# S&E Contractors, Inc. v. United States

> Supreme Court of the United States · April 24, 1972 · 406 U.S. 1

URL: https://www.frixlaw.com/law-library/cases/9424853

## Case

- **Full name:** S&E Contractors, Inc. v. United States
- **Court:** Supreme Court of the United States
- **Decided:** April 24, 1972
- **Citations:** 406 U.S. 1; 92 S. Ct. 1411; 31 L. Ed. 2d 658; 1972 U.S. LEXIS 110
- **Precedential status:** Published
- **Opinion:** Dissent by Brennan
- **Judges:** Blackmun, Brennan, Burger, Douglas, Stewart
- **Cited by:** 95 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9424853

## How later opinions describe it (automated extraction)

- holding that disputes clause could bar government, as opposed to contractor, from seeking judicial review even on questions of law, absent claim of fraud

## Opinion text

*69 APPENDIX TO OPINION OF
BRENNAN, J.,
DISSENTING
Within two months after the decision in United States v. Wunderlich, 342 U. S. 98 (1951), six bills to expand the scope of judicial review of agency disputes decisions were introduced. S. 2432 (Sen. Chavez); S. 2487 (Sen. McCarran); H. R. 6214 (Rep. Celler); H. R. 6301 (Rep. Springer); H. R. 6338 (Rep. Wilson); H. R. 6404 (Rep. Walter). Hearings were held in the Senate on S. 2487. Hearings on S. 2487 before a Subcommittee of the Senate Committee on the Judiciary, 82d Cong., 2d Sess. (1952). S. 2487 provided:
“That no provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the Government contracting officer, or of the head of the department or agency of the United States concerned or his representative, in a dispute involving a question of fact arising under such contract, shall be construed to limit judicial review of any such decision only to cases in which fraud by such Government contracting officer or such head of department or agency or his representative is alleged.” Id., at 1.
The Comptroller General’s report to the Judiciary Committee, setting forth GAO’s views on S. 2487, stated that GAO felt that the result of the Wunderlich decision was “undesirable both as to the contractor’s interests and the interests of the Government.” Id., at 5-6. The Comptroller General stressed the latter interest.
“I am as deeply concerned, however, that the rule allows the contracting officials uncontrolled discretion over the Government’s contractual affairs as well and places them in a position to make as arbitrary and reckless use of their power against the *70 interests of the Government as against the interests of the contractor. In other words, deciding officials can make just as arbitrary determinations in favor of contractors, at the expense of the taxpayers.” Id., at 6.
The report concluded that GAO considered S. 2487
“inadequate and . . . objectionable because no provision is made therein for a review of decisions of administrative officers by the General Accounting Office. Without a provision to that effect the General Accounting Office in performing its statutory functions would be precluded from questioning the propriety or legality of payments made to a contractor as the result of an arbitrary or grossly erroneous decision on the part of the contracting officer.” Id., at 7.
The report recommended a substitute bill, which provided that
“Any stipulation in a Government contract to the effect that disputed questions shall be finally determined by an administrative official, representative or board shall not be treated as binding if the General Accounting Office or a court finds that the action of such officer, representative or board is fraudulent, arbitrary, capricious, grossly erroneous, or that it is not supported by substantial evidence.” Ibid.
Frank L. Yates, the Assistant Comptroller General, expanded on the report in his testimony before the Subcommittee. He asserted that prior to Wunderlich disputes clause decisions on questions of fact arising under Government contracts “were not disturbed by the General Accounting Office or the courts unless the action of the administrative officer was fraudulent, arbitrary, capricious, grossly erroneous, or without foundation in fact.” *71 Wunderlich , Mr. Yates said, “means that the decision of the administrative officials nearly always will be final because of the extreme difficulty of proving fraud.” Id., at 8. And, he continued, “the rule works both ways,” for “[a] deciding administrative official can make decisions adverse to the Government as well as to contractors, in which event an improper decision results in a burden, an improper burden, to the taxpayers of the country.” Id., at 9. Thus, he said, “it appears that the executive contracting agencies without specific legislation authorizing them to do so, may, by agreement with the contractor, circumvent the operations of courts and the General Accounting Office. to the serious detriment of both private business and the Government.” Id., at 9-10. Mr. Yates explained that GAO’s substitute bill would restore “to the courts and to the General Accounting Office . . . their normal and proper jurisdiction,” for:
“[I] t would permit [administrative officers] to make determinations on questions of fact which would have final effect if the decisions were not found by the General Accounting Office or the courts to be fraudulent, arbitrary, capricious, et cetera. Such a law not only would protect a contractor from fraudulent, arbitrary or capricious action by giving him, in addition to resort to the courts, a further administrative remedy before the General Accounting Office . . . but it would also provide a protection, through the General Accounting Office, against decisions adverse to the interests of the United States. Certainly the rights of contractors and the Government to review or appeal should be coextensive.” Id., at 11.
The managing director of the Associated General Contractors, H. E. Foreman, testified that the construction industry had for many years attempted without success to secure changes in the standard disputes clause. The *72 industry’s latest proposed disputes clause, which Mr. Foreman read at the hearing, provided “[t]hat nothing in this contract . . . shall void the right of either party to this contract carrying the dispute before a court of competent jurisdiction.” Id., at 24. The association’s general counsel, John C. Hayes, stated that its position was “that any decision made by a contracting officer or head of a department, agency, or bureau, should be subject to judicial review, in order to guarantee that such decision is reasonable, made with due regard to the rights of both the contracting parties, and supported by the evidence upon which such decision was based.” Id., at 29. In amplifying on this position, Mr. Hayes testified that only “by permitting judicial review of the contracting officer’s decision . . . can the rights of both the contracting parties be protected.” Although he then referred to the need for legislation that would authorize the courts to “enter judgment against the United States on any claim in which the contractor shall seek a review” of a disputes decision, he immediately added that the legislation should provide “that any provision in any contract with the United States abridging the right of the parties to court review shall be null and void.” Id., at 30. Finally, in commenting on GAO’s proposed substitute bill, Mr. Hayes said that the association “would welcome further administrative review,” but that contractors also “should be permitted our judicial review, whether it be the government or whether it be the contractor, it doesn’t make any difference. It has to cut both ways . . . .” Id., at 31. Replying to a specific question, Mr. Hayes denied that judicial review “was a one-way street in favor of the contractor,” repeating that “it cuts both ways.” He concluded that the association wished “to take the position of being absolutely fair in urging legislation that will protect the rights of both Government and contractor.” Id., at 32.
*73 There was much discussion of GAO’s substitute bill and GAO’s role in the review of agency disputes decisions. A former counsel to the Comptroller General, 0. It. McGuire, testified that GAO’s review should be limited to questions of law and that GAO should “accept the facts, unless, of course, there is fraud, or just gross mistake.” Id., at 41. John W. Gaskins, who was on the brief for Wunderlich in the Supreme Court, proposed a revision of GAO’s substitute bill specifically granting both GAO and the courts “jurisdiction to set aside any [administrative] decision” that did not comport with the standards set out in GAO’s bill. Id., at 68. Gardiner Johnson, an attorney who specialized in the representation of contractors, testified that, as he understood GAO’s position, GAO “simply wanted practically the same right that the contractors are requesting, to take an appeal from what they consider to be an unfair and unreasonable decision.” Id., at 84. As so understood, he said, “our people have no basic quarrel with that. We are against all forms of unfair, unreasonable decisions either against the Government and the taxpayer or against the contractor.” Id., at 83.
Most of the witnesses and most of the submitted statements, however, were concerned only with protecting contractors. E. g., id., at 2-3, 62, 70-75, 85-87, 119-136. A few witnesses went even further. Robert E. Kline, Jr., an attorney representing the National Association of River and Harbors Contractors, proposed amendments to S. 2487 designed “to assure full restoration to Government contractors of their inherent right to judicial review of unjust decisions by Government contracting officers and department heads.” Id., at 58. These amendments specifically limited the legislation to contractors’ suits in which a court would “enter judgment against the United States.” Id., at 59. Alan Johnstone, an attorney representing a contractor, initially suggested that the legisla *74 tion “should provide . . . simply that all administrative determinations in the performance of a contract with the United States shall be subject to review by the Comptroller General and by the courts, according to law, the provisions of any such contract to the contrary notwithstanding.” Id., at 61-62. Mr. Johnstone returned to testify later and, although expressing a preference for a “bill mak[ing] justiciable any grievance which either of the parties to the contract would have,” submitted two proposed bills on behalf of himself, Mr. McGuire, and Mr. Gaskins, both of whom had already testified, and Harry D. Ruddiman, who subsequently testified at the House hearings. These proposals made judicial review available only to contractors, one providing that “the United States shall not employ as a defense the finality of” agency decisions, the other that “the United States shall not avail itself of the defense of the finality of such decision[s].” Id., at 107.
In contrast, the Associated General Contractors, adhering to the position its representatives had taken at the hearings, submitted a resolution adopted at its annual convention stating that any disputes decision “should be subject to judicial review, in order to guarantee that such decision is reasonable, made with due regard to the rights of both the contracting parties, and supported by the evidence upon which such decision was based,” and urging legislation that would provide “that any provision in any contract with the United States abridging the rights of the parties thereto to court review shall be null and void.” Id., at 114.
After the hearings concluded, the Comptroller General sent the Committee a copy of his report to the Chairman of the House Judiciary Committee dealing with the House bills. Id., at 116-119. This report reiterated many of the comments made in the Comptroller General’s earlier report to the Senate Committee. The re *75 port also objected to the two proposed bills, submitted by Mr. Johnstone, limiting judicial review to contractors on the ground that “the Government would be precluded from employing the finality of the administrative decision as a defense to a suit, [while] the contractors would be free to utilize such defense should the accounting officers of the Government attempt to question the validity of a payment made to a contractor.” The report, as did the prior one, recommended adoption of GAO’s substitute bill. Id., at 119.
S. 2487 was reported out in amended form, incorporating the substance of GAO’s proposal. As amended, S. 2487 provided
“That no provision of any contract entered into by the United States, relating to the finality or conclusiveness, in a dispute involving a question arising under such contract, of any decision of an administrative official, representative, or board, shall be pleaded as limiting judicial review of any such decision to cases in which fraud by such official, representative, or board is alleged; and any such provision shall be void with respect to any such decision which the General Accounting Office or a court, having jurisdiction, finds fraudulent, grossly erroneous, so mistaken as necessarily to imply bad faith, or not supported by reliable, probative, and substantial evidence. . . .” S. Rep. No. 1670, 82d Cong., 2d Sess., 1 (1952).
The Committee report stated that “[t]he purpose of the proposed legislation is to overcome the inequitable effect, under a recent Supreme Court decision, of language in Government contracts which makes the decision of the contracting officer or the head of the agency final with respect to questions of fact.” Ibid. The report pointed out “that to the same extent [the Wunderlich] decision *76 would operate to the disadvantage of an aggrieved contractor, it would also operate to the disadvantage of the Government in those cases, as sometimes happens, when the contracting officer makes a decision detrimental to the Government interest in the claim.” Id., at 2. The report further explained that:
“S. 2487 will have the effect of permitting review in the General Accounting Office or a court with respect to any decision of a contracting officer or a head of an agency which is found to be fraudulent, grossly erroneous, so mistaken as necessarily to imply bad faith, or not supported by reliable, probative, and substantial evidence. In other words, in those instances where a contracting officer has made a mistaken decision, either wittingly or unwittingly, it will not be necessary for the aggrieved party to, in effect, charge him with being a fraud or a cheat in order to affect [sic] collection of what is rightfully due.” Ibid.
Finally, the report stressed that amended S. 2487 was “not intended to narrow or restrict or change in any way the present jurisdiction of the General Accounting Office . . . but simply to recognize the jurisdiction which the General Accounting Office already has.” Id., at 2-3.
Although the Senate, without debate, passed amended S. 2487, 98 Cong. Rec. 7783-7784; id., at 9059, the House did not act upon it during the 82d Congress. It was reintroduced in the Senate of the 83d Congress as S. 24. The Committee report was, with formal changes, identical to the report on amended S. 2487. S. Rep. No. 32, 83d Cong., 1st Sess. (1953). Senator McCarran, the bill's sponsor, explained on the floor that the effect of the Wunderlich decision was to require “that the aggrieved party allege and prove that some Government employee deliberately cheated, or intended to defraud *77 him, in order to get a court review of the question.” 99 Cong. Rec. 4572. He also noted that:
“Senators who have looked into this matter know that this decision of the Supreme Court cuts two ways. It can hurt the Government badly, as well as doing an injustice to contractors. In a recent case . . . [t]he Comptroller General . . . attempted to recover on behalf of the Government, because the mistake was against the Government. The contractor interposed a defense based on . . . the Wun-derlich case. . . . [T]he result was a failure of recovery on behalf of the Government.
“It was because of this case . . . that the Comptroller General . . . testified before the Judiciary Committee in behalf of this bill.” Id., at 4573.
Later the same day, however, Senator McCarran stated that the Air Force “objected to the fact that the bill gave the Comptroller General the same right that was given to a contractor to question a decision of a contracting officer.” Id., at 4598. He also stated that “the Comptroller General feels that in order to protect the interests of the Government, it is necessary that he shall have as much right to question the decision of a contracting officer ... as may be given to the private party to the contract.” Id., at 4599. When S. 24 reached the floor a month later, Senator McCarran again emphasized that while the Wunderlich decision could “operate greatly to the disadvantage of contractors,” it could also “operate to the disadvantage of the Government.” Id., at 6170. The Senate then passed the bill. Id., at 6201.
Representative Reed introduced amended S. 2487 in the House as H. R. 1839, and hearings were held on it and two related bills, H. R. 3634 (Rep. Celler) and H. R. 6946 (Rep. Willis). Hearings on H. R. 1839 et al. before Subcommittee No. 1 of the House Committee on *78 the Judiciary, 83d Cong., 1st and. 2d Sess., ser. 12 (1953, 1954).
At the initial hearing in July 1953, all witnesses supported the bill. Elwyn L. Simmons, a contractor, asserted that, because of “incompetent or negligent or capricious agency representative[s],” the Wunderlich decision could “work as readily against the Government’s interests as against that of the contractor” and that “only your immediate legislative action through enactment of H. It. 1839 or S. 24 can now protect both the Government and the contractor from this . . . unprecedented situation.” Id., at 4. Referring to the Senate debates on S. 24, Mr. Simmons noted
“that there was some objection by contractors doing business with the Air Force to the inclusion of the GAO under the provisions of this bill. I do not know what basis these Air Force contractors have for their objection, but we as general contractors are used to the GAO in our business and their auditing staff and forms no basis for our objection.” Id., at 5.
George P. Leonard, an officer of the Wunderlich Contracting Co., testified that because of Wunderlich “neither the Government through the GAO, nor the contractors through the courts, have any right to appeal from contracting officers’ decisions even though they may be grossly erroneous.” Id., at 7. He added that he saw “no reason why anybody should object to either the General Accounting Office or the courts passing on these decisions of the contracting officers.” Id., at 8.
Harry D. Ruddiman, who argued for Wunderlich before the Supreme Court, submitted a prepared statement asserting that unless H. R. 1839 was enacted, “not only the contractor but also the Government, will be unable to obtain effective judicial review of contracting officers’ decisions.” In his view, H. R. 1839 “would restore to *79 the courts an effective review of determinations made by contracting officers.” Id., at 12. Although, in light of the Senate reports on amended S. 2487 and S. 24, Mr. Ruddiman discounted “[f]ears . . . that the reference to the General Accounting Office in S. 24 would give it powers with respect to the review of payments under Government contracts beyond those which it already possesses,” he suggested in his statement that “any doubt on the matter . .. can very easily be removed by striking out the words 'the General Accounting Office or’ ” in H. R. 1839. Id., at 13. In his testimony, however, Mr. Rud-diman expressed reservations about removing GAO from the bill.
“Lastly, I would like to deal with an objection which has been raised to including the General Accounting Office in the provisions of this bill. I don’t know just exactly what the basis of the objection is, but in my opinion, any fears along that line are groundless. As I see it, the General Accounting Office, as a matter of practice, in reviewing contracts and change orders for purposes of payment, is always going to apply the standards of review that are granted to the courts. That has been their practice before the Wunderlich decision. They figured if there was good reason to doubt the finality of the decision, the matter ought to be referred to the courts. I think that is all that would be done by the language of this bill.
“At one time I thought there would probably be no objection to striking out the reference to the General Accounting Office as mentioned in S. 24 or H. R. 1839. I felt that even if you had no reference, the General Accounting Office would still exercise that same jurisdiction. However, in view of the fact that the Senate has already passed a bill which has included a reference to the General Ac *80 counting Office, I think it would be dangerous now to eliminate the General Accounting Office from the provisions of this bill. It might be misconstrued as taking away this jurisdiction from the General Accounting Office.” Id., at 16.
Representative Graham, a committee member, replied that it was “needless to refer to” GAO anyway. Ibid. Mr. Ruddiman, however, adhered to his view in a letter to the Subcommittee the following day.
“I feel that if the bill, as passed by the Senate, had contained no reference to the General Accounting Office, and the House of Representatives had passed such a bill without amendment, the General Accounting Office as a practical matter would, in reviewing payments under Government contracts and change orders, employ these same standards of review that are granted by the bill to the courts. Thus, if the General Accounting Office was confronted with an administrative decision which it thought would be set aside by the courts, it would refuse to make payment and throw the matter into court. However, since the Senate, in passing S. 24, has expressly included the General Accounting Office in the bill, some doubt as to the General Accounting Office jurisdiction might arise if the House of Representatives should then strike out all reference to the General Accounting Office. There would then be the possibility that this action would be construed as limiting review by the General Accounting Office to the ineffective ground of fraudulent intent prescribed by the Wunderlich decision. It is therefore my suggestion that the bill be passed without change in the language employed by the Senate.” Id., at 17.
Alan Johnstone, the final witness of the day, likewise *81 urged that GAO be left in H. R. 1839. Id., at 18. He said that “this bill would throw wide the portals of the courts of justice to anyone, including the Government, which has a grievance,” and, referring, as had Senator McCarran, to Leeds & Northrup Co. v. United States, 101 F. Supp. 999 (ED Pa. 1951), in which a contractor successfully asserted a Wunderlich defense, he said “that what is sauce for the goose is sauce for the gander.” Id., at 19.
Opposition to H. R. 1839 was also becoming apparent. Among the letters sent to the Committee, id., at 22-30, all calling for legislation to protect the rights of contractors, was one urging deletion of the reference to GAO because “[t]he effect of the provision is to set up the General Accounting Office as a 'court of claims.’ . . . [A]n agency of the legislative branch . . . should not be used to perform functions intended for the judicial branch.” Id., at 26.
Shortly before the hearings resumed in January 1954, the Comptroller General wrote the Chairman of the Committee about H. R. 1839. He noted that “there was considerable opposition to the bill from some quarters ... on the basis . . . that the General Accounting Office should not be given express authority by statute to review and overrule the determinations of administrative officials.” Id., at 135. He responded that GAO “has not asked for authority which it did not have before the decision in the Wunderlich case,” and he referred to the statement in the Senate reports that the bill would not affect GAO’s jurisdiction. Nevertheless, he then presented a substitute bill, to which he said there would be little or no opposition by industry groups and administrative agencies. He stated that “this substitute language will accomplish what we have been striving for all along and will place the General Accounting Office in *82 precisely the same situation it was in before” Wunderlich. Id., at 136. GAO’s proposed bill provided:
“That no provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, that any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence. . . .” Ibid.
With the addition of the words “in any suit now filed or to be filed,” added to deal with retroactivity problems, see, e. g., id., at 48, 82, GAO’s bill eventually was enacted as the Wunderlich Act.
In commenting upon GAO’s bill, E. L. Fisher, GAO’s general counsel, reiterated much of the testimony of the Assistant Comptroller General, Mr. Yates, at the Senate hearing. Mr. Fisher, as had Mr. Yates, stressed that the Wunderlich “rule works both ways. A deciding administrative official can make decisions adverse to the Government as well as to contractors.” Id., at 38. Mr. Fisher, in language virtually identical to that earlier used by Mr. Yates, urged passage of either H. R. 1839 or GAO’s proposed substitute because they
“would permit [administrative officers] to make determinations on questions of fact which would have final effect if the decisions were not found by the General Accounting Office or the courts to be fraudulent, arbitrary, capricious, and so forth. Such a law not only would protect a contractor from fraud *83 ulent, arbitrary or capricious action by giving him, in addition to resort to the courts, a further administrative remedy before the General Accounting Office, and would also provide a protection, through the General Accounting Office, against decisions adverse to the interests of the United States. Certainly the rights of contract [ors] and the Government to review or appeal should be coextensive.” Id., at 39.
The associate general counsel of the General Services Administration, J. H. Macomber, Jr., similarly emphasized the need to protect the Government’s interests, stating “that there should be some provision in the legislation, if not an explicit provision at least by appropriate wording with respect to the judicial review portion, that will insure an opportunity to protect the Government against excessive generosity, against decisions of the contracting officer adverse to the Government.” Id., at 59. Mr. Macomber suggested that
“there might be some doubt under the wording of H. R. 6946 . . . where specific reference is made to a finding by the court[,] as to whether the General Accounting Office could seek a court review by a setoff or by applying to the Department of Justice for recovery in a case where they felt that the action of the contracting officer was grossly erroneous as against the Government. I think that the language suggested by the Comptroller General’s revision gets away from that difficulty.” Ibid.
Mr. Simmons, a contractor who had supported H. R. 1839 at the initial hearing, appeared again to support GAO’s substitute bill on the ground that it “was prepared to meet objections of certain industries against giving the General Accounting Office express statutory authority to review administrative decisions under the disputes *84 clause, and is designed to give the General Accounting Office no more authority in this connection than it had before the Wunderlich decision.” Id., at 76.
Many other witnesses supported GAO’s substitute bill on essentially the same grounds. E. g., id., at 52-56, 77-88, 91-95, 101-104, 123-124. Louis F. Dahling, associate counsel for the Automobile Manufacturers Association, asserted that H. R. 1839 would “make the General Accounting Office another Court of Claims” and thus deprive contractors of their day in court.
“Now, it does not appear from the language in that bill that there would be any appeal from a decision of the General Accounting Office, and that office will in all probability make the first review of any disputes clause decision. If that agency should decide that the decision was not supported by substantial evidence, it would appear that the contractor would have no redress. Furthermore, the General Accounting Office is a part of the legislative department of the Government. ... If this agency is made another Court of Claims, in a sense it becomes a judge and jury and a prosecutor.” Id., at 97.
Mr. Dahling therefore supported GAO’s bill because it did “not grant judicial power to the General Accounting Office.” Id., at 98. Charles Maechling, Jr., a representative of the Radio-Electronics-Television Manufacturers Assooiation, echoed this view.
“Under S. 24, however, the scope and powers of the General Accounting Office are vastly enlarged, and this agency of the Government, which has heretofore exercised principally investigatory and audit functions, becomes clothed with powers of a judicial nature. S. 24 appears to set up the General Accounting Office as a third administrative tier of review in Government contract disputes.” Id., at 105.
*85 Similarly, the American Merchant Marine Institute submitted a statement objecting to H. R. 1839
“in so far as it establishes the General Accounting Office as a sort of intermediate or ‘floating’ court and vests it with express statutory authority to set aside [an administrative] decision merely because its administrative officers in their opinion consider the decision not to be supported by substantial evidence. On the other hand, we fully agree that a decision of a contracting officer or, upon appeal, of the head of the contracting agency, should be subject to judicial review and reversal by the courts .... This judicial function, however, should not be shared with or otherwise vested in the General Accounting Office .... The literal effect of S. 24 appears to be that once the General Accounting Office may have found the decision to be not supported by substantial evidence, it may not thereafter be pleaded in court either by the contracting party or the Government as limiting the scope of judicial review to that provided for by the disputes clause.” Id., at 122.
Opposition to H. R. 1839, then, was premised on the fear that its reference to GAO might deprive contractors of any recourse to the courts. That judicial review was the contractors’ sole concern is also clear from the position taken by the Associated General Contractors, id., at 61-75, which supported H. R. 1839 on the ground that it would restore to contractors “the fundamental right of judicial review of disputes arising under Government contracts.” Id., at 62.
That deletion of the reference to GAO was not understood as denying judicial review to the Government becomes evident from an examination of Representative Willis’ testimony about his bill, H. R. 6946, which was identical to H. R. 1839 except that it omitted the words “the General Accounting Office or.” Id., at 31. He tes *86 tified that the “Wunderlich decision could react and has reacted unfavorably to the Government where the Government felt it was the aggrieved party.” Id., at 32. The following colloquy then occurred:
“Mr. Hyde. The only question that occurred to me was that you mentioned there might be a time when the Government was the aggrieved party. With the present procedure, the Government is not likely to be the aggrieved party?
“Mr. Willis. It could be. It could very well be, because here you are dealing with fraud, and the court says that in order to have relief one must be guilty of fraud. Now, a contracting officer who hands down a decision against the Government can very adversely affect the Government itself, and the Government some of these days might find a decision very much against itself. The decision works both ways, in that there is no appeal either way from the holding of the contracting officer unless a showing of fraud is made, and the Government itself might be caught some of these days under this Wunderlich decision. I know of one case when the court so ruled.
“Mr. Hyde. If the contracting officer makes a finding, under what circumstances would the Government be the one to take an appeal or want to take an appeal? Who would be the one in the Government to say, We are going to take an appeal’?
“Mr. Willis. I imagine the General Accounting Office would be interested, and the Department of Justice and the Department of Defense. Suppose a dispute arises . . . [a]nd then on matters of fact the contracting officer holds one way. Then neither side has recourse unless there is a showing that the *87 contracting officer was dishonest, was guilty of fraud, or intended to cheat someone.” Id., at 33-34.
This testimony is significant also in light of the later testimony of Franklin M. Schultz, a former law professor who had written about the problems created by the Wunderlich decision. Mr. Schultz expressed concern that GAO’s substitute bill did “not say specifically that an appeal can be taken by an aggrieved contractor.” A committee member then asked whether the language of GAO’s bill did “not necessarily include both parties.” Id., at 110 . The following colloquy ensued:
“Mr. Schultz. Yes, and that is exactly my point. . . . [SJeveral years from now, if the Comptroller General decides . . . that a contracting officer’s decision is not supported by substantial evidence, he could refuse payment, and in a court action he could say that this bill means that it is a two-way street, not only may the contractor upset the contracting officer for not having substantial evidence behind the decision, but in the case where the contracting officer makes a decision favorable to the contractor the GAO has similar upsetting power. . . .
“Mr. Willis. This judicial review referred to in that passage there referring to a review by GAO, when GAO has been left out deliberately as compared to S. 24?
“Mr. Schultz. Well, that is persuasive, sir, but you do have the testimony of Mr. Fisher, sponsoring [GAO’s] bill . . . saying that the rights of contractors and the Government to appeal should be coextensive. . . .” Id., at 110-111 .
Mr. Schultz went on to say, what was implicit in the above colloquy, that his objection was not to judicial *88 review for the Government, which he recognized would be available, but to judicial review for either the Government or contractors on the basis of the “substantial evidence” test. He indicated that his “own preference would be for the language of [GAO’s] bill without the phrase ‘substantial evidence,’ ” id., at 113 , and in a subsequent letter to the Subcommittee he again suggested that neither the Government nor contractors should be permitted to rely upon that standard to upset an administrative decision, id., at 118-119 .
The Subcommittee was presented with, but took no action upon, a bill proposed by the American Bar Association that would have expressly limited the right of judicial review to contractors. Id., at 89. Instead, the Committee reported out the bill that is now the Wunder-lich Act. H. R. Rep. No. 1380, 83d Cong., 2d Sess. (1954). The report stated:
“The purpose of the proposed legislation ... is to overcome the effect of the Supreme Court decision . . . under which the decisions of Government officers rendered pursuant to the standard disputes clauses in Government contracts are held to be final absent fraud on the part of such Government officers.
“. . . The proposed legislation also prescribes fair and uniform standards for the judicial review of such administrative decisions in the light of the reasonable requirements of the various Government departments and agencies, of the General Accounting Office and of Government contractors.” Id., at 1-2.
The report also discussed the effect of the legislation on GAO, in much the same terms as had the prior Senate reports.
“The proposed legislation, as amended, will not add to, narrow, restrict, or change in any way the present *89 jurisdiction of the General Accounting Office either in the course of a settlement or upon audit, and the language used is not intended either to change the jurisdiction of the General Accounting Office or to grant any new jurisdiction, but simply to recognize the jurisdiction which the General Accounting Office already has.
“The elimination of the specific mention of the General Accounting Office from the provisions of the bill as amended should not be construed as taking away any of the jurisdiction of that Office. It is intended that the General Accounting Office, as was its practice, in reviewing a contract and change orders for the purpose of payment, shall apply the standards of review that are granted to the courts under this bill. At the same time there is no intention of setting up the General Accounting Office as a 'court of claims.’ Nor should the elimination of the specific mention of the General Accounting Office in the bill be construed as limiting its review to the fraudulent intent standard prescribed by the Wunderlich decision.” Id., at 6-7.
Representative Graham stated on the floor of the House that the Comptroller General had approved the bill, and the House passed it without debate. 100 Cong. Rec. 5510. When the bill came to the Senate, Senator Mc-Carran explained that
“The purpose of the proposed legislation is to overcome the inequitable effect, under the decison of the Supreme Court in the Wunderlich case, of language in Government contracts which makes the decision of the contracting officer or the head of the agency final, with respect to questions of fact. To put it another way, the objective of this bill is to preserve the right of review by the courts in cases *90 involving action by a contracting officer which is arbitrary, capricious, fraudulent, or so grossly erroneous as necessarily to imply bad faith.
“The language of the House bill, while quite different from the language approved in the Senate, is designed to accomplish the same purpose. It is my understanding the Department of Justice takes the view that the House language will accomplish the same purpose as the Senate language. It is my further understanding that the Comptroller General of the United States has expressed complete satisfaction with the House language, and has declared that in his opinion it will accomplish the purposes sought to be served by the Senate language.” Id., at 5717.
After Senator McCarran further assured the Senate that GAO was “satisfied with the language in the House bill” and that “otherwise [he] would not care to go along,” ibid., a final colloquy occurred:
“Mr. THYE. As I understand, the bill was passed by the Senate, and a similar bill was passed by the House. The only question involved is a modification of the language in the Senate bill, and the two bills agree in their effect, so to speak?
“Mr. McCARRAN. That is correct.
“Mr. THYE. There is nothing else of a legislative nature involved. Is that correct?
“Mr. McCARRAN. That is correct.” Id., at 5718.
The Senate then passed the bill. Ibid.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9424853. Public record. Not legal advice.