lic funds. As a practical matter, there are few questions arising in the administration of an Executive Department that do not, in some way, involve expenditures. Acceptance of the Comptroller's interpretation, therefore, would reduce the Attorney General's authority to microscopic proportions, if indeed any remained at all. That this was not Congress' intent seems clear in light of the 1966 re-enactment, without substantive change, of the Attorney General's authority to issue opinions to the heads of Executive Departments. 80 Stat. 613 (1966), 28 U.S.C. § 512 (Supp. III, 1965–67).

The issue at the heart of this controversy is not a new one. There exist two laws dealing with the same subject matter-the power to render binding decisions to the heads of agencies regarding the proper interpretation of laws affecting their operations. The question is what effect shall be given to each. Clearly where, as here, two statutes speak to the same subject matter, they must be construed together and harmonized, if possible, so as to give effect to the intent of Congress. See United States v. Stewart, 311 U.S. 60, 64 (1940). Only in the event of irreconcilable conflict will the earlier statute yield to the one later in time.

We submit that the statutes in question may be interpreted in accordance with these principles. As the Attorney General has made clear, his jurisdiction over matters involving expenditures is limited to legal questions of general importance directly affecting the performance by Executive agencies of functions independently confided to them and not those simply involving payments. See, e.g., 25 Op. Att'y Gen. 614 (1906); 26 Op. Att'y Gen. 609 (1908); 33 Op. Att'y Gen. 383 (1922). This view affords the Comptroller's functions under the Dockery Act, as amended, the widest possible scope, consistent with the Attorney General's statutory duty. On the other hand, the Comptroller's interpretation would substantially reduce, if not eliminate, statutory harmony, for it strips the Attorney General of his authority to advise Executive agencies and relegates him to a nominal role, subordinate in virtually every respect to the Comptroller. So far as we are aware, the interpretation of the Attorney General has been followed without variation from 1921 to the present. See 38 Op. Att'y Gen. 555 (1937); 39 Op. Att'y Gen. 25 (1937); 40 Op. Att'y Gen. 193 (1942); 42 Op. Att'y Gen. No. 33 (1969); see also Graybar Elec. Co. v. United States, 90 Ct. Cl. 232 (1940). Nor has there been any question as to the binding nature of opinions by the Attorney General on Executive agencies. They "should be respected and followed in the administration of the Executive Branch." 37 Op. Att'y Gen. 562, 563 (1934). "[A]dministrative officers should regard them as law until withdrawn by the Attorney General or overruled by the courts'" (20 Op. Att'y Gen. 719, 722 (1894)), even in the face of a contrary decision by the Comptroller General. 38 Op. Att'y Gen. 176 (1935).

Thus, upon sound legal principles Executive agencies, including this Department, are bound to follow the Attorney General's Opinion upholding the legality of the Revised Philadelphia Plan.

Moreover, "the Comptroller General, who is clearly an administrative officer of the Government, is likewise bound as a matter of law by the construction placed upon the statute [here, the Civil Rights Act of 1964] by the Attorney General . . ." Id. at 179; 25 Op. Att'y Gen. 301 (1904). Contra, Comp. Gen. Dec. No. B-156192, 8 Gov't Cont. Rep. 82,526 (Feb. 7, 1969); 25 Comp. Gen. 377 (1945). That the Comptroller should consider himself bound by the Attorney General's Opinion is supported by Smith v. Jackson, 241 Fed. 747 (5th Cir. 1917), aff'd, 246 U.S. 388 (1918), where the Auditor of the Panama Canal Zone withheld from the salary of the Canal Zone's district judge sums he considered due as rent for quarters furnished by the Government and because of the judge's absence from the Canal Zone for a certain period. The judge thereupon sued for a writ of mandamus to compel the Auditor to pay him the sums withheld. The District Court held that the deductions were without authority of law and issued the writ prayed for. This judgement was affirmed by the Court of Appeals and the Supreme Court. The Supreme Court had this to say regarding the legal effect of an Opinion by the Attorney General:

"[W]e are of opinion that it is obvious on the face of the statement of the case that the Auditor had no power to refuse to carry out the law and that any doubt which he might have had should have been subordinated, first, to the ruling of the Attorney General, and, second, beyond all possible question to the judgments of the courts below. [246 U.S. at 390-91; see also Miguel v. McCarl, 291 U.S. 442 (1934).]"

In the context of the Revised Philadelphia Plan this Department believes that all Executive agencies and the General Accounting Office must adhere to 37-693-70-14

the ruling of the Attorney General upholding its validity. Certainly the question of the Plan's legality was properly before the Attorney General, since it involved a matter of great importance (the proper administrative interpretation of Title VII and the Executive Order), and only incidentally concerned payments out of the public Treasury. Its importance is underscored by the fact that the Comptroller's view not only affects the procuring activities of every contracting agency, but is contrary to the administrative rulings of the Equal Employment Opportunity Commission and runs counter to the legal arguments under Title VII that the Commission and the Justice Department have urged upon the courts. If sustained, it will have a drastic adverse impact on the administration of the civil rights laws, including the imposition of differing and conflicting standards of conduct under the Executive Order on the one hand and Title VII on the other. For these reasons, we believe that the Comptroller General's Opinion of August 5, 1969 is not binding on this Department, and that we have no choice but to follow the Attorney General's Opinion upholding the validity of the Revised Philadelphia Plan.

U.S. DEPARTMENT OF LABOR WAGE AND LABOR STANDARDS ADMINISTRATION SEQUENTIAL STEPS INDICATING HOW THE PHILADELPHIA PLAN OPERATES Washington, D.C., December 1969

INTRODUCTION

This paper portrays the actual administration of the Philadelphia Plan by the Office of Federal Contract Compliance (hereinafter referred to as OFCC) and by those Federal agencies having Federal and Federally-assisted construction projects in the five county Philadelphia area. It does not purport to contain an explanation of the carefully devised procedure under which ranges of minority manpower utilization are established. A detailed explanation of the method by which the ranges were devised for the Philadelphia area is set forth in OFCC Memorandum dated June 27, 1969, and OFCC Order dated September 23, 1969 (copies of which are annexed hereto, marked "A" to "B," respectively, and incorporated herein).

Further, this paper does not purport to answer such legal questions as have been raised concerning the validity of the ranges. A complete explanation of the legal basis for the ranges is contained in the Opinion of the Attorney General dated September 22, 1969, and Legal Memorandum prepared by the Solicitor of Labor.

Step 1

STEPS IN ADMINISTRATION OF THE PHILADELPHIA PLAN

The Philadelphia Plan became applicable, as set forth in Section 10 of OFCC Order of September 23, 1969, with respect to transactions for which the invitations for bids or other solicitations for bids were sent on or after September 29, 1969. Prior to this date, OFCC Memorandum of June 27, 1969, and OFCC Order of September 23, 1969, were disseminated to those Federal agencies which it was anticipated would be involved in the administration of the Philadelphia Plan. (A list of these agencies is contained in the document, annexed hereto marked "C," and incorporated herein.)

Step 2

Those Federal agencies, listed in document "C" referred to above, are required to notify applicants, contractors and subcontractors of the content and the operation of the Philadelphia Plan. All such agencies are responsible for monitoring the progress of the Plan, from the initial stages of a project through to its completion, receiving reports from contractors, determining whether proper records are being kept, and obtaining compliance. In discharging this responsibility, OFCC is responsible for general policy direction of the agencies' efforts and for eliminating any possibility of duplication of effort.

Step 3

Every Federal agency responsible for administration of the Philadelphia Plan includes and requires all applicants for Federal assistance, as defined by Executive Order 11246, to include copies of OFCC Memorandum of June 27, 1969, and OFCC Order of September 23, 1969, in each invitation or other such solicitation

for bids. All project advertisements include a statement that the project is subject to the Philadelphia Plan and that the contractor and subcontractors must be Equal Opportunity Employers as required by Executive Order 11246 and regulations promulgated thereunder.

Step 4

Normally, pre-bid conferences are held to discuss technical and other aspects of a particular project. At each such conference, those in attendance are given a detailed explanation of how the Plan operates and are afforded an opportunity to ask any questions they might have concerning the Plan. Every bidder can receive specific guidance as to how to prepare and submit his goals for each of the designated trades.

Step 5

In preparing and submitting his goals, a contractor uses the format contained in the Appendix to OFCC Order of September 23, 1969. (This Appendix is a part of document "B.") After reviewing his own labor force needs and those of prospective subcontractors, the bidder chooses and inserts his goals of minority manpower utilization next to the name of each trade listed for those years during which it is contemplated he will perform any work or engage in any activity under the contract. The goals, which are the result of the contractor's own determination of his ability to employ minority persons in the trades listed in the Philadelphia Plan, in this form are then submitted by the contractor and are included as part of his bid.

If a portion of the project is to be subcontractor, the contractor must include appropriate goals in each subcontract and these goals become the goals of his subcontractor. However, the prime contractor is not accountable for the failure of his subcontractor to make every good-faith effort to meet his goals. A subcontractor is accountable for his own effort to comply with the requirements of the Plan. Therefore, any such goals should be selected by a contractor only after consultation with all known subcontractors.

Step 6

All bids and goals submitted are reviewed by the administering agency. To be eligible for the award of the contract, the bidder must select goals for each trade and for every year which he is involved on the project falling within the ranges set forth in the Order of September 23, 1969. The lowest responsive and responsible bidder who submits goals within the established ranges is awarded the contract by the administering agency. In no instance are there any negotiations over the provisions of the specific goals submitted by a bidder after the opening of the bids and prior to the award of a contract. At any postaward conference and at other times after the award of the contract, the Federal agency administering the project is available for consultation and to assist the contractor in meeting his commitment. Additional assistance will be provided, where needed, in regard to training, recruitment, career and work counseling, community relations and in such other areas as may be necessary. Step 7

Every contractor and subcontractor is required to keep a record of his employment practices. This record must be available upon inspection of the project by the responsible Federal agency. Any such record should include those documents necessary to establish compliance with the terms of the Philadelphia Plan. Where a contractor or subcontractor has not achieved his chosen goals, such record should include documentation of those steps taken in a good faith effort to meet his commitment.

Step 8

Each agency is to review contractor's and subcontractor's employment practices at various intervals during the performance of a contract. A report of each review is to be made to OFCC by the responsible Federal agency. If all goals are being met, the contractor or subcontractor is presumed to be in compliance with the terms of the Philadelphia Plan and the Executive Order. If a contractor or subcontractor fails to meet the goals, he will be given the opportunity to demonstrate that he made every good-faith effort to meet his commitment.

Step 9

In the event that a contractor or subcontractor has not met his commitment, he shall be so informed in writing by the responsible Federal agency. A conference shall be scheduled at which the contractor or subcontractor will be given an initial opportunity to demonstrate that he has made a good-faith effort. If after the meeting the agency is of the opinion that the contractor or subcontractor did not make every good-faith effort to fulfill his commitment, he will be given a reasonable time to take corrective action.

(OFCC Order of September 23, 1969, in Section 5, sets forth specific criteria for determining good faith and provides guidance to a contractor or subcontractor as to some of those activities which would constitute a minimum level of effort.) Step 10

Before the sanctions of cancellation, termination, suspension or debarment are imposed against any contractor or subcontractor, he will be given the further opportunity to request a formal hearing. All such hearings will be conducted in accordance with the requirements of Executive Order 11246 and regulations promulgated thereunder. In each case the Director of OFCC, or the appropriate agency head, shall appoint a hearing examiner who shall hear all the facts and report his findings to the agency head for a decision or to the Director of OFCC for a final determination.

Only after these steps, including a formal hearing (where requested) and a determination by the Director of OFCC of inadequate good-faith efforts in meeting the requirements of the Philadelphia Plan, will sanctions be imposed by the Federal Government.

STATEMENT OF HERBERT HILL, NATIONAL LABOR DIRECTOR, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TO THE SUBCOMMITTEE ON SEPARATION OF POWERS OF THE SENATE COMMITTEE ON THE JUDICIARY, OCTOBER 28, 1969 This statement is presented on behalf of the National Association for the Advancement of Colored People, the Nation's oldest and largest civil rights organization. The association's national office is located at 1790 Broadway, New York City. We wish to thank the subcommittee for this opportunity to present our views on the Philadelphia Plan and related issues.

At the outset, we wish to commend Secretary of Labor George F. Shultz for his decision to stand firm in the implementation of the Philadelphia Plan despite the adverse ruling of Comptroller General Staats.

The firm stand taken by the Secretary of Labor is in sharp contrast to the retreat of the Office of Federal Contract Compliance in the textile cases, the retreat of the Department of Housing and Urban Development in failing to enforce the labor provisions of the Model Cities Act, as well as the retreat of the Department of Health, Education and Welfare on the guidelines for school desegregation.

The fundamental creditability of the Nixon administration on civil rights matters is finally being tested in the urgent matter of jobs for Negro workers in federally-financed construction projects.

The association believes that the Labor Department's requirement for the employment of a specific number of Negro workers in each craft in each State of construction is absolutely essential, given the institutionalized pattern of racial discrimination maintained through the illegal closed shop hiring hall system.

This statement will demonstrate why the Philadelphia Plan, at a minimum, should be adopted and strongly enforced by the Federal Government.

The construction industry is a most important part of the Nation's economic activity. New construction, maintenance and repairs account for 14 percent of gross national product and all the available data indicates a vast expansion of construction activity in the next decades. As has been documented by numerous government reports, the solutions to growing urban problems will require much demolition and rebuilding of central cities as well as greatly expanded transportation facilities.

The value of all types of new construction in 1967 was $76 billion and the value of maintenance and repair activity was an additional $25 billion. In 1968 in excess of $78 billion was spent for new construction and public works accounted for almost a third, or $26 billion on new construction.

Throughout the post-war period total construction activity has remained 14 percent of gross national product, but the share of new construction has increased from about two-thirds of the total in 1947 to about three-fourths in the 1960s. A recent study made by the staff of the Cabinet Committee on Price Stability reports that the public share of the current dollar value of construction has risen from 17 percent in 1947 to 34 percent in 1967. The report also notes that acute labor shortages continue to hamper the industry's ability to respond to market demands.

Despite the vast amount of public funds spent for construction, and despite the growth of the building industry with its ability to provide hundreds of thousands of man-years of employment-together with the fact that acute labor shortages now exist in several skilled occupations-black workers are permitted to receive what Roy Wilkins, executive director of the NAACP, calls "only the crumbs of expenditures for public construction."

The Nation's construction industry is of unique importance to Negro wage earners for many reasons. Among these are the following:

(1) It is a huge industry with vast growth potential. State and Federal social policies will in the future emphasize massive new urban development programs involving slum clearance, housing, schools and medical and other public facilities.

The Department of Housing and Urban Development during the fiscal period 1966-1967 was alone responsible, according to its own estimates, for some 465,000 man-years of employment. During this period, $5.5 billion in H.U.D. construction projects was involved. Because of the model cities program construction scheduled for next year, this sum will be considerably expanded. On October 18, 1968, the New York Times, in a news report headlined "Record Construction Contracts Seen for '69", revealed the results of a study made by the F.W. Dodge Corporation which forecast signfiicant increases in the Nation's construction industry.

The report of the National Advisory Commission on Civil Disorders (March, 1968) proposed new social programs which if even partially realized, would create thousands of new job opportunities in the construction industry. The estimate of the U.S. Department of Labor that the construction industry will require one million more workers by 1972 may be most conservative. According to recent surveys made by the Engineering News-Record, acute labor shortages already exist in many cities.

(2) The construction industry, in comparison with other large industries, is highly dependent on public funds. During 1968 public works represented approximately a third of all new construction. However, in the twenty-five major areas of Negro urban population concentration between 50 and 60 per cent of new construction projects were financed by Federal, State and local agencies. Given the anticipated new programs, these proportions will be substantially increased. (3) Wages in the construction industry are among the highest in the Nation. Wages for the craft occupations in the unionized building trades average about three times the general industrial wage. In 1968 in New York City construction, electrical workers earned $7.70 per hour, plumbers in several Ohio cities received in excess of $8.00 an hour. There is every indication that these wage levels will be increased during the next round of collective bargaining negotiations as in Philadelphia where the plumbers union recently negotiated an agreement that provides for an annual minimum wage of $19,400. A disproportionately high percentage of employed Negroes work at jobs paying close to the Federal minimum wage. These are the working poor, who are limited to the lowest paid menial work, and although they are counted as employed, live in a permanent condition of poverty. The building and construction industry represents a major area of the economy which could provide mobility into higher paying more desirable occupations.

(4) Jobs in the building trades are for men. In the highly important symbolic sense, as well as because of practical considerations, construction jobs are male jobs. These "manly" jobs with their high status implications are especially important for Negro men, who are so frequently either denied employment or permitted to work only in low paying, menial "dead end" jobs.

(5) Jobs in the construction industry are highly visible and are of special significance to low income black communities. Much of new construction, including urban renewal, model cities, highway and road building and public housing, is in, or very near, large Negro communities. Slum clearance programs are expected to provide employment to slum dwellers, especially as the model cities