Evening star., 1943-10-28
Warren Rules Failure
To Obey Bias Rule
WON Void Contracts

Refusal of a Government con-
tractor to agree Ito the anti
discrimination ban ordered by
President Roosevelt, In setting up
the Fair Employment Practices
Committee, does not nullify a
contract, Controller General
Lindsay C. Warren has ruled.
The ruling seemingly weakens
the attempt OF the administration
to guard against discrimination
based on creed, color or race In
establishments supplying mate
rials or services to the Govern
ment.
mo useful purpose could possibly
be served by requirement that the
Government agency involved could
not conSummate a contract
without the provisions in question,
especially II the desired service
could not be procured from any
other source" the Controller Gen
eral said. In effect, the ruling was
based on the theory that the exec
utive order setting up the FEPC was
advisory rather than mandatory.
Decision Goes to Byrnes.
Mr.. Warren's decision went to
James F. Byrnes in his capacity as
liaison ofhcer for the Once of Emer-
gency Management. 1t grew out of
the refusal OF the Southwestern Bell
Telephone Co. OF Kansas City to
insert the provision in 4 contract
for telephone service in the Kansas
City area. The correspondence
which was 4 part OF the record
however, showed that the Govern
ment was having trouble in other
sections in the effort to enforce the
proviso. particularly insofar as the
procurement OF ONCE space is con-
cerned.
The provision in question is: The
contractor, in performing the work
required by this contract, shall not
discriminate against any worker be-
cause OF race, creed, color or ma
tional origin"
Contractors also are required to
exact the same terms from subcon-
tractors. The legitimacy Of con-
tracts where the proviso was reject
ed was raised by the director of the
Division of Central Administrative
Services. Mr.. Warrens decision
showed.
Cites Kansas City Situation.
The director told the controller
general that since telephone service
in Kansas City can be obtained only
through Southwestern Bell, and
available ONCE space in certain sec
tions OF the country is at a min
imum, the refusal OF contra ctors to
accept contracts containing the anti
discrimination clause has caused
considerable administrative difr1cul-
ties"
The Presidents order was issued
under his general war powers.
Mr.. Warren said the matter Of in
clusion in Government contracts of
the anti-discrimination clause had
not been the subject OF SPECIFIC stat
utorv enactment but that for present
purposes it would be assumed that
the proviso should be given the
same effect as a statute enacted in
like terms under like conditions and
for like purpose.
Defines Question.
The question to be considered by
his office. Mr.. Warren said, is
whether the discrimination ban is
mandatory, in the sense that fall
ure to comply Herewith vitiates the
action taken or whether 1t is direc-
tory only. leaving some discretion
In the contracting various agencies
Of the Government to mitigate a
literal application of the order In
cases"
He concluded that the use Of
shall" in the order would provide
leeway for contracting officers to
exercise discretion.
obviously, the prime objective is
the successful and unimpeded pros
ecution of the war" Mr.. Warren
said, adding, "and it is in that light
that the nature of the section ad-
dressed to the contracting agencies
of the Government must be regard
ed: that is. whether intended as a
mandate or directive.
Expects Few Refusals.
1T is to be assumed that the in
stances will be few in which con-
tractors will refuse to execute con-