Thurgood Marshall

“ On January 1, 1967, the Agency for International Development (AID) , the State Department agency in charge of the foreign aid program, amended its regulations to preclude Webb-Pomerene associations from bidding on certain procurement contracts whenever procurement was limited to United States suppliers. [3] According to appellees, this new regulation made it uneconomical for the association to continue in operation, [4] since a large proportion of AID-financed procurement is limited to American sources. [5] Accordingly, on December 28, 1967, appellee association dissolved itself. ”

“ Evidently, it is their contention that they therefore fall within the class which Congress intended to allow to form export associations. But AID has already given American suppliers great competitive advantages in their battle with foreign firms. The governing statute requires a preference for American procurement. Foreign Assistance Act of 1961, § 604, 75 Stat. 439, 22 U.S.C. § 2354. On none of the contracts involved here were any of the major trading nations of the world eligible to compete; procurement was limited essentially to the United States and the underdeveloped countries. ”

“ Secondly, the new AID regulation does not apply to all contracts on which the former members of the association might bid. Whenever foreign bidders are eligible, AID still permits American Webb-Pomerene associations to compete. In fact, foreign bidders were eligible in all 11 of the transactions which gave rise to this suit. Therefore, however much the new regulation may reduce the practical importance of this case, it does not completely remove the controversy. ”

“ In a question addressed to the Chairman of the Federal Trade Commission, who was testifying in support of the bill, he said:
'I am frank to say that personally I have no sympathy with what a foreigner pays for our products ”

“ Involved in this case are 11 sales of concentrated phosphate made between 1961 and 1966 by appellee association. The phosphate was supplied by the association's members, [1] which are all producers of fertilizer, and was then shipped to the Republic of Korea under the United States foreign aid program. The Government, in a civil antitrust complaint filed on December 21, 1964, contended that the concerted activities of the association and its members in regard to these 11 sales violated § 1 of the Sherman Act, 26 Stat. ”