of California v.
United States, 355 U. S. 534, and
Paul v. United States, ante, p.
371 U. S. 245, and
therefore required a three-judge court to adjudicate it. 28 U.S.C.
§ 2281;
Idlewild Bon Voyage Liquor Corp. v. Epstein,
370 U. S. 713;
Florida Lime & Avacado Growers v. Jacobsen,
362 U. S. 73. We
have presented here more than an isolated issue whether a state law
conflicts with a federal statute, and therefore must give way by
reason of the Supremacy Clause.
Cf. Kesler v. Department of
Public Safety, 369 U. S. 153.
Direct conflict between a state law and federal constitutional
provisions raises, of course, a question under the Supremacy
Clause, but one of a broader scope than where the alleged conflict
is only between a state statute and a federal statute that might be
resolved by the construction given either the state or the federal
law.
Id., 369 U. S. 157.
So we have a clear case for convening a three-judge court. Once
convened, the case can be disposed of below or here on any ground,
whether or not it would have justified the
Page 371 U. S. 288
calling of a three-judge court.
See Sterling v.
Constantin, 287 U. S. 378,
287 U. S.
393-394;
Railroad Comm'n v. Pacific Gas Co.,
302 U. S. 388,
302 U. S.
391.
The District Court, acting on motions for summary judgment filed
by each of the parties, said that, were the property being
transported "strictly governmental property," the case would be
governed by
Public Utilities Comm'n of California v. United
States, 355 U. S. 534. But
since the property involved here is household goods, not military
supplies, the court concluded that the case is controlled by
Penn Dairies, Inc. v. Milk Control Comm'n, supra.
The distinction drawn by the District Court between this case
and
Public Utilities Comm'n of California v. United States,
supra, is not tenable. Between 1943, when
Penn
Dairies was decided, and 1958, when
Public Utilities
Comm'n of California was decided, Congress enacted the Armed
Services Procurement Act of 1947, 62 Stat. 21, later codified
without substantial change, 70A Stat. 127, 10 U.S.C. § 2301
et
seq., which extended and elaborated the federal procurement
policy of negotiated rates which, as we noted in the
Public
Utilities Comm'n of California case, conflicted with
California's policy of regulated rates. 355 U.S. at
355 U. S. 544.
The federal Regulation involved in that case was superseded in 1958
by the Military Traffic Management Regulation. [
Footnote 2] That Regulation includes the
"procedures to govern the movement of uncreated household goods."
[
Footnote 3] Another Regulation
provides that their transportation is authorized
"by the mode of transportation . . . which results in the lowest
over-all cost to the Government and which provides the required
service satisfactorily. [
Footnote
4]"
This entails "negotiation" with
Page 371 U. S. 289
carriers for "rates" [
Footnote
5] on military traffic and "Special arrangements pertaining to
other freight traffic." [
Footnote
6] Examples could be multiplied, but enough has been said to
show that the new Military Traffic Management Regulation continues
in effect the provisions of the earlier regulation in force when
the
Public Utilities Comm'n of California case was
decided.
The same policy of negotiating rates for shipment of federal
property now governs nondefense agencies. The basic statute is the
Federal Property and Administrative Services Act of 1949, 63 Stat.
383, 40 U.S.C. § 481, 63 Stat. 393, as amended, 41 U.S.C. § 251
et seq. Its procurement provisions are substantially
similar to those contained in the Armed Services Procurement Act of
1947. It was, indeed, enacted to extend to GSA
"the principles of the Armed Services Procurement Act of 1947,
with appropriate modifications principally designed to eliminate
provisions applicable primarily to the military."
H.R.Rep.No. 670, 81st Cong., 1st Sess., p. 6. Under the
regulations promulgated pursuant to this Act, procurement of
transportation and improvement of transportation and traffic
practices of executive agencies are entrusted to the Commissioner
of the Transportation and Public Utilities Service (TPUS).
[
Footnote 7] He is to represent
the executive agencies "in negotiations of rates and contracts for
transportation." [
Footnote 8]
The Commissioner, in procurement and contracting, [
Footnote 9]
"(a) Negotiates purchases and contracts for property and
services without advertising, and makes any
Page 371 U. S. 290
determinations and decisions required in connection therewith. .
. ."
"(b) Makes purchases and contracts for property and services by
advertising, and determines that the rejection of all bids is in
the public interest."
"(c) Determines the type of negotiated contract which will
promote the best interests of the Government. . . ."
The Regulation governing the Commissioner's functions enjoins
him:
"to evaluate mass movements of household goods and personal
effects and, when feasible, to negotiate with carriers to effect
the most economical basis for the movement of such household goods
and personal effects. [
Footnote
10]"
"Except when the exigency of the movement precludes such action,
all requests for rates for mass movements . . . shall be made by
formal advertising [for bids]. . . . [
Footnote 11]"
That Regulation is plainly within the purview of the Act, which
provides in § 302, as amended, 41 U.S.C. § 252, as follows:
"All purchases and contracts for property and services shall be
made by advertising, as provided in section 253 of this title,
except that such purchases and contracts may be negotiated by the
agency head without advertising if --"
"
* * * *"
"(2) the public exigency will not admit of the delay incident to
advertising;"
"
* * * *
Page 371 U. S.
291
"
"(10) for property or services for which it is impracticable to
secure competition;"
"
* * * *"
"(14) for property or services as to which the agency head
determines that bid prices after advertising therefor are not
reasonable . . . or have not been independently arrived at in open
competition:
Provided, That . . . (B) the negotiated price
is the lowest negotiated price offered by any responsible supplier.
. . ."
Section 253(b) provides that awards shall be made "to that
responsible bidder whose bid . . . will be most advantageous to the
Government, price and other factors considered." Moreover, 40
U.S.C. § 481(a)(4) directs GSA to represent executive agencies "in
negotiations with carriers" with respect to transportation "for the
use of executive agencies." Transfer of household goods of federal
employees, whether military [
Footnote 12] or civilian, has been made by Congress a
charge against federal funds when employees are transferred from
one official station to another. [
Footnote 13]
It is said that the 1949 Act gives the Administrator power to
deal only with whoever has authority to make rate decisions,
whether it be the carrier on interstate shipments or the state
regulatory agency on intrastate shipments. 40 U.S.C. § 481 does
indeed provide:
"The Administrator shall, in respect of executive agencies, and
to the extent that he determines that so doing is advantageous to
the Government in terms of economy, efficiency, or service, and
with due regard to the program activities of the agencies concerned
--"
"
* * * *
Page 371 U. S.
292
"
"(4) with respect to transportation and other public utility
services for the use of executive agencies, represent such agencies
in negotiations with carriers and
other public
utilities and
in proceedings involving carriers or
other public utilities before Federal and
State
regulatory bodies. . . ."
(Emphasis added.)
But that provision does not say that state-fixed rates govern
the federal procurement official unless he can get them changed. It
is comparable to § 22 of the Interstate Commerce Act, 49 U.S.C. §
22, which allows the United States to obtain preferred rates.
"The object of the section was to settle, beyond doubt, that the
preferential treatment of certain classes of shippers and travelers
. . . is not necessarily prohibited."
Nashville R. Co. v. Tennessee, 262 U.
S. 318,
262 U. S. 323.
And see Southern R. Co. v. United States, 322 U. S.
72;
United States v. Interstate Commerce
Comm'n, 352 U. S. 158.
By § 481(a) the Administrator is authorized to seek before state
agencies preferential treatment for federal shipments. But there is
not a word suggesting that, failing in that regard, he is bound to
accept the state-fixed rate. The Act and the Regulation speak too
clearly in terms of the "lowest over-all cost" to the Government,
either through competitive bidding or negotiation with carriers,
for us to conclude that the only relief against state fixed rates
is an administrative remedy before the state agency either through
negotiation or litigation. Congress has not tied the hands of the
federal procurement officials so tightly.
We have then a federal procurement policy of negotiated rates
for transporting household goods of federal employees -- a policy
as clear and as explicit as the federal policy for transporting
military supplies involved in
Public Utilities Comm'n of
California v. United States,
Page 371 U. S. 293
supra. The Georgia policy, which is opposed to this
federal policy, must accordingly give way. For, as we noted in
Public Utilities Comm'n of California v. United States,
supra, at
355 U. S. 544,
a State is without power by reason of the Supremacy Clause to
provide the conditions on which the Federal Government will
effectuate its policies. Whether the federal policy is a wise one
is for the Congress and the Chief Executive to determine.
See
Perkins v. Lukens Steel Co., 310 U. S. 113,
310 U. S. 127
et seq. Once they have spoken, it is our function to
enforce their will.
Reversed.
[
Footnote 1]
See Ga. Household Goods Tariff No. 1-B, GPSC-MF No. 3,
Rules 8 and 15. The latter provides in part that "Property of two
or more families or establishments will not be accepted for
transportation as a single shipment."
[
Footnote 2]
Promulgated March 1958, as amended to October 10, 1960.
[
Footnote 3]
Id., c. 101, � 101001.
[
Footnote 4]
Joint Travel Regulations, c. 8, April 1, 1959, as amended to
October 1, 1961, � 8001.
[
Footnote 5]
Military Traffic Management Regulation, amended to November 5,
1959, c. 201, � 201001(b).
[
Footnote 6]
Id., � 201001(k).
[
Footnote 7]
General Services Adm. Order, ADM 5450.3, change 4, � 141a; TPS
7460.1, Attachment, � 3, March 15, 1960.
[
Footnote 8]
ADM,
supra, � 141b; TPS 7460.1, � 4.
[
Footnote 9]
Id., � 142a.
[
Footnote 10]
TPS 7460.1, � 3.
[
Footnote 11]
Id., Attachment, � 7b(1).
[
Footnote 12]
63 Stat. 813, as amended, 37 U.S.C. § 253(c).
[
Footnote 13]
60 Stat. 806, as amended, 5 U.S.C. § 73b-1.
MR. JUSTICE STEWART, whom MR. JUSTICE HARLAN and MR. JUSTICE
GOLDBERG join, dissenting.
The governing law in this case is Title III of the Federal
Property and Administrative Services Act of 1949, [
Footnote 2/1] but that Act simply "extends to the
General Services Agency the principles of the Armed Services
Procurement Act of 1947." [
Footnote
2/2] In
Paul v. United States, ante, p. 270, I have
stated why I think those principles clearly contemplate that
government procurement is to be conducted within the framework of
valid state regulatory legislation. For the reasons there stated, I
also dissent from the Court's judgment in this case.
Only one additional consideration needs mention here. The Court
purports to find some additional support for the result in this
case in one provision of the 1949 Act which has no counterpart in
the 1947 Act. Section 201(a) of the 1949 Act [
Footnote 2/3] provides, in pertinent part,
"(a) The Administrator shall . . ."
"
* * * *
Page 371 U. S.
294
"
"(4) with respect to transportation and other public utility
services for the use of executive agencies, represent such agencies
in negotiations with carriers and other public utilities
and
in proceedings involving carriers or other public utilities
before Federal and State regulatory bodies. . . ."
(Emphasis added.) The Court seizes upon the words "in
negotiations with carriers" as evidence that Congress authorized
the Administrator to by-pass state rate schedules when placing
contracts for intrastate transportation.
Far from supporting the Court's position, I think § 201(a) is
simply another example of Congress' basic assumption that state
price regulation will remain applicable to federal procurement
transactions. The section refers both to negotiations with
individual carriers and to proceedings before regulatory agencies.
It seems to me that the authorization of these alternative
procedures must be read against the background of § 22 of the
Interstate Commerce Act, 49 U.S.C. § 22, which provides that I.C.C.
rate schedules governing interstate shipments are not to apply to
transportation for the Federal Government. In light of this express
statutory exemption for interstate shipments, it appears quite
clear that § 201(a) says nothing more than that the Administrator
has power to deal with whoever has authority to make rate decisions
-- with the carrier for interstate shipments and with state
regulatory agencies for intrastate shipments when regulated by
state law. [
Footnote 2/4]
[
Footnote 2/1]
63 Stat. 393, as amended, 41 U.S.C. §§ 251-260.
[
Footnote 2/2]
H.R.Rep. No. 670, 81st Cong., 1st Sess. 6.
[
Footnote 2/3]
63 Stat. 383, as amended, 40 U.S.C. § 481(a).
[
Footnote 2/4]
The same conclusion must be drawn from the several regulations
cited by the Court. When read in full, both the military and
civilian transportation regulations seem to anticipate that
procurement officers will deal sometimes directly with individual
carriers, and sometimes with a regulatory body. The Executive
Director, Military Traffic Management Agency, is made responsible
for:
"Negotiation with all for-hire carriers of cargo or their
ratemaking agencies for classifications, rates, charges, rules and
regulations on military traffic. . . ."
Chapter 201, Military Traffic Management Regulation, March 1958,
as amended to November 5, 1959. Similarly, regulations governing
nonmilitary transportation make the Transportation and Public
Utilities Service responsible for:
"the provision of advice and expert testimony on behalf of
executive agencies in proceedings before Federal and State
regulatory bodies involving transportation, public utilities [and]
communications. . . ."
General Services ADM Order, Adm. 5450.3, Change 4, July 31,
1959, § 1, � 141(b).