istering Office be in excess of current requirements, or (when added to total advances previously made and liquidated) in excess of the amount specified in paragraph (k)(1) of this SECTION. e. Liquidation. It not otherwise liquidated, the advance payments made hereunder shall be liquidated as herein provided. When the sum of all payments under this Contract, other than advance payments, plus the unliquidated amount of advance payments, are equal to the total estimated cost of $55,000.00 for the work under this Contract, or such lesser amount to which the total estimated cost this Contract may have been reduced, plus increases, if any, in this total estimated cost (including, without limitation, reimbursable costs incident to termination for the convenience of the Government as estimated by the Contracting Officer), the Government shall thereafter withhold further payments to the Contractor and apply the amounts withheld against the Contractor's obligation to repay such advance payments until such advance payments shall have been fully liquidated. If upon completion or termination of the Contract all advance payments have not been fully liquidated, the balances thereof shall be deducted from any sums otherwise due or which may become due to the Contractor from the Government, and any deficiency shall be paid by the Contractor to the Government upon demand. f. Bank agreement. Before an advance payment is made hereunder, the Contractor shall transmit to the Administering Office, in the form prescribed by such office, an Agreement in triplicate from the bank in which the "Gordon L. Allott Special ICC Account" is established, clearly setting forth the special character of the account and the responsibilities of the bank thereunder. Wherever possible, such bank shall be a member bank of the Federal Reserve System, or an "insured" bank within the meaning of the Act creating the Federal Deposit Insurance Corporation (Act of August 23, 1935, 49 Stat. 684, as amended; 12 U.S.C. 264). g. Lien on "Gordon L. Allott Special ICC Account." The Government shall have a lien upon any balance in "Gordon L. Allott Special ICC Account" paramount to all other liens, which lien shall secure the repayment of any advance payments made hereunder. h. Default provisions. Upon the happening of any of the following events of default, (1) termination of this Contract by reason of fault of the Contractor; (2) a finding by the Administering Office that the Contractor (i) has failed to observe any of the covenants, conditions, or warranties of these provisions or has failed to comply with any material provision of this Contract, or (ii) has so failed to make progress, or is in such unsatisfactory financial condition as to endanger performance of this Contract, or (iii) is delinquent in payment of taxes or of the costs of performance of this Contract in the ordinary course of business; (3) appointment of a trustee, receiver or liquidator for all or a substantial part of the Contractor's property, or institution of bankruptcy, reorganization, arrangement or liquidation proceedings by or against the Contractor; (4) service of any writ of attachment, levy of execution, or commencement of garnishment proceedings with respect to the "Gordon L. Allott Special ICC Account," or (5) the commission of any act of bankruptcy; the Government, without limiting any rights which it may otherwise have, may, in its discretion and upon written notice to the Contractor, withhold further withdrawals from the "Gordon L. Allott Special ICC Account" and withhold further payments of this Contract. Upon the continuance of any such events of default for a period of thirty (30) days after such written notice to the Contractor, the Government may, in its discretion, and without limiting any other rights which the Government may have, take the following additional actions as it may deem appropriate in the circumstances: (a) Withdraw all or any part of the balance of the "Gordon L. Allott Special ICC Account" by checks payable to the Treasurer of the United States signed solely by the Administering Office and apply such amounts in reduction of advance payments then outstanding hereunder and in reduction of any other claims of the Government against the Contractor; (b) Charge interest on advance payments outstanding during the period of any such default at the rate of 6 percent (6%) per annum; (c) Demand immediate repayment of the unliquidated balance of advance payments hereunder; or (d) Take possession of and, with or without advertisement, sell at public sale at which the Government may be the purchaser, or at a private sale, all or any part of the property on which the Government has a lien under this Contract, and, after deducting any expenses incident to such sale, apply the net proceeds of such sale in reduction of the unliquidated balance of advance payments hereunder and in reduction of any other claims of the Government against the Contractor. i. Prohibition against assignment. Notwithstanding any other provision of this Contract, the Contractor shall not transfer, pledge, or otherwise assign this Contract, or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company, or other financing institution. j. Information-access to records. The Contractor shall furnish to the Administering Office a monthly report on the operation of the "Gordon L. Allott Special ICC Account" in prescribed form, and such other information concerning the operation of the Contractor's business as may be requested. The Contractor shall afford to authorized representatives of the Government proper facilities for inspection of the Contractor's books, records, and accounts. k. Designations and determinations. (1) Amount. The amount of advance payments at any time outstanding hereunder shall not exceed $55,000.00. (2) Depository. The bank designated for the deposit of payments made hereunder shall be the Riggs National Bank of Washington, D.C. (3) Administering Office. The office administering advance payments is designated as the Interstate Commerce Commission. 1. Security. The terms of this Contract shall be considered adequate security for advance payments hereunder. m. Representations and warranties. To induce the making of the advance payments, the Contractor represents and warrants that: (1) No litigation or proceedings are presently pending or threatened against the Contractor. (2) None of the provisions herein contravenes or is in conflict with the authority under which the Contractor is doing business or with the provision of any existing indenture or agreement of the Contractor. (3) The Contractor has the power to enter into this Contract and accept advance payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Contract. (4) All information furnished by the Contractor to the Administering Office in connection with each request for advance payments is true and correct. (5) These representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each invoice for advance payments. INTERSTATE COMMERCE COMMISSION, Hon. JOHN D. DINGELL, DEAR MR. CHAIRMAN: In reply to a telephonic inquiry from Mr. Thomas G. Powers on March 27, 1973, requesting certain documents before the close of business on March 29, 1973, and scheduling a hearing before the Subcommittee on Activities of Regulatory Agencies on April 4, 1973, at 10:00 a.m., I submit herewith the requested documents or information concerning this Commission's contract for Special Counsel in Ex Parte No. 270 and related cases. The documents or information in response to your ten requests are as follows: 1. Exhibit 1 is a copy of the warrant to the contracting officer signing the contract. 2. There is no breakdown of the costs in the Letter Contract. Cost estimates will be shown in the Definitive Contract still under negotiation. Until such matters as staffing, procurement of office space, and other matters necessary to the effective functioning of Special Counsel are determined, costs cannot be specifically delineated. 3. Exhibit 3 contains the names of staff personnel and dates of their attendance at negotiation sessions. 4. Exhibit 4 contains the names of candidates and dates each was considered for appointment as Special Counsel. 5. Mr. Leonard S. Goodman was employed by the Office of General Counsel as a Trial Attorney, GS-11, on May 31, 1960, and he terminated his employment as Chief, Section of Research and Opinions, GS-16, effective March 31, 1973. 6. Exhibit 6 is the Commission's report of November 5, 1971, in Ex Parte No. 270. 7. Copies of the various pleadings and briefs prepared by Justice Brandeis in the Five Percent Case are in the Archives and cannot be made available on such short notice as set by the Committee. They will be retrieved and presented when obtained. An 8 volume set of the evidence, exhibits and oral argument in that case was printed in response to Senate Resolution No. 310 of March 23, 1914. These will be obtained from our library and delivered at the date of the hearing on a loan basis and must be returned to our library upon completion of your examination. 8. Exhibit 8 contains the prepared testimony to be submitted to the House Appropriations Committee on March 29, 1973. 9. Exhibit 9 a & b contain Appendices A & B to Chairman Stafford's letter of April 11, 1972, to George P. Schultz. 10. No final Definitive Contract has been executed with Mr. Allott. The Letter Contract of February 26, 1973, was submitted in our correspondence to you dated March 15, 1973. Memorandum to Managing Director Jackson: Authority is hereby delegated through you to the Chief, Operating Facilities Branch, Section of Administrative Services, to function as the contracting authority for the Interstate Commerce Commission with regard to all contract negotiations and awards. [Exhibit 3] (s) STAFFORD. 3. Listed below are the approximate dates of meetings with Senator Allott and the Commission's staff who participated in the meetings to the best of our recollection. As stated in our letter of March 15, 1973, there were no minutes taken or memorandums prepared on the meetings. [Exhibit 4] 4. Listed below are the names of candidates and the approximate dates each was considered for appointment as Special Counsel. Omitted from this list are the names of private practitioners who were considered on a confidential basis for appointment as Special Counsel. If absolutely necessary, these names will be supplied on a confidential basis. To make the names public could very well adversely affect the individual employment situations of these candidates. I am sure your Committee is not interested in jeopardizing their employment status through a public revelation of their interests in other employment. April 1972 June-December 1972_______ April 1972 Former Senator Frank J. Lausche. Robert W. Ginnane, former General Counsel for this Commission. Former Congressman William S. Springer of Illinois. Negotiations with the Congressman extended through mid-December 1972, when he informed the Commission he would not be available to accept the position as Special Counsel. Additionally, consideration was given to the following Federal judges, some of whom were unaware of our interest since we first had to informally ascertain their availability for the considered position: Friendly, Henry J. Fahy, Charles. Washington, D.C. Waterman, Sterry R. St. Johnsbury, Vermont Staley, Austin L. Pittsburgh, Pa. Kalodner, Harry E. Philadelphia, Pa. Youngdahl, Luther W. Washington, D.C. May 1972-January 1973. Private practitioners were considered for appoint January 10, 1973_. ment as Special Counsel. However, as stated above, the names of the private practitioners will not be included in this public record to protect the confidential nature of the interviews to safeguard their current job situations. Negotiations were instituted with former Senator Gordon Allott of Colorado. INTERSTATE COMMERCE COMMISSION REPORTS EX PARTE NO. 270 INVESTIGATION OF RAILROAD FREIGHT RATE Decided November 5, 1971 This investigation, instituted by the Commission on its own motion, has for its purpose the determination of a fair and reasonable railroad freight rate structure in the United States. Preliminary report and order issued herein. Curtis H. Berg, John J. Burchell, J. T. Clark, Harry DeLung, Jr., Louis T. Duerinck, R. S. M. Emrich III, J. D. Feeney, Earle J. Harrington, A. W. Hesse, Jr., Edward A. Kaier, Charles N. Marshall, Don McDevitt, Thormund A. Miller, Richard J. Murphy, William J. O'Brien, Jr., Charles C. Rettberg, Jr., Albert B. Russ, Jr., John F. Smith, James L. Tapley, Donald M. Tolmie, and Donal L. Turkal for railroads. James E. Armstrong, Charles W. Bucy, Stephen J. Gross, Hart T. Mankin, Robert H. Marquis, Paul L. Mills, Davis C. Powell, John Miles Powell, Maurice J. Street, and J. Thomas Tidd for Federal departments and agencies. John M. Agrey, Robert W. Barclay, Gene J. Carroll, Saul C. Corwin, Thomas W. Dench, A. G. Luclos, Clifford Elkins, John I. Finsness, J. J. Fleming, Gordon E. Ganka, Richard G. Granelle, R. L.. Henry, Walter W. Hudson, Edward B. Hipp, R. B. Jacobson, Robert K. Jorgenson, T. Grant Killian, Zan Lewis, Paul T. Liamos, Jr., David C. Nelson, Mary Moran Paplich, Bernard A. Peeters, James E. Singleton, and H. G. Slater for State commissions and agencies. Mike Mansfield and Lee Metcalf, United States Senators from Montana. Joseph M. Montoya, United States Senator from New Mexico. John Melcher, United States Representative from Montana. Arthur A. Link, United States Representative from North Dakota. Frank Murray, Secretary of State for Montana. Frank J. Kelly, Attorney General, Jerome Maslowski and Charles F. Keeley, Assistant Attorneys General for Michigan. 340 I.C.C. |