(dissenting).
I am constrained to dissent from the result which the majority opinion achieves. Here New England Coal and Coke Company entered into a contract to supply coal to the Government. The contract contained the express provision that the coal to be supplied was to come from Mary Frances #7 mine. No other mine was named as a supplier in the contract. The contract provided, inter alia, that:
“Section 3. — Mines
“(a) Coal from mines other than those stated in the Schedule shall not be furnished unless previously authorized by the Contracting Officer in writing.
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“(b) The Government reserves the right to add or to refuse to add additional mines other than those shown in the schedule and upon which award of contract was made. The Government reserves the right to require consideration by way of price reduction when additional mines are added to the Schedule at the request of the contractor.” (Emphasis supplied.)
There is nothing in the record showing that there was any authorization by the Government — written or oral — that the coal to be supplied under this contract could come from a source other than Mary Frances #7. This mine was in compliance with the provisions of the Walsh-Healey Act and we may assume that this was known to the Government at the time that it approved Mary Frances #7 as the source of the coal.
Under these circumstances, I would have no hesitancy in holding New England liable for the failure of Mary Frances’ suppliers to comply with the Act. It seems to me that — under the facts of this case — the majority’s view is in conflict with the purpose of the Act. Under the Act, the Government has the right to demand that the coal supplied to it be produced under specified conditions relating to wages and working conditions. Here it sought to implement this right by entering into a contract with a “dealer” — naming a specific supplier — - both comporting with the fair labor standards of the Walsh-Healey Act. Thereafter, the supplier named in the contract immediately turns around and hands over a significant portion of the work to be done under the contract to other suppliers which do not comply with the Act.
Although there is no question of New England’s good faith involved here, I can perceive no difference in kind between the situation involved here and that of the now banished “bid broker” whose demise was one of the conceded purposes of the Act. Consequently, I believe that the court’s opinion is an invitation tO' “facilitating avoidance of a fundamental public policy — fair wages and safe working conditions.” George v. Mitchell, 108 U.S.App.D.C. 324, 282 F.2d 486, 493 (D.C.Cir.1960).