authority vested in the President by the Economic Stabilization Act and, furthermore, the increase for the wage-price freeze period not having been provided by law prior to August 15, 1971, and by appropriations to cover, the increase does not meet the requirements of section 203 (c) of the Economic Stabilization Act Amendments which authorize retroactive payment of increases.

To the Secretary of Defense, July 7, 1972:

We have before us for consideration the question of entitlement of Sergeant Michael H. Stiles, 484–60-5858, United States Air Force, to a retroactive increase in basic pay for the period October 1, 1971, through November 13, 1971, including an increase in basic allowance for quarters for the period July 1, 1971, through November 13, 1971, under the provisions of title II of the act of September 28, 1971, Public Law 92-129, 85 Stat. 355 (37 U.S. Code 203 (a)).

Title II of the above-mentioned act of September 28, 1971, authorized increases in quarters allowance for all military personnel and increases in basic pay for those members in the lower grades with short periods of service, effective October 1, 1971. The same law also amended the Dependents Assistance Act of 1950 to authorize increases in quarters allowances for the lower enlisted grades effective July 1, 1971-the date those allowances authorized by the 1950 act as amended terminated by operation of law (50 U.S.C. App. 2216).

The period in question falls within the 90-day wage-price freeze (August 15 to November 13, 1971) imposed by the President by Executive Order 11615 dated August 15, 1971, under authority contained in the Economic Stabilization Act of 1970, Public Law 91-379, 84 Stat. 799, as amended (12 U.S.C. 1904 note). Sergeant Stiles questions the authority of the President to freeze military pay increases authorized in the act of September 28, 1971, Public Law 92-129. There is also for consideration the Economic Stabilization Act Amendments of 1971, Public Law 92-210, approved December 22, 1971, and its application to the military pay law of September 28, 1971.

By Executive Order 11615 dated August 15, 1971, issued under the Economic Stabilization Act of 1970, the President stabilized prices, rents, wages and salaries, for a period of 90 days from that date. The order established a Cost of Living Council and delegated to it broad authority to act for the President in carrying out its provisions. The Cost of Living Council delegated to the Director, Office of Emergency Preparedness, responsibility and authority to implement, administer, monitor and enforce the stabilization of prices, rents, wages and salaries as directed by the Executive order.

After the effective date of the wage-price freeze (August 15, 1971), the only action taken on the military pay bill, H.R. 6531 (which became the act of September 28, 1971), on the floor of either house of Congress was Senate consideration of, and vote on, the conference report on that bill. During that consideration, Senator Cannon on

September 15, 1971, said, in part, "So I urge Senators to vote for the conference report and to give the military a pay raise, when it can be granted. That, of course, will be after the freeze has been lifted." (117 Cong. Rec. S. 14354.)

And on September 21, 1971, Senator Dole said that "A decision on applying the wage-price freeze to the military pay increase will be deferred until passage of the bill in its present form." (117 Cong. Rec. S. 14683.)

On September 23, 1971, while the enrolled bill, H.R. 6531, which became the act of September 28, 1971, was being considered by the President, the Attorney General, in an opinion to the Chairman, Cost of Living Council, concluded that Executive Order 11615 "will suspend [the] effectiveness of the military raises until November 14, 1971, without further action by the President." Thereafter, on September 28, 1971, the President, in signing into law H.R. 6531, stated in part that "By law pay increases provided in this Act [Public Law 92–129] are subject to the 90-day wage-price freeze." Moreover, the Cost of Living Council specifically determined that "Military pay and benefit increases authorized by Public Law 92-129 may not be implemented during the freeze." See paragraph 502(26) of Economic Stabilization Circular No. 102, 36 FR 20490, October 22, 1971.

In the light of the above and the broad authority vested in the President by the Economic Stabilization Act of 1970, it is our view that the President's action to freeze military pay (during the period August 15 to November 13, 1971) at the rates in effect on August 14, 1971, was, and is, authorized by law, notwithstanding the increased rates prescribed in Public Law 92-129, approved September 28, 1971. The question further arises whether military personnel come within the scope of the Economic Stabilization Act Amendments of 1971, Public Law 92-210, approved December 22, 1971, for purposes of a retroactive increase in basic pay during the period of the wage-price freeze. Section 2 of title II of the act of December 22, 1971, amended section 203 of the Economic Stabilization Act of 1970 to provide as follows:

(c) (1) The authority conferred on the President by this section shall not be exercised to limit the level of any wage or salary (including any insurance or other fringe benefit offered in connection with an employment contract) scheduled to take effect after November 13, 1971, to a level below that which has been agreed to in a contract which (A) related to such wage or salary, and (B) was executed prior to August 15, 1971, unless the President determines that the increase provided in such contract is unreasonably inconsistent with the standards for wage and salary increases published under subsection (b). (2) The President shall promptly take such action as may be necessary to permit the payment of any wage or salary increase (including any insurance or other fringe benefit offered in connection with an employment contract) which (A) was agreed to in an employment contract executed prior to August 15, 1971, (B) was scheduled to take effect prior to November 14, 1971, and (C) was not paid as a result of orders issued under this title, unless the President

determines that the increase provided in such contract is unreasonably inconsistent with the standards for wage and salary increases published under subsection (b).

(3) In addition to the payment of wage and salary increases provided for under paragraphs (1) and (2), beginning on the date on which this subsection takes effect, the President shall promptly take such action as may be necessary to require the payment of any wage or salary increases (including any insurance or other fringe benefits offered in connection with employment) which have been, or in the absence of this subsection would be, withheld under the authority of this title, if the President determines that

(A) such increases were provided for by law or contract prior to August 15, 1971; and

(B) prices have been advanced, productivity increased, taxes have been raised, appropriations have been made, or funds have otherwise been raised or provided for in order to cover such increases.

Section 3 of the same act, Public Law 92-210, 5 U.S.C. 5305 note, under the heading "Federal Employee Compensation," provided for an adjustment in rates of pay on the basis there indicated of each Federal statutory pay system, which includes General Schedule employees, and that such increase was to take effect on the first day of the first pay period that began on or after January 1, 1972. In connection with section 3, military personnel were also entitled to an adjustment in basic pay under section 8 of the act of December 16, 1967, Public Law 90-207, 81 Stat. 654, which provides that whenever the General Schedule rates of compensation for Federal classified employees are adjusted upward, there shall immediately be placed into effect a comparable adjustment in the basic pay of members of the uniformed services. This provision of law was implemented by Executive Order 11638 dated December 22, 1971, effective January 1, 1972.

The provisions of section 203 (c) of the Economic Stabilization Act Amendments of 1971 were considered by us in decision of February 23, 1972, 51 Comp. Gen. 525, as they pertain to within-grade increases for General Schedule and wage-board employees and to wage-grade schedules, during the wage-price freeze covered by Executive Order 11615. In that decision we said, among other things, that "the provisions of section 203 (c) could not be applicable to general salary increases in the General Schedule and other statutory systems since such increases were specifically covered by section 3 of [the same law] Public Law 92-210, and such increases do not meet the conditions specified in section 203 (c)." After quoting part of the legislative history of section 203 (c) we said that it is apparent that the use of the terms "contract" or "employment contract" did not necessarily exclude Federal employees from the provisions of section 203 (c) in certain circumstances.

We concluded in the decision of February 23, 1972, that those wageboard employees for whom wage surveys were begun prior to August 15, 1971, are subject to section 203 (c) (2) and may be granted retroactive increases in wages to the date such increases would have

otherwise been effective during the period August 15, 1971, to November 14, 1971. We also took the view that both the conditions of (A) and (B) of paragraph (3) of section 203 (c) were satisfied 30 as to authorize within-grade increases for General Schedule and wage board employees which arose during the wage-price freeze and were not paid. This conclusion was based in part on the fact that such increases were provided by law prior to August 15, 1971, and appropriations had been made to cover such increases.

We have before us a copy of a memorandum dated May 3, 1972, from J. Fred Buzhardt, General Counsel, Department of Defense, addressed to Mr. Moot, Assistant Secretary of Defense (Comptroller) concerning Sergeant Stiles' entitlement. The view is expressed in that memorandum that any increases in military pay and allowances authorized by the act of September 28, 1971, are not properly payable for any period prior to November 14, 1971. The memorandum refers to our decision of February 23, 1972, 51 Comp. Gen. 525, and discusses at some length the holding in that decision and the application of section 203 (c) of the Amendments of 1971.

It is stated in the memorandum that even assuming arguendo that the pay and allowances of military personnel could be considered fixed pursuant to a "contract" or "employment contract," or that military personnel are not necessarily excluded from the provisions of the Amendments of 1971, it cannot be said that the increases authorized for military personnel by the act of September 28, 1971, were agreed to in a contract executed prior to August 15, 1971.

In relating the military pay increase authorized by the act of September 28, 1971, to the wage and salary increases and conditions specified in (A) and (B) of paragraph (3) of section 203 (c) of the Amendments of 1971, the General Counsel's memorandum states, in part:

The increases authorized by the Act of September 28, 1971, do not meet either condition (A) or (B). In this connection, it is significant to note that the law was not enacted until September 28, 1971 and that a supplemental appropriation request is now being considered by the appropriations committees to cover the additional costs of the military pay increases only for the period after November 13, 1971. Furthermore, in appearances before the appropriations committees in April, 1972, Defense witnesses made it abundantly clear that supplemental appropriations were being requested to pay only for increases which accrued after November 13, 1971.

The memorandum points out, however, that retroactive longevity increases which presumably accrued during the wage-price freezewere authorized and paid to military personnel on the basis of our decision of February 23, 1972. In this connection, it is pointed out that longevity increases for military personnel met the requirements of section 203 (c) (3) of the Amendments of 1971 in that such increases

522-985 O-74-4

were provided by law prior to August 15, 1971, and appropriations had been made to cover such increases in the fiscal year 1972.

We find nothing in the Economic Stabilization Act Amendments of 1971 or in its legislative history which would authorize retroactively for the period of the wage-price freeze, the rates of basic pay and allowances for military personnel authorized in the act of September 28, 1971. In support of the view that military personnel were not considered as being included in the Amendments of 1971, there is for noting that during floor discussion in the House of Representatives on the conference report as it relates to section 3 (adjusting the rates of pay of General Schedule employees and other pay systems) Mr. Udall said, in part:

As I read the debate and reports, it was clearly the intention of the Senate amendment, and it is the intention of the provisions included in the conference report, that the comparability adjustment is applicable to military personnel, and to all other employees whose pay is adjusted when adjustments are made in the basic pay of the General Schedule. (Cong. Rec., Dec. 14, 1971, H. 12530) These remarks indicate generally that Congress was concerned with getting pay raises for both civilian and military personnel in January 1972.

Had Congress intended to include military personnel in the Amendments of 1971, by extending the provisions of that act to cover basic pay increases authorized in the act of September 28, 1971, other than longevity increases, we believe appropriate language would have been used. In this connection, Congress specifically took note of a situation concerning employees whose compensation is adjusted on the basis of wage surveys (5 U.S.C. 5341) and authorized a retroactive increase in pay during the wage-price freeze provided certain conditions were met. See the act of May 17, 1972, Public Law 92-298, 86 Stat. 146.

In the light of the above and in the absence of some specific statutory authority or legislative intent to nullify the action taken by the President under the 1970 act, it is our view that increases in military pay and allowances authorized by the act of September 28, 1971, are not payable for any period prior to November 14, 1971.

[B-175779]

Contracts-Protests-Timeliness

The time limitations imposed by 4 CFR 20.2(a) of the Interim Bid Protest Procedures and Standards provisions for filing a protest, first with the contracting agency and then with the United States General Accounting Office (GAO), are intended to provide effective remedial action and, therefore, must be observed. Although a protest that the successful bidder was not responsible-a protest that does not involve an impropriety-was timely filed with the contracting agency, it may not be considered by GAO since the protest was not filed within 5 days of notification of initial adverse agency action. Furthermore, the protest may not be considered for "good cause"-a compelling reason for delayed