Hugo Black

“ 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. [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 guide posts 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. ”

“ 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 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 out-line 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' ”

“ 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. [27] If the genberal 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. ”

“ 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. ”

“ Of the six 'localities' into which the Secretary's determination divided the steel industry, respondents do business in that consisting of Ohio, Pennsylvania, Delaware, Maryland, Kentucky, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, Maine, the District of Columbia, and a part of West Virginia. ”

“ 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.' [26] For more than a year, Cabinet officers and their subordinates have been enjoined from making the Secretary's determination of minimum wages effective. ”

“ Section 3709 of the Revised Statutes requires for the Government's benefit that its contracts be made after public advertising. [12] It was not enacted for the protection of sellers and confers no enforceable rights upon prospective bidders. [13] 'The United States needs the protection of publicity, form, regularity of returns and affidavit (Rev.Stat., §§ 3709, 3718-3724, 3745-3747 (34 U.S.C.A. §§ 561-563, 570, 572-574, 41 U.S.C.A. §§ 5, 17-19) ) , in order to prevent possible frauds upon it by officers. A private person needs no such protection against a written undertaking signed by himself. ”

“ 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. ”