been" increased prior to the making of such appointment. The ban clearly does not apply to an increase in compensation which is proposed subsequent to the appointment. In my view it is also inapplicable where, as here, it is possible but not certain at the time of the appointment that a proposed salary increase for the appointee may receive final approval at a future date.

Under the statutory plan, section 225 of the Federal Salary Act of 1967 authorizes the President to include in his Budget message for fiscal 1970 his recommendations, if any, with respect to a salary increase for various Federal officials, including Cabinet members. Since the Budget by law must be transmitted within the first fifteen days of each regular session of Congress, 31 U.S.C. 11(a), i.e., by January 17, 1969, President Lyndon B. Johnson will have made any such recommendations prior to your actual appointment as Secretary of Defense following the inauguration of Presidentelect Richard M. Nixon. Such salary recommendations are to become effective, under section 225 (i) (1), no earlier than "the beginning of the first pay period which begins after the thirtieth day following the transmittal of such recommendations in the budget," unless such recommendations are disapproved by Congress prior to the beginning of such first pay period. If there is an increase, it will take effect for Cabinet members, who are paid monthly, on March 1, 1969. Accordingly, it will be uncertain whether there will be any increase in Cabinet salaries until March 1, or such earlier date as Congress may take definitive action manifesting that it will not disapprove such increase.

It is my view that, notwithstanding submission of any salary increase recommendations in the Budget message, the salaries in question will not "have been increased" within the meaning of the constitutional prohibition so long as Congress may still exercise its power of disapproval. Assuming that you are, in the normal practice at the beginning of a new administration, nominated, confirmed, and appointed as Secretary of Defense within a few days following the inauguration, i.e., during the period in which it remains uncertain whether Congress may disapprove the Presidential

salary recommendations, I believe your appointment will not be precluded by this constitutional clause.

The memorandum of the Comptroller General refers to an opinion of Attorney General Benjamin H. Brewster rendered on May 26, 1882 (17 Op. A.G. 365). I do not consider that opinion applicable to the situation here involved. It refers to the part of Article I, section 6, clause 2 which prohibits appointment to an office created during the current congressional term of the designee. In that case the office necessarily "shall have been created" prior to the appointment. Here your appointment will be to an office whose compensation may be increased after the appointment. In view of that crucial factual difference, Attorney General Brewster's opinion has no bearing on your situation.

Sincerely,

RAMSEY CLARK.

BOARDS OF CONTRACT APPEALS DECISIONS-REVIEW BY ACCOUNTING OFFICE AND CONTRACTING

GENERAL
AGENCIES

The General Accounting Office (GAO) does not have authority to remand a claim decided by an executive contract appeals board for factfinding by the executive agency, either under 31 U.S.C. 71 or 31 U.S.C. 74.

Comity does not require an executive agency to accord the same procedural effect to a GAO opinion as it does to a court decision requesting further factfinding with respect to a claim subject to a mandatory contractual disputes procedure and ultimately open to judicial review.

GAO review of contract appeals board decisions in favor of the Government is not a necessary corollary of GAO's power to disallow board decisions against the Government in the course of GAO's audit and account settlement authority. In the latter case, but not in the former, GAO disallowance can lead to judicial review of the board decision.

A contracting agency, acting through the Department of Justice, is able on its own initiative to obtain, and has the responsibility in appropriate cases to seek, judicial review of contract appeals board decisions adverse to the Government.

THE SECRETARY OF THE AIR FORCE.

JANUARY 16, 1969.

MY DEAR MR. SECRETARY: You have sought my opinion as to whether you are required to comply with a request of the General Accounting Office (GAO) that a disputed contract claim be remanded to the Armed Services Board of Contract Appeals (the Board) for further proceedings in accordance with GAO's opinion on the merits of the Board's decision. For the reasons set forth below, I conclude that you are not required to comply with GAO's request.

The matter arises out of a claim by Southside Plumbing Co., Inc. (Southside), for extra compensation for certain work it performed under a contract with the Air Force, but

which the Board found was within the scope of the contract specifications and hence covered by the basic contract price. The question on which you seek my opinion does not concern the merits of Southside's claim or the validity of the Board's decision. It does, however, raise fundamental issues as to the legal relationship between GAO and executive branch agencies in the resolution of disputes arising under Government procurement contracts. I therefore consider the question appropriate for an opinion of the Attorney General. See, e.g., 33 Op. A.G. 383 (1922).

The Southside contract contained the standard disputes clause prescribed by the Armed Services Procurement Regulation, the full text of which is set forth in the margin.1 It requires that in the event of a dispute arising under the contract, the contractor may request a decision by the contracting officer, whose decision is final unless appealed within 30 days to the department head or his duly authorized representative. That representative is the Board.2 The Board's decision is declared to be final and conclusive subject to limited exceptions. On questions of fact it is not final if "fraudulent, or capricious, or arbitrary, or so grossly erron

1"DISPUTES (a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the head of the department. The decision of the head of the department or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision.

"(b) This 'Disputes' clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law." See 32 CFR 7.103–12 (Jan. 1958). 2 See 32 CFR 30.1