(1930); Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 313 (1933). That inference is especially appropriate here, in view of the fact that, since the adoption by the Executive of the nondiscrimination policy, Congress has made a comprehensive examination and review of Government procurment practices in connection with its enactment of the Armed Services Procurement Act of 1947 and the Federal Property and Administrative Services Act of 1949. Although those acts specifically prohibited certain types of contract provisions, such as the cost-plus-a-percentage-ofcost type of contract, 10 U.S.C. 2306, 41 U.S.C. 254, no action was taken with respect to the well-established Executive requirement of a nondiscrimination clause.2 III. The Sanctions and Penalties Established by the Order Executive Order 10925 and the regulations issued under it, 26 F.R. 6585, 41 CFR chapter 60, July 20, 1961, make it clear that cases of noncompliance "should be resolved by informal means wherever possible," such means to include conference, conciliation, mediation and persuasion. Executive Order 10925, sec. 312(f); 41 CFR 60–1.24 (b)(2). Only where these means do not succeed does any question of the application of sanctions arise. The requirement that such informal procedures be resorted to first gives substantial practical assurance that the contractor will be informed of the nature of the asserted noncompliance and the possible imposition of sanctions, before any action is taken. Section 312(d) of the order authorizes termination of the contract or any portion thereof for failure to comply with the requirements of the nondiscrimination clause. Alternatively, continuance of the contract may be conditioned upon a satisfactory program for future compliance. Such termination or partial termination cannot be made less than 10 days after the mailing of written notice to the contractor of intent to terminate, affording him a further opportunity to comply 2 The silence regarding the nondiscrimination clause may be contrasted with the legislative reaction to the possibility that under the original version of DMP-4, 17 F.R. 1195, contracts might be diverted to labor surplus areas although lower prices were obtainable elsewhere. A rider was placed in the Defense Appropriation Acts for 1953 and subsequent years prohibiting "thepayment of a price differential on contracts hereafter made for the purpose of relieving economic dislocations." E.g., 67 Stat. 336, 357. with the provisions of the order, 41 CFR 60-1.24 (b)(3), 60– 1.29. Sections 312 (b) and (c) of the order provide for recommendations to this Department that civil litigation be instituted to enforce the nondiscrimination clause, or that criminal proceedings be brought under the false claims statutes for furnishing false information. Such recommendations, also, may not be transmitted until at least 10 days after the mailing of written notice of intent to do so, thus affording the contractor a further opportunity to comply. 41 CFR 601.24 (b) (3), 1.29. The United States, like any other contractor, is entitled to pursue any appropriate remedies for breach of the obligations agreed to by its contractors, and needs no specific authorization for judicial enforcement of its rights. Dugan v. United States, 3 Wheat. 172, 181 (1818); Cotton v. United States, 11 How. 228, 229-31 (1850); United States ex rel. Marcus v. Hess, 317 U.S. 537, 550 (1943); Rex Trailer Co. v. United States, 350 U.S. 148, 151 (1956); J. D. Streett & Co. v. United States, 256 F. 2d 557 (C.A. 8, 1958). Under ordinary rules of contract law, failure of the contractor to comply with the nondiscrimination clause is a breach of contract, for which the United States is entitled to an appropriate remedy by way of damages, rescission or injunction, against the contractor or a third party who induces a breach of contract. Any contentions as to whether the termination of the contract by the United States was authorized by the terms of the contract, or as to the appropriateness of the judicial remedies sought by the United States, can be litigated in the courts in an appropriate action by the United States or the contractor. Section 312(e) of the order provides that a noncomplying contractor may be declared ineligible to receive further Government contracts, or extensions or modifications of existing contracts, until he has satisfied the Committee that he has established and will carry out policies which comply with the order. The contractor is given various procedural rights by the regulations. He will be notified in writing of the proposed action. He is entitled to a hearing before the agency head or his representative, or before a panel of the Committee, and may request a written statement specifying the charges in reasonable detail. At such a hearing he may be represented by counsel, and shall be given a fair opportunity to present his case or defense including such cross-examination as may be appropriate in the circumstances. Decision is required to be on the record made at the hearing. 41 CFR 60-1.24(b)(3), 60-1.27. If declared ineligible, the contractor may apply for reinstatement upon showing that he has complied with the order or has a satisfactory program of compliance. 41 CFR 60-1.28. Debarring a contractor from receiving future contract awards is a recognized administrative practice. See 14 Comp.. Gen. 313. Subpart 1-1.6 of the Federal Procurement Regulations, 41 CFR 1-1.6, issued pursuant to the authority of section 205 (c) of the Federal Property and Administrative Services Act (June 30, 1949, c. 288, title II, 63 Stat. 389, 40 U.S.C. 486 (c)), provides for the debarring of contractors for violations of various acts of Congress which specify debarment as a sanction, and also for other causes, including commission of certain criminal offenses in connection with obtaining or performing a contract, wilful failure to perform a prior contract in accordance with its specifications and time limits, a history of unsatisfactory performance of prior contracts, and violation of the prohibition against contingent. fees. Secs. 1-1.603, 1-1.605. The regulations expressly recognize the privilege of the contracting agency to debar contractors for other causes. Subpart F of Part I of the Armed Services Procurement Regulations, 32 CFR 1.600 et seq., contains similar provisions, and provides also for suspension of contractors or bidders for various causes, without notice to the contractor or bidder. Action by the executive branch to debar bidders and contractors where the interests of the United States so require is an appropriate exercise of its power to "determine those with whom it will deal." See Perkins v. Lukens Steel Co., supra. The law does not require contracting agencies to engage in the futile, time-consuming and expensive act of entering into contracts with those whose past records of contract performance give substantial reason to believe that the contract will have to be terminated for breach of one of its provisions. And the regulations of the President's Committee afford procedural rights to the contractor, including the right to a hearing, which go beyond those afforded under previous regulations or required by law. Section 312(a) of the order authorizes the Committee to publish names of contractors and labor unions which it has determined have either complied or failed to comply with the order. Such lists would be purely informatory and would have no mandatory force. I understand that it is intended that resort will have been had to the informal means of conference, conciliation, mediation and persuasion, referred to in section 312(f) of the order, prior to listing the name of any contractor as noncomplying; in addition the regulations provide that a hearing may be held prior to a determination of noncompliance, 41 CFR 60-1.24 (b) (3). These provisions appear adequate to enable the Committee to take reasonable steps to safeguard against an inadvertent or arbitrary listing which might injure the reputation of an innocent contractor. Under these circumstances, I believe the Committee has legal authority, in its discretion, to make public the determinations it has made. Conclusion I conclude that the President has authority to require inclusion in Government contracts of a nondiscrimination clause as provided by section 301 of the order, and to impose the sanctions and penalties specified in section 312 of the order and that the procedures established by the Committee's regulations appear adequate on their face to protect any procedural rights to which the contractors and other persons affected may be entitled. Sincerely, ROBERT F. KENNEDY. CONFLICT-OF-INTEREST STATUTES; INTERMITTENT An intermittent consultant or adviser to a department or agency of the Government is an "officer or employee" within the meaning of the conflict-of-interest statutes (18 U.S.C. 281, 283, 284, 434, 1914; 5 U.S.C. 99). Every intermittent consultant or adviser is subject to the provisions of 18 U.S.C. 281 on all days when he is serving the Government. An intermittent consultant or adviser whose Government service during the period of his availability for such service occupies a substantial portion of that period, or affords his principal means of livelihood, is also subject to the provisions of 18 U.S.C. 281 on the days during that period when he is not serving the Government. The conflict-of-interest statutes relating to claims activities overlap to such an extent that an intermittent consultant or adviser is barred from prosecuting claims against the United States on behalf of other persons on the days when he is away from Government service, as well as on the days when he is in such service. 18 U.S.C. 434 bars an intermittent consultant or adviser, as well as a regular Government employee, from acting on behalf of the Government for the transaction of business with business entities in which he has a financial interest. In cases where an intermittent consultant or adviser serves an occasional period of a few days' duration, there would seem to be no violation of 18 U.S.C. 1914 if he continues to receive his usual compensation from an outside employer, but where the length or frequency of his Government service raises a question under that statute, it is necessary to determine on the facts whether his continued outside compensation is fairly related to his outside services rather than to his services for the Government. THE PRESIDENT. JANUARY 31, 1962. MY DEAR MR. PRESIDENT: I have the honor to respond to your request for an opinion as to the application of the conflict-of-interest laws to individuals utilized by the departments and agencies of the Government as occasional consultants or advisers or as members of part-time advisory boards. Your inquiry is made with particular reference to scientists |